Laura Bergus

Yesterday I took some time to try to address the recent net neutrality debate in a bit more level-headed fashion than my previous post. Check out this monster post over at Telecom Attorneys and let me know what you think. Thanks!

There’s been quite the dust-up today over the report that Google and Verizon are negotiating prices for tiered network access. I first heard about it via Brett Trout’s tweet, then read that Google and Verizon are denying the story (via Dan Gillmor). Then a News Hour journalist said this Wall Street Journal piece is backing up the New York Times claim of settlement negotiations. (That’s a bit of a stretch, as the WSJ piece emphasizes both Google and Verizon claim to be pushing for a level-playing-field law that doesn’t necessarily control price.)

The truth? Who knows. But Google is smart to determine what it might need to pay to push its content to the top of consumers’ pipes if broadband access remains mostly unregulated. Especially when Verizon is paying the most to bend the ears of those in power.

Confusion arises when people (read: professional journalists) take the rather vague term of “network neutrality,” as is bantered about by lobbyists (read: Google) and embrace the vagueness for the sake of making a story. Today, it’s that Google, one of the world’s biggest internet content providers, is talking with Verizon, a major broadband service provider and Google’s primary handset-based internet access provider, about how Google can ensure its services are delivered to its consumers. Framed that way, the talks make perfect sense. (Remember: Google is now, always has been, and will continue to be, paying someone to get its content from one end of the internet to the other. This is just a question of whether Google can pay more to get better service.)

Wikipedia can tell you what net neutrality is. Net neutrality is not the law. It is a very nice idea that would require a major political commitment by our government to subvert free market principles in broadband access. I’m looking for where Google swore it would never plan for what happens when our government lacks the political will or simply lacks the legal authority to enforce net neutrality for Google’s benefit. I don’t think I’ll find such a promise.

Until Congress gets the courage to enact something to prevent such lawful collusion, or the FCC solidifies its stance with legitimate rules, this is exactly the kind of behavior we should expect from Google and its content and delivery brethren.

Bottom line: this is capitalism at its finest. If you want to protect the internet, you’ve got to be willing to have the government step in. Net neutrality is a socialist idea. I am comfortable with that. The New York Times clearly is not.

I’ve been following the American Association of Law Libraries tweets from the annual conference at #aall2010. I’m filtering the discussion by checking in only when I see something of interest from someone in my “not to miss” list (a high proportion of whom are at AALL, incidentally).

What caught my attention earlier today was the discussion from the Economics of Interface: Vendors Respond session. You can get a feel for it through Greg Lambert’s tweets, starting here and Meg Kribble’s starting here. The gist that interested me was that Westlaw (here, in the form of WestlawNext) and LexisNexis representatives were recycling content and information about product upgrades that everyone has heard before. But Fastcase was unveiling new research features and talking researching scholarship. Telling was Sarah Glassmeyer’s characterization of Ed Walters as a third-party candidate in a political debate. (Ed is founder and CEO of Fastcase, which I’ve written about before.) Westlaw and Lexis came off like the big-party candidates with canned non-responses, while Fastcase was there to actually discuss the issues.

My interest has always been piqued by horror stories of legal research pricing. I appreciate that every company must make money to survive, but, as a long-time public servant, I’m put off by anyone who’s willing to capitalize so much on information that’s created with public money (statutes, case law, and much legal scholarship).

So what makes Fastcase different? First, it is very open about pricing, and about what’s included in a given price. Compare that to WestlawNext’s gymnastics to keep pricing out of new product discussions. Second, Fastcase is a small company, with leadership that’s extremely approachable (Ed responds to tweets and phone calls promptly and personally). It also doesn’t hurt that Fastcase had positioned itself well in the eyes of some AALL attendees before the vendor session. Finally, Fastcase is willing to innovate for the sake of better research — and not just by creating a Google-esque interface, which WestlawNext’s primary improvement, from my perspective as a novice researcher. Fastcase’s four dimensional search visualization really is useful, and it’s brand-new Forecite feature will bring together the purposefulness Fastcase’s interface design with the common-sense usability of a Google keyword search. (Though Ed Walters might have overstated Foresite’s gravity just a bit; pretty sure Google beat ‘em to this with “did you mean.” But still awesome.)

Thanks to the AALL tweeters for delivering insightful perspectives on the rapidly-changing landscape of legal research.

