Slap on the Wrist

Click here for an article from the New York Law Journal on the use of "slipshod search terms" to retrieve electronically stored information. In a case decided March 19, 2009, William A. Gross Construction Associates v. American Manufacturers Mutual Insurance Company, U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York "issued a self-styled 'wake-up call' to members of the bar in the Southern District. Instead of attorneys designing keywords without adequate information 'by the seat of their pants,' Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation." The article goes into the terms that the parties used to search through email, which proved to be unhelpful; the judge was "therefore placed in the 'uncomfortable position' of having to construct a search term methodology without sufficient input from the parties or the relevant custodian." Peck complained that the case was "'just the latest example of lawyers designing keyword searches in the dark,'" without adequate consultation with the custodian of the information. He urged "in a footnote that what is required is more than a lawyer's guesses, without any quality control testing to ensure the search results are minimally overinclusive or underinclusive for responsive e-mails. Accordingly, care should be taken from the outset of disclosure to ensure proper selection and execution of a search methodology. Without appropriate care, a court cannot be confident that the producing party has disclosed all the required responsive material." The article concludes with the following observation: "Ironically, lawyers well-acquainted with computers may be more susceptible to thinking that keywords viable for a Google search should also suffice for ESI production. Peck has sounded the alarm that such haphazard searches will not pass muster any longer."

We spend a good deal of time in my Advanced Legal Research class on search terms that will work in print indexes as well as in online databases. I introduce students to the thesaurus feature on Lexis and Westlaw, and also to Burton's Legal Thesaurus. In the research guides they produce for the course, I require a "Getting Started" section which should include keywords that are relevant for the subject of the guide. Two of the reference librarians at the Pace Law Library, Vicky Gannon and Lucie Olejenikova, have produced a podcast on Generating Search Terms, which is designed to help students understand why this is a skill they need to master and to give them tools they can use in formulating terms for online and print searches.

Thanks to Cynthia Pittson for pointing out this article to me.

Nice Article on Twitter

Hiawatha Bray, the Globe's excellent tech reporter, has a wonderful article on Twitter with a review of a number of Twitter Tools, here. Bray admits to originally finding Twitter boring and pretty lame. Interestingly, he says the Nielsen ratings service says 60% of new Twitter users have the same reaction. But he figured it out and is here to tell you some of the things it's good for. In Bray's words,

Twitter accesses the wisdom of crowds.

That's rather a high-flown way of saying what I find good about Twitter, I guess. The folks I follow on Twitter have introduced me to wonderful new tools, interesting books, cool music and websites I never would have found on my own. I have gotten news items vastly quicker than I would have otherwise (gee -- blogging anybody?). And sometimes, I get links to some really inspiring, entertaining or snarky blog posts that I would never have gotten to otherwise.

Bray goes on to explain and review TweetDeck, Twitterfall (which I had never seen), Tweetbeep, Tweetcube, and Linksocial. Read the Bray article! He finishes up noting that a research firm shows that Twitter is most popular among users between the ages of 45 to 54. Oh Noes! I thought I was being young and hip; instead I am in the heart of the demographic. Ah well... Bray's always worth reading.

Twitter logo theme from gorillathemes.com

New Hampshire Gay Marriage Update

The Boston Globe offers this update to the story of the bill legalizing gay marriage in New Hampshire.

The New Hampshire Senate voted yesterday to allow same-sex couples to marry, setting the state in motion to become the fifth in the country to legalize same-sex marriage.

New Hampshire's House of Representatives has already approved the bill, but the Senate amended the language slightly before passing it on a 13-to-11 vote, meaning the House must approve the changes, reject them, or confer with the Senate before sending the bill to the governor.

With House approval expected, supporters and opponents are closely watching Governor John Lynch, a Democrat who has opposed same-sex marriage in the past and has not indicated whether he would sign or veto the latest measure.

Author Eric Moskowitz reports that opponents of the bill are lobbying the Republican governor hard to veto the bill. Meanwhile, Governor Lynch has not said what he will do.

After Vermont legalized same-sex civil unions in 2000, Massachusetts followed with a 2003 Supreme Judicial Court decision that paved the way for same-sex marriage.

