Law Librarian Blog

Entire Health-Care Reform Act Ruled Unconstitutional

In Florida v. U.S. Department of Health and Human Services, No. 3:10-cv-91-RV/EMT(N.D. Fla., Jan. 31, 2011) Judge Roger Vinson ruled the the entire Health-Care Reform Act was unconstitutional because the Patient Protection and Affordable Care Act's "individual mandate" requiring most Americans to purchase health insurance by 2014 or face stiff penalties could not be severed from the rest of the Act. Judge Vinson held that the Act's "individual mandate" exceeds the regulatory powers granted to Congress under the Commerce Clause of the Constitution. Text of Judge Vinson's ruling here.

Hat tip to HealthLawProf Blog for calling attention to Wake Forest law prof Mark Hall's Commerce Clause Challenges to Health Care Reform [SSRN]("This article reviews and pinpoints the strongest arguments for and against federal power under the Commerce Clause to mandate the purchase of health insurance.") [JH]

Government Wants ISPs to Retain User Information To Aid Law Enforcement

Last week Congress heard from the Justice Department and other law enforcement officials on the proposal to require ISPs to keep detailed records on its customers' activities on the Internet for about two years.  This comes up from time to time, most recently before this in 2006 when then Attorney General Alberto Gozales pushed the proposal.  The purpose would allow law enforcement authorities to have a detailed online history for anyone who caught their interest.  The main justification at the time was to aid investigation into child pornography offenses.  Congress listened and did not enact a law to that effect.  That hasn't changed with the current hearing, titled "Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes."  

There was push back at the time of the 2006 hearing from various civil liberties groups on how citizen privacy would be affected by such a law (like a lot).  There was also push back from ISPs, as keeping detailed records which the government wanted costs more money than the standard billing record retention.  The current practice for storing minimal information would be anywhere from one to six months depending on provider.  The government answered that one by offering to subsidize the ISPs, to some extent, for the extra overhead.     

The legislator pushing the current proposal is the same on who pushed it the last time, Rep. James Sensenbrenner (R-WI).  He is reported to have backed away from actually submitting the bill shortly after he proposed it in 2006.  We'll have to see if history repeats itself.  The issues on both sides of proposed law haven't changed much, if at all, in two years.

Jason M. Weinstein, Deputy Assistant Attorney General leads off his testimony with examples of heart-wrenching cases of child abuse that could have been solved if data retention requirements were in place.  He notes other cases that were solved with "lick" that the records were there.  His argument is that data retention is all over the place with respect to the time an ISP would keep it.  His second argument is that those with privacy concerns should be heartened by this type of legislation, as it will help law enforcement go after those who violate privacy.  He notes that though there may be large amounts of information kept by ISPs, the government would still need to use standard procedures to gain access to it.  Though he advocates for the legislation, he doesn't offer specific proposals:

In offering this testimony, our goal is explain the nature of the public safety interest in data retention by providers. We do not attempt to discuss appropriate solutions, evaluate cross-cutting considerations, or evaluate the proper balance between data retention and other concerns. We look forward to continuing the dialog on these important issues with Congress, industry, and other interested organizations.

Weinstein's positions are supported by Chief John M. Douglass, Chair of the Mid-Sized Cities Section, International Association of Chiefs of Police.  His testimony extols the use of tracking information in solving Internet related crimes.  His case examples are all successful, though ironically under existing law.  More tracking information is wonderful and welcome.

What's missing from both of these presentations is context.  Nothing in what they say conveys any sense of how the lack of available data has impaired past investigations.  In other words, how many cases are there that were not successfully prosecuted because of a lack of Internet tracking data compared to successful prosecutions. Wouldn't that determine the need for formal retention requirements?  And just as important, wouldn't that information help identify what kinds of data retention should be in place?  

The other side is represented by Kate Dean, Executive Director of the U.S. Internet Service Provider Association, and John B Morris, Jr., General Counsel of the Center for Democracy and Technology.  Dean's testimony focuses on how her members work with law enforcement to track down child pornographers and others through voluntary cooperation, the burden that would be placed on her members from mandated retention, and the lack of specifics (at this stage) of what retention means.  Current law works well, she says, and that her organizations members work with law enforcement constantly to identify and prosecute predators.  Congress should identify where the system in place doesn't work before considering changes.  She raises the point that potential transactions to record can number in the billions, which may actually slow down the ability to provide timely information to law enforcement.

Morris' testimony covers the impact a retention law would have on an individual's privacy, the increased risk to identity theft, and the chilling effect on First Amendment rights.  Although he didn't say it, the government's track record when it comes to laws involving the Internet that implicate the First Amendment is low.  Any law passed by Congress would be up for a challenge.  Morris makes the point that everyone would be subjected to the law, though not everyone has criminal intent in using online access.  Echoing Dean, there are more possibilities for data breaches when there are more records in more databases.  I can understand the concern.  How many secure databases have been breached and private data either winding up online or sold by criminal elements?  I think the best example is the Wikileaks breach.  Wasn't the stream of diplomatic cables supposed to be secure?  Can private industry do better than the government when it comes to keeping a secret?

I tend to agree that creating open-ended data collection is a bad idea.  One of the points raised in the 2006 hearing is the concept of mission creep.  Data collection begins with storing IP addresses.  Then, wouldn't it be interesting to see where that IP address went?  Let's store addresses.  Then, wouldn't it be interesting to store copies of those pages in case that IP address is the target of a criminal investigation?  Internet content changes all the time, after all.  Wouldn't it be a good thing if we made all of that available to intellectual properties holders and other civil plaintiffs who are enforcing property rights?  It may be a parade of horribles, as the courts say.  Some of them were plausible enough the first time around for this idea.  

