The Common Scold

The Common Scold is named after a cause of action that originated in Pilgrim days, when meddlesome, argumentative, opinionated women who displeased the Puritan elders were punished by a brisk dunk in the local pond. Believe it or not, the tort lasted until 1972, when State v. Palendrano, 120 N.J. Super. 336, 293 A.2d 747 (N.J.Super.L., Jul 13, 1972) pretty much put it to rest. But the thought of those feisty women, not afraid of a little cold water, has always cheered me up and inspired me. I first used the moniker as the name of my humor column at the University of San Francisco School of Law many moons ago, and revive it now for this blawg!



JudgePublish or/and perish? Should associates blog anonymously to protect their careers? That's the question posed by Stephanie Francis Ward in the Dec. issue of the ABA Journal. She profiles a handful of associates who discuss the pros and cons of being opinionated, including Matthew Lerner, who recently revealed his ID as the promulgator of nylaw. He says it's great -- and that he's had more attention with the blog than he did writing case summaries for the firm website.

But other high-profile bloggers hide behind their html, including the "Article III Groupie who provides federal judiciary gossip on Underneath Their Robes.  She has no plans to disrobe her A3G ID.

December 10, 2004 | Permalink


I continue to believe that law students and associates (and all weblogging lawyers) would be better off assuming that they will eventually be identified, and that they should therefore write only what they are willing to have attributed to themselves (including saying only things that an identified attorney can say ethically about their clients, partners, etc.). Weblogging nonymously is also more interesting, as is pseudo-eponymous weblogging.

Posted by: David Giacalone | Dec 10, 2004 4:05:58 PM

I haven't been able to access the referenced article. But the primary reason that I see for blogging anonymously is that it enables lawyers to give more details about cases they're handling without breaching confidentiality. There are many stories that I'd love to share with my readers about solo practice but I fear that by sharing, they might put my clients at a disadvantage with our opponents or the judge. Thus, I can certainly understand why "Underneath Their Robes" posts anonymously - because not all judges have as good a sense of humor as, for example, UTR's loyal reader Judge Kozinski - and thus, might penalize UTR or take her less seriously were she to have a case before their bench. On the other hand, I think it's sad that someone like Anonymous Lawyer must remain anonymous and feels that he can't honestly share his opinions on biglaw life without revealing his identity. I think that attaching a name to those complaints would give them far more credibility and go a long way towards a movement to actually fix the problems he identifies.

Posted by: Carolyn Elefant | Dec 12, 2004 1:37:31 PM

I agree that blogging puts attorneys, not just associates, at risk. When I write down an opinion and publish it to the world, I am creating a standard which I will have to hold up. The ‘risk’ however is implicit in all forms of free speech. For those with something to say and the fearlessness to say it, blogs provide an opportunity that did not exist previously. So definitely go into it with your eyes open.

I have no problems with revealing or hiding identities as appropriate. The opinions stated are more important than the identity most of the time anyway.

The key here is that opinions which were rarely expressed previously for a lack of venue are now being memorialized for the world to see. The first amendment right to speech will become more important as this new forum for discussion continues to take hold. I think it is great news for the legal profession that the black cloak of the law is pulled back and the practice of law is revealed to the world in a more meaningful way than was ever possible before.

Together, we can not only practice law, but change the way law is practiced. For more info on billing practices and hiring law firms, see http://tcattorney.typepad.com/tc/2004/10/finding_smart_c.html#comments This site is a great example of the power of blogging.... Enrico Schaefer, Attorney

Posted by: Traverse Legal | Dec 15, 2004 12:29:25 PM

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