Monthly Archives: August 2010

Online CLE: The Future Is Now?

I have recently discovered the power of the LinkedIn Groups and the window it offers it offers into the psyche of legal community. Last week I signed up for a couple of groups which sounded interesting, one of which was the ABA Young Lawyers Division.

Since we videotape quite a few events, I often have the pleasure of attending numerous CLE presentations.  I am always baffled why there aren’t more young attorneys at the events that I attend.  And I have noticed at least three times in the last few months that even the speakers have pointed this out.  I’m no spring chicken at thirty-six, but I have often found myself the youngest person in the room by quite a few years.

A few weeks ago I posed this question to the LinkedIn Group for the ABA Young Lawyers Division: Why don’t more young attorneys attend CLE events?  Since I posted the comment, numerous comments have been posted and I am amazed at the great posts that people took the time to write – I even got an incredibly thoughtful response from an ABA Chair.

This really seems to echo the sentiment of the young attorney when it comes to CLE:

“What I have found is you need to make it worth the time and money. Many topics are too specific, beyond the current practice area of the young lawyer, or too high-end (if you will), the type of subject for enhancing an expertise, not delving into a new area. In this economy many experienced attorneys are changing their focus. ‘101 CLEs’ will garner a lot of attention, from new and experienced attorneys.”

In no particular order these were some of the other main thoughts on why more young lawyers don’t attend:

  • Expense
  • Travel
  • Time-consuming
  • Misleading
  • Not practical – not taught any “skill” that can be implemented
  • CLE events turn into “pulpits” for expert attorneys who like to hear themselves talk or feel important

Finally, someone commented that online CLE solves many of these problems (and it wasn’t me!).  Online CLE does have the power to bring attorneys around the country convenient, practical and reasonably affordable CLE.  That is what we have strived to do since Day One here at Attorney Credits.

However, someone else also aptly pointed out that many state bars cap the number of hours that an attorney can fulfill through online CLE – and there are yet other states that have altogether banned online CLE.  In Minnesota for example, attorneys must take 45 units every 3 years but they cannot use online courses to fulfill the requirement.

At this point in time I have to classify this as technophobia at it’s finest in the legal community.  Many state bars across the country must realize that society and education have evolved over the last few decades and that the law must catch up.  Technology is no longer something to fear – it is a force to embrace to make your life richer and easier. Some state bars need to realize this when it comes to online CLE.

In today’s day and age, CLE should be as convenient and affordable as possible.  In our complex, ever-changing world there is a pressing need to stay current on so many issues – from new case law and legislation to the effects of technology on the law.

I would enjoy hearing from anybody who thinks differently and that putting a cap on the number of CLE hours attorneys can attain through online CLE is a good idea.

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Network Neutrality … You Still Don’t Care?

The Internet has revolutionized society like no other invention before it. Gutenberg’s printing press was widely hailed as having the greatest influence on the course of human history – until the Internet came along.

I often think to myself how lucky we were to be born and raised during the “Digital Revolution” at a time when the Internet was born and flourished.  With the advent of the PC, the Internet and the World Wide Web, we are digital pioneers with a front row seat to the brave new world that our children will one day inherit.

Now that the Internet is out of its infancy and we have all become quite familiar with email, Google, and Facebook there is a very important discussion taking place across the country – Network Neutrality.  I have been reading about net neutrality for a while now but with discussions heating up with the FCC and private companies I have seen a number of articles and tweets about the subject.  What really piqued my interest was an article that mentioned the Government providing food stamps for poorer Americans for broadband access.[1] This type of commoditizing Internet access really struck me as odd.

But what exactly is net neutrality?

At its simplest network neutrality is the principle that all Internet traffic should be treated equally.[2] For example, if a given user pays for a certain level of Internet access, and another user pays for the same level of access, then the two users should be able to connect to each other at the subscribed level of access.

At its inception, the Internet was viewed as the ultimate, pure communication medium and it was originally developed by the Department of Defense to connect computers at different locations.  But now that it has developed into a commercial medium instead of a purely communication medium, how will the Internet be “divvied up” in the future?

