1L Resources, Tips and Tools

Brooklyn Law School will hold its convocation for the incoming law students, the Class of 2014 and the Class of 2015, on Monday, August 15 at the U.S. District Courthouse for the Eastern District of New York. Later in the week, the BLS Library will begin holding a series of nine orientation sessions from Wednesday, August 17 to Tuesday, September 13 to introduce the 1Ls to library resources. See the updated online research guide for first-year law students 1L Resources, Tips and Tools created to provide first-year law students with basic information regarding the law library and its services; study, exam, and stress tips; and information about BLS Library databases. The Guide has a section on the first year required courses with relevant hornbooks, treatises, and study aids, and CALI lessons. The BLS librarians look forward to working with the incoming class and recommend the essay How to Read a Legal Opinion: A Guide for New Law Students, by Orin S. Kerr, 11 Green Bag 2d 51, which explains what judicial opinions are, their structure, and what to look for when reading them.

Lawyers and Social Media

A February 2011 post cited the book Social Media for Lawyers: The Next Frontier by Carolyn Elefant and Nicole Black (Call #KF320.A9 E44 2010) as a practical resource for lawyers on how to use social media. Since then, Nicole Black who is of counsel to Fiandach & Fiandach in Rochester, NY has been tracking the issue in her blog Sui Generis. Her most recent post states that, while some lawyers may find social media useful to gain more clients or expand their professional networks, not every lawyer will benefit from using social media tools. The reasons range from the time spent on creating profiles and interacting with other users to potential ethical concerns that use of social media raises. One such ethical concern is lawyer use of PDAs, Smart Phones and Blackberries, which according to the ABA’s 2010 Legal Technology Survey Report (available at the Brooklyn Law School Library reference desk, Call #KF318.A1L44 2010) is at 78.9% of responding lawyers.

As the use of these devices increase, lawyers may send, receive and store confidential client information so that legal ethics obligations are triggered. The September 2010 New York State Bar Association’s Committee on Professional Ethics Opinion 842 addressed the ethical obligations of lawyers who choose to store confidential client information online using cloud computing services concluding that “A lawyer may use an online data storage system to store and back up client confidential information provided that the lawyer takes reasonable care to ensure that confidentiality will be maintained in a manner consistent with the lawyer’s obligations under Rule 1.6. In addition, the lawyer should stay abreast of technological advances to ensure that the storage system remains sufficiently advanced to protect the client’s information, and should monitor the changing law of privilege to ensure that storing the information online will not cause loss or waiver of any privilege.”

Most law firms that use web based email services like Gmail rely on cloud computing. With Gmail, email messages are not stored on the law office computer. It is accessed through the web browser on the firm’s computer. The data in these email messages is saved on Google’s Gmail servers which allow access to that data anywhere at any time. Lawyers who do not find social media helpful are probably using it already.

For more on the topic, see Information Security and Privacy: A Practical Guide for Global Executives, Lawyers and Technologists by Thomas Shaw (Call # KF390.5.C6 I545 2011). Chapter 7 on New and Emerging Technologies has a section on cloud computing and Chapter 8 is on the Role of Lawyers. Sui Generis completed a 4-part series on Cloud Computing with a recent blog entry. Nicole is in the process of writing a book about lawyers and cloud computing to be published by the American Bar Association.

Activist Indicted for JSTOR Theft

A NY Times article, Open-Access Advocate Is Arrested for Huge Download, reports on the indictment of 24-year-old open access activist Aaron Swartz for theft of more than four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. Swartz helped create RSS that allows people to receive automatic feeds of online notices and news. In 2008, he used an automated script to download more than 2 million documents from PACER, the website the federal judiciary uses to distribute court documents. PACER was quickly shut down and the FBI began an investigation, but found no wrong-doing. This time, the US Attorney for the District of Massachusetts obtained an indictment, charging him under the Computer Fraud and Abuse Act with computer fraud, wire fraud, and unlawfully obtaining information from a protected computer. If convicted, he could face up to 35 years in prison.

