Law
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The WaPo headline reads “The DATA Act just passed the Senate” but it doesn’t look right to me. The Senate is the legislative body, which voted to pass the legislation. Not the other way around. Editorial picking of nits? Yes. But that doesn’t mean it’s not an improvement. ↩
A court of beginnings
Photo of Pike County Courthouse by the author
Several excellent writing professors have told me throughout my life that you start by starting. Introductions, caveats and excuses delay your goal and bore or confuse the reader. Don’t tell people what you’re going to do. Do it.
But they also advised me always to write with my audience in mind. This is a blog, and you’re still reading, which suggests you like to read blogs, or at least my blog. So I’m assuming you’re prepared for and maybe even expecting some opinions. Here they are, by way, as they say, of introduction.
I can be a cynical, pessimistic bastard.
I can’t help it, and I really don’t want to help it. The world is a nasty, ugly place where terrible things happen to innocent people all the time. I’m convinced, through arrogance or narcissism or rationalization, that my gloomy outlook keeps me well-prepared for those dismal days we all inevitably encounter, and insulates me from the worst disappointments. Optimism sounds in my ears like a synonym for naivety.
Told you: I’m a bastard. But today I’m going to break character for a few hundred words.
I don’t often write about my work. I never have. I think it’s a good rule to stay away from what you’re currently doing, especially in the world of the law, where much of it is privileged and confidential.
It’s unprofessional to complain about your job in any detail, and as a cynical, pessimistic bastard I find joyous reports about one’s work untrustworthy at best. I have stories from previous jobs that would make your eyeballs burst from your face. But even if I was unscrupulous about what I was willing to share, to the extent that I wrote here about everything, what stories would I have left to tell at parties?
So there it is. That’s the introduction my writing advisors always advised against. But I think I did okay. I needed all that to make it clear to you why the rest of this little essay is an exception for me.
I don’t have to violate any privilege or confidentiality to say a typical Common Pleas court sees a lot of depressing stuff: divorce, custody, drug addiction, acrimonious estate distributions, and worse. Yes, our judges also perform marriages, but those aren’t really cases, so the law clerks never have occasion to attend.
From where I am sitting, it is often a court of dismantling, of endings.
Today, though, I was present for the first time at an adoption proceeding. It was emotional for the family. And all of the Court’s personnel were doing something we rarely do during court proceedings: we were smiling.
While I think family is most clearly defined by something ineffable in our hearts, legal recognition gives that definition life in the outside world.
And that can be just as important, especially when it comes to the right to protect, provide benefits to or make healthcare decisions for your family when they are unable to do those things for themselves.
It’s hard to be a cynical, pessimistic bastard while you watch a group of children and adults get their first photograph taken as a legally recognized family. Today, even if only for thirty minutes, ours was a court not of dismantling, but a court of building, and beginnings.
What a beautiful thing.
Tim Cook will lend his name to Alabama LGBTQ bill
Tim Cook will lend his name to Alabama LGBTQ bill
Apple initially expressed corporate reluctance, but Apple General Counsel Bruce Sewell later told Pamela Todd, Alabama’s only openly gay lawmaker, that CEO Tim Cook “would be delighted” to have a bill named after him which would protect LGBTQ Alabama state employees from discrimination.
Cook said when he came out publicly in an essay for Bloomberg Businessweek that while he doesn’t usually like to draw attention to himself,
At the same time, I believe deeply in the words of Dr. Martin Luther King, who said: “Life’s most persistent and urgent question is, ‘What are you doing for others?’ ” I often challenge myself with that question, and I’ve come to realize that my desire for personal privacy has been holding me back from doing something more important.
It may seem like letting someone name a law after you isn’t that profound, but it is. The law will get national and even international attention primarily because of Tim Cook’s name. Without it, the law would have been written about by Alabama press and journalists in surrounding states, and would have been covered by LGBTQ publications.
