Feb 11, 2013

Judge Rakoff Dismisses Suit Against WestLaw and Lexis Based on Distribution of Copyrighted Briefs

Reuters (which owns WestLaw) has the story:

In a brief ruling issued Friday, U.S. District Judge Jed Rakoff dismissed Edward White’s lawsuit. White, who specializes in intellectual property law, had alleged that Westlaw, owned by Thomson Reuters Corp, and LexisNexis, owned by Reed Elsevier Plc, profited by selling his copyrighted legal briefs in their databases.

Rakoff said that his reasoning for dismissing the lawsuit would be laid out in a subsequent opinion

White filed an amended complaint, dropping the class certification request and seeking an unspecified amount of damages based on the inclusion of his copyrighted legal briefs in Westlaw’s “Litigator” and LexisNexis’s “Briefs, Pleadings and Motions” databases.

On a motion for summary judgment, White said lawyers and law firms own the copyright to their own materials and that “a court’s docket is not a lawless, copyright-free zone,” according to his motion papers.

Westlaw and Lexis countered that they were entitled to use the documents under the doctrine of fair use, according to court filings. They noted that the documents were generally available to the public via the Pacer filing system. They also argued that their use of the documents was “transformative,” taking the documents and enhancing them to make them searchable and useful for legal practitioners.

This is very good news. One of the major hold-ups in my plans for Harlan was whether briefs would be subject to copyright laws. If Rakove’s ruling is upheld, this would pave the way for performing some sophisticated analytics on briefs.

My previous posts on this case are here, here, and here.

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Feb 11, 2013

JoshLive: Interview with Professor Ronald K. Collins, Author of “Nuanced Absolutism: Floyd Abrams and the First Amendment.”

Tonight at 8 I will interview Professor Ronald Collins about his new book, Nuanced Absolutism: Floyd Abrams and the First Amendment.

You can watch the video live here.



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Feb 11, 2013

JoshLive: Interview Tonight at 8 with Professor Ronald Collins.

Tonight at 8 EST I will be interviewing Professor Ronald Collins about his new book, Nuanced Absolutism: Floyd Abrams and the First Amendment.

Floyd-Abrams Floyd-Abrams

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Feb 11, 2013

“The First Amendment Is a Sweet Emotion”

Ilya Shapiro writes at [email protected] about the Steven Tyler Act, and links to my analysis and article about privacy in public. We are working on an Op-Ed on this point that we should submit in the next few days.

My favorite part of the post–which I may have had something to do with–is the lyrically inclined conclusion:

Protecting privacy in public is a laudable goal that in our constitutional jurisprudence dates back at least to the seminal article “The Right to Privacy” by Samuel Warren and Louis Brandeis.

Indeed, we’re all affected by the sweet emotion of seeing celebrities harassed by the paparazzi (viz., Princess Diana). The Steven Tyler Act, however, misses a very important thing – that privacy and the First Amendment can coexist.

Hawaii shouldn’t walk this way, instead promoting the right of privacy that our society should strive for while ensuring the freedom of speech. Let’s not be jaded by the costs of freedom. Anything else is just crazy.

Rock on.

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Feb 11, 2013

Journals on Scholastica “Ask Authors To Submit Demographic Information” for “Diversity Initiatives”

With Scholastica, there is a new player in the journal submission process. ExpressO no longer has a monopoly. As I noted in a previous post, it seems that ExpressO is modifying their program to compete with this new entrant (including making it free for journals, which is a very good thing.

I haven’t submitted through Scholastica yet, but I did sign up for an account, and discovered one interesting feature.

The submission page asks for the Author’s demographic information, including an author’s gender identity, sexual orientation, race, and a box to explain “economic hardship and diversity” (it suggests “Additional comments that demonstrate diversity (for example; socioeconomic, status, geographic region, race, ethnicity, gender, etc.”)


