Author Archives: Mark Giangrande

Bloomberg Law’s New Feature, Points Of Law

Bloomberg Law announced a new research feature, Points of Law, a little over a week ago.  I’ve been playing around with it using the ATV injury problem I created for teaching online legal research concepts.  In summary, An ATV rider was injured while riding on someone else’s private property without permission.  The problem called for the researcher to identify relevant cases where assumption of risk was a viable defense and collect them for later analysis.  The jurisdiction is New York.

Let me explain a little about Points of Law before I dive into my experience with it.  Bloomberg’s press release describes the feature:

Points of Law offers a more efficient way to conduct case law research.  Through the application of machine learning to Bloomberg Law’s database of 13 million court opinions, Points of Law highlights language critical to the court’s holding, links this language to governing statements of law and relevant on-point case law.

Bloomberg Law provides context – connecting keyword search results to governing statements of law – and unparalleled breadth of coverage, generating one million Points of Law from our state and federal court opinion database.

I found the press release accurate.  I used one of the sample searches I set up for the research problem, <all-terrain vehicle and assumption of risk>.  The case law I expected to see in the list of results was there.  Some of the cases, not all, had a Points of Law icon on the right side of the text.  Clicking that highlights text that the AI in the database considers to be significant.  My search highlighted what I would describe as a combination of black letter law on a keyword related topic or significant points on how the courts treat that topic.  The focus here was on assumption of risk, obviously,  as and all-terrain vehicle is not a legal concept.

Here are some example results extracted from Marcano v. City of New York, 296 A.D.2d 43, 743 N.Y.S.2d 456 (App Div, 1st Dept 2002):

Generally, the issue of assumption of risk is a question of fact for the jury.” (Lamey v Foley, 188 AD2d 157, 163-164 .)

“The policy underlying this tort rule is intended to facilitate free and vigorous participation in athletic activities.” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 .)  [Discussing how assumption of the risk in sports is handled by the courts. – MG]

Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question * * *.”

What I found most interesting about using Points of Law is how viewing multiple extracts informed me about assumption of risk without requiring a lot of lengthy analysis.  Now, not all cases in the search results were useful in my context where an ATV rider was injured.  At the same time, a researcher will find what they need to know conceptually about assumption of the risk as treated by the New York Courts.  I assume that applies to other legal doctrines as well.

Another feature worth mentioning is that clicking on the highlighted phrase will open a side window that cites other cases expressing the same point of law (up to 10).  There is also a button that shows a citation map of the Point:

Bloomberg Cite Map.

Another button shows a list of opinions that expressed related concepts along with the Point text:

Bloomberg Related Points of Law

All in all, I think this is a nifty feature that researchers and litigators will actually use.  I wonder if it will integrate with any of the current general search products on the market, as in “Hey Google, find me cases in New York State that discuss assumption of risk in the context of recreational activities.”  If we now think that first year law students take the lazy route in legal research based on their Google use, just wait for the future to show up.

In the Not Everything is Perfect category, one case, Bierach v. Nichols, 248 A.D.2d 916, 669 N.Y.S.2d 988 (App Div, 3d Dept 1998), had one Point of Law listed but not highlighted in the text.  It was short enough that I was able to guess what was the likely text that would have been highlighted.  Oh well.  –Mark

Sixth Circuit holds against University of Cincinnati in Title IX case

The Sixth Circuit Court of Appeals decided the case of John Doe v. University of Cincinnati (16-4693) today.  The case concerns whether a preliminary injunction against a penalty of suspension imposed in a Title IX case should be upheld.  The Court agreed with Doe that his due process rights were violated as he had no way to cross examine the accuser in his case.  The Court notes that educational institutions are not in the judicial business, meaning that their hearings do not have to model trials and their rules of procedure.  Nonetheless, they have to provide a level of due process to the accused.  The fact that the University failed “to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

The process the University subscribes to in its administrative hearings for Title IX violations allows for accuser and accused to submit written questions which the administrative committee would review and ask each of the parties.  This did not happen in this hearing because the accuser, Jane Roe, did not attend the hearing.  University rules did not, in fact, require any of the parties to attend.  The panel made its decision on the basis of the written statements each party submitted, the Title IX Officer’s report, and statements Doe made in his defense at the hearing.  They decided to impose a two year suspension that was later reduced to one year on administrative appeal.

Doe took his case to the District Court which found in his favor.  The University could only decide based on the submissions from each party, basically one’s word against another.  The Court stated that cross examination was “essential” to due process in these circumstances.  The District Court also noted that the University’s code allowed for notarized statements from the accuser.  Roe’s statements were not notarized and the Court said that this significant departure from the institution’s own procedures could also amount to a violation of due process.

