Resource of the Week: Knowledge Mosaic

This week’s spotlight falls squarely on Knowledge Mosaic, an extensive repository of regulatory and disclosure information, current awareness, and law firm memos.  Knowledge Mosaic features a dazzling array of rich, highly searchable databases on financial, compliance, and other business data resources.  The portal provides robust query and analysis tools for mining and interpreting data plus a suite of electronically delivered news publications.  Further details regarding the database’s offerings can be viewed here.

While customizable e-mail alerts keeps users abreast of new developments, the real crown jewel of Knowledge Mosaic  is the Dodd-Frank Rulemaking Tracking feature which allows subscribers to easily sift through the torrential onslaught of changes initiated by the Dodd-Frank Act.  The tracker permits users to monitor ongoing rulemaking without being overwhelmed by allowing them to specify certain search conditions, such as corresponding references within the Act itself or by action type (i.e final rule, proposed rule, study, etc.).  Other filtering options include date, agency, and topic.  A handy video tutorial walks new users through the process of tailoring this amazing tool for their own research needs.

On-site and remote access is available to all NSU students, faculty, staff, and in-house users; a SharkLink ID is required for remote access.  Only NSU Law students, faculty, and staff can create personal accounts at no extra charge.  Personal accounts allow you to set up e-mail alerts but to utilize these features, you must register using a law school e-mail address.  To learn more about personal accounts, refer to the Personal Account FAQs.

Changing the definition of Autism: Legal and other implications

At a cursory glance, recently proposed changes to the definition of Autism appear to be based solely on medical concerns. Supporters claim that a new definition is necessary to deal with perpetually rising diagnoses of Autism Spectrum Disorders (ASD). Ultimately, they argue that the new definition will lead to more accurate diagnoses and effective treatments. Experts contend that redefining Autism will allow clinicians to categorize patients in a manner most conducive to prescribing effective treatments; arguably, individuals diagnosed with Autistic Disorder should receive different treatment methods than those diagnosed with Asperger’s Syndrome, who are considered higher functioning. The current definition lumps too many substantially different, yet related disorders, into the same category and often results in inaccurate diagnoses or ineffective treatments. Proponents of the definitional change to Autism argue that it is due to inaccurate diagnostic criteria that diagnoses of ASD and related disorders are on the rise and costs associated with ineffective or inappropriate treatments are spiraling out of control.

However, while the initiative to change the definition of Autism is based on solid scientific evidence and research, it also has profound legal implications and ramifications. Far be it from me to claim that the American Psychiatric Association is in bed with insurance companies, but insurance companies may ultimately be the big winners here. Legislation requiring health insurers to cover ASD and related disorders has only been enacted in the last few years; currently, 34 states have passed laws related to insurance coverage and Autism. As one might imagine, insurance companies and their supporters fought (and are still fighting) tooth and nail against mandatory Autism coverage and are often of the opinion that parents and school districts should bear the financial responsibility for individuals with Autism. Most laws requiring mandatory insurance coverage for Autism were passed over the last four years. Keeping in mind, the relatively recent nature of laws mandating that health insurers cover ASD, how will the “slow to change” legal apparatus deal with definitional changes to Autism and related disorders?

Will the new definition result in the disqualification of individuals, previously diagnosed with ASD, but who no longer meet the criteria necessary to receive coverage even though their behaviors persist? Will legislators modify laws quickly enough to assist individuals who no longer meet the criteria for an Autism diagnosis, but who nonetheless need access to insurance benefits? Insurers will no doubt exclude individuals, who clearly require assistance, yet to whom there exists no legal obligation. One can only hope that legislators are paying attention and that they will take the steps necessary to ensure that the law keeps pace with medically based definitional changes.

Click here to review state laws regarding health insurance coverage and Autism.

