justice

We’ve written a few times about the ongoing fight over whether or not federally funded research should be somewhat accessible to the public. This kicked off a few years back when the NIH, which funds a tremendous amount of research, required that any research that was funded by them had to be published in PubMed, its free and open database of such research one year after it was published in a journal. Scientific journals, as you probably know, are basically a huge scam. Unlike most publications, the journals don’t pay the people who provide all the material in those journals. Instead, the researchers pay the journals to publish their research. Not only that, but in exchange for paying the journal, the researchers also have to hand over their copyright on the research. This gets really ridiculous at times, as professors I’ve spoken with have needed to totally redo their own experiments because some journal “owned” their research, and they couldn’t reuse any of the data.

On top of that, these journals don’t pay people to do peer review. Other researchers in the field are expected to do the peer review for free. Oh, and then did we mention that these journals charge ridiculous sums (thousands upon thousands of dollars) for subscriptions, which many university libraries feel compelled to pay? And that much of the research is paid for by your tax dollars anyway?

via The Intellectually Dishonest Claims Of Those Fighting Against Open Access To Federally Funded Research | Techdirt.

The Wall Street Journal just reported that the Federal Communications Commission is holding “closed-door meetings” with industry to broker a deal on Net Neutrality — the rule that lets users determine their own Internet experience.

Given that the corporations at the table all profit from gaining control over information, the outcome won’t be pretty.

The meetings include a small group of industry lobbyists representing the likes of AT&T, Verizon, the National Cable & Telecommunications Association, and Google. They reportedly met for two-and-a-half hours on Monday morning and will convene another meeting today. The goal according to insiders is to “reach consensus” on rules of the road for the Internet.

This is what a failed democracy looks like: After years of avid public support for Net Neutrality – involving millions of people from across the political spectrum – the federal regulator quietly huddles with industry lobbyists to eliminate basic protections and serve Wall Street’s bottom line.

via Timothy Karr: The Fate of the Internet — Decided in a Back Room.

The average law school increased its faculty size by 40 percent over the past 10 years, according to a study by The National Jurist to be released in late March.

This increase in staffing accounts for 48 percent of the tuition increase from 1998 to 2008, the study shows. Tuition increased by 74 percent at private schools and a 102 percent at public institutions from 1998 to 2008.

The increase in staffing does not take into account the increase in support staff, which most law school administrators acknowledge has also increased. But no reliable data is available for that.

Law school observers say the dramatic increases are related to two things — an increased need for specialization and the U.S. News & World Report rankings of law schools.

“Law schools tend to believe that their faculty reputation is driven by scholarship and they are very interested in U.S. News,” said William Henderson, a law professor at Indiana University Mauer School of Law. “Lowering your faculty-to-student ratio improves your [U.S. News] ranking and increases time for scholarship.”

Henderson said the typical teaching load has dropped from five courses a few generations ago to three courses today.

“Professors are spending less time in the classroom,” he said. “Now whether that is a smart use of a social resource is another question. It is very expensive to pay for faculty research.”

via Law school faculties 40% larger than 10 years ago | the National Jurist.

I had an absolutely brilliant time at TEDxNYED over the weekend, reconnecting with old friends like Larry Lessig, George Siemens, Neeru Khosla, and Dan Cohen, and making new friends like Michael Wesch, Gina Bianchini, Amy Bruckman, Chris Lehmann, and Dan Meyer. The videos of our talks will be online in a few weeks.

In the mean time, I’m posting the final version of the notes I wrote before creating slides for the talk. This is the fifth or sixth version of the notes, and due to time constraints not even all of this version got in – but much of it did. My words on stage didn’t mirror these rough notes directly, but the notes capture the spirit of the talk. You can view the slides for the talk on Slideshare.

Open Education and the Future

What is meant by “openness” in education?

Let’s begin by defining terms.

For over a decade, openness in education has been an adjective describing educational artifacts.

Open content, open educational resources, open courseware, and open textbooks all mean teaching materials that are shared with everyone, for free, with permission to engage in the 4R activities.

The 4Rs are reuse, redistribute, revise, remix.

Open access to research means that articles describing the results of research are shared with everyone for free, generally with permission to engage in the first 2R activities (but sometimes all 4).

While the nouns being modified (content, resources, courseware, textbooks, and research articles) differ from each other, the activities that we associate with operationalizing openness is the same – acts of generosity, sharing, and giving.

Openness is about overcoming your inner two-year-old who constantly screams, “Mine!”

via My TEDxNYED Talk « iterating toward openness.

In mid-December, two calls for a national day of action to defend education were issued, building on a state-wide call for action to defend public education issued in California. On December 14th, the California Coordinating Committee released a National Call for a March 4 Strike and Day of Action To Defend Public Education. Two days later, on December 16th, an ad-hoc body comprised of students, workers, and other activists from many states, including California, released a call of their own for a March 4 National Day of Action to Defend Education. This body consisted of students who participated in the New School occupations, students and workers from across the country, student activists from ongoing campaigns in North Carolina, Chicago, Milwaukee, and various other locations.

