Arizona Supreme Court Rules on Metadata

Hidden data embedded in electronic public records must be disclosed under Arizona's public records law, the state Supreme Court said Thursday in a groundbreaking ruling that attracted interest from media and government organizations.

The Supreme Court's unanimous decision, which overturned lower court rulings, is believed to be the first by a state supreme court on whether a public records law applies to so-called "metadata."

"This is at the cutting edge -- it's the law trying to catch up with technology," said David R. Merkel, a lawyer for a municipalities group that urged the justices to rule that metadata doesn't have to be disclosed.

Metadata can show how and when a document was created or revised and by whom. The information isn't visible when a document is printed on paper nor does it appear on screen in normal settings.

The Arizona ruling came in a case involving a demoted Phoenix police officer's request for data embedded in notes written by a supervisor. The officer got a printed copy but said he wanted the metadata to see whether the supervisor backdated the notes to before the demotion.

"It would be illogical, and contrary to the policy of openness underlying the public records law, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public records," Justice Scott Bales wrote.

Disclosing metadata shouldn't be overly burdensome on public entities, Bales wrote.

Dan BarrArizona's law generally requires governmental entities to release public records, but they don't have to create them to meet a request.

A Washington state appellate court ruled last year that metadata in e-mail received by a city's deputy mayor was a public record. Unlike Arizona's law, the Washington law specifically says the data is subject to disclosure. That case is pending before the Washington Supreme Court.

The League of Arizona Cities and Towns and other governmental entities filed briefs citing burdens of complying with requests for metadata and urging the justices to uphold a Court of Appeals ruling.

Meanwhile, media organizations, including The Associated Press, cited the media's watchdog role and asked the court to rule that the public records law applies to metadata.

The Arizona decision likely will have a "persuasive effect" on other states' courts, said Dan Barr, an attorney who filed a brief on behalf of the Society of Professional Journalists and other media organizations.

"If there's metadata in there, that's public record," he said.

The ruling also means requested electronic records must be provided in that form rather than paper printouts, which makes them difficult and costly to search, Barr said.

The opinion said some metadata, like other public records, could be withheld for privacy or other reasons.

Aviation Lawyer Charles Brewer Commentary On the Northwest Pilots

The Federal Aviation Administration on Tuesday revoked the licenses of the two Northwest Airlines pilots who overshot their Minneapolis destination by 150 miles.

The pilots — Timothy Cheney of Gig Harbor, Wash., the captain, and Richard Cole of Salem, Ore., the first officer — told safety investigators they were working on their personal laptop computers and lost track of time and place.

The pilots, who were out of communications with air traffic controllers for 91 minutes, violated numerous federal safety regulations in the incident last Wednesday night, the FAA said in a statement. The violations included failing to comply with air traffic control instructions and clearances and operating carelessly and recklessly, the agency said.

"You engaged in conduct that put your passengers and your crew in serious jeopardy," FAA regional counsel Eddie Thomas said in a letter to Cheney. Northwest Flight 188 was not in communications with controllers or the airline dispatchers "while you were on a frolic of your own. ... This is a total dereliction and disregard for your duties."

A similar letter was sent to Cole.

The pilots said they were brought back to awareness when a flight attendant contacted them on the aircraft's intercom. By then, they were over Wisconsin at 37,000 feet. They turned the Airbus A320 with its 144 passengers around and landed safely in Minneapolis.Aviation Lawyer Charles Brewer

The revocations of the pilots' commercial licenses are effective immediately, FAA said.

The pilots have 10 days to appeal the emergency revocations to the National Transportation Safety Board. If that fails, they can apply for a new certificate after one year.

The pilots' union at Delta Air Lines, which acquired Northwest last year, had cautioned against a rush to judgment. The pilots told investigators who interviewed them on Sunday that they had no previous accidents or safety incidents.

Delta spokesman Anthony Black said in a statement: "The pilots in command of Northwest Flight 188 remain suspended until the conclusion of the investigations into this incident."

