The site does not appear to be updated past 2011, but the legally related cartoons are fun nonetheless if not seen before. Personally, I’m hoping the Supreme Court takes a break so we can get on to other things. Visit Courtoons.net here. – Mark
The third opinion released by the Supreme Court on Wednesday is Lozano v. Montoya Alvarez (12-820). The case involves the timing of filing a petition for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction. The timing of the filing has consequences concerning the remedy available. A petition filed within one year of the abduction allows the court to order the child return. A petition filed after one year allows the court to order the child returned unless it is shown that the child is settled in its new environment.
The timeline in this case finds both parties living with their daughter in London until November 2008 when Montoya Alvarez left Lozano for a women’s shelter. The mother and child left the United Kingdom in July of 2009 and ultimately settled in New York. Lozano did not locate them until November of 2010. He filed a petition for the return of the child in federal district court. That court denied the petition as filed after the one year limitation and that the child was now settled in New York. The Second Circuit affirmed.
The Supreme Court affirmed the decision. The Court ruled that equitable tolling would not be applied in this case. It noted that the treaty was a compact between nations and that American law, in this case equitable notions from the common law, could not be used to interpret the intent behind the treaty. The enabling act passed by Congress does not address this issue and as such, does not apply to the issue of tolling the time to file a petition. Further analysis describes the time limits set forth in the treaty language not to be a statute of limitations. The rest of the opinion is consistent with these notions.
Justice Thomas delivered the opinion for a unanimous Court. Justice Alito filed a concurring opinion and was joined by Justices Breyer and Sotomayor. – Mark
The Supreme Court has been busy in the last week. Three more opinions were released earlier this morning. The first of these is Rosemond v. United States (12-895). Rosemond was part of a drug deal gone bad. He was with others who planned to sell a pound of marijuana to two individuals. The parties met and the buyers snatched the marijuana without paying for it and ran off. The sellers gave chase. Someone, possibly Rosemond, fired a gun in the general direction of the buyers.
The Government charged Rosemond with violating 18 U.S.C §924(c) which criminalizes armed drug deals. The Government further charged Rosemond with aiding and abetting that offense under 18 U.S.C. §2. The federal district judge gave jury instructions that covered the §2 charge and the jury found Rosemond guilty of aiding and abetting. The real dispute is with the instructions given for the charge under §924(c). The trial judge instructed the jury that Rosemond was guilty of aiding and abetting the §924(c) offense if he (1) “knew his cohort used a firearm in the drug trafficking crime” and (2) “knowingly and actively participated in the drug trafficking crime.” Rosemond was convicted on the §924(c) charges and the Tenth Circuit affirmed.
The Supreme Court reversed as to the disputed instructions. The Court held that the instructions required the Government to prove that Rosemond had advance knowledge that his cohort had a gun to satisfy §924(c). The case was returned to the Tenth Circuit for further proceedings. Justice Kagan delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Scalia joined the opinion with the exception of footnotes 7 & 8, presumably because these presented hypotheticals unnecessary to the disposition of the case. Justice Alito filed an opinion concurring and dissenting in part and was joined by Justice Thomas.
The second case decided today is BG Group PLC v. Republic of Argentina (12-138). It’s an arbitration case based on the terms of an investment treaty between the United Kingdom and Argentina. The terms required disputes to be sent to the local courts and then to arbitration if no decision is rendered in 18 months. BG Group belonged to a consortium that held a majority interest in MetroGAS which had an exclusive license to distribute natural gas in Buenos Aires. The license provided that gas tariffs would be calculated in dollars and provide a reasonable rate of return. Argentina changed its law to calculate the tariffs in pesos which caused losses rather than profits.
BG accused Argentina of violating provisions of the treaty and went directly to arbitration. Argentina objected to skipping the local courts. The arbitration panel said it had jurisdiction due to factors such as Argentina changing other laws which restricted access to its courts. The panel ruled in BG Group’s favor. Both Argentina and BG Group appealed the decision in federal district court in the District of Columbia. Argentina wanted to overturn the decision and BG Group wanted to confirm it. That Court affirmed the award. The Court of Appeals reversed saying the U.S. Courts had to determined the rights under the treaty de novo and should not give deference to the arbitrators conclusions. It further held that BG Group had to use the Argentina courts first and then wait the 18 months before proceeding to arbitration.
The Supreme Court reversed. It stated that the local litigation provision was up to the arbitrator to decide and courts should give deference to those decisions. It said if the treaty were an ordinary contract it would be interpreted against the parties intent. Courts use presumptions to determine these intentions when the contract is silent about the threshold questions about arbitration. One presumption is that courts decide ”arbitrability” and arbitrators decide application of procedural preconditions for the use of arbitration. The provisions at issue in this case are procedural giving the arbitrators the ability to decide whether there needed to be compliance with the treaty terms in light of the events.
The Court stated that treaties are essentially contracts between two countries and that calling document a treaty makes no difference to the analysis here. The local litigation requirement in the text of the treaty is not a condition of consent, nor is there any language that overcome a court’s presumptions. Justice Breyer delivered the opinion of the Court and was joined by Justices Scalia, Thomas, Ginsburg, Alito, and Kagan. Justice Sotomayor joined with the exception of Part IV-A-1. She also filed an opinion concurring in the judgment. Chief Justice Roberts filed a dissenting opinion and was joined by Justice Kennedy.
