Gay Man's Memorial for Dead Veteran Husband at Naval Academy as "As Don't Ask Don't Tell" Ends

The Chicago Sun-Times had a short article about the gay widower of a decorated navy veteran who approached the Naval Academy about setting his husband's ashes in the columbarium there. One of his husband's wishes had been to be cremated and have his ashes interred at his old school, where he had wonderful memories. So Mark Ketterson contacted the U.S. Naval Academy to inquire about the possibility, and the memorial coordinator asked his relationship to the deceased.

“They were always polite, but there was this moment of hesitation,” Ketterson recalled. “They said they’re going to need something in writing from a blood relative. They asked, ‘Are you listed on the death certificate?’ ‘Do you have a marriage license?’ ”

(The article is quoting Ketterson.) Fortunately, Ketterson was listed on the death certificate, and the couple had been married in Iowa when same-sex marriage became legal in that state. When the memorial coordinator received the death certificate and the marriage license, Ketterson said, "I was respected. From that moment on, I was next of kin. They were amazing.”

Ketterson's husband, John Fliszar, received the same standard memorial service and interment that all alumni of the academy receive. Ketterson was able to compose a memorial and publish it in the alumni magazine as well, which is also a standard option for families. The article says the notice created a bit of a stir, since it was clear that the couple was a same-sex union. But Ketterson has heard from a number of officers, including the organization USNA-Out, the organization for gay graduates of the naval academy. Again, the article quotes Ketterson:

“It’s been some months. I’m still doing mourning. As a gay man who grew up in a military family, getting communications from USNA, having heard from alumni who say, ‘You will always be one of us’ — that’s powerful, and healing.

“One of the e-mails said that I was a ‘trailblazer,’ I didn’t blaze any trail. I buried my husband.”

The article makes it clear, however, that the key to the way the Academy was able to deal with Mr. Ketterson was the marriage license. The author, Neil Steinberg, could not find a spokesperson to speak for the entire Navy on the topic. But one of the points he makes in the article is that without that marriage license to send to the memorial coordinator, this pleasant story does not seem to have been on the books. According to Mr. Ketterson's telling, it was a turning point when he was able to produce both the death certificate with his name listed and, especially, the marriage license. The article notes that "such practical concerns" were not on their minds when Ketterson and Fliszar married after dating for six years. Ketterson says he married "because I loved him and he asked me." But that act made so much difference later!

And the fact that they had the ability to marry made all the difference!

Happy Holidays

I enjoyed this parody of Hallelujah Chorus from Handel's Messiah, and I hope readers of the OOTJ blog will too. It is not the traditional version, but it is certainly topical.

Happy Holidays!

Judge Throws Book at the Brooklyn Public Library

It's not every day that a judge paraphrases Mel Brooks in an opinion. But in Rodriguez v. Brooklyn Public Library, Brooklyn Supreme Court Justice Arthur Schack did just that. The decision, handed down on November 29, rejected the Library's claim that it was a New York City agency and entitled to the protections that such agencies enjoy. The suit grew out of a traffic accident in which David Rodriguez was injured; he was a passenger in a car hit by a Library van. Rodriguez's injuries required surgery, and he sued the Library about ten months after the accident. The Library sought to dismiss the lawsuit, claiming that as a municipal corporation it had to receive notice of the lawsuit within ninety days of the accident.

Justice Schack was scathing in his refusal to recognize the Library as a municipal corporation. He seems to have looked at material beyond what was included in the briefs, and cited the following factors: only 62% of the Library's funding comes from the city; it has private insurance; its employees aren't municipal workers. Furthermore, the Library is running a good-sized deficit (over $1,000,000) despite employing a professional fund raiser "who receives more in compensation than every New York State judge, including the Chief Judge." Paraphrasing Mel Brooks's famous line from History of the World: Part I, "It's good to be the king!", Justice Schack wrote, "It's good to be operating a deficit running non-profit, receiving 62% of its revenue from the financially challenged City of New York!" The Daily News's article about the lawsuit characterized the opinion as a "written tongue lashing," and the Brooklyn Daily Eagle's account highlighted Justice Schack's scrutiny of the Library's tax return from 2010, and praised his "witty" decision that included a history of the Library.

The photo accompanying this blog post shows the impressive main doors at the central branch of the Brooklyn Public Library at Grand Army Plaza.

Put the Big Rocks in First

My law school is arguing right now about changing from a 14 week semester to a 13 week one. That sounds like a tempest in a teapot. But it will bring a lot of collateral changes with it. Some will be very good, and some will be very challenging. One of the challenging items will be the need for all of us who teach to think hard about what we cover in our syllabus.

When you have been teaching a course that has 14 leisurely weeks to cover a subject, and then are asked to shave one week off that syllabus, you really should consider whether you are going to cover all the same subjects in all the same detail. It’s going to be a hard question, and I know some people are just going to ignore it and cram the same package into the smaller box.

I had a course design workshop last summer that was very enlightening. It was fun, as well. The first thing that really caught my attention was the image of a video that our moderator used (this is a different version, but equally illustrative)

I have read the parable before. You choose the “big rocks” and put them in the bucket first, and then fit the little pebbles or sand around them and it all fits. In most of our lives, we have all the little pebbles (which stand for the little niggling tasks and distractions in our lives) that fill up our days. We need to choose the big rocks – the important priorities that we really want to devote ourselves to, and prioritize those, and then fit the pebbles around those.

In this course design workshop, the same analogy means a slightly different thing. Our courses have big rocks and little pebbles, too. We have a few big ideas that are really important for our students to remember, we hope, in 5 years. Think about a few of your law or library classes, and try to remember one or two of the big ideas from them.... Can you come up with one? If so, that was a successful professor, who managed to communicate one of the core concepts to you – a “big rock” thought! This course design workshop urged us to really focus and pare down our syllabus until we had a handful of these, and then build the course around those.

It took a good deal of courage and a bit of interior weeping to let go of so much of my long-term syllabus. And it takes a GREAT deal of courage to create a syllabus that is really for my students and not at all for my colleagues. The first (MANY) times I created a syllabus for my courses, I really wrote them with the idea in the back of my mind: “What if one of my colleagues sees this? What will he or she think? What if I don't cover Justinian's Code? Will they think I'm ignorant?”

Instead, we should be creating syllabi focused entirely on student needs, and the shape of our semester. That really does call for courage and a lot of rethinking. What is it I really need a student to remember 5 or 10 years from now about this class? What will still be useful for them to know? In legal research, that’s a particularly tricky question, as so many of the publications and databases change more and more quickly. I have come to the conclusion that the most useful thing I can teach is how to evaluate materials and teach themselves. I still teach resources, but mostly in the context of how to evaluate them and how to learn about an unfamiliar resource.

Will you all think I'm ignorant? Gee... I'm trying not to care.

Image decorating this post is courtesy of http://radiantdust.blogspot.com/2011/01/first-things-first.html

Curator of Provenance

Wow! Librarians understand the "thrill of the chase," and the subtle skills needed to follow cold trails and murky indications through to the end. I think OOTJ readers will be as fascinated as I was to find out about a new job at Boston's Museum of Fine Arts, Curator of Provenance. The Boston Globe reports today in an Ideas story by Geoff Edgers, "A detective's work at the MFA" about Victoria Reed, the MFA's new curator of provenance. Apparently it is still a new position and a rare one among museums world-wide. Her job is to trace the origin, or provenance, of works of art, when there is question about it. Edgers illustrates the need very nicely with a story about a medallion the museum was considering purchasing, that turned out to have been looted from a museum in Germany during the Nazi era. Due to Ms. Reed's careful detective work, the MFA dropped its purchase plans and the dealer has promised to return the looted medallion to the original holding museum.