Similar legal decisions followed in Connecticut and Iowa. This month, Vermont became the first state to guarantee same-sex marriage through a legislative act. Earlier this week, Maine lawmakers recommended that their state do the same. (snip)

New Hampshire's House had approved the same-sex marriage bill last month on a 186-to-179 vote, but the Senate Judiciary Committee recommended killing the measure. Yesterday, a floor amendment designed as a compromise enabled the bill to win majority support, with 13 of 14 Democrats but none of the 10 Republicans.

The amendment distinguished between "civil marriage" and weddings sanctioned by religious groups, spelling out that the state would not force those groups to marry same-sex couples. It also clarified that the bill would not eliminate the option to select "husband" or "wife" when applying for a marriage license, even as it would add the gender-neutral term "spouse."

The Senate version "recognizes the sanctity of religious marriages and the diversity of beliefs in our culture" while also addressing a form of state discrimination, Senate President Sylvia Larsen said in an interview after the vote.

State Representative James Splaine, the bill's primary sponsor in the House, said the amendment improved the bill. Splaine, who is gay, expects the House to endorse the changes.

More on Google Books Project

Click here for an entertaining blog entry at the Fiction Circus from Miracle Jones who interviews Prof. Grimmelman at New York Law about the Google Books Project. The interview covers wide ranging issues including orphan books & a proposed rights auction (proposed by Fiction Circus, that is). Read it and see!

During the course of the interview, we also discovered several other troubling facts that makes an auction seem absolutely necessary: Google will have the right to manage the content of its scans in the same way that it manages YouTube videos, deleting content that it deems "inappropriate" without any clear editorial guidelines. Since no one else has the right to put this literature up without being sued, the literature that Google deems "inappropriate" will effectively be banned from the internet for decades until it becomes public domain.

Miracle also notes that Brewster Kahle's petition that the Internet Archive be included in the settlement has been denied. There are several other interesting notes with helpful links, and a transcript of the interview with Prof. Grimmelman. For a site with such a circus look, it actually has very serious content, along with some very entertaining illustrations.

Kudos to Steve Matthews' Twitter How To

Steve Matthews in his SLAW post, Lawyer Twitter Practices: 29 Dos and Don'ts, lays out the How To for using Twitter to build a law firm practice. Steve does not want to call them "best practices," but offers pointers based on his own experiences of what works and does not work.

So Twitter gets your foot in the door? A great tool for business development, right? Unfortunately, the answer to that question is a very lawyeresque ‘it depends’. While deriving business value from of Twitter is indeed possible, that value is often indirect in nature and depends greatly on personal approach. Similar to all forms of the online participation, there’s no room for the Injured? Call now! lawyer. Those that can’t drop the advertising and solicitation approach are inviting failure.
It’s these types of lessons that I hope to address in the list below - which tactics will put you offside, and which will add value. The following practices (I’m hesitant to call them ‘best practices’) are tips that either work for me, or methods that seem to consistently work for others.

I recommend following the link if you would like to see how Twitter can build a professional business network. Steve knows what he's doing! In looking over the comments to Steve's post, I found and followed a link to another blogger's post on the topic, which I can also recommend: law21.ca, Figuring out Twitter. Good pair of posts.

Twitter Job Search?

Twitter job search - click on the title to this post to go -- claims that it has posted 159,602 new jobs in the last 30 days. In their "about us" section, they explain the site as a new search engine for social media websites:

Until now, search engines for social media sites merely looked for words.
We're looking at context.

We use semantic tools to look at what was said.
We then look at what they've said before.
We then look at who was saying it.

If we do this right, we can figure out why they're saying anything at all.

They are certainly building their own buzz. If you click on their "buzz" tab, you see that Twitterers are talking about, and they are harvesting the tweets. If you go to their "browse" tabs, you go to the real search section. They have categories of jobs you can look under (that's the browse! doh!). Legal is one of the categories with ten sub-categories listed beneath. Of those, three are different types of solicitors (Twitter is international), one is a legal secretary category, one is paralegal, one is senior partner, but none are librarians. In fact, I could not find any category that included librarians in them. Ah, well.

They have an interesting job map in beta. It shows a world map with T pins showing where jobs have popped up in the social media world they have been harvesting, I suppose. The sweep covers the last 72 hours. Pretty interesting tool, though this part does not tell you what the job is. Fun, though.

Students with some firms paid to defer jobs

The Boston Globe today runs a story by Rich Barlow about a number of luckier law graduates at large firms being paid a decent salary to defer their job a year to perform public service.

