Category Archives: Uncategorized

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

CRS Report: Pass-Throughs, Corporations, and Small Businesses: A Look at Firm Size

From the summary of Pass-Throughs, Corporations, and Small Businesses: A Look at Firm Size (June 23, 2015 R44086):

In debates over tax policy, it is not uncommon for pass-throughs to be viewed as small businesses and for corporations to be viewed as large businesses. This report uses 2011 U.S. Census data to investigate how the size of businesses varies by legal form (corporate versus pass-through). Firm size is based on employment. The analysis finds that the majority of both corporations and pass-throughs in 2011 had fewer than five employees (56% of C corporations and 65% of pass-throughs). Over 99% of both corporations and pass-throughs had fewer than 500 employees, the most common employment-based threshold used by the Small Business Administration (SBA). Thus, when using an employment-based measure of size, the majority of all businesses can be considered small, with the exact share depending on the chosen definition of small.

Analysis of the data also reveals that while the majority of firms were small, the largest firms accounted for the majority of employment. Slightly more than 50% of all employees worked at firms (corporate and pass-through) with 500 or more employees in 2011. Looking at this statistic separately for corporations and pass-throughs, roughly 73% of corporate employees worked at firms with more than 500 employees, while about 24% of pass-through employees worked at firms with more than 500 employees. Thus, while a greater proportion of workers in the corporate sector were employed by the largest firms, the proportion of pass-through employees employed at the largest firms was not small.

The average number of employees at large firms (more than 500 employees) is computed to gain insight into how large the largest firms were in 2011. There was a substantial difference in the average number of employees at large firms that were corporations as opposed to pass-throughs in 2011. The average number of employees at the largest C corporations (500 or more employees) was just above 4,000, while the average number of employees for pass-throughs was just over 1,000. Among large pass-throughs, partnerships tended to have the most employees on average with 1,156, S-corporations fall in the middle with 1,041 employees on average, and sole proprietorships have the fewest with 876 employees on average.

Understanding the data presented in this report may help policymakers when considering tax and non-tax policies. Specifically, it may help to better target policies that are geared toward affecting businesses of a particular size.

— Joe

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

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

Libraries became public institutions during an era much like ours

It was during an era much like ours when the public library became an American institution, according to Barbara Fister in How Libraries Became Public (Inside Higher Ed, April 26, 2017):

I find it intriguing that the American public library grew out of an era that has many similarities to this one – the last quarter of the 19th century, when large corporations owned by the super-rich had gained the power to shape society and fundamentally change the lives of ordinary people. It was also a time of new communication technologies, novel industrial processes, and data-driven management methods that treated workers as interchangeable cogs in a Tayloristic, efficient machine. Stuff got cheaper and more abundant, but wages fell and employment was precarious, with mass layoffs common. The financial sector was behaving badly, too, leading to cyclical panics and depressions. The gap between rich and poor grew, with unprecedented levels of wealth concentrated among a tiny percentage of the population. It all sounds strangely familiar.

From the conclusion of the Inside Higher Ed article:

This [19th century constructive] response to turbulent social stress would be unimaginable today. President Trump’s proposed budget completely defunds the Institute of Museum and Library Services and cuts LSTA grants to local libraries. Our new FCC commissioner has cut out a program that made internet access affordable for resource-poor schools and libraries, rolled back privacy protections so ISPs can get into the targeted advertising game, and now is attacking net neutrality rules so that our telecoms will be able to favor their content and limit access to competitors’ – or to sites that aren’t run by deep-pocket corporations.

What made the vision of “free to all” so attractive in the late 19th century? Why now do we have to pay for “free” information services with our privacy and, ultimately, our freedom? And, given this dismal state of affairs, why do free public libraries persist?

