Category Archives: Law

Reader Privacy Event at UNC-Chapel Hill

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Anne Klinefelter, the beloved law library director at UNC-Chapel Hill (you should hear her dean introduce her; really!), is hosting a Data Privacy Day event on reader privacy.  She makes the case in her opening panel remarks that, if we wish to translate library practices with respect to privacy into a digital world, we need to figure out how to translate not just law but also ethics.  Anne argues that the law needs updating to keep up with new research practices of today’s library users, especially as we shift from a world (primarily) of checking out books to a world (primarily) of accessing databases.  Her analysis of the 48 state laws with respect to user data privacy shows that the statutes vary in substance, in coverage, and in enforcement.  Anne’s closing point is a great one: if we’re in the business of translating these rules of library protection of user data, we need to bring the ethical code and norms along as well.

Jane Horvath (Google) and Andrew McDiarmid (CDT) take up the Google Books Search Settlement and its privacy implications.  Jane emphasized the protections for user privacy built into book search.  She also emphasized ECPA and the need to update it to protect reader privacy.  Google, she says, is “calling for ECPA reform.  It really is necessary now.”

Andrew described, diplomatically and clearly, the privacy concerns that CDT has with respect to the Google Books Search Settlement (which CDT thinks should be approved; EFF, the Samuelson Clinic, and the ACLU of Northern California have similar concerns, but oppose approval of the settlement).  The critiques that Andrew described are not limited to Google’s activities, he noted; Amazon and others need to address the same issues.  Andrew worries about the potential development of (too?) rich user profiles that may be the target of information requests for law enforcement and civil litigants.  Rather than regulate Google as a library, Andrew argues, we should focus on the kinds of safeguards that CDT would like to see apply.  The best recent restatement of Fair Information Practices is by the DHS, says Andrew.  Eight principles should apply: Transparency, individual participation (including the right to correct it), purpose specification, minimization, use limitation,  data quality and integrity, security, accountability and auditing.  CDT would like to see Google commit to specific protections in alignment with these eight principles.

Managing Partners Weigh in on Impact of the Global Financial Crisis (Live-Blog)

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At a workshop at Oxford University, HLS Prof. David Wilkins has convened the managing partners of some of the world’s leading law firms.  Ted Burke of Freshfields, Simon Davies of Linklaters, Wim Dejonghe of Allen & Overy, Neville Eisenberg og Berwin Leighton Paisner, and Cyril Shroff of India’s Amarchand & Mangaldas are being interviewed by HLS Prof. Ashish Nanda, Wilkins’ partner at the Program on the Legal Profession at HLS.  Nanda is asking them about the impact of the financial crisis on the marketplace for global legal services.  There wasn’t complete agreement on all fronts, but some take-aways from the managing partners on which they seemed more or less agreed:

– Competition for clients and the best talent in lawyers (especially new, young ones) is getting increasingly fierce.

– This competition will lead to a drop-off by the “low-end of the global firms.”  The cost structure will make it too hard for some of the recent-arrivals to the global marketplace to compete.  These firms will retreat to smaller practices or fail.

– This competition will also lead law firms to explore a broader range of strategies and business models than ever before.

– The ecology of types of firms will get increasingly mixed.

– A truly consistently first-class firm — the law firm equivalent, they say, of the Four Seasons in the hotel business — will continue to be able to charge a premium and will succeed.  If you can’t be consistently first-class across all offices, don’t try it.

Areas of some disagreement:

– One view is that US firms will have to adopt a “more internationalist approach” as business continues to head East.  Without an Asia strategy (China and India in particular), no firm can have a leading global practice over the next 10 to 15 years.  The big challenge will be integration of cultures in global practices.  One challenge: developing international skills and dropping the baggage of a colonial past.  But others note that the litigation business is much higher for the US firms than for big European firms; and litigation can be huge in the local US market.  There is less need to fish in other ponds for big US firms as there is for European firms, for instance.  Without something cataclysmic happening, the fancy New York firms that focus primarily on the US (“the Cravaths of the world”) are unlikely to change their models any time soon.

