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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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| How censorship will work at Gitmo trials |
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| Miami Herald |
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| Thu, April 03, 2008 |
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Carol Rosenberg's story today in the Miami Herald is the most detail I've seen yet on how public the military commission trials will be at Guantanamo, and what access journalists will have. The government, in short, will open the hearings but keep strict control over what reporters see, hear, and report. New organizations and the ACLU are challenging the rules, which the Herald helpfully published here. Take a look at the juiciest part (with the charming military acronym "NMR" denoting "news media representative"):
Failure to comply with these ground rules or the Presiding Officer’s instructions, could result in permanent expulsion from the courtroom area and may result in the removal of the parent news organization from further participation and could subject the (NMR) to criminal prosecution.
By signing this document, an NMR is agreeing to abide by the following restrictions:
a. To not publish, release, discuss, or share information identified by commission’s personnel as being Protected Information or otherwise protected from disclosure by these ground rules.
(1) Protected Information includes: (i) information classified or classifiable; (ii) information protected by law or rule from unauthorized disclosure; (iii) information, the disclosure of which may endanger the physical safety of participants in commission proceedings, including prospective witnesses; (iv) information concerning intelligence and law enforcement sources, methods or activities; or (v) information concerning other national security interests.
b. If Protected Information is inadvertently disclosed during a session, the Presiding Officer can order a media embargo until the status of the information is determined.
Well, that just about covers it. Hard to imagine more extensive government control of public information short of a total blackout. (Via How Appealing.)
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Posted at 01:35 PM
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| R. Kelly's "star" chamber |
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| Chicago Sun-Times |
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| Fri, April 04, 2008 |
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Chicago Sun-Times' Eric Herman reports on the secrecy measures imposed by the judge presiding over the upcoming child porn trial of R. Kelly (pictured here). Sealed motions, a gag order, sealed witness lists, sealed dockets, closed hearings. Gitmo comes to Chi-Town? Actually, Judge Vincent Gaughan may have some valid arguments for the secrecy provisions, as Herman's sources point out. But wouldn't we have more faith in the process if the judge explained why he's taking these steps? (Via RCFP)
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Posted at 03:49 PM
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| Liptak's the one |
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| The New York Observer |
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| Fri, April 04, 2008 |
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Now that the Times has made the most natural choice of all to replace Linda Greenhouse -- it's Adam Liptak, as first reported by the Observer's John Koblin (who reprints D.C. bureau chief Dean Baquet's memo) -- the first question I have concerns legal affairs reporting in the Times. Liptak, who was my (and the obvious) first guess to replace Greenhouse once she took a buyout and announced plans to teach at Yale, fills a niche that would be a shame to lose. His weekly Sidebar column is a marvelous exploration of legal issues. His American Exception series, which I've most recently fawned over here and most notably here, shows what a smart, enterprising reporter can do with law if given the chance -- and if not responsible for a beat like SCOTUS, which typically robs reporters of the time to pursue issues-based stories independent of the Court's docket. Considering that the Times' whole point here is to shed headcount and salary expenses, I worry. But the good news, obviously, is that readers of the Times should expect to see no less quality than we're used to (and no less whining from the paranoid right).
P.S. - I shouldn't have jumped to conclusions that the Observer was first. The Observer post isn't time-stamped, but Lyle Denniston had it at 3:47 p.m.
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Posted at 07:34 PM
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| Pirates of the courtroom |
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| The New Yorker |
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| Sun, April 06, 2008 |
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One of my favorite, most memorable assignments as a young newspaper reporter was to cover treasure hunter Mel Fisher's discovery in 1985 of the Spanish galleon Nuestra Senora de Atocha, still considered one of the great shipwreck finds. True to my nerdy law-reporter roots, I spent part of my time in Key West tracing Fisher's legal history, a tortuous string of battles between academic and profit-minded marine archaeologists (I spent another part of the week partying with Fisher's newly rich divers, but that's another story for another blog).
So I had above-average interest in John Colapinto's feature, "Secrets of the Deep," in the April 7 New Yorker (abstract only). The experienced magazine writer focused on a latter-day treasure-hunting controversy, involving Odyssey Marine Exploration, and its litigious history over rights to shipwrecks that Spain has challenged; SEC charges of stock manipulation; and other legal-tinged tales of lost treasure. As a narrative and a story based on personality and business, Colapinto's piece doesn't disappoint. But as legal reporting, it falls short. Long as it is, it could have used a couple more pages to explain what exactly the current fights are about, and the factual and legal arguments they turn on.
