Southern New England School of Law, a small unacredited regional school nestled near the southeastern shore of Massachusetts, is gearing up for the fight of its life. Last month, the school offered to donate itself to the University of Massachusetts (UMass) at Dartmouth, an offer valued at approximately $22.6 million. The donation follows the school’s failed attempt to sell itself to UMass in 2005, a move that was quashed by the state board of higher education. The most recent offer has been met with both excited anticipation and much skepticism ahead of the November 18th UMass trustee meeting about the proposal.

Proponents of the deal are quick to point out that Massachusetts is one of only six states that do not have a public law school, which forces some Massachusetts residents to seek a (reduced-tuition) public legal education elsewhere, like UConn. 

Critics of the proposed merger cite the poor economy, Massachusetts’ eight other private law schools, the old “we already have too many lawyers” argument, and the potential of taxpayer money being used to subsidize the schools absorption (and plan for a renewed ABA-acreditation process) into the UMass system.

So, what do you think, LGers? Should law school expansion be encouraged? Or do we have too many as it is? Do bad law schools deserve a fair shake? Weigh in below.

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Introduction

- Yay, swine flu!! And how your law school is helping you prepare for the epidemic by making you bathe in hand sanitizer.
- I don’t know what to call this, but it’s awesome: http://adactio.com/journal/1623 (a.k.a Perfect Pitch and the tale of possibly fraudulent DMCA takedown requests).

In The News

- Above the Law gets sued. But, we won’t get to watch the fireworks, because this case has already been dropped.
- Barnes & Noble sued over Nook design; Josh ridicules Laura for suggesting that a keyboard on an e-reader would be useful.
- The kerfuffle (isn’t that supposed to be “kerfluffle”? Laura asks) over open access to the law vs. Wexis:
http://legalinformatics.wordpress.com/2009/11/03/debate-on-free-access-to-law/
http://blog.law.cornell.edu/tbruce/2009/11/02/berring-on-the-merits/

People Smarter Than Us

- We know too many smart people, we couldn’t pick one this week. However, all of them (and probably you, dear reader) fit into one of the categories on this diagram.

You’re Doing It Wrong

- LexisNexis iPhone app review. Laura thought you could access cases on Lexis for free via iPhone. Josh points his finger at her and laughs.

Love For Our Geeks

Some nice folks asked some reasonable questions. We make fun of them:
- @sakuha: “question from 1L: assume that value of doing outline for closed-book exam is actually DOING the outline. Correct?”
- Teri the 1L: Any tips for keeping all of the elements of rule 12 FRCP straight? I’m lucky enough to have an open book exam, but I’ve heard I might not have time to actually look at my book. Love the show :)
- Various Twitter friends: Should I get Windows 7 yet? (Otherwise known as “Examsoft quietly adds Windows 7 support; don’t tell your IT staff!”)

If you haven’t yet, do please give us a positive review on iTunes and, of course, subscribe to the podcast.

Keep sending us tweets and questions! Bug us any time at podcast /at/ legalgeekery /dot/ com or via twitter (@legalgeekery and/or @lbergus). We’re also hoping that people will record and email us comments for inclusion in future shows. C’mon, prove your geekiness!

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I have to admit that when I received an email yesterday pushing the new Lexis iPhone application, my expectations were not very high.  After spending some time with the program however, I’ve been pleasantly surprised.

The first thing you have to realize is that this isn’t a replacement for having LexisNexis open on your computer.  In fact, you’re not going to be able to research at all.  The purpose of this application is to allow you to read and Shepardize a case when you already know the citation.  If you can come to terms with its limited functionality, the app performs these basic functions quite well.

The user interface is very straight-forward as you can see.  The first screen asks you for a citation and you can either pull the case text or perform a rudimentary Shepard’s analysis.

After clicking one of the two buttons, a login screen prompts you to enter your LexisNexis login and password.

I elected to pull up Brown v. Board of Education, and as you can see, the display is about the same as you’re used to seeing when pulling up a case in Lexis.  The one [admittedly large] drawback in the display is that there are no clickable hyperlinks in the cases.  So if you want to look up a referenced case, you have to highlight the citation, then cut and paste it into a new search.  It’s a relatively simple process, but it’s strange that hyperlinks are missing because it would make the program much easier to use.  Still, the text is surprisingly legible, and I actually don’t mind reading cases for an extended period of time even with the small typeface.

The main problem that I have with the app is the seriously crippled Shepard’s function.  Yes, it technically exists, and it will technically give you an idea of the disposition, but I question its usefulness.  While it will tell you the number of cases distinguishing, following, overturning, etc., it will not link you to them, and in fact it won’t even tell you the name or citation of those cases.  It seems that this function is only useful for a cursory glance at the general treatment, but nothing else.  In my opinion, this shortcoming isn’t a deal-breaker because as I explained at the beginning of this review, this is not meant as a replacement for researching on your computer.

