Tuesday, November 06, 2007

Saving AALL - Looking to the Future

In the post below (Nov. 2, Can AALL be saved?), I actually conflate two separate events. The CRIV report on BNA was actually written by Tracy Thompson several years ago, before she was a member of CRIV. Tracy had a telephone conversation with the then president of AALL Carol Avery Nicholson about what she characterizes as inconsequential changes to her report, and eventually, her report ran pretty well intact. Tracy recalled the event really in the context of a much more recent attempt at editing a report for the CRIV sheet, and I misunderstood her explanation. I really want to give credit here to members who challenge the initial efforts to silence CRIV reports that criticize vendors and credit as well to AALL officers who respond and allow these reports to run. Carol was supportive of the piece that Tracy wrote but expressed her concern with Tracy’s report on the visit to BNA as her “desire to maintain the best environment for positive relations and negotiations with BNA (and other vendors) both for AALL and our members.”

The second event was a report written by CRIV member Stephanie Marshall, who was also assistant editor of the CRIV sheet, and the editor of the CRIV sheet, Amy Eaton. Stephanie was requested to write an article reporting on Ken Svengalis’ program at AALL annual meeting in New Orleans, July, 2007, “Legal Information: Globalization, Conglomerates and Competition– Monopoly or Free Market.” Stephanie Marshall listened to a CD of the recorded program, and wrote her report, and sent it to the CRIV sheet editor, Amy Eaton. Amy approved the article and submitted it to AALL Spectrum for inclusion in the CRIV Sheet portion. When the article was sent back with edits marked, the article was substantially changed, removing both remarks critical of vendors and remarks critical of AALL itself.

Again, the claim was that the article was too long (it fit easily under the word number limit for CRIV sheet reports). Tracy Thompson, as CRIV chair, received an e-mail from AALL president Ann Fessenden, who told her they would be editing the article as to length and to content. Tracy asked to see the revised version. Tracy never received the revisions from AALL, but she had phoned CRIV Sheet editor Amy Eaton to warn of the intended edits. When the revisions went to Amy Eaton, she shared them with the author and the CRIV chair. Author Stephanie Marshall and CRIV editor Amy Eaton questioned the edits that changed the content of the report. Through a conference call between Amy and AALL President Ann Fesssenden, with CRIV chair Tracy Thompson, an agreement was worked out that preserved most of the original report’s content. The collaboration of these members and our President ensured that the CRIV sheet will run with the article substantially as written.

In both these cases, and in recent e-mails to members of LawLibDir-L listserve, AALL officers have stated that their reluctance to allow criticism of vendors is not based on their fear of losing support, as I had supposed, but, as Ann Fessenden wrote to LawLibDir-L, the decisions were based entirely on advice from AALL’s legal counsel. She advised that the association needs to avoid antitrust violations such as price-fixing, including “...any concerted effort or action that has an effect on prices, terms or conditions of trade, or on competition.” Thus, under the legal counsel’s advice, AALL decisions were to avoid programming, publications or other communications that could allow inferences that members were agreeing to “... take anyaction relating to prices, services, production, allocation of markets, boycotts, refusals to deal, or any other matter having a market effect.

The AALL attorney has also advised that our programs and publications are not public forums for purposes of free speech, and that AALL is responsible for statements made by speakers at our programs and in articles in our publications.”

Ann cited this particular concern as being the reason behind canceling the one program that Ken Svengalis was giving, under the auspices of the SCCLL-SIS, at New Orleans meeting, because the program description included the word “boycott.” Ann also cited this concern as the basis for the editing of the report Stephanie Marshall prepared of Ken’s other program that went forward, “Globalization.” One can imagine the same concerns were the reason that Ken was pressured to minimize his criticisms of Thomson-West.

Filippa Anzalone has called on AALL officers and Headquarters to increase the transparency of its decision-making, and share with members the name of AALL’s legal counsel and any opinion letter rendered to the association. She requests that the legal authority relied on for these opinioins be shared, and questions if the AALL legal counsel is not interpreting too narrowly. Tracy Thompson has said many of the same things in conversations with Ann Fessenden and Sally Holterhoff, with whom she shared dinner at the Northeast Regional meeting this fall. Transparency might salvage the situation, restoring member faith in our national organization.

At this point, AALL’s narrow and cautious interpretation of antitrust law is strangling its ability to represent members’ and our patron’s interests in a time of huge change in legal publishing. It should give us all pause that Thomson West is the sole publisher and provider of authenticated statutes and judicial decisions for a number of U.S. jurisdictions. If we have no ability to criticize the vendor and publishers’ policies, there is no voice at all, no consumer-oriented voice in the developing market of digital/print legal information.

I repeat my plea of Nov. 2, to the leadership of AALL: Please move to save our wonderful organization and keep it from being marginalized!

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