Social Networking And The Law Commerce Essay

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Innovation and reform can be often hindered by obstacles that can include long and honorable traditions. In legal tradition their seems to have been a failure to recognize the likely causes and effects of stress, seemingly outdated methods and assessment practices as well as probable law school and law firm resistance to changes in popular culture like advances in technology. Many in the modern legal community recognize that the ineffective use of technology and with the rising costs of legal education have driven more practicing attorneys to use social networking sites to promote their business prospects and expand their potential client market over time spent utilizing such a rather new media tool. See William M. Sullivan et al., The Carnegie Foundation For The Advancement of Teaching, Education Lawyers: Preparation for the Profession of Law at 185-202 (2007).

The current legal education system does not seem to focus on effective teaching for the adult learner. It is also seems to not require a curriculum aimed at teaching the basic skills necessary to practice the law. See Linda S. Anderson, Incorporating Adult Learning Theory into Law School Classrooms: Small Steps Leading to Large Results, 5 APPALACHIAN J. L. 127, 134 (2006) ("In general, law school professors were high achievers in law school. Most have little practice experience and no particular training in education."); see also Fran Quigley, Seizing the Disorienting Moment: Adult Learning Theory and the Teaching of Social Justice in Law School Clinics, 2 CLINICAL L. REV. 37, 46-47 (1995) [hereinafter Fran Quigley] (noting different instructional approaches for the adult learner). See generally Filippa Marullo Anzalone, It All Begins with You: Improving Law School Learning Through Professional Self-Awareness and Critical Reflection, 24 HAMLINE L. REV. 324 (2001) (discussing various methods to improve learning in law school from a professor's prospective). The law school education particularly does not communicate the importance of balancing life with the stresses of a legal career. While many law schools often manage to produce outstanding lawyers, the system is less than effective for the majority of its graduates. American Bar Association, Legal Educ. & Admissions to the Bar, Report and Recommendations of the Task Force on Lawyer Competency: The Role of the Law Schools (1979).

Many of the students that are currently attending law school are emerging from various types of backgrounds. There are also many more women that attend these institutions since the 1970s. It can be inferred that generally, students' backgrounds, training, college education, and problem-solving skills are vastly diverse. Along with these rather new complexities, each student likely brings a variety of learning and problem-solving techniques to the classroom:

"The presence of diverse groups, including especially groups that traditionally had been marginalized by the law; make[s] it clear that law and law school could not be unitary in the way that they had been in the traditional law school. Doctrine and theory are not unitary, because different life experiences give different perspectives on doctrine and theory. The methods of legal education cannot be unitary, because students of different backgrounds have different learning needs." See Jay M. Feinman, The Future History of Legal Education, 29 RUTGERS L.J. 475, 483 (1998).

The case method of teaching seems to be like unto a one-size-fits-all approach that a variety of critics argue is ineffective. Even though this method has been shown to help prepare students to meet some of the challenges of the legal profession, it in fact only tends to provide a small fraction of what is required for graduates to be competent lawyers. See Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law School, 52 J. LEGAL EDUC. 75, 81 (2002) [hereinafter Hess, Heads and Hearts]; Orin S. Kerr, The Decline of the Socratic Method at Harvard, 78 NEB. L. REV. 113, 118-23 (1999); Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. LEGAL EDUC. 112, 125 (2002); Ruta K. Stropus, Mend It, Bend It, and Extend It: The Fate of Traditional Law School Methodology in the 21st Century, 27 LOY. U. CHI. L.J. 449, 456 (1996), Jamison Wilcox, Borrowing Experience: Using Reflective Lawyer Narratives in Teaching, 50 J. LEGAL EDUC. 213, 230-32 (2000).

