John Palfrey

The Sunlight Foundation has kindly chosen the Berkman Center at HLS as the venue for an all-day session today, “Political Information in an Internet Era.” We’re grateful to a dedicated group of civic activists who join us today on their holiday.

The frame for the event, as Zephyr Teachout and her team put it, is this: “All of us, in different ways, are trying to use the internet to improve citizen’s access to, and use of, important political information. Since so much political information is tied to local politics and local media, we are focused on the people working at the state level to educate and engage citizens in public affairs – using everything from new tools to new techniques to new voices on simple blogs.

“Our goal is to help those who are on the ground, using the web to improve political information on the local level. We also hope to foster connections that last beyond this meeting.”

Ellen Miller, Micah Sifry and Mike Klein came to Berkman last year at the time of the kick-off of the Sunlight Foundation. We were blown away then and we are blown away now by what they are up to. They’ve been congratulated many times on the extraordinary and fast progress they’ve made over the past several months, but it’s worth echoing here again.

One of the primary questions that the Sunlight Foundation’s work raises, and the subject of this meeting, is one that is core also to the work of the Berkman Center. Are people using Internet in a way that improves politics? Put another way, are people using Internet in a manner that strengthens democracies? The answer lies in the distributed group of people, some right here in this room today, and in other rooms like it around the world. The answer is that it’s “you.” Time Magazine got it right.

But there’s a ton of work still to be done.  For those on the contemplative end of the scale, there are also a lot of puzzles to be worked out. Three things on my mind by way of issues that one might consider in the context of this big topic:

- At the pre-meeting dinner last night, it was plain that the prevailing views on politics in America among people in the room ran a pretty short gamut, from skepticism and cynicism. As one shines more light on more injustices — on more corruption, to use a word in Z’s agenda — is there a way to calibrate the impact of this sunlight? Is there a realistic fear that more sunlight may lead not to more civic engagement, but rather lead to pushing more people from skepticism to cynicism? The answer, of course, is not less sunlight. But the question seems to me a genuine puzzle.

- The Sunlight Foundation’s project, and the projects of many of the participants in the room today, are focused on the United States. No doubt the United States, and our disparate local and state parts, need the help and the focus. All the same: how do we act locally when we know the issues we are tackling and the network we are using are global? How do we inform ourselves, share our work, learn from others, connect to others — in such a way that we are truly acting within a global framework?

- One of the cool things — perhaps even approaching a “truth” — about Internet & politics is the extent to which it’s both essentially about the individual (in Benkler’s terms, “autonomy”, for those who have read the extraordinary Wealth of Networks) and about collective action. There’s a beauty to that tension, and also a challenge, to each of us, whether as individuals and as members of a collective. What is our greatest point of leverage, as individuals — limited in our political activism only by our own imagination and the 24 hours in a day? Again, I think so many people running so many extraordinary projects related to Internet & politics are answering that question by how you spend each and every day — and the rest of us can learn a thing or two from that.

If you are free from 6:00 p.m. - 7:30 p.m. EST tonight, (Thursday, December 7, 2007), whether or not in Cambridge, MA, please consider joining us for a discussion of the future of legal education, with an emphasis on the role of information technologies. The event will take place in Austin West on the HLS campus. This event will bring together deans, researchers, teachers, lawyers, and a CEO (Andy Prozes of LexisNexis, our partner in a research effort this fall on this topic). Berkman fellow Gene Koo has put together this event and is leading the research agenda. Prof. Charles Nesson, the Berkman Center’s founder and a longtime leader on this topic, is chairing the event. If you are not here in person, please join via Second Life on Berkman Island.

Those who write academic articles and books for a living are not always good at writing fiction. I’m reading a novel that, for me, breaks the mold: Stephen L. Carter’s The Emperor of Ocean Park. As usual, I’m about 4 years after everyone else. Prof. Carter, a prolific scholar and the William Nelson Cromwell Professor of Law at Yale Law School, offers up a mystery about the death of a judge who narrowly misses becoming a Supreme Court Justice. (An interview with the author tells how the book came about.) The judge’s son, Talcott Garland, is a professor at an Ivy League law school set in a small city called Elm Harbor. It’s an incredibly fun (and long, which to me is a good thing, if it’s a good book) story, a mystery well worth the time (even though none of the characters are particularly likable).

