OK, I've had it. As I mentioned briefly last month, writing this blog over the last two and a half years has simply been too much work. And if its work, it isn't fun. I've hit the wall. I can Twitter much easier, since I'm limited to only 140 characters anyway.

So rather than let the blog die a slow death, after putting so much effort into it, I'm going to sell it while I still have a readership. Any new blogger that comes in can easily replace me, and with a bit of savvy, do it in a more efficient manner and with only a modicum of decent writing. (Potential buyers can see some of my more popular posts here.)

I'm auctioning it on eBay, and starting the bidding at $1,000,000. Yes, I know some folks will think that is high, but let me explain a bit. If the new owner decides to monetize this blog by using it in an advertorial manner, then s/he only has to get a couple of decent cases to make the investment pay off. If done right, it could pay for itself in as little as a year or so. I therefore believe the actual sale price could be significantly higher.

How to monetize this blog to make it pay? That's easy, as I've been reading search engine optimization sites recently and those SEO sites are loaded with good tips. I've also canvassed a few other personal injury blogs and picked up some pointers there. Here are some suggestions on how to improve this site to make the investment more than worthwhile:

1. Use a lot of keywords in the subject heading. Google loves keywords. Sticking keywords someplace at the start of every new post, like this, is great for Google. I generally suck at this part, as you can see if you look back in my archives. It's easy to make this blog better with that tip alone.
   
   
2. Load the actual post with lots of keywords. Similar to the first one, and a technique I should have used in the past. I look back on some old posts and am stunned to see posts that have few, if any, of the keywords necessary to make the blog jump to the top of Google rankings. When people looking for a personal injury attorney see the same phrase repeated over and over and over they will know they have struck gold.
   
   
3. Cover all the local accidents as soon as you can. Want to know a secret about people in accidents? They often Google themselves to see if the accident was in the local papers. If you cover the accident on this blog, victims will likely find you and hopefully hire you. If you simply cut and past stories from local papers you are almost guaranteed to have an instant client base. And if you do it with style, you can look classy, too. Especially if you use the name of the victim (and this is another fine example) in the subject heading. Just make sure to put a reminder at the end of every post, "If you or a loved one have been injured, call us at this number..."
   
   
4. Outsource the actual writing. This is an easy way to create good content with little effort. Students, interns, paralegals and others can easily scoop up stories from the web to post under your name, or hire this guy. The cost is minimal, and in fact, can be lowered still more if it is simply outsourced to India. The blunt reality is this: No one will know. You can still practice law, see your family, watch TV and have time left over for eating and sleeping. Unlike me.
   
   
5. It's a great place to talk about yourself. By continually recounting various cases, clients and appearances from your past, you'll be able to strut your victories for other lawyers and potential clients to see. And since it is your forum, no one can stop you.
   
   
6. Link frequently to your website. This is another technique I've been lax about, but a new owner can really optimize here. Remember that Google loves inbound links. So when you use keywords in a post, which should be often, you also use them as anchor text for a link back to your web site, like this. Google sees these repeated links and the website skyrockets to the top of search listings. It's easy. Just four links per post, and just five posts per week gives you 1,000 inbound links per year!
   
   
7. Get added to link farms. Since my blog has had high visibility, I get a lot of email about linking opportunities. I've never taken full advantage of that as you can see by my limited blogroll, which is obviously a mistake. But since Google loves those inbound links you can improve your SEO exponentially in mere weeks.
   
   
8. Attorney search company opportunities. Once again, due to having a high profile blog, I get a ton of opportunities that come in via email and phone, with various attorney search companies offering me exclusive rights on their service to personal injury leads in my geographic area. They are calling me ahead of others because of this blog. And only the best ones contact me. I know this because they tell me so.
   
   
9. Run Google Ads on the blog. It's no secret that many people look for lawyers on the web. Why waste valuable real estate with content when the whole idea of blogging is to make money? Lots of Google ads equals lots of money.
   
   
10. Edit out the names and links I've provided to others in my area. It was probably a mistake for me to mention or link to others in my geographical area, as I could lose a potential client to them. The beauty of a blog is that you can go back and edit old posts. With a few minutes work, those names and links can be vaporized.
    