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Posted at 09:12 PM
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| Forbes.com: Judicial-reporting hellhole |
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| Mon, April 07, 2008 |
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The junk science on display in the American Tort Reform Association's annual "judicial hellhole" study -- remember, Adam Liptak documented how the rankings are meaningless because the underlying survey has no actual validity, which ATRA cheerfully admitted -- now propagates itself on Forbes.com. The business magazine's Web site reports today on the "worst places to get sued in America," listed by type of lawsuit. Writer William Pentland explains how he did the reporting:
Forbes.com asked the American Tort Reform Association (ATRA), which surveys hundreds of defense attorneys and corporate executives every year for its report on litigation abuse on "Judicial Hellholes," to list the places identified by the largest number of survey respondents as the worst possible places to be a defendant in particular types of lawsuits.
Alrighty then. Garbage in, garbage out. Which is too bad, because the idea behind the Forbes story is interesting and valid: to get beyond broad-brush statements about plaintiff-friendly jurisdictions and examine which are the worst, for example, in medical malpractice or products liability. A sidebar gives answers to those questions (sticking with our two examples): Miami and Chicago, respectively, and supposedly, but not really, because the ATRA survey list is a self-selecting anecdote generator whose results are meaningless. (Via Overlawyered.com, which puts a decidedly more positive spin on the report.)
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Posted at 03:07 PM
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| A reporter's take on a Reconstruction legal tale |
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| Tue, April 08, 2008 |
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The book that Chuck Lane took leave to work on -- ushering in the Robert Barnes era for Washington Post SCOTUS coverage -- is out, and he's blogging about it at the Volokh Conspiracy (here, here, and here). I can't top Ed Whelan's succinct summary at Bench Memos, which first tipped me off that The Day Freedom Died was published. But I will note as a point of regional pride that Lane's story of U.S. Attorney James Beckwith's role as prosecutor after the Colfax Massacre starts with Beckwith's upbringing in abolitionist Central New York, near LawBeat's home base. After briefly returning to the Court beat after his book leave to help Barnes close out coverage of last year's term, Lane moved over to the Post's editorial page.
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Posted at 09:06 AM
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| Scalia drinks the "60 Minutes" Kool-Aid |
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| Blog of Legal Times |
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| Tue, April 08, 2008 |
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Tony Mauro breaks the news that Justice Antonin Scalia will flog his new book on "60 Minutes" on April 27. What makes the news so remarkable, as Mauro explains fully, isn't the PR strategy -- it's becoming something of a Court tradition -- but the fact that it's Scalia doing it. Mauro reports that Lesley Stahl has been interviewing Scalia for the April 27 airing, which is pegged to Scalia's new book Making Your Case: The Art of Persuading Judges, which he co-wrote with legal-writing coach Bryan Garner.
Mauro's best line: "In the life of the Court and the career of Justice Scalia, this is a remarkable, Nixon-goes-to-China moment." (That's his jumping-off point to a stroll through the history of Scalia's contentious relations with the news media.)
Mauro's most cryptic line: that he confirmed the story with an "unimpeachable but anonymous source." Eeny, meeny, miny, moe, is it Nino or Lesley?
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Posted at 10:36 AM
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| Dogs and cats lie down together |
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| WSJ Law Blog |
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| Wed, April 09, 2008 |
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Jack Shafer's recent rant about useless links in the major papers' Web reports was right on the money. But he might also have noted that the major papers' bloggers might handle this better -- even, remarkably, with links to the competition.
Shafer focused on the junk links that papers litter their stories with. You know, if you mention Facebook, you link to Facebook's home page, or better yet to a standard business-news and stock-tracking archive page on the newspaper's own site. It's a reader-unfriendly scheme to generate page views and raise a paper's Google rankings. Near the end of the piece, Shafer notes, also correctly, that when a story credits the competition, those mentions rarely if ever link to the relevant report.
Which got me to thinking about the news culture I was raised in: never acknowledge a competitor's existence, unless it's to knock down its story or, when your back is against the wall, credit it for a scoop. It seemed fun and sporting at the time. Competition makes us better, sometimes. Other times it just makes us self-interested infants whose squabbles do nothing to inform the public.
