Vizio Smart Televisions May Be Spying On You

Your smart TV may be spying on you if it’s manufactured by Vizio.  Don’t get me wrong.  I’m a big fan of the brand.  I’m on my second set, a 65 inch E Series.  That doesn’t mean I like the creepy fact that the set apparently sends back details of what I’m watching regardless of source.  That little tidbit came in a story in Fortune about Vizio’s upcoming IPO:

Vizio uses technology integrated into its televisions to determine what a user is watching, regardless of the source. In other words, Vizio knows what you’re watching even if it’s a DVD being played on a gaming console or show being watched via cable TV.

Vizio offers what it calls “smart interactivity.”  It’s all in the name of customization that alleges to cater to the individual customer.  Fortunately, there is a way to turn it off.  Vizio instructions to that effect are here.  I can understand (although not approve of) a cable or satellite provider tracking its shows, but DVDs and other delivery mechanisms?

It reminds me of the story about Samsung smart TVs actually listening in on conversations through a digital assistant.  Anyway, I’ll be disconnecting my set later on this evening.  Any libraries or organizations that use Vizio TVs as displays should take note.

Mark

Georgia Sues Public.Resource.org Over Copyright In Published Annotations to the Georgia Code

The State of Georgia is suing Public.Resources .Org, Inc. and Carl Malamud in federal court for posting copies of the Official George Code Annotated on the Public.Resources.Org.  Georgia contracts with Lexis to create annotated copies of the Code where Lexis fills in the annotated material in what appears to be a work for hire as Georgia claims copyright in the annotations and value-added materials.  In some respects, it explains why Lexis wasn’t a co-plaintiff.  The State does not claim copyright in the text of the Code itself.  The complaint is seeking injunctive relief and requesting that all scanned copies be removed and destroyed, and yes, attorney fees.

I think it would have been much easier for the State of Georgia if copyright remained with Lexis.  The ownership would have been clearer.  It’s a murky situation otherwise.  I guess the question the Court is whether the State can actually claim a copyright in this case.  The United States government, as an example, disclaims copyright in most cases, but there are exceptions.  Two of these indicated at USA.gov are:

  • Works prepared for the U.S. government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the U.S. government.
  • The U.S. government work designation does not apply to works of U.S. state and local governments. Works of state and local governments may be protected by copyright.

The complaint his available through a link with a story at The Register, which is a U.K. based technology news site.  I’m a big fan of the site due to the somewhat snarky attitude the site takes at tech news.  The story in the Register about this case notes that Georgia effectively calls Malamud a “terrorist.”  Here are the excerpts from the complaint where Georgia makes that claim:

20.  On information and belief, Defendant is employing a deliberate strategy of copying and posting large document archives such as the O.C.G.A. (including the Copyrighted Annotations) in order to force the State of Georgia to provide the O.C.G.A., in an electronic format acceptable to Defendant. Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.

21.  Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3. Defendant also announced on the https://yeswescan.org website that it has targeted the States of Mississippi, Georgia, and Idaho and the District of Columbia for its continued, deliberate and willful copying of copyrighted portions of the annotated codes of those jurisdictions. Defendant has further posted on the https://yeswescan.org website, and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its deliberate and willful copying and distribution of Plaintiff’s Copyrighted Annotations would be “greatly expanded” in 2014. Defendant has further instituted public funding campaigns on a website http://www.indiegogo.com to support its continued copying and distribution of Plaintiff’s Copyrighted Annotations. Defendant has raised thousands of dollars to assist Defendant in infringing the O.C.G.A. Copyrighted Annotations.

Terrorism, seriously?  Someone explain to me how this adds to the substance of the complaint.  It’s not as if black helicopters will be circling Atlanta at the end of the trial, not over annotations at least.

Mark

The law library as the lawyer’s laboratory: past, present and future applications of Langdell’s metaphor

Somewhere in my collection of old pBooks is a copy of the first edition of Lakoff & Johnson’s now classic Metaphors We Live By. The law library as the lawyer’s laboratory was not covered there. Dick Danner has in his forthcoming LLJ article, Law Libraries and Laboratories: The Legacies of Langdell and His Metaphor [SSRN]. Here’s the abstract for this highly recommended analysis.

Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.

— Joe

New Media Rights launches Fair Use App

The Fair Use App is designed to help filmmakers and online video creators learn more about fair use issues. You can check it out here. — Joe

End of Supreme Court Term Is Not The End of Controversy

I never got a chance to write about the end of the Supreme Court term.  Different commentators have called the term “historic.”  Given the major decisions at the end of term

and a few others, this term provided more controversy than previous terms.  The dissents were fast and furious, with emphasis on the furious.

