Clarification of Baylor Data

The Agoraphilia blog for June 27 offers some clarification of Baylor Law School's U.S. News & World Report reporting and ranking controversy, which I have previously discussed in Out of the Jungle. According to Agoraphilia, Baylor Associate Dean Leah Jackson now "offers credible proof that Baylor answered USN&WR's online questionnaire accurately. ... Jackson's account strongly suggests that USN&WR mistook a follow-up fax from Baylor as correction to that school's online form, rather than as the supplementary explanation that Baylor intended." It looks as if Baylor did nothing wrong, while U.S. News apparently dropped the ball. Neither Bell nor Jackson accuses the magazine of wrongdoing, but something clearly went wrong.

Bar Exam: The McKenzie Method

Bar Exam time! The dark at the end of the law school tunnel. The last big hurdle to becoming a lawyer. Nearly every state requires would-be lawyers to take its bar examination, and July is the month when most takers sit for the exams.

Just in time for that anxiety-inducing month, here is the McKenzie Method for taking (and passing!) the bar exam.


1. Start Early: The best information to predict success on the bar exam are your law school grades. This is especially true of the grades in your first year of law school, taking those foundation courses. Year after year, I hear students who have a lot of excuses about why their 1-L year was a bust. If you did poorly in 1-L, focus and push hard to improve your standing by 3-L (or 4-L in part-time programs). You should spend 8 hours a day studying for your classes, or approximately 2 hours of study for each hour of class time. No kidding. You are putting the money and time out for the schooling; make the most of your opportunity.

2. Take the Review Courses: Some schools (Suffolk included) offer extra Bar Review courses and bar preparation lectures to their students. Take advantage of everything your school offers. You should consider paying for the commercial bar prep courses as well. Ask to find out their pass rates before you shell out the money – many states have more than one bar prep company, and they vary in quality and success rates. Ask fellow students who may have done the review already if they thought it was good.

3. Take your Review time seriously: Put in about 8 hours every week day to study and review. Add 4 hours for each weekend day, or if you are working, plan for a 40 hour week of study minimum. Schedule your study time and keep to your schedule. Focus on bar review entirely during the study hours you set up. You might find it helps to study somewhere other than your home law school library. If you find yourself spending too much time chatting with fellow-sufferers, find somewhere else to study.

4. Pace yourself: Once you have done your study time, close the books and do something fun and relaxing. I really believe that some students who fail the bar exam do so because of exam anxiety and over-preparation. They get so wound up about the exam that they just choke when the big day arrives. Spend time away from other law students preparing for the bar. Watch movies, play games, run, swim, have a drink with a relaxing friend. Don't talk BAR!

5. Chill. The bar exam is not the end of the world. There is life afterward, even if you flunk it. If you don't pass the first time, don't despair. Records show that many excellent and influential lawyers didn't pass on their first attempt. Try again; again, records show that second and third time takers often pass after failing the first attept. Some people take the exam more times, even, and eventually pass.


The entertaining cartoon of the Salad Bar Exam is by Simeon Liebman for the Londons Times at www.londonstimes.us/toons/cartoons/Simeon_SaladbarExam4.jpg. See http://www.londonstimes.us/toons/Liebman.htm for a directory. He also has Attorney at Claw.

Check This Out! Episode 033: UB School of Informatics

Over at my podcast, Check This Out!:
Episode 033: Buffalo School of Informatics to be dissolved
Thursday, June 29, 2006
Playing time: 1:36:47

On Friday, June 16, the University at Buffalo announced that the School of Informatics, consisting of the Departments of Library and Information Studies and Communication, and the interdisciplinary program in Informatics, will be dissolved. The Department of Library and Information Studies will move to the Graduate School of Education, while the Deparment of Communication will be part of the College of Arts and Sciences. In this episode I invite the students in the School of Informatics to voice their concerns and ask their questions."

DennisKennedy.blog: Lawyers Continue to Move Toward the "Papermore" Office?

Read this carefully and ask yourself: should we really be swayed by lawyers' attachment to paper, or should we recognize that the fetishization of paper is foolish and unsustainable?

Lawyers Continue to Move Toward the "Papermore" Office?

At least ten years ago, Nicholas Negroponte was talking about the move from a world of atoms (stuff) to a world of bits (data or electrons). In the world of electronic discovery, speakers constantly refer to a study that suggests that 93% of documents created today will never be printed on paper. You see concern everywhere about the amount of trees being cut down to produce paper.

On the other hand, lawyers love their paper. In that context, it was a little sad to run across this item on the ABA's Site-Tation that says, well, just let me quote this:

According to the 2006 Legal Technology Survey Report, 61% of attorneys save email related to a case or client matter by printing out a hard copy.

As John McEnroe might say, "you cannot be serious." Actually, it's probably a good thing that we didn't find the percentage of lawyers who later scan those printouts of emails as TIFFs to reconvert them to digital form.

In fairness, the ABA's Legal Technology Survey is decidedly not a scientific survey and these results should not be taken as pure fact. However . . . lawyers do seem to be swimming against the side.

Given that experts like Ross Kodner have been talking about the "Paper LESS" office to large audiences for many years, these numbers are a little distressing. It looks like Ross and others have more work to do to get the message across. This isn't even a step toward a paperless office - it's a move toward a "papermore" office.

When people outside the legal profession ask me, as they routinely do, why lawyers are not moving into electronic discovery, this story and statistic may be "Exhibit A" in my answer. If you are looking to hire a lawyer for a litigation matter that requires electronic discovery, asking whether they use this approach might be an eye-opener.

By the way, one of the major lessons from the Katrina and Rita disasters was the vulnerability of paper records in disasters.

