13 January 2010

A Round Tuit (15)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

American Needle v. NFL

The American Needle case is scheduled to be argued before the Supreme Court today. While other matters may be more legally significant, it's probable that no other case in recent memory has received so much attention from New Orleans Saints quarterback and National Football League Most Valuable Player runner-up Drew Brees. Brees demonstrates his football intelligence on a weekly basis; it turns out that he's a pretty savvy legal observer as well as he discusses what's at stake in the case:
The NFL originally won the case because the lower courts decided that, when it comes to marketing hats and gear, the 32 teams in the league act like one big company, a "single entity," and such an entity can't illegally conspire with itself to restrain trade. The NFL-Reebok deal is worth a lot of money, and fans pay for it: If you want to show support for your team by buying an official hat, it now costs $10 more than before the exclusive arrangement.

Amazingly, after the NFL won the case, it asked the Supreme Court to dramatically expand the ruling and determine that the teams act as a single entity not only for marketing hats and gear, but for pretty much everything the league does. It was an odd request -- as if I asked an official to review an 80-yard pass of mine that had already been ruled a touchdown. The notion that the teams function as a single entity is absurd; the 32 organizations composing the NFL and the business people who run them compete with unrelenting intensity for players, coaches and, most of all, the loyalty of fans.

I know of this competition because, along with hundreds of other professional football players, I live it every week of the season. I also know about it because in 2006, after five years with the San Diego Chargers, I became a free agent and witnessed firsthand the robust competition among teams for players.


I could choose to sign a contract with the Saints because of a crucial player-led antitrust lawsuit in 1993 that secured players' rights to sell our services as free agents. Until that case, team owners had acted together to control players and keep salaries low, while the popularity of the game and teams' revenues grew exponentially. Today, if the Supreme Court agrees with the NFL's argument that the teams act as a single entity rather than as 32 separate, vigorously competitive and extremely profitable entities, the absence of antitrust scrutiny would enable the owners to exert total control over this multibillion-dollar business.
Mike Masnick wrote that Brees' op-ed piece was "quite well argued" and noted that "Like plenty of other businesses, sports leagues have a keen understanding of what monopoly rents are, and do everything possible to profit from them." Ashby Jones spoke with some of the key players in the drama and posted about the potential impacts of the Court's decision; he suggested that Brees may not be far off in asserting that the NFL's main focus is not necessarily on merchandising revenues but on labor relations:
The issue is huge for the NFL. A decision that the league is comprised of 32 separate entities could wreak havoc on the way it handles a ton of issues, from marketing to broadcast rights.

But experts and interested parties feel the largest implications might be on the labor front. Currently, antitrust law prohibits teams from colluding on labor issues. It keeps them from unilaterally agreeing on salary caps or otherwise conspiring to frustrate the aims of free agency. A ruling that the NFL is a “single entity” could, in theory, mean the NFL no longer has to play by the antitrust laws when it comes to labor issues.

Jeff Pash, the NFL’s general counsel, doesn’t believe that labor issues are at the fore. “The American Needle case arose out of an issue that could not possibly have less to do with labor,” he said at a September news conference. Added an NFL spokesman on Tuesday, in an email to the Law Blog:

The case is about the ability of a league to make routine business decisions without the threat of antitrust litigation. Antitrust laws do not apply to terms and conditions of employment in unionized industries, including pro sports. These subjects instead are governed by labor law.

But DeMaurice Smith, the executive director of the NFL Players’ Association, disagrees. “We see for what it is,” he told the Law Blog. “It’s not only a case about licensing, and those who say it has nothing to do with labor are wrong.”
Marc Edelman has literally written the book (well, article) on this topic, having authored Why the ‘Single Entity’ Defense Can Never Apply to NFL Clubs: A Primer on Property Rights Theory in Professional Sports, an article cited in three of the briefs filed with the Court. This week, he discussed the legal bases for the arguments in American Needle, writing that:
American Needle’s surprising choice of where to bring suit played an important role in this case making its way to the Supreme Court. Although the First, Second, Third and Ninth Circuits have long since rejected the NFL’s single entity defense, American Needle instead decided to bring suit in the Seventh Circuit, which had never before addressed the issue. Upon reviewing the matter, the Seventh Circuit disagreed with these other circuits’ views of the single-entity exemption and instead held that the single-entity status of a sports league should be determined on a case-by-case basis, and that the NFL constituted a single-entity for the purposes of licensing intellectual property.

