Empirical study of legal services

The Boston Globe Ideas section today (December 23, 2012) has an interesting article about Harvard Professor James Greiner who is doing empirical studies on the efficacy of providing free legal services to poor people who otherwise would have no representation. It makes legal services attorneys and friends of legal services kind of nervous in a lot of ways. But he is actually a supporter of legal services. He just wants to be sure the money and services are going where they will do the most good.

Greiner's first research effort examined the clients of the Harvard Legal Aid Bureau who were represented in their unemployment insurance claims. His findings were reported in the Yale Law Journal, and discussed in the Yale Law Journal Online, "Service Delivery, Resource Allocation, and Access to Justice: Greiner and Pattanayak and the Research Imperative," by professors Jeffrey Selbin, Jeanne Charn, Anthony Alfieri & Stephen Wizner. Basically, his first study found that the clients were no better off, and had to wait longer for their cases to be resolved when they were represented by Harvard Legal Aid Bureau. Apparently, Greiner has gone on since this first study to examine the effects of legal assistance in other types of cases, and it varies, which is interesting. He has completed a study that showed that representation in eviction cases made it more likely that a client would prevail. Greiner has three other studies in process now: divorce, social security disability benefits, federal prisoners making civil rights complaints.

In all the discussion I saw in the Globe article and in the scholarly discussions in the Yale publications, one aspect I did not see touched on was whether representation of clients assisted the courts. I know from conversations I have had with court librarians that the courts get jammed up with self represented litigants. Judges who have to deal with cases involving self represented litigants end up spending much more time explaining civil procedure and rules, and generally offering assistance to them. It slows the entire law suit down and can make settlements much more difficult. Anything that can assist the self represented litigant to prepare better before getting to the court room would speed the process along, and help the courts. Not all self represented litigants are poor and unable to afford a lawyer. Some simply do not like or trust lawyers and prefer to handle their case by themselves. But whatever the reason they are self representing, they are at a disadvantage in terms of all the rules of procedure, and evidence that lawyers had to learn in law school. And there should be some way to offer assistance to the literate pro se litigant.

Little Free Library

I only just heard about Little Free Library, a project that anybody can set up to share books for free. They often look almost like bird houses with books in them. I think it's a lovely idea, and it just made me smile. They have a map that shows how these little boxes for books have been set up all over the world. I clicked on icons to look at the Little Free Libraries in Pakistan and Poland, England, France, Canada and some of the zillions of them across the United States where they are so thick you cannot just click on a single icon.

I hope you enjoy the website!

The image decorating this post is from the Little Free Library website where you can order boxes pre-made like this one or many other styles (http://www.littlefreelibrary.org/order.html, but many people obviously make their own.

Need a cheer-up boost? Dewey B. Strategic's Thanksgiving post

Aww, that was NICE! Here is the link to a very nice meditation on how law librarians have been helpful to practicing lawyers. Guest blogger Phil Rosenthal, late of Covington & Burling, now with FastCase, tells why associates should get to know their firm library -- assuming it still exists!

Kind of like a Valentine for Thanksgiving... image courtesy of an Etsy site that had this "vintage" card for sale, once upon a a time. http://www.etsy.com/listing/102604843/vintage-greeting-card-valentine-turkey I think you can find anything on the Internet, sometimes.

The ITU Showdown is looming

Reuters and the British Guardian have covered the looming showdown at the ITU in Dubai... I wonder why we aren't hearing more about this in the U.S. press?

Really, do YOU want Vladimir Putin and the imams in Iran to make decisions behind closed doors about access to the Internet?

You can go here to send your signature to the U.S. government asking them to oppose the changes. There is also a video that explains more about the ITU and what is planned at the upcoming meeting in December! See my earlier blog post about the modifications to the Internet Telecommunications Regulations.

Tip of the OOTJ hat to my terrific colleague Roy Balleste for alerting me!

Secession Movement - has it peaked?

Geez, what is it with us Americans?! When we get upset with an election result, or don't like how things are going, our first impulse often seems to be: Let's leave! In 2003, a group of Vermont citizens formed a secession group, the Second Vermont Republic. The Florida Keys ostensibly seceded in 1982 to form the Conch Republic which exists through an annual parade and this website. Texas' current governor, and erstwhile presidential candidate Rick Perry, has asserted that state's right to secede. The link to the Rick Perry quote (from 2009) includes a fact check that tells us that the 1845 compact where Texas entered the Union as a state included an agreement that Texas could split into five states, not that it had a special agreement that it could seceded if it didn't like being part of the U.S. In fact, our blogger, R.G. Ratcliffe, at Chron, tells us that the U.S. Supreme Court in 1869, ruled that Texas did NOT have a right to secede, in the case, Texas v. White, 74 U.S. 700 (second link for full text from Justia; link on the name of the case is to the Wikipedia article about the case for an explanation).

But all that is historical background to say that secession is not just very current events. Because there has been a flurry of petitions on the Whitehouse.gov website, President Obama started a link for petitions to allow an interactive way for the American people to contact the Whitehouse. The commitment has been that there would be a prompt response to any petition gathering more than 25,000 signatures. Since President Obama's re-election, there has been a flurry of petitions from citizens of various states asking to secede. This is, if you think about it, a totally ridiculous and non-legal way to go about beginning a secession movement. It's not really about secession, but about dissatisfaction. There are a number of ludicrous topics. If you sort the petitions by government reform, you will pop up the secession petitions as well as in-your-face challenges asking the President to step down from office for no reason, to allow examination of his birth certificate (again!) as well as his college and university records. But the numbers of people signing the state secession petitions is interesting. They are not necessarily citizens of the state involved.

Here is a fascinating map created by a professor and class at the University of North Carolina examining the signatures on the petitions and calculating the percentages of the population for each state signing such petitions. The notes there say that the numbers seem to have peaked and not be growing much any more.

There are bloggers who assert that the petitions are purely racist and would not have happened were there not an African American man in the Whitehouse. While some of these petitions seem very ad hominem and personal, possibly racially motivated, it's quite clear that there were secession movements before President Obama was elected, and that they crop up for a wide variety of reasons. Some are quite openly racially motivated, and not aimed at President Obama, such as the Northwest Front which plans to take Oregon, Idaho, Washington state and part of Montana to create a homeland for white or Aryan people to live in. It's hard to tell from their website when this movement began, but I presume it predates Obama's presidency. On the other hand, the Conch Republic began when the state police blockaded the single road that connected the Florida keys with the main body of Florida. The Vermont Second Republic seems to have sprung from the trauma of 9/11. There is a very nice survey in the Wikipedia article on Secession Movements in the United States on more secession movements than you can shake a stick at.

The flag with the cut-up snake is from Revolutionary War era American, with a slogan from Benjamin Franklin: Join or Die. Still a pretty good motto. Courtesy of Wiki Commons. http://en.wikipedia.org/wiki/Join,_or_Die

New threat to the Internet: ITU

T

he ITU is the International Telecommunications Union. It is quite an old organization: telegraph old -- ITU originally stood for International Telegraph Union when it was founded in 1865 in Paris. It has always been an international organization for cooperation around communications networks. Now it helps allocate radio spectrums, telecommunications satellite orbits, and set international standards for telecommunications so that networks can communicate from one nation to another. They also help developing nations set up their networks.

