About to move to Internet Protocol v. 6

Hiawatha Bray, writing in the Boston Globe Business section today, explains that the "Online Universe is About to Grow." He is talking about Internet Protocol version 6 (IPv6). Basically, we are about to run out of Internet addresses in the current format, known as Internet Protocol version 4 (IPv4). Back when the Internet we know was being designed, nobody imagined the commerce and public uses that would explode after graphical interfaces developed. The Internet was a pokey place that was a bit difficult to use and was originally strictly limited to the developers: the military and a handful of research universities. Then, the rules were relaxed and more academics gained access, but it still was difficult to use, without point and click and no graphics. So, you mostly had researchers and librarians. There was not a lot of demand for the IP addresses. But after the development of graphical user interfaces, the web developed into a marketplace, where there were lots of ads and sellers, games, movies, music and lots of social interaction. There was suddenly a lot of demand for Internet addresses. And countries around the world began to be connected to the Internet, too, so there was a lot more demand that way, as well.

So, here we are today. According to the Wikipedia article on IPv6,

As of February 3, 2011, the last batch of 5 address blocks were allocated to the Regional Internet Registries. Each of the address blocks represents approximately 16.7 million possible addresses, or over 80 million combined potential addresses. These addresses could well be fully consumed within three to six months at current rates of allocation.

There are, of course, unused addresses. Many of the original institutions involved in the development of the Internet were given millions of the old, IPv4 addresses. For instance, Bray reports that MIT owns 16.7 million IPv4 addresses.

Michail Bletsas, director of computing at the MIT Media Lab, estimates that the school uses only about 10 percent of them. “If it comes down to a point that the Internet stops working,’’ said Bletsas with a laugh, “we should give back those addresses.’’

I am told that a few of the IPv4 block recipients have already turned in large chunks, including Stanford.

June 8, 2011 is World IPv6 Day, when some leading Internet companies such as Google, Yahoo, and Facebook will activate IPv6 versions of their sites. It will function as a test to see if their networks are IPv6-ready. But basically, the plan is for corporations and government websites to be ready to move to the new version by January, 2012, according to John Curran of the American Registry for Internet Numbers (ARIN), in an article at NetworkWorld dated January 21, 2010, "Websites Must Support IPv6 by 2012 Warns Expert." ARIN has a down-loadable slide show about the depletion of IPv4 addresses and preparing for IPv6 adoption. They welcome people to download this and use it to help their organizations to prepare for the switchover.

The trick is that IPv4 and IPv6 are not compatible. They will have to run the two systems simultaneously for quite some time. And they will have to ensure that both systems are accessible to everybody. We need to be sure that our hardware, software and access providers are all compliant with both IPv4 and IPv6. In order to access both, you need to have a server that provides "tunnelling" carrying IPv6 messages encapsulated inside an IPv4 packet. We need to educate ourselves and be sure the appropriate staff at our institutions are also educated about IPv6. Unless we are the IT managers, librarians won't have to do much, except cheer on the sidelines.

IPv6 enables some very nice upgrades, eventually. There is so much more space, both in the packet address space, and for lots more addresses, that they can do lots of cool things. The Wikipedia article discusses how well IPv6 is able to integrate security into its design and work on portable devices, because these things were designed into it. Hiawatha Bray interviews Neil Gershenfeld, director of MIT's Center for Bits and Atoms

Gershenfeld foresees homes and office buildings where every light switch, thermostat, and electrical outlet has a unique IPv6 address and a link to the Internet. Building heating and cooling systems consume three-quarters of the energy used in America, he said, and a third of that power is wasted. With connected power devices, building owners or utility companies could save money by optimizing a building’s energy consumption.

“To do that, IPv6 is essential,’’ Gershenfeld said, “because otherwise we don’t have the address space.’’

The same embedded network technology could lead to cars that silently track each other to avoid collisions, or medicine bottles that e-mail their owners to remind them to take their pills. It will be years before such gadgets become commonplace, but thanks to IPv6, the Internet will finally have enough room.

Watson on Jeopardy

Even people without televisions, like me, finally found out about the man versus machine competition on Jeopardy, with IBM's Watson. From this article in the Boston Globe, I had the mistaken notion that Watson already has voice recognition, but reading the PC World report on IBM Watson Wins Jeopardy, I understand now that Watson actually operates on text. They hope to introduce voice recognition in the future. What was apparently the big breakthrough was that the computer can not only understand complex natural language questions, but calculates the likelihood of any of 3 possible answers being correct. If any of the answers rises above the 45% threshold, Watson chooses that, or the highest of the answers rising above that level. Watson also has a complex algorithm for calculating how to place its Jeopardy bets. The natural language was the biggest challenge, and it goes beyond the natural language search capabilities we see in Westlaw and Lexis search engines today. The developers say they were inspired by the television series Star Trek and the computers on the star ships where crew members had only to ask a question and receive an answer or get a clarifying question in return before getting an answer. (See Wikipedia article, and IBM links Pressroom and Watson pages).


I see from the Globe article that the two television shows, Jeopardy and the Nova show that made a documentary about Watson competing on the game show, are in the nature of marketing for IBM and its partner Nuance Communications, Inc.:

The Watson intelligent computer system from IBM Corp. was a triumph, and not just because it trounced two human champions in the TV game show “Jeopardy!’’ Watson also scored a massive marketing coup: It became a celebrity and household name, and set the stage for new commercial products based on the smart machine.

Both wins were by careful design. On the day after Watson’s last Jeopardy!’’ game, IBM and speech recognition software maker Nuance Communications Inc. in Burlington revealed that they had partnered to produce a medical version of the computer system for the health care industry. The idea is to use the Watson combination of speech recognition, superfast processing, and a massive database to help doctors and nurses, who will enhance their diagnoses of patients by talking to the machine.
Media analysts said that a marketing strategy built on Watson’s new celebrity, which was boosted by the appearances on “Jeopardy!’’ and in a PBS documentary, paved the way to sell the technology.