The Seventh Circuit’s ruling has since been challenged by both American Needle and the NFL clubs. American Needle, as expected, filed a petition for certiorari, urging the Supreme Court to reverse the Seventh Circuit’s ruling and adopt the position previously articulated by the First, Second, Third, and Ninth Circuits. Meanwhile, the NFL clubs have petitioned the Court to not only uphold the Seventh Circuit’s ruling with respect to licensing markets, but more broadly to rule that sports leagues are single entities for all purposes—thus shielding the NFL from future Section 1 antitrust challenges.

In arguing for a complete exemption from Section 1 of the Sherman Act, the NFL clubs rely on a broad reading of the 1984 Supreme Court case Copperweld Corp. v. Independence Tube Corp., in which the Court had held that a tubing company and its wholly-owned subsidiary comprised just one entity for antitrust purposes. Meanwhile, American Needle relies primarily on a different Supreme Court case from that same year, National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, in which the Court ruled that NCAA football teams are independent actors and not a single entity for purposes of antitrust law.
Michael McCann rounded-up commentary concerning the case (here and here), including Brees' op-ed and Jones' post amongst many others. Not included in those lists was an older post from Gabriel Feldman; Feldman noted that even if the NFL's "single entity" hail-mary falls incomplete today, all is not lost for them:
If the NFL loses the case before the Supreme Court, it does not mean that all of their exclusive licensing arrangements illegal. This case is a lottery ticket for the NFL. If they win, it could be a significant victory.... If the NFL loses, nothing really changes. The issue before the Supreme Court is not whether the NFL's exclusive licensing arrangement is legal under the antitrust laws. The issue is whether the licensing arrangement should even be subject to scrutiny under the antitrust laws. If the NFL wins, they escape Section 1 scrutiny. If the NFL loses, their arrangement will then be analyzed under the rule of reason, where a court will weigh the pro-competitive benefits of the agreement versus its anticompetitive effects.

There is no reason to believe that the Supreme Court's rejection of the single entity argument makes it any more (or less) likely that American Needle would prevail in the underlying antitrust case (or that a suit against the NFL's exclusive deal with EA would be successful). Rather, it only subjects the NFL to the same antitrust scrutiny they have been subjected to for the last 50 years. American Needle could win the underlying case, but only if it could prove that the anticompetitive effects of the NFL's exclusive apparel licensing deal outweighed its pro-competitive benefits
That all would not be lost should provide some comfort for the NFL if, as Lyle Denniston reports this morning, the Court does not accept their arguments:
The Court heard 70 minutes of oral argument in American Needle v. NFL (08-661), a case that supposedly was to focus on a single, simple question: is the NFL, along with its 32 teams, a “single entity” and therefore immune to the Sherman Antitrust Act when they act jointly in a business effort?


While the NFL insists that that is crucial to promoting the popularity of the games on the field, it did not appear that any Justice was firmly convinced — right now — of that.

While the Supreme Court arguments in American Needle may get a bit of attention this week from football fans, fortunately all eyes will be back on the field this weekend when the playoffs continue (astute legal essayist Drew Brees will be under center when the Saints meet the Arizona Cardinals at home on Saturday afternoon). Regardless how the market shakes out after American Needle, I'd like to take a moment here to thank the Seattle Seahawks for saving me some licensed merchandise money this season by failing to make the post-season. Hey, it's a recession and every penny saved is a penny earned; thanks, guys.


There are many good arguments for and against California's Proposition 8, a ballot measure which prohibited state recognition of marriages between homosexual couples after the judiciary overturned an earlier ban. David Lat admitted that his feelings about Proposition 8 itself are unresolved, but he wrote that on the recent controversy concerning video coverage of the hearings (opposed primarily by proponents of Proposition 8), he's very much in favor of greater coverage:
The right to an open and public trial is guaranteed by the Constitution, and understanding what’s going on in our courts is a crucial part of democratic self-governance.

