Justice Thomas has made a few statements about race in the United States as reported in Salon and other sources yesterday.  Here are a few quotes:

“My sadness is that we are probably today more race and difference-conscious than I was in the 1960s when I went to school,” Thomas said. “To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up.”

“Now, name a day it doesn’t come up,” he continued. “Differences in race, differences in sex, somebody doesn’t look at you right, somebody says something. Everybody is sensitive. If I had been as sensitive as that in the 1960s, I’d still be in Savannah.”

Here’s my favorite quote:

“The worst I have been treated was by northern liberal elites,” Thomas said. “The absolute worst I have ever been treated. The worst things that have been done to me, the worst things that have been said about me — by northern liberal elites, not by the people of Savannah, Georgia.”

Without further clarification, I would suggest that a good chunk of that criticism extends merely to the logic he uses in his opinions and their outcome.  That is fair game in my opinion, as it would be with any other Justice.  Justice Kennedy, for example, gets his share of criticism from religious organizations for his votes on same sex marriage and similar cases upholding privacy in sexual matters.  And don’t get me started on Justice Scalia!

The Atlantic is running an article called The Collapse of Big Law:  A Cautionary Tale for Big Med.  The article details how lawyers measure success in terms of money, not purely as a matter of greed, but in comparison to the competition.  Gone, apparently, are the days when doing something of value for society through law practice is a real metric.  The context of the article is the lack of jobs for recent law school graduates.  The rest of the article compares what’s happening in law to similar practices developing in the medical field.

I’ll give an anecdotal story about a law school application essay as related to me by the Admissions Director at one of the schools at which I have worked.  The Director told me that one student did not write an essay as such but drew a large dollar sign across the page.  I understand the applicant was admitted at least for being honest.  I have to believe there were other qualities that qualified the student for admission.  Anyone pulling that stunt today would be incredibly naive.  That shows how long ago I had that conversation.

Publishers Weekly reports that Apple lost its appeal at the Second Circuit on the limited issue of staying the order of Judge Denise Cote imposing the external compliance monitor on the company.  Apple has complained about Michael Bromwich, the appointee, being intrusive and expensive.  The article describes the Second Circuit’s order:

The court cited the government’s own statements that the monitor, Michael Bromwich, was “empowered to demand only documents relevant to his authorized responsibility” and to “interview Apple directors, officers, and employees” only on subjects relevant to his task. “We agree with that interpretation of the district court’s order,” the court held. “In addition, we take counsel’s statement as a formal representation that appellees also accept that interpretation.”

Oh well, better luck on the main appeal, or not, depending on one’s perspective.

Jonathan Band writes an interesting essay on the Future of Fair Use after Google Books in Project Disco.  That’s “Disco” as in disrupted competition.  Band wrote the amicus brief for the Library Copyright Alliance and was cited five times in Judge Chin’s decision.  The piece describes the ideas in the debate he had with Jon Baumgarten, former General Counsel of the Copyright Office.  I get the impression that the Authors Guild have an extremely limited view of fair use based on the exchange between the two.

And finally, ads in the Firefox browser?  ZDNet has the story. — Mark

(Note:  Links are updated to get through to the sites in question.  Apologies to all –  Mark)

As anyone can imagine, I get a lot of press releases.  Sometimes I use them as inspiration for posts, and sometimes not.  Here’s a press release I’m publishing intact as the information may be useful to readers:

The American Library Association (ALA) and the Information Policy & Access Center (iPAC) at the University of Maryland at College Park are pleased to announce the re-launch of Lib2Gov, an online e-government resource for librarians. Over the past few months, both organizations have worked to transition LibEGov—a project supported by the Institute of Museum and Library Services through a National Leadership Grant—into Lib2Gov.

The redesigned website Lib2Gov allows libraries and government agencies to come together and collaborate, share resources and build a community of practice. Lib2Gov now provides a dedicated space where librarians can share materials, lesson plans, tutorials, stories, and other e-government content. The website offers a variety of resources from government agencies and organizations, including information on immigration, taxation, social security and healthcare.

In a few weeks, both organizations will host a new monthly webinar series, “E-government @ Your Library.” The webinars will explore a variety of e-government topics that will be of interest to librarians, including mobile government and emergency preparedness, response and recovery. All webinars are free and will be archived on the Lib2Gov site. The webinar schedule for Winter/Spring 2014:

  • Webinar 1: E-government @ Your Library (Wednesday, February 26, 2014, at 2 p.m. EST)

This webinar offers general insights into how libraries can help meet the e-government needs of their communities in general and through the Lib2Gov web resource. Register now.


    • John Bertot, Ph.D., co-director, Information Policy & Access Center (iPAC), and professor, in University of Maryland College Park’s iSchool
    • Ursula Gorham, graduate research associate, iPAC and doctoral candidate, University of Maryland College Park iSchool
    • Jessica McGilvray, assistant director, Office of Government Relations at the American Library Association’s Washington, D.C. office
  • Webinar 2: Government Information Expertise Online: Beyond the First Century of Federal Depository Library Program Practice (Thursday, March 27, 2014, at 3 p.m. EST) Register now.