With his degree from Harvard Law School due in June, Juan Valdivieso makes an attractive prospective hire, and last summer, he scooped up a postgraduation job offer from the white-shoe firm Morgan, Lewis & Bockius in his native Washington, D.C.

But as the recession deepens, budgets tighten - even at top-notch law firms. Morgan, Lewis & Bockius e-mailed Valdivieso last month that it would have to defer his employment for a year, until the fall of 2010. But the company threw him a lifeline: It would pay him a $60,000 stipend if he spent the year after graduation at an unpaid public service job. The 28-year-old is looking for work in an organization that will indulge his interest either in civil rights or consumer protection.

Paying people to offer help to public service groups may be a noble endeavor, but it also reaps a practical payoff.

The stipend system saves a bundle for such firms as Morgan, Lewis, where starting salaries average around $160,000, according to Harvard's assistant dean for career services, Mark Weber. It also allows them to hold onto promising future lawyers until a possible economic turnaround next year.

Meanwhile, students add a year of real-life work.

"Clients are, from what I understand, not so excited about having first-year associates without any actual experience working on their case," said Valdivieso.

Alyssa Minsky, who is graduating next month from Suffolk University Law School, has had her employment deferred with a stipend by Ropes & Gray. A psychology major in college with an interest in healthcare, she is interviewing for jobs in that field.

"I really do think it's a great opportunity," she said. "I hope to do healthcare law at the firm, so I think I'll have real exposure to healthcare issues."

Law firms have postponed hires in previous recessions, but the public-service stipends are unique, say Weber and James Leipold, executive director of the National Association for Law Placement, a career counseling, recruitment, and development group based in Washington, D.C.

I love the fact that Barlow includes a Suffolk student who got a similar deal in the article following his lead with the Harvard student! I am pretty sure there are more Harvard students getting these deals than Suffolk students. The article is excellent and goes on to discuss how common this is becoming for the lucky few students and firms. There is some discussion of the various options offered to students, as some firms provide a list of approved public service placements. What I found truly fascinating was the comments that follow. These range from frankly envious, to depressed as some students seeking public service placements in the first place see the few jobs they might have had dry up as the financially strapped legal services see opportunities for free placements. There is irony, pathos, and wit in the comments, along with a dollop of self-pity. This is a very tough time to be graduating from law school if you are not already employed or independently wealthy.

Pirate Bay

I had been following the Pirate Bay story for a while. My son had clued me in, and made their story rather entertaining. This Swedish file sharing site was quite in-your-face about their battle with the copy-right police. They have a pirate ship as their logo, and of course, their name flaunts the piracy theme as well. When they received letters from copyright holders' attorneys ordering them to remove files from the site, they would post the letter to their site, along with their smart-ass replies, often instructing the attorney to perform painful sexual acts upon him- or herself. They had been taken to court a number of times, and always won. When they won a suit brought by Hollywood movie-makers and RIAA, Pirate Bay changed their logo temporarily to show the pirate ship shooting cannon balls at the Hollywood sign. This was a colorful bunch of Swedes!

All that sass came to a crashing halt with a trial brought in Sweden. The verdict, as reported at Cnet here and analyzed here was harsh. Peter Sunde, Gottfrid Svartholm Warg, Fredrik Neij, and Carl Lundström--were found guilty of having made 33 copyright-protected files accessible for illegal file sharing via the Piratebay.org Web site. The defendants were sentenced to a year in prison and ordered to pay 30 million Swedish kronor ($3.6 million) in damages to the copyright holders. Although no files are stored on the website, and the decision recognizes that the file-sharing was actually done by the clients who visited the site, the defendants were found guilty of assisting the clients in violating copyright. While the Wired Blog has a rather snarky editorial pillorying the Pirate Bay guys as "backpedaling" on the stand from their loud and proud anti-copyright statements outside of intimidating prosecutorial face-offs ("all hat and no rum," reads the editorial title), Cnet ran a report here of Sunde holding a press conference holding up a joke IOU for 31 million Swedish kroner, and then stating that he would rather burn everything he owns than pay up. They plan to appeal and keep fighting. Pirate Bay's BitTorrent site is still up and available.

So many people in Europe were outraged over the harsh penalties that they joined a political party, the Swedish Pirate Party. The party was very tiny. After a police raid on the Pirate Bay offices in 2006, the party membership tripled, from 2,000 to 6,000. Following the harsh sentencing of the four owners of Pirate Bay, membership again grew so fast (see post here to Wired blog, that they really seem likely to be able to win a seat in the European Parliament. At the time of the blog post, they listed 37,000 members, and it would take an estimated 100,000 votes to win a seat.