This concern for tracing provenance is actually a new one in the art museum world. I recently read a fascinating article in The Smithsonian magazine, by Ralph Frammolino, "The Goddess Goes Home." The article tells about a remarkable statue that came on the ancient art market in the 1980's, of unknown provenance. A seven-and-half foot tall young woman striding, apparently through a wind, dressed in ancient Greek woman's garb, the statue was broken in pieces. She also was remarkable in that the head and arms were of smooth marble while the body is rough, a different stone. The lack of provenance and the broken nature are two hallmarks of statuary that has been looted, according to the article. Many museums were leery of buying this statue, as remarkable and beautiful as it is. But the J.Paul Getty Museum in L.A. was not put off. The curator there, Marion True, purchased the statue in 1986, concluding that it represented Aphrodite, and displayed her prominently at the museum, despite pleas from others on the staff that it was a "hot potato."

Afterwards, True reformed and became an outspoken critic of museums' willingness to purchase materials of questionable provenance. She pushed through a new acquisitions policy at the Getty, that pulled them out of the black market. So she was completely shocked when she arrived in Rome in 1999, to return 3 looted items to the Italian government and was approached by a prosecutor during the signing ceremony to hand back the items, to ask her to return the statue. She said, if they could produce evidence that it was looted, she would consider it. But it was very difficult to get such evidence. At last, by focusing on the "bottom" of the art trade, the Italian art police turned up evidence: thousands of Polaroids of artifacts, freshly dug, broken and dirty propped on newspapers in a car trunk. Investigators painstakingly matched these photos of dirty, "before" images to the clean, museum items around the world, over years, identifying objects in Japan, Germany, Denmark, the MFA in Boston, and, more than anywhere else, the Getty! Most of the 40 artifacts they traced to the Getty were acquired during Marion True's tenure as curator.

In December 2004, based on the Polaroids and other evidence, [Italian prosecutor] Ferri won a conviction of the middleman, Giacomo Medici, for trafficking in illicit archaeological objects. It was the largest such conviction in Italian history, and it resulted in a ten-year prison sentence and $13.5 million fine. The sentence was later reduced to eight years, and the conviction is still under appeal. The following April, Ferri secured an indictment of True as a co-conspirator with Medici and another middleman. She was ordered to stand trial in Rome. Ferri’s evidence list against True included Getty objects depicted in the Polaroids, plus one that was not: the Venus of Morgantina. He had added it at the last minute, he said, hoping to “make a bang.” Marion True was the first curator in the United States to be accused by a foreign government of trafficking in illicit art. (In her written statement to Smithsonian, she described her indictment and trial as a “political travesty” and said, “I, not the institution, its director nor its president, was used by the Italian state as a highly visible target to create fear among American museums.”)

Well, the goddess did, eventually, "go home," and Marion True resigned from the Getty in 2005, and her case in Italy was eventually dismissed when the statute of limitations had run. But the American museums were certainly shaken by the images of True, trying to shield her face from the Italian paparazzi as she walked to and from the courthouse. Museums like the Metropolitan in NY, the MFA in Boston, and more have returned cherished ancient artifacts to the home countries in recent years. The Globe article notes other moves that were not, apparently driven by the fear engendered by the prosecution of Marion True, I am happy to say -- apparently the museums were coming to this conclusion on their own, as well. And we see, now, that there is a new job category, at least at the Museum of Fine Arts in Boston. According to the Globe article, when museums wanted to purchase items before, curators with expertise in the object's area would do their own research on the provenance. But time pressure, as this job was squeezed in between all the "main" jobs would mean that the research would be skimpy too often. Also, Reed has been given a budget line for resources that is protected with a donation from a patron who recognized the importance of the need.

Not everyone totally admires the MFA or Reed for the work they are doing. New York art lawyer Raymond Dowd criticizes the lack of transparency of the MFA and Reed in his blog, Copyright Litigation: Copyright law, fine art and the courts. The MFA was involved in a suit over claims to several pieces of art by holocaust survivors families, and moved to avoid discovery of Ms. Reed's investigation into provenance. It does not sound like the MFA'a finest moment, but it's difficult to tell without hearing the MFA's side. The Globe article quotes Reed's reply to the attack, (does not appear in the online version of the story)

"I know that I sound defensive and I'm trying, as I get older to sound less defensive," she said. "But I think there are a lot of loud voices out there that are inaccurate." The next day, reed asks that even that mild criticism be struck from the record. She doesn't want to come off too strong.

She does defend the MFA, which she says shares the results of all its Nazi-era provenance research on its website on gallery labels, and in gallery talkes. The only exception is when there is a legal matter that includes correspondence that is privileged.

The decoration is the mysterious goddess from the Smithsonian website http://www.smithsonianmag.com/history-archaeology/The-Goddess-Goes-Home.html?c=y&page=1

Going Paperless in the UK

From the United Kingdom comes this story about a plan "to give jurors a basic 89 pound Kindle in a bid to cut down on paperwork." The idea behind the plan is to facilitate jurors' review of evidence, with the ultimate goal of creating a "paperless" court system in the United Kingdom.

As of next April courtrooms across the UK are set to "go digital" and ditch traditional paper files and case bundles ...

The plan will be to use existing court computers and secure email systems to allow the prosectuion to present its case on a giant screen from a laptop which can be seen by the judge and jurors.

"By April 2012, the aim is to have all criminal justice system agencies transferring information digitally.

This is part of work across the criminal justice system to provide a simpler, swifter and more transparent service that meets the needs of victims and the public."

There will be a "mock trial" later in December to test prosecutors' use of "tablet devices"--Kindles aren't mentioned--to communicate with police and to retrieve evidence. When the plan goes live, jurors will not get fully loaded Kindles that would allow them to access the Internet; rather, they will be issued basic units.

This approach might meet the concerns of critics of the British Kindle initiative. The first concern is that although issued Kindles for trial-related purposes, jurors might try to download novels or surf the Internet. Limited or no access to the Internet through a basic Kindle would answer this objection.

The second concern smacks of ageism. Some critics have said "that some members of a jury may not be up to speed with the technology," and couldn't be expected to learn how to use a Kindle to review evidence. A lot of training will be required for jurors in the 60-to-69 age group, and this will have costs for the court system. (In England, people over the age of 70 do not serve on juries.) Frankly, the notion that once you celebrate your sixtieth birthday, you can't be expected to use technology is ridiculous. How hard is it to use a Kindle?

Justice Kagan's First Year

Hearing Dahlia Lithwick speak about the Supreme Court at last summer's AALL conference was the high point of the meeting for me. She was insightful, funny, erudite, and entertaining. In a recent issue of New York, Lithwick turns her attention to the newest Supreme Court justice--Elena Kagan--and offers a review of her first year on the bench. Entitled "Her Honor," the article describes the controversy over whether Justice Kagan (as well as Justice Clarence Thomas, whose wife is affiliated with a group that has openly opposed the Patient Protection and Affordable Care Act) should recuse herself from the challenge to the Act when it comes before the Court. The argument in favor of Justice Kagan's recusal is that when she served as Solicitor General, Justice Kagan "both strategized about and advised the administration on the law, and also expressed opinions on its consitutional merits, in violation of the recusal rules." For another view, also largely positive, of Justice Kagan's first year on the Court, see this article from the Washington Post.

Lithwick portrays Justice Kagan as anything but the "frothing ideologue" her opponents tried to make her out to be before her confirmation. Nor is she a "self-serving careerist and party hack." Justice Kagan is a good listener who pays careful attention during oral argument both to the attorneys and to her colleagues. She does ask questions (fewer than Justice Sonia Sotomayor, who asks a lot of questions), but tends to be deferential to the other justices, some of whom ask lengthy, tortuous questions. Lithwick also points out that Kagan has earned high marks for her writing:

Like Scalia and Roberts, she uses short, crisp sentences. Jargon at a minimum. Memorable metaphors that make complicated ideas accessible. It's as if half of her is writing to influence her colleagues while the rest of her is writing to sway everyone else. ... Kagan has repeatedly used the words imagine and you and writes directly to the reader, ... a technique that instantly "draws the audience into the process of decision-making."

