Law Librarian Blog

Supreme Court Action Today - Fourth Amendment and Patents

The Supreme Court issued two opinions this morning.  The opinion getting the most press attention is Ashcroft v. al-Kidd (10-98).  In that case, American born Abdullah al-Kidd was detained by federal agents as he was boarding a plane to Saudia Arabia.  The basis for this action was the federal material witness statute, 18 U. S. C. §3144.  The warrant to hold al-Kidd was obtained by presenting information of a Magistrate Judge that crucial information regarding the prosecution of Sami Omar  al-Hussayen would be lost if al-Kidd boarded the flight.  Al-Kidd was never called as a witness and claimed the government never intended to call him.  He sued then Attorney General Ashcroft on a Bivens claim that his arrest under the material-witness statute was pretextual.  The District Court denied the government's motion to dismiss on either absolute or qualified immunity theories, and the Ninth Circuit affirmed.

The Supreme Court reversed, in an opinion by Justice Scalia.  He wrote that the motivation of the arresting officers cannot be the basis of a constitutional challenge to a validly issued warrant in a material witness case.  There are only two exceptions to the rule that motivation is not an issue.  These are special needs, where the activity is justifiable beyond the normal need for law enforcement, and and administrative warrants which generally have a subjective purpose.  Justice Scalia's examples for special needs are the need to deter drug use in public schools, or to assure that transportation employees are not under the influence of drugs or alcohol.  Even under these circumstances, he says, there are at least the barest suspicion that trigger validity.  The case at hand, however, as the Ninth Circuit reasoned to the contrary, does not resemble a case where generalized suspicion or motivation is an issue.

The warrant was issued by a neutral Magistrate Judge.  The affidavit presented to the MJ contained individualized reasons why al-Kidd was a material witness and suggested that his testimony would be lost if he left the country.  Al-Kidd, Justice Scalia says, does not argue that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant to secure his arrest.  As such, there is no constitutional violation.  Ashcroft is entitled to qualified immunity in this case even assuming that the detention policy violated the Constitution.  Ashcroft, Justice Scalia says, did not knowingly violate the law as it was not clearly established.  

There were no dissents, as eight Justices joined in the judgment of the Court, though four Justices questioned whether the warrant was validly obtained and other questions surrounding the arrest and detention.  Justice Kennedy, in particular, noted that the Court does not decide the whether the arrest is valid under either the Warrant Clause of the Fourth Amendment, or the separate reasonableness requirement for seizure of the person.     

The issue before the Court is whether former Attorney General Ashcroft was entitled to immunity in the Bivens action, and not the underlying arrest.  He, and the other Justices had lingering questions as to the warrant and arrest details.  That aspect of the case was not before the Court and the other opinions in the case made that clear, lest lower courts assume that issue is addressed in this case.

The second case is Global-Tech Appliances, In. v. SEB S.A. (10-6).  This is a patent case which addresses the level of intent necessary for liability under §271(b) of the Patent Act.  SEB invented a unique deep fryer.  Sunbeam asked one of SEB's subsidiaries, Pentalpha Enterprises, to supply deep fryers made to certain specifications.  Pentalpha purchases an SEB fryer made for sale in foreign markets that did not contain U.S. patent markings and copied all of its features save those that were cosmetic.  Pentalpha conducted a right to use study but did not inform the attorney it retained that it copied the SEB design.  The attorney issued an opinion that the design did not infringe any patents.

SEB sued Sunbeam, who informed Pentalpha of the suit.  Sunbeam settled, and SEB then sued Pentalpha.  SEB asserted liability against Pentalpha for inducing Sunbeam and others to sell the fryers in violation of SEB's patent rights.  SEB won at trial.  The Court of Appeals for the Federal Circuit held that a showing of an infringer knowing or should have known that it's actions would induce infringement included a deliberate disregard of a known risk of a protective patent, and that is a form of actual knowledge required by the statute.

The Supreme Court affirmed the decision, but stated that actual knowledge is required under §271(b).  Nonetheless, there was ample evidence to find liability under the doctrine of willful blindness.  The doctrine requires that a party must subjectively believe that there is a high probability that a fact exists and the defendant takes deliberate actions to avoid learning of that fact.  The Federal Circuit's statment of of the test is different, the evidence in the record meets the correct statement.  [MG]

Google's New Official Search Blog

From the "Hello World" post of Google's Inside Search: "Here you’ll find regular updates on our algorithms and features, as well as stories from the people who work to improve Google every day." [JH]

Class Action Filed Against Thomas Jefferson School of Law Over Misrepresentation of Placement Data

A big hat tip Kyle McEntee, Executive Director of Law School Transparency (LST) for calling attention to this pending class action lawsuit filed by a Thomas Jeferson School of Law (San Diego, CA) grad who is seeking judicial relief from her alma mater under California State law in the Superior Court of the State of California for the County of San Diego. The complaint alleges five causes of action (image, right), including that the law school has engaged in “fraudulent and deceptive business practices,” for “a practice of misrepresenting its post-graduation employment statistics,” and that “the disservice the Thomas Jeferson School of Law is doing to its students and society generally is readily apparent.”

