Eugene Volokh's Blog, page 2648

iPhone App for Accessing PACER (The Federal Courts' Document Access System)

(Eugene Volokh)

iPhone J.D. reviews it, and likes it. The app (FedCtRecords) — written by my former student Newton Oldfather and his father — usually sells for $20, but is free. I don't have an iPhone, so I haven't checked it out; but it sounds very useful for those lawyers who do have iPhones.

The Right to Rise

(Jonathan H. Adler)

Former Florida Governor Jeb Bush in the WSJ:

The right to rise doesn't seem like something we should have to protect.

But we do. We have to make it easier for people to do the things that allow them to rise. We have to let them compete. We need to let people fight for business. We need to let people take risks. We need to let people fail. We need to let people suffer the consequences of bad decisions. And we need to let people enjoy the fruits of good decisions, even good luck.

That is what economic freedom looks like. Freedom to succeed as well as to fail, freedom to do something or nothing. People understand this. Freedom of speech, for example, means that we put up with a lot of verbal and visual garbage in order to make sure that individuals have the right to say what needs to be said, even when it is inconvenient or unpopular. We forgive the sacrifices of free speech because we value its blessings.

But when it comes to economic freedom, we are less forgiving of the cycles of growth and loss, of trial and error, and of failure and success that are part of the realities of the marketplace and life itself.

Protecting the freedom to engage in business is not the same as protecting business. Advancing the interests of politically connected capitalists does not advance capitalism. It's a lesson many of those who claim to believe in free enterprise too often forget.

Interested in Being Local Counsel in a Pro Bono Case in the District of Oregon?

(Eugene Volokh)

If you might be interested in being local counsel on a motion for new trial in a pro bono case in the U.S. District Court for the District of Oregon, please e-mail me at volokh at law.ucla.edu. Thanks!

New Review of Rehabilitating Lochner

(David Bernstein)

In the Independent Review, by attorney Jacob Huebert.

The review concludes:

Rehabilitating Lochner does what it sets out to do very well. It places Lochner in its historical context, telling us where it came from, what it actually did, who attacked it, and what those people believed. Though published by an academic press, the book is readable and should be accessible for any intelligent lay reader. At the same time, it should be informative and provocative to legal scholars. I highly recommend it to anyone interested in the topic.

Don't Break the Internet (Cont'd)

(David Post)

The Op-Ed that Mark Lemley, Dave Levine, and I wrote about the egregious intellectual property bills now pending before Congress (SOPA, Protect-IP, and their ilk) was published today in the Stanford Law Review Online, and is available here for those who are interested (i.e., anyone who cares about the future of communication on the Internet).

Of Time and Lawtalk

(Prof. Elizabeth Thornburg, guest-blogging)

Thanks so much to Eugene Volokh for the invitation to guest blog about Lawtalk:  Unknown Stories Behind Familiar Legal Expressions this week.  Working on the book was tons of fun (and a dramatic lesson in the amount of historical material now available online), and my co-authors and I are enjoying the opportunity to share what we've learned with those who are interested.  Today's topic is time, both in the sense of the provenance of legal expressions and as a measuring stick for legal fees.

In many cases, we discovered that law-related expressions are much older than people generally believe, and older than the earliest cites in the Oxford English Dictionary.  For example, I initially bought into the myth that Los Angeles police chief William H. Parker coined the phrase thin blue line in the 1950s (thanks, Wikipedia).  Not true:  in its laudatory metaphorical form (referring to the police as a line protecting the citizenry from crime), we traced this play on "thin red line" (referring to red-coated British soldiers in the Crimean War) back to a speech given by the Bishop of Coventry to the annual meeting of supporters of the Birmingham Police Institute in 1900–and as a literal reference to lines of policemen, all the way back to 1855.

A different kind of surprise, though, was how comparatively new the expression billable hour is.  In fact, billable in this sense is even now absent from the OED; it has the word only as a legal term meaning "liable to be served with a bill; indictable," and its only cite is from 1579. Billable as an accounting term meaning 'something one can bill for' seems well established by the turn of the twentieth century, although LexisNexis shows the earliest case law use of this version of billable in a 1929 case, and the earliest billable hour (actually "non-billable hours") in 1947 – and neither instance is about lawyers.

