Goldman's Observations

Halloween Spinning Mix

Lisa has a spinning mix for Halloween, consisting of:

Bela Lugosi's Dead - Bauhaus (terrific song)
Monster Mash - Boris Pickett (corny but essential)
Werewolves of London - Warren Zevon
The Devil Went Down to Georgia - Charlie Daniels
Thriller - Michael Jackson
Dead Man's Party - Oingo Boingo (another great song; I'm surprised at how rarely this song makes Halloween mix lists given how topical it is)
The Exorcist (Theme from Tubular Bells)
Somebody's Watching Me - Rockwell
I Want Candy - Bow Wow Wow (this is Lisa being silly)
Overture from Phantom of the Opera
Black Magic Woman - Santana
Requiem: Dies Irae - Mozart (another great Halloween song that doesn't make the mix lists often enough)
Great Balls of Fire - Jerry Lee Lewis
Superstition - Stevie Wonder
I Put A Spell On You - Creedence Clearwater Revival

In some of her spinning classes, she gives out halloween candy as prizes to people who can guess some of the obscure artists represented in this list. Hope you have a happy and safe halloween!

Attorney.org is Latest Phone to Phone Inc. Website to Spam Me

I apologize for the flurry of blog posts on the spam I'm receiving from Phone to Phone Inc. websites, but I've found that lots of folks are experiencing the same problem. I've already criticized Phone to Phone Inc. for their spam promotion of Newlawyer.com (including my SiteJabber post on Newlawyer.com) and Laws.com, but their relentless spamming continues. I remain very impressed that they have so many different marketing executives at Phone to Phone Inc. (unless, of course, they are lying about the sender's identity, which I know they wouldn't do...would they?). Yet, for all of that in-house marketing expertise, apparently none of these executives have successfully convinced Phone to Phone Inc. that their spamming campaign is counterproductive to their long term objectives. Given that, I don't expect my shaming blog post will convince them either, but a lawsuit, Google de-indexing or a properly organized Googlebomb might be a different story. And I think the company might reconsider the quality of guidance it's getting from its marketing executives.

Here's the text of the spam promoting Attorney.org. Uh, no thanks.
_______

from Michael Foti
to egoldman@gmail.com
date Mon, Oct 26, 2009 at 7:31 AM
subject About Your Blog

Dear Eric,

My name is Michael Foti and I am the Executive Director of Marketing for Attorney.org. I am writing you this email to better inform you about our website and in hopes of reaching a mutually beneficial strategic partnership. Attorney.org is one of the top sources of free legal information on the Internet. We provide articles of general and specific information to our visitors regarding common legal issues as well as breaking legal news. In addition to providing information, Attorney.org will be profiling noteworthy attorneys from around the country, attorney generals, district attorneys, and high-ranking local, state, and federal government officials. It is not only a great networking tool for attorneys, but it is also an efficient way to reach out to prospective clients. I believe that your blog can benefit greatly from a new audience of 10,000 unique visitors a month.

We want to list your blog as a source of information on our resources page, and potentially highlight you as a top blog on the Internet in an article on Attorney.org. Our website currently ranks in the top 50 for the anchors "attorney" and "attorneys", and will only continue to move up. I am hoping that in return, you will be able to include a link to Attorney.org somewhere on your blog (preferably as an addition to your blog roll). This would increase the free flow of information and provide an additional source of information for the readers of both our websites.

There is no doubt in my mind that your blog will be a valuable resource to our Attorney.org users. I believe that we can both benefit from this prospective strategic partnership as the increased traffic will drive new users to both our websites. Should you have any questions at all, please do not hesitate to contact me. I have included the link information as well as my contact information below.

Title: Attorney, Attorneys (Attorney.org)
Description: Attorney.org

Michael Foti
Executive Director of Marketing, Legal Network
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:551-795-2806

More Spam from Phone to Phone Inc.--This Time on Behalf of Laws.com

I've been kvetching about the heavy barrage of spam and telemarketing from Newlawyer.com. I haven't previously mentioned that they are an operation of Phone to Phone Inc., which apparently has branched out into spamming for other sites it operates. This week a number of folks complained about being spammed with an email congratulating them as a top 100 law blog. See, e.g., Bob Ambrogi's post. I never received the top 100 honor spam but I was privileged enough to get a different spam from Laws.com:
___

from Partick Coleman
to egoldman@gmail.com
date Wed, Oct 21, 2009 at 12:47 PM
subject Love this site -http://www.ericgoldman.org

Dear Webmaster,

Our website Laws.com is considered one of the largest legal informational database in the world, containing crucial information on jurisdictions and breaking legal news. We have offered this site to the public to increase the FREE flow of information. There is little to be said for the many judicial systems around the country and we strive to offer the information much of the public seeks. The only way to increase the information we offer is to seek out some of the top informational resources online. Your blog seems to be an excellent informational resource and would bring a great resource to our viewing public. We would be pleased to offer your inclusion in Laws.com as a featured blogger, as well as giving you the Laws.com Featured Blogger Badge. This is a prestigious award given to some of the brightest bloggers around the country to recognize their dedication and hard work. You will see the code for the featured blogger badge within this email, please get back to us with your blogs banner so we may make your blog available to our public ASAP. Thanks!, keep up the great work.