The University appealed to the Sixth Circuit which agreed with the District Court and upheld the preliminary injunction against suspension.  The Court largely agreed with the District Court’s reasoning.  The Court of Appeals set out the required process:

While the exact outlines of process may vary, universities must “at least” provide notice of the charges, an explanation of the evidence against the student, and an opportunity to present his side of the story before an unbiased decision maker. Id. (citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 565–66 (6th Cir. 2011)).

Both parties agreed that Doe’s property interest (not being suspended) is significant.  The Court said that the right to cross examine in one form or another is required by due process in the most serious of cases and the accusation of sexual misconduct is one of these cases.

Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Flaim, 418 F.3d at 641. Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. Id. (citation omitted). In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.

The Court held that the cross examination need not take the form of direct confrontation.  The question and answer format identified in the University Rules would work as would other variations such as appearances via Skype.  At the very least, the accuser will have to participate somewhat more actively in the hearing.

I wrote a book review recently of Laura Kipnis’ book, Unwanted Advances:  Sexual Paranoia Come to Campus, which is about this very issue.  Professor Kipnis highlighted some of the more egregious violations of due process in the book’s stories.  It’s well worth reading in light of this decision.

Mark

Elsevier acquires Bepress

The story is in The Scholarly Kitchen.  It’s pretty stunning news, especially after the acquisition of SSRN and the controversy over licensing that occurred shortly after that takeover.  So, is the fate of successful open-access scholarly archives to ultimately turn into arms of large corporations?  —Mark

Complaint available in the Fox News Seth Rich lawsuit

Headlines are blaring everywhere about the lawsuit filed by Rod Wheeler against Fox News involving a Fox story, later retracted, about the death of Seth Rich as part of a plan to distract from the Russia investigation involving President Trump.  See Lawsuit Asserts White House Role in Fox News Article on Seth Rich from the New York Times as an example.  If anyone is interested, the complaint in the case is available from the Deadline news site, here. Another source is from Document Cloud. —Mark

Friday Fun (with some sadness): Of Moose And Men

I was saddened on Thursday night to hear the news that June Foray had passed away at the age of 99.  She was a remarkable voice actor whose is most notably known for the voice of Rocket J. Squirrel from the Rocky and Bullwinkle show from the 60s.  There was nothing like it on TV at the time and it spawned any number of culturally subversive cartoons that followed.  Dare I say without Rocky and Bullwinkle we would not have Ren and Stimpy or Ralph Bakshi’s crazed version of Mighty Mouse.

Miss Foray reprised the voice of Rocky in the 2000 live action movie, The Adventures of Rocky and Bullwinkle, starring Robert Di Niro as Fearless Leader, Jason Alexander as Boris Badenov, and Rene Russo as Natahsa Fatale.  The movie was uneven but still a joy with the inspired cast list and cameos.  Other voices in Miss Foray’s repertoire include Granny and every other witch that appeared in Looney Toons cartoons.  Her voice was unmistakable.

OK, so much for the sadness.  On the fun side, please enjoy the 55 minute or so documentary Of Moose And Men, the story of the Rocky and Bullwinkle Show.

Thank you June for all of the joy you’ve given so many people in your long career.

–Mark

Google drops instant search feature

Google has retired the instant search feature it introduced in 2010 where search results will populate a page as a user typed.  No more.  The reason for this is that 50% of searches are on mobile devices where the feature makes no sense.  I wonder if anyone will notice.  More details are at The Verge and Search Engine Land. —Mark

A bit more MS Paint and Flash is finally (will be) dead

Microsoft responded to the negative reaction to deprecating Paint.  The news is that Paint will become a downloadable app in the Store.  Cue the sighs of relief from those into computer nostalgia.

The other interesting news in Tech is the Adobe announcement that the company will finally end support for Flash on December 31, 2020.  Adobe will stop distribution of the Flash player at that point.  Developers are encouraged to migrate to open formats such as HTML5, Web GL, and WebAssembly.  There is a good analysis for what this all means for consumers and developers at the CNET news site. —Mark

Microsoft deprecates MS Paint in coming Windows 10 update

The Internet is abuzz with the news that Microsoft is deprecating the Paint program in the Fall Creators Update.  There are a spate of articles of the “say it aint so” variety on various sites, including Slate, Gizmodo, and PCWorld, among others.  Deprecated in this context means that Paint is no longer in active development.  Microsoft appears to be pushing  Paint 3D as the alternative.  That app is available in the Microsoft Store if anyone wants to try it out.

