Employers Requiring Disclaimers in Employees’ Social Media Posts

slaw - Mon, 10/27/2014 - 15:22

In the USA, the National Labor Relations Board (NLRB) oversees not just unionized workplaces but many others too. Among the issues attracting its attention these days are social media policies of employers. As one might expect, the NLRB protects free speech by employees, especially where employee rights and relations with employers are concerned.

However, the Board has recently confirmed that employers may require employees to disclaim speaking for the employer on the employees’ social media sites. The risk that employers could get in trouble for ideas otherwise imputable to them was considered a valid reason for such disclaimers. However, disclaimers would not be required on individual tweets, for example.

The disclaimer is required only where the employee makes him- or herself identifiable as an employee, however.

Would the same policy prevail in Canada? Would employees have any claim to avoid the need to publish disclaimers on, say, Facebook pages or blogs, or maybe in a Twitter profile?

Is there any authority short of a court to judge such a question, outside the context of a unionized workforce? For that matter, would our labour boards have jurisdiction, outside the scope of an unfair labour practice?

Do employers in practice require such disclaimers? Should they?

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My Twitter Digest for 10/26/2014

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Administration of Justice: Who Is Responsible for Technology?

slaw - Mon, 10/27/2014 - 13:56

In September, at the Opening of the Courts, a very similar speech was given by the Chief Justices of Quebec and Ontario to their respective audiences. Unknowingly in tune, the highest ranking provincial judges of both provinces deplored the heavy, inaccessible and saturated court system.

Chief Justices Nicole Duval Hesler, François Rolland and Élizabeth Corte pleaded for the augmentation of judicial staff. But more importantly, they came to the conclusion that despite the current efforts to use staff more efficiently, the court system can simply not satisfy the increasingly high demand. Thus, as per Justice Rolland, “[n]ous n’avons plus le choix (…)” (transl: we have no other choice): as a legal community, we have to change our methods and innovate. He underlined that this means moving away from legal formalism and the procedural jousting to which society is a stranger.

Ten days later, the Honourable George R. Strathy, Chief Justice of Ontario, raised concerns about the “cost, complexity and time it takes to complete legal proceedings.” He encouraged the Courts to consider simplifying, streamlining and making their practice more user-friendly. And Justice Strathy personally committed to reviewing the Court of Appeal’s practices with a view to meeting these goals.

The issues described above raise an increasingly popular tangent: the digitization of justice.

All across Canada, judges, law societies, courthouses, schools, and professional bodies have been imploring the modernization of the court system in order to improve the administration of justice – and by extension, improve access to justice.

Several initiatives have been implemented over the years across Canada. For example, in Quebec, the new Code of Civil Procedure encourages the use of technology, and in addition, the Ministry of Justice recently announced the deployment of WIFI in all courthouses in Quebec. Similarly, internet access has expanded in Ontario, a model electronic courtroom was created in the Toronto Superior Court of Justice, and in British Columbia, the Supreme Court issued a practice direction on electronic documents and evidence.

Despite these endeavours, our court systems are more congested than ever. Is it because Canada lacks adequate technology? Obviously not. In fact, legal tech is booming. In 2012, 500 million dollars were invested by venture capitalists across North America on legal-tech start-ups. Nevertheless, our court systems are lagging behind due to the heavy burden imposed by centuries of formalism and paper-based procedures which slow down the administration of justice. The need is there. The technology is there. Even the will is there. But the legal ecosystem is not moving fast enough. I believe that adoption of technology cannot be encouraged, it should be imposed. Yes, I said it. I personally believe that in order for us (myself included) to implement the technology needed to relieve our courthouses, orders should come from higher above. But I would love to be convinced otherwise.

My name is Amir Tajrakimi, and I am legal counsel at National Bank of Canada, as well as CEO & Cofounder of legal-tech startup Lexop.com. I am a member of the Quebec Bar and the Canadian Bar Association, and a passionate advocate of technology and innovative law practice management. Join me on October 30, 2014, at 1pm ET for the next #cbafutureschat. I will host a Twitter Chat for the CBA’s Legal Futures Initiative during which I will be the moderator. I’ll ask questions about the issues raised above, and people are free to respond, share ideas and network. It’s a very fun hour, and all feedback will greatly advance the CBA’s Legal Futures Initiative.

Categories: Teknoids Blogs

Tools and Strategies for Lawyers With Vision Impairments

slaw - Mon, 10/27/2014 - 13:33

Toronto lawyer Ernst Ashurov was born with limited vision, and an eye injury in childhood left him almost completely blind; yet he runs a criminal and general litigation practice. In the first few years of his career, he was able to read print using extreme magnification glasses; but by 2006 he could no longer read. These days, he relies on two key software products to work with documents and to conduct internet research. Since software has its limitations, he has also developed a personalized set of strategies for dealing with the specific demands of court attendance, and for working with images and video.

JAWS® screen reader

JAWS, an acronym for Job Access With Speech, is a screen reading program from Freedom Scientific®. When installed on a computer (there are versions for both PC and Mac®), it allows the user to have text and numerical content read aloud to him or her. For users who prefer Braille to audio, or who also have a hearing impairment, JAWS can also provide output to the user in the form of Braille (via a special Braille reader).

More than just a reader, says Ashurov, “JAWS superimposes itself over the operating system, and lets the user navigate between Microsoft® Office programs – even if the user can’t use a mouse.”

How does it work? Users learn keyboard “shortcuts” (similar to the more limited set used by sighted keyboard users; for example, control-c for “copy,” control-p for “paste”). Says Ashurov: “It’s very much like the way computers used to work under the DOS operating system” that predated mouse powered
Windows® and Mac OS. Learning the long list of shortcuts was not difficult, says Ashurov, who navigates programs about as quickly as a sighted user. “You do have to be good at remembering file names,” he concedes, as well as being organized when you develop your filing system.

JAWS also allows users to navigate the Internet, and is designed to read content in the order of priority that a sighted researcher would choose to read it, and to distinguish between a page’s core content and secondary areas, like banner advertisements.

When typing on a computer that is running JAWS, the program reads the user’s work back to him or her, which allows for correction of any mistakes.

