Why Lexis and Westlaw Should NOT be Like Google

For the first time, I had a student write in my Advanced Legal Research class that they wished that Lexis and Westlaw could be more like Google. I had heard other librarians moan about this but had just not run across it til now. It really gave me pause to have it in hand. And it made me think, it challenged me. Why should this student not get her wish? If I sat down with this young woman and had a conversation, what would I say about why I disagreed? There must be more than just a knee-jerk revulsion against the transformation. What would be my reasoned argument to her?

I. Google flattens the world of information

When Google retrieves things from the Web, it does not distinguish what kind of information it is bringing back or what kind of source it is retrieving it from. For lawyers, this is disastrous. As a lawyer, you must care a great deal whether you are retrieving a statute or a piece of an article or a blog entry, or a case or a headnote. Some of these items are actually primary law (statutes and cases), which carry legal authority, and can be relied on in court. Others are secondary authority and will help you locate and interpret the primary authority (pretty much everything except the blog entry probably, and possibly even that). And some of it is merely commentary, and not reliable enough, probably to do secondary resource job. I am beginning to see occasional students who do not distinguish between these various resources, and now begin to see why. If they simply rely on Google to bring it, and learn not to care what "it" is, what a very dangerous habit for lawyers!

Students already seem to have trouble distinguishing between statutes and regulations on a pretty common basis. They need to have this explained, sometimes, even after taking an Administrative Law class. Perhaps they are merely being sloppy with terminology, but that is rather dangerous in itself. For that carelessness to extend to the whole world of information, bodes very badly indeed! This is not just a fussy librarian speaking. They will lose jobs; they will lose in court; they will lose clients; they will be disgraced.

II. While the goal of Google is to save you work, intellectual work is what lawyering is about, and what distinguishes the lawyer from the paralegal.

Already, searching on Lexis and Westlaw has done some interesting and perhaps deleterious things to legal analysis. I suspect that young lawyers and law students may be often relying on the cases found to do the legal analysis for them, rather than doing their own original thinking, or pre-analyzing the case. There seems to be growing weakness in analysis, and if it is not taught affirmatively in law school or some other part of training a lawyer for practice, many lawyers simply will not know how to do careful and creative analysis.

For instance, my students had not generalized the skills of reasoning by analogy or making policy arguments in cases where they could not find precedent in their jurisdiction. I am sure they had read cases in textbooks for other classes that did both, but they had never thought about doing that themselves! We had to talk through about how they what would they do, if they could not find cases on point in their jurisdiction. They certainly came up with persuasive authority -- bringing in cases from other jurisdictions. But nothing else at all came to mind.

If you are not prepared to do careful, precise thinking, the life of the law is not for you. If your ideal is to have Google or some other AI genie do your thinking, you are not cut out for lawyering. Not now, and not ever. Even if there ever is a true AI, a profession means that the human is taking a higher level of responsibility, and a higher level of expertise. For lawyers, the expertise is THINKING, ANALYSIS. We don't KNOW the law so much as know how to THINK ABOUT the law.

Berring on Free Legal Information Sites: Contretemps

At Legal Currents, a blog by Thomson Reuters (West), Bob Berring is featured in a very thought-provoking and articulate video about the efforts by government agencies and volunteers (read GPO and PublicResource.org/Law.gov, and the Legal Information Institute) to make legal information freely available. He speaks of how admirable these efforts are, but thinks that ultimately they always fail because the government efforts are always the first to fall to the budget ax and volunteers are likely to lose interest after time, without monetary incentive. While praising the currently available efforts, and directing his advanced legal research classes to them, he sees them as ultimately doomed, which I find very depressing, personally.

Not too surprisingly, Carl Malamud, who is working hard on the Law.gov effort laid on some comments, followed up by Brian Baker. At first, West appeared to have removed the rather challenging comments, which stated that Berring should have revealed his long relationship with West (and also, less becomingly, called Berring a paid spokesperson). Another, spoof-named (I am pretty sure Vic Trola is not anybody's real name) commenter was more vicious. Bob Berring certainly has a long relationship with West, as a West author, and producing videos with them over the years. Eventually, the comments were reinstated. But Bob, no shrinking violet, also posted his own reply:

I am troubled by the comments impugning my ethics and moral bona fides. The statements are false. I am not a spokesperson for West, nor was I compensated for my remarks. They were made as part of video tribute being put together for the 2009 AALL meeting. The beauty of being an old, tenured professor is that one can say just what one means. And I did. You might contend that I am off base, but I say what I believe to be true. The issues are worth discussing. Ad hominen attacks don’t add much to that discussion.

As always, Berring's original comments are thought-provoking and interesting, even if my idealistic self wishes I could believe that the projects to provide free legal information had better prospects than he foresees. Visit the site and see what Bob has to say about the future of pro bono legal information projects. There is more there, of course, than gloom & doom! The photo of Prof. Berring is from his faculty page at Berkeley.

New GAO Report on Legal Education

The GAO has released a new report on the cost of legal education, according to a news brief in Inside Higher Education. The Chronicle of Higher Education also covers the new report in an article published yesterday. Some individuals and groups, notably ALDA, have blamed the ABA accreditation process for piling on "unnecessary requirements that discourage innovative practice (and stifle competition from new schools) and ... drive up costs for students." The GAO concluded that aacreditation requirements are not causing tuition increases; rather, "the move to a more hands-on, resource-intensive aproach to legal education and competition among schools for higher rankings appear to be the main factors driving the cost of law school." Tuition has increased by 7.2 percent over the last twelve years at public law schools, but only by 5.3 percent at public medical schools. What has contributed to rising tuition costs at law schools? It is cheaper to staff large (100+ students) classes than it is to staff clinics and other programs that require a lot of interaction between professor and student; more faculty are required, and faculty salaries represent the lion's share of expenses at most law school. Tuition at public law schools has increased in response to declining levels of state funding. Academic support programs, which are of fairly recent vintage, have increased costs. And how much money has been spent to move law schools higher in the U.S. News and World Report rankings?

The GAO also concluded that the ABA accreditation standards have not affected minority enrollment in law school. Minority enrollments have actually increased, although some African American and Hispanic students may have been "negatively affected" by "lower average ... LSAT scores and undergraduate ... GPA ..."

Libraries Protect Intellectual Freedom

I loved Marie's excellent post last week on Edmund S. Morgan, celebrator of libraries! The wonderful quotes she included made me consider for the first time libraries as storehouses of dangerous ideas, sort of boxes of the ingredients of weapons of mass destruction, just waiting for the right mind to wander in and see how to put it together! (here is the quote!)

[T]here is no more insidious instrument of change than a library in which professors or students or people in general are allowed to read the books.

In fact, in view of what books have done to change the world, it is strange that those who fear change have not succeeded in burning them all long since. The trouble with books is that people will read them. And when they do, they are bound to get new and dangerous ideas. Libraries are the great hothouses of change, where new ideas nursed into being and then turned loose to do their work. And the ideas are not always benign. One thinks at once of Karl Marx, laboring through the musty volumes of the British Museum and emerging with those notions that turned the world upside down. Or the Bibliotheque Nationale in Paris--how much, one wonders, did its volumes contribute to the French Revolution?

As a librarian, I had always considered libraries as full of GOOD ideas, waiting to set people free. And I still think that's most often the truth. The first paper I ever published was about censorship, considering several unorthodox sides of it. Among them, the idea that if you censor information, you only make it spread faster, and make it more desireable. And, the rather more radical thought that censorship might actually be used to level the playing field, deliberately choosing to censor certain messages from majority players in order to disadvantage them in comparison to the minority groups over whom they usually triumph (per Marcuse, Herbert (1969) 'Repressive Tolerance,' in which he argues that tolerance, which is usually viewed as privileging the underdog, actually aids the majority far more.) Wow! That's uncomfortable!

So, here's another uncomfortable thought for all those people happily contemplating the digital libraries of the future. If we are content to digitize all the books and let the control of them fall into the hands of a corporation, even a corporation like Google, with a slogan like "be good, not evil," what kind of fools are we? In 20 years, or 100 years, will Google still be in business? If it has gone into bankruptcy or been through a merger or just has different corporate executives, will it still have the same philosophy guiding its decisions about making the materials freely available? Or what if China makes a coup and controls the country in which the ownership of Google resides? And that national government decides that free access to the books of the world is not in the best interests of the people of the world?

What will happen then if the libraries of the world have decided that, since the digitized copies are all available through Google Books, they don't need to have print copies on the shelves any more?

Multitasking Multitangle

From the Boston Globe Health Science pages today, an article on how multitasking actually saps our efficiency. Tara Ballenger writes "MultiTangle: As we cram more tasks into less time, frustration grows, quality of work drops, and our brains take a hit." Researchers are finding evidence that switching between tasks actually decreases efficiency by a good deal. Every time the brain is required to change tasks, even between something as apparently "auto-pilot" as texting, and walking, the brain takes time to move between the jobs.

