Turn the Page

Posted February 15, 2015 by Ken Hirsh
Categories: Uncategorized

Six months are too long to let a blog lie fallow. The options here are plain: start writing with some frequency, or give it up. I’m going to make an earnest try at the first one.

Tonight Lorne Michaels and NBC celebrate the 40th anniversary of Saturday Night Live. Much has already been written in the online and printed fora; MSNBC programming has been promoting the show all weekend. I especially commend to you Sonia Saraiya’s post in Salon emphasizing that the live nature of the show still offers us a chance at communal television viewing in the age of 500 channels and the Web. I regret that David Carr will not be around to give us his take on tonight’s celebration. I’ll add a personal note: As I noted on Facebook and Twitter earlier today, Lisa’s and my marriage has grown up with SNL, as we were married in August, 1975, some seven weeks before its first episode aired in October of that year. NBC has decided, perhaps wisely owing to other scheduling demands, to celebrate the show’s 40th near the end of its 40th season; we’ll celebrate our wedding anniversary closer to the actual 40-years mark.

Switching gears, apparently it’s never too early for pundits to begin incessantly discussing the 2016 presidential election. To be fair, the Iowa caucuses and New Hampshire primary are less than a year away, despite the fact that the 2014 mid-term elections are barely in the rear-view mirror.

At the University of Cincinnati’s College of Law, where I’ve just earned another anniversary at 6 years, I’ve been honored to participate as a member of the decanal search committee. Now that the three finalists have concluded their visits, our work is nearly complete, and the decision determining who will succeed our current dean will lie in the hands of our provost, our board of trustees, and of course the candidate willing to negotiate a deal that will bring him or her to us.


“Biggest Bar Exam Disaster Ever?” was More a Fender Bender

Posted August 7, 2014 by Ken Hirsh
Categories: Bar Exams, Legal Education


Last week’s headline in Above The Law turned out to have somewhat exaggerated the lasting effects of an as-of-yet not fully explained technical glitch in software used in several states to adminster the bar exam. The software, a product called SoftTest, created and marketed by ExamSoft, is designed to let students type exam answers on their computers, while preventing access to any other programs on the computer or in the cloud. It also encrypts the resulting file, provides continuous time stamps, and prevents the student from revisiting completed answers. Before getting into the specifics of what happened on this occasion, it is in order to provide some background and context.

The bar examination is a high-stakes test, possibly the most high-stakes test in the country, that virtually any law student who wants to practice law must take and pass before being admitted to the bar. It is the culmination of a three-year professional school career that itself is filled with high-stakes end-of-semester tests, and it is expensive to both prepare for and take. Bar review courses, which are more targeted to test performance than are law school classes, can cost $1,500 – $3,000, and administration fees for the tests and the background checks required for bar admission can add from several hundred to more than a $1,000 to the cost. There is also the cost of transportation to and lodging in the city where the exam is administered. It should be obvious, then, that a law student about to take the exam is likely to be under a lot of stress and anything that goes wrong with the test administration will further exacerbate that stress.

Law schools began letting students take semester exams on their computers in the early 1990’s. That move was very controversial, as despite the existence of an honor code at most law schools, faculty and administration were concerned about their perception of an increased likelihood of cheating by students’ accessing other materials stored on the computer. Companies such as ExamSoft began marketing so-called “secure exam programs” to law schools, and this relieved much of this concern. Over the years, there were four companies in this market: ExamSoft, Extegrity, Software Secure, and Electronic Bluebook. The name of that last product refers not to the common name of A Uniform System of Citation but rather the small format exam booklets into which students typically wrote their exam answers. As the years passed, more and more law schools allowed students to take exams using one of these packages. Technological problems sometimes occurred, resulting in very upset students and administrators, but very rarely was an exam answer lost. Anyone who regularly works with computers knows that any word processor will sometimes crash, often resulting in the total loss of the work to that point. The exam software packages all made automatic backups every minute, so if they were performing properly, the student was never at risk for losing more than a minute’s worth of typing.

