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The Worst Stewardship Letter Ever

Most fundraisers emphasize — rightly — the importance of talking to contributors about the measurable impact of their contributions. That’s surprisingly hard for us to do — and it’s not because there’s no impact and no story to tell.  It’s an information problem built into the nature of what we do.

drillbitsTheodore Levitt, a professor at the Harvard Business School, used to say that “People don’t want a quarter-inch drill, they want a quarter-inch hole.” Twenty-five million people come to the LII site every year. It’s fair to assume that they’re not doing that because using legal information systems is undiluted fun (we hired five of the seven people in the world who believe that, although I think there could be a few more hiding in the group that will read this newsletter). Each of our audience members is doing something different, and possibly something urgent. For them, finding and understanding the law is the first step in solving a personal or professional problem, and that’s where the real impact of your contribution lies — in empowering them to do that.

There’s a lot we can deduce from analyzing traffic, from the e-mails that we get at the help desk, and from surveys. For example, use of our materials on the Second Amendment went up 800% in the wake of the Newtown school shootings. But what are we to make of a survey response that says, “I’m here to research federal regulations on special education”? Is that an attorney for a school system? A teacher? A parent of a special-needs kid? We can’t be sure, and there’s a limited amount we can find out without getting in the way of what we’re really trying to do — which is to make it easy for people to find and understand the law, no matter who they are or how or where they are trying to apply it.

Every dollar that you give us provides service for roughly 20 people for a year. It does that almost entirely by buying talent — the writers, editors, software developers, and communications specialists who do the real work here. We learn enough from the stories we get via e-mail to know that it’s making a tremendous difference in people’s lives around the world — and we are hugely grateful to you for making it possible.

We can get more specifics, and we will — after all, it is an information problem, and we have a 22-year track record of solving information problems in novel ways. But until we can give you a real story to tell, know that we’re grateful and that what you’re doing is making a tremendous difference to all sorts of people in all sorts of places.

PS:  Got a story to tell about using the LII?  I’d like to hear it.

Our Supreme Court Bulletin Turns Twenty!


The LII’s Supreme Court Bulletin just assembled its new staff to cover the Court during the 2014 – 2015 term, which will begin in October.  The new Editor-in-Chief of the Bulletin is L. Alyssa Chen.  Alyssa graduated cum laude from UCLA in 2010 with a degree in Political Science and a minor in Civic Engagement.   A native of Northern California, Alyssa is Co-President of the California Law Students Association at Cornell Law School.  The new Executive Editor is Daniel Rosales.  In an odd coincidence, Daniel also majored in Political Science in Los Angeles–at Occidental College.

Alyssa and Dan have assembled a team of Associates (rising second-year law students) and  Managing Editors (rising third-year law students who worked as Associates last year) to continue the Bulletin’s work for the twentieth year.

The Bulletin has changed and grown since its original founding by members of the Law School’s Classes of 1996 and ‘97.  Until 2004, it focused almost exclusively on New York’s highest court–the Court of Appeals.  (LIIBulletin-Patent examined patent cases before the Federal Circuit and the Supreme Court for a brief period during the last decade.)  In 2004, the Bulletin switched its focus to the United States Supreme Court.  Since 2005, it has provided student-written analysis of every case to be argued there.

Now that they have put together their staff, Alyssa and Dan have turned their attention to other matters in preparing for the Court’s fall term.  For example, the Law School has agreed to renovate their workroom to facilitate the collaboration between the Associate teams and their Managing Editors needed to generate the quality previews are 15,000+ subscribers have come to expect.

With Dan and Alyssa looking to the future, the staff of the LII is taking a moment to look back to the past.  Twenty years is a very, very long time in the life of the internet!  The LII is grateful for all the hard work and dedication of the over-400 students who have worked for the Bulletin during that time.  We are compiling a list of past Bulletin staffers in the hopes of planning a few small celebrations around the country.   If you worked for the LII Bulletin in the past, please email us and let us know where you are!  (LinkedIn is finding most, but not all, of you!)

Meanwhile, if you aren’t already familiar with the Bulletin, please have a look here, and we invite you to sign up here to receive this free service via email.