At her job in a busy Boston public relations firm, 25-year-old Lillian Dunlap spends her days tending to the needs of clients. She fields emergency e-mails for one business while writing press releases for another and juggling phone calls from everyone. In today’s corporate culture and competitive job market, the person willing to take on the most gets ahead, she said.

“Every client has 10,000 things they need done, and with all the new technology, we’re expected to always be on call,’’ said Dunlap.

Researchers are discovering, however, that constantly switching tasks may be a lot less effective than it might appear.

“When you’re pushing yourself to perform two or more tasks, especially complicated tasks, it’s not beneficial. It’s extremely inefficient,’’ said David Meyer, a psychologist specializing in cognitive neuroscience at the University of Michigan.

In a 2001 study published in the Journal of Experimental Psychology: Human Perception and Performance, Meyer and his colleagues found that people who toggle between tasks lose valuable time in the transitions. The brain must refocus each time it switches activities, and the more complicated the task, the more time it takes to refocus. The time loss can be as little as tenths of a second per switch, but that can add up over the course of a day in which countless e-mails, texts, instant messages, face-to-face interactions, and any number of hands-on tasks involve such switches.

For the really hard stuff - writing important documents, expressing complex ideas, performing calculations - the time it takes for the brain to refocus stretches much longer, said Meyer.

“If you’re right in the middle of a paragraph and get interrupted, it could take hours to reconstruct what was in your mind and re-create the awareness you had before the interruption,’’ he said. (snip)

The very act of multitasking adds to the drain on the brain’s finite supply of real-time resources. Only a few things - breathing, heart rate regulation - can be done without pressuring working memory, said Vanderberg.

“If you can’t do it in your sleep, it is taking up cognitive energy,’’ she said.

For today’s children and young adults growing up in a multitasking world, surrounded by hands-free phones, portable personal computers, and enough Wi-Fi hotspots to stay linked in virtually anywhere, it might seem that young people would be more successful than older adults at multitasking, simply because they’ve had more practice.

In fact, the opposite may be true.

Researchers at Stanford University found that people who regularly juggle various electronic activities - like checking text messages while writing an e-mail and indulging in the latest episode of “Desperate Housewives’’ - actually had the highest deficit in skills that would make them good multitaskers, according to a study published in the August edition of the Proceedings of the National Academy of Sciences.

They couldn’t, for instance, block unimportant information or use short-term memory to switch between two tasks as well as their counterparts who chose to consume one media stream at a time.

Basically, they are distracted.

Ballenger goes on to explain how insidious the distraction becomes; you don't realize it's there. People are so used to multitasking that they don't even realize that their mind is wandering, thinking about something else. When I read this article, I immediately thought of a conversation I just had recently with firm librarians about the life in the firm: everybody is expected to be on call every moment. E-mails are announced with chimes and people are expected to check them as they arrive in case it needs immediate attention.

What are the partners thinking? How inefficiently must these people be working? And then, they are constantly in touch on their Blackberries or I-phones, and being interrupted in this other way. So nobody reads in silence for long periods any more. Nobody is concentrating unless they stay at work after say, 9 PM. Ballenger notes, however, that the multitasking is becoming part of the culture, so that many young people are so saturated in multitasking that they are constantly switching from one thing to another, even when they don't have to. This is not a trend I think will bode well for deep thinking.

Enough already!

One of my favorite writers is Peggy Orenstein, who contributes regularly to the Sunday New York Times Magazine. Her insights about raising children and issues that affect women always seem to be right on target. Her latest column describes her efforts to stay off the Internet. She refers to these efforts as "self-binding," a reference to Ulysses, who "lashed himself to the ship's mast to avoid succumbing to the Sirens' song." In Orenstein's case, the Sirens' song was coming from the Internet, and she was powerless to resist it. Eventually she found an app called Freedom, which works only for Macs, and "blocks your Internet access for up to eight hours at a stretch. The only way to get back online is to reboot your computer, which ... is cumbersome and humiliating enough to be an effective deterrent." Unfortunately, I don't have a Mac and must regulate my own online behavior; I regularly fail to do this, and sometimes find myself using Wikipedia at two o'clock in the morning to find information I don't need at all. I know better, but I just keep clicking on those links, getting deeper and deeper into the virtual hole I have dug for myself and only dimly aware of the passage of time. As Orenstein says, what I am essentially doing is "reflexively indulg[ing] every passing interest," trying to get "answers to every fleeting question ..." This is, of course, impossible, and means I can't give anything my sustained attention. Orenstein concludes with a warning: "[A]s alluring as we can find the perpetual pursuit of little thoughts, the net result may only be to prevent us from forming the big ones."

Password Security

Newsweek has published an insightful discussion of passwords, which it calls "the weak link in computer security." The author, Nick Summers, reveals that he created a password a number of years ago and kept using it "as the requirements for passwords evolved ... [he] added extra nines, cobbled on a question mark, and blended it with [his] alternate password." The result of all this tweaking was a password that would access Mr. Summers's laptop, email, bank accounts, blog, work PC, health insurance, Facebook, Skype, Snapfish, Hulu, tax returns, "and at least 39 other sites across the Internet." After making this confession, Mr. Summer is quick to note that he is changing his password.

The point of Mr. Summer's confession is to highlight how vulnerable passwords are and to showcase the CyLab, Carnegie Mellon University's cybersecurity-research department. CyLab doesn't just study the "mathematical theory behind passwords but the way humans actually use them." The CyLab researchers are exploring a number of different approaches to computer security, including biometrics, cryptography, "strong" passwords, security questions, one-time passwords generated by special devices, and image-based passwords. The author feels that for the short term, passwords, flawed though they are, are the most feasiable option for computer security. Unless there is a major security breach, corporations and other institutions are unlikely to invest in innovations that would likely be very expensive.

Competition for Kindle?

PCWorld has published an article touting Barnes & Noble's new Nook e-reader, which the author, David Coursey, feels will "convince e-book skeptics that this is the time to start moving from Gutenberg to gigabytes." Coursey lists the features he thinks will make the Nook a hit: color multi-touch screen; ease of purchasing e-books from the ubiquitous Barnes & Noble; openness to third-party applications; the ability to "loan" e-books to other Nook users and to users of other electronic devices. Is the price--$259--too high? Coursey thinks so, but believes the price will drop in the coming year. Be sure to check out PCWorld's tour of the Nook. As for me, I'll check it out the next time I'm in Barnes & Noble.

American Heroes

The legendary Edmund S. Morgan, emeritus professor of history at Yale and authority on Colonial America, has published his eighteenth book, American Heroes: Profiles of Men and Women Who Shaped Early America. The link is to a review of the book in the Washington Post. The book consists of seventeen essays, three previously unpublished and fourteen not previously available in book form. The essay of particular interest to readers of OOTJ appears as Chapter 2, "Dangerous Books" and was written in 1959. Morgan recounts an anecdote about a scholar he encountered at a meeting of book collectors who pointed out a book printed in 1625 that was in nearly pristine collection. The scholar said he hoped the book would remain in that condition, unlike the books at Harvard, where "professors [were allowed] to go [into the library] and read ... any old time they have a mind to.'" This observation got Morgan to thinking; he came to the conclusion that

[T]here is no more insidious instrument of change than a library in which professors or students or people in general are allowed to read the books.

In fact, in view of what books have done to change the world, it is strange that those who fear change have not succeeded in burning them all long since. The trouble with books is that people will read them. And when they do, they are bound to get new and dangerous ideas. Libraries are the great hothouses of change, where new ideas nursed into being and then turned loose to do their work. And the ideas are not always benign. One thinks at once of Karl Marx, laboring through the musty volumes of the British Museum and emerging with those notions that turned the world upside down. Or the Bibliotheque Nationale in Paris--how much, one wonders, did its volumes contribute to the French Revolution?

Morgan goes on to give a concrete example from Colonial America, the Yale Library, which "in the eighteenth century took command of the college, subverted the purposes for which it was founded, and transformed it into something utterly different ..." It is a fascinating story, previously unknown to me, and Morgan tells it well. My favorite portion has to do with Jeremiah Dummer, a Harvard graduate, who arranged "an extraordinary donation" of books to Yale's library in 1714. In 1708, Dummer had moved to England, where he served "as agent for the colonies of Massachusetts and Connecticut." Dummer "recognized that what Yale needed more than anything else was books, and, since England was full of authors and patrons of authors, he ... persuade[d] them to donate some of their favorite works to [Yale]." Around 180 individuals, including Sir Isaac Newton, Edmund Halley, Sir Hans Sloane, and Richard Steele, donated more than 500 books. Morgan paints a vivid portrait of the arrival of the books in New Haven:

The unpacking of the crates must have been a moment of singular excitement and curiosity for students and faculty. Here was an enormous variety of riches ... None of those who first opened the volumes and leafed through them could have recognized the full dimensions of what had happened. A century of English literature, science, philosophy, and theology was spread before them. It was as though a group of men today had studied nothing but the textbooks of a hundred years ago and were suddenly confronted for the first time with Darwin, Marx, Hegel, Freud, and Einstein, all at one blow.

