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LawBeat watches the journalists who watch the law. It is meant to start a conversation — here and in the classroom — about the quality of journalism focusing on the justice system, lawyers and the law. All posts are by Mark Obbie unless otherwise noted. Go to this archive to read more about LawBeat's focus and to this page about what motivated its creation, and how it evolved. Go here for the 10 Deadliest Sins of Legal Reporting post. And go here for blanket disclosure of Obbie's conflicts of interest.
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| Why David Lat is dead to me |
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| Above the Law |
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| Fri, February 02, 2007 |
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Everyone loves a good gossip story. Well, not everyone. Some are too high-minded for all that. And some, like me, are rather selective. I'm not in the hunt for sightings of entertainment or sports celebrities. Even on the off chance that I know who they are, I find it hard to care that they cheated on their spouse or procreated with their spouse or talked trash about another boldface name whose fame I find inexplicable.
I like the dish on my insular little world of media and law and politics and government. So, yes, I'm a Gawker/ Keith Kelly/ Wonkette/ Romenesko kinda guy. And on some days, I'm an Above the Law guy, even though on occasion I've been appalled at David Lat's low or lawyerly news standards.
But now he -- and his posse of self-absorbed, spoiled-brat followers -- have lost me. Over at Above the Law this week, Lat took a break from mindlessly chasing the Big Law salary rabbit around the track to post this gem. It's a rambling narrative that can be distilled like so: Someone identified only as "longtime reader" (LT) flew coach and was annoyed by a loud, bickering family whose daughter spilled coffee on the seat next to LT, and then she and her parents wouldn't confess as completely as LT would have liked. The kicker? This was the family of 9th Circuit Judge Marsha Berzon.
Wait. It gets better. Lat is chastised for taking after the good judge in this way, in part because the story coincided with the death of her brother. Then all hell breaks loose in the comments section of the blog, with Lat's acolytes raving about what a brilliant piece of gossip journalism he had dished up in the first instance, and what a wimp he was for apologizing for mocking the judge during a family tragedy.
I don't know what makes me more sick: Lat's belief that we want to read about his anonymous reader's bitchy yet fragile mental state while traveling in proximity to teenagers; his belief that this says something interesting about the judge; or his readers' obsession with this dreck.
Law deserves a good gossip column. The real kind, where a talented and well-sourced gossip reporter works his network and tells you gossip that matters; you know, powerful people being taken down a peg, or just observing them acting stupid. I had such high hopes that Lat, after the cheeky fun of his Underneath Their Robes, could be that kind of gossip. Alas, he's just another precocious baby lawyer with too much time on his hands. Who will be the next, and real, Above the Law?
Update: I revised this post to correct my misunderstanding. I at first misread his missive as saying it was Lat himself reporting the sighting of Berzon's family (which at least would have some factual credibility). In fact it was an anonymously penned tale of a "reader."
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Posted at 10:46 AM
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| Libby coverage: Hype over substance? |
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| Washingtonpost.com Bench Conference |
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| Fri, February 02, 2007 |
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Here's Andrew Cohen's take on the first two weeks of Libby trial coverage:
Media coverage of the trial so far has been decent but not spectacular.
Too many journalists have failed to distinguish for their audiences the
distinctions between what has been legally relevant in the
trial and what some might consider to be politically or historically or
even journalistically relevant. For example, you would have thought
from the coverage that it was a huge deal when former New York Times
reporter Judy Miller was unable to remember precisely during
cross-examination by Libby's lawyers any other conversations she may
have had about Plame-Wilson. But, apart from the fact that it might
have undermined Miller's credibility in general, it wasn't a big deal
at all since it didn't undermine her timeline as it related to what and
when Libby had told her about Plame-Wilson.
I haven't had time to follow the trial closely enough (beyond my big three papers' coverage, in the Post, Times and Journal) to know if I agree. But it wouldn't surprise me if it were generally true. Consider: This case is all about politics, policy and media maneuvering at the most elite levels of Washington. So, for reporters, it's easy to take your eye off the ball. You should be covering testimony and arguments strategically -- what helps or hurts either side's arguments and chances -- but the broader meaning of the trial constantly intrudes; the stuff that your editors and neighbors are talking about.
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Posted at 12:12 PM
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| Finding a trend in federal death penalty stats |
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| The Wall Street Journal |
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| Sat, February 03, 2007 |
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The Wall Street Journal's Christopher Conkey and Gary Fields do a good job on today's front page of finding and telling a story in a pile of justice statistics. It's a smart follow-up to Tuesday's death penalty verdict in a New York federal trial. The nut graf says that verdict, the first in 50 years in a New York federal case, "marked something of a milestone for the Justice Department in its continuing effort to apply the death penalty more evenly across the country." By evenly, the story means that the Justice Department now seeks the death penalty under federal law in more than just states that have their own death penalty statutes. DOJ does this by taking the decision away from local U.S. attorneys. The story lends additional perspective, explaining how DOJ is being more aggressive about seeking the death penalty in death-friendly or -unfriendly states alike, at a time when the states are easing off on the controversial measure. Congress in recent years has added more federal charges permitting a sentence of death. Still, there are just 47 people on federal death row, compared to more than 3,300 in the states' prisons. Critics and supporters all get their say, albeit succinctly, in pure Journal rat-a-tat style.
