Real-life Law intersecting with Virtual Reality

C-Net earlier this month carried a story about the owner of a Second Life avatar demanding that YouTube and an Australian newspaper take down stories about a harrassment attack on her in Second Life.

Last month, Anshe Chung Studios demanded that YouTube delete the recording, citing the Digital Millenium Copyright Act, which generally requires Web sites to remove material that infringes on copyright laws. The controversy stemmed from video taken during an interview with Anshe Chung, the virtual world's biggest land owner, conducted by CNET News.com in its Second Life bureau last month.
(snip)
To Jason Schultz, an attorney with the Electronic Frontier Foundation, the issues surrounding the DMCA complaint are pretty cut and dried.

"Since the general theory (in Second Life) is that you own what you create, she completely owns the copyright in her avatar," said Schultz. "But that said, she absolutely has no rights under fair use to stop people from taking screenshots or screen captures of her avatar in Second Life."

Schultz also drew a comparison between this situation and a real-life hypothetical.

"The analogy I would draw is if there was a car accident in downtown New York," he said, "and the driver happened to be wearing an Armani suit, and there was a photographer who took photos and published them. That photographer couldn't be sued by Armani. News is news. And fair use gives news reporters and others the right to report what they see and hear, even if it includes your copyrighted work."

Of course, fair use doctrine, regardless of how well established it might be, has not been fully tested when it comes to a virtual world like Second Life. But to some observers, the issues surrounding the doctrine are the same, regardless of whether the medium is real life or a digital environment.

Ailin Graef {owner of the harassed avatar and largest landowner in Second Life} "can control tracts of land in Second Life all she wants," said Xeni Jardin, a co-editor of the tech culture blog Boing Boing, which published a story with an image on the griefing attack last month. "But she can't control the rest of the Internet where I and other journalists like to live and speak freely. And we intend to continue to do that."

In mid-month, the complaint was withdrawn and the people involved granted another interview to C-Net here. The real-life husband of the woman who owns the avatar regretted casting his initial complaints as copyright infringement under the DMCA, and now states that the images of the griefing attack were defamatory and particularly offensive since the avatar (and apparently the owner in real life, too) is oriental. The YouTube video replayed the harassment of the avatar during a live, but virtual interview of Anshe Chung, the avatar. The video was set to music and featured giant penises and posed the avatar hugging a penis. Apparently this was the aspect the complaint tried to reach. The husband and wife live in Germany, and state in this interview that they could find no form to complain with except the DMCA, but really were focused on what they have characterized as virtual rape:

...my impression at the time was that Corporate America may view Second Life and what happens there strictly as a matter of pixels and textures and I had given up hope that my original concerns that I had raised would ever be taken seriously. I tried to engage into a discussion, also with Boing Boing and The Sydney Morning Herald, based on the paradigm of Second Life being a place where people interact and things happen--an analogy to the real world. But I was ignored when raising the issue of personality rights in that space. I felt like people believed they can do whatever they want because, anyway, they just show pixels and avatars/cartoons in a game. YouTube has not given me feedback about what exactly were the terms of use they saw violated.

I am fascinated by the interplay between virtual reality and law in the real world. Here is a handy link to other C-Net stories about virtual reality's intersection with the real world: link. The stories range from Sweden opening an embassy in Second Life, to eBay auctions either banning or allowing sale of virtual world items to political figures and catalog sales groups opening virtual world presences.

Executive Order 13422

On January 18, 2007, President Bush issued Executive Order 13422 whose purpose is to give the "White House much greater control over the rules and policy statements that the government develops to protect public health, safety, the environment, civil rights and privacy." So states Robert Pear in a story, "Bush Directive Increases Sway on Regulation," in today's New York Times. The new policy will require "that each agency...have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president's priorities." Through the order, Bush is signalling that even though the Democrats took control of Congress, he still has ways to flex his muscles. As was to be expected, business groups cheered the order, hoping that it would reduce the "burden of federal regulations," and "[c]onsumer, labor and environmental groups denounced the executive order, saying it gave too much control to the White House and would hinder agencies' efforts to protect the public." Professor Peter L. Strauss of Columbia Law School believes the executive order "'achieves a major increase in White House control over domestic government.'"

