Richmond Journal of Law and Technology

The first exclusively online law review.

Author: Courtney Gilmore (Page 1 of 6)

Kickstarting Fraud: When a Love of Board Games Requires Legal Intervention

By: Eli Hill,

In recent years, the board gaming industry has experienced an economic renaissance.  One factor fueling this revival is the crowdsourcing marketspace made available through Kickstarter.[1]  To date, the ‘games’ category has earned the most dollars on the site, outpacing both the design and technology categories.[2]  Within the games category, board games pull in substantially larger earnings than video games.[3]  In just the last year, the public pledged over $135 million towards Kickstarter board game campaigns alone.[4]

For the most popular games on Kickstarter, campaign creators often offer ‘group pledge’ options for their backers.[5]  By purchasing a game in bulk, the backer is able to save significant expense, particularly on shipping.[6]  While this method of purchase is typical for the seasoned retailer, online forums now enable individual hobbyists to pool their funds and benefit from the group pledge savings much more easily.[7]

Board game enthusiasts living outside the western commercial markets often lack access to modern board game retailers.[8]  Because the crowdsourcing campaigns are often run by smaller, less experienced publishers, options for delivery outside the U.S. and U.K. are minimal or otherwise beleaguered by absurdly expensive shipping costs.[9]

To address this obstacle within the Southeast Asian markets, a company named Boarders Tabletop Game Studio (“Boarders”) became the premier distributor of the area for the most highly sought after Kickstarter board games.[10]  Several years ago, Boarders began to coordinate group pledges on behalf of its customer base as a way to increase access to Kickstarter exclusive board games for its isolated clientele.[11]

Backers of all Kickstarter campaigns are used to rolling the dice.[12]  Most understand the projects that their financial pledges go towards may not pan out according to the timeline and quality projections originally advertised.[13]  Kickstarter is not a store and has no obligation to deliver the products funded via its marketplace, but such an obligation does fall on the creators of each campaign.[14]

Regarding those indebted to Boarders group pledges, the majority of customer contributions never went towards any Kickstarter campaign.[15]  Suspicions first arose after publisher shipping information and delivery timelines didn’t align with customer expectation.[16]  Attempts to contact Boarders directly about the problems went unanswered.[17]  Some dedicated hobbyists had put thousands of dollars into the numerous campaigns Boarders claimed to be backing.[18]  Most publishers never received any money from Boarders, and for those few that did, still lost money refunding payments on cargo that Boarders had picked up, but never distributed.[19] Collectively, those harmed are now exploring what legal action may be brought against Boarders.[20]

Undoubtedly, the pairing of the board game industry with Kickstarter crowdsourcing has produced more success stories than scams.[21]  However, as the events in Southeast Asia show, digital crowdsourcing is still hampered by the business limitations in distribution.[22]  Kickstarter may provide a valuable international market for the board game industry, but for the publishers operating with limited market presence, the threat of fraud still looms large.[23]

 

[1] See Charlie Hall, Tabletop Games are Exploding on Kickstarter, Video Games are Flat, Polygon (Jan. 2, 2018, 4:06PM), https://www.polygon.com/2018/1/2/16842204/tabletop-games-are-exploding-on-kickstarter-video-games-are-flat (detailing annual growth of Kickstarter board games).

[2] Kickstarter, https://www.kickstarter.com/help/stats (click on ‘categories’ breakdown from main menu).

[3] See Hall, supra note 1.

[4] See id.

[5] Calvin Wong, Boarders Tabletop Game Studio defrauds thousands in Kickstarter scandal, Board Game Prices (Apr. 10, 2018), https://www.boardgameprices.com/articles/boarders-tabletop-game-studio-defrauds-thousands-in-kickstarter-scandal.

[6] See Jay H. Ganatra, When a Kickstarter Stops: Exploring Failures and Regulatory Frameworks for the Rewards-Based Crowdfunding Industry, 68 Rutgers L. Rev. 1425, 1459 (Spring 2016) (describing the cost savings of a bulk order on Kickstarter).

[7]  See id.

[8] See Wong, supra note 5.

[9] See Ganatra, supra note 6 (referencing the higher international shipping costs).

[10] See Wong, supra note 5.

[11] See id.

[12] See Ganatra, supra note 6 at 1465 (describing investor risk on Kickstarter).

[13] See id.

[14] See Michael M. Epstein & Nazgole Hashemi, Crowdfunding in Wonderland: Issues and Investor Risk in Non-Fraudulent Creative Arts Campaigns Under the Jobs Act, 6 Am. U. Bus. L. Rev. 1, 8 (detailing cases where fraudulent Kickstarter campaigns were obligated to defrauded customers).

[15] See Calvin Wong, Boarders Tabletop Game Studio defrauds thousands in Kickstarter scandal, Board Game Prices (Apr. 10, 2018), https://www.boardgameprices.com/articles/boarders-tabletop-game-studio-defrauds-thousands-in-kickstarter-scandal.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] See Calvin Wong, Boarders Tabletop Game Studio defrauds thousands in Kickstarter scandal, Board Game Prices (Apr. 10, 2018), https://www.boardgameprices.com/articles/boarders-tabletop-game-studio-defrauds-thousands-in-kickstarter-scandal.

[21] See generally, Kickstarter, https://www.kickstarter.com/help/stats (showing the data for successfully funded projects).

[22] See Wong, supra note 19.

[23] See Christopher Moores, Kickstart My Lawsuit: Fraud and Justice in Rewards-Based Crowdfunding, 49 U.C. Davis L. Rev. 383, 390 (Nov. 2015) (describing vulnerabilities to fraud that are exposed by Kickstarter campaigns).

Image Source: http://monopoly.wikia.com/wiki/Go_to_Jail_(card).

Green Energy

By: Lindsey Rhoten,

Elon Musk’s curiosity for dabbling into green technologies beyond Tesla’s electric cars emerges at the most critical moment in time; when the state of Earth’s health and the fate of the human race depends on morphing anthropogenic behavior. The human race desperately needs someone that prioritizes Earth’s integrity to invest the endless hours and the billions of dollars into innovating green alternatives for human mobility and energy consumption. This energy innovation is invaluable in moving away from operating power plants that burn fossil fuels, to a source that does not insulate solar heat in the atmosphere.[1]

Telsa is progressing towards a sustainable lifestyle with Telsa’s new Powerpack and Powerwall batteries that allow private homes, business entities, and utilities to collect sustainable and renewable solar energy to “manage power demand, provide backup power and increase grid resilience.”[2] These two energy storage mechanisms now provide a simple do-it-yourself method to utilizing the output of the renewable energy source.[3] The Powerwall is a rechargeable battery designed to store excess energy from solar panels, or the grid if there are no solar panels, and provide access to the left over energy for residential use upon demand.[4] The Powerpack is similar but adjusted to a larger size for business and utility usage.[5] This enables the commercial or larger entity to disconnect the Powerpack from the main power source and convert into its own independent micro grid source using stored energy.[6]