While it is usually optional, Scholastica notes that “Some journals request additional data from authors to aid in their diversity initiatives.”

Scholastica explains further:

Some journals hosted on Scholastica request optional demographic information (e.g. race, gender, sexual orientation, etc.) from authors when they submit a manuscript. Optional demographic data collected in the manuscript submission form will be made available to journal editors only, and optional demographic data will be stored with the manuscript submitted to that journal. Journals which do not request optional demographic information at the time of submission will not have access to this data. Authors are not required to submit optional demographic information in order to submit a manuscript to a journal on Scholastica. The choice to request this data is made explicitly by the journal, and use of the data is entirely the responsibility of the journal collecting the data. Scholastica will store the data on the journal’s behalf and allow journals to collect and analyze data, but Scholastica will not sell, trade, or transfer an individual’s personal information to any third party or entity.

Journals who ask authors to submit demographic information:

California Law Review

UC Davis Law Review

Boston College Law Review

In order to submit to the California Law Review, UC Davis Law Review, and Boston College Law Review (I suspect this list will grow as journals are added to Scholastica), an author is asked (not sure whether this means its mandatory) to list race, gender identity, and sexual orientation. I don’t know if journals in other fields ask for this information (I think most peer-reviewed journals review articles blind), but I have not seen this from Law Reviews before

So what to make of this request for information? To my knowledge, the journals have not stated why data about race, sexual orientation, and gender identity will be used, nor have they specified how this information will be considered. I suppose it is possible that they are simply collecting this information so they know who is submitting articles.

Though I am quite curious if, and how this information is being used during the selection process.

I’ll try to find out more.

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Feb 11, 2013

Originalism, Tradition, and Precedent

I previously blogged about the role that reliance interests should play when courts rely on originalism to disturb long-standing precedents. The Supreme Cout has been more willing to engage in originalism in open fields, where there are minimal precedents on the books, rather than in the “thicket,” where long-standing precedents and doctrines have emerged.

This dynamic was seemingly reversed in the D.C. Circuit’s opinion in the recess appointment case, where the Court repudiated a two-hundred year old understanding of how the recess power works.

Mike Greve and Mike Rappaport have gone back and forth on this topic, and I think this debate illuminates an important dimension of how originalism should interact with precedent and tradition.

First, Greve seemed cautious about reversing precedents that have been around for a very long time–though those practices were inconsistent with the first few decades of the republic.

I’m not a great fan of hanging too much on definite or indefinite article (“the,” “a”), for statutory or even constitutional purposes. The court’s opinion looks a tad doctrinaire, and it upsets recess appointment arrangements that have been common for many, many decades (although not, Judge Sentelle trenchantly notes, the first several decades of constitutional practice).

Rappaport was not quite as concerned about the reliance interests.

Second, it is true that the decision upsets arrangements that have been common for many decades, but so what?  Are there any significant reliance interests at stake in this area?  No.  Lets repeat that — NO.  So why follow modern interpretations that are inconsistent with the senatorial check that the Constitution places on the President?

Greve had far more concerns about the reliance interests.

 “So what?” asks Mike R. No reliance interests are at stake here; so why not go back? I’m not quite so bold, for two reasons.

First, a longstanding institutional practice will have been examined by tons of very smart lawyers and scholars over the decades, many with great attachment to and understanding of the Constitution. There’s no guarantee that the ongoing constitutional debate always flushes out errors; it may often compound them. But it should take more than a definite article and a few pieces of newly discovered evidence before jumping headlong to the conclusion that everyone over the centuries was wrong, and now we’re right, and away we go. I don’t think Mike R disagrees.