Wikipedia in the Courts

A student pointed out this article in today's edition of the New York Times. Entitled "Courts Turn to Wikipedia, but Selectively," the article discusses the new phenomenon of judicial rulings that rely on the free Internet encyclopedia. According to the author, Noam Cohen, a "simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre--such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of 'beverage' that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term 'booty music' as played during a wet T-shirt contest." I was surprised to learn that over 100 rulings have cited Wikipedia from 2004 to date, and that that number includes thirteen decisions from circuit courts of appeal; the Supreme Court has not so far cited Wikipedia. Even more surprising to me was the opinion of Judge Richard Posner of the Seventh Circuit--he thinks that "Wikipedia is a terrific resource." He, however, does point out what I told my Advanced Legal Research students last week--"It wouldn't be right to use it in a critical issue." Professor Cass Sunstein also "loves Wikipedia," but doesn't "think it is yet time to cite it in judicial decisions," citing its lack of quality control. Professor Sunstein also fears that "'if judges use Wikipedia you might introduce opportunistic editing' to create articles that could influence the outcome of cases."

Continuing with authority issues

The SCCLL Newsletter kindly published in the winter 2007 issue a short essay by me. The theme is scientific research by judges -- how much background knowledge a judge is allowed to research when trying a case. The question was far more involved than I guessed when I first started preparing the essay. I look forward to your comments. The link is http://www.aallnet.org/sis/sccll/membership/newsletter.htm

Kafka is Alive and Well in Washington, D.C.

A story in today's New York Times describes the Bush Administration's latest attempt to keep the National Security Agency's domestic surveillance program in the shadows. According to the author, Adam Liptak, the "Bush administration has employed extraordinary secrecy in defending the...program from civil lawsuits. Plaintiffs and judges' clerks cannot see its secret filings. Judges [yes, judges] have to make appointments to review them and are not allowed to keep copies." Judges even have to use Justice Department computers to write their decisions. At last, some judges are starting to resist, expressing "uneasiness about the procedures" at a private meeting earlier this month. "Judges on the United States Court of Appeals for the Sixth Circuit asked how the procedures might affect the integrity of the files and the appellate records." In addition, some "legal scholars say the procedures threaten the separation of powers, the adversary system and the lawyer-client privilege." Why does the Bush Administration seem to fear the American legal system? Why does it not trust federal judges to exercise discretion and restraint when dealing with classified materials?

Advice to Young Librarians (and library school students)

I have two wonderful reference librarians speak each semester in my Advanced Legal Research class, on legal research in the real world. Part of their presentation covers such realistic advice as how to get plum assignments, find good mentors, and manage your time when two partners both think you should be devoting 60 hours/week to their own project. Because one was a firm librarian in a powerhouse DC firm, and the other was an associate in an international firm, they bring a lot of terrific insights to the presentation.

But it occurred to me that much of their advice could equally apply to new librarians, and to library school students as well. So, with a major tip of the hat to Susan Vaughn and Diane D'Angelo here at Suffolk, some tips for beginning your career as a librarian:

1. Getting Plum Assignments: If you hear about exciting projects going on in your organization, offer to help work on them. You must coordinate this through your supervisor in the library, but often, people will be pleased to find somebody looking for work. Once people know you are looking for work, they will often come to you with a task. You may find talents you never knew you possessed. I discovered that I was good at meetings, for instance, something I never suspected before becoming a librarian. Volunteering for a job is also a good way to ...

2. Find Good Mentors: There may be great opportunities to work with more experienced librarians, or fascinating people elsewhere in your organization. Look for chances to "ride shotgun" on the reference desk, and follow the experienced reference librarians as they select and show materials to answer a question. Spend some time learning from your catalogers and circulation folks if you work in a different part of the library. All the departments really rely on each other, and it's a good thing to understand more about the problems in every department.

If there are reorganizations or planning tasks, take the opportunity to share the work and learn the skill. Much of library work is not glamorous, but it is all important. Look beyond your own library by getting involved in library regional and national organizations. Librarians are very collegial and collaborative. There are always committees and taskforces looking for good workers. This is a great way to make contacts, even if you can't attend meetings far away. But if you attend, go! And take a pocket full of your business cards. Hand them out and take cards from the folks you meet. Don't be afraid to stick out your hand and introduce yourself. You'll be pleasantly surprised at how accessible librarians are at all levels.

3. Take Responsibility for More Advanced Tasks: If you aren't ready to fly solo yet, offer to assist with the job. It's a terrific way to learn more, and get to know your colleagues. Another plus is that you will get a good reputation as somebody who is willing to work.