But it also signals something about the way Justice Kagan thinks. She's interested in working through the argument--both sides fully credited--and appealing to readers to weigh in, instead of beating them down with a doctrinal worldview.

Lithwick believes that ultimately Justice Kagan will not recuse herself from the health-care case any more than Justice Thomas will. "She will decide it as a member of a larger body, triangulating against the words of the Constitution and the constraints of prior precedent."

Turmoil at NYPL

As an occasional user of the venerable Research Division of the New York Public Library on 42nd Street in Manhattan, I have watched the ongoing restoration of the building with a great deal of interest. Recent work on the exterior of the iconic, century-old building has brightened the stones and lighting fixtures, and made the details of the Beaux Arts architecture come more clearly into view. More significant work is planned for the interior of the building, as is described in this article from The Nation.

The author, Scott Sherman, spoke to a number of NYPL staffers and administrators about the Central Library Plan (CLP) for the renovation, details of which are "closely guarded." Based on what they know, however, staffers "worry that the makeover would not only weaken one of the world's great libraries but mar the architectural integrity of the landmark building ... " What does the CLP call for? Seven levels of stacks which "hold 3 million books and tens of thousands of adjustable and fixed shelves" will be "demolished." The resulting space will be used for "construction of a state-of-the-art, computer-oriented library designed by British architect Norman Foster ... a "library within the library." Most of the dislocated books will be stored, either in a facility below the library or in Princeton, New Jersey, from both of which they will be retrievable. For the first time in history, patrons will be able to check books out of the Research Division collection. What will this "new high-tech circulating facility" cost? Estimates range from $250 million to $350 million, a staggering sum of money at any time, but particularly so during an economic downturn which has left many public institutions, including NYPL, in acute financial distress. The article explores a number of issues, including whether the money committed to the CLP would be better spent improving the eight-seven branch libraries, many of which have fallen into disrepair, and enhancing the collections of both the research and branch libraries, which have fallen victim to ongoing budget cuts.

I was also interested to read about the new president of NYPL, Anthony Marx, who took office in July after a successful tenure as president of Amherst College, where he became known for his efforts to increase the economic diversity of the student body. As the parent of an Amherst alumna, I met President Marx a few times at social events at the college. He impressed me as a thoughtful individual with a genuine passion for opening up access to elite institutions to a broader range of individuals. Given that background, his appointment to the presidency of NYPL makes sense. Library administrators have said that "the objective of the CLP ... is to democratize the Forty-second Street library, incorporate the latest digital technology and serve the public. ... [After the renovation,] "users will have access to almost 70 percent of the building," compared to only 32 percent of the space today.

I don't envy Marx his new position. He must deal with demoralized staff, many of whom disagree with the library's current plans; trustees, who are used to calling the shots; potential donors (much of his time is probably spent fundraising); unions representing the library staff; and members of the public, at least some of whom care a lot "about the shape of the entire New York Public Library in the years to come."

Maryland and Gay Marriage

Maryland failed to pass a gay marriage bill last spring, but a new bill is being filed now and may pass. Governor Martin O'Malley is supporting a bill that balances authorization of equal marriage rights with language exempting religious organizations who object from performing ceremonies for gay couples. I suppose the language, if drafted correctly, could exempt a religious organization that objected to heterosexual marriage from performing those ceremonies as well -- it would only be fair.

Here is a link to a Washington Times story about O'Malley. And here is a link to Marylanders for Marriage Equality. A tip of the OOTJ hat, actually, to Mark Weikel of www.gaydatingsites.net, which is sponsoring an online petition and fundraising drive in support of this initiative. Good luck to Maryland voters!

Here is the current status of Same Sex Marriage in the US:

Issues marriage licenses to same-sex couples: Massachusetts, Connecticut, California*, Iowa, Vermont, New Hampshire, New York and the District of Columbia Recognizes same-sex marriages from other states: New York, Maryland Allows civil unions, providing state-level spousal rights to same-sex couples: Delaware, Hawaii, Illinois, New Jersey, Rhode Island (Note: In Connecticut, Vermont and New Hampshire, same-sex marriage has replaced civil unions.) Grants nearly all state-level spousal rights to unmarried couples (domestic partnerships): California, Oregon, Nevada, Washington Provides some state-level spousal rights to unmarried couples (domestic partnerships): Hawaii, Maine, Wisconsin and the District of Columbia * The California Supreme Court ruled on May 15, 2008, that same-sex couples have the right to marry in California. Proposition 8, which amended the California Constitution to define marriage as between one man and one woman, was passed on Nov. 4, 2008. On Aug. 4, 2010, a federal district judge ruled that the same-sex marriage ban in Proposition 8 violated the equal protection provisions of the U.S. Constitution. Enforcement of that decision has been stayed pending appeal. California does not currently allow same-sex marriages to be performed. Same-sex marriages performed before Proposition 8 was passed remain valid.

(from an excellent and quite current report on the wonderful website at the National Council of State Legislatures.) It's a terrific resource for all sorts of data!

A Treasure Trove from the British Library

The British Library has launched a major new digitization project, the British Newspaper Archive, which currently offers around 4,000,000 searchable pages from over 200 different newspapers. The papers were published in the United Kingdom and Ireland, and date mainly from the nineteenth century, although some newspapers' runs extend back to the mid-eighteenth century. Searching the Archive is free, but viewing the content, either through the pay-per-view option or by subscription, is fee based unless you access the Archive in person at one of three British Library Reading Rooms. The project is a collaboration between the British Library and brightsolid, a British digital publishing firm. Digitization continues at the rate of 8,000 new pages a day, with the goals of scanning 40,000,000 newspaper pages over the next ten years.

Newspapers have been called the "raw material of history" by no less an expert than historian Henry Steele Commager. In the British Newspaper Archive, researchers will discover

Exhaustive coverage of crime and punishment ... Eyewitness accounts of social transformation ... Illustrations and advertisements ... first-hand accounts of [newsworthy] events ... and countless vivid details of how our ancestors lived and died.

At the moment, only newspapers that are out of coyright are included in the project, but the collaborators have secured "permission from one publisher to digitise newspaper runs up to the mid 20th century."

Who's a Person Now?

One of the pet peeves of the Occupy Wall Street and its myriad offshoots is the person-hood of corporations. The recent Supreme Court decision, Citizens United v. Federal Election Commission truly shoved the idea into the faces of American citizenry that corporations are not only citizens but have rights to lobby politicians freely. The decision actually also covers activities of unions as well, but that is not what is animating protesters right now.

The case involved Citizens United, a conservative non-profit organization which aired a film criticizing Democratic candidate Hillary Clinton. The McCain-Feingold Act (more formally titled The Bipartisan Campaign Reform Act of 2002, Pub.L. 107-155, 116 Stat. 81, enacted March 27, 2002, H.R. 2356) prohibits "electioneering communications" broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibiting any such ad paid for by for-profit and not-for profit corporations as well as such ads paid for by unincorporated organizations using money from union or corporate funds. The Court, by 5-4, found this major provision of the McCain-Feingold Act violated the First Amendment free speech rights of the corporations. Citizens United does leave McCain-Feingold controls on foreign corporations and foreign individuals contributing to political campaigns.

I am quite in sympathy with the OWS protesters – I do not like the idea that large corporations’ lobbyists can purchase my legislators’ favors! But I think that the movement that says we should strip corporations of the status of “person” under the law needs to stop and think about the range of unintended consequences that might flow from that action.

I am not a corporate law specialist. When I practiced law, the only corporate law I really focused on was how to “pierce the corporate veil.” I was a poverty lawyer, and as a law student worked for APPALRED, which did a lot of environmental law, too. Piercing the corporate veil means to show that the corporation was set up as a sham, insufficiently funded, just in order to shelter the individuals from the legal consequences of what they were doing – so they could take unfair advantage of the legal fiction of the legal person that a corporation affords.