[code omitted to ensure that they get no link love here]

Nick Fox
Senior Marketing Executive
Phone to Phone Inc.
1 International Blvd. Suite 203
Mahwah, New Jersey
+1(551) 655 6828
Laws.com
_________

If this is the first time I had heard from this outfit, I simply would have marked it as spam as another link request and then moved on. But because of the Phone to Phone Inc. connection, this just becomes more evidence of Phone to Phone Inc.'s shadiness. Another piece of evidence of their shadiness: the email purported to be from "Partick Coleman" but the sig block says "Nick Fox." Spamming lawyers and bloggers is bad enough, but sloppy spam is inexcusable!

I am now skeptical of all Phone to Phone Inc. operated websites, which (according to Bob) include Laws.com, NewLawyer.com, Attorney.org, LawSchool.org and Docket.com. Great way to build your brand, guys.

Newlawyer.com Spams Me Again (Twice in One Day!)

Newlawyer.com continues to earn my antipathy. You may recall that a few weeks ago, I got spammed by Dominic Sebahia on behalf of Newlawyer.com. At that time, I sent my blog post to Dominic and got the following reply:

"Sorry about it, Sir. But, there was no harm intention to hurt you. I am promising you that no one from our firm will be contacting you in future. Our emails are not spam. We just need co-operation from people like you. We are here to help people. Anyways sir, I am sorry again." (emphasis added)

A broken promise! This morning I got a virtually identical spam from Steven Kim under the subject line "We love your blog" (aww, how sweet, but I'm beginning to wish they loved me a little less):
_________

from Steven Kim
to egoldman@gmail.com
date Mon, Oct 19, 2009 at 9:18 AM
subject We love your blog

Hi,

My name is Steven and I am the Director of Marketing for NewLawyer.com.I found your blog/website interesting. Our blogs are posted in most of the websites. I want to feature you onto our website and that for absolutely free. Our website is the first telelegal portal that connects attorneys to those in need of legal advice through phone to phone consultations via the technology on our website. I would love to feature your blog on NewLawyer as I believe that many of our Lawyers would enjoy your blog. I was hoping to have NewLawyer added to your blog roll if that would be at all possible. I've included some additional information below and if you have any questions feel free to find my contact info below and call me. I look forward to hearing from you.

We would like to list your blog on our site as an additional resource to our users. We believe that your blog would be a great addition. The blog's website would be linked to our page so that our users would be able to click the link and utilize your website and find more information. We believe in the free flow of information and want to provide the best resources for our users. The following information is to reciprocate the link on your own website:

Title: Lawyer, Attorney , Legal Advice , New Lawyer (NewLawyer dot com)

Description: Personal Injury Lawyer, Accident Lawyer, Divorce Lawyer, Attorneys, Legal Information

The following are points of information listed on our website:

* Listings of licensed legal professionals
* Blogging information
* Legal news around the country
* Additional resources for the users to take advantage of.
_________

Interestingly, Dominic's email indicated that he was the director of marketing. So either they have multiple directors of marketing, or Dominic got the sack (wishful thinking) or everyone who uses their template falsely claims to be the director of marketing.

I am beginning to get emails from other folks who are ticked at Newlawyer.com. For example, I recently got the following email:

"I just wanted to write and thank you, post reading your article on NewLawyer.com. They approached me this evening with the standardised letter and I found the whole affair a little dubious. Google flagged up your article and it confirmed my sentiments. As there is nowhere on your site to comment, I am e mailing just to say your post is appreciated."

It just seems inevitable that if Newlawyer.com keeps annoying lawyers, eventually one will turn litigious. You've been warned.

UPDATE: I got a second identical email from Steven Kim about 3 hours later. What will it take to stop their emails?

