ICAIL 2015 Mentoring Program announced

Legal Informatics Blog - Tue, 08/26/2014 - 02:11

Professor Ted Sichelman of the University of San Diego, and Conference Chair of ICAIL 2015, scheduled to be held 8-12 June 2015 in San Diego, California, USA, sends the following information:

The International Association of Artificial Intelligence and Law (IAAIL) is offering a mentoring program for papers being submitted to its [2015] biennial ICAIL conference, the International Conference on Artificial Intelligence and Law.

The program is intended primarily for junior authors who have not previously published an Artificial Intelligence and Law paper at a conference or in a journal. If you would like help with your submission, you may ask for a mentor ― a person who will help you with your submission to the IAAIL audience through one-on-one advising, usually via e-mail. A mentor can also familiarize you with the standards and deadlines of ICAIL submissions. Mentors are volunteers familiar with successful submissions. To request a mentor, please send email by the Mentoring Program Request Deadline to the organizers: Guido Governatori, Guido.Governatori@nicta.com.au; Burkhard Schafer, b.schafer@ed.ac.uk; and John Zeleznikow, John.Zeleznikow@vu.edu.au. Please include:

  • Your name and the names of your co-authors;
  • The name of your school (or department) and institution;
  • A plain-text description of your work (a title and abstract is a minimum requirement);
  • Any specific questions or areas in which you would like help;
  • But don’t include your draft paper.

Reasonable expectations for a mentor include the following. A mentor may be able to advise you about the most appropriate forum for your work, suggest improvements to your submission, suggest how to deal with language problems, or refer you to relevant research of which you might not have been aware. Typically, a mentor might spend 3-7 hours on a submission. We carefully match mentors to mentees, and wish to support you in developing your work into a high-quality submission with a good chance of being accepted and published.

Note the following:

  • People requesting mentoring must have a complete draft ready for the mentor to review by the Mentoring Program Paper Deadline;
  • If there is an experienced AI & Law-related researcher in your department, it is expected that you would approach her/him first;
  • No notification of mentor/mentee assignments will be made until after the Mentoring Program Paper Deadline;
  • Reviewers will not be informed of whether a paper has been mentored. That is, the fact that a paper was mentored is not considered during the paper selection process.

Important Dates

Mentoring Program Organizers

  • Guido Governatori—NICTA and Queensland University of Technology, Brisbane, Australia
  • Burkhard Schafer—Edinburgh University, Edinburgh, Scotland, UK
  • John Zeleznikow—Victoria University, Melbourne, Victoria, Australia

Filed under: Conference Announcements Tagged: ICAIL, ICAIL 2015, ICAIL 2015 Mentoring Program, International Conference on Artificial Intelligence and Law, Legal informatics conferences
Categories: Teknoids Blogs

PACER says large numbers of U.S. federal court documents are no longer available in its databases

Legal Informatics Blog - Tue, 08/26/2014 - 02:00

PACER, the fee-based information service for the U.S. federal courts, announced recently that large numbers of court documents are no longer in its databases, as of August 10, 2014.

Journalist John Hawkinson, citing a source at the Second Circuit, said yesterday that the reason was a “system integration issue — didn’t prioritize backwards compatibility”.

Here is the text of the announcement, on the PACER Website:

As of August 10, 2014 the following information will no longer be available on PACER:

  • U.S. Court of Appeals for the 2nd Circuit: Cases filed prior to January 1, 2010
  • U.S. Court of Appeals for the 7th Circuit: Cases filed prior to CM/ECF conversion
  • U.S. Court of Appeals for the 11th Circuit: Cases filed prior to January 1, 2010
  • U.S. Court of Appeals for the Federal Circuit: Cases filed prior to March 1, 2012
  • U.S. Bankruptcy Court for the Central District of California: Cases filed prior to May 1, 2001

For further information please contact the court directly. Contact information for each court is available on the Court Locator page.

For more resources related to this issue, please see the comments to this post.

HT @adamliptak


Filed under: Applications, Data sets, Policy debates, Technology developments Tagged: Loss of public access to legal information, Missing legal data, PACER, Public access to legal information
Categories: Teknoids Blogs

A Step Closer to IBM Watson in the Law?

slaw - Mon, 08/25/2014 - 18:53

Are we getting closer to machines in the practice of law? In his blog post “Meet your new lawyer, IBM Watson,” Ron Friedmann describes a meeting between IBM senior management and top-tier law firm CIOs at last week’s ILTA conference. He says:

It sounds like IBM intends Legal Watson to replace junior associates or at least perform much of their work (see also The Future of LawAmerican Lawyer, Aug 2014). Legal Watson’s success depends on the answers to three questions:

  1. What information – and how much – does Watson need to ingest and, to the extent necessary, who will tune or train it?
  2. If Watson ingests enough and is tuned, will it exercise good legal judgement? That is, can it actually replace some or all of what junior associates do?
  3. If its judgement is good, what is the market strategy? That is, who will use it and why?

It was only about 3 1/2 years ago that Simon Fodden talked about Watson here on Slaw. I wonder if he had any thought about Watson having a role in the practice of law? It would have seemed so unlikely.

Friedmann does a good job of speculating whether this would be possible and what it would take. What do you think–how far will automation go?

Categories: Teknoids Blogs

My Twitter Digest for 08/24/2014

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practicePRO Resource: Technology Use Policies and Resources

slaw - Mon, 08/25/2014 - 12:15

Written policies that clearly establish guidelines and requirements governing the acceptable use of firm technology can help reduce cyber exposures and give staff clear direction on what they are permitted and not permitted to do with law firm technology resources.

Use these resources and sample policies to create polices for your firm (These resources supplement the information in the Cybercrime and Law Firms issue of LAWPRO Magazine): The model policies are also available in Word and RTF formats.

