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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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| NFL v. churches: a Super Bowl tradition |
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| The Washington Post |
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| Fri, February 01, 2008 |
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It's become as much an annual rite as the hype over Super Bowl TV commercials: the NFL's copyright stance against churches that hold Super Bowl parties and show the game on a big screen. All too often, such stories take the lazy route, painting the NFL as a bully acting arbitrarily and greedily, with no explanation of the law. Football-loving church members are justifiably perplexed, and outraged, at the NFL's heavy handed tactics. Which provides us a perfect opportunity to examine the law and the strategy. Alas, that rarely happens.
Jacqueline Salmon's front-pager in the Washington Post today is better than that because it at least attempts to explain where the law comes from (statute) and that it's up to Congress to decide whether to exempt churches as it has exempted bars. But Salmon makes no attempt to explain the NFL's strategy, and what copyright lawyers might argue is its duty to stake absolute positions to avoid forfeiting its enforcement rights altogether. She also doesn't explain the economic and policy rationales for controlling public performances of a copyrighted work like the Super Bowl. I'm no expert, but I'd bet experts are out there and willing to be quoted on what is really going on here. Instead, we're treated to pretty much the same old mockery of the NFL's copyright extremism -- justified, perhaps, but not proven with a full explanation of the facts.
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Posted at 08:17 AM
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| David Cay Johnston, with passions in check |
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| The New York Times |
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| Sat, February 02, 2008 |
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We might have every reason to suspect the Times' David Cay Johnston of biased reporting in his coverage of the Wesley Snipes tax-evasion trial in Florida. First, there's his previous book Perfectly Legal, the veteran tax reporter's slam against federal tax policy that lets the super-rich dodge their fair share. Johnston's latest book, the best-seller Free Lunch (on manipulation of policy by corporations and the wealthy), and his complaint about its review in tomorrow's Times, only add to his image as A Man On A Mission. Then there's the video making the rounds, purportedly showing Johnston outside the courthouse yesterday badgering Snipes for a comment. It's a pretty heated exchange -- the kind of thing that makes readers and viewers think we journalists are just a howling bundle of opinions.
And yet, I challenge anyone to read Johnston's account of the Snipes verdict and declare it biased. To my eye, it is a straightforward, factual record of Snipes' partial victory. It's informed by Johnston's expertise and historical perspective on "tax deniers" (in my day they were commonly called tax protesters), but not steered by any existing opinions Johnston may have. It is, in short, the work of a professional journalist.
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Posted at 09:02 AM
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| Questioning the DNA backlog |
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| The Denver Post |
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| Mon, February 04, 2008 |
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Barely a day goes by when someone, somewhere, isn't charged in a cold case or cleared of a wrongful conviction based on old biological evidence that's just now been run through a DNA database. Rarely do criminal justice journalists examine in general what governs the timing of matching or clearing DNA samples, and whether that system works efficiently. The Denver Post's Tom McGhee tackled at least some of those questions, and did so clearly and authoritatively, in a followup to the announcement in Boulder last week that a 10-year-old murder had been solved with a newly discovered DNA match. McGhee used national experts and stats well as he explained the logistical barriers facing police labs nationwide. His story clearly makes the point that violent criminals are left to roam the streets for years while a backlog in DNA samples grows. His story could have been more complete by also mentioning the flip side: wrongfully convicted people waiting too long for exoneration. (Via How Appealing.)
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Posted at 09:02 AM
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| Abortion probe story has a hole |
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| Associated Press |
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| Tue, February 05, 2008 |
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AP's Carl Manning is covering a Kansas story destined for national attention. It's on the touchiest of subjects -- abortion regulation, and late-term abortions in particular -- where politics and law are clashing in a criminal investigation. Manning's story is clear and factual, for the most part. The news peg is a potentially controversial ruling by the state's Supreme Court, blocking subpoenas of medical records of women who sought late-term abortions from the doctor who's under investigation. Manning is careful to explain that the court's action is temporary, simply to buy time while preserving the status quo. It mentions privacy concerns, and how both sides see the subpoena battle. It's all pretty balanced and understandable -- except it never mentions what law the abortion provider may have violated. That's the legal reason for the whole investigation, and the fight ultimately boils down to (presumably) different views on whether the doctor broke the law. But what is the law in Kansas? We can only hope the AP adds a graf of explanation at some point. (Via How Appealing.)
