November 2008

The (very) Confusing State of the Law of Evidence in Massachusetts

November 29, 2008

Parties are invited to cite to the Proposed Rules, whenever appropriate, in briefs and memoranda submitted. Proposed Massachusetts Rules of Evidence (Supreme Judicial Court, December, 1982) The provisions contained in this Guide may be cited by lawyers, parties, and judges, but are not to be construed as adopted rules of evidence or as changing the existing law of evidence. Massachusetts Guide to Evidence, Section 1.1  (Supreme Judicial Court, November 2008) History does not repeat itself, but it does rhyme Mark Twain _____________________________ On November 24, 2008, the Massachusetts Supreme Judicial Court issued a press release stating that “The Supreme Judicial Court and its Advisory Committee on Massachusetts Evidence Law today announce the release of the Massachusetts Guide to Evidence. The Supreme Judicial Court recommends the use of this Guide.”  The press release quotes Chief Justice Margaret Marshall, who states: “This new Guide will make the law of evidence more accessible and understandable to the bench, bar and the public. Anyone reading this with some historical perspective has to wonder, and here’s why. The Federal Rules of Evidence (FRE) were enacted into law in 1975, after ten years of preparation.  This was a very big deal – the rules codified centuries of “common law” of evidence – judge-made law that could vary from court to court. It had taken almost 40 years from the enactment of the Federal Rules of Civil…

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How to Attract Patent Litigation

November 27, 2008

If you’re a federal district court, that is. The answer? You need something not every federal district has. The Eastern and Southern Districts of Texas have them. The Northern District of California has them. The Districts of Pennsylvania (Western), Georgia (Northern) and Illinois (Northern) have them. In fact, so many U.S. District Courts have them that its getting difficult to keep up. Like so many things in life, at first its an advantage to have them, and eventually it becomes necessity. And now the U.S. District Court for the District of Massachusetts has them. What are they? Local procedural rules that apply only to patent cases. Local patent rules recognize that patent cases present legal, technical and discovery issues that call for specialized handling. In most jurisdictions these rules require early claim identification and invalidity defenses, attempt to schedule early claim construction (by the Court or by stipulation of the parties) and generally attempt to speed up the patent litigation process. After all, plaintiffs tend to seek out jurisdictions where they can get to trial as quickly as possible, since delay only increases expenses, while speed tends to lead to settlements. Frankly, the Massachusetts local patent rules appear on the weak end of the spectrum – they focus entirely on the initial Local Rule Rule 16.1 statement to the court, and require the parties to propose a schedule for disclosure…

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Federal Trade Commission Seeks Supreme Court Review of D.C. Circuit’s Decision in Rambus Case

November 26, 2008

The FTC’s decision to seek Supreme Court review in this case was widely expected, but nevertheless, it’s interesting to see that the FTC in fact did what many antitrust practitioners hoped it would do. For background on this matter, see this posting from May of this year, which discusses the background of this case in some detail. Additional posts discussing various aspects of Rambus are here, here, here and here. The D.C. Circuit decision that is the subject of the appeal is here. The FTC typically dedicates a page to its significant cases, and the FTC Rambus web page is here. The FTCs cert petition is here.  Rambus’s opposition is here. Not surprisingly, the FTC’s petition for certiorari argues that standard-setting is a ubiquitous and important economic activity, and that the D.C. Circuit’s decision leaves aspects of that process in legal limbo, due to a conflict with another circuit and a misreading of Supreme Court precedent. The FTC also suggests that this case is an opportunity for the Supreme Court to address the thorny issues of causation and competitive harm under Section 2 of the Sherman Act. The “Questions Presented” section of a cert petition is always important, since it is intended to summarize, in very few words, the key issue that the petitioner thinks will interest the Court in accepting the appeal. To be effective, the Questions Presented must…

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Humans Love Music

November 21, 2008

Ian Rogers delivered the keynote speech at the GRAMMY Northwest Music Tech Summit in early November. As you spend the next two days discussing the future of the music business, I’d like to challenge you to consider a different perspective, IMHO the only perspectives that matter, that of the artist and the fan. I see news about the health of the music industry as defined by the stock price of WMG or quarterly earnings of UMG, Sony, and EMI every day. What I don’t see, apart from a few articles on Radiohead and Nine Inch Nails, is an update on how the world is changing from the artist point of view. But I tell you, when I talk to managers and artists they feel it, they feel an ability to take their careers into their own hands, to redefine what success means for them, and that is the emergence of the new music business. Continue reading ….

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When It Comes to the "New Economy," We're First

November 21, 2008

The New Economy – it takes full advantage of the Digital Revolution. It’s open to innovation, not just in IT but in robotics, clean energy, biotechnology, and nanotechnology. It supports a low-cost, low-carbon energy system. It takes advantage of opportunities offered by globalization. It accommodates regional growth in a balanced manner. And yes, as was true in 1999, 2002 and 2007, in 2008, once again, Massachusetts ranks first, by a significant margin. The full report – The 2008 State New Economy Index, from the non-profit The Information Technology and Innovation Foundation — leaves no question about this. The states at the top of this index are “leading the United States’ transformation into a global, entrepreneurial and knowledge- and innovation-based New Economy.” And yes, let me repeat lest your attention has wandered, we are first, first, first. (n.b.: Washington is second, and Mississippi last).

