Category: Law


An article ran in the Star Tribune today about the Kelsey Smith Act, a bill being presented in the MN legislature that would require phone companies to triangulate and disclose the location of a cell phone whenever the police ask for it. No court order or subpoena needed.

It’s being billed as a way to find kidnapping victims. And indeed, triangulating cell signals is an important tool for finding lost people—that’s how James Kim’s family was found. But no court oversight whatsoever? Making it possible for the police to get the whereabouts of any cell phone owner, regardless of whether or not there is a real emergency? Creepy!

What’s so bizarre isn’t that people are willing to hand over that kind of authority to the cops, or don’t think through the privacy implications of their proposals. It’s that discussion of the privacy implications of this bill is nowhere to be found in the article. There’s just no mention. It’s presented as this common-sense bill that will save children. Are privacy advocates so few and far between that the writer completely failed to think of the civil liberties angle of the story? Or was it edited out?

I support quite a few of Obama’s policies and decisions thus far in his administration. However, when it comes to the future of civil liberties in America, Obama’s tenure makes me MORE worried than I was under Bush.

Yes, you read that right.

I didn’t look at immigration websites during the last eight years. I figured sooner or later the madness had to end. But now I find myself semi-seriously considering attending school in Canada and/or positioning myself for a career that could potentially take me to continental Europe. (NOT the UK; that island has been positively hurdling toward fascism over the last eight years. Frickin’ “New Labour.”)

Why? Obama’s DOJ is making the same–if not worse–arguments for expansive executive power. We’re still being wiretapped–and Obama voted for immunity. Sure, Obama may use these powers more responsibly. And stopping torturing people and giving the folks in Gitmo trials are good things to do. But if the powers to wiretap and deny judicial scrutiny over any rights violation with the scantest of national security claims aren’t dismantled, it doesn’t MATTER if Obama never uses them. They’ll still be there when future, potentially crazy/intolerant/power-hungry presidents come in.

If we can’t get rid of the big red authoritarianism button now, with this administration, it will never go away. And that scares the shit out of me.

Berkeley is the obvious choice. #1 for intellectual property law, well ranked overall, and near lots of nerdy potential employers. It’s not that expensive for a law school, since getting residency is easy. Like half my friends live in the area, and Nelson liked it when he lived there. We could maybe even achieve Nelson’s dream of having orange grove, if we lived inland, at least.

But. I’m not confident I can get in, for one thing. It’s one of those where there’s no guarantees, no matter how good your grades are. But I’m also unsure about going back to California. Granted, it’s not LA, thank goodness. But California is an alien, if generally agreeable, culture. I don’t think I want to settle down there. Having your own orchard would probably be considered settling down. How long can I safely reside in California before “You can check out any time you want, but you can never leave” kicks in?

So to the other end of the geographic spectrum. The U of M. Also cheap, thanks to in-state tuition from the get-go and a Midwestern standard of living. Good for international law, with an exchange program with the University of Uppsala. Located in sweet home Minneapolis (and a cool neighborhood thereof) in the beautiful state of Minnesota, near family and some of my high school friends. Familiarity.

But. While the U isn’t ranked *badly*, on US News it’s at #22 after slipping a few spots. While I think the US News rankings are an easily-gamed crock of shit, it’s our crock of shit. Biglaw only interviews at top schools, public interest law is even more selective (!), and law professors apparently only come out of Yale. The legal profession is basically a bunch of snobs. So even if I and all my fellow students agree that the rankings are stupid and say little about the strength of a lawyer, we cannot avoid taking the snobbish reality into account. I’d definitely be able to get a job out of the U in the Twin Cities or Chicago–but would it be good enough for firms outside the Midwest? Not going somewhere in the top ten seems to close (if not lock) a lot of doors.

Also, the new UMlaw dean seems to be taking the school in a very practical, practice-oriented direction; the school has a higher clinic-to-student ratio than like everybody. Normally, that would be a positive in my mind, except: 1.) I *like* theory and am considering an academic career path and 2.) none of those zillions of clinics is in IP or anything related. The U *has* IP classes and such, but it is definitely not an IP school.

