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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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Pedal to the metal
Tue, May 01, 2007
Inventors are cool and interesting. But their lawyers? Not so much. So, when the Supreme Court tackles a patent case (as it's been doing more lately), will the SCOTUS beat reporters work extra hard to make it interesting to a mass audience, or simply indulge their nerdy patent-law side? Coverage of yesterday's important patent decision in KSR International v. Teleflex shows some of both.

The Court's ruling sets a new standard for deciding when an invention is too obvious for patent protection. The legal standard, and the legal politics of the Supremes big-footing the Federal Circuit, give the case legal and business heft because it affects who wins future cases. The Court is deciding what the law requires, so that's the news. But delivering the news usually is more fun when we have readers. And to gain readers, we need to explain some real-world facts. Evidently not everyone agrees, or has the space or time (on a very busy decision day), to tell the story of the overly obvious gas pedal.

Tony Mauro of Legal Times and Lyle Denniston of SCOTUSblog -- the two beat writers I follow whose audience is mainly lawyers, not the general public -- both played the facts minimally (though, to be fair, Denniston only handled breaking-news duties on the decision, leaving a longer piece to a lawyer-specialist writer). Here's Mauro:

. . . Teleflex, a Pennsylvania company whose patent for an automobile gas pedal assembly was challenged by KSR, a Canadian firm.

And here's Denniston:

The ruling favored a Canadian company in a dispute over an adjustable accelerator pedal for cars and trucks.

The LA Times' Jim Puzzanghera gets all Dick-and-Jane on us, writing that the case

involved a dispute over adjustable automobile gas pedals. Teleflex Inc. of Limerick, Pa., developed the pedal and got a patent. Then its Canadian rival KSR International Co. created a similar pedal. Teleflex sued.

See Dick invent. See Jane sue.

Robert Barnes and Alan Sipress in the Post sound like me when pressed to describe the mysteries of How Mechanical Things Work -- a rushed, dismissive wave of the hand:

The disputed patent in the KSR case was held by Teleflex and involved an adjustable gas pedal that combined two established elements, the pedal and an electronic sensor. KSR, a Canadian company, challenged the patent, and a lower court agreed.

Joan Biskupic in USA Today takes a similar tack:

The case involves two manufacturers of adjustable gas pedals. It began when Teleflex accused KSR International of violating one of its patents. KSR countered that Teleflex never should have gotten a patent on the pedal in question because it was "obvious," based on other works.

The Journal's Jess Bravin (subscription required) puts the case in the context of the new economy and open vs. proprietary standards, but he is helping us close in on what actually landed this case in the courts:

The most important of yesterday's cases involved an almost textbook example of old industry -- the design of an accelerator pedal built for General Motors Corp. trucks. KSR International Corp., Ridgetown, Ontario, designed the pedals by adding an electronic sensor to a previously developed system. Rival Teleflex Corp., Limerick, Pa., had made a similar device for Ford Motor Co. trucks and claimed that KSR infringed its patent. A federal district court dismissed Teleflex's suit on obviousness grounds, but the Federal Circuit reversed the decision.

The gas-pedal-narrative winners of the day are AP's Pete Yost and the Times' Linda Greenhouse. It doesn't take too many words to let us in on the secret. Here's Yost's version:

In 2002, patent-holder Teleflex of Limerick, Pa., sued competing Canadian company KSR in federal court, alleging infringement. KSR's gas pedals supplied to General Motors Corp. can be adjusted for a driver's height and when pushed, the pedals send an electronic signal to accelerate. Teleflex alleges KSR infringed by combining the adjustable gas pedal and the electronically actuated fuel system in a way that Teleflex had patented. KSR said the Teleflex approach to adjustable gas pedal technology was obvious and that the patent should be invalidated.

And Greenhouse's:

At issue was an adjustable gas pedal for use on cars and trucks equipped with electronic engine controls. How could the vehicle’s computer tell the pedal’s position? A Canadian company, KSR International, under contract to General Motors, solved the problem by mounting an electronic sensor at the pedal’s fixed pivot point in order to communicate the necessary information.

A rival, Teleflex Inc., demanded royalties, claiming the device infringed its patent on an adjustable gas pedal equipped with an electronic sensor. KSR refused to pay on the ground that Teleflex had combined existing elements in an obvious manner and that its patent was therefore invalid. KSR won in Federal District Court in Detroit, but that decision was overturned in 2005 by the United States Court of Appeals for the Federal Circuit.

Although yesterday saw several newsworthy decisions (Greenhouse, for example, has three bylines, and SCOTUSblog's cup runneth over), our yearning for context isn't overreaching, since this is the kind of backstory material that can be written in advance and plugged into the story that's topped with breaking news.
Posted at 07:42 AM
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To catch a huckster
Newsday
Wed, May 02, 2007
Newsday's Alfonso Castillo has done a good job of casting a light on a highly questionable -- no, let's just come out and say it, repugnant -- and growing trend toward media exploitation of sexual exploitation. In this story on Monday, which he has followed daily (including this one today), Castillo has not just played along with the shameless and sanctimonious hype of Fox's "America's Most Wanted" in using Miss America Lauren Nelson to lure supposed online predators into a televised sting. He has written about the questions that many observers have about this tactic (which is a direct knockoff of NBC Dateline's vile "To Catch a Predator," which Douglas McCollam dissected in this CJR story). For Castillo's trouble, he earned this huffy and laughable retort from Fox.

Why all the nasty adjectives? This transparent ratings game uses people's lives as props. Ha, ha, look at the funny men going away to do hard time for years and years! That's entertainment! Dressing these tactics up as justice, or public education, only insults the public's intelligence even more. But what really is scary and offensive is the idea that news and entertainment programs will happily link arms with law enforcement to create a crime and then record the bust. It's the ultimate two for the price of one: a public shaming and then a public hanging.
Posted at 12:40 PM
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News without the hook
The Washington Post
Thu, May 03, 2007
Darryl Fears tackles an important topic in this story, but he’s guilty of running from the story’s PR roots. And, as a result, he makes a hash of things.