Today the United States Supreme Court released its opinion in the antitrust case American Needle, Inc. v. National Football League. The question was whether or not the NFL could be held accountable under Section 1 of the Sherman Act, which regulates agreements that restrain trade. SCOTUS decided that the NFL, despite having formed a tidy single legal entity back in 1963 to handle all the teams’ licensing needs (National Football League Properties) , was not acting as a single entity and therefore could be held to account for restraining trade under Section 1.  The holding invalidates Judge Easterbrook’s 7th Circuit opinion in Chicago Prof’l Sports v. NBA that treated a sports league as a single entity for antitrust purposes, the case on which the 7th Circuit relied, in part, for its affirmation of summary judgment in the NFL’s favor.

This opinion:

1. Reaffirms my ♥ for Justice Stevens.
2. Reads like a mini-treatise on how and why the court got to where it is today in this function-over-form assessment of combinations that might restrain trade.
3. Severely overuses the phrase “independent centers of decisionmaking.”
4. Is a reminder that the new administration’s antitrust machine is rolling right along (see the amicus brief for this case here).
5. Makes me grateful for having learned antitrust from Herbert Hovenkamp.

Cases like this — that concretely connect something I’ve recently studied in law school to the popular real work — fully activate my dormant lawgeek, and make me glad I’ve committed to learning and studying law.

I’m currently taking Conflict of Laws, from one of my favorite professors. When we talk about the interests at stake in something as abstractly benign as choice of law, the benefit of finality and repose for civil defendants comes up often. Back in Civ Pro, I recall first hearing the term and picturing a would-be tortfeasor kicking back poolside. “Ahh, so nice to finally have some repose,” he thinks. “Never have to worry about that minor car crash again…” At the time, I had trouble seeing why the concept was very important. What’s the big deal if he has to answer for some kid’s whiplash five years down the line?

I know a lot more now about the balance of equity involved in barring or allowing claims. I get that shorter statutes of limitation are good for finality, but also for judicial efficiency: keeping stale claims out of the courts. Today I learned why statutes of limitations, and the finality that they provide defendants, are absolutely critical in the criminal context, thanks to criminal defense attorney and blogger Brian Tannebaum. On the risks of removing the Florida statute of limitations for some sex offenses:

We live in a country where person after person after person is being exonerated by DNA evidence. People who were sentenced to death, and to life. Is this the time to abolish statutes of limitations on cases where a mere accusation can result in a criminal prosecution that can take away a person’s liberty for the rest of their life?…Why we are OK letting our elected leaders convince us that finality and liberty only matter in the types of cases in which they decide?

Brian’s point is that the very real and tragic victims’ stories often prevent discussion of why we have statutes of limitations in the first place: that freedom from fear of prosecution is integral to our liberty, and liberty is a fundamental American right. Thanks, Brian, for bringing this point home.

By now everyone knows about the Iowa Supreme Court’s unanimous opinion invalidating our legislature’s gay marriage ban. This decision makes me proud to be an Iowan and reaffirms my inherent faith in humanity (and I say neither of these things lightly). While plenty in our state are already calling for a constitutional amendment (which Democratic governor Chet Culver said he is “reluctant” to entertain, and which is a rather drawn-out process, especially compared to California) and lamenting “activist judges,” I’ve been running across a fair amount of support for the validity of Varnum v. Brien [pdf] as the appropriate exercise of judicial discretion and a model opinion in its clarity of purpose. Some examples:

Constitutional Law Prof Blog
New York Times editorial
Religious Dispatches
Wall Street Journal “Why Gay Marriage Matters”
Since the Iowa ruling, Vermont and D.C. also took steps to recognize same-sex marriage.

A statement by Iowa’s Senate Majority Leader perhaps best sums up why I still stick up for Iowa:

“Iowa has always been a leader in the area of civil rights.

“In 1839, the Iowa Supreme Court rejected slavery in a decision that found that a slave named Ralph became free when he stepped on Iowa soil, 26 years before the end of the Civil War decided the issue.

“In 1868, the Iowa Supreme Court ruled that racially segregated “separate but equal” schools had no place in Iowa, 85 years before the U.S. Supreme Court reached the same decision.

“In 1873, the Iowa Supreme Court ruled against racial discrimination in public accommodations, 91 years before the U.S. Supreme Court reached the same decision.

“In 1869, Iowa became the first state in the union to admit women to the practice of law.

“In the case of recognizing loving relationships between two adults, the Iowa Supreme Court is once again taking a leadership position on civil rights.”

Finally, as a law student, it was pretty awesome, albeit a little nerdy, to read an opinion of such historic relevance and 1) understand what’s going on from a procedural standpoint and 2) recall that I had a chance to meet the opinion’s author, Justice Mark Cady last fall at a dinner party at a professor’s house. Sweet.