July 22, 2010
My Legal Rebel Move: Not Renewing My ABA Membership
The ABA (American Bar Association) has a feature they call "Legal Rebels". Well, I am a Legal Rebel, and here's why: I'm leaving the ABA. When my current membership expires, I'm not renewing it.
In a recent post over at My Shingle, Carolyn Elefant talks about the ABA "making a play" for solos and asks if solos should play back. I will preface this post by saying that I have not seen all of the ABA's new efforts, but based on what was outlined in Carolyn's post and the ABAJournal article I'm unimpressed.
Here's the run-down:
- Sponsoring Solosez. Good for Solosez! How does that really help me? Solosez is a mailing list the overhead cannot be that much. And you do not have be an ABA member to participate in Solosez. So, this is worth $X a year??
- GP Solo Magazine. I don't need another ******* magazine. Seriously. Every bar org out there has a magazine. Or six. I flip through them once standing next to the recycling bin, and unless something really seems worth reading, they go straight in. I probably get 6-8 of these types of magazines a month. In the last year, I've given a reprieve to two issues to read an article. In both cases, I regretted it.
- Quarterly Solo e-Mail Newsletter. This is why people increasingly view the ABA as an anachronistic organization. An e-mail newsletter. Seriously???
- Smart Soloing eBook and publication. Yawn. As Carolyn mentions, these types of publications rarely contain information that isn't already available by the boatload on other blogs or on-line resources that are, quite often, free.
- Smart Soloing School. The ABA is so tired and out of ideas, that they have decided to blatantly rip-off one of their own nominated Legal Rebels, Susan Cartier Liebel, who runs Solo Practice University. The ABA claims their "school" is a $1600 value. Well, guess what? SPU costs a fraction of that, and provides excellent, on-going content and community. Why does the ABA need to re-invent the wheel? So they can focus even more on content I don't need from them because it's already being provided by someone else who is doing it well?
- Lobbying. Yes, I appreciate the ABA lobbying on behalf of lawyer advertising, blogging, virtual law office technology, etc. But as far as I can tell, given the disparate state of ethics rules across the country regarding virtual offices, etc. The ABA isn't really doing a bang-up job there, either.
All these things are nice, but honestly, as a practicing solo, let me clue the ABA in on what it is that I really need:
1. Community. I need to be in touch with other solos regularly to share resources, share/get referrals, and commiserate with. I can--and do already--have that nationwide through Solosez, Twitter, etc. I don't need the ABA to do it because they are duplicating effort, and generally, not doing it very well. As for the in-person networking, one or two conferences a year does not make for good networking opportunities. My local bar associations (the Illinois State Bar Association and the Chicago Bar Association) provide so much more value in terms of community and networking, that for the ABA to even attempt it is laughable.
2. Insurance. I need insurance: professional liability insurance, health insurance, life insurance. The ABA "value" really falters here. Did I say falter? I meant fail. Epic fail. Titanic fail. At least for my practice areas and geographic location. Considering the membership numbers at the ABA, the ABA should be able to offer me the best deal in all three areas of major insurance. Yet, in all three, the ABA offered me the worst deals. How is that possible? They have the largest membership of any bar association, and they are lawyers--but they couldn't negotiate better discounts than my local bars?! Should I fear for the future of the ABA or the future of my profession!?
3. Legal Research. Have you priced Lexis and Westlaw these days? I pay as I go for them, and rely primarily on Fastcase. Which, by the way, I get for free from the Illinios State Bar Association. And the ISBA membership is still less than ABA Membership.
4. CLE. Again, I can get this from so many other sources, most of the time cheaper and better. Including, again, my local bar associations.
So, while I think there could be value in the ABA for solos, there certainly isn't for me, at least not now. Right now, the only value I get from the ABA comes from Solosez and the TechShow, neither of which require membership to gain access to. For everything else, and I do mean everything, my local bar associations provide a much better return on investment for my membership fees. Of course, living in Chicago, my experience might not be the same for solos who don't have strong local bar associations--I can't speak to that.
But in the opinion of this solo Chicago attorney, take the money you save by not joining the ABA and join a local bar association instead. That's the real "Legal Rebel" way.
Posted by Dave! Permalink | Comments (4) | TrackBack
June 28, 2010
Blawg Review #270
I was wracking my brain, trying to come up with my theme for this edition of Blawg Review, when it happened. My youth was gone. I know, I'm pushing 40, so it probably left a long time ago, but this was the first time that it really hit hit me.
I was at my local home improvement store, shopping for yard supplies for a landscaping project when The Cure came over speakers. Not just late, sell-out, Friday I'm In Love Cure, either. Old Cure. And that's when I realized that the music of my youth was being co-opted to sell me crap: I was a grown up.*
Yep. I'm no longer in school of any kind. I have a kid. I have a house. The rebellious songs of my youth are now being played on "classic rock" radio. So what better to do for Blawg Review than go retro!
Without further ado, I present to you, in full retro-web-vision, my nostalgic trip down memory lane of Blawg Reviews past, to see "Where are they now?"
Blawg Review #270
*As Ed. pointed out in an e-mail with the statement "Who is The Cure"? My cultural milestones won't be yours. So think: hearing Iggy Pop sell Norwegian cruises. Or Led Zeppelin shleppin' Cadillacs. The Beatles on a Nike commercial. Janis Joplin for Michelin Tires. Or Scott Joplin for Carbolic Smokeballs.
Posted by Dave! Permalink | Comments (0) | TrackBack
May 25, 2009
Happy Towel Day!
Kevin A. Thompson is hosting Blawg Review this week, on Towel Day.
So mix yourself a Pan-Galactic Gargle Blaster and check it out... but very carefully.
Posted by Dave! Permalink
January 29, 2009
LexThink
Matt Homann has posted 10 reasons why you should attend LexThink:Innovate in March. And while I can actually cook 2 'three minute' eggs in less than six minutes, the LexThink conference format is both innovative and effective. Well worth the time, in my book. And Matt's put his money where his mouth is with a "name your own price" guarantee. When was the last time you saw a conference do that??
The timing of the conference couldn't be worse for me (work projects) but I'm still trying to find a way to go... you should, too.
Posted by Dave! Permalink
October 19, 2008
Blawg Review #182
Just when I though it was safe to pack up the practice tests, I found out that passing the Illinois bar exam was only the first step. There is no reciprocity in the jurisdiction of Blawg Review!
You will be given three hours to complete this Blawg Review. Your score will be based on the number of questions you answer correctly. It is therefore to your advantage to try to answer as many questions as you can. Use your time effectively. Do not hurry, but work steadily and as quickly as you can without sacrificing your accuracy.
Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.
Posted by Dave! Permalink | Comments (2)
October 5, 2008
Book Review: Your Witness
Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers
Edited by Steven F. Molo and James R. Figliulo
368 pages; Law Bulletin Publishing Company
Disclaimer: The publisher provided a free review copy of this title for review. My policy for this blog is not to accept any form of compensation for reviews, but I will accept review copies--which per my policy, I will then share, free of charge with a law student interested in reading the title. If you're a law student, interested in reading this book, contact me via e-mail: first reply receives the book via snail-mail.
The first thing to note about Your Witness is that it made me want to be in a courtroom. As nervous as I was in Trial Advocacy, I did enjoy it on many levels. Trial is a combination of performance, battle, and intellectual pursuits that make being in a courtroom something very unique--and highly addictive.
I also have a confession... I read this book while studying for the bar exam. This is important for two reasons: first, I passed, which means I managed to retain some sanity with the study breaks this book provided; second, it's an easy read, not too distracting. Each of the fifty chapters is contributed by a 'who's who' of Chicago trial lawyers. The common thread is that they are offering advice about cross-examination techniques and lessons from their years of experience.
The quality of each chapter, accordingly, varies quite a bit. Unfortunately, sometimes great skill in the courtroom really don't translate into great skill at the word processor. Since I'll soon be practicing in Chicago, I won't burn any bridges here, but I'd say out of 50 chapters, there are probably 10 which are really outstanding, another 30 well worth the time, and 10 which could have been cut without missing anything from the book. There are probably five authors who could easily write enjoyable books of their own, and maybe, if I run into them around town I'll suggest it. And there are a few others that I might not want to be up against in court, but that I think should put down the word processor and walk away slowly. I'll leave it up to you to figure out who the editors probably just included to save face in the Chicago legal world, but there are a few of them.
The styles of the chapter, as well as the topics covered, vary as much as the personality of the individual attorneys themselves. Some offer straight up lessons, with examples thrown in to punctuate a point. Others write largely anecdotal war stories, but still offer some insight into cross-examination as the 'moral of the story'. Those are my personal favorites. Some of these attorneys have some incredible 'tales from the trenches' that carry along with them valuable lessons on a variety of subjects relevant to cross-examination, including depositions, experts, witness preparation, advocate witnesses, hostile witnesses, liars, etc.
Even though some of the chapters are less valuable than others, the format of the book lends itself to skipping a chapter here and there if you find a particular author not to your liking. Additionally, since each chapter stands on it's own, it is an easy read. You can pick up a chapter waiting on the train, standing in line somewhere, avoiding another Barbri test set.
If you've every taken Trial Ad and enjoyed it, I think you'll enjoy this book. If you plan on being in a courtroom (representing someone, that is) in your career, you'll enjoy this book and hopefully get something out of it as well. And even if you don't practice in court, but just want some insight into what makes those members of the trial bar tick, I think this book is worth a read.
Posted by Dave! Permalink
October 1, 2008
Hallelujah!!!
Dear Mr. Gulbransen,
We are pleased to advise you that you have passed the July 2008 Illinois bar examination.
Posted by Dave! Permalink | Comments (10)
August 14, 2008
Great News for "Open Source" Licensing
Good news for open source/Creative Commons licensing proponents. It seems the Court of Appeals for the Federal Circuit has issued an opinion in Jacobsen v. Katzer.
The case involved some open source code which was licensed under the Artistic 1.0 license. The District Court had determined that the alleged infringement constituted only a breach of contract, rather than copyright infringement, because the license was overly broad. The distinction between covenant and condition is important because a condition would revoke the license, while breaching a covenant would be a simple contract issue. This impacts evaluating the criteria for issuing a preliminary injunction: a mere breach of contract cause of action does not have a presumption of irreparable harm--so no injunction.
The CAFC relied heavily on the language of the license in its analysis, noting that the license used the term "condition" frequently and that other language was consistent with creating conditions under California law (the applicable law in this appeal).
Reading the terms of the license as conditions, which I think is pretty clear in this case, means that a violation of the condition results in revocation of the license, and therefore the use in question is infringing.
[Via Lessig]
Posted by Dave! Permalink
August 2, 2008
The Waiting is the Hardest Part...
Well, the July 2008 Bar Exam is over and I've mostly recovered, thanks to some good meals and some good wine (more on those, later). I don't want to say much about the exam, from sheer superstitious paranoia, but here are a few impressions...
Day one is essay day. Three Illinois essays in the morning (90min), followed by the Multi-state Preformance Test (90min) and then three hours of Multi-state Essay Examination in the afternoon. That equates to a whole lotta writing. And to someone like me, who types for a living (essentially) it sure sucked. My hand was numb by the end of the day, and I'm just getting over the soreness. Seriously, Illinois limited the number of people who could take it on a laptop to 800. Out of nearly 4,000 people taking the exam. That has to change. Either that, or Barbri needs to include one of those hand grip exercise things.
Day two is multiple choice. Believe it or not, it's harder than the essays. At least for me. I'm not going to go into content or how I think I did. I'll just say that the essays were easier than I thought, and the morning of the Multi-state Bar Exam was much harder than I thought. Overall, I suppose it balanced out to a pretty tough exam. How'd I do? I honestly have no idea.
That's the worst of it. The test was July 29-30. I get my results sometime in mid-October. That is truly the worst thing about the Bar Exam.
Posted by Dave! Permalink
July 27, 2008
Good Luck!
To all my fellow Bar Exam takers who will be joining me in hell on Tuesday and Wednesday, good luck!!!
Posted by Dave! Permalink
July 13, 2008
The Dream Police...
Last night I had a dream that I went to see Stephen Malkmus with a bunch of friends. It was a great show and after we got to hang out with him. He had an acoustic guitar out, and was playing some new stuff that he'd been working on... he turned to me and said, "I think you'll like this one," and proceeded to play me a song he'd written about intestacy statutes.
I now leave you to go spiral deeper into my bar exam neurosis. I'm going off-line for the next three weeks to prepare... hey, I know my weakness.
To all my fellow recent JDs, who are busy studying mashups of laws that don't really exist in most jurisdictions to be able to answer hypotheticals about problems you'll likely never face in real practice, good luck!!!
Posted by Dave! Permalink
February 6, 2008
Trial Advocacy
I've been meaning to post about this for quite some time...
At the end of the summer, just before the fall semester, I took "Intensive Trial Advocacy". It's an eight-day intensive course--and at my school, you have to take the follow up ("Trial Ad 2") the next semester. Many schools have similar classes, called "Trial Ad" or "Trial Practice" or somesuch.
It was definitely an intense experience. Essentially, you are cramming a three credit hour course into eight days--eight long days--covering as many aspects of trial practice as possible. It's mentally exhausting, but it was one of the best experiences I've had in law school. First, I learned an incredible amount. Second, I felt more camaraderie with my classmates in Trial Ad than in many of my other law school courses--not to say it wasn't competitive, it was. But it was also a lot of fun.
The course takes you through skills like direct examination, cross examination, witness prep, opening and closing statements, objections, etc. It is without a doubt the best way to learn the rules of evidence--much better than evidence class! Having to think about the rules of evidence in a practical sense, during prep and during trial, is far more instructive than reading caselaw.