However, they are preparing to meet this December and vote on a number of proposals that would affect the governance of the Internet. This organization gives each member country one vote, and is non-transparent. No information is shared with the public, no open discussions ahead of votes. The representatives vote and then the results are announced.

Leaks have revealed several very disturbing issues that the ITU plans to vote on this December at their meeting. According to the video at the link in the previous paragraph, they will be discussing such issues as:

* reviewing and revising International Telecommunication Regulations (ITRs)...

* Including ones that allow broadening of reasons for cutting off Internet access (remember Egypt during the Arab Spring?);

* Allowing governments more power to monitor Internet traffic and block it with a heavier hand by defining spam more broadly;

* Rules to charge online content providers to reach the users, and allow the government to cut off those who don't pay.

Visit this link to join the list of those who are protesting to their government.

The image of the laptop in chains is courtesy of the U.S. Small Business Administration at http://content.govdelivery.com/bulletins/gd/USSBA-38f368

Cambodian War Crimes Tribunal

Earlier on this blog, Marie posted about the War Crimes Tribunal in Cambodia (8/4/09, 8/10/09, 12/17/09 and 7/26/10). Last Sunday's Boston Globe had an interesting essay about the United States' involvement in the tribunal, as a form of diplomacy, of competing against the massive investment that China is making in Cambodia by exporting Western values of justice and due process. By Peter Canellos, the essay quotes David Scheffer, the former US ambassador for war crimes in the Clinton administration, identified by Canellos as a key instigator of the court.

When you have egregious crimes of this character, they sweep across society. Achieving the rule of law is a means of addressing the challenges of corruption, and land rights, and human rights. With Cambodia, sustaining a court of this character has an effect on the entire society as it confronts other challenges.

It’s one of the cheapest ways of projecting American values in the world.

Canellos, the Globe's editorial page editor, visited Cambodia for onsite investigative reporting on this story, according to the article and Globe website. He also spoke with He Kranh Tony, a Cambodian official who is the main liaison between the government and the Court, who told him

After 1979, there were less than 10 people who were judges and lawyers in the whole country. There is [still] no real administration in the national courts. ... [For average Cambodians and jurists alike, the court has been a revelation.] They see that we are doing it properly. They see the due process. They see the judges. They see the defense.

You can visit the home page for the Cambodian war crimes tribunal, which is a very rich site. There are videotaped recordings of the witnesses being questioned in the court. The testimony is delivered in English through the voice of translators, but one has the impression that even in Khmer, the answers are very dispassionate. But the content of the answers are blood chilling, telling about whole villages being uprooted and moved to other villages where there was no food or housing for them. Minority populations were treated particularly harshly. The rationale for all this was that these people had "betrayed the revolution." Of course, that is what happened to all those judges and lawyers as well. Besides the videotaped proceedings of the tribunal, there are lots of links to news stories from around the world, reports from ECCC and NGOs, materials from the prosecution background and history on the tribunal and commentary.

Just by coincidence there was a recent story in the Boston Globe about a children's book about the Cambodian genocide, told as the biography of Arn Chorn-Pond, a child survivor who was eventually adopted by a family in Massachusetts. Arn Chorn's family were musicians, another class which was systematically destroyed by the Khmer Rouge. Ironically, it was Arn's ability to play the flute which saved him. But very few people in Cambodia today know anything about music, and one of his projects is to teach Cambodian children to play instruments and to sing.

The Khmer Rouge killed thousands of their countrymen, but I had never considered until these two things came together for me how they had destroyed the culture of their country. It was a great deal like the "Great Leap Forward" of the Cultural Revolution in China, but I think it was more devastating in Cambodia. They managed to kill far more of the educated elite, and artists of all sorts, apparently. The carriers of cultural values of all sorts. How chillingly efficient.

The image of a Cambodian man visiting Tuol Sleng (formerly S-21 prison) Museum in Phnom Penh is courtesy of the Herald Sun of Australia, http://www.heraldsun.com.au/news/breaking-news/australia-donates-to-khmer-rouge-trials/story-e6frf7jx-1226310760248

The Poison Twinkie negotiating strategy - Hostess takes a dive

Hostess, maker of iconic childhood treats like the Twinkie, has decided to dissolve rather than negotiate further with striking union workers!

(Update from Betsy. The Bankruptcy judge in the Southern District of NY has required Hostess to mediate with the Bakers union, which is the union which is still striking against Hostess). Also, even if Hostess continues with the bankruptcy, it appears that there are many buyers interested in purchasing their product line. So those who have been purchasing Twinkies for $500 and more may end up with buyer's regret in more ways than one!

Justice Sotomayor Comes to Town

It's not every day that a law school plays host to an Associate Justice of the United States Supreme Court, and this is why Pace Law School pulled out all the stops for Justice Sonia Sotomayor today. Fresh from her appearance on Sesame Street on November 9, Justice Sotomayor spent the day at Pace, meeting with students, faculty, staff, and other members of our community.  Justice Sotomayor had a lengthy question-and-answer session with over 200 students this morning in the moot court room (there were a number of other locations on campus where the event was being broadcast).  All of the students' questions had been prescreened, and certain subjects were off limits, including anything to do with cases currently before the Court and cases that might come before the Court.  This is an understandable restriction which most Justices seem to follow.  When asked about her judicial philosophy, she said she really didn't have one; however, she believes strongly in process, that everyone has the right to be heard. 

During lunch with the faculty, Justice Sotomayor answered more questions, but our questions had not been prescreened.  She told us that her day is spent "Researching, thinking, and writing," and lamented the poor writing skills she sees in many attorneys; this is not much of a problem at the Supreme Court because the attorneys who appear before the Court tend to be a small, elite group, but it was an issue at the Second Circuit.  She said law schools need to do a much better job training students in legal writing, and should focus less on teaching the "law and" curriculum and more on teaching the law and practical skills.  One writing course is not enough; students need as many opportunities to write and to get feedback on their writing as possible.  I don't know anyone who would disagree with that statement; the problem is, of course, that working with students on writing is labor intensive and can usually not be done effectively through large-enrollment courses.  I was also interested to hear her say in response to a question about the future of legal education that no one school can be great at everything.  Law schools should collaborate to diversify their curricula rather than build new programs; schools with specialized curricula should team up with schools that specialize in other areas to enrich both schools' course offerings for the lowest cost.  This is hardly a new idea, but it is one whose time may have come.

Turning to the Court, when asked about the proliferation of concurrences in recent terms of the Court, Justice Sotomayor stated that they resulted from the concurring judges' sense that while the correct result had been reached, the majority had not considered other approaches to achieving the same result.  It is important for the concurring judges to put their views on the record, for the benefit of their colleagues and the public.  When asked about the length of today's Supreme Court opinions, Justice Sotomayor agreed that they tend to be longer than those of the past, but she pointed out that earlier opinions were often marked by a paucity of analysis which makes it difficult for later Justices to interpret them and use them as precedent.  In response to a question about the value of legal scholarship, specifically law review articles, which Chief Justice John Roberts has criticized, Justice Sotomayor said she disagreed; the briefs she receives often include references to law review articles, but the most useful are those that trace the growth and development of an area of the law, in other words, the traditional law review article.  The farther afield legal scholarship goes, the less useful it is to sitting judges who must decide real cases. 

