Wednesday, August 31, 2011

Susskind on The End of Lawyers


I’m belatedly reading Richard Susskind’s 2008 book, The End of Lawyers, and finding it particularly relevant in light of the debates on legal education stirred up most recently by Paul Campos at Inside the Law School Scam.
Susskind writes at “1.3 A Journey” (I’m reading the Kindle version, so no page number):
To recap, the four thoughts that contributed to the writing of this book are as follows: (1) lawyers might fade from society as other craftsmen have done over the centuries; (2) lawyers are denying that they are lawyers because they recognize the need to change and diversify in response to shifts in the market; (3) no-one seems to be worrying about the fate of the next generation of lawyers; and (4) the delivery of legal services will be a very different business when financed and managed by non-lawyers.
As insightful and provocative as Campos’s current blog project is, even he (at least so far) doesn’t appear to question the continuance of business as usual in the legal profession; he simply argues that law school does not (and has not for many decades) adequately prepare law students for practice upon graduation. In fact, law school has probably never done that, but for many years, the unspoken understanding (the “Cravath model“) was that law associates would be trained on the job by large law firms–and that the lucky few would eventually make partner, while the rest would presumably move on to other firms, if they were not already burned out by years of tedious practice.
William Henderson and others have certainly noted the end of the Cravath model. Many suspect that the law firm market is currently undergoing not just a cyclical downturn, but a long-term restructuring that will result in leaner firms unwilling or unable to continue their customary training function. Susskind, however, goes beyond that to suggest that much of what has been traditionally seen as lawyers’ exclusive domain will be unbundled and taken over by other professions and semi-professions. Lawyers, after all, are information professionals, not that much unlike librarians, journalists, and other professions currently threatened by changing technologies. It is unlikely that the professional guild and it’s regulations (either in the form of law school accreditation or control over ethical rules and bar admissions) can keep technology and the marketplace at bay forever.

Tuesday, August 30, 2011

A fun way to encourage students to improve Google search skills






















I stumbled upon a cool way to encourage students (or anybody!) to buff up their Google search skills: A Google A Day! This summer, the Google Labs guys came up with this puzzle that pops up a new poser every day. There are multiple ways to solve each one, but only one right answer (does that sound familiar, research instructors???) But those who get stumped can click and get one suggested solution from Google, so there is a good clue there, too, a chance to learn if you can't get it on your own.

Because it's a puzzle, and light-handed, it might be a good way to get students to look at the excellent aids that Google puts out for users, and maybe get them to learn more about what's "under the hood" at their favorite web browser.

Google Basic Search Help

More Search Tips

Special Search Features (a lot of these are specialty things like weather, stock prices, earthquakes, but scroll down for more generally applicable things like using the + sign in your search to REQUIRE a particular word to appear in the results! That's especially helpful when you are wanting to search a phrase that includes a word like "and" that usually gets filtered out by search engines as being too common. A good example in law is "assault and battery." But you can also use it if your searches are popping up web pages that do not seem to include one of your terms. There are lots of other useful features, so keep checking this list.

And do not overlook the Search Tips Gallery, which used to be called Advanced Search. This gives you fill-in boxes to help you conduct more complicated searches. You can choose between searching Google Docs, a web search, Google Maps, or searching your Gmail, if you have an account for that.

Besides allowing their staff engineers and programmers to work on projects of their choosing, Google has another interesting way to develop new projects. Every summer, they select student programmers and engineers in a highly competitive system. This is called the Google Summer of Code. The students have made proposals of projects to work on, and release the code as open source for all to use. My daughter's programmer boyfriend was one such student programmer one summer. And I know of a library-intersection project that Google sponsored a few years ago, in 2007, that has resulted in one or more web-based cataloging applications (see Code{4}Lib post), and this post from the Disruptive Library Technology Jester.

Monday, August 29, 2011

Digital Natives and getting under the hood: the ERIAL Project

Tip of the OOTJ hat to Billie Jo Kauffman who sent along a link to an article from USA Today reporting on a study for American Library Association (ALA). The ERIAL (Ethnographic Research in Illinois Academic Libraries) project was a series of studies conducted at Illinois Wesleyan, DePaul University, and Northeastern Illinois University, and the University of Illinois's Chicago and Springfield campuses. Anthropologists looked at both the students and the librarians at these campuses, focusing, as far as I can tell, on undergraduates. The studies will be published this fall by the ALA under the title, "Libraries and Student Culture: What We Now Know," and apparently, what we now know is pretty darned sobering. (see presentations, powerpoints, papers, and posters from many conferences including ALA 2010 link here) The research shows that although "digital natives" may have grown up online, they are not widely digitally literate.