Any change in the law should be justified on the basis of where it doesn't work, not on the basis of what law enforcement could do if they knew everything about everybody.  Saying that the Department of Justice could have caught one more horrible individual should not be enough to put the entire Internet population under a microscope.  Existing laws didn't stop the FBI from swooping down on a few individuals in conjunction with the DDOS attacks against Visa et al.  

On one hand, the goverment seems concerned about what marketers know about us, and to what detail, by proposing laws or regulations that give consumers the right to opt out of tracking.  On the other, it wants to exempt itself from those same concerns.  Right now, I think I would trust Google, Yahoo, or even Microsoft before I would trust the government to get this right.  [MG]

Professional Ethics Trumps AALL Acceptance of Vendor Cash Until the Status Quo is Changed

In a very rare instance, meaning the first time in recent memory, an official AALL publication has allowed publication of criticism of AALL policy by someone who has been practicing our profession long enough to have a well-informed perspective of AALL official actions in the context of vendor relations over the course of the last two decades. Younger law librarians who may be unaware, take notice. It's what some of us older law librarians have to offer with respect to how we got to this dismal current state of affairs and what some of us recommend for getting out of this mess we currently find our professional assocation in. The intention is not to lecture but to inform.

In the current issue of AALL Spectrum, see Ending our conflicts of interest to protect consumers of legal publication by Michael Ginsborg. I believe Ginsborg's emphasis that AALL has a consumer advocacy mission that extends beyond institutional interests to include public interest advocacy by recalling ethical standards that once were but no longer are the case for AALL's relationship with vendors due in no small part to revenue received by them is a much needed wake-up call. I professionally hope Ginsborg's article will be well received by younger law librarians who must take the necessary corrective measures that we older law librarians have, unfortunately, dumped in their laps.

Ginsborg characterizes all this as a "proposed ethical test." He writes

Our collective effort in a $4.4 billion market could make a difference, especially if we also engaged the largest share of consumers—attorneys. And we have effective options short of a boycott or other antitrust violation. For example, we could undertake mass education of attorneys on how exorbitant costs undermine the critical public value of commercial legal publications; seek renewed FTC guides for full and transparent disclosure of all ranges of subscription discounts and criteria for discounts; set up a website for reporting and tracking consumer complaints; forge alliances with national, state, and local bars and legal advocacy groups; and launch joint investigations of legal publishing practices as warranted by complaint trends. We have missed the mark in our current efforts at consumer advocacy, however, because we follow the wrong model for our business relations with publishers. Legal publishers divide us against one another as we try to negotiate less onerous print subscription costs for our respective employers.

The proposed ethical test requires AALL and chapters to ban cash and non-cash donations from legal publishers with anti-consumer practices. (It also requires us to ban meals, social events, ads, and exhibits by these publishers in all our professional venues... .)

It is a very sad state of affairs when we as professional librarians must be reminded about law librarianship ethics. Made worse when two former AALL presidents, Judith Meadows and Kay Moller Todd respond in counter-point fashion to defend AALL official actions. They write:

AALL is stalwart in its support for the general availability of primary source materials, but to argue this public right for secondary sources is without basis.

Our Association has made significant efforts to ensure the availability of legal information to the public, parity of access across rural and urban markets, and a market that is not dominated by one specific vendor. We are all better off when the marketplace includes large and small vendors.

I take Meadows' and Todd's opinions to be genuine expressions -- not scripted responses -- but I find their article full of utterly unconvincing arguments. Like it or not, an AALL official publication has selected this counter-point statement that in a nutshell states "the status quo for AALL is a good thing." The status quo, however, is a duopoly with monopolistic pricing tendencies, restrictive contracting practices and very questionable pricing schemes designed to guarantee revenue flowing to WEXIS without guaranteeing editorial quality in print and online legal resources. As our major vendors move forward with eBooks and later will move forward with enhanced eBooks with in-app purchasing, individual consumers will be facing the same eBook duopoly they and we institutional buyers are facing now in print and online resources. It is utter nonsense to be hearing from two former AALL presidents that the market is not dominated by one specific vendor since it most definitely is in many state jurisdictions. It is even worse to hear that "we are all better off when the marketplace includes large and small vendors" because that is hardly the case.

AALL and our major vendors may be enjoying a partnership of sorts but as Ginsborg argues in his article there is no such "partnership" between our major vendors and buyers, institutional or individual. We have been seeing the same sort of publisher abuses since the FTC revoked its Guidelines for the Law Book Publishing Industry in 1999 that were sufficiently serious to compel the FTC to prescribe appropriate practices that the legal publishing industry should follow in the publication, advertising, and sale of legal publications back in 1975.

There is, however, one major difference. Unlike 1975, the market dynamics is now and has been for quite some time, sufficiently more concentrated to the point of being a duopoly with the anti-competitive consequences that produces. Back in 1975, there were many legal publishing houses that have either disappeared completely or are nothing more than "brand names" of WEXIS. In the state of Ohio, for example, there once was Banks-Baldwin (now owned by West) and Anderson, which managed to survive until acquired by Lexis in the mid-2000s. Small vendors only remain in those state jurisdictions which have a sufficiently larger practitioner base to justify the risk of publishing titles, states such as California. I once asked a small publishing house executive why his company was not offering Ohio titles. His answer was they examine state bar association membership rolls by practitioner specialities as reflected in special interest group membership and in the case of Ohio, there simply was insufficient numbers to compete with WEXIS.

Let's add a second, not inconsequential difference. The move toward electronic primary and secondary resources dominated by WEXIS. In Time to Reinstate the FTC’s Guidelines for the Law Book Publishing Industry, Brian Carson observed

[S]ince [the FTC Guidelines] revocation, we have seen exactly those same abuses over and over again, including the now-common practice of not providing open and competitive pricing for publications and databases. In fact, many license agreements include non-disclosure clauses that prevent the open sharing of information, a necessary condition to ensure competitive and anti-monopolistic contracts.