Why do many think that lawyers are slow adopters of technology? Now you have an idea.

This item did give me an idea for a potential killer app for lawyers - a portable printer for Blackberries. Think about it.

Cooking the Data at Baylor Law School?

Here's a troubling story about Baylor Law School and the U.S. News and World Report law school rankings. "A researcher with the magazine says that officials with Baylor University School of Law have repeatedly submitted misleading answers to the magazine's questions involving LSAT scores and grade-point averages of first-year students. Baylor officials, meanwhile, insist they've done nothing wrong." The first person to notice discrepancies in Baylor's responses was Professor Tom W. Bell of Chapman University School of Law, who wrote about them in his blog Agoraphilia. Bell "noted on his blog...that Baylor performed remarkably better in the 2007...rankings than he expected, based on a model he created using data that schools report directly to the American Bar Association." Bell deduced that U.S. News ranked Baylor not "on the medican LSAT and GPA scores of the school's entire first year class, but rather solely [on] the first year law students it admitted in the fall." It turns out that Baylor allows relatively weaker students to enroll in the spring or summer instead of in the fall. Baylor states it has done nothing wrong, saying that the "online forms do not allow for proper clarification on the Internet for schools that operate on a calendar system like that of Baylor." Robert J. Morse, director of data research at U.S. News says that the magazine should not have accepted Baylor's numbers, and that schools with a schedule like Baylor's have been told how to submit their data correctly.

On the Restatement of Laws

From new PrawfsBlawg contributor Orly Lobel:

The most fundamental questions concern the goals and authority of restating a particular field of law.... These questions relate to yet another important debate: who is the primary consumer for which a restatement is privately codified, through the vote by the thousands of distinguished members of the ALI? (at the panel, one participant suggested that the primary consumer of a restatement is the “feeble minded, weak and fearful state judge”)

Quote of the Day (from Crime & Federalism)

American freedom dodged a bullet yesterday.

Close Call in the Senate
...
But the flag amendment is the American equivalent of jihad. Take something sublime and beautiful and make it a concrete expression of something small. Islam's message of submission becomes a call to bloodlust; the American commitment to freedom of expression becomes the freedom merely to conform....

NESLReference: ABA antitrust consent decree violations

From NESLReference:

ABA antitrust consent decree violations

The Department of Justice petitioned the U.S. District Court for the District of Columbia to hold the American Bar Association in civil contempt for violations of a 1996 consent decree related to their accreditation procedures for law schools. DOJ press release here.

The ABA has stipulated to the violations and agreed to pay a fine of $185,000.

One of the six violations listed in the press release was the ABA's failure to 'provide proposed changes to accreditation standards to the United States for review before such changes are acted on by the ABA's Council of the section of Legal Education and Admissions to the Bar'.

An earlier NESL blogpost on proposed revised ABA accreditation standards is here. Update: The American Association of Collegiate Registrars and Admissions Officers has this related June 22, 2006 article: Diversity standards and 'social justice': law schools and teacher education accrediting organizations are in the crosshairs. It is not clear whether it is these current proposed revisions that the ABA neglected to provide to the United States for prior review or earlier ones during the period 1996-present.

Meditation on Life

Today is my 52nd birthday -- Happy birthday, McKenz! So I thought I would try a meditation on life itself. I can always argue that this is very relevant to law and libraries, because if there were no life, there would be no law, nor any libraries. On this day, 52 years ago, I was born. What has that meant for me and for the world?

I was born into a web of life, on a planet that has achieved consciousness because of the life forms present there. So far, we know of no other planet that hosts life (though we suspect there must be others somewhere). We humans co-exist with myriad other species, from microbes, to fungi to plants, to all types of animals. We depend on the intricate inter-relationships of these creatures to produce our food, oxygen, and clean up the detritus of living.

Now, in my 52nd year, it is very obvious to me that the over-growth of human populations (and our effluvia) is threatening the balance of life on our planet. Our government in the United States is unwilling to take the bold steps to curb pollution, war and destruction of the planet here. I am very sorry about that because I believe that our children and grandchildren will inherit increasingly disastrous problems because of our unwillingness to act now. But, I have hope that we will not completely destroy the web of life, even if we destroy our civilization and human life.

Aside from the rather grim global view, I hope that I will leave the world a better place for my having passed through here. I cannot claim any great inventions or scientific or medical advances. But I try to leave every place I have been a little better than I found it. Every house I have owned, I have worked to create a hospitable and pleasant garden that supports local wildlife. I have been able to register each of my 3 yards as National Wildlife Backyard Habitats. That has been a great pleasure as I learn about the native plants and animals in my locality.

I have tried to make each house more energy efficient, more pleasant, and better maintained when I sell it. I have tried to leave each neighborhood in better condition than I found it, with neighbors who know each other and support each other. I have to say this has been a huge learning curve. I have gotten better at this with each move I make. I was not raised in a neighborhood where people really talked with each other or knew much about each other. So this was something to learn about.

I am trying to make my professional groups a bit better as I move through my career. I push to be the best I can be at my job, and to keep learning to stay current. I try to mentor and help others, and to think deeply and originally about our issues. I have been so lucky to have found my profession as a law librarian. I try to let students know about this terrific field, and to encourage them to consider it as a career.

And I am trying to raise children (2, Zero Population Growth -- nobody talks about this any more!) who think of the community and world as much as they think of themselves. I believe we are here for a higher cause than amassing wealth and competing for power. This does not mean I cannot strive for a decent wage, housing, food and education. These things should be available to all. But I do not think it right to put my interest in improving my lot way ahead of improving the neighborhood, city, state and world in which I live. When 10% of the population has 80% of the wealth, that means there is only 20% left of the pie to be shared among the other 90% of people.

