The author of this blog post, one Scott Greenfield, seems blissfully unaware that the main takeaway from it isn’t “what the hell is wrong with Eugene Volokh?” but rather “memo: never, ever hire this blogger to be my lawyer.”
Volokh apparently took pro bono a case defending an obnoxious blogger, and won. But the court wrote, “Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction.” And Volokh then filed a motion to amend the op to remove the offending language. Which Greenfield takes as what I trust is a metaphorical indication that Volokh is “in bed with” this Cox blogger, and that some improper motive must be at work, because hey, it’s not a substantive point, Volokh won, case should be over.
That is not how TBA practices law – how ’bout y’all? I agree to take an appeal, it’s over when there’s no more relief to be had or the client says to call it quits.
UPDATE: Here is Pamela MacLean on the matter:
What Cox didn’t like was a single sentence in the opinion by Judge Andrew Hurwitz that stated, “Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction.”
Last week, her lawyer Eugene Volokh asked the court to amend its opinion, not to change the substance of the ruling, but to delete the offending sentence. The claim of “payoffs” was based on a single New York Times article in 2011.
“A judicial assertion of misconduct by a named person, even a judicial assertion modified with the word ‘apparently,’ could be based on the record in a case, or authoritative finding by another court. But it ought not be based on a newspaper column, which was written without the benefit of cross-examination, sworn testimony, or the other safeguards of the judicial process,” Volokh wrote. He said there “seems to be no ‘history’ of ‘seeking payoffs’ claimed in the article, he said.
Not surprisingly, some news outlets repeated the sentence but omitted the term “apparently,” he said. Journalists may perceive it as a factual finding, not just recitation of a newspaper column’s claim.
Good for Volokh.