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Posted at 04:22 PM
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| Scoop on Lilly scoop gets scooped |
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| Thu, February 07, 2008 |
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The Eli Lilly settlement-talks story just got weirder. When I first saw Katherine Eban's story at Portfolio.com on the making of this story by the Times' Alex Berenson -- Eban reported that "a pharmaceutical consultant" told her that a misdirected e-mail dropped the blockbuster story into Berenson's lap -- I didn't have anything profound to add to the discussion. Seemed to me that Berenson did what any reporter would do when inadvertently let in on a big secret: He checked it out and he wrote it up. One reporter-turned-flack faulted Berenson for failing to disclose the supposed source of his scoop. But I took Berenson at his word that his sources, as he put it in his third graf, were "several people involved in the investigation" who "confirmed the settlement discussions." That meant, I assumed, that even if the story started with an e-mail meant for one of the attorneys in the case (conveniently also named Berenson), reporter Berenson didn't just run with it. He spoke to people, with or without disclosing how he'd been tipped, and ran with the story once it was confirmed by multiple sources. No controversy there.
Except that I and everyone else who took the Portfolio story at face value now have to wonder if the story was true. Two lawyers blogging at Drug and Device Law report that Berenson now denies the e-mail prompted his story. I've e-mailed Berenson to confirm. I've also asked Eban for comment. No longer sure what or whom to believe, I'll simply draw the obvious lesson from all this: Relying on an anonymously sourced story to shed light on the source for an anonymously sourced story can yield predictably squishy results.
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Posted at 09:08 AM
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| Ambition and glitches in project on DNA and parole |
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| USA Today |
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| Sat, February 09, 2008 |
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It's a good thing for journalists that USA Today doesn't pay by the word. There's a double byline on this story. But assisting Kevin Johnson and Richard Willing were 27 contributors, 23 of them at other Gannett papers. And the word count? A brisk 428. So that's barely 14 words per contributor. To be fair, the story is based on a survey that USA Today conducted of the 50 states, so that in-house research required many hands.
The end product, albeit overly brief, was worth it and USA Today deserves praise for tackling the project. The survey asked states whether they delay parole based on DNA evidence linking inmates to crimes for which they were never prosecuted. Twelve states said that they do (six others didn't respond). Johnson and Willing explain (very briefly!) what various experts think of the policy. There were many ways to expand the story -- chiefly, how does other evidence of bad behavior factor into a parole decision? -- but my main gripe concerns the way the writers (or editors) hyped the news value. The lede tells us that the use of DNA evidence untested by a trial is an "emerging" trend in parole cases. Then, somewhat contradicting that claim to news, comes this sentence: "The little-known strategy has been in use for several years but appears to be spreading as DNA databases improve." Is it emerging, or longstanding, or expanding? I can't tell, and the story makes no attempt to prove the various claims of newsiness. (Via Criminal Justice Journalists)
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Posted at 01:59 PM
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| WaPo spanked on Gitmo story |
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| Mon, February 11, 2008 |
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Was the entire Washington Post staff at a retreat over the weekend? Or simply asleep? What else would explain why it failed to fight back after getting scooped on Saturday by William Glaberson's front-pager in the Times reporting that 9/11-conspiracy charges were imminent against half a dozen Guantanamo detainees. The Post had nothing on Sunday or Monday, while Glaberson follows up today with another scoop: that the government has decided to seek the death penalty against the defendants, whom the story names. It's the names that the AP was forced to credit to the Times in a story that the Post, remarkably and humiliatingly, posted this morning on its Web site. Glaberson's scoops come the old-fashioned way. He's been covering the Gitmo-justice beat for months. But what's the Post's excuse for getting smacked down twice on the same story, and with so much warning that the next punch was coming?
