Law Librarian Blog

Federal Research Public Access Act (FRPAA) Re-Introduced

Senators Cornyn and Lieberman re-introduced the Federal Research Public Access Act (FRPAA) (S. 1373) [Press release dated June 25, 2009; Text on Thomas]. Specifically, the FRPAA would:

Require every researcher with an annual extramural research budget of $100 million or more, whether funded totally or partially by a government department or agency, to submit an electronic copy of the final manuscript that has been accepted for publication in a peer-reviewed journal.

Ensure that the manuscript is preserved in a stable digital repository maintained by that agency or in another suitable repository that permits free public access, interoperability, and long-term preservation.

Require that each taxpayer-funded manuscript be made available to the public online and without cost, no later than six months after the article has been published in a peer-reviewed journal.

Details and analysis on Open Access News here and here. The Alliance for Taxpayer Access has issued a call to action: "S. 1373 reflects the growing trend among funding agencies – and college and university campuses – to leverage their investment in the conduct of research by maximizing the dissemination of results. It follows the successful path forged by the NIH’s Public Access Policy, as well as by private funders like the Wellcome Trust, and universities such as Harvard and MIT." [JH]

CRS Analyzes Tobacco Legislation

Congress is poised to pass legislation regulating the tobacco industry through the FDA.  One of the elements of the legislation yet to be reconciled between the House and Senate is the reimplementation of the 1996 rule that limited tobacco advertising in locations near schools, among other restrictions. The New York Times cites potential challenges to advertising rules on free speech grounds.  The Congressional Research Service has analyzed the pending legislation and suggests that the advertising rules within the legislation may not be constitutional under current Supreme Court precedent.  The New York Times story is here, and it contains links to the CRS report from NYT servers.  [MG]

President Signs Credit Card Accountability Responsibility and Disclosure Act

President Obama signed the Credit Card Accountability Responsibility and Disclosure Act of 2009, H.R. 627, into law on May 22, 2009. [Open Congress]. The Act prohibit a creditor from increasing any annual percentage rate of interest (APR) applicable to the existing balance on an open end consumer credit card account unless specified conditions are met. Most of the reforms will go into effect on Feb. 22, 2010, roughly four months before similar Federal Reserve protections. Also in the Act, but unmentioned in the White House fact sheet: a provision that makes it legal to carry loaded guns in national parks. See also CCH's white paper, Credit Card Reform: An Analysis of the Credit CARD Act. [JH]

Time to Debate California Sales Tax for Recreational Marijuana

Gov. Arnold Schwarzenegger (R) says he is not necessarily in favor of decriminalizing marijuana, but if California allows the sale of marijuana for recreational use, the sales tax revenue (at $50-an-ounce) could raise $1.3 billion and that why it's "time to debate" the issue. This follows Assemblyman Tom Ammiano's (D-San Francisco) introduction of AB390, a bill that would make California the first state to legalize personal use of marijuana by repealing California's criminal penalties for personal cultivation and possession of up to 10 marijuana plants. AB390, according to the San Francisco Chronicle, does not, however, include retail sales and tax provisions.

Aren't Republicans supposed to be against taxes? Remember the good old days when the street price was $20 for a three-finger bag? [JH]

Finally (Hopefully) Some Relief from Our Current Economic Turmoil for Taxpayers

Sen. Mark Udall (Dem., CO) introduced S. 1058 May 14th. The bill would amend the Internal Revenue Code of 1986 to reduce the tax on beer to its pre-1991 level. God bless Udall and his six bipartisan co-sponsors. [JH]

Should Developers Be Liable For Their Code? New EC Proposal Says "Yes"

Software companies could be held responsible for the security and efficacy of their products, if a new European Commission consumer protection proposal becomes law. Of course the industry's Business Software Alliance (BSA) is critical of the proposal but BSA spokesperson, Francisco Mingorance, does make points for why "digital content is not a tangible good and should not be subject to the same liability rules as toasters." The performance of a piece of software depends on the environment it operates in, how the code is updated, whether it is possible to adapt and modify the software, and whether the code is attacked. For more, see EC wants software makers held liable for code. Hat tip to Slashdot. [JH]

Attention Federal Court Litigators: Statutory Time-Periods Technical Amendments Act Signed

On May 7, 2009, President Obama signed H.R. 1626, Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16 [Thomas]. The Act amends 28 statutory deadlines making them consistent with time-computation amendments to the Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy Procedure, Federal Rules of Civil Procedure, and Federal Rules of Criminal Procedure approved by the Supreme Court on March 26, 2009. The effective date of the legislation is December 1, 2009. [JH]

Federal Reserve Transparency Act: Ron Paul's Latest Federal Reserve Bill Garners Bipartisan Support

Remember Rep. Ron Paul's ritual of introducing go-nowhere bills to abolish the Federal Reserve? Now he has introduced a bill that may have legs. The Federal Reserve Transparency Act of 2009, H.R. 1207 [Thomas | Open Congress] is gaining bipartisan support quickly with over 70 co-sponsors so far and according to Open Congress Blog could be voted on this session.