Lawyers didn't always bill by the hour (and some still do not). Early twentieth century lawyers used various methods for billing clients. Some matters were billed at a flat rate, some on a percentage basis, and many used a method called value billing. Bills were sent only sporadically and were not itemized, noting only "for services rendered."

By the 1920s, state and local bar associations began to publish minimum fee schedules, listing the appropriate charge for various kinds of legal matters.   For example, the schedule would "suggest" one fee for handling a real estate closing, another for drafting a will, and yet another for a contested divorce.  Lawyers ignored these schedules at their peril, as habitual under-charging could be treated as professional misconduct.

A mid-century movement toward "legal economics" marked a shift to charging for time rather than tasks.  In 1940, Reginald Heber Smith wrote four articles for the American Bar Association Journal advocating a more organized approach to law firm management. Among other things, he recommended monitoring and documenting lawyer productivity through "Daily Time Sheet" forms.

Then in 1957 the ABA created the Committee on Economics of Law Practice, and in 1958 went on a crusade to promote hourly billing with its pamphlet, The 1958 Lawyer and His 1938 Dollar.  This tract pointed out that lawyers who kept track of their time and billed clients accordingly made more money than those who did not. (It also noted that lawyers' earnings had failed to keep up with those of doctors and dentists). The problem, said the ABA, was that by concentrating on "devotion to public interest," lawyers were failing as businessmen, and that they should start recording and charging for their time, their "sole expendable asset."  State bar associations responded, as when a committee of the Wisconsin State Bar calculated in 1959 that an average billing rate of $18 per hour was necessary to sustain a net return of $14,500 per year.

The ABA's efforts continued into the 1960s.  The Committee published a series of pamphlets covering many phases of law practice management, culminating in the 1962 Lawyer's Handbook.  In 1966 the President of the ABA noted that 35,000 lawyers had copies of the handbook, but he still worried that too many lawyers failed to use efficient practice methods to assure an "adequate economic return."  It was during this period that billing by the hour gradually caught on, spreading from large firms to small ones, and by the late 1970s hourly billing became the norm.

The term billable hour seems to have crept into legal vocabulary only as its adoption as a billing method became established. A 1968 case is the first to use "billable hour" with respect to lawyers, and it uses quotation marks and defines the term. It seems likely, though, that bar association meetings and publications were the earliest adopters of this lingo, and those sources (including a law student letter to the editor) routinely used billable hour without explanation by the early 1970s.  As late as 1975, however, the author of an article in the journal Legal Economics still felt the need to explain "the 'billable hour' concept."

Today the billable hour is very much in the news.  Just last week the online ABA Journal reported that a law firm associate claimed he was fired for refusing to fraudulently bill 3,000 hours a year, and its weekly survey question asked "How many hours will you bill in 2011?"

But has there really been much change?  A 2007 survey showed a slight increase in alternative billing methods, and the protracted economic recession that began in December of that year encouraged further rethinking of billing practices, with the result that some large law firms report using flat rate billing or other methods more often nowadays.  But the billable hour remained firmly entrenched. As one industry observer was quoted as saying in 2007, "alternative fees are like teenage sex. There are more people talking about it than doing it, and those that are doing it don't know what they're doing."

Is Escape from a Nonsecure Courtroom a "Violent Felony"?

(Jonathan H. Adler)

Last week, in United States v. Oaks, a divided panel of the U.S. Court of Appeals for the Sixth Circuit held that escaping from a courtroom while in police custody is not a "violent felony" for sentencing purposes under the Armed Career Criminal Act if the courtroom was not a secure facility." Judge Martin wrote the opinion for the court. District Judge Hood, sitting by designation, dissented, arguing that escape from police custody at a courthouse should be considered a "violent felony."