At least the Journal figured out a way to answer the Times' Saturday story with some finesse. In a front-pager datelined Guantanamo Bay, Cuba (subscription), Supreme Court reporter Jess Bravin tops a story that clearly had already been in the works with the government's decision to try the alleged 9/11 conspirators (and no, he didn't have to credit the Times). The guts of his story is a detailed look at the run-up to today's news: the struggle between military prosecutors and the White House for years over a prosecution strategy. That's a struggle that Bravin is covering as it plays out at the Supreme Court. Kudos to him and the Journal for the enterprise to pursue the story at Gitmo, and to color it in with an interesting profile of lead prosecutor Col. Lawrence Morris.
Correction: I erred in portraying the Journal as following the Times. In fact, Bravin broke the story naming the six defendants on Saturday (no link available) on Dow Jones Newswire.
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Posted at 08:42 AM
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| Times dissembles about Berenson e-mail |
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| Mon, February 11, 2008 |
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The Alex Berenson email-scoop controversy just won't die. First was a report by Portfolio's Katherine Eban that Alex Berenson landed his scoop in the Times on Eli Lilly's settlement talks with the government by getting an e-mail accidentally. Then the Times slammed the story, claiming that the e-mail wasn't all that crucial after all. Now Berenson has told NPR's On the Media that the truth is somewhere in between. But in setting the record straight, he essentially confirms Eban's account and contradicts his employer.
According to Berenson, the e-mail (intended for one of the lawyers in the case, Bradford Berenson) was sketchy indeed. But reporter Berenson easily decoded it, based on his longstanding coverage of the case, to say that settlement talks were under way. He says he knew that already, but couldn't write it because the sourcing wasn't "locked down." The e-mail triggered a new round of reporting. Berenson knew he had "real news" and intended to use the e-mail. He used the e-mail mistake as leverage to get the news sourced by lawyers in the case, and agreed not to reveal who screwed up. That's all understandable, and Berenson (in my view) hasn't lost any of his luster. He did what a good reporter does, and played this straight. But the same can't be said for his paper's reaction to the Portfolio story, which it turns out was spot on. (Via Gawker)
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Posted at 09:15 AM
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| Steroids angle couldn't wait |
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| The American Lawyer |
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| Wed, February 13, 2008 |
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The curse of the monthly magazine editor or writer is to see into the future, and know which stories will be fresh when they reach readers -- despite a lag time that's often weeks long between shipping the issue to the printer and its arrival in mailboxes. That curse is especially cruel when the magazine wades into a fast-breaking story.
The American Lawyer's Paul Braverman and his editors faced that reality by tackling a feature on George Mitchell's role as Major League Baseball's outside investigator of steroid abuse. The story contains new details on the role of Mitchell's law partner Charles Scheeler and the unusual level of cooperation he and Mitchell arranged with federal prosecutors in wrangling witnesses for their respective probes. Scheeler and his investigative tactics will be on center stage today as the House convenes its heavily publicized hearing on steroids (NYT and WSJ Law Blog).
The American Lawyer's March issue goes to press this week, and won't hit the in-boxes of subscribers for another two weeks or so. The magazine is loath to simply publish stories online before subscribers -- who pay dearly for the magazine -- get first crack at them. What's the monthly to do? AmLaw's solution was to carve out an adaptation of the article, which it posted on its Web site and distributed through PR channels yesterday. The story adds only incrementally to what's already been reported, and it feels like what it is: a partially told story. But it's a significant new chapter in the saga.
A Google News search this morning didn't turn up evidence that the story has achieved any bounce yet. Braverman and his editors, however, have the next best thing: A good night's sleep, knowing that they dealt creatively with the monthly curse.
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Posted at 10:00 AM
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| Biglaw's race to "reveal" |
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| Thu, February 14, 2008 |
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Law blogs and magazines are abuzz as major law firms voluntarily report their revenues and profits per partner. WSJ Law Blog's Ashby Jones rightly notes that the trend is remarkable, and he notes the lingering controversy as traditionalists hold onto their belief that disclosure is too crass for a Professional Firm.