Meadows and Todd state

[AALL's financial structure] is similar to many other professional organizations that enhance dues revenue by accepting donations and sponsorships. Our research confirms that comparable professional associations have protocols for sponsorship that are very similar to AALL’s. Mr. Ginsborg asserts that the level of these donations not only has affected AALL’s impartiality on issues but also causes our members to lose objectivity and critical decision making when faced with whether or not to purchase a legal title.

Three comments, my opinion because I do not want readers thinking I am speaking for Ginsborg. First, to the extent that members once could rely on CRIV, that is no longer the case. It is now well-documented that CRIV's mandate has been reduced to dealing with minutia by the insertion of a compensated Vendor Liaison between CRIV and our vendors and between CRIV and the membership.

Second, Ginsborg's suggested action plan is narrowly tailored to avoid antitrust boycott violations that all similarly situated professional associations must avoid while demonstrating to the membership that AALL is indeed impartial. Meadows' and Todd's reference to other similarly situated professional associations echos in maintaining the status quo and entirely misses the point of Ginsborg's article. Considering the credibility gap that exists between AALL and its institutional buyers, AALL's consumer advocacy actions are  questionable at best. Some would say they are so completely unproductive that ad hoc collective action outside AALL is needed because AALL has failed. 

Third, AALL's response to the revocation of the FTC Guidelines was the promulgation of its Guide to Fair Business Practices for Legal Publishers which has been ineffective because it is unenforceable under antitrust law. Any so-called "partnership" between vendors and buyers would be evident by vendors voluntarily complying with AALL's Guide to Fair Business Practices for Legal Publishers but we all know that has not been the case.

In the context of Ginsborg's call to action, Meadows and Todd write

The author’s other proposal that AALL should undertake mass education of attorneys; establish a website for reporting and tracking consumer complaints; forge alliances with national, state, and local bars and legal advocacy groups; and launch joint investigations of legal publishing practices is impressive but completely unrealistic. He presents no business plan for such an office, nor does he consider the financial and budgetary implications of such a proposal. Would our members really support the kind of dues increase to be expected by refusing all donations of any kind at the same time as establishing a new venture that would require additional staff?

Quite a telling statement. Vendor revenue vs. membership dues increase. That's how dependent AALL is on our major vendors. Have we utterly forgotten that A-A-L-L stand for the American Association of Law Libraries, not law librarians? We are an association of institutional buyers. We most definitely can justify increased dues to our employers if we can demonstrate that our association can produce results that benefit them specifically and also contribute to the common good. We can also cutback on other AALL activities until the status quo is changed.

I seriously doubt most of the membership agrees that the status quo is a good thing but at least Ginsborg's article was published in AALL Spectrum. See also his supporting documentation, Vendor Sponsorships and Related AALL Financial Data, 2005-2009 Data From IRS Form 990.  Hopefully, Ginsborg's article is the first crack in the wall -- the stone-walling tendency of our professional association, expressed by two former AALL presidents.

Prior to the official publication of his Spectrum article, Ginsborg guest posted Initial Thoughts on a Plan to Restore FTC Oversight of Publisher Trade Practices on LLB as a follow-up to Bryan Carson's insightful post, Time to Reinstate the FTC’s Guidelines for the Law Book Publishing Industry. Unlike this cranky old geezer-blogger, Ginsborg circulated his draft post to other law librarians for peer review input, incorporating many suggestions provided. That's not standard operating procedure for blog posts but he sought out unattributed input. My hunch is he did the same for his Spectrum article.

Required Reading for Those Outside AALL's Current Power Brokers. So here is a blog post, Ginsborg's, not this one, that was produced by "due diligence" in part from contributions from other law librarians dissatisfied by the current state of AALL's official policies -- the status quo. This is an instance where one law librarian has gone out on a limb to state his professional opinion which has been informed by other like-minded law librarians. I believe the above cited blog posts and Ginsborg's Ending our conflicts of interest to protect consumers of legal publication are required reading by all law librarians who (1) believe they represent their institutions as AALL members but (2) also believe our profession has an obligation to serve the public interest including the publication of secondary sources. Have we already forgotten about Rudovsky?

Ginsborg writes, and this aging and decrepit Boomer law librarian hopes Gen-X and Gen-Y law librarians agree, and will insist on taking up the challenge one way or another, inside or outside AALL because the actions of our profession association over the past 10 years have failed to do so:

To become stronger consumer advocates, we must restore consumer advocacy to our ethics, end our conflicts of interest, invite attorneys to join us as associate members, and, if necessary, amend AALL and chapter bylaws. We must be prepared to forgo all donations from specific publishers as we remake national and local organizations worthy of alternative donations from attorneys. Otherwise, we will continue to compromise ourselves, our constituents, our employers, and an important public interest.

Sorry, Future Leaders of AALL. At least those who have not utterly given up on AALL. This mess we leave you to correct. Those of us who have been around a while -- Ginsborg, Carson and others -- offer some need-to-know historical perspective. Ginsborg's call to action is a well-informed and thoughtful recommendation of what AALL can do under the current legal restrictions. It is something that is doable by our association right now. If it requires reducing other AALL activities until the status quo is changed, so be it. [JH]

Round-Up of Personal Injury Practitioner Blogs

California Personal Injury Lawyers Blog
http://www.californiapersonalinjurylawyersblog.com
http://www.californiapersonalinjurylawyersblog.com/index.xml
Analyzes injury law reports, cases and news in California. Published by The Law Offices of Gary K. Walch.

Boston Personal Injury Lawyers Blog
http://www.bostonpersonalinjurylawyersblog.com
http://www.bostonpersonalinjurylawyersblog.com/index.xml
Provides opinions on injury law reports, cases and news in Massachusetts. Published by Parker Scheer, LLP.
 
