Know Your General Counsel

There is a nice little article in the newest Chronicle of Higher Education reporting on a conference meeting for university general counsel. The thing I liked about this brief little article was the insight it gave me about the job of a university general counsel. They have to keep the interests of the institution in mind, because that is their client, not the various individual employees who might be speaking with them. And that must be a bit confusing for new GCs, and certainly can be for their colleagues -- as is pointed out in the article. There are so many layers of hierarchy at a university, and the individuals at those levels shift and change over time, though not usually very quickly.

And from my own point of view, in frustration with the extremely conservative, risk-averse advice that GCs tend to give to universities and libraries, the article was also helpful. They mention, specifically that issue. They advise going beyond the caution of an attorney general or silk stocking firm, and using the rule of, "would you want to see it on the front page of the paper?" I thought it was an interesting rule to make legal decisions with... Frustrating in the extreme, but I suppose it keeps litigation down.

Surfeit of Lawyers?

The New York Times Economix Blog reports today on the number of lawyers passing the bar per state, compared to the number of openings for lawyers in existing firms, and whether that amounted to a surplus or shortage. They created a nifty chart, including hourly wages for the 2009 bars. They conclude that the most over-lawyered states, in order:

New York
California
New Jersey
Illinois
Massachusetts
Pennsylvania

There is a fairly sharp drop down to the next states below these, if you are tracking the surpluses. There are a few places where the production of lawyers is not so far out of line with the demand. And you must keep in mind that not all those who pass the bar are looking to take jobs advertised with law firms. There are people who want to work in academe, business, finance, health care with a JD degree and have the bar behind them. And there are a number who take the bar exam planning to hang out their own shingle or work in a small firm or who already have a job in hand. But, it is a disturbing analysis, especially when you look at the overall total for the nation: In 2009, we produced 27,269 more lawyers who passed state bar exams than there were advertised positions for.

US News Likely to Change its Law School Ranking Methodology

Robert Morse, at " writes that US News and World Report may change the way it computes the percent of students employed at graduation and 9 months after for rankings purposes, following the ABA's shift in its requirements for law schools filling out annual questionnaires. The Morse Code refers to the blog, Law School Transparency for reporting on the ABA changes to the rules on reporting post-graduation employment in a clear manner.

Gay Marriage Legislation in NY!

New York has passed a bill legalizing same sex marriage, and governor Cuomo is expected to sign it. Here is a nice, in-depth story from the NY Times on the behind the scenes stories that went into making the bill a reality. The bill passed in a state where Republicans actually control the legislature by a slim margin. But the Times article makes it plain that the decisions turned on personal relationships that influenced the various legislators -- gay children, relatives, friends, friends of friends who influenced the decisions of the voters. Governor Cuomo had made same-sex marriage a priority, though he had been distracted by several battles over budget issues. But his strong support has undoubtedly been key to the passage of this law in the largest state recognizing marriage equality for same-sex couples. See NY Times article here on passage late Friday, in Senate 33 - 29, with 4 Republicans joining the Democrats in passing the bill.

Flying Solo

How bad is the job market for new attorneys? According to this press release from NALP, the National Association for Law Placement, the class of 2010 "faced [the] worst job market" since 1996. NALP Executive Director James Leipold stated that

The tail of the "Great Recession" is long and there are few bright spots in the employment profile for the Class of 2010 ... Most of the structural weaknesses in the job market faced by the Class of 2009 intensified for the Class of 2010 ...

The press release accompanied the "Employment for the Class of 2010--Selected Findings," which was published on June 1. The full report, Jobs & JDs: Employment and Salaries of New Law School Graduates, will be published in August. It is highly unlikely that the employment situation will be any brighter for the Class of 2011. According to Leipold,

There is likely more bad news to come ... we can expect that the overall employment rate for new law school graduates will continue to be stagnant or decline further for the Class of 2011, with the curve probably not trending upward before the employment statistics become available for the Class of 2012.

So what is the new attorney to do? Some attorneys are deciding to start solo practices, eschewing offices with high overhead and instead practicing from home with a laptop and a cell phone. NALP reports that the

[N]umber of recent law graduates going solo increased from 3.5 percent in 2008 to 5.5 percent in 2009, the biggest one year jump since 1982. ... That percentage increased to 5.7 percent of all private practice jobs for the class of 2010, the highest it's been since 1997.

