Wired Magazine is reporting that the Judicial Conference of the United States, the body that develops policy for federal courts in that country, has proposed new model jury instructions that explicitly ban the use of applications like Facebook and Twitter:

“U.S. District Judge Julie Robinson of Kansas, the chair of the Judicial Conference Committee on Court Administration and Case Management, told the nation’s judges in a Jan. 28 memo that the new jury instructions ‘address the increasing incidence of juror use, of such devices as cellular telephones or computers, to conduct research on the internet or communicate with others about cases’. ”

“Robinson told fellow judges that ‘more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices’. “

There has been a growing number of incidents in the United States where lawyers have asked the presiding judge at a trial to disqualify a juror for misconduct or to declare a mistrial because of what jurors have posted on their personal blogs, Twitter accounts or Facebook pages.

There have also been concerns about jurors doing online research, “visiting” a crime scene on Google Earth or following Twitter or blog feeds written by reporters or others during a trial. Another concern: tipping off witnesses to proceedings in the courtroom before they testify.

The issue will be discussed at a panel on May 10, 2010 at the next annual conference of the Canadian Association of Law Libraries in Windsor, Ontario.

My blog has a few earlier posts on the topic:

• Impartiality of Juries Threatened by Web? (October 22, 2009): “Donald Findlay QC, one of Scotland’s top criminal lawyers, has warned that the impartiality of the jury system is at risk due to jurors using internet search engines and has warned that the Government cannot continue with its ‘ostrich-like’ attitude to the problem (…) “
• More Jurors Get Into Trouble for Going on the Net (December 13, 2009): “Last week, a Maryland appeals court upended a first-degree murder conviction because a juror consulted Wikipedia for trial information. Earlier this year, the appeals judges erased a conviction for three counts of assault because a juror did cyberspace research and shared the findings with the rest of the jury. In a third recent trial, a juror’s admission to using his laptop for off-limits information jeopardized an attempted-murder trial. On Friday, lawyers for Baltimore Mayor Sheila Dixon asked for a new trial in part because five of the jurors who convicted her of embezzlement Dec. 1 were communicating among themselves on Facebook during the deliberations period – and at least one of them received an outsider’s online opinion of what the verdict should be. ”

[Cross-posted to Library Boy]

On January 28, 2010, the Law Commission of Ontario and IP Osgoode held a Symposium on electronic medical records. The Symposium brought together experts from law, academia, health and other areas as part of the consultation that Professor Pina D’Agostino is carrying out in her project on the intersection of IP, ethics and privacy issues arising from electronic medical records. Professor D’Agostino is an Osgoode LCO Scholar in Residence and she is carrying out her project in association with the LCO. All these issues were discussed, with some passion in some cases, but so was a more fundamental question about the scope of e-health records.

There wasn’t really a debate about keeping electronic records, the issue was how widespread the network of records should be beyond the doctor’s office or other local network. For some people, medicine is locally delivered and it isn’t necessary to have more extensive networks. For others, a more extensive network, even a national network, can help patient care. Maintaining local networks can allow for more control (unless someone hacks it or someone is careless), but as a patient who has lived in three provinces and experienced my “local” and regular health care in more than one doctor’s office or clinic in each of those provinces (I am not even including having tests at different hospitals), the delivery of medical care hasn’t seemed “local” to me.

At the same time, the more extensive the network is, the more extensive the protocol for protecting privacy needs to be. Not an easy task. And privacy comes into play only if we know who owns that x-ray of my insides: me (probably the last on the list, it’s only my insides after all), the technician (whose skills allowed the best picture to be produced), the hospital or the doctor or the software company? As the least connected person at the Symposium (meaning with no expertise in the area at all), there only because the LCO is supporting the project and because of my innate curiosity which I’m able to feed through my work with the LCO, I left with my usual feeling that as we continue to develop digital practices and complicate the big business of intellectual property, those at the centre – those most affected – have the least control.

Interested in tax law developments? Davies has put out a clear and easy to understand publication “US and Canada Tax Law: What to Watch for in 2010.”

It reviews tax developments in the US and Canada from the past year, and it also provides perspectives on the key developments impacting the US and Canadian taxation of international companies and investors in 2010.

I understand from various sources that preparations are well advanced for the annual meeting of the Canadian Association of Law Libraries. Among other things, the meeting offers an invaluable platform for legal publishers and law librarians to share information with each other.

A key element of the preparation for the meeting is the annual request for information on the anticipated price increases that the library community can expect in the coming year. The issue of price increases is a critical element in planning and budgeting and gives the library purchaser a useful guideline for use in budget presentations and in making the decisions made to acquire, cancel or update subscription product.

At one time, the decision to discuss pricing trends at the CALL annual meeting was an innovative way of obtaining information from legal publishers. Over time it has become almost a ritual as gracious questions presented by law librarians in a respectful and unthreatening manner are responded to with vague generic answers by legal publishers. Perhaps the time has come to have a meaningful dialogue on the subject of pricing.

Price Trends 2010

Steven Mathews and Shaunna Mireau in an earlier post provided the following report based on information gathered from legal publishers on proposed 2010 price increases which every company except Irwin Law, SOQUIJ and Wilson Lafleur proposed to implement:

It is an established tradition for the Vendors Liaison Committee to share pricing trends at this time of year. Here are the various publisher price trend predictions that the Committeee has assembled:
Canada Law Book is advising a 3% to 6% price increase for print and electronic products.
Carswell price increases will be in the 5-7% range for print products.
CCH Legal/Business/Tax subscription products will increase approximately 3-9%. The price increase for Legal/Business books available in print should be in the 2-5% range and for our Tax books in a 5-10% range for 2010.
Éditions Yvons Blais price increase for books should be in the 3-5% range. The increase for online products is in the range of 3-7%.
Emond Montgomery Publications price increases will be selective and will not exceed 2-5%.
Irwin Law has no major increase planned. They continue to produce quality books at a fair value so that their authors get a decent royalty and the company gets a fair return. Books are shipped by Canada Post and therefore this cost will be affected by increases by Canada Post.
LexisNexis products will increase on average in the range of 4-5% next year.
SOQUIJ has confirmed they do not expect any increase for 2010.
Wilson Lafleur does not plan any price increases in 2010

Pricing realities

The information provided by the legal publishers raises a number of questions. First and foremost is whether the publishers in fact did increase their prices in the manner projected in 2009. Economic and market conditions have changed since those projections were made and prices in particular have been affected. The question generally assumed that there would be price increases, but was that the case? Throughout 2009 and continuing into 2010, the market for legal information has been characterized by intense competition as the major online publishers challenge each other for market share. It is arguable that price competition for online information is now a permanent feature of the market. In such circumstances, prices likely declined or remained unchanged.

Historically, increases in usage drove the annual price increases of online services. Usage figures are still something that publishers bring to the attention of customers when renewing a subscription but it no longer has the punch it once did. In today’s market, increased usage is more likely to be an argument for simply maintaining a subscription that might otherwise be cancelled.

What constitutes a price increase? In the online environment, that is a valid question. If a publisher provides significantly more content and improved functionality for the same price, or at a slightly higher price, the reality is that the price of the component parts is effectively reduced. In the current market, price increases for online products are usually accompanied by a significant increase in the content made available to the customer. Is a price change of this character really an increase in the price?

Prices vary by publisher expectations and by product type

The publishers objective with respect to pricing varies by product. Is the publisher seeking to grow revenue by selling more copies? If so, the price will have to be attractive to the customer. Think of the three main English language annotated criminal codes that offer more and more content at the same price year after year. Statute consolidations are also constant in price.

Alternatively, the publisher may view a product as a mature product that has a limited life expectancy. Pricing theory suggests that such products be harvested for all they are worth in the short term because there will be no long term. Many print law reports fall into this category. Simply calculate the amount that is charged per case in every bound volume and compare the cost of accessing that same case in any other format. The difference is staggering.

The publisher may be seeking to “inspire” the customer to migrate from one format to another. In such a case, the price may vary dramatically according to the format. The major legal encyclopedias cost more in print than they do online. CD ROMs on the other hand are generally included as give aways with the print.

New publications and new editions of existing publications

The question that needs to be asked regarding new print treatises, or new editions of established treatises, is not whether there is a price increase of some kind, but rather how the publisher establishes its base price for treatises and monographs. In general, the price is based upon a combination of a price per page with an estimate of the number of copies certain to be sold. The per page price of a new editions of established treatises by major authors are generally at the higher end of the scale. It is a legitimate question to ask what is the per page price being charged for a publication. With a baseline established, it is then possible to determine if there has in fact been a significant increase in the price of secondary content year over year.

When I was active in legal publishing, I always wondered why law societies and bar associations were exempted from the survey on prices. In general, they have the highest per page prices with the lowest level of editorial value added. These publications are used as a source of revenue for the organizations that publish them and represent a significant part of the budget of many law firm libraries. Consideration should be given to including them in this year’s survey. CANLII/LexUM might also be a candidate if in fact there is any plan to add a complementary fee for service component to their product line, as is rumoured in publishing circles.

New ideas on pricing?

Do publishers or librarians have any new ideas on pricing? Given the current economic conditions and the pressures faced by both law libraries and legal publishers, it might be desirable to consider new approaches to pricing. Some ideas that I previously have suggested include the following:

On the publishers side, why not introduce once a year annual updating of the entire contents of a loose leaf service for a fixed price? Why not offer to update all of an institutional library’s looseleaf holdings on an annual or biannual basis for a fixed price? Why not do the same on an annual basis for new hard bound titles?

On the libraries side, why not assess your information needs and approach publishers for new deals for updating entire collections of loose leaf services in print?

At the end of the day…

In my experience, the answer to any questions about price increases is always a political one. Publishing executives meet, consider the matter with care and make a careful decision to say what any price increase will be, or whether there will be any price increase at all. An announcement is then made of a figure that the publisher believes will be acceptable to the research community. More often than not, the figure is forgotten until the following year at CALL when the question is asked again.

Actual prices are set for most products on an ongoing basis throughout the year and reflect the revenue needs of the executives and the businesses more than anything else. Overall, I believe that average pricing including both print and online in 2009 fell short of the publishers projections and will do so again in 2010. When everything is taken into account, prices were likely flat year over year and revenue growth for legal information publishers was marginal at best. However, that is not information that most legal publishers would be prepared to share.

In any event, the reality is that pricing is ultimately determined by what the publisher believes to be what the market will bear. These days, that is not very much.

I’m not sure whether it was the interception Peyton Manning threw last night, or my work earlier in the day trying to get my notebook to talk to my new router, but this week started looking like it was all about failed connections:

Pharmacy Benefits Managers (PBMs), pharmaceutical companies and government payors have all expressed a shared goal: getting “the right treatment, to the right patient, the first time.”  Doing so would improve care (personalized medicine) and decrease costs (c0mparative effectiveness).  However, as industry players try to connect their employees, patients and customers with personalized treatments, they will sometimes be intercepted by the Genetic Information Nondiscrimation Act, other privacy legislation, or plain old public mistrust.

The EU has an established pathway for approving “biosimilars” — generic versions of complex biologic drugs, but with health reform stalled in the U.S., the biotech industry doesn’t know what will become of the biosimilars pathway that was set to be included in that legislation. 

But, as the week went by (despite being reuinted with my old router), I realized that for every Peyton Manning there is a Tracy Porter:

PBM giant Medco aims to overcome misunderstanding and mistrust with its purchase of DNA Direct this week.  DNA Direct uses its research on 2,000 available tests to help physicians, health insurance companies and patients understand how to use personalized medicine. 

Teva is a winner even with health reform stalled, since it filed a full biologics license application (BLA) for Neupoval last year.  The BLA asks the FDA to ignore the fact that Neupoval is a copy of Amgen’s already-approved drug Neupogen and treat Neupoval as if it was an entirely new drug.  This week, the FDA accepted Teva’s filing for review, allowing the company to proceed without needing new legislation (though Teva is still a long way from the plane of the goal line).

The moral of this week’s story is: “politically fragile biosimilars pathways are best ignored”… or “education is the key to personalized effectiveness”… or maybe “every cloud has a silver lining.”  Yep, that’s it.  So, stay tuned to the Cross-Border Biotech Blog for regular packets of optimism (even though they still mosey along at 54Mbps).

I’d like to share a new website we soft-launched today for our client Jonathan Rosenfeld.  As you can probably guess from the URL, the site is US-based and provides State-by-State collections of Nursing Home injury laws.

Our approach to this website was a bit different than we normally take.  Right from the outset, we considered it a collection rather than simply another lawyer website.  On the design side, the interface is very browse-centric, with a map graphic driving the homepage navigation.  Once you drill down into the State pages (See Illinois as an example), the site identifies negligence and wrongful death laws, and whether there is an applicable Statue of Limitations or Damages Cap for each State.  These pages also include links to State laws, general resource links, and any related posts from Jonathan’s blog.

This is project we’ve been working on for a few months now, and stemmed from Jonathan’s wanting to do “something different”.  He already had a blog, along with one of our FAQ collections, and wanted to carry forward with a similar approach.  As many Slaw readers can guess, personal injury law can be a very difficult practise to market. Especially when the goal is to avoid digital ‘ambulance chasing’, and to promote oneself  in a professional manner.

Like most websites, this offering will continue to be a work in progress.  If you have feedback on features or content that might be added, I’m happy to hear suggestions.

Here’s a screen capture of the homepage:

Nada Khirdaji has an interesting piece on her transition from legal research skills in law school to research skills in practice in CCH’s law student monthly,

Law school helped me to think like a lawyer, but it was only in practice that I began to appreciate the essential role of legal research. In fact, much to my chagrin, I remember derisively dismissing an optional course in advanced legal research on the assumption that it would be of little use to me.

I am now a research lawyer. Everything that I know about legal research I learned in practice. I am a generalist (with a growing specialization in class actions) and I provide legal advice in all areas of my firm’s practice. I write opinions, memoranda and facta, among other things. I am constantly asked to provide answers in areas of law that I know virtually nothing about.

Her tips are pretty useful, considering how quickly students and recent grads turn to databases and resources that are not always the most cost-effective or efficient.  The implications of a more streamlined research work process is better service for the client, and less stress on the young associate.

I don’t think we’ve yet pointed you on Slaw to the Avon Global Center for Women and Justice at Cornell Law School. Among its various functions is the provision of legal resources “such as international laws, domestic laws, articles and reports on gender-based violence.

You’ll find the relevant documents from the United Nations, as well as those from the various and lesser-known (here) regional organizations, such as the Economic Community of West African States and the South Asian Association for Regional Co-Operation.

The Center also offers student research assistance to judges confronting issues of gender-based violence, though whether the offer would extend to judges outside the United States is unclear.

[via beSpacific]

If one has a weak password for one’s web-based personal information, is it reasonable to conclude that one has a reduced expectation of privacy with respect to that information?

(Here’s an English list (from 2006) of the 10 most common password and a list of the 500 worst ones, from the point of view of security.)

If someone uses “password” as his or her password, should he or she really be able to claim some privacy interest in the information behind it?

What about file sharing? If one has files or folders or most of one’s computer accessible to peer-to-peer sharing, does one still have some expectation of privacy in the contents somewhere?

Does it matter that unauthorized use of computer resources is illegal? In a prosecution for that offence, one cannot claim authority because of a weak password. After all, it is illegal to trespass on property if there’s a plain, non-threatening sign saying ‘do not trespass’ or ‘keep off’, even without a fence. (For that matter, many trespass laws bar trespass if the trespasser ought to have known the property was private, even without a sign or fence.) Is trespass a good analogy for privacy infringement?

Presumably one does not sacrifice one’s privacy by using P2P just because some uses of P2P may violate copyright (and some don’t).

Enough speculation: do you know of any case law or privacy officer decisions based on such reasoning? I don’t, but maybe I haven’t looked hard enough.

I know that the various governors of the legal profession (law societies, bar associations etc) tend to say that use of email generally or even unencrypted email does not waive any expectation of privacy, and, more important (perhaps), does not negate any privilege in the documents communicated by this method. Lawyers are advised to discuss communications security with their clients (and the subtle advisors warn that the clients may not be very knowledgeable about that topic, and one can’t hide behind that ignorance to establish a permission); but the general rule is that ordinary, unencrypted email is OK. VPNs and Extranets are generally considered OK too — which takes us back to the first question: does it matter how secure the password protection is for such networks?

Any relevant case law on the legal profession’s share of the question?

In a February 4, 2010, article in the Toronto Globe and Mail about what is going to be a “high-profile” trial for murder, under the headline

 A shocking school slaying rendered sterile in court

Christie Blatchford, who should know better, complained that the Crown’s opening statement “managed to render murder dull.” She wrote:

This is modern Canadian justice, where even such a shocking killing is rendered sterile, the poor victim barely given a nod, all in the name, presumably, of a prosecution so measured that no one will ever again be wrongfully convicted – or at least not because a Crown attorney thundered inappropriately and inflamed a jury.

and

Against all odds, the real-life principals of Law & Order Canada, undoubtedly following all the correct legal principles to the letter, have managed to render murder dull.

“Presumably” to avoid wrongful conviction? “Sterile”? Sterile for whom? The judge? The jury? Certainly not for the judge. Ms. Blatchford might have had a point if her purpose was to suggest that that the opening was so dull that it might have resulted in the jury not paying attention. However, there’s no reason to believe that was her point. If it was, she didn’t say that. As such, I think it correct to conclude that she didn’t mean “so dull that the judge and jury missed the point”.

Would Ms. Blatchford have complained in the manner she did if the victim of the killing was an admitted serial killer?

With all due respect to Ms. Blatchford, trials should be dull (in the entertainment sense) and even more so trials for murder. The purpose the “Law & Order” TV franchise is entertainment not truth. The purpose of the real criminal law & order franchise – the justice system – is truth. 

It seems to me that, rather than complaining, the Globe & Mail and Ms. Blatchford ought to have commended the Crown for avoiding sensationalism, for honoring the standards of proper prosecutorial conduct in the pursuit of justice even if the result was that the Crown’s opening statement was, for her “dull”.

The comments about the article, on the Globe website, make the same points, albeit more pointedly and in fewer words. There are 5 shown under the “latest comments” heading.

Jurriaan de Reu recently mentioned the implications of Google Social Search for SEO.  The new Google feature will provide higher results based on the reviews and commentary of your friends on various social media platforms.

Essentially this is the same concept as the traditional word-of-mouth marketing, but conducted online instead.  When someone mentions their experience with a specific product, brand or service (including lawyers) on a social media platform, their contacts will get those informal reviews at the top of their searches when looking for similar topics.