So whenever I see that culture erode online, I'm cheered. The latest example I noticed is Dan Slater's focus, in this Wall Street Journal Law Blog post, on a front-pager by Eric Lichtblau in today's Times. Slater doesn't just give a polite tip of the hat. He bases his post on the Lichtblau story, which looks at the Justice Department's use of deferred prosecution agreements for corporate crime defendants. Slater then helpfully links to related Journal stories in a way that feels helpful to readers, not merely shilling for the boss man.
Sure, it's easier to pursue this magnanimous strategy when the story at issue is a relatively timeless enterprise piece like Lichtblau's. It's tougher if, say, the Times were to scoop the Journal on a surprising development in the Microsoft-Yahoo takeover fight. Still, this is progress.
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Posted at 10:23 AM
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| A book tour, without the book |
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| The Washington Post |
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| Thu, April 10, 2008 |
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The Post's Bob Barnes, with a gracious nod to Tony Mauro's earlier report, expands on the Scalia-as-media-debutante theme in this story today that's pegged to yesterday's C-SPAN telecast of the justice's meeting with high school students. Barnes notes that Scalia never bothered to plug his book -- the ostensible reason for his charm offensive -- and adds this depressing reality check on any hopes that greater openness signals a thaw in the cameras debate:
Even yesterday, he repeated his opposition to allowing cameras at the court's oral arguments, because he said the clips shown by the media would not accurately represent what happened there. "Why should I participate in the mis-education of the American people?" he replied to his student questioner.
That's certainly a crabbed view of what it means to allow the press greater access. But at least Scalia is mixing it up with the public, and allowing cameras -- albeit selectively -- to show his engaging personality and mind at work.
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Posted at 07:59 AM
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| What the SCOTUS beat needs, Part II |
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| Slate |
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| Sat, April 12, 2008 |
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Jack Shafer's and Dahlia Lithwick's recent musings on the future of Supreme Court reporting prompt me to think more about the opportunities that exist with the changing of the guard at the Times.
It all started with Shafer's characteristically over-the-top call to abolish "the ugly stranglehold the boomers have over the press," which he evidently sees possible with the replacement of 61-year-old boomer Linda Greenhouse with 47-year-old boomer Adam Liptak. Actually, Shafer makes some worthy points about the value of injecting new blood into our newsrooms, amid the wave of buyouts that will lower the average age of the reporting ranks. He asks these useful questions:
In the Web era, is the best use of the Times' column inches the traditional day-after-oral-arguments story and the day-after-decisions dispatches? Is there a more creative way to report on the court? Should Liptak cover the court with more argument and greater point of view, the way he covers the law in his current Sidebar column?
He takes the issues far beyond what one reporter, poor Mr. Liptak, should be expected to do. Which goads Lithwick into offering her own theories on how the SCOTUS beat will, or should, evolve. It's hard to argue with her -- expert sources now just blog their own thoughts; it doesn't take a seat at the Court, but it does take a faster metabolism, to succeed these days; the old neutrality of Court journalism should give way to more analytical voices -- but I have a different take on what journalists can do to compete with new media forms and serve the changing demands of our readers. Like Lithwick, I present my list as a rough first draft:
More on-the-scene reporting. Go to where the cases percolate up from, reporting on the real people and places at issue in the briefs. When today's cadre of reporters on the SCOTUS beat take the road warrior tack -- those who've done it lately include Jess Bravin of the Journal, Warren Richey of the Monitor, Bob Barnes of the Post, the AP's Mark Sherman -- the results serve readers well. Is it possible to cover as many cases at the cert-grant, argument, and decision stages if you're also jetting off to Guantanamo or Des Moines? No, and the bosses will have to accept that, throw more reporters at the beat (as if), or learn to team up with the expert bloggers who do a fine job of covering every nuance of every case (so long as coverage is defined as reading and interpreting decisions and briefs).
More behind-the-scenes reporting. If books on the Court like Jeff Toobin's The Nine can dig into the real politicking and strategizing that made cases turn out as they did, then beat reporters can do it, too. They're so busy looking forward or looking at today's breaking news, they don't get (or take) the time to cast a look back a term or two or three. That's the material that inside sources are more willing to dish on. Bosses need to unleash the Mauros and Savages and Biskupics on these perspective pieces. Again, we'll have to compromise and innovate. We can't do new things plus all the old things in the old ways with the same or diminishing resources.