Phone messages left with the union and at the homes of the pilots were not immediately returned Tuesday.

One passenger, Lonnie Heidtke of Chippewa Falls, Wis., said he thought it was a stiff penalty for the pilots.

"I feel that the FAA pulling their license seems a little severe, I guess. But at the same time, I think they should not be flying airplanes at least for a while so they have an opportunity to think about this."

The NTSB has not taken or examined the laptops that the pilots were using, spokesman Ted Lopatkiewicz said Tuesday.

"The pilots said they were using them. So I don't know what any examination of them" would do to further the investigation, Lopatkiewicz said.

The pilots failed to respond to numerous radio messages from controllers in Denver and Minneapolis. Other pilots also tried to raise the Northwest pilots, and their airline's dispatchers sent text messages by radio.

Cole and Cheney said they both had their laptops out while the first officer, who had more experience with scheduling, instructed the captain on monthly flight crew scheduling. They said they weren't listening to the radio or watching cockpit flight displays during that period. The plane's radio was also still tuned to the frequency used by Denver controllers after the San Diego-to-Minneapolis flight had flown beyond their reach.

The incident comes only a month after Transportation Secretary Ray LaHood held a meeting in Washington on distracted driving, bringing together researchers, regulators and safety advocates in response to vehicle and train accidents involving texting and cell phone use.

Pilots and aviation safety experts said the episode is likely to cause the NTSB and the FAA to take a hard look at the use of laptops and other personal electronic devices in the cockpit.

There are no federal rules that specifically ban pilots' use of laptops or other personal electronic devices as long as the plane is flying above 10,000 feet, said Diane Spitaliere, an FAA spokeswoman.

Delta said in a statement that using laptops or engaging in activity unrelated to the pilots' command of the aircraft during flight is strictly against the airline's flight deck policies. The airline said violations of that policy will result in termination.

(The Associated Press)

Phoenix, Arizona Aviation law expert Charles Brewer says the pilots' laptops likely blocked the navigation instruments.

Harvard Prof. Ashish Nanda "Recruit Lawyers Like Doctors"

Ashish Nanda
The American Lawyer
October 13, 2009

The current oversupply of new associates has sent law firms scrambling to implement short-term adjustments, such as secondments and deferrals. But the legal profession needs more than temporary half-measures. The new-associate recruitment market is fundamentally broken, and it has been for some time. Incremental changes are not going to address its underlying problems. The market needs a structural fix -- a centralized matching authority, like the one that the medical profession has been using for more than half a century.

Firms make most of their new-associate offers to their summer interns. Thus, associate recruitment mostly happens at the intern-selection level. Summer internships operate as a bilateral matching market, in which law firms rank the candidates they interview and the candidates rank firms with which they wish to intern. The labor market "clears" in a decentralized manner. Law firms choose schools from which to interview, interested students at those schools apply to particular firms, the interviewing firms offer summer internship positions to specific students, and the students decide whether to accept the offers.

This decentralized clearing of the labor market leads to predictable inefficiencies, to the detriment of both firms and students. First, it creates bad matches. A firm waits for a top-ranked candidate to decline its offer before making an offer to a second-ranked candidate, who by then has gone elsewhere, perhaps to their second-ranked firm. The same dynamic occurs on the other side of the market: A candidate who is wait-listed by their first-ranked firm risks that forgoing a second-ranked firm could leave them without an offer from either. Candidates hoard offers, and firms make "exploding offers" that push candidates to decide very soon after receiving them.

Second, the job market can "unravel." A second-tier firm tries to preempt first-tier firms by approaching students earlier and making them time-bound offers. First-tier firms respond by also moving their recruitment dates up. This spurs second-tier firms to move their recruitment dates further up. The same dynamic occurs among law schools. A second-tier school opens its campus recruitment window just a little earlier than first-tier schools, hoping to encourage firms to make more internship offers to its students than they would otherwise. Recognizing that they are being preempted, first-tier schools also move up their recruitment windows, encouraging a second-tier school to move still earlier.

