Prosecutorial Misconduct--Part 3

USA Today continues its series on prosecutorial misconduct with the latest article, "Prosecutor misconduct lets convicted off easy," published in today's edition. The first two articles highlighted innocent people who went to prison because of prosecutorial misconduct, and pointed out that few prosecutors get into trouble for these offenses.

Part 3 argues that prosecutorial misconduct often results in the guilty being treated with leniency. It tells the story of James Strode, a career criminal who held up a Rite Aid pharmacy in Seattle in November 2006 after his conviction and sentence for bank robbery were wiped out "when an appeals court concluded that the federal prosecutor in charge of Strode's trial had 'crossed the line' by making improper arguments to the jury."

What happened to Strode underscores one of the least recognized consequences of misconduct by Justice Department attorneys in charge of enforcing the nation's laws. Although those abuses have put innocent people in prison, misconduct also has set guilty people free by significantly shortening their prison sentences.

In some cases, they served no additional time. New crimes sometimes followed.

An investigation by USA Today turned up "201 cases since 1997" of prosecutorial misconduct. "Each was so serious that judges overturned convictions, threw out charges or rebuked the prosecutors." Of these 201 cases, 48 of the convicted defendants received lighter sentences than they would have received in the absence of prosecutorial misconduct. "If prosecutors' chief motive for bending the rules is to ensure that guilty people are locked up, their actions often backfire."

A Poetry Break

My husband, who is a librarian at a public library, recently gave me a poem to read. Entitled "Library Days," it is part of Philip Levine's new collection, News of the World. The poem is copyrighted, but the most of the text, including this poem, is available at Google Books. The poem is set in Detroit during the Korean War, and the narrator is a beer delivery truck driver who plays hooky from his job to "sit for hours with the sunlight streaming in the high windows" of the library. The library is treated with the same reverence as a house of worship. Some of the narrator's favorite authors are Melville, Balzac, and Walt Whitman, "my old hero." The books have "the aura of used tea bags." He also favors the great Russian writers--Dostoyevsky, Turgenev, Chekhov, Tolstoy; reading The Idiot confirms that "life was irrational." What particularly caught my attention was the depiction of the librarian, one of the most negative I have ever seen. The librarian has "gone gray though young," and sits "by the phone that never rang, assembling the frown reserved exclusively for me ..." Her voice was full of "pure malice" when a patron made the mistake of asking for Jane's Fighting Ships instead of literature. She never exchanges a smile with the narrator despite his tentative attempts at engaging her. Ultimately, however, the librarian is just an annoyance, if a malignant one. Reading is the narrator's real job, and his actual job takes a back seat to it. It did not matter to him that the beer he was supposed to deliver "could sit for ages in the boiling van slowly morphing into shampoo ..." The poem concludes, "it mattered not at all to me, I had work to do."

"Many Hands Make Light Work"

I'll never forget the first time I visited University College London and saw Jeremy Bentham's mummified remains on display in a large glass box in the main corridor. The head is not the original, but everything else is what's left of the great Enlightenment philosopher who died in 1832. Frankly, the sight unnerved me a bit. My husband assured me that Bentham had ordered that his body be dissected, embalmed, and displayed, and that his remains were brought out for departmental meetings and other events. The illustration for this post is a photograph of Bentham as he is displayed at UCL.

The philosopher was extremely prolific, and UCL began to publish his writings over fifty years ago; so far, only twenty-seven volumes have been published, "less than half of the 70 or so ultimately expected," according to an article in The New York Times. The publication project is under the aegis of the Bentham Project, which has hit upon a novel approach to transcribing Bentham's papers, which are already scanned and available online. There are approximately "40,000 unpublished manuscripts from University College's collection," and the organizers of the Project have turned to the public to help them transcribe the documents. This approach, familiar from Wikipedia, is known as crowd-sourcing, and draws on volunteers--"350 registered users have produced 435 transcripts" so far. No specialized credentials are required of the volunteers, and their work is vetted by editors before becoming part of the print edition of Bentham's collected works. Advocates of this approach point out that it has the "potential to cut years, even decades, from the transcription process while making available to the public and ... scholars miles of documents that are now off limits, difficult to read or unsearchable."

As with any new approach, there are those who are not enthusiastic. There is "tension between experts and amateurs." The experts tend to want to make the work perfect before it is published. They also point to the many mistakes made by volunteer transcribers. According to Daniel Stowell, who directs the Papers of Abraham Lincoln project, "nonacademic transcribers ... produced so many errors and gaps in the papers that 'we were spending more time and money correcting them as creating them from scratch.'"

Reading this article, I thought of the quotation attributed to Voltaire: "The perfect is the enemy of the good." The original French is: "Le mieux est l'ennemi du bien," and it comes from the 1764 Dictionnaire philosophique. There are many different interpretations of the saying, and if you're interested, click here to read some. To me, what Voltaire meant is that trying to reach perfection, which may well be unattainable, can get in the way of achieving something very good that would benefit many people. Isn't it better to produce a very good transcription now instead of waiting decades for a transcription that may be only marginally better? There are a number of transcription projects that are taking years to complete that might be candidates for the crowd-sourcing approach if scholars running the projects could overcome their concerns about the quality of the transcriptions produced by volunteers. The Times article mentions the papers of James Madison and Thomas Jefferson, both of which are years behind schedule, and also a collection of 55,000 unpublished eighteenth-century documents from the War Department, which will be transcribed starting in January 2011 with the aid of volunteers.

Fonts on Display

Ever since taking a two-semester course on the History of the Printed Book in library school, I have been fascinated with fonts. MIT Musem's Compton Gallery is hosting a show, "Types We Can Make," that highlights new fonts created by Swiss designers from the University of Art and Design in Lausanne. The MIT show is the subject of an article in today's Boston Globe. Switzerland has a distinguished tradition of modern font design starting with Helvetica, which the Globe describes as at once "humble" but "eminently readable," "a giant among fonts." Helvetica is a sans-serif font, which means the letters are clean, and don't have extra strokes on them. The modern Swiss designs are like Helvetica in that they are "exacting and verging on mathematical. White space plays as pivotal a role as curves, stems, and serifs. And, although forward-looking, the Swiss designers are always mindful of tradition."

The Globe article asks why any of this matters. "Type conveys ideas and emotion." Fonts, although easier to create through the use of design software, are more important than ever in order to create custom branding for corporations. Marketers devote a lot of attention to fonts because they know that fonts convey a message to potential consumers of their products.

Prison Libraries' True Value Lies Beyond the Reading Material

A very good essay in the Boston Globe Ideas section today by Avi Steinberg, who recently came out with the memoir, Running the Books about his stint as a prison librarian in the Boston area Suffolk County House of Correction. He writes about the periodic, well, probably ongoing, attacks on prison libraries, from well-meaning reformers who fear that the books will undermine the principle of punishment or might encourage prisoners to consider making a break for it or more fruitless appeals. Steinberg writes with excellent detail about the experiences he had as a prison librarian that lead him to the opposite conclusion. In his opinion, the true value of the prison library lies not so much in the reading material, as in the civilizing, educating locus of the place. The prisoners, who learn that the library is a haven that can make them feel like normal people for that short visit, run there when allowed, they are so eager to arrive.

Prisoners who are allowed to work as library assistants value the privilege, and take the leadership skills into life after prison. It was more educational that spending time in the recreation yard, and it was less formal than the classrooms. It was a public space, and often the only time these individuals had ever been exposed to a library. They were learning important skills to take with them after they were released, even if they only read glossy magazines. Steinberg's argument is the classic rehabilitation argument, but it is an important one, and he gives some very good details from his time at the Suffolk County House of Correction. Steinberg introduces the reader to Fat Kat, his head of circulation, and unofficial captain of the inmate prison work detail. Fat Kat's name describes both his physical appearance and his boss persona. He was mid-way through his sentence when Steinberg met him. Fat Kat declares, "This is where I'm doing my time," pointing at his seat at the circulation desk, "This is what I'm about now."

Kat had about three years of prison behind him, with three more to go. He had spent his 20s involved with guns, drugs, and gangs. As it turned out, he was also an excellent and dedicated librarian. He tutored his fellow inmates in reading and math. He encouraged young inmates to pursue an education. Kat capitalized on his invaluable street cred and, in the library, reshaped himself into a new kind of role model. He was trusted by all — both inmates and staff. When he was released from prison, he found a job as a community mentor and educator, and continues this work today.