I am unhappy that so many people in my country and even my church are pre-judged on the color of their skin, their ethnicity, religion, education, gender or sexual preferences. I find my own prejudices difficult to root out, and hope that I might one day overcome them.

My goal has been that, when I die, I should be able to look back over my life with pleasure and pride that I have lived out my values. I already have regrets, where I feel I failed or fell short. But when I make decisions, that is my measuring stick. Being more than half through my expected life, it is worth considering my values, goals and how I measure up.

This beautiful illustration of the Tree of Life is from a very interesting website, http://tolweb.org/tree/. This seems to be a collaborative project putting up information on biology, with excellent bibliographies, images and in-depth information. The image is their browsing tool. An interesting way to navigate and categorize their information.

Digerati: The Social Life of E-Books and their Reader/Writers

In the May 15, 2006 issue of Library Journal, Andrew Richard Albanese publishes an interview with Ben Vershbow of the Institute for the Future of the Book (Blog link). The interview was triggered by a series of blog entries that Vershbow posted there as "The Book is Reading You." If you visit, you will see lots of interesting posts more recently, too. The interesting part of the interview to me, was the discussion of the possibility of e-books incorporating readers' comments, reviews and marginal notes. This is reality now for e-books, not just blog entries, with the evolution of library automated systems to support such things. They are rather like Amazon.com's lists mania function to group similar books by reader's thinking, and the Amazon review function. But now, with Innovative Interfaces and some other automation systems, you can add such things (along with book jackets) to your online public access catalog. Take a look at PennTags Link. You can also have e-books on the web that incorporate such features (see GAM3R 7H3ORY link).

See also KairosNews, a blog for Discussing Rhetoric, Technology and Pedagogy, as they describe themselves. link.

But these guys have such a strong bias toward digitization, that they sometimes come off as positively hostile to print, which they call "dead tree media." They were disturbed by Jared Lanier's interesting essay on edge.com, "Digital Maoism, The Hazards of the New Online Collectivism link. The point of Lanier's essay is that co-operative works like Wikipedia lose the authorial voice and selectivity and become the product of the collective mentality, which he distrusts. Lanier's problem is not the production of collaborative works, but the attitude that people exhibit toward them (and I think, all electronic media) that they have a magical wisdom. There is a fanaticism edging toward religiosity in the Wiki culture, that elevates the collective mentality above individual work. (see the wars over whether Jimbo Wales, god-king adminstrator of Wikipedia, engaged in censorship by removing legally objectionable articles from the encyclopedia with no tracks of changes link and Wikipedia Link).

These are interesting people to read, though I am not sure I agree with either point of view. I stumbled across this group of voices, and find that there is an entire blogospere sector I was not aware of.

Connie Crosby on the benefits of blogging

Connie Crosby's column "The Tao of Law Librarianship - The Truth About Blogging" in the latest LLRX.com is a great analysis of the benefits of blogging. Some choice excerpts:

You may not realize how insanely fast and easy setting up a blog can be. Using Blogger, and allowing them to host my blog at Blog*spot, I literally had my first blog set up in about fifteen minutes. And it was free with this particular provider. Thus, an obsession was born. A five minute post here, a ten minute rant there, add a feature or two on the public face of my blog, and soon I had a small body of writings that seemed like something almost substantial. I played with different styles or looks to the blog (many pre-developed styles are available), and learned to tweak the underlying HTML code to have fonts and colours looking the way I wanted. What a fast way to get my own opinions out without going through others’ editing and editorial policies. True digital democratization in action!
The next step was to tell others about it. I sent messages to two email lists inviting colleagues to read what I had posted. I had long been a prolific contributor to email lists, and could see how the blog would become my new outlet for professional news and opinions that might not be of interest to everyone on the lists. I also found some blog search engines and submitted mine to the mix....
We often hear “to be seen as an expert, write a blog,” but how quickly this medium opens doors has really been a great surprise to many. It is not unusual for those blogging about professional issues to be invited to write articles, speak at conferences, and to take part in a range of collaborative projects. I frequently compare notes with fellow bloggers, and have found many have been approached to expand on the perceived expertise demonstrated in their blogs.
My own blogging has led to guest blogging on others’ blogs, regular participation in collaborative blogs, increasingly prestigious speaking opportunities, invitations to teach, requests to have blog posts republished as newsletter articles, and invitations to contribute articles to newsletter type publications. One opportunity often leads to another, and it is quite breathtaking to answer that door when opportunity is knocking. In two short years I have gone from being known by a few in my local community to having some recognition across this continent and in other countries. Not everyone has been this fortunate, but I have come across others with similar stories.
Probably the best thing about blogging, however, is the community. I really had no idea a community existed until I actually experienced it....
The world of blogging, therefore, has very much the feel of the World Wide Web when it first came into existence. There is a sense that we have found something others have yet to discover, and that we are quickly making the globe a smaller place. While we do want others to experience the same thing, in other ways we don’t want the community to become over-populated, over-commoditized and over-commercialized. But give me a business proposition that allows me to remain true to my voice and my community, which gives me some remuneration for all this work, and I will probably at least entertain the idea.

There are a fair number of law libraries that have started blogs (like this one at the University at Buffalo), and I subscribe to most of them in Bloglines for news items, but the real value of blogs to me is the personal voice of bloggers like Connie, Steve Matthews, Rich Leiter, and a handful of others. I would love to see more law librarians willing to step forward and put their voice out their, outside of the impersonal, institutional blogs like our own ublaw phoenix. The institutional blogs are useful, but their usefulness is necessarily limited to a local audience, and few are compelling enough to encourage faculty, students, and attorneys to subscribe and actually read them. Law librarians are fascinating, creative people, and there are many of you I would love to hear!