Second, and more important, I do think important interests are at stake (even if I’m not sure I’d characterize them as “reliance” interests). The Constitution sets up rival, competing institutions—and, as a practical matter, compels them to cooperate. Sometimes, it prescribes the mode: bicameral approval, presentment (veto, override).  On a million other things, it does not. When coordination problems prove recurrent, the institutions will work out some mutually acceptable practice. Some practices shift and change over time; others become deeply entrenched. But so long as they work tolerably well and don’t violate the Constitution more or less plainly (and yes, that’s a matter of judgment), it’s rarely a good idea to upset them. The practice serves some institutional function and demand. When it’s  ruled out of bounds the institutions will have to find some other coordination mechanism. That’s always costly. It may be unsuccessful. And it may well be worse than what went before. Before running those risks (in the name of originalism or for other reasons), we should make quite sure that we’ve got it right.

Emphasis in the last sentence in my own.

Rappaport replies, and says this is “an important objection” but it is “mistaken.”

But there is also a functional – that is, a public policy – response to Mike’s defense of the practice.  Mike makes the conservative point that the existing practice, no doubt, serves important interests of the different branches – we just don’t know exactly what they are.  But they were worked out by the beneficial process of adjustment and coordination.

The bottom line is that there is not a good reason to believe that the practice of recess appointments serves the republic and quite a few reasons to think it does not.  By striking down that practice, the courts can help to force the Senate to serve its job as a check on potentially abusive executive power.

I discuss this concept in Back to the Future of Originalism (forthcoming in the Chapman Law Review symposium on libertarian legal thought) in the context of the originalism’s gravitational pull:

In order to understand how a non-originalist argument advances originalism, we must first consider the nature of existing precedents. Randy Barnett explained that there are three views of federalism (and, I would add, relatedly, federalism’s structural protection of individual liberty).

First, there is the pre-1937 view, where the Court, unbound by modern precedents, can rule in accordance with the original public meaning of the Constitution. Second, there is the New Deal-era view of federalism, wherein Congress has a plenary police power to do whatever it deems necessary, and any law that fits within the New Deal’s ambit will be upheld. Third, there is the “New Federalism” of the Rehnquist and now Roberts Court.

This third strand can be best characterized as “this far, but no farther.” In other words, the New Federalism did not repudiate the New Deal view of federalism, nor did it effect a return to the pre-1937 view of Federalism. Rather, it asserted that if the federal government seeks to assert a power that goes beyond what had already been upheld, it must justify that extension for an unprecedented assertion of power. Even under the New Federalism, the Court does not adjudge the constitutionality of the new law purely based on originalism, but instead based on what Chief Justice Rehnquist referred to as “first principles.” It is noteworthy that Justice Thomas’s originalist opinion in Lopez was not joined by Justice Scalia (same for Morrison). This tripartite taxonomy helps to explain why originalism has, and has not been used and successful in recent cases.

Perhaps the best examples in the first category are District of Columbia v. Heller and McDonald v. Chicago. In these cases, the Court was largely writing on a blank slate—precedential open fields, as opposed to deep in the “thicket.” The Court was in no way bound by any sort of New Deal compromise, as the precedential slate was clear. Thus, the Court was free to receive, and did apply originalist arguments. In fact, both the majority and dissent in Heller and McDonald advanced originalist arguments.

For decades, until Lopez and Morrison and other Rehnquist era precedents, the Supreme Court was steadfastly locked in the second zone of the New Deal-era view of Federalism. To paraphrase Larry Solum, that gestalt had crystalized.

This is a very important debate, that I hope to write about further.

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Feb 11, 2013

“Can a corporation have a conscience?”

I have blogged a bit about the question whether corporations can sue for violations of religious liberties under RFRA. I had a feeling this issue would be big. Now, it has gone to a new level. Bill Keller writes a lengthy opinion piece in the New York Times about the contraception mandate litigation, and whether corporations can bring suit under RFRA (and more broadly under the First Amendment):

Evangelicals and Catholics, cheered on by anti-abortion groups and conservative Obamacare-haters, now want the First Amendment freedom of religion to be stretched to cover an array of for-profit commercial ventures, Hobby Lobby being the largest litigant. They are suing to be exempted on the grounds that corporations sometimes embody the faith of the individuals who own them.

