Heafey Headnotes was thrilled to find two blogs by our new SCU Law professor, Eric Goldman, during a recent Talk Digger search.  You can find Professor Goldman’s observations about Internet law and marketing at his Tech & Marketing Blog.  Goldman’s Observations Blog is a more eclectic compilation of thoughts on teaching law, moving to California, and the latest legal headlines. 

The latest issue of Law Practice Today has lots of useful articles, addressing topics such as the art of crafting timesheet entries, the 2006 discovery amendments to the Federal Rules of Civil Procedure, the structural causes of associates’ dissatisfaction, and a quiz on proactive marketing. 

I had the privilege of hearing New York Times reporter Linda Greenhouse speak about her research in the Blackmun archives for her book, "Becoming Justice Blackmun," at the AALL conference in St. Louis.  LLRX has posted this transcript of the speech.  Here’s my favorite anecdote from Greenhouse’s speech:

Blackmun’s files documented just how doctor-centered his interest in the abortion issue was, and just how naïve he and the court were about what to expect once the decision was issued. My favorite document in the Roe file was a handwritten note the Blackmun wrote to himself as part of a draft of the “mandate” section. He was suggesting that, assuming the decision was issued in January 1973, the mandate be delayed until April 1 to give states a chance to adjust their statutes to the decision. “It will be an unsettled period for a while,” he noted (emphasis supplied).

The latest issue of Yale’s Pocket Part tackles the topic of post-Booker appellate review of federal sentencing decisions, with contributions from Judge Nancy Gertner (Federal District Court, Mass.), Professor Douglas Berman, Professor Steven Chanenson, and Yale Law Journal Editor Eric Citron. 

The San Francisco Chronicle published an interesting story today about some embarrassing redacting errors made by federal prosecutors.  According to the article, federal prosecutors filed a court brief relating to the government’s attempt to require two Chronicle reporters to reveal their secret source for confidential grand jury testimony.  A redacted PDF copy of the government’s brief was available to members of the press with a portion of the text hidden by "black bars."  A New York Sun reporter was able to reveal the redacted text by highlighting the redacted sections, copying them, then pasting them into a Word document, which revealed the blacked-out text.  What did the brief’s author do wrong?  Instead of removing the text completely from the document, the author just changed "the foreground color to . . . a black rectangle."  The text was still there, and it didn’t take an expert to reveal it.  Ironically, at least one federal agency has published a guide to redacting digital documents entitled "Redacting with Confidence."  The guide dispenses valuable tips on how to sanitize electronic documents.  You can also find additional recommendations on redacting digital documents in this Law.com article.

POSTSCRIPT, June 26, 2006:  A few days after this post, LLRX published a helpful piece on "Controlling the Accidental Release of Digital Information" by attorney Conrad Jacoby.

Rep. Henry Waxman has just released a report that highlights the number of times that Congress has voted in the last five years to preempt state law.  The report, prepared by the House Committee on Goverment Reform’s minority staff, states: 

" . . . [T]here exists a wide gulf between the pro-states rhetoric of Republican leaders and the actual legislative record. Rather than ceding power to the states, the Republican-controlled Congress and President Bush have repeatedly preempted state authority and centralized policy-making in Washington. 

Over the past five years, the House and the Senate have voted 57 times to preempt state laws and regulations. These votes have resulted in 27 laws, signed by the President, that preempt state authority. Some of this legislation contains multiple distinct preemptive provisions. Over the last five years, the House and the Senate have passed 73 separate preemptive provisions, and 39 of these have become law. 

An examination of this legislation reveals that Congress and the President have routinely backed federal legislation that usurps traditional state powers. The reach of the preemptive legislation is broad and its intrusiveness is deep. Literally hundreds of state laws have been or would be overridden. 

The House and Senate have passed legislation that would preempt states from regulating sources of air pollution, setting health insurance standards, and protecting consumers from contaminated food. Areas of traditional state prerogatives, such as local land use decisions and the issuance of drivers’ licenses, have been federalized, and states have been blocked from protecting their citizens from emerging threats, such as unsolicited “spam” email. Last year, Congress passed — and the President flew through the night to sign — legislation to override the judgment of a state court in an individual family’s private end-of-life decision.

 Thanks to beSpacific for the information on this report.