For information on the CFAA, see the Brooklyn Law School Library's copy of Computer Fraud and Abuse Laws: An Overview of Federal Criminal Laws by Charles Doyle (Call #HV6773.2 .D58 2002) as well as the Congressional Research Service’s report titled Cybercrime: A Sketch of 18 U.S.C. 1030 and Related Federal Criminal Laws.

Critics of the indictment view it as part of a campaign by the US government to place increasing restrictions and controls on internet activity. However one views Swartz’ actions, the government may have difficulty proving the wire fraud charges under 18 U.S.C. § 1343 based on the lack of intent to defraud. Section (a)(4) was meant to prosecute individuals who stole information for the purpose of fraud. It is unlikely that Swartz, a long-time open access information activist, downloaded millions of research papers from JSTOR with the intent of defrauding people. 18 U.S.C. § 1030(a)(5)(B) requires that the prosecutor prove the defendant recklessly damaged a protected computer. Yet JSTOR “explained they’ve suffered no loss or damage.” 18 U.S.C. § 1030(a)(2), the strongest claim against Swartz, makes it illegal for anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer.”

Lawrence Lessig, a mentor of Swartz, in a comment on the case said "Even if the facts the government alleges are true, I am not sure they constitute a crime. There is considerable uncertainty in this area of the law. Many wonder about the quick conversion of terms-of-service into criminal prosecution. But that’s a question the courts will ultimately have to resolve."

David Segal, executive director of Demand Progress, says the persecution makes no sense, comparing it to “trying to put someone in jail for allegedly checking too many books out of the library.” Online activist Gregory Maxwell, showed support for Swartz’s actions by releasing a 32-gigabyte collection of almost 19,000 documents from JSTOR to the Pirate Bay, a site which, in the past, has been accused of encouraging illegal downloading. Maxwell, points to the fact that all of the documents were written before 1923 and should therefore be under public domain. See the Wired article Huge Trove of Academic Docs Posted Online in Response to Activist Arrest.

Legislative History Research

Patrons at Brooklyn Law School Library can access the print and electronic versions of Legal Reference Services Quarterly’s latest Volume No. 30, Issues 1 and 2 (2011), a Special Issue: Determining Legislative Intent in State Courts: Selected Methods and Sources. Two articles that relate to legislative history in jurisdictions in the metropolitan tri-state are “Connecticut Legislative History” by Janis Fusaris (of the University of Connecticut School of Law Library), 30 Legal Ref. Services Q. 17 (2011), and "Using Legislative Histories to Determine Legislative Intent in New Jersey" by Barbara H. Garavaglia (of the University of Michigan Law Library), 30 Legal Ref. Services Q. 71 (2011). Linda Holmes, Associate Librarian at Brooklyn Law School has created a LibGuide on New York State Legislative History Research briefly describes the sources that one should consult when compiling the legislative history of a New York State statute.

BLS Prof Nominated to Court of Appeals

President Obama has nominated Brooklyn Law School Adjunct Professor of Law Judge Evan J. Wallach to the United States Court of Appeals for the Federal Circuit. Judge Wallach has been a judge on the United States Court of International Trade since 1995. A press release from the White House says “Judge Wallach has distinguished himself throughout his legal career in both the public and private sectors. He possesses a keen intellect and a commitment to fairness and integrity that will serve him well as a judge on the Federal Circuit.”

Judge Wallach has been an adjunct law professor on the law of war at numerous institutions, including Brooklyn Law School and New York Law School, since 1997. He has published a number of articles, including Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Colum. J. Transnat'l L. 468 (2006-2007) and The Procedural and Evidentiary Rules of the Post World War II War Crimes Trials: Did They Provide an Outline for International Legal Procedure? 37 The Columbia Journal of Transnational Law 851.