Justice Scalia observed in the King case:

Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

And that was one of the nicer passages.  He concluded with:

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

Justice Scalia called the Court a threat to democracy in his dissent in the Obergefell case.  He further stated:

Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Thomas wrote in his dissent in the Arizona redistricting case:

The ballot initiative in this case, unlike those that the Court has previously treated so dismissively, was unusually democracy reducing. It did not ask the people to approve a particular redistricting plan through direct democracy, but instead to take districting away from the people’s representatives and give it to an unelected committee, thereby reducing democratic control over the process in the future. The Court’s characterization of this as direct democracy at its best is rather like praising a plebiscite in a “banana republic” that installs a strongman as President for Life. And wrapping the analysis in a cloak of federalism does little to conceal the flaws in the Court’s reasoning.

It’s almost as if the two Justices took personal offence at the outcome of each case.

There is no doubt that several of the cases the Court decided were highly charged political issues where the outcome did not end the debate.  Roy Moore, Chief Justice of the Alabama Supreme Court, was very displeased with the same-sex marriage decision.  The Oklahoma legislature is doing its best to opt out of Obamacare despite the ruling in King.

The Court, in theory, never acts politically—in theory. There are multiple stories suggesting that the Chief Justice is solidifying his legacy with successive rulings upholding the ACA.  Gallup reports that the reaction to the Court is dramatically split over political lines. The Court’s job approval rating by Republicans is 18%.  Democrats, on the other hand, give the Court a 76% rating.  Further polls show that support for same-sex marriage is stable after the Obergefell decision with 58% of the population in support.  A majority of Democrats support same-sex marriage at 74% while Republicans are opposed at 67%.  Politics and society have become more and more polarized over the years where it seems to be the norm at this point.  I personally regret that this is creeping into the Supreme Court.

Mark

Fastcase Announces 2015 Fastcase 50 Award Winners

Kudos to the Fastcase 50 Class of 2015:

Hon. Ann Aiken, Chief Judge, United States District Court of Oregon
Michelle Alexander, Author; Associate Professor of Law, Ohio State University
Pablo Arredondo, Vice President of Legal Research, Casetext
Rich Barton, Founder of Expedia; Co-Founder of Zillow, Glassdoor
Howard Bashman, Appellate lawyer; Author, How Appealing blog
Laura Calloway, Director, Practice Management Assistance Program at Alabama State Bar
Jeena Cho, Partner at JC Law Group PC; Author; Mindfulness Instructor
Jared Correia, Assistant Director and Senior Law Practice Advisor at LOMAP
Scott Forman, Shareholder, Littler Mendelson; Founder of Littler CaseSmart
JoAnna Forshee, CEO, InsideLegal.com and Envision Agency
Abe Geiger, Founder and CEO, Shake
Eric Goldman, Co-Director, High Tech Law Institute; Professor, Santa Clara University School of Law; Blogger, Forbes’ Tertium Quid Blog and Technology & Marketing Law Blog
Oliver Goodenough, Director, Center of Legal Innovation; Professor of Law, Vermont Law School; Faculty Associate, The Berkman Center for Internet and Society at Harvard University
Hon. Paul Grewal, United States Magistrate Judge for Northern District of California
Nick Holmes, Managing Director, Infolaw
Margaret Hagan, Fellow at the Center on the Legal Profession; Lecturer at the Stanford Institute of Design
William C. Hubbard, President, American Bar Association
Rubsun Ho, Co-Founder and Partner, Cognition LLP
Michelle Hunter, Executive Director of the State Bar of Texas
Natalie Kelly, Director, Law Practice Management Program, The State Bar of Georgia
Sheldon Krantz, Author; Senior Fellow, Georgetown Center for the Study of the Legal Profession; Executive Director of The DC Affordable Law Firm
Dan LaBert, Executive Director of the National Association of Consumer Bankruptcy Attorneys (NACBA)
Dan Lear, Director of Industry Relations, Avvo
Joshua Lenon, Lawyer-in-Residence at Clio
Daniel Linna, Assistant Dean of Career Development & Professor of Law in Residence, Michigan State College of Law; Adjunct Professor, University of Michigan Law
Lisa Linsky, Partner-in-Charge of Firm-wide Diversity and Partner-in-Charge of LGBT Diversity and Inclusion, McDermott, Will & Emery
Hon. Goodwin Liu, Associate Justice, California Supreme Court
Chris Manos, Executive Director, State Bar of Montana
David Mao, Deputy Librarian of Congress, Library of Congress
Kate Martin, Law Librarian, Circuit Court for Montgomery County, Maryland; President, Law Librarians of Maryland
Garry Mathiason, Shareholder and Chair, Robotics, Artificial Intelligence and Automation Industry Group; Littler Mendelson
Ryan McClead, ‎Legal Technology Innovation Architect, Norton Rose Fulbright
Gavin McGrane, CEO and Founder, PacerPro
Joe Milstone, Co-Founder and CEO, Cognition LLP
Joe Mornin, Founder, Bestlaw
Jason Moyse, Chief Legal Provocateur, Lawmade.com; Industry Lead, MaRS LegalX; Manager, Legal Business Solutions at Elevate Services
Pat Nester, Assistant Deputy Director, State Bar Of Texas; Director, TexasBarCLE; Executive Director, Texas Bar College
Andrew Perlman, Dean, Suffolk Law School; Director, Institute on Law Practice Technology and Innovation; Director, Legal Technology and Innovation Concentration
William (Bill) Raftery, Knowledge and Information Services Analyst, National Center for State Courts
Trisha Ryan, Principal, Trisha L. Ryan, P.A.
Lynn Schmidt Walters, Co-Founder of JD Mentor; Founder, Lux Law Advising
 Brendan Schulman, Special Counsel, Kramer Levin Naftalis & Frankel LLP
Matt Sellers, CEO and Founder, Quimbee
 Aron Solomon, Chief Innovation Operative, Lawmade.com; Innovation Lead for the LegalX cluster; Senior Advisor for education technology at MaRS
David Sparks, Founder of Sparks Law; Blogger, MacSparky.com
Ben Stevens, Senior Partner, The Stevens Law Firm; The Mac Lawyer
John Suh, CEO, Legal Zoom
Donald Verrilli, Solicitor General of the United States
Andy Wilson, CEO and Founder, Logikcull
Daniel Yaniv, Principal, Yaniv & Associates PC