It’s a sad day when a federal judge orders the lawyers in a case to settle a trivial dispute with a game of "Rock, Paper, Scissors," but that’s the decision that Orlando federal district court Judge Gregory A. Presnell just handed down from the bench.  The New York Times reports that attorneys David Pettinato and D. Lee Craig couldn’t reach agreement on the appropriate location for a deposition.  The fact that leaves me speechless:  both lawyers work in the same building, but couldn’t agree on whether to hold the deposition in this office building or at the court reporter’s office.  Not surprisingly, Judge Presnell decided that there couldn’t be a more appropriate way to settle this decidedly juvenile dispute than with that age-old kid’s game, Rock, Paper, Scissors.  Matti Leshem, the co-commissioner of the USA Rock Paper Scissors League, has offered to serve as referee.  Just in case this method of ADR catches on, there are plenty of Internet guides to Rock, Paper, Scissors strategy.  Thanks to Law Blog for the tip.

My favorite Slate legal journalist, Dahlia Lithwick, has a great article this week about the law of Internet dating.  According to Lithwick, the Communications Decency Act of 1996 generally protects Internet dating services such as Match.com from lawsuits by customers who suffer damages as a result of fraudulent behavior by other customers.   Of course, injured customers can still pursue civil or criminal actions against online scam artists, but these customers usually can’t touch the deep pockets of the Internet dating services themselves.  Although the most recent California bill on this topic did not manage to make it through the Legislature, other states have introduced legislation to make the online dating world safer for consumers.  Some of these bills would requiring dating service providers to perform criminal background checks on their customers.  And at least one Internet dating company, True.com, is trying to carve out a niche for itself as the "safer online dating service" by voluntarily running criminal background checks on its customers and prosecuting individuals who are married or have criminal records who attempt to use the service.  It will be interesting to see whether state efforts to regulate this "anything goes" industry are successful.

There has been a flurry of commentary about the US Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC.  For those of you who didn’t read the Wall Street Journal this morning, the Supreme Court held that "the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and . . . such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards."  Howard Bashman’s How Appealing has links to news stories from the major dailies about the case, and you can find more commentary and debate about the case from legal scholars on SCOTUSblog.

Metroactive, one of the Silicon Valley’s weeklies, recently featured a story about the closure of Santa Clara County’s jail law libraries.  Instead of using print resources, individuals who are incarcerated in the County jails must now request resources from a remote legal research outfit called Legal Research Associates.  The Public Interest Law Firm sued on behalf of the inmates, claiming that the closure of the libraries violated the constitutional rights of pro per inmates.  Judge Whyte didn’t agree with PILF’s constitutional arguments, but he did conclude that the county prematurely closed the law libraries in violation of a previously-issued consent decree. It remains to be seen whether PILF and the County can iron out a mutually acceptable settlement.   

The Sarbanes Oxley Act of 2002 was passed in order to improve the flow of accurate information from corporate offices to investors and other interested parties.  But SOX, as the Act is called by most corporate attorneys, has created significant headaches for corporate legal departments, particularly for smaller public companies.  The Government Accountability Office (GAO) has just released this report about SOX’s impact on companies, and the report concludes that:

costs associated with implementing the Sarbanes-Oxley Act—particularly those costs associated with the internal control provisions in section 404—were disproportionately higher (as a percentage of revenues) for smaller public companies. In complying with the act, smaller companies noted that they incurred higher audit fees and other costs, such as hiring more staff or paying for outside consultants, to comply with the act’s provisions. Further, resource and expertise limitations that characterize many smaller companies as well as their general lack of familiarity or experience with formal internal control frameworks contributed to the challenges and increased costs they faced during section 404 implementation. Along with other market factors, the act may have encouraged a relatively small number of smaller public companies to go private, foregoing sources of funding that were potentially more diversified and may be less expensive for many of these companies.

Want to find more GAO reports?  Visit the GPO Access pages, which allow you to search GAO reports from 1995-present.

On April 12, the United States Supreme Court approved new Federal Rule of Appellate Procedure 32.1, which permits attorneys to cite to unpublished federal court opinions issued on or after January 1, 2007.  This new rule will take effect on December 1, 2006, unless Congress takes action to reject or modify the approved rule.  I’m pleased to see the federal judiciary eliminate the prohibition on citing unpublished decisions.  As the committee report emphasizes, the circuits have developed very different rules concerning the citation of unpublished opinions for persuasive value, and it’s confusing to practitioners to try to determine when such decisions can be cited and when their use is forbidden.  Thanks to Law Librarian Blog for the tip. 

The New York Times recently revamped its website and the newspaper is also starting to experiment with different content delivery technology, including blogs.  For the transactional lawyer or professor specializing in corporate law, the most useful of these new websites may be Dealbook.  Launched last month, Dealbook provides updates about Wall Street deals and the business world.  There’s not much in the way of opinion on the site, but it’s an excellent current awareness resource because it compiles news from several different financial news sources on one site.  You’ll find the latest news on mergers and acquisitions, investment banking, IPOs, private equity, hedge funds, venture capital, and the legal community.  Best of all, the site is frequently updated throughout the day.

