Ernie the Attorney : Searching for Truth & Justice (in an unjust world)
Updated: 6/1/2002; 9:44:52 AM.


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Monday, May 20, 2002

Radio for Lawyers - A Multi-Author Collaboration Experiment

Well, Rick, Rory and I have embarked on an experiment to have a joint weblog.  We are testing the multi-authoring function of Radio, and hopefully it will produce something useful.  Here's the link.  I have to give total credit to Rick for coming up with the idea and for setting it up. 

11:47:54 PM    

Lessig et al. Files Brief in Eldred Case (involving limitations on duration of copyrights)

I would encourage people to read the whole brief, but for those who don't want to here are some important snippets from the brief that was filed with the U.S. Supreme Court.

Who for example are the people challenging the law?

Well, there are several organizations.  We tend to think of just Mr. Eldred, but there are others:

Most of the petitioners are commercial entities that build upon the public domain. Best known in this group is Dover Publications, a large-scale publisher of high-quality paperback books, including fiction and children’s books. J.A. 18-19. Prior to CTEA, Dover had planned to republish a number of works from the 1920’s and 1930’s, including “The Prophet” by Kahlil Gibran and “The Harp-Weaver” by Edna St. Vincent Millay. J.A. 19. CTEA has delayed the entry of these works into the public domain by 20 years.

What sorts of reasons do the challengers give to attack the law extending copyright protection?

Basically, two reasons.  First, the law is unconstitutional because it violates the provision of the Constitution that says that, while Congress can grant copyrights to promote the "arts and useful sciences," it can only do so for "limited times."  Second, the extension hampers free speech and therefore violates the First Amendment.  While the second reason sounds good to most non-lawyers, the first reason probably has a better chance of appealing to the Justices on the Court.  Here is an excerpt from the part of the brief that summarizes the legal arguments:

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).  This case is about one important limit on the legislature’s power that Congress has clearly forgotten.” The Copyright Clause gives Congress the power to “promote the Progress of Science,” by granting “exclusive Right[s]” to “Authors” “for limited Times.” U.S. Const. art. I, § 8, cl. 8.  There is no mystery about what the Framers had in mind for the duration of copyright—they expected it would be “short” so that after a “short interval,” creative work would pass into the public domain “without restraint.”  [citation omitted]  Nor is there any doubting the Framers’ fear about the power that they were creating: the resolution against monopolies was as strong in the framing generation as in any time since; they, more than we, were keenly sensitive to the dangers of state-backed monopolies. But their hope was that the government might help spur learning and innovation. And to balance their hope against their fears, the Framers crafted the most carefully circumscribed power within Article I, § 8. The Copyright Clause is the only power in Article I that specifies both its ends—”to promote the Progress of Science”—and also its means—”by securing for limited times . . . exclusive Right[s].” Monopolies were to be allowed, but only to “promote [] Progress.”  Congress has now found a way to evade this constitutional restraint. Rather than granting authors a fixed (i.e., “limited”) term of copyright, Congress has repeatedly extended the terms of existing copyrights—eleven times in the past forty years.

Like I said, I would encourage everyone to read the whole brief.  This is an important case, and hopefully this brief (which is the product of many fine lawyers, and not just Larry Lessig) will have a strong impact.

10:26:18 PM    

Delaware's new no smoking laws

"Last week, Delaware's legislature passed one of the strictest anti-smoking laws in the country. The laws in California were part of the inspiration for the Delaware law, which prohibits smoking in a number of public places."  [Story Link] Via [Delaware Law]

9:21:47 PM    

Training Day....for associates at law firms

Christopher has written an interesting post about the regime of training associates and then evaluating their performance.   Here's an excerpt:

"We do two things here at BigLaw: We provide services to clients and we make lawyers. The first thing is pretty obvious, but the second one is kind of squirrely, nobody really wants to talk about it. But the process of scouring the law schools for candidates, interviewing, hiring, evaluating and eventually bestowing partnerships is really quite interesting. It's like creating a skilled artisan such as a silversmith or blacksmith."

Christopher looks at it from the angle of a non-lawyer who provides technology solutions to the lawyers in his firm.  He is quite observant.   I think he's right that the training of lawyers is something that doesn't get talked about.  Why?  Well because training costs time, and in the world of BigLaw (or even MediumLaw) time = money.  And while we all pay lip service to the notion that a well trained lawyer is more efficient and productive, that productivity is hard to measure in a way that can be put into a simple spreadsheet.  So using the time-honored principle that what can't be measured doesn't exist ... well, you see where this goes. 

But I don't want to suggest that big or medium firms don't train associates.  They do.  But only because there are attorneys in those firms who take on that task because they like it.  It is very hard to create a formal structure that trains lawyers in a large firm where profits are based on the sale of time.  There is only so much time, and it's hard for firms to allocate time to training young lawyers.  It's easier to let Darwinian principles be the guiding hand....

8:11:41 PM    

Weary Physicians Have Enough Energy to File Class Action

A class action antitrust suit is the latest and potentially most effective weapon in a long doctors' fight to improve their working conditions and, they argue, patient care in America....The suit charges that those groups have illegally contracted and conspired to eliminate competition in the recruitment, hiring, compensation and other terms of employment of resident physicians.  via [National Law Journal]

3:48:15 PM    

Class Action Suit About Bad Blood is Dismissed in Chicago

The Reverend John David Sturman recently hit a roadblock when a judge dismissed his class action against a local hospital and the American Association of Blood Banks (AABB). via [National Law Journal]

3:45:02 PM    

© Copyright 2002 Ernest Svenson.

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