Wednesday, July 18, 2012

Student Debt Discharged

Many students today take out large loans in order to finance their educations and then spend years paying back those loans.  Some commentators have likened this phenomenon to indentured servitude.  Whether it's smart to borrow to pay for education, undergraduate or graduate, has been the subject of much discussion.  Student loans are not normally dischargeable in bankruptcy (see 11 U.S.C. 523(a)(8)(B)) unless the obligation imposes an "undue hardship" on the borrower or his dependents; the statute doesn't define "undue hardship," and a number of courts have applied the test articulated by the United States Court of Appeals for the Second Circuit in the Brunner decision.  In In re Brunner, 831 F.2d 395 (2d Cir. 1982), the court required the petitioner who sought to discharge student loans to prove that she couldn't maintain a minimal standard of living if she had to repay the loans; demonstrate that her financial position was unlikely to improve for a significant portion of the loan repayment period; and show that she had made a good-faith effort to repay the loans.  This standard is rarely met, and most people with student loans do not get the fresh start they seek.

However, Judge Michael Kaplan of the Bankruptcy Court of the Western District of New York ruled recently in In re Bene that the facts presented in that case were so compelling that they warranted a discharge.  Unfortunately, the case probably doesn't offer much hope to law students trying to discharge their student debt because the result is very fact specific.  Donna Bene, the petitioner, is sixty-four years old, works on an assembly line, earns $11 an hour, and recently got a layoff notice.  The judge noted she had no hopes of a higher income and "no option that she might choose in order to improve her ability to repay $56,000 in student loan debt."  She had never finished her college degree and paid off what she could of her debt.  She supported her elderly parents. Judge Kaplan noted that she hadn't made mistakes or bad choices.  The decision is extremely narrow, and it is unlikely most other debtors would present such a compelling justification for a discharge of their student loans.

Tuesday, July 17, 2012

Regulatory Capture and Professional Associations

I do not mean to hurt the feelings of long-time friends and colleagues, with whom I disagree on this point about the bylaws change by that last OOTJ post. I apologize, though I will not remove my earlier post.

But I do want people to stop and think deeply about what would the future face of AALL look like, what would its activities be, if we truly changed the bylaws, in the way being proposed?

Maybe folks who say they are too busy to have anybody spend much time doing AALL business because they are a profit-making organization, are telling the honest truth. But they would also say that if they wanted to take control of an organization that has haunted them...

Does the phrase ‘regulatory capture’ mean anything to you?

We ain’t actually doing much regulatory function, to tell the truth, here in AALL, and we should be ashamed of that fact.

We hold ourselves out to the world as so called professionals.

And one of the things we as professional law librarians are supposed to be good at, is understanding the markets for legal information.

We are supposed to be the folks who speak up when the GPO is under-funded.. And we do that OK, mostly, thanks to our wonderful Washington office, and the many librarians who will respond to the alerts that go out and contact their senators and representatives about this issue.

We are supposed to be the folks who speak up when there are laws proposed that affect the rights of all information users to access the Internet or government information, or other information issues. And again, thanks to our AALL Washington office, and members, we do pretty well, along with the members of ALA and SLA on these issues. We reacted to a number of issues lately, such as SOPA and PIPA, and ACTA, for instance.

But, we have been falling down in a major way in speaking up for consumer rights. ALA has been a leader in this area, lately, and I have been admiring them, a great deal. AALL, meanwhile, is mired in silly arguments over antitrust that seems more and more specious as we watch ALA and other library organizations of various sizes move ahead where we should be as well.

And I can’t help but feel that this change in the bylaws is one of the major nails in the coffin for this association that has been getting weaker and weaker as I’ve been a member.

I think I would be less suspicious of the change in definition of “active members” if the change had not been discussed in such a non-transparent way. I am sorry, but it’s darned hard for me to envision way that Board Books are a handy and open way to notify the general membership of ANYTHING that the Executive Board is discussing. I had never heard of Board Books until very recently... And I find them difficult to locate on the AALLNet website. I think it’s difficult to locate any topic in the Board Books. Please understand that discussion of a single agenda topic may cover more than a hundred pages. So, if you are trying to locate a particular discussion, it is not easy, and it’s not a good way to make board action transparent.

Are we on the verge of giving our association away to the profit-seeking corporations whom we are supposed to be balancing on behalf of our employers? If we do not speak up on behalf of legal information consumers, who else is left? I suspect that calculation may already have been done in some minds. Let us keep it in our own minds and stay true to our duties as legal information professionals.

Selling your association for a mess of pottage

Excellent post by Joe Hodnicki at Law Librarian Blog, about the AALL Executive Board proposed bylaws change.

One of my big questions is, if this bylaws change to broaden the definition of “active membership” is such a great development, why was it being slithered in such secrecy? Would they have actually announced it to the membership in a realistically transparent way if Michael Ginsborg had not stumbled upon it in the Board Books and said something on this Caucus list? And thanks to Gail Daly for speaking up as well.

I am not completely against the idea of vendor membership, but I am deeply troubled by the way this has been brought in... and it is making me more and more suspicious of the motives and future plans for the bylaw change. The more I think about this the more uneasy I become....

Our association already has a great deal of trouble separating the interests of our user groups -- the Consumers of legal information -- from the its own (or perhaps HQ's own) interests in deriving revenue from vendors, having comfy relations with vendors, and not antagonizing vendors! They have truly lost their credibility with me as far as INTEGRITY goes. Sold for a pen and a plastic cup.

The illustration is from Wikimedia Commons, originally from the 1728 Figures de la Bible, illustrated by Gerard Hoet (1648-1733) and others, and published by P. de Hondt in The Hague.

Sunday, July 15, 2012

AALL changing definition of Active Members!

