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If you haven't already heard, there's a nifty Firefox extension out there called RECAP.

Say you're on PACER (the electronic document archive for the U.S. Federal courts). You want to pull a document, but you don't want to cough up the dime per page that PACER will charge you. What to do?

Well, RECAP has a free public archive of things that people have already downloaded off PACER. Of course, to give back, RECAP will upload any PACER documents that you yourself download to its own archive. The goal, eventually, is to have a large, free, database of public documents.

Overall, I think this is a great thing. Some people need to follow ongoing litgation on PACER, even if they're not a party to the litigation. Maybe they want to keep an eye on a case to advise their clients of the up-to-the-last-filing bleeding edge. Maybe they're students who want to see how complex litigation plays out in the federal courts, one filing at a time. Either way, RECAP's free archive will make available, gratis, filings in the more popular cases.

Someone just forwarded me this-- which is quite possibly the best compilation of advice from a PD I have ever seen in my life. Some Advice from your Public Defender (via craigslist)

I’m a lawyer, not your fairy godmother. I probably won’t find a loophole or technicality for you, so don’t be pissed off. I didn’t beat up your girlfriend, steal that car, rob that liquor store, sell that crystal meth, or rape that 13 year old. By the time we meet, much of your fate has been sealed, so don’t be too surprised by your limited options and that I’m the one telling you about them.

AMEN. There's only so much that can be done.

I've been pretty quiet for a while--but that's not for lack of things to do.

This summer, I'm working at Legal Services of Northern Virginia; we represent indigent clients in civil matters. I've been on the job a week now, and I can say that it's been an education in itself.

Law school didn't prepare me for a lot of things that I'm seeing on the job. In law school, I read appellate opinions, and think about complex legal problems at a pretty high level. Practice, I'm finding out, is much grittier. It's one thing to know that the relevant rule of procedure allows you to propound 30 interrogatories, and quite another to know how to draft those interrogatories in a way that will ultimately result in meaningful discovery.

My problems tend to be intensely factual rather than legal. Did the landlord provide the tenant with the correct notice? How have the children been spending their weekends since Mom and Dad separated?

As far as the law goes--I find myself having to learn a great deal in an awful hurry. I haven't studied family law, or secured transactions, or landlord/tenant--but I have to learn quick, because that's what's on my desk. The ethical duty to exert reasonable diligence in learning the law means a lot more to me. Real clients now depend on my ability to figure out what their rights and remedies are.

A good chunk of my working day is spent on the telephone, calling clients and finding facts. This is hard enough under normal circumstances. But because I speak Spanish, I tend to conduct a lot of interviews in that language. That's been quite a struggle. It's not that my Spanish is terribly rusty--although it has atrophied somewhat from disuse. A Spanish call demands my total attention: I have to listen to what the client is telling me, then think about what legal import it has. One side of my head is dealing with Spanish facts; the other is frantically trying to match them with legal knowledge acquired in English. Somewhere in between, I have to respond in Spanish, usually in a way to gain more and better facts for the whole processing loop to begin again.

It's exhausting work. I'm completely drained at the end of the day--usually I just make it into bed and crash.

Just the same, this is probably the best thing I could have done for myself over the summer. As a lawyer-in-formation, I'm thrilled to be given this much autonomy and responsibility. I'm amazed at how much lawyering I've had to do in just a week on the job. On a more personal level, I like the fact that I can actually make a difference for people who may not have much else going for them.

Many of the people I'm dealing with immigrated from countries where the law was nothing more than a tool for the powerful to abuse the powerless. I hope that the work that I do can, in some small way, show that things are different here.

They're gonna run my botnet paper, w00t!

I've been looking into LaTeX for legal documents. I already use LaTeX for personal things, such as generating study outlines:


My 1L CivPro outline.

The best part about LaTeX is that it makes the structure of the documents trivially easy. I can forget about formatting, and concentrate on the content.

Of course, this is hardly WYSIWYG:



The green-and-black terminal window is what I see when I create a document in LaTeX--the finished product is shown up top.

Of course, TeX is generally a science, mathematics, & engineering thing; humanities types don't use it very much, and lawyers don't use it at all.

One problem is that we're already too wedded to our working methods. We rely on word processors to generate our documents--even though we could benefit from the more predictable behavior of a typesetting language like TeX.

Our citation style doesn't help, either. The Bluebook is needlessly complex, and its conventions are so idiosyncratic as to make it nearly impossible to use existing bibliographic styles and software to manage citations in a complex document.

That means that we're left fly-specking documents for stray commas or spaces. Not only is it annoying, I figure it's a waste of time.

