Sign of the Times?

Evan R. Chesler, presiding partner at Cravath, Swaine & Moore, believes that "This is the time to get rid of the billable hour," according to an article in today's New York Times. Because of the economic downturn, some budget-conscious clients have persuaded firms to move away from the iconic billable hour in favor of "flat fees for handling transactions and success fees for positive outcomes, as well as payments for meeting other benchmarks." According to Mr. Chesler, these alternatives represent a small percentage of the firm's business, but would not discuss specifics of rates and prices. Smaller firms and solo practitioners have offered services on a flat-fee basis for some time, and plaintiffs' lawyers work on contingency. However, large firms have traditionally stuck with the billable hour because their attorneys "grew rich from the practice," and why kill the goose that laid the golden egg? The article concludes with the observation that "the biggest stumbling block to alternative fee structures may be the managing partners at law firms, who will have to overhaul compensation structures to reward partners and associates for something other than taking a long time to do something."

Verification of Digital Records

One of the most vexing problems with digital information is how to verify its authenticity. As John Markoff points out in his article in yesterday's New York Times, it is "possible to alter digital text, video and audio in ways that are virtually undetectable to the unaided human eye and ear." Markoff reports on researchers from the University of Washington who "are releasing the initial component of a public system to provide authentication for an archive of video interviews with the prosecutors and other members of the International Criminal Tribunal for the Rwandan genocide. The group will also release the first portion of the Rwandan archive." According to the University of Washington researchers, this will be the first time that digital documents can be irrefutably authenticated. The technology used is a "publicly available digital fingerprint, known as a cryptographic hash mark, that will make it possible ... to determine that the documents are authentic and have not been tampered with." Although the concept of the digital hash mark goes back to the 1950s, the new application is far easier to use than its predecessors and will "ensure continuity across many generations ... " The possibility of an authentication system that would be persistent across changing digital formats is extremely compelling, and has many implications for consumers of legal information.

Google as Monopoly

Robert Darnton, who has been director of libraries at Harvard since July 2007, has written a provocative article in the February 12 issue of The New York Review of Books. Darnton has a compelling insight about the recent settlement of the Google Book Search lawsuit. The settlement itself is a lengthy document, and I confess I only recently made my way through the whole thing. Darnton points out, however, that implicit in the agreement is a "fundamental change in the digital world by consolidating power in the hands of one company." He believes that the "terms [of the settlement] are locked together so tightly that they cannot be pried apart." The effect of this is to give Google a monopoly over the

access to information. Google has no serious competitors. Microsoft dropped its major program to digitize several months ago, and other enterprises like the Open Knowledge Commons ... and the Internet Archive are minute and ineffective in comparison with Google. Google alone has the wealth to digitize on a massive scale. And having settled with the authors and publishers, it can exploit its financial power from within a protective legal barrier; for the class action suit covers the entire class of authors and publishers. No new entrepreneurs will be able to digitize books within that fenced-off territory, even if they could afford it, because they would have to fight the copyright battles all over again. If the settlement is upheld by the court, only Google will be protected from copyright liability.

According to Darnton, a number of different institutions and individuals dropped the ball while Google was digitizing millions of books--Congress, the Library of Congress, the National Endowment for the Humanities, major research libraries acting together--and thus missed the chance to act in the public interest. Darnton laments that, "We could have created a National Digital Library--the twenty-first-century equivalent of the Library of Alexandria. It is too late now."

Interesting post on legal billing in Germany

Houston law librarian Saskia has a blog, Saskia's Spin. On January 18, she begins a two-part series (not yet completed) in which she explains how German lawyers bill clients. Saskia is a German lawyer, as well as an American law librarian, and brings her fascinating experience to bear as she compares the billing practices of the two countries legal professions. See her first post at Jan. links. There should be a second part soon, we hope! Great stuff! Yay!

Vice-President Records may go missing

Apparently Vice-President Cheney is moving boxes of records into his house, and hurt his back. Look for him today in a wheel chair at the inauguration. The Boston Globe reports

A federal judge ruled yesterday that Vice President Dick Cheney has broad discretion in determining what records created during his eight-year tenure must be preserved.

Absent any evidence that Cheney's office is failing to safeguard records, it is up to the vice president to determine how he deals with material, US District Judge Colleen Kollar-Kotelly ruled.

"Congress drastically limited the scope of outside inquiries related to the vice president's handling of his own records during his term in office," the judge said in a 63-page opinion.