The potential class could number at least 2,300 others. Text of the complaint by way of Law School Transparency. LST's Class Action Suit Filed Against Thomas Jefferson School of Law provides an excellent summary of the complaint as well as a review of the current employment information Thomas Jefferson School of Law provides on its website. Highly recommended. See also ABAJ's coverage at Honors Grad Working as Doc Reviewer Sues Law School, Says She Was Misled by US News Stats.

The complaint, by the way, cites a number of news articles and quotes from law school faculty and administrators over the last few years to demonstrate a widespread consensus that schools are engaged in unfair and misleading practices. 

Hello Senator Boxer. The last time I checked one of the FTC's statutory responsibilities was to protect consumers from unfair and deceptive practices in commerce. Since this lawsuit was filed in her home state and thinking she may be underwhelmed by the ABA response to her request for information about what the Association is doing to improve its oversight of admissions and post-graduation information reported by law schools, hopefully Senator Barbara Boxer (D-CA), a member of the Senate Committee on Commerce, Science, and Transportation, may want to call the legal academy and its current accreditation body to the Hill for committee hearings. See Who Ultimately is Master of the Domain? ABA Responds to Senator Boxer's Request for Information About What the ABA Is Doing to Improve Its Oversight of Reported Law School Placement Data. [JH]

PATRIOT Sunset Extension Act of 2011 "Signed" into Law

Late last Thursday S. 990, PATRIOT Sunsets Extension Act of 2011 [Thomas], was signed into law shortly before sections of the Act were set to expire. In what appears to be a presidential first, an autopen was used at the direction of President Obama who was in Europe and who apparently would not have received a copy of the bill before "sunsets" kicked in. Ah, no email access to receive an authenticated PDF that could have then been printed? I thought this was the high tech White House administration.

Some may question the legality of using an autopen under Article 1, Section 7 of the Constitution. The New York Times reports that White House officials relied on a 2005 DOJ memorandum which concluded that “the president need not personally perform the physical act of affixing his signature to a bill to sign it.” See Making Legislative History, With Nod From Obama and Stroke of an Autopen. One has to wonder if any opponents of S. 990 will litigate the issue. Imagine a brief on the merits with string citations to Justice Scalia. Food for thought or mindless navel gazing? Constitutional law prof scholars have all summer to chew on this issue for a potential SSRN paper.

Ruthann Robson, Professor of Law & University Distinguished Professor, CUNY School of Law, authors the first blog post I've seen on the issue. See Originalism and the Autopen: Obama's "Signing" of Patriot Act Extension on Constitutional Law Prof Blog (May 30, 2010) (Link to the 2005 DOJ memorandum provided by the post). Quoting from the post's concluding paragraph:

Although President Bush never relied upon the Memorandum issued in 2005, and the use of the autopen has provoked satire ("Despite possible constitutional challenges, the Supreme Court is expected to uphold the practice given that opposing it would likely offend Justice Scalia's autopen, Clarence Thomas"), it seems that while Obama's resort to the autopen may be a first, it is not unconstitutional, even under an originalist interpretation.

Call me old school but I want my president to put pen to paper when signing every bill into law. Legal or not, an autopen should be left to mass mailings. And no, use of an autopen is not indicative of a high tech administration IMHO.

S. 990 as "signed" reauthorizes the three controversial government surveillance powers from the PATRIOT Act to June 1, 2015 despite some unsuccessful bipartisan Congressional opposition. See the ACLU's Four More Years of Unchecked Spying, Surveillance and Secrecy and the Washington Post's Patriot Act extension signed into law despite bipartisan resistance in Congress. Quoting from a pre-S.990 ACLU analysis (since no changes, why not):

Section 215 of the Patriot Act authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person's privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.
 
Section 206 of the Patriot Act, also known as "roving John Doe wiretap" provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.
 
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called "Lone Wolf" provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government's investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.