I don't think librarians will be surprised to know that students rely on Google far more than any other database or other resource, or that they are far worse at using Google than they think they are. The study found that a large percentage of the students studied did not understand either the search logic of Google or the display of results. And students tended to treat all search boxes the same, expecting every database visited to have a Google-type search protocol. We in law libraries see a similar expectation that everything will work like Westlaw and Lexis, OR Google! It's something I have to teach specifically in my Advanced Legal Research class.

Students were often very poor at choosing databases for research, as well. Selecting JSTOR for current type searching, as an example from the article, without understanding that JSTOR does not get journal articles until 3-5 years after publication. Again, I have to teach my students to read the descriptions of databases, either the scope notes in Lexis and Westlaw or other descriptions for other databases or websites. It's like learning to read the ingredients on the boxes at the supermarket, I suppose. Students also do not understand cataloging or how libraries are arranged, so again, this is something I am explaining even in law school. The undergraduate students often could not decipher citations. By law school, however, the students do know this, thanks to their first year LRW courses.

The ERIAL studies found what Joan Shear had found earlier for law students, that many students have a very inaccurate sense of their research ability. They tend to over-estimate their skill level, and are also very loathe to ask for assistance from librarians. Though we sometimes find e-mail and text reference bring more questions, even when the questioner is right across the room. Somehow that is more comfortable for students than asking face to face. Another problem seems to be that students apparently have no idea that librarians are there to be asked questions! They are more likely to ask their professor than to ask a librarian, according to this study.

I hope is not true of our libraries. I suppose we need to get anthropologists in! One thing that we do that may help is that many of the law librarians are involved in teaching 1-Ls research skills. So they are known to the students from that, and probably stress during their teaching that students should ask at the reference desk or other reference access points for help. Law librarians may also come into upper level seminar courses to teach a "cameo" class on how to do the research for the paper. These interactions all help the students feel that they know the reference librarian, and can approach them for help.

The article at the USA Today also talks about the tension between the desire of the college student to just get the information, and the desire of the librarian to get the student to love the research process. The student, may even want the information just handed to him or her, rather than to learn how to find it. Of course, you can't do that -- you have to teach them how to find it themselves. But is there anything wrong with teaching shortcuts, teaching them to avoid the "blood, sweat and tears" methods? Particularly if you are teaching students for whom research itself is not going to be the life-time vocation that it is for a librarian, I think there is not a problem, even if we are talking about training lawyers. They need to understand research, but I do not any longer teach every step of legislative history research, for instance. I teach them how to find compiled ones, and tell them to call me if they ever have to compile one from scratch.

Friday, August 26, 2011

Take a visit to the Old Bailey


Archivists are doing wonderful things these days. For instance, they have made available to the whole world, for FREE

The Proceedings of the Old Bailey, 1674-1913: A fully searchable edition of the largest body of texts detailing the lives of non-elite people ever published, containing 197,745 criminal trials held at London's central criminal court.
The home page tells us that the project is
a collaboration between the Open University, and the Universities of Hertfordshire and Sheffield, this project was funded by the Arts and Humanities Research Council and the Big Lottery Fund.
Doesn't Britain do interesting things with their lottery money? And how could you resist the Ordinary of Newgate's Accounts? The website calls this a "sister" site to the Proceedings of Old Bailey., which are the reports of the criminal courts. The Ordinary of Newgate is last words of condemned criminals as they went to execution. The "Ordinary" is the chaplain , one of whose perks was to publish for the public and sell, at quite a good profit, little pamphlets with these accounts. According to the site, the Ordinaries were raking in about 200 pounds a year in theearly 18th Century, selling the Accounts, and about 400 editions were published with the stories of some 2,500 executed criminals.

I do not know if every visitor will have the same experience. As delectable as the content is, the website was very slow and my computer became quite slow doing every task while I was connected to The Old Bailey. Perhaps it is just as well. The site would be an absolute time sink!