View the 2015 winners

— Joe.

Brooklyn Law Offering Limited Refunds to Some Unemployed Graduates

The Brooklyn Law School is doing something innovative concerning jobs for graduates.  CNN is reporting that the school will refund 15 percent of the total graduates paid in tuition if they are still searching for a job nine months after receiving their degree.  There are some catches, though nothing onerous.  Students must work through the career services office and plan to take the bar.  More details are in the CNN report.

Mark

Are Law School Applications Stabilizing?

If the current figures from the LSAC web site hold up, it appears that law school applications are starting to stabilize.  There is still a drop compared to 2014, but the figures show a 2% drop in applicants and a 4.2% drop in applications.   That is not as scary compared to double digit drops in past years.  Historical applicant figures are in this document. There is a graph on the LSAC web site noting the last three years of applicants and applications that show the 2015 timeline as slightly below that of 2014, which is well below 2013.

I can’t speak to the experience at individual law schools though I would think that many deans and admission officers would be relieved hearing these numbers.  This could actually bring some pause to staff/faculty buy-outs, budget cuts, and other reductions law schools have been forced to make (like law library budget cuts).

Additional comment on this development is in the Wall Street Journal.  Aggregate numbers of total number of law schools and law students 1964-2012 are available in this chart from The Faculty Lounge.  Bloomberg is still emphasizing low job placement for graduates in this article.  Law School Employment data and other law school statistics are available from the ABA.

Mark

Friday Fun: The Beach Boys – “I’m A Genius Too”

This may be Friday Fun, if you can call it that, for us, but not so much for Brian Wilson.  A colleague asked me about some of the stuff she saw in the Brian Wilson movie, Love & Mercy.  During the course of the discussion I mentioned that she should listen to the Help Me Rhonda sessions, or more specifically, the approximately 40 minutes where Beach Boy dad and then-producer Murry Wilson spent psychologically torturing Brian during the recording session.  It’s available at the WMFU blog in two versions.  There are excerpts and then there is the full tape.  Go with the link to the full tape to appreciate the anguish Brian was feeling as the interplay moved over time.  There is nothing like it.  While your at the WFMU page, check out the four Peter Bagge cartoons, The Murry Wilson Show.  It’s a hilarious parody of the recording session.  There are links in the fourth paragraph of the text.

I’ve been involved in music for years, both from a performance and production standpoint.  As a collector, I probably have a good chunk of the unreleased history of rock music sitting in my basement.  I’ve also produced various bands and artists in the Chicago area for around the last 20 years in my own studio.  I’ll also offer an example of my production work with this song from Fank, a band I both performed with and recorded.  The song is called Need To Belong.  The track was recorded in 2005 from the last time the band ever played.  My colleague from the DePaul Law Library, Dan Ursini, is on bass.  Good times.