“By putting Watson on ‘Jeopardy!’, it humanizes the technology,’’ said Geoff Klapisch, a Boston University marketing professor. “It easily demonstrates what it can do, and goes beyond the traditional route of introducing a service to a niche market.’’
Robert Thompson, professor of television and popular culture at Syracuse University, called the Watson rollout “a brilliant marketing ploy both on the part of the manufacturer and the part of ‘Jeopardy!’ . . . This is better than a Super Bowl commercial.’’

(Johnny Diaz,Boston Globe). They won't be able to add voice recognition and roll out the commercial product until 18 – 24 months from now. This article emphasizes the amount of memory, while stressing how much the reports have varied: somewhere between 4 terabytes and 16 terabytes of memory. 10 server racks with 10 IBM Power 750 servers and 2 large refrigeration units (well, of course! -- I'll bet it gets hot) housed in their own room at the IBM Yorktown Heights campus. The project to develop the health care computer system will be in conjunction with Columbia University and the University of Maryland. At least one article called the proposed product a cybernetic medical assistant.

The Wikipedia article, under “Future uses,” comments that the general counsel of IBM, Robert C. Weber, has suggested that Watson may also be adaptable for legal research, and refers the reader to “Why Watson matters to lawyers,” an article written by Weber in the February 14, 2011 issue of the National Law Journal. In this article, Weber claims that Watson has 2 kinds of artificial intelligence. It understands questions asked of it, and it learns by experience. (I asked my computer scientist son if these two activities qualified as artificial intelligence, and he confirmed that they do. Bayesian logic (learning by experience), and natural language capability constitute forms of artificial intelligence.) IBM is calling the intelligence “Deep QA,” and Weber goes on,

...it's becoming clear that this technology will be useful in a couple of ways: for gathering facts and identifying ideas when building legal arguments. The technology might even come in handy, near real-time, in the courtroom. If a witness says something that doesn't seem credible, you can have an associate check it for accuracy on the spot.

Many types of organizations and professions could benefit from the increased insight that the Deep QA technology delivers. Think about the possibilities for medical diagnosis support, for better anticipating the energy needs of utilities or for protecting insurers, banks and governments from fraud. Deep QA won't ever replace attorneys; after all, the essence of good lawyering is mature and sound reasoning, and there's simply no way a machine can match the knowledge and ability to reason of a smart, well-educated and deeply experienced human being. But the technology can unquestionably extend our capabilities and help us perform better.

Well, I look forward to a computer system that can offer me a cup of Earl Grey, hot, as well as doing complex legal research.

The image decorating this blog post is from the Globe article, but credited to Jeopardy Productions via Associated Press. It shows, from left to right, Jeopardy host Alex Trebek, champion contestant Ken Jennings, the avatar that represents Watson, a globe encircled by 42 lines which change color depending on the computer's certainty about an answer, and champion contestant Brad Rutter. The 42 lines on the avatar for Watson are a joke on the supposed answer to Life from The Hitchhiker's Guide to the Universe by Douglas Adams.

Google Algorithms Modified to Sift out Dreck

Google is constantly tweaking its algorithms, hundreds of times a year, but most changes are so subtle that users cannot notice any changes. About 4 or 5 times a year, there will be a change that is large enough that users might notice. And this current change is actually being announced... That's because Google is running press conferences and blog posts about it. They wanted to improve Google's ability to rank the “best” websites. The Google engineers spent about a year trying to come up with a way to judge what makes a website high quality. Google defines quality as providing new, original content, as opposed to “content farms,” which produce lots of articles to draw readers to see ads, but may not actually have much useful or original content. I would be happy to have better results, with less of the website that you go to and find it's obviously set up just to trick you into visiting to notch up the “eyeball count.”

Google's Official Blog on February 24, 2011 posted “Finding more high-quality sites in search,” to announce the change.

This update is designed to reduce rankings for low-quality sites—sites which are low-value add for users, copy content from other websites or sites that are just not very useful. At the same time, it will provide better rankings for high-quality sites—sites with original content and information such as research, in-depth reports, thoughtful analysis and so on.

We can’t make a major improvement without affecting rankings for many sites. It has to be that some sites will go up and some will go down. Google depends on the high-quality content created by wonderful websites around the world, and we do have a responsibility to encourage a healthy web ecosystem. Therefore, it is important for high-quality sites to be rewarded, and that’s exactly what this change does.

It’s worth noting that this update does not rely on the feedback we’ve received from thePersonal Blocklist Chrome extension, which we launched last week. However, we did compare the Blocklist data we gathered with the sites identified by our algorithm, and we were very pleased that the preferences our users expressed by using the extension are well represented. If you take the top several dozen or so most-blocked domains from the Chrome extension, then this algorithmic change addresses 84% of them, which is strong independent confirmation of the user benefits.

The Personal Blocklist Chrome extension is a new browser extension for Chrome that allows you to select websites to block so they no longer show up in Google results. From the comments at the site, it does not yet work for Google Image. It's nice to know that this Google tweak takes care of 84% of the sites that users are using the blocker to get rid of.

The article that alerted me to all this, by Barbara Ortutey, an Associated Press writer, but that appeared in the Boston Globe today, “New Google algorithms look for quality,” specifically singles out websites by Demand Media, such as eHow.com. I have actually used a number of eHow articles for various topics, such as how to force narcissus bulbs, and found them to be useful and better than some other websites on the same topic. But I certainly could see that an article on “How to Tie Shoelaces” might be pushing the limits. Basic shoelace tying is not a topic that lends itself well to a website demo, even with a video. The audience tends to be young enough that they need more hand-holding than a website is going to give. Though maybe fancy shoelace arrangements might be a sell – have you seen the shoe laces that go across like a ladder? I'd like to know how to lace those. The point is, that I am not sure that they are banging on the right door with that example, which seems to be Ortutey's idea, not Google's. It does not show up on either Google's Official Blog nor is it named at the Personal Blocklist Chrome site in any comment.