The website you are reading is hosted by the ad hoc committee that produced the December 16th call. We do not see the two calls as being in competition or opposition with one another in any way. The dual calls were produced not out of any political, strategic or tactical disagreement, but because the two groups were not in contact with one another when they were drafting the calls. We encourage all students, teachers, workers and parents to forward the text of both calls to their friends, peers and allies, and to organize actions in their schools and communities to defend education for all. The text of both calls is reprinted below, along with a list of endorsers for the December 16th call. A form that can be used to submit endorsements for the December 16th call is located at the bottom of the page.

via Defend Education Take a Stand March 4th: National March 4th Calls for Action and Endorsements.

FBI agents for years sought sensitive records from telephone companies through e-mails, sticky notes, sneak peeks and other “startling” methods that violated electronic privacy law and federal policy, according to a Justice Department inspector general report released Wednesday.

The study details how the FBI between 2002 and 2006 sent more than 700 demands for telephone toll information by citing often nonexistent emergencies and using sometimes misleading language. The practice of sending faulty “exigent” letters to three telecommunications providers became so commonplace that one FBI agent described it to investigators as “like having an ATM in your living room.”

Inspector General Glenn A. Fine said the findings were “troubling” and urged the FBI and the Justice Department to “take additional corrective action” in response to the 289-page report. Information on more than 3,500 phone numbers may have been gathered improperly, but investigators said they could not glean a full understanding because of sketchy record-keeping by the FBI.

via Inspector general cites ‘egregious breakdown’ in FBI oversight – washingtonpost.com.

Mark Tushnet

This morning’s Washington Post has a story on proposed legal challenges to the individual mandate in the pending health care legislation. (In brief, conservatives are arguing that Congress lacks the power to require people to purchase health insurance or pay a penalty, under either the commerce clause and the power to tax and spend for the general welfare.) The story observes that liberal-leaning constitutional scholars think that, as Erwin Chemerinsky puts it, “There are many close constitutional questions. But this is not among them,” or, as Jack Balkin says, “All of these arguments don’t work, but they’re interesting to debate.”

I’m afraid that these reactions demonstrate that liberal-leaning constitutional law types haven’t absorbed the lessons of critical legal studies — or, indeed, the lesson Justice William Brennan taught his law clerks by holding up one hand with his fingers splayed: “With five votes you can do anything.” The CLS lesson was — and is — that where the stakes are high enough and the political energy is available (to lawyers and judges), at any time the body of legal materials contains enough stuff to support a professionally respectable argument for any legal proposition. So too with the constitutional arguments against the individual mandate.

I lack both the interest and the energy to work out the arguments in detail, but I’ve thought enough about the constitutional issues to be able to sketch out an argument, compatible with existing law, that the individual mandate (a) doesn’t fall within Congress’s power to regulate interstate commerce, (b) doesn’t fall within Congress’s power to tax and spend for the general welfare, and (c) is (in its penalty aspect) a direct tax prohibited by the Constitution. I myself don’t find these arguments particularly strong, but that — on the CLS view — doesn’t mean anything about what constitutional law on this matter “really” is. If, as Holmes said and as CLS reiterated, what the law “is” is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.

Or, put another way, remember Bush v. Gore?

via Balkinization.

Incarcerex : Prison Industrial Complex Video.

Here are some of the key numbers:

* 5,542 offenses were classified as crimes against persons. Intimidation accounted for 48.8 percent of those crimes, simple assaults for 32.1 percent, and aggravated assaults for 18.5 percent. Seven murders were reported as hate crimes.

* 3,608 offenses were classified as crimes against property. The majority (82.3 percent) were acts of destruction/damage/vandalism. The remaining 17.7 percent consisted mainly of robbery, burglary, larceny-theft, motor vehicle theft, and arson.

* Of the 6,927 known offenders, 61.1 percent were white, 20.2 percent were black, and 11.0 percent were of an unknown race.

* 31.9 percent of hate crimes took place in or near homes; while 17.4 percent took place on highways, roads, alleys, or streets; 11.7 percent in schools and colleges; 6.1 percent in parking lots and garages; and 4.2 percent in churches, synagogues, or temples.

via FBI — Hate Crimes – Press Room – Headline Archives 11-23-09.

OpenJurist’s mission is to provide access to published court opinions without charge. Our collection includes approximately 647,000 opinions from the United States Supreme Court published in the United States Reports, and from the lower federal courts, particularly the United States Courts of Appeals, as published in the First, Second and Third series of Federal Reporter.

via OpenJurist | Making the laws of the land accessible to the people of the land..

In a rare display of agreement between advocates who have spent years in fierce opposition, the American Civil Liberties Union yesterday paid tribute to the Department of Justice for its decision to try five of the alleged planners of the 9/11 terrorist attacks in a civilian federal court.

