Monday, February 26, 2007

Blawg Review #97

Welcome to another edition of Blawg Review -- where bloggers come for their legal news every Monday. It's good to be hosting another edition of Blawg Review at the Health Care Law Blog. However, it's even better to be done.

First off, thanks to all who submitted posts to this edition. There was wonderful material to work from. Much of the information that I regularly consume online is related to my practice as a health lawyer and I enjoy the opportunity to step outside of that specialty and be a part of a larger legal discussion going on in the blogosphere.

As an active participant in the blogosphere and Live Web I am constantly amazed by the knowledge, skills and imagination of those who create electronic content (written, audio and video) for public consumption. Not just lawyers -- but every profession imaginable. The volume of information conveyed online today through electronic social networking is mind boggling. How much you say? Technorati is now tracking approximately 69.4 million blogs with 175,000 new blogs created per day. The world live web is being updated with 1.6 million new posts per day, for an average of 18 per second. Could Johannes Guttenberg have ever imagined this phenomenal transformation in communication.

Lately I've been thinking and posting more about the impact that blogging and web 2.0 is having on the health care industry. It is a time of change for the health care industry. Likewise, I think many of you will agree that fundamental changes are occurring in the delivery of legal services as a result of the rise of the new social networking technology movement. For more of what this may mean for health care check out some of my materials from a presentation I did to introduce health lawyers to the basics of Health Care Blogging and Web Health 2.0. [Note: I'd also suggest watching (if you haven't already) "Web 2.0 . . . The Machine is Us/ing Us," created by Michael Wesch, Assistant Professor of Anthropology Kansas State University. The video visually explaining Web 2.0 and how today's digital technology influences human interaction.]

To begin with let's highlight a few of the submissions that reflect some of these fundamental technology changes which we are all experiencing as a result of the social networking phenomenon, the availability of new technology tools and the shift toward living our lives out on the web.

Bruce MacEwen gives us a tour of the The Law Library of the Future? at Adam Smith, Esq showing us all the differences that exist within today's law firms. From the traditionalists/silent generation to the Boomers to theGenXers to the Millennials.

Online political social networking hits full speed at My.BarackObama.com covered by Susan Cartier Liebel at Marketing Genius - the "Obama Principle" and suggests that lawyers have something to learn from observing the process as it unfolds.

Mike Madison and Denise Howell will be hosting a public conference call today, February 26 at 1:00 p.m. PST to gain insight on ownership considerations and issues of governance and liability that are critical to the creation, maintenance and long term health of business communities (corporate use of Web 2.0 technologies). The call is being held to help them prepare for the upcoming Community 2.0 Conference.

Overlawyered looks at the liability of curb cuts and wheelchairs vs. jaywalkers in Jury blames hit-run death on wheelchair curb cut (fascinating to me is the comment discussion and the use of Yahoo Maps to support user comments on whether the jury made the right decision).

Brent Trout at Blawg IT touts the ideas of Seth Godin and the application of his concepts to the practice of law in his post Law Firms - Small is the New Big.

Scott Felsenthal at The Legal Scoop, a new law student collaborative blog by three students from Tennessee law schools, provides a look at the what's happening across campuses as a result of students living their lives out online in Facebook and MySpace- Quickly Becoming Breeding Grounds For Disciplinary Actions and Arrests. If you or your kids are on the edge of becoming the next one hit wonder, don't miss reading So you want to be a Recording Artist . . . by another of The Legal Scoop team members, Tim Bishop. David Lat examines a recent survey at UVA Law School and my question is -- what about Tennessee law schools?

Watch and read the post on Prosecutorial Indiscretion (or the lack thereof) at Sui Generis--a New York law blog. She looks at a Virginia "rage road" incident that resulted in an ice throwing felony conviction. The video clip also includes a discussion of a series of posts on the newly promulgated lawyer advertising rules in New York which forbid the use of a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter." The post series uses actual video clips of lawyer advertising clips from various jurisdictions to demonstrate application of the new rules.

