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Saturday, November 30, 2002

Vegas Licks

Looks like my blog-papa's been mainlining Mick and the boys. I'll be doing the same in t-minus 3 hours, 45 minutes or so at the MGM. (Sorry, Lifehouse; SC/Notre Dame calls.) Here's the rundown on last night's show at the Hard Rock's 1,700-person venue, The Joint.

Head Flotsam

tink____tink____tink____tink (Are you watching 24?) [Later] 24 trivia: both Penny Johnson Jerald (Sherry Palmer) and Dennis Haysbert (David Palmer) were in Clint Eastwood's 1997 Absolute Power.

Friday, November 29, 2002


Mickey Kaus recently called weblogs wormholes to other perspectives. In honor of this insight, the Thanksgiving holiday and Bag and Baggage's birthday, it occurred to me that for everything that makes me thankful, there is someone, somewhere, who would have quite a different reaction. The following is a tribute to those other subjective evaluations of experience. Though the sentiments expressed here are precisely the opposite of my own, in many instances -- as in many things -- the other side has a certain inexplicable charm. I am pissed off Frank Paynter made me realize people might enjoy reading about legal stuff now and then on a weblog. (Frank Paynter is pissed off he tops this list.) I am pissed off that despite the fact my husband understands I am acquainted with an Angry Clam, a Dark Goddess of Replevin, a Burningbird, a Wonderchicken, a Waddling Thunder, a Superhyperdemonchild and a Doc, he never once has alluded in this context to the Seven Dwarves. I am pissed off Gelson's holiday dinners are so delectable yet so reasonably priced. I am pissed off my instructor never makes me do the toe stand, but encourages me to ease down into it when my knees are feeling okay. I am pissed off my garage is purple. (Just the inside. But still.) I am pissed off the Stones are still rocking. I am pissed off all these bloggers I have never met play such a pivotal role in my daily well being. I am pissed off all these bloggers I actually have met are even cooler and more impressive in person than on the Web. I am pissed off so many people in so many parts of the legal field have decided writing a weblog is a good idea. I am pissed off there's Google. I am pissed off Chris Locke keeps the etorphine on hand to administer to RageBoy "as needed."

Wednesday, November 27, 2002

Minutes til "B-Day"

I am at the office fine tuning one of those briefs that, with any luck, makes sense and is well-written. [Turn of phrase yanked shamelessly from Howard] This means I'll be up and still chugging lukewarm coffee (the machines are off at this hour) when Bag and Baggage turns ONE at midnight. I can think of nothing more appropriate than to commemorate this blog's first year on Thanksgiving. In the meantime, I'm so pleased to see some really top-notch women featured in the New York Times, on blogging yet. And really stunned to see my former-Property-professor-turned-Boalt-Hall-Dean resigning in the midst of a sexual harassment investigation. [via Howard] Although I attended law school during the cretaceous period, if memory serves Professor Dwyer was a fine looking fellow but his chances of seriously erring in judgment with any of my classmates went out the window with his lecture on riparian rights.

Who Says Blogs Don't Lead To Legal Work?

So now that AKMA's spilled the beans, you may have a better appreciation of why my nose is buried in briefing this week...

Tuesday, November 26, 2002


I'm in the midst of some brief writing for the next couple of days, so now seemed like a good time to catch up on some additions to the Bag and Baggage blawg roll, and other bits of news. Computer science professor Ed Felton from Princeton writes about the intersection of law and technology at Freedom To Tinker. Marquette law student Nathan has the good sense to read Mr./Agent Harris. Yale law student Nick Daum had the similar good sense to start blogging at/after Revenge Of The Blog. More Yale rats James, Tim and the Kitchen Cabinet crew came my way during the conference. (That's it on updates for now; more to come soon from the Blawg Ring.) In other news, Michael Wasylik will be repeat panelizing in March at SXSW Interactive, and shares the link of the conference blog. The event looks superb, so no, it's not too early to start hyping. In closing -- does anyone know whether Christy Turlington is a Federalist?