The United States electricity infrastructure is comprised of legacy grids that serve to generate, transmit, and distribute electricity to consumers.[7] One of the greatest shortcomings of the current energy system is that the grid must balance the energy supply to ensure that the electricity availability is contemporaneously adaptable to the increases in demand.[8] The legacy grid relies on peaking plants to elevate the supply with the demand; however, these plants waste energy if the demand is not present and they also generate more pollution than nonpeak plants.[9]

While decreasing fossil fuel use and slowing the flow of overcrowded grids are logical alternatives for those compelled to clean up the environment and save money on the monthly power bill, utility companies are certainly not the first to lobby support of this technology.[10] When consumers connect these energy storage batteries to their home or business as a power source, they are no longer dependent on the services provided by public utility companies.[11] Consequently, public utility profits decrease and the company may not be able to guarantee the viability of the company.[12]

The Federal Energy Regulation Commission (FERC), with regulation by the state, protects this natural monopoly,[13] which is where one company can provide a cheaper service to the entire market than multiple companies could.[14] Utility companies are trying to charge renewable energy users a higher fee because some users still connect to the grid as a backup emergency source and as a result, utilities want to recoup their fair share of grid infrastructure maintenance costs.[15] However, utilities cannot continue to resist this innovative technology. The industry must evolve alongside the technology and adopt flexible practices, while continuing to provide an equitable and safe product for all consumers, renewable energy users or not.

 

[1] See Union of Concerned Scientists, Is There a Connection Between the Ozone Hole and Global Warming?, https://www.ucsusa.org/global-warming/science-and-impacts/science/ozone-hole-and-gw-faq.html#bf-toc-0 (last visited Apr. 11, 2018) (stating that global warming is largely caused by humans burning fossil fuels, such as oil and coal, which put an excessive amount of carbon dioxide in the atmosphere. Instead of the solar heat radiating out into space, the carbon dioxide particles act as a blanket to insulate solar heat in the atmosphere).

[2] Chaunceton B. Bird, Growth and Legal Implications of Energy Storage Technologies, Utah L. Rev. OnLaw 33, 41 (2017) (describing the Tesla Powerpack and Powerwall as innovative green technologies for energy storage and consumption).

[3] See id.

[4] See Tesla, Powerwall Overview: What is Powerwall?, https://www.tesla.com/support/energy/learn/powerwall/overview (last visited Apr. 11 2018).

[5] See Tesla, Powerpack: Applications, https://www.tesla.com/powerpack (last visited Apr. 11, 2018).

[6] See id. at Powerpack: Microgrid.

[7] See Lindsay Breslau et al., Batteries Included: Incentivizing Energy Storage, 17 Sustainable Dev. L. & Pol’y 29, pt. I, § A (2017).

[8] See id. at 2.

[9] See id.

[10] See id. at pt. II, § C.

[11] See Bird, supra note 2, at 60.

[12] See id. (stating that if people disconnect from the grid, consumers will not be able to receive the rewards of resource sharing, which would subsequently result in an unequal and expensive electricity system).

[13] See id. at 48-49.

[14] Natural monopoly, Cambridge University Press Dictionary (2018), https://dictionary.cambridge.org/us/dictionary/english/natural-monopoly.

[15] See Breslau, supra note 7, at pt. II, § C.

Image Source: http://energypost.eu/green-electricity-europe-isnt-green/.

Issues with Hair-Follicle Drug Testing

By: Jenna Bouley,

Hair-follicle drug testing is different than other drug tests administered because it analyzes hair for drugs within the hair shaft, rather than bodily fluids normally used for drug testing such as urine or saliva.[1] Hair-follicle drug tests are particularly useful because they can be used to determine if a person has ingested drugs in the past 90 days.[2] Employers find this method useful because hair tests can identify drugs in someone’s system from approximately the last three months whereas urine tests can only detect drugs taken approximately a week prior to testing.[3] The use of hair-follicle drug testing has also become more common in the legal industry particularly when court-ordered drug testing may be required.[4] Some examples of when a hair-follicle drug test may be used for legal purposes include: probation, divorce, and child custody cases.[5]

Although the test is called a hair follicle test, it is not actually the root itself that is tested but the first inch and a half of growth from the base.[6] The test works to detect drugs taken in the last 90 days because when a person ingests a drug, it enters into the bloodstream while the body simultaneously metabolizes the drug, causing those metabolites to circulate through the blood as well.[7] Moreover because a person’s blood nourishes their hair follicles, any ingested drugs and their metabolites are deposited into their hair follicle where they remains until the hair grows out of the follicle.[8]

While on the surface hair-follicle drug testing may seem like a great solution for employers and courts there are some issues with the testing. Two major issues include the fact that someone could be exposed to a drug without having ingested it and therefore test positive as well as the fact that the drugs bond with some hair types better than others, which cause inaccuracies about when a drug might have been taken.[9] Some scientists argue that both external and ingested cocaine binds to melanin in the hair thus someone could potentially test positive for cocaine use simply by being in an environment that has cocaine.[10] Moreover, people with black hair, especially with the subtype eumelanin, tend to bind particularly well with cocaine and amphetamines causing disparities in timing between them and their lighter haired counterparts.[11] Additionally, both the amount of melanin and chemical treatment in someone’s hair can make a difference in how much of a drug the hair can absorb.[12] However, even with these issues employers still seem willing to use this method of drug testing.[13]

One example of how the courts have dealt with the issues presented by hair-follicle drug testing was a Massachusetts case involving Boston police officers who tested positive for cocaine in a hair-follicle test.[14] The court concluded that, although hair-follicle drug tests are reliable enough to “be used as some evidence” of drug use, “the risk of a false positive test was great enough to require additional evidence to terminate an officer for just cause.”[15] In other words, the officers failure to pass the hair-follicle drug testing could not be used to conclusively determine that they had used a controlled substance. As a result of the court’s decision the some of the officers were reinstated.[16] In support of the conclusion that this type of testing may be unreliable, Lewis Maltby, president and founder of the National Workrights Institute commented that “every independent scientific organization that has studied hair testing concluded that it isn’t reliable,” and that “the only scientists that support hair testing have ties to the industry.”[17] Moreover according to Michael Walsh, who designed the federal employee drug-testing regime under President Ronald Reagan, and was the executive director of President George H.W. Bush’s Drug Advisory Council: “the science basically just didn’t support integrating it into the federal program—there are still significant scientific issues, not about whether the technology can detect drugs in hair, but more so about the interpretation of how the drugs got there.”[18] Until a better method is found this issue will continue to present employers with the choice of using the potentially problematic hair-follicle drug testing and risk having a law suit brought or alternatively taking the chance that their employees may have used drugs within the last 90 days.

 

[1] See Hair Drug Test Facts and FAQS, Pyschemedics Corp., https://www.psychemedics.com/hair-drug-testing-facts-faqs/#what-is (last visited Apr. 9. 2018).

[2] See Hair Follicle Drug Test, National Drug Screening, Inc.   https://www.nationaldrugscreening.com/hair-follicle-drug-test.php (last visited Apr. 9. 2018).

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] Supra note 2.

[8] See id.

[9]  See Ellen Airhart, The Hairy Problem with Drug Testing, Wired (Apr. 1, 2018, 8:00 AM) https://www.wired.com/story/the-hairy-problem-with-drug-testing/.