The story starts with old news — an Illinois rape conviction is tossed out after DNA evidence clears a man wrongfully imprisoned for 25 years — and calls the convict the “newest poster child” for the wrongful-conviction movement. Then we’re hit with Innocence Project stats on race and rape. Then we veer into a seemingly separate topic, a selective roundup of what various states are doing to prevent wrongful convictions. Along the way, a few more Innocence Project stats.

What’s new here? And what's the common thread? Fears never makes that clear. But a trip to the Innocence Project's Web site shows that the group published a report to mark 200 exonerations since 1989 and the dawn of the DNA era. The report anchors a public education campaign about wrongful convictions, complete with facts and figures on the 200 proven wrongful convictions and a roundup of what states are doing to reform their laws and procedures.

It’s almost as if Fears deliberately hid this context from his readers to prove his independence — he’s no patsy for an advocacy group (which he’s careful to label “liberal” in the second graf) and its overt attempts to draw attention to its cause. So, in drawing attention to that cause and drawing on Innocence Project’s research, Fears absolves himself by confusing his readers. 
Posted at 08:14 AM
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Caught with pants down
ABC News
Fri, May 04, 2007
The latest litigation-crisis urban legend should now officially be known as The Case of the $65 Million Pants. It started last Thursday, when WaPo metro columnist Marc Fisher described how a local administrative law judge, Roy Pearson, has waged a two-year battle over a lost pair of pants. He sued a family-owned suburban dry cleaner for the ridiculous sum (long story) over a host of claimed sins (long story), including violation of its promise -- it said it on a sign right there on the wall -- for "satisfaction guaranteed." The dry cleaner, owned by Korean immigrants, made reasonable settlement offers early on, and since then has bled legal fees.

All well and good. Crazy lawsuit stories give some folks a warm fuzzy feeling -- confirmation that the court system is out of whack. I would hope, but not expect, that a columnist/reporter might explain why a judge has allowed this suit to drag on; and explain that while the plaintiff can ask for the moon, that doesn't mean he'll win it. Fisher didn't explain that in his initial column. But to compound the problem, the TV networks are having a field day with the case -- and I can find no reminders anywhere (enlighten me if I'm missing this) that the dollar value a plaintiff puts on his case is meaningless. Instead, we're treated to countless assumptions that if someone utters the phrase "$65 million," that's proof positive that the legal system is out of control.

Witness the witless handling of it by ABC's so-called Law & Justice Unit (here and here), which has seen its discussion boards overwhelmed with chatter based on this wide-eyed story that intones, "It's the kind of lawsuit that makes liability reform advocates' temples throb." And throb they do, in the predictable person of tort reformer Philip Howard, who seems to draw a straight line between Pearson's unproven, unawarded claim and the "litigation crisis" that robs little girls of the comforting arms of their teachers and playgrounds of adequate jungle gyms.

I'm not saying there aren't actual abuses of the courts and tort system (although ABC's treatment suggests this is some sort of news flash to the Law & Justice Unit rather than a tired, somewhat discredited, decades-old debate). I'm not saying this can't actually turn into such a case. But before we start shrieking "out of control courts," why not explain why the court in this case has let a simple matter balloon into two years of discovery and motions, and why a claim doesn't automatically equal an award?
Posted at 06:49 AM
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Gitmo math
The New York Times
Sat, May 05, 2007
Credit William Glaberson with a scoop. Clearly that's how his editors see it, running as today's lead story this piece on tensions between large numbers of Guantanamo Bay detainees and their lawyers. How does Glaberson prove it's true? That's where we run into some ... fuzziness.

First, let me say that I'm a fan of Glaberson's tough, public-spirited legal reporting. That includes his expose of New York's shameful justice courts, and his scoop on April 26, culled from previously unnoticed court filings, that showed how the government is interfering with Gitmo detainees' access to legal help.

Today's story builds on the April 26 story, and ranks alongside it in importance -- if it's true. I'm predisposed to think it is true. No doubt it is heavily reported, judging from his multiple named sources. But there are many unnamed ones as well. And he runs into trouble by overusing vague terms to quantify what he knows and how he knows it. We're told that the rift between detainees and lawyers has appeared in some cases, according to some lawyers (16 "somes"), or many (5) or several (4). The closest Glaberson comes to quantifying what he knows is this graf:

Of 10 detainees publicly identified by military prosecutors as targets of possible war-crimes charges, many, if not most, either have refused American lawyers or are now uncooperative or uncommunicative, four of the lawyers involved in the war crimes cases said. Some of those detainees face possible life sentences.

That's hardly a model of transparency. And it's downhill from there, as the story lays claim to a broader trend than one confined to fewer than 10 detainees, based on the word of four lawyers. So, as a reader, I'm not sure how extensive and solid this really is. Faith-based reading has its limits, after all.
Posted at 07:46 AM
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Backstage at the Libby trial
Mon, May 07, 2007
Poynter's Chip Scanlon interviews The Washington Post's Carol Leonnig about juggling print, online and TV duties as a key member of the Post team covering the Scooter Libby trial. It’s a revealing view of what the work is like at a major newspaper, with big-league resources, covering the Big Trial in our 24/7 news cycle. And, by implication, it tells you what kinds of compromises we will make when we don’t commit enough resources to reporting and editing, yet expect journalists to do the whole multi-platform dance.