Los Angeles Injury Lawyer Blog
http://www.losangelesinjurylawyer-blog.com
http://www.losangelesinjurylawyer-blog.com/index.xml
Discusses injury law news, opinions and reports in California. Published by The Chahine Law Firm.

North Carolina Personal Injury Lawyers Blog
http://www.northcarolinapersonalinjurylawyersblog.com
http://www.northcarolinapersonalinjurylawyersblog.com/index.xml
Provides insight on injury law news, cases and reports in North Carolina. Published by the Law Offices of Lee & Smith, PA.

New York Injury Lawyer Blawg
http://www.newyorkinjurylawyerblawg.com
http://www.newyorkinjurylawyerblawg.com/index.xml
Analyzes injury law news, cases and reports in New York. Published by Ronai & Ronai, LLP. Seattle
                 
Southern California Injury Lawyer Blog
http://www.southerncaliforniainjurylawyerblog.com
http://www.southerncaliforniainjurylawyerblog.com/index.xml
Covers injury law cases, news and reports in California. Published by the Southern California Legal Group.

Charlotte Personal Injury Lawyer Blog
http://www.charlottepersonalinjurylawyerblog.com
http://www.charlottepersonalinjurylawyerblog.com/index.xml
Provides insight on personal injury opinions, cases and news in North Carolina. Published by the Shumate Law Offices.

St. Louis Injury Attorney Blog
http://www.stlouisinjuryattorney-blog.com
http://www.stlouisinjuryattorney-blog.com/index.xml
Reviews injury law cases, news and opinions in Missouri. Published by K. Lindsay Rakers.

Reno Personal Injury Lawyer Blog
http://www.reno-personal-injury-lawyer-blog.com
http://www.reno-personal-injury-lawyer-blog.com/index.xml
Reports on injury law cases, news and opinions in Nevada. Published by Routsis Gilbert.

Connecticut Injury Attorney Blog
http://www.connecticutinjuryattorney-blog.com
http://www.connecticutinjuryattorney-blog.com/index.xml
Discusses injury law news, cases and opinions in Connecticut. Published by Paul Levin.

Massachusetts Injury Lawyer Blog
http://www.massachusettsinjurylawyer-blog.com
http://www.massachusettsinjurylawyer-blog.com/index.xml
Covers injury law opinions, reports and news in Massachusetts. Published by the KJC Law Firm, LLC.
 
South Carolina Child Injury and Death Lawyer Blog
http://www.southcarolinachildinjurylawyerblog.com
http://www.southcarolinachildinjurylawyerblog.com/index.xml
Provides opinion on child injury reports, news and cases in South Carolina. Published by Howell and Christmas, LLC.

Metro DC Lawyers
http://www.pricebenowitzlaw.com
http://www.pricebenowitzlaw.com/index.xml
Provides insight on injury law reports, opinions and cases in Maryland. Published by Price Benowitz, LLP.

Round-Up of Criminal Law Practitioner Blogs

Tennessee Federal Criminal Lawyer Blog
http://www.tennesseefederalcriminallawyerblog.com
http://www.tennesseefederalcriminallawyerblog.com/index.xml
Provides opinion on federal crime cases, reports and news in Tennessee. Published by The McKellar Law Firm, PLLC.
.
New Jersey Criminal Defense Blog
http://www.new-jerseycriminaldefense.com
http://www.new-jerseycriminaldefense.com/index.xml
Reports on criminal law cases, news and opinions in New Jersey. Published by the Law Office of Jason A. Volet, LLC.

Boston Criminal Defense Attorney Blog
http://www.bostoncriminaldefenseattorneyblog.com
http://www.bostoncriminaldefenseattorneyblog.com/index.xml
Examines criminal law cases, reports and news in Massachusetts. Published by The Law Offices of Jeffrey R. Chapdelaine, PC.

Washington DC Criminal Defense Lawyer Blog
http://www.dc-criminal-defense.com
http://www.dc-criminal-defense.com/index.xml
Analyzes criminal law cases, reports and opinions in Washington DC. Published by the Law Office of Daniel A. Gross, PLLC.

Los Angeles Criminal Lawyer Blog
http://www.losangelescriminallawyer-blog.com
http://www.losangelescriminallawyer-blog.com/index.xml
Discusses criminal law news, reports and cases in California. Published by The Chahine Law Firm.

New Jersey DWI Attorney Blog
http://www.newjerseydwiattorneyblog.com
http://www.newjerseydwiattorneyblog.com/index.xml
Provides opinion on DWI defense cases, reports and news in New Jersey. Published by Evan M. Levow.

Los Angeles DUI Lawyer Blog
http://www.losangelesduilawyer-blog.com
http://www.losangelesduilawyer-blog.com/index.xml
Examines DUI law cases, reports and opinions in California. Published by The Chahine Law Firm.

Rahm Opinion a Bit Uncivil?

Rahm Emmanuel's court victory in his quest to become Mayor of Chicago yesterday made national news because of who he is.  The Illinois Supreme Court's opinion is more interesting for how it reads rather than the result it reaches.  The tone of the opinion carries a certain seething irritation for the appellate court not just getting it wrong, but getting it really wrong.  At least in the Supreme Court's view.  Here are a few excerpts:

The court acknowledged that in Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867), this court used an intent based approach in determining a candidate residency question, but found this unpersuasive because a different standard of proof was applicable in that case. (Note 1)

(Note 1) The appellate court left it to the reader to discern how the standard of proof was in any way relevant to what standard the court used to determine the merits of the residency issue.

* * * *
Before proceeding to the merits, we wish to emphasize that, until just a few days ago, the governing law on this question had been settled in this State for going on 150 years. 

* * * * 
Of course, the appellate court did not see the statutory question this way. But its reasons for departing from over 100 years of settled residency law are hardly compelling and deserve only brief attention.