It's important to note that the change is rolling out first in the U.S., and will roll out elsewhere later.

Fascinating Essay on the Future, History and Business, of Books

I will read (or listen) to anything by Paul Duguid. I stumbled on an excellent review essay by him the the Times (of London) Review of Books. Titled, "Do You Love Books? Jacques Bonnet does, (he can't stop buying them) -- but what's the future for the book business," the essay reviews three books. Duguid reviews Merchants of Culture by John B. Thompson, (I love the cover! It's a Tower of Babel made of books); Publishing as a Vocation: studies of an old occupation in a technological era by Irving Horowitz; and The Phantoms on the Bookshelves, by Jacques Bonnet (another interesting cover, with empty shelf space intriguingly "filled" with phantom books).

You can see I'm a sucker for good book covers! It's a shame that academic libraries remove the book jackets. I really like the plastic covers that allow public libraries to save and use the book jackets -- it makes the books much more attractive to readers than the plain buckram (or now, paper) bindings!

A brief apologia for the review:

From cards to chips, books come in many guises and the books under review help us to appreciate the range. John B. Thompson’s Merchants of Culture explores Anglo-American “trade publishing”, the canonical book business that offers advances in the millions and can be disappointed with sales in the tens and even hundreds of thousands. Irving Louis Horowitz's Publishing as a Vocation focuses on scholarly publishing, where citations can be as important as sales, and a thousand in either column lies beyond most dreams. Jacques Bonnet’s The Phantoms on the Bookshelves is the enjoyable confession of a “bibliomaniac”, a man who (like the bookseller in Arnold Bennett’s Riceyman Steps) shelves books in his bathroom.

Together the three embrace the bundle of forms and genres on which the term book confers a spurious uniformity. They help us understand that books (like many objects of love), though easy to idealize, can be complex, contradictory and obdurate objects.

But Duguid, being who he is, does not confine himself to merely reviewing the three books, though he certainly does that. He takes the reader on a ride through the history and philosophy of books as he, himself understands it. This is why it's always worth reading Mr. Duguid! He considers, as he hints in that quote above, how protean in form books have always been, and continue to be. Far East users were among the latest adopters of the book form, who were the among the earliest print-users, but gave up scrolls very late to move to the codex form that we now call books. But Duguid points out that even now, different cultures print books in different directions: left to right, then top-down is hardly the standard. Israeli and Arab printers go right to left, sentences and make what we consider the "back" of the book the front. Traditional Chinese and Japanese readers read top down, sentences not across.

Duguid goes on to discuss the disagreements over where to place tables of contents, library binding and storage. He mentions horizontal storage in stacks compared to the vertical stand-up books we usually see. He goes on with some excellent comments about the flow of text and access, and how that affects current technology. Codices won the struggle for dominance over scrolls largely, I think, because they are so good for random access. You can open a book (a codex) in the middle of a chapter, to a pinpoint cite. With a scroll, on the other hand, you had to unroll it patiently to get to the point you needed. An analogy might be CDs compared to tape recordings. Duguid, however, quotes Peter Stallybrass who Directs the History of the Book, a center at the University of Pennsylvania, as pointing out that the unrolling of scrolls really was perfectly suited to the structure of the novel, while the codex was better for accessing other types of writing.

Duguid then ties that observation to the current technological developments on GoogleBooks, which scroll, versus JStor and ProQuest's Early English Books Online which turn pages more like a codex. He considers the uncertainty of the new e-book reading devices, such as Kindle, Nook, iPad and apps such as iBooks, GoodReader, Stanza about whether they are scrolling or turning pages. We are in a transition stage. Most of the e-books being sold right now are novels, I think, so maybe they need to scroll. But they have ambitions to enter the textbook market, so perhaps they need to retain a paging and hypertext function.

I think my favorite part of the essay is where Duguid considers the folks behind GoogleBooks. Librarians have felt more than a little defensive about this project. We have felt as though it were something we should have done ourselves, or been more proactive about, I think, and thus, have been more hostile than maybe is rational. But we also have some very real concerns about the project (see earlier blog posts by searching this blog for GoogleBooks or Google Books). But Duguid does not bring any of those concerns or emotions to the table, and he sees the Google folks as romantics and perhaps a bit naive about books. I feel a good deal better about the project if I believe Mr. Duguid, I must say.

I. A. Richards called the book “a machine to think with”, yet it is curiously resistant to technological standardization. That point escapes many digitizing technologists, who are not perhaps the anti-book boors as sometimes portrayed. (Several on the Google Books blog confess to loving books.) Rather they may be the last romantics, idealizing the book as a simple carrier of information and so one that submits unproblematically to their computer algorithms. When I asked a senior Google figure, who whispered advance notice of the firm’s scanning project some years ago, which books the firm would choose, he insisted they would scan them all. About the same time, when a librarian at one of the first libraries to work with Google offered one of their engineers access to their metadata, the engineer clearly had little idea what bibliographic metadata was. Only a romantic, with faith in the simplicity of books compared to the sophistication of computers, would take on such a task in such a way. (No doubt without such naivety, the task would never have been undertaken at all.)

I am a bit surprised in the review, to find that the book by Horowitz, a publisher of a small scholarly press, Transaction Publishers, and a professor emeritus of sociology at Rutgers University, comes out with a manifesto of copyright absolutism. Horowitz

...fears equally large publishers and libraries. He denounces the former as monopolists, but turns more furiously on the latter. He is appalled at the idea of “open access” journals and fulminates that librarians have used the “fair use” provision of copyright law as “a battering ram for end running the major provisions protecting intellectual property”. He responds as a copyright absolutist. “Property is property”, he asserts and he has no time for “arbitrary and fictive distinctions between types of property”. The appeal is not entirely original – Mark Twain put the same point to Rudyard Kipling – but its success would entail a remarkable extension of authors’ and publishers’ power in the chain, an extension that most true monopolists (and Google, if the courts accept its proposed copyright settlement) would relish, and certainly one that needs robust justification.