Everyone who met with Justice Sotomayor noted her warmth, intelligence, and engagement with those to whom she spoke.  These are the same qualities the Pace community noted during her visit in 2003 when she was our commencement speaker.  Her goal today was to get to know Pace Law School better, and I think she did. 

Beyond Honor

The Boston Globe has a great story today (Nov. 12, 2012) about Massachusetts’ programs to support veterans. Apparently, the Commonwealth has become a model in this regard. The article appears in the print version of the paper on pages B1 and B3, titled “Helping Veterans on their terms,” by James Sullivan. Online, the title is “Mass. Agency reaches out to help veterans; Innovations called model for US.”

The Massachusetts model involves serious outreach efforts, spearheaded entirely by veterans on staff. The services overlap, so they try not to have gaps for vets to fall into. The programs are very proactive. And it seems to be working in a very positive way to reach veterans where they need the services most. They find them on the streets, and homeless shelters. These folks don’t just sit in offices waiting for people to come and apply for services.

I am a peace activist myself. I wish we had never gone into Iraq or Afghanistan. But I absolutely honor the service ethos of the men and women in the military, and the sacrifices they make, and that their families make when they serve. My older brother is a vet, my nephew from my sister is in the military now. My brother works for the Veterans Administration, treating veterans’ mental problems. I try to listen and understand.

We owe veterans a huge debt, of gratitude, and honor. We also owe it to heal the wounds they return with. They often sign up as very young people, full of idealism, or at least naiveté. They are trained to kill other human beings, and put into situations of appalling brutality and violence. We should be prepared for some damage when they return, and provide the support network they need. I was so pleased to read about the Massachusetts program!

AALL Bylaw -- don't forget to vote!

If you haven't voted on the bylaw change, do not forget to put in your 2 cents!

VOTE!

Of course there is that other tiny little election coming up, too.

Collateral Consequences of Criminal Convictions & Pleas

OK, I will admit that this website belongs to my sister, who was a prosecutor in Austin, TX for more than 20 years. She is now starting up a defense practice, (allowing her academic sister to watch the process). I am pleased, though, because I can really recommend this page from her website. There are not many folks out there talking about collateral consequences of criminal convictions or pleas. This page makes it all easily accessible to layfolks, but does a nice, complete job, including immigration effects. (use the menu on the lower part of the web pages at this site, not the top menu. There is more good stuff here besides just collateral consequences, but I think that's the unique jewel:

http://bastropcriminalattorney.com/collateral-consequences-of-a-conviction/

Folks like me who are watching how small firms are negotiating the new realities of moving practice to the web will be interested to see this site and others designed by James Publishing who has a lower-cost cookie-cutter legal website design practice. They will provide content for the firms, but allow a firm to provide their own unique content, which is what my sister's firm has done. I have advised her to periodically monitor the Internet to be sure other sites are not ripping off her content.

New Lawyers' Advice on Packaging Themselves for Public Service Jobs

For law students and recent graduates who may wish to look for work in public service areas, Prof. David Yamada has a classic article full of advice on packaging oneself for this field. Available on SSRN:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2165006

Windsor v. United States overturns DOMA in 2nd Circuit

The Second Circuit Court of Appeals on Oct. 18, 2012 upheld a District Court opinion finding the federal Defense of Marriage Act (DOMA) unconstitutional. The decision in Windsor v. United States, follows an earlier decision striking down DOMA in the First Circuit, Massachusetts v. Health and Human Services Department. There are also two District Court decisions in the First Circuit, Gill v. Office of Personnel Management and Pedersen et al. v. Office of Personnel Management et al. which also challenge DOMA.(See GLAD.org's page of documents on these cases). The ACLU helps represent the plaintiff in Windsor, and provides a very complete page of documents for that case here.

The thing that is building excitement about the growing number of challenges to DOMA is the certainty that the Supreme Court will pick up one or another of these cases on appeal. The increasing number of jurisdictions that now have different rules for treatment of citizens because of these decisions puts pressure on the Court to resolve the differences.

Here is a NY Times article that includes a nice factual summary of the Windsor case. Because the federal government does not recognize same sex marriages, Ms. Windsor's inheritance from her deceased spouse was taxed at a much higher rate than it would have been had she been in a hetero-sexual marriage. But Ms. Windsor's statements make it clear that, for her, the law suit is much more personal than the money involved. She says she finds it

so offensive that this woman that I lived with and adored, and had loved me, that they treated her as if she was a stranger in my life.

The article, of course analyzes the possible outcomes of a Supreme Court review of same sex marriage and challenges to the Defense of Marriage Act. The Windsor decision is interesting because it raises the standard of review to heightened scrutiny, and finds that the DOMA fails to pass this review. The standard of review, of course is set according to the history of discrimination of the class, which the Windsor court described as "quasi-suspect." The panel found the Defense of Marriage Act unconstitutional for violating equal protection.

Garrow's Law, Revisited

I previously blogged about a terrific BBC television series, Garrow's Law, which is available in DVD format from Acorn.  Garrow's Law presents a somewhat fictionalized version of the life and times of William Garrow, the crusading barrister who helped to create the adversary trial system in England.  I just saw season 3 of the series, which is to be its last.  The first episode of series 3 focuses on a man who attempted to assassinate King George III.  Is the defendant insane?  If so, how does that affect his legal responsibility for his acknowledged acts?  How should the state inflict punishment in such a situation?  In another episode, Garrow essentially put the British colonial empire on trial; he exposed its human-rights abuses in a manner that profoundly embarrassed some of the most powerful members of the English establishment. 

The backdrop to Garrow's court-room triumphs is his troubled domestic life, which is shared with Lady Sarah Hill, the estranged wife of a vengeful aristocratic and would-be politician who refuses to allow Lady Sarah to have custody of their child, even though he believes the child is actually Garrow's.  It seems that there are no lengths to which Sir Arthur Hill will not go to make Lady Sarah suffer.  At one point, he says something along the lines of  "My only pleasure lies in inflicting pain on her."  The law at the time gave fathers absolute rights over their children, and Lady Sarah is seen over and over again trying to win custody of baby Samuel, all to no avail.  Eventually, I ran out of patience with Lady Sarah and her suffering and more or less stopped paying attention to her.  The trial scenes, however, remained fascinating throughout series 3 and made for compelling television.  Garrow's Law is highly recommended!  I'm going to miss it.

The Power of We: Pink, Networking, Mentoring! Blog Action Day 2012

Way back in 2006, I wrote a series of blog posts here, here, here, here and here that used the color pink as a way to think about so-called “feminine” aspects of the workplace and law school. I talked about my own experience as a child, law student, young lawyer and then law librarian. My reaction to the heavily male, patriarchal law school culture, like that of many young women, was to join up as one of the guys, even when I was pregnant! It made for a very alienated young law student, lawyer and law librarian – alienated from myself! And my guess is that it’s not just women, but also anybody who has an emotional, expressive side to their personality that gets suppressed in the traditional law school culture! So many of us are round pegs trying to fit into those square holes!