That's it, I'm exhausted. My wife will finally get a husband back and my kids will see their dad once this blog is disposed of. And I'll actually get a chance, perhaps, to play with the dog and go running again. I've simply run out of words for this forum. It's time to hang up my keyboard, except for the bits I can put up on my Twitter account.

So this is really a spectacular opportunity for someone who wants more cases and can use an established web presence for their benefit. Of course, if you have all the business you can handle then don't bother. Not everyone wants more cases.

Labels: April 1

The US Supreme Court denied certiorari today in the fantasy baseball case of Major League Baseball Advanced Media v. CBC Distribution. That dispute had formed the basis of my April Fools Day hoax, claiming that cert had been granted but that a dispute arose when three members of the Court recused themselves due to participation in a fantasy league, and two others did not.

The suit revolved around the use of real statistics generated by players at the major league level for use in fantasy leagues, when major league baseball claimed that those that wanted to use the stats needed to pay a licensing fee, while plaintiff CBC, which runs a service for fantasy players, claimed no such fee was needed under the First Amendment. Since the Eighth Circuit Court of Appeals had sided with CBC, Major League Baseball has now definitively lost the case.

The hoax, and the underlying legal and baseball issues of recusal that inspired it, was the subject of a second post: Deconstructing a Fantasy (And Who Was Duped?) The brief order did not mention anyone recusing themselves for participating in a fantasy baseball league.

The dispute over when court members should recuse themselves, however, remains unresolved.

See also: Sam Alito Talkin' Baseball (and Antitrust): (Tony Mauro @ Blog of Legal Times)

Labels: April 1, First Amendment, Judiciary

Maybe fantasies weren't meant to be deconstructed. But in both baseball and the law such analysis takes place all the time.

So here goes. The idea for the April 1 post on the Supreme Court granting cert in the fantasy baseball case -- with three justices recusing themselves and two not -- stems from some very real issues and a very real case.

First: Recusals can be huge. In the set-up for the post two weeks ago (see, Recusal In the High Court...For Fantasy Baseball?) I noted all the commentary in the legal blogosphere over it, as Chief Justice Roberts stepped aside in Warner-Lambert v. Kent, resulting in a 4-4 split, and therefore no decision. The real world application of such a split was discussed at the Drug and Device Law blog a month ago.

Second: Not only is it a problem with a justice not being replaced if s/he steps aside, but the issue of when a justice should step aside has been hotly debated, with both Scalia and Alito previously in the cross-fire.

Third: Enter, stage right, a real case about fantasy baseball that could wind up in the high court, as a cert petition was filed.

Fourth: We know that some of the justices are baseball fans (or at least we know Alito and Stevens are, as the links at my posts were real).

So that brings us to the "what if" factor of a justice having a minor financial interest in the outcome. If s/he happens to belong to a fantasy league, in the example I used, there will be a financial interest, albeit a small one. But the ethics law doesn't draw any lines as to how much. And that means different judges can decide different ways, and the decision is unreviewable. (Or it means that another statute exists that I don't know about, but what the hell, I had a good time anyway.)

So far as I was concerned, the stars were aligned for a posting on the subject that might make a few folks think about the issue, and perhaps for a bit of fun, zing a few people who weren't paying close attention to the clues at the end that it wasn't 100% on the level. (Of course, with a petition for cert pending, you never know...)

Who was duped on a day everyone was looking out for hoaxes? Among the honorees...

• New York Magazine (See the law section of their round-up and the update);
  
• San Diego Tribune;
• DeadSpin (Big time sports blog);
• Baseball Think Factory (who might want to rethink its middle name, given the clues);
• Sports Law Blog (Who took the post down, which makes me think they won't be inviting me to any games);
• PrawfsBlog (Post also taken down. Note to self, don't expect a holiday card)
• A couple of radio stations out in California reportedly ran the story (see comments here);
• [Updated 5/29/08] American Lawyer Magazine ran the story as true in its monthly (Ted Frank @ Overlawyered with the reprint in Turkewitz April Fools Joke Still Paying Dividends)
  

The three biggest clues, which I buried near the bottom under the theory that many people wouldn't bother to read the whole thing after getting the gist of it:

• Siddartha "Sidd" Finch making a comeback;
• The name of the league is "Articles for Deletion (AFD also being the acronym for April Fools Day);
• And Justice Stevens' co-owner was "Ernie Thayer." Ernest Thayer wrote Casey at the Bat. And the Stevens/Thayer team, I wrote, "drafted the much despised Jimmy Blake." Who is Jimmy Blake? You can ask this commenter at Volokh, or read a portion of the immortal poem, as the crowd despairs that their savior isn't even in the on deck circle:
  

  But Flynn preceded Casey, as did also Jimmy Blake,
  And the former was a lulu and the latter was a cake;
  So upon that stricken multitude grim melancholy sat,
  For there seemed but little chance of Casey's getting to the bat.
  
