Author Archives: ligitsec

Where Are the US News Top 30 Law Schools of 1996 Now?

Where Are the US News Top 30 Law Schools of 1996 Now1If one is interested enough to get beyond the chatter about which law schools rose or fell a couple of places in the 2009 US News ranking, one might want to ask “where are the Top 10, or 20 (or even 30) law schools of 1996 now? Click on the image (left) to find out. You might note the position gains/losses for some Top 10 schools — Penn, plus 4 from 11 to 7, Duke, minus 4 from 8 to 12, but the Top 10 list is relatively stable and that’s hardly news.

The same can be said for law schools ranked 11-20 in 1996 with two notable exceptions, Iowa minus 8, from 19 to 27; and Illinois minus 7, from 20 to tied in 27th place with Iowa in 2009. Note also that Washington (St. Louis) advanced to 19th place in 2009 from 29th place in 1996.

Note well, the above-mentioned one-on-one 1996-2009 comparisons are probably misleading because US News changed its ranking method.

Historical Perspective. Any given year, law schools’ US News fortunes rise and fall. Up 3 in US News one year, down 5 the next. The one-year comparison isn’t very meaningful. It’s just absurd fodder for University and law school PR machines. See Brian Leiter’s (Texas) comments, Hall of Shame: Schools Publicizing Their Meaningless US News Ranking.

Given that US News rankings will be used, I think prospective law students, aspiring law profs, and others should be asking, how long has a law school been in the Top 10 or 20 (or even 30)? Is the current rank a fluke? Has a school’s ranking shown incremental increases or declines during the last 5 or 10 or more years?

To answer these questions, click on the below image. It is a table that displays every law school that made the US News Top 30 at least once from 1996 through 2009. These schools are listed by name by their 2009 rank. A line chart plotting ranking change by school would have been too busy so table cells are colorized according to the following groupings: dark red for 1-10; teal for 11-20; blue-grey for 21-30; and medium gray for Below 30.

I think that by colorizing the table cells, one can visualize just how established the boundaries are for each tier. Despite US News ranking method changes only 39 schools have been ranked 30 or better during this 14-year period. It’s a small group, smaller than I expected. Smaller still but not a surprise — only 24 schools ranked in the Top 20 and 13 in the Top 10. Some sort of general US News “echo chamber” effect in play?” See Brian Leiter’s posts on the echo chamber effect of US News peer review scores here.

Mindful of 1990s rank method changes, one can view the incremental changes in an individual law school’s rank that led to the school breaking through the ceiling of a higher tier or falling through the floor into a lower tier. One can also easily spot unusual one-year declines that should be ignored. For example, how does a school like Texas go from 17-18th place for 1996-98, to 29th in 1999, then moves to 15th place in 2000 and for the next six years? The 1999 rank should be ignored. You’ll see other instances where the rank reported for a law school in a particular year is too questionable to be taken seriously.law school ratio in usa

Calls for US News law school ranking reform abound. See for instance, An Open Letter to Bob Morse of U.S. News by Brian Leiter, author of the leading source of alternative law school ranking information, Brian Leiter’s Law School Rankings.

Endnote. Why not provide historical data for the Top 50 or Top 100 law schools? Because I subscribe to the notion that if a law school isn’t listed in the US News Top 20 or its Fourth Tier, the ranking becomes increasingly more insignificant in the marketplace. “Top 20” and “Fourth Tier” mean something. Between the two lies the legal academy’s middle ground, a large dot on the map that represents 69% of the ranked schools this year. [JH]

Apex Technology v. Doe: May a Court Enter an Injunction Requiring an ISP to Take Down an Allegedly Defamatory Third Party Post?

Apex Technology v. Doe: May a Court Enter an Injunction Requiring an ISP to Take Down an Allegedly Defamatory Third Party Post?Communications Decency Act update: A New Jersey Superior Court judge recently evoked controversy among First Amendment and media law experts by ordering GoDaddy, Domains by Proxy, ASP.net and Verisign to “shut down and disable” three websites which published allegedly defamatory posts. See Apex Technology Group, Inc. v. Doe, N.J. Superior Ct., Law Division, Middlesex County, No. MID-L-7878-09, Order (Dec. 23, 2009).