At issue is whether Cheney had impermissibly limited the scope of the Presidential Records Act, a post-Watergate law aimed at protecting White House records.

Cheney has taken the legal position that his office is not part of the executive branch of government, triggering a lawsuit by several groups including three organizations of historians and archivists concerned that the record of Cheney's time in office might not be adequately safeguarded.

The lawsuit alleges that the Bush administration's actions over the last eight years call into question whether the White House will turn over to the National Archives a complete record of the activities of Cheney and his staff.

Yesterday, Cheney pulled a muscle in his back while moving boxes into his new home outside Washington and will be in a wheelchair for today's inauguration ceremony.

White House press secretary Dana Perino said the vice president's doctor recommended that he needed a wheelchair for the next couple of days.

I found a helpful link at CommonDreams.org which includes links to various documents in the law suit filed in September, 2008. You can visit here. The group that sued is called Citizens for Responsibility and Ethics in Washington, and their website http://citizensforethics.org/ includes the judge's decision. Click on their Actions link, and choose lawsuits, and then you will see Cheney. But their site does not include such goodies as the statements by historians and letters to senators that are included at the CommonDreams website from September. Archivists and historians protested the statements that the Vice-president made that his office is not part of the Executive branch and not bound by rules holding the Executive branch responsible for preserving its documents for the future. Apparently Judge Kottely agreed with Mr. Cheney. Sigh.

Martin Luther King, Jr. Day, 2009

What an interesting year to reflect on the legacy of Dr. Martin Luther King, Jr.! In this year, the people of the United Stated elected the first black President. Many people are considering that Barack Obama is the fulfillment of the dream that King announced in his landmark speech. That may be expecting too much of the election results -- while Obama's Presidency is certainly exciting, there are still many steps to fulfill King's dream that

... my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

Amazing progress has actually been made -- if you consider how slowly cultural change usually happens. But so much more needs to be done. We cannot honestly say we live in a nation where people are judged by character and not skin color, and where black children and white children truly join hands as sisters and brothers, in Alabama or Massachusetts. And yet, how hopefully we move toward Tuesday, and inauguration of our first President of color. What joy would Dr. King feel were he alive to see this day?

I was amazed to stumble upon a lovely collection of photographs from the civil right movement and the last days of Dr. King's life, courtesy of Time Magazine's website. Click on the title to this post to visit the website and see the collections of photographs. Newsmagazines have treasures that they sometimes put out to share! Thank you, Time! The image above is from this website, by Paul Schutzer / Time Life Pictures / Getty, at http://www.time.com/time/nation/article/0,8599,1872501,00.html

Twitter & Legal Writing

Interesting blog by pseudonymous law student Rex Gradeless, Social Media Law Student, offers an interesting post on Usint Twitter to become a better legal writer. You can reach that post by clicking on the title to this post. Basically, Rex points out that the 140-character limit of Twitter forces the writer to be succinct and clear, which are strong benefits in legal writing. Rex has more to say about social media and the law. An interesting blog.

Judge allows webcam of high profile music case

Click on the title of this post to read an article in Boston Globe about Judge Nancy Gertner allowing a webcam in the courtroom for the high profile case of Boston University graduate student Joel Tennenbaum for illegally downloading music. Tennenbaum's attorney, Prof. Charles Nesson (Harvard, Berkman Center) requested judge Gertner to allow the public access. The plaintiff Recording Industry Association of America (RIAA) had opposed the motion. The webcast will be "narrowcast" to the Berkman Center website. I don't see an announcement there this morning, but perhaps it's early.

Follow-up on New Research Course

Back on December 10, I blogged about a new course that Pace Law Library was offering during the intersession between semesters. The two-credit course was entitled Advanced Research Skills for Health, Disability, and Elder Law, and was taught by Margaret Moreland, one of our reference librarians. We hope to use the format as a template for other two-credit intersession research courses in the future. I promised Betsy an update on how the course went.