What struck me most was a passage that many people who attend or teach in elite law schools might think, on their lowest days, but rarely articulate in public:

“… I return to my dreary classroom, populated, it often seems, by undereducated but deeply committed Phi Beta Kappa ideologies — leftists who believe in class warfare but have never opened Das Kapital and certainly have never perused Werner Sombart, hard-line capitalists who accept the inerrancy of the invisible hand but have never studied Adam Smith, third-generation feminists who know that sex roles are a trap but have never read Betty Friedan, social Darwinists who propose leaving the poor to sink or swin but have never heard of Herbert Spencer or William Sumner’s essay on The Challenge of Facts, black separatists who mutter bleakly about institutional racism but are unaware of the work of Carmichael and Hamilton, who invented the term — all of them our students, all of them hopelessly young and hopelessly smart and thus hopelessly sure they alone are right, and nearly all of whom, whatever their espoused differences, will soon be espoused to huge corporate law firms, massive profit factories where they will bill clients at ridiculous rates for two thousand hours of work every year, quickly earning twice as much money as the best of their teachers, and at half the age, sacrificing all on the altar of career, moving relentlessly upward, as ideology and family life collapse equally around them, and at last arriving, a decade or two later, cynical and bitter, at their cherished career goals, partnerships, professorships, judgeships, whatever kind of ships they dream of sailing, and then looking around at the angry, empty waters and realizing that they have arrived with nothing, absolutely nothing, and wondering what to do with the rest of their wretched lives.”

Only one side of the story, of course, but a pretty evocative, damning assessment of legal education and the life we lead as lawyers.

Mike Arrington is reporting that he’s received a cease and desist letter from YouTube. Mike writes: “Buried in my email this evening I found a cease and desist letter from an attorney at Wilson Sonsini Goodrich & Rosati, representing their client YouTube. We’ve been accused of a number of things: violating YouTube’s Terms of Use, of “tortious interference of a business relationship, and in fact, many business relationships,” of committing an “unfair business practice,” and “false advertising.” The attorney goes on to demand that we cease and desist in from engaging in these various actions or face legal remedies.”

The key issue here seems to be the ability to use a Terms of Use to override other rights that the public might have. Lessig has more. At least this one should be a fair fight, if Mike decides to take it on; in addition to his clout and being on the side of the angels, Mike used to work for the firm that sent him the C&D.

Last week, Harvard Law School adopted substantial changes to its first-year curriculum. The office announcement is here.

These changes are important for several reasons. On the simplest level, these changes are the first adjustments to the much-vaunted HLS first-year curriculum in over one hundred years, as the NYTimes’s Jonathan Glater pointed out in his story. The 19th century design of this curriculum has served many of us — students, lawyers, law teachers, maybe even society at large — very well. But the practice of law has changed enormously over that century-plus; well-reasoned change, reflecting those changes in practice, seems much in order as a general matter.

These particular curricular reforms happen also to be terrific choices. A process led by Professor Martha Minow over a few years, including a massive consultative process, led to the proposal that passed the faculty unanimously — a sure sign that the proposal was well-crafted. (If you are unfamiliar with the history of the Harvard Law School’s faculty, the point about unaminity may seem unremarkable. But it is remarkable, truly; a testament to the leadership of both our dean, Elena Kagan, and of Prof. Minow.) The three major changes to the curriculum are that students will take a course in legislation and regulation; one of a few choices in international law; and a course on legal problem solving. These changes mean that there will inevitably be less emphasis in the first year on the traditional slate of courses (torts, contracts, civil procedure, and so forth), but the basic structure that has worked so well over time has been preserved. One big scheduling change for HLS first-years is that they will have an intensive winter-term course, just as the second- and third-year students already do. The winter term idea is a great one, as this is an institution that allows for a different, and differently effective, mode of teaching some courses. Students take only one class during January, which meets every day, and they focus solely on this one subject. Taken together, these changes are geared toward ensuring that law students are better prepared for the profession into which they will enter, whether as practicing lawyers in a firm, public servants of various sorts, or businesspeople in a global economy.

On the occasion of the unanimous faculty vote, Dean Kagan wrote: “This marks a major step forward in our efforts to develop a law school curriculum for the 21st century. Over 100 years ago, Harvard Law School invented the basic law school curriculum, and we are now making the most significant revisions to it since that time. Thanks to yesterday’s unanimous faculty vote, we will add new first-year courses in international and comparative law, legislation and regulation, and complex problem solving — areas of great and ever-growing importance in today’s world. I am extraordinarily grateful to the entire faculty for its vision and support of these far-reaching reforms, which I am confident will give our students the best possible training for the leadership positions they will soon occupy.”

