Law and Legal
McPeak, Agnieszka, The Internet Made Me Do It: Reconciling Social Media and Professional Norms for Lawyers, Judges, and Law Professors (May 1, 2019). Idaho Law Review, Vol. 55, No. 2, 2019. Available at SSRN: https://ssrn.com/abstract=3418088
“Social media platforms operate under their own social order. Design decisions and policies set by platforms steer user behavior. Additionally, members of online communities set informal expectations that form a unique set of norms. These social media norms—like oversharing, disinhibition, and anonymity—become common online, even though similar conduct might be shunned in the real world. For lawyers, judges, and law professors, a different set of norms apply to both their online and offline conduct. Legal ethics rules, codes of judicial conduct, workplace policies, and general professionalism expectations dictate behavior for legal professionals. Collectively, these professional norms set a higher bar—one that fundamentally clashes with ever-evolving social media norms. This conflict between social media and professional norms must be reconciled in order for lawyers, judges, and law professors to avoid online missteps. This essay examines the clash between the norms of social media conduct with the constraints of professional norms. By doing so, it hopes to help lawyers, judges, and law professors reconcile their real-world roles with their online behavior and offers some guidance for maintaining professionalism across the board.”
Birnhack, Michael D. and Perez, Oren and Perry, Ronen and Teichman, Doron, Ranking Legal Publications: The Israeli Inter-University Committee Report (July 18, 2019). Available at SSRN: https://ssrn.com/abstract=3422168
“The Report offers a global ranking of academic legal publications, covering more than 900 outlets, and using a four-tier categorization. The ranking is based on a combined quantitative and qualitative methodology. The Report was composed in the context of the Israeli academic system, but the methodology and the results are not jurisdiction-specific. Evaluating academic publications is a never-ending challenge. Such evaluation is an integral part of internal hiring, promotion, and tenure procedures, and of external funding decisions and institutional rankings. The proper way to evaluate academic publications has been the subject of fierce debate. The traditional method for academic evaluation is specific review of each publication, assessing its originality, rigor, and significance. This method, known as “peer-review”, is often difficult to perform and might be subjective and biased. These concerns have generated an increased interest in the use of quantitative indicators in research evaluation. However, notwithstanding its scientific allure, the use of quantitative measures to assess research has been heavily criticized by the academic community for losing sight of the intrinsic value of academic work, for ignoring distinct “citation communities” in various fields, and for creating perverse incentives that could actually undermine scientific innovation and reward mediocre work. Evaluation of legal scholarship faces particular challenges due to the absence of comprehensive, universally endorsed, quantitative rankings of law journals and the fundamental bifurcation into peer-reviewed and student-edited journals. The challenges are further complicated in non-English speaking jurisdictions, such as Israel, where scholars publish in both their local language and English, in domestic and foreign journals…”
“On July 22, 2019, the Association of Research Libraries (ARL) and the University of Virginia (UVA) Library released this white paper, The Law and Accessible Texts: Reconciling Civil Rights and Copyrights, authored by Brandon Butler (UVA), Prue Adler (ARL), and Krista Cox (ARL). This white paper, part of a project supported by a grant from The Andrew W. Mellon Foundation, analyzes how institutions of higher education can meet their mission of providing all students with equitable access to information within the current legal framework. Ensuring access to research and learning materials is critical in protecting the civil rights of people with disabilities.”