Steinberg notes that if they could send even one person like Kat back to the neighborhood as a mentor, the prison was having a significant effect in reducing crime, not just reducing recidivism. If prison libraries became part of a plan to

...systematically develop these skills and values, we would be creating small, but potentially influential, cadres of post-prison citizens. If each prison library were to send even one Fat Kat back into each community, it would already have a significant effect.

Steinberg notes that most of the prison population lacks the education level to work in the prison library detail. But he hopes and believes that the library had a good effect on these prisoners as well. Again, he has a concrete example to illustrate. He introduces a 20-something woman, who has a 3 year old daughter living with relatives. She is lured into the library the first time by a new release movie feature, which Steinberg screened often for this purpose. But she soon came often to flip through glossy magazines, and eventually, look at books. This, Steinberg says, was the average library visitor: one who stumbled in and discovered the pleasures by accident. As her sentence was drawing to an end, this woman confided to the librarian how much she would miss coming to the library. She was pleasantly stunned to hear his reply that there were libraries in the outside world that she could visit for free. As Steinberg got over his own surprise that she did not know about public libraries, he also was excited to hear her make plans.

She left prison, and the library, excited to give it a try. And, she said, she would do for her daughter what had never been done for her: She would bring the child to the public library every week. Just as a prison ID card, stamped with her mug shot, symbolized her civic isolation, I like to think of her public library card as a powerful token of membership back in society. After hundreds of hours logged in the prison’s library, the thought of using a public library now seemed not only plausible to her, but second nature. After her time in prison it was the thought of not using a library that troubled her.

People tend to see a prison as a monolithic institution, a place solely dedicated to locking criminals up. But many inmates experience prison in a more dynamic way, as a clash between institutions. And what I experienced every day was that, in the collision between the institution of prison and the institution-within-the-institution, the library, something constructive and potentially long-lasting was being formed.

Prison libraries aren’t miracle factories. The day-to-day was often far from inspiring. Glossy magazines and mindless movies were, for many, the main attraction. Pimp memoirs were among the most frequently requested books. And yet, even an inmate motivated by nothing more than a desire to watch “The Incredible Hulk” in the back room of the library was much more likely to come across something educational — a book, a program, a mentor — once he entered the library space. Just as important, this inmate was becoming a loyal patron of the library, something he could carry with him to the outside world, and perhaps pass on to his children.

In prison, I saw inmates literally run to the library. I wondered then, as I wonder now, how much we might gain from thinking ambitiously, creatively, how to harness the energy that currently fills this little institution-within-an-institution — and find ways to cultivate it more deliberately, to direct it over the prison walls and back into the lives of our neighborhoods.

I think his insights about prison libraries also apply to how people use other libraries. It has always been less about the books than about the place, the services, the influence of the place. Whether we are talking about public libraries, university or law school, or high school, elementary school libraries, I think the same thing is true. The library is a place that teaches people to look farther, to learn, to be citizens, and to take part in a conversation among intellectuals.

The photo is credited to the Florida Department of Corrections and was located at http://www.newsplink.com/2009/05/11/phone-call-from-prison/, the post appears to include some discussion about the library prison. Partly he is complaining that by the time they figure out the books, their time for appeal has lapsed.

Blind & Visually Disabled Students Challenge Universities

The Chronicle of Higher Education, in a news story dated December 12, by Marc Parry, reports that as colleges and universities create more social media-based services and "hubs" for students, there is an increasing problem with visually disabled students lacking access. The developers of these sites simply don't think about making them accessible, the way that architects now routinely consider ramps and braille signage. But the problem is bigger than social sites' accessibility. E-textbooks often lack the metadata tags that are key for the screenreaders used by visually disabled readers. If an illustration does not have a caption explaining what the illustration, graph or image shows, the blind student cannot access that information. When schools mandate the use of Kindles they really need to be aware that these machines do not have decent readers built in, and blind users will HATE or be unable to use the machines to access e-books (depends on the version whether there is a voice at all -- visit this 2009 CNet review for a sample of the voice). When websites require mouse clicks to navigate, a vision-impaired user cannot access the site, because they cannot see to move the mouse around on the screen. They use a keyboard, and need a key substitute for the button click that the web designer imagines for the mouse. With a mouse-only design, visually impaired users have been locked out of the website.

These new developments are actually causing the visually disabled student to LOSE ground from the status of the visually disabled college student of 20 years ago, according to Daniel F. Goldstein, counsel to the National Federation for the Blind. Goldstein helped students file a discrimination complaint against Penn State because of campus technology blocking their access to the library catalog, department websites, and the course management software, which is apparently a nightmare.

The article does a nice job of hinting at the extreme difficulties which students and disabilities support offices alike run into with textbooks, for instance, and the long-time difficulties of trying to convince textbook publishers to do something to remedy the problem:

In the 1990s, he (Blind activist Darrell Shandrow, a senior currently at Arizona State, studying journalism) "virtually bombed out" his first two semesters of college and withdrew from most classes, largely because of a lack of textbooks in Braille or electronic format. Nearly two decades later, access to books remains a very thorny issue. Many publishers have "dragged their feet" making textbooks available in alternate formats, says Jack Trammell, director of disability-support services at Randolph-Macon College, in Virginia. That creates delays and leaves colleges scrambling to figure out alternative fixes, such as scanning books themselves.

Amazon's Kindle had the potential to avoid such problems. Unlike ink on paper, digital texts aren't inherently visual or aural, advocates argue, so they should be equally accessible to blind or sighted users. In fact, the Kindle did come with text-to-speech technology. But its menus were not accessible to blind users.

(snip) In June 2009, he (Shandrow) joined the National Federation of the Blind and the American Council of the Blind in suing Arizona State to block it from deploying the Kindle. The groups also filed complaints about Kindle pilots at five other colleges.

The outcome was mixed. Since Mr. Shandrow was ineligible for the Kindle pilot, a judge dismissed him from the case for failing to identify "any clear policy by ASU that will in any way impact him." But then, in January, Arizona State agreed to settle the case. Denying any legal violation, the university said it would strive to use only accessible e-book readers for a two-year period. Similar agreements were soon reached between the Justice Department and other colleges identified by the advocates.

In Washington, meanwhile, federal authorities seized on the Kindle controversy to broadcast a sharp message to colleges nationwide: Requiring inaccessible e-readers may run afoul of the law. The warning came in a public letter released jointly by the Departments of Justice and Education. (here is a nice blog post that pulls together the full text of the letter with some excellent links & comments)

"It is unacceptable for universities to use emerging technology without insisting that this technology be accessible to all students," the government said.

(snip) Inaccessibility is a major issue for the movement to post educational content free on the Internet. Hundreds of colleges have spent tens of millions of dollars producing lecture videos, notes, syllabi, and other free online materials. But Hal Plotkin, a senior policy adviser in the Education Department, says he would be surprised if more than 10 percent of these open educational resources are fully accessible. That flaw has "dramatically" held back their deployment, says Mr. Plotkin, a former community-college trustee in California.

Public institutions "will not use these materials," Mr. Plotkin says, "because the lawsuits that would follow would be inevitable, and very costly."

(snip) There are hopeful signs. California State University has shown how powerful colleges can be when they make access a high priority. The nation's largest public-college system turns its size into influence by denying problem companies access to its market of 430,000 students. That helped push Apple, Google, and Blackboard to upgrade their products for the blind. (Here is a newsletter article from 2009 noting improvements from all those companies as well as IBM, Elluminate and Microsoft, that make technology more accessible for the disabled).

Blackboard got so much better that in March, the National Federation of the Blind lauded the company for "great improvement" in the latest release of its course-management software. Navigation is smoother, and so are the forms, allowing blind students to do things like submit assignments and participate in discussions. Blackboard even offers a self-paced course for professors to get guidance on building accessible classes.

Meanwhile, the Justice Department is considering amending the ADA's regulations to specify that the Web, like a building, is covered by the law.

So, things move along, glacially, but they move. Prickly activists like Mr. Shandrow are the ones who make them move, along with supportive government officials who are willing to make change. We will see how much and how fast. If you are in a position of decision-making at your school, keep these factors in mind and perhaps you will save your institution from a law suit, and maybe even make them into the sort of change-maker that Cal State has become.