The standard for closing a courtroom to the public is very high, and justifiably so. We the People should be allowed to know — and to hear, and to see — what is transpiring within our courts. After all, these are our laws being interpreted, our rights being adjudicated, and our taxpayer dollars at work.

And in this age of videoconferencing, YouTube, blogging, and Twitter, the distinction between physical and virtual attendance of court proceedings is becoming increasingly artificial. If we can read reporter Dan Levine’s real-time tweets about the Prop 8 trial, or if we can read blog posts published during breaks about what just transpired in open court, why shouldn’t we be able to watch the proceedings ourselves, in livestreaming video? Or, if we can’t watch real-time video, why can’t we watch video posted online after the fact?

This is why we are so disappointed in the Supreme Court’s decision to kill, at least for now, efforts to broadcast the Prop 8 trial. This is why we strongly support the efforts of Chief Judge Vaughn Walker (N.D. Cal.), who is presiding over the trial, and Chief Judge Alex Kozinski (9th Cir.), who is spearheading a Ninth Circuit pilot project providing for cameras in the courtroom, to offer some wider broadcast of the proceedings (whether on YouTube, an official court website, or even just to federal courthouses outside San Francisco).
The disagreement over cameras in the courtroom, which had pitted the presiding District Court judge and the Ninth Circuit Judicial Council led by Judge Alex Kozinski against the Judicial Conference and (some suggest) the Supreme Court, was described by Lyle Denniston as "a polite but no less pointed controversy" than the Proposition 8 hearing itself. Whether federal judicial proceedings will become more open, and if so, how open and in which courts, seems to be a question which may finally be answered; Denniston notes that "when the Supreme Court further considers the issue, it may have to decide the legal status of the Judicial Conference policy, as compared to that of the Ninth Circuit’s Judicial Council, which has authorized the TV 'pilot project' to apply to the Prop. 8 trial. And the Justices may also have to consider the scope of their own 'supervisory power' over a question of trial procedure in the federal District Courts."

Justin Silverman argued that the opponents to the televising of the Proposition 8 hearings should not prevail on "witness safety" grounds:
There are a couple of laws in California that the U.S. Supreme Court should consider before it announces tomorrow whether or not the Proposition 8 trial can be broadcast on YouTube: § 240 and § 422. These two laws don't address same-sex marriage, discrimination, or even access to courts, as you may have expected. Instead, these sections of the California Penal Code make it a crime to either assault or threaten to use violence against another person.

The Justices should take comfort in these laws. They are significant because the opportunity to view what could be a watershed case for gay rights is being prevented by a concern for the safety of witnesses. Ironically, those witnesses do not happen to be the persecuted homosexuals of bygone days, but instead those who now support a state measure to deny same-sex couples the right to marry.


By staying the broadcast of this trial—and impliedly finding that Prop 8 supporters will suffer "irreparable harm" absent a stay—the Supreme Court seems to be advocating curtailment of the press as a means of law enforcement. In a sense, there's a backwards Heckler's Veto at play: the Court is protecting the right of witnesses to speak by limiting the ways in which they will be heard and preventing retaliation by those who will not have heard them. Instead, those witnesses should take the stand knowing they will be given the largest forum possible in which to speak and the strongest protection against those who may retaliate when they do so.

And that retaliation is a big may. Among their reasons for requesting a stay, the petitioners say that "public broadcast can intimidate witnesses who might refuse to testify or alter their stories when they do testify if they fear retribution by someone who may be watching the broadcast." Further, "all of the petitioners' witnesses have expressed concern over the potential public broadcast of trial proceedings and some have stated that they will refuse to testify if the district court goes forward with its plan."