The tradition continues because of momentum: First-year classes at most law schools are large, and students who are not regularly involved in class discussion may not develop a complete understanding of the course material. At best, only a small portion of each class period is used to its fullest potential at best. Generally, the remainder of the time is likely wasted on the irrational and discretionary rather than the logical, obvious, or useful material. This type of material is often great drain on the time and resources of students and professors. This phenomenon could likely equate to an unintended inefficiency disregarding settled principles of the law. See James R. Beattie, Jr., Socratic Ignorance: Once More into the Cave, 105 W. VA. L. REV. 471, 486 (2003) ("Socratic teaching is . . . an inefficient and unfair way to communicate information that the teacher possesses but does not reveal."); David D. Garner, Socratic Misogyny? - Analyzing Feminist Criticisms of Socratic Teaching in Legal Education, 2000 BYU L. REV. 1597, 1610 (listing as a complaint about the Socratic method that it is an inefficient way to convey various large and rather dense amounts of information); Kerr, supra ("[T]he [Socratic] method's question and answer format is also a terribly inefficient means to teach doctrinal rules."); Bernard D. Meltzer, The University of Chicago Law Schools Ruminations and Reminiscences, 70 U. CHI. L. REV. 233, 241 (2003) (arguing that the traditional Socratic method is "notoriously inefficient" at teaching students the law effectively).

Popular Culture

If the ineffectiveness of law school teaching methods mentioned earlier is true, then many of students in such classes may result to using Social Networking sites such as Facebook, Twitter and MySpace to contact friends, family or various other associates. This trend of "Social Networking" has arguably become a great nexus of modern popular culture. There are also practicing attorneys that frequently use their smart phones and other electronic devices to better manage their time. As the journal article cited below expresses that many lawyers also tend to use such devices to vent the varying degrees of stress they may be under in the course of doing their usual business of their legal career. Linda S. Anderson, Incorporating Adult Learning Theory into Law School Classrooms: Small Steps Leading to Large Results, 5 APPALACHIAN J. L. 127, 135 (2006).

There are also attorneys that use social networks like those mentioned earlier in a positive way to promote their law practice more effectively. But with such potential marketing flexibility, comes some unique legal obligations when using the rather new marketing tool. See Professor Eric Goldman of Santa Clara University School of Law, May 2007, available at (last visited Sept. 10, 2010). With all of the great innovation that have been brought forth with social networking sites; there are also several issues that can come into play as mentioned by the authors of the American Bar Association article titled, Social Networking and the Law: Virtual Social Communities are creating legal issues.

The Social Networking article authors seem to candidly describe that there are millions of people that frequent social networking platforms such as MySpace, Facebook, YouTube, and this online existence is generally self perpetuated at many times like unto a "Second Life in their daily lives to play interactive games, chat, send messages, and post videos and pictures, among an infinitely expanding list of online interactive venues and options." In this article the authors address several pressing legal challenges that social networking Web site operators face in the furthering in development and maintenance of their Web sites. They also mention that there is much difficulty defining and establishing the terms of use for the online service, protecting their intellectual property, and effectively maximizing the statutory immunities available to a myriad of site operators. See Perry Viscounty, Jennifer Archie, Farnaz Alemi, and Jenny Allen, Social Networking and the Law: Virtual Social Communities are Creating Real Legal Issues, available at (last visited on Oct. 5, 2010). This expressive article also mentions in the context of the potential legal issues with social networking websites, that many times courts may refuse to enforce a contract or a specific contractual provision if the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. To be unenforceable, a contract must be both procedurally and substantively unconscionable. Id.

The expand on this issue, the authors also mention that contracts of adhesion are commonly found on many social networking sites are per se procedurally unconscionable. This is likely because they do not provide any meaningful opportunity for negotiation and leave the user with no reasonably available market alternatives. Substantive unconscionability focuses on whether the terms therein are unreasonable. Because a contract is largely an allocation of risks, a contractual provision is substantively suspect by a court if it reallocates the risks in an objectively unreasonable or unexpected manner. End-User License Agreements (EULA, often labeled the site Terms of Service or Terms of Use) provisions are commonly rejected by courts on grounds of unconscionability include mandatory arbitration provisions, forum clauses, and prohibitions on class actions suits. See Perry Viscounty, Jennifer Archie, Farnaz Alemi, and Jenny Allen, Social Networking and the Law: Virtual Social Communities are Creating Real Legal Issues, available at (last visited on Oct. 5, 2010).