This webinar will offer insights and techniques in how practicing government information professionals can use the strengths and opportunities of the depository library experience in several promising areas of digital reference, government information discovery tools and deliberative outreach to your community.


    • Cynthia Etkin, senior program planning specialist, Office of the Superintendent of Documents, U.S. Government Printing Office (GPO)
    • John A. Shuler, associate professor, University of Illinois, Chicago University Library
  • Webinar 3: An Introduction to Mobile Government Apps for Librarians (Wednesday, April 30, 2014, at 2 p.m. EST)

The webinar will cover how librarians can teach patrons to use mobile devices, provide links on our webpages to government apps, and create apps for their own e-government websites. Register now.


    • Isabelle Fetherston, teen librarian, Pasco County Library System
    • Nancy Fredericks, member, Pasco County Library System Library Leadership Team
  • Webinar 4: Roles for Libraries and Librarians in Disasters (Thursday, May 15, 2014, at 2 p.m. EST)

This webinar presents information on libraries’ and librarians’ roles supporting their communities and the disaster workforce before, during, and after hazardous events and disasters. Register now.


    • Siobhan Champ-Blackwell, librarian, U.S. National Library of Medicine Disaster Information Management Research Center
    • Cindy Love, librarian, U.S. National Library of Medicine Disaster Information Management Research Center
    • Elizabeth Norton, librarian, U.S. National Library of Medicine Disaster Information Management Research Center
  • Webinar 5: Beta.Congress.Gov (Thursday, June 12, 2014, at 2 p.m. EST)

Sign-up information, as well as more information about webinar topics and speakers, is available. Please contact Jessica McGilvray (jmcgilvray@alawash.org) or John Bertot (jbertot@umd.edu) with questions about Lib2Gov or the webinar series.

— Mark

Erwin Chemerinsky has published an editorial on the Report by ABA Task Force on the Future of Legal Education (registration required) in the National Law Journal.  There are things he likes and things he doesn’t.  He likes the ideas that schools should expand financial aid beyond merit awards.  He further likes the concept of skills training for students as a way to better prepare graduates for the practice of law.  Other than that, he doesn’t think the ideas in the Task Force report will do much to reduce costs.  He states, for example:

The report implies that lessening regulation by the American Bar Association would reduce the costs, but there is no evidence to support the idea. In fact, a report by the General Accounting Office in 2009 concluded that ABA accreditation standards do not increase the cost of legal education.

My own experience as a law school dean confirms this. I cannot identify any areas where the ABA standards cause us to spend more money. The reality is that the increased cost of law schools is reflective of the overall increase in the costs of colleges and universities.

I can think of one ABA regulation that increases the costs associated with law school:  tenure.  I say this in the context of reports of law schools reducing costs by buying out faculty contracts including some of those with tenure.  Florida Coastal comes to mind when the separation of faculty from the law school gets a bit ugly.  The ABA Section of Legal Education and Admissions to the Bar has proposed revising the Standard covering job security and academic freedom to remove tenure as a required option.  Job security is still mandated by the revised standard though that can come in many forms.

Chemerinsky notes that faculty salaries are by far the largest part of a law school’s budget:

The only way to significantly decrease the cost of legal education would be for law schools to dramatically reduce their full-time faculty and rely largely on adjuncts to teach students. At my law school, and I think this is typical, about three-fourths of the budget goes to faculty and staff salaries and benefits, with about half of that budget spent on the faculty. Although adjunct faculty are important in supplementing the curriculum, they cannot substitute for full-time faculty in their availability to students or their expertise as teachers.

I’ll say first of all that the argument of cutting faculty in favor of adjuncts is somewhat of a straw man.  A reduction in faculty in light of significantly lower enrollment would seem logical.  Tenure gets in the way of this where other forms of job security may give an administration more flexibility in downsizing (and upsizing, for that matter) the faculty.  I agree that it’s not in any law school’s interest to favor adjuncts over full-time faculty.  Nonetheless, schools are shrinking and their faculty rosters are shrinking with them.

Chemerinsky disagrees further with the Task Force approach to scholarship:

The task force fails to recognize the value of legal scholarship in the development of ideas, including to benefit judges and lawyers. Of course, plenty of articles and books are written by law professors that do not have practical benefits. But as with basic research in science, these often inform thinking about the law in a way that has long-term positive significance.

Obviously, law faculty produce both good and bad scholarship, as in every field of study. But the task force is seriously misguided in urging that faculties abandon scholarship. This approach likely would not, and should not, be tolerated by universities.

I don’t believe the Task Force rejected scholarship by the faculty.  Rather, it called upon law schools to use other forms of evaluating faculty in a changing a situation.  The Report called law schools “risk averse” and said there should be other models in addition to scholarship as incentives for promotion:

A common and often effective tool for promoting a desired outcome is incentives. For example, law schools typically promote faculty scholarship through a tenure system and financial incentives. If a law school wished to promote, for example, pedagogical innovation, it could use these same types of incentives (or others) to promote that goal. If another organization wished to promote pedagogical innovation in law schools, it could do so, e.g., through offering financial awards or prominent honors to encourage the desired behavior or outcomes.

