Blawg Review #202

by Carl Gardner on March 9, 2009

Blawg Review is the weekly blog carnival for law blogs – I’m pleased and honoured to be today’s host.

The big legal news globally last week was the International Criminal Court’s indictment of Sudanese President Omar al-Bashir for war crimes and crimes against humanity in Darfur. CCJHR Blog brought us the news, while at International Law Observer, Jernej Letnar Černič doubted the ICC’s pretrial chamber’s approach to the standard of proof on the potential genocide charge. Kevin Jon Heller at Opinio Juris also criticised its findings on genocide in a series of posts that were analytical, sober and at times scathing.

In the United States, an important hearing took place in the Supreme Court of California about “Proposition 8″, the amendment to the state constitution aimed at outlawing gay marriage, overturning the Court’s decision from last year, and which was approved by voters at the same time as they elected Barack Obama President last year. The American Constitution Society Blog and the WSJ Law Blog recapped the arguments, as did Dick Carpenter at Volokh Conspiracy who thinks the proposition will stand – but so will the gay marriages concluded before the amendment was made. It’s amazing to a non-American that this case involves both the former California Governor Jerry Brown (now Attorney General) and Bill Clinton’s old adversary, Congress’s former independent counsel Ken Starr, both of whom disappeared from the European radar some years ago.

German blawgers were concerned about the fairness of two very different “outings”. Udo Vetter at lawblog.de felt doubly bad about his neighbour being exposed as a Neonazi (German/Googlish) in a flyer put through his door; and told us about the socialist member of the Bundestag Jörg Tauss (German/Googlish), suspected of child porn offences, who claims he was in possession of the stuff in connection with his official duties (German/Googlish). Thomas Stadler at internet-law.de criticised (German/Googlish) the insinuating tone of media reporting mentioning Tauss’s previous opposition to aspects of proposed anti-porn legislation. Meanwhile, the French blawger Jules at Diner’s Room wrote (French/Googlish) about two decisions of the European Court of Human Rights permitting the censoring of photographs to help the fight against smoking. I’m pleased to say he got in a mention of Justice minister Rachida Dati (French/Googlish) and her lovely ring.

Elsewhere in Europe, Eoin O’Dell at cearta.ie wondered about the lawfulness of compulsory judicial retirement and reported on the European Court of Justice’s judgment in the Age Concern case on retirement ages generally. At Diritto 2.0 Ernesto Belisario is doing something about Italian politicians’ ignorance of the web (Italian/Googlish) and the Austrian law blogger Hans Peter Lehofer had a go at the editor of Austria’s official gazette (German/Googlish) and reported (in English this time) on the European Court of Justice’s UTECA ruling on Spanish film finance law at contentandcarrier.

In South Africa, a big story has been the early release on parole of Schabir Shaik, convicted fraudster and crony of the country’s next President Jacob Zuma. The story was pursued last week by Pierre De Vos at Constitutionally Speaking. He wrote on Monday of Zuma’s talk about pardoning Shaik; the next day after Zuma’s pressure had done the trick, he attacked the release using satisfyingly dark irony; and then on Wednesday he had a go at the “correctional services” minister’s confused statement about the medical grounds for the release. It’s good stuff, this, strong writing about real abuse in a country where proper constitutional values clearly still need to be fought for.

Constitutional law is a big thing for me, so it was good to read Danielle Citron at Concurring Opinions on the German Constitutional Court’s ruling against e-voting. Andis Kaulins discussed the case too, at Law Pundit; there seems to be a growing fashion in Europe for old-style pencil and paper elections. John C. Bouck reckoned Canada should put the colonial past behind it and adopt a fresh written constitution, and Thémis told us about proposed constitutional changes in France (French/Googlish). Kathleen A. Bergin at the Faculty Lounge was thinking about the establishment clause of the US Constitution, the importance of time and the Summum case: I agree with her that this emerging theory of “constitutional estoppel” looks a nonsense cooked up to get rid of inconvenient challenges. For the same reasons, I’m doubtful about an American court’s approach to snowmobiles, as reported by Jodie L. Hill at Downtown Lawyer. Mario García at Ultima Instancia weighed the merits of various electoral systems (Spanish/Googlish): he thinks the disproportionate British system has given Gordon Brown too much power. I’ll tell you what, Mario, it’s even more dramatic than you think: he only needs a 51% vote to change our constitution. I reckon that’s a good thing myself, though.

Back in the States, last week’s Blawg Review host, Barry Barnett at Blawgletter, told us about the Wyeth v Levine case in the US Supreme Court, about whether claims for personal injury caused by a medicine are “pre-empted” by the fact that its labelling contains warnings approved by the drug regulator, the FDA. At SCOTUS Blog there was analysis from Lyle Denniston while Eric Turkewitz at the NYPI Law Blog wrote on what the case shows about the power of blogging. Also in the Supreme Court was the Caperton case about elected judges, bias and recusal. Jonathan Adler at Volokh thinks the case is about free speech as much as bias, while over at SCOTUS Blog Lyle Denniston was at it again with analysis of the case, and we saw the transcript of the arguments. Analysis too from Ruthann Robson at the Constitutional Law Prof Blog.