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Posted at 07:20 AM
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| Assignment Desk: Examining a church-state debate |
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| Sat, February 03, 2007 |
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Thanks to my student Jim Baxter, I read this cover story from Church & State, the magazine of Americans United for Separation of Church and State. The article marks the 60th anniversary of Everson v. Board of Education, a major precedent on the so-called wall between church and state erected by the First Amendment's Establishment Clause. Written by Church & State's editor, Rob Boston, the piece is a clear and interesting look at whether religious conservatives are correct when they complain that the wall of separation is a myth (three guesses on how the author answers that question). But it's advocacy, not straight journalism. And its publisher obviously has a dog in this race.
We need mainstream journalists to take everyday, important questions such as this -- the kind of issues that I know I hear a lot about from religious relatives and friends -- and explore them with reporting and analysis. To me, at least, the outcome would carry more weight, and preach to the unconverted, if it were written by a neutral reporter than an advocate (and this is not meant as a dig at Boston, who did a fine job and is clearly serving his readers). Any takers?
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Posted at 01:49 PM
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| Charged by Kinsley with hypocrisy |
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| Time |
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| Sun, February 04, 2007 |
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Professional contrarian Michael Kinsley slaps the press for not taking Scooter Libby's side (Kinsley argues that if leak recipients deserve protection and sanctification in the media, so too do the leakers they depend on). It's a quirky little bit of Kinsleyan logic. I do so love it when he gets all Perry Mason on us ("Oh, so you ARE saying you remember...."). It's harmless fun. But here's what caught my eye in Kinsley's column:
The coverage of the Scooter Libby trial has been jaunty to the point of slapstick--quite different from the cathedral solemnity when journalists are in the dock. There have been no self-righteous editorials from the New York Times or the Washington Post with titles like "Press Freedom on the Precipice" or "Showdown for Press Freedom" (both real examples from the Times). This isn't hard to explain: I have been loving Scootergate myself and devouring the coverage. It's great to see the ham-handed machinations of the Bush Administration exposed. Yet Libby faces the possibility of years in prison and the certainty of hundreds of thousands of dollars in legal bills--all because he allegedly tried to help journalists produce this sacred object, a leak.
Ignoring the apparent math error -- I'm quite sure Libby's tab will be well into the millions, even with an acquittal -- I have to ask: Where is this jauntiness of which Kinsley speaks? I've been reading the major papers and listening to Nina Totenberg (and, yes, reading Kiinsley's spawn, Slate). And I've read and heard pretty straightforward news reporting; nothing that treats this as a joke. Perhaps I should make time for the trial blogs after all, but who needs them when we have such wall-to-wall coverage already?
(Tip to How Appealing for the link.)
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Posted at 03:22 PM
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| The Charney blogfest |
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| Tue, February 06, 2007 |
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If Aaron Charney's discrimination suit against the elite Sullivan & Cromwell had fallen in a forest without blogs, would it have made a sound?
Back in the day, a young lawyer claiming he was discriminated against because he was gay would certainly have grabbed some headlines -- more in the legal trade press than the general dailies, but enough that it likely would be more than a one-day, two-graf story. Pro se suits, however, rarely get as much attention as "real" lawsuits filed by "real" lawyers. Why? Most of us are skeptical about the plaintiff's credibility. What if he or she is crazy? Why take it seriously if no lawyer would sign up to file it? Those judgments aren't always fair, but they're common.
Charney, of course, didn't file his suit in 1997. He filed it on January 16, 2007, with a flourish: an announcement on the Greedy Associates discussion groups. The suit got noticed by the Wall Street Journal's Law Blog, and most voluminously by the Law Gossip Site Whose Name I Do Not Speak, where the suit and its aftermath has warranted more than 50 postings in three weeks.
That relentless drumbeat finally stirred S&C to throw a counterpunch at what it calls a "malicious public relations campaign." What the firm doesn't say, but what is obvious, is that the campaign -- or, to put it more neutrally, the reporting and attention -- is being lavished most heavily by law blogs, which happen to figure most prominently in the reading habits of the young. The very audience S&C is worried about alienating by supposedly harboring gay-bashing partners.
Charney, by the way, is no longer acting pro se. Perhaps publicity served his purposes after all, by helping him attract some help.
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Posted at 06:57 AM
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| Talking Justice |
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| Wed, February 07, 2007 |
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I've just added a link on the blogroll to Talking Justice, a useful collection of blogs and discussions hosted by the NPR "Justice Talking" show. Thanks to my former American Lawyer Media colleagues for alerting me to this. The National Law Journal has started posting its editorials on one of the blogs.
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Posted at 08:01 AM
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| Politics in appointments? Shocking! |
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| The New York Times |
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| Wed, February 07, 2007 |
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I know it's just an editorial, but aren't editorial writers at least obliged to acknowledge facts that might undercut their opinion? Today's Times editorial "Playing Politics With Justice" clucks about the threat to the republic represented by the Bush administration's replacement of a handful of U.S. attorneys with -- horrors! -- political cronies. Um, isn't that what almost all U.S. attorneys are? It's rare for a career prosecutor to ascend to that particular presidentially appointed post. Typically, the president's party taps its allies in the state for recommendations and installs its man or woman over the career Justice Department employees who, we hope, are indeed independent. It's not a perfect system, but it's what we've had for a good long while. It's healthy to expose the appointees' political ties, but acting as though we're in the midst of an unprecedented attack on a politics-free institution is just silly.