Kurzweil 1000™ scan-to-audio software

When he needs to read hardcopy documents, Ashurov relies on Kurzweil 1000, a software product from Kurzweil Educational Systems®. Kurzweil allows Ashurov to scan hardcopy documents into a special format for audio reading (documents can also be converted to Braille). The program can also open PDF documents – traditionally challenging for text-to-audio software – and convert them into text for audio.

Portable technology for the courtroom

In the past, explains Ashurov, for courtroom appearances he needed to rely on a special portable recorder into which he could download selected audio files from his office computer. “Now that computers are so much lighter and smaller, there’s no need for that.” He can now listen to audio directly from his computer (after explaining to the judge why he’s wearing headphones!).

When questioning witnesses about prior statements, instead of showing the witness entries from police notes, he plays excerpts from an audio recording of the notes ahead of time.

Working with images

In some trials, of course, a certain portion of the evidence is visual: objects, photographs, and video may form part of the evidentiary record. While Ashurov has heard of a special digital camera that can convert a photo into a voice description, for the moment he relies on the help of his wife, who has worked as his assistant for his entire legal career. In preparation for trial, she records descriptions of physical evidence and photographs. “When there’s a video involved, we sit together and she describes it to me frame by frame. We record the descriptions, and I listen to the recording several times before trial.”

The takeaway? A disability need not prevent you from practising law. Take the time to research and test the technologies available, figure out how they can support the way you like to work, and develop a system of strategies – which will likely include the help of a trusted assistant − that suits your needs. When you encounter a new challenge, be resourceful and creative in overcoming it, and share your solutions with colleagues who have similar needs.

This article appeared in the September 2014 issue of LAWPRO Magazine. All past LAWPRO Magazine articles can be found at www.lawpro.ca/magazinearchives

Categories: Teknoids Blogs

A Chill on Judicial Review of Government Decisions in the UK?

slaw - Mon, 10/27/2014 - 12:39

There is tension afoot between the UK government and representatives of the country’s lawyers, over draft legislation designed to stem the tide of applications for judicial review of government decisions.

Judicial review is a legal proceeding in which government decisions can be challenged, not on the ground of what the decision is, but because of a flaw in the process by which the decision was made.

Some of the UK’s most senior judges have added their voices to criticisms of the bill.

The government contends many j.r. applications are ill-founded, expensive for the tax payer, and cause delay.

The draft legislation limits the availability of protective costs orders which cap the exposure of an unsuccessful j.r. applicant to legal costs. As a result, some argue, only those with deep pockets will be inclined to challenge decisions.

The draft bill also allows government ministers, rather than judges, to determine what is in the “public interest”.

Both the UK Bar Council, which represents barristers, and the Law Society which represents solicitors, have warned that the legislation will make it easier for public bodies to act without regard for the law.

Lady Hale, vice president of the UK Supreme Court, appearing before a legislative committee this summer questioned whether the bill is motivated less by saving public resources and more by decision makers’ dislike for being told their decision does not conform to the law.

Key clauses of the bill are now before the House of Lords.

 

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A Call for Track Changes at the Supreme Court

The Lawyerist - Mon, 10/27/2014 - 10:51

At the National Law Journal, Professor Richard Hasen thinks the Supreme Court should be a bit more transparent when it makes changes to published opinions.

[T]he Supreme Court, which is, after all, an accountable public body, should take four basic steps to make its actions more transparent. None of these steps would require release of any private information about the court’s deliberations, or even the justices’ privately recorded certiorari votes ….

He’s absolutely right. The fact that the U.S. Supreme Court can change its opinions without telling anyone is ridiculous. As Hasen rightly points out, these changes should be announced to the public (not just to the press corps).

His other suggestions — making court filings available to the public and easier to find on the SCOTUS website, and announce the schedule and release of opinions and orders — make a lot of sense, too.

(h/t Judge Dillard)

Featured image: “Panorama of the United States Supreme Court at dusk in Washington DC, USA” from Shutterstock.

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Machine Learning: Using Technology to Enhance the Practice of Law

slaw - Mon, 10/27/2014 - 08:35

I would have loved to have been in the audience when Harry Surden spoke at an afternoon CodeX Speaker Series event a few weeks ago at Stanford Law School. But, you know, California is way over there and I’m way over here. So, although I could not actually attend I was prompted to go back and read his recent paper, “Machine Learning and Law.” And, thanks to the folks at Codex, it turns out the session I missed was recorded and is also now available for viewing

Surden has an interesting mix of experience. He has a background in software engineering and worked in that capacity at Cisco and Bloomberg before he entered the field of law. He’s currently Associate Professor of Law at the University of Colorado Law School where he teaches intellectual property law, information privacy law and brings his software engineering experience to bear on his thinking about the application of computer technology and legal practice.

This relatively unique set of experiences informs one of his central research questions: “What impact might artificial intelligence (AI) have upon the practice of law?

When you hear that term “artificial intelligence” you might, like me, think back to the work begun in the ’60s where attempts were made to create the equivalent of a thinking human brain. The field of artificial intelligence has evolved since then to include a “softer” outcomes based approach focusing on computer algorithms capable of performing specific tasks that improve over time.

This process has been called “machine learning” and Surden gives a nice introduction to this idea in his Codex talk and provides an excellent overview in the first part of his article. Generally speaking he aims to start readers off with “some basic principles of machine learning in a manner accessible to non-technical audiences in order to express a larger point about the potential applicability of these techniques to tasks within the law.”

To illustrate this “potential applicability” he begins with a practical example familiar to most of us: the email spam filter. The algorithm used in a typical spam filter is designed to detect patterns found in a collection of data (i.e. the incoming emails). The identification of these patterns allows the program to “decide” whether an email is wanted or unwanted. So for example, the phrase, “Earn Extra Cash!,” is more likely to be found in an unwanted spam message than it would be in an authentic and wanted email message. Over time the program builds on its experience with the email messages it collects and improves its ability to identify and remove spam from our email traffic.

Because the filtering process improves over time the term “learning” has been applied to this process. But Surden cautions that this is not learning in the human, cognitive sense. There is no “intelligence” involved here. Rather this is learning in a metaphorical sense based on the functions performed by the computer and the outcomes that are produced.

This illusion of intelligence succeeds because “machine learning often (but not exclusively) involves learning from a set of verified examples of some phenomenon.” For an email spam filter that might mean drawing from a dataset that contains unwanted emails first identified by human readers. That dataset then initially serves to inform the algorithm giving it something to learn from.