All very interesting. But, as a veteran of 17 consecutive years of AmLaw 100 reporting -- starting with the first one -- let me point out why this rush to disclose isn't all good for journalists, and why we still need reporters.
For many years, most big firms have voluntarily disclosed these figures to The American Lawyer and occasionally more broadly. Some lie about whether they do it. Some admit it. But the magazine doesn't simply take their word for it. I know this will come as a shock, but sometimes the lawyers at those firms have been caught lying to make themselves look bigger and richer.
Beyond deceit, there's also the question of definitions. Lacking a standard set of rules, as public companies have, private partnerships and professional corporations have a range of definitions of "partner/shareholder" or "profits." It often takes some poking and prodding to discover that a firm has a distorted profits-per-partner picture because of how it classifies partners and certain expenses. My head hurts just thinking about all of it.
Confirming numbers with multiple partners often turns up anomalies, let us call them, that end up discounting the official numbers. This reporting method isn't perfect, but it's far better than simply taking the word of the firms.
What I fear is that the partner-sources will be less likely to contradict their leaders when these numbers are peddled in a press release rather than just whispered to one reporter. If that partner pokes a hole in the myth of the $2 million profits-per-partner average, has he exposed his firm -- which is to say himself -- to a fraud suit? (And who, you might ask, is the victim of said fraud? The very targets of this PR effort: entry-level and senior-level lawyers the firm hopes to recruit.)
Just putting that out there.
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Posted at 04:10 PM
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| Polk goes to TPM blogger Marshall |
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| Tue, February 19, 2008 |
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The prestigious George Polk Award for legal reporting goes this year to a blogger/reporter: Joshua Micah Marshall of Talking Points Memo, for his site's reporting on the U.S. attorneys scandal. The Polk Awards folks at Long Island University don't seem to have published their press release yet, which I read about in the Times. But TPM posted this quote from what it says is from the award citation:
His site, www.talkingpointsmemo.com, led the news media coverage of the politically motivated dismissals of United States attorneys across the country. Noting a similarity between firings in Arkansas and California, Marshall (with staff reporter-bloggers Paul Kiel and Justin Wood) connected the dots and found a pattern of federal prosecutors being forced from office for failing to do the Bush Administration's bidding.
TPM Muckraker's archive of its coverage can be found in this timeline (let me know if there's a better link to its body of work). The important point I take from this is that mainstream recognition will come to bloggers who actually do their own reporting, rather than just commenting on what others report (er, sorta like what I do here). TPM has a liberal bent, but despite that it won the judges' hearts through its original reporting.
Two other Polks have a legal-reporting angle. The Washington Post's Barton Gellman and Jo Becker (who's now at the Times) won in political reporting for their series on VP Cheney's role as architect of White House policies on interrogation tactics and detainee policies (which obviously are intensely legal questions as well as political). And former Polk-legal winner Jerry Mitchell of The Clarion-Ledger won in state reporting for his coverage of Mississippi health policy.
Here's an archive of past Polk winners.
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Posted at 09:04 AM
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| Liberal conspiracy? Or egregious shorthand? |
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| Associated Press |
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| Tue, February 19, 2008 |
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David Rossmiller at the Insurance Coverage Law Blog slams the AP for this lede on a spot-news story this morning:
The Supreme Court has refused to offer help to Hurricane Katrina victims who want their insurance companies to pay for flood damage to their homes and businesses.
Rossmiller calls it a "dumb lede," and goes on to explain why:
As if the choice in a case is simply going where your sympathies lie, and when the court decided not to take the appeal, the halls rang with evil laughter and mocking statements such as this: "We will extend no help to Katrina victims because we love to see them suffer and we love to support our evil twins, the insurance companies who steal from them."
He's right. And Ted Frank at Overlawyered explains a bit more of why:
The Fifth Circuit, of course, simply enforced the insurance policies as written, and noted that the word "flood" included a flood caused by the breach of the levees in New Orleans, reversing a district court that disingenuously held otherwise.