That fiction was allowed centuries ago, according to Mark Peters, writing in the Boston Globe Ideas section today, and quoting from William S. Laufer has written in Corporate Bodies and Guilty Minds: The Failure of Corporate Criminal Liability, corporations began to be given some aspects of personal property rights in British law as early as the 1300's under King Edward III. Corporations’ march toward personhood continued in British law, and by 1765, Laufer and Peters can quote from the Common Laws of England (not clear, but possibly Blackstone?)to distinguish between natural persons (us!) and artificial persons created by law such as corporations and “bodies politic.” The idea is to shelter the board of directors and shareholders of a corporation from liability for any wrongdoing by the corporation, or from bankruptcy if the corporation fails.

When a corporation such as Enron acts as outrageously as it did, this seems so counterintuitive. But, imagine how few people would be willing to take the risk of forming a really large corporation, when they would be liable for the actions of thousands of employees they would never meet. How few people would be willing to take the risk even of forming a less complex corporation if it failing would mean they would lose all of their personal assets! How many people would serve on boards or buy stock if being a part owner or a director meant they would be personally liable for bankruptcy or torts committed by the company? And if that happened, the economic engines of our world would just grind to a halt. Even small businesses would be fewer and much more cautious.

What other unintended consequences would we have to think about? I suspect the bankruptcy laws would have to be overhauled if we changed the status of corporations. I think we would certainly have to change the tax codes.

So, am I bothered by corporate personhood? Yes. In a lot of ways I am. But the legal fiction is intertwined in a lot of different ways into our laws. We would have to be careful in pulling it out by the roots. I am just saying be careful and take your time. But, there is another part to this...

Maybe the fault, dear Brutus, is not in our stars, but in ourselves... That is, perhaps we need to change, not the laws that allow corporations to hold some of the attributes of persons, but the fundamental problem that we are complaining about – their lobbying of legislators. The fact that legislators require funds for campaigning, and that they are susceptible to lobbyists, whether from corporate interests or any other kind, is what really should be troubling us.

The British Library Steps in It

The venerable British Library has been accused of "undermining struggling independent book shops by piloting a website initiative that redirects visitors to Amazon to purchase titles," according to an article in The Independent. Independent bookstores in England, like their counterparts in the United States, have been struggling to survive because of competition from Amazon, which can sell books more cheaply thanks to its ability to buy books in large quantities.

The library's online catalogue lists more than 13 million of the more than 150 million titles owned by the library. The website's newly refurbished search system now offers browsers the option of clicking on "This item in amazon.co.uk", which redirects users to a page where they can buy a copy of the book from the online retailer.

British booksellers feel that the move by the British Library undercuts them and threatens the very existence of independent bookstores in England, despite their "cultural and educational value." At the same time, they are worried about the effect of tablet computers and e-readers on their business. The Booksellers Association has been lobbying the government to lend its support, and launched the Keep Books on the High Street campaign in October as a way to dramatize the plight of independent bookstores in England.

A New Role for Professor Warren

When I worked at the Biddle Law Library at the University of Pennsylvania, I served as the liaison librarian to Elizabeth Warren, who was teaching there at the time. She taught Contracts, Bankruptcy, and other commercial law subjects, and was one of the most popular professors at the school. Thanks to her strong communication skills, she had the ability to reach different audiences. Penn students loved her because she was an effective teacher, had a good sense of humor, and was very accessible. I remember her as having a great deal of common sense and little pretentiousness; she was grounded and down to earth. For the women students, Professor Warren was a role model, a woman who had a high-profile career while raising a family. In addition to all this, she is a serious scholar, especially in the area of bankruptcy law and policy. Her books, co-authored with Teresa Sullivan and Jay Westbrook--As We Forgive Our Debtors: Bankrupcy and Consumer Credit in America and The Fragile Middle Class: Americans in Debt--were groundbreaking, among the first efforts to bring empirical research techniques to bankruptcy. "Crisscrossing the country, often with a portable photocopier strapped into the airplane seat next to her, Warren visited countless courthouses, where she pored over records and interviewed judges, lawyers, and often the debtors themselves. ... Warren ... paint[ed] a picture of an increasingly vulnerable middle class." Her work has shone a light on the disproportionately harsh effects of debt on women, and has encouraged other scholars to use court records as the raw material of their own research projects.

Professor Warren, who is now on the faculty of Harvard Law School, is a candidate for the Massachusetts Senate seat currently held by Scott Brown. She is the subject of an insightful profile in the current issue of New York Magazine. Dubbing her "the saint with sharp elbows," the profile highlights her trenchant criticism of the deregulation of Wall Street that began in the 1980s and

allowed "the big financial firms, the titans of Wall Street," to "start selling ever more dangerous mortgages, ever more dangerous credit cards, ever more dangerous car loans, which they then repackaged and sold again, producing, in addition to huge profits and bonuses, huge risk. After the market took a downturn, all that risk that's been built into the system starts to come home, somebody's got to pay, and those same CEOs on Wall Street basically turn around the American people and say, 'Whoa, there's a real problem here, and you better bail us out or we're all gonna die.' And so we did, that was TARP. And now we're about to write the last chapter in this narrative."

A passionate advocate on behalf of America's embattled middle class, Professor Warren was chosen by President Obama to set up the Consumer Financial Protection Bureau, which was her brainchild, and most people assumed she would eventually be nominated to head it. President Obama chose not to appoint her, however, knowing that the confirmation process would be difficult if not impossible. It is worth noting that Obama's ultimate choice, Richard Cordray, is facing stiff opposition from the Republicans in Congress and may never be confirmed. The profile points out that Professor Warren has moved on from the disappointment and disillusionment she must have felt about not being nominated to head the CFPB, and is now hoping to channel her energy and intellect into "rebuilding America's middle class."

Victory for the Consumer Caucus

On Saturday, November 5th, the AALL Executive Board unanimously approved a motion to recognize the new AALL Caucus on Consumer Advocacy. This wonderful result was the culmination of efforts led by Michael Ginsborg that built on years of work by other law library consumer advocates: Kendall Svengalis, Jack Montgomery, and Joe Stephens, who continue to guide and inspire us. We should also express appreciation for the instrumental endorsement of the Caucus by the Private Law Libraries Special Interest Section under the leadership of Steve Lastres. As a long-time member of the Academic Law Libraries Special Interest Section, I would have liked to have seen ALL-SIS join PLL-SIS in endorsing the petition. That did not happen. However, no law library today is immune from the pressures of the marketplace, and we need to stand together in advocating for the needs of our institutions and users. I hope that the ALL-SIS leadership will come around to this point of view. In the meantime, however, although I know that the really hard work is still ahead of us, it feels good to savor the victory.

New Blog on Legal Education

The National Law Journal recently launched a new blog on legal education: The National Law Journal's Law School Review. Its mission is as follows:

Rising tuition. Misleading employment statistics. Inadequate skills training. Law schools have faced plenty of criticism for their role in the struggles of young lawyers today. The National Law Journal has assembled a panel of legal educators and law graduates to discuss whether law schools are facing a crisis, and how they should respond to their mounting problems.

Indeed, a number of well-known academics have been recruited to blog about the issues above: William Henderson (Indiana), Erwin Chemerinsky (UC Irvine), Brian Tamanaha (Washington University), Michael Olivas (Houston, and AALS President), and it is interesting to read their opinions and the lively responses to them. This is a blog worth following.