Wikipedia Protest

According to Inside Higher Education, the Middlebury College history department has voted to "bar students from citing [Wikipedia] as a source in papers or other academic work. All faculty members will be telling students about the policy and explaining why material on Wikipedia--while convenient--may not be trustworthy." I think the real issue for college-level students--and certainly for graduate students--is whether they should be citing encyclopedias at all, even print or online sources of high quality, such as the Britannica. Yes, encyclopedias are useful for getting a quick introduction to a subject, but students should cite to primary sources and make use of more analytical secondary sources. This was the subject of a vigorous discussion in my Advanced Legal Research class this week, and a useful springboard to a discussion of the quality of research sources in general, and the quality of free Internet sources in particular.

Library Riff

I was looking at the January, 2007 issue of Information Outlook, from SLA. They have an intriguing article on "5 Ways to Improve Your Corporate Blogs." While I am an academic librarian, I thought, let's see what they have to say. You can get the free white paper from Price Waterhouse Coopers here It's interesting, even to non-corporate librarians.

What I really want to take off with, however, is one little statement from early in the report:

Building long-term customer relationships is the paramount goal of customer-centric businesses. The most powerful methods of building relationships and impacting customers are personal interaction, word of mouth and testimonials.

The white paper is focusing on how blogs achieve all three of those methods of building relationships with customers. They do, and library blogs are terrific. But those three methods are the heart of ALL library service and PR. Reference librarians at the interview and service points, build that personal interaction component. Acquisitions librarians and staff through their contacts both with vendors and within the parent institution, provide personal interaction. Circulation staff and ILL staff constantly provide personal interaction. The time an academic director spends with faculty as a colleague, builds personal interaction and cements relationships. My annual faculty tea party is personal interaction, bringing faculty into the library to meet my staff. And the library reputation builds and grows through word of mouth and testimonials. One faculty member who has a terrific experience with research assistance, or a speaker for class, or creating a web page or handout, tells others (the same works, alas, for bad experiences!).

See also, my post, Librarian Love Potion No. 9. The future of libraries, I firmly believe, is in SERVICE, SERVICE, and mythos. My faculty are my long-term customer base, and that is a huge focus. But we also serve the students, the alumni and the entire university community. For all of them, I want them to think of the library as a terrific service that makes all easy for them. We solve problems, we find things they didn't know they wanted. But a portion of what we do now and will continue as a vital function in the future is the mythos of the library.

The library as a state of mind, a mythic space of culture and scholarly endeavor, is possibly more important as we become more wireless, more virtual in other ways. People are hungry for the Library as an avatar of the long dialog that is civilization. You will see shelves of books used as a backdrop for ads and presentations for lawyers, for Presidential statements, and more. The books represent intellectual capital, history, philosophy, and the Law, with capital letters. I do believe we will continue to be important as bearers of that standard, as symbols of culture and thought. Libraries MEAN something important to our patrons, and even to those who never set foot in them. We have an important responsibility to our culture, and our future. Libraries Regnant!

New Library Blog search engine: LISZEN

A cool new library-focused Blog search engine: LISZEN (link in title, above). There's also a blog associated with the engine, Library Zen, "Small Ideas for the Library World," by LIS student and employee, Garrett Hungerford. OOTJ is already listed on the alphabetical list of library & info science blogs. Yay!

ADA Accommodations for the Bar Exam --

The Portland Press-Telegram reports that two learning disabled law graduates are suing the Maine Bar Examiners to require they give accommodations when they take the bar.

Bruce Montgomery, 62, of Georgetown, who has been diagnosed with attention deficit hyperactivity disorder, said he has been denied a private room and extra time to complete the test four times, leading to four bar examination failures since 2004.

Toby Jandreau, 30, of Portland, who has a nonverbal learning disability, said he asked for and was denied extra time twice, leading to his bar examination failures.
Together, the men have filed a lawsuit against the Board of Bar Examiners in Cumberland County Superior Court. They are asking a judge to order a hearing right away and to order a preliminary injunction that would let them take the state bar examination with accommodations during the last week of February.
"Were not asking for special treatment. We're just asking for a level playing field for these guys," said Chad Hansen, an attorney with the Disability Rights Center of Maine, who represents the two men. "The bar examiners have set a ridiculously impossible standard for these guys to meet." [snip]

In 1998, a federal appeals court ruled that professional licensing boards, including bar examiners, also have to make accommodations to people with learning disabilities such as dyslexia and ADHD. [I believe they refer to Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 C.A.2 (N.Y.),1998. Up on appeal the Supreme Court remanded Bartlett, Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, C.A.2 (N.Y.),2000. There is a final, unreported decision from the Southeren District of NY, Bartlett v. New York State Bd. of Law Examiners, Not Reported in F.Supp.2d, 2001 WL 930792, S.D.N.Y.,2001. I warn the reader that the decisions, while finding that there was a disability to be accommodated, are very detailed in finding the limitations and what levels of accommodation are required.]