The decoration is the original drawing from William Hogarth, which became the basis for his painting and etching, The Idle 'Prentice Executed at Tyburn. It is commonly called "Industry and Idleness," and this original sketch is held by the British Museum, according to London Lives (http://www.londonlives.org/static/OA.jsp), the website where I found the image, which also has a good deal of information on the period and the Ordinaries.

Tuesday, August 23, 2011

Almost a bookmobile, not quite a library


The Uni Project is a "portable reading room" designed for urban spaces by a design firm in Boston for musician, philanthropist and former NY Legal Aid Society attorney Sam Davol. The first Uni Project is scheduled for New York this fall. Davol's idea is to improve on the venerable bookmobile by adding features like furniture that encourages community members to hangout and enjoy the books and each other. The module is made of boxes that hold books enclosed by pieces that come apart to re-configure into tables, benches,and chairs. Thus, you have all the portability and protection for the books that you have with a bookmobile, plus you have added a community-building aspect, if Davol's idea is correct. It is aimed to improve literacy, but can also be used for open air meetings, arts and crafts, classes, and more. Boston Street Lab is the 502(c)(3) organization which the Davols have created to fund and staff the Uni Project, though it also ran a storefront library in Chinatown in Boston, for less than a year, and several other initiatives.

Mr. Davol and his wife plan to drive the first uni reading module from Boston, where it has been built, and hold a kick-off. They have already held an online fundraiser where they managed to raise more than the targeted $20,000 for the project.

It is striking that, while Mr. Davol has volunteer librarians who are Simmons Library School 8/07/the-uni-project/">graduates lined up for the Uni Project, the project is not involved directly with any public libraries. At least as far as I can tell from any of the articles on the web or in papers I have seen so far, there is no connection to the official library community. I cannot tell if this is a decision by the Davols or if they reached out to the library community and were rebuffed. Perhaps they were thinking that if they wanted to be offering books on the street level, they were operating in a different social sphere than libraries.

It will be an interesting experiment to watch. Hooray for private philanthropists who see a need and just act to fill it! I do wish there were some link to the library community. And I cannot but be wistful that this will be showing up in NYC first, though designed and built in Boston.

Monday, August 22, 2011

A Librarian's Double Life


Last Thursday, the Turner Classic Movies cable channel devoted all of its programming to the films of Jean Gabin, perhaps France's greatest film actor. Jean Gabin starred in nearly one hundred films, including The Grand Illusion, La Bete Humaine, and Pepe Le Moko, the film that made him an international star. Some have called him the American Spencer Tracy, but that doesn't do Jean Gabin justice, for he was a much better actor than Spencer Tracy. Not to mention the fact that he had more sex appeal in his little finger than Spencer Tracy did in his whole body! Jean Gabin is also beloved in France as a war hero; he was a member of the Free French Forces under Charles de Gaulle, and received the Croix de Guerre. Jean Gabin played a variety of characters during his long career, but perhaps his greatest portrayals were of world-weary outsiders with a streak of fatalism. What does Jean Gabin have to do with librarianship, you ask?

One of the films that TCM showed last Thursday was Leur Derniere Nuit (Their Last Night), a film made in 1953 that starred Jean Gabin with the somewhat wooden Madeleine Robinson as his love interest. It was certainly not a great film, but it was interesting because Jean Gabin played a librarian who is secretly the ruthless head of a ring of criminals. In the early part of the film, we see Jean Gabin going quietly about his business, living in a boarding house, working at his local library where he seems to know the contents of every single book in the collection, being promoted to head librarian, and generally living an exemplary life. The scenes in the library were fascinating as there wasn't a female librarian anywhere in sight; all the library personnel were men. As the film continues, however, we learn that all is not as it seems with the mild-mannered librarian. It turns out that Jean Gabin needs a lot of money in order to buy property for his aged parents back in his hometown of Angouleme, and we must assume that his librarian's salary doesn't make this possible. So he has turned to a life of crime. There are interesting scenes of a gritty postwar Paris and some good action scenes throughout. The film suffers from an unfortunate lack of chemistry between Jean Gabin and Madeleine Robinson, the teacher who puts herself in jeopardy trying to help him. In addition, we never really understand her motivation. Backstories for the two leads are provided late in the film and don't really help to flesh out the charcters much. Nonetheless, the film never failed to hold my interest. As my husband summed up, "What a library director has to do to make ends meet!"