UPDATE 2: Ryan Gile of Las Vegas Trademark Attorney blog also got nailed with the following message:

Dear Mr. Gile,

My name is Michael Foti and I am the Director of Marketing for a network of legal websites that includes Laws.com, NewLawyer.com, Attorney.org, LawSchool.org, and Docket.com. Here at NewLawyer.com, we are running a campaign to highlight some of the top blawgs on the internet. After reviewing your blog, we'd like to include you, and your blawg, in that feature. Below, I've included the code for you to copy and paste into your source to display your NewLawyer.com Top Legal Resource award button. An extraordinary amount of time and effort goes into making a feature like this possible, so all we ask in return is that you display your award banner prominently for all your readers to see. Please email me once you post it so I can check it out. Thank you and congratulations on being one of the top legal resources on the internet!

[snip]

Michael Foti
Director of Marketing, PhoneToPhone Inc.
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:551-795-2806

UPDATE 3: I posted a critique of Newlawyer.com on SiteJabber.

Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

I have Westlaw alerts set up to notify me when court opinions discuss the major social networking sites. As a result, I am now seeing a steady stream of cases where Facebook or MySpace postings are being used to contradict a litigant's or witness' testimony in a court case. I think the following excerpt from People v. Franco, 2009 WL 3165840 (Cal. App. Ct. Oct. 5, 2009), where a jury convicted the defendant Franco of vehicular manslaughter with gross negligence, exemplifies what I'm seeing:

At about 10:30 a.m. on June 6, 2006, Franco and Henry Chavez were seen racing each other in their Mustang vehicles on the Ventura Freeway, each reaching speeds of approximately 100 miles per hour. Franco applied her brakes while Chavez was directly behind her, causing him to lose control of his vehicle. The vehicle travelled to the other side of the freeway, flipped, and landed in a strawberry field. Chavez was killed. Franco did not stop.

Franco testified that she was driving approximately 75 miles an hour on the freeway when Chavez began tailgating her. When she changed lanes, he followed her. Noticing that her speed had increased, she tapped on her brakes to slow down. Chavez veered to avoid hitting her, then lost control of his vehicle. She saw a plume of dust but kept driving as her boyfriend advised when she called him on her cell phone. The day before the accident, however, Franco had written on her MySpace page, “If you find me on the freeway and you can keep up I have a really bad habit of racing random people.”

I know most of us already know this lesson, but this case reminds us that our statements on social networking sites can and will be used against us. It also reminds us how hard it's becoming to maintain multiple persona--in this case, the in-court persona of being a safe and courteous driver while simultaneously maintaining an alternative persona as a "secret" street racer.

Newlawyer.com: Persistent Telemarketer, and Now a Spammer

If I may, let me propose three rules for avoiding unnecessary trouble:

1) Never tick off a lawyer. They tend to be, you know, litigious by nature.
2) Never tick off a blogger. They tend to be very noisy about their gripes.
3) Never, ever tick off lawyers who also blog. A toxic combination.

Newlawyer.com has pulled off an impressive hat trick of rule violations. I'm not exactly sure I fully understand Newlawyer.com's business, but my superficial review of the site suggests it is some sort of lead generation engine for lawyers.

For some reason, Newlawyer.com has been one of the most aggressive and persistent solicitors of a link exchange I've encountered. Despite the relatively small footprint of my blogs, I get plenty of requests from folks for link exchanges, all of which I categorically turn down. Usually I hit the "report spam" button on Gmail and occasionally I'll write a "no thanks" reply, and either way that ends that. In contrast, I've had more difficulty evading Newlawyer.com because they have telemarketed me at least 6 times, including three phone calls in a 36 hour span earlier this week. I don't understand what kind of boiler room operation they are running, but I can't imagine how calling me 6 times can be cost-justified even if I did agree to the link exchange (which I won't, and you'll notice they aren't getting any link love in this post either). Just how much is a link from my blog worth to them???

I've tried to politely but firmly tell them to buzz off each of the six times they have called me, and each time I get a mea culpa and a broken promise not to keep calling. But I guess in a technical way they have finally honored their promises because today I got a spam from them (see, no phone call!) once again soliciting a link exchange. The email text:
_______

from dominic sebahia
to egoldman@gmail.com
date Fri, Oct 2, 2009 at 7:46 AM
subject i like your blog

Hi,
My name is Dominic and I am the Director of Marketing for NewLawyer.com.I found your blog/website interesting. Our blogs are posted in most of the websites. I want to feature you onto our website and that for absolutely free. Our website is the first telelegal portal that connects attorneys to those in need of legal advice through phone to phone consultations via the technology on our website. I would love to feature your blog on NewLawyer as I believe that many of our Lawyers would enjoy your blog. I was hoping to have NewLawyer added to your blog roll if that would be at all possible. I've included some additional information below and if you have any questions feel free to find my contact info below and call me. I look forward to hearing from you.