More personality-based reporting. Tony Mauro's longstanding Courtside column in Legal Times is one model. Lithwick's oral arguments reports are another. Still others abound in the aforementioned books of journalism on the Court. This is one big advantage reporters have over bloggers who report on and analyze cases from afar. Reporters add value by observing the justices up close, and taking the initiative to talk to others who have even more intimate access to the justices (clerks, advocates, colleagues). We need to know more about these important public officials. And knowing more will make their work more interesting to more people.
More storytelling innovation. The elites are relatively well served already with deep, specialized resources. Journalists must focus on the mass audience, which needs clear reasons to care about Court news. Asking these folks to wade into a dense, technical discussion, or even to care enough to read a well-crafted but traditional 20-inch USA Today story, doesn't cut it. And we can't leave them to the default options: meaningless 100-word bulletins or cable-TV shoutfests. There are more than enough opinionators already. We have to experiment in multimedia storytelling that draws in the casual reader/viewer with engaging stories; takes an inclusive approach, giving them backgrounders on the cases and controversies so that they begin to appreciate the real substantive issues; and makes them hungry to learn more.
We need professional journalists to produce such coverage. And journalists need it, too, as an antidote to those increasingly alarming reports of the steep decline in traditional news media. At the very least, it may get Shafer to stop calling us forty-somethings -- OK, really late-forties-somethings -- deadwood.
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Posted at 10:44 AM
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| Scalia's charm offensive: more charm than offensive |
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| C-SPAN |
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| Sun, April 13, 2008 |
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You gotta love him. I've mentioned recently Antonin Scalia's surprising embrace of high-profile appearances (here and here), but I didn't appreciate what he could do with this forum until I watched C-Span's Students & Leaders show aired last Wednesday (I recorded it and finally got to it tonight). Scalia is at his lucid, incorrigible, irrepressible best. Some of what he said made me want to climb through the TV screen and throttle him. But make no mistake: These students were privileged to discuss the Constitution and the Court with a great mind, someone whose love of language and the law is clear and invigorating. I truly wish more Americans could see their justices in such a setting.
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Posted at 09:31 PM
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| Friends don't let friends write with POV |
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| Slate |
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| Wed, April 16, 2008 |
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Dahlia Lithwick continues the discussion that she started, and I joined, by summarizing her readers' suggestions about what the Supreme Court beat needs most. The big sticking point: whether a beat reporter also should offer straight-up opinion, in the reporter's voice. It's a healthy, nuanced debate. But it seems to treat opinion as a binary question: Is Adam Liptak's opinion set to on or off in this story? The more important dividing line, from where I sit, is whether a point of view is based on original reporting, or is simply a derivative product from an armchair analyst. Reporters should report, starting from a position of fairness and openness to various arguments, as I believe Liptak (cited by his paper's ombudsman Clark Hoyt as an example of a dangerous blend of the two forms) does in his work.
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Posted at 07:47 AM
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| Duke loses bid to muzzle students |
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| Wed, April 16, 2008 |
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The N&O reports today that a North Carolina federal judge has rejected Duke University's bizarre and shameful attack on the PR tactics of the lacrosse players who are suing the university. With the end of that controversy, which I previously posted on here, Dukelawsuit.com lives on (while posting its own, quite subdued report on the ruling). I have not studied the lawsuit and have no opinion about its merits. I based my criticism of Duke, instead, on the university's documented role in betraying its innocent students in the face of political pressure -- and then having the gall to tell those students to pipe down about it.
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Posted at 09:40 AM
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| Holes in Shafer's shield logic |
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| Slate |
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| Thu, April 17, 2008 |
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In his two-part rant against a federal shield law (Part 1 and Part 2), Jack Shafer pegs much of his argument to this pair of assertions: (1) there is no crisis requiring such a legislative response, and (2) limiting the privilege to journalists as legislatively defined puts us on a path to licensing of journalists and turns its back on the blossoming of citizen journalism to favor mainstream corporate media. I disagree with his reasoning, and with his conclusion that the bill should fail.