As with any legislation or polarized debate, the first thing I look to see is who are the supporters and who are the opponents? Here are a couple of quotes that sum up the main arguments:

According Lawrence Lessig and Robert W. McChesney:

“Without net neutrality, the Internet would start to look like cable TV. A handful of massive companies would control access and distribution of content, deciding what you get to see and how much it costs. Major industries such as health care, finance, retailing and gambling would face huge tariffs for fast, secure Internet use … Most of the great innovators in the history of the Internet started out in their garages with great ideas and little capital. This is no accident. Network neutrality protections minimized control by the network owners, maximized competition and invited outsiders in to innovate. Net neutrality guaranteed a free and competitive market for Internet content.[3]

Proponents of net neutrality include consumer advocates, online companies and some technology companies.[4] These proponents such as Yahoo! claim that without network neutrality telecom companies will seek to impose a tiered service model in order to control the pipeline that is the Internet.  They fear that it will have the effect of removing competition from the marketplace, creating an artificial scarcity and forcing subscribers to buy services in an uncompetitive market. Many proponents believe that net neutrality preserves our current Digital freedoms, including  Vinton Cerf (considered a “father of the Internet), Tim Berners-Lee (creator of the Web), and many other leading experts and thinkers have spoken out in favor of network neutrality.[5]

Robert Pepper thinks differently:[6]

“The supporters of net neutrality regulation believe that more rules are necessary. In their view, without greater regulation, service providers might parcel out bandwidth or services, creating a bifurcated world in which the wealthy enjoy first-class Internet access, while everyone else is left with slow connections and degraded content. That scenario, however, is a false paradigm. Such an all-or-nothing world doesn’t exist today, nor will it exist in the future. Without additional regulation, service providers are likely to continue doing what they are doing. They will continue to offer a variety of broadband service plans at a variety of price points to suit every type of consumer.”[7]

Opponents of net neutrality include large hardware companies and members of the cable and telecom industries. They characterize its regulations as “a solution in search of a problem”, arguing that broadband service providers have no plans to block content or degrade network performance. Further, they feel that websites like YouTube free ride off an infrastructure developed, built, and paid for by the telecom industry. This opposition comes from think tanks such as the Cato Institute, the Competitive Enterprise Institute, Goldwater Institute and Americans for Tax Reform, in addition to telecom companies like AT&T and Verizon.

While net neutrality may not be the most fair paradigm for the telecom companies, it seems to be the most fair system for the consumers and businesses that utilize the Internet.  Could you imagine if YouTube had to pay extra for all the video running through their pipes?  Or if a company like T-Mobil could prevent competition like Skype from operating on their broadband structure.

Further, without net neutrality broadband companies will be able to restrict certain types of Internet traffic and competition.  And this has already happened in our non-broadband world with P2P traffic, what makes you think it won’t happen on our new broadband world?

For example in Germany in April 2009, T-Mobile announced that it was blocking Skype, even though Skype is both a key application for voice communication over the Internet and consumes only a small amount of bandwidth.  The problem is that T-Mobile is the largest German mobile telecommunication company and Skype would compete with some of T-Mobile’s products and services. T-Mobile offers Internet access solely in conjunction with telephone landline access, therefore directly competing with Skype.

Much like the great copyright debate and the Entertainment Industry claiming that the ‘sky is falling’ with every new invention since the Player Piano, the net neutrality debate is nothing new under the sun and will continue for decades to come. The concept of network neutrality predates the current Internet focused debate, existing since the age of the telegraph.[8] In 1860, the Pacific Telegraph Act of 1860 was passed to subsidize a telegraph line.[9] In 1888, Almon Brown Strowger invented an automatic telephone exchange to bypass non-neutral telephone operators who redirected calls for profit – and as you can tell the telecom industry is still here and flourishing.[10]

Who holds the key to your digital future? In August 2010, Google and Verizon reached an agreement where they both decided to support a limited degree of network neutrality. While this agreement could be a step forward and encourage other cable companies to support net neutrality, the agreement has been criticized because of the belief that it does not protect network neutrality as strongly as it should.[11]

What truly scares me is that most Americans don’t seem to care … I guess they are too concerned with more pressing matters like Lindsay Lohan and her jail time.[12]


[1] Food stamps for broadband would bring slow ‘Net to the poor

http://arstechnica.com/tech-policy/news/2010/08/food-stamps-for-broadband-would-bring-slow-net-to-the-poor.ars

[2] Net neutrality: what is it and what does it mean?

http://www.telegraph.co.uk/technology/internet/7939531/Net-neutrality-what-is-it-and-what-does-it-mean.html

[3] No Trolls on the Internet

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/07/AR2006060702108.html

[4] Many major Internet application companies are advocates of neutrality, including Yahoo, Vonage, EBay, Amazon, and Microsoft has also taken a stance in support of neutrality regulation.