That's not at all the same as saying the Supreme Court refuses to help victims. This kind of writing -- even when done under extreme deadline pressure, as this dispatch was -- oversimplifies to the point that readers will misunderstand why a court has acted. What I object to is the spin that Frank gives it with this headline: "What liberal media bias? Part DCCXIV." Seeing this through ideological goggles is a mere reflex, but it's far too facile for its own good. I suspect what's really at work here -- and, like Frank, I'm merely guessing -- is not bias or laziness, but instead an impulse to make legal news so reader friendly (or "relatable," to borrow that loathsome phrase I've been hearing a lot lately) that we don't worry ourselves with the "technicalities." We only have to put the news in human terms -- even if, in the end, the simple-human version is wrong.
Update: In a brisk 334 words, the Times-Picayune's Susan Finch manages to explain clearly what the Supreme Court and other courts have ruled on in the Katrina insurance disputes -- without turning it into a morality play. Of course it is a morality play, of sorts, but it's a story of hardship and lack of flood insurance, not of a callous high court.
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Posted at 05:38 PM
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| Law meets tech in child-porn story |
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| Associated Press |
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| Sun, February 24, 2008 |
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AP Internet writer Anick Jesdanun shows in this enterprising piece that reporters not on a law beat can be called on to produce stories requiring legal sophistication. Jesdanun catches the pass ad scores, serving up an interesting and clear explanation of the fallout from a Supreme Court ruling that struck down a law outlawing computer-generated images of child rape. Now, writes Jesdanun, elaborate and costly efforts help law enforcement verify that the children depicted in scenes are real people. Despite the story's double-whammy -- requiring clear and accessible explanations of matters both technically and legally complex -- Jesdanun has handled it well in relatively few words. (Via How Appealing)
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Posted at 06:52 PM
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| When a judge answers a reporter's call |
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| Legal Times |
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| Mon, February 25, 2008 |
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One of the recurring themes in this course that my legal reporting program offers with Syracuse University's Institute for the Study of the Judiciary, Politics and the Media is on the relations between reporters and judges. Tony Mauro will be here next week to talk about that from his perspective as a veteran Supreme Court reporter. Media lawyer Jonathan Sherman appears this week to discuss his take on cultural shifts that have changed how judges respond to the media. And last week, the Federal Circuit's chief judge, Paul Michel, gave a talk on his experiences. Coincidentally, Michel took a call before class from a reporter, Legal Times' Joe Palazzolo, about this story, which appears in the paper today. So we discussed Michel's discomfort over fielding questions about a pending case, but also his belief that judges should help reporters understand the law when it's appropriate for the judge to say something.
Michel's comment to Palazzolo, which the reporter uses as his first quote, speaks to the legal climate surrounding a major patent issue without definitively stating a point of view about that issue, or about the pending case. Later in the story, he's quoted as refusing to reveal something that his Federal Circuit colleagues likely would consider confidential.
I think Michel deftly walked up to the line without crossing it, and as a result helped a smart reporter produce a better story. Other judges, I am sure, would not go so far. Some would go further. And many reporters wouldn't even think to make the call, conditioned as they are by judge's reflexive no-comment policies. It's a bench-press debate worth having. My view is that the public is served well by judges who don't mind helping the public understand their work -- which, after all, is the public's work.
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Posted at 08:54 AM
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| Immigration, buried in complexities |
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| The Washington Post |
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| Wed, February 27, 2008 |
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Ernesto Londono's front-pager in today's Post breaks new and important ground on the immigration-law beat. He documents the government's beefed-up efforts to track down and deport immigrants for their criminal convictions. Londono does a good job of looking at the issue from several angles -- the effects on criminal and immigration courts and lawyers, for example -- but in one key respect his story comes up short. Over and over, he refers to "complicated cases," "the complexities of immigration law," and "the complex and fluid intersection of criminal and immigration law, which varies from state to state." And yet he doesn't explain nearly enough about what sorts of complexities he's referring to or why they matter. I'm guessing that what constitutes a deportable conviction, and who's eligible for deportation, aren't easily answered. But without relevant examples or another layer of detail, the story takes an almost patronizing tone: This is too complicated to trouble you with the facts. That's a shame, because Londono otherwise has brought an important -- and complicated! -- issue to light.