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Posted at 08:01 AM
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| Mauro on Alito |
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| Legal Times |
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| Wed, February 07, 2007 |
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American Lawyer Media's Tony Mauro gets Justice Samuel Alito to sit down and talk about his first year on the bench. Alito is too cautious to hand Mauro a big, honkin' scoop, other than the fact that he talked at all. And there's no analysis of the substantive hints Alito has given in his votes and written opinions about how his judicial philosophy will play at the Supreme Court. But what makes the story interesting and worthwhile is the human side of judging that the story shows -- of how a judge adapts to his new, exalted environment in seemingly humble, down-to-earth terms.
One disappointment -- not with Mauro's handling of it, but in Alito's answer -- is that Alito has abruptly stopped giving friendly vibes toward cameras at the high court. Too bad, but not surprising.
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Posted at 08:24 AM
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| Slowpokes in D.C. |
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| SCOTUSblog |
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| Sat, February 10, 2007 |
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What's taking the D.C. Circuit Court of Appeals so long to rule in the cases of foreign nationals challenging their detentions at Guantanamo Bay? That's what Lyle Denniston would like to know in this powerful accusation of foot-dragging by the court. It's powerful because it's full of reported facts, and not just a diatribe. True, this leaps across the line from straight reporting to advocacy journalism. But it's not advocating a political, ideological or substantive argument. It's demanding swift justice, whatever the outcome.
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Posted at 11:38 AM
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| Letting O'Connor off easy? |
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| Sat, February 10, 2007 |
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Slate's Emily Bazelon seems to think that Jan Crawford Greenburg pulled some punches in her book Supreme Conflict to play by the Supreme Court's unwritten rules for the press. One of Greenburg's certifiable scoops is O'Connor's revelation that she wasn't quite ready to retire, but did so when Chief Justice William Rehnquist pressured her to leave so that he could stay another year (only to die months later). It's from an on the record interview with O'Connor, who has since repeated the story to other reporters. In Bazelon's review of Greenburg's book in tomorrow's Washington Post, Bazelon points out that there's no way to fact-check this story, and she notes that Greenburg doesn't even ask more questions about why O'Connor went along with the idea. Bazelon concludes:
There's nothing wrong with this; Greenburg's reporting has brought out new information, and the rest of us are free to speculate about O'Connor's truthfulness and her thinking. Still, it's worth noting the trade-offs this sort of reporting entails -- in this case, perhaps, access in return for the decorous handling of O'Connor's disclosure -- especially in light of the court's guarded norms.
It's a valid point, though I think it's a bit of a leap to suggest that the only reason to take the story at face value is to avoid making waves at the court. Maybe Greenburg got confirmation -- say, other justices confirm that O'Connor told them of this at the time -- but it's on such deep background that Greenburg can't hint at the existence of the confirmation. Reporters must make deals like this all the time. Or maybe it struck her as true and she saw no reason to question it. Or maybe she was just thrilled to have a scoop and didn't look at it all that closely. There are potential flaws in all of these strategies or reasons. But at least they're less conspiratorial.
In any case, let's play O'Connor Followup. What would we ask her if we were tough as nails and not concerned with burning bridges with her or other sources? I'll start (good thing, since I'm probably just talking to myself anyway):
What's so awful about two vacancies occurring at once that it would change your retirement plans?
Rehnquist was an old friend, since your law school days. Does it make sense that you would accede to his wishes without question, even though you and everyone could see that he was dying? It's a little hard to believe you wouldn't push back.
Did you tell anyone about this at the time? Who? If not, doesn't that hurt your credibility, seeing as how Rehnquist made quite a remarkable request of you.
If Rehnquist kept a journal and it turns up one day, what would you expect his version of events to sound like? Wouldn't he put a different spin on what he was asking of you?
Others?
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Posted at 03:19 PM
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| The forerunner to Greenburg's O'Connor scoop |
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| Sun, February 11, 2007 |
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I and many others have taken Jan Crawford Greenburg's reporting on the timing of Sandra Day O'Connor's resignation as a scoop. In my previous post I called it a "certifiable scoop." David Garrow in his LA Times review called it "Greenburg's most noteworthy achievement" and a "revelatory account of how Rehnquist, just two months before he died, effectively forced O'Connor to retire a year earlier than she had intended." Congressional Quarterly Supreme Court reporter Seth Stern, reviewing the book for the Christian Science Monitor, called it a "fresh insight." And Slate's Emily Bazelon, in her Washington Post book review, deemed it Greenburg's "juiciest bit."
Did we all err? The Times' Linda Greenhouse points out in a comment here that she reported the essence of the O'Connor/Rehnquist transaction way back on Sept. 5, 2005 (here's the full Times story, which requires a Times Select subscription. The relevant passage is in the 21st paragraph).
Clearly, I (more than the others, in the words I chose) overreached by assuming (without checking) that this was brand new. Just as clear, however, are the sharp differences in the amount of detail, emphasis, and interpretation each writer brings to her version of what O'Connor has to say. To Greenhouse, O'Connor simply retired first, once she realized Rehnquist planned to stay -- "nothing more complicated, mysterious, or nefarious than that," Greenhouse says.
Here's Greenburg's quite different take on it (from an excerpt of the book):
"I want to stay another year," Rehnquist told O'Connor. Years earlier, Rehnquist had vowed not to linger at the Court, that no man was bigger than the institution he served. Now, facing death, Rehnquist wasn't ready to leave a job that defined his life. . . .
Rehnquist was not ready to give up. But he then delivered a message she had heard before, this time with a stunning implication: "And I don't think we need two vacancies."