One important part of repairing the brokenness we experience in the law school culture is reaching out, and building an awareness that there is WE. Law students need to know that they are not alone, and so do young (and older!) lawyers and librarians who may be struggling with identity and simple expression of their selves. Times have changed since I went to law school – there are many organizations at most schools and later:

By gender and sexual orientation and identification:
National Womens’ Law Students Association (NWLSA) (these seem to be organized by school, for example at my school, Suffolk

National Women Law Students’ Organization (apparently affiliated with Ms JD blog)



National LGBT Bar Association Law Student Congress


By Ethnicity:
National Black Law Students Association

National Latin American Law Student Association

Hispanic Law Student Association (seems to be school affiliated)

Asian-Pacific American Law Student Association

National Native American Law Student Association

By Religious Affiliation:
(I don’t find any national association for Buddhists, B’hai’s, Hindus or Sikhs though we have small groups for law students at our school)

Catholic Law Students Association

Christian Legal Society (a more fundamentalist flavor than some sects)

National Jewish Law Students Association (Affiliated with Hillel -- does that explain everything?)


National Muslim Law Students Association

These student organizations raise money for causes, they offer advice and assistance for members, as well as mentoring and job networking. They are powerful organizations for students to empower themselves and to find a voice in an intimidating world. One example might be found here, in a letter to Attorney General Eric Holder, requesting him to investigate the New York City police’s surveillance of Muslim members of the community. Among a long and diverse list of signing organization is the National Muslim Law Students Association and Muslim Law Students Association – New York University School of Law.

You don't have to think pink to see how much more powerful we are when we stand together for whatever we are, we believe in, or hope for. But I think it helps.

A New Role for Professor Mann

If elected, Professor Elizabeth Warren would be the first female Senator from Massachusetts.  Her husband, Professor Bruce Mann, who also teaches at Harvard Law School, has been trying out a new role during the campaign--Elizabeth Warren's husband.  A recent article describes Professor Mann's contributions to the campaign and discusses the role of a candidate's husband, which is "less well-defined than that of a wife."  No one seems to know for sure what the expectations should be, or even what to call the husbands of successful female candidates.  In Alaska, for instance, Todd Palin was dubbed the "First Dude," which I always found to be lacking in dignity, but I guess it worked for the Palins, who were also lacking in dignity.

Professor Mann has taken a more low-key role than Gail Huff, Senator Scott Brown's wife and a well-known television reporter, who is campaigning full time this fall for her husband.  Professor Mann does events on his own, but they are usually not advertised to members of the press.  He sees "his role as helping people make the personal connection they need to support Warren."   Professor Mann is a highly respected legal historian.  His latest book, Republic of Debtors:  Bankruptcy in the Age of American Independence, broke new ground in the history of debt in the United States in its analysis of how debt was transformed in the eyes of society from moral failure into economic failure.  This transformation led to the Bankruptcy Act of 1800, the first federal bankruptcy statute, and eventually to today's "fresh start" for debtors. 

Thanks to Pace Law School student Kyle T. Pero, a native of Massachusetts, for pointing out this article to me.

ReadCube offers New Per-Article Access for Expensive Journals

There is an article in the business section of today's Boston Globe about a new start up called Labtiva, and the product is ReadCube Access. Started by two graduate students at Harvard, the service currently provides access to the Nature journal suite of titles. So far, University of Utah is the only partner, but they are rolling it out in the chemistry department this fall to test it.

There is some concern among the administrators at Utah, according to the article, about the pricing of the program and how it may eat up library budgets. The arrangement is like ITunes, in that DRM will allow the individual subscriber only to access the individual article. The article cannot be printed and cannot be shared with others. Articles can be accessed on a limited time basis for $6 or less (depending on the journal), or purchased for $11 or less, depending on the journal. Rick Anderson, interim dean of University of Utah's J. Willard Marriott Library is quoted,

Our journal collection is very, very lean, ... If we opened something like this up across the campus, you’d be taking a very big risk that your entire materials budget would get blown out in a month, ...

Anderson goes on to analyze a potential danger, not only to university budgets, but to the publishing industry in the model. He also compares the model to ITunes, and draws a parallel to the music industry's experiments with music delivery and DRM. Currently, libraries must purchase an entire journal's worth of articles to obtain the single article that is exciting the research community. That will change with the ReadCube Access model, which would address that market inefficiency. But it would drastically change the financial picture for publishers, who will face the same market upheaval currently shaking the music industry.

There is also a brief mention of the Open Access movement, though it is dismissed as a fringe movement. (Directory of Open Access Journals)

AALL Bylaw - Why Are they rushing?

A NO vote will force the Executive Board to move at a more deliberate speed and allow for a more inclusive conversation with the members – US! The FAQ claims that this change is driven by the conversation that they heard from a small selection of members at the Futures Summit as well as claimed demographic changes. When we asked for figures about the changes, the numbers compared the total membership seemed surprisingly low for a change of this magnitude in the definition of membership. The people pushing for this change need to provide the figures that underlie their arguments, and provide them in print for the entire membership of AALL, with time for people to consider rationally whether they want to vote for a Bylaw change that will redefine this organization from serving libraries to serving the entire legal information industry.

With all due respect to Ken Hirsh, I cannot help but get suspicious when a salesperson or an organization wants to rush me into a decision. It just sends up the old antennae. Why is there a need for speed on this decision? We were actually assured by several board members that they believed that this would be a year-long process. Obviously, they were as surprised as I was by the fast-track this bylaw change has been put on.

WHY?

AALL Bylaw Debate & Voting

Dear OOTJ readers,
There is some debate bubbling along over at Ken Hirsh's Ispso Facto blog, if you want to see some discussion.

DO NOT FORGET TO VOTE!

You should have received your pin number if you are a AALL member.

AALL Bylaws!

Dear OOTJ readers,
I am posting this here on behalf of several colleagues. This will appear a number of other places as well, in hopes of beginning a more meaningful dialog or at least thought process, just in time for the vote on the AALL bylaws change.
Yours,
Betsy McKenzie


Dear Colleagues,

As members of our Association, you will soon be asked to cast your vote on the issue of the Proposed 2012 Amendments to AALL Bylaws. The proposal seeks to eliminate the category of Associate Member and allow “any person who is interested in the objectives of the Association” as full Active Members. The language that will be removed from the present Bylaws, should we vote to adopt this proposal, is highlighted below:

(1) Active: Any person who is interested in the objectives of the Association and works with legal information in a library or information center or provides library services on an independent contract basis.


The reasons for this proposal are presented in the Executive Board’s recent FAQ (frequently asked questions (FAQs), and the main purpose for the amendment hinges on a desire to “align member categories with the changes that have occurred in the legal arena due to economic conditions and evolving legal information demands.” While the goal to make Active Membership possible for former librarians who leave traditional law library environments is admirable, we feel this proposal is overly broad. In most cases, employers pay the dues of members. Vendor employees of profit-making entities that are regularly engaged in business transactions with librarian members, are primarily accountable to the entities’ respective corporate authorities and shareholders, thereby not being as freely “interested in the objectives of the Association.”

