Seeing how it is

Watching animals, or spending time with small children are two good ways to practice seeing life as it truly is. We tend to overlay the world with our values or hopes, and animals or small children really strip those things right away, if we give them the chance. You can't spend time with either group and stay really sentimental about them, in the goofy card sort of way.

For instance, if you watch swans for a while, the first thing you see is the beautiful, elegant bird smoothly sailing effortlessly across the surface. If you watch long enough, you will not only get the sense of those legs paddling like heck underneath, you will have the unequalled treat of seeing that great bird tipping up to dabble like a duck.

A swan's long neck is not there to be elegant, which is our impression, it's there to reach farther underwater to take advantage of food sources that ducks and geese can't reach. So, we amateur swan watchers are stunned to see the undignified posture as the swan goes bottoms up to dabble, paddling hard to stay tipped up. We are also amazed to find that they are very agressive birds that can easily break a man's arm if they are defending their nest! Or, we are amused to find that the pair called Romeo and Juliet on the Boston Public Gardens ponds turn out to be two females. The wildlife specialists actually knew this for a while, but thought it impolitic to publicize it (it would have been!). But the media got hold of the rumor just in time to publish it around the time of the Goodridge case -- very neat.

So, I try to learn from these events. See the world how it really is.

Happy New Year!

Wow! I only just see how to get back in here to post. My usual blog this method was re-engineered and does not work now. I've been so frustrated for several days. Sorry about the lull. So, Happy New Year! I certainly hope 2006 is a better year for all of us that 2005. What a lousy year in most ways you could count it. Sweetness, light, joy, friendship, learning and growth, prosperity and peace to us all.

Grieving a New Epidemic

Holocaust of a Savage God
Betsy McKenzie Dec. 31, 2005

All those long-lost boys
Who wore their pain
Like trailing clouds
Tinged with blood.
They wandered off
And winked out
Like so many candles
In the first holocaust
Wave; sad little
Obituaries saying only
Closed casket.

Now the remnant
Feel safe, secure.
They have cocktails
to hold off the virus.
Now comes Tina:
Seductive high priestess
of the savage god.
He takes his next
Harvest
When they feel most
Safe.

Insidious, addictive,
Tina takes your
Mind, your money
Your teeth, your house
Your friends, your
Reputation, your job.
And finally, serves you up
To the savage god.

Cry for the waste of it.
We made the god.
We fashioned it from
hate and fear and beatings and law.
It would have no power without us.

Hawk Meditation

Hawk in the bushes

On a cold day recently, I was waiting for the Mattapan Trolley to take me to work. I was just sitting at the stop when I noticed a lot of flutteration in bushes across the tracks. A house across the street always has a bunch of sparrows roosting in the bushes in front. And those bushes now were swaying and flinging back and forth. Something large was in the bushes! And the sparrows were jumping and popping in and out, fussing and cussing whatever it was!

I thought it must be a cat. Then, I saw wings, and thought an ill-advised crow must be crowding in around there. But as I watched, the uproar moved across the front of the house, and finally emerged at the edge of the porch, as a very angry hawk! I have never seen such frustration and injured pride. It must have been a very young hawk to have decided it could climb into those bushes and catch a fat sparrow. Of course, there was no room for it to maneuver, and the sparrows easily evaded the hawk. The hawk sat for a good ten minutes on the porch rail settling its feathers and its pride before it took off to sit in a tree and watch for squirrels.

We all make the mistake of thinking we can get by with short cuts from time to time. It usually ends as it did with that hawk, with frustration and injured pride. It’s a hard lesson to learn, but most of us humans don’t run the risk of starving when we learn it.

Integrating Legal Research Into Legal Life

A fair number of years ago, I attended a terrific program at an AALS (American Association of Law Schools) meeting, with Jill Ramsfield. She was actually speaking on her use of Rhetoric in teaching Legal Writing courses. But her points were so interesting to me, as a teacher of Legal Research! She was putting her course into the context of all of the Humanities, and all of the sweep of cultural history! Wow! Talk about a thought-provoking talk!

I went back after that January meeting and contemplated for a while. My course has been evolving ever since. The first thing that happened was that I changed the very first class. It had been pretty boring, and not very successful. To tell the truth, I had never found that the upper level students I taught had read that first assignment. So changing that first class seemed like a really good idea, anyway.

My class lasts 2 class sessions long. I spend a bit of time at the start going over house-keeping things, going over the syllabus and warning students how much time the class takes. But then, we change the pace and the rest of the first class is given over to role-playing. I get to play the client, and the students, as a class, have to interview me to get the facts for the first assignment. The energy level in the room really rises. I am always amazed at the excellent advice and good comments people pop up with, too. It’s a great way to start off the semester! I have explored getting visitors in to be my client, but it has not worked out yet.

The assignment then, is for the students to come back and fill out a worksheet with brief answers giving citations to the statutes and telling how they found them. I used to ask them to write a letter or memorandum, but the students freaked out over that, so I just cut it way back to filling out a kind of form. I talk with them in the second class after we go over what they found and how they found it. We discuss what they might do with the client and how they might package and deliver the messages. We talk some about marketing themselves to the client. I tell them the ABA Journal and a number of the books we buy, with alumni in mind, suggest how to deal with clients to keep them happy, even how to bill them so that they feel better about paying bills. This is early in the class, and we really don’t revisit it, but I do want them to be aware.

I say in the first and second classes that they are on the way to being lawyers, and they need to start thinking of themselves that way. They need to work on their writing, their speaking and their research skills, with their new profession in mind. They have obligations to their clients in the future, and their new profession, as well. I will do my best for them, and expect them to do their best for me. Mostly, I see them giving their best, bless their hearts! The ones who don’t leave after I give my “lot of work” talk that first class, are there for a reason. I am so lucky!

Short staffing for a while

I'm going to be out of town for the next nine days--at a silent Buddhist retreat, and therefore incommunicado--so I won't be blogging here until I get back. See you soon.

Librarian Mystique, Seriously

Actually, all joking aside, I do believe in a librarian mystique. It is compounded of a subtle mix of dust and powdered paper, ages of scholarship piled on shelves carefully tended and ordered. The earliest librarians were the first among scholars, the ones who knew all the books because they had read all the best editions and set them in order. That was when you could number the books in the world on the fingers of your hand, of course, and scholarship mainly consisted of recognizing the mistakes in hand copying.

Librarianship has changed over the millennia, and faster now than ever. A great deal of the conversation between Jim Milles and me on this blog comes down to a rather stylized and extreme debate over the completeness and speed of the current change. Law and librarianship is at a crossroads. It really has been there my entire career, so it's not really happening at lightning speed, in spite of how desperate I feel, sometimes.

I do feel most strongly that librarians would be doing lawyers and the world a grave disservice to jump into the digital world entirely. Not only for all the practical reasons I give at various points in my blogging, but also because of what libraries and librarians stand for in our shared cultural mindset. More than ever, we need that civilizing, history-keeping, scholar-tending sort of librarian.

Rex Libris, indeed!

The Librarian Mystique

Wow! Let's go for it. I think there is a real librarian mystique, although not everybody gets it. Do you remember that terrific thriller/mystery, The Name of the Rose by Umberto Eco? The librarian, of course, did it! [ooops! forget I said that if you were just gettting ready to read that book -- what are you doing so far behind in your reading, anyway?!] I just loved the librarian's secret potion. I have actually fantasized about creating something like it that would break open from pages as they were torn in books! Would that be great? Poison their little wicked fingers as they tore out the page in the book! OOOH, what a wicked bad librarian I am!

There is a wonderful history of libraries that I recommend. If you will be VERY careful with it and get it back ON TIME [and you better not tear any pages -- remember my secret potion!], I might lend it on ILL! Library, An Unquiet History, by Matthew Battles (Norton, 2003). It is a small, charming book, with illustrations, and wears its erudition gently.

When I was finishing library school, I was inducted into the Library Science honorary society. As a law librarian, I was disappointed that it had a boring Greek letter title. I wished it were more like the Order of the Coif. I wanted to start the Order of the Bun! Yay!

Happy Hanukkah!

This year, Hanukkah lines up so closely with Christmas! Happy Hanukkah for all you friends out there, lighting the mennorah. This very nice drawing of a dreidel, the top with Hebrew letters on it for the children's game played on Hanukkah is courtesy of a very informative website: http://www.rigal.freeserve.co.uk/jewish/chanukah/chanukah.htm which has lots more stuff about many aspects of the celebration. It is a festival of light, which makes sense at this dark time of year. Happy Hanukkah! Be light.