MyShingle – Nicole Black: “Earlier this week, I lead a roundtable discussion on Artificial Intelligence in Legal Research and Law Practice at the American Association of Law Librarians (AALL) which took place in Washington D.C. I was grateful for the invitation from @robtruman, the law librarian at the Lewis & Clark Law School because the event forced me to review all of the posts on AI and law practice that I’ve been meaning to read and because any opportunity to talk about AI – which is the work that my husband studied back in grad school in the late ‘80s before the subject was ready for prime time – is always a privilege. In this post, I’ll share some of the information in AI that I gathered in preparation for my talk. One of MyShingle’s missions has always been to ensure that solo and small firms have current information not just on new technology developments but also on how those new tools can be applied in practice. And because AI is such a fast-moving target that many solo and small firm lawyers haven’t yet had a chance to wrap their heads around, I’ve written a multi-part post that will cover everything that solo and small firm lawyers need to know…”
The internet is surprisingly fragile, crashes thousands of times a year, and no one is making it stronger
Phys.org: “How could a small internet service provider (ISP) in Pennsylvania cause millions of websites worldwide to go offline? That’s what happened on June 24, 2019 when users across the world were left unable to access a large fraction of the web. The root cause was an outage suffered by Cloudflare, one of the internet’s leading content hosts on which the affected websites relied. Cloudflare traced the problem to a regional ISP in Pennsylvania that accidentally advertised to the rest of the internet that the best available routes to Cloudflare were through their small network. This caused a massive volume of global traffic to the ISP, which overwhelmed their limited capacity and so halted Cloudfare’s access to the rest of the internet. As Cloudflare remarked, it was the internet equivalent of routing an entire freeway through a neighbourhood street. This incident has highlighted the shocking vulnerability of the internet. In 2017 alone there were about 14,000 of these kinds of incidents. Given it is mission-critical for much of the world’s economic and social life, shouldn’t the net be designed to withstand not just minor hiccups but also major catastrophes, and to prevent small problems turning into much bigger ones? Governing bodies such as the EU Agency for Network and Information Security (ENISA) have long warned of the risk of such cascading incidents in causing systemic internet failure. Yet the internet remains worryingly fragile…”
Library of Congress CRS Reports – Bankruptcy and Student Loans, July 1, 2019. “As overall student loan indebtedness in the United States has increased over the years, many borrowers have found themselves unable to repay their student loans. Ordinarily, declaring bankruptcy is a means by which a debtor may discharge—that is, obtain relief from—debts he is unable to repay. However, Congress, based upon its determination that allowing debtors to freely discharge student loans in bankruptcy could threaten the student loan program, has limited the circumstances in which a debtor may discharge a student loan. Under current law, a debtor may not discharge a student loan unless repaying the student loan would impose an “undue hardship” upon the debtor and his dependents. The Bankruptcy Code does not define “undue hardship,” and the legislative history of the relevant statutory provision does not precisely specify how courts should determine whether a debtor qualifies for an undue hardship discharge. The task of interpreting this statutory term has consequently fallen to the federal judiciary. Courts, however, have disagreed regarding exactly what a debtor must prove in order to discharge a student loan on undue hardship grounds. The vast majority of courts have interpreted “undue hardship” to require the debtor to prove three things: (1) the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances exist indicating that the debtor’s inability to pay is likely to persist for a significant portion of the repayment period of the student loans; and (3) the debtor has made good faith efforts to repay the loans. The debtor must prove each of these elements by a preponderance of the evidence. This standard is commonly called the “Brunner” test, after the case in which the standard originated. The Brunner test is highly fact-intensive, and not all courts apply the Brunner standard the same way. Indeed, each factor has resulted in various subsidiary splits in the courts with respect to a host of issues.
Whereas the vast majority of courts apply the Brunner test to determine whether excepting a student loan from discharge would impose an undue hardship upon the debtor, two courts have explicitly declined to adopt the Brunner standard. Instead, these courts apply an alternative standard known as “the totality-of-the-circumstances test,” weighing numerous, nonexclusive factors when considering whether student loan debt should be discharged. In response to this split of authority, as well as calls to make student loans less difficult to discharge in bankruptcy, some Members of Congress and commentators have advanced various proposals to amend or repeal the Bankruptcy Code’s undue hardship provision. These proposals implicate a variety of legal issues that Congress may consider.
The New York Times Climate Newsletter – July 19, 2019: “We recently told you about a study that looked at how many more trees could grow on Earth and how much carbon they could absorb from the atmosphere. The answer: The planet has room for about 2.5 billion acres of forest, and all those trees could suck up an additional 200 gigatons of carbon. While that wouldn’t solve climate change, it would be a huge help. That kind of reforestation would be a monumental global undertaking, but every single tree still counts. They all sequester carbon. So, if you plant a tree, what kind should it be? Peter Del Tredici, senior research scientist emeritus at the Arnold Arboretum at Harvard University said that, for trees to sequester a lot of carbon, they need to live long and healthy lives. “You want a tree that is going to survive in your climate with the minimum amount of maintenance,” he said. To have a meaningful effect, he said, a tree must live at least 10 to 20 years. “It takes that long for a tree to build up enough foliage so that it can have a substantial impact on the environment,” Dr. Del Tredici said. With that in mind, oaks can be great in the Northeast, while ficus trees might work better in Southern California. In the Northwest, just about everything does well. Nonnative, noninvasive species like the ginkgo tree are good options, too…
…The Arbor Day Foundation has a plenty of tools — like a best-tree finder and a hardiness zone look-up — to help identify the right tree for the right place. The Department of Agriculture’s I-Tree lets you design your optimal tree placement. Another useful exercise is simply to walk around an arboretum or botanical garden to get a sense of what you like. A nursery can be a great resource as well…”
Brookings – “From 2000 to 2018, the labor force participation rate of 16- to 64-year-olds fell 3.6 percentage points. In previous work, we have shown that declining labor force participation among young people contributed substantially to this decline. In this analysis, we describe how teenagers (16–19-year-olds) have shifted away from working or seeking work and the impact this shift has had on the aggregate labor force participation rate. While declining summer employment is part of the story, the bulk of the teenage reduction in labor force participation comes from fewer teenagers being jointly enrolled in school and participating in the labor force during the academic year. We find that—despite the low teen share of the working-age population (8 percent)—if teens had still participated in the labor force at their 2000 rates, aggregate 16–64-year-old participation would be more than 1.3 percentage points higher. Many factors are at play in the decline of teen labor force participation, including increased school enrollment, seasonal employment, decreased returns to work, reduced demand for low-wage work, minimum wage hikes, and competition from older workers or immigrants. Time pressure is another driver of reduced teen participation. Teens have many demands on their time and those demands fundamentally differ between the academic year and summer….”