– What it means to be a “global law firm” is an elastic definition some say.  Others have a clearer sense of what’s required in terms of presence and skill sets to be truly “global” and a “firm” in the coming years (i.e., the need for an Asia strategy, diverse practice areas, and so forth).  The group also disagreed somewhat on what it will take for a firm to compete successfully in emerging markets.

This event is a joint effort of the Program on the Legal Profession at Harvard Law School; the faculty of law and the Said Business School at Oxford; and the Jindal Global Law School in India.

The Future of the Legal Course Book

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Seattle University School of Law is hosting a workshop on the “Future of the Legal Course Book.”  It’s a very nicely organized, timely session, brought together by Prof. David Skover, Ron Collins, and deans Ed Rubin of Vanderbilt and Kellye Testy of Seattle University.  On the table: how should we rethink the legal case book in the name of improving pedagogy in law schools?

It occurs to me is that the key conceptual shift is that virtually all information – whether or not related to the law – is now created, stored, and shared in digital format for starters.  Our students, too, are “born digital.”  Our students have a very different relationship to information today than they did a generation ago.  They were small children when the DVD replaced the VCR. Research, for our students, is more likely to mean a Google or Lexis search from a web browser than a trip to the library.  They rarely, if ever, buy the newspaper in hard copy, but they graze through copious amounts of news and other information online.  (Even some law professors are now more comfortable in the use of online tools for legal research and analysis than in the system of Reporters and Pocket Parts.) Law school community members are learning, accessing information, and expressing themselves in new, digitally-inspired ways – sometimes good, sometimes not so good.  Others outside our community are increasingly learning about us and what we do from our web presence.

Five to ten years from now, I think it’s likely that legal case books, too, will be born digital — and then rendered in a variety of formats, whether a good old-fashioned book or a Kindle/eReader file or a series of web pages and interactive exercises.  Updates could happen online, wiki-style (or not, if authors want to lock things down into a single format or series of files).  Faculty and teachers could click and unclick cases and lessons and questions that they’d like to use in class.  One could imagine that some students would click “buy in paper” and would get a print-on-demand version of the book sent overnight to them in the mail (say, for $49.95).  Others would click “buy it for my Tablet/Reader/Kindle/Whatever” (for $49.95 minus some discount).  Still others, perhaps hearing-impaired students, would click on “read it to me,” and so forth. 

There are surely reasons why such a future may not come to pass.  Some have raised concerns about legacy IP rights, strong interests by publishers in the current regime, and so forth, as barriers to such a future.  I think that the primary question to ask is about new investments: the bulk of our new investment in teaching materials and platforms be placed in materials that are cleared in a way that facilitates this future.  The barriers we should focus on are those that stand in the way of our shifting (at least some of) of new investments (of time, money, etc.) from one primarily oriented toward the analog to one that has a substantial digital emphasis in the first instance.

To be clear: Books remain important.  Books are not going away anytime soon; nor should they.  Hard-copies of books are important on many levels.  Many people prefer to read hard-copies of books to digital forms of books, despite massive ongoing investments in technologies like the Sony Reader, the Amazon Kindle, and new technologies at the MIT Media Lab; we like to curl up with them in bed, collect them on bookshelves as signals of our knowledge (or for easy access), take them to the beach, and so forth.  Books represent a stable format, unlikely the constantly-changing digital formats that imperil digital record-keeping processes over the long-term.  Books are the cornerstone, for now at least, of the large and important publishing industry, whose leaders play an important role in democracies and cultures around the world.  Books have the advantage, under United States law at least, of being covered by the first sale doctrine (you can give them away, or lend them, or sell them in a secondary market).  But books have downsides, too – the “slow fire” phenomenon, the high cost of production (compared to their digital counterparts), and the high cost of storage and distribution.  And, as many have pointed out here in Seattle, the presumption of *only* the traditional form of the book for case-based law teaching is inhibiting experimentation with new pedagogies.

As law schools, I think our work in the area of academic computing should be to facilitate this bright future of course materials born digital and rendered in various formats.  We need to make it easy for faculty to experiment with new technologies in support of their teaching, research, and scholarship — especially in an era of large-scale curricular reform at places like Vanderbilt, Harvard, and others. 