[10] See id.

[11] See id.

[12] See id.

[13] See id.

[14] See Hassan Kanu, Hair-Follicle Drug Testing: Lessons for Employers, Bloomberg Law (Oct. 19 2016) https://www.bna.com/hairfollicle-drug-testing-n57982078835/.

[15] Id.

[16] See id.

[17] Id.

[18] Id.

Image Source: https://www.alcopro.com/product/hair-follicle-drug-test/#.

Our White Knight: Exploring the Case that Could Make President Trump Read Your Twitter Snark

By: Mitch Torrence,

Writing in Packingham v. North Carolina, Justice Kennedy stated, “While in the past there may have been difficulty in identifying important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace-the ‘vast democratic forums of the Internet’ in general and social media in particular”. [1] Granted, these words were uttered in dicta but they speak to the important principle, today the most important place wherein ideas are exchanged is the internet. That in mind there comes a fun question: Can the President block people from his viewing his Twitter account? Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al. may provide an answer to that very question. [2]

The Plaintiffs in Knight Institute are individuals, all of whom have been blocked from viewing President Trump’s Twitter account.[3] It is their position that this is a violation of their First Amendment rights and that they have a right to view Mr. Trump’s twitter account and he should be compelled to unblock them.[4] They couch this argument in the proposal that Mr. Trump’s Twitter account constitutes a public forum and that Mr. Trump’s blocking of them of them is impermissible viewpoint discrimination.[5] The Government, of course, disagrees.

The Government concedes that Mr. Trump’s Twitter posts constitute official statements from the Office of the President.[6] However, they disagree with the characterization of Twitter as a public forum and contend that forum analysis is not even appropriate in this context.[7] On the latter point the Government that argues that the public forum doctrine ought not be applied mechanically to contexts that are different from streets or parks.[8] Additionally, they make the argument that the Court must analyze what it is the citizen is seeking access to, in this case Mr. Trump’s Twitter account.[9] At this point it is their contention that because no one else can speak on Mr. Trump’s timeline his account cannot be considered to be a public forum. [10]

The case will likely ultimately come down to the above question: what kind of forum is Mr. Trump’s Twitter account? As Eugene Volokh points out there is a dearth of case law on this particular kind of issue.[11] Again as Volokh points out, it seems the most analogous cases come out of the Eastern District of Virginia in Davison v. Plowman and Davison v. Loudon County Board of Supervisors.[12] In those cases the following split manifested: a government agency Facebook page ought to be viewed as a limited-public forum and an individual politician’s page may not have the same constraints put on it.[13]  If the same logic were to be extended to Mr. Trump’s account the Plaintiff’s in Knight Institute may be in for a rude awakening.  However, viewing Mr. Trump’s account as purely personal is problematic.

As the Plaintiff’s point out in Knight Institute, Mr. Trump’s account is not utilized a personal account. The practice of the account is to have it function as a vehicle to put out official statements and various members of his staff have access to the account.[14]  To that end, Mr. Trump announced the transition from H.R. McMaster as National Security Advisor to John Bolton via his Twitter. Mr. Trump uses his account in an official capacity and ought not to be able to exclude people from the discourse because he doesn’t like their jokes.

Justice Kennedy correctly identified the notion that today the most important forum for our discourse is cyberspace. It is not a hot take to suggest that Twitter, Facebook, etc.  have taken the mantle of the public square. Mr. Trump’s page ought to correctly be viewed as being a limited public forum and ought not be able to block Twitter users willy-nilly. This may all turn out to be a moot point as the Judge in the case suggested Mr. Trump simply mute users as opposed to blocking them. [15]Perhaps that will end the issue, but if we should hope for a more concrete solution that answers the important question here.

 

[1] See Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).

[2] See Compl. For Declaratory and Injunctive Relief Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[3] Id.

[4] Id.

[5] Id.

[6]   See Government’s Response to Letter Re: Government’s Concession, Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[7] See Mem. Of Law In Support of Mot. For Summ. J., Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[8] Id.

[9] Id.

[10] Id.

[11] See Euguene Volokh, Is @RealDonaldTrump Violating the First Amendment by Blocking Some Twitter Users?, The Volokh Conspiracy, The Washington Post, Jun. 6, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/06/is-realdonaldtrump-violating-the-first-amendment-by-blocking-some-twitter-users/?utm_term=.4d98f9871585.

[12] Id.

[13] Compare Davison v. Plowman, 191 F. Supp. 3d 553 (E.D.V.A. 2016); with Davison v. Loudoun Cnty. Bd. of Supervisors, 227 F. Supp. 3d 605 (E.D.V.A. 2017).

[14] See Donald Trump (@realDonaldTrump), Twitter (Mar. 22, 2017, 5:26 pm)  https://twitter.com/realDonaldTrump/status/976948306927607810.

[15] See John Herrman, Judge Floats Idea to Settle @realDonaldTrump Twitter Blocking Case, N. Y. Times, Mar. 8, 2018, https://www.nytimes.com/2018/03/08/business/trump-twitter-block.html.

Image Source: http://www.slate.com/articles/technology/technology/2018/01/banning_trump_from_twitter_would_be_counterproductive.html.

From LOL to WOW: eSports & IP Implications

By: James Williams,

Sure, we all know that one friend or group of people who play(ed) League of Legends, World of Warcraft, Call of Duty, or other online games. You probably heard parents or teachers say at some point, “you’ll never go anywhere playing those games all day.” However, for some hardcore gamers over the past decade, that threat has been proven false.

eSports has become a new “real job” prospect for elite gamers.[1] These competitions involve high-earning possibilities[2], and there is even a list of earnings by some of the most successful players.[3] Now, there is even a need for lawyers who specifically represent these gamers in terms of reviewing contracts and meeting other legal needs.[4]

Aside from the amount of money flowing around the competitions being insane, there are several intellectual property issues that arise with the growing popularity of eSports. While it is true that the performance of the gamers is unique to them, they are still using the game, which involves the copyrighted artwork of the publisher, the branding associated with the trademarks, and potentially any patents that are related.[5]

Currently, the various tournament hosts appear to contract around the IP issues with gaming publishers.[6] The game publisher or developers are usually still the copyright holders, so enforcement rests upon their discretion.[7] Advertising creates several opportunities for both the game developers as well as the gamers because both can find benefits from advertising the game and potentially, the gameplay.

Streaming gameplay online through platforms like Twitch and YouTube is also a concern for game developers.[8] The current defense that has been suggested for streamers is fair use[9], but this is not the sturdiest defense. Aside from trying to put game streaming into one of the narrow categories of fair use, four factors also need to be weighed.[10] For competitive players, streaming the video games that they play is equivalent to a job[11], so the use itself may be considered as commercial if they are making money and branding themselves. Some game companies, such as Blizzard, are trying to circumvent this by creating a space where players can stream content as long as those players are not charging money to view their content.[12] While Blizzard is trying to keep the players pushed into the fair use category, grounds for infringement may still exist depending on how the courts define the streaming of game content. This is something that gamers, developers, and the legal community will be watching for the future.

