Out of the Jungle

Twitter achieves granular tweet blocking & marks blocked tweets

2012-01-27T19:37:00.000-05:00

As we continue to grow internationally, we will enter countries that have different ideas about the contours of freedom of expression. Some differ so much from our ideas that we will not be able to exist there. Others are similar but, for historical or cultural reasons, restrict certain types of content, such as France or Germany, which ban pro-Nazi content.

Until now, the only way we could take account of those countries’ limits was to remove content globally. Starting today, we give ourselves the ability to reactively withhold content from users in a specific country — while keeping it available in the rest of the world. We have also built in a way to communicate transparently to users when content is withheld, and why.

We haven’t yet used this ability, but if and when we are required to withhold a Tweet in a specific country, we will attempt to let the user know, and we will clearly mark when the content has been withheld. As part of that transparency, we’ve expanded our partnership with Chilling Effects to share this new page, http://chillingeffects.org/twitter, which makes it easier to find notices related to Twitter.

There’s more information in our Help pages, both on our Policy and about Your Account Settings.

One of our core values as a company is to defend and respect each user’s voice. We try to keep content up wherever and whenever we can, and we will be transparent with users when we can't. The Tweets must continue to flow.

If a tweet is withheld, the update note to the blog says that users will see an alert box that says “Tweet withheld” or “@Username withheld” in place of the affected Tweet or account. Tweets cannot be censored as they are entered, says the blog. There are simply too many. This will apparently only come up if Twitter is notified by a host country that there is problematic content that must be removed, and so a tweet will come down after the fact.

This is a timely development since it about one year after Twitter began to be so important in the Arab Spring efforts in Egypt and other Middle Eastern countries, some of which made efforts to globally block all tweets.

Librarians Oppose Research Works Act HR3699

2012-01-26T14:40:00.002-05:00

A coalition of 10 library groups joined in a letter to the House Committee on Oversight and Government Reform, which is considering action on HR 3699, the Government Works Act. AALL, ALA, ACRL, and ARL among others signed the letter strongly oppposing the bill. The bill privatizes research performed with federal grant money, preventing agencies from requiring the results of the research be made equally accessible to all. From the letter:

Our government funds research with the expectation that new ideas and discoveries from this research will propel science, stimulate the economy, and improve the lives of all Americans. Public support for science is enhanced when the public can directly see the benefits from our investment in scientific research.

Unfortunately, H.R. 3699 is designed to protect the business interests of a small subset of the publishing industry, failing to ensure that the interests of all stakeholders in the research process are adequately balanced.

Scientific progress depends on the broadest possible dissemination of knowledge, and the subsequent building upon the work of others. To this end, the highly successful NIH Public Access Policy currently ensures that the results of our nation's $29 billion annual investment in biomedical research reach the broadest possible audience. The Policy simply requires that, in exchange for receiving federal research dollars, grantees make a copy of any electronic manuscript reporting on the results of that research available online via the agency’s PubMed Central database within 12 months of appearing in a peerreviewed journal. (snip)

H.R. 3699 would overturn this vital policy, rolling back the gains that the public has made in these crucial areas. It would prohibit any other federal agency from enacting similar policies, stifling our nation’s ability to effectively leverage our investment in scientific research in areas other than the biomedical sciences, including areas such as energy research, sustainable agriculture, and green technology.

At a time when our focus should be on providing mechanisms to encourage innovation, fuel the development of new ideas, and stimulate job creation – H.R. 3699 does exactly the opposite. It imposes restrictions on access to peer-reviewed research results that benefit one small sector of an industry, rather than encourage their use by the widest possible audience. (snip)

We fully respect copyright law and the protection it affords content creators, owners, and users. The NIH Public Access Policy operates fully within current U.S. Copyright law as articles reporting on NIHfunded research are copyrightable, and the copyright belongs to the author. The NIH Policy requires only the grant of a non-exclusive license to NIH, fully consistent with federal policies such as Circular A-110 and Circular A-102. The author is free to transfer some or all of the exclusive rights under copyright to a journal publisher or to assign these anywhere they so choose – a freedom crucial to the authors of scientific articles, who rightly want to determine where and how their work is distributed.

Under H.R. 3699, authors of articles reporting on federally funded research would face a new restriction. The proposed bill requires authors to seek the permission of a publisher before their work can be distributed through an online, networked government channel such as NIH’s PubMed Central, even if they themselves - as the author of the work and the relevant rights holder – have already consented to do so, potentially limiting the authors ability to distribute their work as widely as they may wish.

Peter Suber at the Berkman Center is keeping a running list of the various organizations that have come out in favor or against the bill. Simmons is hosting the Open Access Tracking Project (OATP), which includes a monitor on this bill, tagged oa.rwa. In Google+ discussions, use the hashtag #rwa.

In the Google+ conversation, somebody raised the point that RWA is similar to ACTA and SOPA, and PIPA and other efforts to rein in free speech on the internet; here is the comment:

For those who are keeping track of the massive architecture of control being erected around us, here is one to add to the list:

#ACTA

See this link for a crash course. What Is ACTA ?

The other pieces that belong on the list are:

#EEA (Enemy Expatriation Act, HR 3166 which could strip Americans of citizenship)
#NDAA (National Defense Authorization Act for 2012, HR 1540 which allows indefinite detention)
#SOPA (Stop Online Piracy Act, HR 3261.IH, which has been withdrawn by its sponsor after massive protests including a blackout from Wikipedia and black-page from Google.
#PIPA (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, S 968, likewise withdrawn after the massive protests from the tech community)
#RWA (Research Works Act HR 3699 (see this post)
#GooglePersonalSearch (this is worth a whole 'nother post, kiddos!)

Anonymous attacks on Polish government websites after they sign ACTA treaty

2012-01-23T15:41:00.001-05:00

Per Joanna Kulesza, through Giganet:

Hopefully a useful link to ones researching copyright and ACTA. In Poland
the battle is currently on:

http://www.washingtonpost.com/business/polish-government-websites-face-appar
ent-attack-by-internet-group-anonymous/2012/01/22/gIQAF1GEIQ_story.html

Hackers from Anonymous are attacking Polish governmental sites attempting to
force the government out of signing ACTA on Jan. 26th. You can follow the
attacks as they unfold: http://twitter.com/#!/AnonymousWiki

Regards,

Joanna (Kulesza)

ACTA stands for Anti-Counterfeiting Trade Agreement. Final text is available here (pdf). The first link here takes you to a U.S. government website that includes not only a link to the full text of the final version, but also previous versions as well. It also includes supporting statements from various recording industry, entertainment industry and the organizations that manage intellectual property for those industries. There are statements from the sponsor of SOPA and President Obama as well.

On October 1, 2011, the United States, Australia, Canada, Korea, Japan, New Zealand, Morocco, and Singapore signed the treaty in Tokyo. Representatives of the remaining ACTA negotiating parties, the European Union, Mexico, and Switzerland, attended the ceremony and confirmed their continuing strong support for and preparations to sign the Agreement as soon as practicable.

PC Magazine reports that Polish government leaders are meeting to reconsider their support for the ACTA Treaty.

Wikipedia's article on ACTA is very useful in pulling together links to criticism and the history of the treaty, including leaks about its negotiation. There are a number of organizations and groups that have strongly criticized the treaty's provisions. Follow the link to Wikipedia, or follow up this list of organizations:

* Electronic Frontier Foundation (EFF)

* Consumers International (Press Release, May, 2011) (ACTA open letter, 2009)

* Free Software Foundation

* Free Knowledge Institute (European Union-based)

Wikipedia Black-out Day Against SOPA & PIPA

2012-01-17T13:44:00.000-05:00

If you try to visit Wikipedia tomorrow (January 18, 2012), you will get a black-out. They are not alone: Boing Boing, Reddit, Google and others in a NetCoalition are joining in a protest against the two bills pending in Congress currently against online piracy: SOPA (HR 3261) and PIPA (S968). Check their home pages for various forms of protest.

The NetCoalition.com website (not the .org one!) has a lot of useful information on the bills if you need to do research on this area.

Here is a nice thumbnail of the opposition to SOPA and PIPA, though you can find a LOT more out there on the net. Briefly, there is concern that the provisions are vague, allow far more over-reaching by copyright holders than the current DMCA, so that they could do take down notices to web providers, but with lots more power behind it. For instance, SOPA provides that if a web host does not immediately blacklist an accused poster on their service, the web host would then have to fight along with the poster. According to Google, more than 50% of the take-down notices it has received under the DMCA have been by businesses out to drive out competitors, rather than really about copyright issues. This is liable to be just as true in the future. Copyright take down notices are being used as an anti-competitive tool to prevent existing web businesses from having to compete against new start-ups who want to provide either a new service or better service.

Here is a terrific, detailed review of the SOPA bill by a copyright lawyer, Mona Ibrahim, and an update reviewing the amendments.

B Corps - something new under the sun!

2012-01-14T18:13:00.000-05:00

The Nation had a nice little article explaining the new Benefit Corporations. Author Jamie Raskin explains, in a nutshell

The new laws permit companies to join the profit motive with the purpose of making a “positive impact on society and the environment.” In their articles of incorporation, Benefit Corporations declare their public missions—things like bringing a local river back to life, providing affordable housing, facilitating animal adoptions or promoting adult literacy. Under the law they must go regularly before a third-party validator like B Lab, the visionary Philadelphia-based alliance of more than 400 so-called B Corps across the country, to prove that they are not only meeting their goals but treating their employees, customers, communities and local environments with the same respect as their shareholders. Benefit Corporations can lose their B Corp title and their legal status for not doing right by these standards.

Why would a corporation choose such a constricting form? Think about companies such as Ben and Jerry's or King Arthur Flour, which have had a history of social responsibility. Shareholder litigation can be a threat to a company that wants to put other issues ahead of profit motives. Formation under the B Corp law would protect a company from such liability. And incorporating under the B Corp model instantly signals the company's brand and intention.

Here is a link to a site that is keeping a nice list of the states that have passed or have pending B Corp laws. It's a nice site with lots of other features. It includes an "Annual Report" with statistics on the numbers of B Corps being formed nationwide, the growth and profits generally, and other methods to measure the impact of investing. The website lists the five top reasons to become a B Corp, and include items attractive to traditional business people as well as to dreamers:

1> Increase Profits
2. Attract Investors
3. Generate Press
4. Preserve Mission
5. Build a Movement

The Passing of Judge Robert L. Carter

2012-01-10T15:41:00.014-05:00

At Rutgers Law School, everyone wanted to take Constitutional Law with beloved Professor Arthur Kinoy, a fiery advocate for civil rights at a time when this stance was not popular. Professor Kinoy inspired us with "war stories" from his time in the legal trenches, including defending the Rosenbergs and arguing the landmark Dombrowski v. Pfister case before the Supreme Court. Despite all the notoriety that these high-profile cases brought Professor Kinoy, he was probably proudest of his work on civil rights, including defending demonstrators in the segregated South and helping to develop legal strategies to confront racial discrimination in all its forms in the 1950s and 1960s.

Professor Kinoy often talked nostalgically of the NAACP legal team, the mostly African-American attorneys who bravely fought against desegregation in the courts despite threats of disbarment and worse. One of the attorneys he mentioned most often was Robert L. Carter, who died recently. In addition to the obituary from The New York Times which is linked to in this post, two moving tributes to his life and legacy were published in The Nation: a short tribute by Lewis Steel, a civil rights lawyer, and a longer tribute by Patricia Sullivan, an associate professor of history and African American studies at the University of South Carolina who is writing a history of the NAACP.

Sullivan describes Carter as "one of the leading civil rights strategists and activists of the twentieth century." After being exposed "to the power of racial stigma and exclusion to stifle the hopes and possibilities of African-Americans and warp social and civic relations," Carter realized that education was the key to the future. After graduating from law school, he joined the NAACP legal staff in 1944. As Sullivan puts it:

For Carter and the handful of attorneys working with Thurgood Marshall, all of whom spent much of their time in the field, the future rested primarily on freeing black children from the crushing effects of substandard school conditions and societal indifference to history's long reach. ... As the lawyers took aim at overturning Plessey [sic] v. Ferguson, it was Carter whose research of social science literature found the legal hook for proving what any sober observer knew to be true: segregated schools were inherently unequal.

