A Little Technology Today

Here are a few of technology developments that I thought were kind of interesting.  One is that Google will now allow a user to download all of his or her search history for all time, or at least all tracked time.  Then again, isn’t “all time” and “all tracked time” synonymous?  The instructions and links to the relevant screens are available in this article from CNBC.  I don’t really have a problem with Google tracking anything.  I do as much or more searching based on my work as a reference librarian.  That leads to some interesting ads, such as books from Thomson Reuters or Lexis Publishing available on Amazon.  I know other people don’t have the same attitude I have about Google and other search engines.  At the same time, I’m probably one of the most boring people around when it comes to targeted ads.

Another story from CNBC also mentions a change in the Google search algorithm that will favor mobile sites in search rankings when the search comes from a mobile source.  The story notes that nearly half of Google traffic between June and November 2014 came from a mobile device.  The change goes into effect tomorrow.

Here’s a short note about the Internet of Things.  Mashable and other sites are reporting that Wink Hubs, controllers for things like door locks and lights, among other connected devices stopped working because of a software update that broke the connection between the device and its servers.  The device is so secure that a remote software update isn’t possible.  Owners have to send the device back to the company to get fixed.  I guess turning keys in locks and flicking light switches is sooooo 2000.  Kids these days!  They have it easy.  Why I remember when Alta Vista was the best search engine around.  And when we used Yahoo, we didn’t search, we looked through lists of links!  Those were the days.

Speaking of Yahoo, the company is reworking its deal with Microsoft on using Bing as the engine that powers Yahoo search.  Some of the results will now come through Yahoo’s own engine which will also supply Yahoo’s own ads.  The story is here.

Mark

Another Wrinkle in the Decline of Law School Applicants

We all know the constant year to year declines in law school applications.  The latest figures from the Law School Admission Council show it:

As of 4/03/15, there are 308,871 fall 2015 applications submitted by 45,978 applicants. Applicants are down 2.8% and applications are down 5.0% from 2014.

Last year at this time, we had 87% of the preliminary final applicant count.

What’s not in these figures is contained in a story on Bloomberg Business which states that there are about 50% fewer applicants from LSAT takers who scored 165 or above.  Law applicants with lower scores are taking slots that these individuals would normally fill.  That is disturbing on any number of levels.  Lower average LSAT scores affect rankings and, I think, quality of graduates.  Somehow, Senator Roman Hruska’s statement on failed Supreme Court nominee G. Harold Carswell comes to mind:

Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”

They just may get it, Senator.

Mark

 

Exam Stress And How to Cope In A Picture

It’s that time of year in academics where law students start to sweat it for their spring exams.  I remember how I would do almost anything to avoid studying.  I guess I had the cleanest apartments ever during exams.  Cleaning was my “go to” way to procrastinate.

There is an infographic at the Stop Procrastinating web site included with the post Exam Stress:  Students Reveal Their Top Tips For How To Cope With Exam Anxiety that shows the results of a survey of 2000 college students on anxiety and coping mechanisms.  45% of students used social media and Internet browsing as a way to avoid studying for example.  Room tidying was the lowest at 7%.  To each their own.  Some of the coping mechanisms include exercise, listening to uplifting music, blocking the  Internet (horrors!), and others.

I would never suggest that college exams are similar to law exams, though my experience and observation show that law students get just as wired when exams are about to hit.  The graphic may be useful for ideas on how to get through exam preparation.

As a side note, I will be back on the Blog on Monday after I return from the MichAll meeting.

Mark

 

Librarians Are Here To Stay

I get asked every now and then about the future of librarians.  I work in an academic environment.  I get questions from students, faculty members, the general public, other librarians, you name ‘em.  The type of questions I get are contrasted, to some extent, with statements that with everything on the Internet we will be obsolete.  I’m sure many librarians, not just law librarians hear that.  Those with that attitude tend to think that because they never use a librarian’s services that no one else would need that assistance either.

All of you should know, for example, that Google offers free case law that extends back to approximately 50 years for state cases and 80 years for federal cases.  I have found unreported cases and slip opinions in the archive.  My point is that Google is hardly a secret to the Internet-going world.  At the same time, I get calls from non-law libraries about case law and the librarian or patron at the other end seems to have no idea that this archive exists.  They are delighted to know that exists once they find out about it.  Public patrons in particular seem happy to know that they don’t have to trudge to downtown Chicago to find accurate case law that isn’t behind a paywall.

I encounter students almost every day who seem not to have a clue as to how to read a result in a catalog search result.  They’ll flash their phone or tablet screens at me and ask me what to do to get a copy.  Sometimes the answer is as simple as pointing out the location on a paper map.  Other times it can be pointing out that there is a link on the record that can give instant access as an e-book.