And there’s a need for leadership across schools, too, to develop the platform that makes this future possible.  There are building blocks coming together: CALI’s eLangdell, Rice’s Connexions, and so forth.  Publishers have a role to play here, too, both through their own experimentation and participation with broader, open efforts.  It will be fun to be part of such an effort.

Sunlight Foundation event on MLK, Jr., Day at HLS

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The Sunlight Foundation has kindly chosen the Berkman Center at HLS as the venue for an all-day session today, “Political Information in an Internet Era.” We’re grateful to a dedicated group of civic activists who join us today on their holiday.

The frame for the event, as Zephyr Teachout and her team put it, is this: “All of us, in different ways, are trying to use the internet to improve citizen’s access to, and use of, important political information. Since so much political information is tied to local politics and local media, we are focused on the people working at the state level to educate and engage citizens in public affairs – using everything from new tools to new techniques to new voices on simple blogs.

“Our goal is to help those who are on the ground, using the web to improve political information on the local level. We also hope to foster connections that last beyond this meeting.”

Ellen Miller, Micah Sifry and Mike Klein came to Berkman last year at the time of the kick-off of the Sunlight Foundation. We were blown away then and we are blown away now by what they are up to. They’ve been congratulated many times on the extraordinary and fast progress they’ve made over the past several months, but it’s worth echoing here again.

One of the primary questions that the Sunlight Foundation’s work raises, and the subject of this meeting, is one that is core also to the work of the Berkman Center. Are people using Internet in a way that improves politics? Put another way, are people using Internet in a manner that strengthens democracies? The answer lies in the distributed group of people, some right here in this room today, and in other rooms like it around the world. The answer is that it’s “you.” Time Magazine got it right.

But there’s a ton of work still to be done.  For those on the contemplative end of the scale, there are also a lot of puzzles to be worked out. Three things on my mind by way of issues that one might consider in the context of this big topic:

– At the pre-meeting dinner last night, it was plain that the prevailing views on politics in America among people in the room ran a pretty short gamut, from skepticism and cynicism. As one shines more light on more injustices — on more corruption, to use a word in Z’s agenda — is there a way to calibrate the impact of this sunlight? Is there a realistic fear that more sunlight may lead not to more civic engagement, but rather lead to pushing more people from skepticism to cynicism? The answer, of course, is not less sunlight. But the question seems to me a genuine puzzle.

– The Sunlight Foundation’s project, and the projects of many of the participants in the room today, are focused on the United States. No doubt the United States, and our disparate local and state parts, need the help and the focus. All the same: how do we act locally when we know the issues we are tackling and the network we are using are global? How do we inform ourselves, share our work, learn from others, connect to others — in such a way that we are truly acting within a global framework?

– One of the cool things — perhaps even approaching a “truth” — about Internet & politics is the extent to which it’s both essentially about the individual (in Benkler’s terms, “autonomy”, for those who have read the extraordinary Wealth of Networks) and about collective action. There’s a beauty to that tension, and also a challenge, to each of us, whether as individuals and as members of a collective. What is our greatest point of leverage, as individuals — limited in our political activism only by our own imagination and the 24 hours in a day? Again, I think so many people running so many extraordinary projects related to Internet & politics are answering that question by how you spend each and every day — and the rest of us can learn a thing or two from that.

Tonight: Event on Technology and Legal Education at HLS

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If you are free from 6:00 p.m. – 7:30 p.m. EST tonight, (Thursday, December 7, 2007), whether or not in Cambridge, MA, please consider joining us for a discussion of the future of legal education, with an emphasis on the role of information technologies. The event will take place in Austin West on the HLS campus. This event will bring together deans, researchers, teachers, lawyers, and a CEO (Andy Prozes of LexisNexis, our partner in a research effort this fall on this topic). Berkman fellow Gene Koo has put together this event and is leading the research agenda. Prof. Charles Nesson, the Berkman Center’s founder and a longtime leader on this topic, is chairing the event. If you are not here in person, please join via Second Life on Berkman Island.

