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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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| U.S. attorney budget-crunching |
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| The Wall Street Journal |
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| Sat, September 01, 2007 |
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Yesterday (I'm playing catch-up after an overly busy week), Scot Paltrow used a powerful combination of records and interviews to paint a bleak portrait of the law-enforcement capabilities of U.S. attorney offices nationwide (subscription required). A budget squeeze has meant fewer prosecutions, fewer lawsuits to collect money owed the government, staff shortages, and a brain drain among senior lawyers. Does Paltrow make his case? Yes, because he quotes so many authoritative sources (more than 10 named by my count) to explain the numbers that he's looking at. My only quibble: The deck headline overplays a key claim:
Amid Antiterror Focus, Prosecutions Decline; Rep. Lewis Probe Slowed
Paltrow later throws in this line -- "federal priorities shifted to terrorism from routine crime fighting" -- and later quotes unnamed sources complaining that increases in FBI agents generating terrorism cases weren't matched in prosecutor ranks. He also quotes our own David Burnham, whose TRAC studies have documented the problem. But Paltrow doesn't cite the TRAC studies or use other stats or interviews to prove a connection. Thus, the terrorism angle doesn't get the same scrutiny as others in the story.
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Posted at 07:31 AM
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| Miers nomination intrigue |
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| The Washington Post |
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| Mon, September 03, 2007 |
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First the Times gave Robert Draper's new book on the Bush presidency a front-page preview. Now comes the Post. There's one big difference relevant to what we track here at LawBeat: Post writer Michael Abramowitz zeroes in on a juicy legal tidbit. Draper, a GQ correspondent and Texas Monthly veteran, had rare access to the president while reporting for the book, "Dead Certain: The Presidency of George Bush." So it's more than a little intriguing that he identifies Chief Justice John Roberts as having first suggested to Bush that he name Harriet Miers to the Supreme Court. Abramowitz and I wonder the same thing: Who says? He writes:
The book offers more than 400 footnotes, but Draper does not make clear the sourcing for some of the more arresting assertions -- such as the one about Roberts's role in the Miers nomination, which has previously not come to light.
There's a good reason for that tale's obscurity, says the Supreme Court press office: It isn't true. Abramowitz quotes an unusually explicit denial:
"The account is not true," said Supreme Court spokeswoman Kathy Arberg, after consulting with Roberts. "The chief justice did not suggest Harriet Miers to the president."
Still, you gotta wonder: Did the prez himself plant the idea on background, perhaps to counter the prevailing notion that the doomed Miers nomination was nothing but crony politics? And would such a careful, accomplished writer as Draper really write that about Roberts without having checked it first, and noted the denial? Cue music. . .
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Posted at 05:35 AM
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| Lou Dobbs takedown |
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| Texas Monthly |
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| Mon, September 03, 2007 |
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Need a fresh example of the difference between real reporting and agenda-driven hackdom? Take Pamela Colloff's meticulous takedown of CNN's Lou Dobbs. (The article itself is available only in print, or online for print subscribers. But Coloff's video explanation of her reporting, while lacking in the compelling detail of the published story, at least explains the basics.) Dobbs chose to illustrate his hysterical anti-immigrant campaign with 113 reports (yes, that many) on the prosecution and imprisonment in West Texas of two Border Patrol agents. Dobbs and CNN's Casey Wian worked their viewers into a lather by portraying the prosecution as the worst sort of injustice: border defenders are railroaded by a craven, Mexico-beholden Bush administration. They were painted as martyrs for defending themselves against an illegal-immigrant drug smuggler. The truth, Colloff proves, is evident in court filings and the trial transcript, which the government published online in a vain attempt to get the crazies off its back: The agents shot an unarmed man without cause, and then lied about it. Yes, he was a drug smuggler and illegal immigrant, Colloff writes, but the facts otherwise were ignored or buried under a mountain of demagogy. It's too bad Texas Monthly's subscribers-only wall prevents access by the many critics of this prosecution nationwide.
Update: Texas Monthly dropped its password-protection on the story. Here's the link.
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Posted at 11:55 AM
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| A knock against a knockoff story |
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| The New York Times |
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| Tue, September 04, 2007 |
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A front-pager marking the start of Fashion Week provides an interesting and important glimpse into the world of fashion-design knockoffs: copies of designer fashions that have big implications for consumers and for the businesses either helped or hurt by the existence of cheaper copies of expensive brand names. Reporter Eric Wilson makes several references to copyright law, and makes glancing mention of trademarks. But he never explains the legal heart of the matter. His story's focus on one copier, he writes, allows:
a rare look at a side of fashion that exists parallel to Seventh Avenue’s celebrity designers, though all but unknown to the public. Interviews with executives at a number of companies that specialize in designing for the private labels of department stores and other chains reveal a highly competitive network of factories, which use the latest technology to reproduce designer looks with the impunity and speed of Robin Hood. Their copies do not violate existing law.
Why not? Why is a dress design different from architectural plans or a piece of art? Wilson never explains. Later in the story he writes:
The cut or details of a garment cannot be copyrighted under existing law, although logos and original prints can be protected.