This change would make it possible for vendor-members to serve on the Executive Board.

As stated in our Bylaws:

II Object:

The American Association of Law Libraries exists to promote and enhance the value of law libraries to the public, the legal community, and the world, to foster the profession of law librarianship, and to provide leadership in the field of legal information and information policy, in recognition that the availability of legal information to all people is a necessary requirement for a just and democratic society.

Concerns about vendor participation on the Executive Board level include:

• According to an article published in AALL Spectrum, April 1999, (http://www.aallnet.org/main-menu/Publications/spectrum/Archives/Vol-3/pub_sp9904/pub-sp9904-bylaws.pdf) one of the reasons to change our Bylaws to a two-tiered membership structure was to “expand the category of ‘member’ to include others not working in law libraries.” Because of a membership survey conducted during the Bylaws change in membership status, “the right to hold elective office on the Executive Board is reserved for the new category of ‘member,’ which includes active and retired members. This was the one privilege members of the Executive Board heard from members that should be excluded in an expansion of rights and members.”

• At this critical time in the history of publishing, and the rapidly evolving shape and nature of information management, it is imperative that we, as an organization in support of curators of legal information, represent our needs and goals, without conflict of interests or possible impediments to our mission.
• If vendor members served on the Executive Board they may be able to influence the outcome of our primary objective, as stated in our Bylaws (above).

• It may appear that opposition to the Bylaws reflects an unreasonable, distrustful fear that vendors will “take over” the Association. We embrace and seek many levels of partnership in our future endeavors. The overwhelming concern is the inherently conflicting interests and goals that arise even in the day-to-day work of the Association. While there is a conflicts policy in place for Executive Board member activities, vendor membership raises the possibility of more frequent conflicts of interest. As part of the Bylaws change proposal, The Association would benefit from a discussion of how the current conflicts policy has been applied and how it would be applied in this new context.

• Approval of the Bylaws as proposed would necessitate that the organization articulate whether it is representing libraries or the larger legal information industry. Partnership is distinct from and possible without full or joint membership. Traditionally, the organization has been expected to act as a voice for law libraries and those working for them. Are we changing the makeup of the organization? Are we removing the advocacy role? Who will speak for consumers of legal information if not law librarians?

• This change may result in an inherent unfairness to smaller publishers. Larger and more affluent publishers could enroll more voting members into the organization exerting more influence through sheer voting power and creating the potential to fill leadership roles.

• The desire to expand the definition of Member beyond traditional librarian roles is admirable, but could be addressed in alternative ways. For example, the Bylaws could be changed to make an exception for Active Members for all vendor members who work for entities that are non-profit or funded primarily by membership dues such as NELLCO, CALI, or LLMC.

As stewards of the dissemination and availability of legal information to all people we should hew to our stated objectives. We ask you to consider carefully the ramifications this change in the Bylaws will have on our Association and future as law librarians and urge you to vote against it as currently drafted. Your NO vote will make it necessary for the Executive Board to devise another, less far-reaching, plan to engage the small number of former librarians who are now in other roles. The symbolic significance of this change—which we think may signify a shift in our Association’s mission—should not go unheeded.

Thank you for your consideration. We hope this will engender a productive dialog among people on all sides of this issue.

Caroline Walters, Suffolk University Law Library
Michelle Pearse, Harvard Law Library
Stephanie Edwards, Roger Williams School of Law Library
Brian Striman, University of Nebraska College of Law Library

Dystopian views

I've been having a chat with my brother-in-law via e-mail. He used to be an EMT til he blew out his back -- twice. He finally had to quit, though. But he still remembers with a good deal of outrage the things he saw on that job. And I guess I remember the things I saw at my job as a legal services lawyer. It's kind of funny how close we are on so many details and yet we wind up on opposite sides in the final analysis. I am reminded of the recent research that seems to show that people's tendency toward liberal or conservative (though neither of us in quite so neat in our political slotting) seems to be pretty much biologically based, not a product of rationality or philosophy.

At any rate, John thinks it would be an excellent solution to the problem of the "welfare lifestyle" to link eligibility for benefits to a system that both tests for drugs and is tied to a job application tracking system. If somebody applied for a job, was offered the job and turned it down, they would be ineligible for benefits. If they tested positive for drugs, they would be ineligible, of course.

I can see right away how this would twist in the real world. Number one, it does not touch alcoholism. Number two, people would immediately begin learning how to "game" the drug testing, and paying each other to take the urine and blood tests for them. There would be this whole black market for test takers, I imagine if the system were not tied to fingerprints right away.

But what are you going to do to support the children of the drug-addicted parent? Are you just going to let them wander the streets begging for food? This is where the whole plan runs off the rails. Because you have the innocent children squeezed in all this. So you get programs like food stamps and WIC, Temporary Assistance to Needy Families, etc.

The other thing that just grabbed me was the thought about what if your turned down a job offer, and that blocked you from all welfare programs? If it was just set up like that, with no nuances, it could be such a cruel system that could be so abused by employers! If there were really dangerous jobs, like a coal mine that had no safety precautions, totally unregulated -- you'd be crazy to accept the job -- a death sentence! And yet, if there were no other jobs open to you in your area, and you turned down that job, you would be totally screwed in terms of welfare benefits for you and your family! Talk about a captive labor market!

You don't think business would take advantage of a change in the law like that?

Image of 1984 cover art from http://spacekimono.wordpress.com/about/ blog post about author George Orwell.

Hell No! I won't dye!

For some years now, I have been noticing colleagues at my law school gradually darkening up their graying hair. Grecian formula? Whatever!

I had thought I was in the last stronghold where it did not matter, or in fact, might be a GOOD thing to be GRAY! I watched my younger sister struggle with dye. I listened to people moan about how once you started dying, you were trapped because of the ugly problem of the roots growing out gray with the dark ends. I really, really felt so lucky to be in academe where there just wouldn't be any of those commercial pressures to dye my hair.

So, why am I seeing all my colleagues dying their hair? Men as well as women?

Ageism is rearing its ugly head here, I fear.

There has been a problem with deadwood on the faculty. And then sloppy thinking has begun to equate deadwood with age. This is patently not the case. We have several older faculty who are paragons of ultra-high quality and output in all three: teaching, scholarship and service. And, like a bell curve, we have a number who are quite good quality. But the perception in some quarters has been that it is only younger faculty who are teaching and doing scholarship!

I also think that the murky politics of this place play into the mix, because Old Hands seem threatening to Current New Hands in some ways. It doesn't have to be that way, IMHO. So, old seems bad in that way, too, and that gets mixed up in people's thinking and then gets slopped into the mix of how everybody gets judged.

I am, by the standards of my school, a relative new-comer. I am, by the standards of the Social Security Administration, not near retirement.