So Joss, why do you create all these strong women characters?

Listen: Joss Whedon (of Buffy and Firefly fame) and his Equality Now speech.

Teaching - what makes a great teacher?

My university put on a series of programs this year designed to get faculty thinking about what makes a great teacher. Some aspects change, of course, depending on the field of study, but it was quite thought-provoking and eye-opening to see how much applied regardless of topic. I was most impressed by, from all the list of attributes and great ideas, the thought that great teachers reach students by offering themselves.

Thinking about the handful of best teachers I ever had, I think this is what set them each apart. I had many teachers who were creative, or organized, presented clearly and challenged students. But the very best teachers, the ones whose teaching live in my memory after decades, were the people who were most themselves with the class. They did not just offer "war stories." They offered their thoughts, their observations and wisdom along with the subject matter they taught.

It actually takes a great deal of courage to offer your own self to your students. What if they laugh? What if they are indifferent? How devastating! It is an act of ultimate trust and generosity.

I began veering more that direction after I received tenure. I think that vote of confidence in me as a colleague gave me the courage to offer myself more openly to my students. I have been pleasantly surprised at the students' response. At least most of them recognize the generosity of the offer and take the gift in the spirit I offer it. It may make it easier for me that so many of my students are older than the typical college to law school age group. That added maturity gives me more confidence in making this offer.

I dance a tightrope each semester -- how much to reveal, how much to confide, how much actually enhances the class, and when it becomes too much and steps over the correct teacher-student boundary. I am slowly changing how I teach, and finding my way. I benefit each time I observe others teaching, too. What I see over and over, the best teachers teach from their own identity, and offer the student the gift of themselves.

I added this e-card from z.about.com/d/alcoholism/1/0/t/1/photoshells.jpg. Listen to your heart, seemed like a good message to end with.

Affirmative Action

Today's edition of Inside Higher Ed features an article by Scott Jaschik entitled "New Arguments on Affirmative Action." Jaschik highlights "another round of intellectual debate...brewing in law reviews." The first article, published in the Michigan Journal of Race & Law , discusses affirmative action in college admissions, and concludes that affirmative action isn't hurting Asian-American applicants, but that what the author calls "negative action," i.e., discrimination, is limiting the enrollment of Asian-American students; these students are being held to higher standards than other students, which, according to the author, William C. Kidder, "is the equivalent of losing 50 points on the SAT." Kidder found this to be true at the law schools he studied as well as on the college level.

The second article will appear in the North Carolina Law Review and is written by UCLA law professor Richard Sander, who previously wrote about affirmative action in 2004 in the Stanford Law Review. The new article is not yet available online or in hardcopy, but according to Jaschik, it "examines the attrition of black lawyers from top law firms and links their departures to their poor grades in law school, which in turn the author has previously attributed to the use of affirmative action to admit minority law students who, on average, can't compete at the same level with their white colleagues." Stuart Taylor, Jr. wrote about Sander's article on Monday in the National Journal, and concluded that hiring preferences for minority lawyers have been "at best a mixed blessing--and...often a curse--for their recipients." Jaschik reports that the issue of the North Carolina Law Review that publishes Sander's sure-to-be controversial piece will also publish a "strongly worded rebuttal" by Duke law professors James E. Coleman, Jr. and Mitu Gulati, who find fault with Sander's evidence and conclusions. However, they also are concerned about the article's impact, because Sander's writings are "'taken seriously' outside law schools" and will "damage young black professionals as it will reinforce stereotypes about their abilities, they write." Both the Sander article and the Coleman/Gulati rebuttal sound like must reading for anyone concerned about the future of legal education and the legal profession.

"Done" Scotus: On using unpublished opinions

"Scotus decisions" are a new concern of law librarians. It refers to the new rule that will become part of the Federal Rules of Appellate Procedure, (affecting unpublished federal court opinions prospectively only, from January 1, 2007 onward). I had an experience as a young law librarian that changed my point of view on the matter of unpublished opinions. When I was relatively new to the field, I was asked to show off Westlaw and Lexis searching to a visiting justice from Ireland's high court. This was the 1980's and it seemed very glitzy and high-tech still to have such search capabilities. But the justice was not impressed; he was instead, appalled. He noticed that a good number of the decisions I pulled up with my searching were unpublished, and also the sheer number of results. He much preferred, he said, to rely on the selected decisions published in Anglo-Irish law. That way, you relied on only the best and soundest reasoning. This was the way American law decisions were published until West began to build its National Reporter system.

I understand the desire to be able to find any opinion that will support the result you are arguing for. I, too, practiced law, and had cases that cried out for use of unpublished opinions. But maybe there is a reason you should not have published those opinions in the first place. Maybe the decision was just in this narrow situation, or perhaps the reasoning relied on was poor or badly written. I suspect the biggest effect of the change in citation rules will be that federal judges will have to take more hand in writing opinions, overseeing the work of their clerks, and thinking of posterity with every written order they produce.


The change is causing all sort of uproar in the law library community.

For one thing. Lexis-Nexis has sent the letter noted in this blog link, telling firm subscribers that they will now offer all-circuits unpublished opinions in a separate database, that must be paid separately. Previous to this, subscribers to the combined federal database, or any single circuit or court, could access many of that jurisdictions' unpublished opinions in that database. These were gathered somewhat haphazardly, and I suppose the new database will gather all written orders from all federal courts. Academic librarians are bracing for changes to our subscriptions, too, we fear.