The third case is Lozano v. Montoya Alvarez (12-820). The case covers time limits in which to initiate actions under the Hague Convention on the Civil Aspects of International Child Abduction. I will summarize that opinion in a later post. –Mark
The Supreme Court issued two opinions this morning. They deal with whistleblower suits in the context of the Sarbanes-Oxley Act of 2002 and the power of a court to sanction a debtor under the Bankruptcy Code for inducing fraudulent litigation in an attempt to shield some of his debts.
The whistleblower case is Lawson v. FMR LLC (12-3). The Sarbanes-Oxley Act of 2002 was passed as a reaction to the collapse of the Enron Corporation. Lawson and Zang filed separate actions alleging adverse actions after reporting or questioning accounting methods (Lawson) or statements in draft reports to the SEC (Zang). The both worked for private contractors related to the Fidelity family of mutual funds. Fidelity is a publicly owned company without any employees. It conducts business through its contractors. The relevant portion of the Act reads:
“No [public] company . . . , or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].” §1514A(a) (2006 ed.).
The First Circuit ruled that the Act applied only to employees of public companies. The Supreme Court reversed holding that the Act applied to a public company’s private contractors. The Court stated that the plain language of the statute supports this interpretation. It rejected arguments that this holding would allow employees of company officers and employees as remote as housekeepers and gardeners to be covered by the Act as theoretical. The Court further analyzed the legislative history of the Act as well as precedent related to comparable provisions in the U.S. Code to support its conclusion. It noted that most funds are structured as public companies without employees. A contrary result would create a big hole in the enforcement scheme enacted by Congress.
Justice Ginsburg delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Breyer and Kagan. Justices Scalia and Thomas joined as well in principal part. Justice Scalia filed an opinion concurring in principal part and concurring in the judgment and was joined by Justice Thomas. Justice Scalia believed that the Court’s invocation of legislative history was unnecessary for the result. Justice Sotomayor filed a dissenting opinion and was joined by Justices Kennedy and Alito.
The bankruptcy case is Law v. Siegel (12-5196). Law filed for Chapter 7 bankruptcy. He claimed $75,000 as a homestead exemption under California law for the home which he valued at $363,348. This is allowed by §522(b)(3)(A) of the Bankruptcy Code. He also claimed that the sum of two voluntary liens on the house exceeded its value. Siegel, the bankruptcy estate trustee, challenged these successfully as a fiction and incurred some $500,000 in legal fees to that end. The Court allowed Siegel to assess Law’s $75,000 homestead exemption to cover some of the fees. The Ninth Circuit affirmed.
The Supreme Court reversed, essentially stating that the Bankruptcy Court could not invoke inherent powers to sanction abusive litigation practices when prohibited by other parts of the Code. §522 bars administrative expenses on the allowable homestead exemption. The Court noted that no one had timely objected to the homestead exemption. As such it became final before the surcharge was imposed. The Court rejected other precedent as not controlling the case. In spite of the burden to the bankruptcy trustee, the Court said there were other monetary sanctions the Bankruptcy Court could impose. Justice Scalia delivered the opinion for a unanimous Court. – Mark
I was intending to write the summary of the Supreme Court’s most recent opinions released last week much earlier than when I published this post. The delay was caused by a medical emergency in that my oldest cat, William, became comatose on Wednesday evening. His condition continued to worsen and he had to be euthanized the following day. He was 14 when he died. He was a great companion, full of affection, and I will miss him. Now, back to business.
The Court issued two opinions last Wednesday. The first of these is United States v. Apel (12-1038). Apel was convicted of violating 18 U.S.C §1832 which makes it a crime to reenter a military installation after being ordered not to by the officer in command. The location here is the Vandenberg Air Force Base in California. There are two highways which bisect the Base and these are fenced from the rest of the installation. These exist by operation of an easement granted by the United States to California as the Base sits exclusively on federal land. The Base commander has additionally set up an area to be used for peaceful protest adjacent to one of the highways.
The record shows that Apel went beyond the designated protest areas in 2003 and 2007 and trespassed on base property where he threw blood at the Base sign. These actions resulted in convictions where he was incarcerated for a nominal amount of time. He was specifically restricted from entering the base but ignored the Base commander’s order in 2008 and 2009. He was completely barred from the base as a consequence, including the highway and protest areas. Apel ignored that order and continued to use the protest area. He was escorted off the base each time he appeared.
A Magistrate Judge fined Apel $355 dollars for his conduct in violation of §1382. The District Court upheld the fines and that the conviction would not violate the First Amendment. The Ninth Circuit reversed. It held that the statute does not apply. The government would have to prove it had exclusive right of possession and that the easement precludes enforcement of the statute for conduct in the protest area.
The Supreme Court reversed. It held that the boundaries of the Base define the authority of the Base commander and that included the areas covered by the easement. The Court rejected precedent that said the Government had no jurisdiction for off-Base housing:
But Phisterer only confirms our conclusion that §1382 does not require exclusive use, possession, or control. For there we interpreted “military station” to mean “a place where troops are assembled, where military stores, animate or inanimate, are kept or distributed, where military duty is performed or military protection afforded,—where something, in short, more or less closely connected with arms or war is kept or is to be done.” Id., at 222. To describe a place as “more or less closely connected” with military activities hardly requires that the military hold an exclusive right to the property. Rather, “military duty” and “military protection” are synonymous with the exercise of military jurisdiction. And that, not coincidentally, is precisely how the term “military installation” is used elsewhere in federal law.
The Court further rejected Executive Branch documents stating that §1382 requires “exclusive possession” as these are not definitive as they may rely on law in flux. These documents do not create rights and are not entitled to deference. The Court called the rest of Apel’s argument conclusory. One point about the case is that the Court makes no ruling on the First Amendment issue lurking in the case. The Court of Appeals never reached this issue and as such it is not before the Court. The case was returned to the lower courts for further review.