Wednesday, August 17, 2011

Law Schools Sued Over Placement Stats Fraud


The National Law Journal reports that 2 law schools have been sued in separate actions alleging fraud in their reporting on post-graduate job placement statistics. The article by Jenna Green notes in both suits the plaintiffs are represented by the same firm, Kurzon Strauss in New York.

The schools named in each complaint are New York Law School and Thomas Cooley. While there are only two law schools named, in the article, lawyers with the firm are quoted:

"The moment for law schools to be held accountable is now," David Anziska, of counsel at Kurzon Strauss in New York, who represents the plaintiffs, said during a conference call with reporters. "We picked Cooley and New York Law School because they seemed to be J.D. factories, but this problem is not just confined to those two schools."

Name partner Jeffrey Kurzon added, "This is not about the quality of the education. It's more like a false advertising claim than a products liability claim."
The claims in the two complaints are very similar, varying only in details according to the school being described. In a completely separate action earlier in the year, Thomas Jefferson Law School in San Diego was sued over a similar claim by an unemployed 2008 graduate. All of these suits are class actions.

Sadly, the points are quite familiar to law school administrators and faculty who have been arguing about the same issues and in some anguish over what, exactly, to do about them for quite a while. The problem is that it takes some time to change the course of legal education (at least without either slashing the employees or missing a number of meals, both of which, we truly hate to contemplate). But how fair is this to our students? We are asking ourselves and each other this question, as well. But, most uncomfortably, now litigators from OUTSIDE are asking the questions! Here are some points from the Cooley complaint, lightly edited:
Thomas Cooley in its Mission Statement represents that its underlying purpose is to “prepare its graduates for entry into the legal profession through an integrated program with practical legal scholarship as its guiding principle and focus,” by imbuing them with the requisite skills and knowledge “needed to be a success in the law and a valuable member of society.”

3. Unfortunately, in reality, far from preparing its many, many students for entry into the legal profession and imbuing them with the skills and knowledge necessary to succeed in law, the school consigns most of them to years of indentured servitude, saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off. The school has done this while blatantly misrepresenting and manipulating its employment statistics to prospective students, employing the type of “Enron-style” accounting techniques that would leave most for-profit companies facing the long barrel of a government investigation and the prospect of paying a substantial civil fine. These deceptions are perpetuated so as to prevent prospective students from realizing the obvious -- that attending Thomas Cooley and forking over nearly $100,000 in tuition payments is a terrible investment which makes little economic sense and, most likely, will never pay off.

4. Specifically, Thomas Cooley, through both its print and internet marketing materials, commits two basic written, uniform misrepresentations. First, the school during the class period claims that a substantial majority of its graduates -- roughly between 75 and 80 percent -- secure employment within nine months of graduation. However, the reality of the situation is that these seemingly robust numbers include any type of employment, including jobs that have absolutely nothing to do with the legal industry, do not require a JD degree or are temporary or part-time in nature. Rather, if Thomas Cooley was to disclose the more pertinent (snip) employment statistic -- i.e. those graduates who have secured full-time, permanent positions for which a JD degree is required or preferred -- the numbers would drop dramatically, and could be well below 30 percent, if not even lower.

5. Second, Thomas Cooley grossly inflates its graduates‟ reported mean salaries, by calculating them based on a small, mostly self-selected subset of graduates who actually submit their salary information. If the Defendants were to disclose salary data based on a broad, statistically meaningful representation of its graduates, by including more graduates who have failed to secure full-time, permanent employment, the reported mean salaries would decline precipitously.


6. Defendants‟ deceptions are all the more shocking considering that they are being perpetuated on na├»ve, relatively unsophisticated consumers -- many of whom are barely removed from college -- who are often making their first “big-ticket” purchase. These students tend to apply to law school with one objective in mind: to attain the kind of job that provides the compensation and lifestyle that are commensurate with and worthy of the enormous time, money and personal sacrifice invested in a legal education.