When Academics Write Fiction

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Those who write academic articles and books for a living are not always good at writing fiction. I’m reading a novel that, for me, breaks the mold: Stephen L. Carter‘s The Emperor of Ocean Park. As usual, I’m about 4 years after everyone else. Prof. Carter, a prolific scholar and the William Nelson Cromwell Professor of Law at Yale Law School, offers up a mystery about the death of a judge who narrowly misses becoming a Supreme Court Justice. (An interview with the author tells how the book came about.) The judge’s son, Talcott Garland, is a professor at an Ivy League law school set in a small city called Elm Harbor. It’s an incredibly fun (and long, which to me is a good thing, if it’s a good book) story, a mystery well worth the time (even though none of the characters are particularly likable).

What struck me most was a passage that many people who attend or teach in elite law schools might think, on their lowest days, but rarely articulate in public:

“… I return to my dreary classroom, populated, it often seems, by undereducated but deeply committed Phi Beta Kappa ideologies — leftists who believe in class warfare but have never opened Das Kapital and certainly have never perused Werner Sombart, hard-line capitalists who accept the inerrancy of the invisible hand but have never studied Adam Smith, third-generation feminists who know that sex roles are a trap but have never read Betty Friedan, social Darwinists who propose leaving the poor to sink or swin but have never heard of Herbert Spencer or William Sumner’s essay on The Challenge of Facts, black separatists who mutter bleakly about institutional racism but are unaware of the work of Carmichael and Hamilton, who invented the term — all of them our students, all of them hopelessly young and hopelessly smart and thus hopelessly sure they alone are right, and nearly all of whom, whatever their espoused differences, will soon be espoused to huge corporate law firms, massive profit factories where they will bill clients at ridiculous rates for two thousand hours of work every year, quickly earning twice as much money as the best of their teachers, and at half the age, sacrificing all on the altar of career, moving relentlessly upward, as ideology and family life collapse equally around them, and at last arriving, a decade or two later, cynical and bitter, at their cherished career goals, partnerships, professorships, judgeships, whatever kind of ships they dream of sailing, and then looking around at the angry, empty waters and realizing that they have arrived with nothing, absolutely nothing, and wondering what to do with the rest of their wretched lives.”

Only one side of the story, of course, but a pretty evocative, damning assessment of legal education and the life we lead as lawyers.

Cease and Desist from YouTube to TechCrunch

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Mike Arrington is reporting that he’s received a cease and desist letter from YouTube. Mike writes: “Buried in my email this evening I found a cease and desist letter from an attorney at Wilson Sonsini Goodrich & Rosati, representing their client YouTube. We’ve been accused of a number of things: violating YouTube’s Terms of Use, of “tortious interference of a business relationship, and in fact, many business relationships,” of committing an “unfair business practice,” and “false advertising.” The attorney goes on to demand that we cease and desist in from engaging in these various actions or face legal remedies.”

The key issue here seems to be the ability to use a Terms of Use to override other rights that the public might have. Lessig has more. At least this one should be a fair fight, if Mike decides to take it on; in addition to his clout and being on the side of the angels, Mike used to work for the firm that sent him the C&D.

Curricular Reform at Harvard Law School

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Last week, Harvard Law School adopted substantial changes to its first-year curriculum. The office announcement is here.

These changes are important for several reasons. On the simplest level, these changes are the first adjustments to the much-vaunted HLS first-year curriculum in over one hundred years, as the NYTimes’s Jonathan Glater pointed out in his story. The 19th century design of this curriculum has served many of us — students, lawyers, law teachers, maybe even society at large — very well. But the practice of law has changed enormously over that century-plus; well-reasoned change, reflecting those changes in practice, seems much in order as a general matter.