Chief Justice Roberts delivered the opinion for a unanimous Court. Justice Ginsburg filed a concurring opinion that was joined by Justice Sotomayor. Justice Alito also filed a concurring opinion.
The other opinion filed last Wednesday is Chadbourne & Parke, LLP v. Troice (12-79). It involves the application of the Securities Litigation Uniform Standards Act of 1998 (Litigation Act or Act) to class actions brought under state law against defendants who helped Allen Stanford effectuate his Ponzi scheme. The Justice Department successfully prosecuted Stanford for fraud. The Stanford International Bank was subject to $6 billion in fines. The respondents, plaintiffs at trial, filed class actions against Stanford agents in Texas and Louisiana under each state’s law. The Litigation Act prohibits large securities class actions brought under state law.
The relevant portion of the Litigation Act for this case is the phrase “misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security.” The Act further specifies that the securities in question must be traded on a national exchange for the Act to apply. The cases were consolidated in federal court where the District Court judge dismissed the actions. The judge concluded that the securities in this case were not “covered” securities nor traded on national exchanges. However, there were allegations that the securities were represented to be backed by “covered” securities. This was enough of a connection to apply the Act and dismiss the action. The Fifth Circuit reversed, holding that the connection was too tangential to apply the law.
The Supreme Court affirmed the Fifth Circuit largely on the basis of the statutory language compared to the alleged facts in the case. It agreed that by statutory definitions that the Act did not apply when the securities in question were neither covered under the Act’s language nor traded on a national exchange. The Court further stated that its holding is consistent with precedent. A good portion of the opinion rebuts the dissent’s view that the holding in this case will diminish the Government’s ability to prosecute fraud cases under the various Securities Acts.
Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Scalia, Thomas, Ginsburg, Sotomayor, and Kagan. Justice Kennedy filed a dissenting opinion and was joined by Justice Alito. –Mark
The Supreme Court issued two opinions this morning. They are United States v. Apel (12-1038), and Chadbourne & Parke LLP v. Troice (12-79). The first case involves the authority of a base commander to bar individuals from access to a military installation under federal law. The second case involves whether class action lawsuits based on state law for “uncovered” securities can proceed in light of a federal law that bars class actions by investors in some circumstances. I will provide commentary on these decisions by tomorrow.
In other litigation worth noting, the Ninth Circuit released an opinion ordering Google/YouTube to take down the anti-Islamic film “Innocence of Muslims.” The Appeals Court reversed the District Court denying the takedown. The case raises the rarely litigated issue of whether an actor/actress retains a copyrightable interest in their work. Again, more on this later. –Mark
The Supreme Court issued three opinions this morning. They are Kaley v. United States (12-464), Fernandez v. California (12-7822), and Walden v. Fiore (12-574). The Kaley case addresses the issue of pre-trial asset forfeiture when a defendant wants to use some of the money to hire a lawyer of choice. The controlling federal statute allows a court to freeze s defendant’s assets prior to trial if they are subject to forfeiture upon conviction.
The grand jury indicted Kerri and Brian Kaley for reselling stolen medical devices and laundering the proceeds. The Government filed a motion to freeze $500,000 in assets which the judge granted. The Kaleys challenged the order as they wanted to use the money to hire an attorney. The judge held a hearing on whether the money was traceable to the alleged crime and upheld the forfeiture order with the exception of $63,000. The judge refused, however, to hold a hearing on the validity of the grand jury’s probable cause finding. This was the basis for triggering the asset forfeiture under the statute. The Eleventh Circuit affirmed.
The Supreme Court affirmed. It stated that the grand jury’s finding of probable cause is conclusive and will not be challenged. A finding of probable cause can be made reliably without an adversarial proceeding. Further, if the indictment can affect the liberty of those charged, it can affect their property as well. The Court cited precedent to show that there are no Fifth or Sixth Amendment violations in these circumstances even if it means the defendants cannot hire an attorney of choice. In any event, the Kaleys are not entitled to a re-determination of the grand jury’s conclusions. Justice Kagan delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito. Chief Justice Roberts filed a dissenting opinion and was joined by Justices Breyer and Sotomayor.
The Fernandez case concerns whether a tenant can authorize a premise search without a warrant when an absent co-tenant had earlier refused consent. Police suspected that Fernandez was the perpetrator of a robbery. Police were directed to an apartment where Fernandez was said to be located. They knocked on the door and were greeted by Roxanne Rojas. She was crying, bruised, and carrying a baby. The police removed Fernandez from the premises on suspicion of assaulting Rojas. Fernandez objected to the police entering the apartment. He was taken to a police station.
An officer returned to the apartment later in the day and received oral and written consent from Rojas to search the apartment. The police found evidence that linked Fernandez to the robbery. Fernandez moved to suppress the evidence. The trial court denied the motion and ultimately found Fernandez guilty. The California Court of Appeal affirmed.
The Supreme Court affirmed. The Court stated that the general rule is that a tenant can consent to a valid warrantless search in the absence of a co-tenant. Fernandez argued that he had initially objected to the search when he was present in the first encounter and that should be valid until he changed his mind. He further argued that his absence was caused by his removal and arrest by the police. As to the first argument, it does not square with precedent which sought to avoid a formalistic rule on duration and scope of procedures necessary to define an objection. Essentially, absence is enough, even if the police caused the absence. Earlier precedent suggesting that police could avoid objections by removing the tenant only applies in cases where removal is not objectively reasonable. That is not the case here. Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Breyer. Justice Ginsburg filed a dissent and was joined by Justices Sotomayor and Kagan.