Johns Hopkins To Close Its Medical Library

Before going to law school, I did a brief stint as a reference librarian at a medical school in Brooklyn, New York. It wasn't my finest hour. During my last week of employment, I had to visit the emergency room of the affiliated hospital twice--the first time as the result of a subway mugging, and the second time because of a large cinder that had embedded itself in my eye and had to be surgically removed. I worked at that library long enough, however, to develop an appreciation for medical librarians and the conditions under which they worked. For instance, on several occasions, surgeons called the reference desk from the operating room and asked the librarian on duty for journal searches on unexpected situations they had encountered. Database searching was in its infancy at that time, and PubMeb was not yet available. When I was the librarian who got the call from the O.R., I would approach the computer terminal with shaking hands, knowing that there was possibly a life at stake while I fumbled around trying to determine how to search in order to answer the surgeon's question.

One of the libraries that I often called when I needed immediate help in such situations was the William H. Welch Medical Library at Johns Hopkins University. The librarians there were unfailingly helpful in walking me through searches and in teaching me how to use the Medical Subject Headings (MeSH), which were a foreign language to me. Therefore, I was surprised and little saddened when I learned recently that the Welch Library will soon cease to be a physical presence and become an exclusively online library. This article describes the change, which will occur on January 1, 2012, when the venerable institution will close its doors to patrons. The focus going forward will be on the delivery of online materials, which is what most of the users at Johns Hopkins want. Staff is not being reduced, and patrons will still be able to contact the library for help if needed. Librarians have been "embedded" within the departments at the Medical School since 2005, and patrons can visit them during their official office hours. The director, Nancy Roderer, is not sure about the ultimate use of the building, although she says that the special collections areas will not be affected. Click here for a podcast featuring Ms. Roderer speaking about the Welch's transition to a digital library.

My daughter is working on a Ph.D. in Neuroscience at Johns Hopkins Medical School, and I asked her what she thought about the changes at the Welch. She told me that she hasn't stepped foot in the library at all since her first semester there when a librarian threw her study group out of a study room. After that experience, she never felt comfortable approaching the librarians again, which was good because everything she needed, she could pull up herself using PubMed. Her story confirms what I have always said--you cannot have confrontations with students about petty issues and then expect them to approach you when they need help. The relationship is forever poisoned. My daughter and her friends have found other places to study on campus, and none of them will mourn the loss of the physical library.

Thomson-Reuters review by bond-rating agency affirms oligopoly & barriers to entry

The Fitch bond rating agency, like the better-known Morningstar, rates companies for investors, looking at the income potential and the shape of the market for future earnings. Fitch rated Thomson-Reuters last June. Stock-holders and the executives must have been pleased at the A- rating. But what caught my eye, was this paragraph, which pretty much sums up what Ken Svengalis has been preaching about how the legal publishing and vending marketplace (and the business publishing as well, I suppose as another "core business") have become oligopolies in which the few big players have essentially come to control the market place:

Fitch recognizes that there are meaningful barriers to entry in TRI's core businesses and that there are a limited number of well-capitalized competitors that compete predominantly on product differentiation, quality and delivery (rather than on price).

Tip of the OOTJ hat to my wonderful colleague, Christopher Chiofolo, who showed this to me and also explained the financial reports that compared T-R's income to its competitors, showing that it essentially is making about twice the profit of the average business in its class. Hmm.

Hot Coffee Spills on Stephen Colbert

Stephen Colbert was at his snarky best last night interviewing Susan Saladoff, former attorney and director of Hot Coffee, a new documentary. The film tells the story of the McDonald's coffee case, Liebeck v. McDonald's Restaurants, No. CV-93-02419 (2d Jud. Dist. Ct. N.M., Bernalillo County, Aug. 14, 1994), a products liability lawsuit. (Law librarians may recall that Lexis recently gave out coffee mugs with the name of this case emblazoned on one side). The plaintiff sued McDonald's after purchasing coffee at a drive-through. When the coffee spilled on her lap, she suffered third-degree burns and required skin grafting and debridement to deal with her extensive injuries. The jury initially awarded her $2.9 million, but the trial judge reduced that to $640,000. Liebeck and McDonald's ultimately settled for an undisclosed amount that has never been publicly revealed.

Much has been written about the case, to which critics point as an example of a "frivolous" lawsuit. In fact, Liebeck's injuries were extensive and serious. In Colbert's interview with Saladoff, he casts himself as an average guy for whom this case represents everything that is wrong with the American judicial system. Saladoff matched him point for point, and emphasized that the system works exactly as it should work. When individuals are injured, they should be able to seek redress against the person or corporation that is responsible for their injuries. There should be no limits on their ability to be made whole through the courts. Stephen was having none of it, but at the end, Saladoff received a hearty round of applause from the audience. The DVD will be available for purchase on November 1.

Excellent book on promoting diversity

The ABA online Newsletter has a fabulous interview with Verna Myers who owns a diversity consulting group, and has written a book, Moving Diversity Forward, How to go from well-meaning to well-doing. It sounds like a great book to add to a library, but a better book to give your administration. There are a lot of terrific things in the interview, and I don't want to quote the whole thing here. Follow the link and go read it! She is very inspiring and challenging.

Occupy Boston maintains a library

The New York Times reports that Occupy Boston and the Occupy Wall Street protesters have set up tent libraries. The Boston Radical Reference Collective have been active in helping set up the library in Boston. The Times reports that the protesters are receiving up to 50 books per day, which are sorted by genre. The most requested book seems to be Howard Zinn's People’s History of the United States which is not checked out because it is in such high demand. Noam Chomsky is another author in high demand. Tip of the OOTJ hat to my daughter's fiance, Eli Gottlieb, for alerting me to the story!

There is Still Time to Sign the Consumer Advocacy Caucus Petition!

You have until November 2 to sign the Consumer Advocacy Caucus petition that seeks to have the group recognized as an official AALL Caucus. The AALL Executive Board will consider the petition during the November 5th Executive Board meeting in Chicago, at which Michael Ginsborg, our chair, will be in attendance.

A final version of the petition will be submitted to the Board on November 2, but it will NOT contain names of individual AALL members who support the petition. AALL has asked that the group simply provide the total number of AALL members who support the petition. AALL Chapters, Sections and Caucuses that have endorsed the petition will be listed, but individual members' names will not.

If you are considering whether to support the petition, but have been hesitant to add your name as a signatory, this development will help you make up your mind. Please contact Michael Ginsborg at michaelginsborg@yahoo.com if you would like to be counted as a supporter of the petition.

For more information about the history of and reasons for the Caucus and the petition, go to my earlier blog post on the subject. And if you're wondering what any of this has to do with you and your library, read Laura Orr's cogent post on the Oregon Legal Research blog.

Personal History

Dear OOTJ Readers, Here at Suffolk, it's hiring season again. That is, we are interviewing faculty candidates. I sit and listen to amazing brilliant faculty candidates speak at length on all sorts of topics and engage my faculty colleagues in analyzing cases and all manner of legal topics.

And I wonder, what is wrong with me? I just HATE this sort of thing. I think back to law school. And the first semester, I was truly excited, and really engaged. I was so interested in using my mind to think about the issues that were raised in class. But by the second semester, I was starting to get sick with what would now be diagnosed as Chronic Fatigue Syndrome. I would run a low-grade fever for five or six weeks in a row, ached all over, and was exhausted. I felt like I had the flu on a permanent basis. And then for one or two days, I would feel, gloriously normal. But then, it would all start again. This lasted all the way through law school: 3 years!

I went to so many different types of doctors. And many doctors, when they cannot figure out what is wrong with you (maybe especially a with a woman), they get snarky, and start talking about hypochondriac, and maybe you need to get out more. I was really, really frustrated! But I was really, really sick, too. By the time I graduated, my 3-L portrait showed me looking pretty ragged, with my hair so limp that I decided to get a

Poodle Perm before I went to my first job. The only time I ever had a perm!