This trend is discussed in a recent article which describes how new attorneys are hanging up "virtual shingles" by taking advantage of technology. One important task when setting up a solo practice is to build a website which can be used to attract clients. Blogging and social networking are also efficient ways of connecting with potential clients. Most of these attorneys are maintaining paperless offices and doing without staff support. The solo attorneys interviewed for the article were extremely dismissive of law schools and their focus on placing "graduates in government, public interest or corporate law firms." There is little to no attention paid to set up and maintain a solo practice. Even worse, according to the interviewees, is that the

[M]ajority of law schools continue to focus on how to interview for jobs or submit resumes for job postings, rather than honing the skills needed to be a successful business person.

A good resource for solo practitioners is the MyShingle blog, which describes itself as "the most comprehensive online resource for solo and small firm lawyers with thousands of blog posts and an impressive stock of free e-books, checklists and forms on starting and running a law firm." Another good resource for solo practitioners is Solo Practice University, "a subscription-based website founded in 2009 that offers video, written and audio tutorials for prospective or current solo practitioners."

I was surprised to see that the article did not mention access to legal research databases, such as Lexis and Westlaw, and less costly alternatives to them, both free and fee based. One of the best services my law school provides its graduates is free lifetime access to the law library. As a private institution, we are closed to the public, but our alumni do not have to pay the usual access fees. Many of our alumni have set up solo practices in the area, and they are coming back on campus regularly to use the library. Not only are they taking advantage of our public-access Lexis subscription, but also they are using other databases and the print collection. We have also created a research guide on free and low-cost legal resources, and this is extremely popular among both current students and alumni. It is great to see our alumni again, and to feel that we are contributing to their professional success.

Back from Spain

I just returned from a three-week trip to northern Spain (Barcelona, Bilbao, Leon, Burgos, Astorga, Santiago de Compostela, La Coruna) and then to Madrid. Barcelona, of course, is famous for its collection of buildings designed by Antoni Gaudi, and these did not disappoint. In Bilbao, we visited the Guggenheim Museum with its renowned building; the building is eyecatching to be sure, but I was underwhelmed by the collection of art it contained--the reaction of a jaded New Yorker? Leon and Burgos are famous for their cathedrals, and the cathedral in Leon is particularly noteworthy for its stained glass, which is simply spectacular. Santiago de Compostela is the home of another famed cathedral, not as ancient or beautiful as those in Leon and Burgos, but holding a special place in the heart of Roman Catholics because it contains the tomb of the apostle Saint James the Elder, the patron saint of Spain. Santiago de Compostela is also the endpoint for pilgrims on El Camino de Santiago, which runs through northern Spain. We had earlier encountered pilgrims in Leon and Burgos, which are also on the Camino. They are hard to miss because they carry walking staffs which are adorned with scallop shells, the traditional symbol of the pilgrimage. The illustration to this post is of a scallop shell like the ones we saw everywhere in Santiago in Compostela. The pilgrimage dates back to the Middle Ages and has become very popular among people of all ages and nationalities in the last decade or so. In La Coruna, we climbed the Tower of Hercules, originally a lighthouse built by the Romans, which afforded splendid views of the surrounding countryside and ocean. In Madrid, we spent a long day (ten hours) at the Prado, and didn't manage to make it through the whole collection. I had forgotten what a treasure trove of Old Masters it contains. We also visited a special exhibit at the Palacio Real of art from Poland, which contained two paintings I had never seen before except in illustrations--a glorious portrait by Rembrandt of a young girl who nearly jumped out of the picture frame at the viewer. The Rembrandt almost stole the show from the crown jewel of the exhibit--Leonardo's Lady with an Ermine. We lingered so long over this enigmatic painting, considered a Polish national treasure, that the guards practically had to throw us out. The rest of the exhibit is also well worth seeing.

We were last in Spain about thirty years ago, and so much has changed. What hasn't changed is the beauty of the countryside and the delectable food made from locally-grown vegetables and fruits. The tomatoes and oranges bear little resemblance to what we buy in our supermarkets back here. I'm going to have to make it a point to frequent farmers' markets this summer and liberate myself from supermarket produce.

