Trial by Ordeal

Today's Boston Globe includes a provocative article entitled, "Justice, medieval style." As history, it is extremely interesting; as public policy, it is questionable. During the medieval era, "Europe's legal systems decided difficult criminal cases in a most peculiar way. When judges were uncertain about an accused criminal's guilt, they ordered a cauldron of water to be boiled, a ring to be thrown in, and the defendant to plunge in his naked hand and pluck the object out. The defendant's hand was wrapped in bandages and revisited three days later. If it survived the bubbling cauldon unharmed, the defendant was declared innocent. If it didn't, he was convicted.

These trials were called 'ordeals.' They reached their height between the 9th and 13th centuries, and the methods varied. ...
Modern observers have roundly condemned ordeals for being cruel and arbitrary. Ordeals seem to reflect everything that was wrong with the Dark Ages. They're an icon of medieval barbarism and backwardness."

The author of the article, Peter T. Leeson, visiting professor of economics at the University of Chicago's Becker Center on Chicago Price Theory, disagrees with this assesssment. Professor Leeson, who has written extensively about pirates, also wrote an article entitled, "Ordeals," in which he further develops the argument he puts forth in the Globe piece. Professor Leeson believes that the "ordeal system worked surprisingly well" at sorting out the guilty from the innocent. Furthermore, "the ordeal system suggests that pervasive superstition can be good for society."

Ordeals were based on a medieval superstition called "iudicium Dei"--the judgment of God. ... God helped man resolve judicial matters through trials of fire and water. The superstitious "logic" that underlay ordeals was based on divine intervention. God ... saved innocent defendants from being burned in hot ordeals and allowed guiltless men to sink in water "over which He hath thundered: in cold ones. The ordeal, then, offered a way for God to render judgment.

The system would not have worked if people had not believed in it. Because the guilty would have expected to have their guilt revealed through the ordeal, they were eager to avoid it "by confessing their crimes, settling with their accusers, or fleeing the realm." The innocent expected to be exonerated, and willingly underwent the trial by ordeal. Knowing that only the innocent would submit to the ordeal, the priests, who administered the system, manipulated the process and the outcome. They could see to it that the water wasn't boiling or the iron wasn't burning, or make whatever other adjustments were needed to make sure the innocent were not convicted. Ordeals were ended in the 13th century by Pope Innocent III who felt that they were "antithetical to Christian doctrine." This is where Professor Leeson lost me.

He writes that ordeals "improved criminal justice. Ordeals are inferior to modern trial methods because modern defendants don't believe in iudicium Dei, not because trial by jury is inherently superior. If modern citizens did have the superstitious belief required for ordeals to work, it might make sense to bring back the cauldrons of boiling water." Why is the ordeal superior? Jury trials cost a lot of money, take a lot of jurors' time, and require lawyers. Wouldn't it be more efficient to bring back a system that requires only that people "believe[] that an invisible, omniscient, and omnipotent being would severely punish them and their families, not just in an afterlife, but in this one as well, for cheating, stealing, and dishonesty." Professor Leeson discusses the role of superstition in modern societies, and concludes that some superstitions are "socially productive." It seems to me that his theories could be used to justify torture; waterboarding, after all, was used to determine the guilt of women accused of witchcraft. No one ever claimed that jury trials were cheap or efficient, but they do seem to guarantee the best opportunity for a defendant to make his or her case.

Westlaw Next

Ashlee Vance, Jan. 24, 2010: NY Times Legal Sites Plan Revamps at Rivals Undercut Price Sees the new Westlaw Next as part of the longtime rivalry with Lexis and a new reaction against competition from Google and Microsoft.

Jill Schachner Chanen, ABA Journal Exclusive Inside the New Westlaw, Lexis & Bloomberg Platforms pretty much sees the new development the same way, as a reaction against Google and Bloomberg eating at the Westlaw - Lexis "duopoly." Schachner Chanen does a bit more in-depth reporting, but merely saying that Westlaw Next is "googlizing" legal research misses a great deal of what this product brings to legal researchers.

There have been several reviews, as above, of Westlaw Next (WLN, sometimes called Project Cobalt), the new version of Westlaw that will be released to the law firm market on February 1, 2010. My understanding is that law schools will be given passwords then for faculty and staff, but not students. The last I heard, they had not decided about law school pricing -- whether they would charge the law schools anything extra for the upgrade. The pricing is supposed to be as a “modest premium addition” to the original Westlaw, since it’s designed to make researchers more efficient and effective. That is, it’s partly designed to make good researchers more efficient and effective and to make poor researchers effective. It’s set up to automate behind the scenes what good researchers do, so that even poor researchers can have some pretty good results.

As a long-time teacher of legal research skills, I have to say it gives me some really mixed feelings. I worked hard to gain the skills I have and value and honor them and those I meet who likewise have honed their legal research chops. And yet, there is no reason why computing power should not be making many of these tasks easier for us all. This is what the dream of the future is all about. I suspect there will still be levels of skill. Reference Attorney Greg Garrick said his advice to formulate the best query would be “What would your ideal case say? If you can’t articulate that, go back and think a bit longer.” Since that is pretty much what you need to do now for a good Natural Language query, I think we will still see levels of skill.

The new Westlaw Next (WLN) has been in development for more than five years, and it shows. It is a very slick and well done piece of software. The programmers thought carefully about how researchers work and interface with Westlaw, and did huge amounts of research at all levels of use. They looked at useability; what causes confusion in users, and what makes sense to them. They did in-depth analysis of users’ real research logs, recreating the searches and looking for opportunities to improve the search, retrieval and ranking. They analyzed eye-tracking of large numbers of users, and found that bright, flashy designs actually drove the eyes away. Focus groups and design reviews, performance testing where real associates were hired assigned research tasks and paid as though it were a case for a regular client, all went into testing this product. They added all kinds of cool tools to increase user efficiency. They have folders to store the research results with drag and drop functions. The results can be stored for one year, shared with others in a group who have Westlaw passwords, searched with Westlaw power, and subdivided into other folders within the main folder, exported, and so on.