NRDC: “Tissue products such as toilet paper, paper towels, and facial tissue are cheap and convenient—but they cost the planet a great deal. The vast majority of these tissue products are made from wood pulp, and in the United States that wood pulp comes largely from the boreal forest of Canada. Our demand for tissue is devastating the boreal, with serious consequences for Indigenous Peoples, treasured wildlife, and the global climate. We already know of options for more sustainable tissue production—specifically by using recycled materials and responsibly-sourced alternative fibers. Yet, major companies have largely failed to adopt them. This report provides an overview of the major tissue brands and reveals the worst corporate offenders driving boreal degradation. It describes the impact of virgin pulp sourced from the old growth forests like Canada’s boreal forest and the United States’ strong reliance on tissue products. It also includes a scorecard for consumers ranking major tissue brands according to their impacts on forests. Finally, this report outlines existing solutions that companies can adopt to make their brands more sustainable. It is time to reexamine current norms of tissue production and consumption. It is also time for companies to act more as global citizens and usher the world into a more sustainable paradigm. Fortunately, solutions promoting healthy forests and a healthy planet already exist. Companies and consumers simply need to embrace them…”
Forbes – “And we thought we learned a lesson from Cambridge Analytica. More than 100 million people have downloaded the app from Google Play. And FaceApp is now the top-ranked app on the iOS App Store in 121 countries, according to App Annie. While according to FaceApp’s terms of service people still own their own “user content” (read: face), the company owns a never-ending and irrevocable royalty-free license to do anything they want with it … in front of whoever they wish:
You grant FaceApp a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, transferable sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your [username], location or profile photo) will be visible to the public….Whether that matters to you or not is your decision…”
ars technica – In Chrome 76, websites can no longer check FileSystem API to detect private mode – “Over the past couple of years, you may have noticed some websites preventing you from reading articles while using a browser’s private mode. The Boston Globe began doing this in 2017, requiring people to log in to paid subscriber accounts in order to read in private mode. The New York Times, Los Angeles Times, and other newspapers impose identical restrictions. Chrome 76—which is in beta now and is scheduled to hit the stable channel on July 30—prevents these websites from discovering that you’re in private mode. Google explained the change yesterday in a blog post titled, “Protecting private browsing in Chrome.”…
Law Practice Today – “It’s easy to get caught up in the hype of our technological era. Much of the modern experience, brought to us courtesy of the internet, feels miraculous: one-click same-day delivery, distributed cryptographically-enabled currency, on-demand video and audio content, and much more. Beyond that, innovators and entrepreneurs pitch their visions of a future that seems even more fantastic every day. Those attempting to follow the legal-industrial-hype complex will find no less noise: AI and robot lawyers, blockchain, etc. But there’s good news too. First, as usual, legal is about five to 10 years behind society at large. Second, and this is true inside and outside of the legal profession, the power of the internet is in its simplicity—specifically, the ability to connect disparate people and resources. This can be hard to wrap your brain around, so below are three examples of forces that have remade the broader cultural landscape, and how they’re poised to remake the legal realm, all with the central theme of connecting disparate people and resources….”