Snippets of what Leonnig told Scanlon:

  • It's so easy to boil down the drama of each day in court if you think about what struck you as a person, and what you thought was a big deal. And strangely enough, this exercise did help me on some particularly chaotic and demanding trial days. I had begun a draft usually by 4 p.m., and had a top by the time I went on the News Hour, but I was nowhere close to being finished. So sometimes talking on air about the sweep of what happened gave me some clarity about how to improve the lede or nut graph.
  • . . . [W]orking in so many different media has tended to make me clarify the central nugget of the day's story. What is the big take-away? And the transition in the course of a day from Web to print versions can also force reporters to think earlier in the day about the big questions readers will want answered, and also spot potential holes or flawed logic.
  • I suppose my nagging fear is that my trial experience portends what could be the future of reporting more mundane or everyday news. I think it would be physically and mentally difficult to keep up that pace -- and maintain accuracy and authority -- if each journalist individually had to juggle all those media demands in this intense, multi-platform way every day. News staffs are shrinking, not expanding, so how will everybody juggle at the same time?
Linked from Cyberjournalist.net.

Posted at 12:45 PM
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Lawyer rankings: pay to play?
Houston Chronicle
Mon, May 07, 2007
Mary Flood casts some light on the silly business of shaking lawyers down for advertising while lauding them in meaningless rankings. She follows up with this blog post on some readers’ confusion about a notable “advertorial” section in Texas Monthly by so-called Super Lawyers. Texas Monthly is a fine magazine, but whenever I see this huge annual publication I cringe, because — as Flood’s readers point out — it’s designed to confuse ordinary readers about who’s honoring the lawyers, despite the agate-type disclaimers.
Posted at 12:57 PM
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Presumed guilty
The New York Times
Wed, May 09, 2007
David Kocieniewski has a future as a Justice Department press-release writer if this gig at the Times doesn't work out. In his front-page story today reporting on the government's charges against six men in an alleged terror plot, Kocieniewski -- whose byline tops a story crediting 13 additional reporters' work -- lays out the government's core allegations against the men with no hedging, little attribution, and certainly no acknowledgement that the men may have a defense. He writes in his fourth graf:

. . . the criminal complaint that details the plot describes an effort that was alternately ambitious and clumsy, with the men at turns declaring themselves eager to sacrifice their lives in the name of Allah and worrying about getting arrested or deported for buying weapons or possessing a map of a military base.

So far so good. The complaint is clearly the source. Then, after a description of the suspects (including an unattributed characterization of two of them as illegal immigrants), we read this string of straight-up criminal allegations without any qualifying language or sourcing, not even a blanket attribution or reference to the criminal complaint at the start of this bloc of copy:

The men, ages 22 to 28, held jobs ranging from roofer to cabdriver to pizza deliveryman, and had no clear motivation other than their stated desire to kill United States soldiers in the name of Islam. They considered a variety of targets, including the annual Army-Navy football game and warships docked in the Port of Philadelphia, but ultimately dismissed Dover Air Force Base in Delaware as having too much security and picked Fort Dix largely because one of their fathers owned a restaurant nearby that delivered to the base.

The authorities first caught up with the men in January 2006, when personnel at a video store alerted the authorities after the suspects requested that he transfer onto a DVD a videotape of the group shouting about jihad as they fired assault weapons at a range in the Pocono Mountains.

It's one thing to write a one-sided, law enforcement-driven arrest story. Not good, but close to inevitable when news is breaking, defense lawyers haven't been hired, and reporters haven't had time to talk to suspects' friends and relatives. But it's another thing entirely to give authorities an unfiltered forum, stripped of any doubt about the suspects' guilt.

And let's not give all the love to Kocieniewski. With so many reporters in the mix, someone -- maybe not Kocieniewski -- played rewrite. In any case, the editors of this piece were asleep at the switch.
Posted at 06:38 AM
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Thomas through the racial lens
SCOTUSblog
Wed, May 09, 2007
Michael Fletcher and Kevin Merida of the Wasinhgton Post gave an interview to SCOTUSblog's Jason Harrow about their book, "Supreme Discomfort: The Divided Soul of Clarence Thomas." Part one focuses on the place that race played in giving the book its start. A snippet:

We were both intrigued by the passion that is stirred by the mere mention of Clarence Thomas’s name. There are no soft opinions about him, particularly among African Americans. We were once at a going-away party for a black professional friend and Justice Thomas’s name was harmlessly invoked. Just like that, a raging debate was kindled, drawing people from across the room. That gave us the idea that Justice Thomas would be a great subject to explore in a deep way, not only because of that interest but because of his place as a powerful figure in our society and someone who is likely to be a historic figure. Also, we were interested in the question of racial authenticity and why it is that so many people question Justice Thomas’s racial bonafides based on his conservative positions. . . . [W]e try to assess Justice Thomas largely through a racial lens, because for Thomas -- like all African Americans -- race is an inescapable fact of life. We deal more directly and in more detail with Thomas’s estrangement from broad swaths of the African American community.

Part two comes tomorrow.

Update: Here is part two, which has less to do with the media.
Posted at 07:58 PM
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Watchdog back on duty
The New York Times
Thu, May 10, 2007
The gung-ho, hang-em-high tone of yesterday's David Kocieniewski-bylined story on the accused Fort Dix plotters turns admirably skeptical today with this examination by Kocieniewski of an informer's role in making the case. Mined from the remarkably lush cache of details the government disclosed with Tuesday's announcement, the story provides useful perspective, like this:

As the case goes forward, the role of the main informer will almost surely be contested. Over the years, informers in terror cases have become the focus of efforts by defense lawyers and others to call into question the legitimacy of the investigations. They have often sought to show that informers engaged in entrapment.

“The police are allowed to use some enticement in cases,” said Troy Archie, a lawyer for one of the six men charged, Dritan Duka. “But it depends how far they go.”

And the story details instances when the informer acted more like the suspects' leader than a mere observer.