The final analysis is that users come to Westlaw for legal research for two primary types of tasks: 1) known document retrieval and 2) exploratory issue-based research. The first needs to be made as simple as possible. The second is the real heart of the matter. Westlaw researchers did a masterful job of breaking down the process of online research and then analyzing where their product either added extra difficulties or could improve.

Online legal research:
Step 1: Choose the database {WLN eliminates this!}
Step 2: Enter the search {Had to decide Boolean or Natural Language WLN eliminates choice}
Step 3: Scan the results
Step 4: Evaluate the results
Step 5; Browse results with Westlaw’s linking tools (KeyCite, Results Plus, Key Numbers etc)

*Repeat the above steps over and over in an interative process until you are certain you have found all relevant documents OR you have run out of time or money.

Choice of Database
You can still choose a database if you want to, but it really makes no sense to do so. WLN automatically searches all the Westlaw databases and locates any relevant documents in any databases for you. I recently stumbled across an unknown Massachusetts real estate database that had relevant information for a research problem, but I had not known of it because it is not listed in the Massachusetts secondary sources tab. It only shows up in the Real Estate Practice tab, under Massachusetts. This WLN method would have found the document without my stumbling upon it. You do not pay for the search; you pay for the access to the databases. So, if you search all the databases in Westlaw, and locate information in databases beyond your contract, you will have to decide if it is worth enough to access it. Fortunately, the display offers a good amount of text around the keywords for each document retrieved.

Search Format
This is another big change. You no longer need to select if you are searching in Terms and Connectors (Boolean) or Natural Language search style. The program can detect (in all cases except quotes around phrases or a single term search) whether the searcher intended to enter a Boolean or Natural Language search. If you are using connectors (/s & +2), the program runs a Boolean search for you automatically. Otherwise, the search runs as a Natural Language search, but adds more power.

WLN does not rely simply on keyword searching or relevance ranking, though those things are there. Where before, users had to guess the precise language of the document they wanted to retrieve, and (in Boolean searching) needed to know the syntax of they Westlaw system, the Westlaw Next system attempts to use the vast information of the West Publishing system and the vast hive mind of the Westlaw users to bolster each search. WLN uses the indexes, including “see also” entries to add extra terms to searches, uses treatises and other secondary sources to help develop searches from simple entries to create a better retrieval, all behind the scenes, without the user needing to know the special terminology or doing the “background reading” that librarians have so long counseled. But the system is further backed up with the West attorneys who test the system and tweak it constantly. They are not creating a taxonomy on the fly; they are letting the user lean back on the indexes, the treatises and other secondary sources, without realizing it. The system also uses the West key number system and KeyCite to bolster the indexing and help create a better search. Perhaps a concrete example or two from the Reference attorneys who tested this will help illustrate

Allison Stover reported on the test of multiple states' statutes on driving while intoxicated. Different states call it different things, and have different abbreviations or titles for the statutes: DUI, DWI, OUI. They called this the mis-matched term example. The indexes of the West statutes included "see also" references that assisted with formulating the search, and the search on WLN turned up the correct statute for each state as the top result for each state, while a natural language search was not as effective.

Reference attorney Greg Garrick discussed testing the problems of searching outside a familiar jurisdiction where the researcher is unfamiliar with the terminology, a special problem with statutory research, where legislative drafting often is non-obvious. His example was searching for the Minnesota freedom of information act, which has unusual terminology. Garrick also discussed the problems of searching where an issue can be described in many different ways. The Monell case, where a municipality is liable of the civil rights violations by its employee, could also be described as "imputed liability" or "respondeat superior," or "vicarious liability." Another example he gave was "Gift before death" and "Gift Causa Morta." WLN is an aid in locating all the documents that discuss the issue from these various terms. Garrick also mentioned spelling errors (forum non convenions (sic)).

WLN also uses massive customer usage data, in the way that Google uses it. Stripped of personal information, the system trackes the Print, Copy with Reference or with Cite and the KeyCite interactions of millions of users. Many users may look at irrelevant documents, but very few will print or copy with reference or with cite unless the document is very relevant to their search. So the system will add the search terms to such documents as (I suppose) metadata tags. These words may be reinforced by other users using similar searches and coming to the same documents, or linking to these documents through KeyCite. This creates other tags, and reinforces the correlations. Poor researchers wash out statistically (I am reassured), and good researchers reinforce the correlations, building stronger statistical links for documents. West programmers are tweaking their algorithms all the time, and testing the system. Editors can correct the system if it seems that it has run off the rails in a particular instance.

This is not “googlization” of legal research. There is some similarity because they are looking at customer linking. But they are building an enormous “back end” to this research system that looks simple at the front. The system does in the background all the things law librarians have wanted good researchers to do: do background reading, get extra terms, carefully choose database or even combine them, So it is also not dumbing down legal research. It is, rather, doing it for you, automatically. However, it still gives you the choice, and the tools to do the Boolean search, to use the field searching, and to do all the powersearching things that long-time skilled searchers have learned to do.

So why do I feel sad? I am trying to get over this. I should feel happy. I know I should .

Thirty-five Subscribers

We have blogged recently about the decision by The New York Times and other newspapers to put their content behind pay walls. The justification for this move is to generate revenue that will pay for high-quality news operations; the newspaper management states that they cannot afford to give away their content. They might want to take a look at Newsday, the Long Island daily that put its website behind a pay wall in late October. The New York Observer ran a trenchant article about the website today. "So, three months later, how many people have signed up to pay $5 a week, or $260 a year, to get unfettered access to newsday.com?" The answer is thirty-five, which represents gross revenues of about $9,000. As web traffic declines, it is likely that advertisers will flee and take their business elsewhere. One of the reasons people might not want to pay to read Newsday online is that the paper is not what it used to be. It once was a respected publication, but now it has no national correspondents or foreign bureaus. Would higher-quality content lead to more subscribers? All eyes will be on the Times when its pay wall goes live next year.