Presumably trademarks protect the logos. Again, no explanations. Just a "trust us, it's more than your pretty head can comprehend" attitude toward the facts on which the story turns.
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Posted at 08:30 AM
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| 11th Circuit's wall of silence |
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| Law.com |
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| Tue, September 04, 2007 |
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I've known reporters who are adept at shorthand. I'm not one of them. Countless times, I have taken handwritten or typed notes of what I hoped was a direct quote, only to discover -- when comparing those notes to a recording -- significant errors: missed or garbled phrasing, entire passages missing, or simply the wrong word. Recordings guarantee accuracy and completeness. So it's aggravating to see a major court -- the 11th Circuit -- refuse to adopt a simple practice that even the camera-shy Supreme Court has: to release same-day recordings of all oral arguments. How Appealing's Howard Bashman is right to call attention to the 11th Circuit's wrongheaded policy and to chide it for obstinately locking reporters (and others) into an error-prone method of writing about arguments.
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Posted at 11:48 AM
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| Ledbetter reconsidered |
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| The Washington Post |
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| Wed, September 05, 2007 |
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Bob Barnes does a great public service with this story today on the aftermath of the Supreme Court's Ledbetter v. Goodyear pay-discrimination case last term. Barnes' point: The big stink raised over the Court's decision is a concerted public relations effort to rally around a case that's easy to understand in stark liberal-conservative terms. Except, as Barnes point out, it might have been a plain-vanilla interpretation of a statute. Though he doesn't put it in these terms, he's documenting a classic case of ideologues who focus only on the outcome of a case -- female worker loses, big company wins -- rather than being honest or curious about the real legal issues that determined that outcome. Reasonable minds will differ, as they did on the Court, over how to interpret the statute and its ban on old claims. But when activists rush past that "technicality," and a willing or lazy media follows along, we're doing a disservice to the public and the Court. (Which was our point back in May, when initial reports started us down the path that Barnes now documents.)
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Posted at 05:34 AM
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| Dobbs story update |
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| Wed, September 05, 2007 |
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In my post on Monday, I whined about Texas Monthly hiding its great story on a border controversy behind the subscriber-password wall. Now the story is available. Here's the post with the updated link.
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Posted at 02:28 PM
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| Lilly's dubious victory |
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| The New York Times |
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| Sat, September 08, 2007 |
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I suppose we should rejoice when a leak investigation doesn't result in a major subpoena battle with a news organization and a threat of jail or fines against journalists protecting sources. But the final resolution of this particular inquest leaves a bad taste nonetheless. Alex Berenson's reporting on internal documents at Eli Lilly concerning the antipsychotic drug Zyprexa resulted in a witch hunt that has now cost the leaker $100,000. Magnanimous in victory, Lilly says it will donate the sum to charity. No doubt this will be a nonprofit that promotes repression of the truth in some fashion. These were documents disclosed in litigation previously, and leaked by an expert witness to a lawyer because the witness believed the full truth about the drug's problems wasn't coming out. (The lawyer then leaked them to Berenson, who let the world -- including Zyprexa users -- know what the company knew about the drug.) Why is it that an order to seal documents, after they've been used as evidence in litigation, trumps the public interest?
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Posted at 11:11 AM
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| The (yawn) search for a new AG |
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| The Washington Post |
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| Sat, September 08, 2007 |
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The Post's Dan Eggen scoops the Times, among others, with this prediction today that former Solicitor General Ted Olson tops the list of possible attorney general nominees. Others Eggen names, based on his anonymous sources "inside and outside the government who are familiar with White House deliberations," are former deputy attorney general George Terwilliger III; D.C. Circuit Court of Appeals Judge Laurence Silberman; Pepsico general counsel Larry Thompson, a former deputy attorney general; Solicitor General Paul Clement; and Verizon general counsel William Barr, who served as attorney general for Bush's father. Oddly, the list omits the one name touted most heavily until now as the front-runner -- Homeland Security Secretary Michael Chertoff, the subject of this probing piece by David Savage and Tom Hamburger in the L.A. Times on Sept. 4 (which, in turn, makes no mention of Olson).
Near the end of Eggen's story on A2, we're told that outgoing AG Alberto Gonzales "has kept a low profile since announcing his resignation on Aug. 27." True, that. And thanks in no small part to many DOJ beat reporters who seem to have collapsed in exhaustion after Gonzales finally drew down the curtain. No one is beating the drums to signal, in heavy daily coverage, that this is a Big Deal. The last reference to the search that I can find in The New York Times is this Aug. 30 piece (subscription required) by Philip Shenon and Steven Lee Myers, which names Chertoff, a former Justice Department prosecutor; Olson; Senator Orrin Hatch; and Thompson. Shannon and others used pretty much the same list two days earlier in a story reporting Clements' appointment as interim AG.
After all the excitement and scrutiny concerning Gonzales' performance, why aren't we chasing the replacement story more aggressively -- particularly because the Bushies' shortlist seems focused exclusively on the Usual Suspects?