Oaks was being held in a secure county jail before being taken by his custodian to the courthouse for an appearance on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary. Obviously the courtroom is not as secure as the county jail, but I am hard pressed to imagine an individual who is "significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a 'serious potential risk of physical injury,'" than someone who flees from law enforcement custody during an appearance in a matter in which he is facing felony charges.

Is the Mandate Necessary?

(Jonathan H. Adler)

John Goodman in the WSJ: " There is nothing that can be achieved with a mandate that can't be better achieved by a carefully designed system of tax subsidies." Goodman's argument is strengthened by the fact that the mandate, as structured in the PPACA, would increase coverage, but come nowhere close to achieving universal coverage. The mandate will increase coverage and reduce premiums on the margin, but the same could be said of many other policy options as well.

As I've noted before, whether a mandate is "necessary" to increase coverage and control costs absent a single-payer system is a separate question from whether it is a "necessary and proper" means of carrying into execution the federal government's enumerated powers.

Thoughts on the Oral Arguments in United States v. Nosal

(Orin Kerr)

I've blogged a lot about the Ninth Circuit's en banc case in United States v. Nosal, on the scope of the Computer Fraud and Abuse Act — and more specifically, on whether it's a federal crime to violate an express written restriction on using a computer. You can watch last Thursday's oral argument in the case here:

Chief Judge Kozinski presided, and he seemed pretty clearly on the side that I've been advocating here at the blog, in the Drew case, in my recent testimony, and in my law review articles. I was very pleased to see that, although I wasn't surprised in light of Judge Kozinski's libertarian streak. At the same time, I don't think we have enough information to count votes accurately, as only about four judges spoke in ways that might have indicated their views (two for Nosal, two for the United States, I believe). I'm cautiously optimistic, but we'll have to see how the votes shake out in the end.

I'll hide my more detailed reactions below the break for the handful of CFAA nerds in the VC readership .....

Welcome, nerds: I hope dad has the old cruise control set at 35.  Ok, now on to the details:

(1) In her argument for the United States, DOJ lawyer Jenny Ellickson argued that intentionally violating a Term of Service on Facebook or Match.com was in fact a federal crime under 18 U.S.C. 1030(a)(2)(C). She stated that DOJ would never prosecute such a case, however, and that the big practical problem was proof: DOJ would need proof that the defendant actually knew of the Term of Service violated, such that the act of violating the Term of Service was an intentional exceeding of authorized access.

Judge Kozinski wasn't impressed by that argument, and I think the Lori Drew prosecution shows why he is right to be underwhelmed. In Drew, the Justice Department did in fact authorize and bring such a prosecution. Further, there was no evidence that Drew knew of the Term of Service that had been violated. Drew hadn't even been the one using the computer when the profile was created, and even the person who created the profile (the government's own witness) had testified that she never read the Term of Service. Indeed, in Drew, the Justice Department argued that requiring proof that Drew knew of the Terms of Service would "raise the scienter requirement" of the statute "in an unprecedented fashion beyond that found in securities, tax, or other white collar cases." (See DOJ Surreply filed 1/5/09 at p.5). According to the Justice Department in the Drew case, it was sufficient that Drew had later tried to hide her role in creating the profile: That showed that Drew knew it was wrong to lie on MySpace, and thus was proof she had intentionally exceeded authorized access. Given the difference between DOJ's assurance in Nosal that it would never bring such a case and that the burden of proving intent would be high, and the fact that DOJ did bring such a case and took a very different view of the intent standard when it did, I think Judge Kozinski was right to be skeptical.

(2) Nosal's basic argument was the argument I made in my 2003 Cybercrime's Scope article: That the scope of 1030 should be limited to the circumvention of code-based restrictions. Nosal also argued that vagueness concerns require a limiting construction of the statute, a position I argued in this 2010 Minnesota Law Review article and that was subsequently given more heft by Skilling v. United States, which applied a similar approach to limit the honest services statute. Some of the judges were puzzled by the reference to vagueness doctrine, apparently because they had forgotten the overbreadth aspect to vagueness doctrine; while most people remember the facial vagueness test, the overbreadth/discriminatory enforcement test is the one that is often more important in practice (see page 14–15 of the Minnesota draft linked to above). In my view, both the statutory interpretation argument and the vagueness argument work together: Both the rule of lenity concerns and the need to construe the statute to avoid potential vagueness problems both point to the need to adopt a narrow interpretation of the statute.