Learning to direct and cross witnesses was valuable as well, and opening statements/closing arguments helped cure some of my public speaking foibles (hopefully). All in all, there was a lot of thinking on your feet--it's a great way to hone your presentation and public speaking skills, all while actually getting to apply your analytical skills and knowledge of the law. I'll admit, the motion practice section is a little weak, at least in the intensive session. Intensive really focuses on the trial itself, with many exercises and mini-trials, leading up to the final, which is a full-blown jury trial. In the second course, you get to delve into motion practice a little more, and refine some of the skills from intensive.
If you're a law student looking to take something in your 2/3L year that will not only be educational, but also a lot of fun, I would highly recommend taking a Trial Advocacy course, even if you don't plan on being a litigator--which I don't. The skills you'll pick up in Trial Ad will help you think on your feet better and refine your communication skills. Regardless of what type of law you hope or think you will end up practicing, I think every law student would benefit from this type of practical course.
Posted by Dave! Permalink
November 11, 2007
How Law School Warps Your Brain
There are some commercials I've seen on television a few times (those rare few times I'm watching live TV, mostly games) from Liberty Mutual that disturb me to no end. They show people doing nice things for people... a woman pulls a guy back to the curb and saves him from a car... a postman helps a guy working on his house steady a ladder... some girl picks up trash and puts in a bin... another lady helps some movers life a couch off a truck. The tagline is "When people do the right thing, they call it being responsible. When it's a home insurance company, they call it Liberty Mutual."
I immediately think, "Those people aren't being responsible, they are just being nice. They have no duty to help any of those other people... and in fact, in some of those situations they are exposing themselves to liability by helping in the first place."
sigh
Posted by Dave! Permalink | Comments (3)
August 28, 2007
Notes for a Law Lecture
"There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief--resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave."Posted by Dave! Permalink
August 20, 2007
Blawg Review #122
Blawg Review goes back to school with Blawg Review #122. With the school year almost upon us, it's time for late registration--and you can't register if you don't know what courses are being offered. So, without further ado, I present to the Blawg Review Course Catalog.
Your host next week will be the esteemed D. Todd Smith at the Texas Appellate Law Blog. Be sure to visit for the next Blawg Review installment!
Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.
Posted by Dave! Permalink | Comments (1)
June 20, 2007
Ridiculous Disclaimers
I'm in California all this week for a conference, which so far has been kind of a bust. It's a regular annual technology thing, with some training seminars and a lot of vendor exhibitions. Unfortunately, there just haven't been many things I've seen here that I didn't already know about. The web and the speed of transmission of information has really changed what conferences should be, but that's for another post.
This post is about one of the training seminars. Now, keep in mind that most of the attendees at this conference are technology professionals. They make their living working with technology.
Today, I attended a session, which had typical PowerPoint handouts, but the second slide (after the title) was a huge "WARNING":
"Materials may not be recorded or copied or used for any for-profit purpose or any other event use without prior permission. Violators will be prosecuted."
First, the whole point of getting the information in the seminar is to use it for-profit: to expand your skills and increase your business. Now, I do realize that this disclaimer is really meant to try to discourage people from stealing the slides for their own presentations, but honestly, is this really necessary? More to the point, does the presenter think it's effective? It won't stop a real jackass from stealing the content, it doesn't really provide any legal protection (a simple copyright notice at the bottom would have worked) and it insults the intelligence of the rest of us.
Posted by Dave! Permalink
March 5, 2007
Why I Am a Dork.
Because every time someone says something about using Thomson & Thomson for a trademark search, I think of Thomson & Thompson.
Posted by Dave! Permalink | Comments (2)
January 29, 2007
Un-Conference: LexThink
Over at LexThink they are undergoing some changes, with an updated logo (that still leaves _a lot_ to be desired, in my never humble opinion) and a new tag line, "the legal unconference company."
One of the LexThink principals, Dennis Kennedy has a nice roundup of un-conference posts and I wanted to throw in my two cents.
I've only had the pleasure of attending one LexThink event, Blawgthink 2005, but it was one of the single best and most productive conferences I've been to. There are some different opinions on what an "unconference" is or should be, but I think that LexThink does a tremendous job with their implementation/interpretation.
I think is important to realize that an "unconference" does not mean "unstructured". Instead, the structure is organic and comes from the desires and goals of the attendees, not a mandated structure from the conference organizers. The result is that you learn far more in an unconference session (generally)--at least I do.
That isn't to say that every session is a hit. It takes the right presenter to be fluid enough to work well in an environment that isn't rigid and pre-planned. That's one of the LexThink strengths--finding the right people. It also takes an open mind and a willingness of the attendees to take charge of their own agenda and not to settle for being spoon fed information. Sometimes, one or the other isn't there and the result is a lack-luster session.
But surprisingly often, the attendees are excited about having some input and step up, and the presenters are excited about the interest from their audience. The excitement is contagious, a feedback loop of sorts. When everything comes together, the result can be a fantastic, interesting, and *productive* session where more information flows in all directions and learning abounds.
I know I sound a bit like an evangelist, but seriously, give an unconference a try sometime, it's worth the risk. It won't cost you anything but time and chances are you've wasted plenty of that in traditional conferences already.
Posted by Dave! Permalink | Comments (1)
October 5, 2006
Why People Hate Lawyers.
Vanity licenses plates on Mercedes which read "ONE 3RD".
Posted by Dave! Permalink | Comments (1)
August 14, 2006
Blawg Review #70
It's here! Blawg Review #70 is up and ready for your perusal. This week's Blawg Review brings an eclectic mix of back-to-school posts just in time for some last minute reading before the school year gets underway. All this, while battling a sinus infection from hell. So, here it is, straight from the fever dreams of my death bed:
Your host next week will be the fine folks at QuizLaw who promise to deliver "Simple Answers to Complex Legal Questions". Visit QuizLaw next week for Blawg Review #71.
Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.
Posted by Dave! Permalink | Comments (1)
June 14, 2006
Ford's "Cruel Joke"
I caught this little tid-bit the other day: Is Ford's parting gift to ex-workers 'cruel joke'?. It seems Ford fired this guy 9 months before his 30th Anniversary with the company--which would have allowed him to retire with full benefits. Instead, he gets a reduced pension and he has to wait 10 years to start drawing on it. Then, to add insult to injury, last week, Ford sent him a congratulatory certificate "recognizing his 30 years of service to Ford"!
He's already involved in a law suit over his termination. Now, this is how law school changes you... my first thought was, "Can he add an IIED claim?"
(That's Intentional Infliction of Emotional Distress to the non-law-talking-people who read the blog...)
Posted by Dave! Permalink | Comments (4)
March 20, 2006
Women and Biglaw
The Blawg world is all atwitter over this NYT piece about women as partners in BIGLAW, Why do so few women reach the top of big law firms? There's some interesting commentary out there, but I think one person gets it more than any other commenter I've seen and that is Carolyn Elefant over at My Shingle.
I think she's absolutely right: the bottom line of making partner is making the firm money. If you bring in clients and bill enough hours you make partner. It means working more than the other associates, who already work a lot. Those willing to make the sacrifices to their personal lives to make the firm money end up making partner, be they man or woman. It's not about sex. It's about color and that color is green.
Posted by Dave! Permalink | Comments (2)
January 10, 2006
Alito for Law Students: The Drinking Game
I've had the Alito hearings on NPR playing on my computer all day at work. Interesting at times, other times it fades into the background. But I have noticed a bit of a theme. So for all the legal groupies out there, I present the Alito Confirmation Hearing Drinking Game. It's pretty simple, but guaranteed to get you drunk as a senator skunk:
- Every time a Senator (R) asks an essentially rhetorical question, like, "Judge Alito, you don't believe that the executive has the raw, unchecked god-like power to command all his subjects to do his evil bidding, now do you?" Take a shot.
- Every time a Senator (D) says "Vanguard," take a shot.
- Every time a Senator (R) uses more than 10 minutes at a stretch describing the amazing qualifications of the demigod of jurisprudence, take a shot.
- Every time a Senator (D) asks how Judge Alito feels about the supreme authority of the executive, take a shot.
And finally, every time Judge Alito references the "Twilight Zone created by Justice Jackson" chug whiskey until you are in the twilight zone created by Justice Jackson.
Posted by Dave! Permalink | Comments (1)
January 7, 2006
Chicago Area Law Blogs
I'm working on an article for a publication and I would like to list Chicago area law blogs. If you have or know of a Chicago based or themed law related blog that you would like listed (and maybe featured) in the article, please drop me a line. I'd also be interested in Illinois based law blogs in general, too. Thanks!
Posted by Dave! Permalink
January 6, 2006
Copyright Basics
First, this is important: I am not a lawyer and this is not legal advice. I'm currently a law student, in the process of learning to "think like a lawyer" hence this disclaimer; I am learning to cover my ass. Anyway, you should worship me and idolize me, but you should always check with a licensed attorney in your own jurisdiction when it comes to legal advice.
That said, I have a lot of friends who are artists, musicians, writers, etc. and from time to time, they will ask me a question, such as, "Hey, you're in law school! Is it true that I can copyright my story/song/drawing by sealing it in an envelope and mailing it to myself?" To which I usually respond, "Hell if I know." Sometimes they will ask, "How can I protect my blog entries from being stolen?" To which I usually respond, "You can't."
That second response is, unfortunately, the truth. If you want your work read, listened to, or viewed, you're going to have to face the reality that someone may, in fact, be able to steal your work. Once the work is out there for others to see, it's out there for slimeballs to steal. This isn't anything new… when 16th Century monks wrote erotic poetry for the aristocracy, the only thing that kept it from being copied far and wide was rampant illiteracy.
So, learn to live with the fact that some jerk out there may try to steal your work. Instead, know that 1) you are the talented one that created the work in the first place, so they aren't going to get very far ripping other people off; 2) the higher a profile they gain by ripping you off, the better your chances of catching them. And really, that's what most people really want to know when they ask me about copyright, "If someone does steal my work, what can I do once I catch them?
Copyright Basics
First, let's start with what copyright is and what it isn't. It's all about one thing: property. When we talk about "property rights" in law school, an analogy frequently used is a "bundle of sticks". Each stick represents a right you have in property you own, and collectively, they are the property rights. So, for a piece of land, you might have the right to rent it, the right to invite people onto it, or to kick trespassers off, etc. When it comes to your ideas, there are similar property rights. In the case of your business logo, you can obtain a trademark to prevent other businesses from using it. Or if you've invented a great new mechanical reaper, you can patent it to prevent others from stealing your design and marketing it. When it comes to your original works, such as writings, songs, paintings, drawings, even computer code, the collective rights are talked about as copyright.
The rights you have under copyright include things like the right to sell copies of your work, the right to prevent other people from copying your work, the right to allow others to use portions of your work, perform your work, etc.
So how do you get copyright on your works? Well, first, the work has to be original; and you have to put some creative effort into creating it. That said, it doesn't have to be as original or creative as you might think, but you can't just copy the dictionary in blue ink and say that your creativity has resulted in a new work that's original. Chances are, if you aren't trying to rip somebody off, and you're genuinely creating something from your own imagination, you're going to be okay. You can't, however, copyright an idea, you have to copyright something tangible--words, pictures, symbols, etc.
So these rights are wonderful and you want to protect them. So how do you go about that? The nice thing about all of this is that you have a copyright on your work as soon as you create it. That is, as soon as it is fixed in some tangible form, you are protected by copyright, you don't have to do anything. You will probably want to do some things to protect your rights, which we'll get to in a minute, but you don't have to.
Generally speaking, you control the copyright of your works for life, and then your estate controls them for 70 years after you die (life of the author plus 70 years). That will vary if it's a corporate authorship or if the work was created "for-hire" but we're not going to get into that here. If you're creating works for-hire and you don't have a contract which was reviewed by your attorney, you're risking getting screwed.
Now, recall that I said you don't have to do anything. But you should do some things if you really want to protect yourself.
First, you should always put a copyright notice on your works. You've probably seen them:
Copyright © 2006 David Gulbransen
This is a good idea, because it puts anyone seeing your work on notice that the work is copyrighted, when and by whom. That makes it hard for them to claim they thought the work was free just because they saw it on-line and everything on line is free.
Second, in the U.S. (with apologies to my throngs of international readers) you should register your work with the U.S. Copyright Office. It's very easy to do and it only costs you $30. But what it buys you is well worth it: prima facie evidence in court that you own the copyright to the work (if registered within 5 years of creation). That's good. In some cases, it may also entitle you to more damages (money!) and attorney's fees if you have to go to court to defend your rights. All of these are good things and well worth $30 up front.
Now, that sounds fine and dandy for most things… but what about blogs? Are you supposed to register every post?! Suddenly, that $30 fee doesn't sound as reasonable. Well, remember, you have the copyright as soon as you post. So don't sweat immediate registration. If you're really concerned about it, register your posts collectively (as a compilation) once a year. $30 a year buys you registration piece of mind without breaking the bank. And if you're really strapped for cash, register the works as a collection once every 5 years. Pennies a day!
Copyrights and Blogs
When it comes to blogging, there are really two issues with copyright: protecting your works and making sure not to violate the works of others!
Protecting yourself is pretty easy: don't steal other peoples work. Okay, you wouldn't do that blatantly, would you? Of course not, but there are some steps you can take to make sure you don't accidentally run into problems either:
1. Don't use images from another source unless you have obtained permission from the author, or unless they are from a "royalty free" collection or database.
2. If you reference another person's blog, post, article, etc. give them attribution and a link. This isn't just good for protection, it's polite.
3. If you must quote to make a point, reference, etc. do so sparingly and selectively. Don't quote three paragraphs when one sentence will do.