Atlus attempted to enforce its rights by threatening suit for those who streamed its game, Persona 5, after a certain point in the beginning of the game to protect the storyline from being spoiled.[13] However, they received so much criticism from Let’s Players and the gaming community, that they issued an apology and removed the warning.[14] This may be an important reminder that the game developers do own enforcement rights, but they are also subject to the market and the buying public.

Trademark sponsorship is not as much of a concern because this is still a growing field compared with other registered sports marks, like Michael Jordan.[15] Although eSports has made it onto ESPN and other non-streaming services, major players and the games themselves are not widely recognized by the general public, so trademark sponsorship may still be a matter of years away.[16]

Moving forward, we’ll want to keep an eye out for fair use as applied to streaming, copyright licenses, and the possibility of individual or corporate trademark issues within the eSports arena. The world of gaming has officially left the basement and is now walking into the spotlight.

 

[1] See Jas Purewal & Isabel Davies, The eSports Explosion: Legal Challenges & Opportunities, 9 Landslide 2 (2016), https://www.americanbar.org/publications/landslide/2016-17/november-december/the_esports_explosion_legal_challenges_and_opportunities.html. (last visited Apr. 3, 2018).

[2] The International 2017 Dota 2 competition had a prize pool of $24.7 million USD. Largest Overall Prize Pools in eSports, E-Sport Earnings, https://www.esportsearnings.com/tournaments. (last visited Apr. 3, 2018).

[3] The highest overall earning player was Kuro Takhasomi for a Dota 2 competition where he earned $3.6 million USD. Highest Overall Earnings, E-Sport Earnings, https://www.esportsearnings.com/players. (last visited Apr. 3, 2018).

[4] See Esports Law and Agent, Kelly Warner, http://kellywarnerlaw.com/esports-law-contracts-agent/. (last visited Apr. 3, 2018).

[5] Supra note 1.

[6] Id.

[7] Advertising these competitions can also help advertise the games themselves, so some game developers may turn the other cheek when it comes to enforcing their copyright and trademark rights. See Aaron Swerdlow, The emerging legal battle over video game streaming rights, Venturebeat (May 27, 2017 at 6:00 AM) https://venturebeat.com/2017/05/27/the-emerging-legal-battle-over-video-game-streaming-rights/.

[8] Id.

[9] 17 U.S.C. § 107 (“Notwithstanding the provisions of 106 and 106A, the fair use  of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,  is not an infringement of copyright. […]”).

[10] Id. (“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used  in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”).

[11] Supra note 7.

[12] Id.

[13] Id.

[14] Id.

[15] Supra note 1.

[16] ESPN, http://www.espn.com/esports/. (last visited Apr. 3, 2018).

Image Source: https://www.nasdaq.com/article/the-incredible-rise-of-esports-cm904589.

“Technological Competence”: The Role Bar Associations Will Play in Explaining a Lawyer’s Duty of Competence with Technology

By: Caroline Grossweiler,

The past few decades have been filled with significant technology advancements. While almost all professions have had to adapt to this technology change, lawyers are experiencing a unique challenge. Lawyers are bound by a duty of competence, which may subject them to additional, more severe pressures to keep up with technological advancements.[1]

The duty of technology competence was first encountered in 2012 when the American Bar Association formally approved a change to the Model Rules of Professional Conduct to require that lawyers have a duty to be competent not only in the law and its practice, but also in technology.[2] However, the Model Rules are a suggested framework for the ethical practice of law; states can choose to adopt or not to adopt these rules.[3]

Whether or not the duty of technology competence has been adopted in a specific state, states generally agree that this duty exists in some form.[4] As of March 2018, 31 states have formally adopted the rule of a lawyer’s duty to be technologically competent.[5] Regardless of formal adoption of the rule, the general concept in support of a duty of technology competence is premised on the belief that “… as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.”[6] But, this begs the question: How do we get lawyers to become technologically competent?

One approach, taken only by Florida, is to formally educate lawyers on changing technologies.[7] Florida is one of the 31 states that have adopted the duty of technology competence, but more significantly, became the first state to require technology CLE for lawyers.[8]

Another approach, taken by Illinois and New York, focuses on tools and services that can be given to lawyers in order to answer their specific concerns.[9] “…Illinois focuses … on helping lawyers with their technological needs as they come up.”[10] Illinois does not think CLE requirements for technology are an appropriate response to the concern, and that state bar associations should be able to trust lawyers to take CLEs in areas where they need more education.[11] New York focuses on helping lawyers by giving them the tools they need to be technologically competent; CLE classes are not one of these tools.[12]

In conclusion, while states agree that lawyers should probably be technologically competent, no one really agrees on how to achieve this goal. Within the next decade or so, it would not be surprising to see additional methods other than the ones listed in this article arise out of other states. One of the main concerns the American Bar Association and each state bar association should have when making these judgments is this: How can we set up our profession to comply with the ever-changing technology while not unduly burdening lawyers? With this focus in mind, lawyers will be able to swiftly adapt to technology as it grows.

 

[1] See Model Rules of Prof’l Conduct, r. 1.1 (Am. Bar Ass’n 1983).

[2] See Model Rules of Prof’l Conduct, r. 1.1, cmt. (Am. Bar Ass’n 1983).

[3] See Model Rules of Prof’l Conduct, Preamble and Scope (Am. Bar Ass’n 1983).

[4] See Robert Ambrogi, 31 States Have Adopted Ethical Duty of Technology Competence, LawSites (Mar. 16, 2015), https://www.lawsitesblog.com/2015-01/11-states-have-adopted-ethical-duty-of-technology-competence.html.

[5] See id.

[6] Id.

[7] See generally Robert Ambrogi, Florida Becomes First State to Mandate Tech CLE, LawSites (Oct. 3, 2016), https://www.lawsitesblog.com/2016/10/florida-becomes-first-state-mandate-tech-cle.html (discussing Florida’s use of Continuing Legal Education (“CLE”) to address technology changes).

[8] See id.

[9] See Victor Li, Florida Requires Lawyers to Include Tech in CLE, ABA Journal (Feb. 2017, www.abajournal.com/magazine/article/technology_training_cle/).

[10] Id.

[11] See id.

[12] See id.

Image Source: https://edepoze.com/legal-ethics-duty-technology-competence/.

Might an End of Net Neutrality Mean an End to Internet Piracy?