I believe the Task Force is stressing flexibility in evaluating a faculty member for promotion.  Some of those evaluations may de-emphasize scholarship or include other work as a factor.  I can understand that this threatens the current law school model, or more likely, how law schools are ranked.  The Report has one recommendation in that regard:

U.S. News & World Report Should Cease Using Law School Expenditures as a Component of Its System for Ranking Law Schools and, in General, Should Ensure that Its Ranking Methodology Does Not Promote Conduct Damaging to the Interests of Law Students and the System of Legal Education.

No matter what happens with the Report or the changes in standards considered by the Section, the old world order of law schools will not prevail by the sheer force of economics.  – Mark

There is an interesting case out of Missouri where a federal judge has issued a preliminary injunction forbidding the town of Ellisville from prosecuting individuals for flashing their lights to warn of speed traps.  The town has an ordinance which restricts flashing lights.  The judge, however, said that individuals flashing their lights as a warning was expressive conduct and likely protected by the First Amendment.  The ABA Journal has more information on the case with a link to the opinion.  I’ve made lengthy road trips in the past with a CB radio in the car.  Among the usual trucker chatter were warnings of where “bears” were operating including mile marker details.  That isn’t much different from this case in my opinion, other than how the warning was given.

Justice Scalia was out and about earlier in the week.  He spoke at the University of Hawaii law school and suggested that while the Korematsu case upholding the internment of Japanese citizens was wrong, he wouldn’t be surprised in the Court issued a similar ruling in the future.  Quote the Justice:

“Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again.”

I understand that Guantanamo Bay has a warm climate at the very least.  CBS News has a report on the visit.  He also commented that the Court will have the last word on the NSA data collection.  As he said in his own charming way:

“The executive knows very well what’s going on and what the threats are. Congress can have hearings for accessing threats and find out what’s going on,” Scalia said. “We can’t have hearings. We sit back and let them bring stuff to us.”

This reminds me of the old saying that if one wants to know the truth about a disputed issue at trial, just ask twelve people who weren’t involved.

In a little bit of law school news there is a report that the Charleston Law School is up for sale.  The prospective buyer is for-profit InfiLaw.  Some legislators in South Carolina want to bring the law school to the College of Charleston or the University of South Carolina as a public institution.  How this transaction goes down will depend on local politics.  The State has the full report illustrated by a nice picture of the law library.

The New York Law Journal reports on the downsizing of the Albany Law School in New York.  Layoffs and buyouts are on the table.  There was apparently a discussion between the administration and the faculty on how to reduce costs and increase revenues.  One idea floated by the faculty was to admit lesser qualified students to increase enrollment and revenues.  From the article:

One Albany Law professor said a “small but vocal minority” of faculty want the school to lower its standards to boost its tuition revenues and lessen the chances of layoffs.  “It is a very selfish, selfish endeavor,” the professor said. “They are really trying to save their jobs, but they’ve ginned this up to make it look like we are denying academic rights.”

Faculty members are self-serving?  That never would have crossed my mind after some 36 years in legal education.  No.  Never.

And while we are on the subject of declining enrollments, let’s take a look at the latest statistics from the LSAC:

As of 1/24/14, there are 187,726 fall 2014 applications submitted by 26,379 applicants. Applicants are down 12.6% and applications are down 13.7% from 2013.  Last year at this time, we had 51% of the preliminary final applicant count.  Last year at this time, we had 57% of the preliminary final application count.

As George Takei might say, “Oh my.”  — Mark








I came across Ravel Law today.  I’m not quite sure what to make of it.  The New York Times calls it “A search, analytics and collaboration tool for lawyers, this platform visualizes and organizes legal cases to highlight patterns and connections between them.”  Some of the confusion I have about the site is due to the limited public access that is available in the free account.  Search results offer opinions from federal and state courts, though the latter are only available with a premium subscription.

I want to emphasize that this is not a review of the site or the full product Ravel offers.  I’ve spent a little bit of time searching some concepts relating to antitrust law as a matter of seeing what results are returned.  My immediate impression is that the site offers full-text opinions with a graphic representation of a case’s relevance combined with relational spokes to other cases that have cited it.  These are represented as interactive circles that work with a citation list.   Hovering on a related case brings up a short snippet of the citing case.  Clicking on a circle brings up the full text of the case.  There is also an interactive timeline that can limit citations to a particular time span.

The value in this appears to relate concepts from one case to others through the visuals on the graph.  The larger the circle, the more important the case will be.  Lines connect one circle to another circle and it’s very easy to see which major cases are connected to other major cases.  This is like a citator on steroids in my opinion as one can get to this point with a simple search.  Citators in Lexis and Westlaw obviously require the analytical starting point to be a citation.  That means multiple steps in developing the analysis that finds the value and use of related cases.  The snippets help immensely in determining which related cases are of value.

I can honestly say that I’m intrigued by what I’ve seen so far.  There is nothing like it in Lexis or Westlaw.  I intend to continue trying out Ravel Law to get a better understanding on how it works.  I’m sure I’ll be writing about this site in the future.  Aside from the information in the Ravel Law FAQ, some commentary about the site by Greg Lambert is in 3 Geeks and a Law Blog. – Mark

Readers may remember the case where the U.K. government requested tapes contained in the Boston College archives consisting of interviews with I.R.A. members.  The nominal rationale for the request was to aid in solving a murder of an alleged British informant in 1972.  Britain asked the Justice Department for the tapes under a treaty that called for mutual assistance in criminal investigations.  The College resisted turning over the tapes and the matter went to litigation in federal court.  The District Court judge in Boston ordered the College to release 85 tapes from the interviews.  The Court of Appeals later modified that order for the release of 11 tapes.