Maine's bar examiners have made accommodations for people in the past, but have denied Montgomery and Jandreau, saying their disabilities do not limit them enough to justify changing the test rules.
In letters to both men, the board said it requires an applicant to show a more "broad-based and substantial impact" that went beyond their ability to perform on timed tests.

But Hansen says that interpretation of the law is out of step with court decisions, including a 2006 decision by the Maine Supreme Judicial Court that called for a more inclusive definition of disability.

Beer for Dogs

Follow the link above to read about a new beer for dogs. Created in the Netherlands from beef extract and malt, the beer actually costs more than a Heinekin, so you have to be really fond of your dog to buy it!

I found one other beer that appears to be brewed for dogs especially:
Happy Tail Ale (interestingly enough, the Dutch name for the beer in the news story is dutch for wagging tail). A theme developing, I think. Also made from malted barley and beef drippings.

Flying Dog Ales -- I think, in spite of the names of the brews, that these are actually for people. But they offer Flying Dog, In Heat Wheat, and Tire Biter, among others.

I have known dogs who were fond of the "people beer" they occasionally got. Here are a few websites about beer and animals:

Bella Online

All About Beer A nice article surveying the history of dogs in beer advertising, labeling, pubs, etc. Kind of fun.

Send a message to Congress: Military Commissions Act of 2006 (MCA),

Readers of OOTJ may recall Jim Milles link in October to Crooks and Liars blog entry "The Day Habeas Died,"

President Bush signed into law the Military Commissions Act of 2006. At its worst, the legislation allows President Bush or Donald Rumsfeld to declare anyone — US citizen or not — an enemy combatant, lock them up and throw away the key without a chance to prove their innocence in a court of law. In other words, every thing the Founding Fathers fought the British empire to free themselves of was reversed and nullified with the stroke of a pen, all under the guise of the War on Terror.

The Alliance For Justice (link in the title above), is sponsoring a letter to Congress, to match the one from the American Bar Association, asking Congress to review the rules governing the military commissions. Follow the link and join the list of folks who are asking Congress to fix it now!

Teaching Legal Research: The Podcast

This semester I am teaching a new course in the University at Buffalo Law Librarianship Program: Teaching Legal Research. No, it's not an Advanced Legal Research course: its all about learning to teach legal research. We'll be working with a wide variety of teaching techniques, from classroom lecture and discussion, to audio and video, to online instruction using CALI exercises, blogs, and wikis. If you'd like to listen in, I'll be podcasting my lectures at http://tlr07.classcaster.org.

(Crossposted at BWTR.)

Distance learning and public access libraries

An earlier post discussed distance learning. My encounters with students from Phoenix University remind me of my encounters with students from paralegal programs. These distance education programs like the paralegal programs rely upon libraries funded by someone else. The commercial education programs did not contribute to our budget, but their students expected our library to provide full-service. That private companies relied upon public resources struck me as ironic.

Questions for fellow bloggers

Two recent law review articles dealt with issues important to librarianship: Alasdair Roberts in The Global Movement for Government Transparency: The Challenges Ahead (22:1n Focus on Law Studies 4-5, 11 (Fall 2006)) writes about access to government information. The Fall 2006 UMKC Law Review 75:1 is devoted to legal history research through court records.

Mr. Roberts is someone I need to read more of. His brief article describes how private companies that contract to perform traditional government functions (education, water, defense, etc.) are not obligated to provide information to the public. Governments have not complied with right to know acts and many international bodies impose secrecy as a condition of membership. Roberts calls for ngos and philanthropies to monitor governments’ compliance with right to know laws and points out that it is difficult for such groups to persist. Our library associations’ government relations committees already do this. Could our association collaborate with groups outside of library land?

The articles in the UMKC Law Review are very interesting. Court filings and briefs are a mass of unorganized data. Are any librarians involved in court data projects that involve formatting the data for analysis?

Is anyone on this blog aware of librarians writing from the viewpoint of these authors? If not, would engaging in these two areas of discussion enhance our profession? I don’t do enough professional reading so I would appreciate my fellow bloggers suggesting library sources on this and contributing to the discussion through posts..