Title: Lawyer, Attorney , Legal Advice , New Lawyer (NewLawyer.com)

Description: Personal Injury Lawyer, Accident Lawyer, Divorce Lawyer, Attorneys, Legal Information

URL: http://www.newlawyer.com

The following are points of information listed on our website:

* Listings of licensed legal professionals
* Blogging information
* Legal news around the country
* Additional resources for the users to take advantage of.

Dominic
Director of Marketing, PhoneToPhone Inc.
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:201-663-2565
_______

The silly thing is that if they really believe that linking to my blogs is valuable to their audience, they don't need my permission, and they know it (if for no other reason than I've told them so in a couple of our phone chats). But clearly the flattery and the request to link to me is just a ruse to get me to consider the reciprocal link exchange. Also telling is the reference to my non-existent blogroll (something I've also mentioned to them on the phone).

Now, I'm not a litigious person, so I'm not personally interested in investigating my legal rights against Newlawyer.com for their repeated disregard of my requests. However, in response to my anti-Newlawyer.com Twitter posts, I saw that several other lawyers have been getting bombarded by Newlawyer.com solicitations. It's possible they are not as reticent as I am.

Irrespective of their ultimate legal disposition, it seems like Newlawyer.com is doing a fantastic job of alienating one of its core audiences (lawyers) and building a reputation (but not a good one). Further, should Google get wise to Newlawyer.com's aggressive efforts to generate link exchanges, Newlawyer.com's strategy could very well backfire in a big way.

David Lat Talk Recap

David Lat, the famous and talented blogger from Above the Law, gave a lunchtime talk today at Santa Clara Law entitled "The End of the World as You Know It: Reflections on the Future of the Legal World." (The talk title was almost as long as the talk). I'm a regular reader of Above the Law, so many of his remarks didn't break much ground compared to the themes already fully vetted in gory detail on the blog. Nevertheless, David always gives an entertaining talk filled with pearls of wisdom, so I never pass up a chance to hear him. A recap of his remarks:

David first described three structural changes affecting the legal industry.

1) erosion (not the death) of the billable hour. Clients want good value, and they want predictability over their expenses. Both factors are driving clients and firms to alternative billing arrangements, such as fixed fee projects and all-you-cat-eat retainers.

A comment on this: when I was in-house, I was a fan of fixed-fee arrangements for their budgetability/predictability. As manager of the company's legal expenses, I needed to keep my expenses within my quarterly budget, so fixed-fee deals were very beneficial to their predictability. One thing I absolutely HATED was when I would get hourly time billed months or even years after the actual work was done--and therefore after the quarter when the money was allocated, meaning the charge would hit a subsequent quarter's budget. I won't name names, but one firm sent me a bill for time TWO YEARS after the work was done. I didn't pay it.

For what it's worth, when I do my side gigs, I also prefer to do fixed-fee projects or monthly retainers. I often end up earning a little less than I might if I billed hourly, but (1) I always feel like I get a fair deal, especially when both the client and I take some risk on the outcome, and (2) I like that clients don't calculate the marginal cost of contacting me (i.e., I don't want to talk with my lawyer because it's going to cost $50 for a brief phone call, and I don't know if that call is worth $50), which means they contact me earlier in their processes when my advice is actually more useful.

2) erosion of locksteps, which is moving towards an increase in meritocracy. The challenge with this movement is setting an appropriate valuation on merit. People aren't entirely clear how to assess quality.

3) erosion of stable employment relationships. The days are gone when lawyers would view the decision to join a firm as a two-way lifetime commitment. Now, attorneys (including partners) are moving between firms regularly, practice groups and offices are spinning off, partners are being de-equitized, and of course, the ubiquitous and dreaded layoffs. There is also an increased customization and flexibility of associate positions. As David said, we might see a "gazillion different titles" for attorneys working for a firm--a trend towards "title proliferation."

David then moved to address what these changes mean.

On the downside, there has been a decline of trust in the industry. For example, a fixed-fee arrangement can be driven, in part, by clients distrusting their attorneys' efforts to keep costs down. But there is also a lot of intra-firm distrust.

On the upside, there has been increased independence in the industry, although this may require attorneys to become more entrepreneurial.

David concluded with two pieces of advice:

1) Stay informed about firms and the industry (an admittedly self-serving piece of advice)

2) Network! In times of crisis, relationships are key. He recommended that students get business cards and hand them out freely. He also recommended that students get to know their classmates and professors as part of network-building.