Let me state categorically that I do not think these circumstances or the people asking them are dumb.  They obviously either do not have the knowledge that resources exist or have thought about how get the information on their own.  That is where we come in.  The public Internet has been around for at least 25 years if not longer.  There is so much out there and so many strategies for locating information that may or may not be behind a paywall.  There are scams to avoid.  I remember a phone call where an individual called and said she was contacted by phone from the IRS demanding a tax payment.  I looked up the IRS page and read the statement detailing how the Service contacts individuals.  It noted that the Service never contacts people by phone demanding money.  For those pondering the “unauthorized practice of law” angle, I read the text verbatim and let her draw her own conclusions.

Information is power.  We know how to find it and put it in context.  I would never claim to know everything there is to know about content online.  At the same time, there are no shortage of people who draw upon that experience and that of my colleagues.  For those who claim they don’t need us, fine.  But don’t assume that no one needs us.  Librarians will be here for a long time to come if my experience is accurate.

Mark

Upcoming Workshops Of Interest

First of all, there is this from Washington University in St. Louis:

Conducting Empirical Legal Scholarship Workshop 2015

The 14th annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from June 15-June 17 at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data.

Participants need no background or knowledge of statistics to enroll in the workshop. Registration is here. For more information, please contact Lee Epstein.

As a side note, I won’t be posting this Thursday or Friday as I will be attending the MichALL Spring Conference titled “Technology in Law Libraries: Where We’re At and Where We’re Going.” The event will be held on Friday, April 17, 2015, in the Wayne State Univ. School of Law’s Damon J. Keith Center for Civil Rights lecture hall. The program flier is here:

http://www.aallnet.org/chapter/michall/meetings/Spring_Event_Flier_031215.pdf.

Electronic registration is at http://goo.gl/tT89ar.  The conference fee is a very reasonable $20.

Mark

Law Faculty Blogger Defamation Case Dismissal Upheld on Appeal

There are reports from the ABA Journal online and the National Law Journal (the link is in the ABA story) of a plaintiff who sued a law blogger, Professor Shaun Martin of the University of San Diego, for defamation resulting from statements about her case on his blog.  Professor Martin opined on some of the details in the case(s) of Melanie Welch in her actions against the school where she worked and the  California State Teachers’ Retirement System.  I’m not going to go into detail here about those cases.  The information is in the stories online and in the appellate opinion that affirmed the dismissal of her defamation suit on anti-SLAPP grounds.

The gist, if I read the opinion correctly, is that Professor Martin offered opinions about the evidence presented in the case, the technical correctness of the ultimate decisions, and suggested to his readers to determine for themselves whether the results were justice:

[M]aybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view.” Op. at p 7.

That was one of the statements alleged to be defamatory.  The Court found that opinion is not actionable under defamation law and the plaintiff was unable to carry her burden under the anti-SLAPP burden-shifting framework.  Readers may be wondering why I’m not putting in more detail on the facts of the case.  I’ll just say that readers should read the article links and opinion and draw their own conclusions.  I’ll just say as someone who writes regularly writes about cases and their outcomes, I believe the result to be a correct one.  The text of the document is linked in the ABA Journal article above, and for convenience, here.  We’ll see if the California Supreme Court takes up the case if presented to it.

Mark

Faculty Member Sends Email with Porn Link to Students

I get kind of busy sometimes with email and other online stuff, doing two or three things at the same time.  I have copied links to place in an email, and then something else to put in a document, and then I get distracted and sometimes put the wrong thing in the wrong document.  I’ve been lucky in that I haven’t inadvertently sent the wrong message with the wrong content to the wrong person.  That doesn’t happen to all of us.  Take, for example, the email sent by Drexel University faculty member Lisa McElroy to her students with a link to a great article about brief writing.  Turns out the link went to content on PornHub instead.  Woopsie.

I have sympathy for Professor McElroy in that this embarrassment was probably not deliberate.  Drexel is investigating.  Here are two links to the story, one from the Drexel University Herald and one from  WPVI-TV Philadelphia.  The latter has a screen shot of the email with the link blocked out.  I liked the Westlaw logo at the top of the message.  What I’d really like to know is not how or why this happened, or even the porn link.  What was the article on brief writing?  That’s what happens when you get to be my age.

Mark

“Well, I’m back, baby”

I think those are the words Bender uses whenever Futurama rises from the dead.  That’s its current state unless one counted the cross-over episode with The Simpsons from the current season.  So, yep, I’ll be posting again, though not necessarily every day.  Keep those press releases coming.  I have a nine month backlog I’ll be going through to see if there is anything both interesting and still relevant to post.

The legal news today is that a judge allowed a woman to serve divorce papers to her husband via Facebook.  It’s a last resort, of course, when the other party avoids service.  But just think what this could mean for future litigation.  Interesting.  Here’s the story in Time Magazine.  Here’s a version of the same story from the New York Daily News, a paper with it’s own unique “character.”

Mark

 

The New Lexis Advance

The new Lexis Advance interface is supposed to hit screens everywhere on September 8, at least according to this announcement from Lexis.  I can’t say enough bad things about the old (current) interface.  I hope the usability of the new interface is better, otherwise it’s back to the Lexis.com option hidden in the Research Tab.  –Mark

What’s in your Toolbox for using PACER for Empirical Research?