West Publishing Stung with $5M Damages to 2 Authors

The Philadelphia Inquirer reported on Dec. 21 that a jury in U.S. District Court awarded David Rudovsky and Leonard N. Sosnov each $2.5 million as punitive damages in a suit claiming that West defamed them. West listed the professors as authors of the 2008 supplement to the treatise on Pennsylvania criminal procedure after both had refused to be associated with the update because it contained virtually no new material! The Inquirer identifies Rudovsky as a "senior fellow" at Penn and a prominent civil liberties and civil rights attorney. Professor Sosnov teaches at Widener. From the Inquirer:

In 1991, West published their Pennsylvania Criminal Procedure: Law, Commentary and Forms. A second edition was published in 2001, and the men provided annual updates tracking changes in criminal court procedures.

But in 2008, West wanted to pay them only $2,500 each, so the two men ceased work on the addendum. Nevertheless, West published an update bearing Rudovsky and Sosnov's names on the title page.

The professors sued, contending that an inferior product - only three new cases were cited - damaged their professional reputations.

West quickly pulled the update, but not fast enough, it turned out.

In an interview Monday, Rudovsky and Sosnov's attorney, Richard L. Bazelon of Bazelon Less & Feldman, said testimony showed "what West had published . . . really was a sham," and done deliberately.

Bazelon said he expected West to appeal both the punitive award and the verdict. Along with the punitive damages, the jury Thursday awarded each man $90,000 in actual damages.

I wonder how much of the brou-ha-ha began with the paltry payment offered in 2008? But I certainly wish more West authors would stand up to them when they believed there were not enough changes to warrant a supplement! We librarians certainly know we are being fed new editions and supplements that are mostly puff. The poor law students are being forced to buy new editions of textbooks, too, as their professors are persuaded to select a newer edition, when there is not a legitimate need for one. And of course, with the rise of e-textbooks that have no resale value, the students are screwed in terms of ever buying a used book. I don't know if I believe the claims that the books will cost less. There only seems to be one party that ever benefits in these new developments, and it's not the consumer. Sadly, I suppose, I can't say the publishers and booksellers seem to be thriving either, in most cases. It just galls me when they use these tricks.

Defending Against Hacker Attacks

Another interesting article in the Boston Globe, by the wonderful Hiawatha Bray, about companies whose business is defending against distributed denial of service attacks, as well as other internet attacks. Denial of Service attacks (DDS attacks) essentially seek to overwhelm the victim's resources by sending so many requests simultaneously that the victim's computers cannot respond to legitimate requests, and crash, or simply slow too much to be useful. The attacker assembles a zombie like army called a botnet by sending a code to random computers via e-mail attachments or a computer worm. The botnet computers then work together to send out the DDS attack in a coordinated way. The owners of the botnet computers may never know their computers were involved. OOTJ readers probably remember when Google publicized its attack by hackers from the People's Republic of China. Twitter and Facebook have also been attacked, and as former supporters of Wikileaks have withdrawn financial support, they are facing similar attacks from outraged Wikileak friends.

The article in the Globe seriously (and perhaps intentionally) oversimplifies the matter of defending against DDOS attacks. The primary defense appears to be providing a large enough number of alternative servers to soak up the attacks. Quoting from the article:

Akamai relied on the simplest defense: a network of servers and data lines with such huge capacity that it can’t be overwhelmed by such an attack.

“If your pipe is bigger than their pipe, you win,’’ said Bruce Schneier, chief security technology officer at the British telecom giant BT Group.

The biggest DDOS attack ever to hit an Akamai customer occurred on July 4, 2009, when several US government sites were attacked by a botnet based in South Korea. But that attack generated a stream of data equal to just 4 percent of Akamai’s average daily traffic load, and was easily absorbed.

The data traffic aimed at the five Internet retailers equaled less than half of 1 percent of Akamai’s daily load and was barely noticed.

Akamai’s robust network may have also helped protect Internet retailer Amazon.com from online vandalism.

A group calling itself Anonymous posted Twitter messages that took credit for bringing down the Visa and MasterCard sites, saying the attacks were revenge for the credit card companies’ refusal to do business with the website WikiLeaks, which had published secret US government documents.

Anonymous said that Amazon, which had also cut ties to WikiLeaks, would be the next target. But within hours, Anonymous dropped the idea, posting that “The Hive isn’t big enough to attack Amazon.’’

It could be that this is the current state of the art. Just six years ago, a lengthy article by Cisco presented the difficulties in defending against DDOS attacks in 7 Internet Protocol Journal 4 with many more defense options. But six years is an eon in this field. Akamai's website does actually talk about more than offering a wider pipe. And other DDoS protection firms detail other security measures they offer as well: BlockDOS mentions adaptive filtering, deep packet inspection and flexible content filtering among several other types of filtering as methods of protecting clients servers from attack. Arbor Networks, another DDoS protection firm mentioned in the Globe article also lists a variety of security services beyond enlarging the "pipe:" protecting DNS architecture (I wish Comcast would sign up with them!), leverage IP flow for peak network visibility (I think they mean making the most of the available hardware), and more.

It's becoming a new industry to protect against the attacks. We already have security services for our computers like anti-virus providers McAfee or Symantec and hosts of others. Now there is a burgeoning industry for professional protection against DDoS attacks and more -- theft of information from the databanks, for instance, and other nightmares. It won't be long before universities become clients of these firms. The interesting thing is that the folks who developed the protections often haled originally from the ranks of the hackers who developed the problems. It takes a hacker to catch a hacker. Though hacker is a mutable term -- ignorant outsiders often misunderstand the term. Hackers are not necessarily troublemakers. Black hats and white hats are better distinguishing terms. Which is why I am decorating this post with those images.

Law in Virtual Worlds and How it Intersects Reality

Another article in today's Boston Globe, in the Ideas section, "Virtual World Order," by Rachel Nolan, interviews law professor Greg Lastowka, of Rutgers, Camden, Law School's Institute for Information Policy and Law. Prof. Lastowka has written a book,Virtual Justice, the new laws of online worlds, published by Yale University Press. (On this bio page here, you can link to an audio file of and NPR interview about the book, as well as what is noted as a PDF version of the book. I am not sure he really means to give us the entire file! But maybe so.)

The Globe article is very entertaining and thought-provoking. For instance, Prof. Lastowka relates the terrible story of the Chinese man who called the police to report that his friend had stolen his sword that he had loaned his friend. But since the sword in question was a virtual sword from a video game, the police did not take it seriously. They should have. The complainant had to earn it through many hours of online play, and the sword was worth the equivalent of $871 when the faithless friend sold it online. The angry man stabbed his one-time friend to death and is now serving a life-sentence in prison. If only the police had intervened!

Other stories follow, most involving money as the factor where virtual worlds and the real world intersect and clash. There was a Ponzi scheme, with later investors funding the returns of earlier investors. An online banker set up an investment scheme offering amazing returns in the virtual coin of the game, funded, of course, by the next investor. These schemes work beautifully up until they collapse and then all those left holding the investment chits are ruined! It sounds harmless in virtual cash. But you buy that virtual cash with real-world dollars. People were impressed enough that they bought a good bit and began investing, and then cashing out. The scheme was working like a real bank. But when the scammer accumulated his "goal" amount of the equivalent of $100,000 in the game currency, he declared the scheme over and unveiled it, and himself as a fraud. Oddly enough, the rules of the game forbade Ponzi schemes, and yet, the game authorities did not crack down on this! The game owners simply declared that is did not violate the terms of service.

The interview in the Globe makes it clear that Prof. Lastowka is proposing new legislation to deal with the new problems raised by the virtual games.

LASTOWKA: We’re at a crossroads. I definitely think the current laws are inadequate. With regard to contract law and property law and copyright law, virtual worlds challenge the existing legal categories. Courts are grappling with the right way to apply existing laws to virtual worlds. The trend is toward turning virtual worlds into their own jurisdictions....The way that virtual worlds are structured is that the owners of the platforms have the ability to exclude and expel voices that they don’t agree with. They have almost complete control over these environments due to the way that the law is structured and due to their technological powers over the environment.

IDEAS: If the government starts taxing virtual goods, will these worlds just shut down?