Kindle Experiment in New York

The New York Law Journal ran a first-page story today (unfortunately, I cannot link to it because it requires a subscription) about an experiment unfolding in New York's appellate courts. The Presiding Justice of the Appellate Division, Second Judicial Department, Gail Prudenti, purchased two Kindle DXs to be tested by the court's judges. Other digital reading devices are being tested as well. Justice Prudenti said that "The objective [of the pilot project] is to see if we can enhance the productivity of our judges and decrease printing." She is looking to the future, when there will be a "non-residential bench and the prospect of a paperless court."

Only six of the 22 judges on the panel are based in Brooklyn. The rest commute from chambers scattered from the east end of Long Island to the mid-Hudson valley, lugging thousands of pages of documents for each court session.

All of those documents can be scanned as PDF files into the Kindle DX ...

Two justices tried out the Kindles in November, and then turned them over to two other justices for testing. "So far, the device has earned mixed reviews." One common comment was that it is easier to refer back to paper documents than to the same documents on the Kindle. The justices liked not having to haul around large quantities of paper, and thought that use of the Kindle was environmentally responsible because it does cut down on paper. An ongoing concern is "security of court documents" because the "Kindle does not come with a password protection feature, and its contents would be easily accessible if the device was lost or stolen ..." However, security could be compromised with paper files if they are lost or stolen. Another potential drawback to the Kindle is that the "user is limited to viewing a document and cannot make alterations like writing notes in the margins." A practitioner, Jeffrey D. Osterman, of Weil, Gotshal & Manges, thinks that the Kindle could help individuals with impaired vision because the type size can be manipulated; also, the documents could be read aloud through a computer. It's too soon to tell if this pilot project is a total success, but it's worth watching.

Sweet-Tooth-Fairies

Oh Boy, word lovers! Erin McKean, in today's Boston Globe's Ideas "Word" column writes about a new word trick, "Sweet-Tooth-Fairies." Like Mondegreens (a mis-heard word, like "Lady Mondegreen" for "laid him on the green," which is what gave the term its name), or palindromes (which spell the same back and forth, like RACECAR) or Spoonerisms (named for Dr. Spooner, an Oxford don who had the unfortunate tendency to frequently switch the first sounds of his words in a sentence, so he might chide a student, "You have hissed my mystery lectures!"), Sweet-Tooth-Fairies are a kind of English language word play.

The article in the Globe is a delight to read, both explaining about this new language toy, and offering charming and witty examples. A sweet-tooth-fairy is a mixing of two two-word phrases in English that don't usually go together, but that share a common word, as the name for the group illustrates: Sweet tooth + Tooth fairy = Sweet-Tooth-Fairy. McKean goes on:

The best sweet tooth fairies take a dramatic turn in the middle, merging wildly divergent things: magnetic personality disorder, poetic license plate, and victory lap dance. Some are self-reinforcing: fresh meat market, hard right wing, peer pressure cooker. Others are self-negating: frugal living large, upwardly mobile home, remote control freak, uninvited guest list. For word people, these little phrases offer much the same “aha” satisfaction as that famous optical illusion known as a Rubin vase, which forces first one interpretation (it’s a vase!) and then another (it’s two faces!). By putting words into an unaccustomed double role, they let us see ordinary English words for the truly versatile actors they are.

Some sweet tooth fairies seem as if they should be everyday items in the real world: It’s easy to imagine such things as party school supplies, red carpet bombing, and a grease monkey wrench. What driver isn’t speed camera shy? Some you wish actually existed: radio spot remover (does it remove stains with radio waves or does it fast-forward through radio ads?) and parlor game warden (a referee to enforce the rules of parlor games). Many nightspots and hotel bars would be pleasanter places if there were a piano bar exam. And who wouldn’t want to see the North pole vault? Or a drag queen bee? Most, however, are just plain funny: hired hand sanitizer, mind control-top pantyhose, bikini wax museum, Nobel prize fighter, pistol whipped cream, grain elevator shoes, false alarm clock, sex bomb shelter, dance card shark.

Unlike many word-games, Sweet-tooth-fairies can be traced to an inventor, Graham Hidderley/Burgess, "a grandfather, marketing maven, and actor in Wakefield, West Yorkshire, in the United Kingdom," according to the Globe article. Hidderly/Burgess prefers the slash in his name to the more usual hyphen one sees in British names. He has a website for this invention: http://www.the-illustrated-sweet-tooth-fairy.com/. The site includes a way to submit your own mash-up efforts for publication, as well as sub-categories of sweet-tooth-fairies (STF), and news of his slow work towards publication of a book collecting the STF. He recognizes:

* False Teeth Fairies ("...sweet tooth fairy pretenders who can't quite follow the rules.")

* STF with Braces and Scaffolding (extended STF that go on for more than 3 words)

* Songs and sentences with more than one STF fitted in

Not all are funny, but the ones that are good are knock-you-down funny. As McKean notes the best are the ones that grab you with a bit of truth about the paradox they reveal, or the relationship between the words. They remind me a bit of the best of George Carlin's word play, when they are really very good. Have fun!

The decoration is a Victorian card representing the tooth fairy. She looks much sweeter than the current movie posters.

E-government Portal!

Tip of the OOTJ hat to BeSpacific:

UK Guardian Launches World Government Data Gateway
"Search the world’s government data here

. Governments around the globe are opening up their data vaults – allowing you to check out, visualise and analyse the numbers for yourself. This is the Guardian’s gateway to that information. Search for government data here from the UK

, USA

, Australia

and New Zealand

- and look out for new countries as we add them. Read more on the Datablog

."
Topic(s): E-Government

More On Closing Connecticut State Libraries

The Connecticut Superior Court Libraries continue to close! If you are a citizen of Connecticut, please consider signing the petitions! It does not help, alas, if non-citizens sign, so don't clog up the petitions. Here is the latest from our Connecticut colleagues:

We wanted to bring to your attention that the Law Libraries at Bridgeport, Litchfield, Hartford, Milford, Norwich and Willimantic in Connecticut are scheduled to close due to budgetary constraints.