Harvard: Zittrain! The Berkman Center! Unimpeachable credentials that can travel anywhere! What’s not to like?

Well…

First, Harvard has a reputation for having lots of highly competitive assholes. I’d rather not get my throat ripped out. I like it where it is.

Second, so far as I’ve been there, Cambridge/Harvard Square gives me hives. It’s just so…commercial, much more than I expected. And the cost of living is ridiculous. Boston seemed alright, though, so long as you don’t ever drive and can tolerate ridiculous accents.

Third, hella expensive. Though Harvard’s LRAP’s the second-best I’ve seen, it’s still public interest-only.

On to Michigan, my other probable top choice. While it’s not in Minnesota, it is the Midwest, and Ann Arbor sounds like a wonderful, livable city. Michigan isn’t known as an intellectual property star, though it’s very well ranked overall, but its dual degree with the School of Information pretty much looks like the most perfect course of study ever for a free culture-minded high-tech fangirl like me. I like their interdisciplinary approach and friendly, humane academic environment.

But: Ann Arbor is not that large a city. Detroit is an hour away, but it’s mostly abandoned and on fire. Would Nelson be able to find a job there? Michigan (like any place that’s not an in-state state school) is also hella expensive.

Next, UPenn. Well-ranked, interdisciplinary, intellectually curious. It’s also in Philadelphia, a city I’ve always felt comfortable in. I dunno what it is–maybe the high concentration of Lutherans and Quakers–but I’ve always liked Pennsylvania. It’s like a little piece of Midwest transplanted east. Having grown up in New Jersey and gone to Swat, Nelson’s also got plenty of connections in the area.

Downsides: Not particularly intellectual property or techlaw-oriented. Rumors that it has been slipping in the rankings. Expensive, and their LRAP isn’t all that good.

If UPenn is expensive, Yale is downright extortionist. However, Yale also has the best loan repayment program I’ve seen. Anyone making less than $80K (even in a non-public interest job) qualifies, with few restrictions. By the rankings, Yale is the #1 law school in the country. It’s a small, close-knit, and extremely selective. It also hosts the annual RebLaw conference, which sounds about as fun and debaucherous as law school gets.

But. Do I really want to live in New Haven? Does anyone really want to live there? And could Nelson get a job there (especially competing with Yalies)? The nearest large city, where most grads end up, is New York. I still don’t like New York.

Yale doesn’t have grades–they have one of those HP-P-NP systems. I can appreciate that for defusing the hypercompetitiveness that would probably otherwise result. But, at the same time, I dislike the potentially-associated attitude that because one got into Yale one can just rest on one’s laurels. Not everyone who gets into Yale is a wunderkind; see: George W. Bush.

My understanding is that UChicago has the complete opposite approach; instead of “Welcome, you’ve made it!” it’s “Abandon all hope, ye who enter here!” They work you like a dog. They have you pay crazy expensive tuition. And, again, while it’s a well-ranked school overall it isn’t particularly strong in IP or techlaw so far as I can tell.

What attracts me to UChicago, though, is just the whole Hyde Park atmosphere. UChicago sounds like a really cool place to be intellectually. You’ve got the Friedman libertarians, thinkers like Cass Sunstein, a very centrist, pragmatic ethos alongside idealists from both ends of the political spectrum. And it’s another Midwestern school, in a big city with plenty of law offices.

University of Virginia has Siva Vaidhyanathan (though he’s undergrad, not at the law school) and is relatively cheap (by the time I would be attending, I could probably get residency). I mostly applied there, though because it was free. Outside of Siva, it doesn’t seem to be a huge IP powerhouse. And Charlottesville not only is a small town (with accordingly fewer legal jobs, especially in something as specialized as IP/techlaw public interest), it’s particularly non-Nelson-compliant; very few vegetarian-friendly restaurants and no Asian supermarkets as far as I can tell.

Duke‘s also in the South, but the Research Triangle seems to be fairly culture-compatible. Vegetarian restaurants, Asian groceries, tech companies, and general blueness–it’s kind of pathetic, but the fact that North Carolina went for Obama this year makes me significantly more open to living there. Duke is well-ranked both generally and in IP; Jamie Boyle, Jennifer Jenkins, and the Center for the Public Domain are there. They have a study abroad program with the University of Copenhagen.