In a teleconference for reporters, the ACLU’s executive director, Anthony Romero, said the decision to bring Khalid Shaikh Mohammed and four other alleged 9/11 plotters to federal court in New York City “is an enormous victory for the rule of law.” Mohammed, known as KSM, is the self-described mastermind of the terrorist attacks.

Attorney General Eric H. Holder Jr. announced the decision at a news conference Friday at the Department of Justice in Washington. He said it was the most difficult decision he has had to make since becoming attorney general after the inauguration of President Barack Obama in January.

Holder also announced that the administration will use military commissions to prosecute other high-profile detainees now being held at Guantánamo Bay, Cuba. These include Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the Navy destroyer Cole in Yemen.

via t r u t h o u t | Decision to Try 9/11 Suspects in US Court Hailed as “Victory for the Rule of Law”.

In Harris County, Texas, the death penalty is more likely to be imposed against black defendants than white defendants, and death is more likely to be imposed on behalf of white victims than black victims. These are the findings of Professor Scott Phillips, University of Denver. Phillips’s examination of these findings was distributed in his ACS Issue Brief “Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold,” just re-released in the latest edition of Advance: The Journal of the ACS Issue Groups.

Professor Phillips explains that his research indicates that the racial disparities arise in the District Attorney’s decision to seek the death penalty, rather than with the jury. He suggests that because the Supreme Court is unlikely to overrule McCleskey v. Kemp in the near future and find that capital punishment is unconstitutional based on statistical evidence of racial disparities, other means for reducing racial disparities in the death penalty should be implemented.

Phillips proposes that prosecutors’ offices that want to institute genuine race-blind processes for deciding whether to seek the death penalty should consider “desocializing” the decision to seek the death penalty. Concrete steps that District Attorney’s offices can take to reduce the social information available to judicial actors in the capital litigation process, he suggests, include eliminating information that might insinuate the race of the victim or defendant – “racial markers” – from all documents considered in the District Attorney’s decision whether to seek the death penalty.

via ACS Blog | Scott Phillips | American Constitution Society.

A five month CBS News Investigation has found a staggering number of rape kits — a collection of swabs and clothing that provide DNA evidence — have never been sent to crime labs for testing.

via Rape Kits Data, By the Numbers – CBS News.

California is embarking on an unprecedented civil court experiment to pay for attorneys to represent poor litigants who find themselves battling powerful adversaries in vital matters affecting their livelihoods and families.

The program is the first in the nation to recognize a right to representation in key civil cases and provide it for people fighting eviction, loss of child custody, domestic abuse or neglect of the elderly or disabled.

Advocates for the poor say the law, which Gov. Arnold Schwarzenegger signed this week, levels the legal playing field and gives underprivileged litigants a better shot at attaining justice against unscrupulous landlords, abusive spouses, predatory lenders and other foes.

Although some analysts worry that it could swell state court dockets or eat up resources better spent on other needs of the poor, the pilot project that won bipartisan endorsement in the state Assembly will be financed by a $10 increase in court fees for prevailing parties.

Anybody confronted with criminal charges has a constitutional right to an attorney, as set out in the landmark Supreme Court decision in Gideon vs. Wainwright in 1963. But such a right does not apply in civil court, and the majority of citizens fighting what can be life-altering civil actions now attempt to handle their cases without professional guidance.

An estimated 4 million people seek to represent themselves in California in civil matters each year, the state Judicial Council estimates, not because they want to but because they can’t afford to hire a lawyer.

“How ironic that you can be arrested for stealing a small amount of food — a box of Twinkies from a convenience store — and you’re entitled to counsel. But if your house is on the line, or your child is on the line, or you’re being abused in a domestic relationship, you don’t have the same right to counsel,” said Assemblyman Mike Feuer, the Los Angeles Democrat who sponsored the bill.

via California gives the poor a new legal right — latimes.com.

Lawyer competence was the topic of the day at the U.S. Supreme Court on Tuesday, as justices heard two cases involving claims of ineffective assistance of counsel that violated the Sixth Amendment.

In one, a lawyer’s flawed advice exposed his client to deportation. In the other, the defense lawyer in a capital case called his client sick and twisted during a closing argument, and minimized mitigating evidence that might have helped avoid the death penalty.

In the first case, Padilla v. Kentucky, a lawyer told his client Jose Padilla, a permanent resident alien arrested for drug trafficking, that pleading guilty as part of a plea agreement would not expose him to deportation. That advice was flat wrong.

Padilla sued in 2004, claiming ineffective assistance that deprived him of his constitutional rights. But the Kentucky Supreme Court ruled that incorrect advice on matters that are collateral to the criminal case don’t make out a case of ineffective assistance under the Supreme Court’s Strickland v. Washington standard.

Most U.S. Supreme Court justices seemed wary of expanding the definition of ineffective assistance to include flawed advice on matters beyond the actual criminal case the lawyer is handling.

via Law.com – A Day About Bad Lawyering at the High Court.