One Week Till Go-Time

A fellow bar-slave of mine came over to my place the other day for a visit, and she was, naturally, immediately drawn to my study location to examine the scene. She's using outlines, not flashcards, but she commented that my flashcard piles were much smaller than those of other's she'd seen.

"Well," I offered with a sly grin, "I only make flashcards of the stuff I don't know."

 

I'd Rather Be a Hammer

Penultimate day of Barbri: essay workshop. Professor Sakai reiterated Professor Honigsberg's command that we act as sheep and follow the herd in our essays. His version:

"As my dad told me, 'It's always the nail sticking out that gets hammered down.'"

Lay of the Land

I was in Oakland yesterday, and naturally I had to scope out the territory. The Oakland Convention Center is in a giant Marriott hotel. A friendly security guard took me back to the convention halls and unlocked the door so I could peak in. A giant empty room with hard floors. It reminded me of taking the MPRE, which I should have realized would be good practice.

I almost got sick on the ride there. But once we arrived I calmed down and felt ready.

 

Closing In

Friday was my last substantive Barbri lecture. We had Thursday off with a regular homework assignment, and jeez, that was sweet. I felt like I was able to devote my highest energy levels to studying. After three or four hours of lecture in the morning, it's hard to attack the homework with real vigor.

Community Property was the last area of law, and the only one I'd never taken a course on in school (although there is some overlap from Wills & Trusts). At the first run through, all these substantive areas seemed overwhelmingly detailed, even the ones I'd taken. My brain is in 5th gear by now though. I read the Mini Review, then the next day I hear the lecture and make flashcards from my notes. I go through the flashcards once, and I can answer an essay question pretty well after 24 hours in the subject.

My brain feels primed. I think I've become sharper from a month of studying, but my SO suggested it was all the blueberries I've been eating.

Physical Manifestations Requirement

Three comments having to do with the physical impact of studying for the bar:

1. I have a second gray hair. I discovered the first one about a year ago in law school. I'm 26 years old.

2. Speaking of hair, I have this nervous tic when I'm doing a lot of concentrating and studying, which is that I rub my eyebrow. My right eyebrow currently has a gap from incessant rubbing.

3. Finally, I'm experiencing a bit of pain on my middle finger. You know that spot on your middle finger of your writing hand, where you got a callous as a kid from holding a pencil? I haven't taken written notes since college, and that callous no longer exists. Frankly, the only pen-n-paper writing I do in daily life is for a grocery list. Filling in the blanks of the in-class workbook, writing over 500 flashcards, outlining essay answers...it hurts!

Affectedly Modest, Reserved, or Serious

I had a fond memory from Civ Pro my 1L year today. (Seriously!) I remember my professor teaching us about California's answer to a complaint, which is known as a "demurrer."

He had us repeat it out loud as a group, to be sure we wouldn't embarrass ourselves some day by pronouncing it "demure-er," as in more demure. The correct pronunciation is "duhmuhrer."

Subject to Numerous Exceptions

After over an hour of 47 pages of Civil Procedure in my Conviser Mini Review last night, I almost lost it when I read this paragraph:

Judgments are generally enforceable while post-trial motions are pending unless the court orders otherwise. Thereafter, if the judgment is appealed, a federal court will stay execution if a bond is posted, unless the order was for an injunction or receivership. In California state court, subject to numerous exceptions, enforcement of the trial court judgment is automatically stayed with the timely filing of a notice of appeal. However, enforcement of certain judgments (eg, for money, sale of real or personal property, appointment of a receiver) will be stayed only if trial court so orders or if an undertaking is provided. The California appellate court may also issue a stay.

Reading that paragraph is the kind of thing that could make you hit The Wall.

On the other hand, occasionally I feel a bit sad, knowing that after the bar, I'll never know this much law in this many areas ever again. It's like preemptive nostalgia.

Clusters

I saw the Wall today. As in, "Late June is when you'll probably hit the wall in your studying."

The assignment for today was a practice half-day MBE, so 100 questions in 3 hours (mixed subject). I glimpsed the wall when I saw the rest of the assignment: simulate two remedies essays.

I got about 60% right on the MBE practice, and I'm not sure where that leaves me. It's really painful to check your answers when you have a binge of incorrect answers all in a row. (Each time I think to myself, "cluster f*ck.")

I always feel worse when my answer is physically distant from the correct answer: when I said "A" and the answer was "D." It's silly because the answer choices don't work like that, but all the same some part of me helplessly thinks, "Damn, I wasn't even close!"

Sometimes I think the best part of the real MBE will be not having to check my answers.

Water People

Our Real Property professor, Paula Franzese, is probably my favorite so far. She's fast and she's funny, and she sings for us. (She's also the only woman we've had so far.)

Today was the last day of Property, and during the last segment she was covering the miscellaneous water rights. Our outline provides the text of the rules with blank spaces for us to fill in the words.

For example, the outline provided, "The water belongs to those who own the land _____________" and we dutifully wrote in "bordering the water course" when she said it. The next line: "These people are known as _________________." Paula says, "water people." There was some giggling, but we dutifully, robotically wrote "water people." Paula paused.

"I'm kidding. They are not known as water people. They're riparians." And we all laughed, and scratched out "water people" in our outlines.

The Bar Review Burden on SOs

It's exceptionally valuable having a supportive significant other while studying for the bar. Mine has involved himself in my studying by quizzing me with flashcards. I realized this morning just how involved he's been.

My boyfriend's band has a show in two weeks, and he usually has a friend of his video record their gigs. I've started assisting his friend, but I'm not exactly a film school student, so my boyfriend decided to hunt for someone to help me.

Managing three cameras would be pretty intense for an amateur; besides, he informed me with perfect innocence, "I don't want the recording to be an undue burden on you."

The Little Things

There's something about the Barbri books that's been driving me completely nuts: page numbers.

The In-Class Workbook is a prime example. The book is divided into multistate subjects and state subjects, and these subjects are divided alphabetically within the book (small comfort). There are page numbers within each subject, but no universal, book-wide page numbers. (I rationalized this by telling myself that Barbri wanted each professor to be able to refer to their "own" page numbers. Today, however, Epstein - contracts - informed us as an aside that he had no control over them.)

Without universal page numbers, the table of contents is useless for finding the subject each day. This book is approximately 2 and a half inches thick! Can you imagine how annoying it is thumbing through it to find the subjects? Yes, the subject is listed at the top of the page, but everything is in a different font and size because the materials are the professor's proprietary notes.

And there's not even a uniformity to adjust to:

The Essay Exam Workshop book: overall page numbers, but no subject headings at the top of the pages. Must use table of contents.

Conviser Mini Review book: Divided between multistate and state, with universal page numbers. No table of contents, therefore universal page numbers are useless. Must use subject headings at the top of the pages.

I also found their abbreviation system intolerable (CGAB, CICW, CEWB, etc.) until I realized I didn't have to figure out what they stood for: the abbreviations are on the upper-right side of the cover of the book. Positively sensible.

Erwin

Today we watched Erwin Chemerinsky's DVD lecture. Chemerinsky is the god of Con Law, revered by many generations of attorneys who were taught Con Law by him in Barbri. (I flew 600 miles with a stomach virus to hear him speak.) The most remarked upon quality of his lectures is that he uses no notes whatsoever.

Without using any books, notes, or even a podium, he guided us through out handout, referring to "major subpoint 3" or "subset c," or, my personal favorite, "little 4." He recited the notes word-for-word.

Our DVD emphasized this point by filming him for the first 20 minutes from the feet up, before zooming in on his face as they typically do. At that moment, my friends on either side of me both leaned in to whisper, "Does he have a teleprompter?" and "Does he have it all memorized?"

His lecture is about 8 hours long!

Non-Acrimonious Acronyms, part II

Courtesy of Wikipedia, two relevant pieces of information:

In 1974, both San Francisco-based "Bay Area Review" (BAR) and Chicago-based "Bar Review Institute" (BRI) were bought by publishing giant Harcourt, Brace, Jovanovich, and promptly merged.

And, source of the Conviser Mini Review book:

Richard J. Conviser became president of the merged subsidiary.

