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.

Mark

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.

Mark

From the January 6, 2014 notice sent to academic law library subscribers:

We’re writing to ensure you are aware of a change regarding access to BNA (Bureau of National Affairs) publications available through LexisNexis®.  BNA was acquired by a new publisher and at their request, BNA sources will no longer be available on Lexis Advance® and lexis.com® after December 31, 2013. BNA documents saved to a folder or included in an Alert on Lexis Advance, will no longer be accessible.

We understand the value of this content which is why I’m thrilled to inform you that we’re providing access to Law360 content at no additional charge under your current LexisNexis subscription.  Law360 content will be available within Lexis Advance in late January.  Law360 is a premier current awareness publisher providing legal professionals with non-stop coverage of high-stakes litigation across  35+ practice areas. Faculty and students will benefit from the latest news and developments on topics and cases of interest.

In addition to Law360, Lexis Advance continues to have one of the largest collections of secondary content to meet your research needs including

[Yadda yadda]

And there you have it. Really, this isn’t a surprise, right? — Joe

Another frigid day with spotty train service means another day browsing the legal news and commentary.  There are several stories worth reading.  The first is the National Law Journal’s report about the AALS panel discussion on the ABA’s proposed standards.  Naturally, the standard eliminating tenure as a requirement for accreditation got significant discussion.  Faculty members on the panel as well as those in the audience were overwhelmingly against the proposal.  Their argument was that removing tenure would weaken academic freedom, among other negative outcomes.  This position is reflected in the published comments (scroll down to Terms and Conditions of Employment) to the draft of Standard 405 at the ABA web site.

The proposal was explained by Saint Louis University Professor Jeffry Lewis and ABA committee chair revising the accreditation standards.  He noted the text contains several options for job security and protection of academic freedom that can replace tenure.  The proposed ABA standards would require schools to have job restrictions in place that would attract competent faculty by having effective rules that provide provide job security and protect academic freedom.  The draft options and interpretations of the proposed standards are here

I wonder just how far schools will go in defining the faculty relationship if this is approved.  It will be pretty interesting to see what the employment contract’s terms sans tenure will be for new professors.  Will they be largely standardized or will they be negotiated individually?  How will publication reflect advancement?  Really, it could be the world turned upside down if this is approved.      

Publishers Weekly has a review of the top 10 library stories of 2013.  The items include the decision in the Google book scanning case, somewhat more liberal terms for libraries to lend e-books, and the emergence of the Digital Public Library of America.  The story nicely sums up the legal and technological issues affecting libraries in the last year.

Wandering over to the New Yorker finds two stories of interest.  One details the dismemberment of antiquarian books to sell parts to collectors through various exchanges, including eBay.  Everything is for sale these days.  Historical objects are obviously no exception.  The other story concerns the fight Apple is having with the court appointed compliance monitor over his rate (Apple is footing the bill, and it is large) and the level of access to executives and board members.  Apple filed objections in Court over the issues.  The story details the background to this particular aspect of the case.

Getting back to the tenure issue for a moment, I was reminded of the Pretenders’ song Brass In Pocket.  Or should the musical moment be Back On The Chain Gang?

Mark

LexisNexis and Fastcase announced that Collier TopForm & File will now be provided exclusively by Fastcase, and will be known simply as TopForm. From the press release:

The exclusive license will bring together the editorial expertise of LexisNexis, a leading provider of content and technology solutions, and the focused product development of Fastcase, an award winning legal software company. LexisNexis will continue editorial updates to the service through 2017, with Fastcase focusing on product development, especially a Web version of the TopForm software tightly integrated with Fastcase’s legal research service. The combination will produce the most authoritative, powerful bankruptcy software on the market.

Under LexisNexis, TopForm has been a CD-Rom product that only works on PCs. With this exclusive agreement, Fastcase will be taking TopForm to the web, adding new features, and essentially refreshing TopForm with smarter tools and technology. See product details at TopForm™ by Fastcase.

Also from the press release:

“This will offer a valuable benefit for professionals in the bankruptcy community,” said Fastcase President Phil Rosenthal. “Integrating the editorial expertise of LexisNexis and one of the industry’s best filing and form systems with Fastcase’s technology and online database will provide every TopForm subscriber with more access and helpful tools than ever before.”

— Joe

“In the spirit of collecting the wisdom of colleagues, I thought it would be interesting to do a poll on what we started or stopped in 2013 and on what we plan to start or stop in 2014. What products did we stop using? what new ones will we adopt in 2014?” — Jean O’Grady, On Firmer Ground

Jean has launched a brief Start/Stop 2013/2014 survey to collect your answers. She will report the findings after the survey closes on January 15th. — Joe

It’s cold in the Midwest.  The temperature is -15 outside as I write this.  I’m at home, comfortably indoors, as my institution had the good sense to close today.  I’m grateful as all commuter train service between Indiana and Chicago was cancelled making it impossible to get to the office in any event.  I spent the weekend shoveling excessive amounts of snow several times and can use the day off.  I’m being trailed by a calico kitten I rescued from my back yard on Christmas Eve.  If that’s the worst I have to deal with today I’ll take it.