The preliminary injunction order was issued based on the plaintiffs’ claim that it had been defamed by postings that appeared on the sites www.endh1b.com, www.itgrunt.com, and www.guestworkerfraud.com. The order also directed the three websites to take down the posts, as well.

No one on the defense side was represented at the preliminary injunction hearing. The court order also suggests that no one at the domain name registries/registrar/web hosting companies received notice of or were represented at the hearing. As a result, the order appears to be rife with substantive and procedural defects. (Not an unusual result when an order is issued without the benefit of defense counsel briefing).

But what about the substantive issue at stake in this order: What rights does a person who is the object of a defamatory Internet post have to get the post removed? Can the aggrieved seek an injunction against the author of the post? If she can’t locate the author, who may be anonymous, does she have the right to get an injunction against the host of the website to get it removed?

In fact, the law is somewhat unsettled in this area, and the relief available may depend on the jurisdiction in which the plaintiff sues.

• The First Amendment to the U.S. Constitution bars injunctive relief, but only until a jury trial on whether the statement in question is defamatory has been conducted.

The First Amendment to the U.S. Constitution protects freedom of speech, but this protection is not unlimited. A series of U.S. Supreme Court decisions have held that a media outlet may be enjoined from further publication of a libelous statement. See Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973). However, such an injunction may only be issued after a full jury determination that the statement is in fact defamatory. See Kramer v. Thompson, 947 F.2d 666, 676 n. 25 (3d. Cir. 1991) (summarizing cases).

This means that a court generally may not issue such an order via a preliminary injunction, which is a pre-judgment remedy issued without a full evidentiary hearing. See, e.g., Bynog v. SL Green Realty Corp., S.D.N.Y., No. 05-civ-0305, Memorandum and Order, (Dec. 22. 2005). (Which means that the New Jersey court erred in issuing a preliminary injunction requiring takedown of defamatory statements). However, once there has been a full evidentiary hearing, this at least means that the First Amendment would not pose a bar to the issuance of such an injunction.

• Free speech guarantees in several State constitutions bar all injunctive relief for defamatory speech.

The constitutions of certain states contain language that provides broader protections to free speech than the U.S. Constitution. For example, Article I, section 7 of the Pennsylvania Constitution provides:

“The free communication of thoughts and opinions is one of the invaluable rights of man and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.”

This provision has been held to mean that while a person may be held civilly liable for defamation, he may not be enjoined from speaking or repeating the defamation. Kramer v. Thompson, 947 F.2d 666, 677 (3d. Cir. 1991). So even if a jury had held that a web post is defamatory, neither the post’s author, nor a web site that published it, could be ordered to take the post down. (The New Jersey Constitution contains free speech language similar to Pennsylvania’s: ” Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.” The New Jersey court order may have violated this provision, as well).

On the other hand, courts in some other states have permitted injunctions against further publication of defamatory statements, once the plaintiff has obtained a jury verdict. See id. at 676-77. In these states, there would be no state or federal constitutional bar to injunctive relief against the author or publisher, once the plaintiff obtained a jury verdict finding the web post defamatory.

• The Communications Decency Act likely bars actions for injunctive relief against ISPs for third party posts

The Communications Decency Act (47 U.S.C. § 230) provides that “No provider or user on an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” See Section 230(c)(1). Section 230(c)(3) further states that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

Some early court decisions held that these provisions mean that an ISP cannot be held liable for tort damages for third party posts, but a court may issue an injunction requiring an ISP to take down a defamatory post. See Mainstream Loudon City Library v. Board of Trustees of the Loudoun City Library, 2 F.Supp.2d 783, 790 (E.D. Va. 1998).

However, this position was not followed by subsequent courts, who viewed the CDA as providing ISPs with immunity from any type of civil action for third party defamatory posts. See, e.g., Ben Ezra, Weinstein and Co. v. AOL, 206 F.3d 980 (10th Cir. 2000); Noah v. AOL Time Warner, 261 F.Supp.2d 532, 539-540 (E.D. Va. 2003).

