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Fifty years of Gideon v. Wainwright

(courtesy of

Today marks the fiftieth anniversary of Gideon v. Wainwright, a landmark Supreme Court decision concerning the right to counsel.  Clarence Earl Gideon was a poor man living in Florida in 1961.  A single eyewitness accused Gideon of breaking into a local pool hall and stealing money from its vending machines.  At this time, a felonious offense.  After requesting and being denied legal counsel by the trial judge, Gideon was sentenced to 5 years in state prison.

While incarcerated, Gideon began reading and researching his case.  From his prison cell, he sent a handwritten petition to the Supreme Court requesting review of his case.  The Court granted certiorari and Abe Fortas, who would later become a Supreme Court justice, was appointed to represent Gideon.  A complete transcript and audio of the oral arguments is available from the Oyez Project.

On March 18th, 1963, in an opinion penned by Justice Hugo Black, the Court ruled in Gideon’s favor.  Invoking the Sixth Amendment, the Supreme Court’s decision in Gideon requires states to provide legal counsel to indigent defendants charged with felonies.  Subsequent decisions expanded this right to all cases punishable by imprisonment (See Argersinger v. Hamlin, 1972).

On remand, Gideon received a new trial and — with the assistance of legal counsel — was acquitted.  In 1964, Gideon’s story was made into a book, Gideon’s Trumpet (later, a critically acclaimed made-for-television movie).  Yet controversy rages on as to whether the goal of providing effective legal counsel to indigent defendants, as endorsed by Gideon, has ever been realized.

Shelby County and the Voting Rights Act

Yesterday the Supreme Court of the United States heard arguments in the Shelby v. Holder case.  Shelby County, Alabama is challenging Section 5 of the Voting Rights Act.  In 1965 the Act was created to prevent discrimination in the voting process.  Prior to the VRA there were several practices designed to disenfranchise minority voters, particularly literacy tests.  Section 4(b) of the VRA identified states and political subdivisions that were particularly at risk for voting discrimination—states that had some sort of discriminatory voting practice in place and very low voter turnout.  Most of these states were in the South.  Section 5, meanwhile, requires “preclearance”—that is, if any of the states or political subdivisions wanted to change their election laws, they had to clear it with either the Attorney General or the D.C. District Court.  In 2006, Congress renewed this provision for another 25 years. Full Story »

Happy 281st birthday, George!

Happy birthday, George!

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Although we officially celebrate it on the third Monday of February each year, George Washington’s birthday is February 22, 1732.  Many happy returns, President Washington!  If you are interested in knowing more about our first president, Mount Vernon, George Washington’s estate, maintains a website devoted to all things George.  You can even subscribe to his daily blog!

As a humble gift to the legacy of George Washington and the men who followed him, we offer a few fun presidential facts.  Earlier this month was the anniversary of Abraham Lincoln’s birth; however, the month with the most presidential birthdays remains October, with six.  In addition to being a statesman and lawyer, Abraham Lincoln was a licensed bartender and co-owner of an Illinois saloon.  Andrew Jackson was involved in over 100 duels and carried bullets from two of them in his body throughout his life. Full Story »

Happy Valentine’s Day!

Want to wish your sweetie a happy Valentine’s Day and looking for an appropriate law-related way to do it?  Try using one of these Supreme Court Valentines from Georgetown Law Weekly!  Remember, nothing says romance like Justice Scalia.  Happy studying, and happy Valentine’s Day!

The Consequences of “Saying Cheese” – Instagram and Clickthrough Agreements

Instagram LogoFirst, there were “shrink wrap” contracts – contracts accompanying physical products, such as software, in which the consumer “agreed” to to the contract by breaking the shrink wrap.  In the digital age, we have become accustomed to “clickthrough” or “clickwrap” contracts – the user agreements requiring us to click OK in order to, say, download the latest version of iTunes.  (And let’s be honest here – just as with the shrink wrap contracts, not many of us can claim to carefully read these before clicking OK.)  In legal terms, these are considered contracts of adhesion, a “standardized contract form offered to consumers of goods and services on essentially a ‘take it or leave it’ basis without affording consumer[s] realistic opportunity to bargain and under such conditions that consumer[s] cannot obtain [the] desired product or services except by acquiescing in form contract” (Black’s Law Dictionary, 6th ed.).  Due to the lack of bargaining power, courts may be lenient when it comes to particularly outrageous provisions in these contracts, but by and large they are not considered unconscionable.