The last time we were in Spain, we visited Madrid and southern Spain, and most people seemed to speak Castilian. In northern Spain, depending on where you travel, people speak Castilian, but also Catalan, Basque, and Galician. Catalan and Galician I could cope with, but Basque was completely impenetrable to me. I later learned that Basque predates the Romance languages, and is unrelated to any other European language. That explains my difficulty in understanding it. Something else that struck me was the number and variety of bookstores in Spain. At home, we are all aware that independent bookstores are dying off, and we are left with only a few large chains. This is not the case in Spain, where there may be several bookstores in one block. Although this is particularly true in university towns, it was also true in towns that did not have universities.

Speaking of bookstores, before the trip, I finally bought myself a Kindle and I think I'm in love. I loaded it up with some old favorites and some classics I hadn't read before, and I found it to be a tremendous convenience. At first I missed having a physical book, but I soon found that the format didn't actually make much of a difference in my reading experience. I hadn't brought a laptop with me, but I was able to use my Kindle for email. It works well for reading messages, but not so well for sending messages--not surprising as it is meant to be a reading device.

Gay Marriage and Civil Rights

Do we get it yet?! This past week saw the ruling in the Proposition 8 case in California, where now-retired federal judge Vaughn Walker has been challenged in his ruling on the case because he didn't recuse himself as an openly gay person in a long-term relationship. Many commentators in the news stories noted that we are just where we were 30 years ago with respect to African-American and female judges being challenged for not recusing themselves on civil rights and sex discrimination cases. Judges should not be challenge-able on the basis of their membership in a minority group, whether it is based on ethnicity, language, religion, gender, or sexuality or gender identification.

There is a separate little issue running alongside: cameras in the courtroom. How many people have been beaten to death for opposing gay marriage, compared to the number of people beaten to death for being or even appearing to be gay or lesbian or transexual? I would challenge the people concerned about witness protection to come up with anybody who has been seriously injured from the straight side.

Here is a link where you can conveniently find both of Judge Ware's orders, about the recusal and the separate order about the videotapes, and cameras in the courtroom. The site is an organization that is trying to raise money to fund ads around the courthouse in support of the gay marriage side. I am a little bemused that they think this would be affecting the judge's decision. I certainly hope it doesn't work that way! But the site does have convenient images that appear to be true copies of the actual decision in the case.

Copyright Cases Looming over Academia

There are a raft of big copyright cases looming involving higher education and copyright issues.

I.
Cambridge University Press et al. v. Patton et al, (U.S. District Ct. Northern D. Georgia, Atlanta Division)

Cambridge University Press, Oxford University Press and the Copyright Clearance Center are suing Georgia State University over its practice of not charging students any copyright license fees for online reserves, or, as the publishers characterize it, online coursepacks. The university claims the use is within the ambit of fair use. The publishers seek to limit the university to 1,000 words before exceed “fair use” and be required to seek a license to use materials from copyright holders. This case has many academics and librarians very anxious.

II.
Association for Information Media and Equipment and Ambrose Video Publishing Inc. v. The Regents of the University of California et al. (no link available at this time)

The educational video producer sold DVDs of Shakespeare plays to UCLA, which then put them on e-reserve where students could streamed them to view as a reserve study item. The video producer and its trade group argue that this is a violation of copyright and breaches the contract which only gave the right to lend copies to teachers for in-class use or to display the videos in the library. UCLA argues that copyright allows streaming under the fair use principle which allows reproductions for teaching. The TEACH Act also allows limited use of copyrighted materials for online educations. Ambrose sells its own streaming service, which of course, they would like to sell to the university. But universities and libraries fear that a narrow decision would affect many purchasing and e-reserve policies.
(Chronicle of Higher Education, “Two Universities Under the Legal Gun”by Marc Parry and Jennifer Howard, May 29, 2011

and
Chronicle of Higher Education “What’s at Stake in the Georgia State Copyright Case” May 30, 2011 Experts”
Kevin L. Smith, Dir. of Scholarly Communications, Duke University,
Peter J. Givler, Exec. Dir., Assoc. of American University Presses,
Siva Vaidhyanathan, Prof. of media studies and law, U. of Va.
David E. Shulenburger, Sr. Fellow, Assoc. of Public & Land-Grant Universities, and former chancellor and provost at U. of Kansas,
Kate Douglas Torrey, Dir., U. of N.C. Press
Dorothea Salo, Research-services librarian, U. of Wisconsin at Madison,
Brandon Butler, Dir of public-policy initiatives, Assoc. of Rsch. Libraries

The comments run fairly predictably by the affiliation.
Plus interesting lengthy comments from Mott Greene, Sandy Thatcher, and a Paul MM.