UMass Dartmouth ILL Hoax

Fortunately or unfortunately, The UMass Dartmouth ILL story has definitively turned out to be a hoax: see Daily Kos.

I have to agree with Kos: "The people who I blame for this are the two professors. They should have never gone to the media about this without more thorough questioning of him about the story." This is just the sort of thing that can be used to discredit and dismiss concerns about civil liberties violations. No matter what else has been proven and admitted, the defenders of the war on civil liberties can always point to this one example of overreaction by the Bush Administration's critics.

Merry What?!

I am a Christian, raised in a protestant church, and converted as an adult to Roman Catholicism. As mad as I get at my current church home, I care a great deal about my faith. I am absolutely torn about the celebration of Christmas, and all the stupid culture and political struggle going on over the so-called “war on Christmas.”

On the one hand, I am, and have long been, appalled at how commercial Christmas has become. Yes, I understand that for many merchants, this orgy of sales is their boost out of bankruptcy each year. But, consider how awful to have taken a sacred celebration in any other religious tradition and pasted such an orgy of consumerism onto it! Even the ridiculous, over-the-top decoration of houses kind of gets me. [Note to self – take that anti-depressant pill NOW!]

On the other hand, I really hate the political hay being made out of this “happy holiday” war on Christmas crap. I’m sorry, we live in a multi-cultural society. I do like to wish my Christian friends Merry Christmas, and am delighted when Jewish or Muslim or Buddhist friends wish me a happy Christmas. But if they are uncomfortable, I can certainly see that – geez, our society gets saturated with Christmas stuff this time of year! I think they ought to be allowed to opt out. As I said before, Christianity is not a minority faith in this society. It is more under attack from being exploited for commercialism and power-seeking pastors than from political correctness, in my humble opinion.

So, a mere day early, here comes Santa – you better watch out!
You better not pout!
You better not cry,
I’m telling you why –
Cause this Santa’s riding a big Harley Hog and he’s not takin’ crap offa nobody!
Watch out all you Holy Rollers and Christian Soldiers!
Santa’s not takin’ any prisoners.
He knows who’s been naughty and nice, so watch your backs, dudes.

This Santa was drawn by me, Betsy McKenzie and scanned and fixed up in GIMP (a freeware competitor to Adobe Photoshop) by my wizard son, Joe. Copyright 2005.

No Relief

More gloom and doom from Obsidian Wings:

I have written previously about the case of Abu Bakker Qassim and A'del Abdu al-Hakim, the two Uighurs who are still being held at Guantanamo, four years after they were captured by bounty hunters and turned over to the US for cash, and nine months after a tribunal found that -- oops! -- they were not enemy combatants after all. Today the judge who is hearing their case issued an extraordinary decision.

In it, the judge reached two conclusions. The first is that the detention of Qassim and al-Hakim is illegal:

"The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful."

The second is that there is nothing he can do about it:

"In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts “to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared “no longer enemy combatants.” Now facing that question, I find that a federal court has no relief to offer."

We are illegally detaining innocent people, and there is nothing that a federal court can do about it.

I'll stop for a moment to let that sink in.

Read the whole posting here.

Why people don't like Wikipedia (and blogs)

I almost think I understand this (from Marginal Revolution):

Q: Why are people so uncomfortable with Wikipedia? And Google? And, well, that whole blog thing?

A: Because these systems operate on the alien logic of probabilistic statistics, which sacrifices perfection at the microscale for optimization at the macroscale.

Q: Huh?

A: Exactly. Our brains aren't wired to think in terms of statistics and probability. We want to know whether an encyclopedia entry is right or wrong. We want to know that there's a wise hand (ideally human) guiding Google's results. We want to trust what we read.

When professionals--editors, academics, journalists--are running the show, we at least know that it's someone's job to look out for such things as accuracy. But now we're depending more and more on systems where nobody's in charge; the intelligence is simply emergent. These probabilistic systems aren't perfect, but they are statistically optimized to excel over time and large numbers. They're designed to
scale, and to improve with size. And a little slop at the microscale is the price of such efficiency at the macroscale.

Here is the link, thanks to http://kottke.org.

Friday Cat Blogging

Christopher, Trjegul, and Bygul

Chill Pill

Whoo-ee! I cannot take too much of that Obsidian Wings stuff! I get too upset. I do what I can, but then I have to take a chill pill. Here is Doctor McKenzie's prescription du jour: Visit Wikipedia, (www.wikipedia.org) and search for Patent Nonsense. Scroll down to look under Bad Jokes and Other Deleted Nonsense. This is material that is not real information, but was found humorous and was banished to this wonderful corner of Wikipedia to be kept for that reason. Love it, love it, love it.

Let me recommend to bird lovers the Birdidae guide to that family, full of fake latin names. Or there is information on cow tipping, so full of puns that you just have to laugh. Enjoy! Thank you wikipedians!

The FISA Court Is Upset

From Obsidian Wings:

If any of the judges are talking about disbanding the FISA court in protest, they must be seriously annoyed.

As it happens, though, the article contains an explanation of the government's reasons for bypassing the FISA court (out of order; the following quote appears between the second and third excerpts above):

"One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up.""

Gosh: they needed to have an actual reason to place citizens under surveillance? Talk about onerous requirements! This might be an even more pitiful explanation for not using FISA's emergency provisions than the one offered on Monday by General Michael Hayden, the Principal Deputy Director for National Intelligence:

"GENERAL HAYDEN: FISA involves the process -- FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little -- it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it."

FISA involves not just actual paperwork but marshaling arguments! What a concept! Still, I suppose I should cut them some slack: after all, it has been obvious for some time that marshaling arguments is something this administration finds difficult. At least now they're admitting it.

New from SSRN

Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory, and Teaching of Law

RICHARD K. SHERWIN
New York Law School - General
NEAL FEIGENSON
Quinnipiac University - Law School
CHRISTINA O. SPIESEL
Yale University - Law School August 30, 2005

NYLS Legal Studies Research Paper No. 05/06-6

Abstract:
Law today has entered the digital age. The way law is practiced - how truth and justice are represented and assessed - is increasingly dependent on what appears on electronic screens in courtrooms, law offices, government agencies, and elsewhere. Practicing lawyers know this and are rapidly adapting to the new era of digital visual rhetoric. Legal theory and education, however, have yet to catch up.

This article is the first systematic effort to theorize law's transformation by new visual and multimedia technologies and to set out the changes in legal pedagogy that are needed to prepare law students for practice in the new environment. The article explores the consequences for legal theory and practice of the shift from an objectivist to a constructivist approach to human knowledge, using an expanded, multidisciplinary understanding of rhetoric to analyze the elusiveness of evidentiary truth and the nature and ethics of persuasion in the digital era.


Keywords: legal studies, public law legal theory, law and technology, legal theory

Working Paper Series

Suggested Citation

Sherwin, Richard K., Feigenson, Neal and Spiesel, Christina O., "Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory, and Teaching of Law" (August 30, 2005). NYLS Legal Studies Research Paper No. 05/06-6 http://ssrn.com/abstract=804424



Social Software, Groups, and Law

MICHAEL J. MADISON
University of Pittsburgh School of Law August 16, 2005

Abstract:
Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading social software, increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, things, and stories.

Keywords: Groups, computer software, salience, innovation, governance, narrative, place, artifacts, STS, cognitive science

Working Paper Series

Suggested Citation

Madison, Michael J., "Social Software, Groups, and Law" (August 16, 2005). http://ssrn.com/abstract=786404

S.O.S.

Of the many blog commentaries I've been reading for the last few days, this one states the situation perhaps most straightforwardly:

Look. We have a President here who is making a claim of unlimited power, for the duration of a war that may never end. Oh, he says it's limited by the country's laws, but they've got a crack legal team that reliably interprets the laws to say that the President gets to do whatever he wants. It amounts to the same thing.

I am not exaggerating. I am really and truly not.