A video of how it works can be found here.

The feature will only work if you are logged into your Google Profile account, but as the company increasingly becomes the one-stop shop for everything, including e-mail, calendar, video, maps and more, that will almost become standard practice.

De Reu concludes,

The new Google feature will therefore not only have a great impact on SEO itself, but also on a company’s online reputation. Connections on social media platforms will be even more influential in the information we use to make decisions as whether to book a flight with airline A or B, or to trust our savings with bank C or D. Yet another reason to start listening what these contacts are saying online and built relationships that help to give them the best online customer experience you can offer.

Updates

The Wall Street Journal reports that Google might be getting into the social media game directly:

Google Inc. is taking a swipe at Facebook Inc. with a new feature that makes it easier and faster for users of Gmail to view media and status updates shared by their friends.

Google could announce the new Gmail feature as soon as this week, said people familiar with the matter. A Google spokeswoman declined to comment.

Two weeks ago, while watching the NFL playoffs, I upgraded the OS on my home laptop (a Lenovo T60p) to Windows 7 Professional from Vista Business. 

The upgrade went quickly, smoothly, and without a hitch.  I haven’t had a problem since. The screen image from the instructional video – which I have yet to need – was captured with the Windows 7 native  screen capture tool, called the “Snipping Tool”.  It’s very easy to use.

When will I recommend that move at the office, where all of our machines run on Windows XP? Where the common core of all of our Microsfot software does not yet include any flavour of Office 2007 software? Not tomorrow, anyway, but that’s  nothing more than a current “don’t fix what ain’t broke” premise when there’s, as yet, no need to begin. 

In that vein, the two new laptops I ordered both have Win XP installed and the word processing software will be the Office 2003 suite. Bear in mind that we do not have internal IT support – other than yours truly who’d prefer not to.

Even assuming one’s (computer) hardware is sufficient to run the Win 7 OS effectively, one of the current “inconveniences” in moving from Win XP to Win 7 is that it requires what is called a “clean install”. You can’t just install Win 7 over Win XP, with the installation process saving all of your existing settings. The installation process essentially wipes out what you had so that you will have to reinstall everything: applications and data.

That issue may well be the killer for many firms (law and otherwise) who do not have to upgrade, immediately, on a firm wide basis. This link is to an ABA Journal article that discusses some of the issues involved in the decision to upgrade.  The article’s conclusion is:

With Windows 7 there are many positives, but I suspect the compelling reasons for a move (and they are important) will be the end of life of an aging XP and transition away from or avoidance of Vista.

If you plan to stay in the world of Windows, Windows 7 will likely be in your future sooner than later. You will want to do your homework, make a realistic plan and create an environment where success is likely.

When will you do so if technology is part of your mandate, your office runs on a Microsoft platform and the time comes to update?

Now for the relevance of the “truth in blogging (not)” part of the title to this post. Consider this recent review of the ABA article on  a  ”law marketing” blog whose proprietor asserts the sort of claims about successful advice that one would expect from a “law marketing” blog, successful or not.  The caption for the post is “Why Windows 7 Will Bomb In Law Firms”. The second reason the blogger provides, including a quotation from the ABA Journal article  is:

There is no compelling reason to get Windows 7. “As I researched this article, I actually found it difficult to put together a list of compelling features that might motivate someone to pay money and move,” Kennedy wrote

(emphasis in original)

Now let’s see what Mr. Kennedy wrote, which puts that quotation  in context.

However, for most people, Windows XP just worked. There was simply no compelling reason to move, and to this day it is difficult to point to specific features in Vista that would motivate the average user to move from XP.

This “lack of compelling feature” issue might also prove to be a problem for Windows 7. As I researched this article, I actually found it difficult to put together a list of compelling features that might motivate someone to pay money and move.

On the other hand, Windows XP, released in 2001, is nearing its end of life. It’s quite old in operating system years, and it has its own set of issues. For example, instead of getting a cup of coffee the next time you start up XP, take a stopwatch and see how long it takes to fully boot up.

I suggest you read the ABA article for yourself.  As to the “law marketing” blogger, well, maybe he is as successful as he claims to be. I have no idea. And less interest in finding out.

Those who aren’t Apple iPad “icolytes” will enjoy this  YouTube video and probably agree with this article. Those who are the former should, too, even if they don’t agree.

Ahem, Steve: the idea is to go smaller, not bigger.  You can call me when you develop a folding iPad, like this or better, like this.

My view, for now? The iPad is too big to play “closies” with, even if I could find another adult who  remembers how to play the game. And a paper matches book is a cheaper and better solution for a wobbly restaurant table leg.

Addendum: On the third hand, is the iPad proof that Moties exist? Is Apple hiding a caste of Motie “Engineers” or “Watchmakers”?

♫ Everytime I turn around
Something don’t feel right
Just might be paranoid..♫

Lyrics and music by: Nicholas Jerry Jonas, Joseph Adam Jonas, Paul Kevin Jonas II, Cathy Dennis, John Fields, recorded by The Jonas Brothers.

I guess it was just a matter of time. IT World posted an article today by Steven J. Vaughan-Nichols (sjvn@vna1.com) entitled: “Can you trust Chinese computer equipment?”

While this may seem like the musings of a hyper-active Homeland Security Department, it is based on MI5’s report in The Times Online “China bugs and burgles Britain” that the Chinese Government has given British executives equipment with security holes.

The Times Online article contains a chilling paragraph in discussing a report on these incidents:

Written by MI5’s Centre for the Protection of National Infrastructure, the 14-page “restricted” report describes how China has attacked UK defence, energy, communications and manufacturing companies in a concerted hacking campaign.

It claims China has also gone much further, targeting the computer networks and email accounts of public relations companies and international law firms. “Any UK company might be at risk if it holds information which would benefit the Chinese,” the report says.

It would seem that there is no reason to suspect that if this behaviour is going on, that it would be restricted to UK companies and executives.

The Times further states:

In 2007 Jonathan Evans, the director-general of MI5, had written privately to 300 chief executives of banks and other businesses warning them that their IT systems were under attack from “Chinese state organisations”.

There have been unconfirmed reports that China has tried to hack into computers belonging to the Foreign Office, nine other Whitehall departments and parliament.

Well – instead of trying to hack your way in, what better way to get into sensitive data than by placing the trojans directly into the computer equipment being manufactured in China? That is the thrust of the IT World article.

For anyone who handles confidential data, and here I am speaking of lawyers in particular, (such as those who handle proposed mergers and acquisitions, sensitive patents and other commercially-valuable transactions) the thought that we may be using equipment that allows a foreign government to read the secrets of our clients is a real threat to client confidentiality and commercial activity. Our clients may have first-class computer security surrounding their sensitive commercial information, but can they rely on their lawyers to have equally robust security systems?

Most people would scoff at this, stating that international companies would not build such trojans and back-doors into their hardware.

However, Bruce Schneier, a security expert in an essay entitled: “Technology Shouldn’t Give Big Brother a Head Start” states:

But that’s not the most serious misuse of a telecommunications surveillance infrastructure. In Greece, between June 2004 and March 2005, someone wiretapped more than 100 cell phones belonging to members of the Greek government — the prime minister and the ministers of defense, foreign affairs and justice.

Ericsson built this wiretapping capability into Vodafone’s products, and enabled it only for governments that requested it. Greece wasn’t one of those governments, but someone still unknown — a rival political party? organized crime? — figured out how to surreptitiously turn the feature on.

I don’t know about you – but something don’t feel right..I just might be paranoid.

The first Friday of February is a tradition at Dalhousie University which I’ve mentioned previously here at Slaw. The first Friday in February is Munro Day, a Dalhousie holiday in honour of the benefactor who rescued the university from a precarious financial position in 1879. This time there is a short video to go along with the Munro Day link celebrating Dalhousie’s rich history. In the spirit of George Munro, last fall Seymour Schulich made a transformative donation to the Law School at Dalhousie University which has since been renamed the Schulich School of Law at Dalhousie University. Part of that generous donation enabled students at the Schulich School of Law to benefit in the form of substantial scholarships, so it somewhat fitting that the list of the students who have received those scholarships this year have been named just in time for Munro Day. Congratulations to this year’s Schulich Scholars!

One of the great funny men of all time, in my opinion, was George Carlin — he’s famous for his Seven Words You Can Never Say on Television, the “hippie-dippie weatherman,” and many trenchant routines satirizing the powers that be.

Towards the end of his life he had a routine about being “a modern man, a man for the millennium.” It consisted of a lengthy string of clichés delivered at a machine-gun pace from memory without a slip, a true tour de force.

Here’s the video, followed by a transcript so that you, too, can practice telling the world who/what/how you are.

I’m a modern man, a man for the millennium. Digital and smoke free. A diversified multi-cultural, post-modern deconstruction that is anatomically and ecologically incorrect. I’ve been up linked and downloaded, I’ve been inputted and outsourced, I know the upside of downsizing, I know the downside of upgrading. I’m a high-tech low-life. A cutting edge, state-of-the-art bi-coastal multi-tasker and I can give you a gigabyte in a nanosecond!
I’m new wave, but I’m old school and my inner child is outward bound. I’m a hot-wired, heat seeking, warm-hearted cool customer, voice activated and bio-degradable. I interface with my database, my database is in cyberspace, so I’m interactive, I’m hyperactive and from time to time I’m radioactive.

Behind the eight ball, ahead of the curve, ridin the wave, dodgin the bullet and pushin the envelope. I’m on-point, on-task, on-message and off drugs. I’ve got no need for coke and speed. I’ve got no urge to binge and purge. I’m in-the-moment, on-the-edge, over-the-top and under-the-radar. A high-concept, low-profile, medium-range ballistic missionary. A street-wise smart bomb. A top-gun bottom feeder. I wear power ties, I tell power lies, I take power naps and run victory laps. I’m a totally ongoing big-foot, slam-dunk, rainmaker with a pro-active outreach. A raging workaholic. A working rageaholic. Out of rehab and in denial!

I’ve got a personal trainer, a personal shopper, a personal assistant and a personal agenda. You can’t shut me up. You can’t dumb me down because I’m tireless and I’m wireless, I’m an alpha male on beta-blockers.

I’m a non-believer and an over-achiever, laid-back but fashion-forward. Up-front, down-home, low-rent, high-maintenance. Super-sized, long-lasting, high-definition, fast-acting, oven-ready and built-to-last! I’m a hands-on, foot-loose, knee-jerk head case pretty maturely post-traumatic and I’ve got a love-child that sends me hate mail.

But, I’m feeling, I’m caring, I’m healing, I’m sharing– a supportive, bonding, nurturing primary care-giver. My output is down, but my income is up. I took a short position on the long bond and my revenue stream has its own cash-flow. I read junk mail, I eat junk food, I buy junk bonds and I watch trash sports! I’m gender specific, capital intensive, user-friendly and lactose intolerant.

I like rough sex. I like tough love. I use the “F” word in my emails and the software on my hard-drive is hardcore–no soft porn.

I bought a microwave at a mini-mall; I bought a mini-van at a mega-store. I eat fast-food in the slow lane. I’m toll-free, bite-sized, ready-to-wear and I come in all sizes. A fully-equipped, factory-authorized, hospital-tested, clinically-proven, scientifically- formulated medical miracle. I’ve been pre-wash, pre-cooked, pre-heated, pre-screened, pre-approved, pre-packaged, post-dated, freeze-dried, double-wrapped, vacuum-packed and, I have an unlimited broadband capacity.

I’m a rude dude, but I’m the real deal. Lean and mean! Cocked, locked and ready-to-rock. Rough, tough and hard to bluff. I take it slow, I go with the flow, I ride with the tide. I’ve got glide in my stride. Drivin and movin, sailin and spinin, jiving and groovin, wailin and winnin. I don’t snooze, so I don’t lose. I keep the pedal to the metal and the rubber on the road. I party hearty and lunch time is crunch time. I’m hangin in, there ain’t no doubt and I’m hangin tough, over and out!

An English court has refused an injunction against the publication of the story of an alleged affair between a well-known football player and a teammate’s girlfriend: Terry v. Persons Unknown [2010] EWHC 119 (QB).

English law has recently given a good deal of protection to the privacy of celebrities, so some people have wondered if that protection is being reduced by this decision. Out-law.com says No.

One of the reasons (among several) for refusing the injunction in this case was that the application appeared to aim at protecting the player’s commercial sponsorships, rather than in protecting his feelings (which are described as ‘robust’). The court distinguished between protecting privacy, which is OK because mentioned in the European Convention on Human Rights, and protecting reputation, which was not entitled to the same deference.

Given PIPEDA’s focus on commercial use of personal information, is this a distinction that would prevail in Canada? Does it make sense anyway?

And should the court have cared about the privacy or reputation of the other party to the alleged affair, though she was not a party to the application for an injunction?

A Times-Colonist report reveals the outdated, inconsistently applied, and sometimes mis-applied access to court records policy in a number of BC courts. It seems BC is way behind the curve on this, as compared to the rest of Canada. Today’s article is only the first of a four-part series. The article includes a link to an interactive Googlemap.

Reaction has been swift:

Associate Chief Judge of the BC Provincial Court

BC Judges

And here is a Google News search that should follow the issue.

From the people who brought you Hovercards before Twitter — indeed, before they even had a name — now comes “Save as PDF.” We’ve added a small link below each post in the “Share:” section that invites you to download that post as a PDF file. Now you can collect all of your favourites in a format that lets you file them, search them, make them larger or smaller, and generally enjoy the heck out of them offline. And notice, we placed it before the “Print” button — because we like saving trees.

Hovercards? Well, in case you hadn’t noticed: if you run your cursor over the name of a Slaw author, you’ll see a mini-bio pop up. We want you to know who’s who, and this way you don’t even have to remember. Seems Twitter had the same idea. Oh well.

If we’re at all edgy here at Slaw, it’s likely to be at the lip of the technology cliff that we’re writing. But a small piece in today’s Globe and Mail sent me hareing off to the edge of the known world of rights. The article referred to the fact that Switzerland had recently changed its constitution to protect the dignity of plant life, which, if true, would take the already difficult business of rights one step beyond Lemmings’ Leap.

What’s put the Swiss Republic into the news this time is an upcoming popular referendum (March 7) on whether domesticated animals should have legal representation under certain circumstances. I’ve been unable to find the wording of the initiative, but you can read the Swiss federal government arguments against it [PDF]. Laws aimed at bettering the condition of animals are nothing new, of course, though it is said that the current Swiss laws already go beyond what is usual in Western countries. Indeed, the canton of Zurich has appointed an “animal advocate.” Antoine F. Goetschel has a general practice, only part of which consists of looking after the rights of fauna.

Princeton philosopher Peter Singer has been arguing for animal rights for decades, his most influential work being Animal Liberation. A utilitarian, Singer maintains that animals should be included with human beings when considering what is the greatest good for the greatest number. Unsurprisingly, his views have been challenged, particularly by those in law, because, although his view of rights is not the same as that used by lawyers, the focus in law on the rights of individual human beings makes his views difficult, certainly at the extremes. It’s well worth it to go back to 2001 and look at the Singer / Richard Posner debates in Slate Magazine, in which Posner had the last word, literally:

I wish to end by recording my high personal and professional regard for you. I admire the clarity of your thought and your intellectual courage in pursuing the logic of your philosophy all the way—to its unacceptable conclusions.

Plants, however, are another matter. After you’ve become a vegetarian, there’s nowhere else to go. Or is there? And what, exactly, does the Swiss constitution say about plants?

Article 120 concerns itself with “Non-human gene technology” (so it turns out to be the techcliff we teeter on, after all), and it says in full:

1 Human beings and their environment shall be protected against the misuse of gene technology.

2 The Confederation shall legislate on the use of reproductive and genetic material from animals, plants and other organisms. In doing so, it shall take account of the dignity of living beings as well as the safety of human beings, animals and the environment, and shall protect the genetic diversity of animal and plant species.

It is the “dignity of living beings” passage, given the rest of the paragraph, that has been interpreted as being inclusive of plants. Me, I’m not so sure that’s the right interpretation, though English is not an official language, so I’m looking at a translation. The original German, French, and Italia of the key phrase are as follows: Würde der Kreatur; l’intégrité des organismes vivants; dignità della creatura (the Rumantsch version appears not to be available online).

But I’m also not as “scandalized” as I might have supposed I would be by the notion that plants have, or should have, “dignity.” (The Swiss federal constitution, by the way, repays reading, particularly the lengthy portion on rights.) To get a sense of where the tree huggers are coming from — or going, I suppose — take a look at The Dignity of Living Beings With Regard to Plants: Moral Consideration of Plants for their Own Sake [PDF], by the Federal Ethics Committee on Non-Human Biotechnics. This is a remarkable document, clear, rational and thought-provoking.

The image below is the “decision tree,” meant, as the document says, to be an aid to understanding the structure of the discussion in the Swiss publication. (Click on it to see an enlarged version.)

Some of the unanimous or majority conclusions reached by The Committee are as follows:

1. Arbitrariness: The Committee members unanimously consider an arbitrary harm caused to plants to be morally impermissible. This kind of treatment would include, e.g. decapitation of wild flowers at the roadside without rational reason. . . .

3. Ownership of plants: For the majority . . . plants – as a collective,asaspecies, or as individuals – are excluded for moral reasons from absolute ownership. . . .

5. Patenting: For the majority the ethical justification of patenting plants is a qustion of social ethics. It is not one involving the consideration of plants for their own sake and therefeore not the object of this discussion. . . .

7. Proportionality: A majority considers any action with or towards plants that serves the self-preservation of humans to be morally justified, as long as it is appropriate and follows the principle of precaution. . . .

The Tucson Citizen has published what they call a ‘wordless editorial’, which I’ll presume to be commentary on the US Supreme Court’s recent decision on corporate political spending.

The single image offered is replicated below:

There is an excellent article over at the Stream comparing the electronic sources of the English Reports. Just like Drew Jackson, I love it when someone asks me for a case I know is one of the weird citations that are incorporated into the E.R.’s. I always feel like a superstar, which helps balance the “I have no idea what I’m doing” moments.

We have talked about the HeinOnline and CommonLII sources of this data on Slaw.

The usefulness of these, and other digitized collections of aging print, hit home for me this week. I was looking for some old (1800’s) ministerial orders, and thanks to some excellent assistance from the staff at the Alberta Legislature Library, found them. Unfortunately, the collection was extremely fragile and the material was unable to be copied. The only option for collecting the data for research use was to take a photograph of each page. Perfectly reasonable, given the fragile nature of the resource; somewhat impractical for my purposes. Is your organization prepared for this type of scenario? Do you have a ready source of a high resolution camera for quick retrieval of fragile material?