Horowitz defends an interminable copyright by maintaining that scholarly publishing needs it and we need scholarly publishing, for its high standards are essential to a democratic society. Thompson also considers publishing’s contribution to the “public sphere”, but for him it is, refreshingly, an afterthought. For Horowitz, it is in the opening salvo (though rendered a little uncertain by later references to the “public square”). Publishing is the core of democracy, he argues, and its survival is under imminent threat. The implications of its collapse are “profound”. We ignore them “at our peril”, and so forth.

Well, you will enjoy reading the essay and Duguid's review of the three books, despite how angry you may get and Mr. Horowitz's sentiments. Fortunately (at least in my view), Duguid's opinion is that Horowitz's book fails to convince in many ways because of failings in its editing, writing, and design. Which is interesting in an editor's book. But cheer up, Duguid polishes off his essay with a wonderful bit of crystal ball gazing for the future of books and those who love them:

Though the form may change, the book chain itself is likely to continue to endure. For ultimately, it is a communication chain, and it is hard to believe our garrulous species will cease trying to communicate. We cannot communicate without a medium, and as new media develop, new authors will push at their edges to experiment in the sort of unplanned possibilities that make the best books. You cannot have art, as William Morris argued, without resistance in the material. Books have provided splendid resistance. But as long as there is a medium, there will always be resistance, and, with luck, art. So while we codex-bound bibliophiles may look with gloom on the future, new cultural forms worthy of the name “book” will develop in the digital world. And despite digital romantics, and though tweets and Facebook walls often do resemble Hallmark aphorisms, the new will surely be worthy of a love that stretches well beyond the greetings card.

ahhh

The image of the book cover is Merchants of Culture by John B. Thompson (from Amazon.com), the wonderful Tower of Babel made of individual books. And the image of a person inexplicably visiting with a camel is Paul Duguid's faculty photo from Berkeley's website http://people.ischool.berkeley.edu/~duguid/

Massachusetts Governor Deval Patrick Signs Executive Order Barring Discrimination Based on Sexual Identity and Expression

The Boston Globe reported a few days ago that Massachusetts Governor Deval Patrick signed two executive orders which prohibit discrimination based on sexual identity or sexual expression in state employment. Link here for(Executive Order 526, barring third party vendors from such actions and Executive Order 527, which deals with state government itself. The Globe article briefly alludes to a piece of state legislation related to this which is currently in play. If you go to NECN (New England News Channel), you can see a brief report on the issue and see and hear Deval speaking on the matter. The short article that accompanies the video refers more explicitly to Governor Patrick's hope that his executive orders will assist in getting the bill passed, quoting him:

"It was brought to my attention by some of the advocates that there was a gap, and the gap was in transgender people, and it was an easy add, and I am happy to do it," he said. "There is a bill that has been moving through the legislature for a couple of years and I support that bill and I hope we'll get that bill out of the legislature and onto my desk this session."

And the advocacy organization Massachusetts Transgender Political Coalition has an excellent website that covers it here. From the "Legislation" portion of the website, it appears that the bill(s) the Governor refers to are H1728 and S1687. You can see more about these bills at the excellent website, including full text of H1728, (in its 2009-2010 version), a summary of the House bill, "the truth about" the House and Senate bills, talking points, a lot of personal stories, information on other states which already have laws on gender-identity hate crimes, and more.

Fantasy Scotus!

Tip of the OOTJ hat to Suffolk 2-L law student and our student newspaper, Dicta for alerting me to Fantasy SCOTUS. Apparently, I am way behind the pack on this, which was formed in 2009, but it looks like a delight. Especially for those who really, really follow the Supremes anyway, this should be their thing! Pass it along to the con law scholars on your faculty (and students) and start cheering for them to win! The motto is "Play as the 10th Justice."

There's no money involved, but the winner of the golden gavel gets major bragging rights. We are nearing the end of this season, so if they aren't already playing, I suppose it's a good time to start watching and learn the rules. The idea is basically to try to predict the outcome of the various cases before the Court. Apparently 70% is the best the top players manage with this fractured Court. There is a whole list of badges you can win, with entertaining names. Apparently, (and I suppose not surprisingly), people get very competitive:

Due Process

We realize that the players in this league are lawyers and law students, so let us explain the due process rights of users. If users disagree with the scoring of a case, an appeal must be filed at our contact page within 24 hours of the scoring update (which may be some period of time after the Supreme Court releases the opinion). We will reconsider all of our scoring opinions using a “clearly erroneous” standard of review. Additionally, if you have any objections to these rules, all protests must be filed at our contact page by October 15, 2010. Challenges to the rules will be reviewed with an “abuse of discretion” standard, so plead your cases well. All determinations are final.

Any changes made to questions, scoring, or anything else will be posted to the blog. This will serve as constructive notice.

Last season we had several incidents involving cheating (see here and here). While we have taken numerous steps this season to prevent any and all cheating, if we discover a user is cheating, he or she will be banished and shunned (No Smirnoff Ice necessary) from FantasySCOTUS. Just play fair.