Bush's Jan. 10 Speech and the Future of the Book

Bush and books--especially future books--don't seem to have too much in common (although we all know that Dubya has read three Shakespeares). Nonetheless, the President's January 10 speech on the Iraq war has been given an exciting and innovative treatment by the Institute for the Future of the Book in collaboration with Lapham's Quarterly.

Operation Iraqi Quagmire (President Bush’s Address to the Nation and the Baker-Hamilton Report) is an experiment along the way. The form in which these texts are presented is an early prototype of a new style of Internet document that puts the conversation of readers on equal footing with the text. For more on the ideas and experiments that have informed this project, visit the Institute’s website and the if:book blog.

These online versions of the Iraq speech and the Iraq Study Group Report use a customized version of WordPress to permit participants (by invitation or application) to engage in Talmudic-style discussion of the main text, paragraph-by-paragraph. The possibilities for legal education and research--casebooks and treatises, for example--are enormous. I would love to see the platform they're using made available for development by others.

Unintended Consequences, Legal Malpractice, and Serendipity

I am always fascinated by examples of unintended consequences. Here is an instance of how the obvious solution may be the wrong one:

As a trial lawyer, I've probably had 50 adverse possession cases, on one side or the other. I also used to teach real estate finance and every few years one of my students would enhance their property holdings by adversely possessing someone else's property. The adverse possession rules are worth knowing for any serious real estate investor.

This is also a big area for legal malpractice since so many lawyers tend to do the absolute wrong thing when consulted by a client complaining of a neighbor encroaching on their property.

As the name implies, one of the things a trespasser has to show in order to acquire title by means of adverse possession is that his occupancy was adverse to that of the titled owner.

All too often, when a landowner complains to his lawyer that someone is trespassing on his property, the lawyer writes a letter telling the trespasser to get off the property or a suit will be filed. This is the wrong thing to do, as it merely helps the trespasser in establishing the required "adversity."

What the lawyer (or landowner) should do is send the trespasser a letter thanking him for taking care of the property and advising that the license to use the property is henceforth revoked (or demand payment of rent if the trespasser wishes to continue staying where he is). If done properly, such a letter is quite helpful in destroying that required element of "adversity," thereby saving the landowner's property. (UPDATE: Hat tip to Andrew Lavoott Bluestone's New York Attorney Malpractice Blog, to which I inadvertently forgot to link.)

Why serendipity? Because I subscribe to way too many blogs--I have over 400 feeds in my Google Reader subscriptions--but every time I decide I need to cut back, I stumble across something really interesting in a blog that I've only been scanning from time to time. My interests are too broad to use any of the RSS filtering tools. I prefer to use an RSS aggregator like Google Reader that lets me skim through scores of feeds very quickly to find the things that catch my eye.

Teaching Differently

Some years ago, I attended a program with Jill Ramsfield, of Georgetown's LRW faculty. She spoke about teaching her students principles of rhetoric, and about the importance of context. I went back home inspired. I re-worked the first class of my Advanced Legal Research class.

When I first started teaching, I had the happy presumption that students would read the assignments for the first class. I am now disabused of that notion, and no longer rely on readings for the first session. Instead, after an orientation where I go over the syllabus and warn students of the level of work involved, I take a completely different direction.

Nearly every class session is built on a worksheet that the students are responsible for completing ahead of class. They are to use their textbook to work through the worksheet, which usually involves examining, evaluating and comparing various resources for the type of research covered that week. But now, the first worksheet, which has always been statutory research, is based on the students, as a class, interviewing me, as their client.

I role-play the client, and students must ask questions to pull out details for their research. I am always amazed at the ingeniousness and energy this method brings out. I want the students to understand that part of research is fact-finding, and that the quality of their research and analysis depends on their questioning and listening skills. It works pretty well. But it's so artificial to just drop in client interviewing for one class and then stop any connection to real legal practice! I am thinking of expanding the program beyond the first class, but we have so much to cover... Maybe it's time to re-organize the entire class into a single research problem that we work on a bit each week. Wow! That will take some effort!

Will the Change in Congress help Copyright, Net Neutrality Interests?