The following is a guest post by Beth E. Applebaum of the Arthur Neef Law Library at Wayne State University in Detroit Michigan.  I’m a big fan of Bloomberg Law’s docket search feature, but it does have limitations whether one has access via an academic or commercial contract, as Beth has discovered.  She writes:

Although Bloomberg, WL Dockets and CourtLink can be cost effective tools in retrieving Federal Court Dockets, we recently were reminded that they are not a reliable tool for conducting empirical legal research.

An experienced legal researcher, using appropriate search terms, had been assured by our Bloomberg Rep that “all PACER records were on Bloomberg.” Relying on that information, she used a keyword search to retrieve all filings of a specific motion.

Since PACER dockets on Bloomberg are not updated on a real-time basis, the results were significantly incomplete. According to our Rep, Bloomberg “sweeps” through PACER several times throughout the day to pull in new cases. Once the dockets are in the system, Bloomberg refreshes the civil dockets in U.S. District Courts and Chapter 11 Bankruptcies on a 30 day cycle. (Chapter 13 and Chapter 7 dockets are on a less frequent cycle). Otherwise, updates for specific cases must be requested by the user. The reason the dockets are not updated more frequently is a combination of costs to Bloomberg and “server traffic.”

As a result, a keyword search in Bloomberg will not generate comprehensive results. A time-consuming (and certainly not full-proof) two-step approach is to update all cases in a specific jurisdiction for a specific date range; then conduct the keyword search.

We have reviewed PacerPro, RECAP and Inforuptcy and it does not appear that they provide any better alternatives for empirical research. Our Bloomberg Rep has acknowledged that this issue has been raised by other legal professionals and that as of right now, Bloomberg is “not set up for that kind of
research.”

If you have developed other approaches or work-arounds to deal with these research issues, we’d certainly like to hear about them.

Beth may be contacted at as0941@wayne.edu.  If anyone else would like to add some thoughts to the blog, feel free to contact me. –Mark

Court Holds West, Lexis Legal Briefs Offering Is Fair Use

One of the running issues I had been following is the attempt to copyright legal briefs with the intention to gain royalties or prevent others from using them.  The particular case that litigates the issue is White v. West Publishing Company and Reed Elsevier (USDC Southern District NY).  District Judge Rakoff ruled that the use by West and Lexis is fair use.  Both companies transform the documents to a different purpose and use according to the Judge’s analysis under the four fair use factors:

The Court finds that West and Lexis’s use of the briefs was transformative for two reasons. First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool. See Blanch v. Koons, 467 F.3d 224, 251 (2d Cir. 2006) (“The sharply different objectives that Koons had in using, and Bland had in creating [the work] confirms the transformative nature of the use.”). Second, West and Lexis’s processes of reviewing, selecting, converting, coding, linking, and identifying the documents “add[] something new, with a further purpose or different character” than the original briefs. Campbell, 510 U.S. at 579. While, to be sure, the transformation was done for a commercial purpose, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579. Thus, on net, the first factor weighs in favor of a finding of fair use.

The Court dismissed the claim with prejudice.  The entire opinion is here, courtesy of ARL.  I’m sure there will be an appeal.  Lawyers are sometimes too smart for their own good.  –Mark

2014 Fastcase 50 Award Recipients Announced

From the press release:

The Fastcase 50 highlights entrepreneurs, innovators, and trailblazers — people who have charted a new course for the delivery of legal services. In law firms with new delivery models, legal tech startups, and even inside some of the nation’s largest law firms and legal publishers, these pioneers are giving the world a first look at what’s next for law and technology.

“The Fastcase 50 is one of our company’s favorite events,” said Fastcase CEO Ed Walters. “There is a wonderful community of friends, past winners, bar partners, law librarians, and software developers who recommend their heroes for the award. Every year we’re inspired by the stories, and we especially enjoy celebrating some people who aren’t always in the limelight, but who are quietly transforming the law and legal services.”

Congrats to all recipients including but certainly not limited to Rich Leiter (University of Nebraska College of Law Library), Scott Meiser (LexisNexis), Tina Gheen (Law Library of Congress) and law bloggers Simon Fodden, (Slaw), Tom Goldstein (SCOTUSBlog), Eugene Volokh and Orin Kerr (both, Volokh Conspiracy). — Joe

Supreme Court Action: Sovereign Immunity by Foreign Nations in Post-Judgment Discovery

The third case decided by the Supreme Court on Monday comes from litigation surrounding Argentina’s external debt default in 2001.  The case is Republic of Argentina v. NML Capital, Ltd. (12-842). As Justice Scalia tells us, Argentina managed the crisis by swapping out some securities with others.  This wasn’t the best deal debtors could get.  They took it nonetheless as it meant getting something back from the bad investment.  NML Capital, Ltd., a creditor holding some $2.5 billion is Argentinian debt, decided to sue instead.  The case was heard in the Southern District of New York.  Argentina waived immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA).  NML won 11 different judgments against Argentina.