Mark

 

Survey of Primary Materials and Formats

I posted about three weeks ago about the discussion going on at my library concerning the maintenance of the National Reporter System as well as other bibliographic items.  This was in connection with ABA Standards for law school library collection allowing for “reliable access” to primary law through electronic resources.  This got me wondering.  I know that current and ongoing material would be on Lexis and Westlaw and other resources.  The immediate question is how far back does everything go?  I would assume through representations that the databases cover all case law from the beginning.

I wound up checking each information statement for case law in WestlawNext and compared it to everything that is a citable item in Table 1 of the Bluebook.  Westlaw does, in fact, represent that it carries case law for every item listed as a citable reporter in the Bluebook.  I’m in the process of checking Lexis at the moment.  While I can take issue with the way Lexis organizes its case law files, the survey so far indicates that it goes all the way back as well.  Lexis does have some interesting additions in that it seems there are databases for circuit court reports for a select number of states.  I’m still working on that survey.

I’m considering an expansion of the survey to other databases such as Hein Online as well as free resources such as Google’s case law and books and other reliable databases for comparative purposes.  Hein’s historical databases for case law and statutes continue to expand, especially for state published items.   I’m also interested in the formats (text only, PDF, etc.) and the range of coverage for each file type.  This information would likely be useful for cite checkers and reference librarians.  I have the initial WestlawNext chart for coverage by reporter and date.  Feel free to contact me for a copy.  I’ll post my progress as I get through this.  I may ultimately turn this into an article that compares type of material to availability, format, and whether it’s reliably free or in a subscription database.  We’ll see if I have the stamina as this goes forward.

Mark

Copyright Office Issues New Report on Orphan Works and Mass Digitization Projects

The U.S. Copyright Office has issued a new report, Orphan Works And Mass Digitization, which identifies legislative proposals and other considerations to create mechanisms that allow for legal use of orphan works and mass digitization.  The report builds on earlier examinations of the issues released in 2006 and 2011.

From the Executive Summary:

While the fundamental aspects of orphan works and mass digitization have remained unchanged since the Office’s prior reviews, a number of important domestic and international developments have affected the legal landscape. In the United States, it is difficult to separate the issue of mass digitization from two lawsuits arising out of the Google Books project, in which authors and book publishers have asserted violations of their exclusive rights and Google and libraries have asserted fair use.4 Recent decisions in these cases have magnified the public debate surrounding the costs and benefits arising from digitization projects more generally, and how best to license, except, or otherwise regulate them under the law.

Meanwhile, a growing number of countries have adopted legislative responses to both orphan works and mass digitization, ranging from calibrated exceptions to government licenses to extended collective licensing. And, private entities have developed innovative new copyright information registries and other resources to more efficiently bring rightsholders together with those seeking to use their works.

These combined developments – all of which will have substantial ramifications for U.S. copyright stakeholders – strongly suggest that it is time to revisit potential solutions in the United States. The goal in doing so is not to interfere with jurisprudence, but rather to ensure that the rules are clear and that all parties are on equal footing. Indeed, with so many equities at stake, the complexity and breadth of the issues make them well suited for legislative action.5 While the Office has addressed these issues together in this Report, we recommend separate solutions.

The Copyright Office was opposed to the Google Book Settlement which was ultimately rejected by the trial court.  The current report (PDF) is available here.  Perhaps Congress will get around to actually making reforms in the copyright laws to account for orphan works and digitization projects.

Mark

Apple Loses Appeal In Ebook Case

The Second Circuit Court of Appeals rejected Apple’s arguments on appeal and upheld Judge Denise Cote’s finding that Apple violated the antitrust laws:

Defendants Apple, Macmillan, and Simon & Schuster appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.), entered on September 5, 2013. After a bench trial, the district court concluded that Apple violated § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., by orchestrating a conspiracy among five major publishing companies to raise the retail prices of digital books, known as “ebooks.” The court then issued an injunctive order, which, inter alia, prevents Apple from signing agreements with those five publishers that restrict its ability to set, alter, or reduce the price of ebooks, and requires Apple to apply the same terms and conditions to ebook applications sold on its devices as it does to other applications. We conclude that  the district court correctly decided that Apple orchestrated a conspiracy among the publishers to raise ebook prices, that the conspiracy unreasonably restrained trade in violation of § 1 of the Sherman Act, and that the injunction is properly calibrated to protect the public from future anticompetitive harms. In addition, we reject the argument that the portion of the injunctive order preventing Apple from agreeing to restrict its pricing authority modifies Macmillan and Simon & Schuster’s consent decrees or should be judicially estopped. Accordingly, the judgment of the district court is AFFIRMED.