Thankfully, I did not need to retrieve the items in the end. I have learned that it is a good idea to have a plan for this scenario. My print collection of English Reports is “read in library – do not photocopy”. They are still on the shelf because they are beautiful, and fortunately not too fragile – yet.

As everyone will doubtless know, the Supreme Court of the United States ruled against permitting the District Court for the Northern District of California to broadcast on YouTube the challenge to California’s Proposition 8, as had been originally planned. That doesn’t mean that the screen’s gone blank, though. Cunningly, MarriageTrial.com is filming a re-enactment using transcripts from the actual trial (transcripts you can download so you can sing along!).

The MarriageTrial.com site currently offers you Episode 1 in 3 Chapters, essentially giving the opening statements of the various parties. As well there are a couple of summaries to bring you up to speed, and a marvellous cast of characters, with photos of the actual personnel and their actor doubles.

You may find you’ll want to watch this on YouTube, using the links on the MarriageTrial site, because the HD version is available there. Chapter 1 starts off, well, slow — but you’re in the biz, so you know all about slow — however, if you’re impatient to get past the judge’s opening about the rules and the issue of filming, go to minute 15 for the first witness.

For what it’s worth, I think this is a brilliant idea and something of a raspberry directed at SCOTUS. The acting is serious, the language authentic, and the setting completely believable.

For the record, I don’t intend to buy one. At least, not for a few more years and not until the inevitable upgrades, improvements, fixes, and content distribution changes have run their course. But well before the iPad 3.o arrives, the original version will have had a serious impact on the computer industry, on the production and distribution of content, and yes, on the legal profession.

I won’t recap everything that’s been said about the iPad in the mainstream and legal communities — Reid Trautz and The Wired GC have two solid takes — but it’s worth noting that the reaction has been mixed (and not just to the name, which I think will fade to non-issue status in relatively short order). The iPad has been criticized for its failure to shift paradigms, to be the next big thing that the iPhone was. It’s just a small Netbook, or a big iPod Touch, say the critics: not a game-changer, not everything it could have been. So let’s start with a quick word about what the iPad does appear to be.

The iPad is a mobile content consumption device. It isn’t optimized to play music, record videos, create documents, take photos, make phone calls, or do any of the other functions whose absence has been criticized. I suspect that’s for two reasons. One, Apple already has a fleet of devices that do these things very well and has no interest in rendering them redundant or obsolete. And two, the convenient consumption of content is actually an extraordinarily deep and rich field that no one has, up until now, really set out to harvest. The iPad is optimized to allow its owner to access as much content as possible as easily as possible: it’s light enough to carry around with ease, equipped with a screen big enough to read with ease, and set up to access the internet with ease. That’s an immensely powerful functionality, because when people are able to get whatever they want easily and conveniently, it changes all their expectations and creates completely new standards of service and satisfaction.

That’s all well and good, you say. But does the arrival of the iPad mean anything for the legal services marketplace? I think that in three different ways, the answer to that question is yes.

1. Mobility. In the beginning, there was the briefcase. If a lawyer had to venture outside the cozy confines of his law office, he stuffed the relevant papers and books into a briefcase and set off (if he was heading to a trial or discovery, a junior would trundle after him pushing a mini-trolley stacked with boxes). Then came the laptop, which allowed the lawyer to carry not just the relevant files for his case, but also all the files in his office. And now has come the iPad, which will allow the lawyer to access everything he has ever produced in any location (through MobileMe or DropBox) and on the entire internet. Through each evolutionary stage, the lawyer can transport more and more information on ever-smaller and lighter items, until he gets to the point where he is essentially a walking law firm.

So I think the one trend that the iPad will really accelerate is the movement away from the physical plant of a law firm. Manufacturing still requires workers to come together in a centralized factory, but the same can’t be said of knowledge industries like law. There are fewer and fewer reasons for lawyers to come to work every day in the same facility — physical law libraries are dwindling, files and documents reside on servers or in clouds, and smartphones have untethered lawyers from offices and landlines. As hourly measures of productivity begin their long decline, “face time” at the firm will become less important. Collaboration, the benefit most often touted for lawyers’ proximity to each other and the key to future legal services, is and will be possible through multiple means, most of which involve distance. The iPad, along with its coming competitors and future iterations, has a good chance of being the watershed technological development that finally does away with “four walls and a door” as the default definition of a law office.

2. Publishing. As noted above, the iPad is designed for the consumption of content, not the creation of it. Lawyers create more content than the average professional and tend to consume somewhat less, but what they do consume is largely the work product of legal publishers: case law reports, legislative updates, legal research databases, leading texts, legal periodicals, and so forth, all constitute the heart and soul of legal publishing houses. The iPad is a mobile reader with internet access, and the obvious way in which lawyers will use this device is for these sorts of materials. This will fundamentally change the way in which legal publishers go about distributing their content, just as the iPad will change (and is already considered the only viable option to stop the collapse of) consumer newspapers and magazines.

The thing about legal information is that you need it when you need it, not when you can get back to the office or find a wi-fi spot for your laptop. Hence the appeal of legal research tools for mobile devices: just before the iPad premiered, FastCase generated a lot of buzz in the blawgosphere by announcing a free legal research app for the iPhone. But the iPhone, as even its adherents will admit, is too small to be used for extensive text review (and the BlackBerry even more so). The iPad promises to make legal information instantly accessible and convenient to read (there are those words again), and it won’t be long before lawyers start viewing mobile electronic access as the default format for legal information and reject printed materials that will seem bulky and cumbersome. How soon will this happen? If nothing else, give it three years for the current crop of law students, who will be among the profession’s earliest iPad adopters, to make their way into practice, then see what happens. That’s three years in which legal publishers need to shift their internal processes to accommodate new delivery, pricing and updating mechanisms for their content.

3. Design: Last fall, The Economist ran an article (subscription required) about the coming battle among Microsoft, Google and Apple for supremacy in cloud computing. Each of the contenders has an advantage: for Microsoft, it’s money (although neither Google nor Apple are exactly cash-poor), and for Google, it’s technology (although again, smart people abound in all three companies, as well as in dark-horse contenders like Amazon and Facebook). But if I had to bet on a winner — if not in the cloud, then in the industry generally — I’d say it’s Apple, for only one reason: design. Apple beats Microsoft, Google and every other competitor when it comes to the user interface — or, more colloquially, the customer experience. People enjoy using Apple products, and “enjoy” isn’t a word you normally associate with technology. At the end of the day, money, brains, functionality and so forth become ubiquitous and undifferentiated, such that your killer app can be topped almost before your new product is on the shelves. But a great user experience is a game-changer: not only is it hard to replicate, it almost inevitably leads competitors to imitate rather than fight.

You can probably see the application to law firms. With few exceptions, lawyers are very smart and law firms are very good at delivering legal services. “Excellence” isn’t a competitive advantage in the law and hasn’t been for decades. So firms look for other ways to stand out from the crowd. Unfortunately, extremely few succeed. Law firms almost all go about their work exactly the same way: they pitch clients the same way, go about their tasks the same way, bill their work the same way, treat their clients the same way. Any client who has had the opportunity to sample the offerings of multiple law firms can attest that, for all practical purposes, they really are all the same. No wonder clients, especially these days, are so focused on price and especially on predictable fees: they’re hunting for something, anything they can use to justify choosing one law firm over another.

There’s only one silver bullet here — only one thing that a firm can do that its rivals can’t match and its clients will love: the customer experience. From marketing to client intake to processes to results to invoices to follow-up, how a firm relates to its clients throughout the life of a retainer is the most important element of all. The design of your firm — the experience your clients have before, during and after retaining your services — is critically important, because it’s unique to your firm, it’s 100% focused on the customer, and it can’t be copied or imitated. My Edge International colleague Gerry Riskin wrote about this more than three years ago in an article called “Intelligent Design for Law Fims“:

You’ve heard of practice management — but do we discuss “Practice Design”? Not yet. If law firms truly want to capture the attention of the marketplace, to stand out for all the right reasons, they need to start thinking more about how they present themselves to the market and how they deliver their services. By committing time and resources to law practice design, innovative firms would open up whole new frontiers of competitive advantage over their rivals.

Apple doesn’t get everything right, but it does make sure that everything it makes and everything it does puts the customer experience front and center. How many law firms can honestly say that? How many lawyers can say, and back it up with evidence, that the ways in which they work, communicate and bill their services are designed and delivered with the client’s complete personal satisfaction in mind? If your firm wants to have a fighting chance at making it through this coming decade in one piece, then it needs to take a lesson from Apple: design matters. If the customer is delighted, you win.

The iPad doesn’t do everything, but it doesn’t need to. It does what it does really well, and it makes its customer feel good doing it. There are a lot worse mottos your law firm could adopt.

Legal publishers pairing themselves with applications that embed their subscription-based resources isn’t new. West KM does it, as does LN’s Quickfind.  Now out of LTNY we hear about the latest tool addition, Lexis for Microsoft.

Do these tools add valuable functionality for firms? Even if we hesitate on a few of them, the overall answer is probably ‘yes’.  But an issue that seems rarely talked about is that of usage rates – the measure by which most flat fee pricing for online database services is based.  The end effect of many of these tools is that they drive up your usage numbers, and then come contract renewal time, firms are forced to negotiate larger than expected price increases with vendors.

I write this only as a factor for consideration: even ‘free’ tools come at a cost. And if you’re negotiating a multi-year contract, you may be paying for years to come.

I just read Ted Tjaden’s post about Ontario courts assuming jurisdiction over out-of-province defendants.

Professor Janet Walker, of Osgoode Hall Law School, is preparing a report on this issue. She undertook the project as the inaugural OHLS LCO Scholar in Residence at the Law Commission of Ontario. This is not officially an LCO project (it was not approved as a project and its recommendations will not be subject to approval by the LCO’s Board of Governors), rather the LCO has supported the project by posting on our website, facilitating consultation, translation into French and will issue the final report. The final report should be released soon, but in preparation you can read her consultation paper (with suggested draft language) on codification of when Ontario courts should assume jurisdiction on the LCO’s website.

Last year a California class action suit resulted in a settlement where each class member received a $10 gift card from the defendant store.  The settlement called for the plaintiff’s lawyer to get $175,000 125,000 (sorry -typo)

The judge who approved the settlement didn’t like it, and ordered the lawyer to also take payment in $10 gift cards from the store.

Boing Boing refers to a post on the Lowering the Bar blog that says that judge has been disciplined for that by the state Commission on Judicial Performance.

No word on the fate of the lawyer’s gift cards.

We’re all working so hard on legal work right now in mid-winter cold and darkness that I thought it’d be fun to write something subversive. Maybe you’re at your breaking point and need a little musical inspiration to convince you to permanently log off of Quicklaw, hand in your security pass and make a break for truth and enlightenment? Here is a list of songs about getting back to the roots or “going country.”

Think nice thoughts for the rest of us eh!

Honk, High in the Middle

This song is from the soundtrack to the 1972 surf movie “Five Summer Stories” by Greg McGillivray and Jim Freeman. The following subversive lyrics are sung to the equally subversive sounds of the lap steel guitar.

I’ve been staying high in the middle with an honest to goodness hey diddle diddle
I traded my Porsche for a cow and a fiddle too

My train of thought reached an intersection
Got switched on to a new direction
Now I’m here to spread the infection to you

Lay down your woes
Open what’s closed
It all will flow if you let it go

Get up in the morning at the crack of dawn
Jump in the water roll around on the lawn
It’s really fine having only what I want going on

Toiling for so long
Fenced by fear of what I’m told is wrong
I’ve found a hole in the fence
Now I’ve jumped right through and I’m saying that you can too

McGillivray and Freeman’s movie is beautiful, and captures the spirit of the North Shore of Oahu in the late 60s well-enough to blow the hardiest of law-bound minds away. If you haven’t figured it out, the surfer on the movie poster, by surf artist Rick Griffin, is offering you a bar of wax. After Griffin died in a motorcycle accident in 1991, Grateful Dead lead Jerry Garcia said of him, “Rick, like the rest of us, was on a mission to turn on the world.” What’s your mission counsel?

Smashmouth, All Star

If visions of rural Hawaii in the late 60s aren’t enough to get you motivated, let’s try a message that may shock you from your current 9 to 5 reality. Remember this catchy hit from 1999? Lead singer Steve Harwell would argue that every piece of legal Mumbo Jumbo you jam into your brain takes you further away from the Truth.

Somebody once asked could I spare some change for gas
I need to get myself away from this place
I said yep what a concept
I could use a little fuel myself
And we could all use a little change
Well the years start coming and they don’t stop coming
Fed to the rules and I hit the ground running
Didn’t make sense not to live for fun
Your brain gets smart but your head gets dumb
So much to do so much to see
So what’s wrong with taking the back streets
You’ll never know if you don’t go
You’ll never shine if you don’t glow

Don’t get any more dumb than you are already. Stop this legal nonsense right away and go for it!

Old Man Leudecke, I quit my job

After motivation, comes action. And, of course, there are many songs about the act of quitting. Nova Scotia banjo man Old Man Leudecke doesn’t glorify it, but rather, talks about quitting to reap the rewards of hand-to-mouth living.

Work when you need to maybe.
Don’t let em bleed you baby
They do nothing more than feed you baby

Don’t let em take the joy that you make
On your own

I have a friend who spent some time on Maui between jobs (as did I, if you want to call it “between jobs”). He always speaks about a conversation he overheard in Paia Town in which one local asked another, “You got work?” in a completely non-judgmental way. It struck him how the work-life values in an alternative first world subculture could be so more liberating than those in our own legal subculture. It’s often not our work that’s so draining, but what work becomes about.

The Who, Going Mobile

Lifehouse was a Pete Townshend project so grandiose that it was scrubbed when it became clear that Townshend couldn’t meet his own ambitions. Going Mobile is from Lifehouse, but oddly, is a simple song about driving around without a care. Apparently Townshend liked to go for such drives in between bouts of genius.

I can pull up by the curb
I can make it on the road
Goin’ mobile
I can stop in any street
And talk with people that we meet
Goin’ mobile
Keep me movin’

Out in the woods
Or in the city
It’s all the same to me
When I’m drivin’ free, the world’s my home
When I’m mobile

Hee, hoo!
beep beep!

Isn’t it time to give your own genius a break? Don’t you love the freedom of the road?

Joni Mitchell, Carey

If you don’t go mobile when you give up the law, you’ll need accommodation. How about living in a cave on a Mediterranean island? Wikipedia says this song, from Joni Mitchell’s 1971 album Blue, is about time she spent with a cave-dwelling hippie community in the village of Matala on the Greek island of Crete. She sings:

Come on down to the Mermaid Cafe and I will buy you a bottle of wine
And we’ll laugh and toast to nothing and smash our empty glasses down
Let’s have a round for these freaks and these soldiers
A round for these friends of mine
Let’s have another round for the bright red devil
Who keeps me in this tourist town

Come on, Carey, get out your cane
I’ll put on some silver
Oh you’re a mean old Daddy, but I like you

Billable hour be dammed! The sense of freedom conveyed by this song is palpable. So what about the dirty fingernails? Go for it!

Neil Young, Country Home

Okay, maybe you’re in for accommodation that is a little more sublime. The imagery from Neil Young’s Country Home might get you going.

I don’t like to go down to flats
‘Cause I can’t park on a hill
Instead getting a rolling start

I have to pay the bill.
I guess I need that city life
It sure has lots of style
But pretty soon it wears me out
And I have to think to smile.

I’m thankful for my country home
It gives me peace of mind
Somewhere I can walk alone
And leave myself behind.

Young himself has lived on his Broken Arrow Ranch for many years. Country Home is from Ragged Glory, most of which he recorded in a barn on the property. Glory received critical acclaim and went gold in Canada, which speaks to the real opportunity of country living for Type-A lawyers. Country living and a virtual law practice on the down-low sound okay? You don’t even have to admit to your neighbors that you’re a lawyer!

Blotto, I wanna be a lifeguard

Or, alternatively, think of all the great other vocations in which you might engage. Your taught understanding of risk management is certain to help you land a lifeguard job, which according to 1980s punk band Blotto, is better than working in a shoe store.

I, I, I wanna be a lifeguard (help, help, help, help)
I, I, I wanna guard your life
I, I, I wanna be a lifeguard (lifeguard, lifeguard)

Yes, yes, yes. So much better than document review!

U2, Beautiful Day

This is a good song to end with, because it conveys the most simple and universal spiritual message. A Zen proverb says “Sitting quietly, doing nothing, spring comes, and the grass grows by itself.” English poet Elizabeth Barrett Browning said, “Earth’s crammed with heaven, And every common bush afire with God; But only he who sees, takes off his shoes – The rest sit round it and pluck blackberries.” Bono preaches a similar message to a soul in need of savior:

It’s a beautiful day
Don’t let it get away
It’s a beautiful day

U2 performed Beautiful Day at the first Super Bowl after the 9/11 terrorist attacks. Barack Obama also used it in his presidential campaign. It’s a good song, powerful in its simple message.

Postscript. Subversive enough? If I didn’t convince you to make a break for the good life, I’ve at least caused a moment of distraction and a warm thought. Now if you’ll excuse me, I have to get back to work!

♫ I am lonely but you can free me
All in the way that you smile
Tell me why, tell me why..♫

Lyrics, music and recorded by Neil Young.

This is a post of a different colour (or color). It is really a series of questions wrapped up in a post with the hope and expectation that it can generate a bit of discussion. Call it an experiment of sorts in social blogging, community and dialogue in using a specific example to explore the topic of the adoption of technology by lawyers.

This blog post originated with a long discussion with Cecily Drucker, the daughter of the management guru Peter Drucker. I happen to be fortunate to know Cecily and have in fact, worked with and for her in the past. She is a lawyer in San Francisco as well as a burgeoning software developer. She is the President and CEO of MonetaSuite ..a company that has developed time tracking software for professionals but really aimed at lawyers. Cecily and I kicked the questions noted below around and we developed the idea of posting the questions here for consideration among the Slaw community.

Here is the enigma. We are just starting to emerge through a very difficult economic time. One would think that this would mean that lawyers would be pressed to track as much billable time as possible as easily as possible – especially in the last while. MonetaMail, a time tracking application for Outlook, along with other such tools (such as practice management applications) – are easy to use and inexpensive..they would pay for themselves within days of purchase and use by capturing time that may be lost when reading and replying to email as well as ‘quickening’ the time spent on tasks.