On the one hand, the authors of the article also mention that recently, a court held that the arbitration clause contained with the EULA for a social networking Web site named, Second Life, to be invalid on the grounds that the provision was both procedurally and substantively unconscionable. Bragg v. Linden Research, No. 06-4925 (E.D. Pa. May 30, 2007). In light of this decision, social networking Web sites are behooved to take care in drafting their EULAs in order to avoid invalidation of their terms and ensure enforceability of the agreement. Based on the analysis of the potential legal issues above, it is likely very effective to be cautious of the content one posts on such websites and that potentially the owners thereof will likely not be liable if taken to court based on the provisions of their End-User License Agreements. It could never hurt for a user to carefully review and/or print this material to read and make their decisions when using any social networking websites. Perry Viscounty, Jennifer Archie, Farnaz Alemi, and Jenny Allen, Social Networking and the Law: Virtual Social Communities are Creating Real Legal Issues, available at (last visited Oct. 5, 2010).

Law Practice

On the other hand, Social Networking Sites can be used to the individual or the legal professionals' advantage as well, despite the potential worries that may be encountered by user in their implementation. Websites like Facebook, Twitter and LinkedIn can be used effectively if properly tamed to the needs of the lawyer or perspective law firm inquire in using these services for marketing purposes. These forms of media are used in order to obviously increase potential clients and revenue that may otherwise not be available when advertising in other more traditional media like phonebooks, newspaper and television commercials. In this other great American Bar Association article by Rodney Dowell and Erik Mazzone give some valuable tips that may help getting the most effectiveness out of the social networking sites mentioned earlier.

Here are some effective descriptions from the authors that are rather simple but commonly used ways to approach various types of problems. These tools or descriptions thereof are meant to adequately present a potential path to complete a task or such a problem with overall greater efficiency. Mr. Dowell and Mr. Mazzone mention in the article that social networking sites such as, "LinkedIn, Facebook and Twitter" are incredibly cost-effective venues for growing relationships and promoting an attorneys law practice. But it will likely be very difficult for one to get the payoff from such websites if the right tools are not properly utilized. LinkedIn, Facebook and Twitter are inherently very competitive with one another by nature of their business markets likely because of and in their pursuit to fulfill the potential and projected needs of the market at large. See Rodney Dowell and Erik Mazzone, A Lawyer's Social Networking Toolbox: Tuning Up Your Online Business Development, available at (last visited Oct. 5, 2010).

Overall these social networking websites and a host of others offer incredibly cost-effective and time-effective means for almost all legal professionals in growing promising relationships and promoting a potential client market a law practice. It may also be helpful for one to imagine completing a task as the authors of the article suggest, "a home improvement project-let's say it's replacing a faucet." Id. As with almost any type of project in any field of labor, one must have a plan of how to make the overall best use the tools needed to accomplish the task of project with greater efficiency.

The gentlemen also describe this example of when one prepares an area and utilizes their toolbox. But it is likely that when this toolbox is opened, the only thing inside of it may be a saw or a hammer. There may not be any wrenches, screwdrivers, or nails which may provide nothing one may need to complete the task successfully. "While your trusty hammer is great for some things (like, say, hammering), you're not going to replace a faucet using it alone. …The next stop is probably Home Depot to pick up the necessary things. After all, it would be crazy to pursue a project without the tools you need, right?" Id. This perspective could be very relevant for various professionals in any field of labor.