And yet, I have a great deal of white and gray hair. I really like how it looks by the way. I would say my hair was silvery if it didn't sound twee. I am very fortunate in the way my hair has grown and the way it has come in gray. I have no intention of dying it, and I very much resent what is beginning to feel like pressure and prejudice.

If people were to be as judgmental about peoples' skin color as they are being about people's hair color, that would be racism. What is this about the pressure to color over all the gray in our hair?

I began to think about this when I had a very interesting conversation with a student who had an internship in Cambodia. He ended up having a conversation with the Justices of the Cambodian Supreme Court. I asked if they wore wigs. He said no. That the way they denoted their wisdom in that culture was that they had moles with hairs growing out of them. And they just let them grow really, really long, and that was a sign of how old and therefore how much wisdom they had accumulated.

I thought "Wow!" Would that not be a more relaxed culture to age in?! Wouldn't that be more accepting and actually really honor age as accumulating wisdom!?! I do think I am wiser now than I was at 20, 30 and 40. My reflexes are slower. But I know a lot more about how the world turns. I know a lot more people, too. I have contacts all over the law library world! That should be worth something to my law school as well.

At any rate, I will not dye my hair.

Trawling The Invisible Web

Here is something I try to teach my students about searching the Internet. Librarians know that:

* It's not all on the Internet. AND

* You can't even find everything on the Internet with search engines.

Google (and Bing, Yahoo, etc.) can't search things that are in databases or tables on websites. That's a LOT of valuable data! There are websites that don't allow crawling. This vast trove of really rich stuff is called the Invisible Web.

Here are a few of my favorite tips for searching those depths:

1. Think about organizations that might generate reports, maps, statistics on your area. Governmental, NGOs, not-for-profit organizations all generate huge amounts of very worthwhile data! Occasionally, it may be biased, but even so, if you keep the bias in mind, it can be worth using the information, warily!

1.a. To locate organizations in your topic area, a good method is to go to Wikipedia, and search for a keyword or N.G.O.

"environmentalism" or

"Education"

"non-governmental organization" (pulls up a list of search results)

all will pull up at least one article, and sometimes a list of articles. There were always choices when I selected the link I chose for this blog post, so you may want to enter the term and search rather than simply link. Wikipedia's strength is the list of links and references that you can use to locate organizations and websites. The list may help you locate important organizations in the field that you would never have thought of or perhaps have heard of, without the links.

You should use your judgement about the quality of the website. Look for some link "ABOUT US," or something like that. Read about the organization, its mission and who founded it. Sometimes you will discover wonderful organizations that you never heard of that are doing important work and generating fabulous, reliable information while they are doing it. For U.S.-based organizations, you can look at the materials they file with the I.R.S. to support tax-exempt claims, which may help you decide how legitimate they are. For international and foreign organizations, you wont' have that sort of form to rely upon.

So, for instance, using this technique, one locates at the bottom of the Environmentalism article a list of Environmental Organizations and Conferences. One locates a list there of many United States-based groups, in addition to many United Nations links. One can flip through these fairly quickly, looking always for signs that there are reports, publications or a database on the site. Many of the organizations are set up solely as advocacy groups and so the websites simply trumpet the dangers, the organizations' claims of results and solicit donations. The researcher can skip over these. By skipping down, one finds the Wildlife Conservation International, and looking at that website, one notices a link to ICCF, International Conservation Caucus Foundation, a U.S.-based, bi-partisan foundation that lobbies the Congress on behalf of conservation issues. It has what looks like some excellent briefing material that it produces to give to Congress. I recognize the logos of the Smithsonian Institution, and the Audubon Society among others as sponsor/authors of some of these materials. It's an interesting and deep looking collection.

2. Do look for governmental information. Don't forget to look at the URL extensions, for that .gov to show you it's a government agency of some sort. The U.S. federal government and many state governments publish helpful materials. There are foreign government materials that can be helpful as well. Thus, the U.S. Federal Trade Commission, to pull an agency out of the hat, at this point in time, provides a good amount of primary law on the website. Look a the tabs along the top of the page for an easy way to navigate the site. I chose the General Counsel's office, to show simply because it includes amicus briefs, statutes, policy hearings, and more. Here is a web page with the British Foreign Office, their "Working For Us" page where you can find out about jobs there.

3. Multi-national, consortial, and non-governmental bodies like the United Nations (and all of its many, many subsidiary organizations, which often generate databases, reports, maps, and wonderful data). Here is their Environmental Programme page for Climate Change. Examine the many tabs and then the index at the bottom. They have so many links there, some of which lead to publications, databanks and rich statistics. You have to take your time to explore.

4. There are lots of wonderful quasi-governmental bodies, like the National Conference of State Legislatures, a bi-partisan N.G.O to serve the legislators and their staffs of all 50 states. They help set up agreements between states, do research on shared issues, as well, so there is a lot of information at this website.

5. And do not overlook the huge variety of not-for-profit and other organizations. From the National Rifle Association, with "News and Politics," focused on the Second Amendment, and offering their analysis and commentary, to the National College for DUI Defense (I don't think this is not-for-profit) which trains defense lawyers, and provides a very handy list of the DUI laws state-by-state. Sometimes you stumble over these things. I found the DUI college through Wikipedia again, preparing a worksheet for students!

The image is an underwater cave, courtesy of a scuba diving website: http://www.dailyscubadiving.com/deep-diving-an-introduction/

Eagle Scouts Protest BSA Policy Banning Gays

The Boy Scouts of America announced on July 17, 2012 that the organization would continue its policy of excluding individuals - both youth Scouts and parent leaders - who identify as gay or lesbian. Here’s the statement from the BSA Chief Executive:

“The vast majority of the parents of youth we serve value their right to address issues of same-sex orientation within their family, with spiritual advisers, and at the appropriate time and in the right setting,” said Bob Mazzuca, Chief Scout Executive, Boy Scouts of America. “While a majority of our membership agrees with our policy, we fully understand that no single policy will accommodate the many diverse views among our membership or society.”Link to full press release

The Boston Globe on August 27, 2012 ran an in-depth story about Eagle Scouts protesting the Boy Scouts of America policy banning gays from the organization. Many Eagle scouts are returning their hard-won Eagle Scout badges. But several are organizing others using the Internet and Facebook to take more useful steps to protest the policy. The step of returning a badge is remarkable and heartfelt gesture -- my eldest brother is an Eagle Scout and I know how hard it is to gain that title. A scout must earn 21 merit badges and then lead a major community service project (recruiting, motivating and directing a number of other volunteers in the process). I have received one C.V. with Eagle Scout listed as an achievement and it certainly made me sit up and take notice. I am sure it is a qualification that makes a difference in a guy's resume for any job.

The scouts who return the badge in protest do so because they feel the Boy Scouts of America have betrayed the values enshrined in the badge: honesty, trustworthiness and tolerance, top among them. According to the Globe article,

Jerry Hegarty, the scoutmaster in Reading, said that many of his Scouts do not support the policy on gays.

“It’s at odds with some of the points of the Scout oath,” he said, and, by sending back their awards, Eagle Scouts are “exposing an archaic perspective on certain policies.”

He added: “I’m not disappointed in them. It’s to be applauded.”