Recent cases in the 7th and 9th Circuits have questioned whether it is proper to think of the CDA as an immunity statute. It remains to be seen whether this will affect legal thinking on whether the CDA bars injunctive relief against ISPs for third party posts. (At present, this looks like another substantive error by the New Jersey court).

What all this means is that the relief available to a plaintiff depends on the jurisdiction in which he/she attempts to get an injunction. In all jurisdictions, the First Amendment prohibits a court from issuing an injunction against further publication until a full evidentiary hearing on whether the post was defamatory. In some jurisdictions, current state law prevents a court from issuing an injunction prohibiting further publication against any party – including the ISP or the author of a post. In other jurisdictions, current views on the CDA prevent a court from issuing such an injunction against an ISP, but not the author of the post.

If a plaintiff wishes to obtain an enforceable takedown order against an ISP, it should prepare for an uphill battle. However, with careful pre-litigation planning, it can at least reduce the number of battles that it will have to fight.

How Attorneys Are Using Kindle in Their Practice

In 2007, Beyonce, Fergie, Nelly Furtado, Gwen Stefani and Avril Lavigne were among the celebrated musicians.

Two and a Half Men, CSI, Grey’s Anatomy and Survivor — China were the hit TV shows.

Forest Whitaker won the gold statue for Best Actor (in The Last King of Scotland).

And, the first Kindle was introduced on November 19 and sold for $399. It sold out in five and a half hours and wasn’t restocked until April 2008.

Two years later, a law professor and author, Larry Ribstein, writing on NY Litigation Firm, fretted about the hit his royalties would take as more people were discovering Kindle. Afraid the eBook provider would turn into the Napster of eBooks; Ribstein didn’t hold out much hope for the future of Kindle or other eBook readers.

While Ribstein worried about money in his pocket, other attorneys were concerned with client confidentiality. How could confidentiality be protected if files were sent flying all over the Internet? Those fears slowly faded, and one popular (law) book on Amazon is “The Law of Client Confidentiality.” It’s available on Kindle. Ironic, isn’t it?

Over the nine years that Kindle has been around, doomsday hasn’t happened. Attorneys are learning more about what their Kindle can do.

Law firms rely on PDF documents. Most lawyers have found there aren’t many good ways to read them comfortably and efficiently.

Supreme Court opinions, legal articles, and research — even appellate briefs — all come in a PDF format and have to be read. For the litigator who needs to be able to mark passages for later references as well as making notes of important passages, research, and questions, there are two options:

  1. Send the pages to the printer, clear off space on the desk and spend hours hunched over a pile of paper with a highlighter and sticky notes close., Or,
  2. Email the file to your Kindle’s email address and read the file while reclining in your favorite chair.

 

How to Make It Work

Each Kindle has an email address. To learn it, go to Amazon, find “Your Account” and click on “Manage Your Content and Devices.” Select “Your Devices,” click on the desired Kindle, and you’ll be shown the email address for that gadget.

Once you know the email, send an email to your Kindle with the PDF attached and the word ‘CONVERT’ as the subject. Amazon will handle conversion and deliver it to your Kindle free over a WiFi connection.

The ABA Journal recently reported that the Practicing Law Institute is publishing its continuing education books in MOBI, the format used by Kindle.

Kindle will allow you to upload documents and books onto the device as well as self-publish your own work through Amazon’s free publishing software.

The future of law school

Eric Gerding wrote a couple of days ago about the “Death of ‘Big Law School.'” He has some dismal predictions of what the Death of Big Law (taking off from my paper) means for legal education:

  • Lower-paying jobs mean lower tuition income and less alumni support.
  • More emphasis on training of practice-ready lawyers.
  • But a lower-cost model of doing so – i.e., bigger classes, more reliance on adjuncts, grad students, VAPs.
  • Research will have to find grants.

The WSJ Law Blog opines, “[i]f we’re reading Gerding correctly, law school may become less fun, but perhaps more useful.”