The Chronicle of Higher Education has a lengthy article on how the Belfast Project was conceived and carried out.  It’s a story of secrecy and misunderstandings.  The secrecy came from the sensitivity of the subject matter.  Former I.R.A. members would not speak freely if they weren’t assured that their comments were held in confidence while they were alive.  The misunderstandings related to the secrecy.  The College was agreeable to the project.  There are conflicts, however, in the understanding of what legal protections the College could offer to interviewees.  The contracts offered to participants were not vetted in advance and did not contain key language defining the legal extent of confidentiality.

Two of the principles in the project are Anthony McIntyre and Ed Moloney.  McIntyre, a former member of the I.R.A. who spent a number of years in prison for his actions, conducted the interviews.  Moloney was the project director.  He wrote a book in 2008 called Voices From the Grave: Two Men’s War in Ireland which used quotes from two participants who had previously died.  The book essentially revealed the Project and drew attention from law enforcement officials in Britain and Ireland.  This showed more misunderstandings in that McIntyre and Moloney had no idea the mutual assistance treaty existed as they carried out the interviews.  The lack of communication and legal oversight put the parties at odds in defending against release.  The College appears to be blindsided in some respects as were McIntyre and Moloney.

The article is useful in that it is a cautionary tale on how not to organize and manage an archival project on a sensitive subject.  There are quotes from outside archivists and others on the need to put a legal team together in advance of collecting interviews.  The Belfast Project is essentially dead at this point.  Interviewees are requesting the return of their tapes.  The University has said that it will honor those requests to the extent that it can, whatever that means.  The litigation is over though the fallout from the Project continues.  –Mark

The third opinion the Supreme Court issued yesterday is Burrage v. United States (12-7515).  Burrage sold heroin to Banka who used it with other drugs during a drug binge.  Banka died with multiple controlled substances in his system.  The Government charged Burrage with distributing heroin including distribution where “death . . . resulted from the use of th[at] substance.”  Conviction where the drug sold caused the death triggered a provision in the Controlled Substances Act mandating a 20-year mandatory minimum sentence.

Medical experts testified at trial that Banka might have died in any event whether or not he had used the heroin he bought from Burrage.  No expert that testified was willing to state that the heroin Banka used was the “but for” cause of his death.  At best it may have been a contributing factor.  Burrage moved for a motion of acquittal on the sentencing enhancement which the trial court denied.  The court ruled that the Government need only prove that the heroin was a contributing factor to Banka’s death and issued jury instructions to that effect.  Burrage was convicted and sentenced to the mandatory minumun of20 years on that count.  The Eighth Circuit Court of Appeals affirmed.

The Supreme Court reversed.  The Court stated that the “death results” enhancement was an element of the crime and had to be proved beyond a reasonable doubt.  The Controlled Substances Act does not define “results from.”  As such, the words take on their ordinary meaning.  The Court compared the language to other statutory enactments and concluded that it means “but for” as Burrage argues.  The Court rejected the Government’s contention that contribution was enough under the statute.  Contribution is too vague a standard for criminal law.

Justice Scalia delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, and Kagan.  Justice Alito joined in the opinion with the exception of Part III-B.  Justice Ginsberg filed a concurring opinion in the judgment of the Court and was joined by Justice Sotomayor.  Justice Ginsburg does not read “because of” in the context of antidiscrimination laws to mean “solely because of.” — Mark

The Supreme Court issued three opinions yesterday.  The first of these is Air Wisconsin Airlines Corp. v. Hoeper (12-315).  Hoeper was a pilot with Air Wisconsin and flew planes out of Denver (his home base) for Air Wisconsin.  The company changed the type of plane it flew out of Denver which required Hoeper to become certified for the new aircraft.  He failed in three attempts at gaining certification and worked out an arrangement with Air Wisconsin for a fourth and final attempt.  Hoeper flew to Virginia to take the test.  The simulator instructor created a scenario where the engines failed due to a loss of fuel.  Hoeper blew up at the instructor by all accounts and claimed the instructor was railroading him.  Air Wisconsin then booked Hoeper on a United Airlines flight back to Denver.

The details of the encounter were reported to Air Wisconsin and discussed by executives from the company.  They had concerns about Hoeper’s mental state and considered him to be potentially a disgruntled employee.  Hoeper was also a Federal Flight Deck Office (FDDO) which legally permitted him to carry a gun on the flight deck.  The combination of circumstances caused enough concern that a representative of Air Wisconsin reported the information to the Transportation Security Administration.  Hoeper was pulled from the plane and questioned about the location of his gun.  Hoeper said it was at his home in Denver.  Federal then agents went to his home and retrieved the weapon.  Hoeper boarded a later flight.  He was fired the next day.