Law.com – “A group of four law firm library directors walked through the results of the study—one that found no winner, but a number of issues and potential improvements for current analytics platforms…”
Nature – A giant data store quietly being built in India could free vast swathes of science for computer analysis — but is it legal? – “Carl Malamud is on a crusade to liberate information locked up behind paywalls — and his campaigns have scored many victories. He has spent decades publishing copyrighted legal documents, from building codes to court records, and then arguing that such texts represent public-domain law that ought to be available to any citizen online. Sometimes, he has won those arguments in court. Now, the 60-year-old American technologist is turning his sights on a new objective: freeing paywalled scientific literature. And he thinks he has a legal way to do it. Over the past year, Malamud has — without asking publishers — teamed up with Indian researchers to build a gigantic store of text and images extracted from 73 million journal articles dating from 1847 up to the present day. The cache, which is still being created, will be kept on a 576-terabyte storage facility at Jawaharlal Nehru University (JNU) in New Delhi. “This is not every journal article ever written, but it’s a lot,” Malamud says. It’s comparable to the size of the core collection in the Web of Science database, for instance. Malamud and his JNU collaborator, bioinformatician Andrew Lynn, call their facility the JNU data depot.
No one will be allowed to read or download work from the repository, because that would breach publishers’ copyright. Instead, Malamud envisages, researchers could crawl over its text and data with computer software, scanning through the world’s scientific literature to pull out insights without actually reading the text…”
unlike kinds -“Since its earliest days, the core of Google’s search algorithm – and its greatest innovation – has been ranking a page by the amount and quality of the links pointing to it. For almost as long, businesses have fought to climb to the lucrative top positions on search result pages, with some resorting to unethical methods which, if noticed, could see Google penalise their sites, or drop them entirely. Despite Google’s efforts, for many years businesses have been paying to have the internet flooded with hundreds of fake links to their sites which, if done correctly, can be impossible to detect….”
Via LLRX – Pete Recommends – Weekly highlights on cyber security issues July 19, 2019 – Privacy and security issues impact every aspect of our lives – home, work, travel, education, health and medical records – to name but a few. On a weekly basis Pete Weiss highlights articles and information that focus on the increasingly complex and wide ranging ways technology is used to compromise and diminish our privacy and security, often without our situational awareness. Four highlights from this week: Trump is rattling sabers in cyberspace — but is the U.S. ready?; Casting the Dark Web in a New Light; Army researchers develop metrics for cyber defenders’ agility; and How To Clear Out Your Zombie Apps and Online Account.
Bookriot – Anna Gooding-Call: “As a librarian, I think I could be forgiven for thinking that not enough people use the library. In fact, I feel this way most of the time! However, I have my days. These are the days when I encounter that two percent of the public that does not know how to be a good library patron. This isn’t just about not damaging the books. It’s about being a good citizen in a unique public space where personal boundaries can feel a bit fuzzy. I’m convinced that this is a lapse in education, so I’m gonna edumacate you right here and right now. If you think you’re a stellar patron, read this anyway. There is a special variety of the Dunning-Kruger effect just for public libraries, and the last thing you want is to be a statistic….”
Atlas Obscura – Kelly Angood curates an online museum of little, adhesive marvels: “Some of the world’s best, most surprising graphic design can be found in one of the most mundane places: your local supermarket. Nestled among pyramids of plums and bagged bunches of bananas are tiny works of art. Welcome to the world of fruit stickers. In much of the world, especially in large American supermarkets and chain stores such as Walmart, the stickers simply advertise somewhat ubiquitous brands—think Chiquita or Dole. But in the United Kingdom (and other places), smaller greengrocers carry produce plastered with tiny, hyperlocal stickers that bear the logos and art of smaller farms, growers, and distributors. When most people encounter these stickers, it’s only to peel them off and try, often unsuccessfully, to flick them into the trash. But Kelly Angood sees something else in them, and peels them carefully off before adding them to her collection of hundreds—spanning countries, decades, and a dizzying variety of fruit…”
Lawfare – “For the past several weeks, a group of us has been working on a project to tell the story of the Mueller Report in an accessible form. The Mueller Report tells a heck of a story, a bunch of incredible stories, actually. But it does so in a form that’s hard for a lot of people to take in. It’s very long. It’s legally dense in spots. It’s marred with redactions. It’s also, shall we say, not optimized for your reading pleasure. Various folks have made efforts to make the document easier to consume: the report is now an audiobook; it’s been staged as a play; there have been live readings. We took a different approach: a serialized narrative podcast. The extended network of writers, experts, lawyers, and journalists around Lawfare represents a unique body of expertise in the public conversation of the issues discussed in the report. So we teamed up with Goat Rodeo, a podcast production group in Washington, to use that group of people as a lens through which to tell the story contained in the report. The first episode, entitled “Active Measures,” is now out and covers the Russian social media campaign and the activities of the Internet Research Agency…”
Real Time Updates, Trip Frequency, and Alternate Routes – “Over the last six months, the Bing Maps team has been hard at work to improve the quality of mass transit routing. Here are our three biggest improvements, which you can try out today on Bing.com and Bing.com/maps