But still. North Carolina? Really?

I should be rooting for Stanford more than I am. Home of Lessig, the Samuelson clinic, the Center for Internet and Society, it’s the other (more expensive) Bay Area law school with all the advantages that locale entails. Stanford’s #2 for IP, and Silicon Valley’s right there. By reputation and practice area, it would totally be an excellent place to go. I think my creeping lukewarmness isn’t because of the school itself but rather a reflection of my belief that I have little chance of getting in. Not only is it (like most of the other schools on this list) an extremely competitive school, where my stats only put me at the median for the 2007 class, apparently Stanford “recommends” (though doesn’t require) three recommendation letters. I only have two–the requirement for all the other schools–and I’m not sure who I’d ask for a third even if it wasn’t so late in the game. So I fear that might rule me out. Those feelings of inadequacy shouldn’t affect my actual chances, though. We’ll see what happens if I do get in.

Finally, Georgetown. I applied mostly because I got an app fee waiver, it’s well ranked overall, and to provide for the case where I decide to stay in DC for some reason. Extremely strong in constitutional law/civil liberties and international law; not as much in IP/techlaw. I REALLY hope the hack who testified in front of Congress that the NIH mandate violates copyright law (*insert baffled noises here*) isn’t representative of the GU IP faculty, either politically or intellectually. That really did not improve my opinion of Georgetown.

So I’ve got some first choices, and some less-than-first choices. I think I’ll just have to accept that there’s no perfect choice; the geographic distribution of my friends and family alone guarantees that. The roll of the dice, where I get in and where I don’t, will trim some of my options off, so some of these considerations will likely no longer be relevant.

Still, though, it’s worth considering them as if I got into every one. Since I’m applying a year in advance, if I only get into my less-than-first choices I’ll have to decide whether to settle for what I got or to try again next year (at the price of uncertainty for Nelson’s job search). The very fact that I am applying early will count against me in the admissions progress–meaning that it is reasonable to believe that I could reverse some of my inevitable rejection letters if I tried again.

Right now I’m listening to the witness testimony in the House Judiciary Committee on the “Fair Copyright in Research Works Act.” This bill would reverse last year’s open access mandate for works funded by the NIH by amending US Copyright Law to say that government agencies can’t ask in the funding contract for a nonexclusive license to works that they fund. It’s pretty much ridiculous.

The only reason this has even made it to public comment (I think) is a bunch of representatives feeling slighted because a bill passed Congress without going through their committee (the Subcommittee on Courts, the Internet, and IP–the measure was part of an Appropriations bill, so it went through that committee). The grumbling at the opening of the session about how important their committee is, prestige of the Appropriations committee be damned, rah rah rah, I think bears this out. So the representatives have been receptive to the patently ridiculous argument that the NIH mandate *changed* copyright law and, thus, should have fallen under their purview.

Lots (probably millions) of nonexclusive license copyright agreements are agreed upon every day. Every time you upload a video to YouTube, you’re giving YouTube a nonexclusive license to that video–the license allows YouTube to display the video without violating your copyright. Professionals everywhere provide or exercise nonexclusive licenses to works. The less assholish scholarly journals only demand a nonexclusive license to an author’s article (more commonly, journals force authors to transfer their copyright entirely to the journal).

The terms of a nonexclusive license are not set in copyright law–they are determined in a contract. Like any contract, the terms vary from license to license, depending on what it’s for. My understanding of contract law is that two parties can write a contract requiring virtually any condition of either party (other than illegal activities or selling yourself into slavery or something). If I’m a research funder, I can stipulate in a funding contract that the researcher wear a big red clown nose at any and all conferences when presenting the research I’m offering to fund. The researcher is free to take my money, and accept the conditions attached, or go elsewhere for funds. That’s how contracts work.

It has always been a standard part of NIH funding contracts that the federal government gets a nonexclusive license to the work being funded. (What’s the point of funding research that you can’t even read?) The new condition with the mandate is that the author deposit the research in PubMed so the public (the people ultimately paying for it) can read it, not just NIH employees.