III.
Golan v. Holder (Supreme Court)

The Uruguay Round Agreements Act (URAA) moves some foreign works that had been in the public domain in the United States into copyright, by extending the copyright on the titles retroactively. The policy may be to encourage foreign jurisdictions to grant more copyright protection to U.S. works, but the passage of the URAA was driven by the U.S. signing of the Berne Convention, which in Article 18 requires the US to harmonize its law with that of members of the European Union and other signatories. (text of Convention)

However, the effect for small orchestras, bands and symphonies, for instance, in the U.S., has been devastating. Material from early 20th Century composers such as Shostakovich, Stravinsky and Prokofiev had been available in the public domain, and much used. Suddenly, these are suddenly under copyright again. When a symphony’s annual budget to pay for music may only be $500, this has had a terrible impact.

But the copyrights are not limited to music. They cover books by H.G. Wells and C.S. Lewis, art by M.C. Escher and Picasso and films by Federico Fellini and Alfred Hitchcock as well. There are millions of works qualifying for copyright restoration by the estimate of the U.S. Copyright Office. Combined with the effect of the Sonny Bono Copyright Term Extension Act (CTEA), which extends copyright length to life of the creator plus seventy years, this restoration of copyright to millions of works that had been in the public domain will have a wide-ranging effect on many parts of the academy.

The case was filed originally in 1994 as Luck’s Music Library, Inc. v. Ashcroft in the U.S. District Court for the District of Columbia. The case of Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L. Ed. 683 (2003) was taken up by the Supreme Court after the initial filing and the parties paused for the decision to come out, and then refiled their briefs in response to that opinion.

In 2004, the case was decided as Golan v. Ashcroft, 310 F. Supp. 1215 (D. Colo. 2004), (Golan I), granting and denying in part the government’s motion to dismiss. Both parties then moved for summary judgment, and the court granted the government’s motion, Golan II, 2005 WL 914754 (D. Colo. April 20, 2005).

The case was then appealed to the Court of Appeals for the 10th Circuit as Golan v. Gonzales. The court ruled in favor of the appellants. The government petitioned for a rehearing
Response from appellants. http://cyberlaw.stanford.edu/system/files/Golan%20Response%20to%20Govt%20Petition%20for%20Rehearing.pdf


The Circuit Court ruling holds that the URAA violates the First Amendment rights of the appellants. Golan v. Gonzales is the first case to find any of the copyright statutes unconstitutional, so it’s very important. But then on rehearing, as Golan v. Holder, the 10th Circuit reversed its earlier holding and found that the URAA did not violate First Amendment rights.

Now the case is before the Supreme Court on cert. (see The Center for Internet and Society at Stanford Law School’s website on this case, which takes it up to the cert. stage). See also

The Chronicle of Higher Education, “Supreme Court Takes Up Scholars’ Rights,” by Marc Parry, May 29, 2011.
Mostly color. Lawrence Golan conducts student orchestras and is a professor of music at the University of Denver. Prof. Golan explains the impact of the changes the URAA made on small orchestras. There is a very short section looking at a PhD candidate whose dissertation topic involved original documents from early 20th Century archives that suddenly became questionably available for use in large part for her dissertation near the very end. She had to suddenly broaden her topic.

Modestly helpful for links: Wikipedia article. See Berkman, though most of its links are dead, it has good links for statutory. Good link at U.S. Copyright Office on Definition of “reliance party” (those like the orchestras who may have purchased an item that suddenly is back in copyright). There is special protection in the URAA for such parties, though the reliance parties may not feel it is adequate. See http://www.copyright.gov/docs/reliance.html and SCOTUSblog