September 11 started the war. When will it end? Maybe never. Where is the battlefield? The entire world, including the United States. Who is an enemy combatant? Anyone the President says is an enemy combatant, including a U.S. citizen--no need for a charge, no need for a trial, no need for access to a lawyer. What if they're found not to be an enemy combatant? We can keep them in prison anyway, and we don't have to tell their families they're alive or their lawyers that they were cleared. What can you do to an enemy combatant? Anything you want. Detain him forever, for the rest of his life, because this is a war like any other and we have always been able to detain POWs for the duration of the war. But you don't need to follow the Geneva Conventions, because this is a war like no other in our history. And oh yes--if the President decides that we need to torture a prisoner for the war effort, it's unconstitutional for Congress to stop him. They took that position in an official memo, and they have not backed down from it. They have said it was "unnecessary" but they have never backed down from it.

They are not only entitled to do these things to people; they are entitled to do them in secret. When Congress asks for information about them, they can just ignore it. And they are entitled to actively deceive the public about all this.

That's the power they claim. At what point are we going to take that claim seriously?

...

This post is not a prophecy of doom. it is an urgent call for backup. Please. Please. Please. Read about those cases. Then go back and read about the President's claims of unlimited power. Ask yourself if you want to trust that he will only use these extraordinary powers against foreign terrorists, and never against innocents or U.S. citizens. Ask yourself if this sounds like the country where you thought you were born, or the country where you want your children to be born. And most importantly--ask yourself what you are going to do about it.

As far as I'm concerned, writing some overheated blog comments about how the administration are fascists and this is the end of American democracy does NOT cut it. As far as I'm concerned that's actively counterproductive. If you can't think of anything else you could start with writing your Congressman. You could also donate to Human Rights Watch, Amnesty or the ACLU. More than any of those things, though, I would say: start with learning as much as you can about this stuff, and telling other people what's going on. It sounds pathetic, in the face of all this. But speaking from experience, you'd be surprised how far it can take you.

Merry Solstice!

This is the Winter Solstice, the shortest day of the year. A very important time through most of human history, and marked in all kinds of religions. See a fascinating website about solstice at http://www.candlegrove.com/solstice.html .

When we lived in St. Louis, one of the most interesting places we explored was Cahokia Mounds, across the river in southern Illinois. This is one of the few remaining Indian mound sites in the region. The St. Louis area was so full of these mounds at one time that it was nick-named Mound City. But they have been bull-dozed or otherwise leveled and you would never know they had been there. But Cahokia is amazing.

Cahokia seems to have been the center of a mound-building culture that traded as far south as to reach the Aztec culture in what is new Mexico, and so far west as to reach the Pacific coast. The culture died out way before Europeans made it to the continent, and we don't know why that happened. They must have been a very wealthy and powerful people. Nobody knows for certain what the mounds were for. There are, however, remains of a wooden structure that seems to have been like a Woodhenge, marking the movements of the sun at solstice time.

I am pretty sure that there must have been folks out at Cahokia this chilly morning to welcome the sun at what had been Woodhenge or on the top of Monk's Mound, the tallest of the mounds. The image at the top is Monk's Mound, courtesy of http://www.state.il.us/hpa/Mounds.htm, which has a very nice, informative website about Cahokia. It's a great place if you are near enough, I recommend a visit. The interpretive center is very impressive, and the archeological work they have done and are still doing is great. They have wonderful brass doors on the center with bas relief ravens done by an artist, flying above the mounds. They are meaningful birds in the current Native American lore, according to what I was told. I like crows and ravens myself.

The Vegan Threat

More from billmon:

One F.B.I. document indicates that agents in Indianapolis planned to conduct surveillance as part of a "Vegan Community Project." Another document talks of the Catholic Workers group's "semi-communistic ideology." A third indicates the bureau's interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment of Animals.

New York Times
F.B.I. Watched Activist Groups, New Files Show
December 20, 2005

They hate us because of our freedom -- our meat-eating, fur-wearing freedom.

"The Access Principle"

Inside Higher Ed has an insightful article today on Open Access, entitled 'The Access Principle.' The article reviews the new book The Access Principle: The Case for Open Access to Research and Scholarship, written by Professor John Willinsky. According to the article, the "book reviews the various models to bring the dissemination of knowledge online and to make it free, and along the way, the book criticizes plenty of publishing practices, copyright interpretations and scholarly traditions." I thought Willinsky's comments about open-access publishing ventures and the tenure system were interesting; how do our schools treat online publications at tenure time? If an article's impact is enhanced by online availability, and most studies indicate that it is, then certainly that will become the medium of choice for scholars.

Democrats say they never approved NSA domestic spying program

Paper Chase reports:

Top Senate Democrats have said that they never approved or were fully briefed on the National Security Agency's post-September 11th domestic surveillance program [JURIST report]. President Bush has vigorously defended the program, which monitors international communications of people in the US with known links to al Qaeda or other terrorist organizations, and in a press conference [transcript] Monday, Bush said that "Leaders in the United States Congress have been briefed more than a dozen times on this program." In a handwritten letter [PDF text] to Vice President Cheney following a Senate Intelligence Committee [official website] briefing in July 2003, vice chairman Jay Rockefeller (D-WV) wrote that he felt "unable to fully evaluate, much less endorse, these activities." Rockefeller wrote that the briefing "exacerbat[ed] my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance." Former Sen. Bob Graham (D-FL), who also sat on the Intelligence Committee, has said he didn't recall briefings on program spying on US residents. Both former Senate Democratic leader Tom Daschle and his successor, Sen. Harry Reid (D-NV), have both said they had been briefed on the NSA program, but that key details about the program's scope were not shared.

I'm just a lowly law librarian, but this doesn't sound right to me. If, as has been alleged, the President broke the law by authorizing wiretaps of US persons without following FISA procedures, would the alleged fact that some members of the Democratic leadership were "briefed" make it legal? Don't they have to, like, pass a law or something?

Federales

From billmon:

The Federales

Q: If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Attorney General Alberto Gonzales
December 19, 2005

GOLD HAT: We are Federales . . . You know, the mounted police.

DOBBS: If you're the police, where are your badges?

GOLD HAT: [puzzled pause] "Badges? We ain't got no badges. We don't need no badges! [angry] I don't have to show you any stinking badges!

Treasure of the Sierra Madre
1948

Envisioning Lawyers

When I was a law student, lo many years ago, I looked for role models. I wanted to see from my professors, what I would looke like as a lawyer. I was totally shocked and taken aback when I, at a more traditional school, discovered that not one of my professors had ever practiced in a real sense, as a lawyer!

I think our students are still hungry for this. They want to know what it is like to be lawyers. They look for role models. If you are at a school, like Suffolk, that hires former practicing lawyers as full time faculty, your students are ahead of the game in this one way. If your school has practitioners as adjunct faculty, you may notice students clustering around those folks like bees around honey. They are so hungry for some image to help them shape themselves into lawyers. Unless they come from a family of lawyers, they NEED role models like these, as much as they need those first year courses.

Law schools have ill served the legal community and our students by clinging to this specious division of the theoretical and the practical. I have been stunned, watching otherwise wonderful and rational law professors, of whom I am very fond, become absolutely defensive over the concept of teaching skills in law school. They are, I suppose, concerned that law schools might devolve into mere technical schools without high theory.

BULLSHIT, if you will excuse my outspokenness. You are protecting your pride of position, but you are not fooling anybody, friends. The rest of the university faculty know that our publications are edited by our own students, not peer-reviewed, no matter how many footnotes we shove in!

Please, stop while there is time. The MacCrate Report long since begged law schools to address the needs of the practitioners. Law students have for years been begging for a taste of reality in their schools. Now, law schools are under threat by online law schools and for-profit law schools. If the ABA ever authorizes an on-line, for-profit law school, which will cherry-pick the favorite lecturers from all law schools nationwide, we will all be left as teaching assistants in bar prep courses. Please, please, move your heads around and move into the 21st century. Let's start talking about what our students need to learn!

Theory vs. Reality of Law

I must admit that Jim set me back when he pointed out that Shape of the Law was treading into Big Idea areas, including theories about What is Law. I practiced for a short while, a long time ago. But I came away with some very strong and visceral impressions about what law was good for and what law was not good for. I also have to admit that I have not read a lot of jurisprudential theory, and have the merest grasp of it. What I can say, doggone it, is that reality on the ground, is what the theorists need to go out and study. I am excited at the rising interest in this type of research in law.

The traditional, two-party winner-take all court case does not serve anybody well in family transactions. I think the legal community has come to that conclusion generally, and is moving to adjust things. Now, there are guardians ad litem for children, doing more or less to safeguard the interests of children when their interests are not truly protected by parents. There are more often ADR options now.