Staying Awake

I've started Barbri this week! I'm doing the taped version ("DVD version" would be more accurate). The teaching professor appears as a giant Wizard of Oz head on the projector screen.

We started with Evidence; here's a highlight from our professor while discussing the use of a document to jog the witness's memory on the stand:

"Lawyers call this 'refreshing the witness's recollection.' Lay persons call this 'bullshit.'"

Also, here's a selection of the emailed thoughts of some attorney friends of mine, on studying for the bar:

"It really isn’t that bad. Bar summer is A LOT easier than actually practicing law at a firm – I can tell you that for shit sure."

"It's a terrible, stressful experience, but I do think that it prepares you well for the bar. In short, taking Barbri sucks so that taking the bar doesn't have to."

"Barbri isn't all that bad – just a bit mind-numbing. Don't spend too much time studying."

"Just stay awake and you'll do great."

I take the bar July 29-31.

Non-Acrimonious Acronyms

Graduated! These three years went by quickly, but still, I feel like a different person. When I think back to who I was when I started, it feels like a long time ago. The timing is right for me - I wasn't sick of school, but I was tired of it, and I'm ready to move on to something different. I'm excited to start working, but first: the bar...

I did PMBR last week - Preliminary Multistate Bar Review. (My boyfriend: "Isn't 'multistate' two words? Shouldn't it be PMSBR?" MS Word: it's one word. Firefox: it's two words. I've heard of PMBR for three years but I didn't know what it stood for until last week.) I took the 6-day review. PMBR gets you ready for the multistate bar, which is one day of testing the same for all law students nationally. For PMBR, in the morning you take a 50-question exam on one of the 6 subjects (Con Law, Evidence, Crim, etc.). In the afternoon, the instructor goes over the answers.

It's kinda crazy having all that law from 1L year come bubbling to the surface (fee simple subject to condition subsequent? A Terry stop? Seriously?).

But really, it wasn't so bad at all. You've forgotten a lot of things, but at times it's amazing what your brain dredges up. No point in getting freaked out, because that won't help. Better to be cool.

Next week: Barbri. Just don't ask me what that stands for.

Bay Area Blawgers 3.0

Sadly, I'll be out of town for the 3rd Bay Area Blogger's meetup. But the invitation is open to others:

The High Tech Law Institute at Santa Clara University School of Law is pleased to sponsor Bay Area Blawgers 3.0, the third gathering of legal bloggers in the Bay Area and friends. This time we're thrilled to co-host the event with the Berkeley Center for Law & Technology at the UC Berkeley Law School. As we have done in the past, we'll spend about 1 hour of our time in a structured discussion, with the balance of our time for informal chit-chatting. The details:
When: May 20, 6-8 pm
Where: Goldberg Room, UC Berkeley Law School. Directions and parking.
Who: Everyone is welcome, but this event principally will cater to active legal bloggers. Bloggers and friends who have said they plan to attend include: Tsan Abrahamson, Robert Barr, Eli Edwards, Cathy Gellis, Eric Goldman, Beth Grimm, Kimberly A. Kralowec, Ethan Leib, Cathy Moran, Dana Nguyen, Aaron Perzanowski, Elizabeth Pianca, Mark Radcliffe, Jason Schultz, John Steele, Kevin Underhill and J. Craig Williams. (This list will be updated as new blawgers and friends RSVP).
Cost: Admission is free.
CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.
RSVPs: RSVP to Eric Goldman (egoldman@gmail.com).
Some background materials:
* Announcements of Bay Area Blawgers 1.0 and 2.0.
* Recap of the first gathering
* Photos from the second gathering at Fenwick & West's San Francisco office. More photos.
* List of possible discussion issues
* Census of Bay Area Blawgers

Who Knew?

From a CALI exercise: someone can be your stand-in at your marriage.

Occam's Razor

Wednesday I had my last law school class, a Corporations pseudo-review session. (My professor: "I don't want this turning into a pop-quiz of the professor. Don't go asking me for the elements of the Business Judgment Rule.")

A week from today is my Corporations final, my only one. (I also have a paper due in another class, but all it needs is a polishing.) When I was a 2L a 3L friend advised me wisely to take as few exams as humanly possible in the last semester. I'm reading an Emmanuel's supplement and taking CALI exercises online.

Also, I cashed in my Westlaw points! (Westlaw and Lexis are the legal databases. Students are granted free access and opportunities to earn "points" that cumulate throughout law school. Reminder: they expire 30 days after you graduate!) I chose a 10-blade kitchen knife set (about 3000 of my 4000 points).

I guess you get what you pay for: it only had 9 knives.

Moral Teasers

You've seen it before: the folks at PMBR, or student groups in the promenade, sitting there behind a table with a bowl of candy. Reese's Peanut Butter Cups, Nerds, Starburst two-packs. You have zero interest in whatever they're offering you, other than the candy of course, in which you have an immense interest.

I hate this moral dilemma! Do you:
1. Feign interest and listen to their pitch as you take a piece of candy,
2. Grab the candy openly and shamelessly and walk away,
3. Wait till they're not looking and snag some candy as you slip by, or
4. Give them apologetic, questioning eyes and take the candy with your head down.

I hate this dilemma so much that I usually suffer through the last option, which is: not take any candy at all. Such a tease!

Frankly...

My Corporations professor, after a reading assignment on shareholder distributions (dividends and selective repurchases):

“If anyone had fun doing tonight’s reading, please see me after class." He paused. "There are therapies for that.”

Short-Form Mergers

My Corporations professor, an adjunct - he's an Antitrust partner at a firm - was recently offered a permanent position to teach the course. Last week he admitted he was horrified to learn that we law students refer to the class as "Corps."

"I know this class isn't as exciting as some others, but really guys - we have come up with something better than that!"

The amusing part to me was that he didn't know we called it that! I've known it as "Corps" from my first year, and I assume the reference is passed down every year. (Other examples: Civ Pro for Civil Procedure, Crim for Criminal Law.) As weird as it may sound, I don't actually think there are negative connotations.

I mean really, how else are you gonna abbreviate it?

Like a Phoenix

The oft-repeated summary of life in law school:

1st year: Scared to death
2nd year: Worked to death
3rd year: Bored to death

P2P, Renewed

I would be remiss if I failed to mention the recent news in net neutrality. Comcast has agreed to work with BitTorrent, the P2P megasource, and to begin ceasing discriminating against BitTorrent traffic. I credit the pressure from the FCC investigation and the overwhelming business sense: P2P is becoming a vital way to transfer video legally.

In other news, Warner Music is exploring subscription-based music downloading on the ISP end, the idea of the Electronic Frontier Foundation's Fred von Lohman, which I stumbled on almost exactly a year ago. Jim Griffin, who's heading the project at Warner, "forecasts that such ISP add-on fees could generate as much as $20 billion annually to distribute between artists and copyright holders."

Sun, Light

Last week the GC/VP of Sun Microsystems Mike Dillon came for a Q&A as part of an event my student group hosted. He was fantastic, and he has a (Sun-endorsed) blog! Here's an excerpt from a post I particularly enjoyed on recommendations for life as in-house counsel:

Always be the calmest person in the room. Too often attorneys inflame a stressful business situation, rather than providing calm and dispassionate counsel. In this regard, a quote from former U.S. President, Woodrow Wilson is one of my favorites: "One cool judgment is worth a thousand hasty counsels. The thing to be supplied is light, not heat."

A Step Before Running

My last Spring Break! Probably for ever. I went to Vegas (for a friend's wedding) and on a road trip to Big Sur and Santa Barbara. I focused on total abandonment of reality, which was largely successful except for a panicked moment at the hotel to register to take the Bar. You register as a 1L, so this was choosing my test center. The nearest is in Oakland; the San Francisco test center is written-only (Oakland allows laptops). Don't even get me started on the absurdity of that.

For the record, my panic was over whether I was going to be forced to truck it out to San Mateo (my second choice), not about taking the Bar itself.

The Bar is just too extensive for a small and immediate emotion like panic.