Yet MonetaMail (and we suspect, similar time tracking tools) are not exactly flying off the e-shelf. This raises questions regarding the economics of practising law. For one, lawyers state that they are moving to alternative billing; having an accurate picture of the time that one puts into a file would be (in all rational worlds) one of the most important points to know from the position of whether you are actually making money or not by moving to alternative billing. But they don’t seem to be acquiring the tools that would give them that feedback on whether alternative billing is actually good for them!

Secondly, lawyers claim that they are working hard and long yet tools that would help them work smarter are not being adopted – even in a difficult economic environment. Is it that they are running so hard that they don’t take the short-time ‘hit’ to learn tools that would help them in the long-term? Or is it that the tools are not well understood and it is difficult to bring this knowledge to them (or perhaps they are skeptical regarding such benefits)?

Third, perhaps the legal market is not as competitive as one would otherwise think. If it was, then the search for a competitive edge should mean that lawyers would be looking for tools that help them with not just the legal side of their practice but also with the efficient and effective side of running their practice.

Fourth, perhaps the Google business model has forever changed the name of the game. Perhaps people have now come to expect that applications – especially those found on the Internet – are available without charge.

Fifth, perhaps there are other factors at work? Thoughts? Tell me why, tell me why!

I would like to know why (some) Nova Scotia reasons for judgment reported on CanLII are “centre justified”. Do they come this way from the courts? They are much harder to read than fully justified paragraphs or ones left with a “ragged right”.

For about nine months now, HeinOnline has been running webinars, aiming to host at least one per month. The upcoming webinar, on Wednesday, February 24, is on “Using and Searching the United Nations Law Collection” and will run for 30 minutes. There’s an excellent list of points that will be covered on the relevant Hein wiki page, along with instructions as to how to participate.

All of the previous webinars are archived and available for viewing online or for downloading. Most are concerned with U.S. resources, naturally; but a number are of general interest — “Getting Started” in HeinOnline (60 min.), What’s New in HeinOnline? AALL Encore Presentation (60 min.), and What is Hein’s ScholarCheck? (15 min.), for instance.

[via Off the Shelf]

Back in November John Gregory wrote about Dealing with Digital Assets After Death and a New York Times article quoting Montreal marketing consultant Adele McAlear.  Adele happens to be a friend, so I took the opportunity to speak with her in detail about the topic on behalf of Slaw readers. Our full interview (held in December) is below. Since that time, she has launched her new website DeathandDigitalLegacy.com to better track this wide-ranging subject. Adele will also be speaking on “Death and Digital Legacy in Social Media” at the upcoming PodCamp Toronto 2010 (of which I am an organizer) being held February 20th & 21st at Ryerson University.

Here is our discussion about death, digital legacy and digital executors. This was a telephone conversation, recorded and transcribed:

Connie Crosby: Congrats on your New York Times article.

Adele McAlear: Thank you very much, that was great.

C: Can you give an idea for the Slaw audience what you do?

A: I’m a marketing consultant, I have 20 years of marketing experience and I specialize in social media and integration through marketing channels. So integrating social media into marketing channels.

C: And you are based in Montreal?

A: I am based in Montreal, yes.

C: To discuss what you talked about in the NYT article on the digital afterlife and virtual legacies:  what is a virtual legacy?

A: A virtual legacy is a digital legacy and it’s whatever you leave behind on the internet or in digital files, so whether that’s what you stored on your computer or what you have on the internet. We are all so connected these days, and more and more people are coming on board with having social media and different types of online media as part of their day-to-day existence. Whether you’ve got a Flickr account and you store your photos there, or whether you’ve uploaded video to YouTube, or if you are on Facebook and you have photos there or just an account on Facebook that you interact with people on, then that is all part of your digital legacy. That is all that you are creating online.

C: Why is it important to think about this?

A: It’s important because first off it’s a new area. In the last five years the way social media has taken off. The way it is becoming mainstream and part of people’s daily lives, people are living more and more of their lives online and each time you are online you are creating something. How many people actually know which accounts you have or where you are online? While you are online you are developing communities. You might be on Twitter and have a community of friends you speak with there, you might have a different community of people you speak with on Facebook, you might be part of a forum. Maybe you are a working mom and you’re on a working moms’ forum, or a librarian and you are on a librarian forum. There are all sorts of places where you communicate with people online and develop relationships and friendships. If the inevitable happens, who will let your friends know that you’ve passed on? If something surprising happens, god forbid you are struck by a truck, how would your online friends find out and what would happen to all of the digital media that you’ve got online?

Many people think that Twitter and things of the like are very disposable and to certain individuals they are and to certain individuals they want everything archived like a museum piece. So it’s a question of thinking about what of yourself that you’ve created online do you want to stay online? Do you have a blog? Does your blog represent a large portion of your research? Do you want it available to people for posterity for them to be able to reference your blog? Maybe it’s a personal blog and you’ve got family anecdotes there and you want it available to your family. These are all things that can come up, issues that can come up, when you start thinking about if you were to pass on suddenly. Even if you were to have an illness, and be incapacitated in some way, unless there are people in your life who understand what you have online and understand how to access that information, you run the risk of losing it all. That’s why it’s important.

C: Facebook has been trying to deal with this in various ways haven’t they?

A: Facebook is one of the few online services that actually has somewhat of a policy. Most online services are so geared towards growth and acquiring new membership that they really haven’t thought about termination of an account or closing out of an account. And termination doesn’t necessarily have to be as a result of death or being incapacitated in some way, it could be that you just no longer want to be on that system anymore and you want to close it down. There are many online services that have no mechanism in place to close down an account. What Facebook have done, and they have had this in place for some time, although they only blogged about it in the summer so it came off as being some sort of new feature, but in fact they have had it for years, which is to memorialize an account. You can report that someone has passed away. I am still unclear on their verification methods, how they actually verify that this is a real person that has passed away and not someone playing a hoax.

When you’ve passed away or they are notified of an account of someone who has passed away, they can memorialize it, meaning the account will no longer accept friend invitations. It will keep the wall open to existing family and friends and it will take away some of the personal information that should not be there. I believe they take away the person’s birth date. Where this has hit some problems with Facebook is that they have come out with another new service lately that is “Hey, get in touch with people that you haven’t spoken with in a while”. What’s been happening is that they will pull up profiles of people that might have passed on, and so you log into Facebook and–unsuspecting–you see one of your dead friends and a note from Facebook saying “Hey, reach out and talk to them, you haven’t talked to them in a while.” It’s one of those kinks in the system that they haven’t worked out yet.

Actually I’ve been speaking with somebody at Facebook to find out the contact of the person who is in charge of the memorialization of accounts and believe it or not, my contact there who is quite well placed is not able to find that information out. They only have 500 employees! So, I’m still working out who is in charge of the memorialization process to be able to ask them more questions about how they are going to deal with this. But Facebook is one of the few online services that has it.

Another one is Twitter, they don’t have a policy, an official policy. Well, actually they do but they are not implementing it. Their official policy is that if an account is dormant for six months they will delete it and free up the name. But in fact they are not doing that, because the first person I ever knew from purely an online relationship who died, died two years ago in December 07 and his account on Twitter is still very much alive. There is no mechanism in place to memorialize an account on Twitter.

Likewise, for Flickr, there are date restrictions there as well, if you have a Flickr account and there is no activity for 90 days then the account is shut down and all the photos are lost. But again, I’ve been in situations where I know of free accounts on Flickr that are older than 90 days and are still available. So there seems to be a certain randomness in how these online services are dealing with this. Paid accounts are another whole thing. If you have a blog or if you have a paid Flickr account, and you are paying for hosting on your blog, if you don’t make arrangements in advance of your passing or incapacitation, to have that taken care of, either financially if you want it there or to have the content downloaded and preserved then it will just be lost.

If the bills aren’t paid, many of these services are set up so that it will auto-charge on a credit card. Well, one of the first things people do when dealing with the passing of a loved one is they cancel the credit cards. So the next time a domain comes up for renewal or hosting goes to take a payment, or Flickr goes to renew the pro account, they won’t be able to because the credit card will have been cancelled.

C: And a lot of those notices come through email.

A: Exactly. If there is one key thing that you need to deal with the passing of a loved one, it’s to know what their email addresses are and the passwords to those addresses. Even if you don’t know their Facebook login or their Twitter login and password, if you know the email address where they get the notifications, then you’ll know that that’s the email address for logging in. Even if you don’t have the password [for the various websites], that’s fine because you can login using the email and say you’ve lost the password and receive the password reset in the email and be able to gain access to it. But if you don’t have the password to the email account you’ll never be able to retrieve the password resets.

C: That’s a good point.

A: That’s the most important thing that people can do, is make sure that their loved ones have access to their email accounts.

C: Now, in the New York Times article you talked about appointing a digital executor. What is that exactly?

A: A digital executor is somebody who takes care of all of your digital affairs when you are incapacitated or pass away. It is somebody that you know who hopefully is digitally savvy, who understands the web and how it works and that you can entrust to carry out your final wishes. Do you want all your Flickr photos archived, downloaded and saved if they don’t exist elsewhere? What do you want done with your Twitter account? What do you want done with your Facebook account? What do you want done with your blog? Even digital files you have saved on your computer, what do you want done with them? And so the digital executor is somebody who can notify your online friends if you’ve passed away, who can deal with any sort of online communications that perhaps your family isn’t equipped to deal with at the time of grieving. Quite often it’s a good idea to appoint a friend but not somebody who is going to be so totally devastated by your passing that they won’t be able to cope with the realities of the digital world, which is very immediate. People want immediate responses in the digital world and if you are a grieving family member you may not be able to cope with that.

C: You also suggested that you might also, if you don’t have a trusted friend, approach a lawyer or notary.

A: It could be done. It’s a very new aspect of wills and digital wills. You could in fact approach a lawyer or notary to see if this could be something that you could arrange with them in advance. To my knowledge there are no digital executors for hire, if you will. There are services like Legacy Locker and there are a few more of them, where you can upload your passwords and your account information and they will ping you with an email every month to see if you are still alive and if they fail to get a response then they will take it to the next step, which is going to your next of kin and seeing if you’ve passed away. If they confirm that you’ve passed away then they will release your password information to whomever you have designated in advance. Now, that’s all very fine and well, but there are other ways to do that which might be a little bit more efficient.

C: I guess if those services go out of business then it doesn’t work.

A: Exactly. That is a problem. There are ways that you can handle passing on your information in advance. For instance, you create a Gmail account that is specific to your digital will, and that is meant for your digital executor. That way the only email and password you need to give to your digital executor is the password to that particular Gmail account. Then as you go about your day to day life, as you change passwords, as you sign up to things, as you figure out what it is that you want done with your content, you simply send an email to that Gmail account with the details so it can be an ongoing dynamic thing. Even if you change your password somewhere you can just simply fire off an email to that Gmail account saying changed password on blah-blah-blah. That way you don’t have to worry about keeping things in a safety deposit box, updating your will every time you change your password.  You can simply put the Gmail account and the password to that account in your will, and as long as you don’t change those two things, then everything else that’s dynamic will be funnelled into that Gmail account. You’ve got one stop to find out all of the pertinent information.

C: Many of Slaw’s readers are lawyers. Lawyers who are working in the wills and estates area may not have thought about all of this. Do you think they should be mentioning it to their clients as a routine thing?

A: I think they should mention it to their clients, but only if they themselves are somewhat educated on what could be involved. Because their clients will then seek education and information from the lawyer. So lawyers need to educate themselves as to the different components that might be present in somebody’s digital life and possibly different ways they could handle it, or possibly they need to find people who they can outsource the handling of these accounts to. I would say the most important thing for lawyers to deal with, is first off the digital law regarding access to accounts and copyright of information. Who actually owns the accounts is all very grey right now.

The digital culture is so new that the law hasn’t really caught up with it. It’s difficult to know from a legal perspective where the lines are drawn. At least that’s my understanding of it. I’m not a lawyer and I would love to talk to a lawyer about this! I would love to have that perspective. Perhaps somebody from Slaw will step forward when they see this. It’s my understanding that this is such a new area that there are really not a lot of people talking about it generally, but lawyers especially are not. It should be something that lawyers discuss when they are sitting down with a client about their will. I think that would be a great service.

It’s really changing the funeral industry. I know there is a funeral director in BC who loves technology and he loves marketing and he’s set about trying to educate other funeral directors about digital services they can offer like digital guest books and live streaming of funeral services. I know that technology is really going to be changing the basics of funeral services. I’ve also heard horror stories about online obituaries and being taken to the cleaners and being charged $300 for an online obituary – they want more money to add a photo to it and they only allow 30 days for it to be live. So the guest book that was attached to that and all the comments that went to it disappeared without really notification that maybe you should be downloading this or saving it. And that was through a funeral home dealing with a major media outlet. To charge somebody who is grieving $300 to put an online obituary that is only good for 30 days seems criminal to me. But that’s quite normal unfortunately. From a legal perspective, I think there is a lot of grey zone there and I think that the services to support being a digital executor have yet to be really developed, despite the fact that there are a few early entries into the field like Legacy Locker. I think that there is a lot of room in the field for development.

C: Where do you think the Slaw audience could go to learn more about it, but it sounds like there may not be a lot out there.

A:  I own the domain deathanddigitallegacy.com. I’m trying to get a site up that will aggregate information from around the web on this issue, as well being a place where I can post about these kinds of things without posting it on my marketing blog, because it’s kind of two different subjects. Two different audiences.  But there isn’t really a lot out there – there are only a few people talking about this right now, and to my knowledge I’m the only one in Canada that is talking about this.

C: You’re the first one I’ve really heard. I’ve heard it mentioned in passing when people have thought about it, but you’ve obviously given this a lot of thought and researched it.

A: I’ve also been interviewing people and getting anecdotal stories for six months. Every time I interview somebody and get their anecdotal stories about what they have had to deal with, it raises more questions and more red flags about the holes that are out there in the system. There is a Buddhist monk who lives in Holland and he’s got terminal cancer. He’s a Dutch guy who’s Buddhist with terminal cancer, and he’s also an artist and his thing is about virtual immortality. He’s exploring the rather vague concepts of digital immortality and how technology is coming together with automated responses and systems that you can set up to auto-respond to things so that we can in theory leave our consciousness online and continue these online relationships with people without physically having to be here. He’s done some short films and things about it and it’s pretty trippy stuff.

I’ve talked to a developer in the UK who’s looking at this from the development perspective in terms of what online services need to do and what is the actual business cost of maintaining servers full of dormant accounts. We’re early adopters, we go, we set up a profile with everything, leave a few things and then maybe never go back. I can’t remember the last time I was on Plurk. Think about if online services don’t actually have policies about closing down accounts in place, then they are maintaining these dormant accounts and dormant accounts require server space. It’s okay if you are only talking about a few thousand, but if you are talking about millions of dormant accounts, what is the actual dollar value cost to businesses to maintain that? That is one aspect of it, not to mention the fact that there are so few easy mechanisms to close out accounts.

This developer that I’ve been speaking with says he has a Yahoo account that he’s had for 10 years. He has a very plain name, so if he gave up my yahoo account, if he was able to give it up, that would be great. But he’s not able to. There is no mechanism in place to close out a Yahoo account. So let’s say Yahoo arbitrarily will assign the name to somebody else. In the meantime he’s signed up to a variety of email accounts and that dormant account is collecting email spam-bacony stuff, notifications. They close it down because they see he hasn’t logged into it in 10 years. So they’ve maintained  the server space acquiring all of this new spam-bacony notifications and spent the money on housing that and then when they finally release the name and somebody else signs up with this name, is that person going to start receiving his old email, because the name is still on the lists? And so, there is a privacy issue that comes into it as well. Because developers just haven’t worked this out.

It’s all so new nobody has really worked it out yet. I find the whole topic very fascinating. There are a lot of different angles to help people mourn online is changing as well. The business of mourning even. It’s really being altered with technology.

C:  Thank you for sharing all of this, Adele.

A: Thank you for wanting to speak with me.

C:  I look forward to seeing your research and where you go with this.

A: There will be more coming in the New Year that’s for sure. There are plans afoot!

Thanks to Adele McAlear for the interview. If you are a Canadian wills and estates lawyer interested in this subject, Adele encourages you to get in touch with her. You can contact her via her website at www.adelemcalear.com.

This interview was recorded over Skype by Connie and transcribed by virtual legal assistant Laurie Mapp of Halo Secretarial Services. It was then lightly edited by Connie for readability.

A 5-member panel of the Ontario Court of Appeal released a significant, 150-paragraph reasoned decision this morning involving conflicts of laws and when Ontario should take jurisdiction over out-of-province defendants – see:

Van Breda v. Village Resorts Limited, 2010 ONCA 84
http://www.ontariocourts.on.ca/decisions/2010/february/2010ONCA0084.htm

At issue were claims for personal injury damages occasioned as a result of accidents suffered by Canadian tourists at resorts in Cuba and whether the plaintiffs could sue in Ontario.

In paragraph 109 (pasted below) the Court has “re-formulated” their own test in Muscutt from 2002.

[109] To summarize the preceding discussion, in my view, the Muscutt test should be clarified and reformulated as follows:

- First, the court should determine whether the claim falls under rule 17.02 (excepting subrules (h) and (o)) to determine whether a real and substantial connection with Ontario is presumed to exist. The presence or absence of a presumption will frame the second stage of the analysis. If one of the connections identified in rule 17.02 (excepting subrules (h) and (o)) is made out, the defendant bears the burden of showing that a real and substantial connection does not exist. If one of those connections is not made out, the burden falls on the plaintiff to demonstrate that, in the particular circumstances of the case, the real and substantial connection test is met.

- At the second stage, the core of the analysis rests upon the connection between Ontario and the plaintiff’s claim and the defendant, respectively.

- The remaining considerations should not be treated as independent factors having more or less equal weight when determining whether there is a real and substantial connection but as general legal principles that bear upon the analysis.

- Consideration of the fairness of assuming or refusing jurisdiction is a necessary tool in assessing the strengths of the connections between the forum and the plaintiff’s claim and the defendant. However, fairness is not a free-standing factor capable of trumping weak connections, subject only to the forum of necessity exception.

- Consideration of jurisdiction simpliciter and the real and substantial connection test should not anticipate, incorporate or replicate consideration of the matters that pertain to forum non conveniens test.

