Take a break because it’s time for Donald Duck’s Snowball War! — Joe
“If you live in Canada, January 1st 2014 would be the day when the writings of Robert Frost, W.E.B. Du Bois, C.S. Lewis, Sylvia Plath, and even Aldous Huxley enter the public domain. “O Brave New World, that has such treasures in’t!” In Europe, the works of Fats Waller, Nikola Tesla, Sergei Rachmaninoff, Elinor Glyn, and hundreds of others will emerge into the public domain – where they are freely available for anyone to perform, translate, or republish. All of these public domain works can be freely digitized and archived, so that anyone can find and use them. Canadians can stage their own Chronicles of Narnia, and Europeans can set Tesla’s autobiography to Rachmaninoff’s most intricate passages, all without asking permission or violating the law.”
And what if you live in the US? See Duke University’s annual report, Public Domain Day: January 1, 2014 — The Road NOT Taken, for the answer. — Joe
Bob Ambrogi identifies his top ten legal tech picks. One, the most important one in my opinion, is
Competence in technology turned from dalliance to necessity
In August 2012, the American Bar Association voted to amend the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent in technology. Specifically, the ABA voted to amend the comment to Model Rule 1.1, governing lawyer competence, to say that, in addition to keeping abreast of changes in the law and its practice, a lawyer should keep abreast of “the benefits and risks associated with relevant technology.” During 2013, we saw several states follow up on the ABA’s action. Delaware became the first state to formally adopt a duty of technology competence and it created a Commission on Law and Technology to help lawyers comply. Massachusetts is considering adoption of this rule. And in Pennsylvania on Nov. 21, amendments took effect to that state’s professional conduct rules to comport with the ABA model rule.
For his complete list, go here. Bob asks “What am I missing? What would be on your list?” — Joe
I wrote in LLB’s “Hello World” post … oh, my bad, soon after Mark and I left the Law Professors Blog Network, Blog Emperor Caron deleted all of LLB’s posts, a first for a network blog. So I can’t quote from or link to this blog’s first post. So it goes.
Happy 1, 2, 3, 4, 5, … running out of fingers to count and type at the same time, anniversary to our loyal readers. All the best to you and your loved ones for the new year. — Joe
And here’s the list.
Opinions for the Court
• Frank H. Easterbrook, Silverman v. Motorola Solutions, Inc., 2013 WL 4082893 (7th Cir. 2013)
• Susan Illston, In re National Security Letter, 930 F.Supp.2d 1064 (N.D. Cal. 2013)
• Brett Kavanaugh, Vann v. U.S. Department of the Interior, 701 F.3d 927 (D.C. Cir. 2012)
• Raymond Kethledge, Bennett v. State Farm Mutual Automobile Insurance Co., 731 F.3d 584 (6th Cir. 2013)
Concurrences, Dissents, Etc.
• Rosemary Barkett, U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012)
• Elena Kagan, American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013)
• Mark S. Massa, Indiana Gas Co. v. Indiana Finance Authority, 992 N.E.2d 678 (Ind. 2013)
• Milan D. Smith, Jr., Lane v. Facebook, Inc., 709 F.3d 791 (9th Cir. 2013)
• Randall Kennedy, For Discrimination: Race, Affirmative Action, and the Law (Pantheon Books 2013)
• Margaret Klaw, Keeping It Civil: The Case of the Pre-nup and the Porsche & Other True Accounts from the Files of a Family Lawyer (Algonquin Books 2013)
• Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press 2012)
• Vanessa Banni-Viñas, Correcting a Ballerina’s Story: The Truth Behind Makletzova v. Diaghileff, 53 American Journal of Legal History 353 (2013)
• John H. Langbein, The Disappearance of Civil Trial in the United States, 122 Yale Law Journal 522 (2012)
• Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 California Law Review 1445 (2012)
News and Editorial
• Jess Bravin, In Mississippi, a Gray Area Between Black and White, Wall Street Journal, March 16, 2013 (updated March 28)
• Jack Chin, Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman, PrawfsBlawg, prawfsblawg.blogs.com, October 21, 2013
