December 15, 2012
EFF's Guide to CDA 230
"CDA 230 is crucial to the free flow of expression online. While the rest of the Communications Decency Act, an attempt by the government to regulate indecent content online, was found unconstitutional by the courts, Section 230 survived," writes EFF's Adi Kamdar.
To better inform everyone on the Internet of the importance of this law, we have created an extensive guide to CDA 230. We feel that it is crucial for everyone to familiarize themselves the fundamental laws protecting free speech online, whether you're a lawyer, innovator, student, entrepreneur, policymaker, or simply an Internet user.
Here's EFF's Guide to CDA 230: The Most Important Law Protecting Online Speech. [JH]
December 14, 2012
CALL Illinois Legal Research Guide
This comes from our friends at the Chicago Association of Law LIbraries:
Finding Illinois Law: A Librarian’s Guide for Non-Lawyers
The CALL Government Relations Committee is proud to publish Finding Illinois Law: A Librarian’s Guide for Non-Lawyers . Recognizing that legal research is a specialized skill practiced by attorneys and law librarians, but that the general public often has a need to locate and understand legal information, the Committee presents this guide as a tool to aid non-lawyers.
Download the whole guide (pdf):
Download individual chapters (pdf):
Chapter 1: Introduction to U.S. Legal System by Konya Lafferty
Chapter 2: How to Read Legal Citations by Maribel Nash
Chapter 3: Statutes by Ramsey Donnell
Chapter 4: Cases by Jamie Sommer
Chapter 5: Administrative Law by Deborah Darin
Chapter 6: Municipal Law: The City of Chicago and Cook County, Illinois by Walter Baumann
Chapter 7: Researching outside of Illinois: The Laws of Indiana and Wisconsin by Heidi Frostestad Kuehl
Chapter 8: Free vs. Fee-based Resources by Tom Keefe
Chapter 9: Avoiding the Unauthorized Practice of Law by Tom Gaylord
Chapter 10: Where to Seek Additional Help by Victor SalasChapter 11: Recommended Publishers and Resources by Joseph Mitzenmacher
If other chapters have anything like this, send them in. [MG]
Voting for the 2012 ABA Journal Blawg 100 Closes on December 21
Congratulations to all the nominated blogs. Unfortunately you can't split your vote for two nominees in the Legal Research/Writing category: 3 Geeks and Dewey B Strategic. At the moment, Legal Writing Prof Blog (opps, a member of our Law Professor Blogs Network) is leading in the vote count in that category.
Voting closes on December 21st. That is just one week away. So go here to cast your vote if you haven't already (free registration required).
This year the ABA also announced its inaugural Hall of Fame class. Kudos to the inductees:
- Above the Law
- How Appealing
- Legal Profession Blog
- My Shingle
- New York Personal Injury Law Blog
- Robert Ambrogi’s LawSites
- Simple Justice
- The Volokh Conspiracy
Details here. [JH]
Friday Fun: Career Advice from Justice Sotomayor
"I went to school and studied law and then became a judge." Hat tip to DC Dicta. [JH]
December 13, 2012
Current Law School Admission Stats Not Looking Good
Law schools should be getting nervous about applications these days. The latest Law School Admission Council numbers as of December 7th shows 106,608 Fall 2013 applications submitted by 16,241 applicants. That’s a 22.4% drop in applicants and a 24.6% drop in applications from 2012. Paul Campos calls this “free fall.” He also predicts that the decline will hit the lower ranked schools the hardest as students with good scores will have a choice of better schools than they might when the applicant pool was higher. See my previous post on this subject, Prediction For Law Schools Is Cloudy With Chance Of Closings, for earlier numbers provided by Campos.
So what does this all mean? I think in cash-strapped times it could mean closings, especially for lower ranked tuition-driven institutions. It’s not a question of taking in marginally qualified applicants if they are not there in the first place. The ABA is known to frown on schools admitting unqualified students for the purpose of taking tuition money and flunking them out after the first year. It may or may not get that ugly depending on whether this trend in applications continues. Law schools are going to need a better job market and better publicity for the trend to reverse. I don’t see it happening without a major boost to the economy. I think it was Herbert Hoover who said in 1932 "Prosperity is just around the corner." Even law school deans are not that naïve to think the economy will save their bacon.