But this small thing Mr. Cook can do, this simple thing, lends a volume to Pamela Todd’s proposal it may otherwise have lacked. And it’s already worked: I don’t think I’ve ever read a single word about Alabama state law of any kind, despite graduating from law school, becoming a licensed attorney and frequently writing about law in general and LGBTQ legal developments in particular.
Searching Google Scholar
I’m trying to post fewer links, which means I’ve been posting less frequently in general. I’m working on some articles, but until they’re ready to publish I’ll still share the occasional link.
This one is a great article from the American Bar Association’s Law Technology Today blog about getting the most out of Google Scholar. Legal research platforms are usually very expensive, so Google’s free alternative is a great way to peruse this stuff.
As a law clerk, I have access to LexisNexis for legal research. But I find Google Scholar is a much easier and faster way to begin a research project. Lexis uses some proprietary search syntax, which I learned in law school but despise having to use.
If you have access to Lexis Advance or Westlaw Next, those products bring simpler search syntax to the paid-research world. But if not, use Google Scholar to get a good sense of the landscape and then head to a paid service to make sure the law is still good, and to follow research leads that may not present themselves in Google Scholar.
Serial podcast presents novel collision of law and technology
Serial podcast presents novel collision of law and technology
The incredible true crime podcast Serial presents a novel collision between technology and the law. This time, it’s not that technology plays or should play a particular part in the case itself, but that a podcast has shed light on a cold case that may lead to an unexpected outcome.
The podcast’s producers interviewed Deirdre Enright, director of the University of Virginia School of Law’s Innocence Project for Episode 7.
Lindsay Beyerstein reports at the Columbia Journalism Review:
The UVA Innocence Project is poised to ask a court to test an old physical evidence recovery kit (PERK) that was used on Lee’s body to test for possible sexual assault in 1999 but was never tested for DNA.
The DNA is an issue that might never have come up but for the Serial producers’ interview with Professor Enright. It’s the first instance I’ve heard of where a podcast may directly affect the outcome of a legal case. And considering the defendant, Syed, has already been sentenced to life in prison, any change at all to his sentence, let alone total exoneration, would be unexpected and important.
It implicates a power to uncover truth in cold cases heretofore reserved primarily to outfits like Professor Enright’s. What’s even more compelling to me is that Serial mixes the modern technology of podcasting with the very old style of serial storytelling. The whole thing exposes how, increasingly, the law benefits from ancillary developments in journalism and technology. It’ll be fascinating to hear the ultimate outcome when we get there.
Americans’ Cellphones Targeted in Secret U.S. Spy Program
Americans’ Cellphones Targeted in Secret U.S. Spy Program
Devlin Barrett reports at The Wall Street Journal:
The program cuts out phone companies as an intermediary in searching for suspects. Rather than asking a company for cell-tower information to help locate a suspect, which law enforcement has criticized as slow and inaccurate, the government can now get that information itself. People familiar with the program say they do get court orders to search for phones, but it isn’t clear if those orders describe the methods used because the orders are sealed.
Warrantless seizure of child pornography evidence fatal to prosecution's case
Warrantless seizure of child pornography evidence fatal to prosecution’s case
The Michigan Court of Appeals issued an opinion on November 6, 2014 affirming a lower court’s decision excluding evidence recovered from Maximilian Paul Gingrich’s (“Defendant”) laptop computer in a child pornography case.
Defendant took his laptop to Best Buy for maintenance. An employee noticed suspicious file names while working on the laptop, and notified police. Police arrived at the store and asked the employee to access the files to ascertain whether or not they were actually child pornography. An employee attached Defendant’s hard drive to a Best Buy computer and confirmed the presence of child pornography on the drive.
The failure to obtain a search warrant prior to accessing the files was ultimately fatal to the charges brought against Defendant. The warrantless search was held to violate his Fourth Amendment right to freedom from unreasonable search and seizure. Specifically, the court held “physically attaching another device to its hard drive” was a trespass amounting to an unlawful search under the Fourth Amendment and a similar provision of the Michigan Constitution.
