Kudos to the Fastcase 50 Class of 2015:

Hon. Ann Aiken, Chief Judge, United States District Court of Oregon
Michelle Alexander, Author; Associate Professor of Law, Ohio State University
Pablo Arredondo, Vice President of Legal Research, Casetext
Rich Barton, Founder of Expedia; Co-Founder of Zillow, Glassdoor
Howard Bashman, Appellate lawyer; Author, How Appealing blog
Laura Calloway, Director, Practice Management Assistance Program at Alabama State Bar
Jeena Cho, Partner at JC Law Group PC; Author; Mindfulness Instructor
Jared Correia, Assistant Director and Senior Law Practice Advisor at LOMAP
Scott Forman, Shareholder, Littler Mendelson; Founder of Littler CaseSmart
JoAnna Forshee, CEO, InsideLegal.com and Envision Agency
Abe Geiger, Founder and CEO, Shake
Eric Goldman, Co-Director, High Tech Law Institute; Professor, Santa Clara University School of Law; Blogger, Forbes’ Tertium Quid Blog and Technology & Marketing Law Blog
Oliver Goodenough, Director, Center of Legal Innovation; Professor of Law, Vermont Law School; Faculty Associate, The Berkman Center for Internet and Society at Harvard University
Hon. Paul Grewal, United States Magistrate Judge for Northern District of California
Nick Holmes, Managing Director, Infolaw
Margaret Hagan, Fellow at the Center on the Legal Profession; Lecturer at the Stanford Institute of Design
William C. Hubbard, President, American Bar Association
Rubsun Ho, Co-Founder and Partner, Cognition LLP
Michelle Hunter, Executive Director of the State Bar of Texas
Natalie Kelly, Director, Law Practice Management Program, The State Bar of Georgia
Sheldon Krantz, Author; Senior Fellow, Georgetown Center for the Study of the Legal Profession; Executive Director of The DC Affordable Law Firm
Dan LaBert, Executive Director of the National Association of Consumer Bankruptcy Attorneys (NACBA)
Dan Lear, Director of Industry Relations, Avvo
Joshua Lenon, Lawyer-in-Residence at Clio
Daniel Linna, Assistant Dean of Career Development & Professor of Law in Residence, Michigan State College of Law; Adjunct Professor, University of Michigan Law
Lisa Linsky, Partner-in-Charge of Firm-wide Diversity and Partner-in-Charge of LGBT Diversity and Inclusion, McDermott, Will & Emery
Hon. Goodwin Liu, Associate Justice, California Supreme Court
Chris Manos, Executive Director, State Bar of Montana
David Mao, Deputy Librarian of Congress, Library of Congress
Kate Martin, Law Librarian, Circuit Court for Montgomery County, Maryland; President, Law Librarians of Maryland
Garry Mathiason, Shareholder and Chair, Robotics, Artificial Intelligence and Automation Industry Group; Littler Mendelson
Ryan McClead, ‎Legal Technology Innovation Architect, Norton Rose Fulbright
Gavin McGrane, CEO and Founder, PacerPro
Joe Milstone, Co-Founder and CEO, Cognition LLP
Joe Mornin, Founder, Bestlaw
Jason Moyse, Chief Legal Provocateur, Lawmade.com; Industry Lead, MaRS LegalX; Manager, Legal Business Solutions at Elevate Services
Pat Nester, Assistant Deputy Director, State Bar Of Texas; Director, TexasBarCLE; Executive Director, Texas Bar College
Andrew Perlman, Dean, Suffolk Law School; Director, Institute on Law Practice Technology and Innovation; Director, Legal Technology and Innovation Concentration
William (Bill) Raftery, Knowledge and Information Services Analyst, National Center for State Courts
Trisha Ryan, Principal, Trisha L. Ryan, P.A.
Lynn Schmidt Walters, Co-Founder of JD Mentor; Founder, Lux Law Advising
 Brendan Schulman, Special Counsel, Kramer Levin Naftalis & Frankel LLP
Matt Sellers, CEO and Founder, Quimbee
 Aron Solomon, Chief Innovation Operative, Lawmade.com; Innovation Lead for the LegalX cluster; Senior Advisor for education technology at MaRS
David Sparks, Founder of Sparks Law; Blogger, MacSparky.com
Ben Stevens, Senior Partner, The Stevens Law Firm; The Mac Lawyer
John Suh, CEO, Legal Zoom
Donald Verrilli, Solicitor General of the United States
Andy Wilson, CEO and Founder, Logikcull
Daniel Yaniv, Principal, Yaniv & Associates PC

View the 2015 winners

— Joe.

The Brooklyn Law School is doing something innovative concerning jobs for graduates.  CNN is reporting that the school will refund 15 percent of the total graduates paid in tuition if they are still searching for a job nine months after receiving their degree.  There are some catches, though nothing onerous.  Students must work through the career services office and plan to take the bar.  More details are in the CNN report.

Mark

If the current figures from the LSAC web site hold up, it appears that law school applications are starting to stabilize.  There is still a drop compared to 2014, but the figures show a 2% drop in applicants and a 4.2% drop in applications.   That is not as scary compared to double digit drops in past years.  Historical applicant figures are in this document. There is a graph on the LSAC web site noting the last three years of applicants and applications that show the 2015 timeline as slightly below that of 2014, which is well below 2013.