My article linked above has a somewhat different view. My basic theory is that law firms are dying because they have no asset core binding them together. Future lawyers must be trained to build those assets. This means high-end law practice will not simply shrink or get less lucrative, but be transformed into general-purpose firms that call for closer connections between law and other disciplines.

Here’s what I say about the implications of these developments for legal education:

First, creating the new legal products industry . . . . requires law-trained entrepreneurs and venture capitalists. Law students will need training that enables them to develop products rather than just how to litigate and give individualized advice. This could lead to a convergence of legal education with technology and business training.

Second, law firms investing in research and development . . . could increase the demand for the sort of “law and” work law schools have been moving toward for the last generation. Law firms might use disciplines such as history, psychology and economics to get potentially profitable insights into contracts and litigation.

Third, the multi-disciplinary firms discussed [above] involve not only a combination of distinct disciplines, but also a kind of synergy that firms cannot easily replicate simply by hiring in those disciplines. Lawyers will have to learn to speak the languages of the other disciplines in their firms, and these other disciplines will have to learn some law.

Fourth, the growing role of in-house counsel . . . would make these business people integral parts of their firms. This could trigger a broader demand for business-trained lawyers than is now supplied by JD or JD-MBA programs. Business training could be moved within law schools by greater attention to business background in both advanced seminars and basic courses like business associations, securities regulation, antitrust and bankruptcy.

Finally, all the above developments plus the Wal-Mart lawyer phenomenon discussed [above] point to an even clearer separation between the high and low ends of legal practice than currently exists. While some types of practice will demand even more sophistication and multi-disciplinary skills than many current lawyers have, the Wal-Mart lawyer would need less training than the standard three years of law school. As the market for legal services fractures, so might legal education.

In other words, many of the high-end lawyers of the future will have to be trained to be more than just lawyers. “Law-and” may become part of the basic model, though “and” may be more business, finance and economics, perhaps with some psychology and sociology, but less philosophy.

My discussion of the “Wal-Mart” lawyer suggests there will still be a need for “law-only” lawyers to do more routine legal work. Expect these lawyers to come from the kind of law schools Gerding envisions. The strategic decisions made by today’s law schools will decide which category they end up in.

Update:  Erik provides a very interesting response.

The Domain Name as Collateral: Considerations for Creditors Seeking to Use a Domain Name as a Security Interest or as a Source of Payment on a Judgment

assignment in grossFor many firms, on-line property, such as their domain names and the interactive software that they permits users to access, constitutes the vast majority of the value of their business. Firms such as Amazon.com and eBay heavily market their domain names, with the result that their domain names have become their primary trademarks and are worth billions of dollars. Lenders would naturally like to have the ability to obtain security interests in these valuable assets for loans to these businesses. Creditors also would like to be able to seize these assets to satisfy unpaid debts. However, there are significant hurdles in both state and federal law to both of these uses of domain names.

The following is a survey of some of the issues faced when attempting to use a domain name as collateral, along with suggestions of methods for dealing with these problems.

The “assignment in gross” problem

To the extent that a domain name constitutes a trademark, it is subject to what is call “the anti-assignment in gross” rule. This rule is based on the notion that a trademark is really the embodiment of the goodwill relating to a business. As such, it cannot be transferred apart from this goodwill. If a trademark could be assigned and used for a different product or business, it could result in fraud on consumers, who would assume that the trademark signified that the same nature and quality of goods were present as when it was used in the original business. See McCarthy on Trademarks § 18:2-3.

I am aware of no cases dealing with domain names that directly address this issue. However, cases dealing with assignments of trademarks in general hold that if a lender wants to take a security interest in a trademark, it should obtain a security interest in the goodwill of the business associated with the trademark as well. See Marshak v. Green, 746 F.2d 927 (2d. Cir. 1984). What this means is that a lender wishing to obtain a security interest in a domain name should obtain a security interest in the goodwill of the business associated with the domain name.

Anti-assignment clauses

Domain name registrants assume that they can transfer their domain names to third parties at will — via sale or use as collateral. Indeed, there has long been a well-developed market for domain names. Ian Ballon’s treatise on internet law contains a list of hundreds of such sales over the past few years, with sale prices ranging into the many millions of dollars.See Ian Ballon, E-Commerce and Internet Law, §7.23[3].