LASTOWKA: The owners would have to engage in elaborate accounting procedures that they don’t want to do. They need some leeway to be able to run their own economies and provide users with virtual property interests that are not treated the same as traditional offline property interests. (snip) The best (historical) antecedent, which is also part of the question, is the Internet....There are special laws about identity theft. There are special laws about hacking. But we’ve developed most of this jurisprudence, common law, and doctrine just in the last 20 years. But we don’t have any of this that is specifically pertinent to virtual worlds, at least not in the US. In South Korea there are some laws, and we’re getting some cases developing here.

The image is of Prof. Lastowka, from the website at Rutgers, Camden, Institute for Information Policy and Law, which, frankly, is where the Boston Globe took their photo. http://riipl.rutgers.edu/professor-greg-lastowka

Don't Ask Don't Tell Passes Both Houses of Congress

The Boston Globe reported today on the Senate vote that finally passed the end of the "Don't Ask Don't Tell" policy that affected so many gay and lesbian members of the military in recent decades. (111 HR 2965 and 111 S4023 which will become P.L. 111- ?; See Wikipedia article for a role-call vote) It was a lousy compromise policy when it was promulgated during the Clinton presidency, and has remained a terrible policy since. It has resulted in the dismissal from the military of too many willing members in high-need positions simply because their sexual orientation came to be known. The new policy just voted in is much better. It no longer matters. And I am glad that it's a legislative policy, rather than a judicial decision, though I was worried that it would not actually come to pass. Well done, and thank you to the handful of Republicans who listened to their constituents, and represented their interests.

Jubilant supporters likened the vote to President Harry Truman’s 1948 order to desegregate the military: “We’ll some day look back and wonder what took Washington so long to fix it,’’ said US Senator John F. Kerry, a Massachusetts Democrat.

Maine Senator Susan Collins, a Republican who was among a small group of senators who led the repeal fight in the Senate, thanked gay troops now serving in Afghanistan and Iraq: “We honor your service, and now we can do so openly.’’

(snip) “It is time to close this chapter in our history,’’ Obama said in a prepared statement after the vote. “It is time to recognize that sacrifice, valor, and integrity are no more defined by sexual orientation than they are by race or gender, religion, or creed.’’

(snip) The Senate vote completed a remarkable political turnaround for the “don’t ask’’ repeal authorization, which looked dead just 10 days ago after the Senate failed by three votes to approve a massive defense spending bill that included language to end the policy.

Several senators on the record in favor of repeal, including (Massachusetts Senator Scott) Brown, helped block the defense bill over procedural complaints. But in the immediate aftermath of that crushing defeat, repeal supporters gathered for one last effort.

They decided to push a stand-alone bill to reverse the policy, racing against the clock before Congress adjourned for the year.

The House last week easily approved the bill by a vote of 250 to 175, setting up yesterday’s drama in the Senate.

(snip) The chairman of the Joint Chiefs, Admiral Mike Mullen, whose call earlier this year to change the law swayed many skeptics, said he believes the US military will be stronger as a result of the congressional action. “No longer will able men and women who want to serve and sacrifice for their country have to sacrifice their integrity to do so,’’ Mullen said.

To those of us who support this change, it seems clear that this is a civil rights issue. In a few decades, we will look back and wonder why it was such a big issue and why it took so long!

A Moveable Feast

I enjoy reading the Library Babel Fish blog, which is written by Barbara Fister, a librarian at Gustavus Adolphus College, and appears regularly on Inside Higher Ed. The most recent post, "Finals: An All-Consuming Ritual," hit home for me. Fister describes the "binging and purging" that are as much a part of exam preparation at her school as cramming and last-minute writing of papers. So much food is consumed in her library during finals that "the amounts of food-related trash that [the] custodians ... haul out ... [is] prodigious."

Our final exams began last week, and will conclude the end of this coming week. As I reported in a prior post, the library is extremely crowded with students, most of whom are bringing in not only cups of coffee, but large grocery bags filled with all manner of sustenance, some of it extremely smelly. Garlic-laced salad dressing is particularly pungent and the odor permeates all five floors of the library with remarkable speed. We have had to invest in industrial size and strength garbage containers--all with lids--in order to contain the mess and the smell, and we have requested that our long-suffering maintenance staff empty all the containers at least three times a day during finals. Thanks to the large garbage containers and the attention of the maintenance staff, we are keeping the situation under control as we count down the days until exams are over. I never thought I'd become an expert on garbage cans!

New Study Using Google Books

The Boston Globe reports on a fascinating cooperative effort where GoogleBooks has created a new tool, the Google Books Ngram Viewer which allows a researcher to sift through the materials scanned into the Google Books project, and automatically calculate the frequency of a word and watch it change over time. You can then compare the changing frequency of different words across the decades or centuries.

It can be very interesting. The link above demonstrates at Google Labs with "Atlantis" and "El Dorado." But perhaps meatier questions (ha, ha) are raised by the examples in the Globe article. The online article reproduces what I saw in my print paper, and you can see it better online. They looked at changing frequencies of appearances of food terms: sausage, ice cream, hamburger, steak, pizza, pasta, and sushi. You can imagine that in English language publications, instances of pizza and sushi in particular, and pasta, a bit, have really only begun appearing since their popularization by returning World War II veterans. Increasing acceptance of ground beef, improved food inspection perhaps as well, and certainly the rise of fast food chains have increased the frequency of "hamburger."

They also tested the changing terms for types of influenzas. They looked at the frequency of the use of the word "God." This last in particular, allows the reporter to explain that this new tool is merely that. It is a new addition to the scholar's tool chest. It does not take the place of the scholar. The scholar eventually will have to sit down and read at least a portion of the literature. It makes a great difference if the appearance of "God" is in a prayer or an ejaculation or a discussion of theology. So the graphs carry a certain amount of meaning, but to really understand WHAT it means, the scholar still needs to visit the literature.

It's tempting to play with the data, but you really need to download a whole bunch of tiny files to begin. You have to be dedicated to this.

Taking a Hammer to a Mosquito

When dealing with students, it is usually better not to overreact. Although this is true all year long, it is especially true during final exams, when tension levels rise. Right now, my library is literally packed with students, and it is becoming difficult to find a place to study. The staff is endeavoring to ensure that burned-out lightbulbs are replaced in a timely fashion and that the building is a comfortable temperature at all times. We try to remain calm when responding to complaints brought to us by students, but at times it is difficult. An article in The Chronicle of Higher Education made me think about ways that law school administrators interact with students.

The article describes a satirical blog, SUCOLitis, which aims "to be something like The Onion of law-school life." Focusing on Syracuse University College of Law, the blog features "fake headlines about beer pong, third-year students serving burritos, and the election of the university's 'sexiest Semite.' It delights in attributing fake quotes to students and faculty, as well as to famous alumni ... " I think that my reaction to the blog would have been to ignore it, but Syracuse took a different approach. "The law school has threatened 'harassment' charges against a student who is allegedly a writer for the anonymous blog." The student, Len Audaer, is being investigated, but Syracuse refuses to give him any information about the charges against him unless he signs a gag order. This information comes from a press release issued by the Foundation for Individual Rights in Education (FIRE), an organization "known for its efforts to stop campus officials from restricting the free-speech rights of students and faculty members." The blog, which is on WordPress, was made private last week, and readers have to access it using secure accounts. More information about the controversy appears here. Coming down hard on the student blog author has generated the kind of negative attention that most law schools try to avoid.

Overseas Parental Kidnapping Difficult Problem In Japan & India

The Boston Globe has a brief article about the problems parents face retrieving children when their estranged spouses or partners take children and leave the country. Some countries, like Japan and India are particularly difficult to deal with in getting these children back. Even when a U.S. court has awarded custody to the parent who remains back in America, the courts or authorities in these two nations seem to be unwilling to offer assistance in finding or retrieving children. I can tell you from a long-ago experience with a client whose young child was taken by an upset ex-husband and lodged with his mother, that it is a very upsetting thing for the parent and child alike and very difficult to solve, legally.

It is a distressingly common problem for an ex-spouse or estranged spouse or partner to take a child during or after divorce proceedings, when that person does not have legal custody. Often, the kidnapper is "correcting" their perception that the judge made a mistake in awarding custody to the other parent. Or, perhaps, that person is punishing the other parent in some way by taking the child. Or sometimes, they feel they are rescuing the child. In all cases, it is a terribly upsetting thing to have the child stolen away.