I can’t speak to the experience at individual law schools though I would think that many deans and admission officers would be relieved hearing these numbers.  This could actually bring some pause to staff/faculty buy-outs, budget cuts, and other reductions law schools have been forced to make (like law library budget cuts).

Additional comment on this development is in the Wall Street Journal.  Aggregate numbers of total number of law schools and law students 1964-2012 are available in this chart from The Faculty Lounge.  Bloomberg is still emphasizing low job placement for graduates in this article.  Law School Employment data and other law school statistics are available from the ABA.

Mark

This may be Friday Fun, if you can call it that, for us, but not so much for Brian Wilson.  A colleague asked me about some of the stuff she saw in the Brian Wilson movie, Love & Mercy.  During the course of the discussion I mentioned that she should listen to the Help Me Rhonda sessions, or more specifically, the approximately 40 minutes where Beach Boy dad and then-producer Murry Wilson spent psychologically torturing Brian during the recording session.  It’s available at the WMFU blog in two versions.  There are excerpts and then there is the full tape.  Go with the link to the full tape to appreciate the anguish Brian was feeling as the interplay moved over time.  There is nothing like it.  While your at the WFMU page, check out the four Peter Bagge cartoons, The Murry Wilson Show.  It’s a hilarious parody of the recording session.  There are links in the fourth paragraph of the text.

I’ve been involved in music for years, both from a performance and production standpoint.  As a collector, I probably have a good chunk of the unreleased history of rock music sitting in my basement.  I’ve also produced various bands and artists in the Chicago area for around the last 20 years in my own studio.  I’ll also offer an example of my production work with this song from Fank, a band I both performed with and recorded.  The song is called Need To Belong.  The track was recorded in 2005 from the last time the band ever played.  My colleague from the DePaul Law Library, Dan Ursini, is on bass.  Good times.

Mark

 

I posted about three weeks ago about the discussion going on at my library concerning the maintenance of the National Reporter System as well as other bibliographic items.  This was in connection with ABA Standards for law school library collection allowing for “reliable access” to primary law through electronic resources.  This got me wondering.  I know that current and ongoing material would be on Lexis and Westlaw and other resources.  The immediate question is how far back does everything go?  I would assume through representations that the databases cover all case law from the beginning.

I wound up checking each information statement for case law in WestlawNext and compared it to everything that is a citable item in Table 1 of the Bluebook.  Westlaw does, in fact, represent that it carries case law for every item listed as a citable reporter in the Bluebook.  I’m in the process of checking Lexis at the moment.  While I can take issue with the way Lexis organizes its case law files, the survey so far indicates that it goes all the way back as well.  Lexis does have some interesting additions in that it seems there are databases for circuit court reports for a select number of states.  I’m still working on that survey.

I’m considering an expansion of the survey to other databases such as Hein Online as well as free resources such as Google’s case law and books and other reliable databases for comparative purposes.  Hein’s historical databases for case law and statutes continue to expand, especially for state published items.   I’m also interested in the formats (text only, PDF, etc.) and the range of coverage for each file type.  This information would likely be useful for cite checkers and reference librarians.  I have the initial WestlawNext chart for coverage by reporter and date.  Feel free to contact me for a copy.  I’ll post my progress as I get through this.  I may ultimately turn this into an article that compares type of material to availability, format, and whether it’s reliably free or in a subscription database.  We’ll see if I have the stamina as this goes forward.

Mark

The U.S. Copyright Office has issued a new report, Orphan Works And Mass Digitization, which identifies legislative proposals and other considerations to create mechanisms that allow for legal use of orphan works and mass digitization.  The report builds on earlier examinations of the issues released in 2006 and 2011.

From the Executive Summary:

While the fundamental aspects of orphan works and mass digitization have remained unchanged since the Office’s prior reviews, a number of important domestic and international developments have affected the legal landscape. In the United States, it is difficult to separate the issue of mass digitization from two lawsuits arising out of the Google Books project, in which authors and book publishers have asserted violations of their exclusive rights and Google and libraries have asserted fair use.4 Recent decisions in these cases have magnified the public debate surrounding the costs and benefits arising from digitization projects more generally, and how best to license, except, or otherwise regulate them under the law.

Meanwhile, a growing number of countries have adopted legislative responses to both orphan works and mass digitization, ranging from calibrated exceptions to government licenses to extended collective licensing. And, private entities have developed innovative new copyright information registries and other resources to more efficiently bring rightsholders together with those seeking to use their works.

These combined developments – all of which will have substantial ramifications for U.S. copyright stakeholders – strongly suggest that it is time to revisit potential solutions in the United States. The goal in doing so is not to interfere with jurisprudence, but rather to ensure that the rules are clear and that all parties are on equal footing. Indeed, with so many equities at stake, the complexity and breadth of the issues make them well suited for legislative action.5 While the Office has addressed these issues together in this Report, we recommend separate solutions.

The Copyright Office was opposed to the Google Book Settlement which was ultimately rejected by the trial court.  The current report (PDF) is available here.  Perhaps Congress will get around to actually making reforms in the copyright laws to account for orphan works and digitization projects.