Hoeper later sued Air Wisconsin for defamation in Colorado state court over statements made to the TSA.  These included statements that Hoeper “was an FFDO who may be armed” and that Air Wisconsin “concerned about his mental stability and the whereabouts of his firearm” Further statements included that an “[u]nstable pilot in [the] FFDO program was terminated today.”

Air Wisconsin defended on 49 U.S.C §4491(a) which gave immunity to airlines and employees from reporting suspicious activity to the TSA.  The exception to this immunity is in §44941(b), where the disclosure is “made with reckless disregard as to the truth or falsity of that disclosure.”  The trial court denied Air Wisconsin’s motions for summary judgment and a directed verdict.  It sent both the immunity question and the liability question to the jury which found for Hoeper.  The Colorado Supreme Court affirmed though it said the immunity question was a question of law for the trial judge and not the jury.  In any event, it was harmless error.

The Supreme Court reversed.  The Court stated that immunity under the statute may not be denied when the statements are materially true.  The immunity section of the law is patterned under the actual malice standard of New York Times Co. v. Sullivan.  Congress presumably incorporated the standard as settled law when it passed the Air Transportation Safety Act.  The statute promoted the reporting of suspicious activity and did not deny immunity to true statements made recklessly.  The Colorado courts did not perform a material falsehood analysis in the handling of the case.  While the actual statements made to the TSA could have been made a bit more artful, they were more or less materially true. 

Justice Sotomayor delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Breyer, and Alito.  Justices Scalia, Thomas, and Kagan joined as to Parts I, II, and III-A.  Justice Scalia filed an opinion concurring in part and dissenting in part and was joined by Justices Thomas and Kagan.  Justice Scalia chides the Court for having applied the material falsehood standard to the facts of the case.  He would rather stop with ordering the Colorado courts to decide that issue in further proceedings.

The second case is Sandifer v. United States Steel Corp. (12-417).  A group of present and former employees sued United States Steel under the Fair Labor Standards Act over back pay for the time spent “donning and doffing” protective gear required by U.S. Steel due to hazards in its steel plants.  §203(o) of the Act makes this a matter for collective bargaining.  In this case, the contract between the union and the company makes this non-compensable.  This would be the end of the case but for the union’s attempt to take protective gear out of the definition of “clothing.”

The District Court concluded that protective gear in this case does fit the definition of clothing and granted summary judgment to U.S. Steel.  The Seventh Circuit affirmed.  The Supreme Court affirmed those decisions and said donning and doffing protective gear is not compensable by operation of §204(o).  The Court examined the history and dictionary usage of the word “clothes” and concluded that protective gear is part of the definition of clothes. 

There were some issues with three items, safety glasses, ear plugs, and respirators.  Lower courts invoked the doctrine of de minimis non curat lex (the law does not take account of trifles) in dealing with these items.  The Court said that was the wrong approach to a statute which is all about trifles.  The better approach is to ask whether the period on the whole can be characterized as time spent changing clothes or washing.  §203(o) does not apply if an employee spends most of time to putting on or taking off equipment even if donning and doffing some clothing as well.  §203(o) does apply if the majority of time is spent donning and doffing clothes even if it includes some of these non-clothes protective devices.  The Court will not disturb the District Court’s factual finding that respirators were donned and doffed throughout the work day, placing the activity beyond the scope of the statute.

Justice Scalia and joined by all other justices with the exception of Justice Sotomayor who joined with the exception of footnote 7.

I will cover the third opinion on Wednesday. – Mark 

The ABA Task Force on the Future of Legal Education released its final report today.  The Task Force considered issues relating to the structure and culture of law schools and recommends institutional and social changes in the delivery of legal education.  The press release announcing the release of the final report is here.   A PDF copy of the 41 page document is here.

I admit that I’ve only skimmed the report at this time.  There are statements on faculty culture, the role of faculty scholarship and status within law schools, and the purpose of legal education.  Here is one excerpt that addresses purpose:

Law schools, whatever their individual differences, have a basic societal role: to prepare individuals to provide legal and related services. Much of what the Task Force heard from recent graduates reflects a conviction that they received insufficient development of core competencies that make one an effective lawyer, particularly those relating to representation and service to clients.

The educational programs of a law school should be designed so that graduates will have (a) some competencies in delivering (b) some legal services. A graduate’s having some set of competencies in the delivery of law and related services, and not just some body of knowledge, is an essential outcome for any program of legal education. What particular set of competencies a school, through an educational program, should ensure is a matter for the school to determine. However, a law school’s judgment in this regard should be shaped in reference to: (a) the fact that most students attend law school desiring to practice law; (b) available studies of competencies sought by employers or considered broadly valuable for long-term professional success; and (c) the mission and strengths of the particular school. Further, whatever competencies a particular law school chooses to emphasize, the school should incorporate professionalism education into both doctrinal and experiential instruction.

Imagine that.  A majority of students attend law school with the idea that they might practice law someday.  I’ll have further comment on the report and the reactions to its recommendations in the coming days.  – Mark

The Supreme Court issued one opinion this morning.  The case is Medtronic, Inc. v. Mirowski Family Ventures, LLC (12-1128).  The case determines which party has the burden of proof to show patent infringement or lack of it in a declaratory judgment proceeding when the patent holder is the defendant.  Medtronic licensed patents from Mirowski for use in medical devices.  The license outlined procedures to identify and resolve disputes between the parties.