By: James DeSantis,

Years after the high profile legal battles between the media companies and popular peer-to-peer (P2P) file sharing sites, the specter of widespread copyright infringement continues to haunt the entertainment industry to this day.[1] There are conflicting reports as to whether Internet piracy is still growing or has plateaued with the popularity of legal streaming services like Netflix and Spotify.[2] Regardless of whether there is a national trend suggesting that the worst days of Internet piracy may be over, the entertainment industry still loses billions to illegal streaming services and torrent sites.[3] Fortunately, the recent Federal Communications Commission (FCC) decision to repeal Obama era net neutrality regulations on ISPs may allow for a novel way to combat Internet piracy.[4]

Net neutrality is the principle that ISPs should be governmentally mandated to treat all data on the Internet equally regardless of the type content.[5] Following Comcast’s successful lawsuit against the FCC in 2010, ruling that the FCC did not have ancillary jurisdiction to require ISPs to treat all Internet traffic equally, the FCC voted 3-2 to expand their authority to do just that.[6] However, on December 14, 2017, the FCC, under new administration, voted to end the very regulations that had required ISPs to treat all Internet activity the same. The net neutrality regulations are currently set to officially end on April 23, 2018.[7]

Without the FCC restrictions, ISPs will soon be capable of restricting access to specific websites without fear of governmental interference including sites engaging in copyright infringement.[8] While many free-speech and anti-censorship advocates on both sides of the political spectrum have lamented the end to net neutrality, Alexander Graham Bell, the grandfather of the telecommunications industry, perhaps said it best: that “when one door closes, another opens.” ISPs heavily rely on the entertainment industry to maintain ISP revenue from television programming should use the end of net neutrality to pursue a grand bargain with ISPs. The entertainment therefore has leverage and possibly could induce ISPs to eliminate access to illegal file sharing websites in exchange for the entertainment industry’s agreement to continue allowing ISPs to carry the entertainment industry’s channels on ISP’s television services.

A similar idea is already gaining traction North of the border with a coalition of Canadian ISPs, media content providers, and entertainment industry trade organizations, called FairPlay Canada.[9] The coalition recently filed an application with Canada’s FCC equivalent, the Canadian Radio-television and Telecommunications Commission (CRTC), asking regulators to create an “Independent Piracy Review Agency” that will identify piracy sites and order ISPs to block their customers access to the offending websites.[10] The idea being that Canada has far more to lose in the way of lost revenue and entertainment sector jobs then it stands to gain by protecting citizens access to pirating websites. FairPlay Canada’s proposal is not unlike recent attempts in the U.S. to pass similar regulations like the Stop Online Piracy Act (SOPA) that Congress has repeatedly failed to pass.[11] The main difference between this novel proposal and FairPlay Canada or SOPA and the reason why there is a greater potential for it to likely succeed, is that under the new FCC regulations no governmental approval is required.

While restricting access to illegal file-sharing websites will not magically put an end to all Internet piracy in the United States, making it more difficult for the casual netizen to obtain illegal copyrighted works will likely dissuade all but the most devoted of infringers. With only the most committed copyright scofflaws engaging in online piracy, the entertainment industry should be more comfortable prosecuting said individuals without fear of public backlash. Though the U.S. government has been of limited help in actively tackling the issue of online piracy, the recent decision for the government to not interfere with ISPs may give the entertainment industry its best chance yet to address the crisis.

 

[1] See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001); Metro-Goldwyn-Mayer Studios Inc. et. al., v. Grokster, Ltd. et al., 125 S. Ct. 2764; 162 L.Ed. 2d 781 (2005); Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398 (2011).

[2] See Dan Rys, Music Piracy Grew 14.7 Percent in 2017, But Positive Signs Exist, Billboard (March 21, 2018).

[3] See Todd Spangler, Global Piracy in 2017: TV and Illegal Activity Rose, While Film Declined, Variety, March 21, 2018.

[4] Brian Fung, The FCC just voted to repeal its net neutrality rules, in a sweeping act of deregulation, The Washington Post (Dec. 14, 2017).

[5] See Wikipedia, Net neutrality, https://en.wikipedia.org/wiki/Net_neutrality (describing the history of net neutrality in the U.S. and around the world).

[6] Sam Gustin, FCC Passes Compromise Net Neutrality Rules, Wired (Dec. 21, 2010).

[7] Seth Fiegerman, Net Neutrality Rules Will Officially End On April 32, CNN Money (Feb. 22, 2018),  http://money.cnn.com/2018/02/22/technology/fcc-net-neutrality-date/index.html.

[8] Klint Finley, Here’s How the End of Net Neutrality Will Change the Internet, Wired (Nov. 22, 2017).

[9] FairPlay Canada, https://www.fairplaycanada.com.

[10] Jordan Pearson, Canada’s Telecoms and National Media Want the Government to Block Internet Piracy Websites, Motherboard (Jan. 30, 2018).

[11] Stop Online Piracy Act, H.R.3261; House Judiciary Committee (Oct. 26, 2011).

Image Source: http://www.680news.com/2018/01/29/fairplay-crtc-online-theft/.

What Two-Tier Stock Systems Have to Do with the Cambridge Analytica Scandal

By: Jon Neri,

Today, Facebook CEO, Mark Zuckerberg, submitted to Republican Senator Charles Grasley’s call for him to appear before the Senate Judiciary Committee on April 10.[1] The Committee wants Zuckerberg to answer questions about Facebook’s policies “regarding the protection and monitoring of consumer data.”[2] Such summons follows the discovery that political data firm Cambridge Analytica harvested information on millions of Facebook users which it utilized in relation to its work in the 2016 Presidential election.[3] Considering this is not Facebook’s first misstep when it comes to protecting its users’ private information, one must question what aspects of the company’s structure sustains its bad practices and, conversely, its positive reputation.

The discovery referred to above resulted from an investigation led by the Federal Trade Commission.[4] The FTC acknowledgment of its investigation noted that Facebook had entered into a “consent decree” in 2011.[5] In doing so it promised to reform its misleading privacy policies, as well as specifically protect its users from breaches via third-party apps.[6] Considering the decree was made over seven years ago, it is safe to say Facebook has had a long history, and certainly a reputation with lawmakers, of privacy concerns and miscarriage of private user information.[7] The social media mogul has a practice of “pushing the limits of privacy expectations,” operating under a doctrine that is very much similar to the quip “act without permission and ask for forgiveness later.”[8] The company consistently fails to notify users that information they lend, and commonly believe to be as private, is actually often open to public view during particular circumstances, such as the user accessing a publicly shared app within the Facebook interface.[9] It is not, however, new to having to publicly apologize for breaches in its user data, and is quick to come up with an excuse for the incident and a promise that the issue will be fixed.[10]

In the case of this most recent discovery, Zuckerberg took out full-page ads in several British and American newspapers on Sunday, March 25, to apologize for a “breach of trust” relating to the Cambridge Analytica scandal.[11] “This was a breach of trust, and I’m sorry we didn’t do more at the time,” said Zuckerberg before ensuring that the company was taking steps to make sure such a breach never occurs again.[12] Meanwhile, the CEO has come under harsh criticism for this most recent scandal which sent Facebook’s value plunging by nearly $50 billion last week.[13]

Some speculate that Facebook’s long history of privacy violations, even under its own consent decree to the FTC, is strongly linked to Zuckerberg’s secure position as the company’s CEO and majority shareholder.[14] Facebook is structured according to a two-tier stock option system in which Zuckerberg controls 77% of the company’s class B shares, which carry 10 votes each and easily outweigh the voting-power of the company’s 2.4 billion class A shares.[15] What this means is that Facebook’s CEO owns barely 16% of the company, but controls nearly 60% of the votes, meaning Zuckerberg is essentially not subject to the initiatives of Facebook’s board of directors to any significant extent and can’t be removed from his position as CEO.[16] As could be suspected, investors are now showing concern that the value of their investment could be rapidly deteriorating while they are left with no practical means of weighing in on how the company should address its issues.[17] The current argument circling the tech world is whether Facebook would be better off moving forward without Zuckerberg at the forefront. There is no dispute that the company would not be what it is today without Zuckerberg at its helm, but it can also be argued that many of its scandals could have been avoided, and might still be avoided in the future, if Zuckerberg were to relinquish some of his control.