Kocieniewski's story seems balanced and fair, not skewed in either direction as the first-day story was. That's the approach I'm striving for, too, in my comments on the case's coverage. I don't mean to sound hostile to the government's case, or in love with the defense. Perhaps these suspects are guilty as charged and we should be grateful that our government protected us from murder and mayhem. But it's also plain that it's our job to test government claims, or at least treat them with healthy skepticism until all the facts are in.
Posted at 08:50 AM
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Cliffs Notes of terror law
SCOTUSblog
Sat, May 12, 2007
We are trained to think that every story needs a timely, fresh point -- something that explains clearly why we're telling this story now. Lyle Denniston shows that blog-reporting can break that rule, at least in this set of circumstances: a reporter covering a long-running story takes stock of the story's separate but related threads, stitching them together into one reference point for future use.

In this first of two parts, Denniston analyzes where things now stand after innumerable filings and decisions in the legal battles over war-on-terror detainees. He promises a look at the D.C. Circuit's role in particular tomorrow. It's a valuable piece of work: lucid, plainspoken, succinct. It would be even more useful if it came with links and annotations to his many stories that led to this point.

Update: Here is part two, focusing on the D.C. Circuit's handling of these cases.
Posted at 06:44 AM
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Left-right mystery chart
The Washington Post
Sun, May 13, 2007
Perhaps the most interesting part of this Robert Barnes piece -- yet another exploration of Anthony Kennedy's role as swing vote on 5-4 Supreme Court decisions -- is this vote-counting graphic, easily overlooked by us Web readers because it appears only as a "graphic" link near the story's home-page blurb. It's interesting, that is, if you're willing to accept the Post's determination of what is a liberal or conservative decision. What does that mean? An outcome that a liberal finds pleasing? Strict vs. activist reasoning? Maybe there's consensus on what is liberal or conservative, but such easy labeling makes me skittish. So I'd like to know what research underlies these numbers -- which cases and votes counted as blue or red ones. All the Post tells me is that the tally comes from "Post research," which probably means Barnes has kept a tally during this term. So why not explain that, and show the list? That might eat up valuable print space, but it should be a no-brainer on the Web -- if the Post and other papers were willing to be more transparent.
Posted at 07:20 AM
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Graceless
The New York Times
Mon, May 14, 2007
TV writer Alessandra Stanley, calling Nancy Grace "the face of news media vigilantism" and "infamously combative," seems at first to take Grace too seriously in this portrait pegged to Grace's Court TV coverage of the Phil Spector murder trial. But after a fair bit of throat-clearing, Stanley comes to her point. Grace, she writes,

is neither a journalist nor an impartial legal expert. “Closing Arguments” is not about judicial process, it’s about summary judgment, a breaking-news version of pseudo-reality shows like “The People’s Court” and “Judge Judy.” Ms. Grace also breezes past due process and good manners to voice populist indignation.

Bingo. Grace's voice-of-the-victim schtick is such transparent pandering that her announced departure from Court TV might be cause to celebrate. But she remains on CNN Headline News. And Court TV is hardly moving upmarket. If anything, Grace is perhaps too substantive for the increasingly lowbrow "seriously entertaining" network.
Posted at 08:02 AM
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Free-software showdown
Fortune
Mon, May 14, 2007
Roger Parloff talks to the key players at Microsoft and its nemeses in the free and open-source software movement to shed light on a long-running patent struggle that threatens to break into open warfare -- with great implications for corporate IT budgets and patent law. Parloff is adept at plumbing dizzyingly complicated facts to tell an accessible narrative. This story is no exception. The focus is on the maneuvers that Microsft is engaged in to tap competing, open-source software for a new royalty stream. But there's some inside-baseball for journalists, too. Opposing Microsoft is Richard Stallman, whom Parloff describes as a "computer visionary with the look and the intransigence of an Old Testament prophet," and a "prickly, uncompromising individual." Point in fact, Parloff writes:

Stallman insists that "GNU/Linux" is the proper name [for the operating system commonly called Linux], and he refuses to give interviews to reporters unless they promise to call it that in every reference. In part for that reason, he was not interviewed for this article.

But lawyers on Stallman's side do talk, as do top Microsoft execs -- namely general counsel Brad smith and CEO Steve Ballmer. Parloff is now talking about it on his blog, Legal Pad.
Posted at 08:50 AM
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Padilla courtroom lockdown
Christian Science Monitor
Mon, May 14, 2007
Warren Richey reports that courtroom security for terror defendant Jose Padilla is so tight that reporters cannot even question lawyers in the case in or near the courtroom. The ban covers the courtroom and the adjacent lobby, writes Richey, who himself got called out for daring to jot down a note on who is taking press calls in the U.S. attorney's office. Richey reports that he's no stranger to courtroom etiquette and has never heard of such a rule. Nor have I. Even when a gag order is in place, reporters aren't usually barred from approaching and asking questions during breaks. Richey explains how much of a "rule" this actually is in Judge Marcia Cooke's Miami court:

Judge Cooke has not issued a formal rule barring the press from asking questions, according to members of her staff. But, they say, she supports the unwritten rule being enforced by the court security officer.

Media interviews conducted in the courtroom — even during recesses — are disruptive and distracting, they say. Interviews conducted in the lobby outside the courtroom might be overheard by jurors or witnesses and taint the trial.

"We are not keeping you from talking to anybody, you just cannot do it on this floor," says Tamara "Tammy" McIntyre, an assistant to Cooke. "We are all for freedom of speech and for you getting whatever story you can, but there have to be boundaries to protect the rights of these defendants."

