Today in the Akron Legal News -- Nunchucks!

Today's column in the Legal News takes on the nunchuck colloquy during the Sotomayor hearings. If you missed it, the Second Circuit case regarding Second Amendment incorporation considered a New York State ban on nunchucks.

OK, once more in English. The Bill of Rights as written limits only the power of the national government (thus the "Congress shall make no law" language opening the First Amendment.) That changed after the Civil War and the ratification of the 13th, 14th and 15th Amendments. The 14th, which among other things says that no state can deny life, liberty or property without due process of law, is read as incorporating fundamental rights against the states.

Which is to say, the Due Process Clause doesn't incorporate all of the Bill of Rights. After a certain amount of judicial back and forth (which is virtually impossible to teach coherently to undergrads, thanks very much) the Court worked up a fundamental rights test to determine whether a given right is incorporated. Fundamental rights are those from which all other rights flow, and/or those essential to the concept of ordered liberty. Yes, that's not the most definitive test in the history of American jurisprudence, but it's what we've got.

The newly discovered individual Second Amendment right has yet to be incorporated. Heller v. DC overturned a District of Columbia law which is functionally a Federal law given the special status of the District.

So, back to nunchucks. The 1970s saw a martial arts craze during which nunchucks acquired an inflated reputation as some kind of super weapon. Nunchucks can indeed be effective in hand-to-hand combat, but only in the hands of someone well-schooled in their use. In the column I draw on my own martial arts experience which has taught me little other than how easy it is to ding yourself in the face as you try to learn how to control these things.

Anyway, during the 70s martial arts fad, apparently some gansta types started rocking nunchucks and the New York Assembly responded by banning. The sponsor of the legislation said that they serve no purpose other than to maim or kill. Obviously he never saw this:



Anyway, the New York law was challenged in Maloney v. Cuomo and the Second Circuit held that Heller doesn't apply. In doing so, the court followed a Supreme Court precedent saying that the Second Amendment doesn't apply against the States. My guess is that the precedent will be overturned when an incorporation case comes before the Court, but the Second Circuit's position was that until it is, the precedent controls.

Wingers and Gunnutistanis on the Judiciary Committee tried to make the case that Sotomayor is anti-gun. Which she may or may not be, but in following precedent she was the opposite of the activist judge the Republicans made her out to be.

My point in writing up the nunchucks case is that a) the New York law is foolish and misbegotten and bases on false assumptions about the overwhelming power of nunchucks, but b) the way Heller pegs the Second Amendment right to weapons traditionally used for self-defense makes it hard to argue that the law violates the Second Amendment. We'll see what the Court does, but ruling against the state in Maloney would be an expansion of Heller that could make the right far broader and more unwieldy than Scalia seemed to be bargaining for.

So if you have a chance to pick up the Legal News, that's what you get today. I'll continue to lobby for some online reproduction and continue to occasionally post summaries here.

A Limited Return Engagement

This week is the week before our annual family summer vacation. Generally I have access to The Internets during vacation, but utilize it sparingly. We're in one of those unplanned and unannounced periods of blog silence which I'm ending now so as not to extend it to further absurd dimensions. As usual I don't have much explanation except that if I get out of the blogging groove for a few days it's hard to get back in. And it's really easy to get out of that groove in the kid-intensive summer months.

So I'm back for the time being. Of course I don't have much to talk about tonight. But starting tomorrow I'll get something substantive down.

Akron Candidates Roll Is Up

As promised I've added a list of candidates with websites at left (third list down.) After my last post about the races I've been contacted by Will Padilla who is running in the crowded Ward 8 primary (site of the House of Pho) and Lisa Mansfield who is running for school board.

Will Padilla has a nice site up and a fine looking resume. It will be hard to make headway in such a crowded field, but he will be someone to watch in the future.

Lisa Mansfield also has a Friends of group on Facebook and is twittering -- you can find those links on the website/blog which is a work in progress.

As the season wears on and sites go live I'll add to the list. I check every once in a while but someone who wants to be added should drop a line to be sure.

R.I.P Judge Linda Kersker

Linda Kersker passed away last evening in Cleveland Clinic after falling ill at a judicial fundraiser Tuesday night.

I had gotten to know Linda when she was on the School Board and I was doing the public education advocacy thing. She could have given my little group of community advocates a cold shoulder -- after all she was a School Board member and a big firm partner. But she welcomed us to the cause, offering help and encouragement as we did what we could.

She was all energy, flying in every direction. If you got her going on one of her passions, she would start talking a mile a minute, pausing only to congratulate a passing friend on a great (though unsuccessful) campaign.

She lent her passion and intelligence to the Akron School Board for 16 years at no small professional cost -- her firm could not take cases involving APS during that time. Her community service continued this past spring when Gov. Strickland appointed her to one of the vacant seats on the Municipal Court. Sadly she was able to enjoy the new chapter only briefly.

Thoughts and prayers to her friends and family.

Why the Marburger Plan to Save Newspapers Won't Actually Save Newspapers

Yesterday we looked over the so-called Marburger proposal to allow newspapers (and presumably other content providers) to sue news aggregators for unjust enrichment. Since that post I've seen a couple others talking about monopoly of information, so I say again -- the Marburger plan would only protect reporter work product, not the information itself. If a reporter can obtain the same information independently, the cause of action should fail. (Accent on should -- the Marburgers do not entertain the possibility that the cause of action will drift and morph beyond what they envision, but that's another post.)

