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Grokster R.I.P.

grokster.gif The recent news of the Grokster settlement has generated only modest discussion, and I suppose that’s not surprising. The Supreme Court’s decision in the case came out months ago, and the big open questions left by that decision are unaffected by the settlement. Moreover, there appeared to be sufficient evidence in the record of “actual inducement” to make Grokster’s shut-down unsurprising.

Still, I would note that, according to the reports, the recording industry got Grokster to agree to pay $50 million in damages, even though they don’t expect to be able to collect. This gives the industry a big number it can use to deter future such technologies, and it’s consistent with the broader strategy of publicly signalling (through public announcements, lawsuits against end-users, education efforts, and even movie previews) that these activities are, in the industry’s view, infringing.

To some extent, this is the flip side of an earlier post I made about information regarding fair use rights. Just as some would like individuals to have greater information about their fair use rights, the copyright industries would like users to have greater information about the restrictions imposed by copyright. (Jason Mazzone has an interesting proposal about what to do when the industry overstates such restrictions).

All of this is to suggest that there seems to be a need to give individuals clearer and better information about what they can or can’t do under the copyright laws.

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Legal Realism and Fashion Consulting: A Misunderstood Relation?

dresssuccess.jpgSome years ago a colleague gave me a copy of John Molloy’s 1975 book Dress for Success. Perhaps the fact that he asked me whether I own an iron contains a clue to his message; I’m not sure.

I found it buried in a box of books I unpacked recently and began to read the chapter “For Lawyers: How to Dress Up Your Case and Win Jurors and Judges.” It contains the following sage commentary on the behavior of judges:

Before the urban judge you should avoid the Ivy League tie. You should avoid any sign of ostentation. You should avoid any look that is with-it, chic or “in.” Urban judges tend to be quite ticklish about their newfound socioeconomic positions, even if they’ve held them for some time, and often look upon anyone coming into their courtroom as a threat to them personally. Anybody who doesn’t treat their courtrroms with respect, and that means anyone who dresses in a manner that they find is unbecoming, will be dealt with harshly. Their response may well be subconscious; no judge will ever tell you that he’s ruling against you because of your smartass tie, but believe me, many of them will.

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Kerr v. Goldstein on Georgia v. Randolph

home.gifThere’s a terrific debate going on over at the VC between Orin Kerr and Tom Goldstein of SCOTUSBlog about the recently argued U.S. Supreme Court case, Georgia v. Randolph. Tom Goldstein argued the case for Scott Randolph. The case involves an incident where Janet Randolph (Scott’s wife) consented to the police searching the couple’s home. Scott, who was present at the time, objected. The police searched nevertheless, and they found evidence against Scott of drug violations. The issue, as framed by the grant of cert is: “Can police search a home when a co-habitant consents and the other co-habitant is present and does not consent?”

A few quick thoughts:

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10

Old Courthouse Architecture

The other day, I blogged about new courthouse architecture. A few of the commentators said they had a soft spot for older courthouse architecture, which I share. Therefore, I thought I’d surf the web for some examples of older courthouses. I love architecture, and I found many an interesting picture to share with you. Here is what I found, with the year each was constructed:

courthouses-old4.jpg

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9

A Modest Defense of Law Reviews

librarystacks.jpgIt is a pretty common place observation that one of the virtues of markets is that they manage to aggregate a great deal of disaggregated information. Obviously, folks disagree rather vehemently as to how effectively markets do this, but most people, I suspect, would admit that the market is frequently smarter than particular actors within the market. The same is true, I think, of law reviews.

The classical critique of law reviews is that they are staffed by dumb students who don’t know anything. Obviously, there is a lot of truth to this. However, I think that the case for the incompetence of law reviews can be overstated. While obviously no law review is doing a perfect job, citation studies suggest that the article selection process is far from random. All things being equal, articles that appear in top journals get cited more often than articles that don’t appear in top journals. Of course, it may be that law professors are simply dolts who are taking the name of the journal as a signal of quality. However, it seems at least equally probable to suppose that the law reviews — or at least the top law reviews — are identifying important legal scholarship considerably better than the classical critique suggests.

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6

ChoicePoint: More Than 145,000 Victims?

choicepoint2.jpgChoicePoint just won’t be outdone. They were, after all, the company that started all the extensive attention on data security breaches. Back in February 2005, ChoicePoint announced that it had improperly sold personal data on about 145,000 people to identity thieves. Pursuant to a California data security breach notice law, ChoicePoint notified the affected individuals in California. Soon afterwards, many states started thinking: Geez, we’d like our citizens to be informed too. They put up a fuss, and ChoicePoint voluntarily agreed to notify all of the 145,000 people it said were affected. Many states subsequently passed data security breach notification laws similar to California’s.