But I think the ultimate effect on me was that I became more and more alienated from the law school experience. I had always thought of school as my refuge from an unhappy home, and now it was becoming a very difficult, grim grind, largely because I was so sick. I just dragged through the school, and found my refuges instead, in the library , where I had made friends as I did part-time work, and at the local Legal Aid office where I also did part time work, and made other friends. Both refuges channeled what I did after graduation: I worked for 2 years as a Reggie Fellow for Legal Services and then went back and finished my library degree and became a law librarian.

That feeling of alienation has never left, though, and even when I worked as a lawyer, I did not do legal analysis in a clear-thinking, dispassionate way. I approached my cases in a berserker kind of all-out emotional commitment. It was a very dangerous way to work, and I certainly was a burn-out victim after a mere 2 years! I was actually quite good in the courtroom, though, while it lasted. But I can see why I sort of worry (appall? terrify?) the more careful and corporate sorts who tend to fill the law school world.

It's one of the wonderful things about libraries that we are a group enterprise, not the solo show that (especially Legal Services or small law offices) law practice so often is. Especially in a law law school library, we do things where I can get feedback or groups working together with me on projects. I realize that I have strengths and weaknesses, and others do, too. Libraries are like complex machines made up of lots of different moving parts (people!). So are associations of librarians. We like to do things together, and to cooperate. It's been one of the great revelations in my life, that I can be so much more productive and effective by working together with others, and by delegating, by sharing the work, or by asking advice, I can get such better end results. But I also have a real weakness for just going ahead and DOING IT. So I am still learning, after all these years!

A Poem: In the House of the Law

I have made for myself

A small mouse’s nest

Beneath a cornice

In the grand house of the Law.

Comfortably curving

Walls that hold

The trembling sound

Like a bird held

In a gentle hand.

Betsy McKenzie 32 Legal Studies Forum 207 (2008)

New Institute at Yale Law School

Yale Law alumnus and legendary constitutional lawyer Floyd Abrams has given his alma mater $3,000,000 to found an institute to promote free speech, free press, and access to information. The Yale Daily News article quotes Abrams on the reason for his gift:

'We live in a time of acute polarization of views in our nation ... It is of critical import that no voice be stilled and that government play virtually no role in determining who speaks and to what extent. The First Amendment makes us the envy of the world and it is worth learning and relearning why that is so.'

The Floyd Abrams Institute for Freedom of Expression will be overseen by the Law School's Information Society Project, which is led by Professor Jack Balkin. According to Balkin, the main beneficiary of Abrams's largesse will be the Media Freedom and Information Access clinic, a Yale initiative that assists journalists with "freedom of information and open access issues." Some of the donation will ge used to hire a permanent faculty member to lead the MFIA, as it is known, allowing it to "take on more cases and broaden its legal scope."

Amazon Eliminates the Middleman

Amazon has almost put both independent bookstores and chain bookstores out of business. Are publishers Amazon's next victim? The New York Times is reporting that Amazon has gone into the publishing business. This fall it plans to publish 122 books "in an array of genres, in both physical and e-book form. It is a striking acceleration of the retailer's fledging publishing program that will place Amazon squarely in competition with the New York houses that are also its most prominent suppliers." It is unclear to me whether Amazon will offer its authors the traditional services offered by publishers, i.e., editing and marketing, although the Times article states that Amazon is "gnawing away at the services that publishers, critics and agents used to provide." Traditional publishers have already cut back on editing (it's rare these days to read anything that wouldn't benefit from careful copy editing), so it's likely that authors won't lose much if they publish with Amazon. And the article points to efforts already under way by authors to market their work themselves, so they won't miss the marketing campaigns of traditional publishers as much as they would have in the days before authors and their readers could communicate directly. The article quotes Russell Grandinetti, an Amazon executive: "'The only really necessary people in the publishing process now are the writer and reader ... Everyone who stands between those two has both risk and opportunity.'" One question left unanswered by the Times article is royalties. It seems reasonable to assume that by forgoing the services of the traditional publishers and opting for Amazon, authors should be able to bargain for more generous compensation.

Occupy Wall Street, and its off-shoots

Occupy Wall Street has grown from a very small protest this past summer, thanks in large part to a brutal over-reaction by New York City police. On September 1, a small, sort of pre-protest was held, to test how it would be to hold peaceful, legal protests by occupying public sidewalks 24 hours in New York City. The protesters encamped relying on a previous decision, METROPOLITAN COUNCIL, INC v. HOWARD SAFIR, Commissioner of the New York City Police Department, et al., 99 F. Supp. 2d 438 (S.D. NY, 2000). Nine of the protesters were arrested when they refused to disperse. They videotaped the event, and I have to say the police were quite polite.

On September 17, Occupy Wall Street worked with US Day of Rage, which was, despite its name, launched a peaceful protest. In a well-planned and supported protest, the group organized an occupation of a growing swath of New York City to protest a variety of issues. The group has acted in a democratic fashion to allow the protesters to articulate what they think the protest is about, so the issues are sometimes shifting and sometimes murky. But most agree about the unequal distribution of wealth ("We are the 99" is one common slogan, referring to 99% of the population in contrast to the 1% that has the vast majority of the wealth).

Eventually, a few of the New York City police did act brutally toward some of the protesters, and were caught on video. These reports came out on September 25, and galvanized the protests in New York and elsewhere. Suddenly, the protest seemed much more important.

Occupy Boston sprang up (and last night was rousted out of its expansion onto the Rose Kennedy Greenway by Boston Police). On their website, they claim that there are now 120 Occupy sites throughout the country. I know there is one in Atlanta, Charleston, Chicago, Dallas, Humboldt (California), Knoxville, Los Angles, Oakland, Portland, Sacramento, San Diego, San Francisco, San Jose, Santa Fe. Actually, the cities in California have a shared website, Occupy California. To find out what is happening, you can check into Twitter and use the general hashtag #occupy.

In a related movement, Lawrence Lessig and Mark McKinnon have called for for a Constitutional Convention to be hosted at Harvard. The post linked here actually appeared last spring, so this movement began earlier than the Occupy Wall Street, but it arises from the same frustration.

Washington is hopelessly addicted to money and thus to the status quo; drunk with power and incapable of getting sober and fixing itself. It’s time for an intervention—by the states.

Politically, we two disagree on just about everything. But the one thing we do agree on is that the institutions of government in Washington have become corrupt, held hostage by well-funded special interests. It’s no wonder that only 17 percent of the American public in a recent Gallup survey said they had a favorable opinion of Congress. American voters believe, and rightly so, that corporations, labor unions and moneyed special interests have a chokehold on politicians. Voters are disillusioned and discouraged because they don’t believe Washington represents the will of the people. And the recent Supreme Court decision in Citizens United v. F.E.C.—which permits unlimited independent corporate campaign expenditures—will only make this worse.

And so too many throw up their hands and say, “We give up. Congress won’t fix itself. And there’s nothing that we can do about it.”

But there is something we can do. We, the People, can take back the power we gave to Congress. We can take it back through the states.

The framers left open a path to amendment that doesn’t require the approval of Congress: a convention. Article V of the Constitution requires Congress to call a convention to propose amendments if 34 state legislatures demand it. Any proposed amendment would then have to be ratified by both houses of 38 state legislatures (three-fourths of the states).

(snip) Even if 34 states don’t call for a convention, history teaches that a real threat is often enough to get Congress to act. The only amendment in our history that changed the structure of Congress (the 17th, making the Senate an elected body) was proposed by Congress because the states were close (just one state short) to calling for a convention. If nothing else, the possibility of a body they can’t control is enough to get Congress to pay attention.

Some will resist the idea of a convention because they fear a “runaway” in which fringe elements would take over the agenda and propose radical amendments. But the framers anticipated such a danger and established a very high bar against it. Amendments are ratified by legislatures (or state conventions), not by referenda. And if even one chamber in 12 state legislatures refused to ratify an amendment, it would die. There will always be twelve solid blue states and twelve solid red states in America. There’s thus no danger that one extreme can overtake the other. Conventional wisdom will argue that constitutional conventions or amendments are just impossible. Just like it was impossible to wrest a republic from the grip of monarchy or abolish slavery. Or impossible to elect Ronald Reagan or Barack Obama. But conventional minds are always wrong about pivotal moments in a nation’s history. And this is a pivotal moment in ours, when a movement to restore democracy is possible.