Turning to IP, Lawrence Lessig wrote about the launch of FairShare, which sounds like another great innovation in the way the web deals with intellectual property. Howard Knopf at Excess Copyright discussed negotiations on a Canada-EU trade agreement, and the IP rules that may be insisted on by Europe, but detrimental to Canada. Spicy IP reckoned Microsoft may be FAT headed in its recent action in the US courts about the use of elements of Linux, while the Brazilian new technology blawg DNT reported on Finland’s new “Nokia” law (Portuguese/Googlish). Finally Sarah Dale-Harris at Davis LLP’s blog wrote about a short delay in implementing the controversial section 92A of New Zealand’s Copyright Amendment Act.

There was a micro-breakthrough last week for British legal blogging: the Solicitor General Vera Baird QC MP commented on a blog. Otherwise the big issue was the really extremely generous pension of Sir Fred Goodwin, the former head of the Royal Bank of Scotland – now 70% owned by Her Majesty’s Government – and whether any of it can be clawed back for the taxpayer. The minister, Labour deputy leader and lawyer Harriet Harman had said he shouldn’t count on getting it. Usefully Employed argued that her words were empty, and Michael Scutt at Jobsworth agreed. Liadnan weighed in heavily against Ms. Harman’s implied threat while Robert Goddard at Corporate Law and Governance joined the chorus of disapproval, also citing human rights and protection of property. Bystander at The Magistrate’s Blog had a dig at the marvellous Harriet. I was on my own.

Now, a sample from the UK blawgosphere last week. Michael at Law Actually told us about his not very legal law space while John Flood at Random Academic Thoughts reviewed the UK TV’s version of Law and Order. Oedipus Lex wrote about the Convention on Modern Liberty and the Employment Tribunal Claims blog gave advice on suing the judge and pronouncing “TUPE”. Two-pea sounds American, I think. Iain Nisbet at Absolvitor reported that charges of racially aggravated harassment are being brought following a pro-Palestinian protest, and Mike Dailly at VoxPopLex had a right go at the new Scottish culture minister. At the excellent housing law blog Nearly Legal, Dave wrote about the House of Lords case of Ahmad; Nick Holmes at Binary Law pondered the future law book; and Pink Tape addressed that rarely-mentioned subject, domestic violence against men. William Flack wanted to know your thoughts on lawyers’ involvement with direct action protests – and about Dave’s eviction. If after all this, you’d like to learn a bit more about the law of England and Wales, look at transblawg where Margaret Marks posted part 5 of her introduction. I’ve covered England, Scotland and Ireland in this Blawg Review, and would like to have shown you something Welsh, but LawMinx was away from her keyboard last week.

I love podcasts, so before I virtually leave Britain I want to mention two good ones produced by blawgers here last week. John Bolch of Family Lore interviewed Natasha Phillips, a lawyer turned activist, campaigner, researcher and writer on the family law system. And, in the week he introduced us to his brother, the centre-left-right Rex Charon MP, Charon QC interviewed Liberty’s Head of Legal, James Welch as part of his series of podcasts on civil liberties at Insite Law Magazine. He challenged James about Liberty’s audible silence about Geert Wilders’s exclusion from the UK – I thought James’s answer astonishing and revealing about Liberty’s approach to freedom of expression.

I must mention two more interesting Asian blogs while I have a chance. In the Philippines, “Sassy Lawyer” Connie Veneracion, a writer who’s obviously great fun on law and other things, couldn’t make up her mind about the Right to Reply Bill. In India, V. Venkatesan at Law and Other Things wrote on Monday about a panel discussion on religion, the media and India’s blasphemy law; B.N. Harish wrote at the same blog about the crushing stats on backlogs in India’s High Courts. Two good Australian Blawgs also deserve a mention. Legal Eagle at SkepticLawyer (she’s the one based in Melbourne) wrote about a couple of American cases including that of “Octomom”, and the right to a child versus the rights of the child. And it was International Women’s Day yesterday of course. While I’m trying to mainstream this Blawg Review (that’s my defence at any rate), Stephen Page wrote at the Australian Divorce Blog about a strengthening of women’s rights in Australia.

Talking of women’s rights, Naomi Norberg at IntLawGrrrls wrote about ending violence against women, and Russian Law reported the amazing news that a woman prevented from becoming an underground train driver has lost her sex discrimination claim in the Russian Supreme Court while the judgment, and the reasons for it, remain secret. Hasn’t the Supreme Court heard of the requirement for public pronouncement of judgment in Article 6 of the European Convention on Human Rights? At Constitutional Law Prof Blog Nereissa L. Smith took apart an often-heard argument about parental rights and abortion; and at Feminist Law Professors Tony Infanti wrote about a constitutional challenge to the federal Defence of Marriage Act and the way it fails to recognise lesbian and gay couples for tax purposes.