In the end, I imagine this as a “I need to commute somewhere but I also need to read this case . . . guess I’ll just jot down the citation” kind of program.  Nothing more, nothing less.  And for that very limited purpose, I think the developers did a fairly good job.

Pros:
- User friendly
- Simple and clean design
- Legible case formatting for extended reading

Cons:
- Limited ability to research — must know case citation
- No hyperlinked cases in the case text
- Crippled Shepard’s functionality

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Michael Schmidt of Cozen O’Connor tells the LawJournal that employers who interact with employees online, outside of work, risk exposing themselves to liability.

Given that social networking sites are loaded with personal information, Schmidt said, a manager is bound to learn things about an employee that he or she will wish the boss didn’t know. Moreover, when a manager learns of some personal attribute through the site, the worker now has the opportunity to argue that any later adverse employment decision “was based on this personal information,” Schmidt said.

For example, a supervisor may learn from someone’s Facebook page that he or she belongs to a gay rights group. If the same employee is later fired for a performance problem, the employee could claim he or she were fired for being gay.

The LawJournal article is very employer-oriented. However, it raises a good point. Companies should clearly state in their social media policy whether subordinates and supervisors can interact online, outside of work. Of course, this raises a slew of other questions. Can the company enforce such a policy? What about co-workers adding each other? If a fellow employee sees something distasteful on a Facebook profile, they are just as likely to report it to higher-ups or start rumors that could get the company in trouble down the line.

My ethics professor often said that the difference between a good lawyer and a very good lawyer was the lawyer’s ability to spot problems coming from around the corner. Very good in-house counsel should be aware of this issue, and prevent it as best they can.

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Our trusts & estates professor usually begins class by detailing a semi-current event from T&E.  He recently brought this [defective] will to our attention:

Background:  A Brooklyn couple were killed in their home, and then a series of wills were found in their apartment.

Excerpts from Husband’s Will:

• “To my brother, who I know hopes to be in my will, well, here you are.  I leave my brother the sum of zero ($0.00) dollars.  I believe this sum is fitting, as you are probably the most greedy person I know.”
  • “Robert, brothers are supposed to want each other to be the most they can be and make the most money they can. You, on the other hand, just sat in judgment of me and were always jealous.”
  • “I, on the other hand, only wished you the best and to win the lottery.”
  • “So, Robert, you have a choice, you can come to my grave site to say hello out of love or piss on me for not giving you money.”
• He asked to be buried with scuba gear “and cast over the side of a vessel into the ocean where my body may rest undisturbed by any person[s] in the deep.”
  • “Although I recognize that this request may very well violate certain . . . laws of the State of New York and Federal as well as multiple other jurisdictions, I trust that my Executor and friends will ignore same.”
    • Although the will did provide that his estate could be used to pay for any legal problems resulting from the burial.
  • Should his friends be unable to bury him at sea, in scuba gear, he suggests that they come up with something befitting his character.
    • • He suggests “a beach party with stripers. [sic]“
• $50,000 to two of his friends, on the condition that they refrain from telling their respective spouses, so that “they may not get their hands on same.”
• “In the event my friends [brothers] fail to provide me with a burial befitting my character, then and in that event, I curse each one of them as follows”
  • “To Boom Boom, the electricity never be on when you need it”
  • “To TR, never will any of your radios work again”
  • “To Bobby, never will your gun shoot when you need it.”
    • Note: Ironically, Bobby Delvicario was a suspect in the death of the couple.

Excerpt’s from the Wife’s Will:

• “With regard to my estranged family who were never there for myself or my children, but always there for their distorted version of Catholicism, I give and bequeath the sum of $1 each to my” mother, father, two brothers and sister “and request that they donate same to their precious church to whom they had a greater allegiance, than to their first child and sister.”
• In an awkward turn of events, she named her ex-husband and left him nothing
  • She did, however, make a gift to a battered women’s shelter in his name.  Yikes.

Hat tip to Professor Zachary A. Kramer.

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Introduction

- Outlining course material? Or not. Laura prefers baking.
- The continuing saga of the Shepard Fairey case.
- Celebrate Pro Bono Week, Oct. 25-31
- Josh auditions for trial ad. Sadly, neither singing nor dancing is required.