Another possible fall-out is a reduction in law school “resources.” Some faculty positions may be at best unfilled and cut at worst. Cutting support staff is another favorite move in the quest to save money. It’s always easy to move out someone who doesn’t have a lot of clout in the operation. I don’t know how it will be played out at various institutions, but I do think it’s going to be worrisome for those in the trenches.
This leads me to two other pieces of law school news. One is that the Association of American Law Schools has placed Villanova on probation within the organization because of its false reports on admission data from awhile back. The reason it took so long for AALS to do this is because the situation is unprecedented in the organization and unlike the ABA, AALS is not an accrediting body. The full letter from AALS communicating their decision is at the Villanova web site. The ABA 2011 Letter of Censure is here.The second is that Indiana Tech’s new law school in Fort Wayne is just about ready to open its doors for operation in August of 2013. An anonymous donor provided eight tractor-trailers worth of books to the school. According to Fort Wayne’s journalgazette.com, the collection was acquired from another startup law school that failed to get ABA accreditation. It’s nice that Indiana Tech received the donation. It should be, however, a cautionary tale that setting up a law school does not always lead to success. [MG]
paidContent's Jeff John Robert's New Book Takes a Look Inside Google's Engineering to Create the World’s Biggest Library
In The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library (GigaOM, 2012), Jeff John Roberts "describes the technological and legal twists and turns of the story through the people affected by it: the authors who feared losing rights to their work, publishers facing lost revenue, technologists pushing for a world where all written knowledge is digital, and librarians who believe in open access to information." From the blurb:
At the dawn of the e-book era, librarians predicted it would take 1,000 years to scan the world’s books. Then, one company set about to do it in five.
Even by the search giant’s standards, it was a bold move. As Google beat a path to the door of the world’s libraries and proceeded to scan everything from War and Peace to Watership Down, the company’s quest to build the largest library triggered a power struggle of massive proportions, as everyone from Amazon to the Justice Department and writers across the world rushed to halt the project.
In this compelling book, Jeff Roberts gives the first detailed account of Google’s grand plan to build a modern day Library of Alexandria and its subsequent undoing, and shows how Google’s gambit changed the way we view knowledge in the digital era.
For an excerpt see The technological imperative which includes links to Amazon, Barnes & Noble, and iTunes. At $2.99 for the ebook, you can't go wrong. Highly recommended. [JH]
December 12, 2012
Short Takes On The News
There is a hearing in an appeal today for the anonymous blogger who allegedly defamed Cooley School of Law. The issue is whether Cooley can publicly identify the blogger as part of the trial proceedings. The school knows the identity of the person via a subpoena to the blogging service used to make the statements in question. The trial court had found the language of the statements strong enough to deny First Amendment protection but delayed proceedings because Michigan has not articulated standards for revealing names in these circumstances. More is at TR News & Insights.
Apparently the debt and job crises in education are not limited to law schools. The Chronicle of Higher Education reports these were hot topics at the recent meeting of the Council of Graduate Schools. One of the points discussed included raising a student’s financial literacy as part of the admission process and continuing throughout the length of the program. This means telling students up front what they are getting into with debt and likely job outcomes. I’ll note that many of the law school-fraud-in job-statistics-cases dismissed so far mentioned far ranging publicity about the legal job market as notice to students entering law school. I’m not sure there is a comparable level of publicity for the rest of the academic job market. The bottom line as always is the investment in education still worth it.
paidContent is reporting on the interesting development by the Financial Times and the Times (London) to offer free or highly subsidized Nexus 7 tablets with a digital subscription. Most content providers grouse over their inability to get people to pay for their online content or make enough in ad revenues to fund operations. News Corp. is shutting down the iPad only electronic newspaper The Daily because it did not generate enough subscribers. This type of promotion may be a way to generate the type of response online news organizations seek. The Nexus 7 is expensive enough to have perceived value to the consumer that a logoed tote bag may not. The tablet is not nearly as expensive as an iPad making an affordable promotion. This may become a model for the rest of the content industry if this offer is successful.