Mark

The Second Circuit Court of Appeals rejected Apple’s arguments on appeal and upheld Judge Denise Cote’s finding that Apple violated the antitrust laws:

Defendants Apple, Macmillan, and Simon & Schuster appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.), entered on September 5, 2013. After a bench trial, the district court concluded that Apple violated § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., by orchestrating a conspiracy among five major publishing companies to raise the retail prices of digital books, known as “ebooks.” The court then issued an injunctive order, which, inter alia, prevents Apple from signing agreements with those five publishers that restrict its ability to set, alter, or reduce the price of ebooks, and requires Apple to apply the same terms and conditions to ebook applications sold on its devices as it does to other applications. We conclude that  the district court correctly decided that Apple orchestrated a conspiracy among the publishers to raise ebook prices, that the conspiracy unreasonably restrained trade in violation of § 1 of the Sherman Act, and that the injunction is properly calibrated to protect the public from future anticompetitive harms. In addition, we reject the argument that the portion of the injunctive order preventing Apple from agreeing to restrict its pricing authority modifies Macmillan and Simon & Schuster’s consent decrees or should be judicially estopped. Accordingly, the judgment of the district court is AFFIRMED.

The main opinion was accompanied by an opinion concurring in part and dissenting in part, and a dissenting opinion.  Here are the opinions:

US v Apple Opinion US v Apple C&D In Part US v Apple D Opinion

Mark

The Supreme Court issued four opinions this morning.  I’m guessing the same-sex marriage case and the Obamacare case will be decided on June 29th, which appears to be the last day of the term.  Today’s cases, while not having the social impact, are interesting nonetheless.

The first case is Kimble v. Marvel Entertainment LLC (13-720).  Kimble entered into a contract with Marvel (the pre-Disney owned Marvel) where Marvel would buy Kimble’s patent on a Spiderman for a lump sum and a 3% royalty on each toy sold.  Sometime near the end of the 20-year patent term Marvel’s spidey sense began to tingle and the company discovered the case of Brulotte v. Thys Co., 379 U.S. 29 (1964 ).  That case held that a patent holder could not charge royalties once the patent had expired.  Marvel sued for and won a declaratory judgment that royalty payments would cease once the patent expired.  The Ninth Circuit affirmed.

The Supreme Court upheld Brulotte and affirmed the lower court decisions on the basis of stare decisis.  The Court said that relief from the rule rests with Congress and not the Court.  It also suggested that the royalty contract could be structured in other ways to spread the payments beyond the expiration of the patent.  Justice Kagan delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Thomas.  The dissent argued that the Court made up the Brulotte rule when the case was decided (wrongly, in its view) and could just as easily get rid of it as there is nothing in the patent laws that direct that result.

The second case is Los Angeles v. Patel (13-1175).  The City of Los Angeles has an ordinance that requires hotel operators to record specific detailed information about their guests.  The ordinance also requires that the records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.”  A group of motel owners sued on the basis that the statute was facially unconstitutional under the Fourth Amendment as it afforded no opportunity to challenge the inspection beforehand.  The District Court held for the City ruling that the owners had no privacy interest in the records.  The Ninth Circuit affirmed but then reversed en banc.

The Court held that a facial challenge to the ordinance can be made.  Even though the “search” in this case is administrative, it is still unconstitutional as it does not allow pre-compliance review before a neutral party.  Justice Sotomayor delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a dissenting opinion and was joined by Justice Thomas.  The dissents argue essentially that the challenge should fail as the Court decides whether the application of a law is unconstitutional rather than the text of the law in and of itself.

The third case is Kingsley v. Hendrickson (13-6368).  Kingsley was a prisoner awaiting trial when he became uncooperative in his cell.  On one occasion he refused an order to leave his cell and was forcibly removed.  He was handcuffed and stunned with a Taser.  He also alleged officers slammed his head into a concrete bunk.  He filed a §1983 suit.  The trial court issued jury instructions calling for a subjective standard to decide liability.  The jury found for the officers.  The Seventh Circuit affirmed in a divided panel.

The Supreme Court reversed holding that the correct standard was an objective unreasonableness standard in deciding an excessive force claim.  The Court stated that it was consistent with precedent, it is the standard in the pattern jury instructions, officers are trained to a standard, and based on circumstances, the officers may be justified in their actions and given some form of immunity.  Justice Breyer delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a separate dissent. Justice Scalia argues that “any intentional application of force that is objectively unreasonable in degree is a use of excessive force that “amount[s] to punishment.””  Justice Alito would dismiss the appeal as other questions need to be answered in the case first.

The fourth case has been to the Court before on procedural issues over jurisdiction.  The Court today decides the substantive issue in the case of Horne v. Department of Agriculture (14-275).  The Agricultural Marketing Agreement Act of 1937 lets the Secretary of Agriculture create marketing orders to maintain stable markets.  Horne and his family grow raisins and acts as a handler for other growers by buying their crop and marketing them.  The marketing order establishes the Raisin Administrative Committee.  The Committee imposes a 47% reserve allowing that portion of the crop to be given to the government to sell in noncompetitive markets, give away, or otherwise dispose of.  Any profits after expenses are returned to the grower.