In The News

- Cmp.ly. Remember the confusion/consternation about the FTC guidelines on blogger disclosure (listen to Brett Trout in this podcast if you missed it!)? Here’s a cool standardized way of letting the world know if someone paid you to say what you said, more or less. We hope it catches on.
- So putting 20 million pages of government content online for free is a crime? It at least gets the FBI’s attention.
- The FCC is getting serious about Net Neutrality… meanwhile AT&T tells some employees why they and their families should talk out against it.
- Why does the US suck in terms of broadband speeds? We dunno, but we can show this cool chart showing US compared to some of the rest of the world. [shakes fist at Poland]

People Smarter Than Us

- Interview with Brett Trout on the FTC guidelines on blogger disclosure. Brett is an awesome IP attorney (from Iowa, Laura points out 50 times…) who’ll be presenting at the 140 Character Conference in LA on Oct. 27.

You’re Doing It Wrong

- Josh holds it over our heads that he has had a Google Wave account for *ages*. He also opines on why attorneys won’t adopt it until it’s too late to ride the wave.
- Judge Booted for Facebook Use? Could be, and a lesson for all us future judges.
- A New York law firm decides its intra-office gossip should really go prime time. We say, “Time to be nice to your support staff!”

Love For Our Geeks

This time around we refused to provide legal advice on the following questions from our devoted listeners:
- How can non-americans gain legal accreditation in the US? – @JoeC
- With the recent and significant layoffs occurring at firms, should I reconsider another field instead of law school? – @mrbiotech
- When attending law school, specifically for patent law, is it preferable to attend a specialty school or a high ranked one? @mrbiotech
- Why did I go to law school? – @BobBlahBlawg [say that 10 times fast... or at least listen to us butcher "BobBlahBlawg" several times]

We also spent some time mocking answering questions from one anonymous follower with a penchant for the ladies. Yow!

If you haven’t yet, do please give us a positive review on iTunes and, of course, subscribe to the podcast.

Thanks to everyone for your tweets and questions. Bug us any time at podcast /at/ legalgeekery /dot/ com or via twitter (@legalgeekery and/or @lbergus). We’re also hoping that people will record and email us comments for inclusion in future shows.

Cheers!

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Attorney General Holder sent a memorandum Monday to US Attorneys in states that have legalized marijuana. The memorandum sets out guidelines for handling the prosecution of federal marijuana offenses. In general, US Attorneys are discouraged from wasting federal resources to investigate people that are in “clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” The memorandum also gives some guidance on when US Attorneys should conduct further investigation:

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

• unlawful possession or unlawful use of firearms;
• violence;
• sales to minors;
• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
• amounts of marijuana inconsistent with purported compliance with state or local law;
• illegal possession or sale of other controlled substances; or
• ties to other criminal enterprises.

Attorney General Holder made it clear that the memorandum does not indicate any change in federal policy:

This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.

The memorandum is a nice reminder that just because a state legalizes something, does not mean you cannot go to jail for it. So if you live in a state that allows medical marijuana or small amounts of marijuana, don’t forget that the feds can still get you.

Via Justice.gov

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The wake of my gloomy report on the status of legal e-books seems surprisingly upbeat this week: it seems that West has released nearly 30 of its titles for electronic download on the Amazon Kindle. A press release issued last week gives the nod to “law students, law school faculty and legal professionals who are increasingly using new electronic media”. 

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You may have read the buzz earlier about how the Federal Trade Commission will be requiring disclosure from those who use social media (including blogging) for reviews or endorsements. As I’ve written elsewhere, I think these rules are bad for more than just bloggers who get free iPhones or baby toys, since liability for failure to disclose a sponsorship relationship can rest on any consumer who meets the subjective criteria of “endorsement,” as well as on the business that “sponsored” the consumer’s good words.

Since then, I’ve had my scaredy-pants attitude tempered by posts like this one. However, this scintillating 81-page document (the new guidelines pdf) got my law-school-trained-always-looking-for-the-hypo brain thinking about a relationship I’ve witnessed on Twitter between a locally-based restaurant chain and local consumers, who may very well be the FTC’s new “endorsers.”

What follows is excerpts of an email exchange I had with the social media face and voice of @pancheros (a national chain of burrito-based fast food), Reid.

Me: Basically the FTC is looking to define the scope of how it can enforce rules about advertising so consumers are better informed of any “material sponsorship” (money or free stuff) received by someone who makes statements about a given product. The idea being that those who get money or free stuff are more likely to say good things, and that sometimes those good things are exaggerated or even wholly untrue.

So, this recent notice (the doc linked above) addresses (among other things) how these newer interpretations of advertising rules will apply to “new media” like social media and blogging.

Below are two of the provisions that jumped out at me and got me thinking about how I’ve seen Panchero’s interact with “endorsers” on Twitter (your customers), who may have received free burritos or won the trivia prize (page #s refer to the PDF linked above).