Another Partnership is Born


We’ve (very) recently written about the selection of the new staff our twentieth year of LII Bulletin.  But this year’s staff saw the Bulletin’s audience recently expand in a new and exciting way.

In December, LII’s Associate Director for Content Development, Craig Newton, was approached by the incoming president of the San Diego Chapter of the Federal Bar Association.  San Diego attorney Joe Leventhal was already familiar with the LII website and also the Bulletin, principally through the re-publication of select Bulletin content in The Federal Lawyer, the magazine of the national Federal Bar Association.

As an active Federal Bar Association member, Mr. Leventhal was wondering how he could put similar high-quality content into his local chapter’s quarterly newsletter.  San Diego is a busy marketplace for attorneys concentrating in diverse areas of Federal law ranging from single-lawyer immigration practices to lawyers working for large and sophisticated international law firms engaged in high-stakes patent infringement lawsuits.

Craig suggested that the San Diego chapter could re-publish some of the Bulletin content not published in the national magazine–namely the cases originating from the Ninth Circuit Court of Appeals.  Because the Southern District of California is part of the Ninth Circuit (along with Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, Hawaii, and US territories in the Pacific), cases from the Ninth Circuit are of particular interest to lawyers in San Diego.

The San Diego Chapter’s Winter Newsletter contained the LII Bulletin article on Petrella v. Metro-Goldwyn-Mayer, Inc.–a copyright case originating from the Ninth Circuit and argued before the Supreme Court in late January.  Feedback from the newsletter staff and its readership was all positive.  We are repeating the experiment in their Spring Newsletter.

But it gets better.

We are now working with the board that advises all the local Federal Bar Association chapters within the Ninth Circuit to have this same content also included in all their newsletters.  If all goes well, lawyers from the Mariana Islands to Montana (as well as major law centers like Los Angeles, San Francisco, Phoenix, and Seattle) will be reading our students’ work for the 2014 – 2015 Supreme Court term come October.  We are excited for this chance to serve the profession while growing our own audience and increasing the professional exposure of our student-authors.

And why stop there?

If all goes well in the Ninth Circuit, we’ll be looking to expand our relationships into the other Circuits.  We can easily picture a day in the not-too-distant future where local Federal Bar Association chapters throughout the country are using our previews to inform their membership about the nature and status of cases that originated in their Circuit and made their way to the United States Supreme Court.  If you are a lawyer active in your local chapter of the Federal Bar Association, we’d love to hear from you to help us make this happen.

Meanwhile, if you aren’t already familiar with the Bulletin, please have a look here, and we invite you to sign up here to receive this free service via email.

LII Friend Mick McCue Talks about the Aereo Case, and Why the LII Matters

Mick McCue 1When did you first become interested in the law?

In college.  I became active in areas related to public policy and I began to appreciate the key foundational role of the law.

Where did you go to college and what did you study there?

I went to the University of Pennsylvania, in Philadelphia.  I started out as a math major, but eventually moved toward social issues, specifically urban studies.  At Penn, that demanded I apply for an individualized major.  There were initially about 20 of us who shared that interest, and we organized ourselves.  Before I left Penn, we had helped build an entirely new academic department, with a few hundred urban studies majors.  Then I went to the University of Michigan in Ann Arbor for law school.

Tell us about your work experience.

I first returned to the Jersey Shore where I grew up and joined a law firm there.  As the new lawyer in a 12 person firm, I got to do everything (including what others didn’t want to do.)  I was in court the day after I was sworn in.  Among my later clients were a big rock and roll concert promoter and a member of Springsteen’s E Street Band. Daily litigation wore me down, and I looked to specialize in an area that was both growing and constructive. That got me into a Chicago telecommunications company that was remaking itself.  It was probably my best job.  After only a year or two, the company sent me to Washington to do its FCC work and to run its D.C. office.  Barely two months after I arrived, the DOJ announced the break-up of AT&T.  Five decades of communications law became almost instantly obsolete.  I was only 29, and that was my big career break.  It was exciting and fun.

What are you working on now and how does the LII play a role in that? 

