The Changing Nature of Law Practice: Commercial Free Speech ala Citizens United and Law Advertising by the Legal Profession ala Bates

We are often decades ahead of the trend, and this -- again -- is one such case.

During our law teaching tenure at the University of Trier Law School, our favorite case for inclusion in law school final examinations was Bates v. State Bar of Arizona, 433 U.S. 350 (1977), a decision in which the United States Supreme Court upheld the Constitutional right of attorneys to advertise their professional legal services.

We taught that Bates was a more important case than people thought. Indeed, Bates was a forerunner of the "commercial free speech" championed by the U.S. Supreme Court in Citizens United v. Federal Election Commission. For a modern take, see Apt46.net.

As can be read at the American Bar Association in Lawyer Advertising and Solicitation Chapter from Lawyer Advertising at the Crossroads, monopolistically-oriented local State bar associations in past years have had serious difficulties in abiding by the law as set out in Bates.

The controversy centering on "legal advertising" by attorneys is handled by Jacob Gershman at the Wall Street Journal Law Blog in
Need a Lawyer? Legal Ads Are Proliferating, Says New Report

where he refers to an article by Robert Trigaux in the Tampa Bay Times in
Tampa Bay leads the nation in number of lawyer ads on TV

and also to an "On the Case" blog posting by Alison Frankel of Reuters at
In defense of trial lawyers advertising for clients.

This entire matter has a much larger component which points to the changing nature of law practice in general, as discussed by Renee Newman Knake in her Democratizing the Delivery of Legal Services, where she writes in conclusion:

"This Article is the first to identify a jurisprudential thread of cases supporting the corporation’s First Amendment right to deliver legal services through an arrangement involving ownership of or investment in a law practice, notwithstanding bar regulators' historic distaste for such relationships. Proponents of corporate law practice ownership and investment maintain that this will bring affordable representation to the general population and address the well-documented, unmet need for lawyers. Opponents counter that corporate involvement will exacerbate the already poor reputation of lawyers, undermine lawyer independence, and subject lawyers to insurmountable conflicts of interests driven by a profit motive instead of service to the client. Neither side, however, seems to fully appreciate the First Amendment interests at stake in the delivery of legal services."

Given the recent precedent of Citizens United in firmly establishing "commercial free speech" as a constitutional right, many of the special rules and regulations of local State bars that suppress attorney free speech are clearly unconstitutional, regardless of the motives that lie behind them.

Advertising by the legal profession is thus likely to increase in coming years.

People's Confidence in Global Governance Lost - David Brooks at the New York Times Looks at Emerging Outsiders

From one point of view, politics is a branch of "the law" in the broader sense, since it has to do with governance, which always involves commandments, rules, orders, "have to's" and/or systems of law and decision-making.

The erosion of people's confidence in global governance is thus part of the breakdown of existing systems of "law and order".

David Brooks at the New York Times looks at

Enter the Age of the Outsiders

Hat tip to CaryGEE.

Google Book Scanning is Fair Use: 2nd Circuit Court of Appeals Decision Supports Reasoning Presented on LawPundit 10 Years Ago

It took the legal system 10 years, but they finally got it right.

Book scanning as done by Google Books, formerly Google Print (now part of Alphabet Inc.) is "fair use" in the eyes of the law according to a decision of the Second Circuit Court of Appeals issued yesterday (see Reuters), October 16, 2015, in the case Authors Guild, Inc. v., Google, Inc., Docket No. 13-4829-cv.

The Circuit Court judges on the 2nd Circuit panel for the present decision were:

Pierre N. Leval (note: Harvard Law School graduate)
José A. Cabranes (note: Yale Law School graduate)
Barrington D. Parker (note: Yale Law School graduate)

Judge Leval wrote the opinion. These are the kinds of significant and correctly decided judicial cases that result when top legal minds are at work.
The .pdf of the court decision is downloadable here via this link.

This Circuit Court decision ends more than 10 years of litigation, whereby the class certification was rightly rejected in 2013 by the 2nd Circuit and the case remanded for consideration of Google's fair use defense, a defense upheld at the District Court level by Judge Denny Chin (sitting by designation) and now upheld at the Circuit Court level by a 3-judge panel.