To say these types of contracts are commonplace today would almost be an understatement – there are very few products you can download or internet services you can sign up for these days without encountering such an agreement.  However, as recent news reminds us, the savvy person will make an effort to know what s/he is signing up for.  This week, Instagram, a photo-sharing service that makes it simple to share photos taken with your phone, has come under a great deal of heat about the recent changes to its user agreement.  In particular, the following language has come under fire:

“Some or all of the Service may be supported by advertising revenue.  To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.”  Instagram Terms of Use – Rights, #2 – effective Jan. 16, 2013

This language is in contrast to the provision’s previous version:

“Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content.  The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.”  Instagram Terms of Use – Proprietary Rights in Content on Instagram, #2 – in effect until Jan. 16, 2013

Comparing the two provisions, they do not seem all that dissimilar.  Other provisions in both versions of the Terms of Use unequivocally state that ownership of the photos remains with the user.  However, the new provisions make clear that Instagram can financially profit from advertisers buying certain rights to your photos and information (such as username) to advertise their products.  While many Instagram users and news sources declare these changes to be an outrage and an invasion of privacy, others see it, as does Instagram, as the service’s move to be more fully functional within Facebook, which bought Instagram in September.  For example, with these new provisions, advertisers would be able to use your Instagram content to create ads for Facebook such as “6 of your Friends like this product.”  As anyone using Facebook knows, Facebook already does this; since Instagram is owned by Facebook, this change does not seem to be as great a shock.

What will be more interesting, perhaps, is to see how else the language of these new provisions can be interpreted.  Beyond Facebook advertising, what else might advertisers be able to do with your content?  Given the immediate backlash, will Instagram simply back off and retain its current Terms of Service instead?  With the story still in development, only time will tell.  If nothing else, this is a great example of the risks of clickthrough agreements and a lesson in safe consumerism.

Traveling for the Break

With finals just about over many of you are probably looking at getting out of town for the winter break.  For those of you who are flying, Legal Blog Watch from has some advice—a series of 27 volumes of Things You Can’t Do on a Plane.  Stay safe, have a wonderful holiday, and don’t do any of these things on planes!

Cyber(law) Monday — it won’t cost you a cent!

You’ve already selected the obligatory new tie for Dad; used the discount code UGLYXMASSWEATER to buy Mom a festive holiday cardigan; and snagged the video game at the top of your sister’s wish list.  Now what should you do with the rest of your Cyber Monday?  Why not consider engaging in a bit of computer law research?

According to the Council on Research Excellence,  Americans spent an average of over 2 hours per day (142.8 minutes) parked in front of their computers as of 2009.  Technological advances and the increased importance of computing and the Internet in American society have created a burgeoning new legal field.  Per Black’s Law Dictionary, cyberlaw deals “…with the Internet, encompassing cases, statutes, regulations, and disputes that affect people and businesses interacting through computers.  [It] addresses issues of online speech and business that arise because of the nature of the medium, including intellectual property rights, free speech, privacy, e-commerce, and safety, as well as questions of jurisdiction.”

There are a number of online legal publications devoted to technology and intellectual property issues.  Among them, the Maurer School of Law’s IP Theory, which is available in our digital repository.  Other major law journal publications covering this topic include the Berkeley Technology Law Journal, Harvard’s Journal of Law & Technology, and Florida’s Journal of Technology Law & Policy.  In HeinOnline, you can search the Law Journal Library for topical articles in additional journals.  While you are there, be sure to search their new Intellectual Property Law Collection too.

Several of the law library’s electronic databases also contain cyberlaw material.  Bloomberg’s Technology and Internet Law practice page has a sizable amount of information, with an emphasis on current developments and news.  Lexis Advance’s Computer & Internet Law database can be selected (and searched) using the “Browse Topics” tab and contains a helpful breakdown of the major subtopics.