Leo A.P. Giannini, who became an Eagle Scout with Troop 1 in Pittsfield in 2005, called the policy a “serious contradiction” of Scout teachings. (snip) Another scout, Bill Thomas, who became an Eagle Scout in 2003 with Troop 702 in Reading, added: “The first point of the Scout oath is “Trustworthy” and they’re not allowing people to be open and true to themselves and true to others.”

Giannini and Eagle Scout and activist Zach Wahls have created a website, Scouts for Equality, where people can share videos, sign a petition and donate. This also links to Change. org. More than 475,000 people have signed two different petitions on the site. One is a petition asking BSA to allow the Board to vote on whether they want to end the ban on gay scouts and leaders. That petition has garnered nearly 150,000 signatures The other petition, by far the most popular, has received 328, 725 signatures as of 5:30 PM EST today, and requests the BSA to reinstate a cub scout leader who was removed for being openly gay. This was Jennifer Tyrrell, a den mother from Ohio.

Many of the scout protests have showed up on social media sites like Facebook. One scout went through the Gay and Lesbian Alliance Against Defamation GLAAD, which has begun collecting petitions. There is a Tumblr site, Eagle Scouts Returning Our Badges. You should read the open letter there to understand how at least one scout feels about the hypocrisy in this policy. There are 150 letters so far affiliated with this site. There are also links to 8 articles from around the U.S. covering Eagle Scouts protesting the policy by returning their badges, the oldest appears to be from July 25, 2012. Another is from the Atlantic. There is another social media site linking Eagle Scouts protesting the policy on Boing Boing. The letters are both brave and heart breaking. These guys learned how to be leaders and they are leading! It's hard to count, but at least 12 letters here from Eagle Scouts sending back their badges. And the best explanation of what it means to be an Eagle Scout.



The decoration for this page is from the Tumblr site, Roger Chenard's letter and returning memorabilia. http://eaglebadges.tumblr.com/page/2 (scroll down to Aug. 13, 2012). I have to admire the heck out of these guys' principles!

Next threat on the Internet Horizon: Watch the World Conference on International Telecommunications (WCIT)

The World Conference on International Telecommunications (WCIT)is a global treaty conference hosted by the International Telecommunication Union where the national governments will be coming together to discuss and modify the International Telecommunications Regulations (ITRs). The Conference will be held December 3 - 14, 2012 in Dubai.

The fear is that the ITU which are calling the meeting and planning the update of the regulations are less than transparent and are in the pocket of copyright/IP lobbyists.
(see blog posts at Electronic Frontier Foundation here, and here and from Milton Mueller for the Internet Governance Project here.

According to the EFF, the ITU is inimical to the Internet's model and ethos:

the International Telecommunications Union (ITU), a bureaucratic agency made up of 193 member states and corporate “associate” members that include some of the world’s most powerful telecommunications companies. When it hashes out treaties, the ITU epitomizes many of the worst traits of Internet policymaking -- it is an exclusive, government-directed process that is hostile to the distributed decision-making model that has fostered the Internet’s growth. (snip)

One dangerously problematic provision in the ITU Constitution, [f]or example, includes a State’s "right" to stop or suspend access to telecommunications services in order to address any communication that is dangerous to state security. In other words, the ITU Constitution permits “kill switches”— it allows governments to cut off the lifeline of communications networks in times of political protest, as the world witnessed states doing during the recent event in Egypt and Libya.

In an effort to remain relevant, the ITU has already issued a number of technical standards (ITU-T) and reports relating to various aspects of Internet policy, including on cybersecurity and cybercrime. However, these have not been binding, nor have they witnessed broad adoption or been elevated to the level of international regulations.

This coming December, the ITU’s underlying core regulatory instrument, the International Telecommunication Regulations (ITRs), will be revised at a gathering of global governments known as the World Conference on International Telecommunications (WCIT). This meeting is particularly significant because it’s the first time the treaty will be revised since the Internet was widely adopted. And given concerns about the problematic Internet-related provisions already in place, considerable attention has been directed at the ITU’s upcoming meeting in December, when its 193 member states intend to vote on whether to regulate certain aspects of Internet policy at an international level.

Just as with other international treaties or trade agreements, the International Telecommunication Regulations (ITRs) are legally binding on all the ITU’s Member States. This means that while it’s still up to lawmakers to decide whether, or to what extent, they should implement the updated ITRs into domestic law, democratic countries, including those with weak democratic institutions or a lack of robust advocacy organizations will be more likely to adopt any flawed provisions that make their way into the treaty.

This will bear watching and the folks who care about Internet growth and health being ready to lobby their legislator

Accessible Publicly Funded Research

The Chronicle of Higher Education, in a lengthy Hot Type article by Jennifer Howard, "A Push Grows Abroad for Open Access to Publicly Financed Research," covers a lot of interesting territory.

In Britain, the Finch Group Report recommended methods to broaden access to published research. David Willetts, British minister for universities and science announced that the government had accepted nearly all the Finch Group's recommendations. They then issued a Research Councils UK Policy on Access to Research Outputs. In exchange for publishers making individual articles available on Open Access (OA), the policy agrees that publishers should be able to charge extra money added onto subscriptions. The policy has been criticized by Stevan Harnad from the University of South Hampton (see keynote address), posted by the speaker at SPARC OA in Google Groups.

The European Union, on July 17, 2012, announced that it would make open access "a general principle of Horizon 2020" which is their framework for supporting research and innovation.

Denmark actually had their group of government councils make a statement strongly in favor or Open Access in June, 2012.

In Australia, Aidan Byrne, the new head of the Australian Research Council has spoken to newspapers claiming a "particular interest" in Open Access. This is a turn-around from his predecessor, Margaret Sheil, who "dismissed repeated calls to embrace open access," according to the Chronicle article.

The Chronicle article is definitely worth a read, but my link will probably require you have a subscription to read it online. If you want to find it in print, it is at page A10, of the Aug. 17, 2012 issue of the the Chronicle. It takes up just one newsprint page.

The Open Access logo on this page was featured at Eloquent Science blog in a post about Open Access.

ABA won't be accrediting non-US law schools

According to the Chronicle of Higher Education, the ABA has turned down a request from the Peking University School of Transnational Law for accreditation. In the process, they made a policy decision not to begin accrediting non-US law schools.

Vote Fraud! It's real -- but not the way the Republicans expected.

Whoopsy daisy! While there are all these stories going down about the new statutes various states are enacting the try to stamp out supposed voting fraud (see the Republican National Lawyers' website about voter fraud -- but be sure to read the little headlines carefully, because they are not scaring up much news about the sort of voter fraud these statutes are designed for).


Voter fraud involving individual voters seems to be pretty ephemeral and rare (just 10 cases in the last 12 years, nationwide).

Surprise!

There was vote fraud going on right here in my Massachusetts backyard.

Yup.

It's true. (Another story from local station WGBH) with more detail.

But this vote fraud shoe is on the other foot. An employee in the town clerk's office for the little town of East Longmeadow appears to have changed hundreds of residents' voter registrations from Democrat to Republican, without their request or any notice to them. Then, he issued forged ballots in these folks' names, trying to throw the Republican primary in his own favor.