In the Q&A, a student asked him what changes law schools should make. David rattled off a bunch of ideas in quick succession, including:
* make law school two years (a move I wouldn't necessarily oppose but it is inconsistent with current accreditation norms for the foreseeable future)
* make law school cheaper
* fewer law schools
* more training in the field (like articling)

I asked him about the consequences of a movement from focusing on top-of-market compensation for attorneys, which ATL did obsessively in 2007-08, to multiple compensation models. David expressed concern that customized/individualized compensation would give law firms the ability to reduce their overall associate compensation because there is less transparency. At the same time, both he and I wondered if this reduced transparency might have a salutary benefit of defusing the excessive focus on compensation benchmarking, which might allow attorneys to reset their compensation expectations to how much they need to live a comfortable and satisfied life.

What Criteria Should a Start-Up Use When Hiring Its First General Counsel?

I got an email from a student posing this question to me: what criteria should a technology start-up consider when hiring its first in-house general counsel? I can definitely speak from first-hand experience! Here's my response, but I would also welcome your comments and thoughts. Because blog comments are still off, please email them to me and let me know if I can post them publicly.

[Note: I'm assuming a start-up has already correctly decided that it needs to hire a GC. That consideration could be the subject of another whole post.]
___

In addition to the standard criteria used to evaluate lawyers, like legal acumen and professionalism, I suggest the following criteria:

* past in-house experience. There is a learning curve to being in-house, and someone who has done it before will be initially better equipped to handle the speed of a start-up than someone who is trying to learn how to be an in-house counsel on the fly.

* past experience working in a start-up. Start-ups pose unusual demands on lawyers, and some lawyers can't easily adjust. Therefore, someone who has lived through a start-up environment before will be better prepared for the unique challenges. For more on this, see my recap of my first three months at Epinions.

* willingness to be a line contributor. A start-up has a lot of routine commodity legal work. It also needs to build a lot of unsexy internal processes and needs someone to pay attention to little details--simple things like filing contracts or domain name renewals. So a start-up needs a lawyer who isn't afraid to roll up his/her sleeves and do some mundane legal work his/herself as opposed to delegating the work to others or outsourcing the work to outside counsel.

* not an empire-builder. In the same vein, some lawyers want to build up a resource-intensive legal department, and this is the last thing a start-up needs.

* excellent business judgment. Ideally, a GC at a start-up can contribute to the overall management of the company. This requires a person who can balance legal concerns with other business perspectives. At minimum, a start-up GC needs to be able to triage and decide which of the many legal problems on his/her desk need immediate attention, can wait, or can be ignored entirely.

* someone who can grow with the company. Some companies may have idiosyncratic perennial issues where some background expertise will help, but a GC should be able to grow with the company to handle the full range of legal issues the company is likely to encounter over its lifecycle. It could be a mistake to hire a GC with specific technical expertise only in one area that is a hot button for the company today. Once that issue dies down, the company may be stuck with a GC who isn't adaptable to the many other issues that will arise.

* the ability to say--and sell--"no." Start-up companies--even the best-meaning ones--tend to be willing to push legal limits. However, most in-house counsel are socialized to avoid saying "no" if at all possible. A start-up company needs a GC who can say no when it needs to be said. Further, because people don't like to hear "no," a GC needs to be able to get others to listen when he/she says no. This means wielding the N-word wisely but also having the credibility/salesmanship to make "no" stick when it's wielded.

* interest in the company's products. A start-up job is usually fairly demanding, so it really helps if someone is actually interested (or, better yet, passionate) about the company's products and services. That way, they will be more excited to undertake the sometimes-heroic efforts required to help the company succeed.

UPDATE: I got the following from Josh King at Avvo: "I would add two related points: 1) Your new GC must be flexible enough to not only deal with mundane legal work, but also to do all manner of other work that assistants, secretaries or people in other groups did previously for them. I regularly go on beer runs for the office, deliver mail and shop for office supplies, and supporting the office as a regular member of the team is critical to success in startup culture. 2) In addition to having excellent business judgment and the ability to grow with the business - I've never had an in-house role that didn't morph in wildly unpredictable ways within the first 6 months - your GC must be able to match the company's level of risk aversion. It's a lot easier to sell "no" when you're not wringing your hands over every little potential legal risk the company might face."

As I told Josh in a reply email, WRT #1, I used to restock the snacks in the kitchen and sort the mail.

UPDATE 2: I got the additional comment, which I fully agree with:

"The one consideration that's missing from your list -- the most important one, in my view -- is someone with the trust and confidence of the principal business person, usually the CEO. It does not have to exist prior to hiring -- an investor can and often does install someone of their own choosing. But if the GC and the CEO don't have personal trust and confidence -- both ways -- the GC hire will never contribute at the highest level. Trust and confidence -- all the rest can be learned."