If the Law Library at Bridgeport closes it doors the largest city in Connecticut will be without a Law Library and the citizens of Bridgeport will be forced to travel a gap of 41 miles between the two remaining public law libraries, Stamford and New Haven . Library users depend upon Bridgeport ’s current and historic legal materials in all formats, and they value the court librarians for their unique knowledge and expertise.


The Law Library at Bridgeport was established in the old City Hall of Bridgeport (McLevy Hall) in 1877. It was moved to the Court House on Golden Hill Street in 1888 then moved to its current location in the Superior Courthouse at 1061 Main Street in 1973.


Petitions have been created to save the law libraries -


Save Bridgeport Petition

http://www.ipetitions.com/petition/savebridgeportcourtlibrary/

Save Litchfield Petition

http://www.ipetitions.com/petition/savelitchfieldcourtlibrary/


Save Milford Petition

http://www.ipetitions.com/petition/savemilfordcourtlibrary/


Save Norwich Petition

http://www.ipetitions.com/petition/savenorwichcourtlibrary/


We are the law librarians at Bridgeport and LLNE members-


Mary Ann Krivicky and Karen Yeltema

This is more than librarians seeking to save their jobs. When these libraries close, citizens will lack access to the law. People who have no money for lawyers, also have no access to cars to drive 41 miles to the nearest law library! They do not have a way to hop on the literal highway nor the information highway. And without a librarian to guide them, they will have a hard time making sense of what they find if they do venture out there. These libraries are very important in making justice work and in making democracy a reality in Connecticut, and in each state in our country. While there are many hard choices in tight budgets, public law libraries should be among the very last to be cut!

Connecticut residents may also want to contact their legislators to speak with them about the decisions being made. Use this link to contact your Connecticut legislator:
http://www.ct.gov/DDS/cwp/view.asp?a=2039&q=405232

The decoration is an ancient Greek statue of Themis, whom we know as Justice, often shown blindfolded, with the scales of justice and a sword.

The Times to Erect a Pay Wall

In 2007, The New York Times dropped a pay wall after failing to realize expected revenues. Many online readers breathed a sigh of relief, and continued to enjoy the free online content. Now, however, The Times is planning to "announce the introduction of a so-called 'pay wall' before the much-rumoured launch of Apple's new tablet computer, which is thought to be specially designed for easy newspaper reading, on January 27." This report comes from an article in the Telegraph, a British newspaper. The Telegraph reports that Arthur Sulzberger, Jr., the Times Company chairman, favors "a metered use policy similar to The Financial Times, which allows readers to access some articles for free before they are forced to subscribe." The Financial Times is owned by Rupert Murdoch's News Corporation, as is The Wall Street Journal, which also charges for content. In fact, News Corporation is planning to "introduce charging for all the company's newspaper websites, including The Times, The Sunday Times, The Sun and News of the World. My colleague Vicky Gannon, who sent me the link to the Telegraph article, says it's one thing to charge for The Times, but quite another to charge for The Sun and News of the World, which do not exactly qualify as high-quality content. It looks as if paid access to online newspapers is the wave of the future, and in fact newspapers have to make money from their content if they are survive. Advertising revenues are not enough to sustain a major news-gathering operation. "More than 1,200 news organisations worldwide have signed up with Journalism Online, a new media payment firm whose clients are expected to start rolling out fees soon." It's hard to imagine that most people are going to pay for subscriptions to more than one or two newspapers, making it inevitable that some newspapers will simply not be competitive in the online environment.

A Visit to the Morgan

Yesterday, I visited the Morgan Library in New York City and spent a couple of pleasant hours viewing the exhibit on Jane Austen, my favorite author. The exhibit contained a number of treasures, such as the letter describing Jane's death written by Cassandra Austen to a niece. On display were a number of Jane's letters, including one written backwards (shades of Leonardo da Vinci) and another written in "cross hatching," a method used to save precious paper. I did not know this, but the Morgan has the world's largest collection of Jane's letters, most of which were destroyed after her death by Cassandra. The exhibit showcased a collection of first editions of the novels, and also displayed contemporary engravings that were in keeping with the themes of the exhibit. I always enjoy going into Mr. Morgan's study and seeing the three stunning paintings by Hans Memling, and into Mr. Morgan's library, with its sixteenth-century lindenwood statue of Saint Elizabeth holding a book and its Gutenberg Bible. The Morgan actually has three Gutenberg Bibles, only one of which, a copy printed on paper, is on display. There is another copy printed on paper, and a third printed on vellum. The legend that accompanied the Gutenberg Bible read that it was the "book that inaugurated a new era in the history of visual communication."

This is certainly true, and got me thinking about an article I had read in The New York Times last Sunday. The article, entitled "The Children of Cyberspace: Old Fogies by Their 20s," starts with a vignette about the author's two-year-old daughter who refers to his Kindle as "Daddy's book." And to her, of course, it is, because she will "know nothing other than a world with digital books, Skype video chats with faraway relatives, and toddler-friendly video games on the iPhone. She'll see the world a lot differently from her parents." The point of the article is that we will continue to have generation gaps caused by the rapid changes in technology, but they will not be like the generation gaps we've had in the past. Researchers "theorize that the ever-accelerating pace of technological change may be minting a series of mini-generation gaps, with each group of children uniquely influenced by the tech tools available in their formative stages of development." Professor Larry Rosen

has also drawn this distinction between what he calls the Net Generation, born in the 1980s, and the iGeneration, born in the '90s and this decade.

Now in their 20s, those in the Net Generation ... spend two hours a day talking on the phone and still use e-mail frequently. The iGeneration, conceivably their younger siblings--spends considerably more time texting than talking on the phone, pays less attention to television than the older group and tends to communicate more over instant-messenger network.