Surden describes three main features of machine learning:

  • data is required (e.g. the incoming emails)
  • an algorithm with sophisticated pattern detection allowing predictions that appear similar to decisions a person would make given the same information, and
  • a system that can realign itself, modify its behaviour and adjust to changes found in the environment it works in

We know that the practice of law will usually require advanced cognitive abilities like reasoning and judgment based on professional intuition and experience. However, as Surden notes, we also know “that even the most advanced artificial intelligence systems can’t match the analytical skills of even very young children in certain circumstances let alone trained attorneys.”

So given these inherent limitations in computer processing what types of legal tasks would lend themselves to automation through machine learning? I’ll continue with Surden‘s suggestions in my next post.

Categories: Teknoids Blogs

How to Relocate Your Law Office

The Lawyerist - Mon, 10/27/2014 - 06:12

This was originally published as “How Michigan Law Firms Can Successfully Navigate an Office Relocation” in the October 2014 edition of the Michigan Bar Journal. It is republished here with permission.

Moving your law firm can be pricey, challenging, and risky. Problems may include deteriorating team morale, getting locked in to a long-term lease that doesn’t work for the firm, and spending more money than necessary.

Firms that do it right not only lock in efficient space at economic terms supported by the firm’s overall business plan, but also create work environments that reflect their culture, ethos, and values. As a result, they can sidestep the pitfalls of an unsuccessful move.

How can your law firm maximize the benefits of relocation but minimize costs and ultimately have your space serve as a recruiting tool for new hires and clients? It’s a topic I know very well as a result of more than 40 years in the commercial real estate business. Boutique and national law firms regularly seek advice on creating office space that positions them properly for the future both culturally and, maybe even more importantly, economically.

While there is no master blueprint that works for everyone, here are some of the most important questions to ask.

1. Is the move necessary?

Law firms are often courted by building owners to anchor new developments, which frequently come with the highest rent per square foot in the market. I encourage clients to seriously consider whether they can stay in their existing space. A relocation often costs more (and is more disruptive to a firm) than a simple upgrade or modification of the existing space. It is important for clients to fully assess how their current space can be renovated to meet the business’s future needs. A word of caution: living through a renovation can be difficult on your ongoing operations, so make sure you factor this into your decision.

2. Is the moving bill too high?

Some people mistakenly think that a growing rent bill is the sign of a growing company. I know from experience that many firms actually need less space (and expense) rather than more. With the added pressure firms are seeing clients place on their billing rates and fees, the bottom-line impact of real estate expenses is becoming more significant.

Traditionally, after moving into the newest “Class A” space, law firms proceed to build spectacular Architectural Digest-style environments with high-end finishes and custom touches. Besides the obvious financial impact and increased operating or capital expense, this tactic may turn off a client. One of my clients told me about visiting his law firm’s new offices. He fired the firm on the spot, assuming the firm’s billing rates increased to cover the overhead of its accoutrements of wealth.

Following lock-and-step is another important issue for firms to consider: the financial security or guarantees a landlord will ask the firm to post to secure the lease. For a partnership, this is a significant issue often overlooked until the eleventh hour of lease negotiations. It is important to note that with a larger rental obligation and larger capital costs associated with the lease, landlords look for a larger security deposit.

How can your law firm maximize the benefits of relocation but minimize costs and ultimately have your space serve as a recruiting tool for new hires and clients?

3. Am I Stuck on Old Assumptions and Paradigms?

Traditionally, law firms have recognized career advancement with real estate. As you were promoted, your workspace became larger, with the goal of getting a private office and, ultimately, the oversized corner office. These days, instead of awarding large private offices as rewards, I typically advise my clients to find other ways to recognize career advancement or a job well done. Look for new ways to bring workers together instead of driving them apart.

How can your law firm maximize the benefits of relocation but minimize costs and ultimately have your space serve as a recruiting tool for new hires and clients?

Law firms across the country are shrinking their per-attorney footprint and shedding unnecessary spaces like libraries and large file rooms. They are making individual offices smaller (and often embracing one standard size) by removing small conference tables from individual offices and converting that saved square footage into dedicated conference rooms the entire firm can use. Standard-size offices, especially when they are the same size as small conference rooms, provide for flexibility and allow the firm to use its office space more efficiently.

Hoteling, a concept those in the accounting and consulting industries are long familiar with, is being embraced by firms that have realized many offices sit vacant during the day when attorneys are at client meetings, depositions, in court, working from home, or on vacation. Hoteling has become more common in recent years because of improvements to and developments in technology and the latest trends in coworking.

These changes are often easier to implement than you might otherwise think given the new culture of egalitarianism and equality that has taken root in today’s business environment.

4. Am I hedging the potential risk?

Because of the volatile economy, a law firm signing a new office lease should seek to hedge three potential types of risk: building risk (changes to your building’s infrastructure or ownership could impact your occupancy), market risk (events in the global marketplace that trickle through to real estate and have an impact on rents tenants pay), and business risk (the inherent risks within your own business that affect profitability).

How do you mitigate these risks in your new office lease?

Before you sign a lease, you must clearly understand your ability (or lack thereof) to expand or contract your space over the course of that lease. This is especially important if you are considering a long-term lease (5 or even 10 years).

These days, it is not uncommon for a law firm to experience rapid growth or, conversely, a decline in partners or practice groups. In this case, you will need more or less space almost immediately, even if your lease has not ended.

In negotiations, push to have as much lease flexibility as you can, with layers of options to expand, contract, and terminate. In many instances, landlords are initially resistant to provide these rights, but firms should push for these options and even consider paying a premium for this flexibility.

In negotiations, push to have as much lease flexibility as you can, with layers of options to expand, contract, and terminate.

5. Does the location support our employees?

Your attorneys and staff work long hours. If your office space is ultimately a recruitment and retention tool, wouldn’t understanding the commuting habits of your present and prospective employees be paramount?

For this reason, seek an office location that is convenient for your attorneys and staff—not just the company’s partners.

Remember, too, that convenience is about more than commute times. Firms are placing more importance on work-life balance and focusing on locations with supporting amenities and services nearby such as restaurants, day care, fitness centers, bike rooms, and even pet-friendly environments.