- The involvement of other parties to the suit is only relevant in cases where that is asserted as a possible connecting factor and in relation to avoiding a multiplicity of proceedings under forum non conveniens.

- The willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis is as an overarching principle that disciplines the exercise of jurisdiction against extra-provincial defendants. This principle provides perspective and is intended to prevent a judicial tendency to overreach to assume jurisdiction when the plaintiff is an Ontario resident. If the court would not be prepared to recognize and enforce an extra-provincial judgment against an Ontario defendant rendered on the same jurisdictional basis, it should not assume jurisdiction against the extra-provincial defendant.

- Whether the case is interprovincial or international in nature, and comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere are relevant considerations, not as independent factors having more or less equal weight with the others, but as general principles of private international law that bear upon the interpretation and application of the real and substantial connection test.

- The factors to be considered for jurisdiction simpliciter are different and distinct from those to be considered for forum non conveniens. The forum non conveniens factors have no bearing on real and substantial connection and, therefore, should only be considered after it has been determined that there is a real and substantial connection and that jurisdiction simpliciter has been established.

- Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction.

I have not had time to review the reasons in detail but invite any comments (and will add my own comments later, if needed).

The government of South Australia has recently adopted a law that requires people commenting on the forthcoming state election to use their real names, and media will have to retain the names and addresses for six months. The requirement appears to apply to bloggers and comments on blogs etc.

Unsurprisingly, not everyone likes this.

Is it fair to say that requiring people to give their real names is a “gag” on debate?

Would the Canadian Charter of Rights and Freedoms prevent such a law in this country? In other words, does the freedom of expression protect anonymous speech?

I’ve been playing with start.io lately, a web tool that allows you to easily create your own custom homepage. You can fill your homepage with links to your favorite websites, and you can customize the way your page looks. Useful features include:

• You can choose to be notified when a site you have included has new content.
• You can create groups and add links to each group.
• You can pick from themes to customize the way your page looks.

Susan Cartier Liebel has written a thoughtful blog post on the high prevalence of depression in the legal profession.

The ABA reports that “about 19 percent of lawyers experience depression at any given time, compared with 6.7 percent of the general population. About 20 percent of lawyers have drinking problems, twice the rate of the general population.”

The Lawyers Assistance Program of BC states that “research shows law to be the occupation most susceptible to clinical depression. Legal professionals are now three times more likely to be diagnosed with depression than the general population.” Further, “substance abuse among lawyers is rampant. While 10% of the general adult population is alcohol-dependant, among lawyers practicing from 2-20 years, the number jumps to 18%. For those practicing more than 20 years, the number is 25%. Many of these individuals are both depressed and chemically dependant.”

Susan Cartier Liebel references a recent article on the possible sources of lawyer depression:

“Some of the more specific work qualities that make lawyers particularly prone to depression are long work hours; the competitive nature of the work; the adversarial nature of the work; the requirement for highly focused attention to detail; the extreme repercussions of professional errors; the need to be pessimistic and skeptical, and to be prepared to deal with “worst case scenarios;” responsibility for assisting clients and others who are in crisis or dealing with tragic situations; constant scrutiny of your work by employers, judges and opposing counsel; the reality that your work will directly impact the client’s financial, relationship, liberty and quality-of-life interests; the pressure of deadlines and the potential consequences of missing deadlines; rigid and particularized rules and procedures that must be followed carefully and completely; the need to perform, both in terms of achieving results and being “on-stage” and observed by others in public arenas; the need to advance or defend a position that might conflict with your personal values.”

In addition to the traditional sources of anxiety and depression noted above, current economic, technological and demographic forces are putting increasing pressure on the traditional law firm business model and lawyers themselves. Increasingly competitive pressures and a rapidly changing profession may serve to exacerbate an already very serious issue among lawyers.

There are an increasing number of resources available to lawyers online, such as www.lawyerswithdepression.com which are worth checking out.

One of the reasons I started the Cross-Border Biotech Blog a year ago was that the industry in Canada was in terrible shape.  In the face of a global financial crisis, biotech as an industry was attracting some attention and some bailout funding, but by July last year, 70% of Canadian biotech companies reported having under 6 months of cash remaining.

This year has started with some new, and better, data.  Equicom’s year-end review shows that although several Canadian biotechs did go under, the surviving companies overall outperformed market indices.  BIOTECanada updated the July survey recently as well, showing that the numbers have flipped: now only 30% of Canadian biotech companies have under 6 months’ cash.

Still, this week brought news that Jubilant (based in India) succeeded in several research collaborations with academics and big pharma, one of many reminders that these high value jobs are highly competitive. 

Kudos to the Ontario Institute for Cancer Research* (OICR), then, which lured two executives with extensive industry experience to its commercialization program.

Even with successful recruitment, there is more that needs to be doneto keep Canada’s biotech industry competitive.  In Ontario, a group of biotech CEOs formed a new group called the Ontario Bioscience Industry Organization** (OBIO).  OBIO consulted with CEOs province-wide and generated 5 recommendations for changes to existing provincial programs that would help these SMEs.

Implementing these recommendations would be a great step forward.

Disclosure notes:
* An Ogilvy Renault client.
**I serve as the Corporate Secretary on the Board of OBIO.

ROOTS

The Legality of an American Slavery

Introduction

February 1 is known as National Freedom Day in the U.S.  It’s also the start of Black History Month, the annual celebration and triumph of the descendants of African-Americans.  This year, President Obama has also indicated that National Freedom Day will also be the first ever National Slavery and Human Trafficking Prevention Month.  For this reason, Blawg Review #249 will follow the theme of African slavery in America, using the model of Alex Haley’s Roots: The Saga of an American Family.

Haley’s novel traces his family roots back six generations to one of his African ancestors, in the process telling a compelling story of survival and resilience.  This post will focus on various topics within this narrative, starting from his earliest ancestor in Africa, down to Alex Haley himself. It’s also in part my story, as a Canadian of (more recent) African descent whose family friends as a child included (among others) former Nation of Islam members that evaded the draft during Vietnam by moving to Toronto.  Their oral traditions, often told sitting around a campfire in the Canadian north, became part of my own Roots.

Left: My copy of Roots today, which I discovered over two decades ago on my parents' bookshelf. Right: How the book would look if it still had a cover.

Canada has an complicated relationship with American slavery, being one of the final destinations of the Underground Railroad.  Although the Song of the Free refers to Canada as a place of safety, it is also “a cold and dreary land” where many faced rampant discrimination encoded in legislation.

Frustrated by the lack of opportunities in Canada, thousands even sought “repatriation” back to West Africa by the British during the late 18th century.  Canada remained part of the British Empire until 1867, and even then held on tightly to its British roots.  The Queen of England continues to be our official figure-head of state.

Perhaps ironically, it was the threat of an American invasion of Canada that was one of the major impetus for independence, just years after the Emancipation Proclamation in the U.S.  Canadians have always been rather wary of being “freed” by their neighbours.

7.  Kunta Kinte

Kunta Kinte was born around 1750 in the town of Jufure, Gambia, Kunta Kinte  to Omoro and Binta Kebba of the Mandinke people.  In 1767, he was kidnapped at the age of 15 and taken to the shore, stripped and branded, and placed on a ship for a three-month voyage to Annapolis, MY.

Most immigrants to the Americas have a much more pleasant journey than Kunta’s Middle Passage voyage, but face just as strong xenophobia.  Kevin R. Johnson speaks to current anti-immigrant sentiments today,

Unfortunately, racism and nativism at some level influence the views of some people about immigration and affect the national immigration debate… Check out the comments on many blogs or on many news stories on immigration if you want to get a sense of the racial sensitivities — and, in some instances, raw [hatred] and racism — in the discussion of immigration…
In contemplating immigration reform, policy-makers and the public need to acknowledge that U.S. immigration laws and their enforcement have disparate racial and national origin consequences. This has been well-documented. It is rather obvious that the U.S. immigrations laws affect more people from Mexico than Denmark, from China than Iceland, from India than New Zealand, from the Philippines than Sweden. Importantly, many people of color from the developing world find it much more difficult than persons of European ancestry from the western world to come to the United States.
That is not to suggest that the current laws, as well as all changes to the immigration laws, which have disparate racial and national origin consequences, are per se racist. But it is to say that in formulating the laws the nation should be aware of the racial and national origin consequences of its immigration laws and reforms.

After arriving in America, Kunta was sold at the slave market to a plantation owner in Virginia.  Rick Hills recently related his experience of eating in a former slave market, and questions the lack of slavery landmarks in the U.S.,

Anyone who has read Walter Johnson’s searing account of the New Orleans slave markets can imagine that eating inside a slave market can have the chilling feeling of eating inside, say, a barracks at Dachau… Slavery’s physical landmarks and artifacts seem mostly invisible in th[e] realm of public history…

There is something deeply odd about the absence of a major research and educational center about slavery in Washington, D.C., New Orleans, or elsewhere on the beaten path of tourism and public history. Have African-American organizations not made the creation of such a museum a priority? Or is the existence of our “peculiar institution” still too embarrassing and emotionally painful for us to make part of the standard docent’s circuit on the Washington Mall?

Not so for Canadian museums, who are presenting a whole range of events through  Library and Archives Canada for Black History Month in our nation’s capital.  One of the events is celebrating William Neilson Edward Hall, whose parents were freed slaves from America.  Hall was “the first Black person, the first Nova Scotian, and the first Canadian seaman to receive the Victoria Cross, the British Empire’s highest award for bravery.”

Hall was provided the award for his actions during the  Indian Rebellion of 1857, where Hindu and Muslims fought together against the British in a vain attempt to gain their freedom, a conflict sparked in part by the East India Company’s attempt to convert both groups to Christianity.  Hall was one of only two survivors on the HMS Shannon, whose job during the Siege of Lucknow during was to breach the walls of the Shah Najaf mosque where Indian militants were holed up.  When Hall died in 1904 in Nova Scotia, he was buried without military honours in an unmarked grave.  Eleven years later he was relocated to Hantsport Baptist Church, where a monument was erected.

Over a century later, Hall is being celebrated by the release of a stamp by Canada Post today.

Most African slaves and their descendants were more interesting in fighting against European powers, rather than fighting for them.  When Kunta was relocated to Virginia, he was renamed by his slave-masters as “Toby.”  He refused to adopt the name, and attempts to hold on to his African identity.  Although syncretism was prevalent in West Africa, most of the Mandinke people were Muslim, and Islamic beliefs were especially persecuted in the Americas.  Dr. Sylviane Diouf relates in her book, Servants of Allah: African Muslims enslaved in the Americas, that French missionaries record a special stubbornness by African Muslims in adopting the Catholic faith.

These religious freedoms still play themselves out today, especially with controversies over Muslim attire in France.  Islamophobia watch notes that Canada has expressly chosen not to follow the path chosen by France, as the Canadian Charter of Rights and Freedoms provide the right to women to wear what they want.  Hugh McIntyre of Freedom is My Nationality thinks it’s the right move (his nationality is Canadian, incidentally).  And according to Adam Ozimek, we’re still a lot freer in Canada than in the U.S.,

The true north really is strong and free these days. According to the Heritage Foundation’s 2010 Index of Economic Freedom, Canada now enjoys a greater degree of economic freedom than the United States. They enjoy the most economic freedom in North America, as it were.

Eugene Volokh discusses religious exemptions of a different type, from mandatory autopsies for executed killers in Johnson v. Levy, and presents a 1999 article, A Common-Law Model for Religious Exemption.

Things come to a point when Kunta has enough and decides to run away.  Once caught, he is given the choice of castration or amputation of his foot.  The implications of each choice weighs heavily on him, one preventing him from ever having a family, the other ensuring he will never have his freedom.

In addition to the runaway Maroon communities, slaves were notorious for their violent uprisings on plantations.  The most successful of these slave revolts was in 1791-1803 in Haiti, resulting in the first republic ruled by people of African decent.  According to Diouf, one of the key leaders in the Haitian revolt was a Muslim Jamaican named Dutty Boukman, his surname a reference to the book (a Qur’an) he carried.

Haiti is in the news these days for some very different reasons, but it provides an opportunity to understand the background behind this country.

Anthony Morgan, the current President of the Black Law Students Association of Canada (BLSAC), and a third-year law student at McGill University, provides some important history behind the Haitian revolution on The Cor,

…there is a long and relatively unknown history of deliberate subjugation of Haiti by government and corporate leaders whose actions and inaction have resulted in the effects of the recent earthquake being exponentially greater than they ever should have been. Thus, in the wake of the recent earthquake… you may see that Haiti is much less a victim of a tragic and inexplicable act of God and more so the victim of a succession of non-Haitian capitalists and racists who were adamant on ensuring that a republic governed fully and freely by former Black slaves could never emerge to show the world that yes, Blacks can successfully govern their own affairs.
…before the revolution Haiti was the crown of the Caribbean as it was the richest colony of all of Europe’s holdings at the time. This is largely because it produced 80% of the world’s sugar. It is also important to note that this was at a time when the Trans-Atlantic Slave Trade was a major source of economic gain for North American and European powers, who used un-free labour of Africans to amass the wealth that allowed these regions to enjoy otherwise unimaginable luxury and leisure and which would later drive the West’s Industrial Revolution (also built on the backs of Blacks, through the use of exploited Africans who, in Africa, extracted the natural resources used to build Western cities, factories and products of the Industrial Revolution). Thus, when the slaves of Haiti began to rise up, Western powers deployed their fullest possible efforts to quash this freedom movement. They did this in order to protect the immense profits gained from the trade of Black human beings.
Europe and North America’s fear of Haiti’s freedom fight was rooted in not only the prospect of losing the world’s richest colony, but also the prospect of the collapse of the entire slave-trade. They worried that the latter would result if enslaved Africans learned about the existence of a successful slave rebellion that culminated in the emergence of a state outside of Africa, ruled by free Africans.
In the end, the Africans of Haiti triumphed. However, while they celebrated jubilantly, the dark-hearted of Europe and North America began a global campaign of retribution and damage control. To prevent the still-enslaved from being inspired into rebellion and ultimately debilitating the West’s deplorable trade, they decided to respond with a full (though unofficial) embargo against Haiti. The aim and effect was to starve the country into total economic atrophy. This, of course, resulted in mass suffering and literal starvation of Haiti’s people and allowed the West’s slaveholders to portray Haiti as an example (especially to those still enslaved) of why slaves should accept their position within this inhumane institution. To justify this embargo, all Western powers decided to refuse to acknowledge Haiti as a legitimate state.

Richard Albert, another Canadian who is an Assistant Professor at the Boston College Law, speaks to what all of us owe to the Haitian people on the Huffington Post and Race Talk,

The death and disaster in Haiti are the direct result of the world’s failure to repay its greatest debt to a heroic nation whose citizens stood up for freedom at a time when others wilted in the face of tyranny….

Today’s stable and prosperous democracies–countries which owe their stability and prosperity in large part to the Haitian Revolution–have been derelict in their duty to redress the harm they have done to what was once the pearl of the Antilles. The world’s great democracies have been built on the bloodied backs of Haitians, and the beneficiaries of Haiti’s sacrifices have yet to acknowledge their complicity in Haiti’s impeded development…

Since rising nobly in a glorious yet improbable victory to win its independence, Haiti has languished in despair, contrary to the auspicious beginnings that the Haitian Revolution foretold. Only twenty years after defeating the French, Haiti was forced to pay a sum of $21 billion to France in exchange for official recognition from the international community–a crippling sum for a young nation still recovering from the devastation of slavery and the aftermath of war. And as if that were not enough to mire a nascent state in the depths of ruin, Haiti endured, though barely survived, civil wars and foreign-led coups during its first hundred years of independence…

Haiti, the mother of liberty and the axis of freedom, has been the catalyst for many of the human rights victories we take for granted today. For by staring down the forces of tyranny, defeating their French imperial oppressors, and casting the decisive stone against the expansionist designs of Napoleon Bonaparte, the brave people of Haiti stood as the embankment against the tide of tyranny that threatened to sweep much of civilization.

And just as Haiti stood up in 1804 for freedom in the world, it is now up to the world to stand up for Haiti.

The world is trying to stand up for Haiti, lawyers included. Pam Smith at Legal Pad covers a San Francisco lawyer who got caught in the Haiti earthquake when on business there, trying to build up the judicial system there.

Haiti Quake Shakes Court Planners from Cal Law on Vimeo.

Their project is probably set back some after the recent disaster.

Todd Harrison at Precedent Magazine outlines some of the initiatives that lawyers have undertaken in the Haitian relief.  The ABA Journal covers how the Florida Bar is asking all lawyers in the state to contribute a single billable hour, which in total would amount to $17 million, and the story of Daley Thuillez, the pilot/lawyer who flew to Haiti with supplies and back with passengers on his Pilatus PC-12.  Even more refreshing is that Big Law is chipping into the relief effort too.  Could this be what Tech Law Notes calls an “online donation revolution?”  One partner who traveled to Haiti said,

I think the best way I can describe it is that I saw things I wish I’d never seen. I was asked to assist in medical treatment care in ways that I thought I never would or could.

As a law student with a background in emergency management who has traveled to disaster zones, that’s probably the most accurate description of disaster relief possible.

David Badertscher says that bloggers can do their part by letting others know on their site how much destruction the country has faced.   For example, Eric Turkewitz shares images of the presidential palace, before and after the earthquake.  Bloggers can also participate in microvolunteering, by tagging photos and searching for missing people.  Grassroots collaboration can be found on the Crisis Commons, and the ABA has a Haiti Earthquake Legal Resources page.

A more significant building that has fallen is the Grace House of Hope orphanage, which is receiving $50,000 from Kirkland & Ellis, in a country where as much as 8% of the population may be orphans.  Not all orphans in Haiti though are children without parents,

The threat of trafficking for the purposes of adoption or prostitution becomes much graver during disasters like the current one in Haiti, which has left thousands of children orphaned or unaccompanied. Even before the earthquake, trafficking and kidnapping of children was a problem in the Western hemisphere’s poorest country, and the post-quake chaos has reportedly made things worse.

In one case, a Canadian pastor told reporters that a man offered to sell him a little Haitian boy for $50. He refused.

We probably wouldn’t be hearing about it though if he accepted.  The situation for children in Haiti is dire, and  Andrea Carroll laments that 225,000 children in Haiti (2/3 girls) are sent into domestic slavery out of poverty.

Even philanthropists can be taken advantage of though.  The Attorney-General of Alabama is warning citizens about fraudulent schemes that could deceive potential donors.  The Attorney-General of Mexico is raising awareness about the existence of slavery today.