* * * *
The appellate court  then spends five pages examining section 3.1–10–5(d) of the Municipal Code (65 ILCS 5/3.1–10–5(d) (West 2008)), which is somewhat mysterious given that this section in no way speaks to the definition of “residency.”

Hey!  What's wrong with you guys?  There's more, but unlike the Illinois Supreme Court, I don't see a reason to pile it on.  The decision was 7-0, though two justices wrote a separate opinion that called out the other five for being so mean-spirited about the decision:

It is for this reason that the tone taken by the majority today is unfortunate. Because our own case law was, until today, unclear, it is unfair of the majority to  state that the appellate court majority “toss[ed] out 150 years of settled residency law” (slip op. at 10), adopted a “previously unheard-of test for residency” (slip op. 17), or was engaged in a “mysterious” analysis (slip op. at 16). In order to properly address the parties’ arguments, the appellate court had to reconcile this court’s conflicting pronouncements on the question of residency. That court did the best it could without the benefit of a supreme court opinion which clarified the standards.

I think that even the bad memos in legal writing don't get that kind of reaction.  Just amazing.  [MG]

Friday Fun: Law School is like High School!

Welcome back for another round of law school. [JH]

ABA Explores Impact of the Underfunding of the Judiciary

The ABA Task Force on Preservation of the Justice System is charged with exploring the extent and impact of the underfunding of the judiciary on access to justice for all. It has launched a survey which will allow the Task Force "to better understand the current economic tsunami and advance solutions to address it." 

The Task Force will also be conducting hearings to receive testimony, comments, and recommendations that will assist it in identifying the key factors surrounding the court funding crisis nationwide.

Atlanta, Georgia Hearing:
February 9, 2011
12:00 p.m. – 5:00 p.m.
Atlanta Marriott Marquis
265 Peachtree Center Avenue
Atlanta, GA 30303
Room M105; Marquis Level

New Hampshire Hearing:
Spring 2011
Details to follow

[JH]

Round-Up of Blogs Published by Self-Help Legal Publisher, Nolo

Nolo's Lawyer Blog
http://www.nololawyers.com
http://www.nololawyers.com/index.xml
Provides information about web marketing, social networking and technology in the legal field. Published by Nolo.

Small Business Legal Blog
http://www.smallbusinesslegalblog.com
http://www.smallbusinesslegalblog.com/index.xml
Discusses news, opinions and legal information for small businesses. Published by Nolo.

The Rap Sheet: Nolo's Criminal Law Blog
http://www.criminallawblawg.com
http://www.criminallawblawg.com/index.xml
Provides insight on criminal law reports, cases and news to the legal community. Published by Nolo.
 
Nolo's Real Estate Tips for Home Buyers & Sellers
http://www.realestatelawtips.com
http://www.realestatelawtips.com/index.xml
Covers real estate tips, opinions and legal information for home buyers and sellers. Published by Nolo.
 
Nolo's Fundraising Tips for Busy Nonprofits
http://www.nonprofitfundraisingblog.com
http://www.nonprofitfundraisingblog.com/index.xml
Covers fundraising tips, opinions and strategies for busy nonprofit organizations. Published by Nolo.
 
Nolo's Employment Law Blog
http://www.employmentlegalblawg.com
http://www.employmentlegalblawg.com/index.xml
Reports on employment law news, cases and legal information. Published by Nolo.
 
Dear Rich: Nolo's Patent, Copyright & Trademark Blog
http://www.patentcopyrighttrademarkblog.com
http://www.patentcopyrighttrademarkblog.com/index.xml
Discusses patent, copyright and trademark opinions, news and legal information. Published by Nolo.

Some Thoughts On Net Neutrality

Net neutrality is a hot topic since the FCC passed rules in December that gave some force to the principle.  The political reaction has been swift, if somewhat predictable.  The meme on the left is that the Commission didn't go far enough.  On the right imposing regulations means more unnecessary government regulation, an attempt to stifle free speech by regulating content, and something that will kill innovation and jobs.  Representative Marsha Blackburn has introduced legislation (H.R. 96), if passed, that would definitively remove any FCC authority to regulate the Internet under any circumstances.  The bill has some 60 co-sponsors.    

Senator Al Franken vigorously slammed the new rules as inadequate and flawed.  Many on the left share his view to various degrees.  Senators Maria Cantwell and Franken are drafting legislation that would write into law stronger regulation than that passed by the Commission.  It will require a broadband Internet provider not to discriminate against content; degrade quality of service because of user choice of legally attached network devices; charge competitors or offer priorized servivces for a fee;  and can't connect devices or use management methods that undermine the law.  The telecoms are sure to oppose this.

Blackburn's bill has a chance to pass the House in this Congress. Similar bills failed in a democratic-controlled House.  Its future in the Senate is uncertain.  Saying that, however, doesn't mean it can't pass.  There were reports of democrats in the House and Senate joining with republicans in signing letters to the FCC opposing Internet regulation.  The most recent CRS report suggests a consensus hasn't fully formed on the issue, though that was five months before the last election.  The bipartisan opposition shows that the major Internet providers have some significant reach with legislative levers of power.  I think with the current political climate that the Cantwell/Franken bill will not get the votes.  I'll mention in passing that President Obama referenced the Internet several times as an economic engine during the recent State of the Union speech. He did not mention or address net neutrality though he's known to be in favor of it.  

The rules at issue are pretty straightforward, even if the adoption process was not.  The Commissioners didn't actually see the final text of the rules until very late in the evening the day before the vote took place.  There were other procedural quirks identified in Commissioner McDowell's statement.  The rules weren't even released to the public until two days after they were adopted.  Not exactly government in the sunshine.  As stated in the Order:

i. Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;

ii. No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and

iii. No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.
The complete text of the Report and Order is here.