The National Conference of Commissioners on Uniform State Laws has promulgated two related uniform laws on the matter:

Uniform Child Abduction Prevention Act

Uniform Child Custody Jurisdiction and Enforcement Act

Regarding the international aspects, the United States is signatory to the Hague Convention on the Civil Aspects of Child Abduction (signed Oct. 25, 1980). Here is a list of the signing states. Japan and India are our two largest allies who are not signatory, though other Asian nations are problematic as well. The State Department is the major federal agency that works with parents trying to locate and regain custody of their children who have been taken overseas by noncustodial parents. The Globe article states that they have increased staff assigned to this issue from 18 to 65 in the past 3 years, and one of their jobs is to persuade non-signatory nations to sign the Hague Convention. Apparently, Representative Chris Smith of New Jersey is considering sponsoring a bill in the House to create a federal Office on International Child Abductions. This is mentioned in the Globe article and in several related articles gleaned from Associated Press and other news sources. On the Congressman's webpages, though there is nothing listed in the compilation of laws authored by Chris Smith. And his news page does not list anything to do with such a bill yet, so perhaps it is only in the planning stages.

The International Child Abduction Remedies Act, 42 USC §11601 et seq. (click on "next" to see the next part of the law), details the procedure in federal and state courts. The Department of State is the agency to contact in this matter. The Travel Bureau has an Office of Children's Issues, which includes abductions.

You may also want to know about the Polly Klaas Foundation, which was named for a 12 year old girl abducted from a slumber party in a family home in Petaluma, California. An international, high-tech search for Polly ensued, fruitlessly, which ended nine weeks later, when Polly's remains were identified, and thousands of people mourned this child which many had never met. But during the time of the search, many parents with lost children had come together through this search, sparking something new, which grew into a grassroots movement. They will send you a child safety kit to prevent abductions, as well as assist parents in tracing lost children and retrieving them. It looks like a very worthwhile site, and takes donations if you are so moved.

Massachusetts adding cameras to courtrooms

The Boston Globe reports today that the Massachusetts Supreme Judicial Court announced proposed new rules about cameras in courtrooms at all levels of the judicial system. The rules are not final yet, and comments are encouraged; the article tells interested readers where to send comments. The rule was crafted by the Supreme Court's Judicial Media Committee with input from journalists over the course of this year.

The rules are designed to increase citizen access to courts and trials, including blogger access. There is already a rule allowing 2 cameras in every court: one for television and one for newspapers. The new rule would allow 3 cameras, designating the new camera for Web access. The Court is clearly paying attention to the new role that citizen journalists have been playing in coverage of local news. As newspapers find it difficult to fund investigative reporters, these volunteer bloggers have often filled an important gap in coverage. While I certainly hope that professional journalists will continue to be available to cover important state trials, it's nice to think that a case of local interest could be covered by a blogger even when the papers decide it's not "big enough."

In a summary released yesterday, the court said “the news media would be defined as those who are regularly engaged in the reporting and publishing of news or information about matters of public interest.’’

The rules would allow journalists to use laptop computers and other electronic devices while court is in session, provided it is not disruptive.

Even with the new rules, judges still have the authority to ban cameras in certain circumstances. Also, journalists would still be barred from recording jurors at all times during a trial, whether it is a civil or criminal matter.

(from the Globe article by John R. Ellement, a staffer from the Globe who has shared in the Globe's 2003 Pulitzer prize. I was curious because of the rule, who was reporting.) This is the Court that pioneered webcasts (and archives of them) of oral arguments in their court. The Court really is seeking public feedback before making the rule final. Comments can be sent:

Christine P. Burak,
Secretary, Supreme Judicial Court Rules Committee,
Supreme Judicial Court,
John Adams Courthouse,
One Pemberton Square,
Boston MA 02108 on or before Jan. 28, 2011

The photo of the Court listening to arguments is from the Suffolk Law School website that houses the webcasts and archives.

Digitization at the Kennedy Library

Perhaps because I was born and raised in Boston, I have always been very interested in President John F. Kennedy. His election is the first I remember--I will never forget it. We watched every minute of the Inauguration on television, and were moved by the inaugural address. It was a time of hope and promise. Who could have predicted it would all end in tragedy when Kennedy was assassinated? We watched every minute of the coverage of the assassination, and were shocked when Jack Ruby shot Lee Harvey Oswald, seemingly in front of our very eyes.

These memories came rushing over me when I read an article in the Boston Globe about a massive digitization project under way at the John F. Kennedy Presidential Library and Museum in Cambridge, Massachusetts. "A four-year, $10 million effort to digitize the JFK Library and Museum's archives, making hundreds of thousands of documents, photographs, and recordings available online, is nearing completion of its first phase." Although this represents just a "small portion of the collection," the project "marks the first time a presidential library established in the paper age has fully committed itself to the digital era." None of the other presidential libraries have begun to undertake digitization projects on such a massive scale, but the National Archives, which oversees the presidential libraries, hopes the Kennedy archives will be a model for other projects.

The article discusses the behind-the-scene efforts to make the digitization project and the redesign of the library website successful. I was interested to read that all the scanning was done by hand to protect the increasingly fragile originals as well as to ensure that "even pencil notes would be legible." I was also glad to know that a great deal of attention is being paid to the addition of metadata so that the documents will be accessible. For instance, the phrase "Cuban Missile Crisis" "must be embedded retroactively to make the relevant documents searchable" because that term was not used in the White House at the time.

Iceland rewrites its constitution: radical democracy

Iceland has a current Constitution conveniently posted to the Internet in English by its government. It is a pretty good looking document to my untutored eye, with 79 Articles in seven roman numeral sections. The Constitution sets Iceland up as a Republic, with a democratically elected government. It lays out the powers, duties and limits of power for the President, the judiciary and the Althingi, the world's oldest elective legislative body which has roots in ancient Icelandic history, founded in 930 AD. Section VI sets up the Evangelical Lutheran Church as the official state church, entitled to state support (surprise!), but also provides in Article 63:

...the right to form religious associations and to practice their religion in conformity with their individual convictions. Nothing may however be preached or practised which is prejudicial to good morals or public order.

(Article 64) ... Everyone shall be free to remain outside religious associations. No one shall be obliged to pay any personal dues to any religious association of which he is not a member.

A person who is not a member of any religious association shall pay to the University of Iceland the dues that he would have had to pay to such an association, if he had been a member. This may be amended by law.

In section VII, there are a list of human rights guaranteed by the Icelandic Constitution. I don't know what (if anything) in the Constitution has caused the Icelanders to decide, but they are rewriting this document. I found a very nice statement from the Icelandic government webpage describing the history of constitutions and rewriting them, amending them, in Iceland:

Icelanders were given their first constitution in 1874 when Iceland was still part of the Danish kingdom. Though it may be said that it is still valid in some respects, it has since been significantly amended. The first important change was in 1903, when Iceland was granted Home Rule, which went into effect in 1904. Considerable changes were made in 1915 when voting rights were expanded and women were granted the right to vote for seats in Althingi, the Icelandic parliament. A new constitution went into effect in 1920 following the recognition in 1918 of Iceland as independent of Denmark, though still in a personal union with the Danish king. This version of the constitution remained in force virtually unchanged until 1944 when the Republic of Iceland was founded.

The present constitution dates from 17 June 1944, and has been amended six times since. These amendments have especially concerned setting constituency boundaries and guaranteeing equal voting rights, but the most important change was made in 1995 when the human rights section was reviewed and reworded to conform to the international agreements of which Iceland is a signatory.

(the government website credits: Iceland - The New Millenium Series, Carol Nord ehf. Text by Professor Sigurður Líndal.

Iceland has gotten a lot of notice in the blogosphere (and this Irish Constitution thread), and the Seattle Times) because their new Constitutional Assembly to rewrite the Constitution is open to all citizens, with many non-politicians, "plain" folk entering their names. When I looked for news stories more recent, and maybe straight from Iceland, I discovered that they have just held the elections for the Constitutional Assembly, and had a disappointingly low turnout. Iceland Review Online reports that it was the lowest turnout in their history, with only 36% of voter turnout, countrywide. The short article includes quotes from various experts who analyze the possible reasons for the poor turnout. They consider everything from voter fatigue to lack of political campaigning or coherent campaigns by candidates, to perceived lack of need for a new Constitution. From the Yahoo News piece,

(snip) Pressure mounted for action after the nation's economic collapse in 2008, an event punctuated by ordinary citizens gathering outside the Althingi, the parliament, banging pots, pans and barrels — a loud, clanging expression of fury. The meltdown was seen not only as a failure of the economy but of the system of government and regulatory agencies. Many came to believe a tighter constitutional framework — including a clearer division of powers — might have been able to minimize that damage, or even prevent it.