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Posted at 11:48 AM
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| Put justices out to pasture? It's academic |
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| The New York Times |
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| Mon, September 10, 2007 |
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Fashionable thinking dictates that journalists and practicing lawyers ignore or mock the usefulness of legal scholarship. What could those academics possibly tell us that's newsworthy or practical? Linda Greenhouse and her readers benefit from her refusal to buy into that anti-intellectual snobbery. Her Supreme Court Memo today cites numerous papers and books, and quotes their authors, on an important set of legal and political questions: Can and should we limit Supreme Court justices' tenure? The questions are hardly novel to those who study the Constitution and the federal judiciary. The debate, it turns out, has been raging for some time -- fueled in part by Chief Justice William Rehnquist's refusal to leave the Court despite his ultimately fatal illness. By simply reading what's out there already, and talking to those who read what's out there, Greenhouse produced a well-sourced, relevant and timely story. And she teaches a lesson about where news and sources might be lurking.
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Posted at 08:50 AM
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| Billy Martin, ready for his closeup |
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| The Wall Street Journal |
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| Wed, September 12, 2007 |
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Is a quickie profile better than none at all? I suppose, but it also can be more frustrating than intriguing. Wall Street Journal Law Blogger Peter Lattman has this 360-word snapshot today (subscription required) of the criminal defender of the moment, Billy Martin. For so few words, it makes a point -- Martin is unusually media-savvy, which his clients demand -- and it drops a number of names, from famous recent clients (Sen. Larry "Wide Stance" Craig, actor Wesley Snipes, dog-fighting ex-quarterback Michael Vick) to mentors (Johnny Cochran) to PR advisors (a D.C. pro and Martin's own wife, ABC's Michel Martin). But there we have so many questions after this appetizer . . . How unusual are Martin's media tactics, given the long history of such talents among criminal defense lawyers? How did the leaked tape of Craig's exhortations to Martin to get in front of the cameras affect Martin's strategy, post-leak? Is he just a showboat for Craig while the heavy legal lifting is done by others? We'll have to wait (or do a better job of searching archives) to find answers to those and more.
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Posted at 05:28 AM
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| Times to Post: You call that a scoop? |
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| The New York Times |
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| Wed, September 12, 2007 |
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Most of my students will never experience the joys of competing in a two-newspaper town the way I was able to in my first two jobs. And they surely won't learn the most important lessons of competition by watching The New York Times' response to getting scooped by its chief rival for government coverage, The Washington Post -- at least not in the current round. The Post's Dan Eggen threw a good punch on Saturday, as I blogged about here, by reporting that Ted Olson had emerged as the leading choice to replace Attorney General Alberto Gonzales. It has taken the Times' Philip Shenon and David Johnston four full news cycles to respond with . . . a near-duplicate of the Post story. There are a few new nuggets, including a vaguely sourced suggestion that Olson rose to the top of the heap after Larry Thompson rebuffed the White House. But mostly it's a languid response. Why not come out swinging the very next day with a story that knocks down the competitor's story by showing that Olson isn't as sure a bet as assumed? Or by filling in details about how the search got to this point? Or looking forward more to the partisan attacks sure to come? Or revealing internal struggles over the choices? Or looking back at a particular item on Olson's resume that's destined for confirmation-hearing fireworks? Guess it just proves the point of my Saturday post: This AG search just doesn't have reporters' attention the way it should. And it proves something else, too: The Times' arrogance, for playing today's piece above the fold, as though the Post doesn't exist -- and didn't in fact kick its butt four days ago.
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Posted at 05:41 AM
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| Dog bites man: Thomas agrees to TV interview |
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| Legal Times |
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| Wed, September 12, 2007 |
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Given the number of interviews and public appearances that Supreme Court justices have made in recent months and years, it shouldn't surprise us that yet another justice will submit to a televised interview and will be publicly questioned by a journalist at a public event. Except in this case, the justice is Clarence Thomas. Tony Mauro reports that Thomas will flog his upcoming book on "60 Minutes" and later appear at a public Q&A with ABC's Jan Crawford Greenburg. I wondered as I began to read whether Thomas' publisher, Harper Collins, wrote this into the book deal that paid Thomas a reported $1.5 million advance. Publicity tours, after all, are standard in book contracts. But Mauro asked the question, and got an answer: Thomas wouldn't sign the deal unless that clause were removed. His agent says the justice just decided to do it.
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Posted at 01:57 PM
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| Musical chairs at ALM |
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| Wed, September 12, 2007 |
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The American Lawyer has long supplied Legal Times with talent, and vice versa. Now it's done so again. Legal Times' new editor in chief is The American Lawyer's David Brown, who will step down from the No. 2 job at the magazine and move to D.C. to edit the weekly. Both publications are owned by ALM. Brown replaces Jim Oliphant, whose move to the Chicago Tribune I blogged about in July. Brown has been in the magazine job two years, having replaced my replacement in the executive editor job. I never worked directly with him, though I heard wonderful things from staff about his talents as a story editor and manager. Brown is making a round trip to Legal Times, having been plucked from its managing editor job to move to New York for The American Lawyer. Previously he was at The Recorder, ALM's San Francisco daily.