— Joe

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

Mapping the global legal landscape of blockchain technologies

Blockchain technologies are beginning to push a broad array of global economic activities away from centralized and toward decentralized market structures according to Julie A. Mauplin in Mapping the Global Legal Landscape of Blockchain Technologies. “Governments should tackle the new regulatory conundrums of an increasingly disintermediated global economy by focusing on blockchain’s individual use cases rather than its underlying enabling technologies. Grouping the known use cases around common characteristics reveals three broad categories of blockchain/law interfaces: the green box, the dark box, and the sandbox. Each raises distinctive legal, regulatory and policy challenges deserving of separate analysis.”

— Joe

Is blockchain a general purpose technology?

From the abstract of Ethan Kane’s Is Blockchain a General Purpose Technology?:

Is Blockchain a General Purpose Technology? To answer this question, we create a new method for identifying General Purpose Technologies, utilising contemporary data rather than historical, and use it to identify Blockchain as a General Purpose Technology. We survey 200 Blockchain applications, identifying their function and grouping them by what sector they operate in. This data is used to show that Blockchain shares characteristics with General Purpose Technologies to such a degree that it can be identified as such even though it is still an emerging technology. We conclude with a look at the implications of our findings and examining the problems in identifying a General Purpose Technology at this early stage of its development.

— Joe

Recent CRS reports on sanctuary cities

Due to the prominence of immigration enforcement issues during the 2016 presidential election and the Trump administration’s recent warning that it will withhold federal funding to sanctuary cities soon, I thought I would look up recent CRS reports on sanctuary jurisdictions. Two reports seem most appropriate:

State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement (July 10, 2015 R43457).

This report discusses legal issues related to state and local measures that limit law enforcement cooperation with federal immigration authorities. The report begins by providing a brief overview of the constitutional principles informing the relationship between federal immigration authorities and state and local jurisdictions, including the federal government’s power to preempt state and local activities under the Supremacy Clause, and the Tenth Amendment’s proscription against Congress directly “commandeering” the states to administer a federally enacted regulatory scheme.

The report then discusses various types of measures adopted or considered by states and localities to limit their participation in federal immigration enforcement efforts, including (1) limiting police investigations into the immigration status of persons with whom they come in contact; (2) declining to honor federal immigration authorities’ requests that certain aliens be held until those authorities may assume custody; (3) shielding certain unlawfully present aliens from detection by federal immigration authorities; and (4) amending or applying state criminal laws so as to reduce or eliminate the immigration consequences that might result from an alien’s criminal conviction.

See also Sanctuary Jurisdictions and Criminal Aliens: In Brief (Revised January 10, 2017 R44118). — Joe

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

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

Supreme Court Action: Habeas Corpus and Apply the Federal Arbitration Act to State Proceedings

The Supreme Court issued two opinions this morning.  The first is a habeas corpus case where the underlying issue is where a juror was struck for cause due to ambiguous statements made about applying the death penalty during the voir dire.  That case is White v. Wheeler (14-1372).  Wheeler was convicted of two murders and sentenced to death in Kentucky.  One juror, identified as Juror 638, responded to questions about his ability to impose the death as a sentencing option with answers that went back and forth.  The opinion describes these statements:

In response to the judge’s questions about his personal beliefs on the death penalty, Juror 638 said, “I’m not sure that I have formed an opinion one way or the other. I believe there are arguments on both sides of the—of it.” App. to Pet. for Cert. 126a. When asked by the prosecution about his ability to consider all available penalties, Juror 638 noted he had “never been confronted with that situation in a, in a real-life sense of having to make that kind of determination.” Id., at 131a. “So it’s difficult for me,” he explained, “to judge how I would I guess act, uh.” Ibid. The prosecution sought to clarify Juror 638’s answer, asking if the juror meant he was “not absolutely certain whether [he] could realistically consider” the death penalty. Id., at 132a. Juror 638 replied, “I think that would be the most accurate way I could answer your question.” Ibid. During defense counsel’s examination, Juror 638 described himself as “a bit more contemplative on the issue of taking a life and, uh, whether or not we have the right to take that life.” Id., at 133a. Later, however, he expressed his belief that he could consider all the penalty options. Id., at 134a.