O'Connor, the trailblazing jurist who was arguably the most powerful woman in America, was caught off guard. Rehnquist's implication was clear: She must retire now or be prepared to serve two more years. Her opinions had determined the direction of the Court, reshaped American culture, and preserved the constitutional right to an abortion. But now Rehnquist, ravaged by cancer and desperately ill, was unilaterally deciding both of their fates. He would stay, and she should either step down now or be prepared to serve longer than she wanted.
I wouldn't call it a nefarious take on what O'Connor has to say. And I don't know which reporter got closer to the truth. But I do know that I'll be more careful about assuming facts not in evidence.
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Posted at 08:15 AM
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| Hentoff's putdown |
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| The Washington Times |
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| Mon, February 12, 2007 |
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Nat Hentoff's feeling a little cranky, and that's always fun. He liked the PBS Supreme Court series, and wishes that The New York Times' reviewer did as well. Catch this barbed message:
The press reviews for the four-part "Supreme Court" TV series have been
very favorable except for one. I feel sorry for New York Times readers
who were put off from watching by a stunningly supercilious and
ignorant review (Jan. 21) by Virginia Heffernan, who found it "boring."
The New York Times has superbly knowledgeable Supreme Court reporters
Linda Greenhouse and Adam Liptak, but chose to assign the review to a
writer who is very badly disadvantaged educationally.
But none of the rest of us need be in that sad state thanks to
Thirteen/WNET and PBS. There's more to television than Donald Trump and
Rosie O'Donnell.
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Posted at 06:33 PM
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| Best letter-to-the-editor ever |
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| Slate |
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| Mon, February 12, 2007 |
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Last month I spanked Charlotte Allen and The Weekly Standard for unfairly lumping Dahlia Lithwick in with the ideologues who assumed the Duke lacrosse defendants' guilt from the get-go. Lithwick's letter the the Standard apparently went unanswered, so she has a nasty-gram on Slate that wittily skewers the article without getting all pedantic about it. Check it out.
Update: Lithwick's readers perform ably, playing Allen's game of selectively quoting Lithwick to distort what she said -- except in reverse, turning Lithwick's piece into an attack on the Duke defendants' accuser. Bravo!
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Posted at 08:02 PM
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| Crawford, Mauro and Pooler in the (new) house |
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| Tue, February 13, 2007 |
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I've just added this event to the program's events calendar: On the eve of Chief Justice John Roberts' First Amendment address at SU, marking the opening of Newhouse III, Jan Crawford Greenburg will talk about her book Supreme Conflict and then discuss it -- and the related issues of judicial openness and legal reporting -- on September 17 in the shiny, new Newhouse III auditorium. I'll moderate the panel discussion with Greenburg, 2nd U.S. Circuit Court of Appeals Judge Rosemary Pooler, and veteran Supreme Court reporter Tony Mauro of American Lawyer Media.
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Posted at 08:15 AM
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| Trial bloggers' victory lap |
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| The New York Times |
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| Thu, February 15, 2007 |
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The Times' Scott Shane takes time out of covering the Scooter Libby trial to be lectured by bloggers on why he and his ilk suck. That seems to be the upshot of this story, where some of the Libby trial bloggers brag about what their coverage of the trial has demonstrated:
- Objectivity is worthless.
- Mainstream reporters travel in packs and collaborate to arrive at a consensus theme for their coverage.
- Trial bloggers dig into the facts and arguments in a case and reveal much more detail and nuance.
Here's this mainstream-media dinosaur's take on that:
Objectivity: You'll never convince me the public is better served by reporting that has an agenda, a point of view that it strives to make, through which it filters all facts. Opinion journalism is valuable, but when it replaces intellectually honest reporting -- the kind that recognizes that the writer doesn't have a monopoly on the truth -- we're doomed to a culture of closed minds and shouting past each other.
Packs: No doubt this occurs. I've seen it happen. I've fallen into the trap myself. But, in reading the major papers' coverage of this trial and listening to NPR's coverage, I've seen a wide range of interpretations and emphases. In no way have the facts or key points been duplicates.
Detail: Bloggers' coverage of the Libby trial has shown time and again that on-the-scene reporting is far more valuable than mere opinion that's based on others' direct observation. It's also proved that bloggers are far more capable of examining the nuances of a case. What they don't do, however, is provide a coherent, accessible narrative that will inform the broadest possible audience. A newcomer to this case -- which is to say the vast majority of Americans, who've paid little or no attention -- would take one look at the Libby trial blogs and hit the off switch. There's no entry point, no welcome sign that says: "This is what this case is about, this is what each side is trying to prove, this is what is at stake." It's a repetitive task that mainstream reporters tire of performing, but without it -- and without an attempt at fairness and objectivity -- a report is little more than gossip among trial junkies and experts. It's elitist, in both the good and bad senses. And so it has little impact on the broader public.
Overall, having the bloggers on the scene is a big plus. Those who care about a trial in detail will be better served. But pretending that bloggers have replaced, or should replace, the "real" reporters is a delusion.
PS - I've given up trying to correct the record on whether this is the first federal trial in which independent bloggers had credentials to cover the trial. It isn't (see Skilling/Lay), but the Media Bloggers Association's Robert Cox has made the claim so many times, and been quoted without challenge on it so many times (including by Shane in today's story), that it is now a "fact" in Lexis-Nexis land, never to be questioned again.