AALL members have been changing their duties. Firm librarians as well as law school librarians have changed their titles and their duties, sometimes entirely dropping more traditional librarian sorts of duties. We thus have law firm marketers, competitive intelligence workers, and academic deans who still identify with AALL and would like to still be active members of the association. Headquarters staff had asked for a change in the bylaws because the old definitions no longer fit current reality.

According to a conversation with Darcy Kirk, the Bylaws Committee first offered an amendment that tightened the definition of an active member. The Executive Board sent them back with directions to broaden the definition, instead. And did they broaden it! The new definition is so broad that it would extend the rights to vote and hold office to any employee of a legal publisher or other company that has consistently violated basic consumer protections in our Association’s Guide to Fair Business Practices. Some members are concerned that a significant ethical problem would unfairly burden such employees elected or appointed to offices in which their activities could directly or indirectly influence AALL policy or action on consumer advocacy, or could reasonably sustain the perception of conflicted influence. Of course, the issue remains debatable. In fact, our colleagues debated a similar issue of conflict of interest in 1987. The debate ended without resolution, but such acrimony accompanied it that repeating the controversy now seems to concerned members no small risk that our Board can and should avoid. The Board would effectively confer its imprimatur on the expanded definition of active definition by approving it in its present form for the membership’s vote, even though some members do not agree that the proposal should carry this de facto seal of approval.

As a result, a number of calls to various Executive Board members have been made. It appears that the Board still plans to vote on the Bylaws Committee change at its meeting this July. They may accept the proposal as is, or may change the language themselves, table it for later consideration, or send it back to the committee for more work.

Darcy points out that a change to the Bylaws this close to the annual meeting means that the 60-day waiting period would prevent any membership vote at the 2012 AALL meeting. So, if the Executive Board votes to accept the Bylaws Committee proposal, there will be a 60-day waiting period for members to consider the change. Members will have the ultimate say on whether to accept any change! Pay attention!

There will also be an opportunity for questions at the Business Meeting and Members' Forum on Monday, July 23, at 4:15 PM in Hynes Convention Center Ballroom B! If you will be at the annual meeting, and have questions, you can e-mail your questions ahead of time to The deadline for submitting a resolution passed on July 2, sadly.

Here are some talking points:

• Members were not well-apprised of the initial proposal to change the bylaws at the Board's March, 2012 meeting. Relying on the Board Book to tell general membership about important issues is NOT the kind of transparency members reasonably expect of the leadership!
• Members were not adequately informed of the request to the Bylaws Committee to broaden the active membership definition that took place at the March, 2012 meeting. Ordinary members should NOT have to dig through the Board Books and sift through 149 pages in them to find information that bears on ALL of our interests! This DOESNOT satisfy a reasonable expectation of transparency, but invites a suspicion, however misplaced, that the Board has tried to sneak a change past the membership.
• This has been a very divisive and rancorous issue in the past – when the issue of vendor membership was raised more than 20 years ago in 1987, it was a very bitter, emotionally charged town meeting.
• Changes to the Bylaws require a 2/3 approval of the full membership. An active minority will spare no procedural effort to defeat the proposed change in its present form. No one wants an avoidable conflict. The Board can still has means to avoid precipitating a conflict that otherwise seems inevitable..

Tuesday, July 10, 2012

They never give up! ACTA... now CETA

The EU sounded like they had some sense about IP and the Internet when they passed on the Anti-Counterfeiting Trade Agreement (ACTA). Well, maybe they just knew a loser for PR when they saw one. Now comes Michael Geist, Professor of Law at Ottawa University to explain that the EU thinks they can slither around the dark edges and sneak a different trade agreement, the Canada-EU Trade Agreement(CETA). According to Prof. Geist, who provides in this blog post a handy section-by-section comparison, the two agreements are eerily similar. I hope EFF and its Canadian and European counterparts are paying attention! Ahoy out there!!

Thursday, July 05, 2012

Law Reviews: Rest in Peace?

Walter Olson, the always provocative legal commentator, has struck again with an article in The Atlantic.  Entitled "Abolish the Law Reviews!", the article uses the Harvard Law Review to illustrate the plummeting circulation and stunning irrelevance of even the most prestigious of the academic law reviews in the twenty-first century.  Olson touches on the arguments for law reviews moving away from print and becoming digital publications--cost savings plus publishing articles as soon as they are ready to be published--but his real "question is whether the law review model of content--with its long lead time to publication, editing by students, and format that's resistant to after-publication editing--yields enough scholarly gems to deserve surviving in its present form even online."  Olson answers this question in the negative, stating that "the page volume of law reviews has proliferated beyond reason with no corresponding rise in compelling content."   He makes the point that "talented legal academics are headed ... to blogs and other short-form online publications."    The reason for the shift is obvious according to Olson; such publications are distinguished by their "clarity, concision, relevant, and wit, and [avoid] pedantry and mystification."  Commentators can "get their arguments gefore an intelligent audience in hours rather than weeks or month," thereby giving them a voice in ongoing policy discussions.

Before he relocated, Walter Olson was a regular user of the Pace Law Library.  He is a senior fellow at the Cato Institute, the well-known conservative think tank.  He blogs at Overlawyered, and he is the author of The Litigation Explosion and Schools for Misrule:  Legal Academic and an Overlawyered America.  A quick glance at the latter book will tell you Olson is no fan of American legal education! 

Monday, July 02, 2012

Academic Elitism - William Henderson in the ABA Journal

The July, 2012 issue of the ABA Journal has a great cover story, "The Pedigree Problem" by William D. Henderson and Rachel m. Zahorsky. Henderson, a professor at Indiana University, has been an interesting thinker about the future of legal education. Here, he is talking about how brand bias and elitism in legal hiring is choking off innovation and change in the legal academy. It's a great read!