The judge considered the prosecution’s motion to strike and, after reviewing the juror’s statements, granted the motion.  The Kentucky Supreme Court upheld Wheeler’s conviction and sentence on direct appeal.  Wheeler filed a habeas corpus petition in federal court.  The District Court dismissed but the Sixth Circuit reversed and granted the petition.

The Supreme Court reversed.  It emphasized the deferential approach to state courts required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unless the decision was contrary to federal law as decided by the Supreme Court.  The Court reviewed its precedents and concluded that under the deference requirement the Sixth Circuit erred in granting the petition.  The Court issued the opinion per curiam.  There were no dissents.

The second case involved the application of the Federal Arbitration Act (FAA) as controlling over state law.  Readers may remember that the Court enforced an arbitration clause in AT&T Mobility LLC v. Concepcion, 563 U. S. 333, awhile back.  That case came out of federal court where the Ninth Circuit enforced precedent (the Discover Bank case) that made waivers of class action suits unenforceable. The Court instead said the FAA preempted state law to the contrary and enforced the arbitration clause.

The present case, DIRECTV, INC. v.  Imburgia (14-462), concerns a variation of the Concepcion holding.  DIRECTV was sued in state court by individuals believing early termination fees violated California law.  The arbitration clause included in DIRECTV contracts limited dispute resolution to arbitration with a provision that waived class arbitration.  There was another provision stating that if “law of your state” makes the class arbitration waiver unenforceable then the entire arbitration clause was void.  The California trial court denied a request to send the matter to binding arbitration.  The California Court of Appeals agreed citing Discover Bank.

The Supreme Court essentially ruled that “law of your state” did not include state law that was invalid under federal law.  The Court cited multiple reasons for this conclusion, reasoning that in other circumstances courts would not rely on invalid state law in making decisions.   The “law” in this case includes the ruling in Concepcion which nullified the application of Discover Bank.  The Court made it pretty clear that there was no way of getting around the Concepcion ruling.  Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan.  Justice Thomas filed a dissenting opinion.  Justice Ginsburg filed a dissenting opinion and was joined by Justice Sotomayor.  Justice Thomas believes that the FAA does not apply to proceedings in state court.  Justice Ginsburg would read the entire contract as benefitting the consumer rather than corporate drafters.  He expresses similar views as to Justice Thomas but with a little more depth.

Mark

RIP Zimmerman’s Research Guide, 1999-2015

Andy Zimmerman, Manager of Library Services for the D.C. office of Morgan Lewis & Bockius, has decided to retire his go-to guide, Zimmerman’s Research Guide, after 16 years in existence. This valuable resource, hosted by LexisNexis the last 12 years, will go offline after December 31, 2015 according to this announcement. — Joe

It’s Pearl Harbor Day – New Text And Audio Collections at the FDR Presidential Library

Here’s a bit of news that archivists and historians may find useful on this anniversary of Pearl Harbor and the entry of the United States into World War II.  The Franklin Roosevelt Presidential Library has placed some 46,000 pages of speeches in draft, transcript, and final form online.  This collection is accompanied by another which comprises the complete audio recordings available of those speeches.  The site describes the collection:

The FDR Library, with support from AT&T, Marist College and the Roosevelt Institute launches online one of its most in-demand archival collections – FDR’s Master Speech File – over 46,000 pages of drafts, reading copies, and transcripts created throughout FDR’s political career. Presented alongside the Speech File is the Library’s complete digital collection of Recorded Speeches of FDR.

The earliest recording is dated 1920.  That’s pretty amazing given the state of recording technology in that era.  It’s more amazing that it can be downloaded in the ubiquitous MP3 format.  It’s that casual.

I’ve visited this site plenty of times in the past.  There is a wonderful collection of public domain photographs that document the Great Depression, the New Deal, and World War II.  There is some amazing stuff in these collections.  Speaking of Pearl Harbor, scroll halfway down this page for digitized research materials relating to Franklin Roosevelt and the Day of Infamy.