On the first point: Even assuming the truth of his stats on the Justice Department's use of subpoenas (relatively rare) and that the prospective law wouldn't have kept Judith Miller out of jail, he ignores the reality that high-profile attacks on journalists' independence by prosecutors encourage civil litigants and criminal defendants to use the same tactics. They also severely undercut the press' crucial role as outsider, no matter whether the number of cases is 50 or 500. And for every jailed journalist, there are likely scores of journalists whose lawyers are forced into the highly compromising posture of cutting deals that keep a case from escalating from cooperation to subpoena to court clash to jail. The atmosphere clearly has turned more hostile toward journalists who want nothing to do with evidence gathering in court, and that isn't just hype, as Shafer seems to think. What's more, the bill isn't perfect policy. It's a product of political compromise. But just because it probably wouldn't have protected the shield law's poster child doesn't mean that we don't need the best shield law that can be forged through debate. A little is better than none.
Which leads to the second point. Yes, it's logically appealing to decry a policy that favors one kind of journalist over another, and to fret that one form of government definition of journalist is a theoretical precursor to licensing. But these are debate-club arguments that ignore reality. Can you really believe that if we deny the privilege to a neighborhood activist blogger we should likewise deny it to the news organization that throws its vast resources at investigating government wrongdoing at the highest levels? Are we really at the point in our culture where we place no greater value on the work done by Eric Licthtblau or Dana Priest than on the contributions to YouTube and Juicycampus.com of laughing-baby videos and the latter-day equivalent of restroom graffiti? We draw lines in the real world, to achieve some good rather than achieving no good in the pursuit of absolute consistency.
A little protection is better than none. We need a federal shield law.
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Posted at 10:24 AM
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| Standing-O for "legal" "news" "reporter" |
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| Thu, April 17, 2008 |
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This is great: NBC's Chris Hansen has lots of student groupies who evidently don't appreciate that his "To Catch a Predator" show -- sanctimony from the host aside -- is neither news nor applause-worthy. He manufactures a crime and serves as a law enforcement tool, all to generate shock video that ruins lives and does nothing to solve a real problem. Bravo, Chris!
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Posted at 12:26 PM
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| Harry Potter and the fair-use goblins |
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| The Wall Street Journal |
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| Fri, April 18, 2008 |
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Copyright's fair use doctrine gets an unusually thorough airing in this story today by the Journal's Dan Slater, who's analyzing the challenges facing the judge in the trial over infringement claims by Harry Potter author J.K. Rowling against the publisher of an unauthorized reference guide. Slater explains the doctrine clearly enough, but he could have used more column inches to get closer to the heart of such disputes: namely, the policy purpose of granting substantial wiggle room to fans and critics who want to use an author's work as a starting point for a new work. And his piece would have benefited from some examples -- how this reference guide, for instance, uses Rowling's material. The particulars would make the law medicine go down a lot easier.
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Posted at 08:48 AM
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| Covering polygamists' custody hearing with attitude |
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| NPR |
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| Sat, April 19, 2008 |
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I've been closely reading accounts of the child-custody hearing in Texas involving the Fundamentalist Church of Jesus Christ of Latter Day Saints. It's a case ready made for all sorts of legal-reporting heroics or sins. First we have odd-looking and -acting people accused of heinous crimes against children. Will skeptical reporters examine whether they're being treated fairly, under the rules, despite the snap judgments that the public and state authorities may find it easy to make? Has the state overreacted, or waited too long? What does the evidence really show, once the immediate crisis has passed and the case begins its methodical march through the system?
Until now I hadn't seen any reports so notably good or bad that I felt the need to comment (though I was tempted after seeing an all-too-brief appearance by Jeffrey Toobin on CNN on Thursday afternoon in which he gave a remarkably substantive explanation of the rules of evidence, and why a document -- the writings found at the ranch that purportedly document marriages of older men to young girls -- is hearsay, but might be deemed admissible if it's a business record). But a reader pointed out this NPR report by Wade Goodwyn, the experienced, Texas-based NPR correspondent. And now I have a report worthy of critique. The trouble is, I'm torn between ripping it and praising it.
On Thursday, host Michele Norris interviewed Goodwyn about the hearing conducted that day in a San Angelo, Texas, court. What's remarkable about Goodwyn's handling of the story -- this was pointed out by my astute (and shy) reader, and once I gave it a listen I agreed -- is his opinionated account of the courtroom scene. Rather than give a straightforward report on who said what, Goodwyn starts out with his opinion that "you've never seen a bigger mess than this morning's hearing" and sprinkles it with other pure-opinion takes on what he'd seen ("Take it from me. It was enough to make you weep," he says at one point.) The rants could make Goodwyn out to be a Glenn Beck or Mike Galanos clone -- presenting news as schlock entertainment, full of cheap emotion and moralizing, telling us at every turn what to think (because here's what they think) -- but, instead, Goodwyn backs up his point of view about the tenor of the hearing with detail. Because he was there, and he has his skeptic's hat on. The chaos of the hearing, he says, wasn't the judge's fault. Rather, it was a byproduct of the way the case was rushed to court. Evidence about, say, one mother might not be clear at all, due to confusion over women with identical names. At another point, Goodwyn notes that the judge's laughs from the bench sent some mothers "reeling" because they interpreted the laughs as a callous attitude toward their parental rights. I got the sense that Goodwyn wasn't just guessing. He knew that's what the mothers felt because he was talking to them or at least observing them up close.