Speaking of the Financial Times, Michael Bloomberg is considering whether to purchase the paper. Another addition to Bloomberg Law? [MG]
Approaching the Fiscal Cliff in the Blind
The Sunlight Foundation, along with the Institute for Policy Innovation, OpenTheGovernment.org, Public Citizen and U.S. Public Interest Research Groups sent a letter dated December 10, 2012 to President Obama, Senator Reid, Senator McConnell, Representative Boehner and Representative Pelosi urging them to "ensure that any legislation resulting from the negotiations is online for 72 hours prior to consideration in Congress" and that any side agreements, including promised votes on future legislation, are also made public. In addition, meetings with lobbyists and other influencers attempting to impact the outcome of the negotiations should also be disclosed online in real time.
The text of the letter is published in Lisa Rosenberg's Groups Urge Transparency Around Fiscal Cliff Negotiations on The Sunlight Foundation's blog. On Nota Bene, Emily Lawson offers some useful resources in her Guide to the "Fiscal Cliff". [JH]
Is It Time to Consider a Comprehensive Government Sector AALL SIS?
I'm a dues-paying member of AALL's State, Court, & County Law Libraries SIS but my involvement is nominal at best (think read the newsletter but nothing else). In part that is because I identify with private law library issues for two reasons:
- My professional DNA was imprinted with very large law firm issues because I spent the first 10 years practicing my profession in that setting; and
- Our little county law library is an official agency that serves our government stakeholders as their in-house library which just happens to be open to private lawyers and members of the general public.
But why is this SIS group limited to state, court and county law libraries? Why are federal law librarians relegated to caucus status when the diversity of both the private sector and academic sector are recognized as SIS groups? After the private sector, federal courts and agencies are the next largest major food group of our vendors. What is going on in the provision of legal resources and services in the federal government market segment is relevant to the "rest of us" at the state and county level. Even if we don't have their buying power, all licensing agreements can be "FOIA-ed," but additional insights on trends and practices could be shared.
It may be time to consider reforming the State, Court, & County Law Libraries SIS to include federal court and agency law libraries under the umbrella of all publicly funded government law libraries. As discussed in Laurie Selwyn & Virginia Eldridge's Public Law Librarianship: Objectives, Challenges, and Solutions (IGI Global, 2012) there are many diverse organizational configurations of state, court and county law libraries. Adding the federal sector will increase that but such unique issues can be addressed within a more comprehensive AALL government sector SIS. [JH]
December 11, 2012
Justice Scalia Compares Sodomy To Murder
Justice Scalia made another newsworthy statement on Monday when he appeared at Princeton University. He responded to a question from a gay student who was offended by his dissent in Lawrence v. Texas where the Justice equated homosexual sodomy with bestiality and murder. Justice Scalia responded by saying:
If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don’t apologize for the things I raise. It’s a form of argument that I thought you would have known which is called the reduction to the absurd. I’m surprised you aren’t persuaded.
Or words to that effect. In deference to the Justice and accuracy, all of the above is accurately what he said, though various news reports broke the response into segments within their text. My own response to this is I didn’t know we decided Supreme Court case outcomes based on the most absurd possible analogies. But who am I to question the methodology of the Court. I can’t predict how Justice Scalia will vote on the legal issues in the DOMA and Proposition 8 cases the Court added to its docket on Friday. I do know without a doubt where his sentiments lie.
Justice Scalia returned to a familiar refrain when he said about the Constitution. “It isn’t a living document. It’s dead, dead, dead, dead.” There. It’s settled.
Other reports on the appearance are available in Slate and Salon if one seeks commentary that heartily disagrees with Justice Scalia’s response to the question. The report in the Los Angeles Times is a bit more neutral. [MG]
Protecting the Copyright Monopoly: Content Industry Associations Successfully Issued a Political Takedown Notice
Last month, the House Republican Study Committee issued a policy brief which concluded that the current US copyright regime inhibits productivity and innovation.