The Walden case concerns the application of personal jurisdiction over an out-of-state defendant. Walden was a police officer working as a deputized DEA agent at a Georgia airport. He searched Fiore’s luggage as well as that of Fiore’s companion and seized $97,000 in cash from the two. He advised them that the money would be returned later if the source of the cash was legitimate. Walden was tipped about this from DEA agents in Puerto Rico who had initially examined the luggage at the airport there. Fiore explained that these were casino winnings. Fiore and his companion were cleared for their flight to Atlanta and ultimately to California.
Walden filed an affidavit of forfeiture with the U.S. Attorney’s Office. Fiore objected to it as it contained misleading information and did not include statements about the lack of evidence for drugs or other contraband. The DEA returned the money and no charges were filed. Fiore and his companion filed a Bivens suit in Nevada on the basis of the encounters and Walden’s conduct in filing the affidavit. The district court dismissed for lack of personal jurisdiction. The Ninth Circuit reversed, at least in reference to the false probable cause in the affidavit aimed at Nevada residents.
The Supreme Court reversed. It basically held that personal jurisdiction had to be established by contacts with the forum rather than contacts with plaintiffs. Everything happened in Georgia. Walden had no contacts with Nevada that would support extending jurisdiction to the Nevada district court. Justice Thomas delivered the opinion for a unanimous Court. Speaking of Justice Thomas, check out Jeffrey Toobin’s post, Clarence Thomas’s Disgraceful Silence, in The New Yorker. –Mark
[Note: The link to the opinion seems to have changed since this morning. Try getting it here.]
The Supreme Court issued one opinion today. It involves whether counsel is competent under the standard of Washington v. Strickland, 466 U.S. 668 (1984) in the context of the selection and use of expert witnesses in a criminal trial. The case is Hinton v. Alabama (13-6440). Hinton was tried for murder stemming from a number of robberies at restaurants. The managers at two restaurants were shot and killed while a third survived. The surviving manager identified Hinton as the perpetrator. The police search Hinton’s house and recovered a .38 caliber revolver belonging to his mother.
The State’s forensic experts concluded that all six bullets recovered from the crime scenes were shot from the same gun which they identified as the one recovered from Hinton’s residence. Hinton’s attorney concluded that he needed expert testimony to counter that presented by the State. He filed motions requesting money for that purpose. The judge granted $1,000 as both he and Hinton’s attorney mistakenly believed the statute in effect capped the available fees that could be awarded. The Judge invited Hinton’s attorney to file additional fee requests during the trial. Hinton’s attorney did not take the Judge up on the offer.
The defense hired Andrew Payne as the best expert available for $1,000. No other expert would take the case at such a low fee. Payne’s qualifications were scant. He testified in cases as an expert on firearms and toolmark identification just twice in the last eight years. One of the two cases involved a shotgun rather than a handgun. Payne testified that the barrel of the gun was corroded and that it was impossible to say with certainty that the bullets were fired from Hinton’s gun. He also testified that the bullets did not match one another.
The State successfully attacked Payne’s credibility on his background and his analysis. Payne’s expertise was in military ordinance and not firearm and toolmark identification. His degree, awarded some 50 years before the trial, was in civil engineering. Further, Payne sought assistance from one the State’s experts in using a microscope as he had only one functioning eye. The jury ultimately convicted Hinton and recommended the death penalty.
Hinton filed a postconviction petition contending that his attorney’s handling of the expert and failure to request more money rendered him incompetent. He produced three experts who were exceptionally qualified including one who had worked at the FBI forensic laboratory for 6 years. The other two worked at the Dallas County Crime Laboratory and had testified in several hundred cases. All of them stated that they could not conclude that the bullets had been fired from Hinton’s gun. The Court denied the petition because the experts had not departed from Payne’s conclusion.
The Alabama Court of Criminal Appeals affirmed the denial. The Alabama Supreme Court reversed. It said the issue for the case was whether Payne was qualified to testify as a firearms expert. The Circuit Court concluded that Payne was qualified under Alabama evidentiary rules. The appellate court affirmed and the Alabama Supreme Court denied review. Hinton petitioned the Supreme Court.
The Supreme Court examined the record and found that it was unreasonable for Hinton’s attorney not to seek further expert fees. This was compounded by his belief that Payne was not a very good expert but felt he was stuck with Payne because of the $1,000 limitation. The Court clarified how it viewed the situation:
We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690. We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.
The Court reversed and remanded the case per curiam. The moral of the story: use legal research for due diligence. –Mark
OCLC Research is presenting a free webinar called “Inside the Digital Public Library of America” Presented by Dan Cohen. From the description:
In this OCLC Research Distinguished Seminar Series presentation, Dan Cohen goes behind the scenes to discuss how the DPLA was created, how it functions as a portal and platform, what the staff is currently working on, and what’s to come for the young project and organization.
More information and sign-up is here. –Mark
News reports are appearing about Microsoft offering free and legal versions of Word, Excel, OneNote, and PowerPoint via cloud access. Readers may be aware that Microsoft is pushing Office 365 as a subscription based alternative to installing the application suite on a computer. The free web versions of the most popular Microsoft applications are associated with a Microsoft account and OneDrive, formerly SkyDrive. One can open, edit, or create a document in OneDrive by selecting the option from the menu choices at the top.
Anyone familiar with a computer based version of the Office applications will feel quite at home. The same ribbon interface appears with just about the same options. I believe, as with most people, I use only common formatting in documents. Everything I needed in Word is here and more. In fact, I’m typing this in Word Online as a way of testing the viability of the product. So far, so good. This version of Word appears to support keyboard shortcuts (at least the ones I use) without too much variation from the boxed Office suite. The editing process is smooth and stable.