Carter was appointed by President Nixon to serve as a federal judge for the Southern District of New York in 1972. Reading the obituary of Carter and the two personal tributes made me think about the driving passion of his life--equal educational opportunity, a goal that has still not been achieved in this country and is perhaps farther away than ever. To quote Sullivan again:

For Robert L. Carter ... the fight for equal, quality public education was foundational to the movement to liberate this country from the blight of racism and its crippling legacies. The abysmal state of public schools, the racial inequality that continues to define all measures of educational opportunity and the much discussed "school to prison" pipeline reflects [sic] chronic national indifference to a problem that has deep roots in the practices and attitudes that Carter spent a life time fighting.

AALS

2012-01-07T16:02:00.000-05:00

I am here at AALS in Washington, DC. We have had the meeting of the Society of Academic Law Library Directors, kindly hosted by Billie Jo Kaufman at American University's Washington School of Law, on Thursday morning. Then, librarians rushed back to the hotels for the Law Library section luncheon. Lolly Gasaway, the retired director from University of N. Carolina at Chapel Hill, and copyright expert, spoke at the luncheon. Lolly talked about licenses being used as a way to contract around fair use rights under the federal copyright statute, and how non-disclosure clauses make it very difficult to study or compare what is going on. She had several recommendations:

1) Model licenses;
2) Use federal copyright law as a backstop, where the terms offered in a license might be preempted by statute;
3) Some state consumer law may make license terms unconscionable. For instance, in Massachusetts, we have very strong consumer protection laws that assist in making such an argument. State statutes and regulations can help moderate the swing that federal legislation has made in recent decades toward an extreme in protecting the rights of copyright holders.

But finally, according to Lolly, all these arguments come down to judicial decisions. Libraries continue to "agree" to restrictive licenses, sometimes through "shrinkwrap" or click-through licenses, and sometimes by trying to obtain subscriptions for faculty or students for items such as Netflix or other subscriptions that are really envisioned for individual consumers. Increasingly e-book licenses, including e-casebooks, have licenses that are designed for individual ownership, and the vendors are not rewriting the license to tailor it for library use. Consortial negotiators, such as NELLCO can help educate and shape the licensors, and are slowly having an effect. See California Digital Libraries licensing toolkit.

Lolly cautions libraries very strongly, though, that violating copyrights will run them afoul of the law. Just because your heart is "good and pure," the law will still come down hard on you for violating copyright.

Following Lolly's excellent talk, we had a very thought-provoking section program, "Libraries and Copyright: Friends, enemies or Strangers on a Common Path?" Speakers were chosen from a call for papers: David Robert Hansen from U.C. Berkeley School of Law and Hannibal Travis from Florida International University School of Law. It was a copyright-heavy day. Travis' talk on the Google Books Project and the law suit that stopped it was fascinating. I particularly liked his study on how the 4 publishers involved in suing Google to stop the project have actually seen their sales increase since the Books Project began.

This only covers Thursday. I still have to tell you all about Friday and Saturday & of course, I haven't lived through Sunday, yet! The decoration image of the Washington monument is courtesy of travel.yahoo.com

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

2011-12-31T01:08:00.000-05:00

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

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

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

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

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

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

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

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

Happy Holidays

2011-12-22T17:08:00.003-05:00

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

Happy Holidays!

Judge Throws Book at the Brooklyn Public Library

2011-12-21T14:57:00.009-05:00

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

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

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

Put the Big Rocks in First

2011-12-12T15:35:00.001-05:00

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

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

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

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

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

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

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

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

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

Curator of Provenance

2011-12-11T18:24:00.001-05:00

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

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

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

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

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

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

"I know that I sound defensive and I'm trying, as I get older to sound less defensive," she said. "But I think there are a lot of loud voices out there that are inaccurate." The next day, reed asks that even that mild criticism be struck from the record. She doesn't want to come off too strong.
She does defend the MFA, which she says shares the results of all its Nazi-era provenance research on its website on gallery labels, and in gallery talkes. The only exception is when there is a legal matter that includes correspondence that is privileged.

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

Going Paperless in the UK

2011-12-09T11:32:00.009-05:00

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

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

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

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

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

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

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

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

Justice Kagan's First Year

2011-12-07T17:13:00.009-05:00

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

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

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

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

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

Turmoil at NYPL

2011-12-01T14:54:00.012-05:00

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

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

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

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

Maryland and Gay Marriage

2011-11-30T15:16:00.001-05:00

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

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

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

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

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

A Treasure Trove from the British Library

2011-11-29T16:40:00.010-05:00

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

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

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

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

Who's a Person Now?

2011-11-20T17:10:00.001-05:00

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

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

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

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

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

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

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

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

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

The British Library Steps in It

2011-11-18T17:11:00.014-05:00

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

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

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

A New Role for Professor Warren

2011-11-16T12:40:00.014-05:00

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

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

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

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

Victory for the Consumer Caucus

2011-11-07T13:35:00.002-05:00

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

New Blog on Legal Education

2011-11-01T13:32:00.004-04:00

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

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

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

Johns Hopkins To Close Its Medical Library

2011-10-31T17:42:00.017-04:00

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

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

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

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

2011-10-27T18:27:00.001-04:00

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

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

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

Hot Coffee Spills on Stephen Colbert

2011-10-26T17:08:00.011-04:00

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

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

Excellent book on promoting diversity

2011-10-25T14:53:00.000-04:00

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

Occupy Boston maintains a library

2011-10-24T13:59:00.000-04:00

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

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

2011-10-21T14:44:00.004-04:00

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

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

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

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

Personal History

2011-10-19T17:10:00.000-04:00

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

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

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

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

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

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

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

A Poem: In the House of the Law

I have made for myself

A small mouse’s nest

Beneath a cornice

In the grand house of the Law.

Comfortably curving

Walls that hold

The trembling sound

Like a bird held

In a gentle hand.

Betsy McKenzie32 Legal Studies Forum 207 (2008)

New Institute at Yale Law School

2011-10-18T14:36:00.007-04:00

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

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

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

Amazon Eliminates the Middleman

2011-10-17T16:51:00.007-04:00

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

Occupy Wall Street, and its off-shoots

2011-10-11T13:09:00.000-04:00

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

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

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

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

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

Washington is hopelessly addicted to money and thus to the status quo; drunk with power and incapable of getting sober and fixing itself. It’s time for an intervention—by the states.
Politically, we two disagree on just about everything. But the one thing we do agree on is that the institutions of government in Washington have become corrupt, held hostage by well-funded special interests. It’s no wonder that only 17 percent of the American public in a recent Gallup survey said they had a favorable opinion of Congress. American voters believe, and rightly so, that corporations, labor unions and moneyed special interests have a chokehold on politicians. Voters are disillusioned and discouraged because they don’t believe Washington represents the will of the people. And the recent Supreme Court decision in Citizens United v. F.E.C.—which permits unlimited independent corporate campaign expenditures—will only make this worse.
And so too many throw up their hands and say, “We give up. Congress won’t fix itself. And there’s nothing that we can do about it.”
But there is something we can do. We, the People, can take back the power we gave to Congress. We can take it back through the states.
The framers left open a path to amendment that doesn’t require the approval of Congress: a convention. Article V of the Constitution requires Congress to call a convention to propose amendments if 34 state legislatures demand it. Any proposed amendment would then have to be ratified by both houses of 38 state legislatures (three-fourths of the states).
(snip) Even if 34 states don’t call for a convention, history teaches that a real threat is often enough to get Congress to act. The only amendment in our history that changed the structure of Congress (the 17th, making the Senate an elected body) was proposed by Congress because the states were close (just one state short) to calling for a convention. If nothing else, the possibility of a body they can’t control is enough to get Congress to pay attention.
Some will resist the idea of a convention because they fear a “runaway” in which fringe elements would take over the agenda and propose radical amendments. But the framers anticipated such a danger and established a very high bar against it. Amendments are ratified by legislatures (or state conventions), not by referenda. And if even one chamber in 12 state legislatures refused to ratify an amendment, it would die. There will always be twelve solid blue states and twelve solid red states in America. There’s thus no danger that one extreme can overtake the other.Conventional wisdom will argue that constitutional conventions or amendments are just impossible. Just like it was impossible to wrest a republic from the grip of monarchy or abolish slavery. Or impossible to elect Ronald Reagan or Barack Obama. But conventional minds are always wrong about pivotal moments in a nation’s history. And this is a pivotal moment in ours, when a movement to restore democracy is possible.
Indeed, the movement has already begun. Legislators in South Carolina, Virginia, Oregon, Rhode Island and Florida are already throwing sparks that could soon become a brush fire across the country. More and more are coming to see that if reform is necessary—as most all of us, whether from the right or left believe—this is the only way.

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

Wikipedia's new QR Pedia codes

2011-10-02T22:45:00.000-04:00

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

An Outrageous Dictionary

2011-09-28T12:39:00.007-04:00

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

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

Scholarship Myths

2011-09-27T16:43:00.000-04:00

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

Net Neutrality Regulations set to take effect November 20

2011-09-26T17:01:00.001-04:00

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

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

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

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

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

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

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

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

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

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

Hathi Trust sued over Orphan Works Project mistake

2011-09-19T17:10:00.000-04:00

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

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

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

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

Sign the Consumer Caucus Petition!

2011-09-09T14:52:00.010-04:00

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

Request To Support A Petition For An AALL Consumer Advocacy Caucus

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

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

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

Reasons For The Petition

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

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

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

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

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

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

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

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

Textbook Pirates! Yo-ho-ho...

2011-09-08T16:56:00.000-04:00

The Chronicle of Higher Education for Sept. 2, 2011 , p. A17, "New Web Site Unabashedly Trades Free Digital Copies of Pirated Textbooks" by Jeffrey R. Young (News | Technology) reports that textbook pirates encourage students to scan textbooks & post them. Some visitors are posting e-textbooks on the site which includes links to BitTorrent and step-by-step instructions on how to use it. The textbook pirate site is called LibraryPirate, currently hosted in Ukraine, where it does not violate copyright laws. The anonymous owner claims he also maintains a backup to site in case it's shut down, and can have it back up and running in another country very quickly. He also says he was Inspired by the earlier similar site which was shut down 3 years ago, Textbook Torrents. The owner of LibraryPirate claims to be motivated by moral concern for students

I want to bring about permanent changes to the textbook industry. The exorbitant price of a textbook shouldn't hinder students' ability to do well in a class. I believe there is a moral objective at play here.

Edward McCoyd, director of digital policy for the Association of American Publishers was contacted by author of the Chronicle article, and replied that the LibraryPirate website unfairly "...penalizes the people who are producing the materials." He pointed out that e-textbooks often are reduced by as much as 60% off the price of print versions. McCoyd referred the author to a fact sheet on the web site run by his publishing association, called Cost Effective Solutions for Student Success (or CESSS), which has a report at --- http://www.solutionsforstudentsuccess.org/faq#pricing stating:

According to Student Monitor’s Lifestyle & Media – Spring 2011 Report, for the Fall 2010 – Spring 2011 academic year, the average student spent $534 for printed textbooks. To put that figure into context, that number is:50% less than the $1,068 students spent for their mobile phone60% less than students spent on movie tickets27% less than what students spent for gasoline

I cannot imagine how much my students would froth at the mouth reading this. I am not surprised students are willing to pirate textbooks after reading self-justifying stuff like this. It may be perfectly true if you work out math, but that is not going to make students at all happy about the fact or the organization that brought it to them! There is much more useful stuff there about how much it costs to bring a science textbook up to date and then bring out the new edition, for instance. I do understand that publishers need to be compensated, and to compensate the authors, and editors, and all the reviewers, and many other people involved in the publishing industry. But they really need somebody to proof-read and edit their webpages! This particular piece is only going to alienate and enrage the people they are trying to reach!Can you say FAIL?

The image of the guy poking himself in the eye is from a Brilliant! Biomed newsletter at http://www.brilliantbiomed.com/2010/02/things-you-can-learn-by-poking-yourself.html (the article REALLY is about things you can learn by poking yourself in the eye!)

Susskind on The End of Lawyers

2011-08-31T11:38:00.000-04:00

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.

A fun way to encourage students to improve Google search skills

2011-08-30T16:55:00.007-04:00

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.

Digital Natives and getting under the hood: the ERIAL Project

2011-08-29T13:38:00.007-04:00

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.