There are other situations where ADR is a better option as well, but over and over, I saw the family law cases as real paradigms where ADR would be a better option. I was practicing just at the beginning of ADR's spread in the middle parts of the country. I am glad to see it thriving. But there are lots more things to think about in terms of how and why law works or does not work in a country or society. Sitting in a courthouse and watching people, talking to court clerks, especially in small towns, is a very good way to find out whether the law seems to people to be working fairly and in line with people's values. This seems to me to be a really good test, and one empiricists might want to think about. If you spend motion day in a small town courthouse and listen to the county clerk, you find out an awful lot.

There is a real gap between theory and law on the ground. Law on the ground is what the average person really experiences, and what shapes their opinion of the justice system. Except for unusual events like the OJ Simpson trial, most people experience the justice system through TV shows, or through their own or relative's or friends' brushes with the legal system. Very few people really read newspapers and think about the legal system as protrayed there. Nowadays few even watch TV news and get a message that way, I suppose. We need to get in touch with Steven Bochco!

Hanging Yuletide Mondegreens

It's time for a change of pace, as Jim says. We're close to the holidays, so I'll contribute a piece about a favorite of mine:


Mondegreens

A Mondegreen is a mis-heard word, usually from a song lyric or a prayer. The name comes from a Scottish folk song, The Bonny Earl of Murray:

Ye Highlands and ye Lawlands,
Oh! Where ha'e ye been:
They ha'e slain the Earl of Murray,
And they laid him on the Green.

The author Sylvia Wright misheard the song as:

Ye Highlands and ye Lawlands,
Oh! Where ha'e ye been:
They ha'e slain the Earl of Murray,
And Lady Mondegreen.

She thought this was a tragic double murder. When she understood her mistake, she named the mistake after the poor Lady. This lovely image of the apocryphal Lady Mondegreen is courtesy of http://www.livejournal.com/userpic/1147592/326021. Little children are a rich source of mondegreens. My daughter always wondered where her God bless shoes were. But anybody can make this kind of mistake, mis-hearing an unfamiliar word in a song or prayer as something more common. Here are some entertaining links for mondegreens:

Christmas carol mondegreens:
http://www.snopes.com/holidays/christmas/humor/mondegreens.asp


Terrific columns on mondegreens from San Francisco columnist Jon Carroll (part of a bigger website with more, too):
http://www.sfgate.com/columnists/carroll/mondegreens.shtml

The Green Knight: And Another Thing...

From the always-brilliant The Green Knight:

And Another Thing...

Pursuant to the post below, in which the American right goes bananas over Canada (again):

A few years ago, if you'd heard somebody say, 'And they're going to cancel Christmas!' you'd know they were making a joke. The canceling Christmas gag was just a silly way of calling somebody a sourpuss. The whole idea is so self-evidently ridiculous that everybody knew it was just hyperbole.

Similarly, the whole idea that Canada could be an enemy to America, let alone a threat, was so obviously ridiculous that Michael Moore made a (rather mediocre) satirical movie about it, Canadian Bacon. It was obviously the sort of scenario that simply could not ever happen, and was therefore a useful gag to illustrate a different point.

The American right these days, though, is asserting that these scenarios -- canceling Christmas, and Canada as enemy -- are true. And apparently some people are buying it. Why? And what for?

I'd guess that there is one basic reason: the right just wants people to be afraid. If you can convince them that all of these self-evidently impossible scenarios are actually true, then you are giving them a portrait of a world that no longer makes any sense. Everything is turned upside-down; everything's out of control. Nothing is more terrifying than that.

Furthermore, in order to really make them afraid, you have to take away their ability to laugh. A sense of humor is a sense of perspective, after all; so if you can take away the sense of humor, then you can take away people's ability to comfort themselves by realizing the difference between what can happen and what cannot. So, you've got to destroy the jokes, replacing them with the sort of dank, bitter fury that alleged 'humorists' on the right peddle.

The right's purchase on the American psyche will wither as people learn to laugh again. And here's my final thought on the matter: a sense of humor is not only a sense of perspective, but an affirmation of life and hope. The morbid love of despair sold by the American right is as far from a real "culture of life" as you can get.

Constitutional evolutionism?

PZ Myers is one of the most outspoken defenders of the science of evolution in the face of the attacks from the intelligent design folks. Now, apparently, ID is being promoted as essential to the the US Constitution. Here is his take:

I'm familiar with the creationist's "argument from personal distaste"—they don't like evolution because it implies that Jesus was half chimpanzee—but here's a new variant. Jason Rosenhouse finds some Schlaflyites who seem to deify the founding fathers:

Evolutionists claim that their battle against creation-science is primarily a “scientific” issue, not a constitutional question. But our treasured U. S. Constitution is written by persons and for persons. If man is an animal, the Constitution was written by animals and for animals. This preposterous conclusion destroys the Constitution. The Aguillard Humanists leave us with no Constitution and no constitutional rights of any kind if they allow us to teach only that man is an animal.

Strange…I think the Constitution is a pretty good document, and it would be a good document if it had been written by a wombat or a rutabaga. It's authority should derive from its propositions and arguments, not from some invisible, unconfirmable, and entirely imaginary property of its authors.

I note that the Constitution also fails to say anything one way or the other about evolution. It's also deficient with regard to basic principles of chemistry and physics.

UPDATE: In a related posting, are pandas the Paris Hiltons of the animal kingdom?

Occupant: 1600 Pennsylvania Ave NW, Washington DC

From The Galloping Beaver:

"Dear Elected One, (Assuming that is how you achieved office)

As I am not a citizen of your country, but an all-the-while interested observer of US politics, I felt it my responsibility to offer some guidance as to your duties and responsibilities. (You seem to be confused). I will attempt to refrain from making subjective observations and instead, try to restrict my guidance to those documents, letters patent, terms of reference and any pertinent paper napkin musings which may clarify your expected performance for the remainder of your appointment.

I know I speak a different dialect of English than you. Please excuse the difference in our education. I tend to place the letter "U" where you think it unnecessary. Ignore it; it is of no particular importance. Likewise, I do understand your use of "y'all" when addressing someone and "all y'all" when addressing a group. But I digress."

Read the whole posting here.

Hey, This Is Better than LibQual!

Imagine if we could use emotion recognition software to test library user satisfaction! Enigma of Mona Lisa Smile Cracked - Computing -: "According to findings published in the New Scientist, a British journal, the exact breakdown of Mona Lisa's emotions, as captured by Leonardo da Vinci, were 83 percent happy, 9 percent disgusted, 6 percent fearful, and 2 percent angry. "

A Patron’s Perspective On Library 2.0 « MaisonBisson.com

From MaisonBisson.com: "A Patron’s Perspective On Library 2.0"

My friend Joe Monninger is perhaps a library’s favorite patron. He’s an avid reader who depends on his public library for books and audiobooks and DVDs, and as a writer and professor he depends on the services of the university library. But he doesn’t work in libraries, and though he listens patiently to my work stories, he doesn’t really care about the politics or internal struggles we face.

That said, I’m reprinting here the full text of his recent column for the Valley News, a paper serving Hanover New Hampshire and other upper Connecticut River valley communities. He’s discussing the challenge we face from the perspective of an interested customer.

Here it is:

Estrella: New Open Standards-based Administrative Law System

From excited utterances:

Recognizing citizens' (including "corporate" citizens) need to know and understand the law, the Leibniz Center for Law will coordinate a new European project, Estrella (European project for Standardized Transparant Representations in order to Extend Legal Accessibility).

The aim of the Estrella project is to develop and validate an open standards-based platform allowing European Commission public administrations to develop and deploy comprehensive legal knowledge management solutions, without becoming dependent on proprietary products of particular vendors.

Under the leadership of Leibniz' computer science and law professor, Radboud G.F. Winkels, Estrella will bring together vendors, academics, consultants and legislators to develop standards and run pilot projects to test them out.

I Think I'm Going to Shut My Piehole for A While

I've been enjoying our ongoing discussion on OOTJ; I hope you have too. But looking back over some of my comments and postings, I feel they may have been overly terse and brusque, so I hope nothing I've written has caused offense.

I've been thinking about your latest posting, and how to respond, or even if I should. The problem with a debate like this is that it can lead both parties to take more extreme positions than they normally would. I'm certainly feeling that tendency in myself. Maybe I should just refrain from responding for the weekend.