None of the possible exceptions to the warrant requirement were present, so the evidence was suppressed under the exclusionary rule. The photographs recovered from Defendant’s laptop were the only evidence in the case, so it was dismissed.
There’s no nice way to say it:
The police killed this case the moment they accessed that hard drive without a warrant. Their rush to obtain evidence allowed a possessor of child pornography to avoid the legal consequences of his crime.
I know law enforcement is a difficult job, and it’s often easier to blog about something after the fact than to make the perfect decision in the field every single time. But hopefully this case resulted in a comprehensive seminar on Fourth Amendment compliance in evidence gathering for the police department involved.
And hopefully the Defendant will be caught again, and when he is, the evidence will be lawfully gathered and the jail sentence very, very long.
SCOTUS Servo tracks and announces changes to Supreme Court opinions
SCOTUS Servo tracks and announces changes to Supreme Court opinions
GitHub is where most software developers maintain their projects. It provides version control, issue tracking and much more to its users. I even have a few repositories of my own.
SCOTUS Servo is developed by V. David Zvenyach, a self-described “lawyer and web tinkerer.” His list of projects is impressive, but SCOTUS Servo is so simple it’s beautiful.
Zvenyach’s software watches Supreme Court PDFs for changes to the file and then posts notifications via Twitter user @SCOTUS_servo.
It’s legal geekery at it’s best and most civic-minded.
Philly will consider adding LGBTQ protections to hate crimes ordinance
Philly will consider adding LGBTQ protections to hate crimes ordinance
Randy Lobasso, writing at Philly Weekly‘s PhillyNow blog:
Last week, Councilwoman Blondell Reynolds Brown introduced a proposal along with Councilman Jim Kenney to add disability, sexual orientation and gender identity to the city’s ordinance. The proposal would add up to 90 days of jail time and a $2,000 fine if someone is convicted of hate crimes in addition to whatever other specific crime they’ve committed. It’s not much — but it’s something.
Lobasso’s piece is a great primer on the politics of bill passage, and he explains eloquently and with just the right amount of indignation why Pennsylvania has so far failed to address hate crimes, housing and other venues of discrimination with respect to the Commonwealth’s LGBTQ citizens. Go read it.
Privacy advocates, tech companies nudge Congress to protect ‘abandoned’ e-mails
Privacy advocates, tech companies nudge Congress to protect ‘abandoned’ e-mails
The Email Privacy Act would prevent the government from using mere administrative subpoenas to access email older than 180 days. The distinction, included in the Stored Communications Act , was based on the need for users to access and download email from a service provider’s servers. The logic was that if someone hadn’t downloaded their email in six months or more, they had effectively abandoned it.
Of course, things are no longer that simple in the age of constant synchronization and push notifications on mobile devices.
Previously:
7th Circuit strikes down gay marriage bans in Wisconsin and Indiana
7th Circuit strikes down gay marriage bans in Wisconsin and Indiana
The legal momentum favors universal application of the fundamental right of two consenting adults to marry, but that doesn’t make each ruling any less exciting.
Listen: The Lawfare Podcast discusses zombies in the context of international law and national security
If you’ve ever wondered how international law, laws of war and national security policy might be applied to a zombie apocalypse scenario, listen to episode 89 of The Lawfare Podcast.
The law and policy discussed are real and interesting but the tongue-in-cheek analysis is wonderfully entertaining.
How law firms can innovate by providing third-party services to other law firms
The Economist wrote in 2011 about the end of the legal industry’s lofty heights, saying of one large but ill-fated American firm:
Howrey’s boss, Robert Ruyak, blamed two new trends for his firm’s demise. Howrey had begun acceding to clients’ demands for flat, deferred or contingent fees, causing income to become clumpy and unpredictable. And the rise of specialised e-discovery vendors hollowed out another source of revenue.