Brown told me in an e-mail, when asked why he wanted to make the move:
I think it’s going to be an amazing time to tackle legal journalism in Washington. Legal Times is going to be covering the election, a new administration, a court with a close ideological divide, and, naturally, the most powerful collection of lawyers on Earth [editor's note: other than on Wall Street!]. For a legal news and political junkie like me, that’s the recipe for a dream job.
American Lawyer editor Aric Press now must find a new No. 2. This isn't the first time he's had to do so for this reason. He hired me in 1999 to replace Rich Barbieri (now at Crain's NY) when Rich was named Legal Times editor.
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Posted at 02:30 PM
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| Another ALM love connection |
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| Wed, September 12, 2007 |
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Networking, AmLaw style, is in full swing this week. In the post below, I cited Rich Barbieri's role in the editorial musical-chairs games and cited his employer as Crain's New York. I was three days out of date. Barbieri now is deputy managing editor for news at CNNMoney.com. He left his Crain's job after two and a half years, coincidentally (not!) landing in a high-ranking job at a site founded by fellow American Lawyer alumnus Craig Matters, now executive editor of Money magazine (and a featured speaker here at Newhouse next week).
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Posted at 04:52 PM
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| A John Roberts story meeting |
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| Thu, September 13, 2007 |
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This may be a bit off-topic, but what the hey . . .
Tomorrow, I'll be brainstorming with news reporting and writing students about what it means to write an enterprising news story that's pegged to a speech, but not the straight-news account of the speech. In this case, the students in our Magazine, Newspaper and Online journalism program will have to come up with an alternative angle to this speech -- Chief Justice Roberts' address on the First Amendment, marking the dedication of the new Newhouse III building. How do reporters and editors dream up sidebar material like this? Here are some ideas I banged out as examples. Feel free to add more as comments to this post.
The mad scramble to finish Newhouse III in time to dedicate it . . . Chaos caused by not having building finished when classes started . . . Purpose of adding Newhouse III . . . Final price of the building and where money comes from . . . How many Newhouse family members will be here, and how unusual is that? . . . Recalling Johnson's infamous Gulf of Tonkin speech, which was the dedication speech for Newhouse I . . . What legal commentators think of Roberts’ first two terms . . . What First Amendment scholars or media lawyers think of his First Amendment views . . . Whether Roberts' majority opinion in the "bong hits" decision will have lasting impact on school speech . . . How well the press covers Roberts, and how that’s changing (the subject of a program I'm leading the day before) . . . Why the keynoter for that event, originally scheduled to be ABC's Jan Crawford Greenburg, had to cancel her appearance . . . Who picked Roberts, and why . . . The story behind the protests that occur during his visit (or why there weren't any) . . . What effect did Roberts’ health scare have on planning for this event? . . . What kind of wrangling does it take to get the CJ to give such a speech? . . . Why the First Amendment series was created . . . Whether the series meets its goal of interesting all students, not just journalism students . . . The tickets controversy (story and editorial), and what led up to it . . . How are campus libs handling all the hoopla over such a prominent conservative? . . . Security for Roberts . . . Newhouse Dean David Rubin’s most important legacy: the building or something else? . . . Naming rights on rooms in Newhouse III . . . Who are the architects, and was this routine or extraordinary for them? . . . How did the school pick Roberts? . . . How smoothly the construction went; biggest problems . . . Who decided the building would be ready by now, and how was the work managed to try to hit that date? . . . And so on. Add yours in comments.
Update: Tony Mauro, a panelist at next Tuesday's "Supreme Makeover" event next Tuesday, has asked -- and gotten answers -- to some of these Roberts questions. Here's his post at Legal Times' blog.
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Posted at 05:53 AM
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| Olson to Mukasey: a seamless transition |
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| Tue, September 18, 2007 |
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Everyone moved in pack formation to report yesterday on Michael Mukasey's certain nomination as attorney general. Turns out they were right. Among them were, of course, The New York Times (Sheryl Gay Stolberg and Philip Shenon) and the Washington Post (Michael Abramowitz and Dan Eggen). Last week, I lauded the Post and spanked the Times for their handling of the impending nomination (though, for the record, David Johnston put the Times ahead with this Sunday story on Mukasey's sudden emergence in the secret campaign). So now, in hindsight, does the Post look dumber than the Times for getting further out front on the Ted Olson-as-AG story? It depends on whether the Post was used first to float a trial balloon, which the Senate promptly punctured, or if facts actually changed after the stories were published. Were they adequately hedging against such a change? More or less, though yesterday's stories were less than transparent in disclosing what exactly changed in the interim. These, of course, are hard-to-come-by facts (at least hard to find unspun by one partisan or another). But shouldn't we at least count on these papers to fess up when they trumpet a likely nomination on the front page, only to trumpet a different one days later? And what does the relative lack of Mukasey rumor-mongering beforehand tell us about the beat reporters' competence vs. the sources' fickleness? Just asking!
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Posted at 02:32 PM
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| O.J.? Oy vey! |
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| Las Vegas Review-Journal |
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| Tue, September 18, 2007 |
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In this mixed-up crazy world of ours, I -- as a conscientious objector in our culture's scarily obsessive quest for celebrity tidbits -- sometimes feel like I'm in a spaceship, floating far above the earth, while normal earthlings go into a frenzy that I simply cannot fathom. This is one of those times. Wake me when it's over.