It depends on what interests you mean. Laurence Lessig Dec. 24 entry on his blog offers little cheer for folks who want to guard public access rights and net neutrality. Lessig considers the new chair of the House IP Committee, Howard Berman to be

among the most extreme of the IP warriors. It is this committee that largely determines what reform Congress considers. It is the Chairman who picks what voices get heard. ...
This is like making a congressman from Detroit head of a Automobile Safety sub-committee, or a senator from Texas head of a Global Warming sub-committee. Are you kidding, Dems? The choice signals clearly the party’s view about the issues, and its view of the “solution”: more of the same.

C/Net News.com reports that Senators Olympia Snowe and Byron Dorgan have already revived their bill on Net Neutrality. Called the Internet Freedom Preservation Act (link), it is the same as they previously introduced last May.

The New York Times, in a Jan. 3 article, is distinctly hopeful. They mention Congressman Ed Markey and Senator Ron Wyden as strong advocates for Net Neutrality and other programs to keep information available to the public. Markey is the new Chairman of the House Subcommittee on Telecommunications and the Internet. Use the link above to read his statement issued on Net Neutrality yesterday. Wyden states his strong support and intention to push legislation for Net Neutrality.

Internet users now get access to any Web site on an equal basis. Foreign and domestic sites, big corporate home pages and little-guy blogs all show up on a user’s screen in the same way when their addresses are typed into a browser. Anyone who puts up a Web page can broadcast it to the world.

Cable and telephone companies are talking, however, about creating a two-tiered Internet with a fast lane and a slow lane. Companies that pay hefty fees would have their Web pages delivered to Internet users in the current speedy fashion. Companies and individuals that do not would be relegated to the slow lane.

Creating these sorts of tiers would destroy the democratic quality of the Internet. Big, wealthy voices would start to overpower the smaller, poorer ones. Innovation would be threatened if start-ups and small companies could not afford the new fees. The next eBay or Google might never be born.

A net neutrality law would require cable and telephone companies to continue to provide Web sites to Internet users on an equal basis.

(from NY Times article, a nice thumbnail of the Net Neutrality issues)
See Google statement in support of Net Neutrality.

Another Signing Statement - HR 6407 The Postal Accountability and Enhancement Act

The link above is to the Whitehouse website showing the Presidential Signing Statement for the Postal Accountability and Enhancement Act. Among other statements of how the Executive branch will interpret the new law, Bush says:

The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.

Yow! The Seattle Times article reports

"Despite the president's statement that he may be able to circumvent a basic privacy protection, the new postal law continues to prohibit the government from snooping into people's mail without a warrant," said Rep. Henry Waxman, D-Calif., the incoming House Government Reform Committee chairman, who co-sponsored the bill.

Experts said the new powers could be easily abused and used to vacuum up large amounts of mail.

"The [Bush] signing statement claims authority to open domestic mail without a warrant, and that would be new and quite alarming," said Kate Martin, director of the Center for National Security Studies in Washington.

"You have to be concerned," a senior U.S. official agreed. "It takes executive-branch authority beyond anything we've ever known."

A top Senate Intelligence Committee aide promised a review of Bush's move.

Editorial on Practice-Ready Lawyers

As a follow-up to my last post on the lack of engagement by third-year law students, I'd like to post the link to an editorial published in the National Law Journal. Entitled "Make It Practice-Oriented," the editorial is written by Stephen J. Friedman, Dean of the Pace University School of Law. Dean Friedman discusses transforming legal education to keep pace with the dramatic changes taking place in the legal profession; he also discusses ways to make the third year of law school meaningful so that students will take it seriously.

Student Engagement

The 2006 Law School Survey of Student Engagement has been released. It is entitled Engaging Legal Education: Moving Beyond the Status Quo, and a PDF version of the annual survey results is available here. The report highlights the importance of student-faculty interaction, lacking at many schools, and also the lack of engagement of third-year law students, hardly an earth-shattering revelation.

On Being Faculty -- Thoughts on tenure After AALS

Law school library directors have a distinctive additional role in their profession. Many (I think, most), are members of the law school faculty as well as being librarians. Very few other librarians are full-fledged members of the faculty they serve. This was the origin of academic librarians, long ago, when the librarian was an equal among a group of scholars. We might ask why only this one narrow type of librarian still has that status. Why not offer faculty status to non-directors who meet standards? Why not consider if medical librarians should be part of medical school faculties? And so forth, reconsidering librarians as members of the faculty through all the academic libraries.

Why is the existing status of law school library directors as full members of their faculties being challenged now? It is tempting just to excoriate the ALDA deans as enemies of faculty diversity and possibly of faculty governance generally, with the "weak links" of clinicians, writing faculty and librarians as just the leading wedge of their general attack on tenure for all faculty. But there are some more subtle and thought-provoking reasons we should discuss.