If you stick to those guidelines, chances are you'll be okay. But should someone get nasty with a letter from a lawyer telling you to take something down: take it down. Unless you are willing to end up in court defending your use on principle--in which case, talk to an attorney and make sure you would even have a case.
Which is a nice lead in for what you should do if you find someone is stealing your work: sue them!! Sue them into oblivion!! Whoops, lawyer thinking again… sorry. Actually, court is really the last place you want to be. Here's the thing about court: it's not cheap. It takes forever to work through the litigation process, filing fees aren't cheap, and lawyers are not cheap. It's going to cost you a fortune to really take legal action, so your first question if you find someone is gankin' your goods is to ask yourself if it's worth the trouble to defend that blog post you wrote about the cute shit your cat did. Probably not.
But it's easier to say, "let it go!" than it is to actually let it go. So what do you do? Well, first contact the thief and politely ask them to remove your work from their site. Polite is the key, you'll (generally) get better results that way. Which would you respond better to:
"I noticed you have liberally quoted one of my blog entries and in the format of your blog, it isn't clear to the reader that you did not write it. I'm glad you enjoy my work, but would you please link back to the original or remove the post."
Or:
"You goddamn thief! You lying whore of a bastard!! You've stolen my post and I'm going to get a lawyer and sue you into bankruptcy you festering waste of flesh!!!!"
ALL CAPS ARE ALSO A BAD IDEA.
If you don't get results that way, you can take it one step further with the "cease-and-desist" letter, courtesy your attorney. It won't cost you nearly as much to have an attorney draft one of these letters, and often times, the mere presence of an attorney's letterhead will get results without resorting to a lawsuit. Remember, you don't want to be in court unless you really have to be--and unless there's more at stake than just your pride.
Licensing
So you've got your copyright notice plastered all over your site. You have your registration packet lined up for last year's post. And suddenly it occurs to you: wait, I want some people to be able to use my work--as long as they aren't MEGACORP profiting from it without paying me. Say hello to licensing!
You may have thought licensing was only for your car or Major League Baseball, but you, too, can license your works. In the blog world, you've probably seen references to the "Creative Commons". Or you may have even applied a "Creative Commons" License to your blog. If you did, I hope you understand what it means.
Remember that "bundle of sticks" that make up the copyright? Well, you can give away your rights, one stick at a time--allowing people the right to do something with your work while prohibiting others. For example, with the "Attribution Non-commercial No Derivatives" license, people can copy your works and distribute them, so long as they give you credit (attribution), don't make money (non-commercial) and don't change the work (no derivatives). There's a smorgasbord of licenses to choose from over at the Creative Commons, and if you decide to go that route, you'll want to consider which you choose. Think about:
1. Who do you want to be able to use your works? Anyone? For profit or for non-commercial use?
2. Do you want them to be able to change your work, or use it in/as a starting point for their own works? Or do you want to prohibit derivatives in any form?
3. If you do allow derivatives, do you want that person to be able to make money from those? Or do you want them to be required to share any derivative works just like you shared yours?
Those are all considerations for a Creative Commons license. One advantage of a Creative Commons license is that they are presented with a nice, clean "human readable" description, which helps you select the license that is right for you. One drawback is that the description isn't actually the license. For an interesting discussion of this, you can check out the debate over at Between Lawyers. What it boils down to is that you should think about it before you just slap on a Creative Commons license. It may very well suit your needs, but the first step is to identify those needs.
You could also roll your own license, although this will certainly be more costly, and involve getting an attorney to draft it (or at the very lease, review your draft) to make sure you are adequately protecting your rights. Again, deciding to spend the money will depend on the nature of your blog. What are you blogging about? Your kids? Your cats? Your stock market recommendations? It should be obvious that one of those topics requires closer legal scrutiny than the others. Cats are so very litigious.
Conclusion
I hope this has cleared up some of the questions you may have had regarding copyrights, so you can throw away those printouts of your blog that you'd planned on mailing to yourself. There are some really great resources on the web if you want to learn more about copyrights:
- U.S. Copyright Office
- Stanford University: Copyright and Fair Use
- Copyright Management Center
- Creative Commons
- 14 Copyright Tips for Bloggers
And of course, I'm not a lawyer nor do I play one on the web-but I like to be helpful.
Posted by Dave! Permalink | Comments (5)
December 6, 2005
EFF? What is it good for?
The Register has a (typically) inflammatory article up which questions the efficacy of the EFF. The article, EFF volunteers to lose important suit over Sony 'rootkit', is definitely troll bait. But there is a nugget of truth in it: the EFF does not have a great track record.
This raises two questions in my mind. First, if the EFF weren't out taking on these kinds of cases, what organization would? Or what organization should be taking these cases? Second, what kind of oversight is there of the job the EFF is doing? I have not read/followed all of the cases that the EFF has been involved with closely, but a few (notably Eldred) have not left me overly impressed. But then again, I'm not sure some of these issues would even be raised if the EFF weren't pushing them forward.
I don't think there is a clear cut answer to the questions I posed; I also think the EFF does valuable work. It could very well be that the EFF has a bad track record because they are fighting a horrible system and every point of concession, however minor, is in a way an important victory. But it is plausible that the EFF is just doing a bad job, isn't it?
Posted by Dave! Permalink
October 4, 2005
Harriet Miers
Blah blah blah Harriet Miers blah blah blah.
Let's do the numbers:
| SCOTUS Judicial Experience1 | ||
| Experience | Number of Justices | Percentage |
| None2 | 26 | 23.85% |
| Political3 | 24 | 22.02% |
| Solicitor General | 3 | 2.75% |
| Attorney General | 9 | 8.26% |
| Governor | 4 | 3.67% |
| Senator | 7 | 6.42% |
| President | 1 | 0.92% |
| State Court Judges | 42 | 38.53% |
| Federal District Judges | 7 | 6.42% |
| Federal Appeals Court Judges | 27 | 24.77% |
| Judical Experience Total | 76 | 69.72% |
1All data from the Oyez Project
2No significant political experience as defined by the category breakout following
3Total based on the category breakout
I have a complete breakdown by Justice in this spreadsheet for the geeky amoung you.
Posted by Dave! Permalink | Comments (1)
September 27, 2005
Blawg Review #25
I'm a little late to the game (busy Monday)... but Blawg Review #25 is up over at ai. The theme for this issue is protest, which considering the arrest of Cindy Sheehan and other war protesters this weekend, seems appropriate.
Posted by Dave! Permalink
September 12, 2005
Blawg Review #23
Welcome to Blawg Review #23, hosted by yours truly, Dave! here at Preaching to the Perverted.
As the Editor 'n' Chef noted in his gracious introduction, I am a part-time law student in Chicago, who also has a full-time job, also in Chicago. As luck would have it, I've been traveling a lot for work this summer so this edition of Blawg Review is brought to you from merry old England, London to be specific, where the internet connectivity is great--but they could use more ice in their Diet Cokes.
This edition of the Blawg Review is an eclectic mix, owing mostly to my own varied interests. Katrina is still very much in the news, so it seems fitting that we still have a number of related posts. Also, I'm keenly (see? the Queen's English is rubbing off) interested in China as well as Intellectual Property Law, so you'll see a lot of that reflected in the links.
Finally, I owe a big debt of gratitude to Political Calculations, and the Carnival of the Capitalists for the idea of using dynamic, sortable tables for this week's edition. (Just click on any header to re-sort the table by that header.)
As a further innovation (which is definitely facilitated by the format) if there's a post you think was really essential last week (between 9/5-9/10) send it to me directly. I'm going to update the Blawg Review over the course of the week with new suggestions (from those dates only, please) and corrections. So keep coming back and inflate my hit count!
Now, for your reading pleasure I present:
| Blawg Review #23 | September 12, 2005 |
| Post | Description | Contributor | Category |
|---|---|---|---|
| Katrina Update | Monica Bay, from The Common Scold gives us a Katrina update, including a link to the efforts of "legal tech troops" to help out colleagues who have been affected by the storm. | The Common Scold | Katrina |
| Taking Away Their Guns in New Orleans | Prof. Orin Kerr sets the ball rolling over at VC regarding the confiscation of guns in New Orleans. He notes, "I have a feeling that this story is going to get a lot of attention at the VC one way or another, so I figure I may as well be the first to raise it," well, that is probably an understatement. Many follow up posts and comments to, uh, kill time with. | The Volokh Conspiracy | Katrina |
| Blogging from New Orleans | It's hard to imagine blogging from New Orleans, but many did manage, including Ernie the Attorney. Blogpulse catches up with Ernie through e-mail and a friend's cell phone to bring you this interview. | Blog Pulse | Katrina |
| White Washing the Black Storm | I knew the Katrina race issue had gone mainstream when I heard Wolf Blitzer describe the evacuees from the Superdome as being, "So Poor... So Black." Now we have White Washing the Black Storm, "Two Houston Law Professors' First Hand Blog Accounts of the Real Treatment of Black Americans in Hurricane Katrina's Aftermath" | White Washing the Black Storm | Katrina |
| FEMA's Brown Padded Resume: Hardly a Lawyer, Either | The Daily Kos brings you the low-down on dissecting Brownie's resume. In light of his recent demotion, this seemed appropriate. Especially since Brownie's a lawyer. | Daily Kos | Katrina |
| Price Gouging | Iain Murry claims, "Price gouging is one of the great myths of our time. Because it doesn't exist, one should be wary of the motives of anyone who claims it does." Prof. Dave Hoffman offers a counter-point. | Prawfsblawg | Katrina |
| Is Price Gouging Efficient? | Following on the heels of Prof. Hoffman, Prof. Christine Hurt from Conglomerate chimes in. for some reason, everyone decided to comment on Hoffman's original post here instead of at Profsblawg which means 1) read the comments here, and 2) people obviously aren't rational, they're lazy. | Conglomerate | Katrina |
| Not the Usual Solemn Proceeding | Lyle Denniston at SCOTUSblog reports that the funeral of the Chief Justice, William H. Rehnquist, was not the usual solemn proceeding. | SCOTUS Blog | Judicial |
| St. John Roberts? | Judge John Roberts might be praying for his appointment as Chief Justice of the Supreme Court of the United States. David Giacalone notes that there is a St. John Roberts to whom the practicing Catholic nominee could be praying for intercession. Depending on how the judicial confirmation hearings go this week, St. John Roberts could emerge as the patron saint of judicial nominees or the patron saint of martyrs drawn and quartered. | f/k/a.... | Judicial |
| Robert's Views on Splitting the Ninth Circuit | Howard Bashman asks, "Who will ask Chief Justice nominee John G. Roberts, Jr. for his views on splitting the Ninth Circuit?" I'll volunteer, if they'd let me. I have a few other questions, all in good taste, I assure you. | How Appealing | Judicial |
| Law Profs Opposed to John Roberts: Show, Don't Tell | "The weakness of the letter, as I see it, is that it fails the basic lesson of writing: show, don't tell." I think Prof. Yin has now become a hero to legal writing students everywhere. I need to check the list of professor's signing that letter to see if I had/will have any of them. | The Yin Blog | Judicial |
| Higher Education: Good News and Bad News | Prof. Bainbridge puts on airs about higher education in America. Of course, he laments his own school ranking lower than UC Berkeley and UCSD, noting that UCLA needs to pull up their socks. See? The students at Berkeley don't wear socks with their Birkenstocks. Maybe that's the problem at UCLA. | Professor Bainbridge | Education |
| Where Are The Conservative Law Professors? | Objective Justice | Education | |
| Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work? | I certainly hope not. Otherwise, I'm screwed. | Prawfsblawg | Education |
| Schiess's Plain Legal Writing | I'm always looking for ways to improve my writing--whether or not you can tell from Preaching to the Perverted. So this is a site I just discovered dedicated to legal writing by Prof. Wayne Schiess. It's nice to see a blog from a professor at the University of Texas. Really. | Schiess's Plain Legal Writing | Education |
| Got All My Thangs, In My Momma's Name, but I'm Hood-Rich | "I hope my intellectual elitism remains finely tuned enough to weed out the vapid educated individuals from the intelligent hard-working individuals." Me, too. | Woman of the Law | Education |
| Preparing For Class | Dennis Tonsing asks and answers the question, "When you were in law school, did you use abbreviations when taking notes?" Notes? I'm supposed to be taking notes?! | Academic Support | Education |
| Asking Some Tough Questions About Legal Education | Dennis Kennedy points to some good posts, including this gem from Diane Murley on Out of the Jungle. As I plunge further into debt and exhaustion (working full-time, law school in the evening) I have a lot of thoughts about the efficiency of legal education. I'm glad to see other's thinking about this, too. | Between Lawyers | Education |
| China Joins IP Standards Group | Although I'm blogging from England this week, I'm very interested in China. Especially IP law in China. | Pierce Law IP News Blogs | IP |
| Robert�s Record on IP Issues | With Robert's slim judicial record, groups like the EFF are wondering, what are Robert's views on IP issues? I'm wondering, too. | Pierce Law IP News Blogs | IP |
| Guide to Cyber ID Theft and Financial Fraud | beSpacific has this link to an excellent resource about on-line ID theft and fraud. Not just for lawyers, this is stuff everyone should be concerned about. | Be Spacific | IP |
| The Latest IP Crime: "Box-Wrap" Patent Infringement | This is an interesting case in the IP world. Lexmark wins a case allowing them to enforce their "single-use" license term, which prevents consumers from putting new ink into the old Lexmark cartridges when they run dry. There are some interesting comments. | Copyfight | IP |
| False Advertising in China | Colin Samuels contemplates the legal recourse possibilities for Chinese restaurant patrons who thought they were served illegal tiger meat but were actually consuming donkey meat marinated in tiger urine. | Infamy or Praise | China |
| Criticism of Yahoo's Role in Prosecution of Journalist Shi Tao | This case presents some interesting issues about international law. Especially with the rise of China and increase activity by American companies there. | Chinese Law Prof Blog | China |