More news in the announcement includes the removal of the 3D Builder app that Microsoft pushed in the last Windows 10 updates and the removal of the Outlook Express code lurking on the code base.  I thought Microsoft would have done that years ago with the introduction of the Mail app.

— Mark

Pubishers win antitrust appeal against small vendor

Here’s a little postscript to the Apple e-book antitrust case.  A failed e-book retailer BooksOnBoard (BOB) sued the publishers in 2014 for antitrust violations, essentially blaming conduct by the five Apple defendant publishers for its failure.  BOB purchased e-book inventory from a third-party wholesaler and sold books at a discount via its web site.

BOB claimed that the agency model pricing scheme destroyed its ability to compete in the e-book market, among other injuries.  The publishers presented evidence contradicting BOB’s claims.  The move to agency model pricing actually increased revenues for BOB.  The District Court opinion also mentioned factors such as the inability to link product to dedicated e-readers such as the Kindle or Nook and questionable management practices.

The District Court opinion from 2016 is available here.   The Second Circuit Court of Appeals opinion which largely adopted the District Court’s reasoning is here.

—Mark

June LSAT takers increase almost 20% over last year

When I was a working stiff at the DePaul College of Law, our Dean, Jennifer Rosato Perea, would hold regular staff meetings where she and other members of the administration would report on recruiting efforts.  These included targets, where we were compared to those targets, and what efforts we were taking in spite of the law school admissions “crisis” that all law schools faced.  I enjoyed those meetings because they gave all staff in the Law School a sense of community in a shared mission.  It’s not something I experienced in the other five law schools in my employment history.  Thanks Dean Jenn.

DePaul, as any other law school, lives and dies by bringing in not just a class that meets admission targets, but one that brings in a quality class as well.  Dean Jenn and other Deans should be heartened by the latest LSAC statistics that show an approximately 20% jump in test-takers for the previous June LSAT.  That’s an out-of-line statistic compared with the trends set by the last cycle of tests.

Yes, test-takers have increased gradually.  The figures for the last year include a 7.6% increase last December, and a 5.4% increase in February of this year.  However, a 19.8% increase in last June’s figures would not have been predictable compared to what came before.

Karen Sloan speculates in the Daily Business Review (subscription) that the increase may come from a “Trump-bump” due to the “turmoil in Washington.”  It may be possible but I’m not so sure.  Going to law school is still an expensive proposition.  I’s have to look at job prospects if I were applying at this point.  My biggest concern would still be if I could pay off the loans associated with a law career.

Sloan does caution that the number of test takers does not mean a significant increase in applications.  We’ll see.  I’ll be watching the trend and reporting on it from time to time.

—Mark

LexisNexis adds ALM titles to LN Digital Library

LexisNexis announced yesterday that the company is adding 250 titles from ALM to the LexisNexis Digital Library.  From the press release:

As a result, the LexisNexis Digital Library will now feature titles from ALM’s publications including Law Journal Press, The National Underwriter Co. and analytical titles from respected regional brands such as The Legal Intelligencer, New York Law Journal, New Jersey Law Journal and more. These titles will provide in-depth information on the latest issues and insightful analysis from leading lawyers, practicing attorneys and experts.

–Mark

Hello I Must Be Going

I’ve been at DePaul since 1999 and in Law Libraries generally since I was a circulation assistant at the Chicago-Kent College of Law in 1976.  That’s been around 41 years in the biz.  That’s a long time no matter how one slices it.

I will be retiring from DePaul at the end of June.  I look forward to sitting on my couch with my cats while watching cartoons all day long.  I may even pop up here a little bit more because of all the free time I’ll have.  We’ll see.  I’d like to thank everyone I’ve worked with in the profession.  It’s been fun.

Mark

Friday Fun: Scooby-Doo In The Red Room

There is a lot of buzz going on in the press because Twin Peaks is coming back on the air.  I wonder how many people know that Scooby-Doo and the gang visited the Red Room in one of the episodes of Scooby-Doo:Mystery Incorporated?  The clip below features not only the dancing man but a healthy dose of Ancient Aliens and some conspiracy theory.  What can I say but Nibiru.  Who thinks up this stuff?

Mark

Book Review: Unwanted Advances: Sexual Paranoia Comes to Campus by Laura Kipnis

I like this book.  It has everything: sex, casual hookups, relationships, recriminations, jealousy, careers cut short, and much, much more.  That’s just the backdrop.  The real focus is what happens when any or all of these things go wrong and someone files a Title IX complaint.  Title IX protects people based on sex in educational programs or activities that receive Federal financial assistance.  It also prohibits harassment or retaliation for filing a Title IX complaint.  This is a powerful weapon.  The prevailing understanding is that men are predators and women are victims.  Add a distinct lack of due process in the investigation of a claim and one wonders why anyone would even say hello to another person on campus for fear of having charges filed against them.  I’m not kidding—much.