The next step in the process for NML was to discover assets to satisfy the judgments.  It issued subpoenas to non-party banks Bank of America and Banco de la Nación Argentina (there was a branch in New York City) for transactional information relating to Argentina’s property in the United States and elswhere.  Argentina objected.  The District Court refused to quash the motion and the Second Circuit affirmed.

The Supreme Court affirmed as well.  The FSIA limits attachment to a foreign nation’s property that is used for commercial purposes.  The laws of other countries may limit attachment in those jurisdictions as well.  That, however, does not stop subpoenas or other asset discovery as there is a difference between what is attachable and what is discoverable.  NML and the courts may make the distinction later on as proceedings require.  FSIA makes no reference to discovery of post-judgment assets.  As such, the proceedings are proper.  Justice Scalia issued the opinion for the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, Breyer, Alito, and Kagan.  Justice Ginsburg filed a dissenting opinion.  Justice Sotomayor did not take part in the case, presumably because she was a judge on the Second Circuit when the initial litigation was pending.  Justice Ginsburg would limit the scope any order of discovery to attachable assets that are proven to be so.—Mark

Supreme Court Action: False Statements When Purchasing Guns and Article III Standing

The Supreme Court issued three opinions this morning.  The first is Abramski v. United States (12-1493).  Abramski purchased a gun for his uncle from a licensed gun dealer.  Abramski stated he was the “actual transferee/buyer” on Form 4473 which is required by law.  The form warned that someone buying a gun for another was not the actual buyer.  Abramski was convicted under two sections of the U.S. Code for knowingly making false statements “with respect to any fact material to the lawfulness of the sale” of a gun and for knowingly making a false statement “with respect to the information required … to be kept “in the gun dealer’s records.  The Fourth Circuit affirmed the conviction.

A divided Supreme Court upheld the conviction.  Abramski argued that federal gun laws are unconcerned with straw arrangements, especially considering that his uncle was eligible to make a legal gun purchase in any event.  The Court rejected these arguments stating that the context of the federal gun laws refer to true buyers rather than the straw.  Federal laws require in-person identification to keep guns out of the hands of prohibited purchasers by requiring background checks.  The same information helps law enforcement in investigating crimes by using these records to trace firearms to their buyers.  Justice Kagan delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor.  Justice Scalia dissented and was joined by Chief Justice Roberts, and Justices Thomas and Alito.  Justice Scalia writes that the statute does not reach Abramski’s conduct.

The second case is Susan B. Anthony List v. Driehaus (13-193).  The case concerns Article III standing to challenge an Ohio law that criminalizes certain false statements made during the course of a political campaign.  Driehaus filed a complaint with the Ohio Elections Commission alleging the SBA list made false statements about him, specifically that when Driehaus voted for the Affordable Care Act he voted for taxpayer funded abortion.  Driehaus lost the election and the complaint was dismissed.  SBA challenged the law in federal court on First Amendment grounds.  Another party, the Coalition Opposed to Additional Spending and Taxes (COAST) also filed suit.  COAST said it was planning to disseminate similar information but held back because of the SBA proceedings.  The District Court said there was no concrete injury for purposes of standing or ripeness.  The Sixth Circuit affirmed on the ripeness issue.

The Supreme Court reversed.  It held that SBA’s allegations of an intention to engage in a course of conduct that invokes a constitutional interest but proscribed by statute, there exists a credible threat of prosecution.  That is enough to trigger Article III standing.  The threat of future prosecution is real as complaints had been filed against SBA in the past.  The threat of prosecution is not “chimerical,” a term sprinkled throughout the opinion.  The Court returned the case to the Sixth Circuit to decide unresolved issues not before the Court.  Justice Thomas delivered the opinion for a unanimous Court.

I’ll discuss the third case tomorrow.  It involves sovereign immunity when a foreign country, in this case Argentina, is sued in federal court.  –Mark

Supreme Court Action: IRAs and Bankruptcy and One Federal Law Precluding Another

The Supreme Court issued two opinions this morning.  The Hobby Lobby case was not one of them.  The Court’s web site indicates scheduled conference dates through June 30.  The issue in the opinions issued today aren’t very controversial.  The first case is Clark v. Rameker (13-299).  It’s a bankruptcy case concerning whether an inherited IRA can be claimed as an exemption under the Bankruptcy Code §522(b)(3)(C).  That provision shields IRAs from creditors.

The facts of the case are pretty straight forward. Ruth Heffron established an IRA in 2000 with her daughter Heidi as the sole beneficiary.  Ruth died in 2001 and the IRA, then worth some $450,000, passed to Heidi.  She and her husband Brandon Clark filed for Chapter 7 bankruptcy in 2010.  They argued that the money in the account should not be available to their creditors.  The Bankruptcy Court said the account did not qualify as an exemption.  The District Court reviewing the case disagreed, stating that the statute covers all type of IRA accounts.  The Seventh Circuit Court of Appeals reversed, concluding that the rules governing inherited IRAs promote consumption rather than a saving for retirement and thus were not exempt.  The Supreme Court granted certiorari to resolve a split in the Circuits on the issue.