| China, Inc. | Prof. Gordon Smith chimes in with some thoughts about China and the role of the Chinese government in private companies. | Conglomerate | China |
| New Paper on Shareholder Activism | Prof. Bainbridge announces that his new paper, "Shareholder Activism and Institutional Investors" is available on SSRN. It promises to be a pretty interesting paper, given the rise of the shareholder in recent years. He also takes a look at the institutional shareholder and their role (or lack thereof) in policing corporate governance. | Professor Bainbridge | Corporate Law |
| Labor Day Special:Labor Law Stories | George Lenard offers a book review of Labor Law Stories as a tribute to Labor Day. | George's Employment Blawg | Labor Law |
| Does Punishment Work? | Ken Lammers, a Virginia criminal defense lawyer, shares his opinion on whether and when punishment works. | Crimlaw | Criminal Law |
| First Survivor Richard Hatch Indicted on Ten Counts | What happens when a person reneges on a plea deal? The government fires back with both barrels, so to speak. Is Hatch still a Survivor? Burned once, don't look for the government to offer any sweet deals this time. | White Collar Crime Prof Blog | Criminal Law |
| Batson Redux: Can We Ever Eliminate Racially Motivated Peremptory Strikes? | The Jurygeek, Clay Conrad, takes a look back at Batson, in which Justice Thurgood Marshall argued that the only way to eliminate racist peremptory strikes was to eliminate peremptory strikes. | Jurygeek | Practice |
| An Astute Kansas Jury | After rendering a not guilty verdict, a juror asks the prosecutor, "I just wanted to know if you were a jerk all the time, or if it was just in the Courtroom?" | Jurygeek | Practice |
| Breakdown of Civility Among Lawyers | Robert Ambrogi is, "appalled that members of the legal profession would call for unbridled, vigilante street justice," in response to looting during Katrina. He links to some prominent legal blogger's thoughts on the subject, whose views may (or may not) surprise you. | Robert Ambrogi's LawSites | Practice |
| LexThink BlawgThink | LexThink BlawgThink is coming to my home town, Chicago! I had to miss the last one (being in school and working and all) but this one I'm not missing. If you're reading this, you should go, because you can meet me there. And isn't that reason enough? | Dennis Kennedy | Practice |
| No Duty To Disclose Racist Beliefs | Professor Volokh is skeptical of a lawsuit by the Missouri Attorney General against a Katrina fundraiser sued for violating state fund-raising law and for "omitting the material fact that the ultimate company behind the defendants' Web sites supports white supremacy." | The Volokh Conspiracy | Practice |
| On Surviving the Lion's Den | Evan Schaeffer has returned from the American Enterprise Institute, where he spoke about the Vioxx verdict. His speech was titled, "In Defense of the Jury System, Post-Ernst." As testament to Evan's oratory skills, he survived. | Legal Underground | Practice |
| Mississippi's Insurance Commissioner Drops Some Subtle Hints | Katrina is causing a lot of causation challenges for insurance adjusters who are now beginning to deal with claims. Most homeowners policies cover losses caused by wind or caused by water that gets into the home because of wind (such as rain after the roof has flown off), but they don't cover losses caused by surface waters and flooding. | Declarations and Exclusions | Practice |
| "We're So Good We'll Be Fine," And Other Fairy Tales | Leadership and law practice. Two words that probably don't go together as often as they should. Bruce MacEwen offers some thoughts about the differences between management and leadership. | Adam Smith, Esq. | Practice |
| Mediation Mensch | The Mediation Mensch isn't a lawyer, but with the meteoric rise of mediation in the past 10 years, maybe more lawyers should be mediators. | Mediation Mensch | Practice |
| Safeguarding Client Information | Katrina has got many firms re-thinking their disaster recovery plans. The folks at Freedman Consulting offers some starting points for your firm to start re-evaluating how you protect client information from disaster. | Law Practice Management | Practice |
| Is Space Law Like Sex? | You can take the professor out of space law and blast him into an impossibly alluring orbit of fame and fortune in the blogosphere and beyond, but you can't take the space law out of Professor Reynolds. | Space Law Probe | Practice |
| For more information or past issues, please visit BlawgReview.com |
Thank you for reading! I hope you enjoyed the format and I hope you return to Preaching to the Perverted to check out some of my other ramblings.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
Posted by Dave! Permalink | Comments (1)
September 8, 2005
You know you are cracking...
...when you dream about Civil Procedure.
I had a dream that I had died and I was being judged to determine if I would go to Heaven or Hell. It turns out, it's all about personal jurisdiction and choice of law.
In my dream, when you die, you go to a Court of the After Life, where each side files these special motions to try to wrestle jurisdiction over your soul. It all hinges on minimal contacts--of sorts--and "fair play and substantial justice". A balancing test, really.
If you have more good contacts with people, Heaven gets jurisdiction and can apply their law, which is relatively forgiving. If you have more bad contacts with people, you're in Hell's court, where the law is a little more strict constructionist.
Well, I lucked out and ended up in Heaven's Court (hey, it was my dream) and then went on to be Solicitor General for God.
*insert maniacal laughter here*
Posted by Dave! Permalink | Comments (3)
August 24, 2005
Woe is Mac
I recently bought an Apple PowerBook. Mostly because I really love OS X, and although I already have a PC desktop and notebook for work, I wanted a light, fun computer to use for my personal projects and school. Now, I have no illusions about Macs and law school--I expected no support and resistance, but this is a bit ridiculous.
We have wireless networking (new!) at my school, and I wanted to get my new PB on... so I went to our "Help Desk" and our conversation went like this:
"I wanted to authorize my Mac for the wireless network."
"We don't support Macs. You see, they use a completely different operating system."
"Um, yes, I know. But wireless is wireless. It's all 802.11b/g and TCP/IP. I can give you the MAC address for authentication."
"We don't support them because we don't want Macs here."
Delightful bunch. This is the same crew that told me they required Windows because of security last year. I had to suppress my laughter at that one.
*sigh*
I can still get on the wired network, but it's irritating.
Posted by Dave! Permalink | Comments (4)
July 9, 2005
Just Desserts
I once made fun of Christine Hurt over at
Conglomerate for her late night Saturday Bluebooking.
Now, here it is, 11:40PM on a Saturday night and I'm just taking a break from the draft of my write-on case note.
*sigh*
Posted by Dave! Permalink | Comments (3)
June 16, 2005
A Tale of Two Law Students: Me
This is the tale of two law students: Dave and Dave. The first half of this (very long) post was written the day after I took my first exam of my second semester. As you will see, I was pretty despondent. When I finished, I decided that although writing about it was cathartic, posting it would only have revealed half of the story�my perception at the time, but not the reality of my performance. The rest of the story would have to wait until grades were released.
This week, I received the grades, and so I drafted the second half of the post. Here are both parts...
May 13, 2005
Self-realization. I was thinking of the immortal words of Socrates, when he said, "I drank what?" —Real Genius
Have you ever known something? I mean known it? Mastered it, backward and forward, like the back of your hand, inside and out, cliché after cliché? Well, that's how I felt about Contracts.
Contracts made sense. Not only that, I studied for this exam. Hard. I re-read all of the cases (no fooling'). I summarized them. I re-read all the relevant sections of the Restatement and the UCC. I outlined. I knew this shit cold. And it was an open book exam!
For class, I'd read the cases. I'd participated in class. I'd studied the material. If law school grades were based on some reasonable assessment of knowledge, say, a series of assignments during the semester comprised of quizzes, papers, a mid-term and a final, I would rock Contracts like Tenacious D on meth.
Instead, law school is based on the one final/one grade paradigm. This is a clever system designed to—well, I have no idea what it's designed to do. Apparently it's designed to determine: (1) who takes tests better; (2) who was having a better day; (3) who responds best to completely bogus artificial pressures that have no bearing on your real knowledge and/or mastery of the material but will nonetheless determine whether you clerk for the honorable Judge Whitey or have an ad for bankruptcy ((info))((tapes))℠ on the back of the local yellow pages.
If you sat down with me for an afternoon, engaged in a discussion of contracts, I think you would walk away from our conversation saying, "Wow, he really has a fundamental grasp of the material." If you read my exam answers from yesterday, you would say, "can this freak even tie his own shoes?"
I walked into the exam psyched. I was ready for it. In fact, I would almost say I was looking forward to it. This test was different.™ Our professor wanted us to cite cases! Our professor wanted us to answer real application questions! He even warned us: irrelevant doctrine would result in the subtraction of points, so no kitchen sink, mind-dump here. No! You had to know the law and apply it. Cool! The instructions even contained phrases that strike fear into the heart of most law students: some of the questions could be answered in a few sentences! (Unlike this essay.)
Now, remember that I said this was an open book test. So, I cracked the exam and read the first question. Here is a selection of my inner dialog:
"Whoa. This is a no-brainer. Wait. Is it? Maybe it's not as simple as I think. I must be missing something. Okay. Stick to the game plan. Just read the questions, no thinking, no writing. Read. Digest."
"Okay. Done. This is too easy. Wait a minute. I am so, totally and completely missing something. Wait. Stop. You're getting distracted. STICK TO THE PLAN. Okay, better. Outline answer number one."
"Hmmm. That seems too short, too simple. I have to be missing something... what am I forgetting?! Hey, okay, I know I wasn't going to use it... but the case book is right there. Just check a thing or two. Quickly. No, really, I'll be quick--the clock is ticking."
At that point, it's was all over. I'd fscked it all up; I opened the case book and frantically searched for "what I was missing" but I never did find it. What I did find was that I'd wasted a considerable amount of time second-guessing myself on what should have been a throw away question. So now, turning my attention to the next question, I was already behind. Needless to say, I didn't really finish the last question (there were three total). My last answer consisted of an outline, some paragraph sketches, and a little note indicating that I had run out of time.
I completely screwed myself on this one. I went from confident, feeling like I knew the material to a wishy-washy second-guesser in about five minutes flat. Why?
Because the pressure is really overwhelming. You've spent 3-4 months reading 1200 pages of cases for this class and your entire grade is going to be determined within this one, 3.5 hour window. It's about as far removed from nearly any real-life situation I've ever faced. I've never had a boss come to me and say, "you know that big project we've been evaluating for the last six months? I'd like a report for the board in three hours. Just write as much as you can remember about the project—oh, and your raise depends on how the board feels about this report."
Nor has my wife, an attorney, ever been told by a judge, "I want that motion on my desk in three hours." Hell, I can't tell you how many times she's gone to court and at the end of the day I'll ask how it went, only to hear, "the other guy asked for a continuance. I have to go back in two months."
So what exactly are we being tested on? This isn't a criticism of my Contracts professor—he was a good teacher. In fact, I think his exam (using real world questions and open book) was much closer to reality than some of the other exams I've taken, which were glorified, "Take the next three hours to write anything and everything you can about the subject" types of exams.
But we all have bad days and we don't all respond the same under the type of pressure you face in an exam situation. Does that mean that you're going to be a bad attorney? I highly doubt it. The demands of trial practice aren't the same as a transactional real estate practice. The exam is a highly artificial metric which doesn't really test much more than your ability to take law school exams. But this exam determines your grade and therefore your "worth" as a student, which is in turn used by employers to gage your "worth" as a potential employee. I can't be the only one who thinks this system is fundamentally flawed.
In the end, I'm just very, very depressed about the whole experience. Depressed because I feel as though my performance was below what I am capable of; depressed because I know that this one bad day is going to drag down my GPA and I'll spend the rest of school trying to catch up; depressed because now I'm completely drained and I have to turn around and study for another exam; and most of all, depressed because I let this bullshit get to me like this.
June 16, 2005
I have received the grades for my classes last semester. It's hard for me to express just how utterly and completely devastated I was after my Contracts exam. I was so angry with myself for not having stuck to my exam plan as close as I would have liked and for letting the pressure of the exam get to me.
I know that grades are not the end-all-be-all of existence. I'd been out of school long enough before returning to law school to know that my performance in the workplace, my skills, and my ideas are good and valuable to employers and I know that although grades might matter for that first job, they fade pretty quickly.
After the exam, I took a day off. I spent some time with my wife and I decided I would not post-mortem the exam in any way. So I left Contracts behind and moved on to Property.
I was very careful to follow the study plan I'd outlined and every day I reminded myself that it was just a test. Consequently, this time, I was able to stick to my exam plan and I walked out of the exam feeling somewhat confident. Somewhat. I was still plagued by that same doubt I think all law students—if not all students—face: that I somehow missed a major point, resulting in poor answers that were incomplete or just plain wrong.
I still think that the law school exam process is very flawed. There is a very definite bent to law school, almost military—a "break you down in order to rebuild you" sort of thing going on. Except law school doesn't rebuild you. They pay a lot of lip service to "thinking like a lawyer" which I suppose may be true if thinking like a lawyer means saying to hell with advice, mentorship and teaching and learning nearly everything on your own. That's law school in a nutshell—they break you down, alright, but the rebuilding is up to you. It's the most expensive self-study course you'll ever take.
That isn't to say I haven't had a good experience. On the whole, I have. That alone should be evidence of the insanity that is law school. I'm sure you're asking yourself right now, "Wait, he was just going on and on about how exams nearly killed him and now he's saying it's a good experience?! Waaa?" But it's true. This is the first time in my life I've actually had to work in school. There is something satisfying about that, in a perverse way.