Horne refused to turn over raisins to the government.  He was fined the fair market value of the withheld crop and other civil penalties.  He ultimately sued the government alleging that the program violates the Takings Clause of the Fifth Amendment.  The Ninth Circuit ruled that this was not a per se taking as personal property is afforded less protection than real property.  That court also stated that the Hornes could avoid the problem by growing different crops.

The Supreme Court reversed. The Fifth Amendment applies equally to personal property as to real property, requiring just compensation from the government.  The history of the Fifth Amendment justifies this.  The Committee’s taking of the 47% of the crop is clearly a taking and the net profits are not just compensation.  The Hornes are not required to pay the fine and then seek its return in other proceedings.  Chief Justice Roberts delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justices Ginsburg, Breyer, and Kagan joined the opinion as to Parts I and II.  Justice Thomas filed a concurring opinion.  Justice Breyer filed an opinion concurring in part and dissenting in part and was joined by Justices Ginsburg and Kagan.  Justice Sotomayor filed a dissenting opinion.  Justice Breyer would remand the case to determine if any money was due to the Hornes after the accounting.  Justice Sotomayor argues that precedent relied on by the Court does not make the circumstances a per se taking.

Mark

I recognize that some, especially those in Florida, may not consider this week’s Friday Fun to be fun at all.  It is for me.  As someone who has probably been to more Chicago Blackhawks games than any other form of public entertainment, I give you the 2015 Stanley Cup Champion Blackhawks singing We Are The Champions shortly after winning the Cup last Monday night at the United Center.  No one will confuse the team with a quality choral group.  It doesn’t matter though.  We won the Cup.  Enjoy.

Mark

The Supreme Court issued six opinions yesterday.  The most controversial is the Texas specialty license plate case, Walker v. Texas Div., Sons of Confederate Veterans, Inc. (14-144).  The facts are straightforward.  The Sons of Confederate Veterans applied for a vanity plate that featured the organization and included a confederate flag.  A Google image search of [sons of confederate veterans license plate] will bring up ample amounts of results showing the design.  It is also appended to the end of the majority opinion.  Interestingly, it appears that other states have issued plates with the design.  Texas, however, said no to the confederate flag.  The SCV naturally sued.  The federal district court upheld the denial and the Fifth Circuit reversed.

The issue concerned whether plate design was government speech or private speech.  If it was the former, Texas had the right to control its own governmental message appearing on its license plates.  If it was private speech, the First Amendment would prohibit government from censoring the message.  The majority ruled that Texas had the right to refuse the design as it was characterized as government speech.  The Court based this holding mostly on the prior case of Pleasant Grove City v. Summum, 555 U. S. 460 (2009).  In Summum, the Court rejected a private organization’s attempt to place a religious monument in a city park where other privately erected monuments already existed on the basis that the government could control its own message.  The nature of the park did not turn it into a private forum.  The Court analogized the park setting with that of vanity license plates.

The Court’s opinion was delivered by Justice Breyer and he was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts, and Justices Scalia and Kennedy.  The dissent argues that the Summum case is distinguishable and that the majority passes off government speech with private speech.

The other cases involve subjecting the mentally handicapped to the death penalty, Brumfield v. Cain (13-1433, (the defendant has a right to prove he is mentally handicapped); introduction of statements made earlier by a 3-year old child about abuse does not violate the confrontation clause, Ohio v. Clark (13-1352); whether the state has to prove intent and knowledge when a defendant is charged with selling drug analogues appearing on schedules from the Controlled Substances Act (it does), McFadden v. United States (14-387); and whether a church can be fined for not removing temporary directional signs in time limits contained in its sign code (it can’t in that the applicable code was not content neutral), Reed v. Town of Gilbert (13-502).

Mark

There is an interesting article from the CBC called Academic publishers reap huge profits as libraries go broke.  The sub-title is “5 companies publish more than 70 per cent of research papers, study finds.”  There is a constant cry from academic libraries in the United States, and I assume Canada, over the cost increases in scientific, medical, and social science journals.  Harvard University in fact joined that chorus three years ago in encouraging its scholars to publish in open source publications.  Academic libraries in some situations dropped Elsevier subscriptions in protest.  Others joined in as well.

The CBC article documents a study of publishers by Vincent Larivière and others from the University of Montreal’s School of Library and Information Science.  He found that the top five journal publishers held 53% of the academic journal market and had a 40% profit margin.  This sentence explains why that is possible.

“The quality control is free, the raw material is free, and then you charge very, very high amounts – of course you come up with very high profit margins.”

Indeed.  There is a link to the full paper within the article.  Here’s the abstract:

The consolidation of the scientific publishing industry has been the topic of much debate within and outside the scientific community, especially in relation to major publishers’ high profit margins. However, the share of scientific output published in the journals of these major publishers, as well as its evolution over time and across various disciplines, has not yet been analyzed. This paper provides such analysis, based on 45 million documents indexed in the Web of Science over the period 1973-2013. It shows that in both natural and medical sciences (NMS) and social sciences and humanities (SSH), Reed-Elsevier, Wiley-Blackwell, Springer, and Taylor & Francis increased their share of the published output, especially since the advent of the digital era (mid-1990s). Combined, the top five most prolific publishers account for more than 50% of all papers published in 2013. Disciplines of the social sciences have the highest level of concentration (70% of papers from the top five publishers), while the humanities have remained relatively independent (20% from top five publishers). NMS disciplines are in between, mainly because of the strength of their scientific societies, such as the ACS in chemistry or APS in physics. The paper also examines the migration of journals between small and big publishing houses and explores the effect of publisher change on citation impact. It concludes with a discussion on the economics of scholarly publishing.