"It is very important for ordinary citizens, who have no direct interest in maintaining the status quo, to take part in a constitutional review," said Prime Minister Johanna Sigurdardottir. "We are hoping this new constitution will be a new social covenant leading to reconstruction and reconciliation, and for that to happen, the entire nation needs to be involved." (snip)

Icelanders debated their values and turned to questioning the foundations of their society, including those that had facilitated the boom. Anger grew as more instances of misdeeds and incompetence in the private and public sector were exposed. Icelanders woke up to the harsh fact that their country, which had consistently been at or near the top of the Transparency International anti-corruption index, was, in fact, steeped in corruption.

That was ultimately confirmed in a 2,000-page report following a special parliamentary investigation. That report showed that the foundations of Icelandic society were decayed and that a sweeping revision of the social framework was needed.

Sigurdardottir says a new social covenant can at least assist in "restoring the public's faith in the government."

The constitutional assembly will be made up of 25 to 31 delegates, the final number to be determined by a gender and equality ratio. It will be made up of regular citizens elected by direct personal voting. Anyone is eligible to stand for election, with the exceptions of the president, lawmakers and the committee appointed to organize the assembly.

The assembly will draft a proposed new constitution next year. They will use material from another extraordinary project earlier this year in which 1,000 randomly chosen Icelanders — aged 18-89 — offered their views on what should be in the constitution.

Now the race is on to be among the charter's authors, with 523 people in the running. Truck drivers, university professors, lawyers, journalists and computer geeks are all among the candidates. All have been given equal air time on Icelandic radio to make their platforms known.

Those elected will receive a salary equal to that of Iceland's lawmakers while the constitutional review takes place, and Icelandic employers are legally obliged to grant leave to any employees elected to the assembly.

The Yahoo News story goes on to interview 3 different candidates on their views, which ranged from enthusiastic, to a candidate who is running to prevent the Assembly. This last guy says it's not needed, and is a ridiculous expense at a time when the country is in economic crisis. He says the constitution had nothing to do with Iceland's bank collapse in 2008, which precipitated the country's complete economic meltdown. According to the article which is pretty much repeated in every Internet posting, Iceland has never written its own constitution until now, having previously just adopted Denmark's constitution pretty much wholesale and then tinkered on it. Whatever happens, it will be interesting to follow. Iceland is pioneering again in democratic actions.

Tip of the OOTJ hat to our colleague & former OOTJ blogger, Jim Milles, who also introduced me to Allthing history many years ago. The image is the Law Rock, at Thingvellir, (where the Allthingi met originally), showing the Law Speaker, another bit of Icelandic legal history, and (frankly) much more colorful than the photos of the current Allthingi building. Courtesy of Wikipedia article on the Allthingi, and credited as W.G. Collingwood "19th century Alþing in session."

Information Overload -- possible ways forward

The Boston Globe had an article today, "Information Overload, the early years," by Ann Blair. I have to say I began to read it with some reluctance. We have all seen a number of articles along similar lines, where they go back in history and pull up fascinating quotes that prove that Erasmus was disheartened by the sudden plethora of books, and thought it was all just too much. This article does exactly that, of course, showing that when the printing press emerged, yes indeedy, people began to feel swamped in books. Ms. Blair also provides the stunning statistics about how much data is being produced each year, along with quotes from Nicholas Carr worrying (as I do, in fact) that we are changing the way we read.

But the article goes beyond the usual run of the mill descriptions of how they felt the same kind of overload we do. Blair does a wonderful job of noticing that after the first shock of the outpouring of publishing, that various players began devising methods to deal with the wash of data. This is fascinating and gives us actual helpful pointers about how to cope now. I did not know, for instance, that this was the moment when bibliographies, indexes and tables of contents really developed and blossomed. Reference books of all types began to be invented under the pressure of "too many books to read." Collections of quotations, called "florilegia" originally came out. Then selecting, collecting and digesting all kinds of information emerged. I did not realize that this was when note-taking became a skill, or that it had to be taught. And I was fascinated to learn that the roots of library card catalogs are here, at this point in history:

Compilers cut and pasted, very literally, with scissors and glue, from manuscript notes they had already taken — or, even more efficiently, by exploiting a new, cheap source of printed information: older editions of books. These slips were cut from a full page and soon glued onto a new sheet, but in the mid-17th century for the first time one scholar advocated using the slips themselves as an information-storage system. Crucial to this method was a specially designed piece of furniture: a note closet comprising slats studded with hooks on which the slips could be stored and labeled. Probably only a handful of such closets were built, but the slip — and the idea of the filing system — had a long career ahead. In the 18th century the political theorist Montesquieu took notes on the backs of playing cards, which were blank in those days. His younger contemporary Carl Linnaeus made his own slips for recording the characteristics of plants, from which he created a taxonomic system that we still use today. The slips, ordered and sorted, would eventually inspire both the index card and the library card catalog.

There were also some failed experiments. There was a sort of "family tree" design of hierarchies and brackets to show the contents and their relationships. There were various efforts to use squiggles and indentations and other signals to show the subcategories of topics before the indented alphabetical indexes and outline-format tables of contents that we see today. This is important to understand. None of the forms we use today were pre-determined, and there had to be experiments to discover what would work the best. There had to be trial and error to find the best methods of dealing with that original information overload, from Johann Gutenberg's printing press. And that means we can and must do the same thing now. In fact, it is happening already, in ways I am not sure we can recognize yet. But it is happening all the same. We are already beginning to cope and adjust. Improved search engines, better search techniques, more ruthless culling of results. I suppose the "cloud tags" are another example of a technique of dealing with labeling.

Librarians' skills are more useful than ever in sorting information. I suspect we will have useful things to offer in the development of these new tools and techniques.

The image is of the library at the University of Leyden from the Globe article and is credited to Getty Archives. The caption in the print edition said the image was from 1610. I hope the image is clear enough for you to see the books chained to the shelves, and the reading racks below the shelf. There are 2 women visiting the library as well as two dogs, which I hope was not an equivalent visit. The books are shelved by topic, with, if you can read the labels along the top of the shelves, "Iuris Consultis," "Medici," "Historici," and other topics listed. Wonderful image with globes having adorable little individual covers, and set up high on shelf tops when not in use. You can see the readers stood at the shelves to read the books, resting their foot on a foot rail, to rest their backs. The table is not for sitting to read, but to set the globes on for measuring distance.

Thanksgiving Day - counter traditions

At Plymouth yesterday, a varied group of Native Americans gathered for the 41st National Day of Mourning. The Boston Globe has a nice article by Erin Ailworth. Each Thanksgiving Day since 1970, they have been gathering to commemorate the day in a different ceremony. From the perspective of the Wampanoag and other native peoples, the arrival of pilgrims which we celebrate at the Plymouth living museum and with the Thanksgiving holiday, was really the beginning of a catastrophe. The tribal peoples lost their lands and their traditional ways of living as European settlers moved to the Americas in greater numbers.

Not all the people attending the ceremony were Native Americans. Although it was not a large turnout, the article reported on several people who attended to show solidarity or to widen their perspective. But for the native participants, they said it felt empowering.

Other New England fall traditions for this time of year: rescuing sea turtles that have become lost and disoriented as the water cools in the fall. They ride the Gulf Stream up to Cape Cod area for feeding, I suppose. But as the water cools, they can't find their way back into the warm stream to ride back down south to safety. New Englanders make regular sweeps of the beaches and haul the chilled turtles off to the New England Aquarium. The staff there have made a fine science of how to bring the turtles back safely to normal temperatures. The turtles' body temperatures can be as low as the 40's Farenheit when brought in. The normal temperature should be something in the low to mid- 70's according to the Globe article. If the turtles' body temperatures are raised too quickly, they will become ill as dormant pathogens are stirred up. Apparently, they rescued a record 17 turtles the day before Thanksgiving, making a total of 41 since October 20. That's a lot this year! And of that total, 90% have been the rarest kind, Kemp's Ridley. The article by Jeffrey Fish (charming name for somebody writing about Aquarium type matters) reports that they expect to release the turtles next summer, and can hope for 80-90% survival rate after they are released.