Once the exam software companies had signed up most law schools, they turned their attention to the bar exams. The bar exam in each state is administered independently from that in other states; however, most states require the student to pass portions of the exam that are offered on a national basis: the Multistate Bar Examination, the Multistate Examination, the Multistate Performance Test, and the Multistate Professional Responsibility Examination (MPRE). For a detailed state-by-state breakdown of this, see Chart 8 in the ABA’s 2014 Guide to Bar Admission Requirements. Other than the MPRE these exams are offered twice per year, at the end of February and again at the end of July. They are administered on the same dates on all the states that use them. The bar examiners’ boards in most states were also slow to allow students to use computers to take their exams, but the marketing by the secure examination software vendors accelerated the adoption of computer-based exams.

In 2007, during the summer administration of the New York bar exam, Software Secure’s SecureExam malfunctioned. In an interview with John McAlary, executive director of the New York State Board of Law Examiners, April Dembosky reported  in a July 29, 2008 post to the City Room blog of the New York Times that, “Last summer, panic spread through various testing sites when the exam software – which locks down all programs and files except the exam – malfunctioned. Hundreds of laptop users who navigated back to a previously completed essay found a blank screen. In the months following the exam, Mr. McAlary said, the board salvaged all but 47 essays. Some of those candidates passed or failed regardless of their score on the lost essay, leaving only 15 that were given an estimated score. Nine of them passed the bar, six didn’t.” Following that event New York switched to using ExamSoft.

Against that background we can look at last week’s malfunction in many of the states that use the ExamSoft product. Apparently the program could not upload the completed exam to ExamSoft’s servers at the conclusion of the exam. This problem continued into the evening and overnight hours following the Tuesday exam administration. Whether or not the students were aware of it, their exam files were complete and safely stored on their computer’s hard drive. But the bar examiners have very narrow deadlines for uploading the exams; e.g. in Ohio the deadline was 10:00 P.M. on Tuesday. There were delays in contacting students with information concerning relief from the deadlines, and it is not now clear what, if any, protocols were in place at bar administration sites for communicating with students after problems had been discovered. As a result, students were stressed, pissed off at Examsoft given they had no helpful information, and the complaints quickly spread on social media and sites such as Above the Law.

Several of the technical personnel who assist with the administration of bar exams by computer are law school technology staff who contract with the exam software companies to serve at the bar exams. Many of them have been posting messages concerning last week’s events on Teknoids, the mailing list of law school technology folks. You can view their posts on the list’s archives and you will find that all of them report that no exam files were lost last week, and ultimately all of them were successfully uploaded.

So I call this the equivalent of a fender bender: while it’s happening it’s scary and you don’t know how it will end. Your stress level skyrockets. You may lose hours out of your otherwise productive schedule dealing with the aftermath. But in the end, you’re uninjured and you get your car repaired. Moving forward, ExamSoft has a duty to post a full post-mortem report explaining the cause of the problems and the steps the company is taking to prevent a reoccurrence. But no company will ever be able to guarantee 100% error-free computing. The boards of bar examiners also have a responsibility to properly respond to this event. First and foremost, they need to adopt and publicize protocols that set forth channels of official communication concerning deadline extensions and other remedies that will be offered during any future similar circumstances. The first thing they should consider is relaxing the deadlines in advance of a test. The software encrypts the exams and applies a timestamp to it. There is very little risk of anyone altering the exam file prior to its being uploaded. The bar examiners already set up the system that maximizes stress; they should seize this opportunity to dial it down a notch.

Why Sen. Rubio (and Those Who Share His Views on Same-Sex Marriage) Are SO Wrong.