(3) The judges spent a lot of time trying to figure out if 1030(a)(2)(C) is a lesser included offense of 1030(a)(4). I wasn't entirely sure why that was supposed to be relevant: Nosal's argument is an argument of law about the proper interpretation of "exceeding authorized access," which is common to both sections and must have the same interpretation throughout the statute.

(4) Judge Kozinski asked Nosal's lawyer what to make of Theofel v. Farey-Jones, which held that serving an overly broad subpoena on a company that has a en a-mail server exceeded authorized access in the context of an 18 US.C. 2701 civil claim. This is a tricky question because Judge Kozinski authored Theofel, and yet Theofel is arguably a good case for the government: In holding that serving an overly broad subpoena had exceeded authorized access into the computer where the e-mails sought were stored, Theofel hints at a broad scope of "exceeds authorized access." I'm no fan of this aspect of Theofel, but I don't think Theofel is inconsistent with Nosal's position for two reasons. First, it's arguable that 2701 and 1030 are sufficiently different that different principles should govern their interpretation. They have somewhat different text, and vastly different scope: The scope of 2701 is very narrow, while 1030 is extremely broad. Second, even if you accept that the 2701 framework of Theofel should govern the 1030 framework of Nosal, the analytic framework of Theofel is sufficiently flexible that you can reach Nosal's position using it (see the argument we made in the Lori Drew case in this Supplement to Rule 29 Motion on pages 4–7).

(5) One of the judges asked if accepting Nosal's position would require creating a clear circuit split with the 11th Circuit in United States v. Rodriguez, a case I blogged about here. I think it's possible to try to write an opinion for Nosal in a way that avoids a clear split with Rodriguez, but it would require some fancy footwork: You'd have to have to argue that the vagueness concerns are less pressing in the government employment setting than in the private sector setting. More broadly, I think this issue has caused so much uncertainty in the lower courts that a Supreme Court cert grant to settle the issue might not be a bad thing. At the same time, whether a clear 5th/9th split generated by an affirmance in Nosal would be cert-worthy may depend on what happens in Congress.  If Congress goes ahead and amends the definition of exceeds authorized access, as , then the Court would very likely stay out and let the split stay on the books: If the split is as to an amended statute, there is little point in the Supreme Court stepping in. But then that dynamic can work both ways: If Congress sees a clear split it may stay its hand and wait for the Court to sort it out before amending the statute. Stay tuned, as always.

Beth Thornburg and James E. Clapp, Guest-Blogging

(Eugene Volokh)

I'm delighted to report that Beth Thornburg and James E. Clapp — who, together with Marc Galanter and Fred Shapiro, are the coauthors of the fascinating Lawtalk: The Unknown Stories Behind Familiar Legal Expressions will be guest-blogging this week on the general topic of their book. (Beth Thornburg is a professor at SMU Dedman School of Law, where she teaches and writes about civil procedure and alternative dispute resolution; James Clapp is a lawyer and the author of Random House Webster's Dictionary of the Law; Marc Galanter is John & Rylla Bosshard Professor Emeritus of Law and South Asian Studies, University of Wisconsin–Madison, and the author of Lowering the Bar: Lawyer Jokes and Legal Culture; and Fred R. Shapiro is associate librarian and lecturer in legal research, Yale Law School, the editor of The Yale Book of Quotations, and a major contributor to both the second and the third editions of the Oxford English Dictionary.)

I've been much enjoying Lawtalk myself, and I think many of our readers would as well. Though a few of the entries have an ideological slant that I found off-putting, I've seen no evidence that the slant generally undermines any of the etymological discussion — the discussion that forms the overwhelming majority of the book — and on balance I've still been finding the book to be a very interesting and informative read. I much look forward to our guest-bloggers' posts on the subject.