Obama Administration Will No Longer Defend DOMA

The Boston Globe reported this morning that President Obama announced that his administration would no longer defend the Defense of Marriage Act (DOMA) against suits challenging its constitutionality. The administration will continue to enforce the law, but Attorney General Eric Holder, Jr. has informed Congress of his opinion that DOMA is unconstitutional, and that he will exert his discretion to no longer defend the law. If the Justice Department does not challenge such decisions as Pedersen et al. v. Office of Personnel Management et al. (Dist. of Conn.)which addresses the rights of federal employees in Connecticut, Vermont, and New Hampshire, and follows on the heels of the Massachusetts Federal District Court ruling last summer in Gill v. O.P.M. finding DOMA Section 3 unconstitutional, it is not clear what the effect will be on such cases. (see here for a complete list of the legal documents in Gill and Pederson at GLAD's website.) Here is the GLAD statement on the likely effect of this decision:

The Department of Justice announced today that it will not defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) in two challenges pending in the District Courts within the jurisdiction of the Second Circuit Court of Appeals, including GLAD’s case Pedersen v. O.P.M. in District Court in Connecticut.

It is extraordinarily significant that the Dept. of Justice recognizes what we have been saying for years in our litigation. Laws that distinguish between people based on sexual orientation are more likely to reflect prejudice against gay people than good public policy. Discrimination based on sexual orientation needs to be justified by the government with exceptionally good reasons rather than being assumed to be permissible. The Attorney General concedes that DOMA fails this test.

This is a welcome acknowledgment but is not the end of GLAD’s DOMA litigation. Ultimately, the courts will decide the standard of review. Moreover, the Attorney General notified Congress that it will not defend the Second Circuit cases and either chamber may step in and appoint counsel to defend DOMA. We are prepared to address head on whatever arguments Congress may make, and bring to an end the harms DOMA imposes on our plaintiff couples and surviving spouses in the litigation and others like them. More information on the litigation and plaintiffs is available at http://www.glad.org/doma

At this time, it is unclear what effect these developments will have in the government’s pending appeal in the First Circuit in Boston of rulings striking down DOMA in cases brought by GLAD and the Massachusetts Attorney General.

The administration will continue to enforce DOMA, and it will remain in effect until the law is either repealed by Congress or finally declared unconstitutional in court.

Read the Attorney General’s letter to Congress

Read the Attorney General’s Statement

Whatever else you may feel about the timing and the morality of the decision, the politics is entertaining. President Obama has dumped a very hot potato into the Republican Congress' lap right as they have their hands full with job creation and whaling on the Democrats about budget cutting. This set of quotes and bit of analysis from the end of the Globe article finish things up very nicely:

Boehner’s office yesterday did not say if Republicans plan to defend the law. But his spokesman, Michael Steel, accused Obama of poor timing.

“While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,’’ Steel said.

But the nature of Obama’s move places the burden on opponents of same-sex marriage in Congress to take action if they want to keep fighting in courts. And that could be a risky distraction for the GOP which has pledged deficit-fighting and budget issues as its top priorities.

“For the Republican leadership, that is the last thing they want to deal with right now,’’ said Julian Zelizer, a professor of history and public affairs at Princeton University. “I think a lot of Republicans feel that President Obama is quite vulnerable, and they see a real opportunity to do well in 2012, so the last thing you want is to inject an issue that creates dissention and creates divisions. They want to be focused on the deficit, a lot of Republicans — not on this.’’

For Obama, political analysts said, the nod to his liberal base is important, because he has been moving toward the political center following the Republicans’ winning control of the House last November.

“It’s almost, he takes a step to the center,’’ said Jennifer Duffy, senior analyst at the nonpartisan Cook Political Report, “then he yells over his shoulder, ‘I’m still here; we’re going to move when we have to move but on issues you care about I’ll make a difference when I can.’ ’’

Why Vendor Relations are a Sore Topic with Librarians!

Well, tip of the OOTJ hat to CRIV Chair Rob Myers at Case Western Reserve School of Law (CRIV, for those who might not know, stands for the American Association of Law Libraries'(AALL's) Committee on Relation with Information Vendors). He sent this following note, with more details, to a number of librarian listservs:

A fellow law librarian just reported that West is sending our sets of the the state court rules to subscribers of state statutes (and charging for them), regardless of whether they already subscribe to the set as a separate subscription. This appears to be a violation of the AALL Guide to Fair Business Practices for Legal Publishers section 3.1(a) which states:

Where the content of a new product or supplement that is published as part of an existing subscription or standing order bears no direct relationship to the content of the standing order or represents a substantial expansion of the topic or purpose of the original subscription or product, the publisher should seek customer consent prior to shipment.

3.1(a) PRACTICE TO AVOID: Without prior customer consent, the publisher of a subscription service ships to subscribers of the service a pamphlet that includes content that has not previously been supplied as part of the subscription, where that content is not specific or closely related to the topic of the service, and charges customers for the pamphlet.

My library cancelled most of the state court rules that were standalone subscriptions years ago. We certainly do not want to receive them (and have to pay for them) as part of our state statute subscriptions now.

The law librarian that reported this told me that her West rep encouraged her to write an angry letter which she gladly did.

I will contact West on behalf of the membership but I recommend that if you do not want the state rules of court billed as part of your state statute subscription, you contact your local West representative or West Customer Service. If enough calls come in, West will hopefully discontinue this practice.

With this as a backdrop, consider a number of recent developments:

1. AALL announced that it would host a Vendor Relations Colloquium from February 28 to March 1, 2011. There will be a limited number of invited participants. There has been a firestorm of controversy after the colloquium was announced. AALL members wondered why the meeting would not be held at a regular AALL meeting, why the limited number of participants. And why the meeting seemed to be held in such a way that appeared to reduce the transparency. There is a huge amount of distrust right now between many of the members of AALL and their Executive Board, which is a very sad state of affairs, but which is illustrated by the reaction to the announcement of this colloquium.