For many, of course, it was simply too much to comprehend. To be handed a years' work to do may not be an altogether pleasing experience. And it was a long time before the full effect of the new books was felt. But New England was never the same after their arrival ...

One of the individuals most affected by the new learning contained in the books was Ezra Stiles, a minister who became president of Yale. "[P]laced in reach of the Yale Library, [Stiles] would soon arrive at a number of heretical ideas," one of which was that the Bible was not the word of God. Having "read himself to the edge of deism," he was able to read himself back and conclude that "the Bible was indeed divinely inspired." Like Jeremiah Dummer before him, Stiles wrote to authors all over the world, "begging copies of their works for the college library." As president of Yale, Stiles "not only let the students read what they wanted but encouraged them to discuss controversial questions in every field of thought." Today, this open discussion of controversial issues is part of the college experience, or should be; however, in Colonial New England, this was a radical and courageous position to take.

Morgan concludes the essay with a stirring defense of libraries:

...[W]hile libraries exist, where students and scholars can go to the original sources and discover the facts for themselves, all efforts at control will be futile. The only way to make a library safe is to lock people out of it. As long as they are allowed to read the books 'any old time they have a mind to,' libraries will remain the nurseries of heresy and independence of thought. They will, in fact, preserve that freedom which is a far more important part of our life than any ideology or orthodoxy, the freedom that dissolves orthodoxies and inspires solutions to the ever-changing challenges of the future. I hope that your library and mine will continue in this way to be dangerous for many years to come.

Another View of the Google Book Settlement

By now, reams have been written about the proposed Google Book Settlement. One of the most readable and lucid commentaries, especially on the subject of orphan works (works still in copyright whose copyright owner cannot be determined or located), was published in the New York Times Book Review on October 4. Written by Lewis Hyde, a fellow of the Berkman Center for Internet and Society at Harvard University, the essay lays out the history and purposes of copyright law. Hyde feels that the proposed treatment of orphan works by the Settlement is not in keeping with the history of copyright, and would effectively give Google "unlimited dominion over electronic books." This would amount to a "lasting monopoly in this newest of book trades."

...James Madison explained that copyright is best viewed as 'a compensation for a benefit actually gained to the community.' There were good reasons, he wrote, to give authors a 'temporary monopoly' over their work, 'but it ought to be temporary' because the long-term goal is to enrich public knowledge, not private persons.

Madison honors the same beneficiaries found in the Statute of Anne [enacted in 1709, the first copyright act], the writer and the rest of us. In no case are third parties meant to profit, as the Google settlement would allow. To let them do so would be like letting an executor drain an estate whose rightful heirs cannot be found.

Hyde speaks approvingly of a recent proposal by the Department of Justice that would vest the authority to deal with orphan works in the court, just as we do with actual orphans.

...such a guardian would have to be charged with service to both the rights holders and the public good. He would have to try to find lost owners and pay them their due; should no oweners be found, he would have to devise a way to release these works to the public domain. (He could simply require that users who've been charged for orphans get their money back, or that the fees Google charges libraries be lowered in proportion to revenue collected in error.

Such an approach would ensure that orphan works "enrich public knowledge."

Law.Gov and PublicResource.org: Alternative Gov Docs?

Carl Malamud is posting at PublicResource.org/Law.gov, what he calls "America's Operating System, Open Source." He hopes to garner support, both legislative and monetary, for authenticating and hosting a centralized registry and repository for all primary legal materials. He makes it clear that he is aiming for judicial, legislative and executive branch materials that constitute primary law. He is aiming for the federal level first, and to provide the "open source software building blocks that will allow states and municipalities to make their materials available as well." He specifically compares his vision to the new, federally produced data.gov,

providing bulk data and feeds to commercial, non-commercial, and governmental organizations wishing to build web sites, operate legal information services, or otherwise use the raw materials of our democracy.

Anybody who cares to submit concurring opinions, dissenting opinions, appendices, specifications, or others materials to this report will be invited to do so. It is understood that on a subject as complex as the functioning of our system of justice and our system of legal education there will be many views, and our hope in this process is to stimulate a robust discussion and dialogue on how to move our legal system forward.

Can an effort of workshops, a report, and briefings spur real change in Washington, D.C.? We won't know if we don't try.

This is an opportunity for citizens to help change the way we distribute America's Operating System.

Co-conveners will assist by hosting workshops, symposiums, and other activities during Q1/2010 that will be used as input to the report process. Confirmed co-conveners presently include:

* Professor Pamela Samuelson, Berkeley Law, University of California
* John Podesta, Center for American Progress
* Professor Tim Wu, Columbia Law School
* The Legal Information Institute, Cornell Law School
* Professors James Boyle and Jennifer Jenkins, Duke Law
* Professors Lawrence Lessig and Jonathan Zittrain, Harvard Law School
* Professor Jessica Litman, University of Michigan Law School
* The Oyez Project, Northwestern University
* Tim O'Reilly, O'Reilly Media
* Professor Edward W. Felten, Princeton University
* Robert Crown Law Library, Stanford Law School
* Professor Terry Martin, University of Texas Law School
* Professor Jack M. Balkin, Yale Law School

They specifically reference the AALL "ground-breaking report and AALL National Summit on Authentic Legal Information in the Digital Age...." on the need for authentication of legal information online. Malamud proposes using law students to systematically compare the online versions to print materials for authentication purposes, during the start-up phase. Apparently the students would be unpaid, since Malamud states that the students would gain "reputation points in the registry to demonstrate their public service" when they apply for clerkships or jobs. Malamud has a strict timetable and goals:

It is our goal to deliver, by mid-2010, a detailed report to policy makers in Washington, D.C., including at a minimum:

* Detailed technical specifications for markup, authentication, bulk access, and other aspects of a distributed registry.
* A bill of lading defining which materials should be made available on the system.
* A detailed business plan and budget for the organization in the government running the new system.
* Sample enabling legislation.
* An economic impact statement detailing the effect on federal spending and economic activity.
* Procedures for auditing materials on the system to ensure authenticity.

The original site has links to interesting documents and materials dating from September. More recently, our colleague, Rich Leiter, has taken up the cause in a post at his blog, Life of Books, and Malamud's post at the blog O'Reilly Radar.

Innocence Project Locks Horns with Prosecutors

The Innocence Project of the Medill School of Journalism at Northwestern University was founded in 1999 and "gives undergraduate students firsthand experience in investigating wrongful convictions under ... Professor David Protess, the Project's director." This description comes from the Project's website. The Project has an impressive record--Professor Protess and his students have helped to free eleven innocent men based on new evidence they uncovered. Five of the men were on death row at the time of their release. Former Illinois Governor George Ryan cited the Project's work when he put a moratorium on the death penalty in January 2000 and later granted clemency to all death row inmates in 2003. The Project's successes must have embarrassed Illinois prosecutors, who are now striking out at the students and their teacher.

The Chicago Tribune reports that the Cook County State's Attorney is now focusing on Professor Protess and his students as they prepare for an important trial in the case of Anthony McKinney. McKinney has been in prison since 1978 for the murder of a security guard; the students say they have found new evidence that proves his innocence.

Their efforts helped win a new day in court for Anthony McKinney ... But as they prepare for that crucial hearing, prosecutors seem to have focused on the students and teacher who led the investigation for the schoool's internationally acclaimed Medill Innocence Project.

The Cook County state's attorney subpoenaed the students' grades, notes and recordings of witness interviews, the class syllabus and even e-mails they sent to each other and to professor David Protess ...

Northwestern has turned over documents related to on-the-record interviews with witnesses that students conducted, as well as copies of audio and videotapes, Protess said.

But the school is fighting the effort to get grades and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews not conducted on the record, or where witnesses weren't willing to be recorded.

I can understand why the prosecution would want access to some of these materials--they are undoubtedly seeking to discredit the new testimony the students gathered, and the request is valid. However, seeking materials relating to the students and their academic performance strikes me as a not particularly subtle attempt to attempt to intimidate the staff and students of the Project--these materials have nothing to do with Mr. McKinney's innocence or guilt.

Great Britain's Supreme Court

Great Britain now has a 12-member Supreme Court that functions separately from the legislative branch. For hundreds of years, the highest court of appeals in England was the Law Lords, who were part of Parliament. No more; Part 3 of the Constitutional Reform Act 2005 establishes a Supreme Court as a separate branch of government. It is also separate from the Crown, which for some, is a controversial move. An article from the British online paper, the Media Telegraph, by Tom Whitehead, dated October 7, 2009, "Crown Sidelined from New Supreme Court," reports

Judges in the highest court in the land will be handing down rulings in court rooms that have no symbol representing the Queen, who will formally open the court next week.