The Court agreed with the Seventh Circuit.  Retirement funds normally mean funds set aside for when an individual stops working.  The rules for inherited IRAs are inconsistent with that purpose.  The holder of the inherited account may not invest money into the IRA; they are required to draw money from the account within five years of the owner’s death irrespective of retirement; and the inheritor may withdraw any or all the money in the account for any reason without penalty.  These rules distinguish inherited retirement accounts from those eligible under the exemption.  Justice Sotomayor delivered the opinion for a unanimous Court.

The other case is POM Wonderful LLC v. Coca-Cola Co. (12-761).  It concerns the intersection of two laws, the Lanham Act which authorizes lawsuits based on unfair competition to private parties, and the Food, Drug, and Cosmetic Act (FDCA) which authorizes the federal government to regulate in the area of health and safety of the public.  The section of the FDCA at issue here concerns the mislabeling of food or drink.

POM sells juice including a pomegranate-blueberry blend.  Coca-Cola sells juice through its Minute Maid division with the words “pomegranate blueberry” prominently displayed on the container’s label.  Minute Maid’s product, however, contains only 0.3% of pomegranate juice and 0.2% of blueberry juice.  POM sued Coca-Cola under provisions of the Lanham Act that allows a competitor to sue another for unfair competition arising from false or misleading product descriptions.  The Ninth Circuit held that the FDCA precluded suit under the Lanham Act.

The Supreme Court reversed.  It held that there is nothing in the statutory language of the FDCA indicating a preclusion of one federal law over another.  The statutory regime, in fact, is complementary.  Any preclusion sections of the FDCA refer to state rather than federal law.  Much of the opinion is devoted to statutory interpretation, concluding that the centralization of regulation in the FDA does not indicate Congress meant to foreclose private enforcements authorized under other federal statutes.  Justice Kennedy issued the opinion of the Court which was joined by all other Justices except for Justice Breyer.  He did not participate in the case.  –Mark

Supreme Court Action: Immigration, Statutes of Repose, and Bankruptcy

The U.S. Supreme Court issued three opinions this past Monday.  The first is Scialabba v. Cuellar de Osorio (12-930).  It addresses ambiguity in construing the Child Status Protection Act (CSPA).  Parts of it allow minors who have aged out (that is, turned 21 while waiting for consideration of a relative’s petition) to maintain their place in line for a visa while other parts seem to limit the circumstances in which that can happen.  The case is complicated, as Justice Kagan notes.  She sprinkles the plurality opinion with little gems such as:

(A word to the wise: Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.)  [Identifying the circumstances when aged-out children can qualify their position in line for a visa][P.3],

and

The full text of these three paragraphs, for the masochists among this opinion’s readers, is as follows: [text from footnote 8, P.8 quoting the statute at issue],

and

(Those hardy readers who have made it this far will surely agree with the “complexity” point.) [P.13].

Immigration law allows citizens and lawful permanent residents to petition for certain family members—spouses, siblings, and children of various ages—to apply for immigrant visas.  The process for granting a petition may take years or even tens of years.  Minors listed in a petition may turn 21 long before the process is completed.  The CSPA accounts for that in limited circumstances by allowing some aged-out children to maintain their place in line depending on whether the initial petitioner was a citizen or a lawful permanent resident.  The CSPA, however, contradicts itself in some circumstances.  Justice Kagan describes it as Janus-like.  I will suggest that the “masochists” out there read the text themselves as I find it hard to summarize.  The net effect is that the opinion limits the circumstances when children and other authorized minors can maintain their place in line for a visa after they turn 21.

Procedurally, the Board of Immigrant Appeals interpreted the provision narrowly, disfavoring the position of the respondents in this case.  The District Court granted summary judgment to the Government.  The Ninth Circuit on appeal reversed en banc.  The Supreme Court reversed again, holding for the Government.  The Board of Immigrant Appeals interpreted the contradictions in the statute reasonably.  That was entitled to deference under Chevron.

Justice Kagan could only muster two other Justices, Kennedy and Ginsburg, to join her.  Chief Justice Roberts and Justice Scalia concurred in the judgment.  The Chief Justice argues that the statutory conflict isn’t much of a conflict and would come to the same result without reaching deference under Chevron.  Justice Sotomayor dissented, arguing for a broad interpretation of the statute.  She was joined by Justice Breyer in full and Justice Thomas with the exception to footnote 3.

The next case is CTS Corp. v. Waldburger (13-339).  It concerns the distinction between a statute of limitations and a statute of repose.  They generally both do the same thing, limiting the time a cause of action may be prosecuted.  The difference, however, is a statute of limitations may be subject to equitable tolling in some circumstances while a statute of repose may not.  42 U. S. C. §9658 pre-empts state law statutes of limitation involving personal injury or property damage arising from the release of a hazardous substance, pollutant, or contaminant into the environment.  Waldburger and others sued CTS over property formerly used as an electronics plant where CTS stored chemicals.  They were either owners of parcels where the factory once existed or adjacent land owners.  They claimed harm from the stored contaminants.  The suit was filed 24 years after CTS sold the property.  The question before the Court was whether §9658 covers both statutes of limitation and repose.