See also the ACLU's 2009 report, Reclaiming Patriotism: A Call to Reconsider the Patriot Act, which could be reissued as a 2011 report. [JH]

In Remembrance for Those Who Have Died Serving Our Country: Oliver Wendell Holmes, Jr. on the Observance of Memorial Day

Source: Photo by SGT Parker, US Army, The Old Guard. Arlington National Cemetery's 2007 Flags In. Arlington National Cemetery

Excertps from two Memorial Day addresses by Oliver Wendell Holmes, Jr.

In Our Youth Our Hearts Were Touched With Fire (1884):

So to the indifferent inquirer who asks why Memorial Day is still kept up we may answer, it celebrates and solemnly reaffirms from year to year a national act of enthusiasm and faith. It embodies in the most impressive form our belief that to act with enthusiasm and faith is the condition of acting greatly. To fight out a war, you must believe something and want something with all your might. So must you do to carry anything else to an end worth reaching. More than that, you must be willing to commit yourself to a course, perhaps a long and hard one, without being able to foresee exactly where you will come out. All that is required of you is that you should go some-whither as hard as ever you can. The rest belongs to fate. One may fall-at the beginning of the charge or at the top of the earthworks; but in no other way can he reach the rewards of victory.

The Soldier's Faith (1895):

Most men who know battle know the cynic force with which the thoughts of common sense will assail them in times of stress; but they know that in their greatest moments faith has trampled those thoughts under foot. If you wait in line, suppose on Tremont Street Mall, ordered simply to wait and do nothing, and have watched the enemy bring their guns to bear upon you down a gentle slope like that of Beacon Street, have seen the puff of the firing, have felt the burst of the spherical case-shot as it came toward you, have heard and seen the shrieking fragments go tearing through your company, and have known that the next or the next shot carries your fate; if you have advanced in line and have seen ahead of you the spot you must pass where the rifle bullets are striking; if you have ridden at night at a walk toward the blue line of fire at the dead angle of Spottsylvania, where for twenty-four hours the soldiers were fighting on the two sides of an earthwork, and in the morning the dead and dying lay piled in a row six deep, and as you rode you heard the bullets splashing in the mud and earth about you; if you have been in the picket-line at night in a black and unknown wood, have heard the splat of the bullets upon the trees, and as you moved have felt your foot slip upon a dead man's body; if you have had a blind fierce gallop against the enemy, with your blood up and a pace that left no time for fear --if, in short, as some, I hope many, who hear me, have known, you have known the vicissitudes of terror and triumph in war; you know that there is such a thing as the faith I spoke of. You know your own weakness and are modest; but you know that man has in him that unspeakable somewhat which makes him capable of miracle, able to lift himself by the might of his own soul, unaided, able to face anniliation for a blind belief.

...

As for us, our days of combat are over. Our swords are rust. Our guns will thunder no more. The vultures that once wheeled over our heads must be buried with their prey. Whatever of glory must be won in the council or the closet, never again in the field. I do not repine. We have shared the incommunicable experience of war; we have felt, we still feel, the passion of life to its top.

Originally posted May 29, 2006. [JH]

Round-Up of Law Practitioner Blogs

St. Louis Injury Attorneys Blog
http://www.stlouisinjuryattorneysblog.com/
http://www.stlouisinjuryattorneysblog.com/index.xml
Reviews personal injury law news, cases, and reports in Missouri. Published by Law Offices of Marshall R. Hoekel, LLC and Robert Goldson, The Goldson Law Firm.
 
Kentucky Employment Lawyer Blog
http://www.kentuckyemploymentlawyerblog.com/
http://www.kentuckyemploymentlawyerblog.com/index.xml
Reviews employment law news, cases, and reports in Kentucky. Published by Miller & Falkner, Attorneys at Law.
 
Chicago Business Lawyer Blog
http://www.chicago-business-lawyer-blog.com/
http://www.chicago-business-lawyer-blog.com/index.xml
Reports on business law cases, news, and legislation in Illinois. Published by Jeremy A. Gibson & Associates.  
 
St. Louis Bankruptcy Lawyers Blog
http://www.stlouisbankruptcylawyersblog.com/
http://www.stlouisbankruptcylawyersblog.com/index.xml
Covers bankruptcy news, opinions, and legislation in Missouri. Published by Brinkman & Alter.

Pennsylvania Workers' Compensation Attorney Blog
http://www.pennsylvaniaworkerscompensationattorneyblog.com
http://www.pennsylvaniaworkerscompensationattorneyblog.com/index.xml
Discusses workers' compensation news, cases and reports in Pennsylvania. Published by Kunkel & Fink, LLP.