Categories: Teknoids Blogs

KF Modified: A Law Classification for the Small American Law Library?*

slaw - Mon, 08/25/2014 - 08:30

In the June issue of Technical Services Law Librarian Karen Wahl talks about Kristen M. Hallows‘ article called “It’s All Enumerative: Reconsidering Library of Congress Classification in U.S. Law Libraries” published in the Winter issue of the Law Library Journal.

In her review Wahl says:

The major thesis is that a subject classification scheme, rather than a jurisdictional classification scheme, may better support the needs of users because it will collocate related materials better, leading to better browsability for the patrons. It implies that the hyper-specificity of LCC makes this more difficult for a smaller law library.

The remainder of Wahl‘s comments provide support for her self proclaimed bias for the jurisdictional approach to law classification found in the Library of Congress Classification (LCC).

This reminds me of Philip Wesley‘s comment writing in the Law Library Journal in 1968:

the decision is not which is the best classification, but which is the best system for a given library. Scholars have argued for years about the relative merits of one classification vis-a-vis another; and I think it is safe to say that the arguments concerning law classification will continue for many years, inconclusively.

I wonder then if KF Modified might be useful for the smaller American law library?

KF Modified is modelled on LCC’s KF classification and provides a browsable topical arrangement of the common law. Jurisdiction can also be specified in some topic areas using what is known as the Geographic Division (G.D.). For example, Canadian materials on domestic relations would be classed at KF505.ZA2 where ZA2 is the G.D. for Canada.

There has been no G.D. for American law in KF Modified instead the number is used on its own, i.e. KF505. However, a G.D. for each state could be easily devised. For example domestic law for New York state might end up something like, KF505.ZU33 where ZU33 is the GD for New York.

Wahl also points out practical time related reasons for sticking with LCC. I considered this in an article I wrote for the Canadian Law Library Review a few years back, “KF Modified and the Classification of Canadian Common Law.”

The irony here is that KF Modified can actually save time and money in law library cataloguing departments. It is much easier for cataloguers to consult only one schedule for all common law jurisdictions. The result is that cataloguers can really learn the system well, enabling them to make better and more consistent classification decisions. The cataloguer can focus on analysing the intellectual content, determining the main subject area, and applying a geographical division (GD) where appropriate. A few topical areas have been ‘modified’ to handle constitutional law, taxation, etc. and there are a handful of additional tables that can be applied to collocate bibliographic formats. That’s it. Consulting one classification schedule with one approach to information organization saves cataloguers’ time.

And more specifically on copy cataloguing and KF Modified:

… even if a cataloguer is faced with only a Class K number, it is a relatively simple task to convert this number to an equivalent KF Modified classification number. It is a simple matter to find the corresponding subject area and, if appropriate, add a geographic division (GD). For example, a book on family law in Ontario would use KEO213 in Class K; the corresponding topical area in KF Modified (something KF Modified cataloguers will know intuitively) is KF505; and the appropriate GD for Ontario, ZB3, is added to create KF505.ZB3. People familiar with KF Modified (including law library users) will know that Ontario family law will be found in KF505.ZB3. And, as an added bonus, they will also find grouped together in KF505 other resources on family law in England, Alberta, Nunavut, Queensland, etc., that they can also consult.”

With some slight additional modification KF Modified might be a suitable choice for the smaller American law library.

* This post was first published on the KF Modified Blog on July 22, 2014.

Categories: Teknoids Blogs

Monday’s Mix

slaw - Mon, 08/25/2014 - 06:00

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. Lee Akazaki  2. U of A Faculty Law Blog 3. Labour Pains  4. Blogue du CRL  5. Legal Feeds

Lee Akazaki
Why can’t a lawyer be more like a share capital corporation? A reflection on the CBA Legal Futures Final Report

Henry Higgins, in My Fair Lady, famously sang, “Why can’t a woman be more like a man?” For Higgins, an elocution teacher who traded in British class prejudice by offering to improve clients’ social standing through posh talk, the education of a woman was essentially a troublesome Alternative Business Structure (ABS) – he could work with the moving parts but the brain remained a mystery….

U of A Faculty Law Blog
Why (not) Study Law?

Michael Krauss, who teaches at Geroge Mason University School of Law, my law school, has some advice to incoming first-year law students. Read the whole thing, but his punch line(s) is: Are you interested in pursuing Justice, in making the world/your country/your state a place governed by the Rule of Law, freer from predators and safer from tyrants than it currently is? … IF so, welcome to law school, we need you badly, you will find your studies fascinating and enriching, and you will be able to make a real difference in the world. …

Labour Pains
Still No Damages for Constructively Dismissed Employee

As an update to an earlier post, Employee Fired by Mistake had Duty to Return (published on this blog on September 3, 2012), on September 11, 2013, the Court of Appeal for Ontario upheld the decision of the Honourable Justice R.A. Lococo of the Superior Court of Justice, in which the court dismissed an employee’s claim for damages following an admitted constructive dismissal….

Blogue du CRL
Victims of Defamation on Facebook Should Read the Following before Instituting their Action

As a general rule, under article 68(1) of the Québec Code of Civil Procedure (“C.C.P”), a personal action must be instituted before the competent court of the defendant’s real or elected domicile. When the territorial jurisdiction of the judicial district is put into question by the defendant, via a motion for declinatory exception, the plaintiff must then prove that one of the exceptional cases set forth in the subsequent paragraphs of art. 68 C.C.P. applies. …

Legal Feeds
The tricky issue of jurisdiction in inter-provincial transportation

On Nov. 26, 2010, Daryl Janssen, an employee of Total Oilfield Rentals Ltd. Partnership, was killed on the job at a storage yard in Grand Prairie, Alta. His death sparked a long and strange string of hearings and lawsuits between Total Oilfield and the governments of Canada and Alberta that last week culminated in an Alberta Court of Appeal ruling about how to determine which level of government has jurisdiction over companies involved in inter-provincial transportation….