Removing the barriers to Fed audits under 31 USC 714, H.R. 1207 mandates that a full GAO audit of the the Federal Reserve Bank be completed by the end of 2010 and submitted to Congress. Sounds like a good way to gain some transparency for the Fed's bailout activities. So far, it has issued more than $2 trillion in loan guarantees. [JH]

Lieberman Urges Better Public Access To CRS Reports

Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., urged the new Chairman of the Senate Rules Committee to help foster greater public access to the expert reports produced by the Congressional Research Service. In a letter to Rules Committee Chairman Chuck Schumer, D-N.Y., Lieberman criticizes the pay for play model and highlights the "need for an officially-sanctioned system"  to "ensure that those with power and those without have equal access to this important resource."   [RJ]

Stimulus Act's Official Website

The American Recovery and Reinvestment Act, Pub.L. No. 111-005, has its own official website and the White House recently released eight fact sheets outlining the impact of the Act. [JH]

State Secrets Legislation

After the U.S. Justice Department on February 9 argued before the Ninth Circuit in the case of Mohamed v. Jeppesen Dataplan, Inc., Case No. 08-15693, for affirmance of the district court’s dismissal of an extraordinary rendition lawsuit on the ground of the state secrets privilege (see the New York Times article, and the Washington Post article) legislation was introduced in the Senate that would restrict the use of that privilege in court proceedings.  If enacted, S. 417, the State Secret Protection Act would require a federal district court, on the government’s motion to dismiss a claim on the ground of state secrets privilege, to hold an in camera hearing to determine whether the privilege applies.  If the court finds the privilege applies, the court must determine whether a “non-privileged substitute” for the privileged evidence is feasible, and, if so, the court must order the government to proffer that substitute, and must rule against the government if the government declines to proffer the substitute.  The statute further provides that, if the privilege applies and no non-privileged substitute is feasible, the court may dismiss the claim only if dismissal “would not harm national security” and if “continuing with litigation of the claim or counterclaim in the absence of the privileged material evidence would substantially impair the ability of a party to pursue a valid defense to the claim or counterclaim.”  The bill is discussed in a Washington Post editorial and in a New York Times article.

[Robert Richards]

Dissecting the Stimulus Bill

The House approved the economic stimulus plan Friday afternoon with a vote of 246 to 183, followed by the Senate with a vote of 60 to 38. The President will sign the bill into law today. ProPublic has dissected the 1,000-plus page bill [text] into two charts, one for spending provisions and one for the bill's provisions on taxes, unemployment, health, and state fiscal relief.

Now, who is going to feed the text of the bill into Wordle? [JH]

Oh Gosh! to be the only permitted expletive in the State of South Carolina

South Carolina State Senator Robert Ford has introduced S. 56 to outlaw naughty language. The bill states in part:

Section 16-15-370.    (A)    It is unlawful for a person in a public forum or place of public accommodation wilfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions of a profane, vulgar, lewd, lascivious, or indecent nature.

(B)    A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.

Darn that First Amendment. [JH]

A Little Transparency for Obama's Stimulus Legislation

The not yet in office Obama administration plans to create a Google-like search function to show every program funded by the pending, yet-to-be-drafted multibillion dollar stimulus package, "whether it comes in under or over-budget, whether it is meeting its intended purpose, and how many jobs it is creating" according to ABC News. This appears to be in response to criticism of how the financial industry bailout legislation was shoved through Congress with little time for public review and comment.

Sam Taylor on Washington Policy Center's Blog writes "this is a fantastic idea and should be expanded to the full federal budget. In fact, it's not a bad idea for the state budget[s] either." See Washington State's searchable budget website which went live on Dec. 3, 2008.

E-Government Reauthorization Act Appears Dead

Congress Daily's Andrew Noyes reports that the E-Government Reauthorization Act of 2007 [Open Congress] is probably dead in the Senate for the time being because of a dispute over a new new privacy protections amendment offered by Senate Judiciary Chairman Patrick Leahy. According to the story, Leahy appears willing to sink the reauthorization if his amendment is not added. [JH]

Big Three Bailout Bill Crashes in the Senate

The deal-breaking issue, failing to agree on UAW wage cuts. Senate Majority Leader Harry Reid, D-Nev., said there would likely be no more Senate work this year. The Senate's action raises the likelihood that GM and Chrysler will have to file for bankruptcy protection, which will allow them to renegotiate their labor contracts and unilaterally implement their final offer if the UAW refuses to accept the terms and the bankruptcy court approves the final offer. That, however, can take months.