Some of the political machinations over the rules may be unnecessary because Verizon is challenging them in court - the same court that ruled early in 2010 that the FCC had no authority under law to regulate or fine Comcast for blocking peer to peer traffic.  Many, and I'm one of them, predict that this court proceeding will have a similar result.  The irony, of course, is that the rules are consistent with the compromise plan submitted by Google and Verizon.  They suggested light regulation with exemptions for wireless access, and that's what they got.  Note that aside from the court action, the telecoms have mostly been muted in their reaction to the rules.  There's a quiet happiness that the Commission didn't take the reclassification route to bring Internet access under its direct control.  

I think the hyperbole on the need for or against net neutrality is overblown.  The Commission's action is neither a government takeover of the Internet or an attempt to regulate content from a First Amendment perspective.  Far from it.  Legal content can't be blocked or held ransom.  At the same time the rules aren't a complete sell-out to the broadband industry.  They curb what would be the most egregious practices that could materialize while preserving the industry's ability to manage and market services.  

For those who say things like "I don't want YouTube to become the next HBO," meaning the end user needing to pay extra to get some content, it's likely not going to happen.  It's true that there is a duopoloy in the wireline Internet market between DSL and cable.  Even with that limited amount of competition I can imagine that the market might prevent, say, AT&T from making the move.  Competitors can easily market themselves by having YouTube free on their networks.  Choose us instead.  Honestly, I don't believe it would get that far.  The FTC and and the DOJ have plenty of authority to investigate collusive or other illegal market practices should the telecoms/cable ISPs act uncompetitively under existing law.

The rules barely touch the wireless industry though content blocking rules apply.  Wireless access has more viable providers who can compete effectively against wired broadband access and each other.  Market forces can work here.  The trend on smart phone plans, for example, is for data caps with additional fees when  more data is consumed beyond the plan's limits.  There are press articles suggesting Verizon will offer an unlimited data plan for iPhone subscribers on its network.  AT&T is mulling reinstating unlimited data plans for customers who had them previously.  There may be a need for future rules on wireless Internet access if there's industry abuse, but I don't believe more comprehensive rules are justified for circumstances that might happen.  Comcast type cases doesn't typically appear on the Commission's enforcement docket.

For those who oppose net neutrality suggesting that innovation and progress are hindered by these rules, that's hardly the case as well.  The rules don't actually challenge existing market and technical practices as much as define their outer boundaries.  There's plenty of room for innovation within those limits.  The early days of the Internet were a time when some people were idignant that it would be sullied with crass commerce.  The Internet has come a long way since those days with commerce now a force driving web trends and standards.  There's plenty of useful technology that came into being from the need to improve web marketing.  Not all of this is bad.   

Finally, for those who think Congress should grant the authority to the FCC to prevent content blocking, consider that Congress loves content blocking.  It tried to pass laws on more than one occassion that limited a child's access to adult-oriented web sites.   The courts struck those down because of Congress' ham-fisted approach to web censorship under the First Amendment.  Congress later passed a law that required adult content filters for Internet accessible computers in libraries receiving public funds.  That law passed court muster.  I don't believe this track record will predict passing a law that limits a access provider from discriminating against content.  

I think the net neutrality rules as promulgated strike a balance between consumers and providers, especially in today's charged political climate.  The Commission acted as best it could to implement some form of regulation at all given the reality of their questionable authority.  Their best hope is to survive the Verizon court action.  If not, Congress is highly unlikely to intervene on behalf of the Commission.  [MG]

Gov. 2.0 Initiatives to Watch in 2011

"What lies ahead for Gov 2.0 in 2011 is worth watching, whether it's international, federal or in states. Given the growth of citizen engagement platforms in 2010, expect more of the same in 2011," writes Alex Howard on O'Reilly Radar. He adds, "Anyone interested in open government, open source software and civic entrepreneurship should keep an eye on the work of the following initiatives in 2011."

• Code for America
• Civic Commons
• OpenGovernment.org
• Urban Scale

More to come, including:

• OpenPublic
• Open Source Cities
• GovHub

Brief overviews of each project provided at Howard's Civic innovation organizations to watch in 2011. [JH]

ALA's Librarian's Guide to Social Media

From the blurb for Laura Soloman's Doing Social Media So It Matters: A Librarian's Guide (ALA Editions, 2010):

This practical resource brings together current information on the topic in a concise format that’s easy to digest. Laura Solomon is a librarian with more than a decade of experience in Web development, design, and technology, and her timely guide

• Provides context on the social media phenomenon.
• Offers practical advice on how libraries can choose, use, and monitor these tools effectively.
• Identifies additional resources and best practices.
• Solomon has written a unique, to-the-point guidebook for those ready to jump into the deep end of the pool and commence or improve their library’s tweeting, posting, and friending.

[JH}

Teaching Alternatives to WEXIS in the Legal Academy

In what could be characterized as a culture shock when a law firm librarian transitions into the legal academy, Laura Justiss, Collection Development Librarian, SMU Dedman School of Law writes,

I was naively surprised to learn that most law students had little, if any, awareness of the electronic services other than Lexis and Westlaw routinely used by practicing attorneys. Of the alternative research databases I had used in my former life as a law firm librarian, only PACER was available in the law school in 2000. There were no court docket services for state courts, such as CourtLink or CourtExpresss; no financial or busiess research databases, such as Live EDGAR or Dun & Bradsteet; no public record databases (other than those available on Lexis or Westlaw); and no intellectual property, engineering or technology research databases such as Dialog. Thus students seldom had the opportunity to learn the existence of such alternatives, let alone why or how a lawyer might use them in practice.

One might say, well I will say, welcome to the huge divide between research instruction in the legal academy and law firm legal research. If the legal academy is going to take legal skills training seriously, instructors in legal research, including academic law librarians, have to extend their expertise. It is one thing to indoctrinate law students in WEXIS. It is quite another thing for academic law librarians to allow this to happen without providing instruction on alternatives to WEXIS.