Finally, the uproar is dying down a bit after Kris Niedringhaus and Rich Leiter, two widely respected member who are among the small number of members selected to participate responded to the questions and complaints. They explained as clearly as they could how selection of participants took place. Some months ago, there was a widely place call for those interested in vendor relations to enter a statement of interest. They had to send an e-mail that not only stated their interest but included the answer to 2 questions:
a) What would you like to tell legal publishers about your institutions?
b) What would you like to ask legal publishers about their institutions?
*you can see these 2 questions on the Agenda for the Colloquium at
http://www.aallnet.org/vendorrelations/VendorColloquiumAgenda.pdf

The answer to why the colloquium was not held during a regular AALL meeting seemed to be that vendors and regular members alike had so much else on their minds at the annual meeting, that they would not be able to focus on a vendor relations event during the annual meeting period or shortly after/before it.

In response to complaints about lack of transparency, Kris Niedringhaus will ask, but encourages all who are interested to also petition for a webcast of the proceedings. But even if there is no live webcast, there is hope for a good amount of transparency. There are several bloggers who are attending who can be expected to blog and Twitter a good bit during the event: Mark Estes, Greg Lambert, John Mayer and Rich Leiter all blog and Twitter, and we can hope will be actively reporting live during the Colloquium.

2. AALL Spectrum just published a Point CounterPoint in the February issue:

Ending our Conflicts of Interest to Protect Consumers of Legal Publication[s], by Michael Ginsborg, raises the problem of whether AALL has compromised its ability to stand up for consumer interests by becoming too dependent upon publisher/vendor donations. In a powerful conclusion, Ginsborg states:

To become stronger consumer advocates, we must restore consumer advocacy to our ethics, end our conflicts of interest, invite attorneys to join us as associate members, and, if necessary, amend AALL and chapter bylaws. We must be prepared to forgo all donations from specific
publishers as we remake national and local organizations worthy of alternative donations from attorneys. Otherwise, we will continue to compromise ourselves, our constituents, our employers, and an important public interest.

Ginsborg supports his contentions with data. There are actually TWO counterpoints, provided by two former presidents of AALL:

AALL Works to Support Law Librarians' Interests, by Judith Meadows and Kay Moller Todd.

Mr. Ginsborg’s primary assertion is that the level of donations made to AALL from information vendors rises to a level sufficient to compromise individual members’ impartiality on the issues. We counter with a discussion of the Association’s mission, policies, and history of lobbying, all of which suggest strongly to the contrary.

AALL engages in a wide range of activities, including the development of educational programming; publishing; supporting the exchange of information among members and those interested in law librarianship; and awarding scholarships, awards, and grants. Our program is based on the priorities articulated by the membership prior to the development of each Strategic Plan. Support for these activities comes from diverse revenue sources: dues; investment income; revenue from conferences, including exhibitor fees; advertising; and donations. Donations may be monetary or in-kind. Monetary donations support awards, scholarships, grants, research, and social activities at live events. In-kind donations include the AALL Directory and tote bags for Annual Meeting attendees. Donations thus may benefit an individual grant recipient, members who attend a conference, or all members who receive the directory. In 2009, the most recent year that data are available, donations amounted to 11 percent of all revenue—the total from publishers is lower, as member donations are grouped in the total. (snip)

We strongly assert that our individual members, when making purchasing decisions, are unaffected by donations provided to the national Association for events and services. The reality is that like any entity in the world marketplace, legal publishers risk the loss of sales if products are overpriced for the consumer or do not provide critical information. It is law librarians’ professional responsibility to decide if the institutions they work for will pay or not pay for the value of a title or product. AALL is firmly committed to promoting the free access to primary law. Pricing policies and purchasing decisions should not be confused with ethics.

We recognize that we have a fundamental difference of opinion from Mr. Ginsborg. We relate to legal publishers as business partners with whom we work to have the best
products available for our customers. Mr. Ginsborg sees publishers as the opposition with whom AALL members have nothing in common. We believe that is fallacious but recognize that this is a critical issue for AALL members and endorse a continuing dialogue. We hope that our comments will inform the discussion.

Sadly for Todd and Meadows, Ginsborg's article follows close on the heels of Brian Carson's powerful blog post, Time to Reinstate FTC Guidelines for the Legal Publishing Industry, which was inspired by another recent case of West Publishing overreaching: Rudovsky v. West Publishing Corp.

In addition, there is a remarkable bit of research which shows that recipients of even trivial gifts and services are, indeed, affected by them, feeling themselves indebted to the donors. In fact, the value of the gift has no effect on the strength of the feeling it engenders: Consumer Responses to Gift Receipt on Business to Consumer Contexts, H. Onur Bodur and Bianca Grohmann, Psychology and Marketing vol. 22(5) 441-456, (May, 2005).

Are Lawyers Sponges?

Andy Kessler writes in today's Wall Street Journal that lawyers are "sponges," members of a profession that "earned their jobs by passing a test meant to limit supply," i.e., the bar exam. Other "sponges" are "cosmetologists, real estate brokers, [and] doctors," all of whom "need government certification. All this does is legally bar others from doing the same job, so existing workers can charge more and sponge off the rest of us." Ouch. Kessler's analysis appears in his article, "Is Your Job an Endangered Species?", and if he's correct, today's anemic job market for lawyers is not an aberration, but the wave of the future.

Kessler is a former hedge-fund manager and the author of a new book, Eat People and Other Unapologetic Rules for Game-Changing Entrepreneurs. He looks at the terrible employment situation--"26,000,000 Americans are unemployed or underemployed"--and says that technology is to blame. It is "eating jobs." Kessler points to toll takers, bank tellers, phone operators, travel agents, postal workers, stock brokers, and stock traders and says these jobs are "nearly extinct." They have been "displaced by technology and the Web. Librarians can't find 36,000 results in 0.14 seconds, as Google can." Never mind whether anyone really needs or wants us to find 36,000 results!

What other jobs will disappear in the near future? Kessler divides the workforce into two types of workers in order to answer this question.