If McIntyre and her boss really were for freedom of the press, McIntyre wouldn't treat the job that reporters do as something bad that got stuck to the bottom of her shoe. And even if the tactic is legal -- which it probably is, given the latitude judges have to control their courtrooms, as Richey notes in quotes of experts -- this tactic goes overboard. Remember, this is a case where pretrial maneuvers and evidence already have been hidden from public view on national-security grounds. If the courtroom setup is truly so compromising, perhaps the solution is to protect jurors from the normal hubbub before and after court sessions rather than preventing reporters from doing their jobs.
Posted at 08:58 PM
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Yale's new law and media program
Tue, May 15, 2007
American Lawyer and Court TV founder Steve Brill officially left the legal journalism business a decade ago. Since then he wrote a Newsweek column and a book about post-9/11 security, and he became a homeland-security entrepreneur. But Brill has continued to pay homage to his journalism roots, paying for this program to steer Yale undergrads toward journalism (even though the university lacks a journalism major). And now he and the Knight Foundation have teamed up to start the new Knight Law and Media Scholars Program at Yale Law School.

The program is not a revival of the respected master's of studies in law program for journalists that Knight once funded. YLS still offers that degree, but without Knight's generous financial support that attracted many mid-career journalists. Instead, the new program is geared to existing Yale law students -- with a dual focus on legal journalism and on media law -- plus a training program for professionals. The program doesn't offer its own degree. Eventually there may be new courses offered, says Janet Conroy, a school spokeswoman, but those plans aren't final. For now, a $5 million endowment -- half from the Knight Foundation, and the rest from Brill and other sources (the school doesn't disclose those amounts) -- pays for scholarships, research, lectures, career counseling, and other activities focused on law and media.

The mix of legal journalism and media law is natural because there's some overlap, but they are distinct disciplines: journalism focused on legal affairs vs. substantive law and policy governing the media. I'll be interested to see how the Yale program blends the two. No matter what, the Knight/Brill/Yale initiative promotes the same goals that we care about here: finding and educating people to provide smarter legal reporting.

(Disclosure: As I make plain here, my long association with American Lawyer Media included a decade under Brill, though my years at The American Lawyer came after his departure.)
Posted at 02:54 PM
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A Falwell eulogy, compliments of Larry Flynt
Wed, May 16, 2007
What more fitting legal sendoff for Jerry Falwell than remembrances of his most famous legal loss? Joan Biskupic does a good job of briefly explaining Hustler v. Falwell, the Supreme Court case protecting a provocative Hustler magazine ad parody skewering Falwell. But Tony Mauro goes one better, blogging about it from a personal perspective -- with a valuable link. He moderated a discussion between Falwell and Hustler's Larry Flynt 10 years ago at the Thomas Jefferson Center for the Protection of Free Expression. It's a fascinating, witty discussion about the case and related issues of speech, responsibility, religion, pornography, legal tactics and morality. The truly surprising aspects: how much sense Flynt makes and how warm and humorous Falwell acted in Flynt's presence. The recording (scroll down on the page) is well worth the hour-plus. It ends with an oddly touching tribute to Falwell by Flynt.

Update: The Fort Worth Star-Telegram's Linda Campbell wrote a particularly good version of the Jerry v. Larry story here.
Posted at 10:11 AM
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Jenkens' $90 million man
The Wall Street Journal
Thu, May 17, 2007
Nathan Koppel takes another run at explaining the Jenkens & Gilchrist saga (which I've blogged about here and here). You might not know it from the Journal's understated, almost bland handling of Koppel's reporting, but the front-page story (subscription required) boasts some impressive nuggets, including these:
  • How much the firm paid Paul Daugerdas, the partner whose practice brought down the Dallas-based firm. Koppel puts the number at more than $90 million over a seven-year span. That includes some slack years at the end of Daugerdas' stormy tenure. Koppel attributes that eye-popping, off-the-charts number to "three Jenkens sources with knowledge of the firm's finances" and explains the history of Daugerdas' shady tax-shelter business, which took a cut of the money it saved for tax-dodging clients. (What we still don't learn is how much Daugerdas' practice grossed, how much of that flowed to the firm's bottom line, and how the firm and its insurers handled the $150 million in settlements that resolved the various private and government claims.)
  • The role of the firm's then-chairman, William Durbin Jr., who never acted on a board resolution to fire Daugerdas and whose bottom-line focus -- by his own admission, in revealing comments to Koppel -- takes much of the hit for letting the situation spin out of control. "The task of leaders is to say no to what is wrong and evil," Koppel quotes Durbin. "I wish I could have been more courageous....I played a very large part in bringing about the demise of a firm that I had played a large part of for 23 years, and that I loved."
Koppel's kicker has Durbin learning Spanish so that he can tutor "underprivileged Latino children."
Posted at 06:44 AM
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Trendspotting
The National Law Journal
Fri, May 18, 2007
Do I smell a bogus trend story? Tresa Baldas' story leads Law.com's news headlines today, which is a sensible choice -- if it's true. The trouble is, she doesn't come close to proving it, except in that cutesy way that journalists sometimes use to contrive a trend.

The story is plain enough about its point, placing it in the fifth graf after an anecdotal lede:

Prosecutors across the country are seeing fallout from the Duke case, as defense attorneys use it to discredit other criminal cases and paint them as overzealous prosecutors with something to prove.

What constitutes "prosecutors across the country" is one in New Jersey who had the tactic used against him, a defense lawyer in Texas who used the tactic, one defense lawyer in Ohio who says he plans to use the tactic, and an Oregon prosecutor who speaks generally about the Duke case's potential to affect jurors.

