Blawg Review #88

Welcome to Blawg Review #88, where you can sit back while some of the masters of the form tickle the ivories.  (Since the number of this edition matches the number of keys on a piano, you’ll have to bear with me through some musical musings; I trust they will not be too painful.)

To kick it all off I’ll invoke the one and only Duke Ellington, master pianist, composer and bandleader, who once said of performing: "It’s like an act of murder, you play with intent to commit something."

This performance begins with a note on a law regarding an instrument that may be used for acts of murder or acts of self-defense.  David Kopel at The Volokh Conspiracy comments on the Ohio rollback of gun control laws.  In other firearms news, see Concurring Opinions for Dave Hoffman’s musings on the Second Amendment — and hunting permit volume in Pennsylvania.

Speaking of guns, Chico Marx always looked like he was shooting the piano keys while he played, but he was probably thinking about gambling, one of his other passions. 

The plaintiff bar seems to be gambling in a calculated way on the Vioxx litigation, according to Ted Frank, writing at Point of Law.  He observes that a recent decision is

the fifth jury victory for Merck in six cases, but, of course, when juries are allowed to award tens of millions of damages, trial lawyers can profitably bring meritless cases if juries get it wrong 15% of the time.

Chico was also an early authority on the reliability of eyewitness accounts, noting: "Well, who you gonna believe, me or your own eyes?" 

It is sometimes hard for anybody to believe the tangled web we lawyers weave, and I think the Marx Brothers would have had a field day with the web of health care regulation, which is my area of specialty. 

This past week, Health Affairs Blog posted a piece on the largest-scale health care issue that will likely face the new Congress: the "Medicare trigger" — a sleeper provision in the Medicare Modernization Act of 2003 which will require massive rearranging of priorities once Medicare budget growth hits certain markers that it will almost certainly hit in the next couple of years.

One contributor to breaking the bank will likely be Congress’ own persistent unwillingness to stick to previously mandated cuts in Medicare physician reimbursement or come up with a better system, as I noted last week here at HealthBlawg.

Michael Cassidy’s Med Law Blog highlights this and other statutory and regulatory developments in a roundup of major Medicare changes for 2007.

Art Tatum, master of improvisation, liked to say that "there is no such thing as a wrong note."  Failing to take its cue from Tatum, Iran’s Foreign Ministry certainly struck one in hosting a Holocaust deniers conference, discussed by Jack Balkin in his post, Dialectic of Enlightenment, on Balkinization.  At Is That Legal?, Eric Muller wrote the Ministry an open letter about his family’s proof of the Holocaust — the death of his great uncle. 

Many people escape discord and persecution — ethnic, religious, economic — around the world by coming to the U.S., often with the hope of having their children born here and thus obtaining U.S. citizenship.  This "birthright" was under attack in the last Congress.  Peter Spiro, at Opinio Juris, tells us that this effort is Another Welcome Casualty of the Midterm Elections.

Coming to the U.S. has been characterized by some as coming in from the cold.  The words of the pop song, Baby, It’s Cold Outside, however, have been turned on their heads by recent weather.  Susan Smith’s Environmental Law Prof Blog says "Baby, It’s Hot Around Here." 

One of the hottest pianists and singers around, Ray Charles, said: "I never wanted to be famous. I only wanted to be great."  Seeking greatness is admirable; however, as David Maister observes regarding the "size matters" school of corporate management, companies aggressively seeking growth may be less than admirable.  Those seeking greatness through patenting their inventions may have their lives made a bit easier thanks to Google Patent Search (the latest from the Googleplex), says Brett Trout at Blawg IT.  See also Sabrina Pacifici’s beSpacific.  Those seeking greatness by contributing to the store of freely shared software under a GNU general public license (GPL) rather than by developing proprietary works are indebted to Eben Moglen, the key defender

of the GPL.  See Tim Lee’s The Technology Liberation Front for more.

Warren Buffett is probably more famous than he ever wanted to be.  Ted Frank, writing at Overlawyered, is wondering whether Berkshire Hathaway’s acquisition of a med-mal insurer from GE is likely to succeed because (a) GE sold at a fire-sale price, (b) liability caps are coming or (c) Buffett’s the wizard.   