Another great place to conduct Internet law research is IUCAT.  Because cyberlaw is a loosely-defined area of law that is closely intertwined with several broad legal concepts, search term selection is particularly critical, whether you are searching the Internet or a library catalog.  Try using “cyberlaw” and its synonyms, such as “Internet law” or “virtual law” or “computer law”.  Additionally, it is a good practice to attempt searches combining the core subject term (i.e., “the Internet”) and any narrower terms applicable to your research interests (i.e., “privacy” or “intellectual property”).  The law library has several recent print publications on computer and technology law.  Books on this subject are classified beginning at KF390.5 and located on the 3rd floor.  Thumb through the volumes of  Law of the Internet (3rd edition), peruse Virtual Law, or scan Internet Law in a Nutshell (on reserve at the circulation desk).

For current awareness resources, look at the ABA Journal’s list of technology law-focused blogs and news sites, Science and Technology Law Blawgs, and any of the numerous institutes on technology and law: Berkeley Center for Law & Technology, Center for Innovation Law & Policy, and Stanford’s Center for Internet & Society, to name a few.  These organizations often host conferences and publish articles on Internet law and related topics.  GL&HF researching cyberlaw!

Managing Facebook in the Legal Profession

Today, CLE programs abound discussing the proper and ethical use of social media by attorneys.  In Facebook in One Hour for Lawyers (KF 320.I57 K46 2012), a recent addition to the law library’s collection, authors Dennis Kennedy and Allison C. Shields discuss both basic and advanced features of Facebook and how these can be employed in the legal profession.  No matter how long you’ve been using Facebook (or even if you’ve never used Facebook), this text offers excellent discussion of the ethical implications of your Facebook choices.  Unlike many resources that might tell you to delete your Facebook account before looking for jobs, this text enthusiastically encourages the use of Facebook by attorneys, but in a mindful manner.

The chapters are arranged as progressive lessons, walking the reader through the process of setting up a Facebook account, managing one’s privacy and security settings, and building a profile.  Each lesson offers practical advice about what one’s choices will mean in terms of who can view or otherwise access your profile.  At less than 200 pages, this book is brimming with useful information (and will probably in fact only take you, as the title suggests, about an hour to peruse).

The following are a few highlights from the book:

  • General Principles of Facebook use (pp. 28-29): When setting up your account, assume Facebook intends to share more than you might intend and consequently “assume more people can see your Facebook activities than you think.”  This means you need to go through each privacy and security setting, understand what each does, and set them according to your comfort level.  With the frequent changes that occur in Facebook, however, you cannot “set and forget” – it is important to check your settings from time to time.
  • Security (p. 32): Security settings are discussed at length, but one particularly good piece of advice was to turn on secure browsing for your Facebook account; this helps keep your account safe when using public WiFi.
  • Privacy (p. 35): We are most often told to delete our Facebook accounts because of foolish things we may have posted in the past that potential employers would still be able to see; however, as the authors point out, there is now a feature on Facebook that allows you to limit the audience for individual posts.  Essentially you can alter how your profile appears to different people (i.e. Friends versus Public).  You can see how your profile appears to these groups by using the “View As” feature on your profile.
  • Pages versus Profiles (beginning at p. 61): Lesson 4 discusses Facebook pages.  If your intent is to create a Facebook account for your firm rather than yourself, Facebook now asks that you create a page rather than a profile.  This lesson offers suggestions for this type of account.
  • Advanced Topics (beginning at p. 137): Perhaps most helpful in this book are the advanced topics located at the back.  Where the lessons focus on setting up and managing a Facebook account, the advanced topics focus more on ethical and legal implications of Facebook accounts.  These topics include “Ethics” (pp. 137-47), “Separating Your Personal from Your Professional Presence” (pp. 149-52), “Facebook Apps” (pp. 153-57), “Litigation and Discovery” (pp. 159-61), and some final “Tips” (pp. 163-69).

Even if you’ve been using Facebook since its inception, this book is worth a read.  There’s no denying that social media has made its way into the legal profession, but the choices made in one’s Facebook account can have serious ethical and legal implications.  This is certainly not the only resource available discussing these issues, but for a quick read on the subject, check it out.