Update: OK, I just woke up, but only for a moment, thanks to the Chicago Tribune's Jim Oliphant. Check out his cheeky and historical tie-in between O.J. Simpson and the nominee for attorney general.
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Posted at 02:52 PM
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| ABC interviews Thomas |
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| Tue, September 18, 2007 |
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At this event today, I opened the festivities with the news of why Jan Crawford Greenburg had to back out of her scheduled appearance as our featured speaker. She just spent today interviewing Justice Clarence Thomas. The interview is scheduled to conclude tomorrow and air Oct. 1, the date of publication of Thomas' memoir. So "60 Minutes" beats her by a day (its report, Tony Mauro reported, will air Sept. 30), but now the contest is one of substance: Who gets the best Thomas material from their respective interviews? Stay tuned.
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Posted at 06:36 PM
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| Tort deform |
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| Law.com |
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| Wed, September 19, 2007 |
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Bob Ambrogi has this unforgiving critique of an Examiner series on the tort-reform battles. Citing its "blatantly one-sided reporting" as evidence that, if anything, it's the reporters, not the trial lawyers, who've gone wild, Ambrogi links to a number of think tanks and advocates on both sides of the well-worn debate.
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Posted at 07:38 AM
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| Supreme Makeover: the synopsis |
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| Wed, September 19, 2007 |
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Yesterday's panel discussion that I moderated with Slate's Dahlia Lithwick, Legal Times' Tony Mauro, and the Brookings Institution's Benjamin Wittes, was a journalism-centric kickoff to today's First Amendment address by Chief Justice John Roberts here at Syracuse University. I focused on my moderating duties, so my account of the two-hour discussion is more impressionistic than reportorial. The live webcast of the event will eventually (in two weeks?) be archived at this site. For now, here are key points that struck me as remarkable:
Lithwick: Given the high public profile that Supreme Court justices now enjoy (or endure), we reporters find ourselves in a murky middle ground between a third branch that is jealous of its independence and traditions, on the one hand, and a public that -- when it's paying attention (too often a doubtful assumption) -- prefers its public officials to be public figures and is skeptical of secrecy and complexity.
Wittes: Antonin Scalia's more "adventurous" approach to speaking puts him in recusal territory, or maybe ought to, more often than his more silent brethren. Like Lithwick, Wittes worries that our journalistic impulse to know all and tell all isn't necessarily good for the rule of law, at least in a hypothetical world where justices announce their biases outside of the confines of a particular case. It's easy to lampoon secrecy and praise openness, but transparency has a "dark side."
Mauro: Roberts sets a press-relations tone at the Court for his fellow justices that's markedly different from the two past chiefs he's covered (Rehnquist and Burger). Now, says Mauro, rather than assume his calls for comment won't be returned -- and rather than simply not make the call in the first place -- he and his competitors are in new territory. This new openness can only benefit the public.
Many questions from the audience bemoaned citizens' lack of understanding of the role of the Court and the rule of law, and the perception that the news media emphasize personality and conflict over substance and nuance. Though reminded repeatedly that the monolithic media is a false construct -- how can one collapse the reporting and analysis done by elite news and analytical journals into the same category as cable-TV shoutfests? -- the audience of students, faculty, and the public voiced skepticism that journalists are doing a good enough job mediating between citizens and their Supreme Court.
Through the Carnegie Legal Reporting Program and the Institute for the Study of the Judiciary, Politics and the Media, Syracuse University is now in its third year of providing a forum for these discussions. We're working to bring this from the lecture halls, the blog, and webcasts to the classroom, starting with my course, News Perspectives on Crime, Courts and Justice, and continuing next semester with a new course for students of journalism, law, and public policy taught at SU's College of Law.
I'll blog about Roberts' address first chance I get late today or tomorrow.
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Posted at 08:13 AM
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| But enough about you . . . |
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| Wed, September 19, 2007 |
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Chief Justice John Roberts closed his second of two speeches at the Newhouse III dedication this afternoon with a bit of advice. Baking in a hot sun, which Roberts joked was the best antidote for long speeches -- just as Brandeis called speech the best disinfectant -- he ended his two-minute ribbon-cutting remarks with stern advice for our journalism students: "Don't blow it."
Well, right back at ya, chief.
Roberts' outdoor quip came in the second phase of a ceremony that began in the majestic Hendricks Chapel. There, Roberts gave the keynote speech that was billed in advance as a First Amendment address. I had hopes that he would say something original, something provocative. Something, you know, demonstrating the virtues of candor. Instead, the chief justice gave us boilerplate First Amendment history and principles. It was mannerly and polished and unremarkable. But where he really blew it was in his real message. Rather than say something substantive, pro or con, about the evolution of First Amendment law; rather than scold journalists for exercising their freedoms irresponsibly (the so-very-brief point of his outdoor kicker); and rather than announce new policy stance on, say, cameras in the court or same-day access to audio recordings or oral arguments, the chief punted. And he did so in a rather self-absorbed way.