Now, it's true that the story's only quoted prosecutors are on opposite coasts. And the Texas and Ohio examples have prosecutors who presumably would agree with the premise of the story if they were quoted. But they're not. And, lacking experts or other general comments on the trendiness of this trend, this is just another formulaic trend story with barely enough supporting quotes to sound plausible -- but not enough evidence to prove it.
Posted at 06:44 AM
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A gavel bangs slowly
Sat, May 19, 2007
The American Bar Association has named this year's Silver Gavel Award winners. The award is the most prominent to focus exclusively on legal journalism, and it regularly attracts the best in the business. So who won, and why? The who is answered here. The why is more a mystery. By the time the ABA formally presents the awards on July 24, says a spokesman, the awards committee will release statements on why the winners were chosen. An odd process, if you ask me, but for now, we can look at a list of winners and honorable mentions and judge for ourselves what makes them excellent. They include Charlie Savage's Pulitzer-winning report in the Boston Globe on the president's use of signing statements (which I blogged about here); Ari Shapiro's NPR report on post-Katrina justice in New Orleans; and Denver's 5280 magazine for its story about the treatment of Iraq veterans. Once the commentaries on the awards are posted, this makes for a handy guide to some of the best legal reporting out there (as is this University of Texas archive, though when I checked, the link didn't work). But I do have one quibble: Why are the awards sponsored by Vinson & Elkins? I mean, it's nice of V&E and all. But with post-Enron liability questions still fair game for legal reporters, you'd think the ABA would have the sense to avoid the conflict by choosing a less newsworthy patron.
Posted at 07:57 AM
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West and AmLaw
The American Lawyer
Sun, May 20, 2007
Can a trade publisher cover negative news about a disproportionately large advertiser? Yes, in the case of American Lawyer Media and West Publishing. That's especially significant considering ALM's current circumstances -- and its history with West.

The American Lawyer has just published this story by freelancer Joseph Rosenbloom on the latest in the BAR/BRI antitrust litigation. West, the largest legal publisher, owns BAR/BRI, the vastly dominant bar-review course provider. For nearly two years, West has been under attack for alleged monopolistic pricing and collusion with Kaplan Inc. to divide the legal test-prep market (BAR/BRI would allegedly take bar review while ceding LSAT prep to Kaplan). Since the litigation began, the magazine and its sister newspapers -- The National Law Journal, The Recorder in San Francisco, and The New York Law Journal -- have written straightforward stories about the allegations, the decision by West and Kaplan to settle the case for $49 million, and objections by some class-action plaintiffs that the settlement doesn't punish West enough. True, the stories have been relatively infrenquent and, with one exception in The Recorder, fairly brief. But the fact that they were published at all shows editorial integrity -- a trait that's not always seen, or easy to stick to, when an advertiser like West could bring the company to its knees with the simple decision to pull out.

Why is this remarkable? Three reasons:

  1. ALM is for sale, so it's not a great time to risk being hobbled by the loss of a giant revenue stream.
  2. West's parent, Thomson Corp., is a likely strategic bidder for ALM (though it might be preoccupied with its pending deal to merge with Reuters). Imagine the negotiating sessions when the dealmakers are giving West come-hither looks while the editors are throwing brickbats.
  3. West has a sordid history of trying to use its ad-budget clout to cut off unfavorable coverage in The American Lawyer. West was AmLaw's largest advertiser, in the magazine's early days, when West yanked its schedule to protest a story about its law-book publishing deals. That boycott lasted well over a decade. I was editor of Texas Lawyer when our coverage of West's law-book lobbying at the statehouse led to more threats and an extended boycott of AmLaw and its spinoff newspapers. In both instances, founder Steve Brill stood up to the pressure (with almost perverse pride), even though it meant his arch-rival, publisher of the National and New York law journals, would cash in on West's pique.
Since then, Thomson -- a publisher with a deeper news-editorial culture -- bought the thin-skinned West. The parent companies of The American Lawyer and The National Law Journal merged. ALM did an exclusive licensing deal with West to put all of its electronic archives on WestLaw, pulling them from Lexis-Nexis (the other half of ALM's two-headed legal-research advertising pipeline). And ALM was put up for sale. A complicated stew: the kind that corrupt trade-book editors would use to justify ignoring one little lawsuit in L.A. 
Posted at 10:49 AM
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Back in the U.S.
Tue, May 22, 2007
American judges and lawyers may think our free-press guarantees create the tensions that exist between journalists and the legal institutions that they cover. But those tensions aren't unique to the U.S., writes Bob Ambrogi, fresh off a trip to Russia:

The gap in understanding between many of those who cover the law and many of those who practice it is universal. The most common complaint I heard from Russian judges and lawyers about journalists was that they did not understand the law or the legal process. The most common complaint I heard from Russian journalists was that judges and lawyers did not understand or appreciate the process of reporting news. These are the same complaints I hear from their U.S. counterparts.

Part of the solution, as the Russians and Americans see it, is better training for journalists, as we most recently noted here. But, Ambrogi notes, that's only "half a solution." The other half? Better training of judges and their staff to deal more openly and effective with us journalists. Ambrogi cites one effort on that front, at the National Center for Courts and Media. Coincidentally, that program's director, Gary Hengstler, and I will be on a panel in August at the Conference of Court Public Information Officers annual meeting to give tips on reporter-friendly practices. Is it too late to invite some Russians to visit Columbus, Ohio?
Posted at 06:24 AM
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David Iglesias, media whore
The Washington Post
Tue, May 22, 2007
Sridhar Pappu has a lot to work with, and he works it well, in this Style section profile of David Iglesias, the fired Albuquerque U.S. attorney who is the most public face on the scandal that just won't die. Pappu (whose work I've enjoyed since he toiled as the media writer at the New York Observer) captured Iglesias in some revealing moments as he reflects on his fame. The story begins and ends with Iglesias' attraction to the bright lights:

[The Bill Maher show] was just one stop on the Iglesias media tour. In embracing the collective lens, Iglesias racked up televised appearances with, among others, Chris Matthews, Larry King, Katie Couric, Tim Russert and Chris Wallace. Strong-jawed and clean-shaven, said to have inspired the dreamy prosecutor played by Tom Cruise in "A Few Good Men," a White House Fellow during the Clinton administration, he's become both the handsome, charismatic public face for the sacked attorneys and a genuine media star. And damn if he hasn't enjoyed it.