6. Am I Considering Who My Clients (and Future Clients) are?

Your office space is ultimately a reflection of the firm’s values and culture. Forward-thinking firms take it a step further and consider their clients’ comfort. For instance, for a firm trying to expand its tech practice, traditional office space in a trophy high-rise tower may not reflect the values or work style of its clients. Consider building in amenities your clients can use to their advantage, such as conference rooms with great connectivity and internal spaces that can host industry mixers or startup competitions.

7. Does My Advisor Have a Conflict of Interest?

One final point: I always recommend finding an experienced commercial real estate broker who does not have the typical conflicts of interest commonly found in the industry.

How do you know if your broker has a potential conflict? Ask if the broker’s firm also represents the building landlord in this or other transactions. Even if a brokerage firm pledges to keep a “wall” between its tenant and landlord representation divisions, it ultimately may not have your best interests at heart. Your clients wouldn’t allow you to represent both sides of a negotiation, so why would you pick a brokerage firm that does?

With the proper planning and strategy, a relocation can infuse a firm with newfound energy and enthusiasm. Better yet, it can improve the performance of your employees and, ultimately, your bottom line.

Categories: Teknoids Blogs

Monday’s Mix

slaw - Mon, 10/27/2014 - 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. National Magazine Blog  2. Thoughtful Legal Management 3. University of Alberta Faculty Law Blog  4. Off the Shelf  5. All About Information

National Magazine Blog
Learning to work with others

A lawyer’s “eruption of irritation” at a letter from a paralegal working for opposing counsel who cited case law was not a matter for the Law Society of British Columbia, a hearing panel decided, but it is a shining example of an issue the legal profession will have to work through if it wants to flourish in the future….

Thoughtful Legal Management
Roger Smith on Contrast between BC and UK Legal Aid Cuts has Valuable Lessons

This is a guest post from Richard Zorza on his blog: Richard Zorza’s Access to Justice Blog. It is a very thoughtful piece about innovation here in British Columbia by the Legal Services Society when faced by massive budget cuts, as compared to what has been done elsewhere (such as the UK) when faced with a similar situation. This blog post follows Roger Smith’s recent visit to us here in BC (where I was fortunate enough to have a fascinating lunch with Roger and others at the LSS offices) and Roger’s own blog post (mentioned herein) on this topic….

University of Alberta Faculty Law Blog
Getting a Seat at the Table: New Mandatory Disclosure Rules Regarding Women on Boards of Directors

Last week, the Canadian Securities Administrators announced new rules requiring Canadian public corporations to disclose policies and procedures put in place to get more women on their boards of directors and into senior management positions, or else explain why the company lacks such policies and procedures….

Off the Shelf
Libraries Celebrate Open Access Week with screening of “The Internet’s Own Boy”

York University Libraries will celebrate International Open Access Week from Oct. 20 to 26. Open Access Week is a global campaign that promotes open access as an ideal for the dissemination of scholarship and research. On Oct. 24, to reflect this year’s theme “Generation Open,” the libraries will host a movie screening and talk by Carys Craig, renowned copyright scholar and associate dean research and institutional relations at Osgoode Hall Law School….

All About Information
SCC issues civil production decision stressing discretion and proportionality

Today, a majority of the Supreme Court of Canada affirmed an order that directed the Competition Bureau and the federal Department of Public Prosecutions to produce, for civil discovery purposes, recordings of more than 220,000 private communications that they had obtained pursuant to Criminal Code wiretap authorizations….

_________________________

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

Categories: Teknoids Blogs

International Court in Crisis

slaw - Mon, 10/27/2014 - 06:00

My last blog highlighted a crisis in international law relating to peace and security. The International Criminal Court (ICC) is the newest instrument in the peace and security toolbox. Twelve years ago I opened its doors as head of the ICC Advance Team and it’s now 10 years ago since I left the Court. There can be no doubt that it is also part the crisis.

The idea itself is still vulnerable: that peace and security will be more likely and lasting with the knowledge that you will be punished if you commit or actively support atrocities crime (the preventative effect) and, secondly, that victims and societies will be healed because truth is established and the perpetrators are punished. Both assumptions feel intuitively right but they are as yet unproven and we don’t know yet how it works. There are correlations, but the lines are never straight or continuous. The sales pitch that the ICC is there to ‘put an end to impunity’ is a dangerous case of oversell that can only backfire. It is doing just that: 12 years into the life of the court, in the age of ‘never again’ and ‘ending impunity’ we have had the likes of Sri Lanka, Iraq, Gaza, Syria, and IS. There are sound technical legal-jurisdictional reasons that the ICC is not everywhere but that lawyerly stuff does not stop the erosion of the grand justice visions of 2002.

Its track record also raises questions. The amount of convictions by the ICC stands at 2. That’s not much in 12 years. The geographical distribution of investigations uneven: a Martian coming from outer space who looks at the Court’s website will be forgiven from thinking that all bad people come from Africa. Some data from the ICC’s website:

  • The ICC has a docket of 21 cases from 9 situations in 8 countries (the Court does not equal ‘situations’ with ‘countries’). All these countries are African.
  • 4 of those are so-called self-referral cases, meaning that the government of the country in question referred the case to the Court: Uganda, the Democratic Republic of Congo, the Central African Republic, and Mali.
  • 3 of those are referrals by the Security Council: Sudan, Darfur, and Libya.
  • Only 2 are investigations started by the ICC Prosecutor himself (after authorization of the pre-trial chamber): Kenya and Cote d’Ivoire.
  • The 2015 budget document tells us that the Prosecutor has 4 situations under preliminary examination on subject-mater issues: the Mavi Marmara incident, Honduras and, more recently, Ukraine and Iraq. She has 5 situations under analysis focusing on the examination of admissibility/ complementarity: the situations in Afghanistan, Colombia, Georgia, Guinea, and Nigeria.

The criticism (mainly from African leaders) that the ICC Prosecutor is selective towards that continent clearly does not tell the whole story. African choice at two levels has had a clear role in focussing the Prosecutor’s attention: firstly, at the level of ratifying the ICC Statute – 34 African ratifications, more than any other geographical area – and secondly at the level of referrals. The most that can be said is that the Prosecutor (or Pre-Trial Chamber) should, more often, have concluded not to indict anybody after referral of a situation or that the Prosecutor should do more investigation of her own accord outside Africa.