In A Survey of Electronic Research Alernatives to Lexis and Westlaw in Law Firms, Laura Justiss reports on the findings of responses from PLL-SIS members for primary source alternatives to WEXIS, court docket and case information services, secondary sources for topical legal research, financial, business and news information, public records and more. The list of resources can be viewed as a To-Do list of what needs to be covered to prepare law students to prepare them for leaving the legal academy. In her conclusion, Justiss writes

For law librarians attempting to extract as much value as possible from increasingly limited budgets, I believe these results are, at least preliminarily, good news. While the warp spped advances in reseach technology can tax even the most progressive and cutting-edge among us, the democratization and flattening of the online legal research market, highlighted by these results, promise to yield a better value to the legal profession than the de facto market control of Lexis and Westlaw that has been in place for decades.

Justiss' article identifies many of the electronic resources academic law librarians who teach legal research should focus on. My hunch is vendors will be happy to cooperate by providing access to their services for ALR courses. [JH]

Updated Research Guides from GlobaLex

And they are:

• European Union Legal Materials: An Infrequent User's Guide by Duncan E. Alford
• Comparative Civil Procedure: A Guide to Primary and Secondary Sources by Radu D. Popa & Mirela Roznovschi
• Burkina Faso Legal Information and Research by Kounkinè Augustin Somé
• A Guide to Legal Research in Israel by Michal Tamir; 2011 update by Esther Mann Snyder
• Guide to Legal Research in Norway by Pål A. Bertnes

For new and regularly updated foreign, international and comparative law research guides, visit GlobaLex. [JH]

LSAT Applications Down

Perhaps all that noise in the press about angry law graduates struggling for jobs and ways to pay off their debts is making some impression on potential applicants.  Applications for the LSAT are actually down, according to the December 2010 LSAC President's Report:

For the June and October 2010 tests, the total number of tests administered was 87,318, a drop of 6 percent from those same two tests in 2009. The October 2010 test saw 54,345 test takers, down 11 percent from last year, but it was still the second largest single test administration in the history of the LSAT. Registrations for the December 2010 LSAT administration were, at press time, down 17 percent from last year, but are still quite healthy in historical context.

That doesn't mean reality has set in for everyone everywhere:

The very early read on US applicant and application volumes is similar. To date, the number of applicants to at least one ABA-approved law school is down 9 percent from last year, and those applicants have generated 10 percent fewer applications than at this time last year. However, applications are not down across the board. Currently, 5 percent of schools have an application-volume increase of 30 percent or higher, while 3 percent show a volume decrease of 30 percent or higher. Nearly one-quarter of the schools show an increase in applications, while three-quarters show a decline. Six law schools are showing no change in volume compared to this time last year. 

The report goes on to suggest that some of the decline comes from people who weren't serious about going to law school but took the test anyway.  Still, the volume statistics page shows that Fall 2010 applications (87,500) were up 2.2% from 2009 (85,600).  These numbers are well short of the high mark of 98,700 applicants recorded in Fall 2004.  

I realize that a few thousand applicants here or there isn't going to affect the circumstances or personal success for individual graduates today.  This potential smaller pool of applicants will hit the job market in three years, assuming they even get through law school.  There will still be a glut of lawyers compared to good jobs, even then.  In this context, then, I wonder why anyone would want to start a new law school at all.  There is public law school proposed for the Rio Grande Valley of Texas.  An article in the New York Times points out that the Valley has one of the lowest lawyer-to-citizen ratios in Texas.  Wouldn't it be better to organize a program that brings graduates to these areas than create a local option that just adds to the glut?  Just asking.  [MG]

Technology That Can Help Teach Legal Skills Better: The Case for CaseMap

In New Skills, New Learning: Legal Education and the Promise of Technology(2007), Gene Koo observed that "[l]egal educators seriously under-utilize new technologies, even in those settings, such as clinical legal education, that are the most practice-oriented." In some cases it could be because some forms of technology merely helps achieve the same old goals more efficiently instead of contributing to achieving new pedagogical goals. But there are productivity applications that could be utitlized to improve legal skills education. One is Lexis CaseMap.

In CaseMap as a Tool for the Research Log Function: Finally, a Technology that Can Help us Teach Better, Denver Law's David Thomson reports on using CaseMap in the teaching of legal research and writing. Denver Law was the first law school to use CaseMap. In Update: Using CaseMap in Legal Research and Writing (LRW) Classes and Clinics, Thomson reports that that over 40 schools are now using CaseMap either in their LRW programs, their clinic programs or both. In this brief update, Thomson reports that for teaching legal research and writing,

I quickly discovered that the real reason to use CaseMap was that it allowed me to enter into the stduent's thinking, and by helping them to refine their legal analysis of the problem, to improve the work product the they were about to begin writing.

CaseMap's potential extends well beyond research logs. Thomson, author of Law School 2.0: Legal Education for a Digital Age, also uses CaseMap for his Discovery Practicum. Additional uses could include law school clinics, any practicum that tries to replicate the litigation process, moot court competitions, even advanced legal research courses. Thomson is a trail-blazer in the use of productivity applications that are common in the "real world." See also Sue Altmeyer, (Electronic Services Librarian, Cleveland-Marshall) CaseMap Organizes Facts, Issues, Documents & Research and the ABA's The Lawyer's Guide to LexisNexis CaseMap. [JH]

Contributions for National Legal Research Teach-In Kit Due Feb. 11

Each year the RIPS Teach-In Committee solicits contributions from the law library community to create a compilation of materials for use in developing and advertising educational programs and events for our institutions. These materials are distributed several weeks prior to National Library Week in April to anyone interested in legal research instruction