And while you’re at it, “like” the law library on Facebook!  At the beginning of the year I set a challenge that we would give away a $25 Starbucks gift card once we reach 100 likes.  We’re getting closer, but we can’t give it away until we make that goal, so like us (and if you already have, tell a friend!).
Source: Dennis Kennedy & Allison C. Shields, Facebook in One Hour for Lawyers (2012).

Lawyers Behaving Badly

With the final Multistate Professional Responsibility Examination (MPRE) of the year looming on the horizon, ethics may be at the forefront of your mind.  While the MPRE tests for knowledge of the Model Codes for Professional Responsibility and Judicial conduct, as well as common law principles related to attorney discipline, there are guaranteed to be a nearly infinite number of ethical quandaries that won’t make it onto the exam.  Fortunately, there are resources available to help law students and practitioners navigate these issues.

First, always start with the rules governing professional responsibility.  It is sound advice to familiarize yourself with the Rules of Professional Conduct in your jurisdiction.  The current version of Indiana’s rules can be found on the judiciary’s website.  In addition, attorney disciplinary opinions are available online at the Indiana Judiciary website, with coverage from 2004 to present.  Periodically, the Indiana State Bar Association (ISBA) publishes ethical advisory opinions.  This ethical guidance can be retrieved through the ISBA’s website.  For coverage of other jurisdictions, Bloomberg BNA and the ABA collaborate to produce the Lawyers Manual on Professional Conduct.  This online resource can be accessed by selecting “BNA Premier” from the Online Resources menu and choosing the “ABA/BNA Lawyers’ Manual on Professional Conduct” from the BNA “All Resources” list.

Next, keep abreast of changes – in both the legal field and society at large.  The advent of the Information Age, and its resulting technological advances, has added another layer of complexity in legal ethics.  Electronic discovery methods, and even simple email correspondence, can imperil the otherwise well-intended attorney.  Res Gestae, the journal of the Indiana Bar Association, includes a column in each issue devoted to ethics called “Ethics Curbstone.”  The law library keeps recent issues of this publication in the reference collection behind the circulation desk, shelved in the final row closest to the computer bank.  Res Gestae is a great current awareness resource for ethical concerns that are emerging or otherwise newsworthy.

Finally, don’t be afraid to reach out to a friend or colleague.  In each state, there is help available to attorneys and judges struggling with mental health and substance issues.  In Indiana, the Judges and Lawyers Assistance Program (JLAP) provides a variety of services to members of the legal community trying to cope with these types of difficulties.

Remain informed by using the myriad resources and advice available concerning legal ethics.  Be diligent and thoughtful in your professional and personal conduct.  Take care of your mental and physical health.  Lastly, remember that when you are an attorney, or even an aspiring one, what happens in Vegas, doesn’t necessarily stay in Vegas.

LawInfoChina upgrades Web Site

The Library subscribes to several databases of Chinese law. One of them is LawInfoChina, which is produced by the Peking University Legal Information Center. LawInfoChina  has  a variety of collections. Laws & Regulations contains laws, regulations, rules, judicial interpretations, local regulations and local rules in more than ninety subject areas. It includes all laws adopted by the National People’s Congress and the NPC Standing Committee and all regulations issued by the State Council from 1949 onward. Laws & Regulations also includes “important judicial interpretations that substantially influence legal practices and are recognized as an indispensable part of the original Chinese laws and regulations.” LawInfoChina includes a separate Case Law Database, which contains “typical judicial decisions approved and published by the Supreme People’s Court or the Supreme People’s Procuratorate.” These editorially enhanced cases are chosen “to reflect both current and predicted future trends in Chinese legal practice,” but the emphasis is on meeting the needs of companies doing business in China. Finally, there are both a Gazettes database (containing tables of contents of the official gazettes of various government agencies) and a database of Chinese Law Journals.

LawInfoChina has just updated it web site. It is now possible to search (or filter search results) by data facets, such as type of document, subject area, year of adoption, or any combination. The title/keyword search engine now also supports Boolean search syntax, allowing you to “and” and “or” search concepts, as well as search for phrases.

Of course, the single greatest value-added aspect of LawInfoChina is that all material is translated into English. However, those who speak or read Chinese should also keep in mind that the same platform supports a Chinese-language version of the database, ChinaLawInfo, which contains more material than its English-language counterpart. One nice feature is that it is possible to toggle back and forth between the two versions.

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