The consequence is that recruitment occurs long before jobs begin. Currently students are recruited at the beginning of their second year of law school, almost two years before starting their jobs. This situation causes three main problems deleterious to both the firms and the candidates: Firms have to recruit based on limited information, the labor market becomes inflexible and summer internships lose meaning.

At recruitment time, students have been through only one year of graduate school. Many have no full-time work experience. Other than from the interviews themselves, firms judge candidates' abilities principally through extrapolation from the reputation of their law schools and their first-year grades. Since these are exceedingly important determinants of where the students will get their first jobs, both law school admission and first-year academic performance become even more stressful and laden with meaning for law students. Over the next two years of law school, students will learn their strengths and weaknesses, interests and passions. But neither the students nor the hiring firms are able to use those insights and information; job assignments have already been made. Instead, many of the students, secure in the knowledge of where they will go upon graduation, pay less attention to second- and third-year courses.

As demonstrated by law firms' current predicament, recruiting two years before jobs begin introduces rigidity into the labor market. If the economic environment changes dramatically, firms, unable to easily adjust their new associate numbers, face a supply-demand imbalance: undercapacity, if times are better than expected; overcapacity, if times are worse (as is the case now). In difficult times, firms have to renege on implicit commitments to new hires (such as reducing the ratio of summer candidates to whom they make job offers or postponing start dates) or force current junior and midlevel associates to bear the brunt of the stress (such as through layoffs).

In the current system, internships lose their value. Properly conducted, internships are opportunities for firms and prospective associates to try out one another, evaluate such soft elements as the firm's work environment and culture and the intern's work ethic and collegiality, and eventually gauge the fit between the firm and the intern.

Law firm summer internships currently do not perform this filtering function. If a firm considers not offering a position to an intern, it likely no longer has access to second- or third-ranked choices, since they would probably have been offered jobs in the firms at which they interned. Thus, a firm will choose to extend an offer even to a less-than-ideal intern. Similarly, a student may not be happy at the firm with which they interned but hesitates to reject an offer because they will be forced to interview only with firms that have not been able to fill their job openings with interns. Thus, summer internships have become formalities. Firms try to not cause prospective associates to worry too much about their jobs and interns try not to create unnecessary waves.

These problems can be addressed by creation of a centralized matching authority. Under such a system, participating firms would still interview candidates for summer placement. At these interviews, candidates and firms would still be free to discuss any aspects of the internships. But the firms would not make offers directly to students, nor would students finalize placement at the time of the interview. Instead, firms would give the matching authority their preference ranking of candidates, along with the number of seats they have available. Students would give the matching authority their preference ranking of firms. On a preannounced date, the matching authority would match the firms with the candidates, taking into account both sides' preferences.

The matches would be made through an algorithm. These have long been in use and shown to work well in other settings. The best-known is the algorithm employed by the national medical residents matching program. Since 1952, a centralized matching bureau has annually assigned medical school graduates to their first jobs as residents. The algorithm, with some modifications, remains in use to this day, with very high levels of voluntary participation from both sides of the market, placing 20,000 graduating physicians in their jobs every year.

Careful studies of the matches have demonstrated that the algorithm does not favor either side of the market and allows few possibilities for strategic behavior by participants. An antitrust case that argued that centralized matching depressed resident salaries was dismissed by a federal district court in August 2004. Also in 2004, Congress passed legislation clarifying that the matching program does not violate antitrust laws. With use, the matching algorithm has become increasingly sophisticated, allowing the matching bureau to take into account considerations such as paired geographical preferences of couples who enter the labor market at the same time.

For centralized matching to be effective in the legal profession, major schools and firms must sign on. Once major schools and firms have agreed to centralized matching, other schools and firms can choose to join the regime, or, if they stay away, risk signaling lower quality to the market. Nonparticipation can be reduced if participating schools and firms commit to giving priority to other participating firms and schools.