In recent times, there have been several high-profile law library directors who, because of tenure, could not be fired from their positions. Their stories vary widely, but all offer food for uncomfortable self-reflection. There have been instances of directors who did not do their job, did it badly, did not get on with faculty and deans. These individuals, having been tenured to the full faculty, could be removed from the library but not from the faculty without great uproar. We should curse those who, by selfishly holding onto a tenured position without doing the work demanded by it, have made faculty and deans alike consider whether they want to tenure future library directors at all, or just as librarians, not law faculty. BUT consider, how rarely these problems arise with a tenured director of law libraries. Consider, by contrast, how many members of your law school's substantive faculty stopped producing, caring about students or law school service once they received tenure. The faculty tenure problem is MUCH more common. It is not rational for librarians to be singled out for this attack! It is, however, much less dangerous, as there is a smaller group, and it may be easy for substantive colleagues to dismiss the attack on tenure if it begins with outlier populations like librarians, clinicians and writing faculty.


The issue of problematic tenure is more complicated than malfeasance in a few instances. Bernie Reams, for instance, may be misunderstood to belong in the first category. I have been informed, however, by a former colleague that Bernie's problems arose from challenging an abusive dean. Here is the story as told me, and as best as I can verify, it seems true: Bernie wanted to teach in the school's over-seas program. He was told by the dean he could not participate as he was the librarian. Bernie then told the dean he would resign as librarian, and continue as tenured faculty member. I think this is a good example of why faculty cherish tenure. It frees one from fear of this sort of managerial abuse. It frees you to be creative in your research, in your teaching and in your management of the library. When it works correctly, tenure gives the faculty wings, not a shell.

This sort of power to challenge a dean is what may be the crux of the ALDA deans' attack on tenure. It is certainly inconvenient to have to negotiate with faculty rather than mandate. It may interfere with the dean's plans. But the balance of power between faculty members, (and law librarians) and their deans is a crucial one in American legal education.

The dean-faculty balance of power is becoming more important now than before. There is a class of professional deans developing, who move from school to school, rarely remaining as permanent members of a faculty after their deanships. This development is undoubtedly driven by the increased demands and complexity of deaning. There is a learning curve to being a dean, like everything else, and just being a faculty member does not do very much to prepare a brilliant teacher for the very different demands of deaning. I do not object to the peripatetic professional deans. But consider the difference in judgement, commitment and experience to a school between a faculty member (or librarian) who is there for 15-35 years or more compared to that of a portable, fungible professional dean. There is a great breadth of experience in the professional dean, having seen many different schools, and developed a specialized set of skills. But there is a great depth of experience in long-time members of the law school community. A modern law school needs both types of experience, and both groups need a balanced share of decision-making in the school.

On Being Faculty - Programs from AALS

At the AALS meeting, faculty status for law school library directors came up in two different venues. The first was a program, "AALS Executive Committee and ABA Accreditation Policy TAsk Force Open Forum." At this program, the executive board of American Law Deans Association (ALDA) presented statements that carefully represented ONLY the board members. They had offered their statement to the full membership at breakfast Friday morning, and the membership refused to endorse the stance without a longer period of study.

The ALDA deans continued their attack on clinicians, writing faculty and library directors. Their new tune is that categorizing members of those groups as full faculty not only reduces the deans' autonomy, but also raises tuition costs, depriving minority students of the chance to attend law school. This is an outrageous and patently foolish argument, when one considers the relative size of the groups at any school compared to the full substantive law faculty. We also know that most members of those groups are already paid on a scale MUCH lower than substantive faculty. It is also an attack on the three most-femininized sub-groups of faculty in the law schools. I am pleased to note that CLEO (the clinical faculty organization) had some very good testimony prepared and presented it well. I am dismayed to report that NONE of the library organizations were prepared to offer testimony. The few librarians who attended sat silent. I hope that AALL, Academic Law Library SIS will prepare a statement, either alone, or in partnership with the current board of the AALS Section on Law Libraries!

The second discussion of the faculty status of law school library directors came at the final program by the Section on Law Libraries, "Program for New Directors: Relating to your Colleagues; or Faculty Relations for Law Library Directors." There was excellent discussion on various aspects of the role of the director as a faculty member. The excellent presenters offered recommendations, advice and great insights on how to be a great colleague. Members of the audience also participated in a fascinating discussion. I trust that this program was recorded for the CALI podcasts. I recommend you listen to both programs.