We are also concerned that the rule change will affect the need to locate unpublished decisions from before 1/1/07. Librarians wonder: How to locate unpublished decisions, (and what amounts to a "publicly available database," mentioned in the rule change)? An excellent treatment of finding unpublished decisions is located, by the way, in Where the Law is: An Introduction to Advanced Legal Research by J.D.S. Armstrong and Christopher Knott (Thomson West Casebook Series), 1st edition. Very helpful.

I have long been troubled by the uneven rules among circuits governing the use of unpublished decisions. It made a very irregular and unjust usage. Depending on where you lived, the precedent applicable would vary. Even worse, many courts in circuits which had rules prohibiting citation of unpublished decisions regularly used them for precedent in their own decisions. It made the principles underlying stare decisis unworkable. You should be able to know ahead of time what law will apply to the case you are researching. Use of unpublished opinions in some decisions and not in others, also raised the decision-making of courts to a level of secrecy and unpredictability that may have abridged constitutionality.

But I am also troubled by the new rule. I was taken with the quote attributed to ninth circuit judge Alex Kozinski, who said unpublished opinions were so designated for a reason: They are drafted "entirely" by law clerks and staff attorneys. He added, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."

A nice summary of the events from Tony Mauro of the Legal Times also at law.com (though you have to register at law.com, it's free; this is a link with no registration required, to a Lancaster, PA newspaper site link:

Under the new rule, circuits will still be able to give varying precedential weight to unpublished opinions, but they can no longer keep lawyers from citing them -- in the same way lawyers cite rulings from other circuits or other authorities, such as law review articles.

"This change will facilitate lawyers' representation of their clients, and it will facilitate the courts' informed decision of future cases," said Mark Levy of Kilpatrick Stockton, a member of an advisory committee that recommended the change. "It will also bring national uniformity to the process."

At one point in the debate, 9th Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted "entirely" by law clerks and staff attorneys. He added, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."

The committee Kozinski was referring to, the Advisory Committee on the Federal Rules of Appellate Procedure, was chaired at the time by then-3rd Circuit Judge Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John Roberts Jr. Both supported the change while on the committee, and now that both serve on the Supreme Court, Wednesday's vote may have been unsurprising. There was no indication in the Court's order whether any justices dissented or did not participate.

The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The high court adopted that amendment in the rule change it promulgated Wednesday.

Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges. Though the propriety of an essentially secret judicial process has been debated for years, the catalyst for change came in 2000, when the late 8th Circuit Judge Richard Arnold ruled in a routine case that stripping unpublished opinions of precedential value was unconstitutional because it gave judges a power not authorized by Article III of the Constitution.

Amendment filed by Chief Justice John Roberts, Jr. to the Federal Rules of Appellate Procedure, new Rule 32.1:

A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgements or other written dispositions that have been:

i) designated as "unpublished," "not for publication," "non-precedential," "not for precedent," or the like; and

ii) issued on or after January 1, 2007.

A nice report from the Scotusblog.com folks on Posner's book review in The New Republic online that actually reviews the Supremes' use of law clerks to draft opinions, and requiring secrecy surrounding the Court's deliberations. Making sausage, indeed: link.


My title above is a terrible pun on the venerable Scottish theologian of the late Middle Ages, John Duns Scotus. I therefore decorated this essay with an image of that Scot, from a Franciscan website in Netherland, www.ofmconv.nl/pics/albsco/Scot03.jpg

How are you spending your summer vacation?

If you're Junichi Semitsu, a member of the Lawyering Skills faculty at University of San Diego School of Law, you're spending it as "embedded blogger" for the Dixie Chicks.

Supreme Court set to hear 2 Challenges to the Federal Partial Birth Abortion Act this October

Court watchers were galvanized by the news this afternoon that the Supreme Court would expand its review of the first nationwide ban on abortion, the Partial Birth Abortion Ban Act of 2003. The law, though passed by Congress and signed by President Bush, has not ever taken effect yet, due to the court challenges to its constitutionality.

The justices had in February agreed to rule on a Nebraska case on whether the Partial-Birth Abortion Ban Act of 2003 is unconstitutional because it lacks an exception to protect the health of a pregnant woman.

The California case involved additional issues on whether the law imposed an undue burden on a woman's right to seek an abortion and whether it is unconstitutionally vague. A U.S. appeals court declared the law unconstitutional and upheld an injunction barring its enforcement.

Both cases will be decided in the upcoming term that begins in October. The law represents the first nationwide ban on an abortion procedure since the Supreme Court's landmark 1973 Roe V. Wade ruling that women have a constitutional right to abortion.

The two decisions will tell the nation a good deal about the Court's newest appointees' attitudes toward abortion rights.


See NARAL Pro-Choice America, link
Has an article on the organization's concerns over the Court's decision to take these two cases. They include the styles of the cases and which federal circuits they were decided in before being taken up to the high court:

Three federal courts held trials to consider the constitutionality of the Federal Abortion Ban; each declared the ban unconstitutional and permanently enjoined the government from enforcing it. The Bush administration appealed all three cases to their respective U.S. Circuit Courts of Appeals. In July, the Eighth Circuit upheld the decision issued by the district court in Nebraska; then in February, the Second Circuit and the Ninth Circuit upheld the decisions of their respective district courts. The U. S. Supreme Court has already agreed to review President Bush's appeal of the Eighth Circuit decision, Carhart v. Gonzales; this ninth circuit case of Planned Parenthood v. Gonzales will be joined with the Carhart case.

American Center for Law and Justice link
A right-wing Christian organization opposed to abortion. Includes a helpful link to their amicus brief Brief Link I had trouble loading it, but we can hope this link will work in future. A second news link on the site specifies that this brief isin the Gonzales v. Carhart case from Nebraska, docket number 05-380.