Legal services continue to unbundle as traditionally firm-based work like document review is outsourced and electronic discovery becomes more complex. Chicago-based law firm Winston and Strawn is bucking both trends, performing e-discovery for not only itself but other firms and forgoing staffing agencies to directly hire and provide benefits to its document review attorneys.
The firm’s e-discovery division brings in little revenue compared to the firm’s other practice areas. But it has seen three years of growth amid increasing demand for a la carte e-discovery services from other law firms and non-clients. This is a classic example of a business disrupting itself before outsiders irreparably damage it. Ben Thompson wrote an exhaustive case study of Apple’s own self-disruption that perfectly illustrates the strategy.
Many firms are still trying to cope with the boom in third-party legal services providers and complaints about the cost of good legal representation. Formerly bullet-proof business models no longer guarantee the luxurious profits to which so many law firms were once accustomed. And law firm leadership, like publishing and music executives before them, must find innovative ways to provide new value to clients and industry peers.
That’s why law firms like Winston and Strawn are doing more ancillary legal work in-house. I wonder whether more firms will pitch those services to their competitors. It sounds counterintuitive to provide valuable services to competitors, but I think there’s a case to be made for it as a way to revitalize the legal industry.
Many law firms could use guidance on business process improvement, e-discovery, technology, management consulting and more. No one is more qualified to provide those service to law firms than other law firms. Two factors should minimize the fear of deliberate sabotage by a firm you have hired in a non-legal consulting role. The first is a reputational consideration and the second is an ethical one.
Law firms providing their own third-party services to clients and non-clients, including other law firms, have the opportunity every business has when it is among the first to market with an innovative high-value product or service. That opportunity is the chance to become the gold standard, to set the bar high and be the first name that comes up when someone seeks out that product or service. It makes good business sense to treat that first-mover reputational advantage as you would any valuable asset, with great care and cultivation.
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p>Law firms, via the attorneys who helm and staff them, are subject to myriad ethical requirements. The same processes currently in place at most large law firms to manage conflicts of interest, particularly with regard to walling off potentially conflicted attorneys from a given client or matter, could be easily applied to the firms consulting clients. In fact, the team within a firm which provides third-party consulting services to other firms could be completely walled off from the firms legal work, insulating the consulting services from concerns about endangering relationships with and the interests of current, former and prospective clients.
Larry Lessig fighting for campaign finance reform with Mayday PAC
Larry Lessig fighting for campaign finance reform with Mayday PAC
Lawrence Lessig’s Mayday PAC is using the very system it decries to attempt to bring that system down. In other words, Lessig et al are hijacking the virus (the influence of big donors on American politics via election contributions) to deliver the vaccine (funding for politicians committed to proposals which would limit big political contributions).
If you support the cause, be heartened: Lessig likes to fight, and is good at it.
If you don’t support the cause, it’s probably time to start taking Mayday seriously. Your candidate’s job may depend on it.
Listen: This Week in Law
When it comes to my own website, editorial calendars always give way to real life. I’m back with the latest in a series that would be more accurately called the “Podcast of the Month.” I really need to step it up with these, as I still have about 70 of them to which I listen with some regularity.
I’m featuring This Week In Law, a podcast covering technology, privacy, intellectual property and other areas of the law relevant to the internet and its users, for a couple of reasons. The first is that the most recent episode (embedded below), entitled Monkeys, Ducks and Unicorns, discusses the Aereo case as well as a recent Fourth Amendment case about cell phones, both decided by the Supreme Court in June.
The second reason I’m featuring This Week in Law is because I have probably listened to more hours of this podcast than any other. It got me through law school by educating, entertaining and inspiring me, even while I was studying far less interesting areas of the law. The voices of Denise Howell and Evan Brown, in a way that only happens on the internet, more familiar to me than some of my longest friends’ voices.
Subscribe to This Week In Law in iTunes, Pocket Casts or RSS.