Some are suggesting policy measures in Haiti that could have a larger effect.  Alex T. Roshuk, a New York State attorney with two law degrees from Canada, suggests temporary immigration relief for Haitians into the U.S.  The best way to help Haiti though, might be to cancel its debt.  Words can kill in Haiti, and Rebecca Solnit offers some strong critique of media coverage and depictions there.

A far less famous slave revolt than Haiti was one in Bahia, Brazil.  João José Reis documents in his book, Slave Rebellion in Brazil: The Muslim Uprising of 1835 in Bahia, that these African slaves were waging a jihad to establish an Islamic state in Brazil run by shari’ah laws.   In fact, Dr. Diouf notes that jihads in West Africa were the most significant collective response by Africans in their attempt to stop European slavery and expel colonial powers.

Probably not what Obama had in mind.

In Brazil, it resulted in mass forced conversions to Catholicism, and a deep unease over importing further Africans into the country, cited as one of the possible reasons for that country’s abolition of the slave trade.

Allegations of jihad take a different meaning in the modern context. The big decision by the Supreme Court of Canada this past week was with Guantanamo Bay detainee, Omar Khadr.  The Court ruled that Khadr’s Charter rights to life, liberty, and security of the person had been violated, but that the judiciary cannot order the Prime Minister to seek his return.  Canada is going through its own debate about the separation between the executive/legislature and the judiciary, and legal academics and politicians are already weighing in.

Khadr remains the only citizen of an industrialized nation at Guantanamo who has not had his government at least try to seek his return.

Khurrum Awan sees the ruling as an opportunity for opposition parties to claim their stake if citizens unite against government inaction,

In making this decision, the Court has been mindful of the separation of powers between the executive and the judiciary, and has struck an appropriate balance between its obligations to protect constitutional rights while not unduly interfering in how the government acts in policy-making areas. However, the Court’s ruling has provided the opposition with an opportunity to continue building an already developed, critical narrative of Stephen Harper’s attitude towards democratic institutions and constitutional norms.

Dr. Dawg of Dawg’s Blawg said,

…if the Charter can’t bind governments when its very purpose is to bind governments, then a knife has just been taken to it by the Supreme Court…

Is the government really not required to take positive measures to uphold Charter rights? Can it sit idly by and knowingly permit a citizen’s rights to be infringed, refusing to act within its authority to protect that citizen? The Supreme Court of Canada says yes. But if that is the case, 24 (1) [judicial remedies] rings very hollow indeed: how does the victim of injustice obtain his remedy? How is he made whole?

Law student James Gotowiec of The Court provides a suggestion this morning of a remedy that might be possible,

In the end, the value of this judgment for Khadr may depend on the decision in a case currently under reserve. In City of Vancouver v. Alan Cameron Ward (Case No. 33089), the Court has been asked to determine whether damages are available as a remedy under s. 24(1) when a Charter breach was not accompanied by a tort, did not result in loss to the plaintiff, or was not the product of bad faith. If they answer yes, perhaps Khadr will be able to turn the Court’s clear finding of an ongoing s. 7 breach into an award of damages. Of course, how that would be valued is anyone’s guess. How one quantifies damages flowing from seven years spent in a legal black hole may be Khadr’s next question for the Supreme Court.

Antonin Pribetic, “The Trial Warrior,” comments on the decision in light of principles of international law,

While the recognition of Canada’s international law commitments is laudable, it is equally confusing; insofar as the majority’s reasons conflate conflict of laws (private international law) with public international law. Clearly, Canada has entered into various multilateral and bilateral conventions or treaties (some of which create reciprocal rights and duties between state-state or investor-state, while others create or promote private rights of action). In any case, all such international instruments are implemented domestically via legislation.
However, customary international law principles, such as universal jurisdiction or jus cogens remain elusive (e.g. Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675, leave to appeal refused, [2005] 1 S.C.R. vi). The line between custom and convention is not easily drawn, as in the case of domestic versus international (or transnational) public policy.

Charon QC, on the other hand, outlines the judicial defeats of terror laws enacted in the U.K. after a decision reported by the Times,

The justices condemned the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Measures) Order 2006 as oppressive and paralysing. Lord Hope of Craighead, the deputy president of the court, said that those affected were in effect “prisoners of the state”.
He added: “This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament.”

The justices said that those affected by the orders had not had the opportunity to challenge the grounds on which they were suspected, but not charged, of financing terrorism.

Scott H. Greenfield wonders addresses criticisms by Paul Cassells and others over why the underwear bomber was read his Miranda rights, because apparently he “clammed up” right after:

Whether Miranda warnings change the game or not (and given how many suspects vomit inculpatory statements despite the warnings, the efficacy of the warnings is very much in question), there’s little doubt that it would be far easier for law enforcement to obtain information without them.  Of course, it would be far easier for law enforcement to obtain evidence if they could just break into homes at will.  In fact, they might be really, really effective if there were no limits on law enforcement at all. Does anyone doubt this?
But here we have a man attempting to blow up a plane filled with Americans, in American airspace, over American soil, seized by American law enforcement.  And the views of a newspaper, a former federal prosecutor and a former federal judge is that the FBI blew it, and blew it huge, by adhering somewhat to American law.  Mind you, nobody’s even mentioning the first 50 minutes of pre-Miranda custodial interrogation.

…It’s disconcerting that voices who have, in their former lives, sworn fealty to the Constitution, and a newspaper whose ability to express its views depends on it, are so quick to scream that law enforcement blew it when they comport themselves (somewhat) with the rules.  If they’re so quick to toss out the Constitution when it comes to interrogation, can it be much of a surprise that a little torture doesn’t bother them?

Speaking of torture, which was routinely used to keeps slaves in check as well, Jack M. Balkin has a transcript of John Yoo on the Jon Stewart show, talking about the Torture Memos.  Balkin adds,

…the torture memos were written not to define “torture” with respect to new situations where the statute was unclear; rather they were written to allow the CIA to get around the legal ban on torture, even to the point of arguing that the torture statute would be unconstitutional if applied to persons acting under the direction of the President as commander-in-chief. The torture memos were not a hypothetical lawyer’s exercise to guide future conduct. They were written in order to ensure that members of the CIA would never be prosecuted for torture.

Jonathan H. Adler at Volokh notes that Yoo will likely be cleared of misconduct, and that torture techniques were approved from the highest levels of the White House.

Bill Otis still thinks that “our hypnotic obsession with Miranda” may one day result in “preventable catastrophe.”  Problem is that the ticking-bomb scenario so famously advanced by Dershowitz has never happened in history – ever – and all cases of torture are conducted without foreknowledge that an individual might have this type of information.

The only thing tougher than proving that torture is officially sanctioned is demonstrating how evidence obtained through torture can be used.  Kevin Cole highlights these substantive and procedural evidentiary problems through a paper by Kai Amboson on The Transnational Use of Torture Evidence, and Glen Greewald suggests that judicial warrants for surveillance actually makes intelligence more effective by focusing on more pertinent information.

As Gideon points out, violations of constitutional rights are not simply “technicalities.”  We might as well just replace our legal lingo with “something… something… something… dark side.”

It would make the debate so much simpler.

6. Kizzy Waller

Kizzy Waller is Kunta’s daughter, through his wife Belle.  Like most slaves, Kizzy did not have access to education.  She was secretly taught how to read by her master’s nice.  When it was discovered that Kizzy was literate, she was separated from her family.

Saying goodbye is always hard to do.  This week we’re saying farewell to Rob Ambrogi at Legal Blog Watch, who won’t be blogging there any more.  You can still hunt him down on Law Sites and Media Law.

Kizzy is then sold to a man in North Carolina named Tom Moore, who violently rapes her.  Rape is obviously a cruel act – some would even say inhumane.  But Prof. David Cassuto of Pace Law points out that comparing animals to humans though is bound to lead to folly.  This is what he quotes over at the Animal Blawg,

Intelligent? Pretty much all they [dolphins] do is swim, eat, & talk to each other. Oh, there is one more thing they do…
For those who think of dolphins as oh-so-sweet, innocent cuddly creatures, um, male dolphins often gang-rape females.
Liberals are always trying to minimize the distinctions between man & beast, man & woman, man & God, as well as good & evil.

Hostility towards black women may not always be as violent in today’s context, but there are legal recourse towards such incidents as well.  Yolanda Young points out the case of Kamisha Menns, a Jamaican-born lawyer who filed a complaint against Howrey for creating a hostile work environment,

At some point after moving to Brussels, Menns says in her complaint, she began being removed from projects despite receiving compliments on her work from several partners. She says her workplace was shifted to a different floor from that of other lawyers. When she reached out to the office’s managing partner, Trevor Soames, the complaint alleges, Menns was told “that because she was an ‘impressive woman’ Ms. Menns made Howrey’s white employees feel uncomfortable.” The complaint alleges that Soames also told her that because she was the first black associate to work in the office, the office staff’s treatment of her might be influenced by the fact that “they had never before been forced to be in a ’subordinate position’ to a black person.”

The complaint goes on to allege that the situation only got worse when she reached out to firm leaders, including the Washington-based diversity committee and CEO Robert Ruyak. In a June 2, 2009, meeting, a day after Menns sent an e-mail to Ruyak and eight members of the diversity committee outlining the allegedly discriminatory treatment, Menns was fired.

Yolanda hosted Blawg Review #195 on Martin Luther King Day last year, and it’s still worth checking out.

It’s not just black women that have it tough in law firms.  Ms. JD updates us on CBS’s The Good Wife, where female associates are being relegated to clerical work

Sometimes employment lawsuits go too far.  Michael Young of Who’s the Boss suggests that the Supreme Court of California’s ruling in Chavez v. City of Los Angeles could help reign in attorney’s fees for employment lawsuits in that state.  The employee in Chavez sought to turn a $11,500 employee verdict into an attorney’s fee application for $870,000, a claim that was denied on appeal by the court:

WHAT’S THE IMPACT OF THIS CASE?

Here’s the $870,000 question:  Will Chavez have any impact on either (a) the filing of unmeritorious or marginal employment lawsuits; or (b) the overlawyering of simple employment lawsuits?

One could say that the California Supreme Court is sending a message to the bench and bar that the GELP [Giant Employment Law Pendulum] has swung far enough in favor of the employees, and it is now time to bring it back, if but a little.  Look at the Roby decision’s reining in of punitive damage awards (blog here).  Hernandez’ decision to allow limited workplace surveillance (blog here).  The decision to allow the appellate court’s Chau (Starbuck’s tip) decision to stand (blog here and here).  And now Chavez – it’s ok not to award attorney’s fees to successful employee plaintiffs.

But will anyone listen?  Now that the Court That Must Be Obeyed has expressly blessed the trial court’s discretion to deny attorney’s fee awards to employee plaintiffs who recover less than $25,000 in unlimited civil actions, will the trial courts now start exercising that discretion?

Now that employees who obtain only relatively small recoveries can be denied their attorney’s fees, will plaintiff’s attorneys be more selective in the cases they take?  Will they litigate the smaller cases more in line with their actual value?  Will they be sufficiently discouraged to overlitigate the small ones such that the settlement value of the small cases are actually in line with the claimed injury suffered by the employee?

Will there be more balance between the interests of employers and employees in California courts?  Is that Pendulum swinging back?

The jury is out…

Speaking of mega-damages, Erik Magraken of BC Injury Law presents a case with $12 million damages  for personal injuries awarded by a jury in Ciolli v. Galley. As he explains in the post, we’re not normally allowed those kinds of numbers in Canada, and the case is already heading to the Court of Appeal.

5. Chicken George

Chicken George was the only child of Kizzy Waller.  He was conceived through rape by his mother’s master, and gets his name from his profession as a cock-fighter.  Many slaves were raised by parents who were not biologically theirs, by virtue of prevalent rape and routine separation of families. Adam Kolber of the Neuroethics and Law Blog is discussing fractional parenting of another kind, of surrogacy in A.G.R. v. D.R.H., and artificial insemination resulting in people having several parents.

At the age of 18, Chicken George meets a fellow slave named Matilda.  They get married in 1827, and eventually have eight children.  In the television adaptation of the book, Matilda says to George at one point, “I don’t see you with my eyes, I see you with my heart.” It’s awfully reminiscent of the line from Avatar, where the Na’vi greet each other with, “I see you.”

Although Charon QC already mentioned Avatar in Blawg Review #225, the topic is worthy of another incarnation here given that sales have surpassed $1 billion.  Mitch Kowalski of the Legal Post points us to some strong property and market economy themes outlined in David R. Henderson’s review,

Some writers who are generally my allies in favor of capitalism and free markets have been critical of the movie Avatar… But I don’t think Avatar is an attack on capitalism. One could leave the movie and have no idea, based on just the movie, about James Cameron’s view of capitalism. And while it did have some clichés (most movies do), I didn’t find it loaded. So what is Avatar? In fact, Avatar is a powerful antiwar movie – and a defense of property rights. For that reason, I found it easy to identify with those whose way of life was being destroyed by military might.

David Boaz also claims there are strong property rights themes in Avatar, and says that there is some subtle right-wing appeal for those looking for it.  Dante Atkins resists ideological fault lines, while Mark at Libertas et Memoria sees it much simpler:

I like a good story and all, but I also am a fan of humanity.  If I see a movie and it’s aliens vs. humans, I’m rooting for the humans…  If the movie is humans vs. apes, I’m rooting for the humans.  Nothing against apes, but I’m going to root for the humans.  Now, if the movie was apes vs. aliens, I’m going to root for the apes.  My default position, in the absence of humans, is to root for the Earth-team. So, if we ever see the movie Dolphin vs. Predator, I’m cheering for the dolphin.  But if it’s humans vs. aliens, I’m cheering on the humans.  What about humans vs. orcs, you say?  I’m on the side of the humans.  And that goes for wood elves, replicants, Cyclons, whatever.  If it’s somebody else vs. humanity, I want the humans to win.

Would he feel the same way if he knew that the dolphins have a dirty little secret?

Eric Brown says forget about Avatar, we should all go see the Sundance film, Casino Jack and the United States of Money, a wild tale about Jack Abramoff, campaign finance, political corruption, and “sex slaves in the Mariana Islands.”  Probably not as much right-wing appeal here, but you’ve got to wonder if Obama is going to stop this type of slavery as well (or eve be able to).   The film’s director, Alex Gibney, does provide some commentary about campaign financing,

…as bad as we think it is, it’s even worse… and every day it’s getting worse and worse and worse… Very good people may be turned to a very corrupt direction, because they spend so much of their time trying to raise money… the only hope is for people to get angry.

Some angry farmers in Canada are looking for their marketing freedom, after the Supreme Court of Canada declined to hear an appeal in Canadian Wheat Board v. Attorney General of Canada. If you’re looking for some raw milk with those wheaties, you have the freedom to in Ontario after a ruling before a justice of the peace in Newmarket.  I’m just glad that chickens do not provide milk, raw or otherwise (so-called chicken milk is actually produced from meat).

Todd Harrison gives us a backgrounder to the raw milk saga on the Prededent Law blog.   But Connie Woodcock in The Sun isn’t so enthusiastic,

I’ll put my biases right up front. I’m a dairy farmer’s daughter and I wouldn’t drink raw milk if you paid me… But hey, you want food freedom. And besides, raw milk tastes so good, right?
…So while the Ontario government mulls over an appeal — and I hope they do — drink all the raw milk you like. Go nuts. Feed it to your kids. Ignore the danger and let’s hope nobody gets sick. Or dies.

If someone does unfortunately get sick, Bill Marler can say, “I told you so.”  His post from last month covers some of the personal injury cases he’s handled directly related to raw milk infections, and he mentions a current warning in Saratoga County over possible Campylobacter contamination.

Besides, we all know that milk  is a gateway drug to much more dangerous drugs like crack cocaine.

4. Tom Murray

Tom was the fourth son of Chicken George and Matilda, and becomes a blacksmith as an adult.  Tom marries a Native American slave, Irene.  During Tom’s life the slaves are freed, but former slavemasters turn to KKK to vent their feelings towards Blacks. Tom discovers identity of nightriders by etching a symbol on the horseshoes, and takes this evidence to the Sheriff, who in turn tips off the KKK.

Most hate crimes, including those perpetrated by the KKK against blacks, stem from fear.  White landowners feared retaliation from former slaves who had been subjected to horrendous abuse and mistreatment.  They feared loss of wealth once inexpensive labour supplies dried up.

The Bob Edwards Show recently played a speech from Hollywood actress, Phyllis Kirk, entitled Freedom from Fear,

I believe it is in fear that we commit the crimes of intolerance and prejudice and what seems to me to be perhaps the saddest, most grave crime of all, our resistance to change. Afraid, we fail to see that the change is the natural and good fruit of knowledge and growth. We cling to the familiar because it is familiar and seems, therefore, to be secure. We butcher the unfamiliar and slaughter justice with the same stroke. Frightened, we seek love only for ourselves and forget to search for love in ourselves.

Although it’s not 40 acres, Texas Wills and Trusts Law Online describes why do-it-yourself legal solutions aren’t always cost-conscious as they may appear.

Tom also lived during the American Civil War, where North and South fought over the right to own slaves.  Most historians today acknowledge that economics played a far more important role in the conflict than either racism or rights-based advocacy.

Another war is in the headlines this week, this one in Iraq, largely due to former PM Tony Blair’s testimony.  Yamin Zackaria is pessimistic of the outcome,

The ineffectual Chilcot Inquiry was never designed to account Tony Blair; rather it appears to have served as a lesson for future Prime Ministers not to make ‘administrative’ errors like submitting dodgy dossiers. Moreover, it gave Tony Blair an opportunity to present his side of the story in a casual manner.

If innocent people were killed because of an illegal war, then a crime has taken place. Therefore, Blair should have faced a panel of experts from neutral countries, selected by the UN. The process would have focused on the legality of the war, and the consequence for the innocent Iraqis; depending on the outcome, it might have formed the basis for a criminal prosecution.

Lawrence Solum discusses the lexicon of legitimacy, as in “The invasion of Iraq does not have a legitimate basis in international law,” but expresses unease over its use because of ambiguity and the lack of theoretical analysis.

Richard Hall thinks it’s unlikely Blair will ever be prosecuted by the ICC for the Crime of Aggression, which the court will attempt (again) to define this summer, because it will lack temporal jurisdiction. Steve M. at Dissenting in Part claims he still likes Obama, who has maintained his Iraq withdrawal schedule, though he’s still disappointed in part over national security issues.