Gonzales v. Carhart decision from the 8th circuit Court of Appeals, with cite link, courtesy of:

Center for Reproductive Rights link. Includes links for lots of the testimony in Carhart, briefing papers, timeline of the challenges to the Act and links to related cases. Also links for French and Spanish language versions. Helpful research site.

SaveRoe, a website of the Planned Parenthood organization link. A news link website. See also, Planned Parenthood press link. Just now, their website is not current enough to explain anything since 2005. They seem to be in the midst of a website redesign. Here is a link for their "Factsheet" in the case link, and has a link to the 9th Circuit decision Decision Link. And a link for their newer media/press release site link.

A group website, FederalAbortionBan.org, link ACLU, Planned Parenthood, National Abortion Federation, and Center for Reproductive Rights. An excellent site with lots of research material. Information on the various groups that are litigating, a legislative history of the Act, among other helpful things.

Law Firm Competitive Intelligence -- is it different from KM?

The Boston Globe today has a fairly in-depth article on law firms. Sacha Pfeiffer reports that firms are beginning to gather information on other firms and their clients, in order to compete for business:

For lawyers, that analysis might mean understanding how an upcoming merger of law firms could change the competitive landscape, how an anticipated regulatory change could affect business, when a practice area is ripe for expansion, or whether the arrival of a national law firm poses a threat. Without that knowledge, a law firm could overlook a promising opportunity to merge or lose a lucrative client to a rival firm.

These are tactical considerations that sound basic to many business people and perhaps even obvious. But some law firms have been known to make strategic decisions based on little more than intuition, gut instinct, or such ill-considered factors as opening a new office based on the desire of a single client, expanding overseas because a rival has done so, or allowing a bigger-is-better mentality to drive a decision to merge.

I have linked the Globe article in the title above. Evidently Fuld & Co., of Cambridge, MA, are offering seminars to local firms about how to compete in a more corporate manner. I'm confused, though; isn't this just an application of what firm librarians have been offering for a decade or so, under the name "Knowledge Management?" KM has been a buzzword in libraries for quite a while, so I am not clear on what Fuld & Co. offer to the firms beyond a new name...

I would love to hear comments from lawyers or firm librarians on this topic. Has your firm investigated this new "Competitive Intelligence?" Is it new and different from the KM librarians have been offering for years? How?

New Legal Realism at ELS BLog

All this week, guest bloggers Elizabeth Mertz, Stewart Macaulay, and Robert Nelson will be in residence at Empirical Legal Studies Blog.

But now there’s a New Legal Realism, and we want to help start things off right, lest it too become wrongly associated with one of the big three meals of the day. According to the New Legal Realism website, the basic idea “is to develop rigorous, genuinely interdisciplinary approaches to the empirical study of law.”

Librarians, Co-Dependent Profession? LICKS

Do you find yourself trying to solve your friends' every problem? Do complete strangers approach you in museums, stores and public transit to ask you questions -- Like you work there? Perhaps you are a librarian, actual or in potentia.

Yes, experts now have proof that librarians have a compulsive need to help others. Investigators at the prestigious Milliwether Institute of Professions (MIP) have been working for decades to tease out the most important characteristics of each profession. For librarians, it seems to be HELPFULNESS, closely followed by a NEED TO ORGANIZE.

While this is all very well and good for the patrons, librarians can suffer from an over-dose of this characteristic. For instance, Mr. X (all names changed to protect privacy), can no longer go to the grocery store. He goes in at the produce section, and immediately loses himself in sorting lettuces and straightening the rows of vegetables, re-piling fruit in order of size, etc. While he is thus engaged, shoppers regularly ask him for directions and information -- where is spaghetti sauce? Do you carry Havana Peppers? Poor Mr. X feels he MUST try to answer the questions, and will take the patron (er, sorry) -- the shopper to the correct aisle. As a result, Mr. X never gets his own shopping done. His wife refuses now to let him shop, either alone or with her.

Ms. Y, a reference librarian for 15 years, is regularly approached on the subway and street by tourists asking how to find landmarks in her city. She has taken to copying and carrying with her the sort of city maps handed out at hotels. Ms. Y will use a pen or highlighter to show the questionner how to get to their destination. Ms. Y has been chronically late to work as a result of these questions, and now must leave for work 2 hours before her scheduled time.

Miss Z is a cataloger. She finds she can no longer go to book stores, or even music stores. She has a compulsive need to re-organized the stock on the shelves by call number order. This, of course, upsets the staff in the stores no end. She has narrowly avoided being mistakenly arrested as a shoplifter several times. Even visiting other libraries is beginning to cause Miss Z problems. She has fallen into a fugue state, and wakened to find herself, pen in hand, correcting and amending call numbers on the spines of books. Gardens are beginning to be a problem as well. Miss Z states that she itches to rearrange the plantings into alphabetical order, or some better order than the haphazardly aesthetic organization she finds.

And Mr. and Ms. A-W, dozens of librarians, find themselves in classic co-dependent relationships with their patrons. Attorneys who left the research until the last minute, students who don't really want to do their own worksheets, all can depend on walking into their library and finding Mr. or Ms. A-W to pick up their crisis, carry their homework to a conclusion, and generally rescue them from their fecklessness.

If you see yourself in the descriptions above, consider seeking professional help. Librarians In Co-dependent Knowledge Systems (LICKS) has been founded by caring colleagues who found themselves eaten alive by their work. They have developed a 12-step program for breaking this cycle of co-dependency. If you think you or a loved one may be a co-dependent librarian or librarian in potentia, call 1-800-LIB-LICK today! Don't let your profession define your life!

