Posted Aug 01, 2014 10:19 am CDT
Regarding “Who Owns the Law?” June: Best ABA Journal article I’ve seen in a long time. The repercussions extend beyond public access to information.
The cost of access to this public information also affects access to justice because it connects to the cost of lawyers and the ability of new lawyers to practice with cheaper business models. It connects to the profitability of being a lawyer (in a double-edged-sword kind of way) and therefore to the current uproar over the cost of going to law school.
As a solo practitioner with a relatively new practice, having to pay Westlaw or LexisNexis would probably have driven me out of business. Without their cheaper competitors, I would have been less effective as a lawyer. Frankly I can’t begin to guess how all of these variables and moving pieces play out in the marketplace, but it’s an important subject and I am glad to see in-depth coverage.
San Antonio, Texas
Great article and topic. Programmers and developers are amazed at how behind the legal profession is in its use of technology. My firsthand experience with the legal profession/community is that many of the actors therein profit from the information barriers that exist. Software and open access websites help surmount barriers, yet those barriers are profitable for the established gatekeepers. Given the money at the disposal of the information gatekeepers on this, I’m not optimistic that open access champions will prevail—unfortunately.
[Writing as the chair of the ABA Section of Administrative Law and Regulatory Practice], we appreciate your thoughtful article about the recent congressional hearings into copyright restrictions on laws and judicial opinions, including privately drafted standards that agencies have incorporated by reference into binding federal regulatory law. The issues here are delicate and important. Irrespective of their legal status, standards are essential for the operation of national and, increasingly, international markets; and standards organizations often capture technical expertise and judgment the government could not hope readily to duplicate. Nonetheless, when standards are converted into legal obligations, the public’s interests in participation and knowledge are much greater than the government has thus far recognized.
Your interested readers might like to know about the two ongoing proceedings involving this important practice that have recently been the subject of notice-and-comment opportunities in the Federal Register and on Regulations.gov. In one, the docket for which can be found on Regulations.gov at OFR-2013-0001, the Office of the Federal Register is proposing amendments to its rules governing incorporation by reference practice. In the other, OMB-2014-0001, the Office of Information and Regulatory Analysis is considering revisions to OMB Circular A-119, which provides agency guidance about the practice.
The section submitted comments in both proceedings strongly urging the necessity of giving greater attention than the proposals do to the public’s needs both for full participatory engagement with procedures that effectively replace APA rulemaking procedures, and to be aware of the legal obligations incorporated standards entail. These can be found at OFR-2013-0001-0029 and OMB-2014-0001-0073, respectively. We are hopeful that these comments will prompt OFR and OMB into paying much greater attention to the public’s side of the balance—and that the possibility of congressional action will encourage that result.
Joe D. Whitley
Regarding “The Few, the Proud, the Extreme,” June: Thank you, my colleagues, for ruining extreme sports. Thanks to our profession, the ancient principle of “assumption of risk” no longer applies to anything in this world. Not when there is money to be made on other people’s tragedies, I suppose.
David W. Simon
San Bernardino, California
My wife did the Tough Mudder. She had fun. It is designed to be challenging for moderately athletic people, and she would not have done it if there were any real risks. Generally, wilderness sports—and certainly races—are far more dangerous than an obstacle course race. Kayaking, trail running, climbing and bike racing require years of physical training, special equipment and expertise to be safe. I think those sports are far more difficult to address with a waiver because how do you warn people that they are out of shape or spent too little money on their base layers or quick draws?
The trail racing industry gets away with the assumption that most participants have run at least 1,000 miles in the year prior—if they haven’t, they will wilt somewhere in the middle of the forest. That seems like a far greater stretch of the duty of care than letting my sweet wife flop around in a tub of ice cubes. This article seems kind of like an advert for “death race” events, in which risk is only in the eye of the beholder.
I have not had a chance to participate in a Tough Mudder as I am an American attorney currently working in Africa, but it looks rather tame from the photos of the physical conditioning level of the participants, nearby medical help, and the comments of other readers at ABAJournal.com.
In the developing world, the possibility of death or injury from extreme sports is more realistic. I remember whitewater rafting down the Zambezi. Before each rapid, the guide would normally give us the option of taking the hard or easy approach. However, for two rapids he said we were going right and that if anyone fell out of the raft near the sinkhole on the left we would die and he could not help us. No further disclaimer needed. We heeded.
Consider taking an extreme vacation somewhere beyond the reach of overzealous civil law nanny courts to experience a real adrenaline rush instead of a sedimentary billable hours aneurysm.
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