It is interesting that such definitional distinctions are typically only possible regarding neurological (yet mental) or novel disorders. Take for instance Friedreich’s Ataxia, an autosomal recessive neurological (yet physical) disorder whose pathology or cause is known. Let’s imagine two individuals who exhibit similar behaviors (although not identical), yet differ drastically in symptomatic severity. Both have slurred speech, muscle spasms, and gait disturbance, but only one is confined to a wheel chair, cannot be understood by anyone outside the immediate family, and is unable to feed or bathe herself; one might imagine that these two individuals have altogether different disorders. Unlike ASD (whose cause is unknown), however, Friedreich’s Ataxia is known to be caused by a mutation in gene FXN (formerly known as X25); so anyone found to have the genetic mutation at X25 has Friedreich’s Ataxia regardless of any differences in the severity of the symptoms among those diagnosed with the disorder. Wouldn’t it be interesting if Autism and related disorders were one day shown to result from the same genetic mutation(s) and or cause(s), and the numerous observed behaviors are merely a matter of severity (which may result in alternative treatments)?

ASD diagnoses and treatment costs are rising. Something must be done to contend with these issues. One hopes that cost is not the primary motivation behind the definitional change. If the new definition will provide clarity and lead to more accurate diagnoses and effective treatments, then so be it.

The following is an excerpt from a New York Times article titled, “New Definition of Autism Will Exclude Many, Study Suggests.”

“In the new analysis, Dr. Volkmar, along with Brian Reichow and James McPartland, both at Yale, used data from a large 1993 study that served as the basis for the current criteria. They focused on 372 children and adults who were among the highest functioning and found that overall, only 45 percent of them would qualify for the proposed autism spectrum diagnosis now under review.

The focus on a high-functioning group may have slightly exaggerated that percentage, the authors acknowledge. The likelihood of being left out under the new definition depended on the original diagnosis: about a quarter of those identified with classic autism in 1993 would not be so identified under the proposed criteria; about three-quarters of those with Asperger syndrome would not qualify; and 85 percent of those with P.D.D.-N.O.S. would not.”

Current Diagnostic Criteria for Autistic Disorder

A. A total of six (or more) items from (1), (2), and (3), with at least two from (1), and one each from (2) and (3)

(1) qualitative impairment in social interaction, as manifested by at least two of the following:

(a) marked impairment in the use of multiple nonverbal behaviors such as eye-to-eye gaze, facial expression, body postures, and gestures to regulate social interaction
(b) failure to develop peer relationships appropriate to developmental level
(c) a lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., by a lack of showing, bringing, or pointing out objects of interest)
(d) lack of social or emotional reciprocity

(2) qualitative impairments in communication as manifested by at least one of the following:

(a) delay in, or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime)
(b) in individuals with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others
(c) stereotyped and repetitive use of language or idiosyncratic language
(d) lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level

(3) restricted repetitive and stereotyped patterns of behavior, interests and activities, as manifested by at least one of the following:

(a) encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus
(b) apparently inflexible adherence to specific, nonfunctional routines or rituals
(c) stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole-body movements)
(d) persistent preoccupation with parts of objects

B. Delays or abnormal functioning in at least one of the following areas, with onset prior to age 3 years: (1) social interaction, (2) language as used in social communication, or (3) symbolic or imaginative play

C. The disturbance is not better accounted for by Rett’s Disorder or Childhood Disintegrative Disorder.

Proposed Diagnostic Criteria for Autism Spectrum Disorder

Must meet criteria A, B, C, and D:

A.    Persistent deficits in social communication and social interaction across contexts, not accounted for by general developmental delays, and manifest by all 3 of the following:

1.     Deficits in social-emotional reciprocity; ranging from abnormal social approach and failure of normal back and forth conversation through reduced sharing of interests, emotions, and affect and response to total lack of initiation of social interaction,

2.     Deficits in nonverbal communicative behaviors used for social interaction; ranging from poorly integrated- verbal and nonverbal communication, through abnormalities in eye contact and body-language, or deficits in understanding and use of nonverbal communication, to total lack of facial expression or gestures.