  But Flynn let drive a single, to the wonderment of all,
  And Blake, the much despis-ed, tore the cover off the ball;
  And when the dust had lifted, and the men saw what had occurred,
  There was Jimmy safe at second and Flynn a-hugging third.

The set-up from two weeks ago, by the way, had a hidden message in it. But you have to read the first letter of each paragraph to find it.

My thanks to David Lat (who was in on the joke) for using his considerable megaphone at Above the Law by broadcasting it first thing in the morning, and to Scott Greenfield for vetting an early draft and making up lies about me.

Also, stories and reviews:

• The ABAJournal interviewed me and ran a story today on it: Reports of Supreme Court Fantasy Baseball Case Are Wildly Exaggerated
• If I get any more reviews like this, you can bet I will link to them (Complete Defeasance), calling it "the mother of all April Fool's Day gags"
  
• April Fool's Day: Joke Report (TNABACG: Minnesota Sports, Poorly Acronymed), writing "The best of the day"
• Lawyers are such Jokers (FP Legal Post)
• Brooks Schuelke: calling it "the biggest April Fool's Day joke in the history of the blogosphere"
• Eric Turkewitz's April Fools Joke Shows the Importance of Ledership in Blogs (My Shingle) calling it a "masterful April Fools' Day Spoof "
• Blawg Review #154 (David Harlow @ HealthBlawg): "Top honors in the hoodwinking department...masterful"
  

Labels: April 1

The U.S. Supreme Court granted certiorari today in the "Fantasy Baseball" case of CBC Distribution v. Major League Baseball Advanced Media. The suit is remarkable not only for the First Amendment and right to publicity issues that form the basis of the dispute, but because Justices John Paul Stevens, Samuel Alito and Stephen Breyer recused themselves due to their participation in a fantasy baseball league comprised of current and past court personnel. Justices Antonin Scalia and Ruth Bader Ginsburg, who also participate in the league, declined to disqualify themselves, exposing a non-ideological split in the court on the issue of when justices should step aside when conflicts appear.

Coming up from the Eighth Circuit Court of Appeals, the suit revolves around the use of real statistics generated by players at the major league level for use in fantasy leagues (also known as "Rotisserie" baseball). These rotisserie leagues, generally comprised of 10-12 teams, draft players from major league rosters at the start of the year and then use actual statistics to determine their fantasy league standings. Teams pay fees at the start of the season for a stat service to compile those standings, with additional money usually contributed to create a pool for the winner.

The litigation arose because the growing popularity of the leagues created a huge industry of services to compute those stats to determine placements. According to the Fantasy Sports Trade Association, 19.4 million people are now actively playing in a fantasy sport league in the U.S. and Canada, with total revenues of $2 billion last year, and it has spread overseas. CBS Sports, ESPN and Yahoo are among some of the giant companies that have built extensions of their core business to profit from the fantasy leagues.

Major League Baseball has been trying to grab a piece of that action, which they see as their own, wanting to license out the names and statistics of the players. MLB claimed a violation of the right to publicity by the various services. Plaintiff CBC Marketing, by contrast, argued that the information is in the public domain and that they have a right under the First Amendment to use it for their statistics service. The Eighth Circuit held that the First Amendment trumped baseballs' right to publicity, and MLB petitioned the high court for a hearing. The issues have prompted countless articles and blog postings (some linked below) and law review articles at Harvard (via Concurring Opinions) and Ohio State.

The disqualifications of the three justices come from some of the court's biggest baseball fans, who are involved in the Supreme Court's own fantasy league (more below). If they were to vote against Major League Baseball in the suit they would be deciding in favor of their own economic interests. Depriving the court of its stalwart fans can't be a good thing for the fantasy players. As it happens, I speculated just two weeks ago that one or two justices might run into this problem: Recusal In the High Court...For Fantasy Baseball? The court is now deprived of a full 9-person team to field the case. (Sorry, had to say that. It's my blog and I get to write that sort of thing.)