Mirowski claimed certain devices manufactured by Medtronic infringed the licensed patents.  Medtronic filed a declaratory judgment action challenging the assertion of infringement and placed royalties in an escrow account.  The District Court stated that Mirowski had the burden of proof on infringement and found that Mirowski had not met the burdern.  The Court of Appeals for the Federal Circuit reversed, saying that as a defendant in a declaratory judgment proceeding, Mirowski is foreclosed from asserting a counterclaim for infringement.  The burden of proof, therefore, belonged to Medtronic.

The Supreme Court reversed.  The Court first disposed of a jurisdictional issue relating to whether the Court of Appeals could hear the appeal of the declaratory judgment action.  The Court said it could as the underlying issue related to a threatened patent infringement action.  It then stated that the burden of proof of a patent infringement rests with the patent holder.  Patentees normally have that burden in an infringement case.  Declaratory judgment actions are procedural and as such do not change the assignment of the burden of proof.  Additionally, the burden of proof is a substantive aspect of the claim and not procedural.

The Court stated that giving the burden to the licensee in these circumstances would create a situation where the licensee would not necessarily know the nature of the claim it is trying to disprove.  That would add unnecessary complexity to the case.  The Court further rejected arguments that case law supported the COA decision, saying that cited precedent was not applicable to the circumstances.  Amici argued that a ruling in favor of the licensee would place patent holders at risk of litigation.  The Court responded that a case has to be based on a real dispute.  In fact, the present case was triggered by Mirowski’s assertion of infringement.

Justice Breyer delivered the opinion for a unanimous Court. – Mark

Yesterday the Washington Post-Volokh Conspirarcy joint venture was officially launched. Eugene Volokh explains this new chapter in his 12 year old blog:

We’re now trying what might be the most ambitious experiment yet: a joint venture with the Washington Post. The Post will host our blog, and pass along its content to Post readers (for instance, by occasionally linking to our stories from the online front page). We will continue to write the blog, and Volokh.com will still take you here.

We will also retain full editorial control over what we write. And this full editorial control will be made easy by the facts that we have (1) day jobs, (2) continued ownership of our trademark and the volokh.com domain, and (3) plenty of happy experience blogging on our own, should the need arise to return to that.

The main difference will be that the blog, like the other Washingtonpost.com material, will be placed behind the Post’s rather permeable paywall. We realize that this may cause some inconvenience for some existing readers — we are sorry about that, and we tried to negotiate around it, but that’s the Post’s current approach.


Here’s a bit of political contradiction.  A recent article in the Washington Post contained the comments of James L. Capra on Washington and Colorado’s initiatives to decriminalize marijuana for recreational use.  Capra is the Chief of Operations for the Drug Enforcement Agency and he’s not particularly happy about the legalization movement:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”

Contrast that to this report in CNN on recent comments made by President Obama:

Speaking to New Yorker editor David Remnick, Obama said he still viewed pot smoking negatively – but that on the whole, the drug wasn’t the social ill that it’s been viewed as in the past.

“As has been well documented, I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don’t think it is more dangerous than alcohol,” Obama told the weekly magazine.

The president said pot was actually less dangerous than alcohol “in terms of its impact on the individual consumer.”

“It’s not something I encourage, and I’ve told my daughters I think it’s a bad idea, a waste of time, not very healthy,” he said.

I have to believe that Capra might be a bit discouraged by the President’s comments.  Twenty years ago President Clinton had to make the absurd “I didn’t inhale” statement.  How far we’ve come.

For those who may be interested, the CRS has several reports on issues relating to the marijuana legalization movement:

State Marijuana Legalization Initiatives:  Implications for Federal Law Enforcement (Order Code R43164, September 9, 2013)

State Legalization of Recreational Marijuana:  Selected Legal Issues (Order Code R43034, April 5, 2013)

Medical Marijuana:  The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws (Order Code R42398, November 9, 2012)

Medical Marijuana:  Review and Analysis of Federal and State Policies (Order Code RL33211, April 2, 2010)

I can understand the desire to legalize and tax.  Some states might be able to partially dig themselves out of their pension problems if they tax legal product.  – Mark

That is the question Gary Lawson (Boston Univ. School of Law) attempts to offer an answer in One(?) Nation Over-Extended [SSRN]. Here’s the abstract:

The conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased returns from control over a large territory can swamp the transaction costs of building a winning coalition. The obvious solutions are a decrease in the size of the national government, an increase in the costs of constructing winning factional coalitions, or a breakup of the United States into smaller, more manageable units. The first and second options are unfeasible, and the third (secession) is unconstitutional even if feasible.

Interesting. — Joe

The Supreme Court issued one opinion yesterday.  It is Ray Haluch Gravel Co. v. Central Pension Fund Of Operating Engineers and Participating Employers (12-992).  The case presented the issue of when a timely notice of appeal is filed when there is a judgment on the merits later followed by an order resolving the issue of attorney’s fees and other costs.  The Pension Fund conducted an audit on Haluch’s contributions which were required under ERISA and the Collective Bargaining Agreement (CBA).  The Fund concluded that there were underpayments and sued Haluch.  The District Court found for the Fund and issued an order on June 17, 2011 for payment in an amount substantially lower than sought.  The District Court issued a separate order on July 25, 2011 resolving the request for fees and other costs.  These fees were authorized under ERISA and the CBA.