This is pretty baldly stated and very ugly when put this way. But it is sadly not far from the truth. What they say about non-dischargeable debt is absolutely true. I posted about that some time ago here. Over the years, for whatever reason, Congress has shifted laws and regulations so that student debtors who default are somehow treated as the most terrible felons. And so the loans are no longer dischargeable in bankruptcy. And furthermore, student loans in arrears can be garnished without any judicial action. There are all sorts of appalling rules about student debt, stripping holders of nearly any of the protections offered to any other sort of debtor in America today!

We all know the rationalizations for why it is very difficult to get truthful and complete job and salary statistics the way that law schools gather them now. Career development offices all tell us that it's very difficult to get graduates to report back, and that only the students with good salaries will volunteer their income. But if we think about it creatively, we can also easily imagine some ways that we could better gather such information, if the schools, or NALP or the ABA REALLY wanted to get the information.

This somewhat terrifying litigation story ties back to the previous post about the fight between ABA and NALP over who is going to gather this type of information, and how that argument is only going to further decrease the likelihood of clear and trustworthy information being gathered. This is a terrible time for this showdown to happen!

As an employee at one of the larger law schools, I am also not sure if the angel of death passed by our door or if we are waiting for the other shoe to drop. I don't know, either, what to hope for. This sort of pressure may finally force all of us in legal education to face the music and begin a long-over-due renovation project, that we are all very afraid to tackle.

In fairness to the three schools, the deans have made answers, refuting the charges, in one way and another. Cooley, most notably, has counter-sued the law firm in Michigan court for defamation in its online posts about the original litigation. Dean Matasar of New York Law School was quoted as saying that often the students accept jobs that are less than they had hoped for, in a separate interview with National Law Journal dated July 26, 2011, about his stepping down as dean at New York Law School. The article about the litigation also notes that two of the 3 named plaintiffs against New York Law School are now practicing lawyers.

The image of the big hammer is courtesy of http://reviewshardware.com/big-hammers/
I just thought it got to the heart of the pressure this litigation brings to legal education!

Sunday, August 14, 2011

ABA and NALP in Turf War

According to The National Law Journal, the ABA's new requirements that law schools report more details about graduate employment, which seemed like such a step toward honesty and transparency, has caused a turf battle with the National Association for Law Placement (NALP). (I believe this is Standard 509 (a), Basic Consumer Information, to be published in a fair and accurate manner reflective of actual practice. And an Interpretation 509(1), (8)"placement rates and bar passage data").

NALP says that this change interferes with their traditional, and more comprehensive collection of the same sort of information. And because the ABA is collecting information as part of the annual Questionnaire and the Self Study for re-accreditation or accreditation, the ABA is the question that law schools will answer most diligently, skimping on the NALP survey. NALP Executive Director James Leipold was also miffed, apparently, when the ABA announced the new rules without any notice to their sister organization, stepping all over NALP's toes. The ABA is also interfering with NALP's intellectual property, and Leipold is angry enough to threaten a suit. He claims that the ABA is using the same research and survey methods that NALP pioneered over the last 4 decades.

According the the National Law Journal article by Karen Sloan, that ABA's legal education consultant Bucky Askew explained the new changes to the accreditation rules,

"The bottom line is that the executive committee believes that because we are an accrediting body, we have to get the data directly from schools, not from a third party," Askew said. "There's a difference of opinion about that with NALP but, as the accreditor, we need to make certain that schools understand this is an accreditation issue."


The National Law Journal spoke to Prof. Bill Henderson of Indiana University, Bloomington, who thinks that the new development
will represent a major blow to NALP's ability to collect information and analyze the legal job market. Henderson has used NALP data extensively for his research on the legal industry.

"I think what's happening is a total disaster," he said. "Everything that we know about the industry on a systemic level is from NALP. The ABA won't crunch industry data the way NALP does. They won't have the will or the capacity."

The most logical solution, Henderson said, would be to create a joint NALP/ABA survey, which would allow both entities to exist and make clear that reporting is part of the law school accreditation process.


Anybody up for mediation?

Library Weddings


The Boston Globe reports today on the trend to hold weddings in the Boston Public Library (BPL). Joseph P. Kahn (one of my favorites of the Globe regulars) notes that the trend is on at the New York Public Library as well. The BPL has not advertised at all, but simple word of mouth has increased the number of weddings from 24 last fiscal year to 54 this fiscal year (2011).