Michael Jackson Spinning Mix

Following Michael Jackson's death, Lisa decided that it would be nice to put together a spinning mix commemorating his music. This is what we came up with:

1. Rock With You
2. Blame It On the Boogie
3. Shake Your Body (Down to the Ground)
4. Wanna Be Startin' Somethin'
5. P.Y.T. (Pretty Young Thing)
6. Man In the Mirror
7. When I Think of You (an interlude from Michael's sister Janet)
8. Black or White
9. Fat (this is "Weird Al" Yankovic's spoof of "Bad")
10. Thriller
11. Somebody's Watching Me (from Michael's childhood friend Rockwell; Michael sings prominently in the chorus)
12. I Want You Back
13. Don't Stop 'Til You Get Enough
14. ABC
15. Human Nature
16. Never Can Say Goodbye (of course we have to say goodbye to the singer, but we never can say goodbye to the songs)

Wisconsin Diploma Privilege Ruling Comments--Wiesmueller v. Kosobucki

Today, the Seventh Circuit issued an opinion in Wiesmueller v. Kosobucki, written by Judge Posner. This lawsuit is a class-action challenge to Wisconsin's diploma privilege, which allows graduates of UW Madison and Marquette to become lawyers in Wisconsin without taking a bar exam. Licensed lawyers in some other jurisdictions who have sufficient practice experience can also obtain a Wisconsin law license without taking a Wisconsin bar exam, but everyone else has to take the bar exam to get a Wisconsin license. For example, California does not have reciprocity with Wisconsin, so when I moved to Wisconsin, I would have had to take the Wisconsin bar exam to obtain a Wisconsin license despite my California license and eight years of practice experience.

Many states used to have a diploma privilege, but over the years all of the other states have adopted a bar exam requirement, leaving Wisconsin as the only state still with a diploma privilege.

As I have written before, I am not a fan of the diploma privilege. Its effect was to encourage/pressure Marquette students to stay in Wisconsin rather than exploring other labor markets which required a bar exam that required months of painful and joyless studying without a salary to prepare for. This distortion in out-migration meant that Marquette's reputation was heavily regional because the geographic footprint of its alumni was comparatively limited.

As a professor, the diploma privilege was stressful. Posner writes that Marquette and UW Madison might have "less incentive to spend time drilling them on Wisconsin law than the faculty of most law schools in other states would have” because there is no pressure to prepare students for the bar exam. In fact, the opposite was true. My Marquette colleagues and I were acutely aware of our responsibilities to Wisconsin citizens. We knew that our students could hit the streets the day after graduation and set up a shingle without any bar exam "filter" or even the doctrinal review that most students get from their bar exam preparation course. Knowing that I was the "last stop" in evaluating my students’ mastery of legal doctrines, I felt significant pressure to ensure my students had really mastered the law—perhaps more pressure than I feel today knowing that my current students will have to survive one more major examination of their doctrinal knowledge before they get unleashed onto the public.

In this ruling, the Seventh Circuit revives the legal challenge to the Wisconsin diploma privilege and remanded the case to the district court for more fact-finding. Much of the opinion implicitly espouses a skepticism that UW Madison and Marquette do anything special to teach students Wisconsin law.

I understand this skepticism, but I think it’s unwarranted. From my perspective, Marquette emphasized Wisconsin law plenty. To reinforce this message, Dean Kearney's ridiculously oppressive Faculty Activity Report form always asked us to identify how we incorporated Wisconsin law into our courses. Given that this report was tied to our compensation, I certainly got the message. I included Wisconsin-specific legal doctrines in all of my courses—even my Cyberlaw course, which is not so easy given the borderless nature of the subject material!

To be clear, I didn't emphasize Wisconsin law to the exclusion of national legal principles. After all, some of my students were leaving Wisconsin, and I needed to prepare those students as well. As a result, it's not clear to me if Marquette emphasizes Wisconsin law more than other schools emphasize their local state’s laws. My guess is Marquette's balance between state and national law is fairly similar to many other schools' balance. But we definitely taught Wisconsin law!

Others have already provided some analysis of the opinion. Some worth checking out include:

* Dean Kearney. Among other things, Joe says "I expect that on remand (and any subsequent appeal) the diploma privilege will pass constitutional muster."
* my former colleague Christine Hurt
* State Bar of Wisconsin report

Today's opinion was exciting for another (and wholly unexpected) reason. The opinion provides a lengthy shout-out to a 2006 post from this blog about the Wisconsin diploma privilege. It is always satisfying to be cited by a judge, and it does not happen every day for me. My works have been cited in less than a half-dozen judicial opinions, and I believe this is the first time I've been cited in a federal appellate opinion. And being cited by Judge Posner, one of the most esteemed jurists of our time, is especially gratifying.