The main opinion was accompanied by an opinion concurring in part and dissenting in part, and a dissenting opinion.  Here are the opinions:

US v Apple Opinion US v Apple C&D In Part US v Apple D Opinion

Mark

Supreme Court Action: Patents, Fourth Amendment, Excessive Force Claims, and the Takings Clause

The Supreme Court issued four opinions this morning.  I’m guessing the same-sex marriage case and the Obamacare case will be decided on June 29th, which appears to be the last day of the term.  Today’s cases, while not having the social impact, are interesting nonetheless.

The first case is Kimble v. Marvel Entertainment LLC (13-720).  Kimble entered into a contract with Marvel (the pre-Disney owned Marvel) where Marvel would buy Kimble’s patent on a Spiderman for a lump sum and a 3% royalty on each toy sold.  Sometime near the end of the 20-year patent term Marvel’s spidey sense began to tingle and the company discovered the case of Brulotte v. Thys Co., 379 U.S. 29 (1964 ).  That case held that a patent holder could not charge royalties once the patent had expired.  Marvel sued for and won a declaratory judgment that royalty payments would cease once the patent expired.  The Ninth Circuit affirmed.

The Supreme Court upheld Brulotte and affirmed the lower court decisions on the basis of stare decisis.  The Court said that relief from the rule rests with Congress and not the Court.  It also suggested that the royalty contract could be structured in other ways to spread the payments beyond the expiration of the patent.  Justice Kagan delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Thomas.  The dissent argued that the Court made up the Brulotte rule when the case was decided (wrongly, in its view) and could just as easily get rid of it as there is nothing in the patent laws that direct that result.

The second case is Los Angeles v. Patel (13-1175).  The City of Los Angeles has an ordinance that requires hotel operators to record specific detailed information about their guests.  The ordinance also requires that the records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.”  A group of motel owners sued on the basis that the statute was facially unconstitutional under the Fourth Amendment as it afforded no opportunity to challenge the inspection beforehand.  The District Court held for the City ruling that the owners had no privacy interest in the records.  The Ninth Circuit affirmed but then reversed en banc.

The Court held that a facial challenge to the ordinance can be made.  Even though the “search” in this case is administrative, it is still unconstitutional as it does not allow pre-compliance review before a neutral party.  Justice Sotomayor delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a dissenting opinion and was joined by Justice Thomas.  The dissents argue essentially that the challenge should fail as the Court decides whether the application of a law is unconstitutional rather than the text of the law in and of itself.

The third case is Kingsley v. Hendrickson (13-6368).  Kingsley was a prisoner awaiting trial when he became uncooperative in his cell.  On one occasion he refused an order to leave his cell and was forcibly removed.  He was handcuffed and stunned with a Taser.  He also alleged officers slammed his head into a concrete bunk.  He filed a §1983 suit.  The trial court issued jury instructions calling for a subjective standard to decide liability.  The jury found for the officers.  The Seventh Circuit affirmed in a divided panel.

The Supreme Court reversed holding that the correct standard was an objective unreasonableness standard in deciding an excessive force claim.  The Court stated that it was consistent with precedent, it is the standard in the pattern jury instructions, officers are trained to a standard, and based on circumstances, the officers may be justified in their actions and given some form of immunity.  Justice Breyer delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a separate dissent. Justice Scalia argues that “any intentional application of force that is objectively unreasonable in degree is a use of excessive force that “amount[s] to punishment.””  Justice Alito would dismiss the appeal as other questions need to be answered in the case first.

The fourth case has been to the Court before on procedural issues over jurisdiction.  The Court today decides the substantive issue in the case of Horne v. Department of Agriculture (14-275).  The Agricultural Marketing Agreement Act of 1937 lets the Secretary of Agriculture create marketing orders to maintain stable markets.  Horne and his family grow raisins and acts as a handler for other growers by buying their crop and marketing them.  The marketing order establishes the Raisin Administrative Committee.  The Committee imposes a 47% reserve allowing that portion of the crop to be given to the government to sell in noncompetitive markets, give away, or otherwise dispose of.  Any profits after expenses are returned to the grower.