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Posted at 09:22 AM
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| Podcast on the Libby case |
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| Lawyer2Lawyer |
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| Thu, February 15, 2007 |
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Here's a shameless bit if logrolling: I'm linking to the Lawyer2Lawyer podcast in which I appear, with hosts Bob Ambrogi and Craig Williams, and fellow guest Ed Carter. We're talking some media law (what Libby and Fitzgerald hath wrought) and legal journalism (trial blogging). It's a thoughtful discussion, despite my role.
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Posted at 06:01 PM
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| White-collar defendant that time forgot |
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| The New York Times |
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| Fri, February 16, 2007 |
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One of the Times' heavy-hitter business writers, Gretchen Morgenson, casts a light on the bizarre case of Martin Armstrong, who's in his eighth year in jail on civil contempt charges. The story's clear explanations of civil vs. criminal contempt, and its look at both law and strategy, lend legal heft to a tale that needed telling. Prosecutors weren't talking, and the story is decidedly tilted against them. Would it have come out differently with the government's side explained in more detail? I don't think so, given Morgenson's reputation for a strong point of view, backed by deep reporting.
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Posted at 08:34 AM
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| Throwing the book at the CIA, without mentioning what book |
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| Sat, February 17, 2007 |
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The New York Times and Washington Post front the news of Italy's indictment of 26 Americans for the CIA's program of capturing terror suspects in Europe and shipping them off to other countries. The big difference between the two stories: the Post's Sarah Delaney and Craig Whitlock at least mention (in the lede, no less) what the charges are, while the Times' Ian Fisher leaves it to readers' imagination. (The charge evidently is kidnapping, by the way.)
Neither story's handling of the kidnapping case asks or answers other basic legal questions, such as: What are the likely penalties if convicted? What does international law say about criminal charges against another country's military or intelligence officials? Is diplomatic immunity a factor? Are the defendants at risk of arrest if they travel anywhere outside the U.S., or just if they travel to Italy? Was U.S. law arguably violated with the disclosure by Italian prosecutors of the CIA operatives' names? (The Post notes that the indictment names two dozen CIA operatives, and then the Post itself identifies two of them: the CIA's former Rome station chief and former Milan substation chief. The Times doesn't touch on those sensitive questions at all.)
These stories -- the Times' more so than the Post's -- are examples of journalism that serves law to readers in a substance-free vacuum. Their peg is a legal process, but they barely bother to mention anything about that process before they head straight to the political angles. Weird.
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Posted at 08:39 AM
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| "Hip-Hop Outlaw" without the law |
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| The New York Times Magazine |
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| Sun, February 18, 2007 |
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The Times seems to be specializing in legal stories stripped of law. The latest example is today's magazine piece by Samantha Shapiro. Quickly capitalizing on her good luck -- Shapiro was at work on a piece about DJ Drama's Aphilliates, a leader in hip-hop "mixtapes," when Georgia cops busted the group -- Shapiro pens 5,000 words on a brewing copyright controversy in the music business without ever explaining how copyrights allegedly were violated, or how mixtape DJs might argue the opposite.
I hate to carp. It's a fascinating, well-timed piece that clearly explains how the business works (essentially, DJs remix artists' work -- often with the cooperation of the artists or their recording labels -- in an art form that is one part record promotion, and one part underground tribute and commentary). She mentions offhand that the practice "almost certainly violated federal copyright law" and that rights are rarely cleared before mixtape CDs are distributed. That distribution nets hefty profits that labels and artists don't see. And, while record labels are secretly feeding DJs master recordings and payments to promote their artists, their industry -- through the Recording Industry Association of America -- is helping cops make state RICO cases in the same way as if they'd busted a bootleg-CD operation.
So why not connect the dots, and explain how strictly courts have interpreted publishing and master-recording rights? And why not spend a graf or two exploring whether the labels' secret backing of the scheme might constitute a de facto license? Or how the overdubbed commentary by the DJs, combined with snippets of songs, arguably is fair use? These aren't just footnotes. They'll determine the outcome of the battle.
When I zero in on these lapses (as I did in the previous post as well), it's not to gunk up good narratives with boring black-letter law. The law is what made this a story. Explaining it interestingly and clearly is just as important as the business and political story.
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Posted at 02:38 PM
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| Late (but not last) word on "Supreme Conflict" |
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| Mon, February 19, 2007 |
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Having (finally) finished Jan Crawford Greenburg's Supreme Conflict -- a delay solely attributable to my sloth and overbooked schedule, and not a reflection on how compelling the book is -- I have a few thoughts:
Much of the focus has been on Greenburg's ability to get nine current and former justices to sit for interviews, two on the record. Just as significant to me is her acknowledgement that "scores" of law clerks and other insiders -- officials from four administrations, circuit court judges, and other "key players" -- were her sources. The first category in that source list interests me most. After the storm over clerks' dishing of inside dope to Woodward and Armstrong for The Brethren, and former clerk Edward Lazarus' Closed Chambers, we haven't seen many stories attributed to the pool of clerks. It's odd that this book hasn't drawn similar flak -- and to Greenburg's credit that she apparently got some to provide useful detail among her more than 100 interviews.
She's not a captive of her sources, contrary to Emily Bazelon's thoughtful take on it. The best example: Anthony Kennedy, one of only two justices bold enough to go on the record, but whom Greenburg doesn't pay back with fawning praise. Kennedy comes off in the book as a pompous, muddled thinker, easily mocked by conservatives who count him among the many ideological surprises on the Court.