Bottom line: it’s a contract. It’s not a copyright law! The only way the NIH OA mandate conflicts with copyright law is if you change copyright law, which is what the publishers are trying to do now. After all, if it really conflicted, why haven’t the publishers just sued the NIH (as they have also rattled sabres about)?

Maybe because they’d lose.

The overlap is not with copyright law as it is, but copyright law as publishers wish it was: a hypothetical legal regime where if a contractual agreement theoretically threatens a revenue stream created by a copyrighted work–even a contractual agreement made long before the author transferred the rights to the publisher–that contractual agreement retroactively violates the publisher’s copyright. It’s a case of “if value, then right.” The law doesn’t work that way. The publisher is “buying” (read: getting for free–or even being paid to take in some cases) the rights *as is* when they take the article from the author. If the author’s previous funding agreement with the NIH makes those rights look less valuable to the publisher, then don’t “buy” them–just publish research that uses funding sources that don’t make this stipulation. But if this is all bullshit, as publishers’ record profit margins and the legion of financially-secure journals that put their stuff online for free before the mandate suggest, then there is no conflict *even* in the publisher’s la-la land version of copyright law.

Then the only thing publishers are losing is a certain degree of autonomy; they no longer decide whether or when to put their material online. Just satiating publishers’ neurotic control needs is not worth the cost to scientific advancement and public access.

The bill is being considered because the committee members have ego problems. It’s being advanced because big publishers are control freaks. Why do important policies have to be threatened with the chopping block for the sake of various interest groups’ psychological tics?

***

Wow… The NIH witness compared eliminating the NIH mandate for the sake of publishers’ whining about theoretically going out of business to banning Google for the sake of artificially propping up Altavista–holding back innovation for the sake of a deprecated special interest. A relevant comparison, I think–lots of commentators compare industry copyright maximalists and other rent-seekers to buggy whip manufacturers all the time. To which Rep. Berman growled, “You’re saying that this is like Google, like YouTube, where people can violate copyrights, grumble grumble grumble…” and the NIH guy apologized! I didn’t know ‘Google’ was a dirty word in Congress!

Another Berman quote: “I’m disturbed by going from open access to health and biomedical research to talking about technological progress… The NIH is not Napster.

And now he’s embarrassing himself with his misunderstanding of Google.
Berman: “Doesn’t Google have it [all the biomedical research out there already]?”
NIH guy: “No, they link to us.”

Jeez, it’s not like you HAVE to be technologically illiterate when you’re old. Plenty of old people get technology–after all, they’re the ones who first built this stuff! And, on the other side of the coin, it’s not necessarily bad to be technologically illiterate. Lots of people get by without using high technology much (see: one of the two major party presidential candidates); that’s fine for them.

The problem is when old techno-illiterate people are US Representatives serving on the Subcommittee of Courts, the Internet, and IP. It’s a problem when they are responsible for making intelligent technology and information management laws. But it does make for hilarious Congressional transcripts.

My score came in today.

Not sure what I think. On the one hand, this is a very good score. With it and my GPA, I at least stand a chance at getting in to most any law school (though for the very top schools it would help if I like cured a major disease or something in the next three months or so). It’s also one point higher than Nelson’s score, achieving that goal. :p

On the other hand, though, I studied my butt off the two weeks before the test and took a ton of practice exams. By the end of it I was finishing scoring in the 175-177 range. The real test felt much more difficult than any of my practice exams (which is weird, since the practice exams *were* real LSATs), so I guess I shouldn’t be surprised to not score that high. But I thought I could. So I can’t help but feel a little disappointed.

So now what? Now I 1.) continue getting my things in order so I can apply to schools in August/September and 2.) figure out if it’s worth applying to Yale/Harvard.

Oh, and 3.) cure a major disease in the next three months.

Apparently, last year Minnesota passed a law making it mandatory for parents’ health insurance to cover their (unmarried) kids up until age 25. Thus, as far as I can tell, I’m not uninsured! Hooray!

If you’re not from MN and don’t have a job with benefits yet (?), it’s worth checking to see if your state has a similar law. I saw that Utah has you covered until age 26…there’s probably others.