It’s published in PLOS ONE, which is an open source journal.

Mark

There is an interesting discussion going on at my library.  As others may be doing, we are considering the proper mix between print and online resources.  ABA law school accreditation Standard 606 now allows for “a core collection of essential materials through ownership or reliable access.”  It’s that last part, “reliable access,” that triggers deep soul searching of what to buy in print or what to buy as an electronic subscription.  Tempering the rule are other qualifications that state the core collection should support faculty scholarship and the curriculum, and that a collection that consists of a single format may violate Standard 606.

In this context I’ve recommended that we drop the National Reporter System, ALRs, CJS, multiple state codes, and selected treatises that are online.  This may sound radical to some.  I know that law schools and libraries are experiencing budget cuts due to lower enrollment.  That drives part of the analysis.  Another factor that bears thought is what we teach these days.  The legal writing program at DePaul started teaching all electronic research.  We experienced a drop in library visits as a consequence.  No more treasure hunts, no answering the same questions over and over at the reference desk.

I can remember how far we’ve come in electronic access.  We used to teach print resources because that’s what the legal market had out there.  Now electronic access to case law and other primary sources is ubiquitous.  At one time it was viable to teach print because the databases were based on print.  Understand the organization of print and the online version would make more sense.  That’s not so true anymore.  Online database providers no longer think in terms of echoing print other than citation and star paging.  Certainly there was a time when case law on Westlaw was organized by reporter.  Not anymore.  It’s all jurisdictional, and that seems natural now compared to looking for a database containing the Northeastern Reporter.

Look at how citators have changed.  There was a time when Shepards online would be no more current than the latest print update.  Even the CD-ROM product mirrored print.  Now everything is dynamic.  I can’t imagine why anyone would want to subscribe to the print edition at this point.  We cancelled our print copies years ago. If anything was made easier by online access, Shepards, KeyCite, and citators in general are it.  They are more complete, can be filtered, and everything is spelled out instead of interpreting symbols attached to citations.

Then there are law reviews.  I have to say how much I like Hein Online when it comes to law reviews.  Everything back to day one is there in PDF format more or less.  We still get paper copies of law reviews but discard them once they appear on Hein.  No more binding these books for the collection.  Google Scholar works as a handy index to Hein content as well as other scholarly databases.

So now the next question is what is the proper mix for print and online?  I know that some libraries have already dropped major primary resources such as reporters.  In one sense, we are behind the curve on making that set of decisions.  Never in my career had I thought I would be part of this kind of decision.  Times change.  I find that I’m not very sentimental about physical materials that no one uses at my library.

Mark

When I was growing up (a long, long time ago) I would watch Perry Mason episodes on television.  That show, and E.G. Marshall starring in The Defenders, presented my first awareness of the legal process.  I have been called on by one faculty member who uses video clips in her presentations to locate Perry Mason segments where Perry thunders at a witness (“May I remind the witness that you are under oath!”) with facts derived from Paul Drake’s investigations.  The result more often than not brought a surprise confession from the witness or someone in the gallery.  District Attorney Hamilton Burger would, more often than not, sheepishly approach the bench and ask for some variation of dismissing the charges.  In these days of regulated discovery, even in criminal cases, I’m not so sure these courtroom encounters would pass legal muster.  They made for riveting entertainment nonetheless.  I often enjoyed searching for these clips as it was more entertaining than locating cases on certain aspects of employment discrimination.

Mason was created by author Erle Stanley Gardner and published the first of a long line of Mason novels in 1933 with The Case of The Velvet Claw.  Much to my surprise, the American Bar Association is rereleasing the first five Mason novels on Ankerwycke, its consumer imprint.  More information is available here.  I think I may go back and wander through some of the clips I’ve collected in the course of reference service.

Mark

The Supreme Court issued one opinion this morning.  That case, Zivotosky v. Kerry (13-628), resolves a long standing court battle on whether a U.S. passport issued to a citizen born in Jerusalem can state the country of birth as Israel.  The current administration, as well as every previous administration since the United States recognition of Israel in 1948, has declared that Jerusalem is not under the control of any one country.  The Foreign Affairs Manual requires that passports recording of birth location be consistent with administration policy.

Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003 in 2002.  Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.”  Congress explicitly authorized passports to state the country of birth as Israel for those U.S. citizens born in Jerusalem.   Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 and his parents requested his country of birth be listed as Jerusalem.  Consular officials declined the request, setting up the present suit.

There is a long history of this case proceeding up and down the federal court system.  The Supreme Court issued a procedural opinion in 2012 (Zivotofsky v. Clinton) ruling essentially that the federal courts could decide the question.  Three years later the Court rules on the substantive issue, stating that the Act is unconstitutional.  The rationale for this is an analysis of constitutional language,  historical practice, and past precedent touching on presidential power to conduct foreign relations.  The Court acknowledges that Congress can pass legislation that can regulate passports in some circumstances.  Congress, cannot, however, pass legislation that affects the power of the President to recognize (or not) foreign sovereigns.  This Act falls into that latter category.