The Royal coat of arms is represented in courts across the country but is only present on the front of the Supreme Court and in its library.

Even the court's own formal logo, which carries an image of the royal crown, has been relegated to the front entrance and official documents and communications.

Instead a less formal emblem, which only contains national flowers and vegetables representing each of the home nations, features throughout the building and in the three court rooms – in a bid to be more accessible to the public. (snip)

MPs last night criticised the move and called for the coat of arms to be displayed within the court.

Sir Alan Beith, chairman of the commons Justice Committee, said: "I was surprised. I could not think of any good reason why the Supreme Court had to invent its own crest instead of the royal court of arms, that is a familiar sight in every court room in the country.

"It would surely have been just as appropriate for the Supreme Court?

"The constitutional change was to get the judiciary out of the legislative but it is still very much part of the UK system of governance of which the monarch is the head."

Andrew Rosindell, a shadow home affairs minister, said: "I can understand the Supreme Court having its own (emblem) but it should not be superior to the royal coat of arms.

"It should be prominently displayed in every court. For the Supreme Court not to have that then it is clearly a breach (of tradition)."

The Supreme Court has replaced the Law Lords as the highest court and is home to 11 justices, headed by Lord Phillips, the former Lord Chief Justice.

They are housed in the Middlesex Guildhall in Parliament Square following a £77 million revamp designed to mark a clear separate between the judiciary and parliament, where the Law Lords used to sit.

The Crown has had responsibility for running the courts for more than 900 years and is traditionally represented by the coat of arms.

The official Supreme Court logo instead contains the royal crown and national flowers for England, Scotland and Northern Ireland and a leek for Wales, although Plaid Cymru is also outraged as it is not even a leek but its leaves.

It was designed by Yvonne Holton, Herald Painter at the Court of the Lord Lyon in Scotland, and it was the Law Lords wishes not to have the royal crest.

The emblem was approved by the Queen although Her Majesty never saw the less formal emblem which does not contain the Crown.

According to the Wikipedia article, the new Supreme Court's jurisdiction includes appeals from courts in the United Kingdom's three legal systems: England and Wales (grouped together in the explanation; apparently the law is very similar though Wales now has its own National Assembly to make local laws), Northern Ireland, and Scotland.

The Court's focus is on cases which raise points of law of general public importance. Like the previous Appellate Committee of the House of Lords, appeals from many fields of law are likely to be selected for hearing—including commercial disputes, family matters, judicial review claims against public authorities and issues under the Human Rights Act 1998. The Court also hears some criminal appeals, but not from Scotland as there is no right of appeal from the High Court of Justiciary, Scotland's highest criminal court.

The Supreme Court also determines "devolution issues"

Devolution is the legal process whereby England is returning self-rule to the peoples of Ireland, Scotland and Wales. Apparently, "separation of powers" and transparency were the two main arguments for creating the Supreme Court and doing away with the ancient Law Lords. Concern that the European Court of Human Rights might consider the decisions of the Law Lords not to constitute a fair trial was part of the pressure. As part of the transparency and openness, the British paper the Guardian reported, on October 5, 2009,

The final arbiter of English, Welsh, Scottish and Northern Irish law has been designed around a principle of openness: publicly accessible web updates on the status of cases before the court; discreet cameras in the corner of each courtroom making footage, where appropriate, available to broadcasters; even an interactive exhibition space in the basement where visitors are encouraged to try their hand at judicial decision-making (such as voting on whether the model Naomi Campbell had a right to visit rehab in private – as the law lords ruled she did in 2004).

As was their practice when sitting as law lords, the justices wore neither gowns nor wigs, but ordinary suits, apart from Baroness Hale, the only woman on the 12-member court, who donned a smart grey skirt and jacket with what appeared to be a pin bearing the emblem of the court itself. [a correction issued by the Guardian states that the Law Lords dropped the practice of wearing robes and wigs even before this incarnation, but that barristers continue to wear robes and wigs]

It is tempting to compare them to a gathering of accountants, or a high-powered board of directors; but judges, it transpires, appear exactly like judges even without a yellowing mop covering their heads. For anyone still confused, they needed only to open their mouths; it takes more than the absence of horsehair to disguise judicial vowels.

And yet, in most other respects, the symbols and protocols of constitutional authority were unshaken. The court's home is the Guildhall in Parliament Square, once the home of Middlesex county council, its stone lavishly refurbished, and there is a jaunty carpet throughout designed by Peter Blake.

The imposing neo-Gothic confection of court 1 is overseen by eight huge angels at ceiling height, with elaborately carved oak pews featuring griffins, unicorns, English kings, cherubs and at least one labrador. Spare it is not. In any case, if the judges were in mufti, barristers remained bewigged. Dress-down justice may be some way off yet.

Whatever the constitutional importance of the court, there was no questioning the significance of its first case yesterday. Five men accused of being terrorists are challenging the government's power to have frozen their assets, in a case which observers say could herald fundamental changes to an individual's relationship with the state.

Critics have been surprisingly spirited: the Daily Telegraph called the court's foundation a "perilous" and demonstrative of "Labour's disdain for our country's constitution", while even Lord Neuberger, the new master of the rolls, accused the government of making "what appears to have been a last-minute decision over a glass of whisky".

So which cases would the court preside over? On that, there was admirable frankness. "It is rare for the lower courts in England, Wales and Northern Ireland to grant permission for appeals to go to the supreme court," a poster declared to visitors. Instead, it explained, the court would decide upon its own workload, "which Lord Bingham used to describe as dining a la carte."

Wigs or no wigs, it takes more than a new court to consign judicial eccentricity to the past.

The President of the Court (what in the U.S. we would call the Chief Justice), is Nicholas Phillips, Baron Phillips of Worth Matravers, who was the Lord Chief Justice before the Supreme Court was formed. He is not a hereditary lord. You can follow the link to read the Wikipedia biographical note. More interesting is the British paper, the Guardian, which ran this Profile of Phillips, comparing him with the previous Lord Chief Justice, Woolf, in September, 2005, as he succeeded Woolf in that position. The profile includes a CV but also lots of color and personal detail.

Queen Elizabeth II formally opened the new court October 16, in a ceremony attended by British Prime Minister Gordon Brown and top judges from Canada, Australia, India, South Africa, and Europe. U.S. Supreme Court Justices John Roberts, Antonin Scalia, and Steven Breyer attended the ceremony. Justice Ruth Bader Ginsburg had planned to attend, but became ill just after her plane took off from Washington, and had to miss the ceremony.

Blog Action Day: Climate Change - Social Justice & A Matter of Survival

Introduction
I won't be able to post on Blog Action Day itself, so I'm posting a day early. Climate Change is the issue du jour, and a timely one it is! With the United Nations meeting on Climate Change coming up in Copenhagen December 7-18, 2009, you can visit their official COP15 website. The incoming president of COP15, Connie Hedegaard, has some inspiring comments here about why the nations of the world MUST come to agreement to reduce carbon emissions at Copenhagen. "Failure in Copenhagen is not an option," she says.

She calls Copenhagen a “window of opportunity” which should not be missed, arguing that it may take years to rebuild the momentum.

“If we don’t deliver in Copenhagen, then I cannot see when again you can build up a similar pressure on all the governments of this world to deliver. So I think we should be very, very cautious not to miss the opportunity,” says Hedegaard, adding that “it would be irresponsible not to use the momentum now”.

Connie Hedegaard is basing her optimism on the fact that nations, after months of political stalemate, began to come forward in September and show their positions. Japan, China, India and Indonesia are some of these “key players” who, according to Hedegaard, have brought new momentum to the climate negotiation process.

“In that sense,” she says, “Copenhagen has already delivered results. If we hadn’t had that deadline, these governments would not have come forward with their targets. They are doing so because they know the deadline is coming closer, and they must start to deliver.”

To effectively break the deadlock, however, two more requirements must be fulfilled. Politicians, including heads of state, need to become more actively involved. And developed countries need to come forward with specifics on finance.

“They cannot just continue to talk about finance. They must show – prove – to the developing world, we know that we are going to pay, or there will be no agreement. And the sooner the developed countries deliver on finance, the better.”

Hedegaard admits that the technicalities of the negotiation process are extremely complex, but that shouldn’t be an excuse for not striking a political, binding deal.

“We know what we ought to do on mitigation, on reductions, on adaptation, on technology and on finance. Well, yes, it’s difficult. But my bet is, it’s not going to get any easier by postponing decisions.”

In order to reach an agreement in December, “as little as possible” should remain to be solved when negotiators arrive in Copenhagen. The high-level section of COP15 is only three days, four at the most. Therefore the negotiation text must be rid of “square brackets” – at this point there are still 2,500 remaining – and the political options must be made very clear before the politicians arrive on the stage, says Connie Hedegaard.

Her personal success criteria for Copenhagen?