Take a visit to the Old Bailey

2011-08-26T16:05:00.004-04:00

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.

Almost a bookmobile, not quite a library

2011-08-23T14:32:00.008-04:00

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.

A Librarian's Double Life

2011-08-22T14:08:00.010-04:00

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!"

Law Schools Sued Over Placement Stats Fraud

2011-08-17T11:40:00.008-04:00

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 naïve, 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!

ABA and NALP in Turf War

2011-08-14T12:54:00.004-04:00

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

2011-08-14T12:26:00.006-04:00

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!

Penny Wise, Pound Foolish at the National Archives

2011-08-10T15:19:00.025-04:00

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.

Consumer Advocacy Caucus Meets

2011-08-09T17:30:00.009-04:00

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.

Holding Back the Tide of E-books

2011-08-05T11:34:00.015-04:00

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.

Justice Kagan's "Remarkable Debut"

2011-08-04T15:59:00.018-04:00

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.

More hurdles for job seekers -- bloodhounds of the web!

2011-07-23T17:32:00.004-04:00

The New York Times features an in-depth article on the start-up Social Intelligence which helps human resources do deep background checks on possible hires. They scour the web, looking not just at social networking sites, but all sorts of sites such as Craig's List or Flickr, to see what sorts of things might be revealed about the applicant. The applicant is first asked if he or she consents to a background check. (Don't be a fool! But what will it say about you if you refuse?!) Also, the individual is shown the results of the search before it is reported back to the potential employer. And apparently the searches shouldn't cover the sorts of questions that are out of bounds for an employer to ask in an interview (Like, are you married? Do you have children?)

The biggest problem for young people is that they cannot control what others put up on the Internet. If a friend posts a picture of them, even if they ask very quickly for the photo to be taken down, it already may well have been duplicated and shared across the web in places they know nothing about. It is very difficult for "digital natives" to control images in particular, though they can certainly be circumspect themselves.

The best rule is not to post anything online that you would not want published on the front page of a major paper. Sadly that flies in the face of the current youth culture!

The article in the Times recounts several examples of people who failed to get a job because of "dirt" uncovered by "Social Intelligence." There was a woman who applied for a job at a hospital, but the company found nude photos she had posted at an image sharing site (well, the article made it sound as though she had posted them). The Times also reported another applicant who was using Oxycontin, as found through Craigslist. They don't talk about photos of wild parties, but I am sure that is something that employers don't want to see.

On the other hand, perhaps, by looking on the Internet, the company will uncover evidence that will support your resume's list of awards and even have nice comments from colleagues or teachers or peers about your abilities (we can hope!). That's the nice little carrot that Social Intelligence holds out to applicants at their website.

Photo of a bloodhound is courtesy of http://dogsranch.com/the-bloodhound.html/bloodhound

AALL, Consumer Caucus, Transparency and Bad Advice

2011-07-19T02:34:00.004-04:00

I have loved my association for more than 20 years. I joined in 1986, as a freshly minted, eager, hopeful (not quite so young) law librarian. And I have been a member of AALL ever since, as well as a member of whichever regional chapter I lived nearest. But, this is like a lot of marriages....

I have to say, honey, your bad habits are starting to really wear on me!

Were you always so damned conservative with your choice of counsel?!

And have you always been this sneaky?!

I hate to think you really meant to try to slip that little Antitrust Policy past me. But I just can't help but be a little hurt and yes, I have to say it, mistrustful.

I'm sorry, honey.

The magic is just not there any more.

The trust is gone. You blew it. When you started flirting so with those big vendors, I tried to laugh it off. You know, "AALL's just all excited with the annual meeting, and all...." And maybe I thought, "Well, we kind of need the extra dough." So, I was, I have to admit it, a little willing to let you, (ugly word) prostitute yourself with them.

Then, when the FTC folks came to ask you what you thought about antitrust problems if Thompson were to buy West Publishing, Oh, AALL, you sold your soul, not for silver or gold, but I think for the pleasure of shaking hands with somebody who told you they were important. Maybe they just bought you lunch.

You started turning your head when Thompson would rebuff the librarians who asked for pricing info for the AALL Price Index, and then, took Thompson's side against the librarians!

Lately, it sounded like we were getting some good from our counseling, babe! When the Executive Board okayed the (watered - down) mission for a AALL consumer caucus, I thought, "Hey, maybe the old magic is still there! Maybe I can get excited about my old association again!"

But then, ah, no! You pull this stunt with the secret Antitrust Policy. What am I to think, honey?

Let's think about the timing....

The Caucus was going to meet on July 25?

But the Executive Board was going to secretly vote on an Antitrust Policy on July 21. And what would that policy cover?

The following topics are some examples of the subjects which should not be discussed at Association meetings, either virtual or live:

1. Do not discuss current or future prices (be very careful of discussions of past prices).

2. Do not discuss what is a fair profit level.

3. Do not discuss standardizing or stabilizing prices or pricing procedures.

4. Do not discuss cash discounts or credit terms.

5. Do not discuss controlling sales or production or allocating markets or customers. (This applies to services as well as products.)

6. Do not complain to a competitor that its prices constitute unfair trade practices and do not refuse to deal with a company or individual because of pricing or distribution practices.

7. Do not discuss anticipated wage rates.

I fear our consumer caucus would be pretty much crippled, dear! And so slyly done!

And worst of all, I think this damn'd lawyer just copied and pasted out of the Antitrust treatise without stopping to think or find out any details about our relationship, honey. It looks like the fool just picked up the general law about trade associations very much like this blog post for Building Product Marketing Trade Associations. Take a look, sweetie, and see if the post doesn't look an awful lot like what that old attorney has been charging you an arm and a leg for advice!

Rankings Stink Stirred up again: Gotanda and Henderson and the Distortions the Rankings Have Wrought

2011-07-15T00:30:00.010-04:00

National Jurist has two articles that raise some new and unpleasant questions about the rankings game. A New Low in the Rankings Arms Race, by Jack Crittenden chews over again Villanova's February admission that it misled the ABA in reporting LSAT and GPA statistics for years. Villanova's new dean, John Gotanda, announced last January that he found that the previous administration had been knowingly reporting false LSAT and GPA data to the ABA for some years up to 2010, in an attempt to raise its ranking with the US News and World Report. This announcement confirmed long-running rumors of smoke and mirror tricks at certain schools where the numbers just seemed too good to be true. What is surprising is that the first school stepped forward voluntarily, rather than slipping up and being caught. Villanova and Dean Gotanda deserve a round of applause for rock-ribbed morals and principled behavior. The new dean launched an immediate internal investigation, hiring Ropes & Gray for an independent audit, which found significant differences between what should have been reported and the figures which were turned in. The admissions reporting process and organizational structure will be reconfigured as part of the housecleaning.

LSAT score has a weight of 12.5% and GPA weights 10% in the US News algorithm. In his Morse Code blog, Bob Morse said in February that US News will not revise the older rankings to take the inaccurate data into account, though he believes that the weights of the LSAT and GPA scores in the US News algorithm are enough that it would have affected Villanova's ranking.

How does the rankings data for the J.D. class entering in 2010 compare to the previous year's? The difference is significant enough between the older and newer data to have a meaningful negative impact on Villanova's upcoming ranking: For the fall 2009 entering class, Villanova reported inaccurately a median LSAT score of 162 and median undergraduate GPA of 3.44. For the fall 2010 entering class, Villanova certifies its median LSAT score was 160 and its median undergraduate GPA was 3.33.

According to the National Jurist article, Villanova's ranking in 2011, with the new, accurate data, dropped to 67, from 61 in 2010, (though it was 68 in 2009, and 60 in 2008 – the mysteries of the rankings!).

The article goes on to quote Bucky Askew, long-time consultant on legal education for the ABA, as saying that it is very rare for inaccurate data to be purposefully submitted to the ABA questionnaires, though there are currently concerns over the accuracy of employment data and that the ABA is reviewing that. Oh, what a very optimistic man! Or perhaps, a diplomatic one.

Paul Caron, is a tax professor at the University of Cincinnati and leading blogger at TaxProf Blog and Editor in Chief of the Law Professor Blogs Network. He also publishes Leiters Law School Rankings, an alternate ranking system that competes with US News and World Report's ranking system. Prof. Caron critiques the collection of data by the ABA, and suggests that using information directly from the Law School Admissions Council (LSAC) , for instance, where law students must register to take the LSAT and have their undergraduate school send their GPA before applying to law school would be a better and more reliable resource for the LSAT and GPA data. At this point, the LSAC is not at all involved in the ABA questionnaire data gathering process, and there are no checks and balances on the law schools' self-reporting.

Probably the reason to pull the Villanova issue back up is two-fold. One is simply to encourage folks not to beat on the school – that is the last line of the article, “If we place too much scorn on Villanova, other schools will be scared from stepping forth and doing what is right,” quoting Professor Bill Henderson of Indiana University. Henderson writes an opinion piece that is the second article on the topic in the National Jurist, “How the Rankings Arms Race Has Undercut Morality.” Henderson has some excellent insights:

For better or worse, the rankings created new metrics of competition. … we never expected to get an education on how competition in a magazine could produce a competitive environment in which bad behavior becomes the norm. Each year the rankings arms race seems to produce a new low in law school conduct. …

The story we can write now is a tragedy. It has many victims and no heroes. And it is not yet over. (snip)

Over time, a terrible dynamic has emerged in which bad behavior among law school administrators is rewarded and principled behavior gets you fired. Virtually everyone hates this system. Unfortunately, it is all too easy to rationalize unethical actions for the greater good of one's school. … Career services and admissions professionals – who are not tenured and so have no strong job security – are under tremendous pressure to increase or hold onto their numbers. They justify their actions (to themselves and others) by saying the practices are the norm throughout the law school hierarchy. As a result, pretty soon they are the norm.

Henderson describes how the rankings initially reflected the general consensus among academics about how the various schools were ranked by public opinion. But as alumni and university administrators began to realize that the rankings really influenced applicants, pressure began to be applied on deans and the professors of the law schools to improve the ranking of the school. By 1995, the US News editors had been seeing “disturbing discrepancies” between median LSAT scores as reported to the magazine and the data submitted to the ABA for accreditation purposes. The editors of the US News and World Report wrote in their Law Schools rankings issue that year a plea, “Will the ABA eventually insist that schools make such data public?” Eventually, the ABA, under public pressure, began to publish an annual ABA-LSAC Official Guide to Law Schools, which included such data, and US News began to rely on this resource for most of its rankings data.

Later in the opinion piece, Henderson explains the miracle of the increasing percentages of law school graduates employed after graduation reported to US News, even during the worst legal hiring slump in memory, and when lower percentages of these same graduates have managed to pass the bar exam. The “employment” need not be legal; it can be a job at a fast food joint, or the law school itself, temporary or part time. And because US News automatically counts 25% of “unknown” graduates as employed, canny career services personnel may avoid contacting graduates whom they suspect might not be employed. Henderson asks, if this is not consumer fraud, are we not at least perilously close? Yet the employed at 9-months statistic can drop a school several places in the rankings if it is not high enough. Students pay close attention to this number, naturally enough. Recent pressure on deans and law schools, and the ABA itself from students and alumni who have been embittered by the fraud their schools have perpetrated in this one area, led by the folks at www.lawschooltransparency.com, has accomplished a great deal.

Prof. Henderson recounts how, as pressure mounted to maintain or increase ranking, law schools changed how they admitted students. They no longer looked at resumes or personal statements or letters of recommendations, focusing more and more on formulae to increase the LSAT median scores and increase undergraduate GPAs. Schools changed how they awarded scholarships, giving less on the basis of need, and more on the basis of merit, in order to lure and retain students with the higher LSAT scores and GPAs in law school.

The effect has been to reshuffle the priorities and the make-up of the law schools. Rather than admitting students who may not have stellar pre-law credentials, but have potential to become great lawyers and add something to the school or bar, or who will increase the socio-economic and ethnic and racial diversity of the school and bar, schools are focusing solely on increasing the LSAT and GPA scores in order to maintain or better their rankings. This focus almost naturally brings a higher percentage of students from affluent backgrounds, and tends to reduce the levels of diversity in all categories. They also tend to need the scholarships less in terms of financial need. Yet, that is where the law schools are spending their scholarship money.