Unfortunately, all the work implementing legal citation styles for TeX seems to be overseas. Jurabib was developed for German legal style--close, but not quite. biblatex doesn't quite do law. The most promising implementation, Camel, seems to have ceased development, and its lead developerhas dropped off the face of the Earth.

What I wish I had was the ability to bang out legal documents in TeX, and then specify my citations on the fly, in a way that's familiar to me as lawyer--something like LyX, with Camel support.

Sigh.

I suppose I shall have to make it myself, if I'm to have it--but I wish I had time to learn how to do that.

This is probably the umpteenth time I'm going to post this, but I really dig this remix. In about a week, I'm probably going to end up doing a bit of parallel citation for the second verse---I think I've finally worked out allt he cases Jay-Z relies on in his conversation with the cop.

Boingboing is carrying a story about a company that is offering an unusual palm pistol for sale as a Class I Medical device.

Apparently, the manufacturers had the foresight to register their palm pistol with the Food & Drug Administration as a "Daily Activity Assist Device" under 21 C.F.R. § 890.5050. A device registered under this regulation is suppsoed to be a "modified adaptor or utensil (e.g., a dressing, grooming, recreational activity, transfer, eating, or homemaking aid) that is intended for medical purposes to assist a patient to perform a specific function."

Now, I understand that the arms manufacturer intends its pistol to be used by an arthritic shooter. But I wonder--is the mere hope that an ergonomic pistol will be used by a person with arthritis enough to satisfy the "intended for medical purposes" requirement of the regulation?

Perhaps the most outrageous thing about all this is that it is the manufacturer intends for Medicare to pay for its pistol. In their specification, the manufacturers explain that "If we are successful in obtaining DME coding, it is possible the medically prescribed purchase of the Palm Pistol will be reimbursable by Medicare or private health insurance companies." I don't know about you, but knowing that the taxpayer dollars I'm paying down to pay for medicine and crutches (among other things) will be spent on arms makes me feel uneasy.

On the patent side of things, I'm having a hard time believing that this is novel enough to be patentable. It's not as if there isn't prior art:

The "Chicago Protector" was a palm pistol marketed in the 1890s. It used a very short .32 caliber rimfire round.

I imagine the inventors are trying to distinguish their invention from the prior art by pointing to the fact that this is "for medical purposes." I'm no patent examiner, but I'm guessing they're having a fun time getting around the Patent Office's rejections. The device strikes me as either anticipated by prior art--see the pistol, above. And even if not totally anticipated, element-for-element, it would have been obvious to any reasonably skilled firearms designer to combine the existing elements into the claimed palm pistol.

If the manufacturers succeed both in gaining medical device classification and in obtaining a patent, something is wrong with our administrative structures.

[The bulk of this post is taken from a comment I posted on washingtondc]

Apparently, WMATA has announced plans to "immediately begin random searches of backpacks, purses and other bags.

Yeah, you heard right. These will be random, suspicionless searches of otherwise unsuspecting Metro riders.

My first instinct was to think this was outrageously intrusive. Then I tried to think about how they might go about justifying random searches. I figured they might rely on some implied consent theory-- that is, persons consenting to ride a subway system have a reduced expectation of privacy compared with persons on a public street.

Unfortunately, consent may not even be terribly relevant, considering the fact that these searches are intended to deter terrorist activity.

"We realize that all Americans everywhere are at some risk from terrorism, and that those of us who live and work in the region of the nation's capital face increased risks," Metro Transit Police Chief Michael Taborn said at a news conference yesterday.

The U.S. Court of Appeals for the Second Circuit dealt with this issue recently in MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006)--and Metro is relying on MacWade. That case dealt with the New York City subway's institution of a "Container Inspection Program." MacWade, 460 F.3d at 264.

The NYPD, seeking to "deter terrorists from carrying concealed explosives onto the subway system," set up checkpoints to search riders entering the subway system. Id. Although the searches are "voluntary," all those wishing to avoid being searched are told to leave the station. Id. Officers had no discretion with respect to the particular targets of their searches; they merely searched a number of people, "such as every fifth or tenth person." Id.

The Second Circuit held these searches to be constitutionally reasonable within the scope of the Fourth Amendment. Id. at 269. The court relied on one of its earlier decisions, United States v. Edwards, in which it ruled that the use of metal detectors at airports was a reasoanble search under the fourth amendment. Since the use of metal detectors at airports was not intended "as a general means for enforcing the criminal laws," but rather to prevent terrorist hijackings, the the Edwards court upheld those searches. Id. (quoting United States v. Edwards, 498 F.2d 496, 500-01 (2d Cir. 1974)). Quoting at length from Edwards, the MacWade court noted the "jeopardy to hundreds of human lives and millions of dollars of property." Id. (quoting United States v. Edwards, 498 F.2d 496, 500-01 (2d Cir. 1974)). Thus, on balance, such searches were constitutionally reasonable.