Some features are missing. Inline spell and grammar check do not appear to be an option. There is an spell check feature under Review in the menu bar. Some option boxes require clicking a button to select a choice rather than responding to the Enter Key. Drag and drop seems to be missing as well. These are minor inconveniences. I find the product very comfortable to use, especially for the price.
The National Jurist is listing the twenty-five law schools with the largest enrollment declines since 2010-2011. Cooley Law School’s student body dropped approximately 1,600 students in three years for example. The complete list is here. Several of the schools noted in the list have cut faculty as part of their response. I’ll be watching that trend as the enrollment decline continues.
I mentioned the latest LSAT and application figures posted by the LSAC yesterday. They are available here if anyone wants to review them. –Mark
If readers haven’t seen the essay on legal writing by Bryan A. Garner published in the February issue of the ABA Journal, here’s a link to it on the Journal’s web site. It’s hard to argue with the essay that begins with these words:
Legal writing is notoriously dull, slow, cumbersome, obtuse, roundabout and pedantic. There are many reasons: (1) unnecessary jargon, (2) overreliance on abstract nouns, (3) overlong sentences, (4) overlong paragraphs, and (5) the failure to differentiate between useful and useless details.
One of the main arguments is to place citation in footnotes rather than in the text. The result will be a clearer writing style that communicates appreciably better. Naturally, there is pushback in the comments. I have to admit that reading cases, memoranda, and other legal documents when I was in law school pretty much killed most any desire on my part to read long form. Putting it another way, I don’t read for fun at this point. I suspect I’m not alone, which may explain why cat videos are so popular on the Internet. I still have dreams featuring never-ending Civil Procedure I lecture where I’m trying to fathom in rem and in personam jurisdiction.
In other news, the Kansas City Star reports on the tuition war going on between the UMKC School of Law and the University Of Kansas School Of Law. The border position of both schools between Missouri and Kansas offer options for in-state tuition rates for potential students from either state. Yes, it’s come to this. While we’re at it, here is the latest application statistics from the LSAC:
As of 2/7/14, there are 227,912 fall 2014 applications submitted by 32,532 applicants. Applicants are down 11.1% and applications are down 12.2% from 2013.
Last year at this time, we had 62% of the preliminary final applicant count.
Last year at this time, we had 67% of the preliminary final application count.
Finally, the National Center for Education Statistics released its annual report on academic libraries called Academic Libraries: 2012 First Look. Inside Higher Ed has short commentary on the report. – Mark
ALA, ARL and EDUCAUSE are calling on the FCC to take action on net neutrality. They assert:
- Libraries, colleges and universities depend on the intellectual freedom afforded by the Open Internet to develop content and applications that serve the public interest;
- Libraries and higher education institutions are prolific providers of content, services and applications on the Open Internet;
- Research libraries and institutions rely on the Open Internet as end-users to collaborate with and obtain content and services from outside sources; and
- The ability to access library, college and university services should not depend on location.
I can understand the concerns. While much of the public discussion focuses on how consumers are affected, libraries certainly have a stake in whether their e-content is blocked or slowed down somewhere along the network. It may seem an unlikely outcome, though in the world of commerce anything is possible. The full statement is here. –Mark
The big news today is the announcement that Comcast is acquiring Time-Warner Cable (TWC) for $45 billion. Internet activists are aghast at the idea as it has the potential to reduce competition between Internet service providers in markets served by both companies. A petition is already posted on the White House web site urging the rejection of the merger. Comcast has stated that it believes the merger will likely be approved, albeit with conditions. It’s already stated that it would shed some 3,000,000 customers for the combined company to stay under or maintain a 30% market share.
I have a funny feeling that the merger will be approved as well due to the politics surrounding it. I believe activists are right in that competition will suffer. How many cable and Internet services exist in any given area? Usually it’s one or two and in some major metropolitan areas it can be three or four. The FCC wants to foster competition in cable and Internet services and approving the merger would seem to go against that policy.
About three weeks or so ago, the FCC lost a major case where its net neutrality rules were struck down. The Court said that the FCC didn’t have the power under its rules to regulate information service providers. The Court said that the FCC has the power to reclassify Internet providers as telecommunications carriers if it wanted to. These can be regulated. FCC chairman has made statements that he will take the Court up on its suggestion. The problem, of course, is that the reclassification is a time consuming process subject to political pressure.
Regulation would prevent an Internet Service Provider from slowing down or blocking traffic from Internet companies. A deliberately slow connection for Netflix or Amazon media streams isn’t good for that either company. Payments from either would solve that problem without regulation. It’s that kind of business model which is at stake. Congress is not of one mind when it comes to allowing the FCC to regulate in this area or not. Lobbyists, start your cash machines.
Let’s harken back several years when Comcast merged with NBC. The FCC lost a similar case when it tried to prevent Comcast from slowing bit torrent traffic on its network. The FCC’s leverage at that point was to impose net neutrality-like conditions on Comcast in approving the merger. I suspect that there will be a similar result in this case. The FCC, in this scenario, will get Comcast to abide by net neutrality principles in exchange for its takeover of TMC. It’s a politically expedient outcome that will give the Commission more time to work on its net neutrality strategies.