Oh, and in case nobody told you, the Marines withdrew from Iraq this week after seven years – victorious, of course.  Everything is going to be hunky-dory there from now on.

It seems that burn pits in Iraq are also becoming the subject of lawsuits, as Jon L. Gelman points out that waste management regulations outside of the U.S. must still comply with the National Environmental Policy Act.  Supposedly they can expose veterans to toxic chemicals, which may  have some medical effects.  Douglas Berman mentions a bill in Kansas, which would provide reduced sentences for veterans dealing with PTSD.

Trauma of a different kind is on Jamie Leigh Jones’ mind, as the former Haliburton employee continues her fight to sue the company after being allegedly raped by military contractors in Baghdad in 2005.  The company claims that the contract she signed requires mandatory arbitration in place of litigation.

Erik Gerding thinks the discussion about the role of corporations in society isn’t over, connecting two cases that would appear to be unrelated – the recent SCOTUS decision in Citizen United v. Federal Election Commission, and Google’s conflict with China.  Russell McOrmond objects to Secretary of State Hillary Rodham Clinton’s characterizations in her Jan. 21 “Remarks on Internet Freedom,”

Ms. Clinton, and possibly the Obama administration as a whole, are suggesting that the infringement of patents, copyrights, trademarks and related exclusive rights are comparable to terrorist recruitments, and warrant extreme measures to stop.

Watch it Russell…  you are either with us, or with the copyright infringers.

3. Cynthia

Cynthia was the youngest daughter of Tom and Irene.  She married Will Palmer at 22, and had to endure the full brunt of the Jim Crow laws.  The foremost of these were the literacy tests, used to deny African-Americans suffrage.  By deliberately excluding African-Americans from proper education, the government was able to effectively deny them the vote, thereby preventing them from collectively influencing or affecting public policy.

The role of special interests in a democracy is still an issue of contention.  Although corporations are hardly a disempowered minority, some claim Citizen United will benefit Republicans the most.  Chakanya Sethi, a Canadian law student, outlines some of the arguments in the case, and what the fallout might be.

David Oxenford of the Broadcast Law Blog suggests that the implications of Citizen United might be a return of the Zapple Doctrine (23 F.C.C. 2d 707 (1970)), which hasn’t been used in over 25 years.  This interpretation of the Fairness Doctrine requires broadcasters to allow a candidate to respond when an opponent has purchased time on their station during campaign periods:

…stations need to treat all candidates running for the same office in the same way – allowing them to buy equal amounts of advertising time on a station, and giving them equal amounts of free time on a station if the candidate appears outside of an exempt program (e.g. news or news interview programs, or on-the-spot coverage of a news event, including most debates)…
With an influx of corporate money into political campaigns, Zapple issues are more likely to find their way to the FCC in coming elections.

Howard Wasserman discloses as a Democrat that he thinks the case is rightly decided, but notes the additional controversy over the SOTA,

…where one stands on the political spectrum seems to dictate where one stands on the question of whether President Obama was right to call out the Supreme Court for last week’s decision in Citizens United…

Of course the President (and any member of Congress) are entirely within the bounds of their structural powers and the doctrine of separation of powers to criticize the Court for its decisions. Especially when there is not much Congress can do to undo the decision.

Robert Sherridan’s response to the SOTU is to quote the First Inaugural Address of Pres. Abraham Lincoln in 1860.  Lincoln discussed the Dred Scott decision of 1857, which ruled that African slaves and their descendants were not protected by the constitution and could never be citizens by saying,

…while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes…

Lincoln’s oath of office was administered by of all people Chief Justice Roger B. Taney, who authored the majority opinion in Dred Scott.

If not for Paul Caron, we wouldn’t realize that what Obama was really talking about during the whole SOTU was taxes.  Ilya Somin at Volokh says he wasn’t very surprised by the SOTU,

There weren’t many surprises in the State of the Union. However, there were two interesting unexpected twists. First, Obama called for gays to be allowed to serve openly in the military. I’m not surprised that Obama supports this. But I am surprised that he has decided to make a push on that front right now. This is one of the rare issues where Obama and I agree, so I hope he succeeds. Polls say that a strong majority supports repealing “don’t ask, don’t tell,” so this initiative is less of a political risk than it was when Bill Clinton tried it in 1993.
The other surprise was when Obama channeled Sarah Palin by calling for increased offshore oil drilling in order to achieve “energy independence.” Perhaps he will take up Palin’s “drill, baby, drill” slogan as well. On a slightly more serious note, this may be another issue where Obama and I agree (though I doubt that the benefits will be as great as Palin claimed). I just don’t know enough about it to be sure, so I will respect the limits of my own political knowledge. Given all my scholarship on political ignorance, it’s the least I can do.

Same-sex rights continue to be one of the major challenges in the U.S. (we resolved the marriage issue years ago in Canada).  Ashby Jones at the WSJ provides an update on Proposition 8,

And now what happens? Judge Vaughn Walker of San Francisco heard 12 days of testimony in the nation’s first federal trial of a ban on same-sex marriage. He said he would schedule closing arguments after final written submissions from both sides, due in 30 days.

Literacy isn’t just about reading, it’s about writing too.  Georgetown Law has an audio podcast this week by Terry Lee Wright on her new book, River of Innocents, which covers slavery and human trafficking in the world today.

Emily White is a lawyer who was so overcome by loneliness that she quit her job, moved to a remote home in Newfoundland, and wrote a book about how lonely she was.  That’s unusual, even for us in Canada.

2. Bertha George

Bertha became the first descendant of Kunta to enter post-secondary education when she enrolls in Lane College.  Although Bertha didn’t study law at Lane, the Weekly Law School Roundup #208 covers some exam-taking tips, as well as how to donate your Lexis points to Haiti, or text for Haiti.

Both Bertha and her husband, Simon Haley, would work as teachers for the rest of their lives. If you’re even faintly interested in ever teaching law in the U.S., Prof. Dan Markel has a running spreadsheet about the current hiring market.  Personally, it looks a little too similar to the OCI process.  Even law profs were once law students, and Ezra Rosser bookmarks a paper by a law professor Lisa Pruitt, relating her 1L experiences given “her rural, working-class background.”

American readers might be surprised to find that the first black man to study law in North America was Robert Sutherland, a Jamaican immigrant to Canada who also became the first known minority graduate of a Canadian university when he matriculated with honours from Queen’s in 1852.

Our own founder here at Slaw, Simon Fodden, was able to dig up a law school curriculum at Osgoode Hall from 1890 due to a project digitizing legal material. It looks like the subjects back then were not much different than today.  One of our contributors, Annette Demers, points out that they’ve been digging through their archives to find a petition by Josiah Henson, the one and only “Uncle Tom,” whose cabin is located in South-West Ontario.  Carl Malamud has scanned over 250 years of American federal case law, and is sharing it – free.

Other law professors have something else to teach.

Prof. Stefan Padfield shares his 5-year run as a corporate law instructor, and if that’s not enough to prove to you that corporate law can be fun, Prof. Eric C. Chaffee gives the best Economic Grammy to Boom or Bust:

Prof. Donald C. Clarke gives us his top 10 cases that changed China, for those like being cosmopolitan but aren’t sophisticated enough to regularly apply Google Translate to Chinese news (assuming they don’t filter that too).  Margaret Ryznar provides a top 10 weird divorce settlements on the Family Law Prof Blog, proving that the truly bizarre always exists closer to home.

Prof. Franklin G. Snyder doesn’t have a top ten list. He just has ten people with a secret recipe and asks, “Do you know the Muffin Man” at Bimbo Bakeries?  Prof. Kevin R. Johnson has 10×10x10 and then some reasons why you should be worried about immigrant detention, and the rise of the private prison-industrial complex.

Above the Law describes how Skadden Fellowship Program encourages law students to exert the freedom to conduct public interest work, something that can only be done in a vibrant democracy free of any fear of retaliation.  The BLS Library Blog has a podcast with law student Michael Pope (‘10), who received an Equal Justice Works Fellowship to provide legal representation to indigent youth in New York.  The fellowship is supported by the New York law firm, Morrison and Foerster LLP, also known as MoFo, a term used colloquially to mean something very different.

African-Americans have an oral tradition of good-natured trash talk often used in school yards which doesn’t use a base ten, but is instead known as “playing the dozens.”  Harry G. Lefever describes the phenomenon back in 1981 in Playing the Dozens”: A Mechanism for Social Control,

Playing the dozens is more than a game. It has more than expressive value; it also has instrumental or utilitarian value. In other words, playing the dozens fulfills certain psychological and social functions for those who participate in the ritual. According to Dollard, the dozens developed and were maintained largely because they were a mechanism to displace aggression. He argues that the ritual evolved as an outlet for the display of aggressive behavior which ideally would have been directed against white society. That is, through the ritual blacks were taking out aggression against fellow blacks rather than against their real enemy, the white society…

Abrahams offers quite a different type of explanation. He argues that the dozens developed because of the tensions males face in the American black family structure. “The Negro man from the lower class is confronted with a number of social and psychological impediments. Not only is he a black man in a white man’s world, but he is a male in a matriarchy. The latter is his greatest burden.”7 One way to counteract this strong matriarchal influence, according to Abrahams, is for young black males to use the ritual of playing the dozens as a reaction formation…

A third possible function of playing the dozens is that it has educational value and offers the participants many opportunities to develop their verbal skills. This function is clearly stated by H. Rap Brown: “The street is where young bloods get their education.”

Brown was actively involved in the Civil Rights movement, and joined the Black Panthers in 1968.  He converted to Islam in 1972, and is now known as Imam Jamil Al-Amin, currently sentenced to life without prison for the murder of two police officers.  Presumably the non-violent methods of social control referred to by Lefever had run their course.  Brown also founded an organization that included Luqman Abdullah, who was shot 21 times during a controversial FBI raid this past October.  The results of Abdullah’s autopsy are expected later today.

Joshua Gilliland of Bow Tie Law is playing with dozens of a different type.  He shows that “there are potentially dozens of metadata objects that can be provided in a load file (usually agreed upon by both parties prior to its creation)” during eDiscovery.   It’s all very technical and complicated for the uninitiated, but then litigation is going that direction too as computers proliferate in our society.  Lawyers can keep track of all these changes at LegalTech New York, which starts today. Rob Ambrogi provides some of the highlights,

That is when Westlaw will formally unveil its most sweeping overhaul since its move to the Web and LexisNexis will announce what it says will be a major new product for legal professionals, even as it prepares to announce an overhaul of its own research service at a date yet to be specified…

These developments come amid an unusual confluence of events already stirring the legal atmosphere, with Google making its first foray into legal research, Bloomberg Law positioning itself as a serious contender to take on West and Lexis, and Fastcase preparing to deliver free legal research to the iPhone (and the iPad?).

John Wallbillich of Wired GC gives us six iPad lessons for lawyers.  But that’s still half of a dozens, so let’s take a look at the six things the iPad is missing.  Douglas Berman of Sentencing Law and Policy wonders if the iPad “might alter the resource and technology universe for lawyers, law professors and law students.”

It’s all speculation for us out here in Canada, where we won’t be free to have an iPad for some time yet.

1.  Alex Haley

Haley’s story could never have been told without his ancestors narrating their tradition, passing it on from generation to generation. Stephanie West Allem is quoting Diane Wyzga on her own narrative of legal storytelling, but on tips for juries:

Randy Rozek and Gordon Johnson asked me to write about the process of working with the award-winning trial team of Malone and Scarlett to help revise the trial story which ultimately resulted in their $49 million trial verdict. Specifically, Mr. Rozek asked me whether it was possible to expand on my thought process and provide some tips you could use in your own practice. I agreed, although unraveling a thought process is much like recalling a dream.

One of the high points of Haley’s writing career, according to him, was interviewing Malik Shabazz (Malcolm X) in 1963.  He later helped Shabazz write The Autobiography of Malcolm X, completing the last chapters after his death, which document his transition out of the Nation of Islam and embracing a more inclusive ideology.  In his 1964 Letter from Makkah, Shabazz said,

America needs to understand Islam, because this is the one religion that erases from its society the race problem. Throughout my travels in the Muslim world, I have met, talked to, and even eaten with people who in America would have been considered white – but the white attitude was removed from their minds by the religion of Islam. I have never before seen sincere and true brotherhood practiced by all colors together, irrespective of their color.

You may be shocked by these words coming from me. But on this pilgrimage, what I have seen, and experienced, has forced me to rearrange much of my thought-patterns previously held, and to toss aside some of my previous conclusions. This was not too difficult for me. Despite my firm convictions, I have always been a man who tries to face facts, and to accept the reality of life as new experience and new knowledge unfolds it. I have always kept an open mind, which is necessary to the flexibility that must go hand in hand with every form of intelligent search for truth.

Similar themes and similar misunderstandings can be found between both the African-American experience and Islam, and the two are deeply intertwined as mentioned above.  Faisal Kutty mentions a lecture on Muslim “blackface” in Orientalism by Dr. Ariel Salzmann, on “the use of denigrating Muslim stereotypes in quotidian Western European culture.”

My visit to the site where Malcolm Little's home in Michigan was burned down by the Klan

Shabazz was born Malcolm Little, he aspired as a young teen to one day be a lawyer, until he as told by his teacher in Mason, MI, “that’s no realistic goal for a nigger.”  Fortunately it’s still a goal for many minorities in American today, but one that appears increasingly difficulty to achieve.

The Legal Broadcast Network covers a disturbing trend, where minority enrollment is dropping in law schools even as capacity rises:

While law schools added about 3,000 seats for first-year students from 1993 to 2008, both the percentage and the number of black and Mexican-American law students declined in that period, according to a study by a Columbia Law School professor.

What makes the declines particularly troubling, said the professor, Conrad Johnson, is that in that same period, both groups improved their college grade-point averages and their scores on the Law School Admission Test, or L.S.A.T.

“Even though their scores and grades are improving, and are very close to those of white applicants, African-Americans and Mexican-Americans are increasingly being shut out of law schools,” said Mr. Johnson, who oversees the Lawyering in the Digital Age Clinic at Columbia, which collaborated with the Society of American Law Teachers to examine minority enrollment rates at American law schools…

“What’s happening, as the American population becomes more diverse, is that the lawyer corps and judges are remaining predominantly white,” said John Nussbaumer, associate dean of Thomas M. Cooley Law School’s campus in Auburn Hills, Mich., which enrolls an unusually high percentage of African-American students.

Even with the oral traditions and all his research, Haley had to fill in the gaps in the story with some fiction.  The source of his fiction did come under scrutiny, giving rise to a lawsuit for copyright infringement.  Haley shouldn’t feel too bad though, because it seems even the judges are doing it.

The Paul L. Bowley Library points us to a decision in the Netherlands which appears to plagarize a blog post by a Dutch lawyer.  Mark Masnick at Tech Dirt said,

Now, plagiarism and copyright infringement are two different (though sometimes overlapping) things, but it does seem a bit ironic — and even under Dutch copyright law, this bit of copying could be seen as infringement as well. Apparently, the judges directly cut and pasted the following two sentences:

“in case law and legal literature it is generally held that an embedded link constitutes a publication. After all, the material can be viewed or heard within the context of the website of those who placed the link, and placement causes the material to reach a new audience.”

The exact quote above came from a blog post by lawyer Douwe Linders, who had no idea the judges were going to copy it. While it seems like a simple quote like this should be perfectly legal in any context, let alone a legal decision, the discussion of this notes that while Dutch copyright law does let you quote short bits of content from others for a variety of reasons, it requires attribution. In this particular case, no attribution was provided.

What makes it even worse, of course, is that the quoted/plagiarized/infringing bit might not even be accurate. As we discussed in our own post on the subject, there appears to be significant disagreement over whether or not embedding authorized content could be seen as infringing — and apparently, there is a widespread debate about it in Dutch legal circles as well, saying that it is far from readily agreed upon in the legal literature.

Alex Haley died in 1992, leaving behind two daughters and a son.  There is no word of any plans to produce a sequel.  The rest of that story is up to you.  Haley once said,

My fondest hope is that “Roots” may start black, white, brown, red, yellow people digging back for their own roots. Man, that would make me feel 90 feet tall.

Conclusion

If you enjoyed this taste of “northern flavour” (sic), you’ll be pleased to know that the next three Blawg Reviews are also hosted by Canadians:

• Feb 8 The Trial Warrior Blog
• Feb 15 Canadian Trademark
• Feb 22 Law Firm Web Strategy

The Ontario Condo Law Blog has their own roundup worth reading, the Best of the Blogosphere for December 2009.  If you’re still looking to get a better feel for Canadian law blogs, checkout the recent Canadian Law Blog Awards (CLawBies).  You’ll note that the best Canadian Law Blog is right here at Slaw, and many of our contributors suggested links to make this Blawg Review possible.

And on that autobiographical note we’ll close.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

Not that this will surprise anyone, considering the retraction the Lancet made in 2002. This BBC report of the ruling of the General Medical Council also includes a nice graph showing the enormous impact on measles infection rates that the doctors who conducted the shoddy research had. Most of them have issued their own 2004 retraction, though not Wakefield, the lead author. I wonder if they are now vulnerable to a malpractice action of some description, as lawyers are for inadequate research. I don’t know if any deaths have occurred, but this account by Roald Dahl is not fun to read. Any thoughts?

The Real-time web has been a popular topic in recent times as we all try to figure out how it is changing, and will continue to change our work lives. I’ve recently started Yammering here at Dalhousie; no not prattling on endlessly, but using the service Yammer or enterprise microblogging. In simple terms think Twitter, without the 140 character limit and limited to your workplace or business email domain. The product has been around for a couple of years and has been referred to in passing here at Slaw previously. In the short time that I’ve used Yammer at my institution I’ve found that it has been successful in bringing together individuals from units that normally do not correspond or cross paths, even though we would all probably be better off if we did. It was brought home this week with the launch of the Ipad as a vigorous discussion broke out about the product, it’s overall potential and the potential impact at this university, absent Yammer, this discussion would have occurred amongst a much smaller group of people who already have these discussions on a regular basis. Twitter is obviously very prominent but a service such as this allows a topic to be discussed in the context of your institution with the convenience of the real-time web.

Canada (Premier ministre) c. Khadr, 2010 CSC 3, (29 janvier 2010)
Le pourvoi etait accueilli en partie.