This semester I had two very good professors—one of whom is among the best professors I have ever had. But even in his class, performance evaluation still came down to that one day, those 3.5 hours spent sitting in front of a computer, trying to condense a semester's worth of knowledge into a few pages cogent enough to demonstrate that you may have actually learned something.
I still think it's a crap way to evaluate students.
So what did all this self-imposed drama teach me? I'm not sure. Mostly it confirmed that I'm my own worst enemy and the real danger lies in taking myself too seriously. But now I have some more experience under my belt and I know just how much difference remaining calm and keeping perspective can make. I only hope I can retain that insight as I continue to "rebuild" myself and start "thinking like a lawyer".
Oh, if you were wondering, I rocked both exams.
Rock over London, rock out Chicago!
Posted by Dave! Permalink | Comments (3)
June 12, 2005
Weekly Law School Round Up
Update: To make this a more community friendly feature (and so I can slough off the editorial duties to other Blawgers like AI and E.Spat) I've moved this post over to Blawg Wisdom. -Dave!
Evan Schaeffer used to perform a valuable community service with the Weekly Law School Roundup. Unfortunately, with his format change, he dropped the feature. Given the number of blogs I read each week, I figured I would take a stab at it, at least for a bit. If people like it, I'll keep it up.
Things are kind of slow on the law student front, what with the arrival of summer. A whole bunch of law students are law students no more: Sua Sponte, Jeremy Blachman, Law Dork, and the Class Maledictorian have graduated. Congrats to you all!
Now, let's see what's cooking with those of us still in hell:
Summer associates are eatin' right... WonL has a round robin welcome dinner as a new summer associate. Meanwhile, Heidi is living large in the Windy City. E. Spat might be busy getting ready for the summer gig, but she still had some time to serve up a little beefcake.
What are you going to wash that down with? Milbarge clues in the unenlightened.
Meanwhile, back in the trenches, Nudum Pactum wants to know... Is nothing holy?
And finally, Jeremy Richey is cooking up something exciting, but I've been sworn to secrecy...
Posted by Dave! Permalink
May 26, 2005
Criminal Justice in America
The Suburban Ecstasies has a really great post entitled: Twenty Incontrovertible Truths About the American Criminal Justice System, From Someone Who Knows and Has No Interest in Lying to You About It.
You should read it even if you are not a law student or lawyer. You should read it because it's chock full of things you should know and understand as an American (or know and understand about America for my worldly readers).
[Via ambivalent imbroglio]
Posted by Dave! Permalink
May 20, 2005
Some Hard Truths
Sherry has a rundown of the Legal Lies that are bandied about in the legal profession, especially to law students and young lawyers. As a law student myself, I can attest that I've been told more than a few of these by people before. Some of them I still tell myself occasionally.
Posted by Dave! Permalink | Comments (1)
The times, they are a changin'
I'm late in the game with respect to commenting on the changes which are being undertaken over at the Legal Underground.
Obviously, I am dismayed that Evan felt these changes were necessary to avoid problems in the perception (certainly not the reality) of what blogging means to a practicing attorney. However, I'm not convinced changing the blog is the right solution. It seems to me to be treating the symptom, not the disease. The real treatment should be educating clients and law partners about what blogging is and what it isn't. For example, the recent exchanges at Between Lawyers.
But it's Evan's decision to do what is best for his circumstances; I wish him well no matter what shape the blog takes. I have no doubt he will find ways to keep the content fresh and interesting, and I will remain a frequent reader. Although, the law student roundup will be sorely missed.
Posted by Dave! Permalink
May 8, 2005
Great Law School T-Shirts
Law School Funny Stuff has some really funny t-shirts for sale. Well, funny if you are a law student or a lawyer. My personal fav, "I own blackacre".
[Via In Limine]
Posted by Dave! Permalink
May 6, 2005
No Broadcast Flag!
The U.S. Appeals Court for the D.C. Circuit this morning threw out the Federal Communications Commission's order establishing the so-called "broadcast flag."
One small victory for consumers!
[Via Tech Law Advisor]
Posted by Dave! Permalink | Comments (1)
May 4, 2005
The Dave! Fall Lineup
I know, this year isn't even over (I still have two finals) but I just got my schedule confirmation for next fall... Civ Pro, Legislative Process(?), and Evidence. Legislative Process is the new class that replaces Justice as a requirement. Because, you know, fsck justice. We're going to be lawyers, damn it. If you come out of law school thinking that justice has much to do with the law, well, the terrorists win.
Anyway, the best news is that I only have to be in class until 8:30 two nights a week! And the other two nights I get out at 8:00! Yippee!! Goodbye 14 hour days and hello 12.5 hour goodness! What am I ever going to do with all that spare time?!
Posted by Dave! Permalink
April 28, 2005
How not to argue your appeal.
Wow. And you thought you were unprepared for moot court?! Just listen to that guy! (It's short, only 4 min.)
Posted by Dave! Permalink | Comments (1)
April 27, 2005
Overheard Conversation
You think you are a procrastinator. This was the conversation overheard in class the other day:
Slack Master, "Hey, do you have the reading for contracts?"
Classmate, "Um, hold on, let me look it up... it wasn't bad, 25 pages or so."
Slack Master, "Twenty-Five pages for the whole semester?"
Classmate, "Um, no, for tomorrow. The semester's assignments are basically the entire casebook."
Slack Master, "Really???!"
And I thought I was behind because I'm just starting my outlines! This guy has over 900 pages of reading to do!
Posted by Dave! Permalink
April 21, 2005
A Paper I Need to Read...
Heidi writes about a classmate presenting a paper in Federalism which started out:
"So, I went to Professor Halberstam and said that I wanted to write a paper about states rights in zombie movies. And he said, 'Well, nobody's going to take you seriously if you write about states rights.'"
I so want to read that paper...
[Via Letters of Marque]
Posted by Dave! Permalink
April 18, 2005
BIGLAW Takes on the Billable Hour
Sort of...
In this article in today's Tribune, McGuireWoods is taking on the billable hour by offering "alternative billing arrangements."
Note, the article does go out of the way to avoid saying, "flat fee". However, any step towards predictability and management of legal costs is welcome, I'm sure.
I wonder if that means associates at McGuireWoods would have reduced billable hour quotas? Or if they would have actual dollar amount goals instead--or god forbid--reduced quotas all around.
Posted by Dave! Permalink
April 11, 2005
Blawg Review #1
Blawg Review #1 is hot off the, uh, press. Pick up your copy today!
Posted by Dave! Permalink
Survey of Student Engagement
Jeremy has a fantastic Survey of Student Engagement posted today... All law students are definitely encouraged to take it.
Posted by Dave! Permalink
April 5, 2005
Blawg Review
It's a new blog carnival... or should that be Blawg Carniv�le? Either way, Evan Schaeffer, Kevin J. Heller and a mysterious Editor 'n' Chef have launched Blawg Review. It should be an interesting read...
Update: I'm slated to guest host Blawg Review on September 12.
Posted by Dave! Permalink
March 5, 2005
More on Law Professors...
Prof. Hurt over at Conglomerate jumps into the 'where should you go to school if you want to be a law professor fray' and raises a very good point: it is important to consider current hiring practices and not just the practices of the past.
To respond to some points that have been raised in various comments on other sites:
1. Prof. Leiter notes: "It appears the person (My name is Dave, but you may call me Mr. Gulbransen --Ed.) surveying the Chicago-area law schools was counting clinical *and* academic faculty..."
Personally, I don't care about the distinction. I doubt outside of the cloistered world of the academy, that anyone cares. Undoubtedly it has career implications but I also suspect there are some who would prefer to be clinical faculty. God forbid people entering the field of higher education have different motives.
2. I don't think it's any more difficult to pursue an academic career in law than it is in any other academic field. In fact, I'm still surprised that people can get jobs in legal education with only a J.D. (Although, as Prof. Solum notes, and LLM, SJD, or PhD can an advantage.) I mean c'mon people--the scholarly publications of legal education are student edited journals. I do wonder how the world of legal scholarship would be changed if faculty submitted to peer edited journals. I know I'm not the first to wonder.
3. Publishing is lovely; however, there are those who would just prefer to teach--and there is value in that. Law professors would be wise to bear that in mind. Those who graduate, enter the real world, make their fortunes are those who endow the chairs that afford faculty the luxury of academe. They also tend to remember those who taught them best. (And yes, I'm aware that publishing and teaching aren't mutually exclusive--but those who master both are as exceptional as the Tier 4 graduate professor.)
4. I never stated that I wanted a career in academics. I wouldn't rule it out, but it's not something I've given much consideration--it is certainly not why I decided to go to law school. Frankly, if I knew with 100% certainty that I wanted to be an academic, I'd get a PhD before I'd get a JD. I'm one of those freaks who went to law school with the notion that the law applies to so many areas of our lives that it would be worth having the degree--whether I practice or not--and whether I stay in my current career path or not.
I just hate to see members of a class (and "law professor" is definitely a class) crushing the dreams of anyone out there who may be wanting to pursue a career in academics. Yes, a healthy dose of reality is important to anyone--no one should be completely blind to the hurdles they may have to overcome to pursue a career in their chosen field. But to say that if you go to a school outside the top [insert arbitrary, self-serving number] then it's hopeless isn't doing a service to anyone because it is just not true.
That isn't to say that someone who graduates at the bottom of their class from a Tier 4 school has a shot at academics; but that's not really what's being debated. None of the student voices I've heard lack the understanding that the more prestigious your pedigree the easier the road. But there are those out there who would be very comfortable ending up a faculty member at one of those Tier 2, 3, or 4 schools where they could teach students to be lawyers. And not all of those future professors need degrees from Yale to get there.
Posted by Dave! Permalink | Comments (1)
March 2, 2005
Something is rank here, all right.
There's a lot of talk about law school rank these days (I guess there always is)... however, one thing that caught my eye was David Bernstein's post over at The Volokh Conspiracy. Law Dork and Divine Angst both had some interesting comments as well.
So, in the spirit of procrastination for a brief I'm working on, I did a "mini" survey. I looked at the "rankings" for the schools attended by some law professors who blog:
| Blogging Professors | |
| Number Surveyed | 47 |
| Average Rank | 7 |
| Top 10 | 37/47 |
| Percentage Top 10 | 79% |
Since I'm all about the City of Chicago, I also decided to take a look at all the law schools in the Chicago area. Here they are, presented in order of school rank:
| Chicago | Rank: 6 |
| Number Surveyed | 58 |
| Average Rank | 6 |
| Top 10 | 54/58 |
| Percentage Top 10 | 93% |
| Northwestern | Rank: 10 |
| Number Surveyed | 88 |
| Average Rank | 16 |
| Top 10 | 66/88 |
| Percentage Top 10 | 75% |
| Chicago-Kent | Rank: 63 |
| Number Surveyed | 69 |
| Average Rank | 23 |
| Top 10 | 35/69 |
| Percentage Top 10 | 51% |
| Loyola | Rank: 67 |
| Number Surveyed | 47 |
| Average Rank | 37 |
| Top 10 | 22/47 |
| Percentage Top 10 | 47% |
| DePaul | Rank: 103 |
| Number Surveyed | 62 |
| Average Rank | 41 |
| Top 10 | 24/62 |
| Percentage Top 10 | 39% |
| John Marshall | Rank: 138 |
| Number Surveyed | 61 |
| Average Rank | 47 |
| Top 10 | 23/61 |
| Percentage Top 10 | 38% |
Note: This was a very cursory survey, based on faculty listings on the school's websites. I also threw out professors who had degrees from places like "Tokyo University" because I didn't have a ranking guide handy for them. The other ranks are all based on the latest U.S. News ranking, since that seems to be the de facto standard--for better or worse.
If you want to see the full results--including a break-down by individual faculty members, I've put it here in an Excel sheet.
Apparently, there is some hope for those who would like to pursue a career in academics, but don't have the Top 10 cred.
Would anyone be interested if I expanded this into a full survey/paper?
Posted by Dave! Permalink | Comments (2)
February 22, 2005
Calling all Law Students - A Quick Survey
I'm just curious (I'm having issues with my school's computing support). How many of your schools offer:
1. Wired network access in the classroom?
2. Wireless network access?
3. If they offer wireless network access, how do you authenticate? (If you know.)
Thanks!
Posted by Dave! Permalink | Comments (11)
February 16, 2005
Grokster
The Supreme Court is going to hear the case of MGM Studios, Inc. v. Grokster, Ltd. in March (right around my birthday!). This is a big deal; the case will have a huge impact on copyright and the idea of "contributory infringement". I would love to go to D.C. and hear this argument.
[Via Law & Entrepreneurship News]
Posted by Dave! Permalink
February 10, 2005
Stupid Exam Mistakes
We had a review session last night for one of my exams last semester. Yeah, it's been over two months since we took the exams, but apparently the law moves slow and academics move slower.
Anyway, I thought I would share with you a mistake that I can only attribute to nerves since it was my very first exam in over 10 years out of school:
"Because John Doe did not die, Mr. Stabby is not guilty of murder."
(Duh)
"However, he may be liable for murder under the deadly weapon doctrine."
(Um, you know, if Doe had died.)
I actually laughed when I read that... apparently, so did my prof.
Posted by Dave! Permalink
February 2, 2005
Pony Up the Points!
Jeremy Richey is encouraging everyone to donate their Lexis Points for tsunami relief (via the Red Cross). Just sign into your Lexis account and "shop"... you should see a link to donate to the Red Cross Tsunami relief.
C'mon people! Pony up the points! What the hell were you going to use them for anyway?! Spend the points on something useful!