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Posted at 08:39 AM
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| Help wanted: Times SCOTUS search begins |
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| Thu, February 28, 2008 |
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Who will replace Linda Greenhouse? The 30-year veteran of the Supreme Court beat announced yesterday she's taking a buyout and leaving the Times at the end of the Court's term, which would mean in June. (In the delicious irony department, the news was broken by Greenhouse nemesis Ed Whelan at Bench Memos. Whelan cited "a well-placed Supreme Court source," which indeed must be true, considering that Greenhouse began telling her press room competitors on Wednesday morning and Whelan posted at 9:06 a.m. I am lamentably late to the party because my Wednesdays are too packed to engage in fun stuff like reading and blogging).
Anyway, back to my question: the next Greenhouse. Adam Liptak is the obvious first guess. The legal affairs writer and former Times in-house media-law specialist has a pretty good gig already, with an issues-oriented beat and weekly column. And he's in New York, far from the Times' insular D.C. bureau. Then again, what legal writer wouldn't want this singularly influential perch? He's certainly capable.
A logical D.C. choice might be Eric Lichtblau, whose coverage of DOJ and the legal side of the war (including an upcoming book, Bush's Law: The Remaking of American Justice) would qualify him -- though he'd start out as much a lightning rod for conservative critics as Greenhouse has been over the years. Not that the Times can run itself, and serve its readers, with that concern playing too prominent a role.
Another legal eagle at the Times worth considering: William Glaberson, whose tough reporting on New York state's screwy town courts, and his scoops on the Guantanamo-justice beat, show he knows his way around the law beat.
Of course, the Times could go outside -- Joan Biskupic? Tony Mauro? Jess Bravin? The list goes on, but what is the point of buying out Greenhouse if the head count remains constant?
The real question is, how will the Times' coverage change once it loses such a singularly knowledgeable, authoritative, and hardworking expert? She's from the bookish wing of Court reporting, focusing heavily on what goes on inside the briefs, the arguments, and within One First Street, N.E. Maybe it's inevitable that Greenhouse's replacement will report more from the field. But it's doubtful her replacement will wield as much clout, at least at first. The right wingers can howl all they want. But try reading Greenhouse's body of work (which won the Pulitzer 10 years ago for beat coverage) without the partisan blinders on. There aren't many in the business who can explain the Court's work with such authority while remaining accessible and engaging. And no one else's words on the Court have the same impact.
I asked Greenhouse what comes next for her. She wrote in an e-mail:
I don't have a current book project. I do have quite a few writing and speaking commitments, well into 2009, that will keep me off the street and continuing to follow the Court. After 40 years of daily journalism 30 at the court, I'm excited about the chance to work on longer projects of my own and develop some of my non-work related interests, such as finally learning Spanish.
¿Como se dice? No more first Mondays.
Update: I overlooked another clear in-house contender, Stephen Labaton, the D.C.-based regulatory-law writer who's no stranger to the Court. I'm sure there are others who will come to mind, or bubble to the surface.
Update 2: The New York Observer's John Koblin fills in financial details of the buyout. One of the first comments on Koblin's piece expresses surprise that a star Times reporter would be paid $140,000. Hey, this ain't network TV, folks. Her reported pay is modest by media-star standards, but quite respectable by overall newspaper standards.
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Posted at 08:16 AM
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| Echoes of Enron in banks' balance sheets |
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| The New York Times |
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| Fri, February 29, 2008 |
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Floyd Norris shows why he's one of the most respected business writers around -- and lives up to a journalist's highest calling, to demand government accountability -- in his "High & Low Finance" column today. Considering the nature of his topic -- accounting rules on writing off bad bank investments -- Norris' writing is a model of plainspoken clarity. Why is this a LawBeat item? Norris is asking whether post-Enron legislation and rules protect investors adequately. The short answer: Nope. He only scratches the surface of that massive topic, but the way he does it, and the fact that he does it, reminds us that covering the law shouldn't end when Congress and rulemakers announce the birth of a cure-all policy.
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Posted at 06:44 AM
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