Horne refused to turn over raisins to the government.  He was fined the fair market value of the withheld crop and other civil penalties.  He ultimately sued the government alleging that the program violates the Takings Clause of the Fifth Amendment.  The Ninth Circuit ruled that this was not a per se taking as personal property is afforded less protection than real property.  That court also stated that the Hornes could avoid the problem by growing different crops.

The Supreme Court reversed. The Fifth Amendment applies equally to personal property as to real property, requiring just compensation from the government.  The history of the Fifth Amendment justifies this.  The Committee’s taking of the 47% of the crop is clearly a taking and the net profits are not just compensation.  The Hornes are not required to pay the fine and then seek its return in other proceedings.  Chief Justice Roberts delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justices Ginsburg, Breyer, and Kagan joined the opinion as to Parts I and II.  Justice Thomas filed a concurring opinion.  Justice Breyer filed an opinion concurring in part and dissenting in part and was joined by Justices Ginsburg and Kagan.  Justice Sotomayor filed a dissenting opinion.  Justice Breyer would remand the case to determine if any money was due to the Hornes after the accounting.  Justice Sotomayor argues that precedent relied on by the Court does not make the circumstances a per se taking.

Mark

Friday Fun: The Chicago Blackhawks

I recognize that some, especially those in Florida, may not consider this week’s Friday Fun to be fun at all.  It is for me.  As someone who has probably been to more Chicago Blackhawks games than any other form of public entertainment, I give you the 2015 Stanley Cup Champion Blackhawks singing We Are The Champions shortly after winning the Cup last Monday night at the United Center.  No one will confuse the team with a quality choral group.  It doesn’t matter though.  We won the Cup.  Enjoy.

Mark

Supreme Court Action: License Plates and a Host of Others

The Supreme Court issued six opinions yesterday.  The most controversial is the Texas specialty license plate case, Walker v. Texas Div., Sons of Confederate Veterans, Inc. (14-144).  The facts are straightforward.  The Sons of Confederate Veterans applied for a vanity plate that featured the organization and included a confederate flag.  A Google image search of [sons of confederate veterans license plate] will bring up ample amounts of results showing the design.  It is also appended to the end of the majority opinion.  Interestingly, it appears that other states have issued plates with the design.  Texas, however, said no to the confederate flag.  The SCV naturally sued.  The federal district court upheld the denial and the Fifth Circuit reversed.

The issue concerned whether plate design was government speech or private speech.  If it was the former, Texas had the right to control its own governmental message appearing on its license plates.  If it was private speech, the First Amendment would prohibit government from censoring the message.  The majority ruled that Texas had the right to refuse the design as it was characterized as government speech.  The Court based this holding mostly on the prior case of Pleasant Grove City v. Summum, 555 U. S. 460 (2009).  In Summum, the Court rejected a private organization’s attempt to place a religious monument in a city park where other privately erected monuments already existed on the basis that the government could control its own message.  The nature of the park did not turn it into a private forum.  The Court analogized the park setting with that of vanity license plates.

The Court’s opinion was delivered by Justice Breyer and he was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts, and Justices Scalia and Kennedy.  The dissent argues that the Summum case is distinguishable and that the majority passes off government speech with private speech.

The other cases involve subjecting the mentally handicapped to the death penalty, Brumfield v. Cain (13-1433, (the defendant has a right to prove he is mentally handicapped); introduction of statements made earlier by a 3-year old child about abuse does not violate the confrontation clause, Ohio v. Clark (13-1352); whether the state has to prove intent and knowledge when a defendant is charged with selling drug analogues appearing on schedules from the Controlled Substances Act (it does), McFadden v. United States (14-387); and whether a church can be fined for not removing temporary directional signs in time limits contained in its sign code (it can’t in that the applicable code was not content neutral), Reed v. Town of Gilbert (13-502).

Mark

Study: Academic Publishers Rake In The Dough

There is an interesting article from the CBC called Academic publishers reap huge profits as libraries go broke.  The sub-title is “5 companies publish more than 70 per cent of research papers, study finds.”  There is a constant cry from academic libraries in the United States, and I assume Canada, over the cost increases in scientific, medical, and social science journals.  Harvard University in fact joined that chorus three years ago in encouraging its scholars to publish in open source publications.  Academic libraries in some situations dropped Elsevier subscriptions in protest.  Others joined in as well.

The CBC article documents a study of publishers by Vincent Larivière and others from the University of Montreal’s School of Library and Information Science.  He found that the top five journal publishers held 53% of the academic journal market and had a 40% profit margin.  This sentence explains why that is possible.

“The quality control is free, the raw material is free, and then you charge very, very high amounts – of course you come up with very high profit margins.”