“I think what matters is that we, when we depart from Copenhagen, with credibility can say we brought the world on the right track, on a track that makes it credible that we can stay below the two degrees average increase in temperature worldwide. That is basically the success criteria we must try to deliver on.”

During the actual conference, Connie Hedegaard sees her own role as that of one who will be trying to mediate, find solutions and look for possible compromises. And provide a push or a nudge where it’s needed.

“It’s not so that the COP president, the host country, can just tell China or the United States or India what they are going to do. They will decide for themselves. But of course we will argue as strong as we can, push as strong as we can and try to seek solutions as much as we can.”

All through the year, Connie Hedegaard has been working to grease the climate wheels by participating in bilateral talks and informal meetings, thereby making herself acquainted with the positions of as many players worldwide as possible. Her own Greenland Dialogue is one of several series of climate discussions running parallel to the main UN track.

The U.S.
Meanwhile, the nations of the world are watching the United States with interest to see if there will be meaningful reductions in fossil fuel use, carbon emissions in this largest consumer country and world leader. After the inspiring rhetoric of President Obama's campaign and early presidency, the world and many in our nation have hoped for great things in this as in many other things. And yet, there are many conflicting interests in the U.S. As for many years, there are those who argue that evidence of "global warming" is manufactured or exaggerated, presenting evidence that they believe counters the prevailing scientific community's consensus. They often characterize the issue as the "climate change fraud," or "global warming scam." Exactly who do they suppose is perpetuating a fraud or scam? Who is going to profit?

These conspiracy-oriented websites fail completely, however, to explain why so many disinterested scientists come up with results that agree. In fact, some of the professional scientists who speak up most strongly about the need for radical change in the way we do business and live our lives do so at great professional and personal risk. James Hansen, of NASA's Goddard Institute for Space, has been publishing and speaking about the dangers of continuing high fossil-fuel use and climate change for many years now, and has testified before Congress on these issues numerous times. Since 1967, his work for the Goddard Institute has been to model global climate. Beginning in 1988, Hansen's predictions disturbed him so much that he stepped out of his lifelong scientific demeanor and began to speak publicly about the long-term threat from heat-trapping gasses, most prominently CO2, that result from burning fossil fuels. He has had run-ins with politicians or their appointees in various administrations, including the H.W. Bush administration and Vice President Al Gore. In 2001, Hansen was actually invited twice to brief Vice President Cheney and other cabinet members on climate change, and some of his ideas were of early interest to the second Bush administration. But by 2004, he began to fall out of favor, and by 2006, Hansen said in interviews that he was being muzzled by the administration, and objected to attempts to censor his scholarly and public communications.

Dr. Hansen and most other climate specialists see the world rapidly approaching a "tipping point" beyond which the change in the global climate would be irreversible. Slowing fossil fuel use NOW is the only way to stop our rapid slide toward this unstoppable change in global climate. It is all too easy to joke about changes in the climate making things nicer by warming winter in New England, for instance. The terrible effects would actually make our children and grandchildren curse our generation for fiddling while our civilization began to burn around us! The magic level of CO2 needs to be reduced to no more than 350 parts per million (ppm); we already have 387 ppm, and rising! Dr. Hansen has found that

Earth’s history shows that an atmospheric CO2 amount of say 450 ppm eventually would yield dramatic changes, including sea level tens of meters higher than today. (snip)it is clear that if we burn all the fossil fuels, or even half of remaining reserves, we will send the planet toward the ice-free state with sea level about 250 feet higher than today. It would take time for complete ice sheet disintegration to occur, but
a chaotic situation would be created with changes occurring out of control of future generations. (snip)

The obvious conclusion is that the only practical way to avoid climate catastrophe is to terminate emissions from the largest fossil fuel source: coal, the dirtiest of the fossil fuels. If coal emissions are phased out between 2010 and 2030, global fossil fuel emissions would begin to fall rapidly... (snip)

Hansen then examines two competing solutions: cap and trade and an actual carbon fee. He concludes that cap and trade has no hope of actually reducing the amount of carbon in the atmosphere to the needed 350 ppm. Hansen lays out his plan for a carbon fee and explains how high it would need to be to become effective. He calculates $115 per ton of CO2 produce, would cost an extra $1 per gallon of gasoline, yet, based on fossil fuel use in 2007, produce

$670 billion, enough to provide a dividend (rebate) for each legal adult resident of almost $3000 per year. With half a share per child for a maximum of two children per family, the rebate would be $9000 per year for a family with two or more children. The carbon fee would provide a strong incentive to replace inefficient infrastructure. It would spur the economy. It would spur innovation. In this fee and rebate approach, a tipping point would be reached as energy efficiency and carbonfree energies become cheaper than fossil fuels. We would then transition rapidly to the era beyond fossil fuels, leaving most remaining coal in the ground, and avoid the need to go to extreme environments to find every drop of oil. We must move beyond fossil fuels anyhow. Why not do it sooner, for the benefit of our children? The fee rate would need to increase in time, but when gas hits $4 per gallon again most of that $4 will stay in the United States, as dividends. Our vehicles will not need as many gallons. We will be well on the way to energy independence.

Social Justice
The richest countries have been the ones burning the fossil fuels for the longest time and in the largest amounts. We have exported some of them from poorer countries. We certainly are in a position to protect ourselves better from the results of climate change as it begins to happen. We can build sea walls and dikes and shore up our beaches, move our houses, and otherwise protect ourselves better as rising sea levels begin to encroach on low-lying areas. Of course, there is only so much you can do if the seas are going to ultimately rise 250 feet, as James Hansen suggests!

Here is an excellent introduction to some of the social justice issues of climate change. One excellent portion addresses the question of why should less wealthy nations have different emissions reduction targets than the wealthiest nations.

Here are the Bali Principles of Climate Justice, released in 2002, by a coalition of nations meeting in Johannesburg. The Unitarian Universalists issued a Statement of Conscience in 2006. And EJCC.org has a helpful and informative website.

An update from the ever-helpful RIPS Law Librarian Blog dated 3/2010, a list of excellent U.S. climate change legal resources. A tip of the OOTJ hat to Yasmin Alexander who created this excellent post!

Google Books Update

Ben Hallman's article at American Lawyer, "Google Books: Scanning the Future," is a dandy update on the Google Books Project. Tip of the OOTJ hat to BeSpacific, for the tip! Hallman notes how many folks piled on criticism of the Google Books Project this summer, and yet remains optimistic that it will survive the re-examination of the Proposed Settlement. Lawyers for those proposing the Settlement, Google, the Authors' Guild and the American Association of Publishers are hurrying right now to beat a deadline to revise the Proposed Settlement, and meet the changes required in the comments by the U.S. Department of Justice. Judge Denny Chin has set November 9 as a target date for filing an amended settlement and the end of December, or early January as the likely date for a hearing on the matter. Hallman reports that even a rejection of the amended settlement would probably not be the end of the matter. The judge could suggest further changes to the settlement that would meet his own objections. However, whatever the outcome, Judge Chin's own involvement in the Google Book Project Settlement will end soon, since On Tuesday, President Barack Obama nominated him for a seat on the U.S. Court of Appeals for the Second Circuit. Then, he offers this analysis:

Given the scope, size, and sheer audacity of the proposed agreement-Google stands to emerge as the biggest library and bookseller in the world-the controversy doesn't come as much of a surprise. Lawyers who have studied the terms say it is the most creative use of the class action mechanism they have ever seen. If replicated, some say, it could change how businesses use class action law to resolve disputes, and could even lead to collectivized solutions to copyright disputes in other media-music, photos, and journalism, for example. Fred von Lohmann, a lawyer for the digital rights group the Electronic Frontier Foundation, says the proposed settlement may encourage stakeholders to "stop worrying about control, and to start worrying about remuneration. (snip)

The two major professional associations in the publishing world, the Authors Guild and the Association of American Publishers (AAP), immediately protested, and demanded that Google stop its scanning operation. The scanning violated copyright law, they said. Google briefly paused its project, but in the summer of 2005, Eric Schmidt, Google's chief executive officer, told book executives at a meeting that Google didn't need their permission. While the entire database of books would be searchable, Google would limit the amount of text that an end user would see to a few lines at a time, he said. This, he said, was allowable under the "fair use" provisions of copyright law.

The line in the sand was drawn. In September 2005 the Authors Guild filed a class action lawsuit against Google in federal court, soon joined by five major publishers and the AAP. Copyright lawyers and digital rights advocates licked their lips. Here, at last, was a showdown between motivated and well-funded parties that could help settle a murky area of copyright law: What, exactly, constitutes fair use in the digital realm?