Posted by Dave! Permalink
January 30, 2005
The Pitfalls of Big Law
One of the many reason's lawyers have such incredibly low career satisfaction, and one reason I don't want to go Big Law:
The Truth About the Billable Hour
[Via The Prejudicial Effect]
Posted by Dave! Permalink | Comments (1)
January 29, 2005
Why I don't want to be a law professor.
Seriously, I kid... I own a BlueBook, ALWD, and The Redbook. Not too mention my Strunk & White and my CMS. I'm a style guide junkie.
Posted by Dave! Permalink | Comments (1)
January 26, 2005
Guest Post
I wrote a Guest Post today for Evan over at Notes from the (Legal) Underground. It was in response to this post from last week by Prof. Childs.
Go on over and check them out, if you are so inclined.
Posted by Dave! Permalink | Comments (3)
January 25, 2005
A Minor Criticism
I realize that I am not at a "Tier One" school where the focus is academic research. However, my school aggressively touted their legal writing program as a selling point and I bought it.
But now that I've been through a semester of it and I'm deep into the first assignment of the second semester. It's become clear: this is not about writing; it's about job training.
I don't actually have a problem with that. But I do wish it had been billed that way. I understand the need to teach us how to structure memorandum, complaints, motions, memorandum in support of motions, briefs, etc. But the bulk of our time is spent going over rote procedural points that could, I think, easily been gleaned out of a text book or by example.
We don't spend any time in class analyzing our thought processes, our word choice, the logical structure of our arguments. That's sloughed off with the "Neumann Paradigm" which is to be committed to memory, and serve as the boiler plate for all of our writing moving forward. Fine. That's all fine. It's just a let-down.
But the kicker, the thing that actually bothers me is the constant, "the first assignment you'll get when you join a firm." Or, "this is how the partner you're working for is going to want this." Or, "the first few years at your firm are going to be spent doing this."
God forbid any of us should want to start a solo practice. Or work for the state. Or go into public service. Or consult. Or any number of things we could accomplish with our training.
This assumption that we're all automatons gearing up to practice BIGLAW, go the traditional wage slave, er, associate route is *so* 1950. I know law is slow to change, but really, this is 2005. There are probably as many different reasons for being here as there are students. And a significant portion of us probably don't want to practice BIGLAW. So fine, teach the course like we're all going to end up the Anonymous Lawyer, but c'mon throw the rest of us a bone every now and then with an assignment that might actually pique our interest. And stop ramming the, "this is the way it will be" down our throat.
Posted by Dave! Permalink | Comments (1)
January 19, 2005
Fluke or Fate?
Well, it's in... the last grade for my first semester as a 1L! And, as luck would have it, it's much higher than the first grade I received. Which is very ironic... I felt so confident and prepared for my criminal exam, and I get an unexpectedly lousy grade. Then I feel completely unprepared and and daunted by torts, and viola... a respectable grade?!
I suppose I should have been able to surmise that outcome by the way I felt after each exam. Over confident? Flubbed it. Freaked out? Did well.
Go figure.
At least the criminal professor is letting us review the exams and having a review session, so I can see what I did "wrong" for his exam.
Posted by Dave! Permalink
January 18, 2005
Grades: Part Deux
Well, I got another one, and thankfully, this one is an order of magnitude better than the first. It's almost exactly what I thought I would get, and felt I deserved for the course. It was in legal writing, a course which alternately I loved and drove me bonkers.
That leaves just Torts outstanding... which is both good and bad. I didn't feel as confident going into torts as I did going into Criminal. The exam itself also felt much more difficult. So either I really f'd it up, or I'll do better in torts, making my criminal grade, well, criminal. :)
Only time will tell... It'll probably be another week at least until I get my final grade. Sheesh.
Posted by Dave! Permalink
January 10, 2005
It ain't scarlet, and it ain't no "A"
Well, apparently grades have begun to trickle in, because I just got an IM from a classmate, "Did you see? Crim grades are posted!"
So I went up to check, and viola! Bitter disappointment! Hooray!!
I am so glad I skipped town right after finals and hadn't thought about them until now. Otherwise, I'd be a basket case.
What sucks is that I really, truly felt that I was prepared for this round. I did the practice tests. I wrote my own outline. I was pretty confident I knew the material. And then bam! I am starring at one of the worst grades of my academic career.
I know, it has to happen at some point, but I was still not ready for the shock. Granted, it's only in one class, and it's not enough to put me on academic probation or anything, but it is enough to make the law school experience, shall we say, less pleasant?
I've decided I'm not playing any silly law school games. When people ask how I did, I am candid: "Not very well." If they press, I'll reveal the actual letter... I feel like it's already branded on me like a scarlet "A". Well, not an A, exactly...
What's most upsetting is that I actually enjoyed the class. I kept up with the readings and I thought I had a good handle on the material. I studied. As one of those over-achieving assholes who always did well in school without really trying, I decided law school would be different. I applied myself. And the reward I got was a lousy grade!
So, should I go back to my slacker ways? I think I could do this well with a lot less work. Or should I chalk it up to experience and the fact that I'm still learning exactly what law professors are looking for in an exam? Or should I write it off as one bad test, hardly an estimation of my self-worth, or even my (potential) ability within the practice of law? I dunno. I suppose I should wait and see if this one grade was an anomaly, or an indication of a bad semester.
Sigh.
Posted by Dave! Permalink | Comments (4)
December 9, 2004
One More To Go!
Finished my Criminal Final tonight, so just Torts left, and this semester is over! I will make no prognostication about my performance. I'm sure I did better than I think and not as good as I hope. Who knows? It will be another 5-6 weeks before I get my grades back anyway.
I have come out of this finals period with some valuable lessons though, which I would love to share for all you pre-1Ls out there:
1. Briefing is valuable for keeping up with the development of ideas in class, but the value of briefing for exams is minimal. (Keep in mind, this might not be true of more case-centric courses, like Con Law.) You should brief, but brief briefly. :)
2. Outline. Outline. Outline. Seriously.
Now, here's the thing, everyone will say, "Outline the way that means something to you" which I think is a total B.S. cop out. I'm going to tell you how to outline:
First, start with your course syllabus, make each one of the topics a major header in your outline.
Next, underneath each header, make subheaders for each of the rules/concepts that apply to that section; use your class notes to round this out. Cross-check this with a hornbooks and/or commercial outline. Some of the "Understanding" series are really great... The Criminal One (Dressler) is especially good.
Now, under each rule/concept, fill in an example or descriptive paragraph. It's best to do this from a synthesis of your notes and either a hornbook (preferably) or (if necessary) a commercial outline. The rules you can crib verbatim from the texts. Or from your notes, if you have a persnickety Prof. like my torts Prof., who wants us to spit back his definitions. But come up with your own explanations and examples that mean something to you.
Finally, refine your outline to your liking. Rearrange concepts in order that make sense to you. Commit the rules to memory, but pare down, hone, and tweak your explanations and your examples until they become second nature.
If you follow those steps, I think you will be well prepared. And if you don't like that method, feel free to use a different one. But I wanted to share that because one of the most frustrating things to me about all the "advice" sessions they have at school is that everyone says, "outline." Then, when you ask, "How?" They all say, "Whatever works for you". If someone says that to you, feel free to answer, "If I knew that, dipshit, I wouldn't be asking! I'm a g-ddamn 1L!"*
3. Re-exam how you are taking notes in class. Are you really writing down what's important? Or are you blindly scribbling away, hoping to sort it out later? Spend less time taking notes on the cases and more time paying attention. Most of the case doesn't matter anyway. Spend more time taking notes on the concepts. (Hint: only a few, if that many, concepts come up in each class period. That chump typing away in the back of class is either recording stuff that doesn't matter, blogging, or e-mailing his girlfriend.)
4. Start your outline the first or second week of class. Keep it up-to-date. Not that I did this, but I wish now that I had. If I had, I could have spent reading period reviewing my outline, and seriously delving in depth into any concepts I was unclear on. However, as it was, I spend most of the reading period on... my outline. Which was beneficial (see the process above) but it would have been really great to hit the reading period with a (mostly) completed outline.
5. Don't panic. Panic kills. Do whatever it takes on test day to relax. Get a massage. Be all loosey goosey. It doesn't pay to be tense. At least for me.
6. Don't post mortem! It ain't med school. Don't dissect the test. Your peers don't have anything to add. Take a cue from the Army: Don't ask, don't tell. Guess what, you did what you could and now it's over. You can't change your answers and knowing now that an aggressor can re-establish their right to self-defense by withdrawing isn't going to help you now, is it? Is it?!
7. Good luck! Honestly, exams are tough, no doubt about it. But the hardest thing is overcoming the culture of fear that swirls around law schools. I think the mythos is perpetuated by attorneys and upperclassmen who feel some sort of fraternal bond, so they want to haze the new guys. Half the fear and intimidation in law school isn't from the work, it's from your peers.
Posted by Dave! Permalink | Comments (1)
December 6, 2004
Exams
I have not died. Yet. One day to Criminal. Seven days to Torts.
Posted by Dave! Permalink | Comments (2)
November 29, 2004
Law Students on Law School
Matt Homann over at the [non]billable hour, has another installment of Five by Five, this time, featuring law students. The respondents include:
- Ambivalent Imbroglio
- Three Years of Hell to Become the Devil
- Sugar, Mr. Poon?
- Jeremy's Weblog
- Buffalo Wings and Vodka
All of which are excellent blogs that any prospective or current law student should read. They offer some great suggestions for changing the legal education system.
Posted by Dave! Permalink
Anonymous Lawyer
Anonymous Lawyer is looking from some literary representation, or so it would seem. (I must have missed the post.) If you haven't read Anonymous Lawyer's blog, I suggest you go take a look. It's the "fictional" account of the trials and tribulations (no pun intended) of a "fictional" hiring partner at a Biglaw firm.
The beauty of Anonymous Lawyer really comes from not knowing how much is true and how much is exaggerated for effect. Some of the posts are downright nasty, and make you question humanity (and really serve to villify some in the legal profession). Other posts offer a glimmer of hope for this lost anonymous soul. I read it like a trashy novel and generally, I'm not disappointed. I tend not to read the comments on the Anonymous Lawyer's site though, because like Scheherazade, I find a lot of them just mean spirited and many others just clearly don't get the humor or irony of the site.
I also agree with Kelly, who comments on Evan's site that she's not sure the site would work as a book... I'm not sure it would either. Part of the guilty pleasure of reading the site is getting the diary feel that you are somehow privy to the day-to-day grist mill that AL works in. I think that would be lost in a book.
Anyway, since I've published over a half-dozen books or so, I've got some contacts. Unfortunately for AL, they are all in technical publishing. However, I do also have a sister who is a professional editor and works for a literary agent. So I'll do my part by passing along the site to her for some comments and to see if she'll run it up the food chain.
Posted by Dave! Permalink
November 21, 2004
The Blawg Buzz
Imagine my surprise when I opened the December edition of Student Lawyer (from the ABA Law Student Division) and saw Todd Chatman's article "Join the Blawg Bandwagon". Todd's better known as mowabb/ambimb over at ambivalent imbroglio and Blawg Wisdom, both great blawgs worth checking out. I'd completely forgotten that I'd answered some questions for the article some time ago, so I was pleasantly surprised to see my name in print.
The article is a great resource for novice bloggers, although it's interesting to see this appear in an ABA publication, given ambimb's latest post.
Posted by Dave! Permalink | Comments (2)
October 16, 2004
Careers in Law
Evan Schaeffer over at Notes from the (Legal) Underground has a very excellent piece today about lawyers and careers.
As a self-styled entrepreneur myself, I've wondered what I would end up doing after law school. I don't necessarily see myself working for a big firm, although I don't rule anything out. I think, and I hope, that law school actually furthers my entrepreneurial spirit, and allows me to continue to do my think in my way, only with a little more experience and an edge against the competition. Time will tell.
Posted by Dave! Permalink
October 14, 2004
Shirts for the Law Student in Your Life
I saw a link to these shirts from LawSchoolStuff.com on another Blawg. (AI? In Limine? I don't recall.) And some of them are hillarious. I'm particularly partial to "Working Hard to be Average".
Posted by Dave! Permalink | Comments (2)
October 13, 2004
Torts
I swear. Railroad crossings. Railroad turn tables. Cattle guards. Platforms. Sleeper cars. Switchbacks. Trespassers. If I read another case about some railroad related accident, I'm gonna puke. Torts should be called "Railroad Accident Liability".
Posted by Dave! Permalink
October 5, 2004
Re: Highlighter Evaluation Criteria
Sanford Liquid Accent Highlighters are the best highlighters on the market. The best highlighters exhibit the following qualities: (1) a visible ink reservoir, indicating the level of remaining ink; (2) a chiseled tip offering thin and broad strokes; (3) bright and distinct colors.
The ability to clearly see the amount of ink remaining in your highlighter is a critical feature to prevent accidentally running out of ink during critical periods of book briefing. Prior attempts at utilizing highlighters without this feature have resulted in disappointing results, with ink supplies running low during critical book briefing in Cases and Materials on Torts. The inability to adequately predict the amount of ink remaining in inferior highlighters, such as the Sanford Accent RT or the Sanford Pocket Accent have directly resulted in missed dicta.
Other brands of highlighters, such as the Bic Z4 Bright Liner or the Pilot Spotlighter Supreme also feature a visible ink reservoir. However, the Bic Z4 Bright Liner and Pilot Spolighter do not feature a 360 degree viewing angle of the reservoir, resulting in period when the ink supply is obscured from view when held in a typical position for highlighting. The Sanford Liquid Accent avoids this problem with the ink supply clearly featured in a 360 degree view.