Unpublished Opinions

Linda Ryan just forwarded the following message to the Law Library Directors listserv. As the author of the message, Becky Wentz, points out, the timing of Lexis's action is more than coincidental--LexisNexis announced this change AFTER the Supreme Court's decision to permit the citation of unpublished opinions. Will Westlaw follow suit? Will access to unpublished opinions for LexisNexis academic subscribers be affected? Will disaggregation of databases become the norm? This is why it is so dangerous to make long-term collection development decisions based on what LexisNexis and Westlaw currently make available to their law school subscribers.

"Re: Lexis Unpublished Opinion Charges

Dear Fellow Librarians:

In May Lexis sent out a letter regarding a new database which will contain ALL unpublished decisions from April 16, 2005 forward. Lexis states that the charge for using this database will be the transaction charge plus $30 unless you subscribe to the Combined Federal and State Case database. In that case the charge will be $30.
In the past, unpublished opinions were part of the Combined Federal and State Case database. There was no extra charge attached to their use.
Now Lexis is charging extra for providing unpublished opinions that were included as part of the basic Federal/State Case database in the past.
Lexis says this is due to the large volume of cases now being released in electronic format by the courts.
The timing of this move is questionable & troubling. The U.S. Supreme Court has adopted rules that will allow citation to unpublished opinions in starting 2007. Attorneys will be forced to use this database and incur the charge in order to give their clients competent representation.
I am asking for your support in advising Lexis of our opposition to such a change. Please write to your Lexis Representative protesting this move to charge extra for what was formerly part of a basic service.

Very truly yours,


BECKY WENTZ
Librarian
LUKINS & ANNIS, P.S.
Attorneys At Law"

Happy Flag Day - June 14

I never knew why June 14 is Flag Day. On June 14, 1777, the Continental Congress adopted the flag design: 13 stripes for the 13 original colonies and 13 stars in a new constellation on a blue field in the upper left quadrant. Betsy Ross is credited with sewing the first American flag, in 1776. That evolved into the current stars and stripes.

Library of Congress Today in History 6/14/06 link
I love the Library of Congress Memory links. They include links to beautiful historic prints and photographs, journals of the Continental Congress, presidential proclamations associated with the day, images of letters, including one by a 10 year old child in Pennsylvania explaining why he would not salute the flag -- it was against his religion. This is where I got the beautiful print decorating this essay: Birth of Old Glory. Excellent site!

Betsy Ross Historylink
Nice time line and list of historical events, including statutes and judicial decisions relating to flag and pledge of allegiance issues.

U.S. Flag Day Org link
Has a nice history and lots and lots of flags, including battle flags and state flags in case you want those, too. A military orientation, with FAQs answering common questions.


I grew up during the time when Viet Nam War protesters burned the flag, as well as their draft cards. All my life, I have listened to the angry give and take of my fellow Americans on the topic of flag desecration and what it stands for. To me, one of the great things the American flag stands for is the right to dissent, to argue vigorously, even with our own government. There are not many countries where you can do that with any sort of impunity.

Apparently here, as in some times in the past, you can't do all that much protesting with complete impunity, but the government does not break down your door and haul you off to the gulag for marching and telling them to get the hell out of Iraq. At least not yet. It is a concept to cherish, and one to fight for.

That is what the American flag means to me.

The Shape of the Future

This is the shape of the future. The link above is to an AP news story about a meeting of the International Standards Organization (ISO) in Czechoslovakia, trying to hammer out an international agreement on a modification to the existing standard for encryption: IEEE 802.11. It unfortunately has some security holes, and the Institute of Electrical and Electronics Engineers, which developed the original standard, came up with IEE 802.11i, a modification to address the problem. IEEE is an international professional group, but is based in the U.S. The Chinese government backed a group of Chinese engineers, with military backgrounds, who came up with different protocols, called WAPI. The Chinese delegation has been pressing to have their new standard adopted instead of the existing one, and walked out during the opening of the 2 day session:

...escalated an already rancorous struggle by China to gain international acceptance for its homegrown encryption technology known as WAPI. It follows Chinese accusations that a U.S.-based standards body used underhanded tactics to prevent global approval of WAPI.

"In this extremely unfair atmosphere, it is meaningless for the Chinese delegation to continue attending the meeting," the Standardization Administration of China delegation said in a statement carried by the official Xinhua News Agency.

Go to the full article for more. What is interesting to me is that this struggle over the adoption of an encryption standard is a magic mirror showing us the shape of the world to come. We have lived in a NA/Eurocentric world for so long, it will be a shock to have new and powerful players at the table. China is already strong enough to shake this piece of the dog; it will not be long before it can wag much more.

We already know in the U.S. it's time to brush up your Spanish skills. Now we had better find time to learn Mandarin! Visit the excellent, and entertaining introduction to Chinese things, including spoken and written language at www.chinapage.com That is where this beautiful painting of Emperor Tai-Tsung, Tang Dynasty (626-649). Both the dragon motif and the yellow color are restricted to the royalty only.

