The tradition continues: Frank's interview with Tom Shugart of Insiteview is up and explores a number of thoughtful issues including, "Would anyone even think of getting married now without having lived together?" I can't think of a soul I know who hasn't kicked the tires for at least a year prior to matrimony.

Ed Still, a Washington D.C. lawyer with much experience in government affairs, yesterday declared his independence by starting a blog. Though Votelaw is just getting going, I have the feeling Ed's writing will be enlightening. While in Washington, Ed was the Director of the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law, a nonprofit public interest law firm dedicated to providing legal services to address racial discrimination. He has represented minority citizens in more than 200 cases under the Voting Rights Act and has argued and briefed cases in the U.S. Supreme Court. Ed also knows much about campaign finance reform and the McCain-Feingold bill. Ed practiced for many years in Alabama, serving as general counsel to the Alabama Democratic Party, counsel for several Alabama cities in redistricting matters, and counsel for former Alabama Attorney General Bill Baxley in an election contest. He will be moving/returning to Birmingham, AL later this summer. Ed tells me Rick Klau's recent article encouraged him to take the plunge. From here it appears dad and baby are recovering nicely.

Anyone who has been reading this blog for awhile knows how I feel about Bill Bedsworth, Justice of the California Court of Appeal, Fourth District, Division Three, to wit: any qualms I have about human cloning or "eugenics" could be mostly allayed by assurances of worldwide propagation of the Bedworth gene. This month, Justice Bedsworth's column is about a proposed amendment to California criminal jury instructions, prompted by hippopotomus regulation and jailbreaks. It includes this arch aside about the county Beds and I call home: "I live, after all, in the epicenter of American Libertarianism. I'm in the process of formulating a theory that for every law enacted in California, there is an Orange County Register reader who is violating it-purely as a matter of principle." How I love the smell of amphibious African mammals in the morning. (The one in question resided closer to Chuck, and must have been giving Pongo fits.)

I just learned from our head of professional development at the firm that we have a real treat coming up on our in-house MCLE (Mandatory Continuing Legal Education) schedule. Next Wednesday, July 10, Glenn Otis Brown, Assistant Director of Creative Commons, will be speaking from Noon to 1:00 p.m. in our San Francisco office about "The Future Of Copyright In The 21st Century." (This officially qualifies as V-for-Voluntary CLE, don't you think?) The program also will be video conferenced live in our Oakland, Los Angeles and Century City offices. Non-firm members are welcome but our conference rooms are only so big. So, if you are interested in attending the program in S.F., or one of the video conference sessions in our other offices, please email me and I'll sign folks up on a first come, first-served basis. (I'll be tuning in from L.A.; driving directions are available from the links above.) Of course, you can always read about it here next Wednesday afternoon. I'm told Glenn plans to discuss Creative Commons' efforts to cultivate the public domain, and also share his thoughts on Eldred v. Ashcroft (Eric Eldred is on the Creative Commons Board). Crosby is an approved California MCLE provider, so if you join us and are a California lawyer you will earn an hour of general participatory credit. Plan on arriving early to clear building security.

I was just thinking it had been a long while (ok - an Internet long while) since anyone had pointed me to another blawg, which I define broadly around the author rather than the content; if it's a weblog maintained by someone who calls some aspect of the legal field home, or did at one time and hasn't completely renounced it, it counts. Had the blog tool folks finally decided to bar the doors against the legal scourge? Seems not, Ernie has come to the rescue and found the superbly titled Unbillable Hours and TBP, Esq., a New Jersey lawyer with a great, direct voice, an affinity for Lincoln and Montaigne, and (for example) court hearings that rival The Spanish Inquisition. I look forward to reading and so should you. (Aside: I love Ernie's observation that because Rick Klau blogged it we get to read Rick's article before the print magazine even arrives, and I would add before the ABA has gotten around to posting the current edition of LPM Magazine on its Web site, which still features May/June at the moment.) While saying hello to TBP, I also bid a bittersweet au revoir to Rebeca Delgado, and look forward to what she has in store for us down the road. --Later: Two in one day? Law professor Jeff Cooper as well (thanks, Howard).

Rick Klau writes, about weblogs and firm-wide knowledge management,

Whether you embrace weblogs for their individual benefits or the larger, institutional benefits, one thing is certain: weblogs will become a powerful tool for those in the legal profession that seek ways of more efficiently and intelligently managing their information.

His article appears in this month's ABA Law Practice Management Magazine.

University of Arizona law librarian Leah Sandwell-Weiss wonders how West's print set of unpublished U.S. appellate decisions is selling (since unpublished decisions aren't precedent in her jurisdiction, and in any event are available from other sources), and whether Congress will allocate more tax dollars to courts and libraries if it concludes federal courts should be issuing more published opinons. Howard Bashman questions whether the Legislature can regulate how the Judiciary decides appeals, and I'm enjoying Howard's articles about nonpublication (referenced at the last link), given that I've "grown up" as a lawyer in a jurisdiction where unpublished decisions are the norm and he offers a characteristically well-considered perspective. Now granted - this is an esoteric issue that only an appellate wonk (and a few of you other crazies) could love. But wouldn't you think there'd be a news story by now about last Thursday's congressional hearing? Aren't there reporters who hang out at the House just to relate what goes on there? There's a scheduling note on the Washington Post's "Today In Congress" page, but I haven't seen anything about the hearing itself. (Shoot, you know you've gone niche when you can't even find it on C-SPAN.)