BPL tries not to let the weddings interfere with the core mission of serving the public with library services. There are a few patrons who are becoming suspicious of weeding projects and plans to physically reorganize departments, assuming that it is all in service of wedding catering.

The photos at the Globe are lovely, and if you have ever visited the main branch of the BPL, you will understand why people are willing to pay fees that can total into five figures for a wedding venue so lovely and unique. It also helps the very needy bottom line of a Boston institution, and speaks (ahem) volumes about the interests and values of the bride and groom. The budget of the Boston Public Library, like so many other libraries, has been slashed, and they have laid off 90 staff, according to Mr. Kahn. The wedding catering brought in $825,000 gross last year (fiscal year 2010), but netted only $220,000 after considering the extra costs for security, cleaning, events office, and utilities. Perhaps this year, they will have a higher net to gross ratio. We can hope!

Wednesday, August 10, 2011

Penny Wise, Pound Foolish at the National Archives


In a move to save money, the Administrative Office of the U.S. Courts has decided to destroy "millions of judicial case records that have been stored in the Federal Records Centers of the National Archives for decades, says an article in the Center for Public Integrity's i Watch News.



The plan is to destroy all records on cases that did not go to trial that were filed between 1970 and 1995. For other records, the federal judiciary has reduced the current record retention time from 25 to 15 years in an effort to cut costs. All cases that went to trial or were filed before 1970 will be kept.


The amount that will be saved is not huge--"$7.7 million over the next 10 years." How much material will be destroyed? "79,000 boxes filled with civil cases, 43,000 boxes of criminal cases and over 500,000 bankruptcy records", a "cause for concern among legal historians and advocates for public access to information." These court records are the building blocks of empirical legal research.

I have personal experience of mining old federal bankruptcy records for information about early women debtors. My co-authored article, Ladies in Red: Learning from America's First Female Bankrupts, was the result of examining bankruptcy filings under the Bankruptcy Act of 1800. We used the information gleaned from the filings to tell a story about the factors that resulted in women filing for bankruptcy over 200 years ago, and to paint a picture of how women engaged in the commercial life of the times. Other scholars have conducted similar investigations with equally compelling results. Margo Schlanger and Denise Lieberman have called court records the "gold standard for litigation research," in their article, Using Court Records for Research, Teaching, and Policymaking: The Civil Rights Litigation Clearinghouse, 75 U.M.K.C. L. Rev. 153, 161 (2006), and they implore the National Archives to step up to the task of preserving the records:





In short, for anyone who hopes to understand litigation—one specific litigation or an entire field of litigation—there is no substitute for court records. Historians, sociologists, anthropologists, political scientists, legal researchers, and policymakers all need court records if they are going to understand either a type of case or a particular litigation, whether it is individually important or studied as an exemplar. There is simply no other source of information about the substantive or legal issues, the conduct of the disputes, or their resolutions. We are left, then, with an unmet need for access to court records—a need that the National Archives can and should meet, for those records within its purview.



The current plan is hardly a solution.





The plan of the judiciary ... is to have all courts identify records considered historic to prevent them from being destroyed. Historic records include cases that involve parties who are historically significant, involved an issue of national historical interest, or cases that received substantial media attention. Electronic copies of the destroyed records, however, will not be made.



How can we know today what will be important to future researchers? There is much to learn from cases that are not historic and did not receive media attention. Why is there no plan to digitize the records?


A tip of the hat to Gail Whittemore, a colleague at Pace Law School, for pointing out the i Watch Newsarticle to me.


Tuesday, August 09, 2011

Consumer Advocacy Caucus Meets

The new Consumer Advocacy Caucus met during the recent conference of the American Association of Law Libraries in a swank conference room at the Drinker Biddle law firm in Philadelphia. It was nice to see how the other half lives! It was also a pleasure to meet members of the Caucus in person and to learn that all different types of law libraries are represented in our organization. We had two reasons for meeting: the primary reason was to discuss our options for organizing, and the secondary was to establish priorities for the Caucus.