It is also striking me that Suffolk and UB are very different schools--well, UB is different, anyway. In the last few weeks we've been bringing in a series of faculty candidates, most of whom are immersed in various kinds of interdisciplinary scholarship, and I've been participating in all of the interviews and job talks. In that context, the traditional, doctrinal view of law expressed in the article you quoted seems really remote from what we're doing here, and from the sort of research and teaching we support.

Take a look at the Call for Participation for the 2006 Law and Society Association conference (a lot of our faculty are very active in LSA, and several have been president of the association):

In the spirit of the Law and Society Association’s long tradition of research into unsettled and unsettling issues, the 2006 meeting’s theme poses many profound questions regarding challenges facing the rule of law early in the twenty-first century. We highlight in particular the following observations and puzzles.

First, as social life around the globe becomes ever more complex, multi-layered, and subject to multiple sources of authoritative ordering, the boundaries among and between different legal or extra-legal forms of governance have become more contested, volatile, and fragile. How are different forms of legal authority established, enforced, contested, and renegotiated? Where does the authority of one legal system or form of governance end and another prevail? Do inherited conceptions of “legal pluralism” suffice to make sense of the negotiated boundaries among legal orders?

Second, the global spread of Western legal norms, and especially those associated with the United States, seems to highlight law’s growing significance in contemporary life at the same time that the proliferation of profoundly different legal orders undermines any common view about the core elements of law itself. Have we come to the end of any coherent singular understanding about what the “rule of law” requires? Do new forms of capitalism, governance, etc. demand new models of law that we do not yet imagine?

Third, in many societies we witness political backlashes and retrenchment against the constraints of law’s rule. Overt attacks on courts, lawyers, legal processes, rights, and rules as well as more subtle departures from principles of law are evident around the world. At the same time, other elements or domains of law – especially the punitive and market-based terms of law – have been advanced with new vigor. How can we make sense of the simultaneous undermining of some forms or aspects of law and the strengthening of others? What is the role of neo-liberalism or resurgent authoritarianism in these processes? How do these changes reflect and express unequal power relations?

Fourth, the preceding questions about the conceptual and political constraints of law suggest yet other more general puzzles about the limitations or endpoints of law’s instrumental capacity to govern. What do legal forms, processes, and practices do well, and what to they accomplish poorly or less well than other forms of governance? What types of control or coordination are most and least effectively advanced through law?

Finally, these previous questions suggest yet another line of inquiry about laws end(s): What are law’s purposes? What normative ends does it serve? Whose ends? To what extent is law merely a means, a set of techniques that serve ends rather than define ends? How are commitments to (or against) law related to organizing logics of capitalism, democracy, authoritarianism, religion, or various versions of justice? By what standards should we assess the workings and impacts of law? Where do or should we stand in scrutinizing how, and for whom, law does or does not matter?

I think the debate you and I are having is about more than how to do or teach legal research: it's about the role of legal education and the nature and function of law--does law even have a "shape"? These are all questions that I think are interesting and important, but I don't feel qualified to debate them as deeply as they deserve. Not at 10:00pm, anyway.

Goodnight for now.

The Shape of the Law

Many long-time practitioners talk about understanding "the shape of the law." See, for example, The Corruption of Legal Research, by Scott P. Stolley in For The Defense, April, 2004, pp. 39 - 51. Stolley is a partner in the Dallas office of Thompson & Knight, LLP, and is writing about young associates who cannot locate cases that he knows are there:

My computer-dependent associate reported that she could not find a case. It seemed obvious to me that some case would support my argument that the plaintiff's lawyer could not succeed with his tactic. So I went to the books, and found a suitable case in about 30 minutes. .... When I showed the case to my associate, she expressed shock: "How did you find that? That's crazy -- to find that one sentence in the sea of cases." You would have thought that I was a sorcerer." (Stolley at p. 40)

Stolley is speaking about two things here. He is complaining that the young associates do not know how to do book research, and depend entirely on computerized research. The other thing he complains of is that because of this, they do not understand that the law has a shape. They lack, in his view, and mine, a sense that the law is a living body formed over generations of give and take. Stolley puts it this way:

They also don't experience the lively banter of lawyers who are hunkered down in the library, quizzing each other as they tease the law out of the books. Perhaps worst of all, they miss the musty smell of history wafting from a 100-year-old West Reporter. Staring at a sterile computer screen, they don 't get a sense of the law's development -- the sense that the law "stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left." Learned Hand quoted [sic] in Frost-Knappman & Shrager, The Quotable Lawyer, at 55 (ref.ed.1998). (Stolley at p. 41)

Anthropologists seem to have no problem thinking about tools shaping the human mind. Why do we in the field of law and librarianship seem so unwilling to think that our tool, the computer might be shaping our minds? And of course, our minds shape the law!

Holiday Gifting Ideas

On a somewhat lighter, holiday-related note: Dave Bertuca and Fred Stoss at the University at Buffalo Libraries have assembled a wonderful list of unique Holiday Gifting Ideas. Surely somebody in your family would love a Headmaster's cape?

Law Schools VS Law Libraries

Paul Duguid, one of the co-authors of The Social Life of Information, (see some sample chapters at http://www.firstmonday.org/issues/issue5_4/), has gone on to think about these issues in the context of law schools. He points out that while law libraries have changed swiftly to respond to the huge changes in information technology, the law schools themselves have changed hardly at all.

Law schools are beginning to change, but very slowly. Most law school curricula is very much the same as in the days of Christopher Columbus Langdell, with the addition of niche topics and seminars, and laptop hookups. But the professors of my youth could pretty much dust off their notes and step right into the classrooms today and feel right at home. The law librarians of my youth have had to run very fast to keep up with the changes!

I am frustrated with the inability of law faculty and law schools generally, to come to grips with a changing reality. We must restructure the curriculum to do more teaching of analytical skills. Teaching in a way the sticks, and that keeps it realistic. Instead, we seem to be mired in petty turf battles over how many hours who has for their personal course. The law school faculty and deans are fiddling while the profession and students are watching Rome burn!

Activist Judge Cancels Christmas (from The Onion - America's Finest News Source)

Activist Judge Cancels Christmas | The Onion - America's Finest News Source: "Activist Judge Cancels Christmas

December 14, 2005 | Issue 41•50

WASHINGTON, DC—In a sudden and unexpected blow to the Americans working to protect the holiday, liberal U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt ruled the private celebration of Christmas unconstitutional Monday."

Darwinian?

I can see how Betsy could read my posting as "a Darwinian model of the Market sorting out the new lawyers who can and cannot do this sort of analysis." I was worried as I wrote it that it would come out that way, but that was not my intention--that's the problem with trying to write a blog response the last thing before going home.

I don't think the operation of the market forces I wrote so loosely will be so draconian as Betsy reads it. If a lawyer loses a case--and learns from that the necessity of research and analysis--it's not the end of the world. (But what of the losing clients, you ask? Part of the skill of legal analysis involves being able to recognize a losing case when you see it. Sometimes the client should lose. I've seen enough misguided pro se patrons in the library to know that just because someone thinks they have a case doesn't make it so.) Young lawyers are seldom literally eaten alive by more experienced lawyers. I don't think that's how the market works anyway. My suggestion is that, overall, market pressures will work at multiple points--in law school, during the course of summer clerking and the first years of work as a law firm associate--to maintain a professional standard of quality in the practice of law. I don't see weak members of the legal herd being thinned out by the lions of the profession--no more than happens now, at any rate. In other words, I agree with Betsy that online legal research is changing the practice of law, but I am unconvinced by fears that this will mean the end of legal analysis as we know it.

I also think that Betsy overstates the situation when she says that "The law professoriate does not seem aware of these changes." I've heard law professors lament the same things Betsy complains of--the cherry-picking of legal authority, the inability to construct a logical argument. This is why law school admissions committees expend so much energy trying to balance the desire to give law school applicants a chance (even if their GPA and LSAT give rise to doubt) against their responsibility to help students who are not going to succeed avoid the time and expense of three years of law school. That is also why law schools have academic support people, advanced writing courses, and so on.

I also agree that we--law librarians and law professors--need to do more. Our students have grown up in an electronic information environment; their skills and habits have been shaped long before they get to law school. Online legal research is just one part of that, and we're not going to change it.

What we need to do is recognize, accept, and embrace the fact that our current and future students are going to be doing their research online. The burden is on us to figure out what that means, to try to become as comfortable with online information as our students are, and figure out how to teach our students that comfort and skill are not the same. But we also need to recognize that the skills necessary for online legal research may not be the same as the skills we developed in a world of print-based research. How do we do that? I'm not sure. That's what I'm trying to figure out.