Dr. Rosen said that the newest generations, unlike their older peers, will expect an instant response from everyone they communicate with, and won't have the patience for anything less.

"They'll want their teachers and professors to respond to them immediately, and they will expect instantaneous access to everyone, because after all, that is the experience they have growing up ... They should be just like their older brothers and sisters, but they are not."

Two questions come immediately to mind: How will teachers meet the expectations of students accustomed to immediate feedback? And how in the heck are we going to keep up with the changes in technology?

Learning Styles Questioned

It is almost an article of faith among educators today that law students have different learning styles that should be accommodated in the classrom in order to maximize engagement and learning. A leading article on this subject is Robin A. Doyle and Rita Dunn, Teaching Law Students Through Individual Learning Styles, 62 Albany Law Review 213 (1998), which is available through SSRN. The Doyle and Dunn article, by the way, is cited in the valuable Annotated Bibliography on Law Teaching, which appears in the Fall 2009 issue of Perspectives: Teaching Legal Research and Writing. A new study published last month in the journal Psychological Science in the Public Interest is calling into question the theory underlying "matching" students' learning styles with professors' teaching styles. An abstract of the study is here, and an article about the study appears on page one of the January 8, 2010 issue of The Chronicle of Higher Education. An subscription is required to access the article.

The authors, four psychologists, state that there is "no strong scientific evidence to support the 'matching' idea."

"We were startled to find that there is so much research published on learning styles, but that so little of the research used experimental designs that had the potential to provide decisive evidence," says Harold E. Pashler, a professor of psychology at the University of California at San Diego and the paper's lead author.

"Lots of people are selling tests and programs for customizing education that completely lack the kind of experimental evidence that you would expect for a drug ... Now, maybe the FDA model isn't always appropriate for education--but that's a conversation we need to have."

The authors do not dispute that different learning styles exist; they argue, however, that there is no proof that "any particular style of instruction simultaneously helps students who have one learning style while also harming students who have a different learning style." Furthermore, instead of trying to figure out whether a particular classroom contains visual learners, kinesthetic learners, or auditory learners, they content that it would make more sense for professors to match "their instruction to the content they are teaching. Some concepts are best taught through hands-on work, some are best taught through lectures, and some are best taught through group discussion." In my own teaching, I prefer to use a combination of methods in order to reinforce the concepts I introduce through lectures and assigned readings. Indeed, it's hard to imagine how one would teach legal research without a hands-on component. As might be expected, the study is very controversial, with critics contending that the four authors did not do a thorough review of the literature that supports "matching" students and professors. Professor Pashler and his colleagues respond, however, they "are still open to the idea that some kinds of matching are actually effective. 'Most of what we're pointing to in this paper is an absence of evidence ... Here's what you have to show--and they aren't showing it. But there may yet be better studies in the future.'"

Police hide behind privacy statutes

The Boston Globe yesterday had an article about Boston police using a Massachusetts privacy law (Mass. Gen. Law 272 section 99) that requires both parties' consent to audio or video-recording. The statute, similar to those in eleven other states, makes it illegal to record another without their consent. This meant that when Simon Glik, a lawyer in Boston, felt that he was seeing undue police violence in an arrest and began to record it with his cell phone, the police felt justified in confronting Glik, cuffing him and seizing his cell phone. And it meant that when Jon Surmacz saw police being too rough breaking up a party and began recording it with his cell phone, the same thing happened to him, charged with illegal surveillance. The Globe article is notable as being actually the product of a student co-op project at Boston University, though it covered many column inches of the front page of the paper and inside the front section as well. It's an important topic.

Both men, with the help of the ACLU, got the charges dismissed, eventually (Glik dismissal in PDF). But the mis-use of state statutes that were passed in the wake of private detectives taping individuals who had no idea of the surveillance, in order to stifle citizen push-back against police brutality is very troubling. I am very proud that Massachusetts' Chief Justice Margaret Marshall filed a strong dissent in one of the cases that went to court on this matter. Mass. v. Hyde, 750 N.E. 2nd. 963, 977 (Mass., 2001), raising the question of possible First Amendment implications in interpreting the wiretapping statute to bar citizens from recording police misconduct.

The entire matter in Massachusetts has been closely examined in a law review article which is available at Suffolk's website: Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, a 2009 note by student Lisa Skehill at 42 Suffolk U. L. Rev. 981. This article has very helpful links to newspaper and law journal articles, but mainly focuses on Massachusetts. For a student article, it takes quite a normative stance on the matter. There is also an ALR annotation that surveys state statutes on the matter, but I cannot give a link to that, only a citation, 74 ALR2d 855, Validity, Construction and Effect of State Statutes Making Wiretapping a Criminal Offense. Here is an online link to "Can We Tape?", a 50-state survey from the Reporter's Committee for Freedom of the Press.

The twelve states that have similar privacy laws requiring all parties' consent appear to include California (Cal. Penal Code §§ 631, 632, requiring ALL parties' consent), Connecticut (Conn. Gen. Stat. § 52-570d requiring ALL parties' consent), Florida (Fla. Stat. ch. 934.03, requiring all parties' consent), Maryland (See Bodoy v. North Arundel Hosp., 945 F.Supp. 890 (D. Md. 1996). Additionally, recording with criminal or tortuous purpose is illegal, regardless of consent. Md. Code Ann., Cts. & Jud. Proc. § 10-402), Massachusetts (Mass. Ann. Laws ch. 272 , § 99, requiring all parties' consent), Michigan (Mich. Comp. Laws § 750.539c), Montana (Mont. Code ann. § 45-8-213-c), Nevada (Nev. Rev. Stat. Ann. § 707.900 - misdemeanor recording without consent of all, but surreptitiously listening, recording or disclosing a conversation without consent carries heavy fines of $1,000 or $100/day, whichever is higher, and punitive damages, plus court costs, Nev. Rev. Stat. Ann § 200.630, .650), New Hampshire (N.H. Rev. Stat. Ann. § 570-A:2-I, requiring all parties' consent), Pennsylvania (18 Pa. Cons. Stat. § 5703(1), requiring consent of all parties), Texas (V.T.C.A, Civil Practice & Remedies Code § 123.001, et seq. allows civil actions to recover stiff damages, but Texas Penal Code § 16.02 allows recording by a party or with the consent of one party, so long as there is no tortious or criminal intent), Washington (Wash. Rev. Code § 9.73.030 requires consent of all parties, though can can be satisfied by one party announcing to all in any reasonably effective manner that communication or transmission is about to be recorded or transmitted, and that announcement is recorded or transmitted as well, Wash. Rev. Code § 9.73.030).