Going deeper, the record is mixed. Of the total of 31 persons who have encountered the Court there are 2 convictions, 12 in custody awaiting trial on trial or, 1 pending execution of arrest, 3 released, 1 off the hook pending national trial, 3 people confirmed dead, and 9 fugitives. The deaths and the fugitives (a total of 11) are beyond the court’s control. As I said: the ICC does not have a police force and is entirely dependent on States Parties for arrests. 3 releases is not brilliant, but also not a dismal track record for a prosecution service.

The length of the proceedings and time things take is an issue: 3-4 years is normal. The ICC’s dreams and assumptions have been wrapped with heavy and complex procedures – designed by the States Parties. Normally, one would innovate procedures to better fit the mission. Innovating justice procedures is already very challenging at the national level. Within the ICC system it is like getting to peace in the Middle East. The Court itself can only change and innovate to a degree (mainly administratively, below the level of the Statute and the Rule of Procedure and Evidence). The main parameters are set by the States Parties and it is difficult, if not impossible, to innovate anything there: a fragmented group of 122 countries must agree on that.

The budget also tells a story, although one must always be careful here. Justice is not a business, comparisons are difficult to make (the ICC has 122 places of work, the Rwanda tribunal only had one; the Special Court for Sierra Leone was funded by voluntary contributions, etc.) and conclusions not easy to draw. With that caveat, some data nonetheless: the ICC’s proposed budget for 2015 is €135.39 million – in increase of 11% over the 2014 budget. That may seem a lot but by comparison to UN specialized agencies it not. The 2014 – 2015 budget of the International Labour Organisation is around €620 million. The World Health Organisation’s is around 5 times that. The annual ICTY budget for 2012-2013 was higher: the equivalent of around €195 million. The total costs of ICTY and ICTR are not easy to pull together (there is no ‘costs to date’ page on their websites), but have been estimated at just over 2 and just over 1 billion US dollars respectively during roughly 20 years. The ICTY has been described US$14 million per conviction and the ICTR as US$11 million per conviction. The Special Court for Sierra Leone was a relative bargain: 11 years, 9 convictions, US$ 300 million. Justice is clearly not cheap.

In short, the badly needed justice component of the world’s peace and justice architecture needs a lot more work. Some radical ideas that came to me on a Saturday morning: (1) States Parties: set up a Global Justice Research Fund to support a well directed and sustained quest for multidisciplinary knowledge about the core idea of a justice component and how it can be achieved: what are the components of justice connected to atrocities, what is connected with what, what tools can be developed to measure and learn, and how can we make better use of technology. (2) States Parties and Court: create innovation space to enhance effectiveness and efficiency, so procedures can be continuously be innovated based on what the Research Fund is able to unearth; (3) Court: develop and maintain Google and Apple-like innovation capacity. Smart, creative, critical teams that are constantly working to innovate, to be better, to offer more. (4) Court: improve your communication and outreach. Throw out your challenges to others. Involve them. Speak the language of those you serve. And work on your website: it’s not very good for somebody who wants to write a column like this.

* I thank Dominique Vleeskens for helping me with the data research.

Categories: Teknoids Blogs

Why One Professor Thinks Academics Should Write ‘BuzzFeed-Style Scholarship’

The Chronicle Wired Campus - Mon, 10/27/2014 - 03:55

Mark Marino wants to shake up academic publishing. To declare his intentions, the associate professor of writing at the University of Southern California chose a format both fitting and provocative: a BuzzFeed listicle.

Posted on Thursday, Mr. Marino’s piece, “10 Reasons Professors Should Start Writing BuzzFeed Articles,” serves as a “manifesto” for BuzzAdemia, a new journal he’s creating to encourage “BuzzFeed-style scholarship.”

For more stories about technology and education, follow Wired Campus on Twitter.

“As newspapers fall to a new level in the hierarchy of information, people are at least spending some time on other sorts of sites to gather information, whether that’s Reddit or something like Gawker or even BuzzFeed,” Mr. Marino said in an interview on Friday. “This is going to be an important area for academics to engage and try to translate their ideas.”

Rather than creating his own web page to house BuzzAdemia pieces, Mr. Marino envisions publishing them on existing, popular platforms (like BuzzFeed).

“My dream for this is that you eventually get locked in a click-bait loop of scholarly arguments, rather than articles about Disney princesses and what to do in your 20s,” he said.

Once the articles are published, Mr. Marino hopes they will be shared on social media, like the journal’s Facebook page. Scholarly merit will be judged in part on retweets and Facebook likes, he added. After all, as the BuzzAdemia manifesto says, “The RT is the purest form of peer-review.”

Articles approved by the editorial board may eventually be marked by a digital badge of endorsement. Next steps for the board involve identifying existing articles to translate into BuzzFeed-style posts, finding contributors to create original content, and creating documents to explain how to submit articles to popular-media sites.

As an example of the work he hopes BuzzAdemia will encourage, Mr. Marino cites “Post-Structuralism Explained With Hipster Beards: Part 1,” a BuzzFeed piece crafted by Chris Rodley, a graduate student at Australia’s University of Sydney. The post uses images of trendy facial hair to explain semiotics.

“I just wrote it as a bit of a gag,” Mr. Rodley said. “After I did, quite a number of students and academics got in touch online to say, ‘I’ve found it helpful.’”

He used the post to help the students he tutors in a digital-arts class, who had only a week to learn about the complicated concept.

“From my point of view, it can be done to help students but with a bit of a wry sense of humor,” Mr. Rodley said. “Obviously BuzzFeed has found a formula that works for people, that people seem to want to read and find really engaging and really clear.”

In addition to serving students, Mr. Marino hopes the movement will spread scholarly ideas to the public and encourage academics to actually read one another’s work. He points out that relatively few articles published in academic journals are cited in subsequent scholarship, while Mr. Rodley reported that his beard post had received more than 220,000 page views.

“Most of them, I suspect, are not academics,” Mr. Rodley said. “The dissemination potential is exciting to me.”

Anticipating Skepticism

Persuading academics accustomed to writing books to simplify their research into gifs may seem like a long shot, but Mr. Marino believes there’s a precedent for his offbeat idea.