Is it overhyped and focused on trivia, as this comment would have it? Not in my view. It deserves every bit of its hype because it's original reporting -- the detail on the run-up to Harriet Miers' abortive nomination is particularly rich -- and because it's bringing the court to the masses in a smart but accessible way. That won't satisfy experts who want more substantive insights that are undeniably crucial, but lie well beyond the reach, and interest, of a broader public. The subtitle of the book promises "The Inside Story of the Struggle for Control of the United States Supreme Court," and it delivers, in a captivating narrative style that balances law, politics and personalities perfectly.
I started this blog last fall lamenting one accomplished legal writer's decision to dumb down the law too far, in an attempt at broad appeal. Greenburg has avoided that trap.
On the negative side, I found the amount of repetition a distraction. It's the intentional kind, where a writer assumes the reader isn't going to keep the details straight and needs not-so-subtle reminders. But it's overdone in a number of places. I also agree with some critics' gripe that Greenburg throws around ideological labels too freely. But she repeatedly compensates by explaining in lucid prose the difference between result-oriented judging and a a principled rule of law. That's the ultimate message of this book -- the foundation beneath the jucier stuff -- and it's a great public service.
I look forward to questioning Greenburg as part of this panel in the fall, as a warm-up to the chief justice's appearance on our campus.
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Posted at 06:41 PM
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| Nothing personal |
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| The Washington Post |
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| Tue, February 20, 2007 |
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Robert Barnes does something remarkable for a beat reporter: He steps outside the bubble in his story today. Challenging the "everyone knows" assumptions about how the law works, the Post's interim Supreme Court reporter (filling in for Chuck Lane, on book leave) focuses on this question: Why are the people whose cases end up at the Supreme Court virtually forgotten by a system that focuses on precedent and process rather than individual justice?
The answer, which Barnes illustrates vividly, is critically important to the public's understanding of law. Barnes quotes Justice Antonin Scalia, speaking at a forum last year:
"By the time you get up to an appellate court -- and lawyers ought to learn this -- I don't much care about your particular case," he said. "I am not about to produce a better result in your case at the expense of creating terrible results in a hundred other cases."
The Court is setting standards, not deciding based on which outcome seems right, or just. Barnes puts a face on the story, in the form of Lilly Ledbetter of Jacksonville, Ala. (Barnes' story is datelined there). Her disparate-pay claim against her employer was argued last November and awaits a decision. The anecdote puts in human and plain terms why reactions to Supreme Court decisions based only on the outcome are pretty much beside the point. But it illustrates, almost wistfully, why that process might not do justice in every sense.
Barnes might have used an expert quote or two to punch up the main point. In general, though, he's produced a memorable and readable -- even quirky -- contribution to Supreme Court coverage.
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Posted at 06:40 AM
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| The Stewart treatment |
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| The New Yorker |
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| Tue, February 20, 2007 |
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James B. Stewart has finally weighed in on the Hewlett-Packard leak-investigation scandal. Previous stories in The American Lawyer, Fortune, and Corporate Counsel (noted here and here) focused on the lawyers' roles. Stewart, in the Feb. 19/26 anniversary issue of The New Yorker (no link available), gets former board chair Patricia Dunn to talk, even though she's facing multiple felony charges. The result is a typically solid Stewart narrative, weaving in new interview material with e-mails and other revelations already made public. Stewart's focus: the war between Dunn and Silicon Valley legend Tom Perkins, then an HP board member. Stewart's conclusion: Dunn made crucial mistakes, but should not shoulder a disproportionate share of the blame. It's a good read, and an education in corporate politics.
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Posted at 07:51 AM
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| Scalia's Nostradamus |
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| The Los Angeles Times |
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| Tue, February 20, 2007 |
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David Savage goes out on a limb in this story today, predicting that with an added conservative vote in the Supreme Court lineup, Antonin Scalia's day may have come -- the opportunity to write majority opinions in major cases that divide the Court. There's no giant scoop here; no leak about internal debates or assignments of opinion-writing duties in specific cases. And Scalia's positions on constitutional originalism have not exactly been a secret. Savage also leaves ample wiggle room to say later that he wasn't predicting, merely raising the possibility. But the story still has a distinct tone of readiness. An alarm is going off: News is about to break. Between now and the end of the term in June, we'll find out if he nailed it.
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Posted at 08:59 AM
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| Ode to Anna Nicole |
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| CNN |
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| Wed, February 21, 2007 |
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Yesterday was a blockbuster legal-news day. Guantanamo detainees’ rights. Libby final arguments. A crucial ruling on punitive damages. So it's only natural that cable news agenda-setters chose this freak show for breathless, wall-to-wall coverage. It’s too bad Britney is now officially in rehab, because a cameo appearance by her outside the Fort Lauderdale courthouse would have really kicked it up another notch.
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Posted at 09:20 AM
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| I have a dream |
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| Thu, February 22, 2007 |
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I've been pondering how to respond to the Anna Nicole Smith debacle more constructively than I did in my earlier posts.
I could lament the public's low tastes, but that's rather hypocritical, seeing as how those tastes are fed by, even sparked by, a pandering infotainment machine that knows no restraints -- one that derives cheap thrills from a parasitic feast on a decomposing body.
I could encourage more mockery and hand-wringing of the sort I'm inclined to engage in (Bob Herbert's column today - TimesSelect subscription required - is particularly well crafted. Also check out the similar remarks of Andrew Cohen). But we just come off as clucking schoolmarms.