Monday, November 25, 2002

Unpacking Pavlovich

If you've been playing along at home, it shouldn't come as any great surprise that I think the California Supreme Court reached the right decision in today's Pavlovich opinion (PDF). Now that I've made it through the 21-page majority opinion and 30-page dissent, a number of things seem worthy of mention, in no particular order.
  • The opinion provides a good example of why it is dangerous to try to gauge the outcome of an appeal based on the questions asked at oral argument (many of which, in this instance, you can review here, based on my attempt to blog them at the time).
  • The opinion leaves open a question that follows on from the reasoning of the Pennsylvania District Court, Western District, in the Zippo Manufacturing case. The California Supreme Court arrived at today's decision in part because the Web site in question "has no interactive features." The Zippo case adopted a sliding scale approach to the question of interactivity, with one end of the spectrum occupied by sites clearly transacting business over the Internet, and the other end occupied by "passive" sites that simply provide information. A "middle ground is occupied by interactive Web sites where a user can exchange information with the host computer." That "middle ground" probably does not include what widely is thought of as "e-commerce," which would tip toward the "highly interactive" end of the scale. It could, however, encompass things like discussion, chat and comment. Personally, I don't think the jurisdictional analysis in Pavlovich would have required a different outcome if the LiVid site had included, for example, a generic discussion board (although it's not difficult to envision scenarios where particular discussion activity could bear on an analysis of specific jurisdiction). Based on the reasoning here and in other cases, however, a court might conclude that discussion, chat and comment are relevant in assessing purposeful availment. (Interestingly, the site did include the ability to download DeCSS, but this does not seem to have slowed the Court down.)
  • Also important to the outcome was the fact that because DVD CCA did not begin administering licenses to CSS technology until after Pavlovich's alleged wrongdoing took place, Pavlovich "could not have known that his tortious conduct would harm DVD CCA in California when the misappropriated code was first posted." Presumably if the status of the plaintiff as rights-holder at the time of the alleged wrongful activity had been otherwise, the Court might well have exercised jurisdiction.
  • The opinion preserves a role for industry-wide harm in the personal jurisdiction analysis:
    A defendant's knowledge that his tortious conduct may harm industries centered in California is undoubtedly relevant to any determination of personal jurisdiction and may support a finding of jurisdiction. We merely hold that this knowledge alone is insufficient to establish express aiming at the forum as required by the effects test.
  • Justice Baxter's dissent sounds an excellent policy point, that it may be unfair and/or not encompassed within "the basic principles of long-arm jurisdiction" to require an injured plaintiff "to pursue a multiplicity of individual suits against each defendant in his or her separate domicile." Somewhat less persuasive on these facts is the dissent's assertion that the burden on the defendant to litigate in a jurisdiction far removed from his domicile "does not otherwise suggest any unusual hardship."
  • Pavlovich Press Coverage

    Thus far, Google News yields reports from c | net, The Seattle Post-Intelligencer and The Sarasota Herald-Tribune. [Later] And here's The Mercury News. [Later] And here's The Recorder. [via Howard Bashman]

    Still Reading...

    Consistent with Halley's observation that weblogs, among other things, let you watch brains at work, I'm still reading the Pavlovich decision, but wanted to point out this was a 4-3 squeaker, with the majority authored by Justice Brown and concurred in by Justices Kennard, Werdegar and Moreno, and the dissent authored by Justice Baxter (remember the "rocket" question at oral argument?) and concurred in by Justices George and Chin. Here's a taste from the introduction of the majority opinion:
    Not surprisingly, the so-called Internet revolution has spawned a host of new legal issues as courts have struggled to apply traditional legal frameworks to this new communication medium. Today, we join this struggle and consider the impact of the Internet on the determination of personal jurisdiction. In this case, a California court exercised personal jurisdiction over a defendant based on a posting on an Internet Web site. Under the particular facts of this case, we conclude the court's exercise of jurisdiction was improper.

    Congratulations, Allonn and Ornah Levy

    The California Supreme Court today reversed the Court of Appeal's Pavlovich decision (PDF) on Internet jurisdiction issues. More here once I've had the chance to digest the Supreme Court's lengthy opinion (PDF).

    DRM Discussions

    InfoWorld reports on DRM at Comdex, and, last July (yes, those Audible downloads have a way of backing up on me...) Seth Godin penned this cogent Memo To: Media Monopolists for Fast Company: "You can whine, lobby, sue, and then cripple your product so that it can't be copied. Or, maybe, just maybe, you can stop thinking like a monopolist long enough to find new business models, new markets, and new strategic plans."

    "Not If, But How"

    The Law Marketing Portal has rounded up 100 Law Firm Branding Tag Lines, most of which resonate as some form of craven haiku. The NTLF blog comments on omissions (no permalink; 11/19/02). [Later] The links to the Law Marketing Portal site initially posted here are behaving very strangely, but you can read the mottos at the NTLF blog. See also the SPAM Haiku archive and book ("Tranquil Reflections on Luncheon Loaf").

    Equal Opportunity Undergarment Links

    Speaking of skivvies, Google's "I'm Feeling Lucky" boxers also are well worth a mention. [via The Screen Savers] --And see Kevin Heller's comment to the post below...

    A Classic

    If you have a CafePress store, do be sure to include the Classic Thong among your offerings. (Different search, similar results.) [via Frank's pointer to rathergood, which does -- and is.]

    Share Alike

    Judge Stephen Wilson of the California District Court, Central District, will hear jurisdictional arguments today in the Kazaa case. [via c | net] In the event the Judge finds sufficient contacts with the U.S. for the case to continue in this court, c | net is reporting it will be consolidated with Streamcast (Morpheus) and Grokster disputes already pending before Judge Wilson. Looking for tunes to add to your favorite P2P network or device for free and without losing sleep (albeit crises of conscience on this front are nothing if not in short supply)? Amazon's music download pages are a decent resource, with many files in MP3 format, and interesting artists like Thievery Corporation and Zero 7. Janis Ian releases MP3s of her tunes on her site regularly.

    Sunday, November 24, 2002


    It was bad enough when Christy Turlington uttered the words "yoga butt" in Time Magazine. Now there's a YogaButt Video and Ball...

    Digital Packrat

    Researcher and pioneer Gordon Bell is working on the mother of all personal knowledge management projects, My Life In Bits. While the storage, organization and data durability kinks are many, he points out that the first step is to "just save it." [via The Screen Savers]

    Creative Commons LicenseUnless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in the Bag and Baggage weblog and any related pages, including the weblog's archives, is licensed under a Creative Commons License.