Time to Vote for the 2011 Salem Press Library Blog Awards

Salem Press has opened voting for its 2011 Library Blog Awards in the following categories:

General: Blogs providing broad discussions of library topics and trends, including reviews of books and products

Academic: Blogs targeting academic librarians and academic institutions

Public: Blogs addressing the challenges and triumphs of public librarianship

School: Blogs covering topics relevant to school libraries and K-12 education, including reviews of children's literature

Local: Institution-specific blogs promoting the interests of a public, academic, or school library

Commercial: Professional blogs written for profit, generally tied to a trade publication, a publisher, or vendor

Newcomer: Blogs by next-gen librarians who have only recently started blogging

Quirky: Character-driven blogs covering an array of library topics that defy categorization

[JH]

Friday Fun: I'm in a court!

From the University of Alberta Law Show 2010. OMG, law students have been released from the legal academy cage! [JH]

Research Methodologies in EU and International Law

By Robert Cryer, Tamara Hervey and Bal Sokhi-Bulley, with Alexandra Bohm, Research Methodologies in EU and International Law (Hart Publishing, April 2011) (snips from the product description):

Law research students often begin their PhDs without having an awareness of methodology, or the opportunity to think about the practice of research and its theoretical implications. Law Schools are, however, increasingly alive to the need to provide training in research methods to their students. They are also alive to the need to develop the research capacities of their early career scholars, not least for the Research Excellence Framework exercise. This book offers a structured approach to doing so, focusing on issues of methodology - ie, the theoretical elements of research - within the context of EU and international law.

...

The basic aim of the book is to help scholars in EU and international law reflect on their research: where does it fit within the discipline, what kinds of research questions they think interesting, how do they pursue them, what theoretical perspective best supports their way of thinking their project, and so on. The book is aimed both at PhD students and early career scholars in EU and international law, and also at more established scholars who are interested in reflecting on the development of their discipline, as well as supervising research projects.

Hat tip to the International Law Prof Blog post by Dr. Laurent Pech, Jean Monnet Lecturer in EU Law, National University of Ireland, Galway [JH]

New Textualism in Constitutional Interpretation

Virginia School of Law prof James E. announces the dead of two competing schools of constitutional interpretation, living constitutionalism and old-style originalism, in Laying Claim to the Constitution: The Promise of New Textualism [SSRN]. From the abstract:

Instead, there is increasing convergence in the legal academy around what might be called “new textualism.” The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means.

This might not sound revolutionary. But it is. This Article explains how we have arrived at this point, why it is significant, and what work remains to be done. In particular, it explains why new textualism is especially important to progressives, as it offers them both a principled and promising means by which to lay claim to the Constitution. New textualists are effectively rebutting, once and for all, the false but still-common perceptions that only conservatives care about the text of the Constitution and that the Constitution itself is fundamentally a conservative document. If new textualists succeed in their effort to show that the Constitution - all of it, including the amendments - is actually a quite progressive document, this reorientation would represent the most significant shift in constitutional theory and politics in more than a generation.

Hat tip to Constitutional Law Prof Blog. [JH}

Opening: Two Reference Positions, Univ. of Miami Law Library

The University of Miami Law Library has two reference positions available. In addition to general reference responsibilities, the Reference/Instructional Services Librarian primarily does outreach to students and student groups, and the Reference/Internal Instructional Services Librarian primarily does outreach to the law school staff and departments. For detailed information about the positions, please visit www.law.miami.edu/library/positions.php.

Supreme Court Action Today - Immigration and More

The Supreme Court issued four opinions this morning.  The one getting the most news is Chamber of Commerce of United States of America v. Whiting (09-115).  The Chamber of Commerce and others challenged an Arizona law, the Legal Arizona Workers Act, which provided that the business licenses of entities that knowingly or intentionally employed unauthorized aliens can be suspended or revoked.  The Act also required employers to use the E-Verify database, which is an Internet based system employers can use to check the work authorization status of employees.  Congress created E-Verify when it passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  

The Chamber argued that the Arizona law was preempted by the Immigration Reform and Control Act (IRCA), which makes it unlawful to employ unauthorized aliens.  IRCA placed limitations on the states in passing their own legislation concerning unauthorized aliens though it allowed sanctions on businesses through licensing or similar laws.  

The Court held that this is what the Arizona law does.  As such, the law is valid under IRCA.  The ruling turned on the definition of license in the Arizona law conforming, more or less, with the ordinary meaning of the term as defined in other statutes and dictionary definitions.  The term is stated broadly enough, the Court says, "it is  at the very least  'similar' to one, and therefore comfortably within the savings clause."