I am now a solo.  I still love telecommunications, but that has expanded to include wireless, Internet and cable television.  I do more transactional work than administrative law work.  Because of my broad experience, I am unafraid to mix and match ideas to get things done.  I don’t mind inserting the term “zombie attacks” into a force majeure clause so a client can complete a data center deal with a bunch of kids who run an Internet startup.  Good or bad, LII facilitates that kind of thinking.  Because I was involved in proceedings that led to much of today’s communications law, I usually have a sense of what I need to find before I even start looking.  LII provides a handy way for me to “beam into” a group of statutes, regulations or cases, and to find what I need quickly.   As I have gotten to know the LII people, I get the sense that many others use LII the same way that I do.   It is efficient and cost-effective.

What parts of LII do you use the most?

I usually go right to the US Code and CFR.  LII’s Supreme Court materials are well done and as a result are very seductive to my curious mind.  I often need to look for “building block” law as I develop positions for filings, so I sometimes use LII to access treatise materials, and to dig into definitions.  Also, I never ever thought I would be researching the UCC as much as I do… and liking it.  What a useful set of materials.

Are there features of the LII site that are superior to other resources?

To me, LII is a special kind of resource.  It probably isn’t cost effective for LII to replicate the giant data bases of the book publishers, who have a lot more dollars.  I don’t often need those giant data bases.  It is far more cost effective for me to use LII for focused research, to pull statutes and regulations in areas where I already have a feel for the flow of the law, and to dig on a single topic until I am confident that my answer is the right one.   I can take my time without worrying about the bill.

Why is important to you to financially support the LII?

I give to LII as a matter of principle.  It isn’t necessarily that much money, but I do give fairly consistently.  I believe strongly that access to the law should be free, so I try to promote that in my own small way.  The law is now far too complicated for the average person, and government’s reach gets longer every day.  I accept that the government in today’s world needs to address more and more details of everyday life, such as in food, drugs, air and water quality, and even spectrum use.  When I was in DC, I watched the first debates that took place about citizen access to the law.   At the time, a number of publishers wanted to put into place a structure where they would control all public access to the laws.  They wanted to control the gateways  – and to be the only gateways.  It was clear to me that a “pay turnstile” arrangement like that would fundamentally disadvantage the average citizen, and discourage even the diligent researcher. I believe that every person should have a realistic opportunity to investigate and understand our laws themselves.  So that is why I give.   LII is one of the best options for achieving that. 

What would you say to an LII user to convince them to become a financial supporter?

It is important here is to understand the inexorable value of expanding scale, and the comparatively low price to do that in this situation.   Awareness, access and use build on one another.  More use of LII by more people will be inherently beneficial to society.  We don’t need to care about where that use is directed.  No matter how use is distributed across the LII collections, it will still have value.  I don’t know the relationship between a new dollar and a new user.  But I believe there is one and it is positive.  I feel that over time, the number of LII users can become meaningfully larger, and this will inherently add to our collective understanding of the law.

In your view, why is it important to make the law available and accessible to all without cost?

The law should not be hidden or kept secret.  Period.  That can happen gradually, without any specific intent, just by maintaining barriers to access.  Allowing our laws to become effectively secret poses a huge threat to the essential values of this country.  Even a basic awareness of what the law says can empower people — it provides more certainty, and allows an individual to move forward on whatever it is that motivates him or her.  The fear and risk of doing something wrong, without even knowing it, is a lot more prevalent in America than it used to be.  How do you fight that?   You do it with access to the law, with plain language and with statutory simplification.  The benefits far outweigh the risks.

My career and interests have been anything but typical.  I never worked for the government, for a big law firm or for a telecom giant.  I practice law now as much for love as money.  I am better at recognizing things that are unique and underappreciated. To me, LII is both.   It deserves to be a core part of the fabric of legal research.

Can you give us some insight into the ABC v. Aereo case currently before the Supreme Court?

I am not involved in this case, but have followed it a bit through the courts.  This case exemplifies why communications is a great field, and why historical knowledge and perspective is still so important as the field evolves with new technologies.  To me, the Aereo case is a set of FCC questions dressed in a copyright law costume.  I tend to favor the Aereo position, but would be a little surprised if it prevailed.  Some background might help:

–Once upon a time, there was only an analog television broadcasting world.  In that analog world, local television broadcasters had markets that were established by the power and reach of their analog antennas. The most significant territorial boundary for them was called the Grade B contour, usually an uneven perimeter path encircling their broadcast area that took into account topography and other factors.  That line defined the hypothetical limit of a good quality over the air local TV signal.   The definition of the Grade B contour was a product of expert engineering analysis.