This "special needs" exception to the Fourth Amendment entails a balancing test:

First, as a threshold matter, the search must “serve as [its] immediate purpose an objective distinct from the ordinary evidence gathering associated with crime investigation” . . . . Second, once the government satisfies that threshold requirement, the court determines whether the search is reasonable by balancing several competing considerations. These balancing factors include (1) the weight and immediacy of the government interest. . . (2) “the nature of the privacy interest allegedly compromised by” the search . . . (3) “the character of the intrusion imposed” by the search . . . and (4) the efficacy of the search in advancing the government interest."

MacWade, 460 F.3d at 268-69 (citations omitted).

Indeed, the MacWade court may have killed the whole consent issue completely by holding that the "special needs doctrine does not require . . . that the subject of the search possess a reduced privacy interest." Id. at 269.

Good law? Good question. I certainly don't like it; but then, I don't like a lot of Fourth Amendment jurisprudence, either. The Fourth Amendment, intriguingly, carries a balancing test (reasonableness) in its text, making it very difficult to get good, bright-line, per se rules.

That's as much as I can give you on short notice. This really isn't my line. For a more systematic treatment of this type of issue--far more systematic than I can give in the space of an LJ comment, see Kyle P. Hanson, Comment, Suspcicionless Terrorism Checkpoints Since 9/11: Searching for Uniformity, 56 Drake L. Rev. 171 (2007).



(Intriguingly, MacWade hasn't gotten a lot of play in the legal blogosphere. Law & Society Blog dealt with this back in '05)

A friend just called me in a near-panic. She is applying for a job. Part of the application process involves a writing test.

What's the problem here? The Bluebook[1], that's what. She rang me up after the writing test, worrying that she had cited an unpublished case incorrectly.[2] She also was worried that she hadn't correctly handled the fact that the unpublished opinion was quoting another opinion.[3] Worst of all, the examiners supplied her with the fifteenth edition of the Bluebook, which has been superseded by the eighteenth edition.

I tried to calm her down. First, I said, the fact that she was worried about her citation style probably meant that she had done well enough to pass. Second, I observed that unless the examiners had supplied her with the jurisdiction's local rules concerning the use and citation of unpublished opinions, she didn't really have much to worry about. Third, I noted that, given the fact that the examiners were relying on the fifteenth edition, their own citation style might not be all that good.

Crisis averted.

*****NOTES****
[1] The Bluebook: A Uniform System of Citation (Colum. L. Rev. Ass'n. et al. eds., 18th ed. 2005)

[2] The Bluebook: A Uniform System of Citation R. 10.8.1(c), at 95 (Colum. L. Rev. Ass'n. et al. eds., 18th ed. 2005).

[3] The Bluebook: A Uniform System of Citation, R. 1.6(c), at 53 (Colum. L. Rev. Ass'n. et al. eds., 18th ed. 2005)

digging through the digests, I'm amused to notice that most of the "defective brake" cases that make it into the digests seem to come from the South. Do y'all have such a hard time looking after your brakes down there? Seriously.

There's something that's bothering me. Where is all the cyberlaw? It's been nearly fifteen years since the Eternal September threw open the gates of the old Internet to a massive influx of newbies, and yet the accumulates scholarship on substantive law on the Internet is extremely sparse. What treatment the Internet does receive in the legal academic world is still theoretical. The case reporters have not yet yielded much in the way of meaning for me, either.

As an 11-year-old kid with a 9600 baud modem and an AOL account (thanks Mom & Dad!), I was overjoyed when the walls of AOL's garden came tumbling down and I got to read USENET for the first time. I was terribly interested in poetry and writing at the time, and I cut my first literary teeth posting bad work on newsgroups with little traffic The 'net and I have grown up together, I suppose. We spend a lot of time with each other now. I conduct almost all of my life over the Internet: banking, commerce, academic research, communications (both serious and frivolous). I cannot be alone. And yet there doesn't seem to be an awful lot of settled law on Internet life.

Now, as a law student, that fact bugs me. Surely there are torts on the internet. There must be private wrongs that can be redressed. The volume and complexity of human interaction must generate the same sort of legal disputes and resolutions that real life generates. But fifteen years into the Eternal September, we're still looking at Internet law as an 'emerging' phenomenon.

Why?

On the tort side, it's lucky for this idiot that he's in CT, which is a comparative-negligence state. In DC/MD/VA---NO RECOVERY.

see more crazy cat pics

An interesting take on relationships, from the The Handy Cyclopedia of Things Worth Knowing by Joseph Triemens.

The Claims of Companionship.