The District Court agreed with CTS that §9658 only covers statutes of limitation and not of repose.  The Fourth Circuit reversed holding that the remedial purpose of §9658 is served by pre-empting both.  The Supreme Court reversed the Fourth Circuit.  The Court analyzed the language of the statute as well as pre-legislative materials and concluded that Congress did not intend to pre-empt statutes of repose.  References to tolling, the “applicable limitations period,” and no references to statutes of repose are examples the Court used to draw its conclusion.

Justice Kennedy issued the opinion of the Court with the exception of Part II-D.  Justices Sotomayor and Kagan joined the opinion in full.  Chief Justice Roberts, and Justices Scalia, Thomas, and Alito joined the opinion with the exception of Part II-D.  Justice Scalia wrote a short opinion concurring in part and concurring in the judgment.  He was joined by Chief Justice Roberts and Justices Thomas and Alito.  Justice Scalia would use a different approach to statutory construction to reach the same result.  Justice Ginsburg filed a dissenting opinion and was joined by Justice Breyer.  Justice Ginsburg reviewed the legislative history of the statute as well as the arrangement of the North Carolina laws to conclude that the Fourth Circuit was correct.

The last case issued on Monday is Executive Benefits Ins. Agency v. Arkinson (12-1200).  It’s a bankruptcy case covering the power of the bankruptcy judge to enter final orders in certain circumstances.  The problem in this case is that while Congress authorized that power to a bankruptcy judge by statute, an earlier Supreme Court case said that ability violated Article III.  The Court clarified that the bankruptcy court’s determination could be upheld when the district court conducts a de novo review of those determinations.  Justice Thomas delivered the opinion for a unanimous Court.–Mark

HathiTrust Wins On Appeal

I haven’t read the decision yet, so I can’t comment about it yet.  The opinion is here.  The Court’ summary states:

Plaintiff‐appellant authors and authors’ associations appeal a judgment  of  the  United  States  District  Court  for  the  Southern District  of  New York (Harold  Baer, Jr., Judge)  granting  summary judgment  to  defendants‐appellees  and  dismissing  claims of copyright infringement. In addition, the court dismissed the claims of  certain plaintiffs‐appellants for lack  of  standing  and dismissed other copyright claims as unripe. We hold, as a threshold matter, that certain plaintiffs‐appellants lack associational standing. We also hold that the doctrine of “fair use” allows defendants‐appellees to create a full‐text searchable database of copyrighted works and to  provide those works in formats accessible to those with disabilities, and that the claims predicated upon the Orphan Works Project are not ripe for adjudication. We vacate so much of the judgment as is based  on the district court’s holding related to the claim of infringement predicated upon defendants-appellees’ preservation of copyrighted works, and we remand for further proceedings on that issue. Affirmed, in part; vacated, in part.

The American Library Association issued a statement on the case:

Today, the U.S. Second Circuit Court of Appeals upheld the ruling in Authors Guild v.HathiTrust, deciding that providing a full text search database and providing access to works for people with print disabilities is fair use. The court also ruled that the Authors Guild lacked standing, and therefore could not assert infringement claims against the HathiTrust. The Library Copyright Alliance (LCA), of which the American Library Association (ALA) is a member, filed an amicus brief in support of the HathiTrust.

ALA President Barbara Stripling released the following statement in response to the ruling:

“The Second Circuit today affirmed more than a lower court decision—it affirmed that the fair use of copyrighted material by libraries for the public is essential to copyright law. ALA is pleased that the court recognizes the tremendous value of libraries in securing the massive record of human knowledge on behalf of the general public and in providing lawful access to works for research, educational, and learning purposes, including access for people with disabilities.

“The continued acknowledgement of the importance of fair use to enable learning and support for the development of a well-informed citizenry makes the U.S. copyright law unique and well-functioning.”

This decision affirms that libraries can engage in mass digitization to improve the discovery of works and provide full access to those works to students with print disabilities enrolled at the respective HathiTrust institutions.

The general public can search the database using keywords and locate titles held in 80 member institutions. Full text access to the underlying works is allowed only for students with print disabilities enrolled at the University of Michigan and certified as disabled by a qualified expert. Students with print disabilities are blind or have a handicap that prevents them from reading printed text. Because of the full conversion of the texts to digital format that is accessible, these students can use adaptive technologies, such as text-to-speech, to read.

ALA will continue its defense of fair use in the HathiTrust case, should additional appeals be filed.

I expect that some of the reasoning in this case may affect the Guild’s case against Google.  We’ll see.  — Mark

Future citators from an end user’s perspective

In an earlier video (Part IV of his Legal Research System of the Future series),  John Miano focused on the implementation of a modern citation index. The below video focuses on the citator from a user’s perspective.