I’m against doocing and any form of persecution of bloggers, so I was interested in the tale told by Ben Sheffner at Copyrights and Campaigns about Kathy Kelly’s threats to a lawyer and blogger about supposed professional ethics violations. Here’s the wronged blogger Patrick “Patterico” Frey’s post revealing her complaint. Scott Greenfield at Simple Justice reckons she Streisanded out, but I agree with him that Kelly’s reasonably graceful withdrawal does her credit. I think it entitles her to exit wiser and without looking too silly.

Looking at criminal law, Spanish blawger José Ramón Chaves García at contencioso.es started by wondering whether fines should be reduced during tough economic times (Spanish/Googlish), before considering the psycho-human rights aspects of discounted and aggravated fines, and ending with a fine poetic flourish. Brilliant stuff, José, brilliant! Gideon at A Public Defender expressed opposition to a bill to abolish the death penalty in Connecticut, without opposing abolition. Get it? He’s right, actually: if you’re going to abolish, for heaven’s sake just abolish. If you think the death penalty is wrong, surely you think every currently pending execution should be prevented.

Finally, a handful of interesting posts I can’t leave you unlinked to. If you’re concerned that pollution in China will make your climate change activism a waste of time – don’t worry! Marxism is the answer, as we learn from China Environmental Law Blog. Ralf Grahn in Helsinki gave us an at-a glance guide to those Lisbon treaty ratifications while Jordan Furlong at Law21 looked at a British report but was doubtful about the idea of separate regulation for the biggest firms. Dan Hull at What About Paris? wrote about the London Stone, something I’ve managed to miss somehow in (gosh!) twenty years of living in London; John Bolch (another mention for him) gave an English family lawyer’s thoughts on Rihanna’s injunction against Chris Brown; Tatiana von Tauber at the Legal Satyricon worried about America’s mental beauty; Howard Wasserman at PrawfsBlawg reviewed Sandra Day O’Connor’s turn on The Daily Show; and I have to link again to Scott Greenfield and the sad story of one lawyer and his pens.

My last blawg link is another second one, to Eric Turkewitz at the NYPI Law Blog: I loved his caustic critique of New York’s no-fault law and the undue importance of the way doctors’ reports are written. You really feel his passion and frustration boiling off the page in this urgent call for reform.

Just before I leave: if you’ve enjoyed looking at the global blawgosphere, Charon’s international resources may help you as much as they helped me. He’s produced a Netvibes page covering the main UK blawgs and Pageflakes full of feeds from US blawgs, Canadian blawgs and blawgs from Australia, New Zealand, Scotland and Ireland.

I hope you liked Blawg Review #202; and I think you should expect something quite different next week from the notorious Geeklawyer. He tells me he’s having technical difficulties at the moment – but fear not! All will be well in time for Blawg Review #203.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

{ 11 comments… read them below or add one }

1 John Bolch March 9, 2009 at 10:12

Excellent, Carl – and thanks for the mentions! Now take a well-earned rest…

2 Natasha Phillips March 9, 2009 at 10:27

Dear Carl,

This was such an interesting round up, thank you. I learned a great deal and really enjoyed the whistle stop tour of the blogs around the world and the tasty trail of legal morsels that were up for grabs along the way!

Thank you again and kind regards,
Natasha

3 John Flood March 9, 2009 at 11:35

Great and global roundup, and I also thank you for the generous mention!

4 jailhouselawyer March 9, 2009 at 14:25

Erm…?

You have appeared to have overlooked the issues of constitutional importance in the Prisoners Votes Case on my blog in your round up of the law blawgs…

5 NL March 9, 2009 at 14:54

Great stuff, Carl, and thanks (on behalf of Dave) for the link. Seriously impressive glove trotting here.

6 Eric Turkewitz March 9, 2009 at 15:59

So that’s what is going on in the rest of the world.

Great review.

7 downtown lawyer March 9, 2009 at 16:02

This was a great read. Thanks for including one of my posts.

8 Usefully Employed March 9, 2009 at 19:56

Great read Carl, thanks for the mention!

9 Head of Legal March 10, 2009 at 00:15

Thanks, everyone – I’m glad you enjoyed it. Sorry, John – you can’t cover everything.

And I think you may be my first US commenters, Eric and Jodie (Downtown…) – welcome to HoL!

10 jailhouselawyer March 10, 2009 at 17:54

Carl: “Sorry, John – you can’t cover everything”.

Correction, I can, but you can’t:-)

Seriously, my solicitor (who I taught prison law) seems to feel he needs to seek some free advice from a constitutional law expert. I have already told him that he need not look further than me. I have been instructing him for almost 20 years. Still, old habits die hard, and it is difficult for him to remember that I don’t seek his advice or that of counsel because I know more than them on the subject. I will humour him if you are up for it. Do you fancy giving it a go?

11 Rick March 11, 2009 at 14:26

Carl, what’s your take on Sharon Shoesmith’s Employment Tribunal claim?

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