The practice of companies to have multiple stock classes has traditionally been frowned on by the stock market, in fact the practice was banned by the New York Stock Exchange in 1940, only to reinstate their trade in 1956.[18] More recently, however, the New York Stock Exchange has displayed renewed doubts about the practice.[19] For Facebook, the issue is more pressing than ever before and a question arises as to whether or not publicly-traded companies should be more closely regulated in terms of their structure. For now, public opinion leans towards reserving the privilege of citizens to build our companies according to our own discretion and with fairly minimal government intervention. However, if the capitalist ideals that underline free trade continue to intrude on privacy, we may begin to see more legislature proposing increased regulation of companies that specialize in handling private information.

 

[1] See Kaya Yurieff, These are the Lawmakers Who Want Mark Zuckerberg to Testify, CNN tech (Mar. 26, 2018, 2:06 PM), http://money.cnn.com/2018/03/26/technology/lawmakers-seek-mark-zuckerberg-testimony/index.html.

[2] Id.

[3] See id.

[4] See Michael Hiltzik, Mark Zuckerberg Shows Why Giving Company Founders Total Control Can Be Disastrous, Los Angeles Times (Mar. 26, 2018, 12:35 PM), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-zuckerberg-20180326-story.html.

[5] Id.

[6] See id.

[7] See id.

[8] Id.

[9] See Hiltzik, supra note 4.

[10] See id.

[11] Sheena McKenzie, Facebook’s Mark Zuckerberg Says Sorry in Full-Page Newspaper Ads, CNN World (Mar. 25, 2018, 2:17 PM), https://www.cnn.com/2018/03/25/europe/facebook-zuckerberg-cambridge-analytica-sorry-ads-newspapers-intl/index.html.

[12] Id.

[13] See id.

[14] Hiltzik, supra note 4.

[15] Id.

[16] Id.

[17] See id.

[18] See id.

[19] See Hiltzik, supra note 4.

Image Source: https://www.theverge.com/2018/3/27/17168228/mark-zuckerberg-congress-testify-cambridge-analytica.

Technology is Leading to Fight Against Partisan Gerrymandering

By: Rachel Weinberg-Rue,

Just this week, on March 19, 2018, the Supreme Court of the United States rejected a request from Pennsylvania Republicans to block a new Pennsylvania congressional district map created to combat partisan gerrymandering.[1] GOP leaders in Pennsylvania’s state House and Senate sought to block the new maps which were released by The Pennsylvania Supreme Court after it ruled in January that the previous maps had been unconstitutionally gerrymandered.[2] The Pennsylvania Supreme Court held that the previous congressional map from 2011 violated the Constitution because the map diluted the votes of Democrats. [3]Justice Debra McCloskey Todd noted that because elections should be free and equal, it is “axiomatic that a diluted vote is not an equal vote.”[4]

This case is not just notable for its role in state and national politics. It is also notable for the smart use of technology used to provide evidence of gerrymandering that has never been used before in such cases. Historically, gerrymandering cases have been difficult to bring because they are hard to prove. This Pennsylvania case has shown that mathematical metrics and data can be used as concrete evidence of partisan gerrymandering.[5] For example, Carnegie Mellon mathematician, Wes Pegden, developed a computer program to show that the Pennsylvania map was drawn with partisan intent.[6]

Pegden’s program began with using the current Pennsylvania map.[7] The program then made tiny changes to the existing map to create 1 trillion slightly different maps, drawing possible districts that a court would accept (districts that are contiguous, reasonably shaped, and that have similar population sizes).[8] Pegden then analyzed the partisan slant of each new map using a metric known as the median versus mean test.[9] In the end, Pegden found that the 2011 Pennsylvania map involved in the case exhibited more partisan bias than 99.9% of all of the computer generated maps that he tested.[10] In other words, he found that making even the smallest changes in any direction to the existing map would take away the partisan advantage.[11]

Until now, researchers weren’t able to find a good system that used random maps to compare to gerrymandered maps, but thanks for Pegden’s theorem, this has become possible.[12]

Pegden was not the only expert to contribute to the evidence in the case. Christopher Warshaw, a political scientist at George Washington University provided mathematically derived data to show that the partisan map actually impacted representation in Pennsylvania’s Congress.[13] Jowei Chen, a political scientist at the University of Michigan, Ann Arbor, also provided simulated data using a different statistical method that backed up Pegden’s data.[14]

Now, thanks to the experts behind the technology and data in this case, we may see more successful gerrymandering cases being brought by advocates in other states.[15]

 

[1] See Turzai v. League of Women Voters, No 17A909 2018 U.S. LEXIS 1911*.

[2] See Ariane de Voque, et. al, Supreme Court Rejects Pennsylvania GOP Plea to Block New Congressional Maps, CNN (March 19, 2018, 9:25 PM), https://www.cnn.com/2018/03/19/politics/pennsylvania-congressional-voting-map-new-ruling/index.html.

[3] See Sam Levine, Pennsylvania’s Supreme Court Explains Why It Struck Down Congressional Map Favoring GOP, Hᴜꜰꜰɪɴɢᴛᴏɴ Pᴏꜱᴛ (Feb. 7, 2018, 8:47 PM), https://www.huffingtonpost.com/entry/pennsylvania-supreme-court-gerrymandering_us_5a7b8f9de4b08dfc92ffcb68.

[4] Id.

[5] See Issie Lapowsky, The Geeks Who Put a Stop to Pennsylvania’s Partisan Gerrymandering, Wɪʀᴇᴅ (Feb. 20, 2018, 11:21 AM), https://www.wired.com/story/pennsylvania-partisan-gerrymandering-experts/.

[6] See id.

[7] See id.

[8] See id.

[9] See id.

[10] Lapowsky, supra note 5.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See Levine, supra note 3.

Image Source: https://whowhatwhy.org/2016/10/29/gerrymandering-source-wrong-us-politics/.

The Unimaginably Silly Resistance to Inseams in Women’s Clothing: The Battle for Pants in the Courtroom

By: Spencer Allen,

What makes a piece of clothing proper? As a historian, tailor, and now a law student, this is a question I’ve spent some time considering. In its most pure, clothing is technology. Though simpler than a computer or artificial intelligence, clothing is perhaps the most fundamental way human societies use tools to manipulate the natural environment and change the way we live. As the human species developed society and civilization the things we wore shifted from a matter of pure survival to a matter of technological communication. The things we wear, like the way we speak or the way we walk, is a rough compromise between the individual and society. More than pure individual expression, clothing is communication, and communication needs an interpretive audience. Just like the artist, the wearer of clothes is not fully in charge of what his clothes mean—and any choice of clothing will be given meaning through the analysis of the society. Simply put, clothing is not just a matter of individual preference. All clothing is on some level technological communication—using tools and materials to interact with the world and to shape day to day life. Just as a speaker must rely on society to interpret language, the wearer must rely on society to interpret communication via clothing.