It is crucial that members of the matching authority understand the concerns of both sides of the labor market but be independent of each. The matching authority should have the right to investigate allegations of cheating and punish those who it finds to have broken the rules. To retain independence, the matching authority should be financially self-sufficient, funded by fees from member firms and small fees from candidates who request matches.

Because matching would be done by a centralized authority on a particular date, problems associated with decentralized matching would disappear. Inefficient matches would be avoided. If a candidate or a law firm is unable to get its first-rank choice, they can seek a second-rank choice before moving further down their preference ranking. Market unraveling would be prevented by the matching authority disciplining schools or firms that encourage or make offers ahead of the match date. Rule-breakers could be fined or suspended from the matching regime.

Once unraveling is prevented, recruitment could be rolled back to dates closer to the summer internships. Firms would have more information on candidates. Students would focus on learning in the early part of the second year and develop a deeper appreciation of their own interests and strengths before recruitment begins.

If centralized matching is beneficial to market participants on both sides and addresses most of the problems of decentralized matching, why has such a system not emerged already in the legal profession? There are three reasons: concern with centralization of power, the challenge of instituting collective action and resistance to change.

Some market participants recoil from the idea of centralized matching because they conflate centralized markets with centralization of power. Centralized matching does not take choice away from individual students or firms. Instead, it provides a common platform for the labor market to function efficiently. In that regard, it is akin to a stock exchange, which allows people to execute trades according to their individual preferences but within the ambit of explicit rules that increase the efficiency and robustness of trading.

Centralized matching requires collective action. Most of the major market participants have to agree to a centralized matching regime to make it work. Individual schools and firms feel unable to move to such a system on their own. Because of this inertia, the existing system prevails, even though individual market participants have to live with its inefficiencies.

Replacing the current system with centralized matching might make recruitment officers at firms and placement officers at schools feel threatened, even though it would allow both recruitment offices and placement offices to focus on what their primary goals ought to be -- for the former, finding and ranking the best candidates and encouraging them to choose their firm, and for the latter, advising students on application and interview strategies and prioritization of preferences. However, because centralized matching obviates the need for their involvement in the match process itself, individual recruitment officers or placement officers might perceive it as diminishing their roles and resist its introduction.

A transition to centralized matching, therefore, is unlikely to be triggered by a bottom-up process or through the initiative of individual law schools or law firms. It requires the shared commitment of leaders of law schools and law firms. Centralized matching will become a reality only if they concur that it is superior to decentralized matching and are prepared to establish a matching authority with the requisite capability and authority. Is it time to institute this radical but much-needed change?

Ashish Nanda is Robert Braucher Professor of Practice, Faculty Director of Executive Education, and Research Director at the Program on the Legal Profession at Harvard Law School.

 

ABA President Elect Stephen Zack

Stephen Zack Interview in English

Miami lawyer Stephen N. Zack, a partner in the national law firm Boies, Schiller & Flexner, was elected as president-elect of the American Bar Association – the first Hispanic American to achieve that distinction.  Zack will serve one year as president-elect before taking office as president in August 2010 at the ABA’s Annual Meeting in San Francisco.  

The son of a Cuban mother and American father, Zack is focused on promoting civics education, the importance of inspiring a new generation of lawyers and ABA programs that advance access to justice for everyone in the United States.  In addition, he will work to create a commission on Hispanic rights.

“I am proud to be the first Hispanic American slated to become the president of the ABA.  This country is still a land of opportunity.  I want to work as an advocate for access to justice – and also for the possibilities that can exist for all young students from all backgrounds.”  

Stephen ZackIn his speech to the House of Delegates, Zack said he will focus on “two critical areas” of the legal profession – civics education and the high cost of legal education.  He said these issues and the programs and strategies to address them will have “an impact on the profession and on future generations.”

In the coming year, Zack, who grew up in Cuba and has practiced law for more than 35 years, will work with other bar associations to develop a pilot program for an American to teach students about everything from making an opening statement to understanding the Bill of Rights.  The goal is to eventually enroll a small group of students – half of which would be minority students — from every high school in the United States to participate in an educational program over the President’s Day holiday weekend.  Zack called on members of the ABA to get involved.