Check out coverage on CQ Politics, New York Time and Washington Post. See LLB's earlier post on H.R. 7321, the House version of the $14 billion auto industry bailout bill. [JH]

Auto Industry Financing and Restructuring Act

Although not yet available on Thomas [H.R. 7321], you can get a sneak peak at the Auto Industry Financing and Restructuring Act from the House Committee on Financial Services.  While only 37 pages long, they've also included a nice 2 page summary highlighting the major points.  [RJ]

The Omnibus Child Welfare Act Explained

On Oct. 7, 2008, President Bush signed H.R. 6893, the Fostering Connections to Success and Increasing Adoptions Act of 2008 into law (P.L. 110-351)[Thomas]. In Child Welfare: The Fostering Connections to Success and Increasing Adoptions Act of 2008, the Congressional Research Service explained that the Act is "an omnibus child welfare bill designed to ensure greater permanence and improve the well-being of children served by public child welfare agencies. The legislation received strong support in Congress and, beyond revising and extending the Adoption Incentives program, responds to a range of issues and concerns that have been raised (some for more than a decade) by public child welfare administrators; youth, adoption, tribal, and child welfare advocates."

From the Report's summary:

It makes significant changes to federal funding for child welfare programs, which include authorizing new federal support for states that provide kinship guardianship assistance to eligible children leaving foster care; expanding eligibility for federal adoption assistance (by phasing out, over FY2010-FY2018, income and other eligibility criteria that are based on dated cash welfare program rules); extending, as of FY2011, eligibility for federal foster care assistance to youth who remain in care beyond their 18th birthday, up to age 21; and phasing in additional support to states for child welfare related training. Additionally, the bill authorizes tribal child welfare agencies, as of FY2010, to directly access federal funds for foster care, adoption, and guardianship assistance under the Title IV-E program, provided the tribes meet substantially the same requirements made of states. The bill also appropriates $15 million in annual funding, for five years, for a new competitive grant program, Family Connection Grants. Apart from these financing changes, P.L. 110-351 establishes new requirements for receipt of federal child welfare funding by public child welfare agencies. These include several that focus exclusively on the health and education status of children in foster care and others intended to ensure, or enable, sibling and other kinship connections for children in, or entering, foster care, and those leaving to adoption or guardianship. The bill also requires states to make new efforts related to planning for the transition of older children leaving foster care for independent living and requires states to inform prospective adoptive parents of foster children of their potential eligibility for the adoption tax credit (under the federal tax code). Many of the changes included in the new law are projected by the Congressional Budget Office (CBO) to increase federal spending for child welfare. However, the increases are projected to be fully offset (over the next five and ten years) by savings or increased revenues to the federal treasury that CBO expects to be produced by other changes in the bill (both related and unrelated to child welfare policy).

[JH]

Is Orphan Works Legislation Needed in a Post-Google Book Copyright Settlement World?

Larry Lessig, who has long opposed orphan works legislation, takes the announcement of the Google Book Search tentative settlement as an opportunity to reiterate his opposition:

The biggest loser in this whole battle is the Orphan Works legislation. If anyone needed evidence to demonstrate that it is WAY TOO EARLY for Congress to be passing massive new bureaucratic overlays to copyright to deal with the important problem of "orphan works," this is the evidence. Let's let this private alternative develop, while Congress puts away its billion-factor balancing tests for regulating access to "orphan works."

However, Jef Pearlman, an Equal Justice Works Fellow, argues that orphan works legislation is still needed in this Public Knowledge Blog post:

As long as there are large quantities of works out there where the rights holders are unknown and unreachable, we will need congressional intervention to protect the use of those works. And while the Google Book Search settlement does give us access (through one party) to lots of works, and establishes a registry to help shrink the number of orphaned books, there is still a huge orphan works problem lurking out there and demanding a more comprehensive solution.

See also LLB's early posts: Google Reaches Tentative Settlement of Book Search Copyright Class Action and Has Google's Tentative Copyright Settlement Made It More Difficult for Others To Compete With Its Book Search Service? [JH]

Committee Holds Hearing on the the Role of Federal Regulators in the Financial Crisis

The House Committee on Oversight and Government Reform held a hearing entitled, “The Financial Crisis and the Role of Federal Regulators”. The hearing examined the roles and responsibilities of federal regulators in the current financial crisis. A preliminary hearing transcript is available for download.

Related Documents:

• Opening Statement of Chairman Waxman
• Testimony of Alan Greenspan
• Testimony of John Snow
• Testimony of Christopher Cox
• Preliminary Hearing Transcript
• Video of the Hearing