New Carnegie Report on Legal Education

The Carnegie Foundation for the Advancement of Teaching has released a new report on legal education. The report, entitled Educating Lawyers: Preparation for the Profession of Law, is discussed in today's edition of Inside Higher Ed. A summary of the findings and recommendations of the report is available on the Carnegie Foundation's website, and the report itself is available for $40.

The study concludes that "law schools need to do a better job integrating the teaching of legal doctrine with a much stronger focus on helping students develop practical 'lawyering' skills and understandings of ethical and moral considerations." Law schools do a good job of teaching students analytical skills, but are less successful in teaching skills, a sense of justice, and ethics. As the article points out, the report has come out at a time when a number of law schools have initiated curriculum reviews, and may play a role in their deliberations.

Libraries and Distance Learning

Laura Rein, Dean of the University Library at Webster University, writes in today's Inside Higher Ed about the library as place given the increasing numbers of distance-education students who will never set foot in the physical library while they are pursuing their degrees. Supporting distance education is not a major issue yet for law libraries because of the American Bar Association's Standard 304, which imposes restrictions on distance learning. However, it is reasonable to assume that this restriction will probably erode over time, and it would be wise to think about how we will support distant students when it does. Rein believes that libraries "can translate the benefits that our physical libraries offer to on-campus students and professors" by "careful planning during building and renovation projects, through the creation or revamping of services and collections, and through the creation of specialized services to promote community and active learning." My library is currently undergoing renovation, and one of our most important achievements during the renovation process was securing a private office for each member of the professional staff. While arguing for private offices, I wish I had had the benefit of Rein's insight--"Private office space for professionals...is more important when a librarian could be on a lengthy, complicated phone call with a student overseas." She also talks about developing online tutorials to enhance information literacy in off-campus students and other uses of technology to bring the library to distance-education students and professors. Rein acknowledges that the biggest challenge in serving an off-campus population is creating a sense of community. Library blogs haven't turned out to be terribly helpful, but working with professors may be a more fruitful avenue to explore. At Rein's school, a Faculty Development Center that supports both on-campus and distance-education professors was set up. The Center supports a discussion forum for faculty, and offers a "new faculty orientation course, an active learning handbook, and...live Web conferencing with a staff of instructional support specialists to offer individualized instructional support to faculty regardless of their location." This will require librarians to work across departments.

Library Exercise Video

Those of us who have made New Year's resolutions to get into shape should check out this short film on YouTube. Ostensibly an ad for the "Betty Glover Library Workout Tape," it was made in 1987 as a class project at Arizona State University. It shows its age, but is still very amusing.

Storage Facilities

The online version of the Los Angeles Times has published an article on storage facilities in college libraries. The article focuses specifically on libraries at California colleges and universities, some of which have moved little-used materials into offsite, temperature-controlled storage facilities. Colleen A. Carlton, the director of the Southern Regional Library Facility located on the UCLA campus, is quoted as saying that "only about 2% of all the holdings is requested in a year, often couriered to other campuses." Other California libraries have chosen to install more compact shelving as a way of dealing with space issues. This was the approach chosen by Michael Gorman, former president of the American Library Association, who will soon retire from his position as dean of library services at Cal State Fresno. Gorman has advocated for compact shelving over remote storage facilities because "the off-limits automated systems...seem to discourage the exploration that can serendipitously lead a reader to the perfect book."

My library has been dealing with space problems for years. We currently have a mix of solutions in place--compact shelving in the library proper; an on-campus storage facility where compact shelving is installed and from which the staff retrieves materials for our community (we have chosen to put items there that are either easily retrievable by citation, e.g., treaties and administrative decisions, or that are reliably duplicated in a digital format, e.g., academic law reviews); remote commercial storage for rarely used items, such as Canadian provincial case reporters, which we have begun to process to send to LLMC; and even more remote commercial storage for our rare book collection. A former colleague used to say that in his library the directional question rose to the level of metaphysics; I fear we have created a similarly confusing situation, but stack space is finite, and each library must decide what works best for its community.

AALS in Washington, DC!

Wednesday, January 3 starts the annual meeting of the American Association of Law Schools (AALS), held in Washington, DC this year. As law school library directors, good part of the OOTJ blogging contingent will be attending, so it might get a bit quiet around here. The title above links to the online program of the AALS. See you when we are done hobnobbing with the other wizards, ahem, urrr. Or something like that!