Students who have to work during law school tend to get lower grades because they cannot put in the longer hours of study, and are distracted. So there is a vicious cycle at work for the lower-income students who do not receive need-based scholarships. They have a higher debt load, and thus need to work more. The more they work, the less they can study. And so their GPA drops, and they are less likely to receive a merit-based scholarship. And because their GPA and class rank is lower, they are less likely to get jobs upon graduation, when they leave law school with a higher debt load.

Henderson argues that, rather than creating an objective, measurable ranking system that creates a fair way to distinguish among the law schools for consumers, the rankings systems have created instead, a warping gravity well, that pulls law schools out of shape and into its orbit. He calls for the ABA to create a clear and rigorous standard that requires reporting of data on post-graduation employment, including clear explanation of how the data was compiled and documented. The data should then be verified as accurate and randomly audited by neutral third party professionals. Discrepancies should result in severe penalties for law school administrators. The data should be open to the public in a way that makes it easy to compare school to school. Henderson notes that the information is already reported to National Association of Law Placement, but is never made public by school. He calls for the lawyer members of the ABA to override the academic members who have such obvious self-interest in this matter. And if the ABA cannot act, Henderson goes so far as to call upon the Department of Justice and Congress, and various state supreme courts, which regulate the legal profession to take away the ABA's accreditation authority and act directly.

Massachusetts Top Judges Threaten to Shut Down 11 Courts Over Budget Cuts

2011-07-13T11:02:00.008-04:00

The chief justice of the Massachusetts Supreme Judicial Court, Roderick Ireland and the chief justice for administration and management, Robert A. Mulligan, sent a strongly worded statement to Governor Deval Patrick. Seven justices of the Supreme Judicial Court joined in a letter requesting Governor Deval Patrick not to nominate any more judges because of the impact on the overstrained budget for support staff. And Mulligan sent a letter to Patrick as well.

There is also an archival website which includes a number of statements from the current and former chief justice and chief justice for administration and management or separately. Here is a statement from the previous chief justice, Margaret Marshall and Justice Mulligan on the fiscal year 2011 budget, protesting cuts and the attempted removal of the very troubled Probation Department from the judicial branch into the Executive. The Boston Globe reports from a copy that they have

“We make this request . . . with great reluctance and deep regret,’’ the justices wrote. “The people of Massachusetts deserve better. But the fiscal jeopardy into which the operation of the Trial Court has been placed demands extraordinary action.’’

(from the Globe article) This statement is remarkable in several points. First, Roderick Ireland is an appointment of Governor Patrick. And a number of the other signatories are as well, in a separate letter where seven justices of the top court requested a moratorium on naming new judicial appointments, because of the budget troubles. Second, the statements are coming at a point AFTER the budget is final, not when there is any time to negotiate. The letter explains that for each new judge appointed, the budget cuts would require the department to lay off 3 staff members in order to fund the judge's salary.

The governor's legal counsel pooh-poohed the statements, saying he is still receiving requests from trial court chief judges to fill vacancies, and that this is the sort of grand-standing that the courts have been doing for a long time. But over the last 3 years, the judiciary of Massachusetts has lost a total of $96 million, or almost 16 percent, of their funding. The trial court has lost 1,115 employees in four years, and more than 60 percent of the courts are staffed below the level necessary to ensure the prompt delivery of justice, the judges said. See this article gleaned from the State House News posted at Daily News Transcript,commenting on the governor's and legislators' hostile response to the justices' statements.

The Globe lists out the courts that are slated in the Justices' plan for closure. They plan to close the courthouses, lay off the employees and transfer the functions to the courts nearby. Legislators are alarmed by the plan because the courthouses are both economic engines in their communities and also places where legislators can exercise their powers of patronage. Some of the legislators have stated that the selection of courthouses seemed calculated to punish the decision-makers on the budget and judicial salaries. But the president of the Boston Bar Association, Donald R. Frederico, said the justices' concerns are legitimate, “They're just at the breaking point. At difficult economic times, a lot of programs and agencies have to be cut, but the courts have taken a disproportionately large share.”

As long ago as 2009, former chief justice Margaret Marshall made an eloquent and very public comment and plea about the crisis in state courts as their funding is being squeezed by the recession. See the NECN video. Margaret Marshall is a native of South Africa, and you may have to get used to her distinctive accent. But the video is well worth watching. She is a marvelous speaker and this is a powerful statement in this interview. She gave a talk first to the ABA, raising the issue. She has hard data about what kind of staffing is required to process each type of case, from national data. And she tells the interviewer that in 2009, they were at 80% capacity. The demand is rising as the recession continues, with more divorces, more child abuse, more loan defaults, etc. You can imagine how much more has happened in the 2 years since, as the budget has been slashed further.

Could Your Cellphone Voice Mail be Hacked?

2011-07-13T10:49:00.003-04:00

We are all watching the scandal about the British tabloid News of the World whose reporter hacked into the cellphone voice mail of a missing girl and deleted some of the messages while police were searching for the child. But have you considered the implications of hacking voice mail in cellphones? It means that it's dead easy to get into anybody's voice mail – unless they take a few precautions.

The Boston Globe has an article in today's paper by Hiawatha Bray, one of my tech heroes. The hack is done with a service anybody can find, called ID spoofing. Google it. It works like a pre-paid calling card or sometimes through a Web interface. You pay for a certain amount of time to have a PIN that represents to the telephone you are calling that you are calling from a different telephone number.

Spoofing can be used for legitimate purposes, as law enforcement sometimes uses it, or women fleeing from abusive situations have used this to conceal their location and phone number. But mostly, it is considered a malicious act, and bills have been introduced several times to outlaw the practice, beginning in 2006. Finally, in December, 2010, the Truth in Calling Actpassed Congress and was signed into law by President Obama, prohibiting spoofing “with the intent to defraud, cause harm, or wrongfully obtain anything of value...” Law enforcement is specifically exempted. The penalties are fines, and enforcement is under state jurisdiction.

But the important part of the Globe article is to explain how to protect yourself from having your voice mail hacked. Here is the information: Protect your voice mail

The image is courtesy of Entrepreneur website, which actually has a very helpful post about protecting your cellphone, adding a paragraph about the viruses that are becoming so rampant in a lot of the apps that people are adding outside of the official sites. See http://www.entrepreneur.com/blog/219961

Alert! Changes in Credit Card Interest Rates & Penalty Rules!!!

2011-07-13T10:13:00.004-04:00

The new law and regulations governing credit cards is going into effect, and it's something that everybody with credit cards needs to be aware of! Visit the Treasury Department's handy website: www.helpwithmybank.gov for a useful and easy guide. But here are some highlights that you need to be aware of:

Banks are going to be raising the interest rate on your credit card. They will send you a notice, usually saying that the interest rate will kick in in 15 days. [YOU need to know that this interest rate will only affect new purchases after the 15 days date IF you REFUSE the increase and choose to pay off your balance at the old rate!! But you have to be proactive and register your refusal.]**This may be an error! The Boston Globe article specifically said this, but I cannot find anything on any of the websites or in the text of the Federal Register (yet!) to verify this statement If it's a mistake, my apologies, folks. I will finish correcting as soon as I finish reading through the Federal Register!

Penalty rates for late payments are going to go way up!! Generally, banks can't change the rates on existing balances, UNLESS you are 60 days late or more paying the balance off! Then they can come at you with a penalty interest rate as high as 29.99% or higher!!

The law was designed overall to protect consumers, so it's ironic that there are these surprise provisions to warn you about. From the Treasury's website, helpwithmybank.gov (the Treasury's site is more helpful than the Federal Reserve's link, but look at both if you have questions about credit cards.

The Credit Card Accountability, Responsibility and Disclosure Act of 2009 (also known as the Credit CARD Act) for credit card companies will result in new credit card policies and protections for you. Effective February 22, 2010 there will be new rules for rates, fees, and payment due dates. The new law also provides protections for consumers under age 21.

The Federal Reserve has prepared a brochure titled: What You Need To Know: New Credit Card Rules, that highlights the key changes.
You can view and print the pamphlet at the following link:http://www.federalreserve.gov/consumerinfo/wyntk/creditcardrules.htm.

An even more helpful website than either government site is the Credit.com site.
They summarize the new law and regulations in plain language and make it very accessible. The nice thing is that it is written from the consumer point of view, which is different from the government sites. The site has lots of other helpful information about consumer and credit concerns. Links are at the bottom of each page. The site seems very credible, consistently rating number 7 in lists of top 20 or top ten financial websites from places like CNNMoney.com or FastCompany.com or even number 6 at Finovate's list. It claims 15 years of experience and a large professional and experienced staff.

Wikipedia (at least as it appears on 7/13/11) contains an excellent summary of the law as well, including the controversial addition of an unrelated rider that prevents the Secretary of the Interior from prohibiting citizens to possess firearms in any National Park. The entry is excellent for including links to websites providing full text of the statute, versions of the bill, and regulations that are related to the bill. The list of related regulations includes some that are not linked on the Internet, very complete.

The image is courtesy of http://blogs.dallasobserver.com/unfairpark/2011/03/dallas-fort_worth_deep_in_cred.php

Robert F. Kennedy Papers--The Saga Continues

2011-07-12T17:55:00.015-04:00

The struggle over the papers of Robert F. Kennedy continues. We previously blogged about papers dating from Kennedy's time as Attorney General, held by the John F. Kennedy Library, but closed to researchers because the Kennedy family refused to grant full public access. On March 1, the presidential library decided to open up the sixty-three closed boxes, and archivists have been "organizing and declassifying" the papers since then; this work should take between six months to a year to complete.

An article in today's New York Times brings the saga up to date. According to the Times,

As archivists prepare to make public 63 boxes of Robert F. Kennedy's papers at the John F. Kennedy Library in Boston, his family members are having second thoughts about where they should be housed and are considering moving them elsewhere because they believe that the presidential library has not done enough to honor the younger brother's legacy.

The family never transferred title to the papers to the Kennedy Library, and they have expressed the desire that they be held in a facility that would do more to memorialize Robert F. Kennedy. Family members point out that President Kennedy is memorialized by his presidential library, and that the Edward M. Kennedy Institute for the United States Senate is in construction. There is nothing similar for Robert F. Kennedy. The Kennedy library offered to name a wing for Robert F. Kennedy if the family would transfer title to the papers, but the family refused, saying "'They offered to put the name on a hallway.'"

Because the family feels disrespected by the presidential library, they have had talks with other institutions and universities about housing the papers there. Should the family attempt to move them, the issue of ownership of the papers would move to the forefront. The family believes it has "right" to the papers, while "ownership of papers from Robert Kennedy's years at the Justice Department might be disputed under the Presidential Records Act." Douglas Brinkley, a professor of history, "says he hopes the Kennedy Library finds a way to properly honor Robert Kennedy's legacy. ... But no matter what is done, you will always stand in the shadow of a brother who was president."

Calls for Comments on the AALL Vendor Action Plan

2011-07-12T09:31:00.007-04:00

Margie Maes, Vendor Liaison for the American Association of Law Libraries, has posted a request for comments on the new action plan for vendor relations. You can read the action plan and comment on it on the AALLNET Vendor Colloquium page. A group of librarians feels that the proposed action plan doesn't go far enough in addressing long-standing concerns about AALL's commitment to consumer advocacy. In response to the request for comments, a number of AALL members have joined together to draft a group response, which follows:

Dear Vendor Colloquium Working Group:

Thank you for inviting AALL members to comment on your Action Plan. The undersigned are among AALL members who want AALL to revitalize its commitment to consumer advocacy. Some of us bring to our recommendation many years of experience as AALL members and law librarians.

We appreciate your dedication to improving librarian-vendor relations, and we support goals designed to aid communication. However, the Action Plan has a serious shortcoming: it falls far short of AALL’s promise as a consumer advocate. The “partnership” ideal endorsed in the Action Plan appears to apply to all legal information vendors, whether or not they have extensive histories of anti-consumer practices. In fact, you do not define "partnership" or “consumer advocacy,” and appear to limit consumer advocacy to discussion during an Annual Meeting program. At any rate, we support the idea of engaging smaller legal publishers, under Goal II-C, and any other legal-content vendors who follow consumer and antitrust law in their business practices.