“The legal case” for the religious freedom of corporations “does not start with, ‘Does the corporation pray?’ or ‘Does the corporation go to heaven?’ ” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which is representing Hobby Lobby. “It starts with the owner.” For owners who have woven religious practice into their operations, he told me, “an exercise of religion in the context of a business” is still an exercise of religion, and thus constitutionally protected.

The issue is almost certain to end up in the Supreme Court, where the betting is made a little more interesting by a couple of factors: six of the nine justices are Catholic, and this court has already ruled, in the Citizens United case, that corporations are protected by the First Amendment, at least when it comes to freedom of speech. Also, we know that at least four members of the court don’t think much of Obamacare.

You can feel some sympathy for David Green’s moral dilemma, and even admire him for practicing what he preaches, without buying the idea that la corporation, c’est moi. Despite the Supreme Court’s expansive view of the First Amendment, Hobby Lobby has a high bar to get over — as it should.

Keller quotes Marci Hamilton, who raises the question whether a company owned by a Jehova’s Witness could block their employees from obtaining blood transfusions.

“If an employer can craft a benefits system around his religious beliefs, that’s a slippery slope,” said Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law and a critic of religious exemptions. “Can you deny treatment of AIDS victims because your religion disapproves of homosexuals? What if your for-profit employer is a Jehovah’s Witness, who doesn’t believe in blood transfusions?”

Today Kevin Walsh wrote a post addressing just this question. Kevin offers some practical objections–namely that no Jehova’s Witness has ever attempted to adopt such a policy. Specifically:

RFRA is not a free pass for a religious exemption, but its application does trigger the requirement for the government to satisfy strict scrutiny, and the government can sometimes satisfy that test. The application of strict scrutiny should stop the roll down the slippery slope from reaching the point where the government cannot use certain regulatory tools to achieve a compelling government interest. Even assuming that a substantial burden analysis comes out the same, the compelling interest is easier to identify in with respect to emergency blood transfusions. The need for an emergency blood transfusion is unpredictable. And in comparison with emergency contraception, which is available over the counter at most pharmacies (for around $40 for a generic or $50 for a brand name), emergency blood transfusions are much more expensive.

Keller quotes Doug Laycock, Hamilton’s frequent foil, as stressing that the religious community not be quite as aggressive for defending these positions:

“The religious community cannot take religious liberty for granted,” he said in a speechbefore the contraceptive issue blew up. “It needs to expend a lot more energy defending the right to religious liberty, and it would help to spend a lot less energy attacking the liberty of others.”

Cases like Hobby Lobby, he told me, have compounded his worry.

“Interfering with someone else’s sex life is a pretty unpopular thing to do,” he said. “These disputes are putting the conservative churches on the losing side of the sexual revolution. I think they are taking a risk of turning large chunks of the population against the idea of religious exemptions altogether.”

Keller ends on a dour note.

When I read that kind of rhetoric from our country’s loftier pulpits, I understand why thefastest-growing religious affiliation in America is “none.”

I may write something more about this.

Update: 45 minutes later, I just sent the following letter to the editor of the New York Times:

The Conscience of the New York Times Company
To the Editor:
Bill Keller’s argument in “The Conscience of a Corporation” is premised on the notion that corporations cannot exercise constitutional rights. However, as your own Adam Liptak wrote in his 2/7/11 column, “If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?”

The same constitutional structure that allows corporations such as the Times to assert rights of free speech (such as the Pentagon Papers Case) has allowed other corporations to win landmark First Amendment cases before the Supreme Court–many of these cases were brought by entities that were not members of “the press.”

As the Seventh Circuit Court of Appeals observed, the “use of the corporate form is not dispositive” to resolve these claims. Whether President Obama’s health care mandate violates these rights is a separate question from whether these rights can exist.



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