Previewseek

From Inter Alia: "I have been experimenting with PreviewSeek, a new meta-search tool from the United Kingdom. It claims to be 'the world's most advanced search engine' -- when you make a claim like that, you better be able to back it up. PreviewSeek is certainly an interesting tool, and it provides a lot of great information.

Try a search for ajax. First you'll get a green box listing all of the things that Ajax can refer to: characters in the Iliad, the cleaning powder, the Web technology, or even the fictional company in the Mickey Mouse cartoons. This is a good way to focus your search, if the terms you're looking for can mean different things. Next, check out the folder listing to the left -- PreviewSeek clusters its results much like Clusty, so you can quickly drill down to sites that are related to your search. PreviewSeek also offers thumbnails of the sites, so you can see at a glance the search result. You can also save your results to a Search Folder (30 listings allowed)."

Heating up the Medium

We actually agree that the law school faculty and librarians need to adapt to the changes that technology brings to student behavior. I also agree that the behavior changes are not inevitable. What I want to see is discussion and action in the law school community responding to these changes!

Students have been exposed to Westlaw and Lexis for 30 years now, at increasing rates. Bob Berring began writing about the changes in behavior back in the 1980's. Barbara Bintliff wrote about the changes in lawyerly thinking in the 1990's and still nobody has any plan of action to address what many of us agree is happening. The law professoriate does not seem aware of the changes. I am beginning to wonder what we have to do to get things to start happening.

We need to be teaching students much more in-depth and carefully about analysis. We need to teach them more about how to think independently, and how to create an argument in various ways.

Jim speaks so blithely about a Darwinian model of the Market sorting out the new lawyers who can and cannot do this sort of analysis. I am not so sanguine. For one thing, when I practiced, the day to day practice really very rarely needed actual research. What one did was rely on what pleadings the office had done before, without needing to go into reading cases. Of course, that was legal services, doing domestic relations, consumer protection and administrative cases, none with any damages. The type of practice would make a huge difference, but I suspect most small or mid-size general practices work the same sort of way for most of their clients. Only when they have an appeal would they research. But they still need to think clearly and analyze the cause of action in the first place to make up the pleading. It's still a key skill, whether you are using it to research or to think through the case at hand. But I am not sure the Market is doing any sorting at this level.

The other part of Jim's casual Darwinian model that bothers me is that there are actual people who are the casualties. Some of them may be my students. Geez.

OK, the Medium Is the Message. Now What?

Betsy's post earlier today makes some important observations, many of which are worthy of comment:

"The medium transforms and subtly shapes our reading of the message." Yes, but I don't think the influence flows only in one direction. I don't really think we are at the mercy of technology. Blaming the scanning, skimming, dipping, and scooping that Betsy observes in her students' writing on technology is simply the negative version of the sort of naive technological determinism that once suggested that "the Web means that the public will get better information than ever before." Social informatics research indicates that specific technologies are adopted when they reinforce, rather than undermining, existing structures of power and communities of discourse. In other words, students adopt technology that allows them to "research" by scanning and skimming. The inclination to conduct research this way comes from elsewhere. The good news is that this suggests that the habit of scanning and skimming can be unlearned, and is not an essential part of using online technology. Students need to be taught to use the technology differently.

"Even when they went to the books at my insistence, they skipped around and cherry-picked for citations and high points. They used the treatises the same way they skip around in an electronic journal article. They don't actually seem to read the content at all, which should be disturbing to anybody who is thinking about this. They just use it to find the cases. And then, they use the cases to do the analysis for them." Of course--that's the sort of behavior that the pressures of law school demand. Betsy seems to fear that this same behavior, when carried out in the world of practice, will lead to a decline in the quality of legal practice--"causing a sea change in the practice of law." I'm not so sure. I suspect that the market will exert some pressure here. Law school grads who don't know how to research and do legal analysis will find themselves losing cases; law school grads who do have these skills will win. Ultimately, lawyers will have to learn the skills of research and analysis one way or another.

This is nothing new. The larger law firms have always (well, for a long time, anyway) provided a de facto apprenticeship for young attorneys. This has always meant that those wealthy enough to afford legal representation by large law firms had a significant advantage over those who could not afford such representation.

That is my point--this is nothing new. Certainly, complain about the problems of online research--it is not perfect. Neither is book research, no matter what nostalgia might lead us to believe. The point is that we--law librarians and law professors--have to learn to adapt. We have to come to understand the strengths and weaknesses of online research--which, like it or not, is going to be the dominant mode in the future--and teach law students to use it effectively. As John Mayer of CALI has said, the students are natives of the online world--we are the foreigners. However, we are the natives (well, naturalized citizens) of the legal world. We need to bring the two together.

At F.B.I., Frustration Over Limits on an Antiterror Law - New York Times

One internal F.B.I. message, sent in October 2003, criticized the Office of Intelligence Policy and Review at the Justice Department, which reviews and approves terrorist warrants, as regularly blocking requests from the F.B.I. to use a section of the antiterrorism law that gave the bureau broader authority to demand records from institutions like banks, Internet providers and libraries.

'While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us,' read the e-mail message, which was sent by an unidentified F.B.I. official. 'This should be an OIPR priority!!!'

Wear your new title with pride! I've just created a "Radical Militant Librarian" button that you can buy from the Check This Out! webstore at http://www.cafepress.com/ctostore. (I don't make any money from this; it's just for fun.)

Dennis Kennedy.Gives a Big Shoutout to Betsy!

From DennisKennedy.blog, "Yet Another Reason I'm a Big Fan of Law Librarian Blogs":

Betsy McKenzie's post 'Rex Libris - Librarian Regnant!' on the Out of the Jungle blog is a celebration of law libraries and law librarians, an enjoyable read and an invitation to read further into the excellent Out of the Jungle blog (and subscribe to its RSS feed).

The post starts out like this and is a pleasure to read (and I encourage you to do so):

"Here is what I think is important and timeless about libraries and librarians: we embody the culture and caring of our society, passed down over the ages. From the Great Library of Alexandria, where items on the shelves were scrolls and finding aids were lists and it was a huge technical leap to arrange things in alphabetical order -- through the medieval monasteries which kept learning alive in western Europe by hand copying Bibles and commentaries and classical manuscripts -- to today's libraries where we are in danger of forgetting our heritage and meaning."

I've long felt that the law librarian blawgs as a group represent some of the very best work in all of legal blogging. And, as I've asked before, will employers please give these librarians some nice raises and bonuses for their work in the blogging world?

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Is the Medium the Message?

To twist poor Marshall McLuhan's quote a bit, the medium is the message -- just not quite the way he was intending. The medium transforms and subtly shapes our reading of the message. For quite a while I really agreed with people who said that eventually, the format would be quite transparent and users would be unaware of the medium that transmitted the information or thoughts to them. Whether they were reading or hearing, whether print or digital, I really thought it would be irrelevant and the only difference would be what features would be "born" or possible to the medium.

So, when Westlaw and Lexis added indexes and tables of contents and browsing pages, that should have put paid to my concerns about whether the online statutes and treatises were equal to the print versions, right? Wrong. I still think you read an electronic item differently than a print, and I think a person who is very used to using electronic items read everything in that same way. They scan, they skip, they dip and scoop, looking for good bits and picking out citations. They do not read paragraphs and pages. They do not stop and mull and then go back and read again. It is like the difference between the way swallows swoop and fly and the way a cow grazes and then ruminates.

I just finished grading two papers by students who are inveterate swallow swoopers. I am somebody who tends toward swooping myself and have to slow myself down to graze and ruminate. But perhaps that makes me appreciate the value of those virtues more. Even when they went to the books at my insistence, they skipped around and cherry-picked for citations and high points. They used the treatises the same way they skip around in an electronic journal article. They don't actually seem to read the content at all, which should be disturbing to anybody who is thinking about this. They just use it to find the cases. And then, they use the cases to do the analysis for them.

I find this profoundly disturbing, and this is what I think is causing a sea change in the practice of law. I am very aware that I am not at an Ivy school, and not seeing elite students. But I will bet that the librarians at the elite schools have the same darned experience to relate. It's the medium that is shaping the user, and we need to realize it before it's too late entirely.

Am I a Jeremiah crying in the wilderness? Is anybody out there?