The report isn't long enough for Goodwyn to fully justify his point of view. Thus, he risks falling on the wrong side of the line between pure, reactive opinion and reporting- and fact-based perspective. But, because he takes that risk, he gives a better sense of what that courtroom really was like.
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Posted at 07:55 AM
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| Hoyt lends column to the Locy cause |
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| The New York Times |
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| Sun, April 20, 2008 |
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Clark Hoyt takes his Times Public Editor column on a detour today, veering from critiques of the Times' work to write a sympathetic piece on Toni Locy and her contempt case. I'm glad for the detour, and for his slant on Locy (see my earlier pro-Locy post). The column includes details that make Locy's plight all the more sympathic. Locy's opponents have painted her as deceptive for saying she doesn't recall which of her Justice Department sources gave her information about the investigation of Steven Hatfill. Hoyt, who interviewed Locy, reports that after she took a skeptical line on the investigation, Hatfill praised her. Later she tossed her notes. Makes sense to me. Why would she think, under those circumstances, that she and Hatfill would one day be adversaries? Now, her failure to recall her source is grounds for a fishing expedition into all of her DOJ sources.
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Posted at 11:42 AM
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| How did sex-offender ruling run off the rails? |
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| Orlando Sentinel |
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| Sun, April 20, 2008 |
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Pity Jim Leusner. The Orlando Sentinel reporter had a tough assignment on Friday: to explain an esoteric legal principle that had an incendiary result. Judging from the comments that readers posted on his article, he wasn't entirely successful. But I only assign some of the blame for that to him. Leusner reported on a decision by a federal district judge in Orlando, Gregory Presnell, that freed two sex offenders accused of violating the federal Adam Walsh Act. The law, formally known as the Sex Offender Registration and Notification Act, requires convicted offenders to register with local authorities if they move to a new state. Presnell ruled the law unconstitutional, as a violation of the Commerce Clause. Here's how Leusner introduced that concept:
U.S. District Judge Gregory Presnell on Friday ruled that the 2006 federal law requiring state sex offenders to register with law-enforcement officials when they move across state lines was largely a local issue.
True enough. But it's not as though Presnell woke up Friday morning and decided that sex-offender registration just struck him as a local issue. He was interpreting the Commerce Clause and extensive case law on the question of when Congress oversteps its bounds to meddle in state-law questions. Experts like Doug Berman at Sentencing Law and Corey Rayburn Yung at Sex Crimes don't agree on the legal correctness of Presnell's decision. Judges who've been ruling on the same issue don't all agree. Courts have been wrestling for generations with questions of what the Commerce Clause means. Did Leusner explain what debate the judge had waded into? Not quite. He did paraphrase defense counsel's argument that "Congress lacked the authority to force state sex offenders solely convicted of local offenses to register," and then quoted Presnell:
"The Adam Walsh Act was enacted with a commendable goal -- to protect the public from sex offenders," Presnell wrote. "However, a worthy cause is not enough to transform a state concern [sex-offender registration] into a federal crime."
In his last two grafs of a 13-graf story, Leusner wrote:
Presnell's problem with the federal law centered on the "mere unrelated travel in interstate commerce" to link it with local criminal conduct. Such reasoning would subject virtually all criminal activity to federal scrutiny, he wrote.
"Surely, our founding fathers did not contemplate such a broad view of federalism," Presnell wrote.
From the article sprang scores of fiery denunciations of the judge. Most simply moved from point A (perverts released) to point B (bad) in a straight line. The closest most attackers came to recognizing a legal issue was to rail against high-handed judges who don't respect Congress' and the public's will. But even those arguably responsible arguments were largely cloaked in spittle-flying rage. It's depressing to try to wade through the postings.