But a curious thing happened on the way to the courthouse. Instead of litigating, the parties began talking about how a broad licensing agreement might work. Allan Adler, vice president of legal affairs at the AAP, says his organization quickly realized that "a judicial resolution of this suit wasn't going to take us very far." If the authors and publishers were to win in court, a tantalizing new possibility-the reincarnation of millions of out-of-print, mostly forgotten books in digital form-wouldn't happen. If Google were to win, it would still be barred from doing more than scanning and displaying snippets of text. Here was a chance, the parties saw, to craft a licensing deal that would give Google the rights to scan, display, and sell millions of unavailable copyrighted works, with most of the profits returning to the copyright holders.

There was another motivation for the settlement. Lawyers familiar with the talks say the book publishing industry had watched in horror as the music business waged a scorched-earth campaign against file-sharing sites like Napster, only to see their profits plunge and antipathy to their tactics grow. They didn't want to follow the same path.

In the spring of 2006, executives and lawyers began e-mailing various proposals about how a comprehensive settlement might work, say lawyers familiar with the negotiations. The authors were most interested in getting paid for their out-of-print works. The publishers, meanwhile, wanted to ensure nothing could be done with in-print books without their permission. Google wanted a deal that would incorporate the most troublesome class of books: in-copyright, out-of-print books, for which the rights holders cannot be determined. These so-called orphan books encompass works that were published anonymously, or, more commonly, where the author has died and the rights have been passed on to an unknown heir. (No one knows exactly how many in-copyright books are "orphans" in the United States. Some estimates peg the number at about 1 million.) (snip)

The deal solved two problems-the orphan-works issue and the logistical challenge of tracking down individual rights holders-by requiring publishers and authors who don't want to participate to "opt out." This is where class action law and copyright law collide headlong. The opt-out, of course, is standard under class action law. But no one has ever used an opt-out to sidestep copyright law, which requires a rights seeker to affirmatively ask for permission to use a work. For this reason, lawyers in the digital rights community say that the settlement, if approved, could be the biggest thing to happen to copyrights in a generation.

Andrew Bridges, a Winston & Strawn copyright lawyer, says Google used the class action procedure as a "speedy and creative alternative" to two other mass book licensing paths that would have failed. The first path would have been to strike individual deals with rights holders, a prospect that Bridges says is "impossible at the scale at which Google is operating." The other path would have been to hope for a legislative solution. Bridges says this would be the preferred option, except that the political climate for copyright legislation "lets very few things happen that make so much sense." Congress has been debating what to do with the orphan-works issue for years, for example, but has never taken action.

"I give Google an enormous amount of credit," says Randal Picker, a University of Chicago Law School intellectual property professor. "They had a smart legal strategy that drove the business strategy."

A DEAL WOULD ALTER the copyright universe. A decade of combat over the meaning of copyright in the digital age has produced few winners. Basic questions about how to value and protect content remain unsolved. How do content creators, for example, cope with the rapid technological advances that have freed intellectual content from physical media such as books, compact discs, and newspapers?

No one has suffered more casualties than the music industry, which has gone after infringers with furious desperation. From a litigation standpoint, the industry has won every battle, beginning earlier this decade when it sued file-sharing companies Napster, LLC, and Kazaa BV out of business and continuing through this year, when the Recording Industry Association of America won a $1.92 million verdict against Jammie Thomas-Rasset, a Minnesota woman who had shared music over the Kazaa network. From a business perspective, the strategy has proved both ineffective-a recent study in the United Kingdom found that the iPod of the average 14- to 24-year-old held 842 illegally copied songs-and a public relations fiasco. (Richard Marx, whose song "Now and Forever" was one of those that Thomas-Rasset downloaded, issued a statement in which he said, "I'm ashamed to have my name associated with this issue.") In response to the criticism, the RIAA has said that it doesn't intend to pursue new cases.

Given the difficulties that Google still faces putting together a deal, how likely is it that such a feat could be replicated for the music business? Von Lohmann at the Electronic Frontier Foundation is cautiously optimistic. He says that there has already been some movement toward a collectivized licensing of music. Warner Music Group Corp. is creating a service called Choruss, which will seek to cut deals for blanket downloading licenses to universities, and, eventually, individual users. Two other record labels have joined the project, which is still in the development stage. Any Choruss deal, of course, would probably be a strict licensing arrangement between record companies and the universities. Also, there is some precedent: Rights clearance member organizations ASCAP and BMI already license live and broadcast performances. (snip)

[Others are less hopeful that the music industry could follow the Google model successfully...] UCLA law professor Douglas Lichtman says that Google is trying to make a "sweetheart deal" for itself that can't be replicated by a competitor through a standard contract. Foreign authors have cried foul, claiming Google doesn't have the right to scan their works. European litigation over the deal is ongoing. U.S. register of copyrights Marybeth Peters told a congressional committee that the settlement is "fundamentally at odds with the law," and that it usurped a role occupied solely by Congress.

In its opposition, Justice struck a similar note: "A global disposition to the rights of millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement." But, at the same time, the opposition held out hope for the parties: "A properly defined and adequately represented class of copyright holders may be able to settle a lawsuit over past conduct by licensing a broader range of conduct to obtain global 'copyright peace.'" Modify the settlement, the Justice Department seemed to be saying, and it would back the deal.

What needs to be done, in the government's eyes? First and foremost, address the antitrust issues. As it stands, Google and the authors and publishers have agreed to certain pricing algorithms and discounting agreements that will apply to out-of-print books. Justice takes a dim view of these "joint price-setting mechanisms." The parties will also need to reassure the government that competitors will also have access to all the scanned books, including the orphan-works collection.

The parties must also resolve a conflict that the government says exists between class members and absent rights holders. Under the current proposal, class members have no financial incentive to track down absent rights holders. The government says that making the deal an opt-in rather than opt-out agreement would solve this concern, but also notes that other solutions might work. The parties, for example, could use proceeds from the sale of orphan books to fund a search for these missing copyright holders.

If not quite a road map to a revised settlement, the Justice letter at least suggests an acceptable finish line. Can negotiators get there? It won't be easy, but neither was crafting any kind of deal in the first place. The good news, for Google, for the class members, and for those who hope a completed deal would spur other content providers to make their products universally accessible, is that the Google book search settlement's most powerful critic-the Justice Department-also supports its negotiator's broader aims. "A properly constructed settlement," Justice's filing says, "has the potential to breathe life into millions of works that are now effectively off-limits to the public."

China-U.S. Rare Book Digitization Project

The Boston Globe reports today on an agreement between the Harvard-Yenching library and the National Library of China to work jointly to digitize the Harvard collection of rare books, manuscripts and scrolls. The Chinese government is paying most of the costs, while Harvard staff are performing the work of scanning the rare material, and any preservation and repair work necessary.

Once completed, these images dating as far back as the Song Dynasty in 960 AD, will be publicly available for free on the Web to scholars in China and elsewhere.

“We need to change the mindset that rare materials must be kept behind closed doors,’’ said James Cheng, the head librarian at Harvard-Yenching, a separate building just outside Harvard Yard. “A library is not a museum.’’

Furui Zhan, who oversees his country’s national library in Beijing, said this is China’s first major digitization project of rare-book collections outside China. Depending on how it goes, he said, his library may join with other institutions on similar projects. He said the goal of this venture is to enable scholars everywhere to have access to the richness of China’s history through access to its documents.

“We have to respect history,’’ said Zhan, whose library celebrated its 100th anniversary this fall with the theme of “Pass on Civilization, Serve the Society.’’

Scholars present at the ceremony said the digitization of ancient texts is a windfall to the study of Chinese history because many of them have ended up in institutions throughout the world, largely due to China’s political upheavals over the past century. Professor Wilt Idema, chairman of Harvard’s East Asian Languages and Civilizations Department, said many books at the Harvard-Yenching library were brought out of China in the 1930s and 1940s.

“China has gone through a very rough time,’’ he said. “Part of the Chinese heritage has ended up outside.’’

The project enables Harvard to provide universal access to researchers while preserving the delicate, aged items. Repeated physical handling of the ancient works could damage them; security is also an issue. Harvard-Yenching had 41 books and two scrolls snatched from its secure rare-book collection in 2000, one of several thefts at Harvard libraries reported over the years.

Capturing images of these ancient works is a painstaking process. Items will be laid out carefully on flat surfaces in climate-controlled rooms and snapshots will be taken by sophisticated cameras, a Harvard spokeswoman said. Items needing repair will be sent to a special conservation area before being digitized. This project involving Chinese rare books is distinct from Google’s pilot program with Harvard to digitize some of its library collection.

The collection at Harvard-Yenching library was built largely by Alfred Kai-ming Chiu, its founder, who began assembling the impressive collection of rare Chinese books in the late 1920s and set the worldwide standard for cataloging works from across Asia. Its works include an extensive collection of Chinese rubbings, translations of Bibles in different dialects, and manuscripts from the Naxi minority tribe in southwest China, which used one of the world’s last pictographic languages....

[Cheng, the Harvard-Yenghing librarian, met Zhan last November at an international librarians' conference in Macau, where he broached the idea of the shared project.] After Cheng explained his idea of digitizing Harvard’s collection - which focuses on writings from the Song, Yuan, Ming, and Qing dynasties Zhan showed immediate interest. He promised to get back to Cheng.