Ironically, the blog post in question is hardly one of my most brilliant contributions to the dialogue. It's a simple 3 paragraph post (partially recapping and responding to a video from a local Wisconsin station) that probably took me less than 30 minutes to research and write, compared to some of my thoroughly researched multi-thousand word entries that take over a dozen hours to write. I've experienced this before in the sense that my most heavily trafficked blog post of all time (and thus, one of my most widely read works ever) was a single paragraph blog post I pounded out in less than 60 minutes making a snarky point about a New York state law banning domain name sales to terrorists. It's a fine post for what it is, but I never expected that it would get the attention it got.

These are vivid reminders that we as bloggers need to stand behind every post we make. We never know who is going to read a post (however lightweight it is) and cite it in a federal appellate opinion.

Clemson/US News Ranking Recap

Last week, a Clemson administrator, Catherine Watt, made a presentation about Clemson's obsessive focus on improving its US News rankings, which seemingly drives every aspect of Clemson's decision-making. Some of Clemson's ranking-driven decisions may not be especially controversial and may even be laudable, such efforts to manage class sizes more carefully. Other decisions are potentially controversial, such as the decision to manage admissions by SAT scores--a logical effort to improve student "quality," but potentially inconsistent with Clemson's moral obligations as a land-grant institution. And one allegation was particularly explosive--Inside Higher Ed reported:

Watt said that Clemson officials, in filling out the reputational survey form for presidents, rate "all programs other than Clemson below average," to make the university look better. "And I'm confident my president is not the only one who does that," Watt said.

Some coverage from Watt's presentation:

* A recap of Watt's presentation from Inside Higher Ed

* Clemson's official responses

* A New York Times blog post

* The Associated Press story

* Bob Morse at US News. As usual, he is in denial of how ranked institutions actually respond to US News rankings. He says: "the rankings are not meant to drive the mission or any other strategic goals that a university may be trying to attain." Fair enough, but we have decades of experience to prove that they do exactly that. When will US News internalize that message?

Morse also believes that deliberately downgraded ballots won't affect the result: "U.S. News has safeguards in place to prevent strategic voting from affecting the results. We subtract a few of the highest and lowest scores from respondents before the results are calculated in order to prevent downgrading or upgrading from altering the results." OK, fine, but this check in the system does little to improve my confidence. Let's put it this way: the US News rankings are partially based on institutions voting on their competitors--which, of course, is a natural invitation for gamed voting. Can you imagine any other circumstances where we would deem competitor votes credible?

Google Chrome--Some Comments and Requests for Help

I finally got fed up with Internet Explorer 7. The last straw was the fact that it was choking on Ajax-heavy websites. When I would have the combination of Gmail, Google Calendar and Facebook (or even a subset of these) open as windows, my computer RAM would go into a downward spiral that led to chip overheating, causing the fan to essentially run continuously. This was also destabilizing the windows, leading to at least one browser crash a day.

I decided to try Google Chrome. After all, Google owns almost every aspect of the rest of my life; why not my web browser too? I've been running Chrome for the past few days and so far it has been very stable. I have also had almost no situations of runaway chip usage due to Ajax-intensive sites. So far I'd consider the test a success.

However, Chrome also has some quirky aspects. If you have any thoughts about how to deal with these, I would welcome input.

* my biggest frustration with Chrome is that the default screen size is much smaller than my actual monitor size, causing Chrome to render most pages in microscopic type with an excess of white spaces on the page. I can fix this on an ad hoc basis by "zooming" in, although that sometimes distorts page rendering. Is there a way to permanently boost the default screen display so that every new Chrome window shows web pages larger? I have tried boosting the default font size, but that works inconsistently and often just distorts the page layout without improving readability.

* I miss certain aspects of the Google toolbar. Most obviously, I liked being able to see the PageRank of a site. Is there an easy way to view a site's PageRank in Chrome? I also like Chrome's native spellchecker, but I don't fully trust it is working all the time. Is there a way to force spellchecking on demand?

* There are some buttons in my Movable Type pages (probably Flash; maybe Java) that just don't show up. Any thoughts why? I'm assuming I'm missing some essential plug-in, but I'm not sure what it is or how to get it.

* IE has a feature that automatically tells me if a web page has an RSS feed. Is there an equivalent capability for Chrome?

Mountain View Ranked #4 Best Place to Live

Forbes recently ranked Mountain View as the fourth best place to live among towns under 100,000 people. As the Mountain View View points out, this ranking is despite the magazine's belief that we don't have good restaurants in town, even though we have a vibrant restaurant scene--especially in downtown on Castro Street, where the competition is particularly high. They don't even mention our year-round farmer's market, a huge treat within biking distance.