Arizona State University has decided to rename its law school in honor of recently-retired Supreme Court Justice Sandra Day O’Connor.  According to this press release, ASU’s law school will henceforth be called the Sandra Day O’Connor College of Law at ASU.  The Dean of ASU’s law school, Patricia White, stated "We are very excited about the opportunity to be the first law school named after a contemporary woman...One cannot overestimate Justice O’Connor’s importance as a role model for women and how central her success has been to the acceptance of women in legal practice and the judiciary." 

Ever wonder why case names include the name of a particular government official?  Slate’s Daniel Engber has an interesting little piece that explains how lawsuits get their names and describes the government’s recent efforts to eliminate certain officials as defendants in lawsuits.

Thirty-three Ninth Circuit judges, including Alex Kozinski and Chief Judge Mary Schroeder, have recently endorsed this statement in opposition to the proposed Ninth Circuit split.  Here is the statement’s concluding paragraph:

In sum, we believe the case for splitting the circuit has not been made. Yes, we are big and our territory is wide, but we have shown that we can function effectively and efficiently despite—indeed because of—our size. Large organizations, whether they be corporations or courts, profit from economies of scale. We have made size our friend rather than our enemy; other courts of appeals will have no choice but to follow suit, because in one generation, two at the most, they will be where we are today. Which is why the overwhelming number of judges of the Ninth Circuit, and the lawyers who practice before us—the people who know the most about the court’s operation—strongly oppose the split. The time has come to put this bad idea behind us and get on with the business of administering justice.

For an opposing view, you can read Judge O’Scannlain’s piece in support of the Ninth Circuit split here.

Last Friday, Judge James Ware issued his opinion in Gonzales v. Google, granting in part and denying in part the Department of Justice’s motion to compel Google’s compliance with the government’s subpoena.  Judge Ware ruled that Google must turn over a sample of 50,000 URLs randomly selected from Google’s databases.  However, he refused DOJ’s request to compel Google to produce a log of 5,000 search queries, stating that "the marginal burden of loss of trust by Google’s users based on Google’s disclosure of its users’ search queries to the Government outweighs the duplicative disclosure’s likely benefit to the Government’s study."  On the official Google blog, Google’s in-house attorney, Nicole Wong, describes the court ruling "as a clear victory for our users and for our company."  I would agree.  Judge Ware’s opinion reveals that he was very concerned about users’ privacy perceptions and the possibility that search query data could be used for law enforcement purposes despite DOJ’s best intentions, emphasizing that "it is conceivable that the Government may have an obligation to pursue information received for unrelated litigation purposes under certain circumstances regardless of the restrictiveness of a protective order." The decision will at least make government agencies think twice before they go on another Google fishing expedition.  What remains to be seen is if the other search engine companies that complied with the DOJ’s original subpoena (Yahoo!, MSN Search, and others) will begin to fight overreaching government requests for search data as well.

After a hearing in federal district court in San Jose yesterday, it appears that Judge Ware will order Google to turn over at least some of the search data requested by the U.S. Department of Justice several months ago.  However, according to the SF Chronicle’s story on the hearing, Judge Ware did express some reservations about granting DOJ access to everything that the agency asked for, stating some misgivings "about revealing user search terms, citing public perception that the government might scour the database as part of a digital dragnet."  It is interesting to note that Google’s arguments at yesterday’s hearing appear to have placed more emphasis upon user privacy concerns.  For example, one of the Google attorneys noted that search terms can contain personal identifying information, such as searchers’ social security numbers, or terms that could spark interest from law enforcement authorities, such as "White House bombing location."  Based on Google’s past arguments, I would have expected its lawyers to focus much more on the company’s concerns about divulging trade secrets.  At any rate, it appears that Google’s decision to fight the subpoena will at least result in some restrictions on the types of data that Google will have to divulge. 