He turned his First Amendment speech into a judicial independence speech. Returning to a theme that's both safe and commonplace for judges these days, Roberts preached the virtues of an independent judiciary as protector of a free press. "Do not think for a moment that those words alone will protect you," he said, referring to the First Amendment inscription that's wrapped around our new building. The Soviet Union had similar words but not an independent judiciary, he said, quoting from the evil empire's "constitution."
Everything he said is true, germane, and important. But also a terribly crabbed and egotistical take on the First Amendment. In short, you can thank me for your freedoms -- so don't join the judge-bashers.
I'll take the scold whose view of our First Amendment freedoms is more limited than mine -- the Roberts who made a brief appearance in the sunshine outside the new building -- over the cautious bureaucrat who got up on stage and blew his chance to say something important.
Update: Tony Mauro (particularly in an update to his live-blogging from the Roberts speech) has a different reaction worth reading here.
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Posted at 04:15 PM
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| Roberts irony watch |
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| Slate |
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| Thu, September 20, 2007 |
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Dahlia Lithwick compares John Roberts' message yesterday to his record on student speech, specifically in the Morse v. Frederick "bong hits" case last term. She spotlights the irony of a chief justice who penned a decision crimping students' speech, speaking on the First Amendment, in a forum devoted to student life. Speak truth to power? No, the chief would rather wag his finger ("don't blow it").
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Posted at 06:49 AM
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| Toobin shows class |
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| SCOTUSblog |
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| Fri, September 21, 2007 |
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I haven't yet had a chance to weigh in on Jeffrey Toobin's book "The Nine," but I was pleasantly surprised by this admission of error that Toobin published on what he rightly calls the legal blog of record. Books, as most journalists know, often are the least-edited, least-fact-checked, and least-accountable form of journalism. Unless they are the work of a pro like Toobin. One gesture like this -- on top of what appears to have been a monumental reporting effort to produce his book on the Supreme Court -- is adequate penance for his show-biz legal commentary on CNN.
Update: Joining Toobin in the confessional is Stuart Taylor Jr., whose new book on the Duke case I've been meaning to blog about. No telling what led up to Taylor's frank mea culpa, but it's refreshingly clear and unweaselly.
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Posted at 06:33 AM
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| Asking the right A.G. questions |
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| Judicial Reports |
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| Fri, September 21, 2007 |
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Dirk Olin steers clear of oft-asked questions about fairness, partisanship, and brainpower to examine Attorney General nominee Michael Mukasey through an arguably more important lens: executive ability. "Will a nominee whose dominant professional experience entails 18 years on the federal bench know how to run the place?" Olin asks. He quotes former AG's and students of DOJ history, never quite answering his own question definitively, but making clear his skepticism that Mukasey has the right credentials to clean up Al Gonzales' mess. As a judge, Olin writes, Mukasey
only had to manage a few hundred employees and expenditures in the
tens of millions of dollars. The U.S. Department of Justice counts more
than 100,000 employees and an annual budget in excess of $22 billion.
This is arguably like appointing a small business owner, albeit a
highly accomplished one, to run a Fortune 500 company.
Olin's advice ought to serve as a beat memo to DOJ reporters: Watch Mukasey's first moves on senior personnel.
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Posted at 07:39 AM
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| Praying for Supreme silence? |
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| Washington Post Bench Conference |
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| Fri, September 21, 2007 |
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To Andrew Cohen, the increasing public profile of Supreme Court justices -- a notable shift, which we discussed at this week's panel discussion here -- is worthy of scorn rather than praise. They're "preening" for the camera and hustling for book royalties, when they should be taking far more cases than they have on their well-documented shrinking docket. Cohen writes:
before I'm comfortable allowing the justices to go around on the speaking circuit, I'd like them to do their job, which is to select and then decide the cases handed to them through the system. They are supposed to clarify ambiguous legal doctrines, offer certainty to businesses and individuals alike, and, most importantly, act as a check upon the excesses of the other two branches. And, on this score, their most fundamental task, the justices aren't up to snuff. They are all hooky and no school, all go and no show, too much sizzle and not enough steak.
If you ask me, Cohen is all wet (and no kidding). Where's the proof that the justices are denying review to critical, unresolved issues that come before them? More careful analysts with, like, some facts at their disposal, have argued that worthy cases go untouched. Cohen doesn't even cite them, much less try to prove it himself. Where's the proof that the justices' limited time at public events or in interviews makes one little bitty dent in their weekly or monthly schedules? It's a rather big stretch to connect the two issues. But so stretching, Cohen merely proves he was hard up for a column today. So why take it seriously? Because it's difficult enough getting the justices to peek out of their cave, just a little, to make themselves at least a little less opaque, a little more accountable to the public. Why bash them for that?
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Posted at 02:01 PM
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| Reviewing a review of the Toobin reviews |
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| Slate |
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| Sat, September 22, 2007 |
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I've been collecting links to reviews of Jeffrey Toobin's new book, "The Nine," and hoping to find time to read and digest them. And then, who knows, that copy of the book that's staring at me might actually get read. Thankfully, Emily Bazelon and Dahlia Lithwick have done the time-consuming work for me -- on exactly the topic I was curious about: legal reporting. So I'll comment on their comment, in the grand parasitic tradition of the blogosphere.