–Since the emergence of the cable television business, broadcasters and cable interests have always fought over payments for video content.  After years of warfare, the FCC decided that broadcasters were entitled to mandatory carriage (“must carry”) within that Grade B contour line, but at the same time, it had to be free.  Local broadcasters could not charge cable operators for retransmission of their signals within that line.

–Why?  Because any homeowner could just put up an antenna and get the local station off the air for free anyway.   In other words, the local broadcasters were just getting access via cable television to the same eyes that previously watched their programming with an antenna.  The FCC concluded that a local broadcaster had lost nothing in the process.  Making someone pay for a local signal that previously was free just because it came through a cable company went beyond the carriage bargain.  The copyright issues were there, but they did not override the FCC’s competitive solution, and the strong Federal policy in favor of “localism”.

–The landscape has changed tremendously since that time.  The assurance of free “must carry” on cable systems is now routinely passed over by local broadcasters in favor of paid  “retransmission consent”.  It has become very lucrative for the broadcasters.  (And justifiably so.  To be sure, the largest block of video content watched by Americans remains the content offered by local television broadcast stations.)  Nevertheless, the right of a homeowner to just put up an antenna and to capture local broadcast television content for free remains as alive and well as ever.

–That remains the case even in a digital world, where the Grade B contour has been replaced by a line defining the transmission limits of a digital signal instead.  The new line now defines whether your antenna can get you a great high definition digital signal.  Unlike the Grade B contour, however, where a signal gradually lost its quality, digital signal quality falls off of a cliff beyond its line.  Local broadcasters, then, don’t have to worry very much about antennas outside their digital footprint.

–If I used a small firm, say Bob’s Ithaca Antenna Service, to install and maintain a digital antenna for me, there would likely be no issue about the legitimacy of either Bob’s business model or my right to get that local television signal for free.   No one would be claiming a copyright infringement or an obligation to pay.   My use of Bob doesn’t seem to affect the fact that my viewing is “private” from a copyright standpoint.

–But now it is Aereo that is out there, as a “new” and much larger Bob’s Ithaca Antenna Service, and who is using the Internet to send me my signal, rather than running it down a wire on the side of my home.  Aereo is in effect offering to do Bob’s antenna installation and maintenance work for thousands upon thousands of people (rather than a few neighborhood tightwads), using digital technology and the Internet.  (Frankly, the Internet transport portion of this arrangement doesn’t seem too important to me.)

–Even though the Aereo antennas still only collect and forward local broadcast signals, this new type of antenna business has started to worry the broadcasters.   Aereo is scalable and is easily replicable by others, and as a result, could cost the local broadcasters real money over time.  So their response in this case has been to claim that individual viewing under the Aereo model can no longer be deemed to involve a “private” performance.

–It seems to me that the local broadcasters had always been willing to tolerate the royalty leakage from a few thousand individual rooftop antennas.  However, now that it is possible to have a giant array of dedicated mini-antennas in one place serving hundreds of thousands of local broadcast customers, it seems some kind of line has been crossed.  Broadcasters see that every one of these local viewers could potentially avoid triggering any requirement that the local broadcaster be compensated for its content, and could do so legally.

–This giant array of dedicated mini-antennas may very well be found still to fit the traditional exception for the homeowner’s antenna, if each such mini-antenna is dedicated to a single local broadcast television viewer, as Aereo claims.  And if that is so, Aereo has a pretty good legal position based on past industry practices.  Each individual viewing could still qualify as a private performance.

–However, this is not an FCC case, and this is not an issue of the business relationship between a broadcaster and a cable operator.  It is cast solely as a copyright case, with little attention paid to the past operation of the relevant markets in very similar circumstances.

–The broadcasters and content owners seem to have been very successful in controlling the description of the issue before the Supreme Court, as one simply seeking the right to compensation for the retransmission of their copyrighted content.  And that alone might just win the case for them.  But there is so much more going on under the surface.  That form of question seems to lead reflexively toward an answer in favor of compensation.  One would have to redefine the question a bit to come out with a result that favors Aereo.  (For example, Aereo could have sought to have the Court instead review whether the private nature of a local broadcast continues to be royalty free when a third party provides the dedicated antenna structure for the viewer.  See the difference?   That seems to provide much better legal positioning for Aereo.)