First, there’s the issue of these consumers needing to disclose their relationship with you and the fact that they may have obtained a free product — the following makes it look like every time @swirlee says “Mouth confirms it: @pancheros’ new barbacoa burrito is delicious!” (http://twitter.com/pancheros/status/4502469312), he’s acting as an endorser that would be regulated under the new rule. The guidelines call for a very subjective, case-by-case determination of the threshold for endorsement, but your relationship with @swirlee (which, though not limited to trying to sell Panchero’s products, is certainly premised on advertising for Panchero’s) would likely weigh in the favor of him falling under the regulation (here presuming that your Twitter use qualifies as a “word of mouth marketing program”):

“consumers who join word of mouth  marketing programs that periodically provide them products to review publicly (as opposed to simply giving feedback to the advertiser) will also likely be viewed as giving sponsored
messages” (p. 10)

This is relevant not just for @swirlee, who may face personal liability for failure to disclose his relationship or any “material sponsorship,” but for Panchero’s, who may be liable if @swirlee overstates a claim, has a “non-typical consumer experience” (his burrito was better than others could expect theirs to be), or lies.

“[I]f the advertiser initiated the process that led to these endorsements being made – e.g., by providing products to well-known bloggers or to endorsers enrolled in word of mouth marketing programs – it potentially is liable for misleading statements made by those consumers.” (p. 15)

My feeling, and what I’m writing about, is that a situation like this illustrates well the potential problems with these guidelines. Application to social media of “endorsement” rules that were intended to address celebrity infomercials creates an awkward regulatory regime for what is, at it’s core, two nice guys in Iowa being nice to each other.

After that epic introduction, two questions:
1. Do you think Panchero’s will do anything different in your social media marketing once the FTC says you “should establish procedures to advise endorsers that they should make the necessary disclosures and to monitor the conduct of those
endorsers.” (p. 39)?
Reid @pancheros: No, we will not do anything differently until something officially goes into effect. Everything we do in our social media campaign is natural and honest, not manipulative. This platform gives consumers the freedom to praise us as well as state what they don’t like about the brand.

Me:
2. Do you think these guidelines will inhibit how you interact with your friends and followers online? If so, do you think that’s good or bad for the consumer who might otherwise be “duped” by positive Panchero’s talk (as the requirement for disclosure suggests)?
Reid @pancheros: Yes, it will inhibit communication because any time restrictions are placed on any sort of communication people are inhibited and they lose their spontaneity. What’s so great about social media is it is meant to be as though you are sitting in a room with these people having a discussion. Once you have to start checking on “the rules and guidelines” this just becomes another stilted and orchestrated form of speaking.

Me: And my disclosure, just for fun: I’ve been following @Pancheros on Twitter for a while, even though I don’t eat there (I have maybe three times ever in the past and was pleased with the food). You certainly didn’t give me anything in exchange for calling you a “nice guy” or for what might be construed as a positive review of how you run your social media campaign. And while your online marketing efforts haven’t made me buy your products, there is probably a reason that you popped into my head as someone who has ongoing customer relations via social media.

I should add that since Reid answered my emails, my family did receive, and subsequently use, a kinda crappy Panchero’s fribee-esque plastic disc. But it was randomly handed out at a parade, which probably wouldn’t rise to the level of “sponsorship.”

In any case, even if most social media marketers and bloggers and consumer-review-generating users don’t change their behavior and don’t suffer at the hands of the FTC, the First Amendment implications of such speech entering the realm of “commercial” abound.

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Warning: we had to record this episode twice due to a problem with our Skype recorder, so the result may be a sillier-than-usual episode.  Hopefully it’s enjoyable nonetheless.

Introduction

- Interview stories

In the News

- EFF posts court documents regarding man arrested for tweeting to G-20 protestors
- Prisoner escapes by convincing court deputies that he’s an attorney
- Good roundup of the incoming SCOTUS docket
- FTC to require that bloggers disclose money received for endorsements / reviews

Stuff You Might Find Useful

- BugMeNot – Bypass free registrations for websites (including nytimes.com)

People Smarter Than Us

- PatentlyO compiled and posted synopses of Bilski amicus briefs due recently

Love for Our Geeks

This week we discuss the following questions and comments from our loyal geeks (you all):

- What is the most under utilized resource by law students? – @luiseocasio
- Are the above the law-style sites good for lawyers / law students or not? – @ugalaw2012

We also share a fun story emailed to us by Quinton Sheer about using social media to stand out in the infamous job hunt.

Thanks to everyone for sending tweets and questions — keep them coming at podcast /at/ legalgeekery /dot/ com or via twitter.  We’re also hoping that people will record and email us comments for inclusion in future shows.

If you haven’t yet — please give us a positive review on iTunes and subscribe to the podcast.

Cheers!

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