You can send contributions as email attachments to Laura Ax-Fultz at laura_ax-fultz(at)ca3.uscourts.gov. Any document format that can be attached to email is acceptable. We will accept most any instructional materials that you care to offer:

• course syllabi
• research guides
• lecture notes
• handouts
• assignments
• lesson plans
• PowerPoint shows
• basic instructional guides
• examinations and guided quizzes
• crossword puzzles and trivia quizzes

The deadline for contributions is Friday, February 11, 2011. Check out examples of submissions for last year’s kit. [JH]

Internet 2010 Statistics

Stats covering email, websites, web servers, doman name registration, number of Internet users, social media users, browser share, videos and images are published here. Here's a sample of the reported stats:

• 107 trillion – The number of emails sent on the Internet in 2010.
• 255 million – The number of websites as of December 2010.
• 1.97 billion – Internet users worldwide (June 2010). 42% Asian users
• 152 million – The number of blogs on the Internet
• 175 million – People on Twitter as of September 2010
• 600 million – People on Facebook at the end of 2010.
• 2 billion – The number of videos watched per day on YouTube. 84% are viewed by US Internet users.

[JH]

Supreme Court Action Today

The Supreme Court released four opinions today.  One of them clarifies the reach of federal habeas corpus review in the context of parole.  That case is Swarthout v. Cooke (10-333).  This case is a consolidation of two cases coming out of the Ninth Circuit which challenged parole proceedings in California.  That state has a rule which allows denial of parole if some evidence supports a conclusion that the prisoner is still dangerous. 

In the first case, there was mixed evidence as to the prisoner's suitability for release and parole was denied.  This prisoner went through state habeas proceedings and filed in federal court under 28 U. S. C. §2254.  The District Court denied the petition but the Court of Appeals reversed, holding that the result of the hearing was unreasonable under the evidence.  In the second case, the parole board recommended parole, but the Governor exercising review authority overruled the board.  Both the District Court and the Court of Appeals concluded that the Governor's actions were unreasonable under the some evidence rule.

The Supreme Court reversed both decisions, holding that while there is a liberty interest in parole, due process is implicated to the extent that a prisoner receive a fair hearing and a statement of reasons for denial.  The Court emphatically states, however, because the right implicated is procedural, it does not inquire into whether the state panels reached the correct conclusion.  This is the second time in less than a week where the Ninth Circuit was reigned in on habeas corpus rulings.  See Harrington v. Richter (09-587), and Premo v. Moore (09-658), both emanating from that Circuit.

The case getting the most press is Thompson v. North American Stainless, LP (09-291).  That case involves retaliation under Title VII.  Thompson was an employee of of North American Stainless (NAS) as was his fiance, Miriam Regalado.  She had filed a discrimination case against NAS with the EEOC.  Three weeks later, Thompson was fired.  The question was whether NAS could retaliate against a third party, Thompson, when they could not retaliate against the complainant, Regalado?

The District Court granted summary judgment to NAS over Thompson.  The Supreme Court reversed.  The language of Title VII's anti-discrimination statute was broad enough to cover this activity.  The next inquiry was whether Thompson had a right to sue.  The Court concluded that he did, on the basis of the words "person aggrieved."  They did not limit the range of plaintiff's to the person who filed the complaint.  The Court used this case to draw a distinction that Title VII standing did not reach as far as Article III standing.

In the case of Ortiz v. Jordan (09-737), Ortiz was an inmate who filed a §1983 against defendants for reporting sexual assault by a corrections officer and for retaliating against her for making the report.  At trial, the defendants, Jordan and Bright, filed a motion for summary judgment based on qualified immunity.  The District Court denied the motion on grounds that there were factual disputes.  That ruling was not appealed and the trial resulted in a jury verdict for the plaintiff.  The Sixth Circuit Court of Appeals reversed, holding that the motion for summary judgment should have been granted.

The Supreme Court reversed the Court of Appeals, holding that a party may not appeal a denial of summary judgment after a court conducts a full trial on the merits.  Although a denial of summary judgment is an interlocutory order not subject to appeal, there is an exception for qualified immunity claims.  Jordan and Bright did not avail this option, nor other post-verdict motions they could have made.

Today's final case is Chase Bank USA, N.A. v. McCoy (09-329).  This case involves whether a credit card holder was entitled to notification before rates were raised on his account for cause under the card agreement.  The claim his that by informing the card holder after the fact, the bank violated Regulation Z.  The Court held that the regulation did not make that requirement even though the regulation was unclear on the point.

The Court relied on the Federal Reserve Board's amicus brief (submitted at the request of the Court) to determine the meaning of the rule.  The Court deferred to the agency interpretation unless it was clearly erroneous or inconsistent.  Here, it was not.  The Court stated there is no reason to believe that the Board’s interpretation is a “post hoc rationalization” taken as a litigation position since the Board was not part of the litigation.  It's worth noting that this is another case out of the Ninth Circuit that the Supreme Court reversed.  [MG]

Library Day in the Life Round Six

Starting this week, librarians all around the world are capturing their daily activities in the Library Day in the Life Project.  I try to particpate in these every time they come up because law librarians are under-represented in the libraryland online social landscape and librarianship is still a greatly misunderstood profession by those not in it.  This is a good opportunity to show off what exactly it is we do to our constituents - be it students, county commissioners, managing partners or deans.

I strongly encourage you to give it a try. I'd love to see a glipmse into the life of management, tech services librarians and, yes, maybe even a pubisher or vendor rep or two.   If you are not currently a blogger, setting one up on Blogger or Wordpress.com takes less than five minutes. You can also share your day via Flickr, YouTube or Twitter.  Even if you don't feel ready to take the plunge just yet, you can follow along by searching for the hashtag #libday6 on twitter or librarydayinthelife on the other services. [SG]