To achieve maximum versatility, a highlighter must be able to provide a thin stroke, for underlining passages or writing brief notes, while at the same time be able to produce a broad stroke for more traditional text highlighting. This feature is nearly universal on highlighters today, from the Spotlighter to the Bright Liner to the Accent Inspire.
However, the Micro Chisel tip of the Liquid Accent Highlighter can be distinguished from the "Unique Chisel Point" of the Spotlighter and the "Fine Chisel Tip" of the Bright Liner. The Liquid Accent Micro Chisel Tip (emphasis added) consists of a finer point than the "Fine Chisel Tip" of the Bright Liner, which allows for a finer line and greater readability of text written with the finest point of the tip of the highlighter. In addition to a lack of uniqueness, the Spotlighter fails to be either a "fine" or a "micro" chisel, resulting in inferior results when underlining or writing text.
Advocates of highlighting methodology stress the importance of multiple color systems. Typical systems may employ one color for facts, one for holdings and one for procedural elements. Building on that, we can add a color for dicta, one for arguments by the defendant and another for arguments by the plaintiff. If we continue, and add one last color for items highlighted in a dissenting opinion, we are left with the need for no fewer than eight distinct colors.
Only the Sanford Liquid Accent highlighter can provide enough bright and distinct colors. The Bic Z4 Bright Liner offers only five colors: yellow, pink, orange, green and blue. The Pilot Spotlighter Supreme offers six: yellow, pink, blue, purple, green and orange. However, the Liquid Accent offers ten distinct colors: yellow, green, blue, pink, orange, indigo, purple, berry, red, and coral. This wide array of color offerings allows for a diversity of outlining systems.
The Sanford Liquid Accent Highlighter meets the required elements for the best highlighters. With a visible ink reservoir and a micro chiseled tip available in an array of ten colors, the Sanford Liquid Accent Highlighter is one of the best highlighters available to law students today.
Tomorrow, the author, who has clearly lost his mind and will do literally anything to avoid re-writing his first memo assignment will address the issue posed by his wife, "Do you like this chicken?" using the Neumann Paradigm.
Posted by Dave! Permalink | Comments (2)
September 30, 2004
I've been workin' on the railroad.
Palsgraf v. Long Island R. Co. that is. My 1L sense is tingling. I have this strange suspicion that this is an important case and that my torts professor is likely to include it in an exam questions.
Posted by Dave! Permalink | Comments (2)
September 8, 2004
Reviews for 1L: Outliners
There are several products marketed towards the law student, designed to make you more productive in note taking, outlining, briefing, etc. There are three products that I looked at for this exercise, all are "outliners" if we use that term liberally. For this review, I looked at StoreLaw Outliner, Juristudents, and NoteMap.
First, a note about outliners in general. Some people really don't really like outliners, and to be honest, I used to be one of those people. That's because I really didn't have any projects that required it. Generally speaking, whenever I would outline something, I was fine using Word, just cutting and pasting points around. For small outlines, that might be just fine. But on the whole, when I started working on larger outlines, I found it began to be really inefficient. Here are some features I think are key to a decent outliner:
- The ability to easily, on the fly, create new outline nodes
- The ability to easily reformat the outline (I, II, III, A, B, C, etc.)
- The ability to easily reorder the outline (grab nodes, and just drag and drop them into new positions).
First up is StoreLaw Outliner, an outliner/note organizer from the legal powerhouse, Thompson West. The price is decent; you can pick it up for around $65. I think that's the cheapest thing you will ever buy from West, so maybe you'd better take advantage of it. The first problem with the StoreLaw Outliner is, well, it's not much of an outliner. You can create your own outlines, but it's really cumbersome to do so. Want to create a new topic, you right click, select new topic and then you get a pop-up. Way to break concentration and flow. Oh yeah, and grab something and try to move it. You can, but it's not nice. You get no indication of where you are in the outline, just a little hand, and the program is pretty slow and not very responsive. You can use up and down arrows on the toolbar, but forget power outlining. For creating your own outlines, StoreLaw scores a big fat zero.
However, StoreLaw is from West, so you should expect something, right? Well, they provide a number of "pre-fab" outlines, based on the common textbooks for any given subject. Use the Prosser text for Torts? No problem! Just load up the West outline and you're good to go! Unless, um, your professor jumps out of order, or skips a section, and now you're back to trying to drag things around.
Now, because StoreLaw is geared towards students, it does have a nice feature, which allows you to keep notes organized. When you are in an outline, you can have tabs for case brief, class notes, key points, and secondary source notes. Those extra notes sections are associated with the outline node, so if you do manage to drag it someplace useful, your notes follow.
You can also export your notes, and the outline to Word, which is nice for printing, or um, probably something else.
Overall, I find StoreLaw to be slow and annoying. However, if you really dig on pre-canned outlines, this might be the right product for you. I have a Criminal professor who uses his own course packet, and a Torts professor who has his own order to Prosser, so it's not as useful to me. Coupled with the shortcomings of the outliner, I don't think much of StoreLaw. Rating: One Gavel.
Next up, we have another "for law students" product called Juristudents. Like StoreLaw, Juristudents is reasonably priced at $49 and comes to us from an (obviously) smaller company called Stare Decisis. Juristudents scores some major bonus points for being cross-platform. Yes, 98% of all law firms use PCs, and the vast majority of law students are going to work for law firms. But hey, props to the Mac users, they deserve good software too.
As an outliner, Juristudents suffers from many of the same problems that StoreLaw Outliner has, but takes them one level further. Creating new topics in the outline with Juristudents also involves the popups (hmmm, someone's using a bad tree control for their outlines), and I couldn't find any way to rearrange topics in the outline.
Juristudents does allow you to insert case briefs and statutes into your outline, and view them in conjunction with your class notes, which is nice. It's more limited than the pane viewing found in StoreLaw, but like StoreLaw, it will also allow you to export your outline to Word, if you're into that sort of thing.
Overall, Juristudents shows promise, but it is still a little rough around the edges. The get big bonus points for being cross platform, but I think I'll wait for the next version. Rating: One-and-a-half Gavels.
Finally, we have NoteMap from CaseSoft. CaseSoft is a maker of software for lawyers, not students, so this one carries a lawyer price tag at $149. Yipes! However, NoteMap is the only one of the three that is a real outliner. You can create outlines very quickly and easily, no popups to create new topics, subtopics, etc. Just type. In this respect, NoteMap is far superior from an organizational standpoint. You can reorder nodes just by dragging them, and NoteMap has some grey lines that indicate where you are in the overall outline, which is nice if you outline goes fairly deep. You can also mark nodes in your outline, and attach comment "sticky notes" to topics as well. The default style for outlines (fonts, etc.) are, well, ugly, but you can easily change those.
What NoteMap lacks is the multipane viewing for classnotes and case briefs. Personally, I take my class notes directly in NoteMap, because it allows for a natural flow and easy re-ordering. It also has a feature that allows you to link a file to a node in your outline, so you can still link case-briefs or other outlines to your notes. You just can't view them all in one frame. To give you some insight into how I use it, I create my briefs with a template in Word (sigh) and then link them to my class notes outline. So when I need to look at the brief, I double click on the link, and there it is. It's not as elegant as the multiple panes, but it's functional.
NoteMap is a vastly superior outliner to the other products, which is why I tend to like it best. It's flexible enough that I use it for other projects, it's not just for note taking (I use it in Legal Writing/Legal Methods/Lawyering Skills/Whatever for outlining memos, etc.)
That said, it is a whole lot more money. If I were rating it against the others just as an outliner, I'd give it three stars) but here, it's just above the other two, mainly because of a personal preference for more outlining freedom. Rating: Two Gavels.
Clearly, the software geared towards aiding law students needs a lot of work. However, they all beat the hell out of Word, and if you need (or want) something beyond law school, NoteMap makes a good deal of sense.
Posted by Dave! Permalink | Comments (3)
Old Timer, Part Timer
There are some distinct disadvantages to being an evening law student. The first is obvious; I have to work a full-time job and then go to school at night, which pretty much ensures that I have no personal time whatsoever. I can live with that. If my circumstances were different, I would probably enjoy school full-time, it�s just not an option. The second disadvantage didn�t really occur to me until recently, which is everything here is geared towards full-time students. There are some student groups I�m interested in, specifically the Intellectual Property Law Society. They are having an informational meeting. At noon. The Intellectual Property program here has round-table discussions. In the mid-afternoon. The Student Bar Association had a �technology feedback� session for students to provide their perspective on technology at the school. Yes, noon. So pretty much anything outside of my classes that I might want to participate in, which would make me feel more a part of the school, or more complete in my law school experience is geared towards everyone who is available during the day, which pretty much excludes the second-class citizens of the evening program. I don�t blame the school, I do understand that the day program is where it�s at, and if I could, I would probably consider transferring. However, I�m not (as are some of my classmates!) in the evening program because I couldn�t get in the day program. I�m not here biding my time until I transfer to the day division. I�m here because I have family obligations and a job that provides security (and which I enjoy) and I am still serious about the study of the law. I do sometimes wish the school did a little more to acknowledge that.Posted by Dave! Permalink
August 31, 2004
What is with all the typing?
Seriously, what are you so diligently recording in your notes? I swear, from the cacophony emanating from your keyboard, I think you must be recording every single word that comes out of the professor's mouth. Oh, come on now. That student just pulled that out of their butt, and the professor is even hemming and hawing, with a "well... I'm not sure that is what the court was getting at..." and there you are tippity-typing away. Is that exchange really going to help you on the exam? Or are you just recording every word so you can digest it later? That doesn't seem like a good way to take notes to me, because you seem to be lost in your keyboard and missing the discussion. I could be wrong about that, but when the professor called on you, he had to repeat his question. Not because you didn't hear it... in one ear and out the fingertips. But you certainly weren't listening. Oh well, you'll probably smoke me on exams anyway.
Posted by Dave! Permalink | Comments (4)
August 25, 2004
This song is your song!
Well, well, well... it seems that Ludlow Music just might have jumped the gun on their claim against JibJab for copyright infringement. It seems (as reported in this Wired News article) that Guthrie actually published the song in 1945 in a songbook, meaning the copyright expired in 1973. When Ludlow filed their copyright in 1956, the clock was already ticking on the copyright, so when Ludlow renewed it in 1984, they were 11 years too late. Good work by the EFF!!
I think now we should flood the net with amateur versions of the song, royalty free!
Posted by Dave! Permalink
August 23, 2004
Facing the Truth: I am a Gunner
During orientation last week my criminal and legal writing classes actually met, so we did get a "preview" of what's to come in regular class sessions. Today, we met for regular class, Criminal Law, followed by Legal Writing. It was a complete and utter blast. I am super charged and ready for this semester. I wonder how long this will last?
I did have a personal revelation today, during criminal: I am a gunner. Yes, I'd read the dreaded warnings about gunners and the consternation they cause other law students. I certainly didn't mean to cause any students anxiety and I sure don't want to be "that asshole". I just can't help it.
When the professor poses a question, my hand just involuntarily creeps up. Not always, there are times when I don't really get what he's asking, or genuinely don't know the answer. But more often than not, I found my hand was raised, and I did get called on. And when I got called on it felt great.
Why did I enjoy it so much? A couple of reasons: first, and most importantly, I wanted confirmation that I was on the right track. Not necessarily validation that I was "right", but that I understood what was going on in the case as well as what was going on in class. Second, I like the Socratic Method. Yes, I'm a freak. But I think that dance is really great. Today the criminal professor "hammered" on one of my points, and it was fantastic. He actually made me re-examine my stance, analyze the issue a little more, and in the end, I drew a new conclusion that was more appropriate to the case. And I knew why it was, and how my initial impulse was flawed. I'd always feared that the Socratic Method was just a clever guise for torturing and humiliating students, but at least for today, I actually got the oft stated higher goal of learning through questioning.
So, I like speaking in class. And I like the Socratic Method. And I guess that makes me one of the "gunners". Now, I just help I can avoid being one of the assholes.
Posted by Dave! Permalink | Comments (4)
August 18, 2004
Once You Pass the Bar, You Never Pass a Bar.
Orientation Program: The Legal Assistance Program
Welcome to law school! I'm here to speak with you about the Legal Assistance Program, which provides help to members of the legal profession with substance abuse problems. Alcoholism (and substance abuse) is one of the largest problems facing our profession today. Between 25%-50% of all disciplinary actions taken against attorneys are the result of alcohol and substance abuse problems. Substance abuse is not a moral flaw or a question of character. It is a disease and we treat it as such. It is critical that if you know of a colleague who has an alcohol or substance abuse problem that you do not stand idle by and let it go unchecked. You can come to the Legal Assistance Program confidentially; we can work with you to plan an intervention to get your friend the help they need. Together we can work to help those members of our profession who are struggling with this disease of alcoholism. Thank you.
Now we'd like to make a few announcements: Do not forget the Dean's cocktail party tomorrow evening featuring hors d'oeuvres and an open beer/wine bar. And the Student Bar Association would like to remind you of the upcoming "social" at [hip local club] two weeks from Friday. $5 cover for the open bar with student I.D.
Posted by Dave! Permalink | Comments (1)
Tips for Law Students and New Lawyers
Matt Homann, of the [non]billable hour is guest blogging at Notes from the (Legal) Underground and offers us Five Indispensable Tips for Law Students and New Lawyers.
It's chock full of great technology advice and I agree with much of what he says. Personally, I would also add:
1. Try a Tablet PC before you buy one. Although Matt is up on them, I had the opportunity to try one out, and I just didn't think it was all that spectacular. You pay a premium for the technology, and personally, I would wait until it gets better.
2. Outliners are your friend. Even if you don't use CaseMap/NoteMap, do find yourself an outliner that you like and are comfortable with. I see many of my classmates taking notes in Word, and I wonder how they can keep their notes organized in a way that is intuitive without slitting their wrists in the process.