The Chamber further argued that the requirement to use E-Verify also was preempted by IRCA.  The Court rejected this stating that IIRIRA does not contain language prohibiting states from requiring employers to use E-Verify.  In any event, not using E-Verify merely removes a rebuttable presumption of compliance with federal and state law.  

Chief Justice Roberts delivered the opinion of the Court only with respects to some of its parts.  Other parts drew no more than three justices.  Five Justices, though, concurred in the judgment.  Justice Breyer filed a dissenting opinion joind by Justice Ginsburg.  He disputed how the term license was used by the majority in state and federal legislation.  Justice Sotomayor filed a dissenting opinion as well.  Justice Kagan did not participate in the case.

The next case is a Speedy Trial Act case, United States v. Tinklenberg (09-1498).  The Act requires trial after arraignment within 70 days, subject to exclusions, including “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion,”

Tinklenberg's trial began 287 days after arraignment.  The District Court calculated 218 days fell within the exclusion with 69 days otherwise falling within the Act's requirement.  The Sixth Circuit recalculated the days and said 9 days where pretrial motions were pending did not count bringing the total to over 70 days.  As Tinklenberg had already served his sentence, that court ordered the indictment dismissed with prejudice.

The Court held that the Act does not require the pretrial motion to have actually caused a delay of trial.  The Act stops the clock by filing the motion by its terms, though not so explicitly that the Sixth Circuit's reading was unreasonable.  The Court examined the structure of the Act's lists of exceptions, and how they were characterized.  The Court stated it's reading of of the structure, combined with every other Circuit rejecting the Sixth Circuit's reading over 37 years of jurisprudence, and other factors, compelled the result.

Nonetheless, the Court affirmed the Sixth Circuit judgment ordering the indictment dismissed with prejudice.  It took the unusual step of considering how the number of transportation days allowed under the Act were calculated.  The lower courts exempted some transportation days allowed as excluding weekends and holidays under Federal Rule of  Criminal Procedure 45(a).  The Court's reading of the statute does not incorporate the Federal Rule.  They reach the same result, but for different reasons.  

Justice Breyer wrote the opinion, joined by Justices Kennedy, Ginsburg, Alito, and Sotomayor.  Chief Justice Roberts and Justices Scalia and Thomas joined in parts of the opinion.  Justice Scalia also filed a concurring opinion.

In Fowler v. United States (10-5443), Fowler was convicted of violating the federal witness protection statute which makes it a crime to kill another person with the intent of preventing that person from communicating with federal law enforcement officers with information relating to the commission of a federal crime.  Fowler and others were planning a bank robbery and were discovered by a police officer, whom they killed.  The Eleventh Circuit upheld Fowler's conviction, saying that the government's showing of possible communications was enough.

The Court held that the government must show that a relevant communications would have been made to a federal officer.  The Court reads the statute to require intent of preventing the communication, though not to any specific federal officer.  The Court remanded the case to the lower courts to consider the evidence in light of the Court's standard.

The last case is Camreta v. Greene (09-1454).  This case presents the Court with procedural issues concerning its own jurisdiction to hear some appeals.  The underlying facts concern a suit for damages under 42 U. S. C.  §1983 where a state child protective services worker and a county deputy sheriff interviewed a 9 year old child on allegations that her father had abused her.  The interview was conducted without a warrant or parental consent.  The father was tried after these individuals secured statements of abuse from the child.  The jury failed to reach a verdict and the charges were later dismissed.  The child's mother filed the federal tort claim claiming that the in-school interview violated the Fourth Amendment.

The District Court granted summary judgment to the officials.  The Ninth Circuit held that the interview as conducted violated the Fourth Amendment, but held the officials had qualified immunity from suit and affirmed the District Court.  The Ninth Circuit said the ruling on Fourth Amendment claim would put officials on notice that this type of conduct was prohibited by the Constitution.  The winning officials took the unusual step of appealing the rationale of the decision even though it was in their favor.  The child declined to cross-petition the ruling.

The Court stated that under Article III, these officials could bring the case to the Court despite the favorable ruling as the case-or-controversy requirement is met as they would have to change their conduct as long as the Eleventh Circuit ruling stood.  The Court was careful to note that its ruling only concerned its own authority to review cases in this procedural posture and did not apply to the Circuit Courts of Appeal.  The Court also noted that this ruling did not compel it to hear similar cases if it chose not to.