Before we get started on the problems with the proposal, a couple of caveats. First off, what I know about the newspaper business is what I read. Same with some internet use patterns. The difference between what lies below and what the Marburgers have done is that I have paid attention to things they haven't. Again I restate my central objection -- the Marburgers prove propositions with thought experiments that should be tested with data.

Finally a couple of links that got left off of yesterday's post. First off, Editor and Publisher covers the proposal, but with no critical comment. New media guy Marc Cantor weighs in with ideas about what the newspapers themselves can do to maintain an audience. (h/t Brewed Fresh.) A piece from the UK looks at the Marburger plan in the context of the far more draconian proposal from Judge Richard Posner to give papers intellectual property rights over their links. And if you really wanna get geeky wit it, here's a Coase Theorem treatment of the Posner idea. There has also been more dogpiling on Connie Schultz from various blogs. You can look through the links in yesterday's post and extrapolate if you really want to see more of that sort of thing.

Now on to the show.

Marburger Cures the Wrong Disease.

My biggest objection to Marburger (for want of another name, this is what we'll call it) is that it assumes that the gravest threat to newspapers is losing readers. While papers have lost readers steadily throughout the Twentieth Century due to competing media (radio was killing off papers long before the internets) the precipitous drop in revenues has happened on the advertising side.

Advertisers have been migrating steadily to online sources that have nothing to do with newspapers. This is particularly true of classified advertising which has traditionally been an indespensible revenue stream for newspapers -- up to 70% of profits. Craigslist has done the most damage, but Monster, Cars.com and for that matter Ebay have all taken away business that newspapers once dominated. As a result, classified revenues have dropped by half since 2000. Analysts like Lauren Rich Fine (that's the source of the 70% figure) have been warning for years that newspapers cannot survive ad revenue losses of this magnitude.

Online classified services offer advantages that newspapers cannot match. If you are paying for a newspaper classified, you are subsidizing that news gathering operation whose expense the Marburgers so persuasively described. Your cost is based on total circulation, despite the fact that only a tiny percentage of those readers are likely to have any interest in your ad. With online classifieds, on the other hand, every pair of eyes that wanders into the site is at least in the market for something along the lines of what you want to advertise. No one goes onto Cars.com to read about Michael Jackson's kids. They go to buy a car.

(By the way I have a theory that computer-based advertizing is a general danger to both content providers and content consumers. Advertizing is generally really inefficient. Again only a tiny percentage of whoever sees an ad has an interest in the subject of the ad. As computerization allows greater targeting, advertizing becomes more efficient. The more efficient it is, the less businesses have to buy it.)

Marburger does nothing about the loss of classified advertising. By their admission, they are talking about marginal increases in traffic. But traffic doesn't matter if it doesn't attract advertizing.

Curing the Wrong Disease, Part 2 -- Problems in Monitizing Websites.

The Marburgers would no doubt object that online ad pricing is dictated by traffic, which is true. But its not like newspaper website advertising was profitable, then the profits started to erode due to unfair competition from aggregators.

The fact is that it's really difficult to sell enough advertising to support web-based journalism. There isn't as much real estate on a web page (versus print where, among other things, you have facing pages that don't have an analog online). And people can block ads. And web advertising is still working to overcome a past rife with charlatans (remember the commercial about the poor sap who shot the duck in the banner ad?)

And of course news organizations are competing with sites that allow better targeting (see above.)

Over time, changes in technology may make monitizing online content easier (the rise in video allows commercials that you can't fwd past) or harder (written content on mobile web allows pretty much no space for ads). But between the loss of advertizing to other providers and the basic difficulty of paying for journalism with online ads, the newspapers are facing an inevitable decline that tinkering with intellectual property will not fix.

That said, the free rider effect that the Marburgers identify is the sort of thing that lawyers should seek a remedy for. Whether the Marburgers have correctly identified that effect and whether their proposal would provide an adequate remedy is another question.

Jeff Fusco Is Canvassing

Count City Council at-large candidate (and Citizens for Akron Treasurer) Jeff Fusco among those getting a jump on the very very crowded field for Council this year. I didn't see him in my neighborhood but got a flier stuck in my door. Fusco is one of three at-large candidates, along with Terry Albanese and Jim Shealey, whom Mayor Plusquellic is endorsing in the race.

I've been scrying the internets for council campaign sites. Fusco is one of the few I've found. I'll start a roll at left for them. Fusco is simply using Blogger as a platform for his site, but is keeping the blog updated (ahem, Sandra Kurt). Bare bones to be sure -- he didn't even spring for a non-blogspot url. But it still puts him well ahead of the pack in terms of web presence.

At large incumbent Jim Shealey has a personal webpage up -- one that got him some criticism when he linked to it on his Council page. It's not exactly a campaign website but not exactly not either.

I have three or four projects in mind for the blog this summer. Sifting through the Council candidates is one of them. If you know a candidate -- or are a candidate -- feel free to touch base.