_________________________

*Randomness here is created by Random.org and its list randomizing function.

Categories: Teknoids Blogs

External Legal Spend Management – Controlling “Rate Creep”

slaw - Mon, 08/25/2014 - 06:00

Background

It would be a safe bet to assume that almost every in-house lawyer and CFO in the country expresses concern about managing external legal spend. A material amount of effort is spent with external legal service providers about managing rising legal costs. However, typically this focuses solely on the current rate structure being offered. This is only one part of a well defined legal services delivery platform. In addition to articulating the current fee structure, an intentional approach to fee reviews is necessary to effectively manage the effect of “rate creep” (the year over year increase of fees without justification). Regardless of the amount of effort, time and creative thinking put forth, even the most innovative structure is susceptible to erosion from rate creep if the legal services purchaser does not think beyond the current year’s procurement of services when structuring their approach to external counsel management.

The Challenge

Those responsible for managing legal spend within an organization are often tasked with, at a bare minimum, maintaining a static legal spend. However, year over year it is common for notices of fee increases to be delivered by external counsel. In an environment of increasing costs, what are some watch-outs and best practices around managing rate creep?

Choose the Right Metric

As cautioned in previous articles, legal departments need to be careful about the metrics selected for pursuit so as to avoid the perils of tunnel vision. Total dollars spent, while important, is only a part of the picture. Often overlooked is the quantum of services received for the dollars spent. One way to look at this would be to measure the purchasing power of the legal department by looking at the effective cost per hour of services received, and to examine this over several fiscal years. Delving further into the details, a legal team can start to review the effective cost per hour of services across different categories of work, provinces, law firms, etc. Trends showing significant upward increases, and differences in the effective cost of services provided by law firms (or quite often by departments within the same law firm), should be examined.

The Importance of Looking at the Entire Legal Services Platform

Having completed the above, it can be readily apparent whether the purchasing power of the legal department is eroding. Focusing solely on the total amount of external legal spend can easily mask concerning micro trends. For example, if the legal team spent the same on external counsel this year, but received only 90% of the total legal services, then it could be facing an erosion in purchasing power. In much the same way, looking at legal services overall rather than by category of work can also result in trends being missed.

In addition to reviewing previous and current year’s spend, forward looking planning is also required. Otherwise, it is difficult to purposely and systemically manage rate creep. A well defined legal services platform should help protect against the risk of purchasing power erosion by defining clear processes around requests for increases in fees, and by carefully framing the manner in which the conversation will occur.

Best Practices

In my view, best practices to manage escalating external legal costs include the following:

  1. Implement written retainer agreements with all firms.
  2. As a schedule to the agreement, include the names of each lawyer (or for large delivery platforms, at the very least the category/level of lawyer) who is expected to work on the account and their fee structure.
  3. Implement in writing, preferably in the retainer agreement, clear processes around requests for increases in fees.
  4. Set clear deadlines by which such requests must be made. For example, consider requiring all requests to be made at least 60 days prior to the company’s new fiscal year. This will allow in-house counsel to manage and budget costs more accurately at the outset of each new fiscal year, without having to account for fluctuating mid-year rates.
  5. Develop a template to be completed by firms requesting increases in fees that will be attached to a formal retainer agreement amendment. Use this template as an opportunity to frame the nature of the conversation that will occur. This can include a requirement, in table format, that the following be clearly shown:
    1. Each lawyer (or category/level of lawyer) at the firm who is expected to be working on the account over the upcoming year;
    2. Each lawyer’s current fee;
    3. Each lawyer’s requested amended fee; and
    4. The amount of the increase requested, expressed as a percentage.

The last point is one of the most important aspects, in my view, of managing against rate creep. Right from the start it frames the nature of the conversation that will occur between the legal department and the external service provider. The law firm’s relationship partner will need to turn their mind specifically to the optics of the percentage increase that is being requested. An increase from $300 to $325 per hour may not seem unreasonable at first glance, but when expressed in writing as an increase of 8.3%, the nature of the conversation can change.

Concluding Thoughts

Management of external legal spend needs to be done holistically, with a view to the entire platform and not just the aggregate dollars spent. While there are many good reasons why the cost of services from a particular lawyer or firm should increase, too often a blanket approach is taken that is out of touch with perceived improvements in efficiency, skills or service. It is up to General Counsels and CFOs to be judicious with their organization’s dollars and to hold legal service providers accountable.

The thoughts, ideas and views expressed in this article are that of the author. This article was written in the spirit of contributing to the advancement of Corporate Counsel and the organizations they serve. You are invited to connect with Tyler Langdon via the hyperlink on his name, above.

Categories: Teknoids Blogs

Paperless Tip: Never Ever Send Word Files as Correspondence

The Lawyerist - Sun, 08/24/2014 - 21:11

Never ever ever send a Word file as “correspondence.” A Word file — or a WordPerfect, OpenOffice.org, or Pages file — is not a document. PDFs are documents. Word files are drafts. And sending a draft that includes your digital letterhead and signature to anyone is just plain stupid. Here’s why.

I frequently receive “correspondence” attached to an email from an attorney involved in one of my cases. Nothing is unusual about that. While I think an email with a professional-looking signature block is plenty formal, there are times when a more formal letter is important, and sending it as an attachment to an email works just fine. What is unusual is how these attachments are sent to me — as a Word file instead of as a PDF.

Okay, first thing to take away: Word files are not documents. In a paperless environment, a document must be a substitute for the actual paper. A PDF file can be a document. A Word file cannot. Write this down. Word files are drafts. They are never ever final documents.