Posted July 26, 2014 by Ken Hirsh
Categories: Uncategorized

In a well-publicized speech a couple days ago delivered at Catholic University, Sen. Marco Rubio (R-FL) said this: “I promise you even before this speech is over I’ll be attacked as a hater or a bigot or someone who is anti-gay,” Rubio said. “This intolerance in the name of tolerance is hypocrisy. Support for the definition of marriage as one man and one woman is not anti-gay, it is pro-traditional marriage.” Rubio, like so many others who try to frame the argument in favor of allowing same-sex marriage as an attack on traditional marriage, is deliberately misstating the issue. He and those who share that view would deny marriage to homosexual couples. Theirs is not merely a traditional view of marriage; it is both a restrictive view of marriage and a proprietary view of marriage. In effect, this argument says that heterosexual couples cannot share the joys and benefits of marriage with homosexual couples because this diminishes the former’s exclusive property rights in traditional marriage. There is in fact no attack on traditional marriage. In those states that recognize same-sex marriage, heterosexual couples are still free to marry. Homosexuals are not claiming that ONLY they should be allowed to marry, in stark contrast to supporters of traditional marriage such as Rubio.

Opposing someone else’s right to enjoy a privilege that you enjoy without a rational basis at law is the very definition of bigotry, Senator. The intolerance is all yours.

Fathers and Sons

Posted June 15, 2014 by Ken Hirsh
Categories: Fatherhood

It is stating the obvious to observe that no man becomes a father without first being a son. I became a father for the first time nearly thirty-three years ago, just more than fifteen years after the last day I spent with my own father. Our Dad died of a heart attack when I was 12, my older brother Bruce was 16, and my younger sister Kathy had just turned 11. The circumstances of that last day are forever etched in my memory, but I don’t mean to go over them here. In the years before that day, our father had instilled in me a love of fishing and the ocean, and together with our mother taught me to love and respect other people. With his early and unexpected death, I was robbed of one important set of lessons: how to be a father to teenagers, especially teenage boys.Hirshes

During my high school years I spent lots of time with friends and their families. I was privileged to participate in their family outings and gatherings, and had positive role models to observe, if only as a visitor. When I married Lisa, her brother was 14. I got to observe his interaction with their father through her brother’s teenage years. As you might guess, there was conflict from time-to-time, as I expect I would have had with my own dad had he lived long enough. It seems to be typical that teenage sons rebel against their fathers, or at least to have “issues,” whatever those may be.

After nearly six years of marriage Lisa and I were blessed with our first child, Kimberly, our blue-eyed daughter, and a few years later we were again blessed with our second daughter, blonde and blue-eyed Mary Elisabeth. In another eight years, though looking back it was the wink of an eye, we were favored with the birth of a son, Micah, brown-eyed and handsome. Kimberly was in the delivery room and reports that I did a Daddy dance for joy when I saw that I had a son.

1010899_10100723945010488_58278383_n Micah on boat

Micah will turn 20 this August, ending his teenage years. Raising him seems to have been more challenging than raising girls. The typical conflicts between father and teenage son have been exacerbated by Micah’s Asperger’s disorder and by my own shortcomings. We’ve given Lisa plenty of tension to deal with. And we have challenges yet to face.  Our daughters have married, and their husbands were raised by their fathers and mothers to be loving, respectful men. Some day they too may be fathers facing the challenges and reaping the wonderful rewards of fatherhood that I have experienced. Perhaps Micah will have this experience as well. I know that I am glad to have been given the opportunity to father these children; to have them be such an important part of my life; and I hope to play an important role in theirs for years to come.

An Anniversary That I Wish I Could Forget

Posted April 23, 2014 by Ken Hirsh
Categories: Uncategorized

The names Newtown, Tuscon, and Blacksburg will bring to the minds of most Americans the mass shooting tragedies committed in those cities during the past several years. A lesser-known such event occurred in Palm Bay, Florida twenty-seven years ago today. That evening a man named William Cruse drove to the shopping center less than a mile from our townhouse apartment and opened fire, ultimately killing six people and injuring several others. At the moment of the shootings my wife and I were attending the meeting of a small group at our church in Melbourne. We heard sirens racing down the street adjacent to the church, and soon learned of the horror that had befallen. I did not personally know any of the victims, though I suspect that I had met at least one of the police officers at some point of my time in the city.