Indeed, the movement has already begun. Legislators in South Carolina, Virginia, Oregon, Rhode Island and Florida are already throwing sparks that could soon become a brush fire across the country. More and more are coming to see that if reform is necessary—as most all of us, whether from the right or left believe—this is the only way.

Interestingly enough, when I searched for information on Occupy Wall Street, the top item returned was a Wikipedia entry reminding readers of Article Five of the Constitution, giving the citizens the power amend the Constitution or to call a constitutional convention. It was a sponsored link.

Wikipedia's new QR Pedia codes

The New York Times reports on a totally cool new use of QR codes pioneered by Wikipedia. On September 28, Wikipedia announced on their Wikimedia blog an easy method for users to generate QR codes for Wikipedia articles, and paste them where needed. OTJ readers probably already are familiar with QR codes and know that they can be easily read by smart phones, which then will display the wikipedia article, or whatever is linked to the code. The phone has a setting that tells the QR code what language is required for Wikipedia's article. If there is not a copy of the article in your preferred language, it will select "the most relevant article instead." It would be interesting to test the relevance selecting software! But the Wikimedia article explains that the multilingual feature allowed the Derby Museum and Gallery in England to install labels that worked to support visitors from all over the world (here is a link to the map showing their visitors for this project), at very low cost. This is a terrific and very useful new way to use QR codes that could extend the reach of libraries (we keep our fingers crossed that nothing gets linked to sites that get vandalized!). The image of a QR code is from http://megcanavan.wordpress.com/tag/qr-codes/

An Outrageous Dictionary

When Webster's Third New International Dictionary was published fifty years ago, it caused a ruckus. In his piece, "When a Dictionary Could Outrage," published in The New York Times Book Review on September 25, Geoffrey Nunberg describes the reaction to "what critics viewed as a lax admissions policy." Some of the criticism focused on the addition of neologisms such as "litterbug" and "wise up." Some of it focused on the editors' refusal to condemn "ain't." And some of it focused on the decision to draw illustrations from "down-market sources like Ethel Merman and Betty Grable." To the modern ear, this sounds like elitism, but at the time the critics of Webster's Third included not only writers such as Dwight Macdonald and Wilson Follett, but also the popular novelist Rex Stout (of Nero Wolfe fame), who had the detective "feed his Third to the fire a page at a time while declaring it 'subversive and intolerably offensive.'"

As Nunberg points out, it's hard to imagine a new edition of a dictionary causing such an uproar today. When I left home for college in 1969, one of the things I was sure to pack was my brand new dictionary, a standard high school graduation gift of the era. Does anyone still bring a dictionary to college? "The dictionary simply doesn't have the symbolic importance it did a half-century ago, when critics saw the Third as a capitulation to the despised culture of middlebrow ... That was probably the last great eructation of cultural snobbery in American public life." I have to confess I consult the Urban Dictionary more often than I consult traditional printed dictionaries in order to look up words and terms (frequently somewhat obscene) used in the mass media and by my students. Nunberg gives a number of examples of classic dictionaries that have responded to fears of irrelevance by lowering their standards of admission; they keep up with changing times and "don't keep words waiting in the vestibule long." Such words and phrases as "wassup," "BFF," "muffin top," "freegan, "geek chic," and "staycation" now appear in venerable dictionaries such as the O.E.D. The Internet is in many ways the ideal medium for a dictionary. Online dictionaries can be updated constantly and cheaply, they can incorporate audio and video to illustrate the use of words and model correct pronunciation, they can be accessed easily by users of handheld devices, and open-source projects such as the Wex legal encyclopedia and dictionary demonstrate that they can be the result of group collaboration.

Scholarship Myths

The Chronicle of Higher Education has a wonderful short article by Becky Supiano on the Top Ten Myths about Scholarships. The article reports on Mark Kantrowitz, who publishes financial aid/scholarship location websites FinAid and FastWeb, and has published a book, Secrets to Winning a Scholarship. He was speaking at the National Association for College Admission Counselling (NACAC) meeting in New Orleans this September, and the article reports on his talk. I think academics won't be terribly surprised at most of the myths debunked, but it's a nice list, and worth visiting, especially if you or a family member is searching for ways to pay for college. It's certainly worth passing along to the world.

Net Neutrality Regulations set to take effect November 20

The FCC finally is publishing its long-awaited Net Neutrality rules. When they announced them last December, Verizon and jumped in and sued to stop them right away. The court said, there weren't any regulations yet to sue about, because they were merely proposed regulations, and Verizon should comment on them, not sue.

But the comment period is over, and the regulations were published last Friday. (that link takes you to a nice, brief article in PC World that summarizes the regulations and gives a bit of history on how the regulations came to be, as well as including a link to the Federal Register itself) Most commentators expect Verizon and others to sue again to block the regulations. We will see what happens.

"Net neutrality" is a principle that states that all internet traffic should be given equal treatment by internet access providers. There is a desire by providers to ration traffic, and create fast and slow lanes. And there are some rational-sounding arguments, if the entire network's traffic is being slowed by a handful of heavy users' demands. But the fear is that a lack of transparency in the practices will allow the providers to use their power to favor their own traffic (think of Comcast), over competitors, to charge more for premium service, or to disallow certain types of traffic that they disfavor, like large downloads of video. What triggered the FCC to issue the regulations was Comcast throttling any BitTorrent traffic passing over its network. The FCC tried to censure Comcast, which appealed to a court. The court ruled that since there were no regulations barring such behavior, the FCC had no grounds to penalize Comcast. The FCC decided to write some regulations on the issue.

The regulations that finally made it through the process, are moderate, and focus on transparency as opposed to trying to completely bar providers' control of traffic:

As written, the rules do three broad things for customers: * Add transparency to how broadband providers--both wired and wireless--manage networks * Prohibit wired broadband providers from blocking lawful content, applications, services, and non-harmful devices. Wireless providers are also barred from blocking lawful websites or applications that compete with voice or video services. * Forbid wired broadband providers from discriminating in the transmission of lawful network traffic.

(from PC World "FCC Publishes Net Neutrality Rules," By John P. Mello Jr., Sep 23, 2011). Note the different rules for wired compared to wireless customers. Also note that a provider can slow ALL the traffic on their network at peak times, as long as they don't discriminate by either type of material or the sender (like BitTorrent).

The FCC commissioners who voted on the regulations last year broke down along party lines -- three Democrats voted for, and two Republicans voted against. One of the Republicans has since left the FCC and gone to work for Comcast. Many Republicans in Congress are decrying the regulations and vowing to pass legislation to block the new rules. President Obama has promised to veto any such law, according to an article by Reuters.

On the other side, consumer activists are just as disappointed in the regulations, praising that as a starting point, but wishing for much stronger regulations. Public Knowledge made a short statement, to that point, and urging Congress to allow litigation to move forward, to "resolve intricate legal issues without political interference." Corporations have poured a lot of money into Congress on this matter. The Associated Press reports that AOL

spent $130,000 lobbying the federal government during the second quarter on issues such as Internet regulation, computer security and privacy, according to a quarterly disclosure report. That's less than the $141,300 the New York-based company spent in the first quarter. AOL didn't report lobbying expenses for the year-earlier period.

Here is a terrific "What it means to you, the consumer" from PC Magazine, written last December, when the regulations were first proposed. The article is still very good and worth reading. Net Neutrality rules will certainly affect ALL users of the Internet, so pay attention to what is happening!