Forget blue-collar and white-collar. There are two types of workers in our economy: creators and servers. Creators are the ones driving productivity--writing code, designing chips, creating drugs, running search engines. Servers, on the other hand, service these creators (and other servers) by building homes, providing food, offering legal advice, and working at the Department of Motor Vehicles. Many servers will be replaced by machines, by computers and by changes in how business operates. ...

But even the label "servers" is too vague. So I've broken down the service economy further, as a guide to figure out the next set of unproductive jobs that will disappear.

Within the server category, Kessler lists the following subtypes: "sloppers" (people who move things, e.g., government workers who push paper or information around); "sponges" (see above); "supersloppers" (people who mark up prices based on gimmicks, not true market value); "slimers" who work in finance--some will always be needed, but nowhere near the number employed today; and "thieves" who have a government franchise to make money, e.g., phone and cable companies and regulatory inspectors.

Kessler believes that eDiscovery is going to decimate the legal profession because it "scans documents and looks for important keywords and phrases, displacing lawyers and paralegals ... Lawyers, understandably, hate eDiscovery." Far fewer lawyers will be needed, which will eventually result in dwindling enrollment in law school. Kessler is probably correct that the discovery process can be facilitated through the use of technology, and certainly legal research can be as well, but I do not believe that legal reasoning and writing lend themselves particularly well to a technology "fix." I agree, however, with his conclusion that fewer attorneys will be needed in the future.

Oh, the dangers of the traveling deans!

My, oh, my! ABA Journal online reports that the dean of Texas Wesleyan law school Frederic White has come out with what purports to be a work of fiction. It is based on his "firsthand observations of needy students, eccentric faculty members, power-hungry alums, manipulative trustees and cheating spouses.” The book is titled, Tenure Blues: A Soap Opera, and was self-published.

The ABA Journal reports that White's colleagues at Texas Wesleyan are not stirred up or offended by the book, which I thought was a little curious. Until I noticed that White has only been dean there since 2008. Before that, he was dean of Golden Gate University School of Law. Their website notes, "In 2004, Frederic White was appointed dean; he was the first African-American to be named dean of an ABA-approved law school in California." So, if he has been at Texas since 2008, he must have stayed at GGU until then. Before Golden Gate, Mr. White was a professor at Cleveland-Marshall College of Law, and a municipal bond lawyer at Squire, Sanders & Dempsey.

I don't know, but if I worked at any one of those places, I think I might buy that book and look through it to see if I recognized anybody. I don't think I'd like to consider having my institution's dirty laundry hauled off by a former dean or professor or lawyer colleague and then published a few years down the road. I wonder if you can create some kind of form to sign promising not to do that?

Title 51 US Code and beyond: Unintended Consequences

Tip of the OOTJ hat to Grace Mills at Hamline, who alerted me, and to Brian Huddleston of Loyola, New Orleans, who alerted the rest of the world that the U.S. Code now has 51 Titles. In December President Obama signed Pub. L. 111-314, which took sections from titles 15, 42 and 49 to create a new title, "National and Commercial Space Programs."  So far, it is only accessible on Lexis. Westlaw does not have it yet. I have not found it at GPO Access' FedSys service. You cannot yet get the Public Law itself at FedSys, or at Thomas.loc.gov. At Thomas, I link you to the page where you can follow the original bill, HR 3237, and, eventually, it will include a link to the Public Law. You can also access a House committee report at this link, HR 111-325.

But now, we are informed that the floodgates have opened! Rick McKinney at the Federal Reserve Board reports:

Title 41 USC  on Public Contracts was also just "revised, codified, and enacted" by Public Law 111-350 on January 4, 2011. In addition, Titles 52 thru 55 are in the works to be codified as well. See
http://uscode.house.gov/codification/legislation.shtml and
http://www.llsdc.org/attachments/wysiwyg/544/usc-pos-law-titles.pdf.

If you look at the Codification website above, it's really fascinating. The nice thing is that it provides the names of the new titles of the Code, as well as alerting us to a reorganization of Title 35, Patents, Trademarks and other Intellectual Property and Title 41, Public Contracts. You can click on the links at this site, and apparently be taken to the full text as it exists now for each Title. But don't try Title 51!! It's agonizingly slow, apparently because it's the only title with any real content. That's kind of too bad, because it's the only non-commercial access to Title 51 right now. It's not available in print form anywhere yet, and not on the government websites yet. I suppose the public will have to wait to see the U.S. Code on space programs.

I understand why they are adding new titles. A few years ago, I attended a fascinating program at AALL that featured a speaker from the Office of Law Revision Counsel, the same guys who codify the U.S. Code. The speaker urged the listeners to join him in lobbying Congress for new Titles in the U.S. Code because certain titles had become so overcrowded that citations were unwieldy and the logic of the structure was destroyed.

However, the unintended consequence of adding new titles to the Code is that many libraries will be making deaccession decisions based on this new development. The cost will not be trivial. Libraries will be expected not only to purchase new volumes with the additional titles, but every re-organized title will require new volumes to be purchased as well. I don't know how many libraries still retain print copies of the annotated U.S. Code, much less how many still have it in both U.S. Code Annotated and U.S. Code Service. But of those libraries, many will agonize (as will mine) over whether they will retain a copy of both services, or even one, in print, in the face of this new expense.