3.     Deficits in developing and maintaining relationships, appropriate to developmental level (beyond those with caregivers); ranging from difficulties adjusting behavior to suit different social contexts through difficulties in sharing imaginative play and  in making friends  to an apparent absence of interest in people

B.    Restricted, repetitive patterns of behavior, interests, or activities as manifested by at least two of the following:

1.     Stereotyped or repetitive speech, motor movements, or use of objects; (such as simple motor stereotypies, echolalia, repetitive use of objects, or idiosyncratic phrases).

2.     Excessive adherence to routines, ritualized patterns of verbal or nonverbal behavior, or excessive resistance to change; (such as motoric rituals, insistence on same route or food, repetitive questioning or extreme distress at small changes).

3.     Highly restricted, fixated interests that are abnormal in intensity or focus; (such as strong attachment to or preoccupation with unusual objects, excessively circumscribed or perseverative interests).

4.     Hyper-or hypo-reactivity to sensory input or unusual interest in sensory aspects of environment; (such as apparent indifference to pain/heat/cold, adverse response to specific sounds or textures, excessive smelling or touching of objects, fascination with lights or spinning objects).

C.    Symptoms must be present in early childhood (but may not become fully manifest until social demands exceed limited capacities)

D.         Symptoms together limit and impair everyday functioning.

SAME-SEX DIVORCE: UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                     

SAME-SEX DIVORCE:  UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                Gay rights are advancing at an increasingly rapid pace.  Recently, the United States Ninth Circuit Federal Court of Appeal declared Proposition 8 (which banned gay marriage in California) to be unconstitutional (click here for article).  Even more recently, Maryland passed legislation enabling same-sex couples to marry (click here for article).  On a larger level, Countries around the world are  recognizing the rights of same-sex couples to marry.  Gay marriage is now legal in ten countries (Canada, Argentina, Belgium, Iceland, The Netherlands, Norway, Portugal, Spain, South Africa and Sweden).  While there is a long way to go towards equality for same-sex couples, in general, an atmosphere of hope, optimism, and excitement grows stronger every day.

Enthusiasm may be partly to blame for the problems that occur when same-sex couples wish to divorce.  Many same-sex couples, overjoyed at the prospect of being able to get married after constantly being told that their relationships would not be legally recognized, jumped at the opportunity to be wed.  Such couples now face significant barriers if their marriages break down and they wish to file for divorce.  NPR featured a very informative broadcast available here which provides great background information.

Attorneys who work with same-couples are increasingly advising their gay and lesbian clients not to get married because of the difficulty involved in getting divorced (click here for article).  Equality in terms of same-sex marriage has come a long way, but in terms of divorce lags far behind.  Same-sex couples, while they may wish to marry for all of the same reasons as opposite-sex couples, are often stopped from doing so by the practicalities posed by laws which make access to divorce difficult if not impossible.  For instance, how do married same-sex couples divide their property if their marriage breaks down?  How can they seek alimony or custody rights?

The gay divorce issue poses problems not only for jurisdictions which recognize gay marriage, but also for those that do not.  Recently, in Canada, a “firestorm of outrage” arose after government attorneys challenged the validity of a same-sex marriage performed in Canada on the grounds that it was not legal in their current places of residence (U.K. and Florida) (click here for article).  The Prime Minister, Stephen Harper, was quick to react stating that he has no plans on re-opening the same-sex marriage issue.  Comments suggesting otherwise seem to be largely based on misinformation by those who are quick to attack the Conservative government (click here for article).  In fact, since this story broke in January, the Justice Minister, Rob Nicholson, released a statement confirming the validity of same-sex marriages saying:  “I want to make it clear that, in my government’s view, those marriages should be valid” (click here for article).

Last week, the Federal government proposed new legislation that would declare same-sex marriages “valid for the purposes of Canadian law” and provides rules for same-sex divorce of non-residents (click here for the full text of the Bill).  In short, the bill provides rules for non-resident same-sex couples to obtain a divorce in Canada if they were married in Canada.  What the bill does not provide these couples with is a forum to deal with all of the attending issues that accompany a divorce (ie: alimony, child support, custody, property division) (click here for article).  The government simply cannot pass a law that would deal with all of these issues because it would both overwhelm the judicial system and also involve the courts stepping outside of the purview of their jurisdiction.  In short, divorce granted by this legislation is a symbolic act at best and does nothing to address the more practical concerns associated with divorce for non-residents.