The Court, however, dismissed the appeal.  It stated that the child is about to turn 18 and will no longer have an interest in the outcome as the prohibited conduct could never occur to her again.  The case is moot.  Under these circumstances, the court vacates the Ninth Circuit's constitutional holding as the moot posture has frustrated the petitioner's ability to challenge the Ninth Circuit's ruling.
Justice Kagan wrote the opinion, joined by Chief Justice Roberts and Justices Scalia, Ginsburg, and Alito.  Justice Sotomayor filed a concurring opinion, joined by Justice Breyer.  Justice Kennedy filed a dissenting opinion, joined by Justice Thomas.  [MG]

Friday Fun on Thursday: Who Says Newspapers Are Dead

The Onion News Network reports newspapers are refocusing their designs to retain subscribers.

Boston Globe Tailors Print Edition For Three Remaining Subscribers

Hope everyone enjoys an extended Memorial Day weekend holiday by taking tomorrow off! [JH]

Librarian Fights HarperCollins' Limits on eBooks (or Why It is Time for Bull Moose Law Librarians to Take a Stand)

"A Burlington County librarian has become a leader in a crusade against a major publishing house that has set a limit on how many times its e-books may be borrowed from public libraries," writes Barbara Boyer in Burlington County librarian fights HarperCollins' limits on e-books.

Who? A member of the Old Guard of AALL ready to start thinking outside of the box? Yeah, right. I think they are busy reenacting the Civil War in "rebel" grey uniforms. Sorry folks, it is an intentional metaphor for fighting to preserve slavery in the AALL-represented buyer-vendor relationship ... and is not intented to imply preserving "cultural heritage" or "state's rights."

The librarian is Andy Woodworth, a 34-year-old member at the Bordentown Library (NJ), an LJ 2010 Mover & Shaker and co-author of The eBook User’s Bill of Rights with Sarah Houghton-Jan (aka Librarian in Black). Boyer writes "[t]he Maple Shade resident launched an online petition last month to encourage librarians to boycott HarperCollins e-books and pressure the company to reconsider. The petition has attracted thousands of signers."

Hum ... Perhaps ad hoc action is the necessary corrective. If it takes a bunch of village elders to make an idiot out of a professional association of law libraries, maybe it takes ad hoc group action by young, energetic and forward thinking law librarians outside of the village to mount a campaign for change.

Case in point with respect to Woodworth's campaign, Boyer reports

At the Free Library of Philadelphia, purchases of HarperCollins e-books are on hold, said Anne Silvers Lee, chief of materials management. The library is not boycotting the company, which provides 20 percent of its e-books, she said. But it is watching to see how the matter is resolved before submitting new orders.

Well, the odds are high that LJ's 2012 list of Movers & Shakers won't list any of AALL's Old Guard. But there's still some hope. Just five years older than Woodworth, HLS's John Palfrey made LJ's 2011 list in the Change Agents category. As long as Palfrey sticks to ad hoc group action and doesn't get embroiled in the Vatican-esque affairs of AALL officialdom, there is some hope for law libraries. This damn profession of ours needs young movers and shakers imprinted, genetically or otherwise, with the progressivism of Teddy Roosevelt. Time for Bull Moose law librarians to take a stand.

Oh, BTW Boyer's article was published in the Philadelphia Inquirer. Isn't that where Cream Cheese, Cheesesteak or Karaoke is being held?

Hat tip to Gary Price's INFOdocket post. [JH] 

"They're a victim of technology:" West Virginia shutting down regional public law libraries

The Intelligencer / Wheeling News-Register is reporting that West Virginia's regional law libraries are being closed due to lack of patron use. From Shelley Hanson's article, W.Va. Closes Book on Law Libraries:

[Steven Canterbury, administrative director for the West Virginia Supreme Court of Appeals] said it took the court three to four years to decide whether to close the law libraries. After conducting a study on the Huntington law library, it was determined after a three-month period that not one person used that library. The main law library in Charleston will remain open. Its librarian is Kaye Maerz.

The reason for the low use, he said, is because most law case books can be accessed via the Internet. And most law firms use Internet-based services to read case laws online, in addition to using their personal law libraries.

"They're a victim of technology," Canterbury said of the libraries. "Originally they were established to be a great equalizer for one-lawyer shops. ... They wouldn't be outgunned if they didn't have the materials."

[JH]

Opening: Research Analyst, Debevoise & Plimpton

Debevoise & Plimpton LLP, an AMLaw international law firm with over 700 attorneys, is one of the leading law firms in the country. Debevoise is committed to hiring dedicated and talented individuals as members of our administrative community.