To view all Legal Research System of the Future episodes published so far, go here. Highly recommended. — Joe

Supreme Court Action: Patent Infringement and Chemical Weapons with a Side of the Tenth Amendment

The Supreme Court decided three cases yesterday.  Two are patent infringement cases and the third rejects a criminal conviction under a chemical weapons treaty.  Spoiler alert:  The Court of Appeals for the Federal Circuit is reversed in both infringement cases.

The first case is Limelight Networks, Inc. v. Akamai Technologies, Inc. (12-786).  Limelight and Akamai both run content delivery networks (CDNs).  Akamai is the exclusive licensee of a patent that defines steps to deliver content.  Limelight uses several of the steps but not all of them.  The step in particular is performed by third parties using Limelight’s services to deliver their content whereas Akamai performs that step itself as part of the process.  Akamai sued for infringement and won a $40 million judgment in the District Court.

The Federal Circuit decided Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318 (2008) shortly after the jury returned its verdict.  That case held that a defendant in a direct infringement case must follow all of the steps to be liable.  On motion, the District Court reversed itself.  The Federal Circuit reversed.  It held en banc that a defendant could be held liable even when there is no direct infringement provided the evidence could support liability on an inducement theory.

The Supreme Court reversed.  It held that §271(a) of the Patent Act (the infringement section) requires all steps to be performed by an infringer before liability attaches.  Liability for inducement (§271(b)) requires a finding of direct infringement under §271(a).  The Court stated the Federal Circuit’s conclusion that infringement by inducement existed independently from the statute is wrong based on the Court’s precedent.  The Court declined to review or validate the rule announced in Miniauction here, sending the case back to the Federal Circuit to draw its own conclusions on the case.  Justice Alito delivered the opinion for a unanimous Court.  I’ll mention as a side note that when the Court established its web site in 2000 or so that it distributed its opinions through Akamai.  It wasn’t long before the Court dropped that arrangement and used its own servers.

The second patent case is Nautilus, Inc. v. Biosig Instruments, Inc. (13-369). The case concerns the proper standard for definiteness a court will use in construing a patent under §112 ¶2 of the Patent Act:

The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.

Biosig is the licensee of a patent that describes a device that measures heart rate on an exercise machine.  It does so by filtering out electromyogram (EMG) signals from electrocardiograph (ECG) signals through use of a electrodes placed on a metal cylinder attached to the machine.  The patent described this as a “common” electrode “mounted . . . in spaced relationship with each other.”  Nautilus sold exercise equipment with a similar feature.  Biosig sued for infringement.

The District Court granted summary judgment to Nautilus holding that “in spaced relationship with each other” failed the definite test of §112.  The Court of Appeals for the Federal Circuit reversed.  It held the standard of review to be that the claim is “amendable to construction” and is not insolubly ambiguous.”  The Supreme Court reversed.  It said the standard to determine indefiniteness is whether the claims, read in light of the patent’s specification and prosecution history fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.  Though language is imprecise, it must afford clear notice of the claim.  The Federal Circuit’s standard would allow some patents but not others without any consistency.  The Court does not decide the merits of Biosig’s claim against Nautilus.  It sends the case back to the lower courts for further reconsideration in light of its ruling.  Justice Ginsburg delivered the opinion for a unanimous Court.

The third case is Bond v. United States (12-158).  It concerns the application of the Chemical Weapons Implementation Act to an individual who used several chemicals to exact revenge on another.  Carol Anne Bond found out that her friend Myrlinda Haynes was carrying a child fathered by Bond’s husband.  She did not take the news well.  Bond acquired toxic chemicals and applied them to Haynes’ car door, mailbox, and door knob.  Haynes avoided most of the applications as they were easy to see.  She did suffer a minor burn to her thumb on one occasion and treated it by rinsing her hand with water.

Bond ultimately was caught.  Federal prosecutors brought charges against Bond that included a violation of the Chemical Weapons Implementation Act.  Bond moved to dismiss these particular charges as violating of the Tenth Amendment.  The District Court denied the motion and Bond entered a conditional guilty plea reserving her right to appeal.  The Court of Appeals for the Third Circuit affirmed the plea holding that Bond lacked standing to raise the Tenth Amendment challenge to her conviction.

The Supreme Court reversed in an earlier case (Bond I) holding that an individual may “assert injury from governmental action taken in excess of the authority that federalism defines.”  The Court did not express any views as to the constitutional challenge in that case.  On remand, the Third Circuit affirmed the conviction holding that the terms of the Act applied because of the highly toxic nature of the chemicals and that her use of them did not reach the “peaceful use” exception.  Bond’s Tenth Amendment claim was also rejected.

The Supreme Court reversed again.  It did not reach the Tenth Amendment argument as the Court stated that the Act did not apply to Bond’s conduct.  Congress did not intend the Act to apply to what amounts to a local assault normally prosecuted by the states.  Congress does not normally intrude on a state’s police power under principles of federalism.  The Court is unwilling to assume that is the case here.

In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.  There is no reason to suppose that Congress—in implementing the Convention of Chemical Weapons—thought otherwise.