What struck me most about the opinion is the number of historical secondary sources cited by the Court.  It’s almost a lesson in legal research.  Some of the sources include:

  • Restatement (Third) of Foreign Relations Law of the United States §203, Comment a, p. 84 (1986)
  •  2 M. Whiteman, Digest of International Law §1, p. 1 (1963)
  • 1 J. Moore, Digest of International Law §27, p. 73 (1906)
  • I. Brownlie, Principles of Public International Law 93 (7th ed. 2008) (Brownlie)
  • The Federalist No. 69, p. 420 (C. Rossiter ed. 1961)
  • E. de Vattel, The Law of Nations §78, p. 461 (1758) (J. Chitty ed. 1853)
  • 2 C. van Bynkershoek, On Questions of Public Law 156–157 (1737) (T. Frank ed. 1930)
  •  2 H. Grotius, On the Law of War and Peace 440–441 (1625) (F. Kelsey ed. 1925)
  • 3 J. Story, Commentaries on the Constitution of the United States §1560, p. 416 (1833)

There are more.  I point this out as someone who has taught Advanced Legal Research, emphasizing that researching international and constitutional law issues requires attention to historical literature.  There is more to interpretation than the latest hornbooks.    The Court’s opinion today validates that.  The Clerks did a marvelous job in working on this case.  I’ll leave the impact of today’s decision to the commentators in the new.

Justice Kennedy delivered the opinion of the Court and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Breyer filed a concurring opinion.  Justice Thomas filed an opinion concurring in the judgment and dissenting in part.  That makes it 6-3.  Chief Justice Roberts filed a dissenting opinion and was joined by Justice Alito.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Alito.

Mark

Gumball is a cartoon cat and the title character of the Amazing World of Gumball on Cartoon Network.  His “brother” is Darwin who was once a pet fish but managed to leave the bowl and grew legs.  His sister Anais is a rabbit, like her father Richard.  Nicole, Gumball’s mother, is also a cat.  Got that?  Good, as that is the beginning of a set of characters that consist of animated entities, puppets, and CGI/3D characters all mixed into 11 minute cartoons for kids and adults.  I watch it on a regular basis.  Mainstream actors such as Brian Blessed (playing Santa Clause)  and Sir Derek Jacobi (narrating an episode) have provided voices to the show.

The clip I’m posting here is particularly funny to me as I have a friend with whom I have an ongoing conversation about the differences, say, between Norwegian Death Metal and Doom Metal, among other sub-genres of the music.  Rocky, who is the bus driver and school janitor, here explains the differences in metal  to Gumball and a few of his friends.  It’s oddly accurate.  Enjoy.

Mark

One of the many issues coursing through law schools these days is revising the curriculum to produce more practice-ready graduates.  This makes a school’s students more likely to be attractive to firms in that they would need less training on the job to be successful.  I attended a panel discussion several months back at the LexisNexis offices here in Chicago that featured librarians from large firms, small firms, and the federal courts.  The discussion centered on the expectations each of their respective organizations had for interns and new hires.

I found it pretty interesting as we in academics teach research from the perspective of skill and strategies without context.  We talk about being cost effective here in the law schools but sometimes I’m not sure our version of cost effective is the same as that as a firm or legal practice.  One would think that a firm would like to keep costs down as much as possible while at the same time getting the research right. That may be true generally, but the approaches the librarians discussed varied depending on the research topic and the available resources.  The point really is that a student/graduate versed in online legal research should ask how research is conducted at the firm in order to use learned research skills effectively.

One of the other things that came up in the discussion was security.  That’s something I admit I never really thought about.  I’m used to seeing email messages with the standard disclaimer to the effect “this communication is intended for ….”  Client privacy, after all, is an ethical issue.  Those same issues come up in research where graduates find that they are restricted in where and when research is conducted.  I’m sure firm librarians reading this will say “Yes, and?”  It may be a shock to students to learn that firms and courts lock down information with prohibitions against thumb drives containing confidential information and other electronic devices that do the same.  Remote access to a firm’s system is definitely not as casual as logging into a law library’s database list.  Or putting it another way, there is a big difference between what is possible and what a firm allows and how it allows it.

With all of that, there is a recent study funded by Lexis that measured some of the expectations of some 300 hundred hiring partners for so-called practice ready graduates.  Here is the executive summary with links to the full report:

Executive Summary

Law Schools and individual faculty are in the process of revising their curriculum and classes to address the demand for more practice-ready graduates. But what are the most desired research, writing and transactional skills and how can law schools develop these skills most effectively? An independent survey was conducted by 5 Square Research, Inc. and funded by LexisNexis®, to answer these questions and more.

The result is a new white paper, Hiring partners reveal new attorney readiness for real world practice, which shares the responses of 300 hiring partners and associates from small to large law firms practicing in litigation and transactional law.