One can only hope that Google starts building out last-mile fiber connections in more places than Kansas City and Austin to expand competition between carriers. It takes a huge financial investment to wire up a city and Google is one of the few companies with both the money or interest in taking on the challenge. – Mark
Justice Thomas has made a few statements about race in the United States as reported in Salon and other sources yesterday. Here are a few quotes:
“My sadness is that we are probably today more race and difference-conscious than I was in the 1960s when I went to school,” Thomas said. “To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up.”
“Now, name a day it doesn’t come up,” he continued. “Differences in race, differences in sex, somebody doesn’t look at you right, somebody says something. Everybody is sensitive. If I had been as sensitive as that in the 1960s, I’d still be in Savannah.”
Here’s my favorite quote:
“The worst I have been treated was by northern liberal elites,” Thomas said. “The absolute worst I have ever been treated. The worst things that have been done to me, the worst things that have been said about me — by northern liberal elites, not by the people of Savannah, Georgia.”
Without further clarification, I would suggest that a good chunk of that criticism extends merely to the logic he uses in his opinions and their outcome. That is fair game in my opinion, as it would be with any other Justice. Justice Kennedy, for example, gets his share of criticism from religious organizations for his votes on same sex marriage and similar cases upholding privacy in sexual matters. And don’t get me started on Justice Scalia!
The Atlantic is running an article called The Collapse of Big Law: A Cautionary Tale for Big Med. The article details how lawyers measure success in terms of money, not purely as a matter of greed, but in comparison to the competition. Gone, apparently, are the days when doing something of value for society through law practice is a real metric. The context of the article is the lack of jobs for recent law school graduates. The rest of the article compares what’s happening in law to similar practices developing in the medical field.
I’ll give an anecdotal story about a law school application essay as related to me by the Admissions Director at one of the schools at which I have worked. The Director told me that one student did not write an essay as such but drew a large dollar sign across the page. I understand the applicant was admitted at least for being honest. I have to believe there were other qualities that qualified the student for admission. Anyone pulling that stunt today would be incredibly naive. That shows how long ago I had that conversation.
Publishers Weekly reports that Apple lost its appeal at the Second Circuit on the limited issue of staying the order of Judge Denise Cote imposing the external compliance monitor on the company. Apple has complained about Michael Bromwich, the appointee, being intrusive and expensive. The article describes the Second Circuit’s order:
The court cited the government’s own statements that the monitor, Michael Bromwich, was “empowered to demand only documents relevant to his authorized responsibility” and to “interview Apple directors, officers, and employees” only on subjects relevant to his task. “We agree with that interpretation of the district court’s order,” the court held. “In addition, we take counsel’s statement as a formal representation that appellees also accept that interpretation.”
Oh well, better luck on the main appeal, or not, depending on one’s perspective.
Jonathan Band writes an interesting essay on the Future of Fair Use after Google Books in Project Disco. That’s “Disco” as in disrupted competition. Band wrote the amicus brief for the Library Copyright Alliance and was cited five times in Judge Chin’s decision. The piece describes the ideas in the debate he had with Jon Baumgarten, former General Counsel of the Copyright Office. I get the impression that the Authors Guild have an extremely limited view of fair use based on the exchange between the two.
And finally, ads in the Firefox browser? ZDNet has the story. — Mark
(Note: Links are updated to get through to the sites in question. Apologies to all – Mark)
As anyone can imagine, I get a lot of press releases. Sometimes I use them as inspiration for posts, and sometimes not. Here’s a press release I’m publishing intact as the information may be useful to readers:
The redesigned website Lib2Gov allows libraries and government agencies to come together and collaborate, share resources and build a community of practice. Lib2Gov now provides a dedicated space where librarians can share materials, lesson plans, tutorials, stories, and other e-government content. The website offers a variety of resources from government agencies and organizations, including information on immigration, taxation, social security and healthcare.
In a few weeks, both organizations will host a new monthly webinar series, “E-government @ Your Library.” The webinars will explore a variety of e-government topics that will be of interest to librarians, including mobile government and emergency preparedness, response and recovery. All webinars are free and will be archived on the Lib2Gov site. The webinar schedule for Winter/Spring 2014:
- Webinar 1: E-government @ Your Library (Wednesday, February 26, 2014, at 2 p.m. EST)
- John Bertot, Ph.D., co-director, Information Policy & Access Center (iPAC), and professor, in University of Maryland College Park’s iSchool
- Ursula Gorham, graduate research associate, iPAC and doctoral candidate, University of Maryland College Park iSchool
- Jessica McGilvray, assistant director, Office of Government Relations at the American Library Association’s Washington, D.C. office
- Webinar 2: Government Information Expertise Online: Beyond the First Century of Federal Depository Library Program Practice (Thursday, March 27, 2014, at 3 p.m. EST) Register now.
This webinar will offer insights and techniques in how practicing government information professionals can use the strengths and opportunities of the depository library experience in several promising areas of digital reference, government information discovery tools and deliberative outreach to your community.
- Cynthia Etkin, senior program planning specialist, Office of the Superintendent of Documents, U.S. Government Printing Office (GPO)
- John A. Shuler, associate professor, University of Illinois, Chicago University Library
- Webinar 3: An Introduction to Mobile Government Apps for Librarians (Wednesday, April 30, 2014, at 2 p.m. EST)
The webinar will cover how librarians can teach patrons to use mobile devices, provide links on our webpages to government apps, and create apps for their own e-government websites. Register now.
- Isabelle Fetherston, teen librarian, Pasco County Library System
- Nancy Fredericks, member, Pasco County Library System Library Leadership Team
- Webinar 4: Roles for Libraries and Librarians in Disasters (Thursday, May 15, 2014, at 2 p.m. EST)
This webinar presents information on libraries’ and librarians’ roles supporting their communities and the disaster workforce before, during, and after hazardous events and disasters. Register now.