So how did Presnell himself do at explaining the issues? Not bad, really. His relatively brief opinion is lucid and logical. I'm not saying it's correct -- that's for greater constitutional minds to decide -- but a layman could read it and grasp the reasoning. It takes him 10 pages to spell it out, and there aren't any pithy summaries other than the ones Leusner grabbed ahold of. A writer with more time to digest and summarize the opinion, and talk to experts, very well might have defused some of the public misunderstanding and anger. Judging from the idiotic tone of the discussion, however, I doubt it would have made much difference.
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Posted at 08:00 PM
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| Mauro: Flogging books isn't enough |
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| USA Today |
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| Wed, April 23, 2008 |
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Legal Times' Tony Mauro uses this USA Today op-ed piece today to chide the Supreme Court for its secretive ways. He pegs this perennial lament to Justice Antonin Scalia's scheduled appearance on Sunday on CBS's "60 Minutes." Mauro admits that when a justice takes to the airwaves to promote a book, the public gains -- but not as much as if the Court were more systematic about its transparency and accountability. And he's not just talking about cameras in the court when he declares, "It should not get to decide how invisible, how unaccountable, it will be." Mauro points to other courts' innovations in connecting to the public, and closes with this:
When Justice David Souter joined the Supreme Court in 1990, the reporters who cover the court greeted him, as we do with all new justices, with a gathering in the court's press room. After an hour or so, as Souter inched his way toward the door, he turned and told us, "This was fun. Let's do it again when I retire."
His wry remark was a sad reminder that we see a lot of the justices when they are nominated and again when they leave the court. But in between, when they are doing the public's business, they drop out of sight -- unless they have a book to sell. In a democracy dependent on an informed public, that's no way for its nine most important judges to operate.
Mauro told the same story when he spoke here at Syracuse University in our series on law, politics, and media (scroll down that page for a video of Mauro's talk). Now that we're nearly three terms into the Roberts Court with too few gains to show in Court-press relations, it's depressing -- no, outrageous -- to think that an 18-year-old anecdote will continue to ring true for the foreseeable future.
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Posted at 09:28 AM
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| AmLaw's leap into the blogosphere |
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| The American Lawyer |
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| Thu, April 24, 2008 |
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The American Lawyer's long-awaited (well, among a select audience) overhaul of its Web site includes a surprisingly ambitious legal-news blog, The AmLaw Daily. It's legal news as defined by the magazine, meaning mostly the business of Am Law 200 firms. I waited a couple of days after learning of it to see what the staff would produce. The answer: a high volume of originally reported pieces, mixed in with blurbs about original reporting found elsewhere in the ALM empire. If I were in my old job there, I'd be mighty worried about how I could put out the same magazine with so many on the staff posting so much. But that's not my problem now -- and as readers we all gain from the unleashing of this previously monthly staff. The magazine will make all of its content free through July. After that, it goes back behind the subscriber gate. So take advantage while you can (including when the Am Law 100 and 200 are published). At the same time -- and beyond -- enjoy a new source of legal journalism in The AmLaw Daily.
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Posted at 03:02 PM
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| Bell verdict, examined from multiple angles |
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| The New York Times |
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| Sat, April 26, 2008 |
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Stellar work today by a Times team explains what to some may seem inexplicable: the acquittals of police in the shooting death of Sean Bell. Bell was killed in a hail of 50 shots on the day of his wedding outside of a New York strip club. The number of shots makes it easy to jump to the conclusion that the police did wrong. But are they guilty of a crime? And what are the elements of that crime that prosecutors had to prove, but didn't to the judge's satisfaction. The Times did a much better job than its direct competitors the New York Post and Daily News, of examining those core issues (though the tabs' work was itself ambitious and worthy of praise). Michael Wilson, the Times' lead trial reporter, penned both the main verdict story and this sidebar explaining the judge's written decision. Supplemented by this clear and engaging graphic that explains each witness' testimony, the extensive package of reports may inject facts into the emotional debate New Yorkers are having about the verdict issued by Judge Arthur Cooperman (it was a bench trial). My only quibble: why not make the link to the judge's written decision easier to find? After all, the judge took the added step of spelling out his reasons for the verdict. It's not the most elegantly written document -- that's where journalists as interpreters come in handy -- but it should be an easily located document on any news site that covers the verdict.