[5] Network Neutrality

http://en.wikipedia.org/wiki/Network_neutrality

[6] Robert Pepper is the senior managing director of global advanced technology policy at Cisco Systems and is the former FCC chief of policy development.

[7] Network Neutrality: Avoiding a Net Loss

http://www.ecommercetimes.com/rsstory/56272.html

[8] What is the Net Neutrality Debate?

http://sununion.com.mo/sununion/images/what-is-the-net-neutrality-da

ebate.html

[9] The Act states that, “messages received from any individual, company, or corporation, or from any telegraph lines connecting with this line at either of its termini, shall be impartially transmitted in the order of their reception, excepting that the dispatches of the government shall have priority …”

[10] Almon Brown Strowger

http://en.wikipedia.org/wiki/Almon_Brown_Strowger

[11] Net neutrality crusaders slam Verizon, Google

http://news.cnet.com/8301-30686_3-20013118-266.html

[12] Is there a “caring about broadband” divide in the US?

http://arstechnica.com/tech-policy/news/2010/08/is-there-a-caring-about-broadband-divide.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss

Prop 8, Rational Basis & The Supreme Court

I was thinking about writing about something a little lighter today like song titles and the first amendment.[1] However, I came across another interesting little New York Times article that veered me back to the serious side of the law.[2]

The big news last week was the overturning of Prop 8, which effectively strikes down the same-sex marriage ban in California. After a nearly five-month wait Judge Vaughn Walker delivered a 136-page decision in the case of Perry v. Schwarzenegger.[3] In the decision, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and lesbians.

Here are a couple of key quotes from the decision available here:

“Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect”

“Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

What struck me about the New York Times article that I read earlier entitled “In Same-Sex Ruling, an Eye on the Supreme Court” is the eventual fate of Perry v. Schwarzenegger.  Obviously the fate of the case and same-sex marriage rights are far from over, and we all know that this is all headed to the Supreme Court – an even more interesting wrinkle considering the Kagan nomination also took place last week.  And don’t forget that the Ninth Circuit will also get a chance to weigh in on the matter.

According to one expert “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.”[4] This is due to the fact that appeals courts will often overturn lower-court judges on their findings of law, but give more deference to findings of fact.  And according to the article, Judge Walker’s decision, “lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial.” Also, according to Constitutional expert Erwin Chemerinsky – dean of the law school at the University of California, Irvine – Judge Walker took a conservative approach to his findings of law, making it much harder for the Supreme Court to potentially overturn the decision.

Further, Judge Walker invoked a pretty easy standard – rational basis review – and the law still didn’t pass constitutional muster.  He could have analyzed the law through the harsh “strict scrutiny” standard that many laws fail.  He found that Proposition 8 didn’t meet a rational basis review for the legal distinction between same-sex marriage and heterosexual unions according to Professor Chemerinsky and further that gays and lesbians are the type of minority strict scrutiny was designed to protect

However, there are others who feel that the Supreme Court is not quite as constrained by the factual record and don’t seemed too concerned about the rational basis review standard invoked.  To many, it seems like too much of a stretch for this Court to hand down a sweeping decision that could overturn same-sex marriage bans across the country.

Regardless, according to the Huffington Post Walker offered a variety of findings that may be as important as the ruling itself. Among them were the following:

“Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.”

“Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”

“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.”

“Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”

“Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.”

“The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”

“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”

Whatever the outcome, it will definitely give us some insight into the minds of our two newest Justices – Elana Kagan and Sonia Sotomayor.


[1] Beach Boys label after Katy Perry’s “California Gurl”

http://news.yahoo.com/s/nm/20100805/en_nm/us_beachboys

[2] Prop 8, Rational Basis, and the SCOTUS … oh yeah, and Edward Chemerinsky too

[3] Proposition 8 was passed by California voters in November 2008.

[4] Andrew Koppelman, a professor at Northwestern Law School

http://www.nytimes.com/2010/08/06/us/06assess.html