Job Description: The firm seeks a technologically savvy law librarian with initiative and excellent analytical skills to serve as a Research Analyst in the Library and Knowledge Management Department.  The position reports to the Research Manager.

Job Summary: This position is responsible for assisting the Research team in providing complex legal and transactional research in a global law firm practice. The individual in this position will have the opportunity to interact with lawyers and support staff at all levels within the firm to advance the firm’s research and knowledge management initiatives.

Responsibilities include but are not limited to:

• Provides customized research services to all attorneys, legal assistants, and support staff.
• Possesses excellent analytical skills to provide pin-pointed work product that is responsive to the need of our lawyers and clients.
• Utilizes appropriate fee based, print and online resources in the areas of law and business to provide excellent practice support  in a timely and cost effective manner.
• Uses project management and planning skills to prioritize competing assignments, work within recognized budgetary constraints and consistently meet tight deadlines.
• Assists with other research tasks and projects as required.

Job & Educational Requirements:

Requirements:

• The ideal candidate will understand the information needs of attorneys in a high pressure, high profile practice.  Attention to detail is critical and the ability to work under pressure with minimal supervision is essential.
• M.L.S. from an ALA accredited program.
• 4 - 5 years experience at an AmLaw 50 law library or equivalent. 
• Must possess strong case law research skills and expertise with Courtlink, PACER and cite-checking tools
• Must possess proficiency with Lexis; Westlaw; Capital IQ; IntelliConnect; BNA; Bloomberg; DIALOG; Knowledge Mosaic; Mergent; Westlaw Business; and MS Office suite including Excel and Word.
• Hours: 12:00 p.m. – 8:00 p.m. (Monday – Friday)

Contact information & Application Instructions:

To apply please send cover letter, resume and salary requirements to:

Apryl Stevenson-Holden
Human Resources Generalist
Debevoise & Plimpton LLP
919 Third Ave, 28th Floor
New York, NY 10022
aesteven(at)debevoise.com
(FAX) 212.909.6033
(TTY only) 212.909.7833

Debevoise & Plimpton LLP is an equal opportunity/affirmative action employer. All qualified applicants will receive equal consideration for employment without regard to race, color, religion, sex, or national origin or any other legally protected category in accordance with U.S. law. Applicants seeking an accommodation please see “Request an Accommodation” under Additional Information on the Working Here - Administrative Staff Positions section at www.debevoise.com

Some Thoughts On Internet Regulation

The G8 is meeting in France this week.  There is a two day eG8 summit in Paris prior to the main meeting, featuring corporate, Internet, and government elites doing what they always do, making business deals and jostling with conflicting positions on net regulation.  The development getting the most attention is the speech given by French president Nicholas Sarkozy where he signalled his intention to "civilize" the Internet.  He urged governments to take the lead in imposing regulation on the Internet.  He noted "governments are the legitimate guardians of society" in calling for "a basic minimum of values and rules agreed at the world level."

Other participants took this as a lead to encourage stricter legal controls on intellectual property, digital rights management, and systems to control piracy.  France is known for having one of the strictest legal regimes for addressing digital piracy, known as HADOPI.  Under the system, illegal downloading is countered with two warnings followed by a possibility of web disconnection and fines.  One possibly embarrassing glitch in the French system is that Trident Media Guard (TMG), the private company which was contracted to investigate and enforce the law, was breached. IP addresses and names of those under investigation were revealed.  This lead to a temporary suspension of enforcement as TMG sorted out its lax security. 

The United States, for its part, is quite in line with this line of thinking.  It promotes the Anti-Counterfeiting Trade Agreement (ACTA) as a way of imposing DMCA-style rules on as much of the world as possible.  It creates watch lists that identify countries which are not strong proponents of intellectual property controls.  Canada made the yearly "Special 301" list compiled by the U.S. Trade Representative as that country does not have DRM anticircumvention laws, among other flaws in its copyright regime.  The U.S. Senate is considering a bill, the PROTECT IP Act, that would give the Justice Department authority to bring suits against infringing websites and force search engines to delete their listings.  DNS servers would be forbidden from resolving urls to connect to these sites, at least for U.S. residents.  The general approach is to protect large content providers from piracy.