After ChoicePoint’s announcement came a barrage of announcements of security breaches by numerous companies and institutions. According to a very useful listing and tally by the Privacy Rights Clearinghouse, data security breaches have affected over 50 million Americans (there may surely be some double-counting here, as some unlucky folks may have been affected multiple times).

Now ChoicePoint has announced that it has notified another 17,000 people that their personal data was compromised in the breach announced in February. According to the AP:

ChoicePoint Inc., the company that disclosed earlier this year that thieves had accessed its massive database of consumer information, said Tuesday in a regulatory filing it has sent out another 17,000 notices to people telling them they may be victims of fraud.

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10

1950s and 2000s Conservatism

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Last spring I went to a talk by Phyllis Schlafly at the University of Alabama. It was the most entertaining evening I’ve spent in years, much better even than the O’Reilly Factor on a good day. And I left with an “I love capitali$m” poster, which is one of my prized possessions.

Ms. Schlafly did what I take to be her usual stump speech-–opposing judicial activism and, of course, feminism. She was plugging her new book, The Supremacists (about left-wing judges). She had some amusing lines. Something along the lines of, “Feminists are pushing their way into the military. Forty-five percent of women can’t throw a hand grenade far enough to keep from killing themselves. So I guess you can say that feminism leads to death. Ha, ha, ha.” I took the laughter to be a realization that her arguments in this case were laughable–a wonderful self-insight. I have a warm spot in my heart for people who don’t take themselves too seriously. It’s an appealing character trait, to be able to be not too serious. Wish I had more of it.

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12

New Courthouse Architecture

They’re being built at a staggering rate. New ones are rapidly replacing old ones. Top architects are being called in to design them. . . .

No, I’m not talking about stadiums. I’m talking about courthouses. A recent Legal Affairs article chronicles a dramatic transformation in courthouse architecture and describes the building boom in new courthouses. Courthouses used to be built as “solemn, neo-Classical style structures,” but recently things have changed. Today, top architects bid on the construction of courthouses:

The new architect selection standards coincide with the largest federal courthouse building initiative in the nation’s history, a program necessitated by the rise in the number of federal cases—up some 20 percent in the last decade—and a shift in caseloads from the Rust Belt to the Sun Belt. As droves of people continue to move from Buffalo to Houston or from St. Louis to Phoenix, caseloads are moving with them. In all, nearly 200 courthouses will be built or renovated over the next 25 years, at a cost in the tens of billions of dollars.

If you’re interested in the history of courthouse architecture, the article is well worth checking out. One of the courthouses discussed in the article is the stunning new federal courthouse in Boston, pictured below:

courthouse-boston3.jpg

For all the law architecture nerds out there, I did a little web surfing and found some pictures of new or planned courthouses. Beginning with state courthouses, here are ones from Lexington, SC, Lexington, KY, and Syracuse, NY:

courthouses-state1.jpg

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1

When Web Chat Turns Into Threats

computer11.jpgAn interesting AP story:

Two weeks before William Freund donned a mask and cape and fatally shot two neighbors before killing himself, members of an online forum for people with a rare mental disorder read the 19-year-old’s string of violent rantings. Freund’s online musings and his pre-Halloween rampage raised fresh questions about the little-policed world of Internet discussion rooms: What, if anything, should Web site gatekeepers do when users post threatening messages online?

Internet law experts generally agree there is no legal onus on site owners or users to notify police. . . .

Before last Saturday’s shootings, Freund begged for help and told an online message board for people with Asperger’s syndrome, a neurological disorder marked by a lack of social and communications skills, that he was lonely and suicidal and would begin a “terror campaign to hurt those that have hurt me.” . . . .

“It is very risky to impose responsibility on Web site owners to police their users,” said Jennifer Granick, executive director of Stanford University’s Center for Internet and Society. “How do you know if someone is serious? Are you making a big deal out of nothing? How hard are you supposed to try? Are you betraying the person?”

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Guidant/JJ Litigation

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Counsel, start your time-clocks.

As has been well-reported, Guidant has sued Johnson & Johnson for specific performance of J&J’s $25.4 billion acquisition. J&J will almost certainly assert that its obligation is void under the merger agreement’s “material adverse effect” clause, and, specifically, will argue that the clause has been triggered by Guidant’s messy encounters with state and federal regulators over its heart stents.

Bill Sjostrom at the Business Law Prof Blog has been all over this looming fight.

Back in September, he started questioning the deal’s continued viability. In October, he put up a great post on the MAE at issue in the (then) potential litigation. He argued that NY AG Spitzer’s lawsuit against Guidant may strengthen JJ’s claim here. Finally, he broke news of the suit here.

Obviously, I do not know how this will turn out. But doesn’t it seem that J&J could have protected itself against this type of risk with more precision? Isn’t regulatory action the number two legal problem medical device makers potentially face, after patent claims?

For more information, Pharmablog talks about the underside of drug testing here. Finally, the Stent Blog (!) is a must-read resource if you care about the statistical likelihood of stent failure.