A few months later, Cheng took three trips to Beijing to negotiate details of a potential contract. Staff members of the National Library of China took two trips to Harvard over the past year to examine the quality of its digital imaging equipment and to go over the items in the rare book collection.

Yesterday, at a long wooden table inside the Harry Elkins Widener Memorial Room in Widener Library, the deal was signed. Nancy Cline, the Roy E. Larsen Librarian of Harvard College, and Zhan each put their pens to the written contracts.

“This signing is just the beginning of the six-year project,’’ Zhan said.

The image is from the Globe article. The caption reads, "A manuscript from the Naxi tribe, which used pictographic language. (Harvard College Library)."

Could Google Wave Change How Librarians Cooperate?

The Chronicle of Higher Education, in its Wired Campus column for Friday, October 9, 2009, wonders "Could Google Wave Replace Course-Management Systems?" (also available in print). Jeff Young writes, in part, that while Google is touting its new Wave to replace e-mail, "...blending instant messaging, wikis, and image and document sharing into one seamless communication interface...," others are more excited about replacing course-management software with it. It's difficult to tell so far because Wave is in ultra-beta right now, by invitation only, with only about 100,000 invitations extended. But each invitee can invite 8 friends, each of whom can then invite 8 more friends. So, the Wave pilot is slowly growing.

Google has posted an hour-long video demonstration of the system that drew quite a buzz when it was unveiled in May. That has sparked speculation of how Wave might be used.

Greg Smith, chief technology officer at George Fox University, did manage to snag an invitation to try Wave, and he too says it could become a kind of online classroom.

That probably won't happen anytime soon, though. "Wave is truly a pilot right now, and it's probably a year away from being ready for prime time," he said, noting that Wave eats up bandwidth while it is running. Google will probably take its time letting everyone in, he said, so that it can work out the kinks.

And even if some professors eventually use Wave to collaborate with students, colleges will likely continue to install course-management systems so they know they have core systems they can count on, said Mr. Smith.

Then again, hundreds of colleges already rely on Google for campus e-mail and collaborative tools, through a free service the company offers called Google Apps Education Edition. Could a move to Google as course-management system provider be next?

That video demonstration is on YouTube and is very interesting. Google unveils Google Wave at Google I/O 2009 to a crowd of enthusiastic developers, because they hope, while the Google programmers put the finishing touches on Wave, these developers will be creating apps for Wave at the same time. That's because Google Wave is open source. And the programming is easier than it might be otherwise because it can all be done with Google Toolkit.

The little article in Wired Campus does not have nearly the detail of the lengthy video demo, which is fun to watch. Librarians watching the video might have lot of ideas for uses for Google Wave beyond what the chief technology officers and professors who have thought about Wave have considered. It does take e-mail, instant-messaging and shared document production to new places. It allows adding people to conversations retroactively and making them instantly privy to the whole chain of what has been said. It allows tracking who is responsible for changes to documents, while also creating a version that is clean and ready to post, with one easy click. You can drag and drop to share photographs. Filing and linking, interlinking documents, all can be made automatic or not. It's a very slick and interesting program.

Course Material Republishing Sites Or Plagiarism Resource?

Inside Higher Education has a story, "Course Hero or Course Villain?" about a slew of new course material republishing sites that purport to be making life easier for students, like a gigantic study group.

Aside from the parties and networking opportunities, one of the perennial perks of Greek Life has been the coveted “test file” — a collection of past exams and papers from various courses.

A new breed of study-buddy sites offers these resources to everybody, not just those who have endured Greek initiation rites. Companies such as Notehall [motto: Buy and Sell Class Notes], Knetwit, and FindMyNotes.com have long hosted online markets where students can buy or sell class notes. Now, sites such as Course Hero and OutlineSumo.com invite students to post and download syllabuses, worksheets, essays, previous exams, and many other course materials.

At Course Hero, a site that lately has been the subject of much hand-wringing among campus information technology officers, users can either shell out $30 for a month-long subscription or pay in uploaded documents. Forty documents equals one month of access to all the files posted by the site’s users. The company says millions have visited the site since it was unveiled a year and a half ago.

The purpose of Course Hero, according to David J. Kim, the company’s president and CEO, is to “maximize and accelerate academic breakthroughs by students.” By providing a place where users can share documents and communicate on discussion boards, Kim said, the site allows students across the world to leverage others’ knowledge in order to deepen their own — like any study group, but exponentially larger. The webmaster of OutlineSumo.com makes similar statements, that his site "...allows users to upload law school outlines and view outlines uploaded by other students. Outlinesumo.com is a 100% free resource. We do not charge our user a single penny and we do not spam." However, when I look at OutlineSumo.com, I do see several instances of links to professors' own handouts and materials.

Some professors and administrators, however, have chafed at the idea of a site that encourages students to take professors' intellectual output, post it without permission, and then allow a company to sell access to it for profit. Note that OutlineSumo is not-for-profit, giving away the links for free. However, if professors are unhappy about their intellectual content running loose on the web, they should periodically check these sites.

“If I put the time and effort into developing a brief summary of a class I was teaching or a particular lesson, I would be extremely disappointed if it were put on the Internet and people were making a profit off of it, especially without my permission,” said Gina Mieszczak, who taught at DePaul University for three years before joining the Illinois Institute of Technology as a network security administrator.

I went to Course Hero, which is organized by state, and browsed around Massachusetts law schools a bit. To tell the truth, most of what students have put up there is pretty useless trash. In order to meet the 40 documents free subscription target, students seem to have uploaded professors' articles, student law review notes, odd hand-outs, and pretty much whatever they could get their hands on in digital format. They also seem not to care much what bucket they dump the stuff into. I found BC in Massachusetts confused with the University of British Columbia, though I think that's the site administrator, not the students. But the students seem to be dropping duplicate copies of the same materials in Con Law II and Health Law course slots, regardless of what the materials appear to be: client letters (copied twice), and even a Spanish-language comparison of Christopher Columbus and Amerigo Vespucci, all in the Constitutional Law II tab for Boston College. There is a syllabus and a handout from a professor, as well as a student outline. At the Suffolk site, it's all law review articles. At DePaul University, in Illinois, the Law site is a bunch of tables, possibly from a university self-study or accreditation, surveying different student groups' satisfaction with their decision to attend the school. In short, despite the article, for law schools, unless the loading on Course Hero changes in the future, it is such a worthless site for students that it is likely to remain a no-worry site for posting final exams or papers to plagiarize. The earlier listed sites may be more to worry about... for now. So far, OutlineSumo.com does not carry any material from Suffolk, though it has several other Massachusetts law schools, and it is focused entirely on law schools across the U.S. and Canada. Concerned faculty and administrators should be checking sites regularly.

Supreme Court Video Game

Another Washington Post article by Kashmir Hill and David Lat reports on video games promoted by retired Supreme Court Justice Sandra Day O'Connor, who is hoping they help educate a public where children cannot name the three branches of government. The article names Supreme Decision as the better game, and continues the review:

a middle school student has sued his school for preventing him from wearing a T-shirt featuring his favorite band. You play a Supreme Court clerk, advising your boss, Justice Waters, on how to rule in this First Amendment case. O'Connor, an advocate for more diversity on the bench, incorporated some wish fulfillment into "Supreme Decision": Women outnumber men on a racially diverse virtual court. (O'Connor did not design the games -- outside companies did -- but when we asked about the composition of the virtual bench, she coyly admitted to having a hand in "details of that type.")

The other game, "Do I Have a Right?", is a primer on the Bill of Rights. Your role is less glamorous: You work at a pro bono law firm, essentially as a receptionist, introducing clients with civil rights cases to lawyers with expertise in the appropriate amendments. Consultation between the lawyers and the clients is simulated with a talk bubble reading "Yadda yadda," reinforcing the stereotype that law is boring and overly complicated.

One allure of video games is being able to do things we can't do in real life. Playing a law firm receptionist or a Supreme Court clerk, the prestige of the second job notwithstanding, probably won't hook middle-schoolers like "World of Warcraft" does. The simplistic animation and Web 1.0 interface might not appeal to kids raised on real-time 3D graphics and the virtual reality of the Xbox. "Fun" is relative, though. The Our Courts games are engaging enough for the classroom -- and probably better than a textbook at helping students understand judicial decision-making.

The Our Courts project highlights a broader challenge for civic education -- not just for kids, but for their parents. While appearing on "The Daily Show" in March to promote Our Courts, O'Connor noted that only a third of Americans can name the three branches of government, while 75 percent can name one "American Idol" judge. Jon Stewart responded: "We're going to need more than a Web site."

The article goes on to support Justice O'Connor for lighting a candle, rather than cursing the darkness, and urges the current Supreme Justices to consider allowing televising of court proceedings. The authors of the article are editors of the blog, Above the Law. And at the end of the Post article, there is a link to a video of Lat discussing the video games.