• Brandi Grissom, Trouble in Mind: How Should Criminals Who Are Mentally Ill Be Punished?, Texas Monthly, March 2013
• Stephen B. Kaplitt, Letter to Richard D. Trenk (June 17, 2013)
• David Keating, Letter to Senator Richard J. Durbin, Center for Competitive Politics (September 16, 2013)
• John G. Roberts, Jr., 2012 Year-End Report on the Federal Judiciary, Supreme Court of the United States, Public Information Office (December 31, 2012)
• Stephen E. Sachs, Jeffrey S. Bucholtz, and Daniel S. Epps, Brief of Professor Stephen E. Sachs as Amicus Curiae, Atlantic Marine Construction Co. v. U.S. District Court, 134 S.Ct. 568 (2013)
Hat tip to Out of the Jungle for James Milles’ Legal Education in Crisis, and Why Law Libraries are Doomed [SSRN]. Here’s the abstract
The dual crises facing legal education—the economic crisis affecting both the job market and the pool of law school applicants, and the crisis of confidence in the ability of law schools and the ABA accreditation process to meet the needs of lawyers or society at large—have undermined the case for not only the autonomy, but the very existence, of law school libraries as we have known them. Legal education in the United States is about to undergo a long-term contraction, and law libraries will be among the first to go. A few law schools may abandon the traditional law library completely. Some law schools will see their libraries whittled away bit by bit as they attempt to answer “the Yirka Question” in the face of shrinking resources, reexamined priorities, and university centralization. What choices individual schools make will largely be driven by how they play the status game.
Hat tip to Jacob Gershman’s ‘Cultural Cachet’: A New Argument in Favor of Law School (WSJ Law Blog) for Tennessee Law Prof Lucy A. Jewel’s Tales of a Fourth Tier Nothing, a Response to Brian Tamanaha’s Failing Law Schools, Journal of the Legal Profession, Vol. 38, No. 1, 2013, [SSRN]. Here’s the abstract:
This is a paper written in response to Professor Brian Tamanaha’s Failing Law Schools. Much of the book is laudable for highlighting the serious structural, policy, and moral issues confronting legal education today. However, I disagree with several of Professor Tamanaha’s ideas for reforming our system. In this paper, I write from the perspective of a tenured legal writing professor teaching at a for-profit fourth tier school, in fact, one of the schools that Tamanaha repeatedly implies are the problem and not the solution for the legal education crisis.
Part One addresses the idea, which dates back to 1921, is that students at lower-tiered schools should be able to receive a different education (impliedly lower quality) than those students matriculating at higher ranked schools. Part Two counters Professor Tamanaha’s dichotomous view of legal scholarship and teaching, arguing that scholarship and legal theory carry a unique practical value for students, particularly in the context of a non-elite legal education. Part Three considers Tamanaha’s puzzling claim that clinical faculty and legal writing faculty must accept less job security and unequal pay in order to help save legal education.
Part Four of this paper presents an alternative explanation as to why students might choose to attend law school, even with the deep economic hardships involved. In terms of the continuing value of the J.D. degree, both Professor Tamanaha’s narrow economic analysis and the predominant counterarguments (e.g., you can do anything with a law degree!) miss the point that, for many, a law degree carries cultural value that operates apart (but sometimes in tandem) with economic capital. The idea that we should impose restraints on the ability of students to obtain a law degree, if they so choose, is somewhat paternalistic and at odds with the free market aspects of his analysis. The paper concludes by briefly developing social policy arguments that explain why we must work on reducing the institutionalized elitism that afflicts the legal profession and its educational system. Legal education must be reformed. But my suggestion is that we look for ways to make it better – less elitist and less hierarchical – as well as cheaper.