According to the controlling statute, 28 U.S.C. 455, the justices should step aside if they have a personal bias concerning anyone in the case, or independent knowledge of the facts in dispute; if they worked on the case as a private or government lawyer; or if they or close relatives have a financial interest in the case. The issue of recusal has been a hot topic in the legal blogosphere (see, Bashman, Volokh, Bainbridge, SCOTUSblog), where it most often appears in the context of stock ownership. This is the first time in the modern era that three justices at the high court have recused themselves in the same case, where six justice represent a quorum.

Each of the recusals (and the non-recusals) come with a history:

Justice Alito -- a huge Phillies fan and a former participant in a fantasy baseball camp -- had been embarrassed back in 2005 when he was still on the Third Circuit bench and wrote a decision involving mutual fund company Vanguard. The problem was that he also had investments in the company but had failed to disclose it. After his financial position became known he belatedly disqualified himself and the case went back to the court for reconsideration. Having been burned before he was apparently taking no chances today. Justice Breyer (who was honored at Fenway Park in 2006) shares ownership duties with Alito and likewise removed himself from the case.

Their recusal under the ethics law, 28 U.S.C. 455(b)(4) comes because a justice "shall" disqualify himself if he has "a financial interest in the subject matter in controversy ..." While the cost of a stat service for a league isn't much, the statute does not have a minimum financial standard and seems to speak in absolute terms with use of the words "shall" and "a financial interest."

Justice Stevens -- who has in his chambers a framed 1932 Yankees-Cubs World Series scorecard, a game he may have attended as a 12 year old growing up in Chicago, as well as an autographed Cal Ripkin baseball -- cited one of his past decisions and a different section of 28 U.S.C. 455 in stepping aside. Having previously analyzed section (a) of the judicial ethics law dealing with the appearance of partiality, he wrote in 1988 in Liljeberg v. Health Services Acquisition Corp that "the very purpose of [this law] is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible." Since his participation here could give that appearance due to his interest in the league, even if minimal, he likewise removed himself from the case.

Neither Justice Scalia or his teammate Justice Ginsburg -- who came of age in Brooklyn during the late 40s and 50s of the storied Dodgers, and who wrote the court's opinion in U.S. v. Cleveland Indians -- will step aside, however, despite their participation in the league and the law's straightforward language. Scalia had famously failed to to recuse himself in a 2004 case involving his friend and hunting partner Vice President Dick Cheney. He wrote, "If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined."

The Supreme Court justices make their recusal decisions without judicial review, thereby giving each one wide discretion on whether or not to step aside. The non-ideological split in the court over the ethics law exposes the somewhat arbitrary standards that the justices use in identical personal circumstances and how it results in different outcomes. Testifying before the Senate two years ago on the issue, American University law professor Amanda Frost said of the "ad hoc, opaque, and unchecked quality" manner that these decisions were made:

This procedural vacuum has, I believe, been the cause for recurring controversies over judges' failure to recuse -- controversies that undermine the very goal of section 455 to protect the integrity of the judicial branch.

Background on the recusals came to me from a former law school classmate and avid fantasy baseball player who formally worked at the court, after reading my speculation two weeks ago on the issue. While obviously not wanting to be identified here, s/he told me of a trip to Florida two weeks back for an annual spring training vacation with friends and to watch a cousin, Siddhartha Finch, at the New York Mets' spring camp in Port St. Lucie. Over twenty years ago Finch gave up a promising baseball opportunity to pursue a career with the French horn. He is trying to become the first rookie over the age of 50 to break into the big league as part of a book project. My friend also bumped into Monica Bay, who was likewise making annual rounds of the spring camps.

Finch, I was told, was then picked up this past weekend by the Alito/Breyer team at their annual draft. He was added to their reserve roster in the event of an injury to a player on the main roster. (Finch will be starting the year at the Mets' Double-A affiliate in Binghamton.)

