SCOTUSBlog, the premier media source — internet, newspaper, anywhere — for Supreme Court news, has just undergone a revision, including sponsorship by Bloomberg Law. Scott Greenfield, the premier source for complaints about legal blogging, thinks something was lost in translation:

Most disturbing is the resort to the formulaic approach of “ask the expert,” and the expert invariably being someone with scholarly credentials so that their every utterance comes with built-in academic credibility. We see it in newspaper articles and on television news, the lawprof opining about things he’s never personally touched and only seen from afar. We were knee deep in ideas from people who have never actually done the things they speak about with such refined expertise. Now we’ll be neck-deep.

For those of us who have long appreciated SCOTUSBlog being there, being the first resource for Supreme Court decisions, briefs, reports, it seems unfair and unappreciative to question Tom Goldstein’s effort to make money off his blog and further his career as a Supreme Court litigator. And yet, I can’t help feeling that we’ve lost a trusted friend, a reliable neighbor, who is moving from the ‘hood to the corporate bigtime. And that our comments will be deemed too stupid and unworthy to make it onto the small screen.

Bob Ambrogi is more sanguine:

I believe that Bloomberg’s sponsorship will prove to be a benefit to readers of SCOTUSblog. For several years now, this blog has moved closer and closer to becoming a serious — dare I say “mainstream” — news site, particularly since bringing aboard Lyle Denniston. Now it will be able to devote more staff and resources to that task, which can only make it all that much better.

And before anyone bemoans the blog for “selling out,” keep in mind that this new sponsor is, itself, a professional, global news organization, one that already has a strong legal news component. As a matter of fact, I would say that this sponsorship will be better for the blog’s readers than was the blog’s longtime affiliation with a major law firm, Akin Gump.

The rebirth of SCOTUSBlog as more a form of SOCUTSNews was unavoidable and has been a long time coming. You don’t get very far as a Supreme Court litigator by pointing out how unprincipled and political many of the Court’s decisions are. You also don’t become a major media source for commentary by pointing out that the court’s key opinions are loaded with rank hypocrisy — consider how often the five “Federalist” judges these days use ambiguous federal statutes to pave over state-created rights — or that their poorly-reasoned opinions often raise more questions than they answer.

Truth is, as a blog gets more popular, it tends to get more “mainstream” and less provocative. That’s not necessarily a bad thing; SCOTUSBlog was never particularly edgy, and there are plenty of people around more than happy to criticize our robed overlords. I couldn’t be happier that SCOTUSBlog has a bright and secure future as the primary source for plain-vanilla apolitical analysis of the Supreme Court; it’s the first place I go for information about the Court. No offense to the New York Times or NPR, but, when they report on the latest opinions, they simplify matters for their non-lawyer audiences, and they don’t helpfully link to the lower court opinions and the merits briefs.

The SCOTUSBlog revision puts into perspective some trends I’ve seen in the universe of practicing lawyer blogs. (Put aside the legal academic blogs and media ventures unaffiliated with firms; they have separate trends.) It seems the practicing lawyer blogs are separating into three general classes of blogs, which I’ll call the mainstream, the personalities, and the marketers.
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In the blink of an eye, Jimmy Leeward’s P-51 Galloping Ghost went from rounding the last turn at National Championship Air Races in Reno to sharply pitching upward, rolling over, and then diving straight down into box seats full of spectators. Strange as it is to say, there are reasons to be grateful — had his airplane hit the grandstands, there would have been hundreds, not dozens, of injuries.

Air shows are a big deal in America — attendance is around 17 million visitors to the 400 or so air shows each year, roughly around the same attendance as the NFL — and, apart from the causal attendees, there’s a sense of community around types of planes, types of shows, and locations. They know the history of the sport; the Ramstein disaster, for one, still lingers in the minds of many in the air show community, and the frequency of fatal and near-fatal crashes is not lost on anyone. The casualty numbers are lower, but they still look more like a major air disaster than a simple crash; Reno will likely take a similar place to Ramstein in the minds of the air show community, and may end the National Championship Air Races, at least in their current form.

As always, when a crash happens, the media attention shifts quickly to the National Transportation Safety Board’s “Go Team” investigation. Maybe it’s something about the allure of governmental rapid response teams, or maybe it’s the idea that, with an investigation and findings will come some sort of closure. The NTSB is a good organization with talented and dedicated personnel, and it’s no stretch to say that NTSB Aviation Accident Reports and other recommendations have saved countless lives, but one thing needs to be understood about the NTSB.

Coincidentally, a few hours before the crash I conducted the deposition of the former fleet operations manager for a company involved in a fatal maritime accident. The NTSB Marine Accident Report recommended that her company “review existing safety management program and develop improved means to ensure that your company’s safety and emergency procedures are understood and adhered to by employees in safety-critical positions.” The fleet operations manager argued that the NTSB’s finding that her company had at all contributed to the accident was merely “political.”