I could rationalize it as a Learning Experience, that maybe some good will come of it when the drooling idiots who watch this spectacle hour after hour will pick up some helpful tidbits about jurisdictional arguments or trusts and estates law. Yeah, right.
I could just ignore it because That's The Way We Are (we the audience, and we the media). But that's too fatalistic.
Or ... we all could see it as the latest in a long line of occasions that make it obvious there is a huge public demand for legal news. Our opportunity is to meet that need with quality, especially in TV news. More cameras in more courts that handle real cases of consequence. More resources -- reporters who know how to cover the law, and who are given the time to do enterprising stories on the issues that affect our lives. More documentaries, more newsmagazine pieces, more of everything to satisfy the evident craving that people have for the natural drama of the courtroom.
If we don't, then all we're left with is one soul-robbing grotesquerie after another.
Update: Rather than pile on at the sordid conclusion of this hearing, I'll simply second what Andrew Cohen has to say.
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Posted at 01:52 PM
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| Legal writers on parade |
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| Fri, February 23, 2007 |
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There's so much chatter about legal journalism, blogging, and analytical writing that I have to link to it in roundup fashion:
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Posted at 10:14 AM
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| DNA does Dallas |
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| NPR's Morning Edition |
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| Fri, February 23, 2007 |
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NPR's Wade Goodwyn reports today on the dawning of a new day in Dallas, as the recently elected DA takes to cooperating with inmates and defense lawyers making post-conviction claims of innocence. Rather than fight requests to reopen cases -- long the method taken by hard-line Dallas prosecutors -- the new DA is opening files on hundreds of convictions and permitting DNA tests on evidence. The most interesting twist in the story: Dallas (where that hard-line attitude might explain the remarkable number of wrongful convictions already revealed), long has outsourced its lab testing. And so evidence that might have been destroyed routinely is still available for new DNA tests. The story portrays Dallas as on the verge of the kind of purge that the Illinois court system experienced over wrongful convictions and prosecutorial misconduct. The Dallas Morning News' Steve McGonigle wrote about this last week with an even more in-depth look at the issues.
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Posted at 10:39 AM
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| Why cameras are a Seidlin antidote |
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| Fri, February 23, 2007 |
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Well, this was inevitable: finding in the Smith mess an argument against cameras in the court. (The argument is bound to be made many more times, probably more articulately. Though I don't say that just because I took the "chrome dome" talk personally.)
This facile conclusion gets it exactly wrong. Rather than urge government to restrict courtroom access based on government's desire to control the content of legal journalism -- which is what this camera-ban argument amounts to -- we should rejoice in what Florida's open-courts law gave us in this case: a full-on view of the kinds of idiots who can make it onto the bench, even in sizable metropolitan areas like Fort Lauderdale. Seidlin didn't know the difference between "anecdote" and "antidote." But his voters now know the difference between competence and incompetence.
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Posted at 12:41 PM
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| Record FCC fine pops out in interview |
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| The New York Times |
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| Sat, February 24, 2007 |
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Times legal writer Stephen Labaton scores a major regulatory scoop with this story about a record FCC fine against Univision for alleged violations of children's programming regulations. What's interesting about it, in legal-reporting terms, is that Labaton got the story in an interview with FCC Chairman Kevin Martin, not via the typical unnamed-source route -- and, atypical of a regulatory agency, not through a press-release handout. It's news even to the lawyer for the activist group that brought the complaint against Univision. High-level bureaucrats like Martin don't just blurt out secrets, so he obviously is trying to make a point -- which Labaton lets him make in the story. And that's the second interesting legal-reporting aspect to this. Martin has continued the FCC's general tilt toward deregulation (except for its indecency crackdown). He repeats that theme in the Labaton interview. But then he adds that he's not so stuck on that dereg track that he won't crack the whip -- at least in "some areas," a qualifier that shows the wide latitude a regulator has in picking enforcement priorities. The story answers all the basic questions about the procedural status of the fine (in a consent decree, which Univision has "tentatively" agreed to and that still requires the full commission's OK) and the legislative history of children's TV regulations. One nitpick: The story is pretty light on details about what kinds of children's programming the FCC regulations encourage (all we really learn from the story is that kid-oriented soap operas don't fit the bill).
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Posted at 07:22 AM
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| Documenting dissent in China |
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| The New York Times |
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| Sun, February 25, 2007 |
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The Times continues its remarkable "Rule by Law" series with this installment by Joseph Kahn on an informal network of lawyers who use law to challenge the ruling Communist Party's power. This coalition, Kahn writes
may be the only visible force for political openness and change in China at a time when the surging economy and the country’s rapidly expanding global influence have otherwise strengthened party leaders. The authorities have refrained from suppressing it entirely, at least partly because it operates carefully within the law and uses China’s judicial system, as well as the news media, to advance its aims. Yet nearly 18 years after the June 4, 1989, crackdown on pro-democracy protesters in Beijing, China quickly crushes any organized opposition. Rights defenders face the delicate task of coordinating their actions and expanding their collective influence when they remain autonomous, rudderless and, very often, rivalrous.
The series' eight previous installments last fall and into December -- four each by Kahn and Jim Yardley -- looked at the clash between authoritarian power and a fledgling legal system. Topics included forced confessions, the criminalization of commercial disputes, fair trials for criminal suspects, judicial and lawyer independence, and the government's balkiness at being held accountable by laws and courts. The series might be the perfect gift for that special someone in your life who loves to rail against "liberal media" and "sleazy lawyers" for harping on civil liberties and other legal technicalities. After all, Kahn and Yardley have thoroughly documented what is only human nature: give a government an inch, it takes a mile.