Key findings include:

  • 96% believe that newly graduated law students lack practical skills related to litigation and transactional practice.
  • 66% deem writing and drafting skills highly important with emphasis on motions, briefs and pleadings
  • Newer attorneys spend 40% – 60% of their time conducting legal research
  • 88% of hiring partners think proficiency using “paid for” research services is highly important
  • Students lack advanced legal research skills in the areas of statutory law, regulations, legislation and more…
  • The most important transactional skills include business and financial concepts, due diligence, drafting contracts and more…
  • A law firm spends approximately $19,000 per year, on average, to train a new associate

This study reveals the most important and most lacking practical skills desired by legal employers and will help inform law schools of the specific content and tasks they can integrate into applicable classes and experiential learning programs pursuant to employer demand and the new ABA standards.

Read the full article with charts, Hiring partners reveal new attorney readiness for real world practice, or view this Executive Overview Prezi*.

*Chrome or Firefox is best for viewing Prezi

Mark

The Supreme Court issued three opinions this morning.  I’m writing about one of them today because I’m suffering from the dreaded “first day back at work after a three day holiday blues;” that and an unexpected dental appointment this morning to fix a broken tooth.  The cases cover bankruptcy (Wellness Int’l Network, Ltd. v. Sharif (13-935)), patents (Commil USA, LLC v. Cisco Systems, Inc. (13-896)), and when qui tam suits under the Federal Claims Act (FCA) may or may not be barred by a limitations provision (Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter (12-1497)).

Carter was an employee of a government contractor who provided water purification services to the government in Iraq.  The contractor, Carter claims, billed the government for services that were either performed improperly or not performed at all.  The FCA has two provisions at issue here.  One is a “first-to-file” provision that bars subsequent suits that involve the same facts or incidents.  The other is the FCA’s statute of limitations provision requiring a qui tam action must be brought within six years of a violation or within three years of the date by which the United States should have known about a violation.  There is a 10 year limitation against suits in any event.

Carter brought suit within the time allowed but was dismissed in 2010 because there was a pending suit (Thorpe) in another court on the same issue.  The court dismissed Carter’s suit without prejudice.  Carter filed a second suit when Thorpe was dismissed for failure to prosecute.  That suit was also dismissed because Carter’s appeal of the first dismissal was pending.  Carter dismissed the appeal and filed a third suit.  The district court dismissed that third suit, this time with prejudice, on the grounds that two other cases, one in Texas and one in Maryland, had already been initiated on the same facts.  The district court also ruled that the Wartime Suspension of Limitations Act (WSLA), which suspends the Statute of Limitations for “any offense” involving fraud against the federal government, only applies to criminal cases and not Carter’s civil case.  Only one of Carter’s claims would survive the limitations clause

Carter appealed the dismissal and the Fourth Circuit held that the dismissal of the pending cases from Texas and Maryland removed the first-to-file impediment.  It also ruled that the WSLA applied to civil as well as criminal cases.  The contractors appealed to the U.S. Supreme Court.

The Court spent the bulk of the opinion on the applicability of the WSLA to Carter’s case and concluded that the language, structure, and history of the statute limited it to criminal cases.  The Court then resolved the question of whether Carter’s third complaint should be dismissed with prejudice given that at least one claim would survive.  The Court agreed with the Fourth Circuit that when previous cases are dismissed without resolution that the first-to-file bar ceases.

Mark

It’s not much of a secret that I like animation.  I doubt that I could live without the Cartoon Network as part of my TV package.  One of the shows that’s been on for a few years is Teen Titans Go!  It’s a comedic take off of an earlier, more serious version of the Titans.  The main characters are Robin, from Batman and Robin fame; Beast Boy, who can transform into different animals; Starfire, an alien princess from the planet Tamaran; Raven, an inter-dimensional entity fathered by the evil demon Trigon; and Cyborg, half human and half robot.  More on the show and the characters is available from the Teen Titans Wiki.  The clip below is taken from the episode Serious Business.  It’s a musical representation of what happens when one urgently needs a bathroom and it is not available.  I’ve been there.  Now I find myself quietly singing the “pee pee dance” when that happens.  Knock knock.

Mark

I never had a chance to write about the other cases the Supreme Court issued on Monday.  Here are short summaries of the points decided.  The case of Henderson v. United States (13-1487) presented the question as to whether a convicted felon could transfer his guns to a third party as §922(g) prevents a felon from possessing firearms.  Henderson wanted to give his guns to a friend.  The government opposed the idea.  The Supreme Court held that the statute does not prohibit the transfer provided the court below was satisfied that the transfer was not a sham.  Justice Kagan delivered the opinion for a unanimous Court.

Coleman v. Tollefson (13-1333) concerned the ability of prisoners to file lawsuits in forma pauperis.  The relevant statute limits a court to grant the status to a prisoner who has filed three prior actions that were ultimately dismissed as frivolous. , malicious, or fails to state a claim upon which relief may be granted.  Coleman filed three suits that were dismissed as frivolous.  He filed four more suits while the third dismissal was on appeal.  The lower courts denied him in forma pauperis status.  Coleman argued that the case on appeal shouldn’t count.  The Supreme Court disagreed stating essentially that the statute governs the action of a single court rather than as a sequence of events.  Justice Breyer delivered the opinion for a unanimous court.