- Siobhan Champ-Blackwell, librarian, U.S. National Library of Medicine Disaster Information Management Research Center
- Cindy Love, librarian, U.S. National Library of Medicine Disaster Information Management Research Center
- Elizabeth Norton, librarian, U.S. National Library of Medicine Disaster Information Management Research Center
- Webinar 5: Beta.Congress.Gov (Thursday, June 12, 2014, at 2 p.m. EST)
Sign-up information, as well as more information about webinar topics and speakers, is available. Please contact Jessica McGilvray (email@example.com) or John Bertot (firstname.lastname@example.org) with questions about Lib2Gov or the webinar series.
Erwin Chemerinsky has published an editorial on the Report by ABA Task Force on the Future of Legal Education (registration required) in the National Law Journal. There are things he likes and things he doesn’t. He likes the ideas that schools should expand financial aid beyond merit awards. He further likes the concept of skills training for students as a way to better prepare graduates for the practice of law. Other than that, he doesn’t think the ideas in the Task Force report will do much to reduce costs. He states, for example:
The report implies that lessening regulation by the American Bar Association would reduce the costs, but there is no evidence to support the idea. In fact, a report by the General Accounting Office in 2009 concluded that ABA accreditation standards do not increase the cost of legal education.
My own experience as a law school dean confirms this. I cannot identify any areas where the ABA standards cause us to spend more money. The reality is that the increased cost of law schools is reflective of the overall increase in the costs of colleges and universities.
I can think of one ABA regulation that increases the costs associated with law school: tenure. I say this in the context of reports of law schools reducing costs by buying out faculty contracts including some of those with tenure. Florida Coastal comes to mind when the separation of faculty from the law school gets a bit ugly. The ABA Section of Legal Education and Admissions to the Bar has proposed revising the Standard covering job security and academic freedom to remove tenure as a required option. Job security is still mandated by the revised standard though that can come in many forms.
Chemerinsky notes that faculty salaries are by far the largest part of a law school’s budget:
The only way to significantly decrease the cost of legal education would be for law schools to dramatically reduce their full-time faculty and rely largely on adjuncts to teach students. At my law school, and I think this is typical, about three-fourths of the budget goes to faculty and staff salaries and benefits, with about half of that budget spent on the faculty. Although adjunct faculty are important in supplementing the curriculum, they cannot substitute for full-time faculty in their availability to students or their expertise as teachers.
I’ll say first of all that the argument of cutting faculty in favor of adjuncts is somewhat of a straw man. A reduction in faculty in light of significantly lower enrollment would seem logical. Tenure gets in the way of this where other forms of job security may give an administration more flexibility in downsizing (and upsizing, for that matter) the faculty. I agree that it’s not in any law school’s interest to favor adjuncts over full-time faculty. Nonetheless, schools are shrinking and their faculty rosters are shrinking with them.
Chemerinsky disagrees further with the Task Force approach to scholarship:
The task force fails to recognize the value of legal scholarship in the development of ideas, including to benefit judges and lawyers. Of course, plenty of articles and books are written by law professors that do not have practical benefits. But as with basic research in science, these often inform thinking about the law in a way that has long-term positive significance.
Obviously, law faculty produce both good and bad scholarship, as in every field of study. But the task force is seriously misguided in urging that faculties abandon scholarship. This approach likely would not, and should not, be tolerated by universities.
I don’t believe the Task Force rejected scholarship by the faculty. Rather, it called upon law schools to use other forms of evaluating faculty in a changing a situation. The Report called law schools “risk averse” and said there should be other models in addition to scholarship as incentives for promotion:
A common and often effective tool for promoting a desired outcome is incentives. For example, law schools typically promote faculty scholarship through a tenure system and financial incentives. If a law school wished to promote, for example, pedagogical innovation, it could use these same types of incentives (or others) to promote that goal. If another organization wished to promote pedagogical innovation in law schools, it could do so, e.g., through offering financial awards or prominent honors to encourage the desired behavior or outcomes.
I believe the Task Force is stressing flexibility in evaluating a faculty member for promotion. Some of those evaluations may de-emphasize scholarship or include other work as a factor. I can understand that this threatens the current law school model, or more likely, how law schools are ranked. The Report has one recommendation in that regard:
U.S. News & World Report Should Cease Using Law School Expenditures as a Component of Its System for Ranking Law Schools and, in General, Should Ensure that Its Ranking Methodology Does Not Promote Conduct Damaging to the Interests of Law Students and the System of Legal Education.
No matter what happens with the Report or the changes in standards considered by the Section, the old world order of law schools will not prevail by the sheer force of economics. – Mark
There is an interesting case out of Missouri where a federal judge has issued a preliminary injunction forbidding the town of Ellisville from prosecuting individuals for flashing their lights to warn of speed traps. The town has an ordinance which restricts flashing lights. The judge, however, said that individuals flashing their lights as a warning was expressive conduct and likely protected by the First Amendment. The ABA Journal has more information on the case with a link to the opinion. I’ve made lengthy road trips in the past with a CB radio in the car. Among the usual trucker chatter were warnings of where “bears” were operating including mile marker details. That isn’t much different from this case in my opinion, other than how the warning was given.
Justice Scalia was out and about earlier in the week. He spoke at the University of Hawaii law school and suggested that while the Korematsu case upholding the internment of Japanese citizens was wrong, he wouldn’t be surprised in the Court issued a similar ruling in the future. Quote the Justice:
“Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again.”