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Posted at 07:22 AM
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| G. Gordon Scooter Libby |
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| Court TV |
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| Sun, February 25, 2007 |
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The estimable Fred Graham has a Watergate flashback as he contemplates the Libby trial's meaning. It's a useful bit of perspective not only on the gravity of each case, but on the public's awareness of a trial that puts an administration's tactics on display. They don't make villains like they used to!
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Posted at 10:28 AM
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| A Civil Acción |
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| Outside magazine |
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| Sun, February 25, 2007 |
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I don't count on Outside magazine for legal stories. The March issue's cover has the usual mix of exotic trips and gonzo adventures. So it took me a while to crack it open and realize it has a marvelous legal feature by writer Peter Maass on a battle taking place in Ecuador (no link available). Titled "Slick," the story's table-of-contents blurb promises this:
All you boys in Big Oil better watch out. A big-time New York City attorney is after you, and his clients are pretty hard to ignore: 30,000 Ecuadoreans unhappy about a certain massive mess. They're looking at $6 billion in cleanup costs, and somebody's gotta pay.
The story, in fact, is more subtle. Maass, an experienced writer on the oil industry, tells a nuanced tale of pressure, politics, pollution and Chevron Corporation's unenviable place in the crosshairs of a colorful (and anything but big-time) New York public interest lawyer. Maass bases much of the on-scene color on a visit he made to Ecuador in late 2005. Even so, the story has a clear peg -- upcoming decisions in the trial on Quito -- and it provides a thorough and quite readable, if overly quick, run-through of the controversy from both sides' perspectives. If only it had a coverline, I would have seen it sooner!
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Posted at 01:33 PM
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| Prosecutorial blogging |
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| San Francisco Chronicle |
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| Mon, February 26, 2007 |
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The San Francisco Chronicle’s Marisa Lagos examines an interesting question of accountability, ethics and public relations. She wrote yesterday about a pair of California prosecutors who used blogs to attack local news reports on their offices. Do prosecutors abuse their power and prejudice cases by speaking out? Are they entitled to make their case, or are they making an end-run around the media? Are they wasting tax dollars?
There’s probably more to these incidents than meets the eye, but I naturally side on this issue with Peter Scheer, a California advocate for the First Amendment (and former colleague of mine), whom the Chronicle quotes as saying:
I think, in general, it's a good thing . . . . Doing nothing was the preferred approach for many D.A.s and certainly the U.S. attorney's office. I think you are seeing district attorneys moving more aggressively to say, "Why shouldn't we avail ourselves of the simple opportunity technology offers?" I certainly think they have a right to speak out and, in general, it's better than not speaking at all.
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Posted at 03:19 PM
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| Guilty as charged |
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| The New York Times |
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| Tue, February 27, 2007 |
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Now I’m really nitpicking, but it’s a vitally important nit. Why do even good reporters like Neil Lewis, in today's report on the dismissed Libby trial juror, persist in blurring the distinction between innocence and unproven guilt? Here’s the graf in Lewis’ story today that set me off:
Because a unanimous jury is needed for a guilty verdict, a defendant need convince only one juror of his innocence to avoid a conviction. As a result, lawyers said, defense lawyers prefer to have as many sitting jurors as possible to increase the chances of having someone who refuses to vote for a guilty verdict.
As any civics-class student knows, the real standard is that at least one juror declares that the government did not prove the defendant’s guilt. There’s a big difference. Even if that one holdout juror thinks the defendant probably is guilty, the juror must vote for acquittal if he or she has reasonable doubt. I, like many courthouse reporters, sometimes saw copy changed from “not guilty” to “innocent” based on an editor’s fear that the “not” would be dropped accidentally and we’d make a grievous error. Even if I accept that rather silly rule (and I don’t), Lewis and his editors weren’t even treading close to that line.
Every story we write educates the public -- not only about what’s going on, but about how the law works. Playing loose with key concepts like reasonable doubt is a disservice to our readers, no matter how trivial some think the issue (and this post) may be.
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Posted at 07:40 AM
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| Smoke screen |
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| National Public Radio |
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| Wed, February 28, 2007 |
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On NPR’s All Things Considered yesterday, veteran health-policy reporter Joanne Silberner reported on a perennial debate: whether Congress will grant the Food and Drug Administration the power to regulate tobacco. The story had significant pluses: a clear hook (the debate may be at a tipping point, with Democrats in control and at least one industry leader conceding that regulation is inevitable) and an equally clear explanation of important legal context (the courts have not permanently denied government this power, but have said that the laws now on the books would have to be changed to enable the FDA to draft regulations on tobacco’s safety and marketing). One bit of context was missing, however: Why would big tobacco cave in? Is it because it’s demanding protection from the constant assault by tort lawyers and the vagaries of the justice system? Good guess (that’s what I assumed). But not so. The current bill provides no explicit liability protection. Is it because big tobacco has decided to be responsible? Heh.
The real-world explanation is that Philip Morris U.S.A. sees this as a way to lock in a market advantage, and snuff out competitors, according to Peter Hardin's report in the Richmond Times-Dispatch. That’s enough to convince some anti-smoking activists that the bill is bad policy.
Legal policy, like litigation, is rarely transparent. Explaining why something is happening is as important as showing what may happen. NPR, it’s time for a follow-up.
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Posted at 08:13 AM
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