The Bazelon/Lithwick verdict focuses on questions about the quality of Supreme Court reporting:
The first wave of book reviews is full of sniping about that very question. And if you read them together as an oeuvre, you quickly discover that everyone seems to know exactly what's wrong with Supreme Court reporting. They just all have a different idea about who's to blame. And—surprise!—everyone seems to think that what the court beat needs more of is, well, people like them.
Of the many types of reactions to Toobin's book that Bazelon and Lithwick examine, the most interesting -- and germane to this blog -- is in David Margolick's from tomorrow's New York Times Book Review. Margolick, like Toobin, parachutes into the Court now and then, and thus has less baggage -- and presumably less context -- when criticizing justices and beat reporters alike. Margolick's criticism of the beat reporters is an old one: that they're a timid, bookish bunch, prone to serving as Court scribes rather than as inquisitors. Just because we've heard this one for eons doesn't make it true. And just because Margolick hauls out the charges and trumpets them loudly doesn't mean that he has anything new to say.
Even though Margolick knows the Court -- his anonymously sourced account of Bush v. Gore in Vanity Fair gives him some reason to gloat -- he doesn't seem to know the beat. Margolick vastly overstates his case while adding little to the debate. The beat reporters provide "nothing about [the Court's] inner workings"? "Almost no one even tries" to write critically about the justices? That's absurdly exaggerated. He's of course correct that Supreme Court reporters work more from the official script (briefs, arguments, decisions) than reporters would on any other beat. It's from a combination of practical difficulties, tradition, and fear. Some even have been known to contend, somewhat defensively, that it's a healthier approach to this kind of journalism. So a much-diluted version of Margolick's verdict is true, but it's not news.
His new take on it is that Toobin could have done much more in his outsider's role. He portrays him as a captive of his presumed sources, most notably Sandra Day O'Connor. He chides him for only calling 75 former clerks, rather than them all. He provides a few specifics of what he claims is missing:
Toobin calls relations between the justices “cordial” but, frustratingly, offers only a few elaborations. How Ginsburg and O’Connor, the court’s first two women, got along surely warrants more than a sentence or two. Why were O’Connor and Stevens the only colleagues the dying Rehnquist allowed into his home? And who most regularly persuades whom (if, on such a factionalized court, there’s any persuasion going on at all)? Can it be true, as Greenburg has written, that at least initially it was not Scalia who influenced Thomas, but the other way around?
Good questions. But what it all really adds up to is this: Margolick wanted to be blown away by something truly secret and surprising, and wasn't. So he takes after the Supreme Court beat reporters (whom he decorously declines to name) as a handy device to use against Toobin.
Back to Bazelon and Lithwick. After reviewing other reviewers -- Court insiders, academics, gossips -- they offer their own take on what's wrong with journalism about the Court: the Court itself. "What we've learned from the recent wave of books and judicial speeches and interviews," they conclude, "is that the Supreme Court can somehow manage to be super secretive and super boring all at the same time." In short, the Court coverage is about the best we can hope for. I'm not willing to accept that. But I'm also not ready for David Margolick to set the standards.
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Posted at 10:06 AM
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| Mukasey the writer |
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| The New York Times |
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| Sun, September 23, 2007 |
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Adam Liptak parses Michael Mukasey's written opinions and finds, among other things, an Orwellian streak. Not in the Big Brother sense, but in the writerly way he expresses himself. Mukasey, it turns out, is a former UPI writer, fan of George Orwell's use of the language, and enemy of abstractions and obfuscations. Mukasey explained his method many years ago -- and we can only hope he hasn't changed:
“He [Orwell] is a particular idol of mine for his clear writing and complete disdain for cant,” Judge Mukasey told a reporter for The Financial Times in 1989, not long after becoming a judge. “I try to recognize when some spongy abstraction is trying to cover up an excuse for thought or analysis.”
How refreshing. I admit, I'm a sucker for this sort of thing. You can say the most outrageous things, and if you're blunt and unlike most government/bureaucratic mushmouths, I'll give you more credit than you may deserve (*cough*McCain*cough). Let's hope Mukasey's handlers don't beat the plainspokenness out of him. No matter if they try, they'll never remake him as Gonzales II. And we can all be grateful for that.
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Posted at 08:00 AM
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| Jena 6: Reporting vs. blabbing |
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| Associated Press |
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| Mon, September 24, 2007 |
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"But what happened, exactly?" That's how AP's Todd Lewan kicks his story on the Jena 6 into gear, after a long lead-in that recounts the turmoil over a racially combustible case. After all the protests and cable-TV shrieking, Lewan promises "a more nuanced rendition of events — one that can be found in court testimony, in interviews with teachers, officials and students at Jena High, and in public statements from a U.S. attorney who reviewed the case for possible federal intervention." He walks through what is and isn't known about the schoolyard incident, what's disputed or not, and what is or isn't the norm in local prosecution patterns, jury selection, and race relations. It's not a tidy story that arrives at a clear answer about anything. Kind of like real life.
Hat tip to Andrew Cohen for flagging Lewan's piece here.