Kipnis uses the case of former Northwestern faculty member Peter Ludlow as a prime example.  Ludlow was a prominent academic in the Philosophy Department who dated a student.  She was not one of Ludlow’s students and not someone who would necessarily be affected by Ludlow’s status for good or ill any more than if they never met.  Nonetheless, they dated.  Kipnis notes that the relationship was not prohibited by any campus codes in effect at the time.  The relationship ran its course and that was the end of that until the student filed a Title IX charge that they had non-consensual sex.  Ludlow denied the claim and it was investigated.

It’s here that we discover that the Title IX investigator has immense discretion in characterizing the various claims with a decision based on “preponderance of the evidence” standard.  We also discover that the investigation process does not even remotely resemble fairness in that the object of the charges cannot bring a lawyer to the proceedings, can’t examine the evidence, and doesn’t know the details of the charges until after the decision is rendered.  The proceedings in Ludlow’s case a painful to read for those who are trained in legal process.  A judge would never tolerate this in a courtroom.

We discover other details.  The “victim” of these sexual liaisons might be coached by another faculty member.  There are examples in the book where a faculty member has encouraged someone to bring charges against a rival member apparently for malicious reasons.  There were some elements of this suggested in the Ludlow case.

Kipnis describes one case that shows just how out of touch Title IX can be with fundamental due process.  She describes how one female student brought charges against a male student two years after the alleged act was committed.  This happened (apparently) because the complaining student’s boyfriend had found out about her other relationship and she was trying to save face.  The result was that she destroyed the academic career of the other student.

Now, I don’t want to suggest, nor do I believe that Kipnis is suggesting, that men cannot be predators.  She does suggest, however, that women who are over the age of consent and are not so compromised by the “power” of their partner or a campus code of conduct that they cannot make decisions as to whom they can engage in sexual relations.  That is to say that women have sexual agency.  Not every case that falls within a Title IX investigation is automatically a case of predation despite the nature of the Title IX process.

Kipnis said as much in a 2015 essay in the Chronicle of Higher Education called Sexual Paranoia Strikes Academe (premium content).  That essay, in fact, subjected Kipnis to her own Title IX investigation which lasted some 76 days before being closed in her favor.  She describes the case against her in one of the book’s chapter.

Kipnis is a bit of a lightning rod when it comes to ideas about sexuality.  Conor Friedersdorf wrote an article in The Atlantic recently about an attempt at Wellesley to ban her from campus because she might spread ideas that would cause “damage” or “injury.”  I guess that this book might cause the proponents of the ban an apoplectic fit if it became part of the library collection there.  I highly recommend the book.  The ideas are fresh and worth considering.

HarperCollins provided a copy of the book for review.

Mark

Books Are Violent

Everybody knows that I like cartoons.  Here is an excerpt from The Amazing World Of Gumball that urges people to read books.  I think it’s a great  Friday Fun.  Enjoy.

Mark

Justice Scalia

The fact that Justice Scalia passed away over the weekend from natural causes is, of course, all over the news.  There are any number of articles speculating on how nominating a successor would affect the coming presidential election; who are the potential nominees; how this changes the ideological make-up of the Court, and so one.  All are worthy questions for speculation.  I’d like to highlight what this event means for coming decisions.  The Court has had a certain stability despite the two appointments resulting in the confirmation of Justices Sotomayor and Kagan.  As a side note on that, check out the CNN story by David Axelrod where Justice Scalia quietly expressed a preference for Elena Kagan to replace Justice Souter.  He got his wish when Justice Stevens retired.

Court watchers were always interested in Justice Scalia’s questions in oral argument given the Court’s ideological split, mostly 4-4 with Justice Kennedy in the middle.  While he was identified as a conservative, he didn’t always side with a conservative point of view.  I remember that he was fairly protective of the Fourth Amendment (See U.S. v. Jones, 132 S. Ct. 945 (2012) as an example) when the trend in Federal Courts seemed to find plenty of exceptions in its prohibitions).  Justice Scalia’s questions were as much a clue to his influence on the resulting decision as it was a bit of theater.  He certainly seemed to enjoy the intellectual banter with those presenting arguments.  CNN has another article listing six cases the site highlights as more significant cases than others.  How the Court will handle these and other issues will send Court watchers back to re-analyze the arguments.