 

Bar Smarts

I was reading my Legal Drafting notes this afternoon when I noticed an amusing slip. Our prof had advised us we should never bring any outside knowledge into the performance part of the bar exam. You only want to work within the closed universe the testers provide. My notes read:

"Don't be creative. Don't bring in actual knowledge."

Checking Up

I've been contacted by former employers in the past week about my moral character evaluation. I haven't received word from any of my personal references, but if anyone is wondering, apparently they at least check up with former employers. (California requires attorneys-to-be to fill out a 37 page application with questions like, 'List every address you've lived at for the past 8 years.' The fee is $431.)

This got me thinking about the first legal job I had as a legal assistant after college. I was working for a solo practitioner in medical malpractice. After one deposition, my boss lamented that he still hadn't figured a way to prove the doctor at issue had a continuous doctor-patient relationship with our client. I tentatively suggested the "It's Time For Your Checkup" postcards our client had received. My boss reacted with excitement and delight over this simple and obvious answer. At that moment I decided I had what it takes to be a lawyer.

How naive!

Post Symposium

Our Symposium on Net Neutrality was a success! You can find live-blogged details here by my co-writer on Webbed Footprint. We'll be posting the recorded event on our website soon as a podcast. Thanks to everyone who attended in person and online!

I'm still recovering from the energy expenditure of hosting this incredible event, and the subsequent celebratory debauchery. I did get to hang out with this cool guy, however:

 

No Immunity

UPDATE: This photo appeared on Boing Boing!

 

From the Electronic Frontier Foundation's Legal Director Cindy Cohn:

We're asking folks to take a picture of themselves with a sign that
says something like: "Stop the Spying - No Telecom Immunity" and
indicating their city and state. They can also do a short video. We'd
like them to email the photo or video to us and we'll post them on
our StoptheSpying.org website and a corresponding Flickr website
we've set up with tagging, etc. We'd like folks to be creative
(include babies, different settings, etc), but respectful too. When
we get enough, we're hoping to convey them to Congress in some
fashion. I'm hoping to get enough to put together a collection of
them on a big poster board that Senator Dodd and others can use on
the Senate Floor but we may not have time.

Send an email to photo@stopthespying.org!
EFF info

Legal Posturing

I'm currently taking a course called Legal Drafting. Every other week we take a three-hour exam from real Bar exams. They consist of the Performance Exam section of the Bar. You're given an assignment (write a memo, an appellate brief, etc.) called a task memo. You're provided with two stapled packets: a Library of cases and statutes, and a File, consisting of lower court briefs, deposition testimony, etc.

Our professor instructed us on the first thing we should do when we get the exam: tear off the task memo sheet.

"Why, you ask, should you tear off the task memo?" He demonstrated with a powerful flourish the ideal motion. "First, because it will help you avoid 'mission creep.' Mission creep is when you lose track of the assignment. Secondly, you should tear off the task memo because it will freak the hell out of everyone around you."

Well Fed

My Corporations professor discussed agency on the first day of class. He proposed a hypothetical where his assistant (he works at a firm) bought lunch for a meeting and paid with a firm credit card that she'd been told specifically never to use for that purpose. The firm eats the food and then refuses to pay the bill. The question was whether his assistant was an agent of the firm such that the firm could be held liable for the lunch.

My prof asked, "So, will I have to pay for the lunch?" He let us marinate on it a moment and then said with a smirk, "You know I’m gonna have to. Because there’s no such thing as a free lunch."

Network Neutrality Symposium

Do you live in the Bay Area? Would love for you to attend my student group's symposium! Anyone who comes and tells me they read it on my blog gets a special surprise gift...

Net Neutrality refers to free access to the Internet without discrimination based upon content, how often a user accesses the Internet, or the type of services and programs used.

The University of San Francisco School of Law Intellectual Property Law Bulletin is sponsoring The Toll Roads: The Legal and Political Debate Over Network Neutrality, a symposium to increase awareness about network neutrality, bringing together lawyers, academics, economists, and technologists for a balanced debate on the issue. Panelists include Tim Wu, Richard Clarke, Lawrence Spiwak, and many others.

When: January 26th, 2008 8 AM - 7 PM
Where: Fromm Institute on the University of San Francisco main campus
Web: http://www.netneutrality2008.org
Cost: Professionals (6.0 Units MCLE Credit): $100
Non-professionals: Free - $75 (see registration page for details)
Register: http://www.netneutrality2008.org/Registration.html

(And with this I'm officially outing my school on this blog.)

Stasis

Predictably enough, after five days of vacation-stasis I'm bored out of my mind. The lack of activity makes me anxious because I feel like I should be doing something, and I'm not. I already restored my habitat: cleaned my apartment, took out the recycling, watered my poor plants, caught up with neglected friends. What do I do with myself?

I decided to write a paper. In the hopes of getting it published. I figure this will be the last moment for a while that I'll have the time to write something academic. And all the attorney bios I've read list (at least one) published work!

Next week I'm vacationing to Maui; if I'm gonna write this paper I'll be challenging (again) the age-old rule that You Can't Get Any Work Done on the Beach.

Cheating

I confess I've been cheating on this blog with another blog!

I co-launched a new blog with a friend of mine. It's about the nuances of social interactions online. For example, I (as "Sansserif") posted on the differences between "LOL" and "haha!" during an IM conversation. My co-blogger ("Youareyou") has written on such topics as the irrationality of a new Facebook group called Six Degrees of Separation.

Here it is if you'd like to check it out: Webbed Footprint.

CC Birthday

A few photos of Larry Lessig from the CC birthday last night:

 
 
 

Yes, he did show up in person!

Happy Birthday Creative Commons

I'm off tonight to celebrate the 5th birthday of Creative Commons, Larry Lessig's brainchild that offers an alternative method of copyrighting creative works. Instead of "all rights reserved," it provides licenses requiring attribution, or non-commercial use, etc. (My blog is CC licensed, and Flickr lets you CC license your photos.)

Last year a friend and I were sorely disappointed when Larry appeared only as his avatar on Second Life. This year I'm hoping he'll actually show, since he's definitely in the area. I heard from a friend's girlfriend that his Contracts final at Stanford was so brutal he brought his students muffins.

Muffins aren't going to ease my disappointment if he doesn't make it again this year. Although I guess free alcohol might...

Double Check Mate

Another set of finals completed! I have no idea what I was thinking, setting myself up with four finals my 3L year. Actually I do know what I was thinking: I wanted to take more IP classes because I love IP and because I figured there wouldn't be much to learn. Next semester I got smart: I'll only have one final.

A final thought on multiple choice exams. There are some people who refuse to go over their answers because they're afraid they'll change an answer; they trust their first instinct. I always force myself to go over as many questions as I can (for this exam, consisting of 100 MCs, I had exactly enough time to review them all). This requires great will power, especially when it's your last exam of the semester and only about three people are still taking the exam by the end of the 2 and a half hours.

I almost always end up keeping the same answer on the questions I marked as 'questionable.' This last exam I changed a few other answers, however. One question followed several others about survival and wrongful death actions. It involved a 6 year old child whose mother had been in a coma for 2 months. What could the child collect for?
A. Lost support
B. Emotional distress
C. Mother's wages
D. Nothing.

The first time through I chose A, as in a wrongful death action. The second time around I realized: the mother wasn't dead, so the child couldn't collect anything.

Catching this one little trick made the entire agonizing review worthwhile.

The Night Shift

It's pretty well accepted that sleep is good for learning. (As previously discussed by me.)

Last night I had my first final in Sports Law. Every semester I have post exam stress disorder, most frequently in the form of dreams, as I've described here and here. I felt pretty excellent coming out of this final, and there was very little anxiety over it.

Nevertheless, last night I distinctly remember being in a quasi-sleeping/dreamlike state: I was rehearsing the names of cases from Sports Law and reviewing what they held. To me this represents direct evidence of my brain at work while I sleep! Amazing!

The best part is that I half-woke from this midnight review and, aware of what I was doing, promptly scolded myself: 'That final is over! No need to learn those cases, kid.'