One of the Problems – Residency Requirements

Most countries and states that allow same-sex marriages do not easily allow couples to divorce.  This problem arises due to residency requirements.  A residency requirement essentially requires an individual who seeks divorce to be a resident of that jurisdiction for a certain period (typically 6 months to a year).  Residency requirements for divorce make divorce a lengthy battle for heterosexual couples and same-sex couples alike.  To seek a divorce, one spouse must be a resident of the state in which they seek divorce for a minimum of 6 months in general, but often longer.  The problem is compounded for same-sex couples who marry in a jurisdiction that recognizes gay marriage and subsequently move to one that does not.

Another Problem – D.O.M.A. (Defense of Marriage Act)

On the federal level, The Defense of Marriage Act, 28 U.S.C. § 1738C, came into effect in 1996 and defines marriage as between a husband and a wife while ensuring that states do not have to recognize the validity of same-sex marriages performed in other jurisdictions.   On the state level, states either:  recognize gay marriage (as in Massachusetts); neither allow nor forbid it; or specifically forbid it through legislation or constitutional amendments to their respective state constitutions.  Courts (in states which do not recognize same-sex marriage) claim to lack jurisdiction to hear a divorce case because to do so would effectively mean that they would have to recognize gay marriage.  (For an excellent and current article describing the various constitutional principles involved, see Elisabeth Oppenheimer, No Exit:  The Problem of Same Sex Divorce, 90 N.C. L. Rev.73).  Oppenheimer notes the inherent contradiction in these non-recognizing states stating “it certainly is bizarre for gay marriage opponents to argue that a gay couple must remain married” (Oppenheimer 81).

Several late night talk show hosts have been quick to pick up on this issue and have featured reports which do a good job at exposing the confounding nature of this argument.  The Daily Show, with John Stewart, recently featured this special report in which correspondent Jason Jones interviews a religious figure who is completely against the idea of same-sex marriage.  It simply makes no sense for someone who is so vehemently opposed to same-sex marriage to want to keep such a couple together should their marriage break down.  Not to be outdone, The Colbert Report also featured a segment on same-sex divorce highlighting the same lack of coherence (see this clip @ time 3:25-4:40).

Potential Solutions – There Is No “Quick Fix”

After thoroughly researching the issue of same-sex divorce, Oppenheimer (infra) proposes several solutions but notes that “there are no obvious solutions” (73).  Judges are limited in what types of cases they can hear both by constitutional and statutory rules.  I agree with Oppenheimer when she concludes that any meaningful change is going to have to come from the legislature.  Until then, same-sex couples face a tough decision.  They will need to decide if the idea of marriage – something they have long struggled for – is worth the hassle considering the legal and logistical nightmares that could result if their relationships fall apart.  Those who advocate against same-sex marriage will continue to do so, but they should bear in mind that by refusing to provide a same-sex couple, who was validly married in another jurisdiction, with the option of divorce and everything that goes with that (ie: property division, custody orders, etc.), they are implicitly condoning gay marriage by keeping the couple together.

Photo 1:   found here on February 28, 2012.

Photo 2 found here on February 28, 2012.

New Year, New Law Librarian of Congress

Welcome to 2012!  Today marks the start of David Mao’s tenure as the Law Librarian of Congress.  Appointed Deputy Law Librarian of Congress in May 2010, Mr. Mao has served as a key member of the Law Library’s leadership team and managed the Law Library’s global legal research portfolio, including the Global Legal Information Network (GLIN). He succeeds Roberta Schaffer, the 22nd Law Librarian of Congress.

The news regarding the transition was posted by Andrew Weber who has been the Legislative Information Systems Manager at the Law Library of Congress since June 2004.  An active blogger at In Custodia Legis, Weber also supplied the text of January 2011 interview in which Mr. Mao expressed his thoughts regarding the responsibilities of the Law Librarian of Congress and described the career path he chose, which should prove to be inspirational reading for law and library school students alike who are considering becoming law librarians.