The judge who delivered the opinion turns out to be a member of pro-copyright groups. See Wired blog post here.

Stockholm district court judge, Tomas Norström told a Swedish newspaper that his previously-undisclosed entanglements with the copyright groups did not constitute a conflict of interest.

The groups include the Swedish Association of Copyright, a discussion forum. Henrik Pontén of the Swedish Anti-Piracy Bureau, Monique Wadsted, a motion picture industry lawyer, and Peter Danowsky from the recording industry's IFPI are members of the organizations, and were largely responsible for pressing the case against The Pirate Bay before the judge.

Norström also sits on the board of the Swedish Association for the Protection of Industrial Property, and the Internet Infrastructure Foundation, which oversees the dot-se country code and advises on domain name disputes. Monique Wadsted is one of his colleagues at the foundation.

The judge's links to the groups were reported by Swedish National Radio.

Peter Althin, the lawyer who represents Pirate Bay spokesperson Peter Sunde, announced Thursday that he plans to demand a retrial.

Apparently, it's a close call whether such a conflict of interest would be enough to throw out the verdicts. I don't know that I believe that copyright holders should have no rights at all, but I certainly believe that copyright has become so distorted, and that the megacorporations that assert copyright in the movies and music that are muc of what is being traded are over-reaching. They did not create the beauty -- they are not musicians or artists, and often, in fact, take advantage of the artists who do the actual creating. But they also overreach by lobbying Congress to extend copyright, arguing - falsely, I believe, that in order to motivate further creativity, intellectual property rights must be extended further. In fact, I believe the opposite is true. A balance, as originally envisioned in the U.S. Constitution, where perhaps, 17 years of protection for a new idea, in copyright or patent, would be adequate. Then, the idea enters the public domain, and enriches the thinking of others, sparking more creativity.

The image is, of course, the Pirate Bay logo. Whatever else you can say about them, they have a certain panache and style.

"Flow" and Creativity: Links to the "baby mind" in us all

A few years ago, I wrote a post here about happiness at work, and the concept of "flow" in your work. When you lose yourself in the moment, lose your sense of self-consciousness, you can become more creative and more effective in many types of work. It's also very enjoyable. This is part of what happens when we become immersed in a movie, or meditation, or possibly, in reading a great book. It's what happens with an athlete getting into the zone, or an artist being one with the canvas, the poem or the audience. It's magic.

In the Boston Globe Ideas section today, Jonah Lehrer writes, "Inside the Baby Mind," which looks at the newest understanding of researchers of how babies learn. Their brains are actually much more connected, and have vastly more neurons than adult brains. And it shows in the ways they are open to all the world. While adults "pay attention" with a spot light of attention, babies and toddlers attend to the world with a 360 degree lantern, soaking up everything equally. It makes sense, because they don't know what will be important, so they have to look at every thing. This actually matches the experiences I've had with my own kids and with other small children I've hung around with. When you go to the park or the zoo with a toddler, it's a whole different experience than going with an older child or adults. The article has a wonderful quote:

[Psychologist Alison] Gopnik argues that, in many respects, babies are more conscious than adults. She compares the experience of being a baby with that of watching a riveting movie, or being a tourist in a foreign city, where even the most mundane activities seem new and exciting. "For a baby, every day is like going to Paris for the first time," Gopnik says. "Just go for a walk with a 2-year-old. You'll quickly realize that they're seeing things you don't even notice."

Apparently, our brains begin pruning unnecessary neurons almost from birth. It makes us more efficient, as we begin to learn what we really need to focus on. But while we are really young and don't yet know, we can easily learn multiple languages at once. The world pours in on little babies and toddlers, unfiltered. Those of us who have a few memories left from earliest days, may remember the world as a much more intensely colored, more emotionally rich, more everything-ful place. Apparently children feel and sense things more intensely, which makes it seem particularly outrageous that doctors until the 1970's performed surgery on babies and toddlers without anesthesia under the mistaken impression that they were not really sensing things.

There are many times when it's a good thing to be able to tune out extraneous or overwhelming sensations, and that is what we learn to do as adults. We learn to focus our attention, and to "pay attention," which turns out to mean narrow our focus of attention.