These particular curricular reforms happen also to be terrific choices. A process led by Professor Martha Minow over a few years, including a massive consultative process, led to the proposal that passed the faculty unanimously — a sure sign that the proposal was well-crafted. (If you are unfamiliar with the history of the Harvard Law School’s faculty, the point about unaminity may seem unremarkable. But it is remarkable, truly; a testament to the leadership of both our dean, Elena Kagan, and of Prof. Minow.) The three major changes to the curriculum are that students will take a course in legislation and regulation; one of a few choices in international law; and a course on legal problem solving. These changes mean that there will inevitably be less emphasis in the first year on the traditional slate of courses (torts, contracts, civil procedure, and so forth), but the basic structure that has worked so well over time has been preserved. One big scheduling change for HLS first-years is that they will have an intensive winter-term course, just as the second- and third-year students already do. The winter term idea is a great one, as this is an institution that allows for a different, and differently effective, mode of teaching some courses. Students take only one class during January, which meets every day, and they focus solely on this one subject. Taken together, these changes are geared toward ensuring that law students are better prepared for the profession into which they will enter, whether as practicing lawyers in a firm, public servants of various sorts, or businesspeople in a global economy.

On the occasion of the unanimous faculty vote, Dean Kagan wrote: “This marks a major step forward in our efforts to develop a law school curriculum for the 21st century. Over 100 years ago, Harvard Law School invented the basic law school curriculum, and we are now making the most significant revisions to it since that time. Thanks to yesterday’s unanimous faculty vote, we will add new first-year courses in international and comparative law, legislation and regulation, and complex problem solving — areas of great and ever-growing importance in today’s world. I am extraordinarily grateful to the entire faculty for its vision and support of these far-reaching reforms, which I am confident will give our students the best possible training for the leadership positions they will soon occupy.”

(Volokh Conspiracy, by contrast, has less positive things, or perhaps just more skeptical things, to say.)

As a variant on the same theme, several of us at the Berkman Center for Internet & Society at Harvard Law School are looking at the question of whether, and how, technology should be factored into the law school curriculum more so than it is today at HLS and many other schools. Over the course of this fall, we’re working with partners at Lexis-Nexis on a survey of lawyers and a white paper on ways that technology might appropriately be used in the teaching of law. The project is being spearheaded by new Berkman fellow Gene Koo. While on a much smaller scale than the curriculum reform just passed at HLS, this research project is intended to be in step with the hard look at whether law teaching today prepares students well for the practice of law.

As a footnote: the Harvard Crimson notes that the unanimous vote of our faculty in favor of this broad first-year curricular reform is good news for those hoping that Dean Kagan (of Harvard Law School) will become President Kagan (of Harvard University). I agree with Professor Elhauge, who says, “I hope we don’t lose her to the university. But I don’t think they could find anyone better to be President.”

Apple Loses In Latest Round with Does

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The Court of Appeal in California (Sixth Appellate District) has ruled in favor of Jason O’Grady in his dispute with Apple Computer. It’s a pretty resounding opinion (linked here (PDF)), covering a lot of ground, including trade secret, the Stored Communications Act, and various other issues related to whether a corporation can stop a publisher for disclosing information related to an intended product launch.

The Court held: “Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.”

An interesting passage, about the public interest in this case: “Apple first contends that there is and can be no public interest in the disclosures here because ‘the public has no right to know a company’s trade secrets.’ Surely this statement cannot stand as a categorical proposition. As recent history illustrates, business entities may adopt secret practices that threaten not only their own survival and the investments of their shareholders but the welfare of a whole industry, sector, or community. Labeling such matters ‘confidential’ and ‘proprietary’ cannot drain them of compelling public interest. Timely disclosure might avert the infliction of unmeasured harm on many thousands of individuals, following in the noblest traditions, and serving the highest functions, of a free and vigilant press. It therefore cannot be declared that publication of ‘trade secrets’ is ipso facto outside the sphere of matters appropriately deemed of ‘great public importance.'”

The NYT has more. As do Dave and Denise and Dan.

Emotional Legal Design

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Urs Gasser, prepping to head out to a Gruter Institute event at Squaw Valley (tough life), wants to know if you agree:

“I suggest that in-depth and cross-disciplinary research in the field of law & emotion will soon be complemented by a discussion about what we might call ’emotional legal design’, i.e., a discourse about the design principles aimed at guiding the future development of a legal system that takes the findings of law & emotion research serious.”

(Gruter, and Urs’ center on information law at St. Gallen, are key partners of ours at Berkman.)