Chief Justice Roberts delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Scalia filed an opinion concurring in the judgment as was joined by Justice Thomas and by Justice Alito as to Part I.  Justice Thomas filed an opinion concurring in the judgment as was joined by Justice Scalia and by Justice Alito as to Parts I, II, and III.  Justice Alito filed an opinion concurring in the judgment.  The concurrences were chomping at the bit to reach the constitutional question. –Mark

Supreme Court Action: Qualified Immunity

Two of the cases the Supreme Court decided yesterday involve whether law enforcement officers are entitled to qualified immunity when sued over the alleged violation of a constitutional right.  The first of these cases is Plumhoff v. Rickard (12-1117).  Rickard is the minor daughter of Donald Rickard.  He led police on a high speed chase just outside of Memphis.  The West Memphis Police ended the chase by firing 15 bullets into Rickard’s car causing it to crash.  Rickard and his passenger, Kelly Allen, both died as a result of a combination of the crash and the gunshots.

Police stopped Rickard’s car because it had one working headlight.  There was an indentation in the windshield indicating the car had hit something.  The Officer who stopped Rickard asked him to step out of the car and produce his driver’s license.  Rather than complying, Rickard floored his gas pedal and took off.  His car reached speeds on 100 miles or more on I-40 heading to Memphis.  Multiple police cruisers joined the chase.  Rickard exited the expressway, hit a police car and spun into a parking lot.  He continued to accelerate even though his bumper was flush against a police car.  Police fired three shots into the car.  As Rickard sped away, police fired 12 more shots into the car causing it to crash.  More details of the chase are in the Court’s opinion and in the Sixth Circuit’s opinion.

Rickard’s minor daughter filed suit against the officers and others under state law and 42 U.S.C. §1983 alleging the officers violated Rickard’s Fourth and Fourteenth Amendment rights by using excessive force in the encounter.  The District Court denied summary judgment based on a claim of qualified immunity.  The Court held the officers violated clearly established law at the time of the encounter.  The Sixth Circuit affirmed.

The Supreme Court reversed, holding that the officers were entitled to qualified immunity and that they did not violate the Fourth Amendment when they fired a total of 15 shots at Rickard.  The Court initially dealt with the issue of whether there was appellate jurisdiction.  Denial of a summary judgment motion is not normally appealable.  The Court stated that rule doesn’t apply when the denial was based on a claim of qualified immunity.

The Court stated that excessive force claims need to be analyzed under the totality of the circumstances.  Rickard’s actions posed a grave public safety risk given his attempts to flee the police.  The number of shots fired was reasonable in ending the threat to public safety.  The presence of a passenger does not change this.  The Officers would still be entitled to qualified immunity even if they violated the Fourth Amendment as there was no precedent that showed a clear violation of the Fourth Amendment at the time of the incident.

Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Sotomayor, and Kagan.  Justice Ginsburg joined the judgment and Parts I, II. And III-C, and in which Justice Breyer joined except as to Part III-B-2.

The second qualified immunity case is Wood v. Moss (13-115).  The case concerns First Amendment rights of protesters.  George W. Bush was campaigning for a second term in Jacksonville, Oregon.  Police allowed supporters and protesters to demonstrate along the motorcade route on opposite sides of the street.  The President made an unexpected stop for dinner in the patio area at the Jacksonville Inn.  The protesters were within weapon range of the President and were removed to an area two blocks away.  Supporters were not in weapon range and were permitted to stay.  None of the other diners at the Inn were required to leave, stay clear of the patio, or go through a security screening.  The President’s motorcade continued after dining and passed his supporters.  The protesters, however, were beyond his sight having been moved two blocks away.   They sued the Secret Service agents in charge of the operation for violating their First Amendment rights through viewpoint discrimination.

The District Court denied the agents’ motion to dismiss for failure to state a claim and on qualified immunity grounds.  The Ninth Circuit reversed but granted leave to amend the complaint.  Plaintiffs added allegations that the Secret Service has an unwritten policy of suppressing disfavored views at presidential appearances.  The agents again moved to dismiss and was denied.  The Ninth Circuit affirmed, holding that viewpoint discrimination could be inferred from the different treatment of the groups.  As such, the agents were not entitled to qualified immunity.

The Supreme Court reversed.  It stated that the Government may not suppress speech based on content in public places.  At the same time, people may not express their views whenever, however, and wherever they please.  The analysis in this case is whether the agents knew their actions contravened clearly established law.  The Court cited precedent recognizing the importance of protecting the President.  There was no decision that obligated the Secret Service to provide equivalent access to the President under the First Amendment.

The protesters argued that the agents could have moved the Bush supporters as well.  The Court said there was no security reason to do so.  They also argued that the agents’ actions were designed to insulate the President by not screening or removing staff and guests at the Inn.  The Court said that wasn’t necessary as these individuals were already on site when the President arrived.  The agents could keep a watchful eye on such a small group.  Furthermore, there is no proof of an unwritten Secret Service policy insulating the President from disfavored views.  Justice Ginsburg delivered the opinion for a unanimous Court. –Mark

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