A man cannot justly complain if a girl accepts similar favors from other men, for until he has proposed and been accepted he has no claim on her undivided companionship. An attitude of proprietorship on his part, particularly if it is exercised in public, is as bad manners as it is unwise, and a high-spirited girl, although she may find her feelings becoming engaged, is prone to resent it. It should be remembered that a man is free to cease his attentions, and until he has finally surrendered his liberty he should not expect her to devote all her time to him.

Most interesting to me, however, is the very formalistic offer/acceptance language here. In 1911, there was still a cultural presumption of the marriage as a bargain for the formation of a household.

Nowadays, of course, we're much more enlightened than that--or so we think. Re-read that passage again and think about how the game is played today. Now, as then, "[j]ust what attention a man is privileged to show a young woman to whom he is not engaged, and yet to whom he wishes to express his devotion, is a
point a little difficult to define."

Who knew that so much post-modern lonely-heart angst could be captured in a 1911 drug-store self-help book?

I might be the last person on the series of tubes to catch on to this. But as I was shopping for next semester's textbooks, I noticed that Amazon.com has begun offering mp3 downloads!.

OK, go ahead. Be smug. I know that you've all been using the iTunes Music Store for ages and ages. And you know that I've been resisting iTMS and similar services because of my opposition to Digital Restrictions Management (DRM).

Amazon at last has begun to compete with Apple--not just on price, but on the terms offered. The Amazon mp3 store gives me pretty much what I've been missing at much more favorable licensing terms than what Apple has been insisting on for iTMS. This vindicates Judge Easterbrook's opinion in ProCD, Inc. v. Zeidenberg:

Terms of use are no less a part of "the product" than are the size of the database and the speed with which the software compiles listings. Competition among vendors, not judicial revision of a package's contents, is how consumers are protected in a market economy

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453 (7th Cir. 1996).

There is still one annoying hurdle. In order to complete your purchase, you must install Amazon's MP3 Downloader. All well and good if you run Windows or OSK--not so much for Linux. Linux users can still purchase individual tracks, but are shut out of purchasing albums at the "album discount" price--

Or at least they were, until mad-scientist took a crack at the problem. He has cleverly figured out a way of using the Amazon MP3 Downloader in Linux with WINE with the help of a bit of bash script-fu.

I've tried it out and it works. This is extremely useful--and possibly ruinous to my budget. But there you have it.
http://mad-scientist.us/amazon.html

From my K prof, on differing styles of negotiation (and how these might bear on interpreting contracts):

The Japanese--the Japanese will never say that the contract is the whole deal. The whole deal is the total relationship between the parties over time.

The Russians are all bluster. They fight about everything, even the stuff they don't care about.

The French? The French want a logical, beautiful structure. They don't care if they win or lose. It just has to be beautiful

I have never really been one to complain about termtime fatigue, but I think I'm definitely starting to lose it.

I passed out last night and crashed for twelve or thirteen straight hours. Woke up this morning mostly rested. Studied CivPro on the train. Got to school, found a cafeteria table, and hacked up my Torts outline (yay for LaTeX).

After a few hours of that, I have concluded that my mind is still not quite there--at least for nonlegal matters. I rather embarrassingly confused two people--saying hello as they passed by. This would have been bad enough, but it only got worse when I realized that I had gotten face and name and attributes completely wrong.

My head's not right, and I can't work out why. It shouldn't be for lack of rest or overwork, but somehow I think the fatigue of the past several weeks has been catching up to me.

Strangely, again, it seems to hit me with things that have nothing to do with law school: Matching names to faces, for instance, or finding the right word to describe things. I have no problem laying out the elements of a tort or the invalidating causes of a contract, however.

It only gets worse from here on out. I've got a memo due soon, and there's the wonderful world of outlining that I'm only now entering. There's research still to do, plus the regular, daily reading.

The more I think about unconscionability, the more I hear Ezra Pound reading Canto LXV:



Usura rusteth the chisel
It rusteth the craft and the craftsman
It gnaweth the thread in the loom
None learneth to weave gold in her pattern;
Azure hath a canker by usura; cramoisi is unbroidered
Emerald findeth no Memling

Usura slayeth the child in the womb
It stayeth the young man's courting
It hath brought palsey to bed, lyeth
between the young bride and her bridegroom

CONTRA NATURAM

They have brought whores for Eleusis
Corpses are set to banquet

at behest of usura.


At the end of the recording, Pound scolds his listeners:

And so that you don't continually misunderstand, usury and interest are not the same thing. Usury is a charge made for the use of money, regardless of production, and often regardless even of the possibilities of production..

Top ten Gonzo denials. Given this fellow's performance as AG, I have a lot of hope for my future in the legal profession.