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Mark Stephens, aka Robert X. Cringley Announces That He Would Love the Job of CTO of the USA Under Obama and oh, by the way, His Last Column will be on 12/15/08

November 16, 2008

Quoting from Cringley’s most recent column – The U.S. CTO – at least this FIRST U.S. CTO – will be the buyer-of-cool-stuff-in-chief for the entire nation. I would make a better buyer-in-chief than almost anyone else because of two important characteristics in my warped personality: 1) I would be immune to special interest groups so this wouldn’t turn into another National Information Infrastructure boondoggle, and; 2) yet as a true enthusiast I would buy with such reckless abandon that I’d easily fulfill the economic stimulus needs while spewing money widely enough to guarantee at least a few good technical investments for the nation. . . . We need someone with just enough savvy to know good technology, enough independence to make the right decisions, and crazy enough to do it all 24/7 right out in public so that vaunted “transparency” we keep talking about yet never see can be proved to be more than just a modern myth. I’m the man for that job. AND I can use the work. That’s because December 15th will mark my last column for PBS, After 11 years and more than 600 columns I’ll be moving-on, perhaps into that big CTO job in Washington, but then maybe not. This is my decision, not that of PBS, which has been nothing but good to me these many years. . . . Full column here.  More…

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Linux.com Interview of Andy Updgrove

November 15, 2008

Linux.com, one of the leading open source software web sites, recently interviewed my partner, Andy Updegrove, and wrote a very complementary article (part of its Portrait Series). The article focuses on Andy’s involvement with open source software, and also touches on many highlights in Andy’s career, including the role he played in the creation of the MIT License in the early ’90′s (one of the first, and most popular open source software licenses). Andy had drafted that license for our client, the X Consortium, and it was only years later that he realized that the license had been adopted by many open source projects, eventually becoming known as the MIT License. The interview also includes his views on open source and open standards (where he has played a significant role), his work as counsel to the Linux Foundation, and several other highlights of his career. A link to the article is here.

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An Interesting (although admittedly not terribly useful) Fact About the Supreme Court …

November 14, 2008

… courtesy of Jeffrey Toobin – The current Supreme Court is the first court in U.S. history where all nine judges are federal appeals court judges. The court that decided Brown v. Board of Education in 1954 had only one justice who had been a judge of any kind on any court anywhere (Associate Justice Sherman Minton).

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"Why Antitrust Is More Interesting Than Any Other Area of Law"

November 13, 2008

OK, OK, this is not my blog post title. It’s the title of a post by Professor D. Daniel Sokol over at the Antitrust & Competition Law Policy Blog. He provides ten reasons in support of this statement, but undermines his argument (which I hope is at least a bit facetious), by stating that tax law is second. (Not, not, not.) Of course, he shows what a nerd (wonk?) he is by not only listing the ten reasons from 1 to 10 (rather than in reverse, à la David Letterman), but failing to inject even the slightest bit of humor into his post. Antitrust lawyers aren’t known for their sense of humor or for humility. As an antitrust aficionado myself, I am inclined to agree with him. I certainly did when I was in law school.

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Our AG Before the Supreme Court

November 12, 2008

Are state forensic laboratory reports prepared for criminal prosecutions testimonial evidence? If they are, they are subject to the Confrontation Clause of the U.S. Constitution (“in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him”), and the lab technicians behind them may be challenged under cross examination. If not, well …. This was the issue before the Supreme Court on November 10th, when Massachusetts Attorney General, Martha Coakley (wiki page here) argued for the Commonwealth in Melendez-Diaz v. Massachusetts.  It’s worth noting that for the most part, state attorneys general (who are essentially administrator/politicians) rarely represent their states before the Supreme Court, although it’s not entirely unheard of. Lyle Dennison on ScotusBlog summarized the arguments as follows: Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch. Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern. The case, at its core,…

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Larry Lessig REALLY Can Do Powerpoint

November 11, 2008

I’ve never been captured by Larry Lessig’s books, but once I stumbled on some of his online speeches and Powerpoint presentations (he doesn’t use Powerpoint, so I’m using that term generically), and I realized that he was a zen master of this art form (and it can truly be an art form). Here’s a recent example – Lessig on McCain on Tech. (And another great (and earlier) example here).  Lessig’s presentation style is sometimes called the Lessig Method.

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White Paper: New Data Security Regulations Have Sweeping Implications For Massachusetts Businesses

November 11, 2008

A white paper written by my partner Joe Laferrera — New Data Security Regulations Have Sweeping Implications For Massachusetts Businesses– is embedded below (using scribd.com). A link to a pdf version of the document is here. New Data Security Regulations Have Sweeping Get your own at Scribd or explore others:

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