“Academics have a long tradition of distilling their ideas into popular or more accessible forms, from pamphlets to op-ed pieces to appearances on radio or TV shows,” he said. “We can’t let the gaudy garb of most BuzzFeed posts blind us to the potential of this publication venue for the circulation of complex ideas.”

While the social-media response to the announcement has been positive, Mr. Marino and Mr. Rodley anticipate skepticism.

“There are lots of critics who would maybe suggest this is a sign of decline or decreased intellectual standards,” Mr. Rodley said.

But, he explained, the pieces are intended as supplements to original material, not replacements.

And although creating clickable content at no charge for a company like BuzzFeed strikes Mr. Rodley as a little problematic, he has plans to subvert the system: His next BuzzFeed piece will make an original scholarly argument about issues of material labor.

“Using BuzzFeed to articulate your ideas,” he said, “doesn’t mean you can’t simultaneously critique and make fun of the platform itself and its limitations.”

Categories: Teknoids Blogs

Nice to know my problem has a name. Meet Extract-Transform-Load.

<CONTENT /> v.5 - Sun, 10/26/2014 - 21:20

From ETL for America https://civicquarterly.com/article/etl-for-america/

Many of the problems governments confront with technology are fundamentally about data integration: taking the disparate data sets living in a variety of locations and formats (SQL Server databases, exports from ancient ERP systems and Excel spreadsheets on people’s desktops, for example) and getting them into a place and shape where they’re actually usable.

Among backend software engineers, these are generically referred to as ETL problems, or extract-transform-load operations.

In the case of court opinions the ETL problem is complicated by the fact that the data that comes from the courts is in PDF format and the courts do little beyond dumping it on websites and declaring it sort of published. I’m going to be taking a long look at the handling of the ETL problem in the other branches of government to see what’s going on there.

Categories: Teknoids Blogs

Private Sexual Practices by Public Personalities

slaw - Sun, 10/26/2014 - 20:05

Earlier today the CBC issued an unusual announcement:

TORONTO, Oct. 26, 2014 /CNW/ – The CBC is saddened to announce its relationship with Jian Ghomeshi has come to an end. This decision was not made without serious deliberation and careful consideration. Jian has made an immense contribution to the CBC and we wish him well.

When asked for elaboration, CBC told media outlets,

“information came to our attention recently, that in CBC’s judgement, precludes us from continuing our relationship with Jian Ghomeshi.”

Speculation over the circumstances began almost immediately, especially when several people, including myself, received the following email:

The details over the conflict have since been detailed by Ghomeshi on his Facebook page:

Today I was fired from the company where I’ve been working for almost 14 years – stripped from my show, barred from the building and separated from my colleagues. I was given the choice to walk away quietly and to publicly suggest that this was my decision. But I am not going to do that. Because that would be untrue. Because I’ve been fired. And because I’ve done nothing wrong.

I’ve been fired from the CBC because of the risk of my private sex life being made public as a result of a campaign of false allegations pursued by a jilted ex girlfriend and a freelance writer.

I have always been interested in a variety of activities in the bedroom but I only participate in sexual practices that are mutually agreed upon, consensual, and exciting for both partners…

Ghomeshi claims that CBC acknowledges the activities were consensual, but that the company was concerned about public perception, and that his private activities were “unbecoming of a prominent host.”

The allegations are yet to be proven in court, but create some concern about how those in the public light are treated when targeted. Similarly, Justice Lori Douglas is expected to testify before the Canadian Judicial Council this week on the private photographs of her sexual life, which may ultimately destroy her judicial career.

The Criminal Law Amendment Act, 1968-69 (S.C. 1968-69, c. 38), which decriminalized homosexuality, allowed abortion and contraception, was described by John Turner on Jan. 23, 1969, as “the most important and all-embracing reform of the criminal and penal law ever attempted at one time in this country.” He referred to the omnibus Bill as addressing “matters of deep social significance which, in the course of time, will affect the lives of most of us, perhaps each one of us, in varying degrees.”

Erik Nielsen, who would later become Deputy Prime Minister under Mulroney, responded to this by saying,

The basis of this legislation is the Prime Minister’s belief that homosexuals will behave like gentlemen…. [I]f homosexuals behaved like gentlemen they would not be homosexuals.

The discussion obviously created enormous controversy in Canada at the time, and so the CBC, Canada’s preeminent media outlet, approached the Prime Minister for comment. The interview with Pierre Elliot Trudeau is available online here, where the Prime Minister stated,

…there’s no place for the state in the bedrooms of the nation.

If it’s no place for the state, then why would it be the place of the public to peer into those same bedrooms and pass judgment accordingly. The social significance of our changing values should mean that media personalities and judges who work in the public eye should not be penalized for activities which are ultimately private.

Ghomeshi concludes by saying,

Let me be the first to say that my tastes in the bedroom may not be palatable to some folks. They may be strange, enticing, weird, normal, or outright offensive to others. We all have our secret life. But that is my private life. That is my personal life. And no one, and certainly no employer, should have dominion over what people do consensually in their private life.

Categories: Teknoids Blogs

The Wall Street Journal.: Twitter Takes Over a Shuttered Twitpic

<CONTENT /> v.5 - Sun, 10/26/2014 - 18:45

The Wall Street Journal.: Twitter Takes Over a Shuttered Twitpic. http://google.com/newsstand/s/CBIwo6qp2ho
Twitter will maintain archive for now, but no new pics can be uploaded.