The course concluded last week. Three students registered for the course, not bad considering that it was approved very late in the semester, and there was very little publicity for it. Margaret doesn't yet have final student evaluations, but offered the following impressions of the experience. The course ran for six days, which Margaret felt was probably too long. Next time, she would run the course for five days, with longer sessions each day. Leaving Saturday free for a make-up session if we got shut down by snow during the week would also be smart. Margaret used an online legal-research textbook, Legal Research: How to Find & Understand the Law , 14th ed., by Elias, Levinkind and Stim. She chose this because she didn't have time to order books for the course and because it was free. However, the students found the text to be overly simplified, and Margaret plans to create her own course pack in the future. This would probably be necessary with most subject-specific research courses. The students' computer skills varied widely, and Margaret is going to try to level the playing field next year by requiring that students do Lexis and Westlaw tutorials and quizzes before the first intersession class. She also wants to experient with Adobe Captivate to create a basic legal research review class for students to view before the first class; this would mean that less class time would need to be devoted to review of concepts students should have learned during the first year. Margaret found that whenever possible, her students chose to do the assignments online rather than in print sources, and that is certainly something that I see when I assign problems to my Advanced Legal Research students. All in all, she found the course to be a good, if tiring, experience, and reports that the students seemed to have found it a worthwhile use of their time.

How mad am I?

What do we owe our profession? What do we owe those who follow after us? I happen to think we owe our profession a great deal. We owe those who follow after us a very great deal. We owe them at least as good a situation as we found, and preferrably, a better situation. And I am mad at those who seem to place their personal interests above any long term interest of the profession, and those who follow after them.

Let's not name names. At least not yet.

What do you say about a major library director who seems to have waved goodbye and waltzed out of his library, after many, many years? He seems to have left it up to his long-time colleagues to select a successor, and never thought to urge them to select a librarian -- that is, somebody with library training.

What do you say about a different major library director who seems happy to let his faculty believe that librarians do not do any kind of research unless it mimics the law faculty model? Do we have any kind of obligation to educate our faculty about library publications and library research that should dazzle our plain-vanilla law colleagues? I think so. But some of my director colleagues have been so busy feathering themselves with the law faculty plumage that they have not noticed that librarians have their own research and scholarship that is just as legitimate as anything published in journals run by law students!

What about the various law schools that are trying to redefine the library director position as non-faculty -- an administrator position? You might be able to make the argument, but I think they are losing a major value of the faculty/director position. In fact, I like the idea of all librarians as faculty and scholars generally. But the school has to commit to providing release time for research and writing, and if they teach, for preparation for class. When you combine the roles of librarian and faculty, I think you get a double bang for the institutional buck. There is a blending of the teaching/scholarship role with the research and support role that librarians bring. And all of that is blended together when purchasing materials, choosing subscriptions, planning space, teaching students how to use materials, and providing tutorials to faculty on how to best use the resources available.

I am really angry when I see what looks like individual librarians taking the short term advantage for themselves, and leaving a mess behind for those who follow. I hope I am misunderstanding what I see. I will happily apologize to anybody I am wronging with my rant. But I am mad at what looks to me like folks grabbing and running -- and leaving the younger librarians who follow after us with trash to look forward to. That ain't right.

Interview with Professor Lessig

Click here for an interview with Professor Lawrence Lessig, currently a professor at Stanford Law School, where he has earned a reputation as a leading expert on intellectual property. Professor Lessig is moving to Harvard Law School where he will lead the University's Safra Foundation Center for Ethics. At the Center, Professor Lessig will "investigate corruption in government and academia." Of course, corruption has been much in the news lately, thanks to high-profile cases such as those of Illinois Governor Rod Blagojevich and Alaska Senator Ted Stevens. However, corruption is an age-old problem. Professor Lessig has chosen to move away from intellectual-property law because he feels that society is making "fundamental policy errors" because the "process of political dialogue [is] distorted in a way which [is] just not making it possible to get the right answers." This problem goes beyond "esoteric subjects like copyright" to issues like global warming. According to Professor Lessig, the "flaw is that public policy questions are being guided not so much by a focus on what makes good sense from a public policy perspective, but what makes good sense from a campaign finance perspective." The possible cure may be the "kind of activism which the Net has enabled."

Update on Clickers in the Classroom

Reading the story reproduced below from the Chronicle of Higher Education reminded me that I was going to report on my experience with using clicker technology in my Advanced Legal Research class during the fall 2008 semester. According to the author of the article, Ruth Hammond, "College students who use wireless handheld devices called 'clickers' to register answer to instructors' questions during lectures are more likely to give correct responses after discussion with their peers ... " Hammond is reporting on a new study published in the January 2, 2009 issue of Science (vol. 323, no. 5910, p. 122-24). It is unclear, however, whether the clicker technology itself is responsible for the students' improved performance, or whether it is the discussion with classmates that makes the difference.