Skype in the Wild

I've been using Skype, the excellent VoIP (voice over IP) system (developed in Estonia), together with Hot Recorder, to record interviews for my podcast. This morning, though, was the first time I've seen it in use "in the wild": a student sitting in the undergrad library with a laptop on her lap and a headset mic, having a telephone conversation via laptop and wi-fi.

The Green Knight: Quote of the Day

Digby (on the mainstream media): 'For the last fifteen years Washington politics have been covered as if they are high school with money.'

Acephalous: My Morning: The Final Chapter

For those of you who read this posting, here is the nail-biting but ultimately happy ending.

The World's Most Beautiful Law Student is Icelandic

Iceland produces more than the world's best butter and medieval sagas:

Opinio Juris: Law Student Crowned Miss World: "On the lighter side of international law, over the weekend a law student was crowned Miss World 2005. You would think the most beautiful law student in the world would attend the most beautiful law school, (as ranked by 100,000 students who attend elsewhere). But no, Unnur Birna Vilhjalmsdottir, 21, is a law student in Iceland of all places, and apparently a serious one at that. As reported here, Unnur was in China on a four-week tour with the other 101 Miss World contestants and while at the contest, she found time to continue her studies. “I brought my law books with me and study in the evenings after dinner.'"

Does Anybody Remember Katrina?

Lindsay at Majikthise has a news roundup:

Katrina news

Think Progress on Bush's broken promises to New Orleans--Bush Advisor To Reporter: Katrina “Has Fallen So Far Off The Radar Screen, You Can’t Find It.”

Steve Gilliard points to Gail Collins' editorial, "Death of an American City".

Democracy Now reminds us that the Katrina death toll remains unknown.

AP reports on post-Katrina forensics.

Newsday has a story on the efforts to reunite families after Katrina. Three months after the hurricane, over 1300 kids are still unaccounted for.

Chris Kromm reports from the Katrina Survivor's Assembly in Jackson, Mississippi.

"Voices From the Ninth Ward" by Tim Shorrock of Reconstruction Watch.

Blogger Anthology of Contemporary Drama

(Warning: adult content.)

Maniacs: A One-Act Play (From Shakespeare's Sister)

My Morning: A Play in One Uncomfortable Act (from Acephalous)

The Beatitudes for Educators [WARNING: Satire!]

Then Jesus took his disciples up on the mountain and gathered them around Him. And then He taught them, saying:

'Blessed are the poor in spirit,
Blessed are the meek,
Blessed are the merciful,
Blessed are you who thirst for justice,
Blessed are you who are persecuted,
Blessed are the peacemakers.'

And Simon Peter said, 'Do we have to write this stuff down?'

And Philip said, 'Will this be on the test?'

And Andrew said, 'John the Baptist's disciples don't have to learn this stuff.'

And Matthew said, 'Huh?'

And Judas said, 'When am I ever going to use this in real life?'

Then one of the Pharisees, an expert in law, said, 'I don't see any of this in the syllabus. Do you have a lesson plan? Is there an activity for each of the seven intelligences? Where is the study guide? Will there be any authentic assessment? Will remediation and extra credit be provided for those who did not meet class requirements so they can still pass?'

And Thomas, who had missed the sermon, came to Jesus privately and said, 'Did we do anything important today?'

And Jesus wept.

EULAScan - Another Precursor of Open Source Lawyering?

Dennis M. Kennedy at Between Lawyers points to a EULAscan, "a new service that is starting to collect community reviews of End User License Agreements (EULAs)."

Even if you don't get that whole wiki thing, put your imagination to the potential benefits of online repositories of comments, tips and pointers about certain types of agreements, legal situations, issues, forms and the like that would provide some helpful basic guidance and education. That's part of the notion of open source lawyering and Rob is one of the lawyers who has blog the most frequently about the open source lawyering concerpt.

The advantages of something like this for library license agreements seem obvious. Where do we start?

Digital This!

Well, heck, the recent announcement of the rather expensive report, Digital Future has got me thinking. They want $500 for a personal copy and $1,500 for a library copy and still don't want to give you the whole ownership suite of rights for that price. You print it out yourself, all 800 pages, and figure out how to bind it or otherwise store it, but you are evidently not allowed to just put it out on your library's shelf even though you shelled out $1,500, and you can't ILL it, either, buddy.

Jim Milles' excellent and provocative article, Out of the Jungle, wants the reader to equate librarians who refuse to jump on the digital train with the Japanese soldiers hiding in the jungles on Pacific islands, who never knew WWII was over. Well, after thinking about the Digital Future flurry I have a counter message. Maybe this digital train message ought to go both ways. It's time for the vendors to get on the digital train, too, pal. (I am attempting to decorate this with a picture of a little toy train from http://a.im.craigslist.org/Rm/hJ/tmiIgqNvPeMR13Mqe1Su9KmSW2E3.jpg) -- why would Craig's list include toy trains?)

I'm very tired of being asked to pay the same or more for a bundle of rights that are smaller for digital than they were for print. I pay a bazoodle for the electronic version of a title, but when the subscription runs out, my copy evaporates -- piff! If I had the print copy, it goes on sitting on the shelf, out of date, but it's easy to bring it up to date, at least for a while. It goes on being useful. Why can the vendors not give me the digital print of what I paid for AS IT EXISTED AT THE TIME MY SUBSCRIPTION RAN OUT? Why can I not loan my electronic material to another library, as I can my print material?

The vendors are on and on, worrying over protecting their copyrights from piracy. I have news for you honeys, it ain't the librarians who are pirating your materials! If anything, we do something to build business for you. Oftentimes, a lawyer uses the item enough times to see it is essential to her practice and will break down and buy the item for the office. This I do believe. The other thing that happens is the dratted lawyers (or perhaps students, somebody, anyway) steal our copy, and we have to buy a new one. At any rate, the vendor or publisher keeps selling a new one to us. If you had any sense, vendors, publishers, you'd be working with the librarians again!

The other thing about hopping right on this little digital train, is that I want to know where it's heading. For the first half of my career or more, I was a cheerful pimp for Westlaw and Lexis. I shilled for them and worked so hard to get the profs and students lined up to understand and be comfortable using their services. I was a true believer. Now, in the past seven or eight years, I have begun to have my doubts that this is all an unmixed blessing.


We can never put that genie back into its bottle. But we are members of the legal profession and of an allied profession and should be thinking deeply about this. We have some obligation here. Westlaw and Lexis will NEVER stop to consider what their black boxes are doing to the practice of law. They have far too much at stake to question this. I do believe that the use of electronic research is changing the practice of law, the way lawyers and judges do legal analysis, the way research results are retrieved. Things are being skewed, and we need to know how. We need to change what we do in the law schools. We have not done a good job so far, meeting any of the challenges of a changing profession. If we do not meet this challenge, we will have failed in a very big way.

Seriously, What the Heck Is the Matter With Kansas?

From the excellent Language Log:

Language Log's Jackass of the Week award goes to principal Jennifer Watts of Kansas City, Kansas' Endeavor Alternative School for suspending student Zach Rubio for two days for speaking Spanish in school. Fortunately, as soon as superintendent Bobby Allen learned of the suspension he reversed it. The school district has no policy forbidding the use of Spanish or other languages. This evidently is, however, Ms. Watts' policy. According to the Washington Post, in a written explanation for the suspension she stated that:

This is not the first time we have [asked] Zach and others to not speak Spanish at school.

According to Superintendent Allen's report, Watts said that it is important that the teachers be able to communicate and know what the students are saying. That teachers need to be able to communicate is true, but what has it got to do with whether students use Spanish in private conversations? (There is no issue here of encouraging Rubio to learn English - he is a fluent native speaker of both English and Spanish.) That teachers need to know what students are saying in private conversations is false. They don't need to know and they can't, even if the students always speak English. Both in school and out of school students have far too many opportunities to communicate out of range of their teachers for schools to know everything they say. By Watts' Orwellian reasoning, students should be required to wear microphones that transmit everything they say so that it can be monitored at the school office. Even the Soviet Union didn't go that far.

In any case, according to Zach's account Ms. Watts said at the time: "We are not in Mexico, we are not in Germany", and "I don't want to hear it [Spanish] in my building". This sounds more like plain old bigotry than educational policy.

Yes, I can connect this post to legal education. The State of Kansas has taken a number of black eyes recently, over the intelligent design controversy and other issues. How must our friends and colleagues at Washburn and KU Law Schools feel about all this? Is it affecting their admissions applications?