In a controversial case such as this one, no doubt the unpopular speaker is a nervous one. But I'm skeptical that witnesses already committed to testifying will suddenly shy away because of the prospect of video dissemination. Do they not realize that, without a single camera, the San Jose Mercury News is reporting live accounts that include the names of those taking the stand? That special interest groups will be Twittering their testimony as they speak? That there are already websites identifying Prop 8 supporters and where they live? Banning a broadcast, I believe, will not change this. But to allow a broadcast, I'm certain, will further enlighten the debate over same-sex marriage, if not provide insight into our judicial system altogether.
Others have argued that the time may be right to reexamine the place of cameras in federal courtrooms. In a recent post, Eric Goldman discussed the sentiment at a recent conference concerning public broadcast bans and judicial openness issues:
As an example of the anti-broadcasting rules, Federal Rules of Criminal Procedure 53 says:
Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.
This rule is fairly easily applied to Big Media representatives who show up with bulky TV or still cameras and are repeat players known to court administrators. But what does it mean to "broadcast" courtroom proceedings in an era where cheap and ubiquitous technological devices have turned every courtroom audience member into a potential broadcaster?


The illogic of this rule is overwhelming. Is one Twitter post enough? Does it matter if the poster has no followers? What if the posts are impressions and not factual descriptions? More importantly, does it change the analysis if the reporter writes his posts contemporaneously and then uploads them at the breaks or the end of the day? ...it's the exact same content, just posted on a delay.

I don't want to speak for others, but my impression is that none of the conference attendees supported the current categorical ban against courtroom broadcasting. Obviously the journalists and First Amendment types don't like it; but neither did the judges, who would rather have discretion over administrating their courtrooms. Further, a comprehensive recording of trial proceedings could help appellate review as well as future researchers trying to understand a case's context.

There was some hope expressed at the conference that the no-broadcasting rule would be relaxed in the next year or two. In my opinion, the rule has long outlived any usefulness it had.

Odds n Ends Shop

The "Best of 2009" lists seem to be diminishing in number now that we're a couple of weeks into 2010, but there were a few excellent ones posted which deserve a mention. Bruce Carton's SEC year-in-review took a month-by-month approach to the agency's notable actions during 2009. Eric Goldman's outstanding round-up of cyberlaw developments during the past year was a Lettermanesque top ten countdown (and, some might say, nearly as funny as Dave's recent offerings). Kevin Underhill's four-parts list of the best in last year's oddball legal cases should not be missed (part one, part two, part three, and part four) and one would be hard-pressed to argue with his selections for his annual "honors".

In recent weeks, there's been considerable discussion about FindLaw's new "blogs" which have copied the names of some leading blawgs, including Eric Turkewitz' much-admired New York Personal Injury Law Blog, and which offer rudimentary legal information as thin cover for lawyer advertising. Kevin O'Keefe calls these FindLaw blogs "an embarrassment to the legal profession" and writes:
[B]oy has West Publishing, now part of Thomson Reuters, fallen. West, under the FindLaw brand, is now publishing spam law blogs full of little more than mindless crap, all in the name of selling Internet marketing services to unknowing lawyers. Shameless.


Spam blogs are the rage among two bit scheme artists out hustling a buck. Unfortunately West, under the FindLaw brand, has become one these two bit scheme artists.

Let's look at one of FindLaw's new law blogs, The New York Personal Injury Law Blog, and in particular a blog post about a fatal auto crash reported by WCBS News in New York. The blog post is authored by a Emily Grube, a writing specialist, not a lawyer. Grube also authors other spam blogs for FindLaw.

In this blog post FindLaw regurgitates the facts of a local accident, including listing the names of four people killed in the accident. The post goes on to strategically link keywords related to the law, injury, lawyer, and New York to web pages in the FindLaw Internet directory in which lawyers buy listings and ads.

Grube then has the gall to write if you've suffered a personal injury you can contact a New York personal injury lawyer, of course linking the text 'personal injury lawyer' to FindLaw's directory. The post does not allow for comments, nor is there any attempt at creativity or analysis.

Imagine scraping the names of four of someone's loved ones killed in an accident from a news website story for a blog post so you can use the term 'wrongful death.' Your goal being to link the term 'wrongful death' to a FindLaw website page where people may search for injury lawyers who pay to pay to be in the FindLaw directory. Ambulance chasing at its worst. But FindLaw did it.