Why? Because by their very nature anyone you send them to can change them! That all-important not in your letter can be deleted and the doctored letter used against your client — as in “My client did not steal $100,000 from your client” becomes “My client did steal $100,000 from your client.” See the problem?

Word files are simply not final documents and should never be sent to anyone unless you are working on a draft.

What I usually receive is a .doc file with the firm’s digital letterhead and the content of the letter. In each case the “signature” of the attorney was simply their name preceded by /s/. First, this is the lamest way to “sign” a document outside of electronic case filing, what those attorneys did was provide me with a template to create correspondence from their firm, if I was inclined to do so. (Obviously, I would not, since it would be an obvious ethical violation.) You should not expect everyone you deal with to be scrupulous. In fact, you should assume that they will be unscrupulous to protect yourself and your client.

The second thing to take away from this is that many, many attorneys still have no idea how to operate in an increasingly paperless world. Many state courts are converting to electronic filing. Attorneys who do not understand the basics of a paperless practice will not be able to navigate in that world.

The bottom line is this: sending a Word file to an attorney is fine if you are in fact collaborating on that file. But always remember that the Word file is not the final product; it is only a draft and you should never treat it as anything else. Protect your digital signatures and digital letterhead as you would physical versions. You’ve never sent your opposing counsel a stack of your blank letterhead have you? Then don’t do it digitally.

This was originally published on April 25, 2013. It bears repeating, so we republished it on August 25, 2014.

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My Twitter Digest for 08/23/2014

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Diagramming for Statutory Interpretation

slaw - Sun, 08/24/2014 - 11:22

Juana Summers of NPR detailed this week the use of sentence diagramming, a grammar technique once widely used in America,

Burns Florey and other experts trace the origin of diagramming sentences back to 1877 and two professors at Brooklyn Polytechnic Institute. In their book, Higher Lessons in English,Alonzo Reed and Brainerd Kellogg made the case that students would learn better how to structure sentences if they could see them drawn as graphic structures.

After Reed and Kellogg published their book, the practice of diagramming sentences had something of a Golden Age in American schools.

The practice fell into disuse by the 60′s, and received vocal opposition from educators by the mid-80s. Summers wonders if there are some limited applications for which it could still be used today. For example, those with a visual learning style would probably benefit from observing these, and kinaesthetic learners may even enjoy mapping sentences in graphic format.

How this diagramming works can be demonstrated with this line from Planet of the Apes (the 1968 original),

The colour coordination of the various words are described as follows:

Although sentence diagramming was intended to help students with how to better structure sentences, it can also be helpful in understanding the relationship between words. We face unique challenges when dealing with sentences in law, as best characterized by Judge Marvin Frankel in 1972, Criminal Sentences - Law Without Order,

The almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law.

Law students also struggle with sentence deconstruction, what we call parsing in law, as one student illustrated by pointing to the meaning of “purposely entered at night,”

“Purposely entered at night.” It depends on whether you parse the law as purposely (entered at night) or (purposely entered) at night. That is, did the guy know that he entered, and know it was at night, or did he know that he entered, and it was at night (whether he knew that or not). The joys of statutory construction. And I suppose an argument could be made that “purposely” implies something more than mere knowledge, that it might even require that he made a conscious choice to enter at night rather than during the day.

You either love or hate this type of exercise. Either way, you’re stuck with it when practising law.

Sentence diagramming may assist us in deciphering the often obscure passages we come across in our profession, or at the very least, give us alternative explanations as to what they might mean. And for many of us, in a nutshell that is exactly what lawyering is.

The reason why the relationship between words, and not just the meaning of words themselves, are important in statutory interpretation is that the syntactic relationships among the constituent words provides nuance that an isolated examination of the words itself invariably overlooks.

Craig Hoffman states in Parse the Sentence First: Curbing the Urge to Resort to the Dictionary when Interpreting Legal Texts,

In thinking about sentence interpretation, linguists have pointed out that sentences are not mere word strings: that is, interpreting a sentence is much more than defining the words that comprise it. The key to sentence meaning is to understand how the grammar generates and interprets the syntactic and semantic relation- ships among the phrasal categories that the sentence contains.

Hoffman examines several U.S. Supreme Court cases, parses importance sentences in questions, diagrams the sentences to illustrate the relationship between the words, and demonstrates have several faulty conclusions have been made through improper interpretation. He concludes,

Although dictionaries are useful for divining the derivations and denotations of individual lexical items, dictionaries are not so useful when interpreting complex phrases in legal texts. Lawyers and judges resort to dictionaries out of habit and ignorance. By looking carefully at the U.S. Supreme Court’s uncritical use of Dictionary Method, it becomes clear that the habitual resort to the dictionary is far from harmless. As the legal profession becomes more aware of the practi- cal benefits of using Linguistic Method when interpreting legal texts, statutory interpretation can become more consistent with linguistic in- tuitions and, consequently, more likely to create stable and informed precedent.

If the task of diagramming a statute or judicial decision still seems onerous, we can probably expect some form of algorithm to be developed in the near future which will help do this mapping for us.

Hung et al. state in the International Journal on Natural Language Computing,

Machine translation can work well for simple sentences but a machine translation system faces difficulty while translating long sentences, as a result the performance of the system degrades. Most legal sentences are long and complex, the translation model has a higher probability to fail in the analysis, and produces poor translation results.

By splitting complex legal sentences into smaller segments, Hung et al. were able to more better determine the correct syntactic structure and reduce ambiguity. The four cases of logical structure in legal sentences they identify is as follows:

They apply this approach to translate legal sentences in English to Japanese more accurately than traditional statistical machine translation.