Most domain name registrants have obtained their domain names via a contract with a domain name registrar. While many domain name registrars have procedures that permit the transfer of domain names, they often do not permit direct assignments. See Warren E. Agin, I’m a Domain Name. What Am I? Making Sense of Kremen v. Cohen, 14 Journal of Bankruptcy Law and Practice 3:73, 79 (2005). This would present a problem for parties wishing to use a domain name as a security interest, were it not for a special provision in the Uniform Commercial Code (UCC) that trumps such anti-assignment provisions. Section 9-408 of the UCC provides that a security interest may be granted in a general intangible, even if assignment is prohibited under by the contract relating to the intangible. See UCC § 9-408, comment 5. Most legal scholars believe that an Internet domain name qualifies as a general intangible under the UCC. See, e.g., McCarthy on Trademarks, § 18:7. As such, a lender should be able to obtain a security interest in a domain name, despite the presence of an anti-assignment clause in the borrower’s contract with the registrar.

Now for the bad news. While a lender may obtain a security interest in a domain name subject to an anti-assignment clause, UCC Section 9-408(d)(6) prohibits the lender from enforcing such a security interest. So now the lender has a security interest in collateral that it can’t seize or sell.

One way around this problem is to put the debtor in bankruptcy. The Bankruptcy Code provides that a bankruptcy trustee generally may assume and then assign (e.g., sell) a debtor’s contracts, despite the presence of an anti-assignment clause. 11 U.S.C. § 365(f)(1). A creditor’s security interest in collateral attaches to the proceeds of the collateral, as well as the collateral itself. UCC § 9-315(a)(2). This means that if the bankruptcy trustee assumes and then sells a domain name contract (something that a bankruptcy trustee would normally be expected to do), a creditor with a security interest in the domain name should be able to claim the proceeds from the sale. See Straffi v. State of New Jersey (In re Chris Don, Inc.), 308 B.R. 214 (D.N.J. 2004) (creditor with lien on debtor’s liquor license entitled to proceeds from bankruptcy trustee’s sale of the license).

Another way around this problem may be for the lender to sue the borrower and obtain a judgment. As discussed below, at least under California law, it appears that a judgment creditor may levy a writ of execution and then obtain a sale of a domain name.

State laws prohibiting turnover of domain names

Some state courts have limited the judgment enforcement mechanisms that may be used for domain names. In 2000, the Virginia Supreme Court held that a judgment creditor could not use a state law procedure called “garnishment,” under which a third party who holds the debtor’s property is ordered to turn that property over to the county sheriff for sale. Network Solutions, Inc. v. Umbro Int’l, Inc., 529 S.E.2d 80 (2000).

In June 2009, a California Court of Appeal similarly ruled that a judgment creditor was not entitled to an order requiring the debtor to turn over a domain name to the creditor for sale to satisfy the judgment. The case was Palacio Del Mar Homeowners Assn., Inc. v. McMahon, 174 Cal.App.4th 1386 (2009). In 2008, Palacio obtained a $40,000 judgment against McMahon. Palacio then attempted to collect on this judgment. It first obtained a writ of execution against McMahon, but was unable to satisfy its judgment. It then conducted a judgment debtor exam of McMahon. During the exam, Palacio discovered that McMahon had possession of the domain name www.ahrc.com. Palacio then asked the court to order McMahon to turn the domain name over to it.

The trial court granted Palacio’s motion, but the Court of Appeal reversed. The Court of Appeal first held that California’s turnover statute does not authorize a court to require a debtor to hand property directly over to a creditor. Id. at 1391. Rather, California law requires property taken from a debtor to be sold and the proceeds distributed to judgment creditors. Moreover, under California law, a turnover order is limited to “tangible property that can be levied upon by taking it into custody.” California Code of Civil Procedure Section 699.040. Even if a domain name constitutes property, “it cannot be taken into custody.” Palacio, 174 Cal.App.4th at 1391. As such, no turnover order can be issued for it.