When a person enters the public space, their clothing becomes a uniform—a symbol of who they are and what they are about. My father’s uniform is a heavy blue cotton long sleeve shirt. He has worn it for thirty years at the Toyota factory in Georgetown, Kentucky. For a time, my uniform was the woolen coatee with 3 rows of custom cast buttons, tails, and black and gold piping that I wore as a cadet at the Virginia Military Institute when I marched in the inauguration of the President. As a law student, my new uniform is the business suit. Though the general popularity of suits has declined in recent years, the garment remains the basic uniform of the legal profession—and a symbol to society of the legal profession. That uniform is a powerful symbol. So much so that the word “suit” itself is now strongly enough identified with lawyers to be the title of a television show about lawyers.[1]

The suit’s connection to law is not one forged by personal expression. Instead, the suit has been, for many hundreds of years (at least in the west), intimately connected to those whose work, like lawyers, is building, leading, and maintaining the mechanisms of society.

It is truly astounding in this age of un-hemmed pants, ballooning shirts, and wrinkled jackets with glued interfacing, that women wearing pantsuits is still a “big deal” in the legal profession.[2] In fact, it was not until 1993 that women were allowed to wear pants on the Senate floor.[3] Defying logic, in the era of the “power suit,” women in pants was somehow the sartorial problem.[4]

While the trouser-resistance seems to have crumbled significantly since the 1980’s, women in the profession, including women at Richmond Law, report that there is an unwritten rule in certain courts and offices that women should not wear trousers.[5] Though perhaps not the feeling of the majority, the sentiment exists firmly enough that the Career Development Office at the University of Richmond School of Law counsels 1L women to always wear a skirt to legal interviews.[6]

Now I’m no Jacobin, and I whole heartedly endorse formal and traditional etiquette in the legal profession—but there is absolutely no sartorial, historical, or practical reason to oppose trousers for all. Resistance to lawyers in trousers is purely and simply an insult to the dignity of women in the legal profession. Its time to move on.

I. What are pants?

The rise of pants coincided with the rise of ancient equestrian societies.[7] The relatively complex bit of tailoring technology offered a comfortable buffer between the horse and rider.[8] Pants in ancient times were a symbol of a person who rode a horse—a person of status, a warrior, or leader.[9] The horse rider is the cowboy, the knight, the cabillero, the person who is in control, the person who has authority. In contemporary society, the phrase “he/she wears the pants in the family,” seems to acknowledge the power of the pants-wearer beyond just gender.[10] The pants wearer is the bread winner. The person in control. The person who participates outside the domestic sphere, and thus controls domestic life.

Famously, the ancient Greeks were not a pants wearing people.[11] Even so, pants were a powerful symbol in ancient Greece.[12] In the below vase from circa 470 BC, the patriarchal Greeks represent the matriarchal Amazon warrior wearing pants.[13] The pants are a symbol of the woman’s independence, of her status as a warrior and a leader separate from toga-clad and exclusively male Greek society.[14]

As male-dominated equestrian societies began to become more prevalent, the pants-wearer (and thus the warrior/leader) became exclusively male.[15] Although robes were still popular among aristocratic men, the end of the Roman Empire basically saw the end of pants-free societies, and, speaking generally, the norm in Europe became trousers for men and skirts for women.[16]

The birth of the modern suit—and in a sense modern suit sensibility—came in 1666.[17] As a part of the restoration of the English monarchy, parliament sought to bring back the heir to the throne, Charles II.[18] There was some resistance to the idea of installing a monarch—largely due to a fear of monarchial opulence and excess.[19] During his exile, Charles II spent considerable time in France with the uniquely opulent Louis XIV, the “sun king” (the one who built Versailles).[20]

Many of the English feared Charles II would bring French opulence back to England, and so Charles tapped the breaks on over the top courtly clothes.[21] Instead of the lacey, brightly colored silk suits of the French ruling class, Charles II adopted a plainer look.[22] On October 7, 1666, Charles declared that English court dress would consist of an English wool, knee-length coat and a long waistcoat.[23] The emphasis in this new uniform was “on cloth and cut, not ruffles and accessories.”[24]

In this way Charles II brought the ruling class a bit closer to the people. Dressing not as a “sun king” but as “an ordinary bloke.”[25]

Suits and trousers, progressed through the years until the turn of the 19th century, when the stylish Edward VII popularized modern-styled trousers.[26]

Figure 1: 1066, the Normans can be seen wearing trousers in the Bayeux Tapestry. Supra note 6.

Figure 2: This Greek vase from c. 470 BCE depicts an Amazon woman wearing trousers–maybe even a suit. Does her arming coat match her trousers? Supra note 6.

Figure 3: Edward VII displaying the modern trousers he helped to popularize. Supra note 6.

Figure 4: Louis XIV wearing so much silk he actually needs a small table to hold his cloak. Even the globe in the bottom left corner gets a silk cloak… http://www.voltaire.ox.ac.uk/about-voltaire/explore-world-louis-xiv.

Figure 5: 1675 Charles II reeling it in on the silk (and being presented with the first royal pineapple). http://www.newworldencyclopedia.org/entry/Charles_II_of_England.

II. Women in pants, gasp.

Pants for women began, ironically, with the horse.[27] With the advent of automobiles in the early 20th century, horse riding became more a matter of sport and leisure than of practicality.[28] As with all things impractical and expensive, equestrian sports increasingly became a symbol of wealth and status.[29] Before the 19th century, women in European society rode side saddle, and in skirts.[30] As women became more involved in equestrian sport, they began to ride astride—thus requiring an inseam to separate the rider from the horse.[31]

As cultural norms shifted to allow women more access to physical activity, trousers became a new and important symbol for women who lived more active and not exclusively domestic lives.[32] Just as with men, women’s trousers represented that the wearer was the doer of certain tasks, and that the wearer had an increased independence and control.[33]

One of the first women’s suits came in 1910, when the American Ladies Tailors’ Association created the “suffragette suit,” a blouse, jacket, and ankle length skirt.[34] This served as the precursor to the modern skirt-suit.[35] As women gained ground in the working world, women’s suits became more and more common.[36] Trousers with suits, however, remained for men.[37]

As women gained more power in the political sphere, the skirt-suit, and later the pantsuit, became the uniform.[38]  After a rebellion led by several female members of Congress, the Senate finally allowed women to wear pants in 1993.[39] Margaret King, stylist to renowned suit wearer Margaret Thatcher, remarked in 1987 that the prime minister wore suits so much because “she was in a man’s world, and had to look the part.”[40]

In some sense the word “pantsuit” itself highlights the strange state of women’s suits. Strictly speaking, a pantsuit is just a suit. It is the skirt-suit that is the different garment. In the 2008 presidential election, the pantsuit took center stage when Hillary Clinton referred to her followers as “the sisterhood of the travelling pantsuit.”[41] Perhaps the greatest modern champion of the pantsuit, secretary Clinton has lauded the garment as a uniform that makes her feel professional, and a “visual cue that she was different from men but also familiar.”[42]

More than a symbol, though, Secretary Clinton also praised the pantsuit as useful in avoiding the assault of having photographs taken up her skirt as she was on stage or climbing stairs—both of which happened to her while she was first lady.[43]

Figure 6: Two representative examples of the “suffragette suit.”