Out of Line

What is up with some of these outlines? Granted, I'm pretty concise in my note taking - I'm no Transcriber. The most pages of notes I have this semester (not the most attentive semester of my law school career I admit) is 65 pages for Remedies. Some of my other classes have half that. That includes my dorky briefs for every case in the reading plus class notes.

Some of these kids have 70 page outlines! A friend said it best: can you really call that an outline?

My outlines have never been real favorites; my Remedies outline is only 19 pages. I've been accused of being "cryptic," but jeez, I try to keep my outlines within the boundaries of my attention span.

Ethical

The November MPRE (Multi-state Professional Responsibility Exam) scores were released today. Yes, I passed. Getting my score was a pretty intense experience though! My heart rate was up, hands shaking a bit. I can only imagine what it must feel like to check whether you passed the bar.

The experience was a bit confounding because the PDF lists your score...but not whether you passed. So you're all jacked up and Adobe opens up and the document pops up...and you're like, 'Wait, did I pass or what?' You're looking for big block letters, "PASSED," y'know?

Passing score in CA is 79. (Next year it will be 86.)

Penultimate Finals

Finals, nigh! I'm working hard and playing hard; balance is key. I've said it before and I'll say it again: reading period rocks. No class, the opportunity to narrow your focus onto one thing to the exclusion of everything else in your life...how often do we get the chance to do that? Clearly I'm a 3L, right? Already waxing nostalgic for this sweet academic life...

I would like to congratulate a very good (retired) blogger friend of mine LawyerLike on his recent bar passage! (Those crazy Canadians have a bizarrely rational system whereby they take a multiple choice test and then work for 9 months before being born again as lawyers. On the other hand, they have to call the judge "my lord.")

Good luck to everyone on finals!

Cat Fights

Exxon was sued at one point by Kellogg's, the cereal company, for trademark infringement. The mark at issue was Exxon's tiger vs. Tony the Tiger ("...the taste of Tony's Frosted Flakes...").

I really enjoyed the way Exxon's artist described the evolution of the tiger following the Exxon Valdez oil spill:

"Today's tiger is now cast in a more humanitarian role. He is polite to the elderly,* plants trees for ecology and has an overall concern for the environment."

Even better, however, is the asterisked footnote from the editors:
*"It is unclear if Exxon's tiger was rude to the elderly prior to this time --Eds."


Kellogg Co. v. Exxon Corp., 209 F.3d 562 (6th Cir. 2000).

High[Altitude]Tech

I traveled about half an hour outside of San Francisco yesterday for a hike in Muir Woods to a quasi-German Beer House. Surrounded by the bird song and the fresh air, with an amazing view, a friend and I found ourselves sitting at a picnic table...playing with his iPhone. I investigated its features for about 10 minutes before we caught ourselves, laughing at the irony.

So we lifted up the iPhone and took a picture of the setting sun.

 

Disease and Confession

Finals in about three weeks! I've been outlining all semester, but in a very lackadaisical way. Everyone talks about 3L-itis, or whatever you wanna call it. Whatever it is, I have it. I think it's exacerbated by the fact that by this point in the game, studying doesn't require as much effort. You just figure out how to do it efficiently and you spend so much less time doing it.

Same with reading, although I have a confession: I still brief the cases in my notes when I read for class. Embarrassingly dorky! They say by 2L year all you do is book-brief - take notes in the margins of the text and underline. The other day I had this scary thought: what if, when I get into law practice, I can't understand the cases I read without briefing them?? An argument in favor of book-briefing...?

The bar results have come out; everyone I know personally passed. My Facebook is bursting at the seams with congratulations. My school has had nearly 100% passage rate for the top 20% for years. In one year I will be an attorney.

On Billables

An attorney friend of mine:

"I make the same mistake with billing as I do with dieting. I tell myself, 'I'll make it up tomorrow,' but you never do."

What's Shakin'?

I failed to mention an entertaining moment in Sports Law last week. As you know, if you're in the Bay Area, we had a big, juicy earthquake around 8 pm last Tues.

I was in class, where we had a guest lecturer talking about NCAA rules. When the quaking began we all looked at each other and started murmuring, questioning whether it was a quake. At first it felt like the rumbling when you walk along a highway bridge-overpass, with large trucks speeding past, and then it increased to a back-and-forth shaking.

This quake was interesting because it was fairly prolonged; you had to time to process the movement, question it, acknowledge it, marvel at it, and then start to get nervous! We immediately checked the quake map link on Craig's List, and moments later it appeared as a 5.6. (The largest I've experienced in my two years here.)

Naturally, the guest lecturer continued her speech unfazed once the shaking ceased.

A Stupid Game

I enjoyed parts of an article from Reuters on PirateBay, the Swedish P2P downloading website. In May of last year the MPAA claimed victory over Pirate Bay after Swedish authorities confiscated the site's computers, but PirateBay was up again three days later.

"Sweden is not a state in the United States," says one. "It is the opinion of us and our lawyers that you are ... morons."

***

Pirate Bay also wants to raise $50,000 to buy an island and create its own nation-state where piracy would be legal. So far it has about $20,000, Sunde said.

Its three founders face criminal charges related to piracy, but they're not worried because the stiffest sentence they could get in Sweden if found guilty is a $300 fine, Sunde said.

"I don't believe what we are doing is a crime," he said. "It is a stupid game," he added, referring to the legal proceedings.

You Don't Say

Bill Patry describes a study conducted by the Canadian government on his blog that indicates that P2P downloading actually increases the purchase of music:

"Our review of existing econometric studies suggests that P2P file-sharing tends to decrease music purchasing. However, we find the opposite, namely that P2P file-sharing tends to increase rather than decrease music purchasing."

"We find evidence that purchases of other forms of entertainment such as cinema and concert tickets, and video games tend to increase with music purchases."

Lathering Up

Two affiliated branches of the Lever soap company sued the US for failing to prevent the soap made in the UK from getting into the US. Apparently the soap was made slightly differently in the UK as it was in the US: the UK brand didn't lather as well.
The court explained:

"The manufacturing choice evidently arises in part out of the British preference for baths, which permit time for lather to develop, as opposed to a US preference for showers."

Lever Bros. Co. v. U.S., 877 F2d 101 (1989).

Is that true??

University of Oregon Resists the RIAA

The University of Oregon became the first University to challenge RIAA subpoenas seeking the identity of file sharers on the network as Recording Industry vs. The People describes.

The only way to really challenge a simple subpoena is by saying it's burdensome and over broad. Accordingly, the University's motion to quash says, "The University cannot determine whether the content in question was accessed by one occupant as opposed to another, or whether it was accessed instead by a visitor." The motion argues that interviews and forensic investigation would be necessary, thereby burdening the university.

In an interesting twist, Oregon's Attorney General Hardy Myers is representing the University, apparently the first time a State AG has done so. (The last Oregon AG became governor.)

I don't see it being very successful - there are only 17 names, and dozens of other universities have been able to do it - but I think it's a good thing to check the RIAA, and to force them to, well, tighten up their game. In the same way, counterclaims by incorrectly named defendants forces the RIAA to use greater care in pointing fingers.

More to the point, the AG's motion notes that they are not required to create these records, as opposed to produce them. This reminds me of the TorrentSpy case, where a federal district court judge "ordered the company to begin saving their logs since the company's servers 'save' the logs in RAM memory for about 6 hours before the info is tossed or overwritten. Essentially the magistrate judge Jacqueline Chooljian of California's Central District is ordering the company to hold onto information it normally decided to toss as part of its privacy policy promises to its users." (from Wired.)

Barack on Net Neutrality

This I like, from BNA Internet Law News:

NET NEUTRALITY BECOMING A PRESIDENTIAL ISSUE
If elected president, Barack Obama plans to prioritize
barring broadband providers like AT&T and Comcast from
prioritizing Internet content. Affixing his signature to
federal Net neutrality rules would be high on the list
during his first year in the Oval Office, the junior senator
from Illinois said during an interactive forum Monday
afternoon with the popular contender put on by MTV and
MySpace at Coe College in Iowa.
http://www.news.com/8301-10784_3-9806707-7.html

Direct Deposit of an Intern Salary

Next semester I'm interning for a start-up company, but my friend/boss asked me to do some research for him now. I agreed as I'm ravenous for the experience.