“You want talk about the non-economic benefits of going to law school? FINE! Let’s talk about the social and cultural “cachet” you’ll get, and see if it’s worth all the CASH you won’t ever be seeing again” wrote Ellie Mystal in his 10 Non-Economic Benefits Of Having A Law Degree post on ATL. — Joe
Earlier this week ten librarians were recognized for exceptional service to their communities in this year’s Carnegie Corporation/New York Times’ I Love My Librarian Award program administered by ALA’s Campaign for America’s Libraries. To meet the award winners, visit the American Libraries blog. — Joe
In Another Troubling Future-Conduct Settlement, James Grimmelmann evaluates the proposed settlement in Berry v. LexisNexis Risk & Information Analytics Group. The lawsuit involves the sale of Accurint data to help debt collectors, private investigators, and others “Detect fraud. Verify identities. Conduct investigations.” The plaintiffs claimed that Accurint data includes “the kind of personal information that can trigger the Fair Credit Reporting Act, but doesn’t comply with the FCRA’s other requirements. They claimed that LexisNexis doesn’t give consumers access to their files, doesn’t let consumers fix mistakes, and doesn’t require Accurint customers to comply with the FCRA.” Oops. Grimmelmann’s post is highly recommended. — Joe
Yesterday, the first issue of the Journal of Open Access to Law was published. The journal is edited by Tom Bruce, Ginevra Peruginelli, Enrico Francesconi, and Pompeu Casanovas. From the JOAL announcement:
This is the first issue of the Journal of Open Access to Law – JOAL, the open-access, peer-reviewed journal for the promotion of the international research on the topic of open access to law. JOAL provides an international forum for academic researchers as well as for practitioners of open legal publishing.
This issue delivers authoritative thought-leadership in governance of new models of legal publishing, projects in open access to law, technical challenges and economic opportunities created by open access to law as well as trends and changes suggested by the globalization of access.
Larry Lessig writes
I am completely embarrassed by my google-induced ignorance. And I’m completely committed to tying Bing now that it makes permissions so simple. I’m hopeful they can think more about whether “license” is the right word here. But regardless, Microsoft has taken an important step to make easier for users to use the content they are free to use, and respect the rights of copyright owners who don’t want their content reused.
For more see Lessig’s From now on, I’m “Bing-ing It!”. — Joe
What are we talking about? The Blog Emperor is comparing the differential in the US News law school overall and academic reputation rankings. In this blog post, he listed 53 law schools that are over-performing and underperforming their overall rankings because, well, academic reputation is very, very important.
How about the US News judges-attorneys reputational rankings? No, that’s not important. Only peer assessment scores are. Considering the low sample sizes and, in some years, response rates for both US News reputational surveys, the annual reputational findings are absurd (unless one might be fishing to increase human and robot traffic because law prof blog traffic dips during Winter Break; see today’s earlier post about web communications traffic stats).
For reaction to the nonsense, see the comment trail for Staci Zaretsky’s ATL post. My favorite, so far, is
I’m sorry, but who gives a shit what law professors and law deans think of the school? IF they count as part of the legal community (which I don’t really think they do), it is a small, insular, largely irrelevant portion.
Tell me what real lawyers think about the schools.
According to Incapsula, bots went from 51% of web traffic in 2012 to 61% of web traffic this year for a 21% year-over-year increase. The cloud computing firm found that most of the increase in bot traffic was due to increased activity by “good bots” like search engines. Spam bots, comparatively, are on the decline. However, the fact remains that any self-congratulatory remarks about a blog reaching a visit and/or page view milestone or blog rankings based on those metrics are wild inflations of this form of “social media.” If the bot traffic trend continues at this pace, pretty soon one will have divide web traffic stats by four to come up with a reasonable estimate of human mouse clicks and eyeballs. — Joe
Wolters Kluwer L&R will be releasing its Cheetah research platform soon. The Company, once a dominate player in the legal specialist market, offered Jean O’Grady a sneak peak. “Will Cheetah be just another hyped up launch of a marginally new product? Will it be a “head scratcher” like IntelliConnect? Can Cheetah find a home in the wild world of legal research? Can Cheetah outrun the competition? Read on” at Can Wolters Kluwer Legal Get its Grove Back? Can Cheetah Outrun the Market? Jean’s concludes her quick review, highly recommended, with the following:
Can Wolters Kluwer position Cheetah’s high performance platform to actually steal the market share that had been in BloombergBNA’s crosshairs? Can Cheetah lure users from Lexis and Westlaw with a promise of high functionality and relatively low annual cost which can be supported without charging clients for cost recovery? It looks like Cheetah is positioned to give them a “run for their money.”