I've actually been using a really awesome little tool called WikiPad for my note taking and briefing. It lets me organize my class notes, case briefs and outlining all in one place, and in a way that makes sense to me, and that's the most important thing: organization tools don't do any good if you don't like them and use them.
3. Learn the power of the PDF. Ernie the Attorney has another blog, called PDF for Lawyers, which unfortunately, doesn't get updated nearly often enough. Acrobat is an amazing tool for electronic document management (my wife, a practicing attorney, is a PDF whiz who uses them for all kinds of filings, forms, etc.). Use it!
Posted by Dave! Permalink | Comments (2)
August 16, 2004
The Orientation: Day Two
Today was another day of orientation. Actually, we did have our first legal writing class today, but we didn?t have a first day assignment, so it was easy to ease into the class. I really enjoyed our professor, he seems like a knowledgeable guy and he?s not particularly intimidating. Since I?ve written, edited, been edited, and published before, I?m actually looking forward to legal writing. My ?self-editing? can really be improved and I?m anxious to learn a style of writing that is specific to a profession. I can?t tell you how many times we were warned, ?Don?t be shocked if you don?t do as well on the first assignments as you hoped. There will probably be some tears.? I say, bring it on, man, bring it on!
I remember when I first started writing technical books; I had such a negative reaction to being edited. I think all beginning writers have this idea that there prose is sacrosanct. When they face the red pen of the editor, they bristle at every cut or suggestion. Well, now I?ve written enough books to know that a good edit is what makes the difference between a decent writer and a great writer. An editor isn?t as married to the text. They can more easily cut extraneous information and often they can help reorganize the text to help it flow and be an easier read. If legal writing is going to help teach me the skill to be a better self editor, I?m all for it. Then my writing will be in even better shape when I pass it along to my editors and peers, and when I get their comments back then I?ll be able to take my writing even further!
Posted by Dave! Permalink | Comments (1)
August 14, 2004
3... 2... 1L!
Today I started orientation, so I guess I am officially a "One L". Since I work in an academic environment, I understand a little bit about the hurdles that have to be overcome in order to roll technology out in a campus environment. However, is there really an excuse to be paying tens upon tens of thousands of dollars in tuition and "technology fees" and not have wireless access.
Actually, there is wireless access, I'm picking up a number of networks in the area, but of course, they all require keys, keys that I don't have. Grrr.
Honestly, there isn't much of an excuse for not having wireless in the classroom at a major law school these days.
Update: I just flagged down one of our "trainers" and he informed me that the infrastructure is in place, it just hasn't been "rolled out" yet. I suppose that makes me feel a little better. Well, not really, but maybe a touch.
Update: I wonder how many copies of Windows XP Professional the bookstore sold today. There were a number of people who had XP Home, or Windows 2000, and they were sent down to the bookstore to purchase XP Pro. Thankfully, I not only had it, but I'm already running Service Pack 2. Of course, that means that for basically the first hour, I'm sitting here blogging, while they are walking everyone else through the SP2 installation. On an interesting hardware note, I see exactly 2 Compaq notebooks, 1 IBM, and the rest are entirely Dell.
Final Analysis: That was a complete waste of my time. I do completely understand the need for making sure everyone is on the same page and has the correct technology, but they should have allowed people to "test out" or something. Or they could have said "You need to come with Windows XP Professional, Service Pack 2 and Office 2003 installed, if you need assistance installing these, make an appointment beforehand" It would have shaved 2-3 hours off the orientation, easily.
Posted by Dave! Permalink | Comments (3)
July 15, 2004
Google, Attorneys and Ethics
There?s a really interesting discussion about an attorney in Kentucky, Ben Cowgill, who purchased a Google AdWord to promote his new law practice. No big deal, you might say, except that the term he purchased was ?Peter Ostermiller? his local competition.
Now, there has been a huge outcry about the ethics of this move. Mr. Cowgill, ironically, represents attorneys who are facing ethics charges. Kevin O?Keefe at Lexblog,com compared his actions to "standing in front of another lawyer's office with a sandwich board saying, `Would you consider coming down to my office instead?'"
This really isn't the same as standing in front of a competitor's practice with a sandwich board directing clients to your firm at all. A much more accurate analogy would be taking out an ad in the same section of the yellow pages as your competitor. That's hardly illegal, or unethical. I think the problem here is the confusion about what Google is and what it is not. Certainly both men have websites which are indexed and searchable via Google. Similarly, AdWords purchased from Google are not exclusive. So, how is this different from competitors buying billboards on the same stretch of highway, or paying retail chains for adjacent shelf space? I personally don?t think it is any different.
The link displayed for Mr. Cowgill when users searched for Mr. Ostermiller wasn't misleading, it was clearly marked as advertising, and obviously it might be of value to someone searching for that type of legal service. The only real argument I've heard that I buy in this case is from Carolyn Elefant, who notes that Mr. Ostermiller should have the first right to use his own name (in essence a trademark) as his own search term. But his failure to do so does not make Mr. Cowgill's behavior unethical, and in fact, there was nothing to prevent him from doing so.
I do agree that Mr. Cowgill stepped into a hornet's nest on this one, and it would have been wise to avoid the issue altogether. However, there seems to be a lot of confusion out there about what Mr. Cowgill really did, which is to simply purchase an ad that would be displayed in the same place as a competitor?s ad. I?ve read several blawgs about how it?s this kind of action that gives lawyers a bad name, but in reality, I think what gives lawyers a bad name is over-reaction and hyperbole.
Posted by Dave! Permalink | Comments (3)
June 29, 2004
Supreme Court Decisions
It was a busy day yesterday at the Supreme Court (I refuse to use the ?SCOTUS? acronym, it just sounds so wrong). Among the decisions published were Rumsfeld v. Padilla, Rasul v. United States, and Hamdi v. Rumsfeld. There are some excellent discussions of these cases out there, which would be of value for all Americans to read. They provide some insight into how the court will approach protecting our Constitution during this war on terror, and frankly, more American?s should take an interest in protecting their Constitutional Rights.
There?s a great blog, SCOTUSBlog, which tracks Supreme Court decisions, and offers some good insight, despite the horrible name. And Tung Yin offers some interesting analysis over at the Yin Blog.
The Court copped out on the Padilla case, dismissing it on a technicality. Of course, it was split along the typical conservative/liberal 5-4 vote count. Can you guess who voted each way? I?ll bet you can. Essentially, they ruled that Padilla had not named the proper respondent in his original suit, claiming that habeas challenges should have the warden of the facility where the prisoner is held as the proper respondent. I doubt we?ve heard the last of this case.
The Rasul case, commonly known as the ?Gitmo? detainee case, was a bit of a blow to the administration, but was a clear victory for the power of the courts. In a 6-3 vote (Rehnquist, Scalia, Thomas dissent) the court ruled that the habeas statute does extend to detainees in Cuba, which essentially means that all the enemy combatants in Guantanamo Bay have the right to have their appeal heard.
By far the most interesting of the rulings is Hamdi, which was one weird breakdown on the vote. The majority opinion was written by O?Conner, and joined by Rehnquist, Kennedy and Breyer. Souter and Ginsberg wrote their own opinion, but joined the majority on the fact that U.S. Citizens should be given the right to challenge their classification as an enemy combatant. Now, how?s this for strange-bedfellows!? Scalia and Stevens wrote that the government only had two options: get congress to suspend the writ of habeas corpus (yeah, right) or that barring that, the government should charge him with treason, and proceed as normal through the court system on those charges.
I?m glad the court found that detainees have a right to at least plead their case; it does help promote the values we espouse here in America to the rest of the world. I mean, either they are prisoners of war, in which case, we need to follow the Geneva Convention, or they are criminals who should be processed through our legal system. I?m disappointed that the court found congress did give the president the power to declare people ?enemy combatants? but at least there is some remedy for them.
As for the Hamdi case, again, at least some of the rights of a U.S. Citizen are protected, and I suspect this will have some bearing on the Padilla case eventually as well, but I think Scalia and Stevens were correct: with a U.S. Citizen, he should be tried as a U.S. Citizen, and the government should have no rights to ?reclassify? someone as an enemy combatant, essentially stripping them of their rights as an American.
Interesting cases?
Posted by Dave! Permalink
April 18, 2004
This is What's Wrong with America
The New York Times has an article about Creekstone Farms. Creekstone had a very lucrative business selling premium beef to the Japanese market. Their business took a nose-dive after the case of U.S. mad cow.
Creekstone struck a deal with their Japanese client?le: they agreed to test all of their cows for mad cow, and the Japanese agreed to start buying their beef again. Now, the USDA has prohibited Creekstone from performing the tests! The USDA is claiming that it will set a bad precedent and that as a result, other US producers will have to start testing all their beef too (god forbid).
So, here we have a government agency, bowing to pressure from the beef lobby to stop a private business from voluntarily increasing their safety standards.
Unbelievable.
Posted by Dave! Permalink
April 6, 2004
The "Duh" of Shrinkwrap Licenses
Ever wonder just how it is that you buy a piece of software, and then, after already having spent the money on it, you are forced to "agree" to a license you never had a chance to review beforehand? The 'Duh" of Shrinkwrap Licenses.
Posted by Dave! Permalink
February 26, 2004
Voluntary Collective Licensing
The EFF has published a "Let the Music Play" whitepaper which outlines their suggestion for Voluntary Collective Licensing of Music File Sharing. It's a very well reasoned and workable idea. So the music industry will reject it out of hand. But it's worth a read, because to me, it's the most reasonable suggestion I've heard to solve the "filesharing" issue.
Posted by Dave! Permalink | Comments (1)
February 17, 2004
Meet Dudley Hiibel
Meet Dudley Hiibel. He's a 59 year old cowboy who owns a small ranch outside of Winnemucca, Nevada. He lives a simple life, but he's his own man. You probably never would have heard of Dudley Hiibel if it weren't for his belief in the U.S. Constitution.
One balmy May evening back in 2000, Dudley was standing around minding his own business when all of a sudden, a policeman pulled-up and demanded that Dudley produce his ID. Dudley, having done nothing wrong, declined. He was arrested and charged with "failure to cooperate" for refusing to show ID on demand. And it's all on video.
On the 22nd of March 2004, the U.S. Supreme Court will decide whether Dudley and the rest of us live in a free society, or in a country where we must show "the papers" whenever a cop demands them.
[Via Boing Boing]
Posted by Dave! Permalink | Comments (1)
January 11, 2004
Aaron's Wrong
Aaron Swartz: The New York Times Upfront asked me to contribute a short piece to a point/counterpoint they were having on download. (I would defend downloading, of course.) I thought I managed to write a pretty good piece, especially for its size and audience, in a couple days. But then I found out my piece was cut because the Times had decided not to tell kids to break the law. So, from the graveyard, here it is.
In this piece, I think Aaron misses the ethical issues entirely, and draws an analogy between file sharing and libraries that simply doesn't hold up. In his piece, Aaron states:
"Stealing is wrong. But downloading isn't stealing. If I shoplift an album from my local record store, no one else can buy it. But when I download a song, no one loses it and another person gets it. There's no ethical problem."
Stealing is more than just denying someone availability. When you shoplift from a store, it impacts the store (which has already paid wholesale for the item) and sometimes the artist (as occasionally, and I know this for a fact from book writing, that shrinkage is forced back on the distributors who in turn, punk it back against my royalties). The person it affects the least is the consumer who wanted to buy it but couldn't because it was ripped off first.
As someone who makes a living from my creative output, I actually agree that there is nothing wrong with downloading. The act of downloading isn't illegal at all nor should it be. The questions arise from the content you are downloading, not the act of downloading
Aaron's library analogy fails miserably; Library's first purchase the books they loan out. And they loan the books, they don't let you keep them forever. To imply downloading is analogous to libraries is a leap of logic right off a cliff. If everyone who offers a file for download (be it text, video or music) first purchased it, and then if everyone who downloaded it only used it for 7 days and deleted it, then and only then would downloading be like a library. Some may try to argue that, like a library, in the downloading scheme at least one person has purchased the content. However, that fails as well. In the library system, each library purchases a copy of the item to be loaned out (often purchasing multiple copies of popular items). The New York Public Library doesn't get a photocopied version of The DaVinci code from the Chicago Public Library and start loaning it out to patrons.
The problem here is that by treating the ethical issues surrounding file sharing and downloading so callously, Aaron does more harm than good. It's no wonder the New York Times didn't run his piece. It doesn't tell kids stealing is okay, it doesn't even really examine what stealing is. And downloading is not necessarily stealing, but it's not necessarily all rainbows and lollipops either.
There are real issues to be addressed as technology allows information to be exchanged more easily among consumers. Pieces like Aaron's don't do anything to really address those issues... they preach to the choir about the virtues of filesharing while ignoring legitimate criticism from those in opposition. If we proponents of filesharing and downloading hope to really change the world, we should stop spinning our wheels with ill conceived rhetoric, and address the real issues at hand.
Posted by Dave! Permalink
December 30, 2003
Creative Commons
If you are a creative individual (and most everyone bothering to read this blog is) then you need to know about the Creative Commons.The Creative Commons is the creation of Lawrence Lessig, the Stanford School of Law, Harvard Law School, and many others, that allows people to license their works in ways that actually make sense. You can create something, be it text, music, video, images, etc. and then pick out a Creative Commons license that makes sense for you; options for licensing include granting all rights, granting all non-commercial rights, or combinations thereof. It's sort of the creative equivalent of the GPL/Open Source thing software developers have been using for their projects, and I think much good can come of it. Check it out.
Posted by Dave! Permalink