The due date approached on my work, but he gave me more time to complete it. A series of email exchanges:

Me: "Thanks for the extra time. This statute is ridiculous. You realize there's only about 5 people in this country who understand it? And I'm not one of them...yet."

Him: "For sure. When I was at [XYZ major law firm] and I had a hairy problem, I'd always remind myself that my clients weren't paying me [high hourly rate] to figure out the easy stuff!"

Me: "Point taken, I totally agree. So, how 'bout that [high hourly rate]? Direct deposit works for me."

On a related note, the other day I noticed, for the first time, this amusing verbal play: up-start vs. start-up. Depending on how well it does...

Go on...

I'd like to welcome a friend and classmate of mine to the world of blawging:

www.onetakestwo.blogspot.com.

Go on, give him a hit!

Truly Consensual

Notes from my Legal Ethics text...

The Model Rules of Professional Conduct have loosened a bit on allowing spouses to represent opposing clients (a prohibition now allows clients to give informed consent). One reason given is that approximately half of new entrants to the bar are women, and half of female practitioners are married to attorneys!

In 1992, California became the first state to establish a rule against attorney-client sexual relationships. The ABA has since adopted a similar rule, and the comments argue that the client's emotional involvement prevents them from giving informed consent to this combination of sex with a professional relationship. The text editors ask, "Does it follow that only emotionless sex is truly consensual?"

Deborah L. Rhode and & David Luban, Legal Ethics, 4th ed. (2004).

You learn something every day...

Booty: property necessary and indispensable for the conduct of war (eg, food, transportation, communication)

Pillage, or plunder: the taking of private property not necessary for the immediate prosecution of the war effort (eg, Marc Chagall painting taken by the Nazis).

Menzel v. List, 49 Misc. 2d 300 (NY 1966).

The plaintiffs fled their home ahead of the Nazis. The weird part is that when they returned 6 years later, the German authorities had left a receipt for the painting.

In the end, the plaintiff got her painting back, and the gallery got the present value of the work ($22,500) from the person from whom they'd bought the painting (for $4,000).

Why blog?

Why law students should start a blog.

Update:
The link above is aimed at law students thinking about solo practice, but it's still relevant. Also, I should add that when I was interviewing for my firm, I heard through the grapevine that a partner expressed pleasure upon hearing that I had a law blog! Granted, my firm is an IP boutique in Silicon Valley with (probably) less fearful views of the internet, but still.

So go for it.

McMark

For Trademarks, we read a case about a hotel chain that created a "McSleep" brand of hotels, and was subsequently sued by McDonald's for infringement. The court found a likelihood of confusion by customers, who would believe that McDonald's was affiliated with the chain.

In the notes following the case, the text editors got a laugh out of me when they considered the relatedness of the products: fast food versus hotels. They wrote, "No one who would have booked a night at a McSleep Inn would have slept on the floor of the local McDonald's restaurant but for the confusion." (This is true, but I think the point is that McSleep is capitalizing on McDonald's good will.)

Later, the editors note that McDonald's has since created some hotels in Switzerland; the travel brochures describe it: "Each room is feng shui-influenced and designed in subtly matched colors creating a soothing atmosphere." The editors add wryly, "Presumably that means no large portraits of Ronald McDonald over the beds."

10 Reasons You Raise Your Hand in Class

Prof has a seating chart and makes mysterious marks on it when she calls on you.

You only read one case from the assignment, so you need to strike preemptively.

You didn't read any of the cases from the assignment, and Prof just asked the "Do you guys think that's fair?" question.

Prof has been begging someone to answer the question for more than 60 seconds, and he's a likable guy.

Prof has been begging someone to answer the question for more than 60 seconds, and he's getting pissed off.

If you don't answer a question, you'll nod off.

Everyone around you raised their hands, so you have to assume that Prof just asked a survey question (eg, "How many people think...?").

You had a few beers for Happy Hour before class.

The buddy sitting next to you just got cold called, and you owe him one.

You're a 2L.

Bay Area Blawgers Unite

The High Tech Law Institute at Santa Clara Law School and Six Apart are pleased to announce Bay Area Blawgers 2.0, the second gathering of legal bloggers in the Bay Area. See a recap of the first gathering. This time, we'll spend an hour in a structured discussion starting around 6:15 (see some possible discussion topics). We'll spend the rest of the time schmoozing/chit-chatting.

When: November 5, 6-8 pm.

Where: San Francisco office of Fenwick & West, 555 California Street, 12th Floor, San Francisco, CA. Directions.

Who: Everyone is welcome, but this event principally will cater to active legal bloggers. People who have indicated they plan to attend: Tsan Abrahamson, Harry Boadwee, Robert Eisenbach, Sujatha Ganesan, Cathy Gellis, Eric Goldman, Beth Grimm, Chris Hoofnagle, Kimberly Kralowec, Ethan Leib, Susan Nevelow Mart, Deborah Neville, Dana Nguyen, Bruce Nye, Jay Parkhill, Aaron Perzanowski, Jason Schultz, Peter Smith, Chris Vail, Colette Vogele and Fred von Lohmann

Cost: Admission is free, but parking is not!

CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

RSVPs: RSVP are ESSENTIAL for this event because of security procedures at 555 California Street. RSVP to Eric Goldman ( egoldman@gmail.com ).

RIAA Subpoenas

What does it mean when the RIAA sends subpoenas to a University?

Here's a rundown from www.p2pnet.net.

"That a subpoena has been sent out doesn’t mean the person on the receiving end will act on it and indeed, increasing numbers of academics in the US are protesting as the labels continue to seriously disrupt classes and lessons by firing these documents at students, and by coercing school staffs into passing on the extortionate ’settlement’ letters to those whom they’re supposed to be teaching, not intimidating."

"Because the RIAA does not know the names behind the IP addresses, the letters ask the universities to deliver the notices to the proper students, rather than relying upon the ordinary legal mechanisms," says Charles Nessor, William F. Weld professor of law, Harvard Law School.

As p2pnet also reports, "By itself an IP number on a packet has only suggestive value and is not reliable evidence at all," says University of Chicago professor Mike O’Donnell.

RIAA, 1; Individual, 0

As I'm sure people have heard, the first of 26,000 law suits by the RIAA against individuals has come to a jury verdict: RIAA, 1; Individual, 0.

The jury awarded $220,000, or $9250 per song for 24 songs.

Most of the time, the RIAA convinces these individuals to settle, usually for around $3000. Jammie Thomas, this defendant, defended on the ground that the Kazaa account wasn't hers; in fact, that she didn't even have an account. Interestingly, she was convicted of making files available in a shared folder, not of actually copying them.

It's important to remember that other cases, which didn't got to a jury, have come out in favor of the individuals.

Digital Media Wire reported music company CEO Terry McBride as saying, “I bet the RIAA is going ‘yes, yes, yes,’ but I’m like ‘no!’ You can’t sue your fans one day and then ask them to come to a concert the next day. A lot of these copyright lawsuits are done in the name of the artist (by the record labels), but the artists don’t want that (kind of relationship with their fans).”

But I'm not entirely convinced; what does the RIAA have to lose? Do fans really associate the RIAA as the strong arm of their artists? I think the RIAA has taken on an identity of its own, alienated from both fans and artists. As the Electronic Frontier Foundation notes, "Millions have been paid to the RIAA, with no sign that a penny of that money has gone into the pockets of artists."

I think it's possible that the defense lawyers in these cases will eventually start winning, once they figure out the best way to try these cases in front of juries, similar to the turn of the tides in the tobacco litigation suits. From my brief and unscientific perusal of the news, Jammie Thomas has been martyred, and I think that indicates something about public opinion on P2P file sharing.

Church and State

California Maxims of Jurisprudence, on equity, seem quasi-religious to me:

Sec. 3512: One must not change his purpose the injury of another.

Sec. 3518: He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession. [OJ was thinking of this one.]

Sec. 3520: No one should suffer by the act of another. [Do unto others....]