(Volokh Conspiracy, by contrast, has less positive things, or perhaps just more skeptical things, to say.)

As a variant on the same theme, several of us at the Berkman Center for Internet & Society at Harvard Law School are looking at the question of whether, and how, technology should be factored into the law school curriculum more so than it is today at HLS and many other schools. Over the course of this fall, we’re working with partners at Lexis-Nexis on a survey of lawyers and a white paper on ways that technology might appropriately be used in the teaching of law. The project is being spearheaded by new Berkman fellow Gene Koo. While on a much smaller scale than the curriculum reform just passed at HLS, this research project is intended to be in step with the hard look at whether law teaching today prepares students well for the practice of law.

As a footnote: the Harvard Crimson notes that the unanimous vote of our faculty in favor of this broad first-year curricular reform is good news for those hoping that Dean Kagan (of Harvard Law School) will become President Kagan (of Harvard University). I agree with Professor Elhauge, who says, “I hope we don’t lose her to the university. But I don’t think they could find anyone better to be President.”

The Court of Appeal in California (Sixth Appellate District) has ruled in favor of Jason O’Grady in his dispute with Apple Computer. It’s a pretty resounding opinion (linked here (PDF)), covering a lot of ground, including trade secret, the Stored Communications Act, and various other issues related to whether a corporation can stop a publisher for disclosing information related to an intended product launch.

The Court held: “Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.”

An interesting passage, about the public interest in this case: “Apple first contends that there is and can be no public interest in the disclosures here because ‘the public has no right to know a company’s trade secrets.’ Surely this statement cannot stand as a categorical proposition. As recent history illustrates, business entities may adopt secret practices that threaten not only their own survival and the investments of their shareholders but the welfare of a whole industry, sector, or community. Labeling such matters ‘confidential’ and ‘proprietary’ cannot drain them of compelling public interest. Timely disclosure might avert the infliction of unmeasured harm on many thousands of individuals, following in the noblest traditions, and serving the highest functions, of a free and vigilant press. It therefore cannot be declared that publication of ‘trade secrets’ is ipso facto outside the sphere of matters appropriately deemed of ‘great public importance.’”

The NYT has more. As do Dave and Denise and Dan.

Urs Gasser, prepping to head out to a Gruter Institute event at Squaw Valley (tough life), wants to know if you agree:

“I suggest that in-depth and cross-disciplinary research in the field of law & emotion will soon be complemented by a discussion about what we might call ‘emotional legal design’, i.e., a discourse about the design principles aimed at guiding the future development of a legal system that takes the findings of law & emotion research serious.”

(Gruter, and Urs’ center on information law at St. Gallen, are key partners of ours at Berkman.)

This morning, we are hosting an eminent group of academics here at Harvard Law School for a symposium on blogging and legal scholarship. Prof. Paul Caron is leading off right now. You can tune in to the webcast, if you are not local to Cambridge. (If you needed any further incentive to watch, Prof. Michael Froomkin promises to announce a new project just after 11:00 a.m.)

Meanwhile, a Maine blogger has been sued for $1 million for blog posts critical of the advertising campaign of a state agency in Maine. The Boston Globe reports: “Warren Kremer Paino Advertising LLC, an agency hired by the Maine Department of Tourism, filed suit in US District Court in Maine last week, alleging the blogger, Lance Dutson of Searsmont, Maine, outside Camden, violated the agency’s copyright and defamed the agency in blog entries self-published at www.mainewebreport.com.” My view is that a lawsuit of this sort should have to clear a very high bar before a court awards damages to the design firm, especially where the core discussion is a matter of political speech in which a citizen is commenting on the activities of a state agency of his home state.

And, today, we are releasing a brand-new blogs server at Harvard Law, running a new instantiation of WordPress. It reminds me of the heady days when Dave Winer, back in Christmas Break 2002, first joined us at the Berkman Center and pulled us all into this business as the pied piper of citizen-generated media here at Harvard. Core to Dave’s blogging initiative here was to put up the first-ever community blogs server at a university.

I am reminded of an article that the Harvard Gazette published back in 2003, in the early days of the initiative. I think it’s safe, now, to say that this blogging initiative has been a big, maybe even unqualified, success — with several hundred members of the Harvard community blogging, whether on our server or otherwise; a vibrant group whose (completely open set of) members still meet every Thursday night at the Berkman Center; the first series of podcasts and extensions of that tradition; and so forth. Come a long way, since then, with lots of great people picking up the legacy and extending it, like all those working on Global Voices. Thanks, Dave.