See generally for reports covering yesterday's decision:

• Joe Mullin of Law & Disorder/Civilization & Discontents at Ars Technica in Appeals court rules that Google book scanning is fair use: After nearly a decade of litigation, a landmark win , and
  
  
• Cory Doctorow at BoingBoing in Titanic victory for fair use: appeals court says Google's book-scanning is legal

_________

Our track record in correctly calling the ultimate resolution of important legal issues in the intellectual copyright field is nearly flawless (just look at patents) and, as here, we are usually 10 or more years ahead of actual developments.

That applies not just to legal issues in general but also to our publications about the history of civilization, linguistics, ancient astronomy and archaeology, where our basic conclusions will be substantiated in coming years. We write for the very top echelons, and that is only a handful of people, if they can be found.

As regards the Artists Guild vs. Google, we wrote more than ten years ago in various LawPundit postings as follows:

In Author's Guild v. Google Print (GooglePrint) we quoted Larry Lessig:

"Lawrence Lessig at Lessig Blog comments:

"So too should common sense revolt at the claims of this law suit. I’m an academic, so this is a bit biased, but: Google Print could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible."

In Google Print or Library – Who is the "Copier" according to Law?
we wrote inter alia:

"We remain convinced that what Google is doing - or planning to do, by offering snippets of an existing database for its search engine, is permissible transformative use - and thus fair use under § 107 of the U.S. Copyright Act." 

In Transformative Use Justifies GooglePrint Scans of Entire Books as Fair Use we concluded inter alia:

"[I]f the judges find against Google Print [now "Google Books"], they basically have to invalidate the entire process of search engine servers storing masses of online copyrighted material, the corpus of which they access in order to provide useful search results in “snippet” form. A decision for the Author’s Guild would simply lead to internet search chaos, and that is not the role of the courts. They have to apply the law sensibly. Hence, we think Google Print will win."

Of course, that is not all. One should read the above postings in full for a complete picture of the applicable legal arguments.

See also our Twenty Key Questions for Author’s Guild v. Google way back when.

Offshore Tax Havens of Fortune 500 Companies and American Corporate Untaxed Profits as Gifts to Corporations by Congress

America has increasingly become a class-structured society divided into rich and poor and much of the problem derives from law-based viz. legislatively imposed tax inequality, which has generated a great number of tax myths.

Via the alumni newsletter of Law@Stanford we were led to the YouTube video on American corporate offshore untaxed profits, as Stanford's Joseph Bankman (Ralph M. Parsons Professor of Law and Business) is interviewed at KQED News. Law@Stanford writes:

"Professor Joseph Bankman discusses the practice by some American companies of holding an estimated total of 2.1 trillion dollars in profits offshore to avoid paying taxes."

The interview points to the Bay area companies  Apple, Cisco, Google, Hewlett-Packard, Oracle, Chevron, and Intel, but the scope of the problem is much larger, as a study of Fortune 500 companies proves.

The organization Citizens for Task Justice has recent financial figures at the .pdf Offshore Shell Games 2015: The Use of Offshore Tax Havens by Fortune 500 Companies, October, 2015. The recommendations made there are by the U.S. Public Interest Research Group Education Fund and Citizens for Tax Justice. The Executive Summary provides inter alia as follows:

"U.S.-based multinational corporations are allowed to play by a different set of rules than small and domestic businesses or individuals when it comes to the tax code. Rather than paying their fair share, many multinational corporations use accounting tricks to pretend for tax purposes that a substantial portion of their profits are generated in offshore tax havens, countries with minimal or no taxes where a company’s presence may be as little as a mailbox. Multinational corporations’ use of tax havens allows them to avoid an estimated $90 billion in federal income taxes each year.

Congress, by failing to take action to end this tax avoidance, forces ordinary Americans to make up the difference. Every dollar in taxes that corporations avoid by using tax havens must be balanced by higher taxes on individuals, cuts to public investments and public services, or increased federal debt.

This study examines the use of tax havens Fortune 500 companies in 2014. It reveals that tax haven use is ubiquitous among America’s largest companies and that a narrow set of companies benefits disproportionately.

Most of America’s largest corporations maintain subsidiaries in offshore tax havens. At least 358 companies, nearly 72 percent of the Fortune 500, operate subsidiaries in tax haven jurisdictions as of the end of 2014."