Even before the ongoing economic crisis, law libraries could not afford the cumulative costs of anticompetitive and unfair business practices by some vendors of legal and law-related information. In 2006, an attorney for the Information Access Alliance testified on skyrocketing subscription prices and unreasonable contractual constraints from single-firm, anticompetive conduct. Although his testimony concerns harm to research libraries from "bundling" of scholarly journals, the same type of conduct has harmed law libraries when they renew their subscription contracts. As described in a recent Library Journal interview, evidence also abounds of unfair business practices. A few of the many examples include:

• opaque, confusing, and deceptive pricing models for online subscriptions and for "bundled" portfolios of print or print-and-online subscriptions;
• non-disclosure demands in contracts;
• inclusion of more or fewer titles than requested in bundled subscription contracts, with inadequate or no options for correction;
• serious, widespread failures in editing, indexing, updating, and revising of publications

The business misconduct has reached a scale of devastating impact on law libraries. It has imperiled not just the quality and integrity of their services, but also, in many cases, their long-term sustainability.

Law libraries and allied consumers of information services should work together to remedy anti-consumer practices within the industry. They can do so without violating antitrust law. They may act in coalition to petition appropriate governmental bodies for remedies vital to their collective interests, and to the public interest.

We would rally behind AALL if it did everything possible to advance this vision of consumer advocacy. We would welcome collaboration with AALL’s leaders. So we recommend, as a first step, that AALL’s Executive Board embrace our proposal of a more robust consumer advocacy than AALL has pursued. At your request, my colleagues and I would be happy to elaborate on the proposal. We also ask that a future Colloquium focus on the means and goals of consumer advocacy, with digital or phone-conferencing access to all members, and a full, open record of proceedings.

If you wish to add your name in support of this comment, please contact Michael Ginsborg at michaelginsborg@yahoo.com. We expect to submit it to Margie Maes by the July 15th deadline.

Data-Mining Facebook?

2011-07-11T18:06:00.005-04:00

Jason Kaufman, a fellow of Harvard's Berkman Center for Internet and Society put together a research team in 2006, of 5 sociologists. Himself, 4 others from Harvard, and one from UCLA, to look at the Facebook pages from the students at Harvard College who would graduate in 2009. They hired student assistants at Harvard to help them go through, and collect data, as they followed the students through their 4 years at college. They collected information such as home state, major, political views, network of friends, gender, romantic relationships and preferences. They believed they were redacting information in a way that would protect the identities of the subjects adequately.

But Kaufman did remark in a videotaped talk in 2008, "Considering the Sociology of Facebook: Harvard Research on Collegiate Social Networking," that using Harvard students as research assistants did create an "interesting wrinkle... from a legal point of view..." If a Harvard student subject of the research, for instance, had set his or her privacy settings to show information only to his or her friends, and yet one of the research assistants was able to access this Facebook page because he or she was "friended," that is different from the undergraduate who had set privacy settings to show the whole world his or her pages. Nobody at the Berkman Center ever told the undergraduates on Facebook that they were studying their Facebook pages. They did not want to alarm them. Mr. Kaufman says that, "We all agreed that it was not necessary either ethically or legally."

What the sociologists have gathered is a fabulous collection of useful data. They released a portion to the public, titled "Tastes, Ties and Time," Facebook Data Release, September Data Release, 2008.

The Chronicle of Higher Education reports on critics attacks on the project, "Harvard Researchers Accused of Breaching Students Privacy", by Marc Parry, July 10, 2011. As early as 2008, Michael Zimmer, a privacy scholar and co-director of the Center for Information Policy Research at the University of Wisconsin, Milwaukee, raised alarms over how easy it was to identify the supposedly "anonymous" university which was the source of the data, and to possibly identify the individual students within the study. For instance, there were only 3 students in the dataset from Utah, so that the Chronicle was able to pin point and contact one student and ask what she thought. (She did not mind her data being out there, but she would rather have been asked) The concern is that future employers, for instance, might use such data to discriminate.

The Chronicle article describes a very unclear battleground, where grant funders push for more data sharing and the privacy standards surrounding social networks are shifting from moment to moment. The author, Marc Parry, does a great job of explaining the increasing risks and difficulties for researchers with the best of intentions in trying to safeguard research subjects while doing internet research. He relates a story where a researcher gathered a Twitter stream from a whole group of people who were protesting a meeting, the Group of 20 Summit in Pittsburgh, probably using the hashmarks. During the research period, though, the police cracked down, and began to investigate the protesters. One of the major subjects of the Twitter research suddenly deleted all his tweets. But the researchers had already stored them separately in an archive and planned to use the data in a paper they were planning. The researchers had not sought prior approval from an Institutional Review Board (IRB board), thinking of Twitter more as newspaper publications than as utterances that might come under 5th Amendment protections. The researcher commented to the Chronicle author that he doubted his IRB Board would have predicted the issue arising the way it did any more than he did. This is just a developing area where it's very difficult to imagine how things might blow up. On the other hand, the Harvard/Facebook data was a very unique and difficult-to-gather data-set that many sociologists have wanted to use. Apparently many scholars have applied to use the data. Perhaps scholarship, says Parry, is the biggest casualty.

Starting Pay for New JDs is Trending Down

2011-07-11T16:19:00.007-04:00

NALP (National Association for Law Placement) issued a press release on the employment and salaries secured by the graduates of the class of 2010. It is not a happy picture, which should come as no surprise.

They had earlier reported (in June) that 50.9% of the 2010 grads had jobs compared to 55.9% of the 2009 class. And more of the jobs are in smaller firms than in earlier-graduating classes. As we will see, this tends to depress the salaries. Part-time jobs make up about 11% of the jobs reported to NALP overall of the jobs requiring bar passage. But part-time jobs are especially prevalent in the academic sector and public interest sector, for jobs requiring bar passage. Only 68.4% of the class of 2010 reported to NALP that they had obtained jobs for which bar passage was required by the time of this report, and only 64% had full time employment in jobs requiring bar passage. 27% of the jobs were temporary, including judicial clerkships. Excluding clerkships, the percent of recent grads holding temporary jobs requiring bar passage is 19%.

2009

Nat'l.
Median $72,000

Nat'l
Mean $93,454

2010

Nat'l
Median $63,000 (down ~13%)

Nat'l.
Mean $84,111 (down ~10%)

* All figures for those reporting full time work. Note that there is a large discrepancy between large firm salaries, which tend to cluster between $145-160,000 and small firm and other salaries, which cluster around $40-65,000. This means that there are very few salaries that actually fall anywhere near the mean or median points. They should actually skip this national overall analysis and just do the separate analysis for large firm rates and small firm and alternate practice rates, I think!

By type of work:

Law firm:

2009

Nat'l.
Median $130,000

2010

Nat'l
Median $104,000 (down ~20%)

Adjusted
Mean

2010

$93,748 (they did not include the 2009 figure)

Virtually no change from last year for public service & government salaries. So most of the downward pressure on the salaries is coming in the law firm market.

I recommend reading the short report in full, though it is not happy news.

Doing Justice, International Style

2011-07-07T23:17:00.010-04:00

International criminal law has been in the news of late. The International Criminal Court recently issued an arrest warrant for Muammar Khadafy; it remains to be seen if he will ever be brought to justice. In addition, Ratko Mladic,
commander of the Bosnian Serb army, was charged with genocide and crimes against humanity, and went on trial before the International Criminal Tribunal for the Former Yugoslavia on June 3. This is the fiftieth anniversary of the trial of Adolf Eichmann, architect of the Nazi policy of forced deportation of European Jews, who was responsible for the deaths of millions. The conjunction of current events and the anniversary of the Eichmann trial inspired a thoughtful piece in The Boston Globe, written by Illana Bet-El, a writer and historian.

She believes that the Eichmann trial should be a model for modern war crimes trials. Eichmann's trial lasted only eight months. It featured an opening speech by the chief prosecutor, Gideon Hausner, that "was, and possibly remains, a high point of legal oratory: simple, direct, and powerful." Equally important was "the visual impact of the trial ... with Eichmann, the bespectacled middle-age man in a suit, his face often framed by heavy headphones ... encased in a glass booth." Bet-El asserts that the

[T]rial remains iconic ... [it] gripped an audience, explained the event, and imprinted its meaning: justice was seen and understood to be done in a clear and steady manner - relevant both to the victims and many millions of onlookers.

In contrast, modern war crimes trials are interminable, sometimes lasting for years. They do not engage the world community with their "constant if minor drip of developments." There is no sweeping oratory. Eichmann was isolated in his glass booth, while in the modern trials, all of the proceedings take place behind glass, and the participants interact only with their computers and earphones. "To the outside world, justice is neither seen nor heard to be done." There is still time "to retool the machinery," to try Mladic (and perhaps Khadafy too, one day) in such a way that the trial will work for "the victims and the greater good." Bet-El offers some specific suggestions: "[H]is trial must start and end in a timely manner; it must be clear and succinct; and it must encapsulate the horrors of the events."

Bright spots in legal job market

2011-07-06T15:19:00.002-04:00

NALP Executive Director James Leipold, speaking at the Northeast Association of Pre-Law Advisors, pointed out a few bright spots in the otherwise dismal job market for lawyers:

technology

health care

regulatory work

seem to be picking up a bit, with lateral hires looking strong, while entry level, alas, still pretty bleak.

Boston College Archives Subpoena is tip of an iceberg

2011-07-06T14:33:00.003-04:00

Some time ago, I wrote a brief post here about a troubling story here in Boston. Boston College archives contain oral histories of some of the people involved in the "troubles" in Northern Ireland, a few still alive. Suddenly, they have been subpoenaed, despite the individuals who were interviewed for the oral histories being promised complete confidentiality. It turns out that the U.S. Department of Justice is helping the British government serve the subpoenas. The Chronicle of Higher Education has an excellent article following up on that short article (my link was to the Boston Globe).

It turns out that the subpoena is under a Mutual Legal Assistance Treaty (MLAT), which began to be entered into about 30 years ago, according to the Chronicle. These treaties create mutual obligations between the agreeing nations to assist in "criminal" investigations and prosecutions. The U.S. entered its first MLAT in 1976, with Switzerland. Before the rise of MLATs, police or investigators had to move through courts and diplomatic channels with letters rogatory. Now they can simply go police to police. Sounds really good when you are talking about following terrorists or drug smugglers or such evil doers. The problem comes, according to Senate Executive Report 104-22, titled "Treaty with the Republic of Korea on Mutual Legal Assistance on Criminal Matters," dated 1996, from the Senate Foreign Relations Committee. The report notes that the problem with these MLATs is that the crimes that the other country requests the U.S. assist with investigating need not be criminal under U.S. standards. So under MLATs, can the United States be pulled into investigating foreign nationals for activities which are political crimes only under the terms of another nation's draconian laws, but which would be perfectly legal under our own laws? The Senate report says political crimes are an exception. But Chris Bray, writing for the Chronicle, does a masterful job of analyzing how this example is sliding past the definition police.

The MLATs vary in how broad the terms can be -- some are broad enough to include civil and administrative proceedings in addition to criminal proceedings, so that forfeiture proceedings could be covered in drug investigations, for instance. All of the treaties have exemptions to the types of actions, but these tend to be based on the national security interest, not interest of individuals, or ethical guidelines, so that saying that individuals might be killed because you opened the archives would not be a reason for an exemption. In the U.S., MLATs are executed through the criminal division of the Justice Department, which seems to be exactly who was serving the subpoena on Boston College. Kudos to Chris Bray at the Chronicle for doing great research on the problem!

Prof. writes about "scambloggers" reshaping legal education

2011-07-02T19:12:00.004-04:00

The angry law students and recent graduates, disillusioned by the terrible job market have been much covered by the legal press and blogs like Above the Law, and the ABA Journal online. Their blogs like Third Tier Reality, Law School Transparency, and the Temporary Attorney, Lawyers Against the Law School Scam, Subprime JD, and many more have been noted at law schools and the ABA alike.
The ABA reports on law professor Lucille Jewel of John Marshall Law School in At;anta who has an article in the latest issue of the Minnesota Journal of Law, Science and Technology (vol. 12, issue 1, Winter, 2011), You're Doing it Wrong: How the Anti-Law School Scam Blogging Movement Can Shape the Legal Profession, at page 239-278. Prof. Jewel argues that the acid tone of the proliferating blogs by angry students and graduates is having a slow but powerful effect changing the law schools and the ABA which accredits law schools. The blogs raise the problem of an oversupply of lawyers in the job market, the exorbitant expense of legal education, and a lack of transparency in how law schools report and publicize post-J.D. employment data. Deans and administrators are reacting to the criticism.