The Future of Scholarly Publishing

Kate Wittenberg, director of EPIC, the Electronic Publishing Initiative at Columbia University, writes in the June 16 issue of the Chronicle of Higher Education that in order to succeed in the future, scholarly publishers will have to confront this reality: "Most students today arrive at college assuming that a Google search is the first choice for doing research, that MySpace is the model for creating online content and building peer communities, and--perhaps most important--that multitasking with various electronic devices, often from remote locations, is the traditional way to do class work." Wittenberg uses a term I have never heard before but that seems apt, "digital natives," to describe today's college-age students, and claims that if they "are the next audience for...scholarly resources, shouldn't we be thinking about new ways to organize, store, and deliver our content?" The article has all sorts of implications for libraries (for instance, does anyone besides librarians care about the catalog? how do we enable students to use their remote devices to access library content?), but also has implications for teachers. Wittenberg wonders whether scholarly publishers could ally with a social-networking environment such as MySpace and Facebook and "build a networking space focusing on the information needs of students." The site could be used to promote dialogue and cooperation among the students, discussion of class readings, and creation of multimedia class projects. Furthermore, "faculty members and librarians could create profiles of their own, with commentary on the subject under discussion, and users could decide how to integrate the content and tools we provide into the environment they create for themselves." An enhanced Blackboard or TWEN? Read the article here.

Money,Money, Money

I spent most of today at a grantwriting workshop sponsored by NELLCO. We sponsored this speaker on grantwriting with the idea that a lot of our members would be interested in learning more about this task. The surprising thing was that only a few librarians or affiliated folks came to the workshop. Lots of other people came: university and college people, firefighters, K-12 administrators, town administrators and people looking to change careers or upgrade their skills for the job market.

Here are several things I learned:

There is no such thing as free money;

Grant money doesn't bring more money into your organization, it brings more work.

That being so, why would you write a grant? You know you have some problem that needs work; you are writing the grant to help get the resources to solve the problem.

I am not going to post all the other things I learned; it's a good workshop and I'm only half-way through. And this is the company and speaker's intellectual property. But it did make me think about what a black pit of money-need libraries are these days. But one thing the trainer said about writing the grant was immediately applicable to writing a budget justification as well. Don't write about what you don't have; don't write about what you need to do. Write about the problem or the goal; then say what you are going to do to fix the problem or reach the goal; and lastly how you will know it's fixed or reached. Then say how their money is going to do that. How can they be part of this glorious future? shazam!

Electoral Fraud in 2004

Professor Robert F. Kennedy, Jr. of Pace Law School http://www.law.pace.edu/facbios/kennedy.html has published an article in the current issue of Rolling Stone on the widespread electoral fraud that occurred in the 2004 elections, particularly in the critical state of Ohio. Professor Kennedy has reviewed all the evidence, and concluded that "something deeply troubling had taken place in 2004." According to Professor Kennedy, the "president's party mounted a massive, coordinated campaign to subvert the will of the people in 2004. Across the country, Republican election officials and party stalwarts employed a wide range of illegal and unethical tactics to fix the election. A review of the available data reveals that in Ohio alone, at least 357,000 voters, the overwhelming majority of them Democratic, were prevented from casting ballots or did not have their votes counted in 2004--more than enough to shift the results of an election decided by 118,601 votes." Techniques used included purging tens of thousands of eligible voters from the rolls; neglecting to process registration cards generated by Democratic voter registration efforts; shortchanging Democratic precincts when allocating voting machines; and illegally derailing a recount. The man in charge of this wholesale fraud was Kenneth Blackwell, Ohio Secretary of State and co-chair of Bush's relection committee, and now Republican candidate for governor. Kennedy describes him as an "outspoken leader of Ohio's right-wing fundamentalists," opposed to "abortion even in cases of rape," and "chief cheerleader for the anti-gay-marriage amendment that Republicans employed to spark turnout in rural counties." As Rep. John Conyers has said, "Blackwell made Katherine Harris [Florida Secretary of State during the 2000 election] look like a cupcake."

This is one of the most alarming articles I have read in a long time; it is also extremely cogent and compelling, and should be read by anyone who cares about our democratic system of government. Fair and accurate elections are the cornerstone of any democracy, and they can no longer be taken for granted in the United States. Read the article here and then read Professor Kennedy's response to Farhad Manjoo's critique, and Manjoo's response at Salon.com.

What is LexisNexis looking for--and on whose behalf?

I'm very curious about the reports from Rich Leiter about LexisNexis monitoring of online searches. What exactly are they looking for?

I can think of three possibilities:

(1) They are monitoring for usage that falls outside of educational use authorized by the LexisNexis law school license agreement. If it's use of non-legal databases that arouses suspicions of unauthorized use, then they must be monitoring an awful lot of people, and LexisNexis is not very aware of of the kind of interdisciplinary research that goes on in law schools today. (I doubt this one.)

(2) Maybe they're monitoring usage of the New York Times database? Since the Times imposed their restrictions on access to much of their op-ed content last year, there have been a lot of complaints from readers. Is LexisNexis working with the New York Times to try to enforce the Times's access restrictions? (Possible.)

(3) Maybe it's the content of the searches that aroused suspicion? We already know about the NSA buying access to phone company records. We also know that Accurint (a subsidiary of LexisNexis) "sells business research services and information. It also sells services to collections agencies, etc." Is LexisNexis selling our search information to the NSA? Maybe if I started searching the New York Times on LexisNexis for information on Al Qaeda or Iran, I would be subject to LexisNexis monitoring too?

More on LexisNexis monitoring

A few days ago I posted an anonymous tip about LexisNexis monitoring of "suspicious" account usage.

Now the tipster (who has shedded his invisibility cloak to reveal himself as Richard Leiter) has more:

This is getting very interesting. The guy actually works for “Accurint,” a Lexis subsidiary, that sells business research services and information. It also sells services to collections agencies, etc. Apparently, they’re turning their resources inward and monitoring our account usage. When I talked to the guy, he said that he’d “flag this password for this kind of usage,” so that it wouldn’t be flagged again. Apparently they have an algorithm running somewhere that checks search habits....

For what it’s worth.

Should we be concerned? What about client confidentiality?

UPDATE: Richard has more at his blog, The Life of Books.