I understand that Guantanamo Bay has a warm climate at the very least. CBS News has a report on the visit. He also commented that the Court will have the last word on the NSA data collection. As he said in his own charming way:
“The executive knows very well what’s going on and what the threats are. Congress can have hearings for accessing threats and find out what’s going on,” Scalia said. “We can’t have hearings. We sit back and let them bring stuff to us.”
This reminds me of the old saying that if one wants to know the truth about a disputed issue at trial, just ask twelve people who weren’t involved.
In a little bit of law school news there is a report that the Charleston Law School is up for sale. The prospective buyer is for-profit InfiLaw. Some legislators in South Carolina want to bring the law school to the College of Charleston or the University of South Carolina as a public institution. How this transaction goes down will depend on local politics. The State has the full report illustrated by a nice picture of the law library.
The New York Law Journal reports on the downsizing of the Albany Law School in New York. Layoffs and buyouts are on the table. There was apparently a discussion between the administration and the faculty on how to reduce costs and increase revenues. One idea floated by the faculty was to admit lesser qualified students to increase enrollment and revenues. From the article:
One Albany Law professor said a “small but vocal minority” of faculty want the school to lower its standards to boost its tuition revenues and lessen the chances of layoffs. “It is a very selfish, selfish endeavor,” the professor said. “They are really trying to save their jobs, but they’ve ginned this up to make it look like we are denying academic rights.”
Faculty members are self-serving? That never would have crossed my mind after some 36 years in legal education. No. Never.
And while we are on the subject of declining enrollments, let’s take a look at the latest statistics from the LSAC:
As of 1/24/14, there are 187,726 fall 2014 applications submitted by 26,379 applicants. Applicants are down 12.6% and applications are down 13.7% from 2013. Last year at this time, we had 51% of the preliminary final applicant count. Last year at this time, we had 57% of the preliminary final application count.
As George Takei might say, “Oh my.” — Mark
I came across Ravel Law today. I’m not quite sure what to make of it. The New York Times calls it “A search, analytics and collaboration tool for lawyers, this platform visualizes and organizes legal cases to highlight patterns and connections between them.” Some of the confusion I have about the site is due to the limited public access that is available in the free account. Search results offer opinions from federal and state courts, though the latter are only available with a premium subscription.
I want to emphasize that this is not a review of the site or the full product Ravel offers. I’ve spent a little bit of time searching some concepts relating to antitrust law as a matter of seeing what results are returned. My immediate impression is that the site offers full-text opinions with a graphic representation of a case’s relevance combined with relational spokes to other cases that have cited it. These are represented as interactive circles that work with a citation list. Hovering on a related case brings up a short snippet of the citing case. Clicking on a circle brings up the full text of the case. There is also an interactive timeline that can limit citations to a particular time span.
The value in this appears to relate concepts from one case to others through the visuals on the graph. The larger the circle, the more important the case will be. Lines connect one circle to another circle and it’s very easy to see which major cases are connected to other major cases. This is like a citator on steroids in my opinion as one can get to this point with a simple search. Citators in Lexis and Westlaw obviously require the analytical starting point to be a citation. That means multiple steps in developing the analysis that finds the value and use of related cases. The snippets help immensely in determining which related cases are of value.
I can honestly say that I’m intrigued by what I’ve seen so far. There is nothing like it in Lexis or Westlaw. I intend to continue trying out Ravel Law to get a better understanding on how it works. I’m sure I’ll be writing about this site in the future. Aside from the information in the Ravel Law FAQ, some commentary about the site by Greg Lambert is in 3 Geeks and a Law Blog. – Mark
Readers may remember the case where the U.K. government requested tapes contained in the Boston College archives consisting of interviews with I.R.A. members. The nominal rationale for the request was to aid in solving a murder of an alleged British informant in 1972. Britain asked the Justice Department for the tapes under a treaty that called for mutual assistance in criminal investigations. The College resisted turning over the tapes and the matter went to litigation in federal court. The District Court judge in Boston ordered the College to release 85 tapes from the interviews. The Court of Appeals later modified that order for the release of 11 tapes.
The Chronicle of Higher Education has a lengthy article on how the Belfast Project was conceived and carried out. It’s a story of secrecy and misunderstandings. The secrecy came from the sensitivity of the subject matter. Former I.R.A. members would not speak freely if they weren’t assured that their comments were held in confidence while they were alive. The misunderstandings related to the secrecy. The College was agreeable to the project. There are conflicts, however, in the understanding of what legal protections the College could offer to interviewees. The contracts offered to participants were not vetted in advance and did not contain key language defining the legal extent of confidentiality.
Two of the principles in the project are Anthony McIntyre and Ed Moloney. McIntyre, a former member of the I.R.A. who spent a number of years in prison for his actions, conducted the interviews. Moloney was the project director. He wrote a book in 2008 called Voices From the Grave: Two Men’s War in Ireland which used quotes from two participants who had previously died. The book essentially revealed the Project and drew attention from law enforcement officials in Britain and Ireland. This showed more misunderstandings in that McIntyre and Moloney had no idea the mutual assistance treaty existed as they carried out the interviews. The lack of communication and legal oversight put the parties at odds in defending against release. The College appears to be blindsided in some respects as were McIntyre and Moloney.
The article is useful in that it is a cautionary tale on how not to organize and manage an archival project on a sensitive subject. There are quotes from outside archivists and others on the need to put a legal team together in advance of collecting interviews. The Belfast Project is essentially dead at this point. Interviewees are requesting the return of their tapes. The University has said that it will honor those requests to the extent that it can, whatever that means. The litigation is over though the fallout from the Project continues. –Mark