In one sense, she’s right: the NTSB’s findings are “political,” in that they are made by the government for the benefit of everyone, rather than made for accountability among those involved in the crash. The NTSB reviews accidents primarily for the purpose of making recommendations for the future and secondarily for determining fault. In contrast, civil litigation exists to determine who should pay for the losses arising from an injury, and thus cases are reviewed by the judicial system primarily for determining fault.

This difference in focus isn’t just a matter of word choice. There’s an entire field of ‘root cause analysis’ that assesses the way in which accidents and other failures are investigated. Its lessons have been applied to aircraft safety as well, including in the federal regulations governing military aircraft safety, which direct audits towards the cause, not just the symptom, of safety deficiencies.

That’s not to say the NTSB’s process is flawed or that their conclusions are wrong (although it’s always disturbing to me how the “party system” always gives the likely culpable parties a seat at the table but never gives any voice to the victims). It’s just important to understand that they answer a different question — what can we, as a government agency, recommend to prevent this in the future? — from the question asked in a lawsuit: who, if anyone, was responsible?

Tim OBrien Photo - P51 Loss Of Trim TabInitial reports have focused on the trim tab of the Galloping Ghost. A remarkable photo just before the crash taken by Tim O’Brien, himself an air show organizer, shows the plane missing one of its left side trim tab entirely. Still images from video taken of the crash show the trim tab in the process of falling off.

It wouldn’t be surprising if the flutter caused the trim tab to break off. (For those unfamiliar with flutter, Mike Danko dug up an old NASA video of trim tab flutter). That’s a known problem with P-51s; consider this report regarding the P-51 Voodoo Chile at the Reno National Championship Air Races just a couple years ago:

… Voodoo very abruptly pulled up; however, Hannah didn’t radio a distress call. … Steve Hinton flew over to take a look Voodoo. “You OK Bob?” called Hinton. “Yea, this thing just popped big time,” replied Hannah. What Hannah didn’t mention is that the g-load from the quick pull-up had caused him to black out. He finally managed to reach the throttle and reduced Voodoo’s power. At that point Hannah radioed that he “(wasn’t) out of it yet,” but he wasn’t thinking clearly. Later, he declared a mayday and made a perfect landing. … On the ground one could see what cause Voodoo’s problems during the race. The left elevator torque tube failed when the elevator trim fluttered and departed the plane. Fortunately, Bob Hannah’s skill and coolness in the cockpit saved day.

When the trim tab fell off Voodoo, the plane shot upwards and the 10G deceleration force caused Bob Hannah to black out entirely. That’s just as you would expect: the faster you go, the more the plane points upwards on its own, and the more you need to point the nose down to trim the airplane. Thus, at speed and level, the trim tab points up relative to the airflow over the elevator, causing the elevator to be deflected slightly down to maintain level flight.

At over 500 miles per hour, there are enormous airloads on the elevator trim tab to keep the elevator in a position that allows the pilot to maintain control, making damage to the trim tab more likely. Remove the trim tab and the non-trimmed elevator settings immediately deflect up, just like when pulling the stick back hard. That’s what causes the abrupt climb (and corresponding loss of consciousness) when the trim tab falls off.

Hannah regained consciousness at 9,000 feet and, as you can tell from the above, took some time to come back to his senses. You can see pictures of the damage here. It was even the same trim tab. The difference between Voodoo’s close call and Galloping Ghost’s tragedy may have been pure, dumb luck: Voodoo didn’t roll after losing the trim tab while Galloping Ghost did.

But that doesn’t necessarily mean flutter caused the trim tab to dislodge, or that the trim tab was the cause of the accident, or that the trim tab was the only cause of the accident. It’s quite possible something else caused the Galloping Ghost to climb rapidly, and in that process the flutter developed or the trim tab was damaged. As has been reported, some members of the crowd noticed “a strange gurgling engine noise” before Galloping Ghost pitched upwards. Further, as discussed below, it’s possible the trim tab failure could have been avoided, and more could have been done — such as ensuring the pilot was harnessed properly and plotting the race further from the stands — to prevent this tragedy.

So, where might liability fall?
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The American Tort Reform Association’s Annual Report on “Judicial Hellholes” is out again.

Whoops, I mixed up my link — that’s a link to reasonable commentary by the Center for Justice & Democracy. The actual misleading, faux-scientific report is here. My take is similar to The Pop Tort’s ode to the judicial hellholes list:

Back in December, the Supreme Court held oral argument on Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. Though the case raises several issues, the primary question is:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to reverse 100 years of uniform holdings that littoral rights are constitutionally