New Access to the Federal Register: Data.gov

The federal government just unveiled its new, improved interface for the Federal Register: Data.gov. The Washington Post ran an article by Ed O'Keefe today, "A More Web-Friendly Register With Federal Data in XML Form, Users Have New Options," that covers the switchover.

Starting Monday, issues dating back to 2000 will be available at Data.gov in a form known in the Web world as XML, which allows users to transport data from a Web site and store it, reorganize it or customize it elsewhere. Officials suggested that the move puts readers, rather than the government, in charge of deciding how to access the Register's reams of information.

"In much the same way that newspapers have looked at making content more accessible by changing the print and typeface, we can now do the same thing by making the Federal Register available such that people can manipulate it and customize it and reuse the content to make the information even more accessible," said Beth Noveck, director of the White House Open Government Initiative.

Monday's launch is the outgrowth of President Obama's first executive order, which mandated greater transparency in federal government.

The article quotes Mary Alice Baish of AALL, praising the change (hooray!), and notes that it cost the government $100,000 to convert files back to 2000 to XML, and would cost another $150,000 to convert the files from 2000 back to 1994 to XML.

If you look at the site, you will find a very nice tutorial explaining how to make the most of the new interface. There are three types of catalogs:
* raw data catalog (platform-independent, machine readable datasets in a variety of formats)
* tool catalog (simple, application-driven access to Federal data with hyperlinks; this features widgets and data-mining and extraction tools, applications, and other services)
* geodata catalog (trusted federal geospacial data, with links to download datasets with a metadata page with details on the datasets, as well as links to more detailed Federal Geographic Data Committee

There is also an FAQ, and multiple ways to combine searches.

Search the Catalogs: You may search the data catalogs in a few different ways and each catalog has their own specific search criteria relative to the catalog:

1. View All Data: If you don't enter in any search parameters in the search box, and click submit, you will receive all of the records in the data catalog.
2. Search by Keyword: You can search the "raw" data catalog and the tools catalog by keyword.
3. Search "raw" data by file type: You can search the "raw" data catalog by file type (e.g., XML, CSV/Text, KML/KMZ, ESRI, Other)
4. Search by single/multiple category: You can search by either a single category or by selecting multiple categories.
5. Search by single/multiple agency: You can search by either a single agency or by selecting multiple agencies.

Tip of the OOTJ hat to my wonderful colleague Susan Sweetgall for passing along the Washington Post story!

Google Books = Happy Publishers

The Google Books Settlement remains controversial, especially because of the "orphan books" provisions governing titles that are probably still under copyright but for which the copyright holders are unknown. Concerns about these provisions led United States District Court Judge Denny Chin to postpone an upcoming hearing so that the agreement could renegotiated. One group is happy about the Google Books Settlement, however, and that is publishers, according to this story in the October 3 edition of the Boston Globe. Google has made good on its promise to "bring to light books that otherwise would be nearly forgotten." This is happening thanks to the Google Books Partner Program through which publishers agree to Google's scanning copyrighted works and making them searchable through Google. "The majority of publishers in the program allow Google to preview 20 percent of each book. Google monitors Internet traffic patterns to prevent users from logging in multiple times and cobbling together the entire contents of a book." In addition, Google links to the publishers' websites and to online book retailers. At least one publisher now "uploads a digital file of every new title to Google as soon as the print version is published, [making] Google Books ...a fundamental part of the firm's book marketing plans." However lucrative this may be for the publishers, it is worth remembering that the publisher program solidifies Google's monopoly and makes it difficult for smaller organizations to compete.

ABA Reviews Apps

The October, 2009 issue of the ABA Journal (and online) has a great review of lots of great applications of interest to practitioners. "70 Sizzling Apps, for PC, PDA and SmartPhones," by G.M. Filisko does a nice job, talking to users. From librarians' point of view, the most interesting, of course, are the research and reference apps, and I've extracted that portion of the article, but there are lots of other apps, from document display, to productivity, accessibility, task management to maps, fun and games.

RESEARCH AND REFERENCE

The iPhone offers a free app of the text of the U.S. Constitution. WaffleTurtle Software also offers a $.99 version that allows you to search the text. For additional founding documents for $.99, there’s the iPhone’s Manual for the United States of America with the Constitution, the Federalist Papers, the Gettysburg Address, the Patriot Act and more.

The first foray into iPhone and iPod Touch apps by West, part of Thomson Reuters, features the eighth—and most recent—edition of Black’s Law Dictionary. The legal standard costs $49.99. “People are used to apps being cheap, so instinctively people wonder whether it’s worth the money,” says Richardson. “But I think it’s a good value considering how much the book and a version on your computer cost.”

[note to OOTJ readers: when I searched West's pages, I found a combined product, Black's Digital Law Dictionary, 8th, with Words and Phrases, with Black's Law Dictionary, Pocket 3d, Bundle Package which costs $105. I did not find a standalone 8th edition Black's in electronic format for $49 on the West product page by searching for "Black's Dictionary" either as a book/cd, software or other product. I did find a 9th edition of the Black's Dictionary available in print for $75.]

WaffleTurtle offers searchable iPhone apps of the Federal Rules of Civil Procedure ($2.99); Federal Rules of Bankruptcy Procedure ($2.99); Food, Drug and Cosmetic Act ($4.99); Federal Rules of Appellate Procedure ($2.99); Federal Rules of Criminal Proce­dure ($2.99); Federal Rules of Evidence ($2.99); Lanham Act ($2.99); local patent rules from seven federal district courts whose dockets attract great numbers of intellectual property cases ($2.99); Sarbanes-Oxley Act ($1.99); securities laws including the Sarbanes-Oxley Act, the Securities Act of 1933, the Securities Exchange Act of 1934, the Invest­ment Company Act of 1940 and the Invest­ment Advis­ers Act of 1940 ($4.99); federal copyright code ($1.99); and federal patent laws ($2.99).

“I frequently use these apps,” says Richardson. “It is incredibly useful to have the law in your pocket.”

Get definitions, synonyms, audio pronunciations, sim­ilarly spelled words and the word of the day for free on your iPhone with Dictionary.com, which includes a thesaurus.

And if you need to go back in time, there’s an app for that too. Lawyers who are out of the office can use the free Firefox browser app Resurrect Pages.

“We have a case in which a company’s terms and conditions are at issue,” says Mack Sperling at Brooks, Pierce, McLendon, Humphrey & Leonard in Greens­boro, N.C. “Our opponent says, ‘On this day, we had these terms and conditions on our website.’ My partner pulled up the webpage for that particular date, and they weren’t there.”

Evernote is a handy free app for clipping articles online, taking notes or recording a voice note on the go, says Hafen. “I use it to collect language I’ve used in past arguments, information I might use in a future motion, and snippets from opposing counsel’s briefs. I organize it by subject matter and tagging so I can find information quickly. The key for me, though, is that it syncs flawlessly with Windows, my Mac at home and my iPhone.” It’s also available for the BlackBerry.

If you don’t have the time to read every legal website and blog every day, signing up for RSS (re­ally simple syndication) news feeds sends the headlines directly to your computer or mobile device. “FeedDemon for Windows is my favorite RSS reader,” says Hafen of the free app. “I use it to stay abreast of my practice subject matter, changes in the law and recent decisions. It also helps me stay current on industry news and current events, and syncs flawlessly with my Mac and iPhone.”

Walter Reaves, a solo in Waco, Texas, uses the no-cost Google Reader. “I couldn’t live without it,” he says. “I also just installed a free Firefox app, Accessibar, which allows you to increase the text size.” Accessibar also allows you to manipulate a webpage in other ways to make it easier on your eyes, including increasing line spacing and providing text-to-speech reading as you hover over type.

[Note to OOTJ readers: there are other Firefox apps that also do this as well as functions in browsers to "zoom" which enlarges as well]

Also available for free are two providers of syndicated content and social media services: NewsGator for various platforms and Viigo for the BlackBerry.

Not sure your search engine is pulling up the results it should? Surf Canyon, a free Firefox and IE browser app, claims to accelerate your search process with Google, Yahoo, Live Search, Lexis Web and Craigslist by finding relevant results even if they’re buried in page 100 of your search results. With each search, Surf Canyon adds a bull’s-eye icon you can click on to highlight the additional results.

Don't forget to look at the rest of the article. Librarians will be interested in the other apps, too. And don't forget users of Firefox have lots of other apps they can choose from, and reviews to help them choose. Look here for the centralized Firefox Addons home. i-Phone users have:
AppCraver that provides free apps and reviews
iPhone App Reviews.net/ does the same, though it seems to be un-edited.

Blackberry sells apps here.
ifones.com And PC Mag reviewed Blackberry Apps last April here, "20 Top Picks from Blackberry App World. More currently, BB Geeks reviews them here.