Unfortunately, many of us need these translations when converting (legal) English sentences into (colloquial) English. Mapping it out is just a more convenient way to understand the relationship between the words, and far more concise than a legal brief explaining it.

Categories: Teknoids Blogs

Summaries Sunday: SOQUIJ

slaw - Sun, 08/24/2014 - 06:00

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

Constitutionnel :Le ministre des Ressources naturelles et de la Faune a violé les droits des peuples autochtones aux termes de la Convention de la Baie James et du Nord québécois en fixant par décret la date de la chasse aux caribous du troupeau de la rivière aux Feuilles au 15 novembre 2011 plutôt qu’au 1er décembre 2011 et en permettant la chasse aux caribous du troupeau de la rivière George en 2011.

Intitulé : Corporation Makivik c. Québec (Procureure générale), 2014 QCCA 1455
Juridiction : Cour d’appel (C.A.), Montréal, 500-09-022212-112 et 500-09-022213-110
Décision de : Juges Pierre J. Dalphond, Julie Dutil et Marie-France Bich
Date : 4 août 2014 (jugement rectifié le 14 août 2014)

CONSTITUTIONNEL (DROIT) — autochtones — droits issus de traités — chasse — Convention de la Baie James et du Nord québécoisRèglement sur la chasse — modification — validité — non-respect du processus prévu au chapitre 24 — Couronne — obligation de consultation — principe de l’honneur de la Couronne — atteinte non justifiée — réserve de droits.

ÉNERGIE, MINES ET RESSOURCES — chasse — autochtones — droits issus de traités — Convention de la Baie James et du Nord québécoisRèglement sur la chasse — modification — validité — Couronne — obligation de consultation — principe de l’honneur de la Couronne — atteinte non justifiée — réserve de droits.

INTERPRÉTATION DES LOIS — historique législatif — interprétation téléologique — chapitre 24 de la Convention de la Baie James et du Nord québécois.

Appel d’un jugement de la Cour supérieure ayant conclu à la validité de modifications au Règlement sur la chasse. Accueilli.

Les appelants se pourvoient à l’encontre d’un jugement de la Cour supérieure ayant conclu à la validité de modifications au Règlement sur la chasse malgré des manquements à l’obligation de consultation prévue à la Convention de la Baie James et du Nord québécois, qualifiés d’accrocs purement procéduraux. Les parties appelantes inuites et cries (ou leurs auteurs) ont signé la convention en 1975. Les parties appelantes naskapies y ont adhéré en 1978 par la signature de la Convention du Nord-Est québécois. La convention régit le développement et la préservation du Nord québécois de même que la protection sociale des peuples qui y vivent. Son chapitre 24 édicte plusieurs mesures applicables au régime de chasse, de pêche et de trappage sur le territoire, une superficie de 410 000 milles carrés des territoires de la Baie James et du Nouveau-Québec, dont la création d’un comité conjoint — chasse, pêche et trappage spécialisé. En 2010, le «Plan de gestion du caribou de la région du Nord du Québec (2004-2010)» a pris fin avec, en trame de fond, le constat d’un important déclin des deux troupeaux de caribous du territoire, soit le troupeau de la rivière George et celui de la rivière aux Feuilles. Les représentants autochtones qui siégeaient au comité ont prôné dès septembre 2010 l’adoption de mesures conservatoires; une résolution a été adoptée en ce sens. En décembre 2010, les représentants autochtones ont opté pour une fermeture complète de la chasse sportive, alors que ceux du gouvernement québécois préféraient une réduction de cette activité pour les non-autochtones, de façon à atténuer les conséquences économiques pour les pourvoiries. Par une lettre datée du 20 décembre 2010, le ministère des Ressources naturelles et de la Faune a proposé des mesures de réduction avec lesquelles les représentants autochtones étaient en désaccord. Les représentants du gouvernement ont refusé de voter. Le comité conjoint a adopté une résolution recommandant l’adoption des mesures conservatoires quant au troupeau de la rivière aux Feuilles grâce à l’abstention des représentants autochtones. Le 17 mars 2011, le ministre délégué a décidé unilatéralement de réinstaurer l’ancienne date d’ouverture de la saison de chasse quant à ce troupeau, et ce, sans avoir consulté le comité conjoint, dont la recommandation était ainsi écartée quant à la date d’ouverture de la chasse sportive. À cette même date, le ministre a annoncé des mesures qu’il a adoptées unilatéralement quant au troupeau de la rivière George. Il a affirmé avoir agi ainsi en raison de l’omission du comité conjoint de voter sur ses propositions. Le 31 mai, le comité a adopté, grâce au vote prépondérant du nouveau président, un représentant autochtone, une résolution fixant à 11 168 le total des prises par les non-autochtones dans la partie ouest du territoire et à 0 dans la partie est. Le Ministère a refusé d’y donner suite au motif que la résolution était illégale puisqu’elle ne visait que les prises par des non-autochtones. Le 13 juillet 2011, le Règlement modifiant le Règlement sur la chasse a été adopté. La juge de première instance a conclu qu’il y avait eu des manquements uniquement procéduraux à l’obligation de consultation, rejetant ainsi la demande de nullité du règlement, d’où l’appel.