I haven't read the opinion, but it sounds like New York's high court got this right. [Firth v. State, PDF, Via New York Law Journal/Law.com]

A fine site has just turned three. And posted a list of legally preoccupied weblogs for the reading.

Harriet Klausner gave my Dad's book a great review. And if that doesn't warrant links to her site and the current Wired News article about her, I don't know what does. [Via Daypop Top 40]

This William Levin guy is toooo funny. [Via Daypop Top 40]

According to the California Court of Appeals, Fourth District, Division Two, topless dancers at a sports bar where alcohol was served who touched and fondled their bare breasts during dances were not engaged in constitutionally "expressive" speech. (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board of California, June 26, 2002, PDF) This may be the first time a court has been asked to take judicial notice of Michael Jackson's inter-performance crotch grabs [n.24], and the opinion also wryly posits that "gentlemen do not go to topless bars to see 'Swan Lake' or even Twyla Tharp." The court concluded that preventing self-touching during performances in a bar licensed to serve alcohol is no more burdensome on speech than requirements for "pasties" and G-strings, and caressing of the breasts during a performance in such a bar is right out. (You may alternately be relieved or appalled to learn the court left for another day the question of whether manipulating the breast "by pulling on an implanted ring" is subject to like prohibition; see n.25.) Still no pictures. There's always the chance this will go up to the California Supreme Court for further review, so those who prefer "breast snapping" (snapping??) with their cocktails may wish to light a candle.

Catch Donna Wentworth blogging live from the Berkman Center's ILAW program, today through the 5th:

Okay, folks--here I am at ILAW, which, if you haven't tuned in here at Copyfight before and didn't catch the news, means I'm trying out real-time blogging for the first time. The victims, er, subjects of my scribing: Larry Lessig, Jonathan Zittrain, etc. Ah...Larry has just walked up to the podium...

Dan Gillmor's at it too, so there should be much to absorb. (But hey - what about the fireworks??)

It may surprise you to learn that most opinions deciding cases on appeal in the U.S. are unpublished, and in general only published decisions have legal weight as citeable precedent in future cases. This practice allows appellate courts to publish (and thus make law) when this would aid the law's development, while resolving more routine cases in unpublished opinons that help prevent an exponential increase in the number of published opinions, and encourage consistency. Apparently this was news to Congress, and specifically the House Subcommittee on Courts, the Internet and Intellectual Property, which lists "Nonpublication of federal opinions" as an "Oversight Plan" item for the 107th Congress:

During an oversight hearing in the 106th Congress regarding the size and operations of the 9th Circuit, the Subcommittee learned that some opinions in that Circuit are not published. The Circuit’s defense is that it is attempting to implement creative administrative practices that will generate resource savings, and involves only "easy-to-decide" cases for which there is clear and ample precedential authority. Still, the notion of not providing an explanation as to why an affected litigant actually lost a Federal case may not square with fundamental notions of due process. This issue needs to be considered in all judicial circuits.

(The referenced oversight hearing in the 106th Congress involved the findings of the White Commission, recently mentioned by Howard Bashman; for more White Commission links and the Ninth Circuit's official position go here; to read what Crosby appellate group chair Peter Davis had to say to the White Commission go here.) I think the due process concerns cited in the Oversight Plan are overstated, given that litigants in cases resolved with an unpublished opinion also learn why the court ruled as it did; the opinion simply does not become part of the body of citeable case law. (If Congress wants litigants to have access to judicial reasoning, it should be more concerned about per curiam decisions that simply dictate an outcome without further elaboration.) Not everyone thinks appellate courts should have the option of handing down unpublished opinions, and a recent National Law Journal/Law.com article discusses the debate in California over this issue. (See also Nonpublication.com) On June 27, 2002, the House Subcommittee on Courts, the Internet and Intellectual Property held a hearing about unpublished decisions, and the statements of the various witnesses may be accessed here.* According to witness Judge Samuel A. Alito, Jr., and the U.S. Courts press release, the Department of Justice has proposed an amendment to the Federal Rules of Appellate Procedure to provide uniform procedures for citing unpublished decisions. That proposal is scheduled for consideration by the Judicial Conference of the United States in November, 2002. Judge Alito described the proposed amendment to the Subcommittee as follows:

It is deliberately narrow and permits citation to an "unpublished" opinion only if: (1) it directly affects a related case, e.g., by supporting a claim of res judicata or collateral estoppel, or (2) "a party believes that it persuasively addresses a material issue in the appeal, and that no published opinion of the forum court adequately addresses the issue." The proposal also requires that a copy of the "unpublished" opinion be attached to any document in which it is cited. The proposal takes no position on the precedential value of an "unpublished" opinion and does not dictate whether or to what extent a court should designate opinions as "unpublished."

*As Judge Kozinski pointed out to the Subcommittee, use of the term "unpublished" today is anachronistic, and dates back to a time when the only way to access a judicial opinion was through a bound book. Now, both published and unpublished opinions are more widely available, and the terms "published" and "unpublished" may translate more precisely to "precedential" and "nonprecedential," but opinions differ here as well. In many jurisdictions, including California and the Ninth Circuit, unpublished decisions may not be cited to a court in connection with its decision-making process. At the other end of the spectrum, e.g. the D.C. Circuit, some courts permit citation of unpublished opinions "as precedent."