The case of Comptroller of Treasury of MD v. Wynne (13-485) presented the issue of how states can account for tax credits against taxes paid to other states.  Maryland allowed tax credits for tax payments made to other states against its state income tax but not for a county tax which the state also levied.  The state issued a deficiency notice against Wynne when he claimed credits against both.  The lower Maryland courts held the tax scheme violated the dormant Commerce Clause as it burdened interstate commerce.  The state’s tax scheme did not pass the internal consistency test which assumes that every state has the same tax structure.  If every state adopted Maryland’s structure, interstate commerce would be taxed higher than intrastate commerce.  The words “dormant Commerce Clause” suggest all kinds of internal interpretive disputes in the Court which is reflected in the vote.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Scalia filed a dissenting opinion and was joined by Justice Thomas as to Parts I and II.  Justice Thomas filed a dissenting opinion and was joined by Justice Scalia except as to the first paragraph.  Justice Ginsburg filed a dissenting opinion and was joined by Justices Scalia and Kagan.

The next case is Tibbles v. Edison Int’l (13-550).  This case involves a breach of fiduciary duty claim under ERISA, but the real issue is whether the limitation period for filing a claim (six years) barred the suit.  The claim is that plan trustees added mutual funds to the plan in 1999 and 2002 when there were materially identical plans available at a lower cost.  The case was filed more than six years after the funds were added to the plan.  The Court held that trustees have an ongoing duty to remove imprudent trust investments.  As long as the claim alleges a violation of that ongoing duty, the claim is timely.  Justice Breyer delivered the opinion for a unanimous Court.

The last case from Monday is Harris v. Viegelahn (14-400).  There are two options for filing individual bankruptcy, Chapters 7 and 13.  The difference is that under Chapter 7 a debtor’s assets are transferred to a bankruptcy estate and promptly liquidated for distribution to creditors.  This does not include wages earned after the petition is filed.  Chapter 13 allows a debtor to retain assets and develop a plan to pay off creditors from future wages, among other assets.  Harris owed money to multiple creditors and some $3,700 to Chase Bank as arears on his home mortgage.  Chase filed a Chapter 13 petition.  Harris was obligated under the plan to resume mortgage payments of $530 per month which were withheld from his wages and given to Viegelahn, the bankruptcy trustee.  Harris fell behind and Chase foreclosed.  Viegelahn still received the $530 per month without making any payments to Chase.  Harris converted his Chapter 13 plan to Chapter 7 a year later.  Viegelahn then distributed money to creditors including funds from Harris’ wages.  Harris petitioned to get that money back.  The Fifth Circuit held that Harris was not entitled to a refund.  The Supreme Court reversed, holding that bankruptcy law limits the Chapter 7 estate to property on hand at the time of the initial filing.  Justice Ginsburg delivered the opinion for a unanimous Court.

Mark

I came across an interesting feature in the case law portion of Google Scholar.  A non-law student asked me for help in locating three cases that she couldn’t find through LexisNexis Academic.  She explained that she also tried using Google Scholar.  I expanded the information about each by doing a few web searches as well as to verify the accuracy of the case names she gave me.  Two of the three were ultimately available through LNA.  The third was not.

I searched Scholar with the information I had located about the case and found an opinion with the right caption.  I opened the document and noticed that the docket number was a hyperlink.  I clicked on it and discovered that there were actually seven opinions issued in the case, at least at the federal District Court level.  I remember back when Google Scholar added the case law database that the engineers in charge said it would be easy to create a citator but that their contract with the “unnamed large legal publisher” that licensed the text prohibited that feature.  Somehow that didn’t stop Google from adding two features that form a quasi-citator.

One is the “How cited” link in the upper left corner of the page containing the full text of an opinion.  That gives links to other citing cases with snippets of text from those cases.  There is another option to see all cases that cite the source case.  The second feature is a series of links on the same page under the heading “Related documents.”  This is where links to the same case at a different appellate level may be found.  By hyperlinking the docket numbers, Google can now offer a quasi-history along with its quasi-citator.  The only thing missing and presumably barred by contract are the symbols (emojis?) identifying the quality of the citation.

The main feature of Google Scholar’s case law, of course, is finding cases related to a problem through keyword search.  The results were hit or miss back in 2009 when the database went public.  The case list showed relevant decisions but it seemed as if something was missing.  The trust factor wasn’t there.  I mention this because I tested Scholar last fall when I created scripts for teaching features and strategies available using Lexis Advance, WestlawNext, and Bloomberg Law.

The problem was set in New York State.  Essentially, an individual sued a landowner for injuries sustained while riding an all-terrain vehicle (ATV) on the owner’s property.  The searches were from the perspective of the owner under the theory of assumption of the risk.  I liked the problem because there is a New York statute that specifically exempts liability for injuries sustained in most but not all unauthorized access circumstances.  It gave the opportunity to show research elements such as case results, links to statutes, annotations under statutes, and how to find related headnotes.  All three databases brought up the same leading cases and straightforward navigation to the related research types on each system.

I tested the same keywords in Scholar and sure enough, it gave results featuring all of the same leading cases on the first page of citations as I had found in LA, WN, and BL.  Essentially, Google’s algorithm has improved tremendously since those early days.  Google is hardly a substitute for any of the commercial databases as it does not have the value-added features such as secondary sources and others.  At the same time, anyone searching Scholar’s case law database can do so with a good amount of confidence in my opinion.

Incidentally, anyone wishing to see the scripts I designed should contact me for copies.

Mark