III. Court dress: what does it mean, why does it matter?

It may be an old-fashioned sentiment, but what lawyers wear to court matters. For many thousands of years, human societies have used clothing to highlight what is important and what is sacred.[44] The uniform of the profession is more than personal expression, it is an elevation of the idea of law and society. Like incense in a church, or a mansion for the president, the clothes that lawyers wear summon the transcendental. They proclaim that what lawyers do, what people do, matters. Suits and trousers in court boldly assert that the work of society today taps into and flows from the lives of humanity through history, and the tradition of civilization.

For at least 100,000 years clothing and jewelry have held significance in human societies.[45] While often diminished as “individual expression” in this, the age of the selfie, adornment and decoration of the body is perhaps the most ancient and pervasive medium for human communication about who we are, what we do, and what we are worth.[46] Indeed, corporal adornment may be older than language.[47]

Refusing women’s right to wear pants in the courtroom is not an inconvenience. It is not a silly rule to be laughed at and ignored. It is a denial of women’s right to participate in the work of society. Wearing trousers in court means something beyond personal expression. It symbolizes a tradition and a history of society and law that women have a right to be a part of. The inseam represents the warrior, the leader, the king, the cowboy, the cabillero.[48] It denotes those who perform the work of creating and sustaining civilization. Pants have never been about gender, but about power.

Hillary Clinton once remarked that the pantsuit was an “anti-distraction technique” and that “[if] there wasn’t much to say or report on what I wore, maybe people would focus on what I was saying instead.”[49]

There is no historical or sartorial reason for women to be scoffed at for wearing trousers in court (and I can’t believe I have to say that). For God’s sake, the Queen wore trousers on a royal tour of Canada nearly fifty years ago.[50] Clearly, access to pants will not change much about circumstances or society. Pants have not and will not lead to any sort of measurable change. But symbols, like art, bear the ineffable. Sometimes feeling leads to being—or in the laconic words of SGM Neel, patriarch of the VMI barracks, “dress like a soldier, feel like a soldier.”

The sort of silly sounding truth is that for a very long time pants have been the uniform of lawyers and leaders. Not because they were men, but because they jumped on the horse and took command. Try jumping on a horse in a skirt. The statement may sound silly, but opposition to such a thing is anything but trivial Absent any compelling reason, there is only one reason left for opposition to inseams—that those opposed to trousers fear women may have something to say, and that others may listen.

Figure 7: https://www.popsugar.com/news/Girl-Pantsuit-Meets-Hillary-Clinton-Book-Signing-44090750.

 

[1] Suits, USA Network (Mar. 19, 2018 12:26 PM), http://www.usanetwork.com/suits.

[2] Ann Farmer, Order in the Closet: Why Attire for Women Lawyers Is Still an Issue, 19 Perspectives 4, 6-7 (Fall 2010), https://www.americanbar.org/content/dam/aba/publishing/perspectives_magazine/2010_fall_order_in_closet.authcheckdam.pdf; Katie J.M. Baker, Forget the Glass Ceiling, We Have Hemlines to Consider, Jezebel (Mar. 16, 2018, 7:12 PM), https://jezebel.com/5916586/forget-the-glass-ceiling-we-have-hemlines-to-consider; Gina Rubel, Women lawyers wearing pants: part II, Avvo (Mar. 16, 2018, 7:18 PM), https://jezebel.com/5916586/forget-the-glass-ceiling-we-have-hemlines-to-consider.

[3] Megan Garber, Why the Pantsuit? For Hillary Clinton and Many of Her Fellow Women Politicians, a Single Outfit Represents an Uneasy Compromise between Gender and Oower, Atlantic, (Mar. 16, 2018, 6:05 PM), https://www.theatlantic.com/entertainment/archive/2016/08/youre-fashionable-enough-hillary/493877/.

[4] Id.

[5] Id.; informal interview with Jane Baber, president of Richmond Women’s Law.

[6] See generally Career Development Office, General Interviewing Tips, Richmond Law (Mar. 16, 2018, 6:11 PM), https://law.richmond.edu/docs/cdo/interview-guide.pdf (advising women to always wear panty hose to an interview).

[7] A Brief History of Trousers, King and Allen Bespoke Tailoring, (Mar. 16, 2018, 6:15 PM), https://kingandallen.co.uk/a-brief-history-of-trousers/.

[8] Id.

[9] Id.

[10] Wear the Pants, The Free Dictionary by Farlex, (Mar. 16, 2018, 6:22 PM), https://idioms.thefreedictionary.com/wear+the+pants.

[11] Supra note 6.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Supra note 6.

[17] How Charles II Invented the Three-Piece Suit, Permanent Style (Mar. 16, 2018, 6:27 PM), https://www.permanentstyle.com/2009/04/how-charles-ii-invented-the-three-piece-suit.html.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Supra note 17.

[23] Id.

[24] Id.

[25] Id.

[26] Supra note 6.

[27] Ane Bjølgerud Hansen, Horses, fashion & history, Equilife (Mar. 16, 2018, 6:41 PM), http://www.equilifeworld.com/lifestyle/horses-fashion-history/.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Hansen, supra note 27.

[33] Id.

[34] Kate Sullivan, The Fascinating History of Women Wearing Suits, allure (Mar. 16, 2018, 6:50 PM), https://www.allure.com/story/women-suits-history.

[35] Id.

[36] Farmer, supra note 2.

[37] Supra note 6.

[38] Farmer, supra note 2.

[39] Id.

[40] Hansen, supra note 27.

[41] Farmer, supra note 2.

[42] Id.

[43] Id.

[44] Nancy Hynes, Oldest Known Jewelry Discovered: Beads Made from Shells Represent Earliest Personal Adornment, Nature (Mar. 16, 2018, 7:01 PM), https://www.nature.com/news/2006/060619/full/news060619-10.html.

[45] Id.

[46] Id.

[47] Id.; Vyv Evans, How Old is Language? On time Machines, Talking Neanderthals, and the Long(ish) Past of Language, Psychology Today (Mar. 16, 2018, 7:06 PM), https://www.psychologytoday.com/blog/language-in-the-mind/201502/how-old-is-language.

[48] Supra note 6.

[49] Farmer, supra note 2.

[50] The Queen’s Wardropedia; 2 Inch Heels, 200 Handbags and Why She’s Only Worn Trousers Once, Telegraph (Mar. 16, 2018, 7:34 PM), https://www.telegraph.co.uk/fashion/people/shes-only-worn-trousers-publicly-once-and-other-fashion-facts-to/.

Image Source: https://weeklysilence.wordpress.com/2011/12/09/research-paper-pants-phenomenon-the-switch-from-skirts-to-trousers/.

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