Meanwhile, Prof. Bill Henderson of Indiana University has been studying the job market for some time and has come up with an article in the
ABA Journal and online that considers whether the changes in the legal marketplace were happening before the economic meltdown, and are part of a paradigm shift. Henderson has graphs showing big shifts from employment in law firms to more demand for legal services from low to middle income people who cannot afford the traditional law firm model, whether big or small firm. Henderson compares legal services to many other industries: architecture, newpapers, insurance, securities, and accounting to consider ways in which this business (which so few of us have really thought of as an industry) needs to change in order to take advantage of the new marketplace.

I keep telling students that in some ways, this meltdown actually is like a big forest that has had a tornado rip through. it leaves huge swathes of space open for a different kind of growth. If they are willing to think differently about delivery of services, there is a huge demand for services that is unmet. People who have connections in their community through ethnicity, religion, sports organizations, dog walking or any sort of connections, or who are willing to make those connections, can build a constituency and have word of mouth advertising. Attorneys who do good work for a fair price will find a market. But to make a business model that can be scaled and replicated into a larger group than just a one or two person office, you need to think very creatively about how to break apart and re-deliver the pieces of what have been done in traditional offices.

Look at the Henderson article for some provocative ideas.

Know Your General Counsel

2011-06-29T19:59:00.002-04:00

There is a nice little article in the newest Chronicle of Higher Education reporting on a conference meeting for university general counsel. The thing I liked about this brief little article was the insight it gave me about the job of a university general counsel. They have to keep the interests of the institution in mind, because that is their client, not the various individual employees who might be speaking with them. And that must be a bit confusing for new GCs, and certainly can be for their colleagues -- as is pointed out in the article. There are so many layers of hierarchy at a university, and the individuals at those levels shift and change over time, though not usually very quickly.

And from my own point of view, in frustration with the extremely conservative, risk-averse advice that GCs tend to give to universities and libraries, the article was also helpful. They mention, specifically that issue. They advise going beyond the caution of an attorney general or silk stocking firm, and using the rule of, "would you want to see it on the front page of the paper?" I thought it was an interesting rule to make legal decisions with... Frustrating in the extreme, but I suppose it keeps litigation down.

Surfeit of Lawyers?

2011-06-27T19:23:00.004-04:00

The New York Times Economix Blog reports today on the number of lawyers passing the bar per state, compared to the number of openings for lawyers in existing firms, and whether that amounted to a surplus or shortage. They created a nifty chart, including hourly wages for the 2009 bars. They conclude that the most over-lawyered states, in order:

New York
California
New Jersey
Illinois
Massachusetts
Pennsylvania

There is a fairly sharp drop down to the next states below these, if you are tracking the surpluses. There are a few places where the production of lawyers is not so far out of line with the demand. And you must keep in mind that not all those who pass the bar are looking to take jobs advertised with law firms. There are people who want to work in academe, business, finance, health care with a JD degree and have the bar behind them. And there are a number who take the bar exam planning to hang out their own shingle or work in a small firm or who already have a job in hand. But, it is a disturbing analysis, especially when you look at the overall total for the nation: In 2009, we produced 27,269 more lawyers who passed state bar exams than there were advertised positions for.

US News Likely to Change its Law School Ranking Methodology

2011-06-25T12:57:00.003-04:00

Robert Morse, at " writes that US News and World Report may change the way it computes the percent of students employed at graduation and 9 months after for rankings purposes, following the ABA's shift in its requirements for law schools filling out annual questionnaires. The Morse Code refers to the blog, Law School Transparency for reporting on the ABA changes to the rules on reporting post-graduation employment in a clear manner.

Gay Marriage Legislation in NY!

2011-06-25T11:09:00.003-04:00

New York has passed a bill legalizing same sex marriage, and governor Cuomo is expected to sign it. Here is a nice, in-depth story from the NY Times on the behind the scenes stories that went into making the bill a reality. The bill passed in a state where Republicans actually control the legislature by a slim margin. But the Times article makes it plain that the decisions turned on personal relationships that influenced the various legislators -- gay children, relatives, friends, friends of friends who influenced the decisions of the voters. Governor Cuomo had made same-sex marriage a priority, though he had been distracted by several battles over budget issues. But his strong support has undoubtedly been key to the passage of this law in the largest state recognizing marriage equality for same-sex couples. See NY Times article here on passage late Friday, in Senate 33 - 29, with 4 Republicans joining the Democrats in passing the bill.

Flying Solo

2011-06-21T18:17:00.017-04:00

How bad is the job market for new attorneys? According to this press release from NALP, the National Association for Law Placement, the class of 2010 "faced [the] worst job market" since 1996. NALP Executive Director James Leipold stated that

The tail of the "Great Recession" is long and there are few bright spots in the employment profile for the Class of 2010 ... Most of the structural weaknesses in the job market faced by the Class of 2009 intensified for the Class of 2010 ...

The press release accompanied the "Employment for the Class of 2010--Selected Findings," which was published on June 1. The full report, Jobs & JDs: Employment and Salaries of New Law School Graduates, will be published in August. It is highly unlikely that the employment situation will be any brighter for the Class of 2011. According to Leipold,

There is likely more bad news to come ... we can expect that the overall employment rate for new law school graduates will continue to be stagnant or decline further for the Class of 2011, with the curve probably not trending upward before the employment statistics become available for the Class of 2012.

So what is the new attorney to do? Some attorneys are deciding to start solo practices, eschewing offices with high overhead and instead practicing from home with a laptop and a cell phone. NALP reports that the

[N]umber of recent law graduates going solo increased from 3.5 percent in 2008 to 5.5 percent in 2009, the biggest one year jump since 1982. ... That percentage increased to 5.7 percent of all private practice jobs for the class of 2010, the highest it's been since 1997.

This trend is discussed in a recent article which describes how new attorneys are hanging up "virtual shingles" by taking advantage of technology. One important task when setting up a solo practice is to build a website which can be used to attract clients. Blogging and social networking are also efficient ways of connecting with potential clients. Most of these attorneys are maintaining paperless offices and doing without staff support. The solo attorneys interviewed for the article were extremely dismissive of law schools and their focus on placing "graduates in government, public interest or corporate law firms." There is little to no attention paid to set up and maintain a solo practice. Even worse, according to the interviewees, is that the

[M]ajority of law schools continue to focus on how to interview for jobs or submit resumes for job postings, rather than honing the skills needed to be a successful business person.

A good resource for solo practitioners is the MyShingle blog, which describes itself as "the most comprehensive online resource for solo and small firm lawyers with thousands of blog posts and an impressive stock of free e-books, checklists and forms on starting and running a law firm." Another good resource for solo practitioners is Solo Practice University, "a subscription-based website founded in 2009 that offers video, written and audio tutorials for prospective or current solo practitioners."

I was surprised to see that the article did not mention access to legal research databases, such as Lexis and Westlaw, and less costly alternatives to them, both free and fee based. One of the best services my law school provides its graduates is free lifetime access to the law library. As a private institution, we are closed to the public, but our alumni do not have to pay the usual access fees. Many of our alumni have set up solo practices in the area, and they are coming back on campus regularly to use the library. Not only are they taking advantage of our public-access Lexis subscription, but also they are using other databases and the print collection. We have also created a research guide on free and low-cost legal resources, and this is extremely popular among both current students and alumni. It is great to see our alumni again, and to feel that we are contributing to their professional success.

Back from Spain

2011-06-21T12:37:00.013-04:00

I just returned from a three-week trip to northern Spain (Barcelona, Bilbao, Leon, Burgos, Astorga, Santiago de Compostela, La Coruna) and then to Madrid. Barcelona, of course, is famous for its collection of buildings designed by Antoni Gaudi, and these did not disappoint. In Bilbao, we visited the Guggenheim Museum with its renowned building; the building is eyecatching to be sure, but I was underwhelmed by the collection of art it contained--the reaction of a jaded New Yorker? Leon and Burgos are famous for their cathedrals, and the cathedral in Leon is particularly noteworthy for its stained glass, which is simply spectacular. Santiago de Compostela is the home of another famed cathedral, not as ancient or beautiful as those in Leon and Burgos, but holding a special place in the heart of Roman Catholics because it contains the tomb of the apostle Saint James the Elder, the patron saint of Spain. Santiago de Compostela is also the endpoint for pilgrims on El Camino de Santiago, which runs through northern Spain. We had earlier encountered pilgrims in Leon and Burgos, which are also on the Camino. They are hard to miss because they carry walking staffs which are adorned with scallop shells, the traditional symbol of the pilgrimage. The illustration to this post is of a scallop shell like the ones we saw everywhere in Santiago in Compostela. The pilgrimage dates back to the Middle Ages and has become very popular among people of all ages and nationalities in the last decade or so. In La Coruna, we climbed the Tower of Hercules, originally a lighthouse built by the Romans, which afforded splendid views of the surrounding countryside and ocean. In Madrid, we spent a long day (ten hours) at the Prado, and didn't manage to make it through the whole collection. I had forgotten what a treasure trove of Old Masters it contains. We also visited a special exhibit at the Palacio Real of art from Poland, which contained two paintings I had never seen before except in illustrations--a glorious portrait by Rembrandt of a young girl who nearly jumped out of the picture frame at the viewer. The Rembrandt almost stole the show from the crown jewel of the exhibit--Leonardo's Lady with an Ermine. We lingered so long over this enigmatic painting, considered a Polish national treasure, that the guards practically had to throw us out. The rest of the exhibit is also well worth seeing.

We were last in Spain about thirty years ago, and so much has changed. What hasn't changed is the beauty of the countryside and the delectable food made from locally-grown vegetables and fruits. The tomatoes and oranges bear little resemblance to what we buy in our supermarkets back here. I'm going to have to make it a point to frequent farmers' markets this summer and liberate myself from supermarket produce.

The last time we were in Spain, we visited Madrid and southern Spain, and most people seemed to speak Castilian. In northern Spain, depending on where you travel, people speak Castilian, but also Catalan, Basque, and Galician. Catalan and Galician I could cope with, but Basque was completely impenetrable to me. I later learned that Basque predates the Romance languages, and is unrelated to any other European language. That explains my difficulty in understanding it. Something else that struck me was the number and variety of bookstores in Spain. At home, we are all aware that independent bookstores are dying off, and we are left with only a few large chains. This is not the case in Spain, where there may be several bookstores in one block. Although this is particularly true in university towns, it was also true in towns that did not have universities.

Speaking of bookstores, before the trip, I finally bought myself a Kindle and I think I'm in love. I loaded it up with some old favorites and some classics I hadn't read before, and I found it to be a tremendous convenience. At first I missed having a physical book, but I soon found that the format didn't actually make much of a difference in my reading experience. I hadn't brought a laptop with me, but I was able to use my Kindle for email. It works well for reading messages, but not so well for sending messages--not surprising as it is meant to be a reading device.

Gay Marriage and Civil Rights

2011-06-18T00:20:00.003-04:00

Do we get it yet?! This past week saw the ruling in the Proposition 8 case in California, where now-retired federal judge Vaughn Walker has been challenged in his ruling on the case because he didn't recuse himself as an openly gay person in a long-term relationship. Many commentators in the news stories noted that we are just where we were 30 years ago with respect to African-American and female judges being challenged for not recusing themselves on civil rights and sex discrimination cases. Judges should not be challenge-able on the basis of their membership in a minority group, whether it is based on ethnicity, language, religion, gender, or sexuality or gender identification.

There is a separate little issue running alongside: cameras in the courtroom. How many people have been beaten to death for opposing gay marriage, compared to the number of people beaten to death for being or even appearing to be gay or lesbian or transexual? I would challenge the people concerned about witness protection to come up with anybody who has been seriously injured from the straight side.

Here is a link where you can conveniently find both of Judge Ware's orders, about the recusal and the separate order about the videotapes, and cameras in the courtroom. The site is an organization that is trying to raise money to fund ads around the courthouse in support of the gay marriage side. I am a little bemused that they think this would be affecting the judge's decision. I certainly hope it doesn't work that way! But the site does have convenient images that appear to be true copies of the actual decision in the case.