 “Every last one of us will go in and teach these students.  We can’t wait.  We will begin to reach out to a new generation,” said Zack.

In addition, Zack said he is determined to push for a renewed focus on teaching civics education in the classrooms of America so that students truly understand why we have three separate branches of government.

“With every right that we have comes an obligation to understand those rights,” Zack said after quoting a study that revealed that most Americans cannot name the three branches of government.

 His hope is that a renewed interest in civics and an understanding of the role of government will not only create a more informed citizenry, but also increase student interest in pursuing a career in law.  

Zack said a law school education must be affordable for all, otherwise, “We will become an elitist profession at a time when we must look like the people we represent.  We have an overriding obligation to make sure that a new generation can service the needs of all Americans.”

Prior to his selection as president-elect, Zack served from 2004-2006 as chair of the ABA’s House of Delegates, the 555-member body that debates and votes on issues that become official ABA policy.  The chair of the House is the second highest elected office within the association.      

More than three decades ago, Zack became an active ABA member not long after completing his law degree at the University.  He is passionate about the mission of the ABA – serving the public and legal profession by “defending liberty and delivering justice as the national representative of the legal profession” – and believes that all lawyers have a special obligation to promote these goals and to speak out against the repression of freedom.

At the ABA, Zack has a long record of service.  In addition to his serving as chair of the policy-making House of Delegates, recent activities have included being a member-at-large of the Long Range Planning Committee of the Board of Governors, member of the Advisory Committee to the chair of the House of Delegates, member of the Center for Racial and Ethnic Diversity, member-at-large of the Section of International Law and secretary of the American Bar Endowment.

Zack has served as a member of the House of Delegates since 1988, and was a Florida delegate from 1997-2000.  He is a former member of the ABA Board of Governors (1992-1995), and was a board liaison to the Sections of Litigation and Dispute Resolution.  In addition, Zack served as president of the National Conference of Bar Presidents, is a former chair of the Standing Committee on Bar Activities and Services, a former member of the Commission on the Judiciary in the 21^st Century and a former chair of the ABA Latin American Council.

Zack is also a founding member of the Cuban American Bar Association and a life Fellow of the American Bar Foundation, which promotes justice through research on the law and its impact on society.

An active member of the Florida Bar Association, Zack has served as president of the association, president of the Young Lawyers Section and chair of the International Law Section.  He was a member of the 11^th Circuit (Miami-Dade) Judicial Nominating Committee for the Southern District, the Federal Judicial Nominating Commission’s Board of Governors and a Florida Bar Fellow.

Zack’s civic activities in Florida include special counsel to Gov. Bob Graham, chair of the State Ethics Commission of the State of Florida and member of the Florida Constitutional Revision Commission.  He chaired the City of Miami Beach Charter Review Commission and the Environmental Commission for the City of Miami.  He is a former legislative aide to Rep. Claude Pepper and a former member of the Orange Bowl Committee and of the Public Health Trust.

Zack received his B.A. from the University, where he was elected to its Hall of Fame.  He has been admitted to practice in Florida, New York and Washington, D.C.; the Supreme Court of the United States; the Supreme Court of Florida; the U.S. Court of Appeals for the 11^th Circuit; and the U.S. District Courts for the Northern, Middle and Southern Districts of Florida.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

(Source: American Bar Association)

(How to become A Legal Broadcast Network Commentator)

Bankruptcy Expert Tom Littler "NHL Coyotes Bankruptcy Ruling"

The NHL could claim a partial victory  after a U.S. bankruptcy judge rejected bids by the league and Canadian billionaire Jim Balsillie to purchase the Phoenix Coyotes.

Judge Redfield T. Baum rejected outright Balsillie’s offer to purchase the team and move it to Hamilton, Ontario, which the NHL had vehemently opposed. The judge upheld the league’s right to decide who owns its teams and where they play.

Scott Drake talks with bankruptcy expert Tom Littler, partner at Warnicke and Littler in Phoenix.