"I've loved it," he says. "It's a good fit. It feels really natural. I'll tell you what, from an exposure point of view it's been incredible. Had I stayed a U.S. attorney and not gotten forced to resign, no one would know who I was outside of New Mexico. In a perverse way this has already put me on the national map. My own test is: If it's a show I've heard of, I'll probably do it."

* * *

"If you were me would you write a book?" he asks a reporter while driving one afternoon with his 16-year-old, Claudia, in the back seat.

Then: "If I did it," he says, "would I do it myself or have somebody else do it? Or not do it at all?" And: "I'm really surprised we haven't been contacted by magazines like Vanity Fair or the Atlantic for a larger story. I like them."

And they'll like you! Unless seeing this in print embarrasses you into silence.
Posted at 07:27 AM
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Spector trial mystery
Los Angeles Times
Wed, May 23, 2007
The LA Times' trial blog in the Phil Spector murder trial reports that the court has cleared a juror of wrongdoing for e-mailing with a Times freelancer. In early May, the Times reported the improper contact to the judge and in this story. The freelancer reportedly pursued a story about how the juror's service would affect his employer (the juror is a movie producer -- isn't everyone in LA?). After the initial approach, evidently, the juror and the freelancer -- who already were acquaintances -- struck up an e-mail exchange that included a joke or two at Spector's expense. This news has dribbled out, after the initial Times story, in a couple of Times trial-blog posts (here and here) and finally in yesterday's post, which quotes Judge Larry Paul Fidler:

“No improprieties took place on the part of the juror,” Fidler said. But he termed the actions of the reporter “questionable to say the least.”

I'll say. Which is why the Times deserves some finger-wagging. Not for how it dealt with the incident through official channels. There it seems to have done what it should. But it hasn't done right by its readers. First off, why the anonymity? The journalist is never named. The Times is protecting a contract employee's identity at the expense of transparency (as this reader pointed out in a letter to the editor). Next, what explains the writer's boneheaded move? Ignorance? Or something worse? Is the freelancer still working for the Times? These and other questions beg for explanation.

Perhaps only legal journos, media lawyers and Spector-trial junkies will care. But so what? When a major newspaper (which by the way is covering the trial in a thorough, if workmanlike, way) risks a mistrial in a high-profile murder case, it owes the public more than what the Times has given this.
Posted at 11:37 AM
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Cameras at the Court: Why all the fuss?
Fri, May 25, 2007
Tony Mauro points out the University of Michigan Law Review's online symposium on televising U.S. Supreme Court arguments. The articles cover the range of arguments pro and con -- from the paternalistic snippets argument (the public won't get a full understanding of what it's seeing because journalists quote selectively from the arguments, and journalists cover the Court's work only selectively) to an argument about personal security (the justices need anonymity to protect them from the public). Mauro focuses on 6th Circuit Judge Boyce Martin Jr.'s article chastising the High Court for a chicken-little mentality that emphasizes phantom problems over the likely good that comes from increased public attention.  

What I don't see is a realistic pro-camera argument that goes like this: Allow camera coverage of your arguments because hardly anything will change. Television news cares little about the Supreme Court, and that concern will barely be influenced by making the Court's arguments accessible to cameras. This is not great TV: a very smart lawyer talking to nine very old and smart justices about very complex issues. A few stationary, remote-controlled cameras will yield talking heads, or the backs of talking heads, or talking heads atop black robes shot from a great distance. Is the substance of an oral argument more quotable than a brief? Sure. That's why the decision to release same-day written transcripts was a true boon to reporters. But allowing camera and sound coverage, given that the action is not quite "24" quality, will change the newsworthiness equation only at the margins. Of the mere handful of cases that might ultimately yield decisions that earn a few minutes on the tube, only some of them are clearly attention-getters early enough to attract oral-argument coverage, sound bites or no sound bites.

The real benefit will be in long-form coverage: extended news-magazine features (when they're not out on the streets nabbing child molesters, they might spotlight a court case or two), documentaries (although outside of Frontline, does anyone televise these anymore?) and C-SPAN's unblinking, gavel-to-gavel coverage, which is of use to shut-ins, insomniacs and researchers.

Declaring this debate much ado about very little, while a sad commentary on journalism and public taste, is not an argument against cameras. It's the public's business, and the most popular news medium should be able to use the tools of its trade to cover the Court. It is not up to the Court or the legal establishment to determine how journalists cover stories, or whether they may cover them based on rules of good behavior. And it is absurd for high-ranking government officials to plead for secrecy so that they may walk the streets unrecognized. But the counter-argument to the chicken-little claims is not that TV coverage will foster a new era of public enlightenment. It's that the Court is fantasizing about a level of interest that won't materialize. Relax, it's not a big deal.

Update: SCOTUSblog's Ben Winograd has summarized the articles here.
Posted at 07:31 AM
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U.S. News goes light on law
Fri, May 25, 2007
Say goodbye to in-depth legal reporting at U.S. News & World Report. Chief legal affairs correspondent Chitra Ragavan is among the investigative reporters taking a buyout (reported here by the Washingtonian, and linked at Romenesko). Ragavan's covers and other stories were mostly oriented toward D.C. politics and war policy, rather than a traditional legal-affairs focus on the Supreme Court and legal issues.
Posted at 08:41 AM
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Immigration impressionism
Los Angeles Times
Sat, May 26, 2007
Richard Schmitt has a natural and enterprising follow-up to the Monica Goodling revelations this week about appointments of immigration judges (linked from How Appealing). The story is less than convincing, however, since it's based on impressions rather than proof.