Indeed.  There is a link to the full paper within the article.  Here’s the abstract:

The consolidation of the scientific publishing industry has been the topic of much debate within and outside the scientific community, especially in relation to major publishers’ high profit margins. However, the share of scientific output published in the journals of these major publishers, as well as its evolution over time and across various disciplines, has not yet been analyzed. This paper provides such analysis, based on 45 million documents indexed in the Web of Science over the period 1973-2013. It shows that in both natural and medical sciences (NMS) and social sciences and humanities (SSH), Reed-Elsevier, Wiley-Blackwell, Springer, and Taylor & Francis increased their share of the published output, especially since the advent of the digital era (mid-1990s). Combined, the top five most prolific publishers account for more than 50% of all papers published in 2013. Disciplines of the social sciences have the highest level of concentration (70% of papers from the top five publishers), while the humanities have remained relatively independent (20% from top five publishers). NMS disciplines are in between, mainly because of the strength of their scientific societies, such as the ACS in chemistry or APS in physics. The paper also examines the migration of journals between small and big publishing houses and explores the effect of publisher change on citation impact. It concludes with a discussion on the economics of scholarly publishing.

It’s published in PLOS ONE, which is an open source journal.

Mark

Print Isn’t Dying, It’s Just Shrinking

There is an interesting discussion going on at my library.  As others may be doing, we are considering the proper mix between print and online resources.  ABA law school accreditation Standard 606 now allows for “a core collection of essential materials through ownership or reliable access.”  It’s that last part, “reliable access,” that triggers deep soul searching of what to buy in print or what to buy as an electronic subscription.  Tempering the rule are other qualifications that state the core collection should support faculty scholarship and the curriculum, and that a collection that consists of a single format may violate Standard 606.

In this context I’ve recommended that we drop the National Reporter System, ALRs, CJS, multiple state codes, and selected treatises that are online.  This may sound radical to some.  I know that law schools and libraries are experiencing budget cuts due to lower enrollment.  That drives part of the analysis.  Another factor that bears thought is what we teach these days.  The legal writing program at DePaul started teaching all electronic research.  We experienced a drop in library visits as a consequence.  No more treasure hunts, no answering the same questions over and over at the reference desk.

I can remember how far we’ve come in electronic access.  We used to teach print resources because that’s what the legal market had out there.  Now electronic access to case law and other primary sources is ubiquitous.  At one time it was viable to teach print because the databases were based on print.  Understand the organization of print and the online version would make more sense.  That’s not so true anymore.  Online database providers no longer think in terms of echoing print other than citation and star paging.  Certainly there was a time when case law on Westlaw was organized by reporter.  Not anymore.  It’s all jurisdictional, and that seems natural now compared to looking for a database containing the Northeastern Reporter.

Look at how citators have changed.  There was a time when Shepards online would be no more current than the latest print update.  Even the CD-ROM product mirrored print.  Now everything is dynamic.  I can’t imagine why anyone would want to subscribe to the print edition at this point.  We cancelled our print copies years ago. If anything was made easier by online access, Shepards, KeyCite, and citators in general are it.  They are more complete, can be filtered, and everything is spelled out instead of interpreting symbols attached to citations.

Then there are law reviews.  I have to say how much I like Hein Online when it comes to law reviews.  Everything back to day one is there in PDF format more or less.  We still get paper copies of law reviews but discard them once they appear on Hein.  No more binding these books for the collection.  Google Scholar works as a handy index to Hein content as well as other scholarly databases.

So now the next question is what is the proper mix for print and online?  I know that some libraries have already dropped major primary resources such as reporters.  In one sense, we are behind the curve on making that set of decisions.  Never in my career had I thought I would be part of this kind of decision.  Times change.  I find that I’m not very sentimental about physical materials that no one uses at my library.

Mark

ABA Publishing Releases Perry Mason Novels

When I was growing up (a long, long time ago) I would watch Perry Mason episodes on television.  That show, and E.G. Marshall starring in The Defenders, presented my first awareness of the legal process.  I have been called on by one faculty member who uses video clips in her presentations to locate Perry Mason segments where Perry thunders at a witness (“May I remind the witness that you are under oath!”) with facts derived from Paul Drake’s investigations.  The result more often than not brought a surprise confession from the witness or someone in the gallery.  District Attorney Hamilton Burger would, more often than not, sheepishly approach the bench and ask for some variation of dismissing the charges.  In these days of regulated discovery, even in criminal cases, I’m not so sure these courtroom encounters would pass legal muster.  They made for riveting entertainment nonetheless.  I often enjoyed searching for these clips as it was more entertaining than locating cases on certain aspects of employment discrimination.