Imagine scraping the names of four of someone's loved ones killed in an accident from a news website story for a blog post so you can say 'can still sue that man's estate.' Your goal being to link the phrase 'can still sue that man's estate' (also done in the subject post) to a FindLaw website page where people may search for probate lawyers who pay to be in the FindLaw directory. Disgusting. But FindLaw did it.


FindLaw's conduct is beneath everything we have the right to expect from companies serving the legal profession. Rather than conduct itself in a way that improves the image of lawyers and upholds the dignity of our profession, FindLaw gets down in the gutter so it can sell marketing services to lawyers who have not a clue what FindLaw is doing to trash our profession. A profession in which West Publishing once played a proud role.
Mark Bennett doesn't hesitate to put "on notice" the lawyers who, perhaps without much thought, have lent their names and sponsorship to the FindLaw "spam blogs":
Mitchell Sassower is doing it. Marc J. Chase is doing it. Myron Kahn is doing it. Many others are doing it too, but those three are at the top of the list.

What are they doing?

They’re funding FindLaw’s crappy little rip-off... of the name of Eric Turkewitz’s excellent New York Personal Injury Law Blog.


Where does the buck stop? It is not complicated. FindLaw does sleazy things (like publish a dreckblog using the name of Turkewitz’s blog) not for love or even for clicks. It does those things because people are paying it to. FindLaw will stop its sordid practices when the people who throw money at FindLaw stop doing so because of those practices, and not before.
Another phenomenon much-discussed of late has been former lawyers who offer non-legal services to lawyers online but do not disclose the particulars of their (often dishonorable) separation from the profession. Brian Tannebaum has been amongst the leaders "outing" these former lawyers turned marketers; this week, he joined Carolyn Elefant for a podcast to discuss what practicing lawyers' ethical and reporting obligations are when dealing with these marketers and when encountering questionable marketing materials prepared for lawyers.

Criminal law topics and blogs are frequently highlighted in these weekly posts; in part this is because the topics are compelling, but often this is because so many criminal law practitioners are such compelling writers. Examples of both were easily found this week. Mark Bennett and other defense counsel have previously discussed "The Question" — how defense attorneys can defend "guilty" clients. Bennett notes that "The Question" is rooted in misperception:
The Question assumes something that is true only rarely, if ever: that the criminal defense lawyer knows what happened. Some reject the premise. It’s not the criminal defense lawyer’s job to decide whether his client is guilty or not. Even if a client swears to have done the deed, the lawyer can and should doubt—clients lie to us, and do so for the strangest reasons.
Nonetheless, he offers seven good answers to that question, answers based on the Constitution and the Bible and inspired by John Wayne and Martin Luther. Jeff Gamso has answered The Question himself, online and off; this week, he discussed the execution of a client:
They killed him yesterday, Abdullah Sharif Kaazim Mahdi.


It's not that my former client is special - at least, he's not any more special than the others. Oh, there were and are the peculiar facts of his case, but every case has peculiar, particular facts. That's one of the things about the men (and the few women) on death row. They're individuals.

Whether they're factually guilty or not, whether they had competent counsel or not, whether they are the worst of the worst or not, they're individuals. Each has a story distinct from the crime for which he or she has been condemned. And for each there was a particular crime that led to the condemnation.

I write so much about Mahdi because of the particularly shabby way the appeal I took for him failed. But I also write about him because of Charlotte Darwish.

She is the widow of Sohail Darwish, the man Mahdi killed. And it was she, you'll recall from a few days ago, who noted that with the emptiness that will come from his death, there will now be two lives down the drain: Darwish's and Mahdi's.
Gideon's client will survive his (relatively) short sentence, but his counsel is still dissatisfied with what sentence he must endure:
[A]s I sat with him the morning of his entry into this foreign, cruel and neglected world, I could not help but feel like I was witnessing the start of something terrible. I was watching – shepherding, really – a meek lamb into the mouths of cruel, vicious lions. I was complicit in the sacrifice of a simple man; a man who may have done wrong not out of any salacious desire or evil bent of mind, but rather because of that simplicity.

And the confused stare that greeted me when I set about discussing the morning’s act only served to deepen the anguish. His sentence is not long, really. 9 months instead of what could have been decades. “Appropriate in light of the circumstances”, we love to say. And appropriate it might well be. Yet it is 9 months too long.