I’m not going to use this space to argue for stricter gun regulations, if for no other reason because I know my words will persuade no one. Instead, I ask that each of us pause to remember the victims of these events, and I fear that in the future every day on the calendar will be an occasion for someone to remember the anniversary of such a horrible occasion.

Another Thought on Aereo: Chief Justice Roberts Tips His Hand on Judicial Activism.

Posted April 23, 2014 by Ken Hirsh
Categories: Uncategorized

It looks like Chief Justice Roberts is again considering moving beyond “calling balls and strikes” as he famously stated was his job during his confirmation hearings. In yesterday’s argument, the Chief  said during an exchange with Aereo’s counsel, Malcolm Stewart, “All I’m trying to get at, and I’m not saying i’ts outcome determinative or necessarily bad, I’m just saying your technological model is based solely on circumventing legal prohibitions that you don’t want to comply with, which is fine. I mean, that’s –you know, lawyers do that. But I’m just wondering why–whether you can give me any technological reason, apart from compliance with a particular legal issue, for your technological mind.”

Mr. Stewart’s response pretty much showed that compliance with the Copyright Act and the Sony decision were precisely the reason that Aereo implemented the technological scheme it chose. And why should it not have been so? The role of the court here is to judge whether the 2nd Circuit’s reading of the Act is correct, not whether one’s motive was to take advantage of the way Congress drafted the law in order to build a business. I’m quite confident that no member of Congress had any inkling of the many coming iterations of digital media that would have to be analyzed in relation to the transmission and public performance definitions within the Act. From the primary report on the bill that amended the Act, H.R. Rept. 94-1476 at 63:

“Under the definitions of ‘perform,‘ ‘display,‘ ‘publicly,‘ and ‘transmit‘ in section 101, the concepts of public performance and public display cover not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public. Thus, for example: a single is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set. Although any act by which the initial performance or display is transmitted, repeated, or made to recur would itself be a ‘performance‘ or ‘display‘ under the bill, it would not be actionable as an infringement unless it were done ‘publicly,‘ as defined in section 101. Certain other performances and displays, in addition to those that are ‘private,‘ are exempted or given qualified copyright control under sections 107 through 118.

“To ‘perform‘ a work, under the definition in section 101, includes reading a literary work aloud, singing or playing music, dancing a ballet or other choreographic work, and acting out a dramatic work or pantomime. A performance may be accomplished ‘either directly or by means of any device or process, ‘ including all kinds of equipment for reproducing or amplifying sounds or visual images, any sort of transmitting apparatus, any type of electronic retrieval system, and any other techniques and systems not yet in use or even invented.”

Addressing the meaning of “public performance,” on p. 64 the report goes on to say,

“Under clause (1) of the definition of ‘publicly‘ in section 101, a performance or display is ‘public‘ if it takes place ‘at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.‘ One of the principal purposes of the definition was to make clear that, contrary to the decision in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O.Bull. 203 (D. Md. 1932), performances in ‘semipublic‘ places such as clubs, lodges, factories, summer camps, and schools are ‘public performances‘ subject to copyright control. The term ‘a family‘ in this context would include an individual living alone, so that a gathering confined to the individual’s social acquaintances would normally be regarded as private. Routine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering of a ‘substantial number of persons.‘

“Clause (2) of the definition of ‘publicly‘ in section 101 makes clear that the concepts of public performance and public display include not only performances and displays that occur initially in a public place, but also acts that transmit or otherwise communicate a performance or display of the work to the public by means of any device or process. The definition of ‘transmit ‘– to communicate a performance or display ‘by any device or process whereby images or sound are received beyond the place from which they are sent‘– is broad enough to include all conceivable forms and combinations of wires and wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds comprising a performance or display are picked up and conveyed is a ‘transmission,‘ and if the transmission reaches the public in my form, the case comes within the scope of clauses (4) or (5) of section 106.