K a droit à une réparation en vertu du par. 24(1) de la Charte. La réparation demandée par K — une ordonnance intimant au Canada de demander son rapatriement — est suffisamment liée à la violation de la Charte survenue en 2003 et 2004 parce que les incidences de cette violation persistent jusqu’à présent et pourraient influer sur son procès lorsqu’il sera finalement tenu. Bien que le gouvernement doive disposer d’une certaine marge de manœuvre lorsqu’il décide de quelle manière il doit s’acquitter des obligations relevant de sa prérogative en matière de relations étrangères, l’exécutif n’est pas à l’abri du contrôle constitutionnel. Les tribunaux ont compétence, et sont tenus d’exercer cette compétence, pour déterminer si la prérogative invoquée par la Couronne existe véritablement et, dans l’affirmative, pour décider si son exercice contrevient à la Charte ou à d’autres normes constitutionnelles. Lorsque cela s’avère nécessaire, les tribunaux ont aussi compétence pour donner à la branche exécutive du gouvernement des directives spécifiques. En l’espèce, le juge de première instance s’est fondé sur des considérations erronées en ordonnant au gouvernement de demander le rapatriement de K, compte tenu de la responsabilité constitutionnelle de l’exécutif de prendre les décisions concernant les affaires étrangères et du dossier qui n’est pas suffisamment probant. La réparation appropriée, en l’espèce, consiste à déclarer que les droits de K garantis par la Charte ont été violés, et à laisser au gouvernement le soin de décider de quelle manière il convient de répondre à la lumière de l’information dont il dispose actuellement, de sa responsabilité en matière d’affaires étrangères et de la Charte.

Canada (Prime Minister) v. Khadr, 2010 SCC 3, (January 29, 2010)

The appeal was allowed in part.

K is entitled to a remedy under s. 24(1) of the Charter. The remedy sought by K — an order that Canada request his repatriation — is sufficiently connected to the Charter breach that occurred in 2003 and 2004 because of the continuing effect of this breach into the present and its possible effect on K’s ultimate trial. While the government must have flexibility in deciding how its duties under the royal prerogative over foreign relations are discharged, the executive is not exempt from constitutional scrutiny. Courts have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown exists; if so, whether its exercise infringes the Charter or other constitutional norms; and, where necessary, to give specific direction to the executive branch of the government. Here, the trial judge misdirected himself in ordering the government to request K’s repatriation, in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.

Press comments from National Post, CP, NYT, CBC and Cyberpresse.

A unanimous decision by the Court.

This fillip revisits something I blogged about two years ago (Flogging). Microsoft researchers are working with computer scientist Gordon Bell to develop a system that will record, annotate, and make available to recall, nearly every aspect of his daily life. A number of videos describing the project and showing aspects of it have emerged since I first blogged about it. And Bell and co-author Jim Gemmell published a book last year about this long-term experiment, Total Recall: How the E-Memory Revolution Will Change Everything (Roughcut). (Amazon lets you peek inside the book at a few of the first pages.)

The project is described in Microsoft Research pages, MyLifeBits, and in a video on the C-SPAN website (76 minutes). The project aims to capture every webpage Bell visits (not simply the URLs), every TV show he watches, every telephone call he is party to, all of his paper documents, and limitless snapshots of his daily life via the SenseCam he wears around his neck.

I suppose it’s important to note something I missed or didn’t emphasize last time around: Bell and Gemmell want us to know that this isn’t an exercise in life blogging, but rather in life logging, i.e. recording without publication. Even so, this obsessive attention to detail and insistence on the past puts me in mind of madness. Yet, the experiment explores what is for me a truly important matter, that of annotation and recall: as Gemmell jokes in his talk, there’s no point in having a “write once, read never” system. Our institutions, large and small, operate in effect as our external memory and recall devices at the moment; and as we “offloaded” knowledge/memory from our minds into books, so our institutions are now “offloading” book learning and knowledge into computer systems — a.k.a. KM.

There’s a page on the Microsoft site of demo videos, short bursts of film showing various aspects of the system in operation (all done a few years ago now: it looks so MS dated — “…we upgraded to Windows XP…” — in the current world of Apple shiny). And for something a little more dizzying, have a look at the videos made by running together all the shots from a SenseCam during a day in Cambridge and a day in Rome.

I hope that this is not a new theme emerging: privacy proceedings in limbo.

Last week I wrote about how the recent vacancy of the Information and Privacy Commissioner’s office in BC could have placed all pending files on hold. Now, this week, we have a decision [PDF] from the Alberta Court of Appeal that suggests the Commissioner there, Frank Work, may have lost jurisdiction over at least 180 pending cases.

The legislation in issue requires the Commissioner to follow certaint timelines, which can be extended by the Commissioner. From the Personal Information Protection Act:

50(5) An inquiry into a matter that is the subject of a written request referred to in section 47 must be completed within 90 days from the day that the written request was received by the Commissioner unless the Commissioner

(a) notifies the person who made the written request, the organization concerned and any other person given a copy of the written request that the Commissioner is extending that period, and

(b) provides an anticipated date for the completion of the review.

Some lower court decisions have found that the Commissioner would lose jurisdiction for not complying with the timelines, while other authorities have not found such a drastic effect from such a lapse. But in any event, the decision means that the Commissioner may have lost jurisdiction in many cases currently sitting on his desk.

According to an interview with the Edmonton Journal, Commissioner Frank Work says that he intends to appeal to the Supreme Court of Canada.

On May 1, 2009, 23 library partners, including the Paul Martin Law Library at the University of Windsor went live with Evergreen – an Open Source integrated library system. With only 2 – 3 developers to take it out of the box (originally packaged for the public library world), development has literally happened on the fly for the past 10 months.

It has been hectic, but we have a project we can all be proud of. To top it off, yesterday we heard that OLA has awarded the Project Conifer partners with two Divisional Awards. All awards will be presented at the OLA Super Conference happening February 24-27, 2010.

Award for Special Achievement:
Winner: Project Conifer, a consortial implementation of the Evergreen Open Source library system by its project partners:

Leddy Library, J.N. Desmarais Library, Algoma University, Wishart Library, University of Sudbury, Hearst, Bibliothèque Maurice-Saulnier, Huntington College Library, Paul Martin Law Library, Northern Ontario School of Medicine (West), HRSRH Health Sciences Library, Northern Ontario School of Medicine (East), Xstrata Process Support Centre Library, NOHIN, Instructional Media Centre, Laboratoire de didactiques, E.S.E., Vale Inco, Mines Library, Willet Green Miller Centre, Art Gallery of Sudbury, Curriculum Resource Centre, Sault Area Hospital and Centre Franco-Ontarien de Folklore

OLITA Award for Technological Innovation:
Winner: Project Conifer, a consortial implementation of the Evergreen Open Source library system by its project partners:

Leddy Library, J.N. Desmarais Library, Algoma University, Wishart Library, University of Sudbury, Hearst, Bibliothèque Maurice-Saulnier, Huntington College Library, Paul Martin Law Library, Northern Ontario School of Medicine (West), HRSRH Health Sciences Library, Northern Ontario School of Medicine (East), Xstrata Process Support Centre Library, NOHIN, Instructional Media Centre, Laboratoire de didactiques, E.S.E., Vale Inco, Mines Library, Willet Green Miller Centre, Art Gallery of Sudbury, Curriculum Resource Centre, Sault Area Hospital and Centre Franco-Ontarien de Folklore

Click here for more information.

It’s great and welcome news for everyone who has worked so hard to make this project a success!

On the afternoon of Friday January 29, the University of Texas at Austin will host a conference on judicial biography, as a tribute to Roy Mersky, who was the subject of an earlier Slaw post.

At 2 PM Texas time the discussion will turn to International Jurists, featuring Philip Ayers on Chief Justice Owen Dixon of Australia’s High Court, Philip Girard on Chief Justice Bora Laskin of Canada, and Pnina LaHav on Shimon Agranat of Israel.

We seem to be in golden age of judicial biography. Any recommendations from the readership?

Two completely different spheres have my thoughts overlapping like a Venn diagram. A recent interview with Arianna Huffington in the Financial Post and links from the Law Librarian Blog (among many other sources) showing an Inside Look at the WestlawNext and “New Lexis” Platforms.

Both these articles touch on monetization of web delivered services and how content producers may reap the rewards of their labours.

The Huffington Post model:

The Huffington Post is committed to the link economy and our business model is advertising-supported. The Greek philosopher Herodotus … said you cannot enter into the same river twice, and I think we need to acknowledge that there are changes in consumer habits, for example, that are here to stay. In a way, it’s a golden age for consumers: They can go on the Internet, go from site to site, go into greater depths by following links and have everything at their fingertips and also participate … be empowered themselves to not just consume news, but share news, develop a story themselves. The idea of walled gardens or micropayments, unless it’s for very specialized information, I think goes against the trend in consumer habits and the link economy.

And Jill Schachner Chanen, quoted at LLB, from an ABA article:

As of late December, West had not priced its new platform, but the company said when the platform is launched it will only be available as an upgrade. LexisNexis had not determined its pricing, but company representatives said many of the features on the new platform might be made available on an a la carte basis.

There are many ways to deliver valued content. Consumer expectations are being reshaped daily. It is the responsibility of content providers to deliver a marketable product that meets the needs of their niche of consumers. I am sure that a reliable crystal ball manufacturer would come in handy for all of us right about now. The next few years will be very interesting.

Yesterday, two members of Slaw were given an in-depth look at the most profound re-engineering of a legal research system since the migration to the Web. In Thomson Reuters’ impressive Eagan facility we had a briefing on the new Westlaw – to be launched at New York LegalTech next Monday under the name WestlawNext.

WestlawNext is the culmination of five years of research and development and a massive amount of customer research into how legal research is actually carried out.

[In the interests of Blogger disclosure, Thomson Reuters picked up the travel expense tab, but few would count a Minnesota suburb in January as a desirable boondoggle.]

Westlaw has a long and distinguished history, but that legacy survives in how the current search interface now looks. Busy, busy, busy.

And the first question is “which database do you want to search?” Not an easy question for a novice to get right, when there were 40,000 to choose from. Westlaw was a wonderful tool for the search virtuoso but unforgiving and forbidding for the novice. And in a Google-enhanced world, frankly quaintly old-fashioned.

So the R&D team decided to have an interface which would make it easier for searchers to see where the search had taken them and where they should drill down.

Here is a shot of the home page which looks clean and uncluttered. Not too spare, nor hip. They tested a simple Google-style box and legal searchers didn’t like it. So the home page presents the options and invites the searcher to search across all of Westlaw, and then refine or limit the results after browsing. And experienced searchers can set their sights on specific jurisdictions or services if they want. But this home page seems elegant.

So what’s new about the search experience? It would take a small book [yes, West still publishes them] to describe the algorithms that have been developed but essentially Westlaw has taken its core editorial advantages, its Key Numbering system, its integrated citation system and its wealth of secondary resources and enriched the search engine with that content. Here is a graphic of what that means.

How does it help in searching? Well the key numbering system serves as a conceptual anchor to align responsive and relevant results with the search even if the original search terms are not precisely replicated in the result, though the legal concept was. Keycite helps to navigate through the universe of related caselaw. And my favourite, the links to secondary sources mean that on the right side of the results screen for caselaw and relevant articles, annotations or non-case-law material that deals with the same point. We always tell novice researchers to check a text to get a conceptual map of an area of the law. This toold does just that. Here is a results screen, which shows researchers where they might go next.

Westlaw has taken a lot of care in layout and design and it shows. Here is what a case result will look like, with relevant terms highlighted.

Tomorrow I’ll discuss what this means for Canadian researchers and what the plans are for Canadian users and legal information. I’ll also talk about collaboration and the building of a personal desktop for research projects.

My general assessment is that this is a highly intelligent rethinking of a powerful set of research tools. It’s not perfect – I’m still frustrated that the relevance ranking algorithm seems not as well calibrated as one would like. Go down in the search results at least 40 documents deep before deciding that you’ve got everything.

And I’m not sure that the price which this service will cost is entirely justifiable for most clients and cases. For the Supreme Court, or a large piece of litigation which might justify the disbursement – obviously. Westlaw staff coyly talked about a modest premium on current costs but ducked questions on what sort of percentage that might be. This is consistent with the firm-by-firm contract negotiations that are conducted by the two dominant market players.

Since the product has been five years in research and development, the accident of the launch timing is unfortunate. It will be publicly unveiled in New York on Monday. But the large US firm market is reeling from the most significant revenue downturn in the lives of currently practicing lawyers. Corporate America’s drive to trim legal costs may run smack against Westlaw’s modest price increases.

And five years back, Westlaw had its sights on Reed Elsevier’s Dayton based Lexis-Nexis product, and building competitive advantage from editorial enhancements. Dayton may shortly react with new features or a redesign, though I’m sceptical that it can have anything this ambitious in the pipe.

But in 2010, Westlaw’s chief worry isn’t a commercial rival in Dayton but the upstart cheaper services, and ultimately Google Scholar, perhaps coupled with the resources of Cornell’s Legal Information Institute. During one of Westlaw’s demonstrations I ran the same search on Google Scholar, pulled up the same USSC case, and relevant decisions from the circuits, combined with solid academic articles on point. It wasn’t as elegant or as comprehensive as WestlawNext but it didn’t have to be. It gave me the answer to the client’s problem and that may be good enough. Or to put it another way, the free Google Scholar service might be all that some clients are prepared to pay for.

The outlines of the next battleground in American legal information have been set. But it’s likely not the old Eagan v. Dayton tussle, but a smart, well funded and lawyer-focussed commercial operation with a century of insight into legal information, pitted against the Google behemoth and the lure of free information.

Monday’s group consisted of a number of bloggers who have posted highly informative posts on their reactions to the new product. The other Canadian post is from Dave Bilinsky, a fellow Slaw contributor, with his trade-mark musical intro. Bob Ambrogi who couldn’t join us at Eagan was first out of the gate. The most novel reaction is this video blog from Jason Eiseman, featuring a group discussion with meeting Tom Boone, Greg Lambert and a second Jason, Jason Wilson. Lisa Solomon focused on pricing issues and includes a commentary. Betsy McKenzie talks about how the search process will be affected and notes that “the system does in the background all the things law librarians have wanted good researchers to do: do background reading, get extra terms, carefully choose database or even combine them”. Rex Gradeless kicks the tires showing how the tool responds to a research question. And finally Ken Adams surveys his readers on how often they use paid services to find information on deal issues or drafting – be sure to vote. Just out – Greg Lambert’s take on the product from a knowledge management perspective

Are there any concerns from a risk management / liability perspective over the following warning/error message on the e-Laws website I noticed just now:

NOTICE OF ERROR
From December 18, 2009 to December 29, 2009, the e-Laws currency date should have been December 14, 2009.

See the screenshot here:

Do you review all of your legislative research from December 2009 within this time period?

Part of me says “no” since the Legislative Assembly adjourned on December 10, 2009, (to resume on February 16, 2010) and there appears to have been only 2 proclamations gazetted during the time period in question. However, there were a number of regulations promulgated during the dated period the error was in place.

Should the government list out those statutes or regulations that may have been affected during the period of the error?

Thoughts?

Plastic grenades alarm clients. That’s one of the examples in this interesting Dallas lawyer’s blog about some (U.S.) law firm marketing campaigns that pushed the envelope, perhaps a bit too far…

Rise Up. Creating your own stable financial future

My column this month is dedicated to personal finances. I greeted the New Year like so many other people I know – with a financial hangover that no aspirin was going to cure. Instead of the doctor I called my new neighbor on Salt Spring Island, financial planning guru Karin Mizgala, MBA, CFP, to share her best tips on how to put money woes to rest for good. Karin co-founded the Women’s Financial Learning Centre and has a financial planning column with the Financial Post.  

The foundation to a stable financial future can be established in five key steps.. For most people when they think of financial planning, they think of investment planning. Millions of dollars are spent and made on selling and marketing investment products like mutual funds, but most of these activities aren’t the least bit helpful to the average Canadian who is slipping behind financially and stressed about money. Having a good handle on your cash flow, living with your means and working on a plan to be debt-free are far more important to your financial success than any hot stock tip..
Karin Mizgala

Financial stress isn’t dependant on income. Rich, poor or somewhere in between, money woes are all too common these days. If money troubles are keeping you up at night I invite you to join me in following Karin’s five-step plan for taking action to create a stable financial future.  

First, begin with taking a step back from the numbers to engage in some reflective thinking about your personal goals and values. Have a discussion with your partner about what in life is most important to you. What do you wish to create. What do you want your life to look like. The question Karin likes to ask her clients is “if money weren’t an object what would you do with your life?” 

It is very important to start on this positive note because so many of us have an uneasy relationship with money. There is a lot of anxiety and avoidance. We don’t know how much we are overspending and we are afraid to look at the answers.  

Step two. Uncovering your net worth. With your vision and goals clearly in mind it is time to check in with how close you are to your goals. To do this you will create a net worth statement. A net worth statement is simply a calculation of your total debt subtracted from your assets. Here’s a template you can follow from the Women’s Financial Learning Centre.

Step three: Getting real about what is coming in and what is going out.

Getting real means getting up to your elbows in the details and tracking on an item by item basis your expenditures each month. I have attached a spending and savings plan from the Women’s Financial Learning Centre to help you get started. You can use the template to record your net income and actual expenditures for the month. This will give you a snapshot of your monthly financial position and will let you see how much you are spending and where you are spending. Scotiabank also has a Money Finder Calculator you can use to track your monthly expenditures.

The cash flow piece is initially the scariest part of the process, but liberation and freedom can be found on the other side. The question “are you living within your means?” is the vital heart of a firm financial foundation.  

Step four is to build your financial plan. The goal is to create a monthly budget based on your net income.  

The simplest way to pay off a debt is to have the payments automatically transferred from your account twice a month. Start by paying off the highest interest items first.  

It’s important to include your own dreams in the plan. Create special savings accounts and name them after your goals. If you want to travel to Thailand then name the account Thailand and set up an automatic monthly transfer of savings to the account.

To avoid financial stress at Christmas you might want to form a special Christmas savings account that you can slowly build up throughout the year.

The path to be being completely debt free (not counting your mortgage) may take several years depending on your financial position. It is important to celebrate the milestones along the way. Plan how you would like to mark each financial milestone and make celebration part of your plan.

Step 5 – Get educated and seek help. Most of all don’t go it alone. There are great resources available to help you get started. Start by visiting the Women’s Financial Learning Centre. (Men, don’t be discouraged by the name. The website has valuable information for everyone regardless of gender!. The Centre has numerous resources and holds in-person and tele-classes for women.

Make this the year you take charge of your money and transform your financial future.