While thinking like an adult is necessary when we need to focus, or when we already know which information is relevant, many situations aren't so clear-cut. In these instances, paying strict attention is actually a liability, since it leads us to neglect potentially important pieces of the puzzle. That's when it helps to think like a baby.

This new understanding of baby cognition, and the peculiar ways in which babies pay attention, is also giving scientists insights into improving the mental functioning of adults. The ability to direct attention, it turns out, doesn't merely inhibit irrelevant facts and perceptions - it can also stifle the imagination. Sometimes, the mind performs best when we don't try to control it.

(snip)
A recent brain scanning experiment by researchers at Johns Hopkins University found that jazz musicians in the midst of improvisation - they were playing a specially designed keyboard in a brain scanner - showed dramatically reduced activity in the prefrontal cortex. It was only by "deactivating" this brain area that the musicians were able to spontaneously invent new melodies. The scientists compare this unwound state of mind with that of dreaming during REM sleep, meditation, and other creative pursuits, such as the composition of poetry. But it also resembles the thought process of a young child, albeit one with musical talent. Baudelaire was right: "Genius is nothing more nor less than childhood recovered at will."

The immaturity of the baby brain comes with another advantage: utter absorption in the moment. The best evidence for this comes from brain scans of adult subjects as they watched an engrossing Clint Eastwood movie. The experiment, led by Rafael Malach at Hebrew University, found that when adults were watching the film their brains showed a peculiar pattern of activity, as their prefrontal areas were suppressed. At the same time, areas in the back of the brain associated with visual perception were turned on. As Gopnik notes, this mental state - the experience of being captivated by entertainment - is, in many respects, a fleeting reminder of what it feels like to be a young child. "You are incredibly aware of what's happening - your experiences are very vivid - and yet you're not self-conscious at all," she says. "You're not thinking about anything but what's on the screen."

But it's not just the movie theater that transports us back to a newborn state of mind, in which we're fully immersed in the moment. Gopnik notes that a number of other situations, from Zen meditation to the experience of natural beauty, can also lead to states of awareness so intense that the self seems to disappear. "This is the same ecstatic feeling that the Romantic poets were always writing about," she says. "It's seeing the world in a grain of sand."

There is more in the article, and I urge you to read it in full. But I have pulled out portions here to focus (hah! how adult of me) on the portions that are looking at how letting go of the prefrontal cortex, relaxing that adult portion of the brain in some way, brings us to a more creative, "flow" state.

The image is the same I used in the first post on "flow," a photo of Sweet Creek, from http://www.callofthewildphoto.com/

CIA & MilitaryTorture in Afghanistan & Iraq - It's back & it's worse

A stellar investigative report in the Washington Post today by Peter Finn and Joby Warrick details:

* Warnings in 2002 from the Pentagon against the use of torture to extract confessions; Besides obtaining unreliable information, such methods of interrogation would justify other nations in torturing captured U.S. military;

* Patterns of squelching dissent, and suppressing memos that expressed warnings of the downside of whatever the former administration wished to proceed with;

* Failing to present the cons as well as the pros of torture, and presenting torture as the only option for interrogating under the circumstances;

* Presenting the methods as safe and effective, and re-defining methods such as waterboarding as not constituting actual torture;

* Presenting the methods as a way to extract reliable information from known terrorists and thereby saving lives;

* Failing to recognize or mention that the same methods had been used by Communist Chinese operatives on U.S. personnel and certainly deemed torture in those cases;

* Failing to recognize or mention that torture victims are very likely to offer any information, true or not, in order to make the pain stop, thus resulting in very unreliable information.

The article mentions and offers a link to a PDF from the Joint Personnel Recovery Agency here.

There is a related Post article by Dan Eggen about former Vice-President Dick Cheney requesting President Obama to release 2 CIA reports that are still classified in order to prove that the torture techniques resulted in useful information.

And finally, the entire stirring of this has been because the ACLU requested release of information under the Freedom of Information Act. See here for their website with very helpful links to full text of:

* Press release (original link)
* Department of Defense Letter
* Links for more than 100,000 pages of torture documents ACLU has managed to get released, from 2005-2009, and will probably be adding more.
* Link for a book, Admission of Torture, which compiles the documents and adds analysis.
* Don't overlook links on the right-hand side of the page, which include related torture links, including legal and legislative documents. A very helpful collection for the researcher.