Copyright Cases Looming over Academia

2011-06-05T19:28:00.006-04:00

There are a raft of big copyright cases looming involving higher education and copyright issues.

I.
Cambridge University Press et al. v. Patton et al, (U.S. District Ct. Northern D. Georgia, Atlanta Division)

Cambridge University Press, Oxford University Press and the Copyright Clearance Center are suing Georgia State University over its practice of not charging students any copyright license fees for online reserves, or, as the publishers characterize it, online coursepacks. The university claims the use is within the ambit of fair use. The publishers seek to limit the university to 1,000 words before exceed “fair use” and be required to seek a license to use materials from copyright holders. This case has many academics and librarians very anxious.

II.
Association for Information Media and Equipment and Ambrose Video Publishing Inc. v. The Regents of the University of California et al. (no link available at this time)

The educational video producer sold DVDs of Shakespeare plays to UCLA, which then put them on e-reserve where students could streamed them to view as a reserve study item. The video producer and its trade group argue that this is a violation of copyright and breaches the contract which only gave the right to lend copies to teachers for in-class use or to display the videos in the library. UCLA argues that copyright allows streaming under the fair use principle which allows reproductions for teaching. The TEACH Act also allows limited use of copyrighted materials for online educations. Ambrose sells its own streaming service, which of course, they would like to sell to the university. But universities and libraries fear that a narrow decision would affect many purchasing and e-reserve policies.
(Chronicle of Higher Education, “Two Universities Under the Legal Gun”by Marc Parry and Jennifer Howard, May 29, 2011

and
Chronicle of Higher Education “What’s at Stake in the Georgia State Copyright Case” May 30, 2011 Experts”
Kevin L. Smith, Dir. of Scholarly Communications, Duke University,
Peter J. Givler, Exec. Dir., Assoc. of American University Presses,
Siva Vaidhyanathan, Prof. of media studies and law, U. of Va.
David E. Shulenburger, Sr. Fellow, Assoc. of Public & Land-Grant Universities, and former chancellor and provost at U. of Kansas,
Kate Douglas Torrey, Dir., U. of N.C. Press
Dorothea Salo, Research-services librarian, U. of Wisconsin at Madison,
Brandon Butler, Dir of public-policy initiatives, Assoc. of Rsch. Libraries

The comments run fairly predictably by the affiliation.
Plus interesting lengthy comments from Mott Greene, Sandy Thatcher, and a Paul MM.

III.
Golan v. Holder (Supreme Court)

The Uruguay Round Agreements Act (URAA) moves some foreign works that had been in the public domain in the United States into copyright, by extending the copyright on the titles retroactively. The policy may be to encourage foreign jurisdictions to grant more copyright protection to U.S. works, but the passage of the URAA was driven by the U.S. signing of the Berne Convention, which in Article 18 requires the US to harmonize its law with that of members of the European Union and other signatories. (text of Convention)

However, the effect for small orchestras, bands and symphonies, for instance, in the U.S., has been devastating. Material from early 20th Century composers such as Shostakovich, Stravinsky and Prokofiev had been available in the public domain, and much used. Suddenly, these are suddenly under copyright again. When a symphony’s annual budget to pay for music may only be $500, this has had a terrible impact.

But the copyrights are not limited to music. They cover books by H.G. Wells and C.S. Lewis, art by M.C. Escher and Picasso and films by Federico Fellini and Alfred Hitchcock as well. There are millions of works qualifying for copyright restoration by the estimate of the U.S. Copyright Office. Combined with the effect of the Sonny Bono Copyright Term Extension Act (CTEA), which extends copyright length to life of the creator plus seventy years, this restoration of copyright to millions of works that had been in the public domain will have a wide-ranging effect on many parts of the academy.

The case was filed originally in 1994 as Luck’s Music Library, Inc. v. Ashcroft in the U.S. District Court for the District of Columbia. The case of Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L. Ed. 683 (2003) was taken up by the Supreme Court after the initial filing and the parties paused for the decision to come out, and then refiled their briefs in response to that opinion.

In 2004, the case was decided as Golan v. Ashcroft, 310 F. Supp. 1215 (D. Colo. 2004), (Golan I), granting and denying in part the government’s motion to dismiss. Both parties then moved for summary judgment, and the court granted the government’s motion, Golan II, 2005 WL 914754 (D. Colo. April 20, 2005).

The case was then appealed to the Court of Appeals for the 10th Circuit as Golan v. Gonzales. The court ruled in favor of the appellants. The government petitioned for a rehearing
Response from appellants. http://cyberlaw.stanford.edu/system/files/Golan%20Response%20to%20Govt%20Petition%20for%20Rehearing.pdf

The Circuit Court ruling holds that the URAA violates the First Amendment rights of the appellants. Golan v. Gonzales is the first case to find any of the copyright statutes unconstitutional, so it’s very important. But then on rehearing, as Golan v. Holder, the 10th Circuit reversed its earlier holding and found that the URAA did not violate First Amendment rights.

Now the case is before the Supreme Court on cert. (see The Center for Internet and Society at Stanford Law School’s website on this case, which takes it up to the cert. stage). See also

The Chronicle of Higher Education, “Supreme Court Takes Up Scholars’ Rights,” by Marc Parry, May 29, 2011.
Mostly color. Lawrence Golan conducts student orchestras and is a professor of music at the University of Denver. Prof. Golan explains the impact of the changes the URAA made on small orchestras. There is a very short section looking at a PhD candidate whose dissertation topic involved original documents from early 20th Century archives that suddenly became questionably available for use in large part for her dissertation near the very end. She had to suddenly broaden her topic.

Modestly helpful for links: Wikipedia article. See Berkman, though most of its links are dead, it has good links for statutory. Good link at U.S. Copyright Office on Definition of “reliance party” (those like the orchestras who may have purchased an item that suddenly is back in copyright). There is special protection in the URAA for such parties, though the reliance parties may not feel it is adequate. See http://www.copyright.gov/docs/reliance.html and SCOTUSblog

Online Consumer Privacy - "Do Not Follow"

2011-05-24T14:54:00.009-04:00

Bloomberg News, Eric Engleman and Adam Satariano reported on a hearing in the Senate Commerce subcommittee on mobile privacy on May 19, 2011.

Apple, Google and Facebook and the makers of applications for these these companies’ platforms faced scrutiny at the hearing over how they collect, use, store and share information on users’ wireless devices, from smartphones to any sort of PDA.

Google’s director for public policy, Alan Davidson stated that Google seeks consent from users of its Android software for collection of information and location data. “Google is also very careful about how we use and store the data that is generated by these services.” Location information sent to Google servers when users opt in with Android is stripped of personal identifying tags, for instance, so it cannot be tied or traced to an individual user, and then stored in an aggregated form. And Google provides parental controls to protect children, and requires developers of apps to rate them according to appropriate age level.

One of Apple’s vice-presidents, Catherine Novelli, testified that Apple does not knowingly collect any data about users below the age of 13. Like Google, all location information gathered from iPhones and iPad tablet computers are stripped of individual identifying data, and not traceable to an owner. They use the aggregated information to improve the functionality of devices. “Apple does not track users’ location, has never done so and has no plans to do so,” said Novelli. (I also understand that some manufacturers use the internal GPS and an accelerometer in the devices to find out if the malfunction for which you bring the machine in for repair was caused by it being dropped or hurled. The GPS and accelerometer function together to locate the device in space, determine its speed, and whether it stopped very suddenly. There is also a device that measures humidity levels, so if you drop a phone or PDA into water, or even a steam room, it may void the warranty.)

Bret Taylor, Facebook's chief technology officer said that Facebook has "robust privacy protections ... if people lose trust in a service like Facebook, they will stop using it." (This seems pretty ironic in light of the continuing battle between Facebook trying to "monetize" their site and the outrage of their users whenever Facebook creates a new set of "opt-ins" that streams all the user data out to third party vendors! See this C-Net Op-ed). When asked about Facebook protections for children, Taylor said that nobody under 13 is allowed to create a Facebook account, and that they remove such accounts when they are alerted to them.

In December, the Federal Trade Commission issued a proposed regulation, commonly referred to as “Do Not Follow,” patterned after the popular “Do Not Call” regulation they issued some years ago for telemarketers. The comment period recently closed, and I have heard from a spokesperson for the agency at the GigaNet conference in early May that they received about 200 comments from consumers on the proposal, which was a surprising number. Here is an announcement with links to a report they issued on the matter, including links to make comments and view comments (note that the comment period is now closed). You can track it on their website with the handy "quick finder" from the FTC homepage by following "Privacy and Data Security," to "Behavioral Advertising."

This was a hot topic at the GigaNet conference. There were commentators who felt that the FTC proposal, which relies on the website owners to self-enforce, (because consumers cannot tell if they are being followed) was just too lax. But there was also a commentator, who represented a number of different large web corporations, who warned that if the companies could no longer “monetize” their websites, that many services that are now free, might become billable. Interestingly, there was also a moderator from the European Union, which was mentioned as a place of intense regulation, who spoke up and said that, although the regulations there did allow all consumers to opt out of being followed, that in practice only about 10% of consumers actually did. I was later told as well, that the regulation and laws in the EU were passed long enough ago that technology has bypassed them and there are now many “work-arounds” that web companies exploit.

Law Firms and the "Two Tier System" for Associates

2011-05-24T13:47:00.003-04:00

The Boston Globe today ran a story originally from the New York Times about law firms setting up a "two tier" system for their associates rather than "off-shoring" jobs. The idea is that they offer one set of associates the traditional partnership track. These associates are housed at the offices in the big cities and do the large number of billable hours, and may do more complex work. There is a second set of associates now, though, with varying names. They may be called "career associates" or "permanent associates," and their offices may be in alternate cities or towns with lower cost of living. They are never going to be partners in the firm, and are not expected to work the high number of hours. They may also be doing more mundane work. The upside is that they have more time for family, or outside interests. They typically earn $50 - $65,000 in a year. There is a note of warning sounded in the article about the problems these "permanent associates" have paying off their law school loans on these salaries. And the article talks about the care the firm they feature, Orrick,Herrington and Suttcliff, is putting into managing perception: "There are no second-class citizens at Orrick."

I took a quick look around the Internet and found lots more articles in legal publications about the phenomenon. For instance, from 2009, the ABA Journal has one upbeat management-oriented article about this trend, "Are you Offering the Golden Egg or Golden Handcuffs? Alternatives to Partnership." But, by the fall of 2010, the ABA reported on a study, "Have Law Firm Structural Changes Created a Pink Ghetto?" Obviously, the flexible time of the permanent associate track may be more attractive to young women of child-bearing age. The study looks at the paucity of women in partnership ranks in multi-tier firms compared to single tier firms.

And the July, 2010 issue of The Recorder has an article that looks frankly at the costs and benefits of the structure. The author notes that while the firm pays the alternate track lawyers about half of what it pays the partnership track associates, it typically bills clients for their services at a discount only 25 - 30% less. So, the firm makes a nice profit by using the two tier system. But, the system may not be quite as profitable if looked at in the whole picture, according to this author's analysis. Apparently, the firm often must fix mistakes or re-do some of the non-partner lawyers' work in order to bring it up to the firm standard. While some of the lawyers hired for this tier are certainly the quality that would be hired for the partner tier, others may not be. And the non-partner associates are working in a separate office, in a distant city, making communication more complicated and difficult. These are some of the same problems that plague out-sourcing and off-shoring work. But the article ends with a positive note about careful implementation of the system.

For the Civil War Buffs Out There

2011-05-20T11:56:00.005-04:00

American Libraries offers a fascinating article on one possible cause of the Civil War--overdue library books! Seriously, the article by Rob Lopresti, based on a longer treatment of the same subject that was published by Lopresti and August A. Imholtz in the March 2011 issue of Library and Information History, highlights the "odd scandal" that involved the "New York Times, a library with no catalog, and ... the Dred Scott decision." The Times accused seceding members of Congress of stealing books worth thousands of dollars from the House of Representatives Library with the goal of starting a library in the Confederacy. Subsequent investigation revealed shockingly poor mismanagement of the House Library (there was no catalog; in fact, there were no records of any kind) and lack of adherence to journalistic standards which led the Times reporter to rely on "exaggerated rumors passed on by loose-lipped clerks." You'll have to read the article yourself to figure out the connection to Dred Scott!