What! In a nutshell, that was the conclusion of the RSC's policy brief titled “Three Myths About Copyright Law and Where to Start to Fix It" (dated Nov. 16, 2012). The RSC's conclusion was based on an examination of "three myths on copyright law and possible reforms to copyright law that will lead to more economic development for the private sector and to a copyright law that is more firmly based upon constitutional principles." The three myths are:
- The purpose of copyright is to compensate the creator of the content
- Copyright is free market capitalism at work
- The current copyright legal regime leads to the greatest innovation and productivity
Each myth was debunked. Quoting from David Post's Republicans Going Copyleft?! on The Volokh Conspiracy:
The Report is well worth reading. Current copyright law is “hampering scientific inquiry,” “stifiling the creation of a public library,”discouraging added-value industries,” “penalizing legitimate journalism and oversight,” and “retarding the creation of a robust DJ/Remix industry.” The Report proposes a series of rather radical — in the Jeffersonian sense — reforms, from dramatically shortening the copyright term (a no-brainer, actually) to expanding fair use and limiting the damages from infringement claims.
Oops! However the policy brief was retracted 24 hours after being released because it had been "published without adequate review" according to RSC Executive Director Paul Teller. "Without adequate review" is code for failing to protect the copyright monopoly for the content industry. In The Case of the Vanishing Policy Memo, Slate's Matthew Yglesias writes:
Common sense suggests there were other reasons for the retraction. Derek Khanna, a tech-savvy young Republican staffer who came to Washington with Sen. Scott Brown before shifting to the RSC to work primarily on cybersecurity and government oversight issues, is clearly well-versed on the subject. He simply lacked the authority to enact a change in position on a topic dominated by powerful interest groups with a ton of money. Khanna’s supervisors seem to have paid too much attention to the merits of the memo and not enough to the larger politics when vetting it. According to Mike Masnick at TechDirt, when news of the memo filtered out to the Motion Picture Association of America and Recording Industry Association of America, those organizations "went ballistic and hit the phones hard, demanding that the RSC take down the report."
"Ballistic" as in both content industry associations assumed that the RSC knew how to lap dance for their campaign contributions.
Why? While not addressing the RSC's policy brief, Kevin Smith hits the nail on its head.
What has developed in the content industries is a sense that copyright exists to support their businesses, so any new way they find to extract a little extra money from the rights they hold should be endorsed and protected by the courts.
Quoting from Kevin Smith's Oct. 18, 2012 LJ article Why Are Some Publishers So Wrong About Fair Use?
You're Fired! In a Dec. 6, 2012 Slate post, Matthew Yglesias reported that the RSC fired the policy brief's author, Derek Khanna. Perhaps he will find a gig with Public Knowledge. At least that think tank group is more open-minded than the RSC. From the Mission Statement:
Public Knowledge preserves the openness of the Internet and the public’s access to knowledge; promotes creativity through balanced copyright; and upholds and protects the rights of consumers to use innovative technology lawfully.
Read More About It. It might have been retracted but Public Knowledge archived a copy of Three Myths About Copyright Law and Where to Start to Fix It. See also Gigi Sohn's Public Knowledge blog post, The Debate over Copyright Reform Cannot Be Censored. [JH]
December 10, 2012
Supreme Court Action: Administrative Appeal Path In Discrimination Cases Under The CSRA
The Supreme Court decided one case this morning, and it’s one with an issue that only a bureaucrat or an administrative law faculty member could love. The case is Kloeckner v. Solis (11-184). The Civil Service Reform Act of 1978 (CSRA) provides an administrative path of review for aggrieved federal employees on the adverse side of a decision. That path leads to review by the Department or directly to the Merit Systems Protection Board (MSPB) unless there are claims of discrimination. That alternative path via discrimination can lead through agencies charged with hearing administrative discrimination claims such as the Equal Employment Opportunity Commission (EEOC), as in this case. These are called “mixed cases.” Judicial review is available to decisions of the MSPB and directed by statute to the Court of Appeals for the Federal Circuit under §7703(b)(1) of the CSRA. However, adverse discrimination decisions are reviewable in the District Court under the statutory regime that prohibits the alleged discrimination under CSRA §7702.