The decoration is courtesy of the Police Brutality Databank, which is a pretty good link to know about in this context, http://police-brutality-dwb.net/

Here are earlier comments and blog posts on this matter:
Pocketburgers.com: Jan. 13, 2010, which led me to:
www.FreeRepublic.com, Jan. 29, 2008, evidently, an excerpt of a Massachusetts Lawyers' Weekly newspaper story from the time. It notes that Glik is a Moscow-born attorney, which makes his push-back against the police more poignant. It also reminds me to explain to my OOTJ readers that our Massachusetts Chief Justice, Margaret Marshall, comes from South Africa, where she was an anti-apartheid activist before she emigrated here. So her dissent in the Hyde case carries a special force. She understands on a personal level the importance of free citizens pushing back against the force of government when it is used unjustly.

Save Connecticut State Libraries! Act now!

As you may have already heard, Connecticut's Executive Branch has cut $12.9 million in the budget for the Judicial Branch, forcing the proposed closure of six law libraries across the state. The American Association of Law Libraries and the Southern New England Law Librarians Association are urging residents of Connecticut to join efforts in saving the law libraries of Bridgeport, Litchfield, Milford and Norwich. These courthouse libraries serve to meet a diverse range of legal research needs from the judiciary, corporate and government attorneys, solo practitioners, average citizens and the indigent.

If you are a resident of Connecticut, please join the effort to encourage the Connecticut legislature to provide the Judicial Branch with adequate funding to keep these libraries open by signing these online petitions:

http://www.ipetitions.com/petition/savebridgeportcourtlibrary/


http://www.ipetitions.com/petition/savelitchfieldcourtlibrary/


http://www.ipetitions.com/petition/savemilfordcourtlibrary/


http://www.ipetitions.com/petition/savenorwichcourtlibrary/


Please feel free to forward these petition links to friends or colleagues living within Connecticut who may also be interested.

If you have any questions, please email AALL Government Relations Chair Camilla Tubbs or Mary Alice Baish at the Government Relations Office .

Thank you for your time,
Camilla Tubbs
AALL Government Relations Chair

Gay Marriage in California - Law Suit Challenging Prop. 8

Two gay couples in California filed suit May, 2009 in federal court in the Northern District of California challenging Proposition 8, the voter-approved ban on gay marriage in that state. Originally, the California court had allowed the proceedings to be viewed over YouTube. But the U.S. Supreme Court has blocked that ruling, at the request of supporters of Proposition 8, who intervened in the law suit. You can get the full text of the documents of the case, including hearing transcripts at the site of www.EqualRightsFoundation.org, which seems to have been formed as a 501(c)(3) corporation specially to challenge Prop 8. The website includes not only plaintiffs' and defendant's legal filings, but also links to news and media.

There have been several statements by gay rights activists concerned that this is a dangerous time to file such a suit, which will almost certainly go to the U.S. Supreme Court eventually. The case is styled Perry v. Schwarzenegger. S.F. Gate.com offers one such article

Co-sponsored by nine gay and civil liberties organizations - including the American Civil Liberties Union, the Human Rights Campaign, the National Center for Lesbian Rights and Lambda Legal - the memo said "even the strongest gay-rights decision the court has issued - the Lawrence v. Texas case striking down laws against intimacy for gay couples - explicitly commented that it was not saying anything about formal recognition of same-sex relationships."

"There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices," the memo said.

The National Center for Lesbian Rights has links with PDF documents for the amicus briefs they have filed in the case and nice summaries of the issues and history of the case, and other helpful links to articles and such. Lambda Legal offers a link with the amicus brief they authored with ACLU and NCLR.

Family Research Council offers its amicus brief here. Scribd (Michael Ginsborg (hi!)) thoughtfully posts "selected" documents from the Perry case here, which today include a number of commentaries. I am not certain I have located all the amici in this sweep, but I have tried. There seems to be very divided opinion on the wisdom of this law suit and its timing. My heart goes out to the folks in California who have had same sex marriage handed to them in San Francisco and then torn away through Proposition 8. I only hope that this law suit does not do lasting damage to the cause of gay marriage in California and elsewhere!

Blio E-reader update

Blio e-reader from Ray Kurzweil caused a lot of buzz before it has been released. It still is not here, though their own website is up and you can sign up for alerts and to be told when it's available. Blio is platform-neutral software that will allow you to read e-books in PDF format on any internet accessible electronic device from your I-pod or cell phone or PDA to your computer or netbook. Because it downloads the books in PDF format, it retains the look of the print book, including graphics and full color. Blio is free to download, and many of the texts you get are free as well, depending on the copyright situation. Millions of titles are available right now, and more are becoming available, from cookbooks to bestsellers to childrend's books to certain school textbooks (not law books as far as I can tell right now).

More interestingly, you can page through the book and retain the pagination. You can insert highlighting and marginal notes. You can even insert videos and hyperlinks if you want. Blio offers a very high quality read-aloud feature, though apparently not for all books. The read-aloud co-ordinates with highlighting certain words, which would be very helpful for those learning to read or learning a language, for instance. Ray Kurzweil has been working for quite a while with the visually disabled community, so this audio feature is something he cares about and has accommodated very well. According to the Blio website

Blio’s active reading tools deepen comprehension, adding dimensionality to your reading. Highlighting, underlining, and annotating help emphasize information in your mind and let you review important points later:

* Create a personalized list of reference websites, for one-touch look-up of highlighted phrases.
* Adjust reading speed and font size.
* Translate to or from English in an imbedded translation window.
* Insert text, drawing, voice, image or video notes directly into your content. These are saved, and can be exported to create lists or study materials.