Décision
M. le juge Dalphond: À la suite du rapatriement de la Constitution, les droits issus de la convention, dans leur volet tant collectif qu’individuel, sont devenus constitutionnellement protégés en vertu des articles 25 de la Charte canadienne des droits et libertés et 35 de la Loi constitutionnelle de 1982. Il s’ensuit que la modification et l’extinction des droits issus de la convention ne peuvent se faire sans l’assentiment des peuples autochtones touchés, même en cas d’acte souverain de l’Assemblée nationale du Québec ou du Parlement du Canada (R. c. Sioui (C.S. Can., 1990-05-24), SOQUIJ AZ-90111044, J.E. 90-823, [1990] 1 R.C.S. 1025). Permettre à un ministre de ne pas suivre le processus prévu au chapitre 24 sous prétexte qu’il est inutile ou qu’il ne changerait pas le résultat final irait à contresens des obligations constitutionnelles de ce dernier. Il s’agirait alors non pas d’un accroc purement procédural, mais d’un manquement à l’honneur de la Couronne. Une analyse historique et téléologique du chapitre 24 de la convention fait ressortir que le ministre compétent est tenu de consulter de bonne foi avant d’exercer son pouvoir réglementaire, sauf pour des modifications mineures à la réglementation en place ne touchant pas les autochtones, et d’être réceptif aux avis et recommandations du comité conjoint. En l’espèce, le ministre a commis trois manquements au processus convenu au chapitre 24 de la convention. D’abord, le 17 mars 2011, il a annoncé une date d’ouverture de la chasse aux caribous de la rivière aux Feuilles unilatéralement, sans en discuter au préalable avec le comité conjoint. La date annoncée fait fi d’une résolution antérieure du comité, de surcroît adoptée par ses représentants. Un revirement de la position ministérielle est exactement le genre de situation où la convention impose clairement l’obligation de consulter le comité conjoint puisque cela ne constituait pas une modification mineure au sens de l’article 24.4.37. Ensuite, dans le cas du troupeau de la rivière George, le ministre a agi en violation de la position ferme des autochtones en présumant qu’il aurait «gagné» le vote si celui-ci avait été tenu. Ce faisant, il a fait fi du processus prévu au chapitre 24, soit un préalable à toute modification valide du règlement. Enfin, le projet de règlement modifié n’a pas été soumis au comité avant son adoption, ce qui contrevient à l’article 24.4.26 de la convention, mais aussi à l’article 75 a) de la Loi sur les droits de chasse et de pêche dans les territoires de la Baie James et du Nouveau-Québec. Ces atteintes au droit de consultation et de participation ne peuvent se justifier au sens de l’analyse requise sous l’article 35 de la Loi constitutionnelle de 1982 (R. c. Sparrow (C.S. Can., 1990-05-31), SOQUIJ AZ-90111047, J.E. 90-851, [1990] 1 R.C.S. 1075, Delgamuukw c. Colombie-Britannique (C.S. Can., 1997-12-11), SOQUIJ AZ-98111002, J.E. 98-38, [1997] 3 R.C.S. 1010, Nation Tsilhqot’in c. Colombie-Britannique (C.S. Can., 2014-06-26), 2014 CSC 44, SOQUIJ AZ-51085367, 2014EXP-2030, J.E. 2014-1148). Dans Corp. de l’Hôpital Bellechasse c. Pilote (C.A., 1973-02-01), 131950, la Cour d’appel a rappelé que l’inobservance des exigences procédurales ne peut être sauvegardée par la simple constatation que son observance ne changerait pas le résultat de la décision. Cela est d’autant plus vrai en l’espèce, où les procédures prescrites sont la confirmation d’un droit substantif de participation à la cogestion de la chasse, de la pêche et de la trappe dans le territoire. Par conséquent, il y a lieu de ne prononcer que des conclusions déclaratoires afin de déclarer que le ministre a violé les droits des peuples autochtones, de sorte que les manquements ne demeureront pas impunis. Les droits des peuples autochtones sont réservés quant à la réclamation d’une indemnisation pour les préjudices subis en raison de ces violations.

Le texte intégral de la décision est disponible ici

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My Twitter Digest for 08/22/2014

<CONTENT /> v.5 - Sat, 08/23/2014 - 14:30
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Collaborative That Once Criticized Software Companies Becomes One

The Chronicle Wired Campus - Fri, 08/22/2014 - 16:03

Ten years ago, a group of universities started a collaborative software project touted as an alternative to commercial software companies, which were criticized as too costly. On Friday the project’s leaders made a surprising announcement: that it would essentially become a commercial entity.

The software at issue, called Kuali, does the boring but important work of managing accounting, billing, e-commerce, budgeting, and other campus functions. Colleges can pay software companies tens of millions of dollars for these mission-critical tools, and the vision of Kuali was to take a do-it-yourself approach. The nonprofit Kuali Foundation helped manage development of free software that any college or university could use, in what was called a “community source” model. From the beginning the software has been open source, meaning that anyone can look under the hood of the software and make changes to it.

The Kuali project did develop a complex software tool that is used by 59 institutions. But one problem was that the project was not able to make updates and improvements fast enough to meet the demands of the colleges that used the software. And some colleges apparently worried that the group wasn’t financially sound.

Barry Walsh, a longtime leader of the Kuali Foundation, said in a conference call on Friday that “angst” about the “pace and path to sustainability” of the project drove the change.

The Kuali Foundation will continue to exist as a non-profit, but it will be an investor in a new commercial entity to back the Kuali software development. Leaders insisted that they would maintain the values of the project despite creating the kind of organization that they once criticized. For one thing, the source software will remain free and open, but the company will sell services, like software hosting. On Friday the group issued an FAQ with details about the change.

“We would like to go faster for enhancements and improving the user experience
as things go mobile and as things go multi-device,” said Brad C. Wheeler, chairman of the Kuali Foundation and chief information officer at Indiana University, in an interview. “There’s nothing here that’s sort of a rescue mission.”

His explanation for the change came down to this: Times have changed. Today, he said, college leaders perceive companies as more stable than communal projects. And he pointed to the emergence of companies like Instructure that sell hosting but make their software open source.

In its FAQ, the group acknowledged that some users of Kuali might walk away because of the changes. “But we will also gain new members excited by the potential of the new technology, new delivery models, and new leadership,” the document says.