I'm not personally opposed to some form of regulation on the Internet.  I have often said that I don't understand why some individuals believe that libel laws should not be applied to electronic communication.  I also recognize that copyrights should be respected in order to foster a climate where creators and providers can exploit them financially.  However, I question the level of respect necessary when Congress extends protection to copyright beyond the life expectancy of the IP creators and most consumers who use it.  I also question it when IP products are encumbered with digital rights management controls that make them difficult to use practically.  As such, I come to these discussions with mixed feelings.  It's not so much that information wants to be free as much as it wants to be accessed and used without the paranoia of whether or not its ok. 

For example, one of the most recent exemptions granted by the Library of Congress and the Copyright Office allows ripping of DVDs to extract video clips for use in an educational setting.  The problem is that the DMCA prohibits the circulation of the tools that would do this.  Not that they are hard to find, mind you.  Only 15 lines of code were enough to break the copy protection on standard definition DVDs.  Although more complex, it didn't take the technical community to do the same to high definition discs.  There seems to be a contradiction between the law and the exemption.  It's as if the government is saying I can rip in this context provided I hide how I do it. 

I don't want to suggest that I'm encouraging piracy.  The biggest problem I have with statements from Sarkozy about web regulation is the collateral effects that seem not to be considered in protecting business interest.  These are things such as free speech, privacy, neutral access to legitimately available information, and other social considerations.  Are governments the legitimate guardians of society only in the hands of western democracies, or are China and Iran included in his club.  What about the effort of the Egyptian government to shut down the Internet there in what turned out to be a successful revolution?  

Its almost as if protecting intellectual property is the ultimate goal of Internet regulation, where concepts such as fair use get the short shrift simply because technology allows it.  I would prefer a discussion where control is balanced with reasonable use.  There has to be a place in this debate on IP control that leads us to a point somewhere between the corporations and the pirates.  It isn't coming from France (or Congress), that's for sure. [MG]

ABA knows or should know that the LSAT is inherently discriminatory to the blind or visually impaired

The ABA is being sued claiming that the LSAT discriminates against the blind and visually impaired. The suit may become a moot point if the draft accredidation standards removes admission testing as a pre-condition for student enrollment. The ABA likely will respond that Interpretation 503-1, below, allows for the use of LSAT alternatives but the reality is that the LSAT is the de facto norm for pre-admission testing.

In the WJS Law Blog's Federal Suit Claims LSAT Discriminatory, Nathan Koppel reports

The alleged problem, according to the suit, is that one-fourth of the test involves “analytical rezoning” questions that require diagramming to answer correctly.  Here’s an example of one of the objectionable questions, according to the suit:

“A company employee generates a series of five-digit product codes in accordance with the following rules: The codes use the digits 0,1,2,3 and 4 . . .Each digit occurs exactly once in any code; the second digit has a value exactly twice that of the first digit; the value of the third digit is less than the value of the fifth digit.”

Test takers are then invited to answer a series of questions about the proper sequencing of the product codes. “A blind or visually impaired applicant is unable to conceive of spatial relationships or diagram answers in the same manner as their sighted peers,” according to the complaint, which can be found here.

[JH]

2010-2011 ABA Standards for Approval of Law Schools

Standard 503. ADMISSION TEST

A law school shall require each applicant for admission as a first year J.D. student to take a valid and reliable admission test to assist the school and the applicant in assessing the applicant’s capability of satisfactorily completing the school’s educational program. In making admissions decisions, a law school shall use the test results in a manner that is consistent with the current guidelines regarding proper use of the test results provided by the agency that developed the test.

Interpretation 503-1

A law school that uses an admission test other than the Law School Admission Test sponsored by the Law School Admission Council shall establish that such other test is a valid and reliable test to assist the school in assessing an applicant’s capability to satisfactorily complete the school’s educational program.

Welcome to The Bar Review Diaries

ATL is launching a new feature for the next two-odd months called the The Bar Review Diaries featuring three recieve law school grads who will share their experiences with studying for the bar exam and life in general. They are

• Christopher Curran, from UC Hastings Law
• Mariah Ford, from Columbia Law
• Michael Dulong, from UCLA Law

Perhaps next year, ATL will produce a summer reality cable show on the Discovery Channel. Until then, welcome to The Bar Review Diaries! [JH]

Freedom for the Press as an Industry, or the Press as a Technology?

In The Freedom...of the Press, from 1791 to 1868 to Now - Freedom for the Press as an Industry, or the Press as a Technology? [SSRN], UCLA law prof Eugene Volokh "discusses what the 'freedom of the press' has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the “freedom...of the press” has long been understood as meaning freedom for all who used the printing press as technology - and, by extension, mass communication technology more broadly - and has generally not been limited to those who belonged to the institutional press as an industry." (Quoting from the abstract). [JH]