What are the individuals in the current group of Presidential election candidates going to do about this problem and why is this matter of tax inequality not a central question directed to them during the televized debates?

So-Called "Legal Scholars" Inciting Disobedience of U.S. Supreme Court Decisions Appear Not to Understand the Fundamentals of "The Law"

America currently has numerous serious problems, not the least of which are people in the legal profession who appear not to understand "the law".

Our statement above reacts to an article at cnsnews.com headlined Legal Scholars Urge Officeholders: Refuse to Accept Same-Sex Marriage Opinion as Binding Precedent.

To our great astonishment so-called "legal scholars" urge government officials in the United States to ignore U.S. Supreme Court decisions.

The entire basis of "law and order" in the civilized world, especially for people conservatively minded, is that law court decisions must be obeyed, even if they involve minor transgressions such as illegal parking or minor traffic violations.

Imagine if U.S. citizens and residents could select which laws to follow and which to ignore. There would be anarchy and chaos everywhere. We already have enough examples worldwide of the consequences of the breakdown of judicially imposed "law and order".

How can people within the legal profession seriously incite government employees to disregard U.S. Supreme Court decisions and thus to feel free to "pick and choose" the laws and court decisions that they choose to obey in the exercise of their paid and sworn duties?

They have a legal option: if government officials disagree strongly with what the laws and court decisions tell them to do, then they should look for another job.

Who has the legal right here -- according to law?

It is the U.S. Supreme Court which possesses Constitutional jurisdiction as the nation's highest court to have the last say on what is constitutional and what is not constitutional as a matter of law.

Individual citizens, also as government employees, are free of course to have their own "opinions" about U.S. Supreme Court decisions and the legal, political, economic and societal issues to which those decisions may relate, but they have ZERO jurisdiction to decide what is constitutional as a matter of law and what is not constitutional in any particular government-related matter.

In the government offices which they hold, government officials are sworn to uphold the nation's laws, and what those laws require is decided by the nation's highest court, and not by individual government employees either in their private or employment capacities.

One can be sure that the present ultra-conservative U.S. Supreme Court has issued many more decisions which are repugnant to liberal views than the decisions they have made which are opposed by those who oppose the Supreme Court's decision in the Obergefell v. Hodges decision.

Picking out one case that did not go their way as a case for disobedience is ludicrous. If what the "alleged" legal scholars write were true, then we could all just ignore any Supreme Court decision we chose. Just do as we please. LOL.

We say "so-called" and "alleged" legal scholars because the label "legal scholar" generally derives from some kind of authority of position granted to an individual by some organization or institution which is recognized as having the jurisdiction to grant that authority of position in contemporary American society.

But why give ANY credence to the decisions of those lesser institutions, including the titles they have granted, if the dictates of the much higher institution, the U.S. Supreme Court, are incited to be ignored?

What do we care what "title" some group has granted to ANYONE?

Thankfully, civilized society is governed by the sane consent of the governed to the main rules and orders of civilized life in a democratic nation such as the United States.

If that were not so, then people would feel free to challenge anyone and any institution, including the so-called "legal scholars" and the institutions who pay their salaries, to which the average U.S. citizen or resident has no "privity", i.e. they mean nothing to them, either in law or in fact.

Judge Learned Hand commented on "the spirit of liberty" as follows [formatted]:

"What do we mean when we say that first of all we seek liberty?

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.

These are false hopes; believe me, these are false hopes.

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it."

If the dictates of the highest court of law of the nation are not to be observed, then government and academic positions are equally non-sacrosanct from challenge and can be alleged to mean "nothing". Who says you are who you are? What is the authority? And why should we recognize THAT?

Those who choose to attack the pillars of society must recognize that in doing so, they also destroy the foundation upon which they themselves are sitting.

It reminds us of James Clerk Maxwell's poem (Maxwell was the founder of electromagnetism and one of the greats of modern science) which he wrote as his "notes" regarding the President's Address at the British Association, 1874. His comments on "petty promotion[s] in nebulous kingdoms of mist" are instructive: 

"In the very beginnings of science,
the parsons, who managed things then,
Being handy with hammer and chisel,
made gods in the likeness of men;

Till Commerce arose, and at length
some men of exceptional power
Supplanted both demons and gods by the atoms,
which last to this hour.