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My Twitter Digest for 08/21/2014

<CONTENT /> v.5 - Fri, 08/22/2014 - 14:30
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Why the Law Often Doesn’t Recognize Privacy and Data Security Harms

LLRX - Fri, 08/22/2014 - 13:37
In the second article of a four part series, Daniel J. Solove explains how the law is struggling to deal with privacy and data security harms.
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Do Privacy Violations and Data Breaches Cause Harm?

LLRX - Fri, 08/22/2014 - 13:10
In his third article in a four part series, Daniel J. Solove explores two issues that frequently emerge in privacy and data security cases: (a) the future risk of harm; and (b) individual vs. social harm.
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How Streaming Media Could Threaten the Mission of Libraries

The Chronicle Wired Campus - Fri, 08/22/2014 - 12:03

Digital music has made it easier to buy and share recordings. But try telling that to librarians.

In March 2011, the University of Washington’s library tried to get a copy of a new recording of the Los Angeles Philharmonic playing a piece by Gustavo Dudamel, a popular composer, that the library could lend to students. But the recording was available only as a digital download, and Amazon and iTunes forbid renting out digital files.

So the librarians contacted the Philharmonic to see if there was some way they could get a copy of the Dudamel album that they could loan out like a compact disc. The orchestra referred them to a distributor, which referred them to the publisher, Universal Music Publishing Group. At first the corporation said it couldn’t license the Dudamel recording to the university, according to the librarians. Later it offered to license 25 percent of the album for two years in exchange for a licensing fee plus a $250 processing fee.

No thanks, the librarians said.

Welcome to content licensing, a great source of anxiety for librarians in the digital era. In previous decades, the university librarians might have bought a CD of the Dudamel album for $25 and kept it in circulation it for as long as the disc remained viable. Here they were asked to pay the publisher 10 times that amount (plus a licensing fee that would probably exceed the processing fee) for access to a quarter of the album for two years.

“That’s a new thing in the history of libraries, and a relatively new thing in the history of selling things,” says D.J. Hoek, head of the music library at Northwestern University.

Old-fashioned media—books, tapes, CDs, etc.—are governed by the first-sale doctrine, a legal provision that allows a buyer to do whatever she wants with a copy.

The licensing of digital media, however, gives publishers far more power. Instead of selling an album outright, they can sell permission to access its contents for a fixed amount of time. (This is a boon for textbook publishers in particular. Under a digital regime, they may not have to worry about losing sales to students buying used copies.)

The licensing model stands to become the norm as physical media get phased out, says Mr. Hoek. “This isn’t just a music problem,” he says. Anything made of “ones and zeroes” can be kept on a leash.

Librarians see this state of affairs as an “existential crisis.” That is how a group of them put it in a summary for a grant they have received from the U.S. Institute of Museum and Library Services to study the possible effects of a digital regime.

“As more and more books, videos, and sound recordings are licensed and distributed through online-only means, the amount of materials available for libraries to collect is shrinking,” wrote the grantees.

John Vallier,  head of distributed media at the University of Washington Libraries, is one of those involved in that study, which just got under way. As far as he knows, Universal and other major music publishers have not proposed an easier way for libraries to provide digital-only music recordings to libraries.

Rebekah Alperin, senior vice president for marketing and communications at Universal, said she could not immediately provide information on the company’s practices in that regard.

The digital regime is evolving fast. Since 2011, music-streaming services such as Spotify and Rdio have boomed in popularity. The specific problems related to Washington’s attempt to download the LA Philharmonic’s performance of Dudamel’s music may soon be obsolete. “Downloading is a transitional technology,” says Mr. Hoek. “Downloading is going to be the punch line to jokes the way eight-track tapes are now.”

These days, he says, if the students in Northwestern’s conducting program want to listen to a recording, they don’t have to go to the library. They can stream it online.

But streaming does not solve the licensing problem, Mr. Hoek says. It may provide students with an alternative avenue for accessing recordings not in a library’s collection, but it also eliminates the library as the steward of digital artifacts.

“That puts the companies who own that content in charge of governing all access to that content,” he says. “And that puts the companies as the sole keepers of that content.”

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Privacy and Data Security Violations: What’s the Harm?

LLRX - Fri, 08/22/2014 - 12:00
Daniel J. Solove is a Law professor at George Washington University Law School, an expert in information privacy law, and founder of TeachPrivacy, a privacy and security training company. In the first of a four part series, Prof. Solove's article focuses on the ramifications of increasingly common instances of personal data theft or improper data disclosure, and the subsequent ramifications for those compromised.
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CosmoLex Law Practice Management Software

The Lawyerist - Fri, 08/22/2014 - 06:12

CosmoLex is a new cloud-based software that launched at this year’s ABA Tech Show. Shortly after launch, CosmoLex announced integrated trust accounting, with a goal of creating an all-in-one solution for attorneys that negates the need for third-party software like QuickBooks. CosmoLex is still a work in progress, so consider this a first look.

CosmoLex calls itself “practice management software,” but that isn’t quite apt. More properly, it is timekeeping and billing software. It has some robust features, like built-in conflict checks, but it lacks the heart of case management software such as calendars, reminders, and integrated email. However, CosmoLex has indicated these features are forthcoming.

IndexGetting Started With CosmoLex

CosmoLex’s signup is dead simple. Provide a name, email, and phone number, and you are set. You can also request an on-demand demo. There is a free 30-day trial period, and you do not need a credit card for the trial. This flexibility is refreshing for lawyers that would like to try out several types of case management software.

Migrating to CosmoLex

At this time, CosmoLex does not allow for data migration from other case management or accounting software. They do provide information on the best way to migrate your financial data in terms of sound trust accounting principles, but there is no way to actually import data.