In an 8-0 opinion released today, the U.S. Supreme Court ruled that Congress could require colleges and universities to furnish equal access to military recruiters as a condition of receiving federal funds without running afoul of the First Amendment.  Chief Justice John Roberts Jr. wrote the unanimous opinion.  Howard Bashman’s How Appealing has an extensive roundup of news articles and online commentary about Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

It seems like everyone’s discussing the results of a recent poll demonstrating that Americans know more about the TV show "The Simpsons" than they do about the United States Constitution.  According to the poll, less than one percent of respondents could identify the five rights protected by the First Amendment, which the poll listed as freedom of press, speech, assembly, religion, and the right to petition the government.  However, 20 percent of respondents could identify all five members of the Simpsons family by name.  Some poll participants also believed that the Constitution protected an individual’s right to own a pet and drive a car.  As you can imagine, this news has generated quite a bit of chatter in the blogosphere.  For example, the Volokh Conspiracy’s Dale Carpenter, a constitutional law professor at the University of Minnesota, challenges the poll author’s assumption that the First Amendment only enumerates five freedoms:  "By the way, I count six (not five) freedoms explicitly listed in the First Amendment: no establishment of religion, free exercise, free speech, press, assembly, and petition. If we added the unenumerated freedom of association we’d get to seven."  You can read more blog commentary on the poll here.

The House Subcommittee on Africa, Global Human Rights, and International Operations held a hearing last week on "The Internet in China: A Tool for Freedom or Suppression?".  The hearing featured testimony from human rights and free speech advocates, such as Radio Free Asia and Human Rights in China.  Most of the American search engine companies doing business in China also testified, including Google, Microsoft, and Yahoo! Inc.  If you click on the link above, you can access a webcast of the hearing as well as PDF copies of all of the hearing testimony.

The online version of the Wall Street Journal published an excellent story this week on the viability of law reviews, which is a "must-read" for law review editors and faculty.  According to the article, "law professors are looking beyond law reviews, moving relevant and timely commentary to the Internet and blogosphere."  As the article points out, the academic legal community is starting to take aim at law reviews.  By now, most of us have read Richard Posner’s piece, "Against the Law Reviews," in which he states that "too many articles are too long, too dull, and too heavily annotated, and . . . many interdisciplinary articles are published that have no merit at all."  And Professor Rosa Brooks at the University of Virginia asked in a recent LawCulture post, "Is there any good reason, post-tenure, not to eschew law reviews for books and other less stultifying genres, on the theory that people beyond my immediate family may then read what I write?"  Some journals are responding by moving content online, developing blog-like online communities such as The Pocket Part, and insisting on shorter articles.  I don’t think that the journals will vanish quickly -- after all, scholarly publications are part of law school tradition, and law schools tend to move fairly slowly when it comes to dispensing with traditional features of the law school experience.  However, I do believe that scholarly journals are going to have to become more tech-savvy if they want to appeal to a wider audience.  It seems like discussing some of the measures described in this article would be a great place to start.  

The New York Times featured a story yesterday about the decline in law school applications.  According to the article, applications fell by 4.6% last year, and have declined by about 9.5% so far this year.  What’s behind the decline?  TV show creator David E. Kelley voiced a novel theory, speculating that the "more lawyers there are, the more people are out there to encourage others not to go to law school." 

The Washington Post has created a page devoted to the Senate Judiciary Committee’s hearings on Judge Samuel Alito’s nomination to the U.S. Supreme Court. If you’re looking for hearing transcripts, photos, or Alito biographical information, this page provides one-stop shopping.

Thanks to beSpacific for originally pointing out the Washington Post’s coverage of the hearings.

The Supreme Court heard oral arguments last Tuesday in Rumsfeld v. FAIR (Forum for Academic and Institutional Rights).  The basic issue:  Does the federal statute popularly known as the Solomon Amendment (10 U.S.C. sec. 983) violate the First Amendment rights of law schools?  The Solomon Amendment basically requires that universities give military and non-military recruiters equal access to students and campus career resources.  If universities refuse to provide the military with such access, the statute permits the government to withdraw federal funds for research and other university activities.  Law schools with antidiscrimination policies prohibiting discrimination based on sexual orientation argue that, under the First Amendment, Congress should not be able to require universities to suspend their antidiscrimination policies by permitting military recruiters on campus.  For a selection of news articles about the case, see Howard Bashman's excellent blog, How Appealing.  For an audio file of oral arguments, visit the Oyez website.  You can access the parties' briefs at the ABA website.  As always, SCOTUSblog has a wealth of links, analyses, and other resources.

Today’s Wall Street Journal declares that the "California bar exam has created misery for thousands of aspiring and practicing lawyers."  Wondering just how tough the California bar exam is?  The Wall Street Journal reports that Kathleen Sullivan, the former dean of Stanford Law School, did not pass the July 2005 California bar exam.  If you’re interested in reading the entire WSJ article, visit the law library’s newspaper collection right next to the circulation desk. 

If you’re a December graduate who is already worrying about the upcoming February bar exam, don’t miss Heafey’s recently updated "Guide to Bar Exam Resources."  We can’t take the California bar exam for you, but we’ve compiled a very handy list of print and online resources that you can use to prepare for the exam.