Herbie Hancock, Buddhist and jazz icon, has mastered several different musical idioms.  As he once said, "Since time is a continuum, the moment is always different, so the music is always different."

Marcy Peek, writing at Concurring Opinions, posits that we should consider the continuum-bending exercise of putting "juniority" ahead of "seniority."

Some might say that our government takes a dangerously relativistic view of the world, particularly in defining terrorism and terrorist organizations; that it may even be, so to speak, tone deaf.  A First Amendment case involving contributions to a charitable organization that ended up on the U.S. government’s list of who’s been naughty may be heard by the Supremes.  See Eugene Volokh’s post on Rahmani v. U.S. (cert. pending) at The Volokh Conspiracy. 

In the realm of corporate governance, transparency and regulation, there’s been talk about some relaxation of Sarbanes-Oxley requirements recently, as noted at GRC Excellence.  Leon Gettler observes, regarding SOX in the U.S., and other regulatory schemes elsewhere in the world:

When things go wrong, the usual response from politicians is to bring in laws to restore public trust. But it never works. In fact, tough laws only make things worse.

There’s a link to an article of his published Down Under in print at SOX First.

When flying, you might hope to hear the music of the spheres — unless, of course, you’re at the boundary between Vermont and federal jurisdictions and trying to nurse an infant on a commercial passenger jet.  In that case, you may precipitate the Vermont Human Rights Commission being asked to consider whether the federal Airlines Deregulation Act trumps Vermont’s human rights law.  Check out The Mommy Blawg’s Vermont breastfeeding update. 

Another rupture in the continuum this past week surrounds a trademark battle over an individual’s name, which Ann Bartow was riffing on at Feminist Law Professors.

"Sometimes it’s to your advantage for people to think you’re crazy."  Those were words for the iconoclastic Thelonious Monk to live by, but not most lawyers.  Some clients seem to think playing the psycho card is to their advantage, but Kenneth Adams, at Adams Drafting, thinks that an agreement permitting a party to act "in its sole discretion" is no excuse for the dissonant improvisation of unreasonable behavior.  Accordingly, he offers some pointers on drafting contract provisions invoking a party’s discretion.

Congress and the Federal health care regulatory agencies sometimes appear to be irrational to the outside observer.  My favorite judicial quote of all time picks up on this:

There can be no doubt but that the statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase.

Rehabilitation Association of Virginia, Inc. v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994).  Despite, or perhaps because of, this sort of characterization, the courts often leave the agencies alone in interpreting and implementing their rules.  This week, however, Greg Piche’, at Holland & Hart’s Health Care Law Blog, writes about a recent Second Circuit decision that actually struck down the implementation of a Medicare reimbursement rule regarding payment for implantation of medical devices as arbitrary and capricious. 

Blawgers and other bloggers sometime find that other people think they’re crazy ("playin’ different tunes," to quote a dinosaur of rock); occasionally they’re sued for defamation — sometimes even for comments posted by third parties.  For the latest on blog owner do’s and don’ts, liability for defamation by commenter, and blogging liability insurance, see Blogs and the Law at Jen Burke’s Transcending Gender.

Bloggers stick together in order to find others who don’t think they’re nuts.  An old friend of mine likes to say that people stick together in smaller and smaller affinity groups (her favorite example of a hypothetical small group is left-handed Jewish lesbian redheaded Cuban feminists).  The first Healthcare Blogging Summit, organized by Dmitry Kruglyak of The Medical Blog Network took place recently in D.C.  While the world of healthcare blogging or the world of blawging may represent a veritable orchestra full of virtuosos (virtuosi?), health blawging seems to be limited to a band of a dozen or so soloists, woodshedding, as it were.  One of those who summitted was Bob Coffield, a health blawger who posted some post-summit updates in his pre-summit Health Care Law Blog post. 

I’ll leave you with one my favorite pianist photographs, Arnold Newman’s portrait of Igor Stravinsky.  Stravinsky’s music is famously complex, some of it atonal, but one of his views on composition reveals a simple fortuity inherent in the work:  "One has a nose. The nose scents and it chooses. An artist is simply a kind of pig snouting truffles."

Have a good week, and in the spirit of the musicians who inspired this week’s edition of Blawg Review, I wish you luck in balancing intentionality and chance in your work and life.

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

— David Harlow