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Posted at 05:56 PM
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| Sex slavery numbers don't add up |
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| The Washington Post |
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| Tue, September 25, 2007 |
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I overlooked this story on Sunday, but thanks to Slate's Jack Shafer, I've found in it a valuable lesson about scare stories based on bogus statistics. In this case, the problem is sex slavery -- women forced into prostitution in this country. The problem exists. The question is, how extensive is it? Several years ago, the sex-slavery scare sent Congress and the press into a frenzy of speculation: 10,000 women? 50,000 a year? Unimaginably more? What we needed, of course, was a war on human trafficking. More than $100 million and dozens of task forces and press conferences later, Jerry Markon writes, the government has found 1,362 victims brought into the U.S. since 2000. Not nothing, but not the underground tsunami that we were told to believe. Markon quotes Ronald Weitzer of George Washington University high in his story on the crux of the issue:
"The discrepancy between the alleged number of victims per year and the number of cases they've been able to make is so huge that it's got to raise major questions," Weitzer said. "It suggests that this problem is being blown way out of proportion."
Shafer was an early and pointed critic of the exaggerated claims featured in a Times Magazine piece by Peter Landesman. His point all along: The numbers didn't add up, and on the surface had no convincing evidence. It's instructive to read the relevant part of a Times editor's note published in response to the first wave of criticism of the Landesman piece:
On the issue of sources, the writer, Peter Landesman, conducted more than 45 interviews, including many with high-ranking federal officials, law enforcement officers and representatives of human rights organizations. Four sources insisted on anonymity to protect their professional positions. A magazine fact checker also interviewed all relevant sources, many of them both before and after publication. Some readers have questioned the figure of 10,000 enforced prostitutes brought into this country each year. The source of that number is Kevin Bales, recommended to the magazine by Human Rights Watch as the best authority on the extent of enforced prostitution in the United States, who based his estimates on State Department documents, arrest and prosecution records and information from nearly 50 social service agencies.
And where might this expert or other like him have gotten "proof" of the claim? Markon's sources have one theory:
Although there have been several estimates over the years, the number that helped fuel the congressional response -- 50,000 victims a year -- was an unscientific estimate by a CIA analyst who relied mainly on clippings from foreign newspapers, according to government sources who requested anonymity because they were not authorized to discuss the agency's methods.
So one person with a few news clippings, another whom we're told to trust just . . . because. This is how the game of telephone got started, and taxpayers and readers were on the other end of the line, being fed a line about a huge problem that is a relatively small problem. Why? Markon touches on this (let's hope he or others document this aspect of it more in the future) and finds that a combination of conservative Christians and feminists, alarmed for their own reasons, seized upon sex slavery as an issue and needed numbers to justify their proposed solutions. There's no evidence in this story that they simply cooked the numbers up. But wishful thinking does funny things to people's hearing. Advocates and reporters alike heard what they wanted to hear, and didn't wonder enough if it was true. Thanks to Jerry Markon and the Post, we have a sharp reminder of that phenomenon.
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Posted at 06:59 AM
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| Spector trial post-mortem, in snippets |
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| Los Angeles Times |
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| Thu, September 27, 2007 |
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While the main mistrial story by Peter Hong and John Spano was straightforward and somewhat formulaic -- even surprisingly short, given the high profile of this trial in LA -- this piece by legal writer Henry Weinstein at least put their paper on the map with a dollop of analysis and enterprising work. Weinstein's point isn't terribly original -- money buys a good defense, even more so than fame in this case -- but at least he documented how that aphorism applies to the trial of People v. Phil Spector. Thanks to interviews of jurors and outside experts, we learn details about how expensive expert testimony and legal firepower made the difference. When we learn in the last graf, though, that a significant secret weapon for the Spector defense was one lawyer hired late in the game, it's clear that the powers that be at the LA Times decided that a drive-by story would be good enough. Too bad they don't have higher expectations of readers, who might actually want to know more about the various tactics and personalities.
P.S. - Oddly, there was no link -- at least not a prominent one -- to the Weinstein story first thing this morning (Eastern time) on the home page, from the main story, or from the Spector index page. So I guess they've cut not only column inches and reporters, but also Web producers, from the Times' arsenal.
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Posted at 03:46 PM
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| Cult of personality |
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| Newsweek |
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| Sat, September 29, 2007 |
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Adam Kushner is worried that we're treating Supreme Court justices "the same way we treat Britney and Lindsey," what with all the gossip about David Souter's love life and other morsels found here and there in the Toobin book and in the flood of Thomas tidbits that's now upon us. (I think, by the way, he means Lindsay, not Lindsey, but I identify with his pop-culture cluelessness. Because, um, I actually have no idea who Lindsay is other than a name. And guess what? I don't care!)
But back to business: Are personality-driven accounts in the news and books -- and revelations by the justices themselves in speeches and autobiographies -- destructive? Pointless? Kushner accuses Jeffrey Toobin and Jan Crawford Greenburg of letting the gossip distract them from their books' focus on the Court's conservative shift. But then Kushner shows he really was just asking a question -- not necessarily answering it -- but pointing out the value of the many anecdotes we've learned lately about the justices.
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Posted at 08:08 AM
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