We used to live in San Carlos before our Wisconsin sojourn, and while I liked San Carlos a lot (especially the Bay views from the hills), Mountain View is even better. There are more services and resources in town, and there are more things to do in the South Bay than in the mid-Peninsula. And I have the apparently typical commute time of 20 minutes--a reverse commute, no less, as I rarely experience much traffic in either direction.

Rebranding Cow Parts to Move More of Them

The New York Times has an expose on the efforts of beef manufacturers to come up with new fancy brand names for cow parts to increase consumer demand for beef. The article starts out:

the nation’s 800,000 cattle ranchers began a radical search for cuts of meat that consumers would buy besides steaks and ground beef.

The idea was simple. Dig around in the carcass and find muscles that, when separated and sliced in a certain way, were tender and tasty enough to be sold as a steak or a roast.

Thus, the article discusses the new "Denver steak" cut of beef, which is going for about 2X the price of ground beef. As one butcher says, “The difference in a good name is worth $3 or $4 a pound."

So if you're tempted by the new beef cuts coming out, just recognize that you are being merchandised to buy rebranded and repackaged cow parts. As the article's title says, "Same Cow, No Matter How You Slice It?"

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Gordy Davidson on Succeeding as a Business Lawyer

Last week, I went to a lunchtime student-oriented talk by Gordon Davidson, chair of Silicon Valley firm Fenwick & West, on the topic of "The Art of Being a Business Lawyer and the Changing Business of Law." Gordy laid out 10 tips for being an effective counselor (most of this post is my impression of his talk in my words, not verbatim statements by him):

1) "If "This answer must be wrong," reexamine your assumptions." The goal should be solving client problems, not necessarily answering the questions a client asks.

2) "Do the numbers; the answers might just appear." Lawyers are afraid of numbers, but sometimes crunching the numbers can reveal an easy solution. For example, if you calculate that a particular provision isn't worth very much financially, it should be easy to compromise.

3) "Recognize revenue (and expense) when you see it." Many law students don't know that received cash, recognizable revenue and invoiced amounts are all very different things.

4) "Look for real options; they have real value you can calculate."

5) "Learn the art of negotiation."

6) "Keep your eye on the business reality." Clients can be enamored with their ideas; sometimes a lawyer has to be the voice of reason to point out when they are being unrealistic.

7) "Business sense is as important as legal skill." Clients pay for a lawyer's judgment, not just the lawyer's knowledge of legal rules.

8) "Look for solutions, not just risk."

9) "Save "no" for when you really mean it."

10) "Think about the business consequences of your legal advice and how you communicate it." If your advice requires your client to do things you think the client isn't likely to do, you need to find another solution.

None of these points should be unfamiliar to experienced business lawyers, but Gordy did a great job of providing students with a pragmatic view of life as a business lawyer.

Gordy then turned to a discussion about the changing business of law. He discussed that clients won't pay for training new lawyers. In engagement letters, clients are restricting the firm's use of first and second year associates. Some clients are refusing to pay for any lawyer research, expecting that either lawyers know the answer off the top of their head or will do the necessary research to get up to speed on his/her own dime.

Gordy talked about the firm's fixed-fee arrangement with Cisco to handle all of Cisco's M&A work for a single periodic fee--an arrangement that is working well because Cisco's needs are mostly predictable. Indeed, Gordy said that he would like to do more arrangements like this but clients are reluctant to do so.

The fixed fee arrangement is part of a broader trend away from the billable hour. The alternative fee arrangements can have the benefit of encouraging the lawyer to assess the value of incremental tasks using the same approach the client would, i.e., is the extra effort a good allocation of scarce resources? However, some people think that eliminating the billable hour will reduce lawyer stress, but Gordy doesn't agree. From his perspective, the stress comes from a lawyer's desire to deliver good service to the client, and this desire is the same whether or not the billing arrangement is hourly or on a fixed fee basis.

He discussed the efforts of lawyers to work smarter and avoid duplicative tasks within a firm. He said Fenwick is building out internal wikis to capture the firm's knowledge in a more organized fashion. For example, some underemployed associates are being asked to build out the firm's wiki on cleantech. He also thinks that technology will, over time, reduce a firm's partner-to-associate ratio/leverage.

Finally, he mentioned Legal OnRamp as a marketing tool. It sounds like the firm's experience hasn't been that encouraging. He said the firm had posted about a dozen items to Legal OnRamp but these had not translated into prospective client inquiries.