National Security Archive Director discusses FOIA & Wikileaks

Released on July 25th, the Afghan War Diary (a.k.a. The War Log) consists of 92,000 secret documents about the U.S. military’s involvement in the war in Afghanistan.  Published by Wikileaks, the report is currently being touted as the largest single leak of classified material to the news media since the Pentagon Papers in 1971.  The unauthorized disclosure has generated  a great deal of controversy, spotlighting the issues surrounding the need to maintain secrecy for security purposes while promoting government transparency in the Internet age. 

 

Despite the ensuing hoopla, the release of the Afghan War Diary is legal.  In fact, much of its content has been substantiated through other resources, most notably the CIA “Family Jewels” file which was released in June 2007 thanks to a FOIA request made by the National Security Archive at George Washington University.

 

 

 

 

Tom Blanton, Director of the National Security Archive, made a guest appearance on Comedy Central’s “The Colbert Report” on July 27th, to discuss the importance of FOIA and the price of eternal vigilance.  He also assured host Stephen Colbert that the CIA does not put bees in people’s bonnets.  (Phew!)  The day before, Blanton visited Washington radio talk show host Kojo Nnamdi (WAMU 88.5 FM) for a more serious conversation about the implications of the leak. 

 

 

Check out the Archive’s Web site for links and more information: http://www.nsarchive.org

 

 

 

“Passing the Hat”–An Investment?

Groups of people are
coming together to accomplish goals as never before, often using the
Web. But as traditional a funding practice as “passing the hat” is
illegal, under Securities and
Exchange Commission (SEC) rules–if the recipient makes money and wants to pay
their contributors back.

So, some Netizens are getting together and
passing the hat to try to get the SEC to allow passing the hat as an
investment, in a crowdsourced and crowdfunded (see below) effort, with Petition for Rulemaking File No. 4-605. (The SEC can change
its own investment rules, under SEC Rule of
Practice 192, 17 CFR §201.192
(2010).)

The Sustainable
Economies Law Center, after a suggestion from BoingBoing blog contributor Paul
Spinrad,
has drafted and filed a petition to the SEC, asking the SEC to change
its rules and allow crowdfunded venture-capital funding.

More details are
available at this BoingBoing
post,
or at the SEC’s website, under Petitions for Rulemaking File No. 4-605. (Comments to this
petition are available online.) This petition is open for public comment.
The SEC takes comments into consideration in deciding how to change its
rules; if this rule would help you, as a developer or investor, please
weigh in at the How to Submit
Comments
page at the SEC website, or see Paul Spinrad’s
original BoingBoing post for instructions on how to comment.

For more information
about the SEC rules that govern this issue, see the petition, File No. 4-605.

—————

“Crowdsourcing” is a neologism, coined, according to
Wiktionary (http://en.wiktionary.org/ ) by "Wired magazine
writer Jeff Howe, from crowd + sourcing, by analogy with outsourcing."
Wiktionary defines it (http://en.wiktionary.org/wiki/crowdsourcing) as "delegating a
task to a large diffuse group, usually without substantial monetary
compensation."

“Crowdfunding”
is such a “neo” neologism that Wiktionary doesn’t define it yet. By
analogy from “crowdsourcing,” it refers to funding provided by a similar
large, diffuse group.

Public Knowledge’s Copyright Reform Proposal

The group Public Knowledge, "a Washington DC based public interest group working to defend your rights in the emerging digital culture," (see http://www.publicknowledge.org/about) has made a bold (but not so new) proposal for the reform of copyright law.

According to their Web site (http://www.publicknowledge.org/node/2906),
their Copyright Reform Act, which has five sections, is proposing to
strengthen fair use, reform the anti-circumvention provisions of the
Digital Millennium Copyright Act (DMCA), so that circumvention of
anti-copying technology is explicitly legal for lawful purposes, update
copyright law to better fit with how digital technology functions,
reform the anti-takedown provisions of the DMCA, and make music
licensing easier for users of that content.