Goodling testified in Congress that the Alberto Gonzales Justice Department screened potential immigration judges for their political pedigrees. That "possible violation of civil service laws," writes Schmitt, "is drawing new attention to the usually low-profile immigration bench." He then adds this useful perspective:

The selection process that Goodling described also appeared at odds with Gonzales' own stated efforts to reform the trouble-plagued immigration-law system by bringing in experts and establishing tougher performance standards for judges.

Schmitt relates some of that backstory and supplies solid, relevant numbers on appointments overall: "Of the 226 immigration judges around the country, 75 have been appointed during the Bush administration — 26 of them during Gonzales' tenure." But the story hinges on one fact -- the appointees' lack of immigration experience -- and that's where Schmitt resorts to sources' summaries rather than hard numbers. "Many" and a "growing number" lack experience in the field, he writes. Says who? "Immigration lawyers and judges" who "perceived" the drift toward patronage rather than merit appointments. He quotes an American Immigration Lawyers Association official who reports seeing "a good number" of political-hack appointments, and late in the story quotes the president of the National Association of Immigration Judges who claims "a larger number of people" fit that description. They're authoritative types of sources, but their words are anything but concrete. And Schmitt evidently lacked the time to pull all the Gonzales-era appointee resumes to pin down the number of the inexperienced.
Posted at 08:55 AM
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Abortion forecasting without an agenda
McClatchy Washington Bureau
Mon, May 28, 2007
Michael Doyle wrote a detailed, nuanced follow-up to the Gonzales v. Carhart abortion decision. The current abortion-regulation regime is hard to describe in a few pithy sentences. And abortion, as always, is too often reduced to bumper-sticker simplicity by the screamers on both ends of the spectrum. What Doyle gives his readers are facts and perspective on what might happen where.
Posted at 08:07 PM
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Miami heat
Daily Business Review
Wed, May 30, 2007
Julie Kay keeps a spotlight trained on federal courts' troubling tendency toward secrecy with this report on disappearing court records in a Miami case. It's her second report on this trend in a month, since I blogged about this one on ad hoc decisions to hide plea agreements. Internet access to court records should make public information easier to find, not more difficult. But at the very least, the courts need to develop consistent, clear policies -- and it's this kind of reporting that might shame them into doing at least that.
Posted at 05:15 AM
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Ours is not to reason why. . .
Associated Press
Wed, May 30, 2007
AP's Jesse Holland's Congressional followup to yesterday's 5-4 Supreme Court decision in Ledbetter v. Goodyear paints the Court's ruling as pure policymaking rather than an interpretation of the language of a statute. Granted, that interpretation is hotly disputed, but it's still rooted in an effort to apply statutory langage to particular circumstances. Here's how Linda Greenhouse explained the root of the problem. More cases, she wrote, will be

barred by the court’s interpretation of the requirement in Title VII of the Civil Rights Act of 1964 that employees make their charge within 180 days “after the alleged unlawful employment practice occurred.”

The fight centers on when the clock reasonably starts. But here's Holland's lede, plus another that boils down the origins of the decision so far that it's purely focused on the result rather than the reasoning:

Congressional Democrats said Wednesday they would try to reverse a Supreme Court decision that limits the time that workers have to sue their employers for pay discrimination. . . .

Under the court's decision, an employee must sue within a 180-day deadline of a decision involving pay if the employee think it involves their race, sex, religion or national origin.

Reasonable minds differ on how to apply the statute's language to Ledbetter's claim. Congress certainly can specify its policy preferences now that its language hasn't turned out as planned. But reporters writing about decisions should be careful to explain why the Court reasoned its way to a result, not just that it reached a result.
Posted at 05:19 PM
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Who's on first?
Thu, May 31, 2007
In some newsrooms, the angle that Robert Barnes took yesterday in this story would be enough to nix this story today by Linda Greenhouse. Barnes' focus on Justice Ruth Ginsburg's dissent in the employment-discrimination case Ledbetter v. Goodyear -- which she read aloud from the bench, the second time in recent weeks she has taken that rare public step -- is essentially the hook for Greenhouse's story.

Many factors weigh against the move that Greenhouse and the Times made. The two papers obviously are rivals (we wouldn't want to think the Post beat the Times, now would we?). The Post played Barnes' story out front (so more people may notice the similarities). Barnes -- a temporary replacement this term for the Post's Court beat reporter Chuck Lane -- is clearly junior on the beat to Greenhouse (so pride might prevent the heavyweight from following her inferior). And then there's news tradition that dictates we don't honor a competitor's scoop with a followup if we can help it -- not even if the story is obvious and there's only the appearance, rather than the reality, of playing catch-up.

Yet Greenhouse and the Times proceed, unconcerned about all that. That's a good thing for readers, who couldn't care less about reportorial pride and me-first bragging rights, and few of whom will read both stories anyway. Even as a technical matter, the Times is on solid ground. Barnes didn't score a big, exclusive scoop. He merely spiced up a spot-news story with an interesting bit of personality insight. Greenhouse's story has the same starting point, but that's where the similarities end. Greenhouse uses her longevity and research skills to good effect in this perspective-lending segment:

To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Justice Stevens, in a decidedly more low-key manner.

The oral dissent has not been, until now, Justice Ginsburg’s style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term.

Then, quoting Ginsburg friends and examining cases, Greenhouse takes the story into deeper waters, exploring what Ginsburg's behavior signals about Chief Justice John Roberts' campaign for unanimity, or at least collegiality. I'm not slamming Barnes. He used the material in a story that served a different purpose, produced under tighter time constraints. I am praising Greenhouse and her editors -- for her enterprise, and their self-confidence to play it on A1. 
Posted at 08:56 AM
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