* As of Thanksgiving, 2013, I have been contacted by several people who say that the Globe's photograph was taken of a sacred ceremony where people were specifically requested NOT to take photographs.  I have been asked to remove the image from this blog post.  For those curious, it showed a man not so much kindling a fire under the statue of Massasoit, as blessing it with smoke. (Betsy McKenzie)

The image is from the Globe article on the Plymouth Rock protest, the National Day of Mourning. The caption reads, Juan Gonzalez of Boston kindled a fire under the statue of Massasoit in a prayer ritual during the 41st National Day of Mourning in Plymouth yesterday. credit to Yoon S. Byun of the Globe Staff.

2-L Book Thief at OSU Moritz Law Library

The story about the 2-L law student at Ohio State who was stealing books from the campus library and selling them online, allegedly netting more than $10,000, has got me steaming. There are also links at Above the Law and local news outlets: Columbus Dispatch. As of late October, campus police had discovered 1,351 books listed online for sale by the individual, whose name has not been released because he has not (yet) been charged. The police were alerted by a Brazilian lawyer who bought one of the books from "Orion Bookstore" through Amazon.com, and wondered about a library stamp which had been marked through with black marker. She contacted the university by e-mail. They checked and found the volume missing from the shelf. And things rolled on from there, apparently.

The police investigators found that some of the items listed for sale were still on the library shelves! This student was offering merchandise to be stolen on spec. The detectives arranged a sting operation. They marked a volume with invisible ink that would only show up under ultraviolet light. Then, they asked an out-of-state relative to order the text from Orion Bookstore. They set up a hidden camera, aimed at the shelves where the book was shelved, and monitored the area. Soon, they had on tape the individual they think to be the student entrepreneur removing the requested book. And in a few days, the requested book arrived by mail at the relative's address, with the ultra-violet-sensitive mark.

The Columbus Dispatch article mentions "court documents," and yet all the reports agree that the name is not released because the student has not been charged. I suppose that the student has been arraigned before a grand jury, since the amount mentioned in all the reports, $10,000, easily moves the theft into felony range.

I don't know about your library, but I have a budget line for "lost and stolen" items. The line is used up every single year. Some years, we exceed the budget by a shocking amount. There was a year when we suspected one of our reserve students of being a major book thief. I wanted to do a sting with a hidden camera, but my associates really just wanted to get the year over and the student graduated. I allowed myself to be overruled. But I still think it was the wrong thing to do. That money is tuition dollars that the individual stole from his fellow students, damn it. Why should he be specially entitled to either steal for himself, or as my colleagues suspected in our case, for his friends? They thought he might be handing out the copies of required textbooks and study aids to pals just as the library was closing each night, and allowing them to walk out with their new personal copy.

That is just so wrong.

Updating an old post: Typography for Lawyers

Dear OOTJers: In August, 2009, we featured a post about a website, Typography for Lawyers. Matthew Butterick, a civil litigator from L.A., runs the website. But before his life in the law, Butterick got a fine arts degree focusing on typography and graphic design. So this is something the man thinks about. The post at OOTJ, for instance, was looking at ballot design. But there are lots of other applications for lawyers to think about as well: pleadings, memos, contracts and other legal documents would all be easier (or maybe harder!) to understand when laid out thoughtfully. I think statutes and regulations should be published with consultations from this guy or somebody like him.

At any rate, he has a new book out that I think law libraries might like to know about:

Typography for Lawyers

Well, he's into clarity, I suppose. It's based on his website. The link above will show you can order it from the publisher or from Amazon. He even has a foreward from Bryan Garner, who wittily shows you how to use the book to make your life easier by handing it to your associate to show them how to lay out their memos in future in a more readable way. I think my profs will be delighted if the students will use it to lay out their papers in a more readable way. But I also buy things with an eye to my alumni who regularly use my library and I know they will be delighted.

Librarians Add Value in Law Firms

Helane Davis passed along this ABA Journal news item, Does It Pay to HIre a Law Firm Librarian?. Patrick Lamb of the Valorem Law Group writes in the New Normal series his take on this question. Few firms now would need the physical space of a library since so much of what they use is online. (My firm friends actually say they are keeping a small number of print titles, usually a careful selection of secondary resources). But, Lamb doesn't know about this. So, then, he asks, if you don't have books, and you therefore don't have a library, do you need a librarian? I was very happy to watch him work this one out:

We generate as much data every 2 days as all of humankind had created until 2003, and the pace is picking up. (credit to Google general counsel Kent Walker at the ACC annual meeting, 2010). Thus, Lamb reasons, librarians are information professionals in this time when it is increasingly vital to filter and sort the overflow of information that is available. (Actually, he doesn't get to the filter idea; Lamb is still speaking in terms of finding.) But he realizes that the associates who do the research at law firms are NOT information professionals and are floundering:

They may become good at analyzing information, but that is somewhat of a crapshoot, and they certainly are not trained at finding the “stuff’” that we frequently need every day. When you live in a value-fee world, someone who finds the right information efficiently is really valuable.

If you have someone who is really good at finding the right information, why would a firm need, or even want, to draw a line between where that information came from? But firms do precisely this when they have a "knowledge officer" (internally created information) and a "head librarian" (externally created information). Frankly, information is information regardless of its origin, and one person should manage it.

Lamb goes on to think about how librarians should be working closely with the marketing department and with accounting, making the information they can find "supercharge" those two departments in law firms for business development and pricing models. (Actually, I believe there are a lot of firm librarians who are doing these things. Knowledge management is one of the code words that means researching companies to help build your firm's business. I think it also has been used to help firms set pricing, though I am less certain about this.)

So far, this is a very cheering article. Lamb certainly has a grasp on what librarians can do for law firms. But then, he cites to an unidentified "recent survey."

A small group of librarians was asked to describe the value they bring to the organization. No one described anything similar to what is described above. In fact, several responses were along these lines: “loyal accurate, friendly and smart”; “intelligent, hard-working, very efficient”; “cataloging skills and knowledge”; “hard worker, always willing to help.”

He does not identify either the survey or its source, and we cannot tell what sort of librarians or the kind of organization to which they belong. This is horribly frustrating and I cannot believe that this was a survey of law firm librarians. I cannot think they would self identify with such terms to explain their value to their firms. Lamb, n all honesty, explains his post as a "head fake" to get all his readers thinking about what value THEY add to their organization, lest THEY become irrelevant, as these librarians are made to look. This is an infuriating trick and really quite unfair.

What an A**hole. I hope somebody misfiles his most expensive looseleaf and then maybe mis-shepardizes an important case for him.

Why the Job Market is Changing - Full Version

National Jurist Magazine for Nov. 2010 features a really interesting article by William D. Henderson, professor at I.U., Bloomington, "Why the job market is changing." If you follow the link to the online version of the free magazine that is likely sitting in your law school lobbies right now, you can read it free by registering. They are pretty good about not flooding your mailbox, if you are careful about how you register. Unfortunately, the blog posts I see around the internet only feature the short version of the article that is all you get without registering. There is more and it's worth reading the whole article.

Henderson not only reviews the recent (big) law firm hiring model, which relied on pedigree and grades, and concludes that it has never done a particularly good job of predicting who would be a really good lawyer. He observes that the current economic climate is encouraging in-house counsel and other cost-conscious clients to incentivize (great word!) the large firms to rethink this model. That is, they are forcing them to lay off massive numbers of less-productive associates and even partners, and to radically re-think how they hire and bring along the next generation in their firms. They can no longer hire large numbers of associates each year with the expectation that they could train them and winnow them at client expense. And finally, Henderson notes that traditional law school is particularly poor at teaching the skills and behaviors needed to form a lawyer who is going to rise to the top of the current scrum: "...indeed, your typical law professor is completely unqualified to serve as your jungle guide."