Hathi Trust sued over Orphan Works Project mistake

The Chronicle of Higher Education alerts readers in a brief article dated September 14 in the Research section, "In Authors' Suit Against Libraries, an Attempt to Wrest Back Some Control Over Digitized Works," by Jennifer Howard, to a law suit filed on Sept. 12 by the Authors Guild among others against Universities of Michigan, California, Wisconsin, Indiana and Cornell and and the Hathi Trust over their Orphan Works Project. At the Authors Guild website, you can get an announcement and description of the suite along with a link to a PDF of the complaint, filed in the Southern District of New York. Apparently, the Authors Guild, joined by similar authors groups from Australia, Quebec, and the United Kingdom searched through the list of orphan works at the Hathi Trust site, and found a number that they could trace to existing authors. Rather than send corrections to the universities and Hathi Trust, which they specifically request, the authors' organizations filed suit (see the text from the University of Michigan Orphan Works page):

For Copyright Holders - We Want to Hear From You! If you are a bona fide copyright holder – or the authorized representative for a copyright holder – for a title on the Orphan Candidate list, contact us to let us know about your copyright in the book. Kindly fill out this PDF, and send it to us to help us respond as quickly as possible. We will include the copyright information in our record for the book and ask for your instruction on how and whether we may provide access to the digital version. Many copyright holders, especially scholars, are eager to make their out-of-print books available for reading in the HathiTrust. We offer that as an option for any copyright holder who wishes to do so. Copyright holders may identify themselves at any time. Even if you contact us after the 90-day period, we will honor your wishes.

(you should visit the page because the text size and layout makes the bolded text I am emphasizing here even more prominent.) On the other hand, some of the "orphan works" included in the original list were apparently ludicrously easy to link to existing authors. So to some extent, the Hathi group brought this on themselves through sloppy work. there is an article at Library Journal by David Rapp that quotes the University of Michigan released statement that argues that the flawed release of the orphan works list actually achieved the aim, though they will revisit the methods and refine them to

create a more robust, transparent, and fully documented process, we will proceed with the work, because we remain as certain as ever that our proposed uses of orphan works are lawful and important to the future of scholarship and the libraries that support it.

Sign the Consumer Caucus Petition!

I am reproducing below the petition of the Caucus of Consumer Advocacy to the AALL Board. Please read the petition, and if you agree with the position of the Caucus, sign it by emailing your approval to Michael Ginsborg at michaelginsborg@yahoo.com. The names of all signatories will be kept confidential, as explained in the petition. Time is of the essence. We have a short deadline by which to gather signatures (September 16th) to allow AALL time to place the petition on the agenda of the Board meeting for November 3rd-5th. The Caucus's statement of purpose must be strong and unequivocal so that we can be effective consumer advocates for law libraries.

Request To Support A Petition For An AALL Consumer Advocacy Caucus

We are a group of over 50 AALL members who need your support in a crisis affecting all types of law libraries. Our libraries cannot indefinitely sustain the escalating costs of unfair and anticompetitive business practices by some sellers of legal information. AALL has unique promise to champion the interests of legal information consumers. We have matched its promise with an opportunity. In April, we registered to become an AALL Caucus on Consumer Advocacy. AALL members have achieved earlier successes at consumer advocacy. Based on their examples, we proposed several consumer advocacy initiatives as our goals. AALL's leadership initially raised concerns about our goals. We were told that our Caucus would violate antitrust law and make policies on AALL's behalf. To answer these objections, we changed our
statement of purpose. Former AALL President Joyce Janto subsequently approved our revised statement for an Executive Board vote. AALL President Darcy Kirk recently rejected it and offered a substitute that compromises our effectiveness. We need your support as we petition the Board to reverse Darcy's decision and approve our revised statement of purpose. We ask that you endorse the following petition to the Executive Board. We will instruct the Executive Board to keep signatory names strictly confidential.

A Petition Of Undersigned AALL Members To AALL’s Executive Board

As AALL members, we petition AALL’s Executive Board to approve this statement of purpose for the creation of the AALL Caucus on Consumer Advocacy: "The AALL Caucus on Consumer Advocacy will recommend to AALL that it petition appropriate governmental bodies for specific remedies to anticompetitive and unfair business practices by legal information sellers." We do not consent to any disclosure of our names as signatories. Disclosure could allow legal information sellers to retaliate against us by singling out our employers for less favorable business relations.

Reasons For The Petition

1. The Caucus has a strong factual basis for its proposed purpose.

2. Although AALL has three venues on “vendor relations,” none can effectively address unfair and anticompetitive business practices in the legal information industry. First, the Vendor Colloquium did not discuss consumer advocacy, and the membership had no opportunity for digital participation in any of its sessions. Caucus members asked a Vendor Colloquium task force to consider our proposal of a robust consumer advocacy equal to AALL’s promise. The
task force did not respond, closing an opportunity for their participation. Second, CRIV does admirable work to help individual institutions resolve complaints against legal information sellers. But CRIV can not use information from these complaints to advocate for a change in AALL policy. Third, despite significant anti-consumer practices in the industry, AALL’s Vendor Liaison has reduced related membership concerns to a problem in public relations. In March 2011, Vendor Liaison Margie Maes reported that unidentified “vendors” were “frustrated with the airing of public complaints,” but hoped that a “vendor relations program” would “stem the flow of that negative communication.” (March 25-26, 2011 AALL Executive Board Meeting Board Book, Tab 17)

3. We need a new approach. Caucus members seek the opportunity to independently influence AALL policymaking in a matter of high importance to the membership. An AALL Caucus would provide AALL members a forum to fully exchange their views on consumer advocacy, and a transparent venue to reach consensus on a policy recommendation to the Executive Board. The Caucus would not decide policy for AALL or act on its behalf. Caucus members seek only to have their voices heard; to open a new outlet for member participation in AALL; and to collaborate with AALL’s leadership in developing an effective consumer advocacy.

4. Over 50 AALL members have twice requested AALL’s recognition of the Caucus. Valuing AALL as their best ally, they have worked with its leadership to develop an acceptable statement of purpose. Former AALL President Joyce Janto provisionally approved their latest submission, but her successor, Darcy Kirk, has rejected it. Darcy suggests that the Caucus accept yet another statement of purpose: "The purpose of the Caucus on Consumer Advocacy is to provide a forum for AALL members to exchange ideas and information regarding the legal information industry and to represent its members’ interest and concerns within AALL."

5. Darcy objected to the "negative tone" of the Caucus’ latest purpose and faulted the Caucus for suggesting "actions regarding policy." She says that her substitute purpose “does not prevent [the Caucus] from from making recommendations to AALL regarding petitions.” But it would prevent the Caucus from candidly declaring its real purpose - to recommend a consumer advocacy petition.

6. AALL’s leadership could apply similar objections to any activity our Caucus might otherwise pursue, especially given the recent history of changing positions by AALL Presidents.

7. Darcy's rejection of the Caucus' proposed purpose would harm AALL in the following ways:
a. It would violate the implied right of members to engage AALL in matters they find fundamentally related to its mission;
b. It would violate AALL’s principle of transparency and openness;
c. It would create a chilling effect on Association speech, as members will not be allowed to discuss consumer advocacy issues, must less pursue them, for fear that AALL will not approve of candid discussion;
d. It would create the appearance that AALL is afraid of candor in matters that affect sellers of legal information;
e. It would deprive members the indispensable status and perceived “protection” that AALL recognition confers on an activity that some legal information sellers can be expected to disapprove; and
f. It would deter members from otherwise acting together to pursue their vision of a robust consumer advocacy.

8. These harmful consequences prevent Caucus members from accepting Darcy's substitute purpose. So unless the Board reverses Darcy's decision, the Board will deny over 50 AALL members an opportunity they eagerly want to participate in their Association; will deprive other AALL members the benefits of allowing the Caucus to organize; and will undermine member trust and interest in the Association.