Law Review Word Limits

The nice folks at Emory School of Law, MacMillan Law Library have put together a handy guide to the word limit policies at the 25 most-cited US law journals.

'Podcast' Is the Word of the Year

'Podcast' Is the Word of the Year: Financial News - Yahoo! Finance

Monday December 5, 5:04 pm ET

NEW YORK, Dec. 5 /PRNewswire/ -- Only a year ago, podcasting was an arcane activity, the domain of a few techies and self-admitted 'geeks.' Now you can hear everything from NASCAR coverage to NPR's All Things Considered in downloadable audio files called 'podcasts'. Thousands of podcasts are available at the iTunes Music Store, and websites such as iPodder.com and Podcast.net track thousands more. That's why the editors of the New Oxford American Dictionary have selected 'podcast' as the Word of the Year for 2005. Podcast, defined as 'a digital recording of a radio broadcast or similar program, made available on the Internet for downloading to a personal audio player,' will be added to the next online update of the New Oxford American Dictionary, due in early 2006.

Compare and Contrast

From The Chronicle: Daily news: 12/09/2005:

New York University announced on Thursday that it would no longer sell any Coca-Cola products in its campus facilities because of alleged human-rights violations and suppression of unions at the soft-drink maker's bottling affiliates in Colombia.

From The United Federation of Teachers:

A crowd of 300 labor supporters braved sub-freezing temperatures and biting wind Dec. 7 to show support for striking NYU graduate assistants, hotel and day-care workers and others trying to unionize. Speaker after speaker pledged their solidarity, including UFT Vice President Michael Mulgrew and NYSUT President Dick Iannuzzi.

Tulane University Slashes Grad and Profesional Programs; Law Survivies

From Survival to Renewal: Tulane University:

ACADEMIC REORGANIZATION

As historic and organic institutions, universities traditionally grow to meet the needs of changing academic climates and social developments. As a result, most universities have very large and complex organizational structures. The economic pressures caused by Hurricane Katrina required Tulane to examine every part of our organizational structure and look at ways the academic areas could be reorganized. We must maximize organizational efficiency and at the same time become a smaller university more focused on areas in which we have established strengths....

STRONGER MORE FOCUSED GRADUATE AND PROFESSIONAL PROGRAMS

Tulane will enhance professional and graduate programs in which it already has proven strengths and in which there is the greatest potential for success.

• Tulane will focus its energy and resources in graduate-level programs that have demonstrated ability to be world-class and, in the sciences and engineering, have the proven ability to obtain competitively awarded grant funding. Supervision of graduate programs will fall within the various schools and colleges, with oversight by an associate senior vice president for research. The university will focus on and provide additional support to its doctoral programs and research in areas where it has attained or is in the process of achieving world-class excellence. Students in affected programs will have the opportunity to continue their studies at Tulane if they can finish degree requirements by May 2007. Otherwise, they can be reassigned to another program or they will be offered assistance in transferring to another institution.

• Graduate and professional students will find their collegiate experience enhanced by expanded public service and extracurricular activities being planned by the deans of the School of Social Work, the School of Law, the School of Architecture, the A.B. Freeman School of Business, the School of Public Health and Tropical Medicine and the School of Medicine.

UPDATE 10:53am: More at Inside Higher Ed.

Interview with a BePress

Matt Bodie at Conglomerate Blog has an interesting interview with Jean-Gabriel Bankier, manager of the bepress Legal Repository. One interest Q&A:

Lots of legal academics seem focused on their SSRN downloads as an indicia of scholarly impact. If only SSRN downloads are publicly available, then bepress downloads don't "count" toward scholarly impact. Are you worried that authors are going to direct readers to SSRN and away from bepress?

Authors with papers in the bepress Legal Repository are emailed download statistics every month. We have seen that papers posted to SSRN and the bepress Legal Repository have comparable downloads-per-posted-days rates. This isn’t an issue of bepress hiding figures. Rather, we are concerned that popularity and scholarly value not be conflated. SSRN feels differently, and this is reflected in their approach. It’s an honest difference of opinion. I think at the end of the day, authors want their research to be read by those who would learn and benefit from it. This means creating multiple paths of discovery to their work, via SSRN, bepress, law reviews, institutional repositories, and other venues.

Rex Libris - Librarian Regnant!

Here is what I think is important and timeless about libraries and librarians: we embody the culture and caring of our society, passed down over the ages. From the Great Library of Alexandria, where items on the shelves were scrolls and finding aids were lists and it was a huge technical leap to arrange things in alphabetical order -- through the medieval monasteries which kept learning alive in western Europe by hand copying Bibles and commentaries and classical manuscripts -- to today's libraries where we are in danger of forgetting our heritage and meaning.

When I was in law school, the library meant to me a place where I could go and hang out with kindly folks who were non-judgemental and never graded me or asked socratic questions. I think all law school libraries feel that way to students, even when we have to ask them not to bring their coffee cups or soda cans in. In my law school, a full time employee can get tuition remission after working at the university more than 3 years, but may not work in the law school EXCEPT in the law library. We are a sanctuary.

When I started offering the faculty teas, the professors were so grateful. Over and over, I heard the phrase, a "civiilized break." The dean actually funds a whole lot of lunches and festivities. I just do one tea party. But I fix the stuff myself. And it's in the library. That carries a lot of freight. Mythic stuff. Tea in the library just seems more civilized.

It's not about books versus electronic. I think all that arguing we've been doing is really pretty much a red herring, actually. Out of the Jungle, indeed. I think we are at a cross-roads in thinking about ourselves as a profession, and have been for a generation. As more and more library schools try to position themselves to avoid the sweep of extinctions that winked so many out in the 1980s by restyling themselves "school of information science," the very idea of LIBRARY came to seem rather quaint. But I am a LIBRARIAN, doggone it.

I came to it slowly, I must admit. When I first graduated, I emphasized the LAW librarian. But now, I'm more comfortable wearing pink (sorry, guys), and more comfortable being a librarian, too.

So, say it loud and say it proud! Librariians Rule! Librarians are cool.

Shifting Away From Print, Strategically

Eileen Gifford Fenton and Roger C. Schonfeld have published a short but thoughtful discussion on "The Shift Away from Print" in today's Inside Higher Ed.

For most scholarly journals, the transition away from the print format and to an exclusive reliance on the electronic version seems all but inevitable, driven by user preferences for electronic journals and concerns about collecting the same information in two formats. But this shift away from print, in the absence of strategic planning by a higher proportion of libraries and publishers, may endanger the viability of certain journals and even the journal literature more broadly — while not even reducing costs in the ways that have long been assumed.

Although the opportunities before us are significant, a smooth transition away from print and to electronic versions of journals requires concerted action, most of it individually by libraries and publishers.

In reaching this conclusion, we rely largely on a series of studies, of both publishers and libraries, in which we examined some of the incentives for a transition and some of the opportunities and challenges that present themselves. Complete findings of our library study, on which we partnered with Don King and Ann Okerson, were published as The Nonsubscription Side of Periodicals. We also recently completed a study of the operations of 10 journal publishers, in conjunction with Mary Waltham, an independent publishing consultant.

Taken together, these studies suggest that an electronic-only environment would be more cost-effective than print-only for most journals, with cost savings for both libraries and publishers. But this systemwide perspective must also be balanced against a more textured examination of libraries and publishers....

Faced with resource constraints, librarians have been required to make hard choices, electing not to purchase the print version but only to license electronic access to many journals — a step more easily made in light of growing faculty acceptance of the electronic format. Consequently, especially in the sciences, but increasingly even in the humanities, library demand for print has begun to fall. As demand for print journals continues to decline and economies of scale of print collections are lost, there is likely to be a tipping point at which continued collecting of print no longer makes sense and libraries begin to rely only upon journals that are available electronically.

I have made the same point here on this blog and in articles with respect to publishers, but without having made the connection with the "tipping point" buzzword: at some point (probably sooner than later) the demand for most print publications in law will become so low that it will no longer be affordable for publishers to continue offering print--at which point the few remaining diehards in law firms and law faculties will have to suck it up and accept online.

Fenton and Schonfeld rightly point out that the issue of archiving digital collections that are licensed rather than purchased is crucial, but that does not make it a reason to drag our feet. On the contrary, this makes it more urgent for libraries and library organizations to address the problem in a serious way.

UPDATE 17:22: More comments here and here.