Dmitriy Kruglyak founder of Trusted.MD reports on two articles appearing in the East Bay Business Times. One about Kaiser's ongoing encounters with blogging and social media and the other examining how hospital administrators and executives should use blogs.

On February 8, 2007, Wendy Seltzer in In My First YouTube: Super Bowl Highlights or Lowlights conducted an experiment to determine whether copyright overreach would trump her fair use rights when exercised to teach about copyright overreach. Five days later she received the DMCA Takedown Complaint courtesy of the NFL and YouTube.

If you're an RSS fan don't miss Justia Federal Court Filings which allows you to see new filings by state, court or subject matter. Reported at Robert Ambrogi's Lawsites and The IllinoisTrial Practice Weblog.

And now on with the rest of the submissions for this week's Blawg Review.

The most highly talked about topic this past week was the Supreme Court's ruling on punitive damage awards in Philip Morris USA v. Williams. SCOTUSBLOG reports that the 5-4 decision found that it is "unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit -- that is 'strangers to the litigation'". The Court held that punishing a defendant for harming persons who are not before the court amounted to a taking of property from the defendant without due process of law. EricTurkewitz of New York Personal Injury Law Blog covers the decision in Court Tosses Philip Morris Verdict, And Further Confuses Punitive Damages Issue and Philip Morris Punitive Damage Decision - Why It Was Good For Plaintiffs indicating that the decision requires judges to now tell the jury in a punitive damage case that they can consider the reprehensibility of the defendant's conduct toward others, but not the harm to them. The South Carolina Appellate Law Blog says the decision creates an unworkable standard in After Philip Morris: What can a jury consider for punitive damages purposes? SCOTUS sets an unworkable standard and sets out some options that trial judges have when considering evidence of harms to non-parties. More on the decision from Law Prof on the Loose with Tobacco Verdict Goes Up In Smoke.

Bill Watkins at South Carolina Appellate Law Blog looks at a the interplay of the Controlled Substance Act and a recent South Carolina senate bill proposing that Marijuana be considered a prescription drug in South Carolina lawmakers review bill to legalize marijuana for medical use.

Ilya Somin at The Volokh Conspiracy disagrees with a recent Slate column that contended that split decisions make bad law and, in the specific context of the current Supreme Court, undermine the Chief Justice's admirable goal to promote unanimity amongst the justices.

The HR Lawyer's Blog looks at the continuing trends on alternative billing arrangements in Alternative Billing - Clients Want It - Big Law Firms Hate It.The post highlights that a recent survey of corporate counsel indicate that 90% of outside counsel still resist the suggestion to consider alternative fee arrangements.

Kevin Jon Heller at Opinio Juris covers a running battle between Glenn Reynolds and Paul Campos, law professor at University of Colorado, over one of Instapundit's posts arguing that selective assassination of Iranian nuclear scientists is both legal and advisable. Eugene Volokh also weighs-in with some worthwhile comments.

Charles Green questions the "legal tip" included in Business Week's SmallBiz magazine which suggests that retail sales slips should include a written statement to protect the interests of your business in his post From Our Legal Experts... posted at Trust Matters.

David Maister gives interesting insight into his experience as a juror in a 5 day trial involving a pastor, a parishioner and $80,000 in Jury Duty posted at Passion, People and Principles. He offers some simple lessons for litigators to remember.

Charlie Weis, Notre Dame's football coach, appears headed back for seconds in his trial over an allegedly botched gastric bypass surgery. Quizlaw has an entertaining post about the events that lead to the mistrial. Only one can speculate what would have happened if the physicians chose not to respond.

Are you an avid T.J. Maxx or Marshalls shopper? If so, check out Law Practice Management's post Identity Theft Begins with Access to Your Information discussing on of the latest electronic data breaches. The post offers practical advice on how to better protect your personal information in this growing age where everything is electronic.

Overlawyered writes about Dr. Vatura who saved the life of a 400 pound man thrown from a motorcycle in a high speed accident in Treating the morbidly obese (redux). Due to his obesity it was impossible to stabilize the man with typical cervical spinal precautions and as a result he ended up a quadriplegic. One of my favorite medical bloggers, Kevin, M.D., covers this same topic and what he believes the impact these events have everyday on doctors.