This same webpage also includes a detailed comparison between a wide variety of e-readers. Of course, it's set up by the Blio people, but it does compare many features that are worth thinking about, from cost, to display features, to variety of platforms, storage, titles available, read-aloud, page-turning, how many pages displayed at once, tiled views, video capability, interactive, and the "study aids" noted above.

Blio is not the only free e-reader, as I noted in my earlier post. I know about Kobo, another platform-independent, free e-reader with free or low-cost books. The free books are those out of copyright, mostly, but also include some newer books that appear to have been released for use by the copyright holder. Other titles cost $9.99. These seem to be best-sellers, self-help, mystery, and other categories. They have a bookstore you can browse by category. But as far as I can tell, from a law librarian's point of view, Kobo lacks the useful tools that Blio offers a law student or scholar for highlighting, knowing what page you are on, making notes in the text, and seeing the graphics as they appear in the original text. Kobo also does not appear to have any audio feature.

The End of Free Content?

This time of year, predictions abound, but most of them turn out to be wide of the mark. However, this prediction, from Newsweek's Techtonic Shifts Blog, has the ring of truth about it. In his post, Barrett Sheridan states that "Many of the startups and media sites that define the e-commerce ecosystem are, at long last, making serious plans to make serious money." He lists Hulu and music sites, including iTunes. Apple recently purchased Lala, a streaming music service, for around $100,000,000. Sheridan opines that Apple bought Lala for "its talented engineers and their cloudy expertise," not for its revenues, which are "negligible."

Owners of print media are also exploring their options. Rupert Murdoch, the owner of News Corporation, is actively exploring put his news sites behind a pay wall this year. According to Sheridan, "That would open the door for competitors to make the same move. The New York Times, for instance, is debating the wisdom of charging for online content too. If Murdoch's plan proves successful, emboldened newspapers and magazines across the country would begin erecting their own digital pay walls." As a consumer, I hate the idea of having to pay for content; I am accustomed to getting it for free. As Sheridan puts it, "Pirate Bay-surfing teens ... think free content is a human right only slightly less essential than oxygen." As a librarian, however, I understand that the only way to ensure the viability of high-quality content, which costs a lot of money to produce, is to put it on a paid footing.

New Survey on Law Student Engagement

The 2009 Law School Survey of Student Engagement was just published. The report, which has been issued annually for the last five years, is based on input from over 26,000 law students at 82 different law schools. Not surprisingly, the economy figures prominently in the survey. More students than ever are graduating with over $120,000 in debt--a staggering figure by any measure. Fewer students now expect to practice in a private law firm than in the past, with a growing percentage of students expressing interest in public-interest or government positions. I wonder how they will pay off those huge loans with the lower salaries that public-interest and government lawyers usually command? Other insights from the report (courtesy of The Chronicle of Higher Education, Jan. 6, 2010):

Students who are not involved in extracurricular activities study less than their peers and more frequently come to class unprepared.

More than one-third of all law students say that their legal education places little emphasis on acting with integrity in personal and professional settings.

Only about half of all law students frequently receive feedback from their professors that is helpful to their academic development.

Ten percent of law students say they never receive feedback from professors that stimulates their interest in the study or practice of law.

Male students are more likely than female students to receive oral feedback from professors, both during class and outside of class.

Frankly, the findings on the lack of meaningful feedback from professors surprised and discouraged me, as did the observation about the lack of emphasis on personal and professional integrity, because I assumed most schools were paying a lot of attention to professional responsibility. I don't know what to say about the lack of feedback. How can students learn without it?

New Electronic Reader from Kurzweil - Blio

Wired.com reported on Dec. 28 that Ray Kurzweil has reinvented the electronic book as a platform that sits on any type of device, from a PC to an I-pod to a cell phone or PDA or one of the newly developed tablet devices. SingularityHub has another story on the same product with some more detail. The Blio is due to debut at International CESweb.org this January 7-10 in Las Vegas, so it has not come out yet, but is due out very soon. Blio preserves text's lay-out, including color and images, including graphics and images. It includes high quality text to speech capability (Kurzweil has worked closely with the visually disabled community).

You can even synchronize a PDF with an audio book to get read-along highlighting. By focusing on the software, and not trying to maintain a hardware device, Kurzweil hopes to provide the most versatile, life-like electronic version of print books and enhance them with multimedia. Best of all, Blio is free.

The race to dominate the electronic reader market is really just starting up. Kindle and Amazon have a firm lead but Stanza, Barnes and Noble, Sony, and Samsung are all staying competitive, not to mention potential tablets from Apple and a host of other companies. Heck, for that matter, the PDF format itself is doing very well and provides much of the same experience as an e-reader for many users. While hardware evolution has focused on the best uses of e-ink or the fastest download times, software is all about formatting. How does the book look? Can I read it the way I want to? Are diagrams legible? By preserving original publishing page layouts, Blio may be providing the nearest experience to actually reading a print book you can find. Of course, the question remains, is that what we really want? As traditional media continues to struggle and new media tries to figure out what it wants to be when it grows up, there’s no clear understanding of how and what humans will be reading in the next decade.

Yet even if e-readers turn out to be a transitional medium, they are still exerting a powerful influence. Best selling electronic books on Amazon are usually free, or very cheap. This may force publishers to rethink how they make money off their products. Which is why it makes so much sense for Blio to be free as well. The e-reader can be uploaded onto an iPhone or kept on your desktop. From there, users will be able to purchase reading materials at whatever price becomes feasible.

Available books will start with an extensive catalog from Baker & Taylor which should include 50,000+ volumes in January and 180,000+ soon there after. Information released from knfb (see table below) seems to suggest that more than a million books will be available in one format or another. Kurzweil and knfb are working with Google to try to make their extensive catalog of printed materials available for Blio. They are also aiming to have major publishers port their books into PDF for free. Apparently you don’t have to worry about being stuck without something to read.