In 1976, after completing law school, Judge Wallach joined the law firm of Lionel Sawyer & Collins in Las Vegas as a litigation associate, becoming a partner in 1983. He took a leave of absence from the firm from 1980 to 1981 to study at Cambridge in the United Kingdom, and then another leave of absence from 1987 to 1988 to serve as general counsel and public policy advisor to Senator Harry Reid. From 1989 to 1995, Judge Wallach served in the Nevada Army National Guard as an attorney-advisor, providing legal counsel for his brigade’s commanders and all brigade personnel. In 1991, he entered active service during the Persian Gulf War, serving as an attorney-advisor in the International Affairs Division of the Office of the Judge Advocate General of the Army at the Pentagon. Judge Wallach was appointed to the Court of International Trade in 1995. Since that time, he has presided over more than 230 cases to verdict or judgment addressing questions of international trade and customs law. He has also frequently sat by designation on several federal trials and appellate courts, hearing more than 80 cases on the Courts of Appeals for the Second, Third, and Ninth Circuits.

Universal Citation

This month at the Annual Meeting of the American Association of Law Libraries, law librarians and legal educators met for the first time to pursue the goal of a uniform legal citation format. The group’s website explains the purpose of the meeting which took place at the Rutgers-Camden School of Law. A video of the event is at this link. The meeting begins at around 19:25, and ends at 146:20.

The webpage states: "In the late 1990's, the American Bar Association, American Association of Law Libraries, and many others looked to the future of legal information and saw the need for change. As the country and our courts shifted to a digital environment, they saw the need for a new way to refer to court decisions and other documents on which the law depends. With the potential for great increases in the availability of legal information, there needed to be a citation style that did not depend on the increasingly outdated print editions that used to be the basis of legal references."

For more information about what UniversalCitation.Org aims to be, read A Proposed Course of Action for universalcitation.org or Some Alternative Non-Commercial Entity by Professor Peter Martin. See also Professor Martin’s article Neutral Citation, Court Web Sites, and Access to Authoritative Case Law, 99 Law Lib. J. 329 (2007), which discusses the history of Universal Citations in the United States.

Debt Limit Research

Researchers at Brooklyn Law School can learn more about the ongoing debt limit talks by reading the June 2011 Congressional Research Service Report, Reaching the Debt Limit: Background and Potential Effects on Government Operations which states in its summary that

The gross federal debt, which represents the federal government’s total outstanding debt, consists of two types of debt: (1) debt held by the public and (2) debt held in government accounts, also known as intragovernmental debt. Federal government borrowing increases for two primary reasons: (1) budget deficits and (2) investments of any federal government account surpluses in Treasury securities, as required by law. Nearly all of this debt is subject to the statutory limit. The federal debt limit currently stands at $14,294 billion.

The Report, which has an Appendix of a Detailed History on Past Treasury Actions During Previous Debt Limit Crises, is divided into these sections:
• Federal Government Debt and the Debt Limit
• The Debt Limit and the Treasury
• Past Treasury Actions to Postpone Reaching the Debt Limit
• Current Treasury Actions in 2011 Surrounding the Debt Limit
• Potential Implications of Reaching and Not Raising the Debt Limit
• Possible Options for Treasury: Could Prioritization Be Used?
• Possible Options for OMB: Could Apportionment Be Used?
• Potential Impacts on Government Operations
• Potential Impacts on Programs Generally
• Potential Impacts on Programs with Trust Funds
• Distinction Between a Debt Limit Crisis and a Government Shutdown
• Potential Economic and Financial Effects
• Considerations for the Current Debt Limit Debate
• Views on the Debt Limit, Prioritization, and Default
• Can an Increase in the Current Debt Limit be Avoided?
• How Much Should the Debt Limit Be Raised?
• Implications of Future Federal Debt on the Debt Limit

A more detailed February 2011 GAO Report on the Debt Limit, Delays Create Debt Management Challenges and Increase Uncertainty in the Treasury Market, recommends that Congress should consider ways to better link decisions about the debt limit with decisions about spending and revenue. Also of interest is Train Wrecks, Budget Deficits, and the Entitlements Explosion: Exploring the Implications of the Fourteenth Amendment's Public Debt Clause by Michael Abramowicz who concludes

Although the Public Debt Clause is underdeveloped, it is not a constitutional relic. The language and history of the Clause indicate that it was not merely a prohibition on the repudiation of Civil War bonds. Rather, the Clause was and is a promise that Congress will pay its debts. The Clause applies at least to governmental promises embodied in written agreements with debt-holders, and Congress cannot take any action making it possible that the government will break such promises.