Using CosmoLex

When you first start using CosmoLex, the software will have you enter your firm and bank information. You can enter account information for both an operational and a trust account. Optionally, you can set up information about your bank, your default check style (you can print checks from within the program), and the default payee when trust funds are drawn.

After you have done an initial setup, CosmoLex opens into its Matter screen and states that you can perform approximately 90% of your tasks from this screen, which seems largely borne out by use.

From this screen, you can enter a new matter, keep track of time spent on a client matter, enter receipt of a retainer, enter receipt of a trust retainer, and enter a trust transaction. It is a clean and simple user interface that uses pop-ups, and ensures you do not have to keep leaving the main screen.

Further, CosmoLex is very flexible in terms of accommodating the myriad ways in which lawyers charge for services. Fixed rate? You can do that. Hourly? No problem. Need a localized billing rate that is different from your usual rate? Sure. Need to note that there is a retainer? Of course.

Generating an invoice is slightly less intuitive. You get to the Invoices screen via the Matter Details button on the main page, and that will take you to a different screen where you can generate the invoice.

However, rather than getting a pop-up with the generated invoice, you get no information. CosmoLex is actually generating the invoice, but you won’t know that until you go back out to the Activities screen, choose the Invoices tab, and then click the Action button. It is an odd hiccup in an otherwise smooth user experience. The invoices themselves can be customized with a cover page and your law firm’s logo, which is a nice feature.

Checks can be printed directly from CosmoLex, and you can specify if those are being drawn on your trust or operating account. From the Bank screen, you choose which account you will be paying funds from, which brings you to a transaction screen where you choose the checks you want printed. A pop-up box gives you a number of choices as to how the check should look.

Checks print as a PDF with the stub and design information you have selected, and you can then print those on your computer checks.

The reporting system in CosmoLex is excellent. With one click, you can generate accounting reports, billing reports, bank reports, and trust account reports.

If you are the kind of attorney that likes to crunch your financial data in every possible way, CosmoLex gives you exactly what you need. You can run reports that give you a high-level overview of your firm’s finances or drill down to matter-by-matter transactions. There is a wide variety of trust account reports you can run, and you can also run key banking and compliance reports such as three-way reconciliation. If your main concern in selecting software is that it helps you get a handle on knowing exactly where your firm is at financially, CosmoLex would be a good choice.

One quibble: when you generate a report, it does not show up as a pop-up that you can view at a glance. Instead, your report will automatically download as a PDF to your desktop. It would be preferable to have the report pop-up and give you the option to print instead, since it is a slight hassle to hop out of the program to open a PDF from your desktop. Honestly though, this a very small problem for a very strong reporting feature.

Mobile Apps and Extensions

CosmoLex states it has a mobile app, but in actuality it is just a mobile site. It is very responsive, but is limited to only adding time and expense cards.

CosmoLex does not integrate with any extensions at this time.

Security

CosmoLex is browser-based and encrypts all traffic via 128 bit SSL, which is bank-level protection. All servers are located in the United States and, CosmoLex notes, are subject to U.S. jurisdiction. CosmoLex has McAfee run a third-party security audit every 24 hours.

CosmoLex also offers role-based user security, which means that different users can be assigned different access rights and roles. These roles can limit exposure of financial data within your firm.

Backing Up Your CosmoLex Data

CosmoLex states that they back up your data every four hours, but they do not offer exporting your data or keeping your own backup copy.

Evaluating CosmoLex for Your Practice

CosmoLex will not take the place of traditional full-scale case management software. For some attorneys, that may be an insurmountable problem. Since CosmoLex does not import or export data, it is not currently possible to integrate your case management software with it in any fashion. Related, the fact that you cannot import your current financial data into CosmoLex may pose a problem for established attorneys. However, if you are just starting out, the clean interface and the trust accounting features may make CosmoLex appealing.

Since CosmoLex is fairly new, very few reviews exist.

A Review of CosmoLex Time and Billing (Plus Exclusive News about New Features) on LawSites.

The Best Law Firm Timekeeping and Billing Software: An In-Depth Comparison on JurisPage.

Price

Normally, CosmoLex is $50 a month per user, billed annually. Until September 30, users can take advantage of a promotional price of $43 a month per user, which is also billed annually. That is a relatively high rate if you have multiple users, particularly if you are also paying for multiple users for your case management software. However, CosmoLex can be commended for having a very simple pricing structure with no hidden costs. They also state that if you purchase now, their price will not change as additional features are added.

What CosmoLex Does Well

CosmoLex offers an excellent user experience. It is intuitive and easy to navigate. It runs extremely fast in a browser and the mobile version, while limited, is speedy also. CosmoLex does a great job of helping you get a handle on firm finances, particularly in terms of trust accounting. They clearly want to alleviate difficulties in maintaining proper trust account records, and do a good job of doing so.

Where CosmoLex Needs Work

CosmoLex is going to need to make a choice soon: does it want to be a complete case management solution or would it like to focus solely on billing? Right now, the client matter and timekeeping functions are a bit more extensive than you would expect in a piece of billing software, but the fact that you are not able to import information from your existing case management software means tracking timekeeping data in two places. If CosmoLex adds robust data importing and exporting, or moves towards explicit integration with other case management software, it could be a much better product.

Summary

As timekeeping and billing software, CosmoLex is sleek and easy to use. However, much of the timekeeping and client functions are duplicated by other case management software, and the lack of data integration or import makes it an expensive choice for what it does.

Rating: 3 (out of 5)

CosmoLex, reviewed by Lisa Needham on August 22, 2014.

Full disclosure: Sam just signed a contract to do some consulting with CosmoLex. As a result, he did not contribute to this article. —Ed.

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