23-0132M

The original caption reads: “USS West Virginia and USS Tennessee after attack on Pearl Harbor, December 7, 1941.”  Archivist note:  USS West Virginia, BB-48, sinking after being hit with seven torpedoes and two armor-piercing bombs.  Along side is USS Tennesse, BB-43, after being hit with two bombs and being damaged by the explosion of the USS Arizona.  In the foreground are yard patrol craft which appear to be assisting in damage control and rescue operations.

Mark

Supreme Court Action: Suits Against Foreign Entities and the FSIA

The Supreme Court issued one opinion this morning.  The case is OBB Personenverkehr v. Sachs (13-1067).   The case involves a gruesome and unfortunate accident that befell Sachs as she attempted to board a train in Innsbruck, Austria. She fell on the tracks and before she could recover a moving train crushed her legs necessitating the amputation of both above the knee.  The train was operated by OBB which the parties agree is an instrumentality of Austria.  Sachs sued OBB in the Northern District of California for her injuries and alleged that jurisdiction was proper under the commercial activities exception of the Foreign Sovereign Immunities Act.  One month before her accident she purchased a Eurail pass via the Internet from The Rail Pass Experts, a Massachusetts-based travel agent.  This was the only activity related to OBB that took place in the United States.

Sachs made five claims:

Sachs sued OBB in the United States District Court for the Northern District of California, asserting five causes of action: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those design defects; (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses; and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses.

The District Court dismissed the case stating that her claims did not fall within the commercial exception located at 28 U.S.C. §1605(a)(2).  A divided panel of the Ninth Circuit affirmed.  A rehearing en banc reversed the divided panel and said the sale of the ticket fell within the exception.  The Supreme Court reversed concluding that the sale of the ticket in the United States was too remote from the elements of Sachs’ claims to fall within the exception.

The Court’s analysis turned on whether the commercial activity was directly related to injuries she claimed in her complaint.  The Court said there was nothing wrongful about the sale of the ticket that could be the basis of a suit that survives the FSIA.  Otherwise, the Court stated, many more suits could be filed against sovereigns using creative pleading.  The Court rejected other arguments as well as they were raised for the first time in the Supreme Court hearing.  Chief Justice Roberts delivered the opinion for a unanimous Court.

Mark

CRIV returns, vendor liaison position eliminated

In case you didn’t read AALL’s September 2015 eNewsletter issue, the vendor liasion position has been eliminated effective tomorrow and CRIV officially returns to its traditional role for the first time since 2009. Here’s the announcement:

The Executive Board has made some important changes to AALL vendor relations, which will be phased in during the next several months. The vendor liaison position, which was created in 2009, has been phased out, and those responsibilities will now be handled by the Committee on Relations with Information Vendors (CRIV).

CRIV members will now serve as liaisons to legal publishers and suppliers, holding regular biannual calls to exchange information about products, services, and other matters of concern to AALL members. Individual member questions, concerns, and complaints will continue to be handled by CRIV Chair Jacob Sayward.

Both the CRIV blog and The CRIV Sheet will continue to serve as communication tools for the work of CRIV. The CRIV Sheet is transitioning to a digital-only publication, which will be distributed to all members. The first digital issue of The CRIV Sheet is scheduled for publication on November 2. CRIV member Alexa Robertson serves as The CRIV Sheet editor.

A special thank you is in order for Margie Maes, who has served as the AALL vendor liaison for the past five years. Her work to develop our Vendor Relations Policy, to forge relationships with legal publishers, and to create opportunities for vendors and law librarians to discuss and educate themselves on legal information policy issues is greatly appreciated by the AALL Executive Board. Margie’s last day as vendor liaison is September 30.

Good riddance to a postion (not the person holding the position) that never should have been created in the first place. — Joe

Windows 10 is spying on you

“We will access, disclose and preserve personal data, including your content (such as the content of your emails, other private communications or files in private folders), when we have a good faith belief that doing so is necessary to.” —  Microsoft’s 12,000-word Windows 10 Service Agreement

For details, see Zach Epstein’s Windows 10 is spying on almost everything you do – here’s how to opt out. — Joe

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