Sec. 3527 The laws helps the vigilant, before those who sleep on their rights. [God helps those....]

[This one, however, contradicts religion, I believe.]
Sec. 3530: That which does not appear to exist is to be regarded as if it did not exist.

Coffee

Dozing during court has become such a common occurrence that some jurisdictions use a three-step analysis to determine whether sleeping constitutes ineffective assistance of counsel:

1. Did counsel sleep for repeated and/or prolonged lapses?
2. Was counsel actually unconscious?
3. Were the defendant's interests at stake while counsel was asleep?

Chastity and Javelins

Some amusing notes from my Sports Law text:

Slandered athletes must prove actual damages, except in four situations that engender liability per se: accusations regarding 1) crimes, 2) loathsome diseases, 3) adverse affect on business, and 4) unchastity to a woman.

"Spectators run the risk of injury while observing a sports event. Spectator injuries can occur from foul balls, errant pucks, thrown bats, clumsy fullbacks, misthrown javelins, and so on."

Great imagery!

RIAA in Town

The RIAA has issued a subpoena to obtain the identity of students at the University of San Francisco.

Link to the Order

Other People's Money

Video of a project for Ethics class. A demonstration of the "Glass Table Method," used in the OPM case for forging the signatures on computer leases. (Starring my classmates, camerawork by me.)

Interview with a Band

My best friend on the East Coast got me on the backstage pass/guest list of my all-time favorite group of musicians: Medeski, Martin, and Wood with John Scofield, an avant guard jazz group that probably falls under the genre of jam band, playing with an old jazz legend.

I've never been backstage at the Fillmore, and I was excited to the point of nervous! I didn't want to be starstruck if I did get to meet them.

So yesterday afternoon I went online and started researching their tour, their most recent news, etc. I called a few friends to find out what the backstage scene at the Fillmore is like, and where our passes would take us. About halfway through this process, I realized, to my chagrin, that I was 'studying' for this show like I'd study for a law firm interview!

The show was fantastic. I got to rub elbows with the band in the backstage room at the set break and after the show. Unfortunately the Fillmore is cracking down these days on photography (maybe due to the Bill Graham Archives lawsuit) and made me check my camera. However, I did accomplish this, which more than made up for it! (Click to maximize.)

 

Their most recent album cover, signed by the whole band!

Team

Yesterday in Sports Law I noticed with amusement that my professor (a football buff) referred to the class sign-in sheet as "the roster."

Uncertain Security

There's this weird phenomenon that goes on in the law school library. No, I'm not referring to studying. I'm talking about laptop-watching. You're sitting at a table with a complete stranger; this person is clearly a fellow law student, but you've never seen her before in your life. As she gets up to go to the bathroom, she says, "Would you mind watching my stuff?" And you smile, nod affirmatively, and then dutifully keep half an eyeball on her laptop.

Every time I do this (and I've been on the other side too), I shake my head. Why would a stranger care about your stuff? But personally, I can't help myself: if someone puts her most valuable possession under my watch, I gotta respect that responsibility.

Calling Shotgun

Was watching Seinfeld the other day, and Jerry was doing a skit on 'if the legal world obeyed the rules of children.' When you're a kid, all you have to do is call it.

"Your Honor, my client got there first."
"And did he call it?"
"Well, no, your Honor but-"
"If he didn't call it, that's it. Case closed."

In Trademark class, we were discussing the way you can reserve a mark by filing an Intent to Use application, which holds a mark for a period of time while the company develops the product. To obtain the mark, the company must subsequently use the mark in commerce. My professor noted that it doesn't matter if someone else uses the mark before the ITU turns into a mark registration. I got a laugh when he said:

"An ITU application is like saying, 'You can't use this mark. I called it.'"

[Later]: And isn't that what Locke was all about? "First in time equals first in right."

Home Field Disadvantage

During my Art Law class today, my professor put a PowerPoint slide up with two photographs. A magazine had commissioned a photographer to take a photo of a famous basketball player. The magazine and the artist couldn't come to an agreement, so the magazine found another photographer to take a remarkably similar shot.

As my professor put the slide up, he admitted he was embarrassed, but that he couldn't remember who the basketball player was.
"Does anyone know who this is?" He asked.

Silence from a classroom of about 30 kids.

"This is a law school Art Law class..." someone noted.

A Few Comments

About my interview process...

There are 4 things I was never asked:

- Why I wasn't on Law Review.
- Why I've never worked at a big law firm, even though I'm a 3L.
- What my weaknesses are.
- Where I want to be in 5 years.

Here's a few random pieces of advice:
Read this classic book: Guerrilla Tactics for Getting the Legal Job of Your Dreams. It's embarrassingly cheesy, but the info is great. Just reading it will give you confidence and make you feel prepared.

Solicit 30 minute phone conversations from alumni at other firms. Ask them the questions you would get asked if you got an interview, or pieces of information you could put in a cover letter. For example: What do you think is different about your firm? Why did you choose it? Your last question should always be: Do you know anyone else you think it would be good to talk to? Keep the network chain going.

Get in contact with an associate at the firm you want to work for. Cold-email them asking for a phone convo if you have to. If you click with them, they can become your greatest asset and ally at the firm. Plus, the firm will find out; it demonstrates your legit interest.

I talked with a ton of people...every one of them was kind and helpful and gave me at least one piece of incredible advice. You just never know what valuable info you're going to get, which is why you should talk to as many people as possible. And it gets you in the practice of giving your pitch in a professional and smooth way - what area of law you're interested in, your background, etc.

News

I confess I've been sitting on a piece of news that merits a post. I didn't want to blog on it until it was finalized:

I accepted an offer!

I'm not sure yet whether I should name the firm here, so I'll hold off for now until I figure that out. But I wanted to share the news.

I think this is my dream job. Great people, doing exactly the type of work I want to be doing, for money I didn't have the guts to dream about.

Yahoo!'ing

Here's a list of words that have gone into the public domain via genericide, or the loss of trademark protection by the ubiquitousness of the term. These words were originally trademarks, but they were so successful that they named the product for all time - the danger of a perfect name.

Zipper
Escalator
Thermos
Cellophane
Yo-yo
Linoleum

Some say "Google" is on its way to genericide because of the way it's used as verb for "searching." Personally I think it's safe for now. When I say I'm going to "google" something, I don't use Yahoo! to do it. Do you?

I recall reading (but forget where) about how word processing programs assist in the maintenance of trademarks by auto-format capitalizing the first letter of major brand names. The idea being that a capitalized proper noun is more trademark-y than a regular word. Similarly, if you type "google" in MS Word, it will be red-underlined; the suggested correction is "Google."

Juicing

I got a kick out of this piece from my Sports Law text:

"In sports employment contracts, another unique feature is the concept of "juice." Juice is the ability to write your own ticket based on unique skills or rampant popularity. The more juice a player possesses, the greater [his or her] ability to modify [his or her] employment contract...."

I dig that the authors put that in the book. That's the kind of lingo I wish all my texts included.

But: living in the Bay Area (home to Barry Bonds, of course), I can be forgiven for thinking the authors were going to define the term a bit differently!

Going and Going and Going

I used to use this site, Going.com, but I ended up cancelling my account. They recently hooked me again, ironically using the same technique that made me quit in the first place. (Going.com is an event planning site like Yahoo!'s Upcoming.) They have these sneaky ways of creating an account for you before you realize it.

I deleted my account originally because I was offended by these tricks, and because of the inefficiency they engender. For example, I had multiple accounts with them because I'd forget which email address I used to create the account, and whenever I accidentally entered the wrong email address during login, it created a new account for me. That resulted in the inevitable multiple newsletters, email notifications, etc. (The default settings were, naturally, to receive all newsletters. When I tried to login to change these settings, I couldn't remember which email address I used, and ended up creating more accounts...you see how the cycle would get frustrating.)

So they hooked me this time because they're promoting an event that you can get into for free with an RSVP. To RSVP, you enter your name and email address - which, you guessed it, creates a Going.com account.

However I was pleased to see their privacy settings have improved since I was last a member. (Click the screen shot below). The tiered privacy levels are good, although the default settings are as broad as possible. I particularly like the ability to prevent others from tagging you in photos, and that the default is on a high tier.