The cases that concerns me is the potential appeal of the Google Books case and the Apple antitrust case, both affirmed by the Second Circuit.  The Authors Guild has filed a petition for cert which is pending.  Apple has yet to file its petition but has indicated that it intends to do so.  Justice Scalia will not be a participant in the case whether the Court accepts the cases or hears them.  These cases may stand if the Court splits 4-4 on the issues.  If it makes any difference, Justice Scalia joined Justice Ginsburg’s dissent in the Kirtsaeng v. John Wiley & Sons, Inc. first sale doctrine case.

I have a minor personal story about Justice Scalia.  He came to DePaul several years ago and spoke to the faculty in our Rare Book Room.  Security was exceptionally tight.  I believe it was the first time ever I had to show multiple IDs just to get into the building.  I was sitting at the Reference Desk when the Justice was shuttled up to his engagement via the service elevator.  That was less than 100 feet from where I was sitting.  That is effectively the closest I will likely get to a member of the Court.  It was amusing to have security watch me while I answered the occasional reference question.

I have written pointed things about Justice Scalia in the past.  I’ll remember him as the Justice who rejected legislative history in all possible forms as a vehicle for interpreting statutes.  He did not join all of Justice Ginsburg’s dissent in Kirtsaeng.  He skipped every section that mentioned legislative history, even if appearing only in a footnote.  His attention to original intent had him questioning whether the King could hide a sentry in a coach as an analogy to whether the government could place a tracker on a defendant’s car in some circumstances.  That’s from the Jones case mentioned above.

Goodbye Justice Scalia.  You were larger than life on the Court.  While you will be replaced, there will never be a Justice exactly like you.

Mark

Eighth Annual Morris L. Cohen Student Essay Competition Opportunity

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Cengage Learning, announces the Eighth Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses to attend the AALL Annual Meeting.

The entry form and instructions are available at the LH&RB website: http://www.aallnet.org/sections/lhrb/awards Entries must be submitted by 11:59 p.m.,April 18, 2016 (EST).

AALL via Mark.

What The [Bad Word] Is This Supposed Be?

I was helping a cite checker with Pennsylvania Consolidated Statutes when I came across this free site called WestlawNext State Government Sites.  I’m not sure what TR is trying to do with this as FindLaw still exists.  The collection features a small but haphazard collection of primary and quasi-primary materials from what I would describe as all over the place.  The limited number of states represented are far from comprehensive.  The materials presented are just as puzzling.  Each collection has different ways to conduct searches.  Take a look.  Anybody with reactions please let me know.

Mark

Some Thoughts on Thinking Like A Lawyer

What does it mean to “think like a lawyer?”  For all the years I’ve worked in legal education (about 40) I admit I haven’t thought about the phrase much.  I have cups from Lexis with the phrase embossed on them.  But the phrase keeps coming home to me from time to time beyond promotional materials.  I encountered it when I had some unfortunate experience with my home plumbing during the Christmas break.  My kitchen sink backed up on Christmas morning.  That led to a series of events that started with drain cleaner and ended with cracked pipes and water leaking into my basement.  Ugh.

The clog was still intact on the Tuesday after Christmas when two plumbers arrived to remedy the situation. I had bailed the sink more than a few times between Christmas and then.  We put a little water in the sink and it started to pool in the drain.  One of the plumbers asked me what chemicals were in the water.  I said there shouldn’t be in there by now.  He replied that the boiling had to be caused by something.  There was almost imperceptible bubbling in the drain water.  I explained that early on in this adventure a friend of mine and I used drain cleaner at first.  I said almost automatically that I needed to “disclose” that to him.  We then had a short conversation about legal duty, though he wasn’t concerned about that.  I continued that law school does that to people.  I could not think of the condition of the sink without considering the legalities.  I told him at this point it was hard not to because of the perspective legal training creates.

I remember talking to a student last semester.  He had been working at a firm specializing in family relations, particularly those that are strained.  He was only half way through the curriculum and started to view the relationships in his family through a legal perspective.  I told him not to fight it.  That’s what law school does.  That’s thinking like a lawyer.  It’s not that his relatives would be potential clients as much as legal training puts that overlay on life.  It’s either sad or it means law school did what it was supposed to, or both.  I admit, sometimes I watch Tom and Jerry cartoons and count up the civil causes of action both have against each other.  Sad, I know.

Anyway, that’s it.  You know you think like a lawyer when legal rules play a part, not necessarily the only part, of everyday perspective.  In my plumber’s situation, it’s duty to warn or make safe.  Since I couldn’t make the chemicals in the water safe, I had to warn.  I don’t want a lawsuit after all.

 

Mark

Nebraska Courts To Drop Printed Opinions

From the Press Release:

Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.

Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.

Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.

Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.

Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.

Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access.  Hat Tip to Rich Leiter for the news.

Mark