In addition to the five justices, there are players from among past and current clerks, marshals and others on the court's support staff, with many of the teams sporting multiple owners in order to share the considerable amount of research that goes in to competing. Other gossip from the high court league, which comes from rotisserie forums and listserves that I participate in:

• The high court league has been around for years, and is known as Articles For Deletion, based on an old spoof about amending substantial parts of the Constitution to increase the court's power. When the league was named, there was a vote between AFD and Least Dangerous League (a spin on Alexander Hamilton's comment about the judiciary being the "least dangerous branch" of government). AFD won after the ten original fantasy teams deadlocked and the tie was broken with a coin toss held in the court's conference room.
  
• The passionate interest in baseball at the court led the Supreme Court website Oyez.org to compare each justice to a different player at the end of their respective biographies. For example, John Jay, the first Chief Justice, is compared with Kenesaw Mountain Landis, the first commissioner of baseball, and Thurgood Marshall with Emmet Ashford, the first black umpire. You can test your baseball/Supreme Court knowledge at the site with any justice you want.
  
• Stevens, teamed with retired administrative clerk Ernie Thayer, drafted the much despised Jimmy Blake. This prompted a good deal of abuse about a judge drafting a player with legal problems, and the "what if" factor if the case ever came before the court.
• Scalia and Ginsburg's team also includes a federal marshal and is called "The Three Sopranos," merging their tastes for opera and an HBO show.

Major League Baseball is represented by Sidley Austin. It's petition for certiori can be found here. Oral argument could potentially be scheduled during the World Series this October.

(Full Disclosure: I'm entering my 19th year in one of these leagues. My brother, and co-owner of The Turkeys, was working on draft preparation two weeks back while sitting jury duty. He described our two year plan to a USA Today columnist last year in these two pieces. Our draft was held Saturday. We expect to win it all. But since we've never won, and last year we came in last, don't even think of e-mailing us for advice.)

And so the question remains: Should the justices recuse themselves (Stevens/Alito/Breyer) for this type of connection to a case or not (Scalia/Ginsburg)?

More on the underlying suit can be found at these blogs:

• More than a Game: Fantasy Sports Industry Wins Recent Legal Battle Over Use of Player Stats (Intellectual Property Media and Entertainment Law Blog)
• CBC v. Major League Baseball (Patent Arcade)
• Fantasy Baseball 2, Real Baseball Zero (Owners, Borrowers and Thieves, an IP blog)
• Eighth Circuit Rules Against MLB In Fantasy Baseball Suit (Neil Richards @ Concurring Opinions)
  
• Sports and the Law: Supreme Court Might Hear Dispute Over Fantasy Sports Property Rights (Marc Edelman @ Above the Law)
  
• Fantasy Sports League Hits It Out Of The Park In Challenging MLB's Ownership Of Player Statistics (The IP Law Blog)
• Fantasy League Wins Ruling; Judge's decision that baseball statistics are in public domain could have far-reaching effects (How Appealing - round-up of news stories)
• Fantasy Stats Case: Could be Heard By U.S. Supreme Court (The Biz of Baseball)
• The Ledger Domain, The Impact of the Fantasy Stats Ruling (Baseball Prospectus)
• Does Fantasy Baseball Violate Copyright? (Tech Law Advisor)
• Fantasy Baseball (Patry Copyright Blog)

---------------------------------
Update: A number of blogs have taken note of the breaking story, and comments are plentiful. This will be updated again as the story develops:

• Who Owns WHIP? We May Find Out Soon (DeadSpin)
• Supreme Court granted certiorari today in the "Fantasy Baseball" case of CBC Distribution (Baseball Think Factory)
• SUPREME COURT GRANTS CERT IN 'FANTASY BASEBALL' CASE (Volokh)
• Morning Docket (Above the Law)
• New York Magazine (part of Daily Intel round-up and update)
• Supreme Court Fantasy Baseball League (Stubborn Facts)
• Certiorari in Fantasy Baseball Case (PrawfsBlog - post has now been taken down)
• Simple Justice (Scott Greenfield)
• More than half the U.S. Supreme Court living a fantasy life? (San Diego Tribune)
• Cert in Fantasy Baseball Case (SportsLaw - post taken down)
• Fantasy Baseball Before A Short-Rostered Supreme Court (Not a Potted Plant)
• Supreme Court Hears Fantasy (The Dude Abides)
• Reports of Supreme Court Fantasy Baseball Case ... (ABAJournal)
• Even the Supremes Live a Fantasy Life (Missing J.T. Snow)
• Fantasy Baseball at the High Court (Dartblog)
  

Labels: April 1