For that I'll give them another chance.

 

LOLcat on Freeze Frame

 
This is in reference to a previous post concerning the forthcoming [read: nonexistent] class action suit against Sony for product liability on a model of TV remote controls. Hat-tip to a Canadian.

On an Unrelated Note...

I've been frustrated recently by a text messaging issue. I have an old phone (three years old) of which I'm fond, by virtue of its absolute simplicity (no camera, no internet) and long-lasting battery (2-3 days without a charge). It's a Samsung, and it has survived the tempting trend waves of the Razr and other pop phones.

However I receive text messages from friends with much more sophisticated equipment, PDAs and Blackberries. Uninhibited by the constraints of predictive typing, they send long text messages that surpass my phone's capabilities. As a result, I often get texts in several installments, like chapters. This week I experienced something even more offensive: I received a two-text installment, where the second text was actually the attachment of the original message!

Did I suddenly befriend a cadre of technophiles? Did my friends upgrade phones? Have I been avoiding voice conversations? I'm not sure, but for whatever reason my sent and received texts numbered 250 this month, compared to 80 last month.

I did come to the eventual solution to this problem: time to get a new cell phone.

Hot Chip

This won't come as a surprise to anyone currently in the game, but it's remarkable how hungry Silicon Valley is for patent attorneys right now. Computer Science and Engineering degrees will take you places. Almost every firm coming to our school for On Campus Interviews "prefers" students in the top ten percent, with law review and moot court. However, firms requiring technical degrees prefer students in the top third of their class, with no extracurriculars necessary.

Scan My iTunes, Please, part II

Update on the privacy policy of my new fave site, SonicLiving:

I asked: "What's your policy on the artist/album information you collect (when SL scans a user's iTunes, for example)?"

Answer: "We only track artists (not album info). For the time being when you remove an artist from your Wishlist, the info is permanently erased and no record is retained. In the near future we will begin tracking artists that have been removed so that we don't re-add artists when folks rescan their iTunes/ Pandora/last.Fm."

Hat-tip to a privacy guru who motivated me to find out, and kudos to Elle at SL for her clear and prompt response. My next feedback will ask them to post their policies!

UPDATE: Elle says they are working on getting their policies finalized and posted ASAP.

A Cat's Reasonable Expectation of Privacy

The privacy guru at work had his cat run away this week. He was agitated for several days, flyering the whole neighborhood, complete with maps, with color-coded sectors delineated, and team of co-workers and interns on lunch break. Inevitably, the issue came up of RFID'ing the cat (who, BTW, did not have tags). As a privacy guy, his feelings about RFID's are understandably strong, but when it came to his beloved pet, his response was: "I don't care about my cat's privacy!"

Even more inevitably, the office email thread turned up several amusing links that I'll share here on lost cats:

Cat Has Camera On So We Can See What He Does: Nuff said.

Cat Tracker: "Allows you to easily and remotely monitor the location of your cat via your cell phone/mobile phone anywhere in the world with suitable GSM coverage."

Finally, we interns played a practical joke on this particular attorney when he left for retreat by "breaking into" his office. (We had a key.) One of the interns created this brilliant lolcat for him.

Update: Forgot to mention - he found the cat!

Public Disclosure of Private Tusks

A friend of mine passed on this link from Quizlaw.com about a dentist who played a practical joke on his assistant and was sued for it.

"Meanwhile, the far more entertaining story today involves a dentist who thought it would be hilarious to stick some phony pig’s tusks in his assistant’s mouth while she was under anesthesia. He took the tusks out before his assistant woke up, but he took pictures, which eventually circulated around the office and were given to the assistant during her office birthday party. So, his assistant — who clearly has absolutely no sense of humor — quit her job and sued the dentist."

Check it out to see how the story ends!

Scan My iTunes, Please

A friend of mine introduced me to sonicliving.com, a site that will scan your iTunes and create a calender for you with the dates those artists are playing near you. Privacy issues aside (but who's gonna manually enter 458 artists?), it's brilliant.

I got a kick out of this note, seen while editing my "personal info" preferences:
"We'll never share your personal info, unless you listen to crappy music."

Hot Tub

Nice article from Slate on the 9th Circuit.

"I had a law school professor who referred to California law as "hot tub law"; part of the disdain for the 9th surely derives from national skepticism of all things Left Coast."

And:
"Now let's look at how often the Supreme Court decides that the 9th got it wrong. Last term, the Supreme Court's reversal rate for 9th Circuit cases was 90.5 percent. Yikes—that's huge! But wait, for on-the-merits cases, the Supremes reversed the 3rd and 5th Circuits all of the time last term. Cases from state appellate courts fared no better: They also had a 100 percent reversal rate. Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively."

Very Sick

Researched the recent Fair Housing v. Roommates.com, __ F.3d __ (9th Cir. 2007), 2007 U.S. App. LEXIS 11350 decision today. Roommates.com is a house mate locater based on some criteria that likely violates the Fair Housing Act (allowing users to select whether they would live with children, or soliciting roommates based on race, for example). The issue in this case, however, was whether the website was protected by section 230 of the Communications Decency Act. Section 230 immunizes service providers like websites from liability if they are mere passive conduits for information. (Think search engines.)

In describing the site, Judge Kozinski wrote, "More friendly folks are just looking for someone who will get along with their significant other [FN10] or their most significant Other.[FN11]"

Here is footnote 10:

10 "The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic]."

Priceless.

And, to enable full Kozinski-opinion appreciation, here's FN 11:

11 "We are 3 Christian females who Love our Lord Jesus Christ . . . . We have weekly bible studies and bi-weekly times of fellowship."

UAE Black Boxes

A "whoa!" article about putting black boxes in all cars in the United Arab Emirates. The box "allows satellites to track each and every driver in the UAE and automatically issue speeding and other tickets for the slightest transgression."

Blog Survey

A Ph.D. candidate in sociology at the University of Massachusetts, Amherst is doing a survey on blog privacy.

The privacy terms irked me a bit:

"Your responses will be kept confidential, with any identifying information being disaggregated from survey answers. It is possible that your research record, including sensitive information, may be inspected and/or copied by the study sponsor (and/or its agent) or by federal or state government agencies, in the course of carrying out their duties. If your record is inspected by the study sponsor (and/or its agents), or by any of these agencies, your confidentiality will be maintained to the extent permissible by law."

I'm no expert, but I wish it said our information "will not be disclosed except as required by law."

As to the rest, at least she's honest.

Update: I did the survey. Nothing on it that I worried about the Feds finding out about. ::smile::

Chemerinsky

This Tuesday I jet-set down to LA to hear Erwin Chemerinsky speak for the LA Intellectual Property Law Association. I wanted to hear Erwin, because he's such a rock star in law school academia. (He's also repping Valerie Plame and Joe Wilson in their civil suit against the government.) He identified several trends in the Supreme Court: 1) The extreme decline in the number of cases the Court takes. It's usually around 100, but the decline began with Rehnquist and has dropped to new lows (68 if I recall) under Roberts. 2) The increase in the length of the opinions. One recent case spread to 160 pages. (How, he asked, was a Con Law editor supposed to edit that into a one-day assignment for students?) 3) The rise of Kennedy in the role of the Court. In some 23 5-4 decisions this term, Kennedy was the majority - the 5th vote - in every single one. A historical first.

I was thrilled to chat with Erwin afterwards, too. He's adorable! Bowl haircut like a little boy, the glasses, infinitely sweet and humble. We watched the end of the All Star game together at the hotel bar. He said he very much misses LA, until he gets on the 405.

I also wanted to do some networking, but it didn't work out as well as I planned because I got a stomach virus a few days before. Nauseous, fevered. (I'm pretty sure I did not hallucinate this odd coincidence: In another part of the hotel, I saw the sign for a conference by the Korean-American Pediatric Association on astroviruses gastroenteritis. AKA, the stomach flu.) Being a bit strong-willed I insisted on going anyway.