The unexpected break gave me a chance to catch up on the news out there.  I’d like to recommend a couple of pieces.  One is from Brian Leiter in the Huffington Post.  He argues against mandatory experiential learning as it is being considered by the American Bar Association.  Personally, I’m a big fan of modifying the law school curriculum to include more practice oriented classes.  I can agree with Professor Leiter that the rules should allow schools to offer such classes and see where the market takes them.  Some people who want to be scholars would likely have no need for such learning.  Others, however, would benefit from changes in the curriculum.

The second article I would recommend is the commentary provided by Andrew Cohen in The Atlantic concerning the New Year’s Eve decision by a federal judge that struck down a drug test requirement before getting welfare benefits.  The state argued its “legitimate” concerns in preventing tax dollars used by recipients to buy drugs.  The Court, for the second time in this litigation struck down the requirement because the evidence didn’t support the state’s concern.  The Fourth Amendment factored in the decision as well on suspicionless drug testing.  Cohen quotes parts of the opinion and links to the full text.

I’m personally happy to see this result.  I can think of a parade of horribles in terms of policy decisions that could flow if the decision were otherwise.  I’ll give you one example.  It’s known that people drink and drive.  Or they use other stimulants that might impair them behind the wheel.  Would anyone care to take an alcohol and/or drug test to get or renew a driver’s license?  The state does expend considerable amounts of tax money to provide the licensing scheme as well as manpower and facilities for public safety.  It’s not that much of a leap to go from drug testing welfare recipients to drug testing license applicants.  There’s an actual track record based on DUI arrests and accidents.  I’ll be waiting for that kind of measure to be introduced in a state one of these days.    

Mark

Legal and other professional publishers act as if they believe they have all the content they need. Hence the current goal is to repurpose the content they already have. In Ever Cuddled an Aardvark? Ever Studied Zymurgy? (Slaw), Robert McKay reviews this repurposing trend. Highly recommended.

Of course, what this means is that legal and other professional publishers do not want to spend money to acquire new content (and, in some cases, do not have the editorial staff to develop it). — Joe

I’ve had a quiet hiatus from the blog for the last several weeks or so.  Thanks, Joe.  I’ve appreciated the time off.  Now that it’s 2014, here are some of the items from the last several weeks that are worth noting.  If anyone is wondering if law school applications are stabilizing, the short answer is no.  The latest news out of the LSAC for the class of 2014 is not looking good:

As of 12/06/13, there are 90,032 Fall 2014 applications submitted by 14,171 applicants. Applicants are down 13.6% and applications are down 15.7% from 2013.  Last year at this time, we had 28% of the preliminary final applicant count.  Last year at this time, we had 16% of the preliminary final application count.

The graphs that accompany this text are here.  To quote Dr. Zachary Smith, “Oh the pain, the pain, the pain.”

Inside Higher Ed tells us about a change to university personnel policies by the Kansas Board of Regents that makes improper use of social media grounds for discipline up to an including termination.  The policy covers any facility for online publication and commentary.  The Board is reviewing the policy in light of criticisms but has not withdrawn it during the review.  Good thing I don’t work in Kansas as I might comment on matters such as evolution and climate change.  I wouldn’t want my views to conflict with those in Kansas.

The Chronicle of Higher Education (subscription) tells us that other disciplines beyond law are suffering job placement problems.  Some disciplines fare better than others.  Job listings for Ph.D.’s in History fell 7.3%.  Economics fell some 6.6% in 2013.  Foreign Languages and English, and Political Science had modest declines while Sociology seems to be on the rebound.  I remember ribbing to a friend of mine who had graduated with a philosophy degree if he knew how much cab medallions cost.  I investigated and I was shocked to discover that the median price of a cab medallion in Chicago is $357,000!  Note to law grads and others without job prospects:  driving a cab for a company may be viable; owning an independent cab in Chicago costs more than going to law school.  Who knew?

And finally, in the no-surprise at all category, the Authors Guild is appealing Judge Chin’s decision that Google’s book scanning project is fair use.  We’ll see how far they get as the case is similar to the HathiTrust case that was recently argued in the Second Circuit.  A summary of that proceeding is available from the Columbia University LibrariesPublishers Weekly has the story on the AG appeal.

Mark

“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.

(Links omitted).

For his complete list, go here. Bob asks “What am I missing? What would be on your list?” — Joe