“Under the bill, as under the present law, a performance made available by transmission to the public at large is ‘public‘ even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service. Clause (2) of the definition of ‘publicly‘ is applicable ‘whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.‘”

The language of the Act, as shown in this report, intended to cover future technologies, although Congress had no way to envision the details of those technologies. The question for the Supreme Court to answer is whether the majority opinion or the dissent in the Second Circuit Opinion is correct in its interpretation of public performance. If a company provides the equipment for members of the public to, at each member’s sole direction and within each’s sole discretion, make a copy and then view a performance as contemplated in Sony, is that company “making a performance available to the public at large.”

The fact that Aereo adopted its scheme in order to comply with its counsel’s reading of case law under the Act is of no import to how the Chief Justice or any of his colleagues should rule. It is, rather, a proper issue for Congress to consider in any future contemplation of amending the Act.

The post title and its opening sentence about judicial activism are not the real issue, for the truth about judicial activism is that is is exclusively in the eyes of the beholder. When an appeals court rules against your position, you and others on your side will invariably accuse the court of judicial activism. If all judges were not activists, the common law would never change.

My Thoughts on the Argument in A.B.C. v. Aereo

Posted April 22, 2014 by Ken Hirsh
Categories: Uncategorized

I’ve just concluded reading the transcript from today’s arguments in American Broadcasting Companies v. Aereo, Inc., No. 13-461. I’ve not previously commented in detail on court cases here, so I ask any readers to forgive my obvious mistakes, and to politely offer to correct them with a judicious comment.

My first impression is that Justice Sotomayor has no understanding of the operations of Aereo as described in the 2nd Circuit’s opinion in the case. When I had read that opinion, I found that the majority opinion gave a straightforward explanation of Aero’s operations. I tremble that the justice’s lack of understanding may continue to the point of the issuance of a decision.

Paul Clement’s analogy to the difference between the difference between a car dealership and a valet parking service is, in a word, bogus. A valet parking customer has no legal right to any car other than that customer’s. Sony found that TV viewers have the legal right to record and view performances transmitted over the public airwaves for their own enjoyment. Justice Kagan came closest to stating the theory of the case when she states, “But then it really does depend on, like, where the ­­ where the hardware is.  In other words, ­­ if Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance.” (Tr. p. 10) But even she is getting only halfway into the theory of the case. The fundamental issue should be whether the definitions of public and private performance as spelled out by Congress contemplate a difference between Aereo’s rental of an antenna and hard drive space, and a consumer’s doing the same thing with his owned equipment at his home, and how the transmission clause impacts such a difference.

Aereo specifically limits its customer base to customers within the over-the-air viewing area of its antenna farm. This was not discussed enough during argument, and is a key factor that cannot be ignored. For example, the company recently began offering its service in Cincinnati, and the only stations available to customers here are our local broadcast stations. This one fact makes Justice  Scalia’s questions about distant reception irrelevant to this case. The technological limitations of receiving distant transmissions over-the-air mean that to change its business model, Aereo would have to deliberately choose to offer out-of-town channels to its customers, and there is no indication that the company intends to do so. In any case, those hypothetical facts are not before the court.

The crux of Aereo’s argument is that it is renting out an antenna and a DVR that are under the exclusive control of its customer, and that the performance saved on that DVR are viewable only by that customer. The 2nd Circuit majority agreed with the company. Whether the Supreme Court does so is impossible to confidently predict.

I have a bone to pick with the popular press that finds that the case could “forever change the way we watch TV.” If the court were to rule in favor of Aereo, there is nothing stopping any Congress other than our current dysfunctional one from amending the Copyright Act to expressly include “use of non-customer owned equipment to receive or record over-the-air broadcasts” within the meaning of transmission of a public performance. What the Court might giveth, Congress could certainly take away.


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