They seated me at a table with a law firm whose name I immediately forgot in my fevered state. But nevermind; although my image of networking is always of Spiderman shooting a random streamer of webbing, I think the process is more like that of a traditional spider: the slow building of a web, where over time the repeated exposure to the same people connects you.

What's In a Name

While researching, I stumbled across the name of a JD candidate who authored a paper. I wonder about the impact of this surname on business:

[Jane] Lawless.

Worse still, I can imagine the endless comments this poor law student receives...

Your World. Delivered. To the NSA. On the iPhone.

Your World. Delivered. To the NSA. On the iPhone., originally uploaded by lawgeek.

Title says it all...

Pirate Booty

New decision out today from the 9th Circuit, Perfect10 v. Visa. The majority (Judge Kozinski dissented) affirmed a motion to dismiss on claims of secondary copyright infringement (inter alia). Perfect 10 is a website that provides adult photographs, and they have a long history in the courts of attempting to expand contributory liability. In this case, they sued Visa for copyright infringement, claiming that Visa was liable because the company processes payments for copyrighted images stolen from Perfect 10's site. The majority basically found that processing the payments was too attenuated a causal chain to support secondary liability.

Kozinski vigorously dissented, arguing that because payment was essential to the transaction, Visa was materially contributing to the infringement (here the distribution of copyright-infringing works). Or, as he eloquently put it, "If cards don’t process payment, pirates don’t deliver booty."

UPDATE: Experts where I work suggested that Kozinski's dissent was due in large part to the fact that this was a motion to dismiss. There are at least some set of facts that might allow this case to go forward.

Private

On Friday I attended a privacy conference at Boalt. The purpose was to get people on the ground into the same room as people in the ivory tower. However, as one attorney commented privately, "It's everyone telling other people what work to do." I did see that: researchers saying, "We need articles on this," and practitioners saying, "We need studies on that," and still others interjecting, "There's already a study on this, and there's already a paper on that." But if nothing else, it accomplished one thing: everyone was exposed to what everyone else was doing.

Most of the attendees knew 2/3rds of the people there from countless other workshops and were consequently jaded to the whole experience. But I, being young and uninitiated, found it all pretty interesting. Plus there were some names there, people whose law reviews I've cited to or whose names I knew. Eg, I got to meet Dan Solove (yes, I will toss out the short form!).

Some random highlights:
Everyone seemed in agreement over making it a Federal crime to use a social security number as an authenticator. Companies should be able to use it as an identifier (this name matches this information), but they shouldn't be able to use it as proof of authenticity (Eg, prove you are who you say by providing your SSN.) Suggestions: use a combination of personal data to verify one's identity, such as date of birth, mother's maiden name, and previous address.

In a discussion of click-wrap agreements (you download a program and accept all the terms of the contract by clicking "I agree"), I saw that the common terminology "notice and consent" was replaced by "notice and choice." The implication being that the default should be choosing, not agreeing to the terms.

Some lessons from the environmental movement could perhaps be imported into the privacy realm. Eg, privacy impact statements, public shaming of companies, regulation in the form of covenants. But the environmental movement has Al Gore. Privacy needs a celebrity!

DIY Sources

The other day I was working on my draft of an amicus brief. I had to begin by explaining some fundamentals of the internet, such as describing the difference between a static and dynamic IP address (I've changed the facts to protect the innocent). I've read cases where the judge footnoted to a Wikipedia article, so I checked out the Wiki definition of the terms I wanted to use. As it happened, the definitions didn't adequately cover the issue.

What did I do? Naturally, I signed into my Wiki account and edited the entry. Only then did the absurdity of citing to a 'customizable source' hit home.

Needless to say, I didn't use Wikipedia as a source for the brief.

EC-huh?

One of the attorneys where I work asked me the other day if I had taken any classes that dealt with ECPA ("Electronic Communications Privacy Act"). ECPA (usually spoken as "eck-puh") was enacted to extend privacy protections to electronic communication on computers, like the Wiretap Act protects phone calls. The Act is notoriously opaque, so it's difficult to get an intern up to speed on it quickly. I winced when he asked.

"To be honest," I said, "I know enough about it to know that I don't know anything about it."
He visibly brightened and exclaimed: "You do know ECPA!"

Daniel Solove (internet privacy guru who blogs on Concurring Opinions) on ECPA: 72 Geo. Wash L. Rev 1264, 1292-93.
"If one is not willing to study ECPA like a biblical scholar studies the Bible, there is little hope of figuring out ECPA."

And an amusing jab at Orin Kerr (who blogs on The Volokh Conspiracy):
"Kerr, who can probably recite the ECPA by memory, and perhaps even in verse, admits that it its surprisingly difficult to understand."

Grades

All my grades are finally in. I'm pleased; I couldn't be happier. Ok, that's a lie: I would've liked to CALI something. (CALI awards are given to the student with the highest grade in a class.)

A short-statured friend of mine (who, BTW, CALI'd Forensic Evidence), received an A in another class as well. When he told me this, I asked if it was a solid A. He replied, "Yeah, I don't do minuses. Horizontal stripes make me look even shorter."

UPDATE: I CALI'd my Intellectual Property Seminar course.

Happy Birthday Betamax

As a friend of mine informed me, today is the birthday of the Sony Betamax (born 1975), the subject of the infamous landmark case for fair use, Sony v. Universal. I shared this with the IP attorneys here at work via email; one responded:

"Alas, poor Betamax, I knew him, Horatio: a fellow of infinite jest,
of most excellent fancy: he hath borne me on his back a thousand
times..."

Age and Experience

Week two...

I'm enjoying my local underdog status. The other interns are from all over the country, but they uniformly hail from top-tier schools. As in Harvard, Boalt, U Michigan, etc. I do have a significant advantage, which is that I'm going to be a 3L and most of them are 2Ls. I've taken a ridiculous amount of relevant courses. I know what everyone is talking about when they drop DMCA code sections.

I confess some apprehension, however. Maybe I'm supposed to be doing something else, something more 3L-ish? To my readers expressing envy for my cozy work environment, I should add: it's unpaid!

Trademark Parlance

I asked a friend of mine what he was doing tonight. He said he was hanging out with some "non law school friends." (Ouch!)

I don't think of most of my friends as legal or civilian anymore (including the law school friend above, [wink]). But maybe that's because I moved out here knowing no one. I didn't have a preexisting group of people to classify schoolmates against.

But I definitely have friends who evolved beyond the law school arena. I would say they acquired secondary meaning.

On an Unrelated Note...

I learned two tricks in the past two days on my computer, both embarrassingly foundational.

1. In Word: You can move text from one document to another by drag-and-dropping into the minimized window on the task bar. (Instead of cut-and-paste.)

2. In Windows: You can find a program quickly in "All Programs" by typing the name of the program. (Why aren't they alphabetized? Or is that another setting I haven't found?)

Week in Review

I started my internship this week at an organization committed to rights in the online world. A few details:

- In the bathroom, there's a familiar sticker on the toilet, clearly pulled off a laptop: "Designed for Windows XP." (Another one on the bathroom mirror: "You Are Under Surveillance!").

- During meetings, everyone brings their computer (we all work in the office from our personal laptops). People freely work, email, and IM during these conferences. In fact, my work email points to my personal email account, and people send email to the staff email list all day. Nevertheless, it's very hard to suppress the urge to minimize my Gmail window when someone walks by.

- We interns were advised that we can sit in on any meeting going on because they are "open source," although with a "CC license," someone quipped. (Creative Commons).

- Discussions of ordinary life quickly evolve into pertinent legal discussions. For example: There's a soda machine in the office. One of the interns suggested that it would be cheaper to have a fridge that we bought soda to put into it. One of the attorneys suggested money could then be placed into a fund and distributed to the soda companies according to the frequency with which their soda was purchased. (Referencing, of course, the subscription-based online music proposal.)

- Everyone wears jeans and sneakers. A row of bikes hang from a rack inside the building, next to the pool table. A giant dog is leashed outside our legal director's office. And I mean GIANT, as in the size and shape of a medium-sized bear.

- It may be stating the obvious, but everyone uses a Mac. And staff transportation (in addition to the bikes) includes six Priuses.