Categories: Teknoids Blogs

My Twitter Digest for 10/25/2014

<CONTENT /> v.5 - Sun, 10/26/2014 - 14:30
Categories: Teknoids Blogs

Summaries Sunday: Maritime Law Book

slaw - Sun, 10/26/2014 - 06:00

Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week’s summaries concern:
Criminal Law

R. v. Steele (J.M.) 2014 SCC 61
Criminal Law
Summary: The accused was convicted of robbery. The Crown applied for remand of the accused for an assessment under s. 752.1 of the Criminal Code to be used as evidence in support of an application by the Crown to have the accused declared a dangerous or long-term offender. The Manitoba Court of Queen’s Bench, in a decision reported at 267 Man.R.(2d) 91, dismissed the application for remand, holding that while the character of the threat of violence was …

Categories: Teknoids Blogs

Summaries Sunday: OnPoint Legal Research

slaw - Sun, 10/26/2014 - 06:00

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Tarr Estate v. Tarr, 2014 BCCA 315

1. CASE SUMMARY

Areas of Law: Estate Law; Survivor Pension Benefits; Waiver

~The waiver or conveyance of a survivorship interest in pension benefits must be explicit and leave no doubt as to what is being relinquished~

BACKGROUND: The Appellant, Colleen Tarr, was married to Michael Tarr for 38 years before the two separated in July 2002. Around the same time, Mr. Tarr retired from teaching. He signed a Teachers’ Pension Plan spousal declaration in which he elected a 100% joint life option naming the Appellant as the beneficiary of the survivorship interest in the pension plan. The spousal declaration declared that the Appellant was Mr. Tarr’s spouse at the time of signing. Later that month, Mr. Tarr received confirmation that he had been granted a pension. The confirmation letter stated that he could only change his pension option by giving notice in writing by September 15, 2002. Otherwise, his choice of option was “irrevocable”. In 2007, the couple signed a Separation Agreement. The Agreement affirmed that each spouse would retain pension and pension rights “for his or her own use absolutely, free of any claim by the other”. Mr. Tarr remarried in 2008, and passed away in 2010. Following his death, the Appellant received the pension benefits payable pursuant to the joint life option. The Respondent, Kathleen Gabelmann, was Mr. Tarr’s second wife and the executrix of his estate. She brought a summary trial application seeking a declaration that the Appellant held the pension payments in trust for the estate. The chambers judge considered the Agreement and the Form 89 Financial Statements the spouses had exchanged in accordance with the Family Relations Act (“FRA”). The Appellant did not list the survivorship interest in the pension plan as an asset in her Form 89. The chambers judge found that the Appellant had waived her entitlement to the survivorship benefits in the Agreement.

APPELLATE DECISION: The appeal was allowed. The Appellant argued that the chambers judge failed to understand the legal nature of her survivorship benefits, and because of this misinterpreted the Agreement. The FRA provides that a pension constitutes divisible matrimonial property. Under the FRA, at the time the spousal declaration was signed the Appellant was presumptively entitled to the whole of the pension benefits should Mr. Tarr predecease her. The FRA also provides that in the absence of an order of the BC Supreme Court, a designation of post-retirement survivor’s benefits may not be changed without the survivor’s consent. Entitlement to the survivorship interest crystallizes at the time of a triggering event, which in this case was the execution of the Agreement. Waiver of the statutory entitlement to survivorship interests may be done through a written agreement. The Pension Benefits Standards Act (“PBSA”) similarly contains specific protection for a spouse’s survivorship interest in a member’s plan, unless the beneficiary spouse waives entitlement. The PBSA allows a standalone waiver, which must be delivered to the plan administrator within 90 days prior to pension commencement, or waiver as part of a court order or settlement agreement. If the waiver is part of a court order or settlement agreement, it can be received at any time prior to commencement. The Court of Appeal found that under the PBSA, the Appellant’s survivorship interest in the pension plan vested in July 2002 when Mr. Tarr irrevocably elected a joint pension with her as the beneficiary of the survivorship interest and commenced receipt of his pension. Even though whether the Appellant would ever receive any benefit from this right was conditional upon Mr. Tarr predeceasing her, the right itself was not an inchoate or conditional. She was thus the owner of the survivor benefits at the time the Agreement was executed, and so a waiver of interest in assets belonging to Mr. Tarr did not affect her entitlement to the survivorship benefits. The Court declined to determine whether the owner of a survivorship interest could effectively waive that interest to create a trust in favour of the pension plan member’s beneficiaries.

2. COUNSEL COMMENTS:

Counsel Comments provided by Douglas M. King, Counsel for the Appellant

Categories: Teknoids Blogs

Summaries Sunday: SOQUIJ

slaw - Sun, 10/26/2014 - 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.

FAILLITE ET INSOLVABILITÉ : Un avis de cotisation constituant une procédure en vue du recouvrement d’une réclamation prouvable, il n’aura pas les effets juridiques que lui confère la Loi de l’impôt sur le revenu, à moins que les autorités fiscales n’obtiennent du tribunal la levée de la suspension des procédures.

Intitulé : Girard (Syndic de), 2014 QCCA 1922
Juridiction : Cour d’appel (C.A.), Montréal, 500-09-024077-133
Décision de : Juges Nicole Duval Hesler, Allan R. Hilton et François Doyon
Date : 21 octobre 2014

Procédure — suspension des procédures — cotisation fiscale — présomption de validité — absence de contestation fiscale — effets sur la Loi de l’impôt sur le revenu — interprétation de l’article 69.3 de la Loi sur la faillite et l’insolvabilité — interprétation de «en vue du recouvrement de réclamations prouvables».

FAILLITE ET INSOLVABILITÉ — procédure — suspension des procédures — cotisation fiscale — présomption de validité — absence de contestation fiscale — effets sur la Loi de l’impôt sur le revenu — interprétation de l’article 69.3 de la Loi sur la faillite et l’insolvabilité — interprétation de «en vue du recouvrement de réclamations prouvables».

INTERPRÉTATION DES LOIS — sens ordinaire des mots — article 69.3 de la Loi sur la faillite et l’insolvabilité — mesure de recouvrement.

Appel d’un jugement de la Cour supérieure ayant rejeté une requête sur la procédure applicable à la contestation d’une réclamation de l’Agence du revenu du Canada (ARC). Rejeté.

L’ARC, après la date de la faillite du débiteur, a produit une preuve de réclamation relativement à des dettes fiscales antérieures à la faillite, puis elle a délivré un avis de cotisation. Le syndic a rejeté sa preuve de réclamation aux motifs, notamment, que cet avis avait été émis après la faillite et qu’aucune autorisation préalable d’intenter des procédures n’avait été obtenue. Appelé à trancher cette question de façon préliminaire, le juge de première instance a donné raison au syndic. L’ARC, qui conteste cette décision, soutient qu’une cotisation fiscale n’est pas une «procédure» au sens de l’article 69.3 de la Loi sur la faillite et l’insolvabilité et que, cette cotisation étant présumée valide, le syndic doit s’y opposer dans les 90 jours, comme prévu à l’article 165 de la Loi de l’impôt sur le revenu.