Before deciding how to organize, we reviewed the drama surrounding the drafting of the Caucus’s statement of purpose and the Executive Board’s rejection of the statement submitted for approval in April. The April statement was rejected on two grounds: legal (mainly antitrust) and administrative (only AALL can make policy, and no other group can speak on behalf of AALL). The most recent statement of purpose reads as follows: “The AALL Caucus on Consumer Advocacy will recommend to AALL that it petition appropriate governmental bodies for specific remedies of anticompetitive and unfair business practices by sellers of legal information.” This new statement of purpose was submitted to AALL President Darcy Kirk on August 3. I do not know whether she has responded.

To give some context to the day’s discussions, the meeting began with a brief summary of the history of consumer advocacy on behalf of purchasers of legal information. Consumer advocacy goes back to an article by the law librarian Raymond Taylor, Lawbook Consumers Need Protection, A.B.A.J., June 1969, at 553. Taylor recommended voluntary guidelines and action by the FTC, which was accomplished without any involvement by AALL. In the 1980s, other individuals and groups stepped forward to evaluate products and help consumers determine whether they were getting their money’s worth. One of the best sources of information remains Ken Svengalis’s Legal Information Buyer’s Guide and Reference Manual, which is still being published. Unfortunately, today many consumers get their product information from vendors, and there is no independent voice speaking on behalf of the consumer. AALL is not advocating for its members’ interests in this regard, and we have all felt the results of its lack of attention in the form of shoddy products, rapidly escalating costs, restrictive licensing agreements, and other dubious practices of legal information vendors. Everyone in attendance felt that it was time to speak up and mobilize. The Caucus is a step in this direction.

In terms of organizing, we determined we could either seek recognition as an AALL caucus with a new statement of purpose, or form an organization independent of AALL. Michael Ginsborg, the convener of the Philadelphia meeting and the prime mover behind the organization, passed out a thoughtful document that laid out the pros and cons of each type of organization.

AALL Caucus


Advantages:

Substantive


• Reclaiming AALL as a consumer advocate increases the long-term odds of success because the Department of Justice and the Federal Trade Commission recognize AALL as the official representative of our institutions, and because it would be easier to partner with organizations such as the American Bar Association and the American Library Association.
• The sentiment of AALL members has changed in favor of the Caucus.


Procedural


• We can tailor almost all of the initially-proposed actions to the new statement of purpose.
• If necessary, the Caucus can bypass the Board's failure to act by proposing a resolution. In fact, Michael Ginsborg plans to offer a procedural reform to allow electronic ballot votes on AALL resolutions.
• The Caucus can attempt to elect its own slate of AALL officers.


Disadvantage:


• The Caucus would have to overcome AALL’s institutional barriers to consumer advocacy.

Independent Organization

Advantages:


Substantive


• The Caucus would improve the long-term chances of success if it builds support without trying to overcome AALL’s limitations.
• Even if the Executive Board approves our recommendation, AALL may do nothing.
• AALL might try to marginalize our group even if the Board lets us form an AALL Caucus.
• AALL has a history of opposing strong consumer advocacy.


Procedural


• An independent Caucus could take any consumer advocacy actions it deemed appropriate.

Disadvantages:


• It would be a challenge to build a wide base of support.
• The Caucus would have to create its owninstitutional framework and make it viable.
• AALL could marginalize the Caucus as an “outlier” organization if the Caucus pursues remedies with the Department of Justice or the Federal Trade Commission.
• The Caucus would have less leverage to strengthen the Fair Business Practices Guide and monitor the work of the Price Index Committee.

After some vigorous discussion of the pros and cons of the two organizational types, the members present voted to form a caucus and to seek recognition from AALL. This is our first priority. The indefatigable Michael Ginsborg was elected Chair of the Caucus.


Ken Svengalis attended the meeting, and raised ongoing issues with AALL’s Price Index for Legal Publications, which has suffered because of Thomson’s unwillingness to supply the information requested, i.e., the prices of discounted supplementations. Without this information, the Price Index is not nearly as useful as it could be. Ken has asked for volunteers to help him gather prices for the next edition of his book.

Friday, August 05, 2011

Holding Back the Tide of E-books


I love my Kindle. Before my recent trip to Spain, I loaded it up with classics I had been meaning to read for years--all for free. I didn't have to lug books around in my luggage, and the Kindle is small and light enough that I could carry it in my purse; I was never without reading material, a big deal for me. A bonus was that I was able to check my email on it; the Kindle wasn't designed as an email reader, but it worked and saved me from having to hang out in sketchy Internet cafes and pay to check my email. You haven't lived until you've been the only woman (and the only person over twenty-five) in an Internet cafe deep in the bowels of Tunisia, but that's another story. Actually, the Kindle works well enough to read email, but it's not particularly well suited to sending email messages. It can be done, but it's awkward.