Copyfighter Cory Doctorow has an essay on his Web site (http://www.internetevolution.com/document.asp?doc_id=188055)
that speaks to this issue. There is a rather secretive copyright
treaty, the Anti-Counterfeiting Trade Agreement (ACTA), under
development, and reform to the Copyright Act is especially important in
view of this treaty. Cory's essay is a call to action about ACTA.

George Mason University Law School teaches a seminar in multinational IP, (also covering so-called "hard IP"–patents) which is located at: http://www.law.gmu.edu/assets/files/academics/schedule/2010/spring/HOUSEL_MultinationalIP-Syllabus.pdf. The PDF of the syllabus is full of links to materials and also references primary materials.

For some information from the other side of the intellectual property debate:

The World Intellectual Property Organization (WIPO) has some information about intellectual property: http://www.wipo.int/about-ip/en/, with links to additional material.

WIPO also has a collection of international copyright laws, at http://www.wipo.int/clea/en/, the WIPO Intellectual Property Handbook, at http://www.wipo.int/about-ip/en/iprm/index.html, and an e-booklet, Understanding Copyright and Related Rights, at http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html#intro.

Public Corruption, Part Two: Florida Faces, Tries to Fight Public Corruption

The
Federal honest-services fraud statute is being tested after a number of
officials in Palm Beach, Broward, and Miami-Dade counties
have been arrested for public corruption. Some Florida legislators–and
the Broward and Palm Beach County State Attorrneys, Michael Satz and
Michael McAuliffe–are advocating strengthening of Florida's
public-corruption laws in ways that do not depend on the language of
the Federal honest-services fraud statute. Called the "Restoring Faith
in Public Office Act," the new state legislation, SB 1076 (bill information page) (bill text), would amend Florida Statutes section 838.022,
"Official misconduct," to include failing, with corrupt intent, to
disclose a financial interest or a direct or indirect benefit.

The bill is sponsored by Democratic state senator Dan Gelber, and supported by other Democrats. The Miami Herald ran an article about the new public-corruption legislation, and the Sun-Sentinel ran an editorial advocating the legislation. According to the Sun-Sentinel, the legislation's chances of passage are limited unless it acquires bipartisan support.

Public Corruption, Part One: Honest-Services Fraud

Public corruption and honest services fraud are an issue both in
Florida and nationally. My next two blog posts will address this issue,
first on the Federal level, then on the state level.

Public
officials and businesspeople in the U.S. are being charged and in some
cases convicted under the Federal honest services fraud statute. The
statute, 18 U.S.C. §1346 (1988),
is itself an addendum to 18 U.S.C. chapter 63, "Mail Fraud and Other
Fraud Offenses," which includes wire fraud and bank fraud. Section
1346, which does not itself define a crime, adds to the definition of
"scheme or artifice to defraud." It reads: "For the purposes of this
chapter, the term 'scheme or artifice to defraud' includes a scheme or
artifice to deprive another of the intangible right of honest services."

The Supreme Court is considering the constitutionality of the honest services fraud statute in three cases this term: Black v. United States, Weyhrauch v. United States, and Skilling v. United States.  (The links are to SCOTUSWiki, a companion site to SCOTUSBlog, brought to you by Akin Gump's Supreme Court and Appellate practice group.) According to the Los Angeles Times, during the arguments over Black and Weyhrauch,
on December 9, 2009, the Supreme Court seemed dubious about the
constitutionality of the honest-services fraud statute, with no real
ideological split. The honest-services fraud statute is analyzed, and
its history delved into, in this article originally published on the
American Bar Association's Web site, "The Honest Services Statute: Scalpel or Axe?"  The Miami Herald ran an editorial in December 2009 about the necessity of the honest-services fraud statute.

Bar Passage rates in Japan

The new graduate-level law schools are averaging a 27% pass rates, up from the traditional 3%. Asahi

- By: Robert Hudson