Interesting article about an obscenity defense lawyer who is using the comparative popularity of various Google search terms to make the case that his client’s porn met the “community standards” test and thus wasn’t obscene. Turns out, surprise surprise, that the residents of Pensacola, FL search more often for “orgy” than for “apple pie”! (Popularity of “Mom”, “baseball” still being calculated.)

While a nice tactic, and one I wish would get some traction, it may not do the job. There’s nothing in Miller that says that a community’s standards must be ones that most community members actually follow. Hypocrisy might not be a defense if the courts decide that it is only the whited outsides of the sepulchers–the “standard” of the local gossips–that counts.

Took the LSAT yesterday. Oy.

I\'ve taken nine AP tests, I\'ve been through bitter fights with family members and boyfriends, I\'ve taken Golub\'s classes, and still, I think the LSAT might be the most mentally exhausting thing I\'ve ever done.

As you might guess, we’re reading Brown (along with historical background, Plessy, Green, and other crap) right now in my Civil Liberties and Fundamental Rights. While not everyone in the class is a Scripps student (there’s even one guy!), most of them are. So, among other issues, a major topic of discussion today was: if you think Brown‘s choice of a strategy of integration over the Plessy-enabled strategy of equalization was the right one, how do you square that with your choice to attend a women’s-only college?

The professor is trying to save this issue for when we cover affirmative action. Fair enough. But I think talking about the gendered elephant in the room in relation to Brown is useful just because, unlike any of the affirmative action decisions, it holds such a canonized place in our society. Brown is just. Brown is wonderful. Brown saved this country from the ignorant, scary Jim Crow people. Read Brown. Love Brown. Or something. I’m cheating, because I happened to see Derrick Bell speak at Mudd frosh year. But most of the students in the class–and myself before I heard Bell–came in with the assumption that Brown was an unquestionably Good Thing.

Which it most certainly isn’t. Unquestionably good, that is. While the doll studies demonstrated the pernicious effects of a racist society on black kids, it’s unclear that overturning racist educational policy and force-integrating schools benefited them. Attending a previously-white school would give a black student access to much better academic facilities and resources. However, it also would put him in an extremely hostile environment. Instead of having a black teacher who could serve as a potential mentor, he would be taught–and graded–by a likely-racist white prof. Instead of learning with his peers, he would be surrounded by a sneering, bullying mob of strangers. Would these factors fully offset the benefits of attending a better-funded school? It’s not clear. But in the last fifty years there have been a number of studies giving credence to the idea that minority kids tend to learn better in single-minority classes (and women learn better in single-gender classes–studies that women’s college advocates like to cite).

Given these studies, then, it may have been a better strategy to, instead of pursuing school integration, force states to fund the “equal” part of Plessy‘s “separate but equal” mandate. It’d be a hard fight, no doubt. Southern states would fight it tooth and nail. But enforcing desegregation was a long, bloody fight, too. It’s hard to imagine a segregated equality decision, or indeed *any* Supreme Court decision, that would be harder to implement than Brown.

But, as I said before, Brown is as close as we get to holy writ when it comes to contemporary civic diversity. Lots of people want to hold onto it. Some of them attend women’s colleges. Which results in interestingness.

So. The first attempted distinction between segregated (by race) schools and segregated (by gender) schools in class today was based on choice and consent. If women were forced to go to women’s-only schools, we would feel oppressed and made to feel inferior–even if the women’s-only college options were perfectly good institutions in and of themselves. But because we can choose either to go to Scripps or to Yale, the fact of Scripps being a gender-segregated institution doesn’t have that stigma attached.

The problem is, when you move that back over to the case of race–”if black kids can choose to go to either the “white” school or the “black” school, that will remove the “black” school’s stigma and make everything better!”–it just doesn’t work. In fact, after Brown most Southern school districts adopted the strategy of simply giving all students a choice as to which school to attend. Guess what happened? A couple courageous black students chose to attend the “formerly” white school. But the vast, vast majority of black students, whether out of comfort or fear of retribution, “chose” the “formerly” black school. And, of course, no white student ever chose (no need for scare quotes because it was) the black school–why would you, the textbooks were forty years old and the building was rotten! So you’ve got one 100% black school and one ever-so-slightly browner-than-white school. And the black school still has no funding. And worse, by the logic of the Scripps apologists, the black students were choosing, consenting to, this state of affairs!