To further inquire about the explanation of this phenomenon, the authors mention that apparently this task and many others alike are the way that many approach social networking in an attempt without prevail to successfully market their practices. It is also likely that without the necessary tools that would not make the task time-efficient and more effective and be assured that the task completed successfully. "There are lots of tools available to help, including settings built right into the site platform itself and third-party applications that spring up in the ecosystem." Rodney Dowell and Erik Mazzone, A Lawyer's Social Networking Toolbox: Tuning Up Your Online Business Development, available at (last visited Oct. 5, 2010).

The proper use of any of these social networking websites for law practice and law study definitely takes some serious research efforts to implement the potential tools effectively. It is seemingly possible to reap great benefits in future employment connections and possible future clients through taking the time to put them to use. Mr. Dowell and Mr. Mazzone mention that it is very important to "Control where the information flows." Unlike Twitter, Facebook will open up users lives (and their family and possibly old college friends) to the world unless you seize control. Consequently, there is a great need to distinguish between people that get to share in a professional's life and those that do not. Id.

The authors of this article also discuss that one can do this by creating a "list" under the News Feed column on the left-hand side of the Facebook home page." For example, a user can create one list for "Friends and Family" and a separate one for "Professional" contacts. Once the list is created, they can then restrict the list members' access to certain types of information. It is also very important to test those restrictions by going to the top of the Privacy Profile page. This is where the user can access the "See how a friend sees your profile" button. See Rodney Dowell and Erik Mazzone, A Lawyer's Social Networking Toolbox: Tuning Up Your Online Business Development, available at (last visited Oct. 5, 2010).

The Social Networking Toolbox article also mentions that it is important in the context of using Facebook or any other social networking web site to "Monitor your Wall." Every Facebook user's profile page has a space called a Wall, where friends can post messages for others to see. Set the account so it is known what is being posted there in case friends and family lack discretion. Anyone especially legal professionals, should adequately take the time to go to Account Settings and then Notifications, where you tell Facebook to notify you (by e-mail or SMS) about what, when and where things are added to the Wall. Id

A very important point that seems to be widely overlooked is that one should make sure that they know if and when they have been tagged in a photo, just in case they dislike the view as well. The authors of the Toolbox article expressed a great importance to get and give recommendations on the site. They discussed that one of LinkedIn's nicest features for business development purposes is the way it facilitates obtaining recommendations from connections. These should appear in a special section of the profile page. A user would want to actively develop the recommendations section so that their profile will be found more easily by people using LinkedIn's Service Providers search function. This method can be inferred to be very effective according to the authors of this article. Id.

Another important issue disscussed that is pertinent to many as with most things in life, "what goes around comes around" and this also applies to recommendations as well. Legal users are exhorted to "Give great recommendations" to ones LinkedIn connections and you will find that they return the favor. "Actively participate in groups" as well. This feature of access to such recommendations and other potential benefits can likely be argued to be the most dynamic area of LinkedIn is its Group section. This section is a place where one can set up a topic-specific community within LinkedIn to discuss, advise on and communicate about issues of common concern. The authors of the article mentioned earlier also express a rather deep concern to legal professionals, particularly attorneys. This rather important concern deals with using ones time slots and the effective management of them to their advantage. And not to mention the ancient catch phrase: Last but not least, users should remember that social networking never stops. See Rodney Dowell and Erik Mazzone, A Lawyer's Social Networking Toolbox: Tuning Up Your Online Business Development, available at (last visited Oct. 5, 2010).

This reality makes it very important to stay connected to the market and potential clientele wherever one is located. It also seems very practical in these days that attorneys should go mobile with Facebook and LinkedIn. Based for the phone model, just go to the Apple iPhone Store or BlackBerry App World for ones Facebook and LinkedIn applications, which are all written by others companies or the Smartphone maker. The iPhone applications to get the better reviews, but also seem get the job done according to Mr. Dowell and Mazzone. Id. The myriad of suggestions from several law practitioners of this rather sensitive subject likely seems to be very valuable to law students desiring to practice law. The same is likely true for current attorneys to maximize their productivity and networking for potential employment opportunities or future clients in a more time sensitive and cost effective manner.