The Fund filed a notice of appeal to the First Circuit on August 15, 2011.  Haluch argued that the appeal was untimely under the Federal Rules of Appellate Procedure’s 30 day deadline for appealing a final judgment.  The Fund argued that the July 25th order triggered the start of the appeal window.  The Court of Appeals determined that fee petitions normally do not toll the time to file an appeal but allowed the appeal to go forward based on provisions in the CBA.  The Supreme Court reversed.

The Court cited its opinion in Budinich v. Becton Dickerson & Co., 486 U.S. 196 (1988), which held that an unresolved request for attorney’s fees under a statute did not extend the time for filing an appeal on the merits.  It stated that it didn’t matter that the fees in this case were contractual.  Budinich laid down a uniform rule in this regard and the Court affirms it here.  The Fund argued that it requested pre-litigation costs as well, such as the cost of conducting the audit and these fell outside the scope of Budinich.  The Court rejected that argument noting that these are regularly included in fee requests.  That did not change the character of the start of the time to appeal a judgment on the merits.  Justice Kennedy issued the opinion for a unanimous Court.  – Mark

Releasing the University of Florida’s list of 24 law school dean candidates churned up the issue of the possible harm that was done by the list’s disclosure on The Faculty Lounge. For details, including a link to applicants’ CVs and letters, see Dan Filler’s Battling To Keep The Florida Law School Dean Search Open and the post’s comment trail. In a comment to the post, Orin Kerr wrote “The letters are actually pretty fascinating, given how different candidates pitch their strengths.” — Joe

CRIV has published Lori Hedstrom’s (TR Legal’s National Manager for Library Relations) response about the transitioning of titles from Thomson Reuters to West Academic:

During the transition, we have worked closely with West Academic to provide information to customers regarding their individual accounts. Any new orders placed through Thomson Reuters for West Academic titles prior to Dec. 31, 2013 have been or will be fulfilled by Thomson Reuters. Orders placed on or after Jan. 1, 2014 have been or will be fulfilled by West Academic.

We have spoken with Chris Parton, president and CEO of West Academic, and as the product owner, West Academic can answer the specific questions about their products, structure of accounts and any discontinuation of products. For questions related to West Academic, customers may contact their representative at (800) 782-1272 or inquiries@westacademic.com. For questions related to Thomson Reuters, customers may call us at 1-800-328-4880.

I think that sums up TR’s interest in the academic law library market for print resources, don’t you. Building “upon the century-plus heritage of West Publishing,” Lori Hedstrom did, however, provide this link to a complete list of divested West Academic titles. — Joe

The Supreme Court issued two opinions yesterday and one today.  The first of these is Daimler AG v. Bauman et al. (11-965).  Twenty-two residents of Argentina sued Daimler in California under the Alien Tort Statute and the Torture Victim Protection Act alleging that Mercedes-Benz Argentina collaborated with the Argentinian government to kidnap, detain, torture, and kill MB Argentina workers between 1976 and 1983.  The issue in the case before the Court is whether Daimler, via its US subsidiary MBUSA, had enough contacts with California to support jurisdiction in the California courts.  The District Court said no.  The Court of Appeals for the Ninth Circuit said yes.  That Court assumed that principles of general jurisdiction allowed the District Court to hear the case.  The Supreme Court reversed the Court of Appeals.

The Court analyzed principles of specific and general jurisdiction.  The former applies in situations where the suit is based on the defendant’s contacts with the forum.  General jurisdiction covers situations where the corporate activity within a specific state is so substantial to support a cause of action unrelated to those activities.  MBUSA is incorporated under Delaware law and has its principle place of business in New Jersey.  It sells about 10% of cars in California and those same California sales accounts for 2.4% of Daimler’s worldwide sales.  There are several facilities related to management and vehicle preparation located in California as well.  Although MBUSA was a wholly owned subsidiary, it operated as an independent business and is treated as an independent contractor.

The Court held that the general theory of general jurisdiction centered on state of incorporation and principle place of business.  The matter was complicated further because of procedural issues.  Plaintiffs never tried to assert specific jurisdiction against Daimler, nor did they appeal the decision that Daimler’s contacts with California were two sporadic to support jurisdiction.  They did not assert that Daimler was the alter ego of MBUSA as well.  Daimler did not object to plaintiff’s assertion that California could exercise general jurisdiction over the company.

The Court assumed that California was a home state but still said the contacts were insufficient under the Ninth Circuit’s agency theory supporting jurisdiction.  It rested on the basis that MBUSA’s activities were important enough that Daimler would undertake them if MBUSA did not exist.  Daimler would be liable for suit in any state in which it does business of that were the case.  Principles of general jurisdiction can’t support this, especially considering that the subject of the litigation did not take place in the United States.  The Court briefly mentioned its earlier decisions in Kiobel v. Royal Dutch Petroleum Co. and Mohamed v. Palestinian Authority as rendering the claims infirm in any event under the two statutes.  These two cases may have solved the problem in one sense, but the Court would not let the Ninth Circuit’s theory of jurisdiction stand.