For another perspective on the impact of medical malpractice on physicians, consider hospital CEO and blogger Paul Levy's recent post The Shame of Malpractice Lawsuits at Running a Hospital. Also, Kevin, M.D. mentions an interesting issue coming before the Virginia Supreme Court of Appeals in his post Should academic physicians be protected against malpractice suits? Don't miss Quizlaw's Wacko gets Jacko'd providing evidence that you can be sued for almost anything -- the family of a 73 year old woman is suing Michael Jackson and Marian Medical Center claiming that the hospital's VIP treatment of Jackson resulted in the death of the woman.

PointofLaw Forum links to David Rossmiller's Insurance Coverage Law Blog which covered Mississippi Attorney General Hood's press conference call where State Farm was called "a cult," "decadent" and "robber barons".Rossmiller questions much of what was said during the call and makes a good point -- if you think that that much of the company why would you want them to stay and provide insurance to citizens of Mississippi.

If you regularly draft contract language you shouldn't miss That" and "Which" by Ken Adams at AdamsDrafting who looks at the confusion over the distinction between that and which and a New York case, AIU Insurance Co. V. Robert Plan Corp. that considered the differences.

Ben D. Manevitz who writes IP Notions looks at Mike Carroll's "Fixing Fair Use" made at the Some Modest Proposals 03 Conference in Fair Use and Fee Shifting and adds a suggestion that the proposal needs to be given teeth by tying the payment of attorneys feed to the process.

A reason to let your associates get sleep from Davit Lat at Above the Law.

Mike Madison at madisonian.net reports in IP and Insurance on a breakthrough partnership among insurers, the Standford Fair Use Project and a network of practitioners willing to discount their rates to documentary filmmakers to lower the cost of insurance for documentary filmmakers who rely on fair use doctrine for portions of their content. Lessig Blog has additional details of the announcement.

This week Eugene Volokh notes that Ohioans are presumptively protected from being fired for off employer property (and presumably off duty and lawful) possession of guns. The decision in Plona v. UPS involved the termination of a UPS employee who was found to have a handgun in his vehicle wile at work. The gun was disassembled, unloaded and locked in his care in a public access parking lot used by UPS employees and customers of UPS. The court held that the public policy permitting Ohio citizens the right to bear arms under the Ohio constitution was enough to form the basis of a wrongful termination claim. More on the Second Amendment from Jacob Sullum who notes that the FAA has revised its thinking on its justification for its ban on carrying firearms aboard spaceships.

My Hosting Blawg Review #97 post mentioned Kevin O'Keefe's post about the term "blawg" and the fact that it is still facing an uphill road at being recognized and understood. The post relates that Wikipedia editors have again dropped the term "blawg" (but, Blawging is still listed but redirets to Blog). Another Wikipedia term that I have referenced in the past has also been dropped by the Wikipedia editors -- Live Web. Hmmmm . . . is a Wiki-conspira-edia going on?

David A. Giacalone at f/k/a says, "move over Anonymous Lawyer," and suggests I introduce Blawg Review readers to BabyBarista, an anonymously written account of the "pupillage" of a pupile barrister in London. May I suggest TidySum and Scandal. At shlep Giacalone provides a link to Babysitting and the Law in his post about when can you leave your children at home?

In SOX Slaps Lawyers Leon Gettler looks at the tough rules of Sarbanes-Oxley the the impact on attorneys. Suddenly lawyers are going down like nine pins because of the crackdown on backdating. Likewise, the Wired GC discusses how the perceptions of the general counsel's responsibility are changing in the wake of the backdating scandals.

Ann Althouse considers the wisdom of Eric Alterman's passing suggestion that the blogosphere needs a council of bloggers to police what's being said on the most controversial subjects.

Kaimipono Wenger at Concurring Opinions looks at Anna Nicole Smith's will as a real-life law school exam.

That's all for this edition. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

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