(from SingularityHub review) That link on the extensive catalog from Baker and Taylor takes you to an interesting blog post on the publishing business aspect of this deal at http://industry.bnet.com Nothing in the reviews so far address whether Blio will address the academic law market concerns about e-readers. For instance, there are really not titles of direct interest to law libraries in any of these catalogs yet. And none of these readers will allow readers or researchers who own an e-book to mark passages with highlighters or maker marginal notes or link from the e-text to notes. However, the Blio's excellent audio capability and ability to highlight text as the audio plays hints at some possibilities there. This will be interesting to watch! Link to either of the reviews from Wired.com or from SingularityHub to see interesting graphs that show comparisons between the existing readers on the market, including Blio. There is also a video at SingularityHub, that is worth watching.

Of course, Blio is far from the only electronic reading software out there available for free. See Kobo which is also platform independent. Adobe Digital Editions is the format they use, another pdf, providing $9.99 best sellers and free books out of copyright to your smartphone, e-reader, Mac or PC. As far as I can tell, Kobo does not have any audio capability, nor any highlighting or margin notes ability. But it's free!

Death Penalty Undermined

The New York Times is reporting "a tectonic shift in legal theory"--the American Law Institute's announcement that it is abandoning the framework it created in 1962 in an "effort to make the death penalty less arbitrary." Section 210.6 of the Model Penal Code, which created the "intellectual framework for the modern capital justice system, has been withdrawn by the ALI "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." Click here to read a message from ALI Director Lance Liebman and here to read the Report of the Council to the Membership of the ALI on this subject. The New York Times has a pithy summary of the reason underlying ALI's action: "What the institute was saying is that the capital justice system in the United States is irretrievably broken."

According to the ALI, what are the problems with the capital justice system? 1.) It is impossible to "reconcile the twin goals of individualized decisions about who should be executed and systemic fairness." 2.) Racial disparities in administering capital punishment persist. 3.) The system is extremely expensive. 4.) There is a serious risk of executing the innocent. 5.) The system is "undermined by the politics that come with judicial elections."

Opponents of the death penalty had hoped that the ALI would "take a stand against the death penalty as such [but] that effort failed." Nonetheless, the ALI's action is important, according to Professor Franklin E. Zimring, expert on criminal law and the death penalty, "'because they were the only intellectually respectable support for the death penalty system in the United States.'" Zimring went on to say that ALI's action is "'very bad news for the continued legitimacy of the death penalty ... But it's the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.'"

Limited Representation--An Idea Whose Time Has Come?

This New York Times editorial, written by New Hampshire Chief Justice John T. Broderick, Jr. and California Chief Justice Ronald M. George, makes a cogent argument for closing the "justice gap" by unbundling legal services. Observing that many litigants can no longer afford legal representation, the two justices voice their support for so-called limited scope representation which allows attorneys to "take only part of a case, a cost-saving practice ... that, with proper ethical safeguards, is responsive to new realities." Limited scope representation is the subject of ABA Model Rule of Professional Conduct 1.2, adopted by forty-one states, which provides that "A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." The ABA Section of Litigation recently released the report of the Modest Means Task Force, which concluded that the time was ripe to move ahead with this initiative. The alternative is that many litigants will have no representation whatsoever. As Chief Justices Broderick and George conclude,

... [F]or those whose only option is to go it alone, at least some limited, affordable time witn a lawyer is a valuable option we should all encourage.

In fact, we belileve that limited-scope-representation rules will allow lawyers--especially sole practitioners--to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing laywers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds. This cause has special relevance now as state courts are faced with serious cutbacks in finacing, forcing some to close their doors one day a week or a month, lay off front-line staff members and delay jury trials. None of this bodes well for the judicial system or for those seeking to vindicate their rights through the courts, whether they have a lawyer or not.

We need members of the legal profession to join with us ... in meeting this challenge by making unbundled legal services and other innovative solutions--like self-help Web sites, online assistance programs and court self-help centers--work for all who need them.

The Old Brain

There has been a lot of information published about how students in their teens and twenties learn as well as strategies that instructors can adopt to increase their pedagogical effectiveness. Certainly this is important information--I know how much I have benefited as a teacher from these insights. Nonetheless, it was interesting for me to read this article from today's New York Times Education Life section on how older people learn. I must confess that I have a personal interest in this subject, not only because I occasionally have students who are not of traditional law-school age, but also because I often need to learn new things and sometimes find that to be a bit of a challenge. Is it fair to blame this difficulty on the fact that I am getting older?

According to the article,

Brains in middle age, which, with increased life spans, now stretches from the 40s to the late 60s, [...] get more easily distracted. ...

[C]an an old brain learn, and then remember what it learns? Put another way, is this a brain that should be in school?

As it happens, yes. While it's tempting to focus on the flaws in older brains, that inducement overlooks how capable they've become. Over the past several years, scientists have looked deeper into how brains age and confirmed that they continue to develop through and beyond middle age.

Many longheld views, including the one that 40 percent of brain cells are lost, have been overturned. What is stuffed into your head may not have vanished but has simply been squirreled away in the folds of your neurons.

[This can make it difficult to retrieve information because] neural connections, which receive, process and transmit information, can weaken with disuse or age.

The article offers some specific recommendations for adults to employ to make it easier to retrieve information, connect new information with what is already known, and keep our brains in shape. For one thing, we can actively seek out ideas and thoughts that are contrary to what we believe.

Teaching new facts should not be the focus of adult education ... Instead, continued brain development and a richer form of learning may require that you 'bump up against people and ideas' that are different. In a history class, that might mean reading multiple viewpoints, and then prying open brain networks by reflecting on how what was learned has changed your view of the world.

Learning a foreign language, taking a different route to work, doing anything that causes the brain to stretch is how we nourish our brains and keep them young.