As you might hope, this system didn’t hold up to judicial scrutiny. Subsequent decisions found that simply giving students a choice as to which school to attend did not adequately implement Brown. For obvious reasons. This resulted in court-ordered busing and minority percentage targets. So the fact that there is a choice to enter a mixed environment does not by itself justify a segregated institution.

The other argument that was made was that there’s a difference between the government/public schools segregating and private schools segregating. I’m hoping that the student who made this argument didn’t think this through. (To be fair, that’s what class discussion is for.) Otherwise, we’d have no quarrel with privately-owned lunch counters (ahem) or schools (BJU, I’m looking at you) who discriminated based on race. Whether or not this changes the *legal* grounds, I find it hard to believe it makes a major difference in the perceived *stigma*. I might care more if the government segregates by gender because the government can do more bad things to me. But in terms of making me feel like less of a person, I’m also gonna be pissed off when I have to, say, travel in the cramped, smoky “women’s” section of the train.

So what is the difference that makes attending Scripps a privilege and attending an all-black high school an inherent stigma?

First, unlike most of the segregated (by race) schools of the 1950s, Scripps is as good or better than most of its co-ed counterparts. There is actual equality of resources and opportunities here. So that additional measure of moral outrage at segregation because of the tangible inequalities involved isn’t present here.

Second, there are so few all-men’s colleges left in the US. I have no idea how many there actually are–three? four? In any case, I don’t know about you, but I don’t have a particular desire to attend any of them. If (as the argument goes) a minority group school gains its stigma not inherently but rather in relation to the majority-group school, then, there aren’t really any men’s colleges left to be envious of or humbled by. There’s no thesis for our antithesis. We’re simply free to ask hard questions in math class while wearing sweatpants and no makeup in our idyllic walled garden. We’re free to just reap the supposed benefits of single-sex education.

However, insofar that Scripps is a privilege, it is also discriminatory. If a Scripps education is really so awesome, it would make sense that a man would want to obtain one. We haven’t been sued yet…but what happens when we are? And how do we resolve that opinion with our garden-variety liberal ideas about race and dominant-narrative understanding of Brown?

Man, I can’t wait for the affirmative action cases…

The prompt:

In 2006, Rachel Orsborne sought and was denied a marriage license by the state of Massachusetts. She had hoped to enter into a “plural marriage” between herself and two other adults – a couple who has been legally married for 25 years. Ms. Orsborne, who recently turned 19 years of age, notes that she is deeply in love with both of her prospective partners, that the state of Massachusetts recognizes and performs same-sex marriages, and that there is both a long-standing cultural tradition of plural marriage (in the Old Testament as well as in the United States) as well as persecution and discrimination against those in polygamous unions. Ms. Orsborne professes no religious affiliation and does not claim any First Amendment violation of religious freedom. She does claim that by denying a marriage license, the state of Massachusetts has unconstitutionally discriminated against her, in violation of the Equal Protection clause, as well as violating her fundamental rights to marriage under the Due Process clause of the Fourteenth Amendment.

The Circuit Court rejected Ms. Orsborne’s claim, citing Reynolds v. United States (1878), in which the Supreme Court upheld the constitutionality of prohibitions against polygamy. However, because that case was argued principally as a religious Free Exercise case, the Supreme Court today has granted certiorari on the fundamental rights claim (although not on the question of equal protection). You are clerking for one of the Justices and have been asked to write either a brief or a draft opinion (your choice) roughly 4-6 pages in length, to be filed with the faculty administrative assistant in Balch 216 no later than 11am on Monday, February 25.

The opinion (written under the name of “Justice Lessig,” bahahaha):

PDF

View Full Article »

Creative Commons License
Licensed under a Creative Commons Attribution 3.0 United States License.
Powered by WordPress.
Theme NewRiver by Karen Rustad, based on Motion by 85ideas.