This background explains my bewilderment when I came across an article in which "free software guru" and provocateur Richard Stallman is quoted as saying that "e-books are 'a step backward from printed books.'" He makes his case in a one-page comparison between printed books and Amazon e-books (he calls them "fairly typical"). With printed books, you buy them anonymously; after that, you own them without any restrictions on reproducing them (except, of course, those imposed by copyright law), you can lend them, you don't need proprietary technology to read them, and no one can take them away from you. With e-books, however, the "purchase" is not anonymous. Your use is governed by a restrictive license, and you can lend the book only in the most limited sense. Proprietary technology is required to read the e-book, and DRM prevents copying. Vendors can "remotely delete the ebook using a back door. It used this back door in 2009 to delete thousands of copies of George Orwell's 1984."

Stallman proposes that we "reject ebooks that deny our freedom. The ebooks companies say denying our traditional freedoms is necessary to continue to pay authors." In response, Stallman puts forth two ways in which we could compensate authors while legalizing sharing of intellectual property: 1.) we could "distribute tax funds to authors based on the cube root of each author's popularity"; or 2.) we could "design players so users can send authors anonymous voluntary payments." How realistic are these proposals? The current anti-tax, anti-big-government political climate would seem to argue against use of tax funds to compensate authors. And it's naive to think that authors could make a living from voluntary payments. I agree with Stallman that e-books are more restrictive than they need to be, but I don't think his arguments against e-books are going to resonate with most consumers. In fact, the popularity of e-books is growing. E-book sales totaled $164.1 million in January-February 2011, an increase of almost 170 percent compared to the same months in 2010. Stallman's campaign against e-books will probably be as successful as King Canute's attempts to hold back the tide, as shown in the illustration accompanying this post.

Thursday, August 04, 2011

Justice Kagan's "Remarkable Debut"


I am not feeling very positive about President Obama right now. He caved in to the extreme right wing of the Republican Party during the recent debt-ceiling crisis and displayed a stunning lack of leadership. He became absolutely invisible, completely marginalized. Can you imagine Congress ignoring Franklin Delano Roosevelt or Lyndon Johnson? Can you imagine Roosevelt or Johnson letting a bunch of extremists set the national agenda as Obama has done? However, no matter what happens during the rest of his time in office, Obama can be proud of his nominees to the Supreme Court. Both Justice Sonia Sotomayor and Justice Elena Kagan, the newest Justice, are proving to be worthy additions to the Court.

Of Kagan, Jeffrey Rosen writes in The New Republic, "One of the most surprising developments of the last term was Kagan's emergence as an eloquent voice--surprising because it often takes new justices a few terms to hit their rhetorical stride." Rosen contrasts Kagan with Justice Samuel Alito, one of whose early dissents was "dry and legalistic," and with Justice Sotomayor, who "has not yet developed a distinctive style," still writing much as she did while on the Second Circuit, "focusing on factual details and parsing precedents."

I recall during Justice Kagan's confirmation hearings last year, during which her lack of experience on the bench was discussed and considered to be a weakness, at least by some commentators. Given this lack of prior judicial experience, it is all the more surprising that she has made such a strong beginning on the Court.


In her first year on the Court, she wrote three dissents, two of which combine Scalia's gift for the sharp aphorism with John Roberts's powers of analytical dissection. But she also has something more: an ability to puncture her colleagues' bloodless abstractions and tendentious arguments, and to explain the constitutional stakes in plain language that all citizens can understand.
Rosen concludes by conceding that "Kagan can't achieve greatness merely by tossing off pithy one-liners. She also needs to provide a positive vision of values in which she believes," as the greatest Justices have done.


It's still too early to tell what Kagan is most passionate about--aside from a devotion to government neutrality. But Kagan has made a remarkable debut, and, if she develops a positive vision in the years to come, she has the ability to make it resonate far beyond the courtroom.


The photograph of the three female Supreme Court Justices was taken at Justice Kagan's investiture on August 7, 2010.