This is an interesting development, coming right on the heels of an interesting discussion sparked by a question asked by Simon Canick at William Mitchell – Why not cancel print statutes? There were only a few who spoke up in favor of retaining print statutes in a large number of jurisdictions. Most libraries said they only retained a small number of print statutes in order to teach their Legal Research classes, and for their own state, a few adjacent states, and a few of the largest jurisdictions. And many librarians said they had checked back with users and, after making certain that folks knew they had access to online substitutes, they had no complaints. The voices that held firm for print made a few points worth noting, though:

* Bluebook rules require referring to print versions; the interlibrary loan requests from faculty and journal students sometimes seem overwhelming. There have been a lot of difficulties in obtaining the correct version of a statute book through interlibrary loan;

* Statutory research online can be more difficult for novice researchers than in print;

* If school mission includes public access, print may be an important aid, (though some directors offered online alternatives, that they said were cost effective. Lexis State Capital Universe was mentioned;)

* Preferences of faculty, and legal research and writing instructors;

* Authentication issues with online versions of statutes;

* The only online annotated versions of statutes are expensive proprietary databases. There are no free annotated statutes available;

But the most interesting comment, to me, came from Greg Laughlin, at Samford University, who commented

As a philosophical matter, I view this as a trade off of two goods: having all American primary law in print versus saving money for our students (whose tuition pays the lion's share for our collection).  Given the huge debt loads with which many students leave law school and the growing chorus of complaints about the rising cost of legal education (which I believe are justified), I concluded that the greater good is to save our students money when we can provide more than sufficient access online less expensively than in print.  I certainly understand that different law libraries have different needs, responsibilities and priorities and don't believe there is one right answer here that applies to all law libraries.  The question for me is whether I can meet my patrons' needs adequately without maintaining everything in print.  I believe we can based on our experience.

Innovation at Brooklyn Law School

One of my colleagues forwarded me this feature from the Huffington Post. It discusses an innovative clinic at Brooklyn Law School that "represents Internet, new media, communications and other tech entrepreneurs and innovators on both business and policy advocacy." This description comes from the homepage of the Brooklyn Law Incubator & Policy Clinic, better known as BLIP. The Huffington Post puts it even more succinctly: the goal of BLIP is to train the "lawyer 2.0 for the digital era." The clinic is the brainchild of Professor Jonathan Askin, who is the son of a former professor of mine at Rutgers Law School - Newark. Professor Frank Askin and his wife, Marilyn, also an attorney, recently gave a large gift to Rutgers for the purpose of creating an endowment to support the clinical programs. A nice photograph of the three Askins appears in the press release announcing the gift.

BLIP is large by the standards of clinical legal education--it has twenty students who are, according to the Huffington Post, "deployed into real legal work for clients facing tricky issues ranging from drafting privacy policy, to incorporation, to wider policy related questions. And as the startups they work grow into full-fledged companies, other benefits present themselves as well." Some of the pro bono clients anticipate eventual hiring of in-house counsel from the students with whom they worked at BLIP. This clinic is a great idea for law schools serious about graduating practice-ready attorneys ready to work in the twenty-first century.

Constitution Worship

The Constitution of the United States has been much in the news of late. Members of the Tea Party movement express reverence for the original language and meaning of the document, while others look upon the Constitution as a document intended by the Founders to adapt to meet the changing times. Jill Lepore's article in the January 17 issue of The New Yorker, "The Commandments: The Constitution and Its Worshippers," comes down on the side of those who believe that the Constitution has been and must be subject to interpretation by the courts and by the citizenry:

A great deal of what many Americans hold dear is nowhere written on those four pages of parchment, or in any of the amendments. What has made the Constitution durable is the same as what makes it demanding: the fact that so much was left out. Felix Frankfurther once wrote that the Constitution "is most significantly not a document but a stream of history." The difference between forty-four hundred words and a stream of history goes a long way toward accounting for the panics, every few decades or so, that the Constitution is in crisis, and that America must return to constitutional principles through constitutional education. The two sides in this debate are always charging each other with not knowing the Constitution, but they are talking about different kinds of knowledge.

"We'll keep clinging to our Constitution, our guns, and our religions," [Sarah] Palin said last spring, "and you can keep the change." Behind the word "change" is the word "evolution." In 1913, Woodrow Wilson insisted, "All that progressives ask or desire is permission--in an era when 'development,' 'evolution,' is the scientific word--to interpret the Constitution according to the Darwinian principle; all they ask is a recognition of the fact that a nation is a living thing." Conservatives called for a rejection of this nonsense about the "living Constitution."

Lepore is a Professor of American History at Harvard, and she treats her readers to a brief but compelling history of the physical Constitution starting with its signing in Philadelpha in 1787. Three delegates would not sign, but the rest did and their signatures appear "at the bottom of the fourth page." The original document was written on parchment, and then the text was "made public, printed in newspapers and broadsheets, often with 'We the People' set off in extra-large type." The original was carried to New York to be presented to Congress, which was meeting at City Hall. Congress forwarded the Constitution to the states for ratification. What happened to the document?

The original Constitution was simply filed away and, later, shuffled from one place to another. When City Hall underwent renovations, the Constitution was transferred to the Department of State. The following year, it moved with Congress to Philadelphia and, in 1800, to Washington, where it was stored at the Treasury Department until it was shifted to the War Office. In 1814, three clerks stuffed it into a linen sack and carried it to a gristmill in Virginia, which was fortunate, because the British burned Washington down. In the eighteen-twenties, when someone asked James Madison where it was, he had no idea.

In 1875, the Constitution found a home in a tin box in the bottom of a closet in a new building that housed the Departments of State, War, and Navy. In 1894, it was sealed between glass plates and locked in a safe in the basement. In 1921, Herbert Putnam, a librarian, drove it across town in his Model T. In 1924, it was put on display in the Library of Congress, for the first time ever. ... It spent the Second World War at Fort Knox. In 1952, it was driven in an armored tank under military guard to the National Archives, where it remains, in a shrine in the rotunda, alongside the Declaration of Independence and the Bill of Rights.

It is worth noting that Herbert Putnam was more than just "a librarian"; he was the first individual with professional library experience to serve as Librarian of Congress; he established an interlibrary loan system; and he introduced the Library of Congress classification system, which libraries around the world use to this day. He also served two terms as president of the American Library Association. Putnam was a graduate of Columbia Law School, and what a thrill it must have been for him to have the Constitution in his keeping, if only for a short period of time!

Lepore's article is a fascinating read. I particularly enjoyed the section on originalism which amounts to about half of the article.