–Only the broadcasters’ trade association and a few other intervenors spent any time trying to educate the Supreme Court about the competitive and regulatory regime that led to this case.   None of them really helped to describe the actual situation on the ground.

Don’t think of Aereo as the video equivalent of Napster.  It isn’t.  But it is likely that the Aereo service was intentionally designed to tiptoe along the edges of what is permitted by current law.   The Aereo design was probably impossible only a few years ago, but it is the march of new technology that made it cost-effective now.  Only the Court can say whether Aereo stayed on the right side of the legal line.  The oral argument before the Court confirmed that the case is not an easy one.   My brain tells me that Aereo really should win, but my gut tells me it likely will not.   Whether Aereo wins or loses, however, there will be lots of ripple effects.   That might even include a change in your right to put up your own digital antenna and to watch your local television broadcast station for free.

Meet the Staff: The Password Master

Nicholas prepares to ship himself to the cloud

How does one get to the LII? Well, it ain’t exactly Carnegie Hall, so “practice, practice, practice” won’t quite cut it. Instead, our staff take diverse paths to their positions at the LII, and that’s what makes us work so well together. In a small operation like ours, it’s not so much what you know, as how much you are willing to learn.

One question many of us get asked often is, “What exactly is it that you do at the LII?” Last week, new LII Systems Administrator Nicholas Ceynowa took some time to answer from his top secret bunker at Cornell Law School. 

Q: When did you first become interested in computers?

A: At a young age.  We had an Apple 2 that I spent a great deal of time on.  I also have fond memories of upgrading our 486 with a Pentium knock-off and attempting to overclock it.

Q: Where did you go to college and what did you study there? Degrees?

A: I have a B.F.A in Dance from the University of MN, and a M.S. in Computer Science from Fordham.

Q: In your earlier career, you were lauded for having “a feline fluidity that is nailed to the floor with purposeful weight.” What exactly does that mean, and how will it help you here at the LII?

A: In terms of what it means, good question.  I guess that I was doing ok?  That was a New York Times review from a performance at the Joyce. I was dancing then with Taylor 2, Paul Taylor’s second company. Very difficult solo, and costuming was white tights.  So yeah.  As to how it helps me here, I feel that if I can pull something off in front of reviewers and audiences while wearing white tights, I can take on anything life throws at me.

I suppose just being a professional dancer, and having that be the only job I needed to have.  Most dancers work project to project, I had the incredible fortune to be employed by a company that worked enough to provide a sustainable income and benefits.

Q: What is the most interesting aspect of your work at the LII?

A: Learning something new everyday.  Becoming best friends with the LAMP stack.  People don’t realize how much goes into serving a website, especially one that sees a large volume of visitors everyday.

Q: What is the biggest challenge in working at the LII?

A: Juggling a giant list of issues dominated by a giant list of connected systems.  There’s a great deal going on behind the curtains, so to speak.

Q: What parts or features of the LII site best demonstrate your work?

A: The site being up?  Honestly what I do is not easily observable.

Q: Most people have no idea of the kind of attacks websites receive every day. Can you explain some of the ones that show up and how they impact the users?

A: Without getting into specifics, the most you would generally see is a slight slowdown of the site, if even that.  Most of the attacks websites see are of the automated, brute force nature.  DDOS/DOS, SQL Injection, XSS, etc.  Dictionary attacks.  Exploitation tools have become incredibly easy to use and automate; the barrier for entry is negligible.  And the vectors chosen are becoming increasingly subtle.

Q: What upcoming projects/features are you most excited about?

A: All of the WEX improvements.  There’s a great deal of backend work that needs to be done to support this, and I feel that the technologies employed here will ripple out to the main site, making everything that much better.

Q: Anything else?

A; Remember kids, only you can truly enforce password complexity.  Don’t want to shoot the sample space of your potential password in the foot?   Stop using actual words as passwords.  puppieunicornkisses1 isn’t going to cut it.  And 2-factor authentication is neat.