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Posted at 10:37 AM
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| The greening of terror law |
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| Vanity Fair |
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| Sat, April 26, 2008 |
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Vanity Fair's definition of a "green issue" is remarkably expansive. I refer not only to the Madonna S&M pictorial or the Doris Day tell-all. The legal-reporting goods are in this article by British human rights lawyer Philippe Sands, wittily called "Green [get it? green issue??] Light." It's taken from Sands' new book The Torture Team: Rumsfeld's Memo and the Betrayal of American Values, a title that kind of makes plain its focus and point of view. Sands' interviews and document-sleuthing yield new insights into which lawyers played which rhetorical gymnastics to authorize an anything-goes policy on interrogating terror detainees. His nut graf: that the legal architects of torture are war criminals and could -- arguably should -- be captured overseas and prosecuted for this. He writes up to it in a most methodical, cautious way. But there's no mistaking his thesis. And, unlike the typical polemical essay, it's based on original reporting.
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Posted at 08:39 PM
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| Scalia on "60 Minutes": a brilliant portrait |
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| CBS "60 Minutes" |
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| Sun, April 27, 2008 |
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Lesley Stahl and her producer Ruth Streeter deliver a smart, entertaining portrait of Justice Antonin Scalia. I've been hard on "60 Minutes" for failing its storied history, including recently. But not this time. Scalia displays his feisty charm, and Stahl covers the substantive arguments while giving viewers a full-on view of the dynamism that is Scalia.
One striking realization: Scalia is a closeted journalist! He makes an off-color joke, telling an Oxford audience that legislative compromise is "splitting the baby" -- in a discussion of abortion policy. And this: "The next appointee to the Court is going to be a female, Protestant, Hispanic. If you can find her out there, she's in." And this: He and his wife have nine children from "playing Vatican roulette". He defends colorful, provocative writing, which after all is the ostensible purpose of this PR blitz (good writing, he says, "makes the opinion interesting, which might induce someone to read it"). He's anti-authoritarian ("It may well be that I'm something of a shin-kicker. It may well be that I'm something of a contrarian."). Sounds like pure journo to me.
Based on early reports, I assumed the piece would be a rehash. Not at all. The most dramatic moment: when Stahl hauls out old, private writings, including from Harry Blackmun's papers, where Scalia despaired over his lack of influence over the Court's majority. His facial expressions hide nothing as Stahl reads his words back to him. "I'm happier sometimes than at other times," Scalia allows, adding that his down times tend to come at a term's end, when the Court's output is "usually a disappointment."
What I like most about this story was that it wasn't an ideological rant or rave. It didn't ask that we love or hate Scalia's jurisprudence and ideology. It simply asked that we learn more about -- and see -- the man. It's not nearly a substitute for what the Court should do. But what a gift to the public, to get to know an important public official in this way.
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Posted at 08:02 PM
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| Bell judge: just another unhappy customer |
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| Daily News |
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| Tue, April 29, 2008 |
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The Daily News' Nicole Bode gets Judge Arthur Cooperman on the phone long enough to hear him unload on journalists who tried to talk to him at home over the weekend. "That's not journalism," says the judge whose ruling in the Sean Bell police shooting was a big story in New York City. Big enough to stake out a judge's home? Not in my view. I've knocked on my share of doors, but what is the point when the judge took the unusual step of spelling out his reasons for the verdict in a written decision? The point, I am assuming, was the lack of visuals of the judge -- and the hope that he might utter a few words on camera. We act quite mindless and annoying when we resort to the home-invasion tactic on any big story, regardless of whether the subject is ducking responsibility or denying access (neither of which the judge really did here). Saddest quote in the story? When the 74-year-old judge said this about his previous musings about how he might have enjoyed a career in journalism:
"I am so glad I did not go to Columbia Journalism [School] and I picked the law. I had misgivings about that, but not anymore."
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Posted at 11:26 AM
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| Drawing a bead on Client 9 |
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| Wed, April 30, 2008 |
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Dallas-based Fortune writer Peter Elkind -- a veteran of long-form legal coverage in the magazine and in books -- landed a fat contract to produce an Eliot Spitzer book for Penguin Portfolio, the Observer's Leon Neyfakh reports. Interesting twist: His collaborator is filmmaker Alex Gibney, whose Spitzer documentary will be timed to coincide with the book's publication. Elkind is an experienced pro, with gobs of magazine experience, so my money is on this one as the must-read account of the Spitzer affair.
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Posted at 08:49 AM
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