I know that before he sees the sunlight as a free man again, the world will have gone through several seasons. Winter will pass, leaves and grass will grow, we will all suffer the rigors of maintaining our lawns and we will watch the start of the fall colors, perhaps even hear the first complaint about the impending cold weather again. Some will remark how quickly the summer has passed us.

And one, in particular, will note each interminable passing day, existing in slow motion, a life having changed forever.

There are 270 days to go and I intend to count each one.
For those of us who do not practice criminal law and are fortunate enough not to encounter it as a defendant or victim, the inner workings of the system are oftentimes a near-complete mystery. Norm Pattis shined a light on one aspect of one defendant's trial experience and gave us a bit of insight into the petty games played by those in charge of the criminal justice system:
My client is housed in a correctional institution about a ninety minute drive from the courthouse. Trial begins each day at 10:00 a.m. So to arrive at the courthouse in time, the man is awoken at 3 a.m., transported from one location to another in the state's penal system, and then deposited, exhausted, at the courthouse around 9:30 or so. He is exhausted because the ride back from court each night is just as circuitous as the ride to court. He routinely arrives back at his institution each night at 11 p.m. or so. The other day, he did not get back until 1:00 a.m.

And it's worse. My client is accused of the kidnap, rape and murder of a fifteen-year-old child some 15 years ago. The case is widely reported in the Eastern portion of the state. So when my client arrived at one transhipment point the other night, guards annouced to all that he was a "ripper." His legal papers were confiscated, including papers I want to review with him during breaks in the court day.

My client arrives each day at court exhausted, terrified and without the tools I asked him to prepare for trial. It's wrong to treat him so, and so I brought it to the court's attention to demand relief.

My trial judge is a fair-minded man. We've been at jury selection for four days now; I suspect it will take about seven or eight days to pick the jury. Thus far, I have seen nothing to believe he harbors any animus toward my client. The judge also treats the lawyers well. It is a pleasure to try the case in his courtroom.

But when I brought the conditions of my client's confinement to the court's attention, the judge became strangely impotent. He is unwilling to order the Department of Corrections to provide timely transportation of my client to the courthouse so that he can arrive well rested and able to participate in the proceedings as something other than a zombie. The judge is also unwilling to order that the Department of Corrections give my client his papers so that he has them with him in court.


Somehow, the judge seems unwilling to use a power he has: to order another branch of government to assure conditions such that my client's right to a fair trial is honored not just in the courtroom, but while my client remains in state custody. Placing a human being in an environment in which he is sleep-deprived and threatened amounts to a not so subtle form of torture. The court can and should order that my client's conditions of confinement comport with minimal standards of decency. Yet, somehow, out of deference to a coordinate branch of government, the criminal trial judge is unwilling to act.
In response to Pattis' post, Scott Greenfield wrote:
Norm attributes it to a failure of the separation of powers. From a technical sense, he's obviously correct, but it fails to explain what happens in a judge's head when he's charged with safeguarding a defendant's rights, agrees that he has the right to be awake during his trial, yet refuses to take action to make that happen. There's a tension underlying the nuts and bolts operation that has never been adequately explained.
In subsequent posts, Pattis related that he had prepared a writ to require that his client be provided timely transportation to and from his trial and access to his legal papers, but that it ultimately did not need to be filed. In the matter of Pattis' client, the corrections department relented somewhat, providing him more reasonable transport to trial and (at least on the day of Pattis' follow-on post) leaving him with his legal papers; Pattis noted, however, that the gamesmanship continues:
But just to remind us that there is still a fist in the velvet glove, the Department still plans to return Mr. Leniart to prison each night by means of a circuitous route. He will get direct tranportation only one-way, and not round trip.

The significance of this half-measure? Call it a misguided attempt to be Solomonic.

A member of the Attorney General's office explained to me that the one-way accommodation was done as a courtesy to Judge Stuart Schimelman. Translated: Tell your client to kiss off. We still own his sorry derriere, and we want to make sure he recalls that each night on the way home.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Counterfeit Chic, The Lawyers Weekly, and Paris Odds n Ends Thrift Store.

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