Because I have not yet seen my students' evaluations of the Advanced Legal Research course, I have no formal, written feedback on their reaction to the clickers. However, I do know anecdotally that some students really enjoyed the clicker exercises and thought that they reinforced the material that I had presented. Others, however, particularly non-traditional students, felt that the clicker exercises were a distraction. My own experience with the clickers was that it is harder than I thought to craft exercises that will challenge the students but not frustrate them. My lack of formal training in educational theory became painfully obvious to me as the semester went along. I did find that the exercises sparked a lot of classroom discussion, which can be hard to do in a research course, and seemed to create some energy in the classroom. I had applied for promotion to full professor last fall and was going through that process (classroom visits by faculty colleagues and written evaluations of my teaching, etc.). Visitors to the class had positive impressions about my use of the clickers and the exercises that I created, which was gratifying. However, I have decided to scale back their use considerably during the second semester. I am going to use clickers for a diagnostic exercise during the first week of the semester (I want to see what level the class is at), and then create review exercises as we finish each unit. This will be a departure from opening each class with a clicker exercise as I did last semester. The reason for scaling back the use of clickers is that the exercises took so much time (at least half an hour of each class) that I was unable to get through the syllabus, and I ended up rushing through important subjects such as administrative law research. However, I now have a greater comfort level with the clicker technology and think I have learned something about writing questions that will allow me to see whether the students have mastered the subject matter of a unit of the course before moving on to a new subject. I'll report back in the spring on how this approach works.

Learning With 'Clickers' Gets Better After Peer Discussions
College students who use wireless handheld devices called “clickers” to register answers to instructors’ questions during lectures are more likely to give correct responses after discussion with their peers, studies have found. But, researchers wondered, were students improving merely because they copied the answers of fellow students? Or had they actually gained a greater understanding of the material?

The findings of a new study published in the latest issue of Science suggest that improvement after peer discussion reflects real learning. And, surprisingly, students “don’t even need somebody who knows the right answer” in their discussion group in order to do better, says Michelle K. Smith, a research associate in biology at the University of Colorado at Boulder who led the study.

Three hundred and fifty students in a genetics course were first asked to answer a thought-provoking multiple-choice question individually, using a clicker. They were then invited to discuss that question with their neighbors, after which they answered it again. Next, they answered, individually, a second question that required applying the same principles needed to solve the first one.

When students respond to questions using clickers, generally their responses are displayed on a projection screen in the classroom, so instructors can highlight the correct answer. But for this study, the responses to the first question and the right answer were not shown until after students had answered the second question.

On average, the students improved when answering the first question for the second time, from 51 percent correct to 68 percent. But they improved even more when they answered the new, similar question, with 72 percent getting the answer correct. Because the second question was never discussed in peer groups, it could not be answered by copying the response of another student. So the higher rate of success suggests that giving students the opportunity to talk to one another and practice their cognitive skills makes them more prepared to analyze problems, Ms. Smith says.

Although the same peer-discussion method evaluated in the study could be put in place without clickers, students enjoy using the device as long as they’re given challenging questions, Ms. Smith says.

The device is used in college classrooms across the country, especially in large lecture courses in the hard sciences and mathematics, says Jane E. Caldwell, a biology instructor at West Virginia University who has published a paper in CBE—Life Sciences Education reviewing research on clickers. She says the new paper in Science “made a great stride in pinning down the cause of improvement in performance,” showing it was not just the result of “persuasion by bright students that happened to be sitting nearby.”—Ruth Hammond

Tweeting versus Blogging

I've been pretty absent from OOTJ for a while. Some of that has been illness or family illness. And I am so grateful to Marie and other co-bloggers for soldiering on while I have just gone missing. But some of my recent absence has also been due to a time of experimenting with Twitter and Facebook and the new social media explosion that has been going on. That has been fascinating. I am not sure it will be the great way for libraries to market themselves that it may be for some lawyers and firms, but it's interesting. I have enjoyed meeting lots of new friends and hearing about things I never would have known about. Tweeting is fun, and it's easy and I feel very connected doing that and Facebook. It can also be a huge time sink. So be careful out there. It seems perfect for folks who are sitting at reference desks and circulation desks where there are spaces of time when nothing is happening and nobody is there. It seems great for multi-tasking when you are watching TV or waiting for laundry or a phone call. But it can also (like blogging) seduce you into doing lots of little things rather than getting the big tasks out of the way.

I have been at AALS and it never has been feasible for me to tweet from here while things were happening. As far as I can tell, the major hosting hotel has not made any wireless available, for one thing. (Boy, don’t get me started on that hot-button issue! I am so mad at the hotels over the way they charge for a sunk cost...) But on the other hand, I have not really been carrying anything to tweet with, either. Have twitter folks been seeing live tweets from AALS? I can see Montserrat Biederman (Lyonette Louis-Jacques) reporting in the evening on interesting programs, but I am not sure I see any tweets during a conference program.