This story link does not explain, but the whole sorry mess came out when the excellent staff for this clerk's opponent did some investigation after the primary ran. They were surprised at the outcome (though she did not lose, it was closer than expected). So they did some careful exploring, and found enough suspicious stuff to call in the Secretary of State. There were die-hard Democrats, members of the local party apparatus, whose voter registration was switched to Republican. When the individual voters were contacted, they had certainly not requested a switch and knew nothing about, and had not voted in the Republican primary.

Meantime, here is a helpful database about voter fraud put up and maintained by a large group of independent reporters, who have tried to verify the thousands of reports of voter fraud, and only found 10 that were actual, verifiable fraud by voters. They also include lots more great info, tracking cases, and allowing you to sort by type of fraud, or search by name.

Gary Trudeau, in his Doonesbury comic, has been riding this voter fraud/vote suppression activity hard, lampooning it and drawing devastating parallels to the Jim Crow laws we thought we had left behind with his character Jimmy Crow

.
Cartoon courtesy of Garry Trudeau's Doonesbury at Slate.com

Right of Publicity Laws

The Boston Globe had an intriguing article in the Ideas section today about a bill pending in the Massachusetts legislature enlarging our current right to publicity: "Life, the aftermarket: New laws to protect celebrities push the bounds of what part of a human life can be considered property." (I gave the title and subtitle from the print Globe. Online as you will see, the title is "Who owns you after you die? A Massachusetts bill opens a window onto a shifting corner of the law.) According to the article by Leon Neyfakh, comedian Bill Cosby, a Massachusetts resident, became concerned about the possibility that his likeness might be used after his death to promote products or ideas he would never approve of. He asked his state legislator to sponsor a bill that would allow celebrities and regular residents alike to protect their images, names, speech patterns and various "signature affectations" even after death. This is a form of Right to Publicity Law (the article does not say so), and so far 13 states have extended the right to control an individual's publicity to post-death, according to Neyfakh. His article focuses on the philosophical issues raised between the individual's interest in controlling use of his or her persona balanced against First Amendment free speech and creative rights of others.

There are some interesting, brief quotes from the Boston College law professor who studies death law, Ray Madoff, author of Immortality and the Law: The rising power of the American dead. There are a few, less investigated issues raised briefly in the article that I wish had gotten more discussion, but perhaps that is asking a bit much of a newspaper article. These are questions that raise the specter of owning the right to human beings, even a "persona," echoes most uncomfortably the law of slavery. The question, what are we giving up by allowing major figures to become monetized assets? The question, isn't there some public right to cultural heritage?

In Massachusetts, the current law on right of publicity is codified at MGLA Chapter 214, section 3A. Citizens Media Law Project has a very nice guide about it. The law in Massachusetts currently does not extend to posthumous control of publicity. There is a handy survey of state laws on Right of Publicity compiled by Prof. Jonathan Faber, an (adjunct?) professor* at Indiana University, Indianapolis and Bloomington. The statutes I checked on very nicely reproduce the text and citation, rather than referring the reader to various states' websites. However, be alert that the statutes and blog may not be more current than say, 2008, when Faber lists some amendments pending for the laws in California and Illinois. The link to the survey of statutes will also link to his very interesting blog that includes commentary, case notes, and some marketing stuff.

There are some interesting notes on efforts to pass a federal Right to Publicity law, at International Trademark Association, an article posted online from the Communications Lawyer, vol. 28, no. 2, Aug., 2011, "Why a Federal Right to Publicity Statute is Necessary," by Kevin L. Vick and Jean-Paul Jassy.

Just by happenstance, the Globe also carried a brief opinion piece in the same issue, "Fan Fiction has a Place in Literature," by Cathy Young. She discusses the right and independence of fan fiction authors to riff on beloved characters in previous works. It sort of ties into the Right to Publicity. In a way an author's rights over his or her characters are a bit like celebrities' or even their own interests in their protecting their personal image from exploitation by others. And yet, as the Young points out, Shakespeare used characters from earlier works of all sorts, like The Moorish Captain, an Italian novella, which became the kernel for Othello, according to this editorial. Most of the great plays by ancient Greek or Roman playwrights were based on characters fully lifted from their myths and legends. As with the earlier article, Young raises the question of what creative chains we apply to the future by locking up access to potential mother lodes of inspiration.

* Faber may also (or perhaps, more clearly?) be an associate in the law firm McNeely, Stephenson, Thopy and Harrold -- he is not listed as a faculty member at IU Indianapolis, and may be an adjunct at both IU Bloomington and at IU Indianapolis.

The picture of a child peering through chains is from a blog, "Circles All the Way Down".

Copyright and Fair Use at Georgia State

Link to this excellent blog note by Kevin Smith at Duke about the ruling in the Georgia State fair use litigation. (Cambridge Univ. Press, et al. v. Mark Becker as President of Georgia State Univ., et al., in the Federal District Court for the N. Dist. of Georgia, Atlanta Div., opinion filed May 11, 2012) Tip of the OOTJ hat to our fabulous colleague, Ron Wheeler at San Francisco U.

The thing was, that in a mixed, complex opinion, more than half the claims were either dropped by the publishers or dismissed by the judge, and then, in the stunning finish, the judge awarded the costs and attorney fees to Georgia State!

There are a number of articles by now on the matter:

Chronicle of Higher Education (with the excellent link to the decision).

Library Journal (includes links to earlier articles in the same journal covering the original filing of the case, and the closing arguments in the case, etc., but no links to original documents, sadly).

Inside Higher Education includes a link to Prof. Kevin Smith's blog post as well as one to the Association of American University Presses website in support of the plaintiffs in the case. This includes an excellent section of original documents in the case, most from the plaintiffs, but some from the defendants as well. Excellent link site!

Educause provides a web page with lots of links original documents:
* Document with links to the decision and analysis by 3 scholars (note from Betsy: this sometimes does not show up on my computer; I am not sure if it's a problem with my computer or their link)

* a memorandum summarizing the key rulings in the case and the implications for libraries (again, the PDF does not show up on my computer and I don't know if it's their glitch or mine)

* policy notes from the ARL (I cannot get this link to work today; I hope it works other times!)

* a collection of blog notes from all over about the case, and more (these work!)

The Digital Reader - very handy because it handily recaps the story of the case up til the decision, and provides some nice links out to blogs and a NY Times story that follows the story through the years from the 2008 filing til now.

Experts figure the story may not be over yet. They expect that the publishers may go on to appeal this district court decision. But it was a huge statement for Fair Use Doctrine defenders in an era when there has been such a drumbeat (at least in the lobbyist-influenced legislatures) in favor of the copyright holders. But it's a complex, nuanced and HUGE decision -- 350 pages! The judge was careful and made decisions on an item-by-item basis.

She laid out clear rules for how universities can and cannot use textbook versus non-textbook materials and still fit within fair use guidelines. But she also gave GSU credit for sincerely trying to develop policies that would honor fair use. That undoubtedly saved them!

So, it's not a broad, clear win for one side over the other. But the awarding of the attorney fees was a pretty strong statement!