Carol Kloeckner alleged that the Department of Labor (DOL) discriminated against her on grounds of sex and age by creating a hostile work environment. She filed a complaint with the EEOC which caused the DOL to investigate her claim. Her claim was pending before the MSPB as well. Kloeckner was fired as the EEOC case was pending. She moved to dismiss the MSPB action without prejudice and that motion was granted. She had a right to refile by January 18, 2007. She also moved for a hearing before the EEOC which was granted. The administrative law judge in that hearing dismissed Kloeckner’s case in April of 2007 due to bad-faith discovery conduct. The DOL ruled against Kloeckner in October of 2007. She appealed that ruling to the MSPB in November and it was denied as untimely due to the January deadline. Kloeckner sought review in the District Court. That action was dismissed for lack of jurisdiction with the Eight Circuit affirming.
The Supreme Court reversed, holding that the language of the CSRA allows the adverse administrative decision, in this “mixed” case to go to the District Court. §7703 provides for an explicit exception to the Federal Circuit’s jurisdiction through the language of §7702. The government argued that procedural dismissals (such as that of the MSPB) should go to the Federal Circuit, and substantive dismissals to the District Court. The Court rejected this as unsupported in the CSRA language. Justice Kagan delivered the opinion for a unanimous Court. [MG]
Not Yet There: On achieving the "highest priority" in the Action Plan that "emerged from" the 2011 Vendor Colloquium
The Guide to Fair Business Practices for Legal Publishers 3d (2012) was recently approved by AALL's Executive Board and now is available online. According to the December 2012 Vendor Liaison Update:
This publication provides guidelines for legal publishers doing business with librarians and other consumers of legal information. The preparation of an updated edition of the guide was the highest priority in the action plan that emerged from the Vendor Colloquium held in February 2011.
Ah, OK. Here's the complete text of the Action Plan's specific goal:
Goal I-A. Reinforce our commitment to the Fair Business Practices Guide.
Flows from these Shared Principles:
• We strive to maintain clear and transparent communication while understanding that we are each managing a business and owe duties of loyalty to our employers.
• We mutually commit to efficient business procedures and systems.
• Seek a commitment from AALL members and vendors to the practices endorsed by the Fair Business Practices Guide.
• Revise and strengthen the Fair Business Practices Guide.
The "these Shared Principles" is a reference to Shared Principles for Law Librarians and Legal Information Vendors (June 1, 2011). The preamble states that they were developed by the participants of the AALL Vendor Colloquium which as you may recall included most large vendor representatives but few, if any, smaller legal publishers, and that "[t]hey provide an aspirational foundation for further work and communication, similar to a mission statement, and are the basis for the development of a corresponding action plan."
So AALL's Guide to Fair Business Practices has been revised according to the second-listed objective of Goal I-A. "Stenghten[ed]" is debatable. However, do note well that the first-listed objective of Goal I-A is to "[s]eek a commitment from AALL members and vendors to the practices endorsed by the Fair Business Practices Guide." No word in the December 2012 Vendor Liaison Update that AALL has, is, or intends to seek commitments from vendors to follow the revised edition of Fair Business Practices Guide. Instead we have this statement from AALL's Vendor Liasion:
I will continue to encourage all publishers of legal information to comply with the principles contained in the guide.
"To encourage", really? That's not really as strong a statement as to seek a commitment from each and every vendor pursuant to Goal I-A of the Action Plan (or at least those vendors who were represented at the Vendor Colloquium and its statement of Shared Principles). As one of AALL's trusted hired hands who posted this statement as their Vendor Liasion by way of an official AALL web communications medium, rank-and-file members can assume that the above statement is "official" in terms of what AALL officialdom intends to do by way of follow-up (unless retracted by a future Vendor Liasion Update).
Follow-up has never been one of AALL's strengths. That's because our elected national office holders and their hired hands have depended on our association's rank-and-file membership to ignore official statements as being nothing more than hollow words based on a long track record of AALL doing nothing much of consequence for rank-and-file members' vendor-buyer "day jobs." However, there's really no wiggle room here for AALL.
Do you commit to all, some or none of the business practices stated in the The Guide to Fair Business Practices for Legal Publishers 3d (2012)? If you commit to all, please state that in your written response. If you commit to some, please state which ones in your written response. If you commit to none, please state that in your written response.