You nailed it, Prof. Henderson! But the rest of the article is well worth reading and that is what all the excited blawgers missed with their short posts. Henderson reviews the history and notes that what we have recently thought of as "traditional" is really post- WWII. After putting our period into a bit of historical perspective, he does a terrific job of reviewing the big picture version of what happened with the economic melt-down and its effect on the legal job market. But then he offers some actual data, from his own research:

In 2007 and 2008, 46 percent of all entry-level associates at an AmLaw 100 law firm were graduates of a Top 14 law school (the composition of the top 14 law schools in the U.S. News rankings has not changed in 20 years). Yet, during this same period, 30 percent of lawyers promoted to partner were from Top 14 schools. Further, as of 2009, only 35 percent of general counsels for a Fortune 500 company had graduated from a Top 14 school. This suggests that the advantage of higher test scores and academic pedigree diminishes rather than compounds over time -- at least for partnership or general counsel positions.

He explains a study by Professors Marjorie Schultz and Shelton Zedeck of the University of California-Berkeley, who applied 26 factors needed to be a successful attorney to create an assessment tool. They offered the tool to peers and supervisors to assess a large sample of students and lawyers who graduated either from U.C. Berkeley or from U.C. Hastings. They then compared the results to the individuals' LSAT, undergraduate GPA and first year grades, to see what sort of correlation they found between these usual measures of academic ability and the new measures of lawyering aptitude.

Depending upon the sample, between two and eight of the 26 factors were meaningfully correlated with the academic credentials. The best positive predictions were for skills taught in law schools, such as Analysis and Reasoning, Researching Law, Writing and Problem Solving.

Yet, some of the correlations were negative. For the lawyers in the study, LSAT and first-year grades were negatively correlated with Networking and Community Service. For law students, undergraduate GPA was negatively correlated with Practical Judgment, Ability to See the World through the Eyes of Others, and Developing Relationships. In contrast, the vast majority of the 26 success factors correlated with personality and situational judgment tools that are commonly used in business.

Professor Henderson suggests that large law firms, along with other employers will be moving away from this current/most recent model of "law school hierarchy." He notes that findings from the After the JD study show that large firm associates hired from Top 10 law schools report high levels of dissatisfaction, and are more likely to leave. Associates at the same firms hired from "regional" law schools are more satisfied and more likely to stay in their positions. He also notes that firms are becoming more and more pressured to develop their business markets, and that requires hiring "...intelligent, creative, adaptable, highly motivated graduates who have a passion for client service." Law firms will increasingly move to using the sorts of behavioral interviews, personality tests, and simulated group work that other businesses have used successfully for some time to hire successful management candidates.

Law schools need to start treating the practice of law as a business. They need to take the ABA reports that call for more practical skills seriously. The major bars to this change have been faculty reluctance to change from podium/substantive classes which have dominated law school since Dean Langdell's day, and the bar exams which really do govern what law schools decide to teach. It's very difficulty for a board of bar examiners to devise a realistic and objective test of a skill like drafting or research, and so they have left it very much with the legal analysis in the form of the essay exams based on the law school classes, and writing based on those same essays, not on filings or drafting that a practicing lawyer would do. It means that our students graduate without knowing how to draft wills, or write a complaint or answer one. They have to learn all that after they pass the bar. Which always seemed pretty crazy to me. And that's what the economy is forcing to change. The law schools that can change with it will be at the forefront of a new era, and their students will be very lucky, indeed.

Building a Path to a Dream: Martinez

The California Supreme Court ruled unanimously yesterday in Martinez v. Regents of the University of California that California law could provide in-state tuition to any student who proved residency in the state by attending a California high school for three years, and graduating. The state statute did not violate federal immigration law. Martinez reverses a 2008 lower court decision finding the statute violated federal law which prohibits providing postsecondary benefits to aliens, based on state residency if the same benefits are not available to non-resident citizens.

Justice Ming W. Chin, writing for the Court, points out that the benefits are not, in fact, based on California residence. Instead, this statute bases the benefit on attendance at, and graduation from, a California high school. The decision cites statistics showing that the majority of those using the benefit are not illegal immigrants, but instead, are legal U.S. residents who graduated from a California high school and then moved elsewhere.

Next Veteran's Day may have a different celebration

I'm a little late reporting this. Next Veteran's Day may have a really interesting and very moving way of honoring our veterans. There is growing support for the idea of following the lead of Israel in their celebration of their Memorial Day or Yom HaZikaron. Boston.com and the Boston Globe reported that local doctor Peter Bendetson took his sons to Israel for a family vacation. There they witnessed how the Israelis took seriously the moment of silence, even to the point of stopping cars on the highway, and getting out. People on sidewalks, came to a halt.

Yom Hazikron is the day on which Israel honors its fallen servicemen and women. National memorial services are held in the presence of Israel's top leadership and military personnel. The day opens the preceding evening at 20:00 (8:00 pm), given that in the Hebrew calendar system days begin at sunset, with a siren. The siren is heard all over the country and lasts for one minute, during which Israelis stop everything (including driving, which stops highways) and stand in silence, commemorating the fallen and showing respect. Many national-religious Jews say prayers for the souls of the fallen soldiers at this time as well.

(from Wikipedia article, which includes a photo of people standing beside their cars) One thing the Wikipedia article points out is the universality of military service among the Israeli people, men as well as women. Unless a person is truly disabled (I assume this must be true in case of devastating disability), Israelis serve in either the military or a related service such as the Border Police Israel Police, Prison Service or Security Forces. Women may be exempted for religious or "nuptial" reasons -- the article says about one-third of women are exempted this way. The common experience and universality of the sacrifice, as well as the nearness of war in a very small nation may all contribute to the strong support for this major tribute.

By contrast, in our country, our last "universal" war was WWII, whose veterans are in their 80's or older. Since then, wars have been "police actions," that have been politically contested, protested, and bitterly resented by much of those portions of the populations conscripted to fight. At the end of the Viet Nam War period, President Nixon did away with the Selective Service conscription, and since then, the United States has had a "volunteer" military. That means a much smaller proportion of our population ever serves in the military. Those who were conscripted in more recent wars were often taken because they lacked social status, political juice, or money, interest or intellect to stay in college, or otherwise avoid active service. That is not to say that there have not been those who served from a sense of honor, pride or duty in this period, but the story has certainly been colored by the political whirlwinds of these times. Veterans have held very mixed meanings in America for a number of different people over the past few decades because of all the politics surrounding these struggles. Only since the last Gulf War and especially since 9/11, has patriotism seen a resurgence and veterans really found a wider sense of gratitude from more of the population of our country.

Even so, Veteran's Day often flows by with very little notice for many of us. There are Veteran's Day sales. Some of us have the day off, but we don't do much to mark it. Others do not have a holiday, and the work place does not do anything to mark it. Politicians, the active military and a few scout troops tend to be the only reliable groups marking the day from year to year. That's pretty sad if you think about it, especially in a time of war.

So, it's actually pretty cool that the sons of Dr. Bendetson said, why couldn't we do something like this in the U.S. for Veteran's Day? When they returned home, they started working on their idea. It helped that

1) Mark Bendetson got a summer internship in Republican Senator Scott Brown's office.

2) His friend got a similar internship in Democrat Senator Barney Frank's office.

Both politicians liked the idea very much.

The Bendetson brothers wrote to the White House and received an encouraging letter.

Bob Dole, the former senator from Kansas and a genuine war hero, sent encouragement from his hospital bed at Walter Reed Army Medical Center.

Setti Warren, who besides being the mayor of Newton is a Navy reservist and Iraq war veteran, signed a proclamation saying his city would adopt the two-minute moment of silence.

Last week, after the balance of power shifted in the House of Representatives, the Bendetson brothers sent e-mails to the offices of the presumptive House speaker, John Boehner, and his chief whip, Eric Cantor. Their offices responded enthusiastically.

The Bendetsons are hoping a bill can be introduced with the next Congress.

(from the Boston Globe/Boston.com article by Kevin Cullen) I also thought that the media savvy with which this has been launched was pretty high. When I was searching for the (aging) story online, I stumbled on the fact that one of the two sons of Dr. Bendetson, Michael, is a blogger with Huffington Post. I might worry that I had the wrong Michael Bendetson, except that it includes a photo and the information that the young man has interned at the U.S. Senate and attends Tufts University. All of that together sews it up pretty tight. He just hasn't written up his idea for memorializing Veteran's Day, ... yet. It really is a very good idea. I hope the bill is introduced and sails through the Congress. I look forward to traffic stopping dead for five or ten minutes next Veteran's Day. I think our veterans deserve a bit more attention than we are giving them now.