Yet they did not abolish the gods,
but they sent them well out of the way,
With the rarest of nectar to drink,
and blue-fields of nothing to sway.

From nothing comes nothing, they told us
naught happens by chance, but by fate;
There is nothing but atoms and void,
all else is mere whims out of date!

Then why should a man curry favour
with beings who cannot exist,
To compass some petty promotion
in nebulous kingdoms of mist?

But not by the rays of the sun,
nor the glittering shafts of the day,
Must the fear of the gods be dispelled,
but by words, and their wonderful play.

So treading a path all untrod,
the poet-philosopher sings
Of the seeds of the mighty world
the first-beginnings of things;

How freely he scatters his atoms
before the beginning of years;
How he clothes them with force as a garment,
those small incompressible spheres!

Nor yet does he leave them hard-hearted
he dowers them with love and with hate,
Like spherical small British A[...]
in infinitesimal state;

Till just as that living Plato,
whom foreigners nickname Plateau,
Drops oil in his whisky-and-water
(for foreigners sweeten it so);

Each drop keeps apart from the other,
enclosed in a flexible skin,
Till touched by the gentle emotion
evolved by the prick of a pin:

Thus in atoms a simple collision
excites a sensational thrill,
Evolved through all sorts of emotion,
as sense, understanding, and will

(For by laying their heads all together,
the atoms, as councillors do,
May combine to express an opinion
to every one of them new).

There is nobody here, I should say,
has felt true indignation at all,
Till an indignation meeting
is held in the Ulster Hall;

Then gathers the wave of emotion,
then noble feelings arise,
Till you all pass a resolution
which takes every man by surprise.

Thus the pure elementary atom,
the unit of mass and of thought,
By force of mere juxtaposition
to life and sensation is brought;

So, down through untold generations,
transmission of structureless germs
Enables our race to inherit the thoughts
of beasts, fishes, and worms.

We honour our fathers and mothers,
grandfathers and grandmothers too;
But how shall we honour the vista
of ancestors now in our view?

First, then, let us honour the atom,
so lively, so wise, and so small;
The atomists next let us praise,
Epicurus, Lucretius, and all.

Let us damn with faint praise Bishop Butler,
in whom many atoms combined
To form that remarkable structure,
it pleased him to call his mind.

Last, praise we the noble body
to which, for the time, we belong,
Ere yet the swift whirl of the atoms
has hurried us, ruthless, along,

The British Association
like Leviathan worshipped by Hobbes,
The incarnation of wisdom,
built up of our witless nobs,

Which will carry on endless discussions,
when I, and probably you,
Have melted in infinite azure
in English, till all is blue."

- James Clerk Maxwell,
Notes re the President's Address
at the British Association, 1874

The 11 "Nations" of America: In Which Do YOU Live?

Reid Wilson in GovBeat at the Washington Post asks Which of the 11 American nations do you live in? Curious? Take a look.

Landmark Electronic Communications Privacy Act Signed Into Law in California as the Most Comprehensive Digital Privacy Law in the USA

The landmark Electronic Communications Privacy Act (ECPA viz. CalECPA) in the State of California, USA, has been signed into law by Governor Jerry Brown.

CalECPA provides that a warrant is required for a great variety of digital searches and seizures by law enforcement agencies and similar bodies.

Read California Now Has the Nation's Best Digital Privacy Law in an article by Kim Zetter at WIRED, who writes:

"The landmark Electronic Communications Privacy Act bars any state law enforcement agency or other investigative entity from compelling a business to turn over any metadata or digital communications—including emails, texts, documents stored in the cloud—without a warrant. It also requires a warrant to track the location of electronic devices like mobile phones, or to search them.

The legislation, which easily passed the Legislature last month, is the most comprehensive in the country, says the ACLU."

Read the article here.

Alphabet Goes Official at Google, er ... Alphabet

Make sure you get OUR book FIRST

Click the link for the print version of
The Syllabic Origins of Writing and the Alphabet



Click the image above
for the Kindle edition for Kindle,
and the Amazon Kindle App for Android, iPad, iPhone

and then look at the later
-- now "going official" --

Google Alphabet.

We are ALWAYS ahead of the pack,
even ahead of Google's Alphabet.

When it comes to the REAL Alphabet,
there is only ONE leader,
and it is not Google.