If AALL receives no written reply to the above questions within X-number of days, AALL will assume that the Company's silence is acceptance of all the endorsed business practices stated in the the Guide.
The written word as the official record stated in the Shared Principles and this specific Action Plan goal requires official written follow-up statements from the vendor community. As the representive of institution buyers known as law libraries, consent to the Fair Business Practices Guide is implied by all law libraries. If AALL issues the Action Plan's mandated solicitation, instead of merely "continues to encourage vendors", my hunch is plenty of AALL members representing their private, government and academic law library buyers will be very interested in reading each vendor's written reply.
Each and every vendor's written reply would be handy to have when invoice-paying law librarians represented by AALL have a problem with a specific vendor that has or has not committed in whole or part to what right now is nothing more than AALL's endorsed business practices. But the audience of public interest is much wider than law librarians. The guidelines also target business conducted with "other consumers of legal information" according to the Vendor Liasion's December 2012 Update. The complete text of all vendor replies should be published on AALLNET outside its walled garden of web communications.
The preparation of the new edition of the Fair Business Practices Guide was not the highest priority in the Action Plan. The highest priority was to seek vendor and AALL commitments to the Fair Business Practices Guide by way of two stated objectives. As of today, that has only been partially achieved by publication of The Guide to Fair Business Practices for Legal Publishers 3d (2012). The most important objective remains.
Note to Vendors. If AALL follows Goal I-A by soliciting your commitment to all, some or none of the currently non-binding in any why, shape or form text known as The Guide to Fair Business Practices for Legal Publishers 3d (2012), do note that the following business practice guideline incorporates by reference AALL's Principles for Licensing Electronic Resources:
2.2 ESSENTIAL PRODUCT INFORMATION. Prior to confirming a purchase, publishers should provide in writing all information necessary for a customer to make an informed decision about products and services, including but not limited to:
2.2(h) If offered in multiple formats, a full description of each available format, including any differences in scope, price breakdown, frequency of update or supplementation, and license restrictions
2.2(h) PRACTICE TO FOLLOW: Review the Principles for Licensing Electronic Resources. These Principles provide guidance to library staff in working with others in the institution and with licensors to create agreements that respect the rights and obligations of both parties. http://www.aallnet.org/committee/reports/LicensingPrinciplesElecResources.pdf
Since (1) the link for the Principles for Licensing Electronic Resources currently sends one to the November 2004 edition, (2) the text of the 2012 edition of Fair Business Practices Guide does not state "as amended or revised" for Principles for Licensing Electronic Resources and (3) AALL's Library Procurement Process Improvements Task Force has been working on revising the 2004 Principles for Licensing Electronic Resources, you might want to seek clarification from AALL on that matter.
My bad. Did I just give AALL a loophole from seeking vendor commitments to The Guide to Fair Business Practices for Legal Publishers 3d (2012). A careful reading of the Goal 1-A would say "no." However, a careful reading of Goal 1-A may lead vendors to conclude that "practices to follow" under 2.2(h) are those stated in 2004. One hellva lot has changed in licensing electronic resources in the last eight years (for example, licensing professional grade enhanced Law eBooks and "productivity solutions" that are tied to vendor research platforms). [JH]
December 9, 2012
A Brief Legal History of One of the Most Influential Players in the History of Baseball, Marvin Miller
Quoting from Christopher Schmidt's recent Legal History Blog post:
Marvin Miller, who led the Major League Baseball Players Association from 1966 until 1982, died last week. Miller is best known for his role in orchestrating the downfall of baseball’s century-old reserve clause system, under which owners basically dictated where players played and for how much. More than any other individual, Miller thrust baseball into the modern era—an era characterized by players regularly moving between teams in search of new multi-million dollar contracts and collective bargaining as a primary policy-making mechanism for the game. Under his leadership, the Players Association went from something of a joke (the players “didn’t know what a union was, but they knew they didn’t want one,” Miller later recalled) to arguably the most powerful union in America. Miller has been rightly celebrated as one of the handful of the most consequential figures in the history of baseball.
For much more, see Schmidt's Marvin Miller: A Brief Legal History. [JH]