Mason was created by author Erle Stanley Gardner and published the first of a long line of Mason novels in 1933 with The Case of The Velvet Claw.  Much to my surprise, the American Bar Association is rereleasing the first five Mason novels on Ankerwycke, its consumer imprint.  More information is available here.  I think I may go back and wander through some of the clips I’ve collected in the course of reference service.

Mark

Supreme Court Action: Recognition of A Foreign Sovereign and Executive Powers, and a Little Legal Research Lesson

The Supreme Court issued one opinion this morning.  That case, Zivotosky v. Kerry (13-628), resolves a long standing court battle on whether a U.S. passport issued to a citizen born in Jerusalem can state the country of birth as Israel.  The current administration, as well as every previous administration since the United States recognition of Israel in 1948, has declared that Jerusalem is not under the control of any one country.  The Foreign Affairs Manual requires that passports recording of birth location be consistent with administration policy.

Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003 in 2002.  Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.”  Congress explicitly authorized passports to state the country of birth as Israel for those U.S. citizens born in Jerusalem.   Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 and his parents requested his country of birth be listed as Jerusalem.  Consular officials declined the request, setting up the present suit.

There is a long history of this case proceeding up and down the federal court system.  The Supreme Court issued a procedural opinion in 2012 (Zivotofsky v. Clinton) ruling essentially that the federal courts could decide the question.  Three years later the Court rules on the substantive issue, stating that the Act is unconstitutional.  The rationale for this is an analysis of constitutional language,  historical practice, and past precedent touching on presidential power to conduct foreign relations.  The Court acknowledges that Congress can pass legislation that can regulate passports in some circumstances.  Congress, cannot, however, pass legislation that affects the power of the President to recognize (or not) foreign sovereigns.  This Act falls into that latter category.

What struck me most about the opinion is the number of historical secondary sources cited by the Court.  It’s almost a lesson in legal research.  Some of the sources include:

  • Restatement (Third) of Foreign Relations Law of the United States §203, Comment a, p. 84 (1986)
  •  2 M. Whiteman, Digest of International Law §1, p. 1 (1963)
  • 1 J. Moore, Digest of International Law §27, p. 73 (1906)
  • I. Brownlie, Principles of Public International Law 93 (7th ed. 2008) (Brownlie)
  • The Federalist No. 69, p. 420 (C. Rossiter ed. 1961)
  • E. de Vattel, The Law of Nations §78, p. 461 (1758) (J. Chitty ed. 1853)
  • 2 C. van Bynkershoek, On Questions of Public Law 156–157 (1737) (T. Frank ed. 1930)
  •  2 H. Grotius, On the Law of War and Peace 440–441 (1625) (F. Kelsey ed. 1925)
  • 3 J. Story, Commentaries on the Constitution of the United States §1560, p. 416 (1833)

There are more.  I point this out as someone who has taught Advanced Legal Research, emphasizing that researching international and constitutional law issues requires attention to historical literature.  There is more to interpretation than the latest hornbooks.    The Court’s opinion today validates that.  The Clerks did a marvelous job in working on this case.  I’ll leave the impact of today’s decision to the commentators in the new.

Justice Kennedy delivered the opinion of the Court and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Breyer filed a concurring opinion.  Justice Thomas filed an opinion concurring in the judgment and dissenting in part.  That makes it 6-3.  Chief Justice Roberts filed a dissenting opinion and was joined by Justice Alito.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Alito.

Mark

Friday Fun: The Amazing World of Gumball

Gumball is a cartoon cat and the title character of the Amazing World of Gumball on Cartoon Network.  His “brother” is Darwin who was once a pet fish but managed to leave the bowl and grew legs.  His sister Anais is a rabbit, like her father Richard.  Nicole, Gumball’s mother, is also a cat.  Got that?  Good, as that is the beginning of a set of characters that consist of animated entities, puppets, and CGI/3D characters all mixed into 11 minute cartoons for kids and adults.  I watch it on a regular basis.  Mainstream actors such as Brian Blessed (playing Santa Clause)  and Sir Derek Jacobi (narrating an episode) have provided voices to the show.

The clip I’m posting here is particularly funny to me as I have a friend with whom I have an ongoing conversation about the differences, say, between Norwegian Death Metal and Doom Metal, among other sub-genres of the music.  Rocky, who is the bus driver and school janitor, here explains the differences in metal  to Gumball and a few of his friends.  It’s oddly accurate.  Enjoy.

Mark

Follow

Get every new post delivered to your Inbox.

Join 229 other followers