Nevertheless, it made me think about tweets. If I had a brilliant thought about something that happened during the day, and wanted to put it out there after the fact, tweeting is probably not the most wide-access way to do it. Tweets are all about currency. When Jim Milles blogged about Twitter, here, his point was about the immediacy of it. Our fellow twitterer (Connie Crosby) was able to immediately alert a huge number of friends around the world of an accident. Tweets are not usually about reflection, and certainly are not about archiving facts. You can search tweets, but I don’t think people do it often, and aren’t doing it to look up facts.

Blogs are not really long-term artifacts, either, but compared to Twitter, they look much more archival. The posts remain there and wait to be picked up whenever the RSS feed is linked to, or the reader wanders in. On Twitter, you have to scroll back to read past tweets, and I have never before gone farther than 3 screens. I frankly didn’t know if I could go farther than 3 screens, so for empirical purposes, to prepare this blog post, I went back hours and hours, pages and pages on Twitter. What a pain. Of course it didn’t help that right when I was exploring, Twitter crashed with over-capacity. I think it may have been that football game, though tonight, Twitter is incredibly slow again. Keep in mind, though, if you are following a zillion Twitters who are lively, a few pages may count for only a few minutes of time. That really is ephemeral!

New blog on workplace issues

My Suffolk colleague, Prof. David Yamada has started up a fascinating blog on workplace issues. His core interest area is abusive and bullying behavior, but the blog extends beyond that. It is an excellent resource, and should be worth bookmarking for librarians, (quite aside from your own interests, which I hope are not personally involved!), since he includes links to helpful resources, legal links and thoughtful essays as well. Click on the title to this post, or visit Minding the Workplace at Wordpress.com. It is part of his larger New Workplace Institute.

NY Times Meltdown at AALS

Wow! Anybody who has read the obituaries for print newspapers would have been as taken aback as I was to watch the hysteria at AALS this week. Law professors from across the country are having meltdowns when they cannot get their print New York Times here in San Diego! I happened to go down to the Marriott gift shop this morning and blundered into the anxious crowd waiting for the shop to open. There was a milling crowd of northeasterners with a mix of profs from across the country. A few were smugly confident -- after missing their fix the day before, they had already signed up to have their copy reserved for them. Others were watching their potential antagonists warily.

The lady showed up with a stack of papers on a hotel luggage cart. She opened the door and the crowed moved inside. A line formed up immediately. The shop keepers began unstacking the papers and nearly wept. They had requested extra copies of the New York Times. What they got instead was the L.A. paper, and just the copes of the New York paper that had been ordered for those who reserved it -- at least those had been delivered. A disgusted groan went up, and people fled the shop to try to find some other source. The smug ones who had reserved waited to collect their prizes. One clever woman spoke of trying to set up a system to hand along her copy after she finished. *(I suggested she speak to the Hein booth in the Exhibit Hall).

I was just amazed. I had no idea there was still such a population clinging to the print version. I have one senior faculty member I know of who still demands a print copy in the school. But a lot of these folks in the milling crowd were younger than I by decades. Obviously, the Gray Lady still has a firm hold on some readers, in quite a physical way! How amazing!

Discouraging News About Legal Writing

The 2008 results of the Law School Survey of Student Engagement (LSSSE) were released today, according to an article in today's Inside Higher Ed. According to the article, "Law schools have to be responsive to the ever-changing legal world to keep their curriculums relevant and meaningful, but the latest findings of a national survey suggest that they should also be focusing more on the basics." The survey results are disheartening when it comes to legal writing. Close to half of the law students surveyed said that "their education does not 'contribute substantially' to their ability to 'apply legal writing skills' in the real world." George D. Kuh, who is Director of LSSSE and Professor at the Indiana University Center for Postsecondary Research, feels that legal writing is not given the attention it deserves in the law school curriculum. "'Despite near universal agreement on the value of these skills and competencies, legal writing, for example, is typically featured primarily in the first year, and viewed by students as a sidebar in their doctrinal classes ... The low value placed on writing is symbolized by the facts that relatively few legal writing faculty are tenured or in a tenure-eligible role and are often paid less than other faculty members.'" Students particularly feel the lack of opportunities to do practice-based legal writing. The survey contains a number of other insights about legal education that are well worth considering.