Houston, We Have A Public Domain Problem
Houston, We Have A Public Domain Problem
Parker Higgins of the Electronic Frontier Foundation, lamenting the recent removal of a public domain NASA clip he posted on the audio sharing site SoundCloud:
The real goofy bit is that before I started at EFF, I worked at SoundCloud. I actually uploaded this Apollo 13 clip, along with sounds from Apollo 11 and others, as part of a project to attract more historic and archival audio and really celebrate the public domain as a rich source of sounds.
Copyright law has been trending in favor of rights holders for a long time. That’s precisely why unlawful claims of copyright over public domain works are so despicable.
Condoleezza Rice backs out of Rutgers commencement
Condoleezza Rice backs out of Rutgers commencement
The Associated Press reports:
The school’s board of governors had voted to pay $35,000 to the former secretary of state under President George W. Bush and national security adviser for her appearance at the May 18 ceremony.
Any question involving money, and therefore just about any question at all, boils down at some point to supply and demand. I understand schools want to attract high-profile commencement speakers. But the fact that Rutgers would offer, and Rice would accept, $35,000, to speak for less than an hour, is shameful.
Schools should not be willing to supply so much money, and speakers, often wealthy, should not demand it. For a more thorough treatment of this topic, read the excellent 2011 essay “Commencement Cash Cow” by Pablo Eisenberg at InsideHigherEd.
Plagiarism in Legal Briefs
Gerard Magliocca, writing at Concurring Opinions:
If I cited [someone else’s] brief in an attempt to fairly attribute the source when I made the same point, then I’d look like an uncreative doofus. If I did not cite the brief, though, then that would (or could) be plagiarism.
It would be an interesting bit of research to determine how many sentences are copied without attribution from the briefs of other attorneys. I suspect it happens often.
I don’t think it’s uncreative to cite another lawyer’s brief. Legal writing is a game of cites. If anything, an uncited thought may raise questions rather than project creativity.
The real creativity in legal advocacy, as far as I have learned in law school, working as a litigation paralegal and reading far too much legal writing for “pleasure,” is in the optimal juxtaposition, creatively, of the cited facts and the thoughts of your forbears.
No one wants to see a newly minted physics professor work out the proof for E = MC2. The formula is there as a shortcut so others can build, creatively, upon the concepts for which it provides a shorthand.
After all, what judge prefers your lengthy version of an angle you could just as easily refer to with a short quote and a cite to a previous brief?
Whatever you think of this, a quick search turned up a bit of further reading on the issue and I’ve included a few links below. The question certainly isn’t settled, so I’m as interested as Mr. Magliocca in hearing other opinions.
Further Reading
Government agency NTIS charges for docs you can get online for free, loses money doing it
Government agency NTIS charges for docs you can get online for free, loses money doing it
Good thing a bipartisan bill aims to end that embarrassing situation.
The things the National Technology Information Service does which don’t involve charging hundreds of dollars for free stuff and bleeding money doing it will be absorbed by the Commerce Department under the proposed bill.
But why does Obama want to add $19M to the failed agency’s budget in 2015? I don’t mean to sound like a melodramatic RNC ad, but it seems like a bad idea.
The DATA Act and legislative definitions
The DATA Act and legislative definitions
Andrea Peterson reports1 at The Washington Post the Senate has passed a bill, the DATA Act, which would require federal financial data be published in a common format. It sounds like a great idea and something those nerdy data journalists are going to love. The bill is likely to pass in the House as well, and the President is expected to autograph it.
However, a part of the bill Peterson pointed out makes me nervous.
The version passed by the Senate doesn’t set a specific format for the data standard but does require it to be “a widely-accepted, nonproprietary, searchable, platform-independent computer readable format”
Now, to be clear, it’s probably better not to name a specific file format because those may come and go. But I’m hoping the final version of the law defines every word in that quoted bit, excepting “a” and “format” because if it doesn’t, implementation is going to be even slower than usual and enabling high-volume computerized public scrutiny of federal spending is really a the-sooner-the-better sort of topic.