Justice Ginsburg delivered the opinion of the Court.  All justices joined in the opinion with the exception of Justice Sotomayor who wrote a separate opinion concurring in the judgment only.

The second case from yesterday is Mississippi ex rel. Hood v.  AU Optronics Corp. (12-1036).  The case concerns the application of the Class Action Fairness Act of 2005 (CAFA) to a situation where there is only one named plaintiff in the suit.  The State of Mississippi filed an action against LCD manufacturers in state court under state law for allegedly forming an international cartel to restrict competition and raise prices in the LCD market.  The manufacturers removed the case to federal court under the Act.  It authorizes class actions and mass actions “in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve a common question of law or fact.”  The District Court held that the case was a mass action but remanded the case back to state court under the Act’s general public exception.  The Fifth Circuit upheld the mass action result but held that the general public exception did not apply.

The Supreme Court reversed, holding that the case is not a mass action as Mississippi is the only named plaintiff.  The Court noted that the language of the statute did not include unnamed plaintiffs as qualifying for a mass action.  CAFA uses “persons” and “plaintiffs” in the same language as FRCP 20 which contemplates named individuals as plaintiffs.  The statute also requires plaintiffs to have claims exceeding $75,000.  Unnamed plaintiffs would make this a jurisdictional nightmare and something Congress would not have intended.

The statute additionally provides that transfer will not take place unless a majority of the plaintiffs request it.  That can’t happen with unnamed plaintiffs in the suit.  Other statutory language suggests that relaxed jurisdictional rules for class actions not apply to mass actions.  The Court assumes that Congress was deliberate in the way it wrote the statute.  Justice Sotomayor delivered the opinion for a unanimous Court.

I’ll cover today’s opinion in a post on Thursday.


William Mitchell has been granted a variance from the ABA’s distance learning rule. The ABA’s decision allows the “law school for the real world” to offer approximately 50% of its curriculum via online classes. From the press release:

Students who enroll in the new hybrid program will be on campus for at least one week each semester participating in 56 intensive hours of realistic simulations and other coursework. Students will prepare for their on-campus work through an e-learning curriculum designed by William Mitchell faculty to integrate legal doctrine with practical legal skills. In addition, students will have the opportunity to complete externships in their communities under the supervision of practicing attorneys. This innovative hybrid of on-campus and online learning will provide new access to those seeking a rigorous, experiential J.D. degree from an ABA-accredited law school.

William Mitchell claims “[t]he variance is the first of its kind and comes on the heels of a draft recommendation by the ABA Task Force on the Future of Legal Education that law schools be permitted to experiment and innovate.”

Hat tip to Alfred Brophy’s ABA Approves William Mitchell’s 50% on-line JD on The Faculty Lounge. — Joe

Things I read this morning:

Visits to Wikipedia pages in English declined by 21% in 2013.  The Register reports that this may be due to Google implementing its Knowledge Graph in its search results.  That’s where the search giant ads basic facts about the subject of the search.  Some of the information placed directly in the search results may fulfill the ultimate purpose of the query.  I’ll just add that Microsoft’s Bing product does the same thing.

Last week I wrote about the (predictable) reaction by law faculty to the ABA’s proposed accreditation standard that called for job security for faculty, though not requiring tenure.  Most of the arguments in favor of keeping tenure centered on academic freedom.  Inside Higher Ed has a lengthy article about Professor Louis Wozniak who teaches at the University of Illinois in the Engineering School.  The Board of Trustees at Illinois revoked his tenure for revealing the emotional state of student on his blog.  The article suggests that Wozniak is a “difficult” colleague.  I’ve dealt with all kinds of faculty over the years in the various law schools where I have worked.  Some of them were total jerks.  Could Wozniak’s situation become a cautionary tale for law if the new standards go into effect?

While we’re on the subject, this article in the ABA Journal about a faculty member barred from his campus due to anger issues is also worth reading.  Professor Joel Cornwell is suing the John Marshall Law School in Chicago under the ADA.  The suit claims that the school did not accommodate his Asperger’s Syndrome in violation of the Act.

Finally, this story from the Christian Science Monitor reports on Microsoft’s successor to Windows 8/8.1.  Microsoft will apparently detail what Windows 9 (name subject to change) will contain in terms of features.  A similar article in ZDNet suggests that Microsoft may make more significant changes that balance the tablet/desktop interface, though these aren’t detailed beyond running a windowed version of the Metro interface from the desktop.  That’s kind of the opposite of the way it is now where the desktop runs as a “Metro” selection.  Microsoft needs to figure out what it’s doing here.  It’s pretty much acknowledged that Windows 8 has not penetrated the market as much as Microsoft has liked.

I’m of the belief that the tablet interface makes no sense on a large, non-touch screen connected to a desktop computer.  I appreciate that the company has made it easy to bypass its tablet interface with the release of the Windows 8.1 update.  The tablet apps are interesting, but my traditional desktop applications work well, or well enough, that I need to change.  I may not be typical.  Other speculation in the news is that Windows 9 could be out in early 2015.