Just a snip from Dan Filler’s Faculty Lounge post:
The [greater Philladelphia] market has five schools successfully fighting for roughly the same cohort of students: Rutgers- Camden, Temple, Villanova, Penn State, and Drexel. (Yes, Penn State is hours away, but it competes for the same students as the other three schools and scholarship decisions affect the others.) Notwithstanding differences in US News rankings, many students are willing to select a lower ranked school among the four depending on the bottom line cost of an education. This is evident from the fact that the LSAT range of each school is pretty wide and that each school’s 25th percentile LSAT is within 4 points of every other’s. Or, to put it another way, students admitted to the highest US News ranked school of the four – Temple – are routinely lured away to each of the other four schools by virtue of aggressive tuition discounts.
For more, see Philadelphia, The Capital Of Low-Cost Law School Education. — Joe
The Supreme Court issued one opinion this morning. The case is Heimeshoff v. Hartford Life & Accident Ins. Co. (12-279). Heimeshoff worked for Wal-Mart filed a claim with Hartford for long term disability. Hartford was the plan administrator for Wal-Mart with the plan covered by the Employee Retirement Income Security Act of 1974 (ERISA). The statute allows for judicial review of any denial of benefits. The terms of the plan, however, limits the filing of any suits to within three years after “proof of loss” is due.
Courts have generally required litigants to exhaust their administrative remedies before a suit can be filed. In Heimeshoff’s case, the administrative process concluded more than three years after proof of loss was due. The District Court dismissed the suit because it was filed outside of the three year contractual limitation. The Second Circuit affirmed.
The question before the Supreme Court was whether the contractual limitations provision is enforceable. The Court held that it is, affirming the Second Circuit. The Court’s precedent allows the enforcement of contractual limitations if the limitations period is of reasonable length and there is no controlling statute to the contrary. ERISA, the Court notes, allows suit to enforce rights under the plan, meaning that the plan terms were controlling and not in conflict with the statute.
The Court rejected the argument that participants in the administrative review process would short-change participating in the review as any later suit for denial of benefits would be limited to the administrative record. It would not be in a claimant’s interest to do so as undeveloped evidence would not be available in a District Court proceeding.
It would not be in a plan administrator’s interest to deliberately slow down the process to avoid judicial review as the administrator’s conduct could be subject waiver or estoppel in invoking the limitations period as a defense. Tolling the contractual limitations period during the internal review period is not an option as it would rewrite the contract. ERISA, in any event, does not require this. Justice Thomas delivered the opinion for a unanimous Court.
Perhaps but only if the principle of respect for all persons is actually accepted as being legitimate in civil society instead of merely being politically correct public chatter. Therein lies the problem. Here’s the abstract for Common Good and Respect for Persons [SSRN] by Wojciech Sadurski (University of Sydney – Faculty of Law):
We need a “working” conception of the common good, i.e. a conception that does not rely on where one stands in various current political controversies about specific aims, purposes and measures of achieving them, including controversies reflected in debates about and within constitutional law. Such a “working conception” can be supplied by the idea of public reason as a characteristically liberal device of legitimacy in a pluralistic society: attempts to equate “common good” with a set of common actual first-order interests must fail. Public reason is justified by a principle of respect for persons who may or may not agree with the specific laws but who will likely feel they are “second class” citizens, thus deeply disrespected, if the law is based on grounds which are not endorsable by them. Hence, this paper explores a triangle of concepts: common good, public reason (as a working conception of common good), and respect for persons (as a justificatory argument for public reason). In the first part of this paper I discuss the concept of common good, and its relationship with public reason, and in the second part I discuss respect for persons as a justification for public reason. It is argued, in particular, that respect (as a justificatory value of public reason) should be seen as part of a constellation of values, of which freedom (understood through a presumptive evil of coercion) and political equality (understood in an outcome-based, agency-related sense), are of particular importance.
While not achieving “Download of the Week” status by Larry Solum, hat tip to Legal Theory Blog: “All the theory that fits!”. — Joe