So what can a judgment creditor in this position to do? While a turnover order cannot be obtained, California law does appear to permit a judgment creditor to use normal writ of execution procedures for intangible property, such as domain names. These procedures permit a judgment creditor to obtain a lien on the domain name by levy of a writ of execution. California Code of Civil Procedure §§ 699.080. Once a “general intangible” has been levied, the judgment creditor can then file a motion with the court to have it sold. Id. at 701.510, 701.520. If the court grants this motion, the property can sold and the proceeds distributed to all of the debtor’s creditors, including the judgment creditor, under a statutory priority scheme. Id.at 701.810.

Of course, for domain names that involve trademark rights, sale still might be hindered by such things as the assignment in gross rule.

A final option

If worse comes to worse for a judgment creditor, a number of bankruptcy court decisions have found that a domain name constitutes part of the property of a bankrupt debtor’s estate. In re Paige, 2009 WL 2591335 (D. Utah 2009); Koenig v. McLear, 2004 WL 3244582 (Bnkr. M.D. La. 2004) * 7. As such, if a debtor winds up in bankruptcy, its domain name can be sold and the proceeds used to satisfy either secured or unsecured debts.

Conclusion

Because of the central role a domain name plays in a business, the law appropriately does not make it easy for creditors to get access to it as either security for loans or to satisfy judgments. If you have questions about accomplishing either of these objectives, please feel free to contact me at the address below.

Pants lawsuit could cost D.C. judge his $100,000 job

‘Pants Judge’ on Suspension

Remember the curmudgeonly Washington DC judge that sued a South Korean dry cleaner for millions when his pants went missing?

Don’t worry. No one else remembers Roy L. Pearson either. With the way his life has gone since 2005 when his wife filed for divorce, Pearson probably prefers the anonymity. At the time the case garnered global attention and triggered renewed calls for litigation reform.

Pearson claimed he was entitled to the legal jackpot when the cleaner, according to Pearson, did not live up to his anticipations of the “Satisfaction Guaranteed” sign in the shop window.

Sorry Judge, You’re Out

After Pearson had lost his civil suit, a judicial committee told Pearson that they might not reappoint him. They followed through with their promise and bounced Roy from his $100,052 a year job.

In 2007, Pearson worked as a judge for two years and was next in line to serve a 10-year function at the Office of Administrative Hearings in Washington.  The committee told Pearson that it had evaluated Pearson’s legal decisions and determined the judge had not demonstrated “appropriate judicial temperament.”

A Reasonable Judge Puts an Unreasonable One in His Place

Pearson fought a lengthy legal war on Custom Cleaners. He claimed that the service on Bladensburg Road NE in Washington lost the judge’s pants when he brought them in for $10 worth of changes.

Pearson sued for $54 million. And lost. District of Columbia Superior Court Judge Judith Bartnoff ordered Pearson to cover the court costs of the defendants — just a little over $1,000.

Pearson claimed the shop lost a pair f trousers from a blue and maroon suit and later attempted to give him a pair of charcoal gray pants he claimed were not his. Pearson, in court, said he came up with the multi-million figure by adding up years of law violations and tossed in about $2 million in common law claims for fraud.

Bartnoff ruled that Pearson had failed to prove the trousers the dry cleaner attempted to return were not the same ones he took in for adjustments and modifications.

“A reasonable customer would not render  ‘Satisfaction Guaranteed’ to imply that a retailer is required to gratify a buyer’s unreasonable call to accede to demands that the service provider has a reasonable foundation  to dispute,” said Bartnoff when she issued her findings.

Where is He Now

Pearson, a litigation attorney before he was a judge, appears to be back at his old job — being a run-of-the-mill lawyer. But his troubles aren’t over.

In June 2016, the Washington DC bar held a hearing and found Pearson guilty of violating two of three charges. Since it was a disciplinary hearing, Pearson wasn’t looking at time behind bars. Instead, he had to watch his ego get smashed and shredded again like old sheets in a hurricane.

On June 3, 2016, Pearson’s ability to practice law in Washington was suspended for 30-days.  The suspension was put on hold pending two-years of problem-free living.

Today, Pearson is watching his step.