Décision
M. le juge Doyon: L’interdiction établie à l’article 69.3 de la Loi sur la faillite et l’insolvabilité s’applique en l’espèce, que ce soit en raison de l’objet de la loi ou du sens ordinaire à donner à l’expression «en vue du recouvrement de réclamations prouvables». En effet, il importe de liquider et de distribuer efficacement et rapidement les éléments d’actif de la faillite, sans quoi ces derniers risquent d’être entièrement consacrés aux frais de liquidation. C’est pourquoi le syndic a l’obligation de trancher sommairement les réclamations prouvables. À cet égard, même si l’avis de cotisation ne permet pas, à lui seul, de recouvrer une réclamation prouvable, il demeure une étape essentielle aux procédures de recouvrement à venir et lui est si étroitement lié qu’il serait artificiel de le détacher de ce processus (M & D Farm Ltd. c. Société du crédit agricole du Manitoba (C.S. Can., 1999-09-02), SOQUIJ AZ-50067191, J.E. 99-1699, [1999] 2 R.C.S. 961). Par conséquent, les effets que lui confère la Loi de l’impôt sur le revenu doivent être suspendus. Le fait que le recouvrement envisagé ne vise pas un élément d’actif en particulier et qu’il soit partiel en raison de l’application des règles de partage au prorata de la masse ne change rien à ce principe, tout comme le fait que l’avis de cotisation soit une mesure administrative (Vachon c. Commission de l’emploi et de l’immigration du Canada (C.S. Can., 1985-11-21), SOQUIJ AZ-85111080, J.E. 85-1089, [1985] 2 R.C.S. 417). Bref, l’ARC veut recouvrer sa créance et son avis de cotisation fait partie d’une suite de mesures pour y parvenir. Par ailleurs, l’un des objectifs principaux de la loi, en créant un «contrôle unique» des réclamations, est de traiter sur un pied d’égalité tous les créanciers ordinaires, dont l’ARC en l’espèce, chacun d’eux devant prouver sa réclamation à la satisfaction du syndic. Or, la proposition de l’ARC aurait pour conséquence de l’avantager indûment, notamment en ce qui a trait au court délai du syndic pour faire opposition, au fardeau de preuve qui lui serait transféré et aux conséquences d’une absence d’opposition, soit des effets néfastes pouvant de surcroît être aggravés par la présomption de validité applicable à un avis de cotisation.

Le texte intégral de la décision est disponible ici

Categories: Teknoids Blogs

Link Rot, Legal Citation and Projects to Preserve Precedent: Conference: Storify, links, and resources

Legal Informatics Blog - Sun, 10/26/2014 - 03:58

Link Rot, Legal Citation and Projects to Preserve Precedent: 404/File Not Found, a conference, was held 24 October 2014 at Georgetown University Law Center in Washington, DC, USA.

The conference Website and program are available at: http://www.law.georgetown.edu/library/404/

One Twitter hashtag for the event was: #linkrot

Click here for a storify of images and Twitter tweets from the event.

Here is a description of the event, from the event’s Website:

The Web is fluid and mutable, and this is a “feature” rather than a “bug”. But it also creates challenges in the legal environment (and elsewhere) when fixed content is necessary for legal writers to support their conclusions. Judges, attorneys, academics, and others using citations need systems and practices to preserve web content as it exists in a particular moment in time, and make it reliably available.

On October 24, 2014 Georgetown University Law Library in Washington, D.C. will host a free symposium that explores the problem of link and reference rot.[...]

The event was Webcast, and video of the event may become available shortly.

HT @GtownLawLib


Filed under: Applications, Conference resources, Policy debates, Technology developments, Technology tools Tagged: Broken legal URLs, Ed Walters, Georgetown University Law Center, Jonathan Zittrain, Legal persistent URLs, Legal URLs, Link rot and digital legal information, Link rot and preservation of digital legal information, Link rot in court decisions, Link rot in judicial decisions, Link rot in legal resources, Link Rot Legal Citation and Projects to Preserve Precedent Conference, Perma.cc, Preservation of digital legal information, Preservation of digital legal resources, Preservation of electronic legal information, Preservation of electronic legal resources, Preservation of legal information, Preservation of legal resources
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Intellectual Property Hackathon at Osgoode Hall: Navigating Patent Applications – An Exercise in Legal Innovation: Storify, links, and resources

Legal Informatics Blog - Sun, 10/26/2014 - 03:49

IP Hackathon: Navigating Patent Applications – An Exercise in Legal Innovation was held 23-24 October 2014 at Osgoode Hall Law School in Toronto, Canada.

The event Website is at: iposgoodehackathon.ca

The co-hosts included:

The challenges addressed at the event are listed at: http://iposgoodehackathon.ca/#challenges

The event program is available at: http://iposgoodehackathon.ca/#program

One Twitter hashtag for the event was #iphack

Click here for a storify of images and Twitter tweets from the event.

Here is a description of the event, from the initial announcement:

It is our great pleasure to announce that IP Osgoode, Stanford Law School, d.school: Institute of Design at Stanford, the BEST Program – Lassonde School of Engineering, and the Canadian Intellectual Property Office are hosting the first ever IP Hackathon entitled “Navigating Patent Applications – An Exercise in Legal Innovation”. The IP Hackathon will be held on October 23 – 24, from 8:30 am to 5:30 pm, at Osgoode Hall Law School. During this 2-day hackathon, a variety of stakeholders in the patent process will collaborate in small groups to create viable new ideas for redesigning the patent process. Guided by the structure of the human-centered design process, the participants will use their expertise & creativity to generate new solutions for making patent law more usable and user-friendly. This event is by invitation only [...]

HT @StephKimbro


Filed under: Applications, Conference resources, Hackathons, Hacking, Storify, Technology developments Tagged: Design of intellectual property processes, Design of legal processes, Design of patent law processes, Erik von Stackelberg, Giuseppina D'Agostino, Intellectual Property Hackathon: Navigating Patent Applications - An Exercise in Legal Innovation, Intellectual property information systems, IP Hackathon: Navigating Patent Applications - An Exercise in Legal Innovation, Legal design, Legal design events, Legal hackathons, Legal information design, Legal process design, Margaret Hagan, Maya Shino, Osgoode Hall Law School, Patent application process, Patent law information systems, Patent process, Ron Dolin
Categories: Teknoids Blogs