A New Twist on the Academic Law Review

2011-05-19T13:19:00.019-04:00

The academic law review is like the weather--everyone complains about it, but no one knows how to fix it. The iconoclasts over at The Green Bag have an idea, which is discussed in an enlightening article in today's Inside Higher Ed. The Green Bag, founded in 1997, seeks "to make short, topical legal writing both cool and tenure-able." Moreover, it "has spawned progeny serious (collections of 'in chamber' opinions by Supreme Court justices), lighthearted (bobblehead dolls and trading cards ... ), and controversial (its own law school rankings)." Its latest initiative is The Journal of Law, which is actually not one new journal, but three, all very different in tone and substance. The first journal is The Congressional Record, FantasyLaw Edition, student edited and meant to be a diversion. It lets readers create a team from members of Congress and then follow their activities, legislative and otherwise. The second journal is Law & Commentary which takes a new approach to peer review. It publishes articles that are unlikely to get placed in a high-profile journal but are worthy of such a placement; the journal also solicits commentary on the article from well-known senior scholars which it also publishes. To quote Professor Ross E. Davies of George Mason Law School, a founder of The Green Bag and editor of The Journal of Law:

There are two interrelated concerns motivating this version of peer review. First, there is the difficulty junior scholars – and also senior scholars working in areas outside their established specialties – sometimes have placing first-class articles in appropriate journals and generally drawing attention to their best work. Second, there is the difficulty consumers of legal scholarship can have identifying which articles – out of the many thousands published every year in the many hundreds of law reviews – most merit their attention. Articles placed in a few leading law journals (the flagship law reviews at prominent law schools and premier faculty-edited journals) will enjoy wide notice. But there are not many slots in those journals, and few of those few go to the work of relatively junior or unknown scholars.

The third journal is also an interesting twist on the typical subjects of academic legal scholarship. Pub. L. Misc. will present documents that are not produced by the courts but that do have implications for policy. According to the introduction, Pub. L. Misc. will publish selected "significant constitutional documents generated by the Article I and II branches of our government," both federal and state.

Print editions of the three journals will be sent to selected institutions (those that subscribe to The Green Bag?) as a gift, but will also be available online. It will be interesting to follow the progress of these three new journals and see if they find a niche.

Marquette Law Librarians Featured

2011-05-18T10:34:00.005-04:00

In the summer 2011 issue of Marquette Lawyer, there is an informative two-page article about legal-research instruction at Marquette University Law School. Like most law schools, Marquette has a mandatory first-year research course, but it also has a required advanced course in legal research, "one of the few requiring that second course." The focus at Marquette is on training students to be good legal researchers, but also on teaching students "to become discriminating and careful users of the results they get." Because of the amount of information that is freely available, the latter focus is especially important. According to library director and Professor Patricia Cervenka, "[m]ore emphasis is being placed on critical thinking about what legal research finds ... You need to know how to blend sources, how to weigh different sources, and especially what sources to regard as reliable and authoritative."

I appreciated hearing about some of the techniques the Marquette librarians use in their legal-research instruction, such as "hands-on activities," "a fact scenario in each of the seven weeks of the one-credit upper-level course," and problems drawn from real life. The librarians also require students to use both print and online resources, and some students report that they find the print is sometimes easier to use than the online equivalent, an observation I often hear from my Advanced Legal Research students.

Ethical quandary for archives

2011-05-17T19:59:00.003-04:00

The Boston Globe has been covering a crisis at the Boston College archives. They had collected a series of interviews from IRA members, assuring them of complete anonymity. And now the Northern Ireland Police Services have appealed to federal prosecutors to subpoena parts of the archive collected under that agreement. I presume that this crisis has been triggered by the visit of Queen Elizabeth II to Ireland. Nevertheless, the archivists are facing a difficult decision. In order to keep faith with the people who trusted the journalist who collected the information in the archive, they may have to destroy the archive.

Congratulations to the University of Michigan Law Librarians

2011-05-16T12:43:00.005-04:00

It is always gratifying to see the librarians highlighted in a law school alumni publication. Over the weekend, I read a laudatory article in the Spring 2011 Law Quadrangle: Notes from Michigan Law. The article, entitled "Whither the Law Librarian," will not be news to any law librarian. It portrays four dual-degree librarians who work at the University of Michigan Law Library as "helping to advance digital research rather than hinder it." The librarians interviewed point out that being a librarian has always been about managing information--finding it and using it--and for this reason, format is simply not that important. The article concludes with the often-repeated statement that "technology has flooded researchers with so much information that, now more than ever, they need a guide to help them navigate the chaos." This is probably true, but I wonder if students today actually believe it.

The piece includes a nice one-page spread featuring Jerry Dupont, a 1967 alumnus of Michigan Law, and the Haiti Legal Patrimony Project, which was undertaken by LLMC in the wake of last year's devastation. Haiti's libraries were not spared, and the country risked the loss of its legal heritage. The Law Quadrangle describes Dupont's efforts to collect over 700 books and documents in "a huge bibliographic project." Items were identified and located in libraries around the world, and are now being scanned to create "a massive digital record ... that combines the strengths of the various collections" from which it came. Margaret Leary, Director of the Michigan Law Library, which provided about ten per cent of the materials being digitized, has the last word about the Haiti Project: "This project is an excellent example of the way collection development policies result in the whole being much greater than any one library."

A New Source of Support for Libraries

2011-05-16T11:51:00.008-04:00

At some universities, academics and sports are worlds apart. According to an article in The Chronicle of Higher Education, a new initiative at Duke University will bring those worlds closer together. Duke recently announced that

Starting this fall, a dollar from every ticket purchased at home games for baseball and for men's and women's basketball, soccer, and lacrosse games will go into a fund for the library system. Football tickets will become part of the venture in the fall of 2012.

(Athletic officials declined to give an estimate of how much money this venture could raise, saying only that the amount would be "significant.")

This is a great idea, as long as the University doesn't reduce the library system's budget because of this influx of new revenue. The Chronicle article points out other "partnerships between sports and library system," of which I was unaware. Examples include support of the Penn State library system by Joe Paterno, head coach of the Nittany Lions; renovation of Ohio State main library building, paid for by Ohio State athletics; and the ongoing support of the library system by the Notre Dame football team (donation whenever the team plays in a bowl game).

Bad Lexis

2011-05-11T17:13:00.000-04:00

Lately, I have talked with a number of students who are planning to set up solo law practices after they graduate and pass the bar exam--not surprising given the job market for new lawyers. Most of them plan on doing something else part time to pay the bills while trying to establish their practices, and they have very little money to devote to start-up costs. One big fear revolves around the loss of "free" access to Lexis and Westlaw once they graduate. New graduates know they have gotten dependent on these databases, and they wonder how they will cope without them. I have suggested a number of free, reliable websites for primary sources, and the Pace Law Library has a good online research guide that gathers together free and low-cost sources. I have recommended that graduates start with the free sources, and then go to Lexis when they need fee-based content such as Shepard's or Matthew Bender publications. Lexis had a good, pay-as-you-go option that allowed researchers to access only the materials they needed using a credit card. That option has been ended, according to an announcement Lexis posted recently. Lexis's reason for cutting off this option doesn't make a lot of sense to me: "This decision is part of our effort to create and support products that better meet those needs identified through collaboration with our customers ..." So exactly how does cutting off access by credit card affect that effort? The only thing that Lexis is trying to support is its own bottom line. Credit card access to pieces of the Lexis database meant that some users cancelled their subscriptions because it was more cost effective to do so. Lexis's decision really hurts the solo practitioner and the small law firm at a time of deep economic distress. Shame on you, Lexis!

Goddess-hood, Interviews and Caucuses

2011-05-02T10:25:00.003-04:00

So, my life is getting extremely weird these days.

I sent my sister, who is a recently retired DA in Texas, starting up a new defense practice, a list of free research sources (including some print in libraries nearby). She evidently shared this on a listserve for other new defense lawyers. Now, my sister says that I am referred to as a goddess by her colleagues.

That’s actually a pretty sad statement, in my opinion. If goddess-hood is going that cheaply, we librarians should all be getting our lightning bolts ready.

Most recently, I have been interviewed by Josh Hadro, of Library Journal, about how a bunch of us are trying to form a caucus around the issue of consumer advocacy within AALL. See the interview at LJ Q&A. I am not even the lead caucus-former, here, but I was the person who answered the e-mail. Some of Josh’s questions:

What prompted you to push for the formation of the Library Consumer Advocacy Caucus?

Can you give a few specific examples of unfair or anti-competitive practices?

How have the voluntary guidelines failed since official FTC oversight lapsed in 2000? Is the LCAC looking to restore that FTC oversight?

How do you think research and law libraries overcome the position they're in with regard to the community they serve—i.e., the fact that they're obligated to acquire materials their researchers need, an arrangement publishers seem to be keenly aware of?

Visit the LJ site to see the full interview and my answers.

Laptop Bans Revisited

2011-04-25T15:57:00.010-04:00

Professor Jeff Sovern declares in his article, "Law Student Laptop Use During Class for Non-Class Purposes: Temptation v. Incentives," that when students witness their classmates using laptops for amusement during class, "it may be comparable to placing beer in front of alcoholics as they watch other alcoholics imbibing." To counter the temptations that laptops present in the classroom situation, he favors banning laptops. Note that the article is still a draft, and some sections still need to be fleshed out. Professor Sovern's article grew out of sixty class visits at St. John's University School of Law made by observers in fall 2010. The purpose of the visits was to observe the behavior of laptop users during class. Over half (58%) of upper-class students used their laptops for other than class-related purposes, but for less than half of the class period. In contrast, only 4% of first-semester Civil Procedure students used their laptops for non-class-related purposes for more than half of the class. How does Professor Sovern account for the stark contrast between the laptop use of 1Ls and upper-level law students? "First-year grades have far more significance for most students than upper-year grades." That is probably the biggest incentive for 1Ls to stay focused on classroom discussion. Other factors that he points to include increased temptation to use laptops as time goes on and boredom as law school ceases to be "exciting." Not exactly the word I would have used to describe my first year in law school! Based on the results of his study, Professor Sovern advocates banning laptops in upper-level classes, but not in first-year classes.

On the other side of the laptop debate is Professor Kristen E. Murray, whose article, "Let Them Use Laptops: Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom," argues that laptops can enhance students' self-directed learning, and that "to ban them completely from a lecture hall is to deny students a powerful learning tool--one that many students already use to enhance their learning."

The debate between proponents and opponents of laptops in the classroom has been raging since schools began wiring their campuses. Many educators at both the undergraduate and graduate level are concerned that students who access the Internet during class will tune out and cease to pay attention to lectures and classroom discussions, compromising their educations. Laptops offer tremendous possibilities as educational tools, but many instructors are not taking advantage of their potential; as a result, students distract themselves during class by checking their Facebook pages, playing games online, checking email, etc. In the article, "Tangled in an Endless Web of Distractions," the Boston Globe describes the situation at MIT, "home to the father of the World Wide Web," where "some ... professors are urging college leaders across the country to free students from their tether to technology." They want to pull the "virtual plug to encourage students to pay more attention in class and become more adept at real-life social networking." Despite professors' concerns about distractibility in the classroom, MIT has not yet cut off access to the Internet in its classrooms.

However, law schools such as the University of Chicago have "blocked wireless access in classrooms to keep students engaged in Socratic discussions ... " At Harvard Law School, Professor Jonathan Zittrain, a specialist in Internet law, "has banned laptops and all mobile devices from his first year torts class since 2004." Despite this decision, he would still be against a "blanket university policy that blocks Web access from classroom," favoring instead a strong policy against student use of wireless devices in the classroom that students would violate at their own peril.

Stanford University's Professor Clifford Nass conducted a study in 2009 that "showed that students who were chronic media multitaskers were more easily distracted." Moreover, they have problems "switching tasks" and "ignoring irrelevant information. They also don't write as well and use simpler sentences." Professor Nass discussed his study in a Frontline interview in February 2010. He advocates "limiting multitasking in the classroom"; more important, however, is to "limit it when [people] are alone, too." This generation of college students is "becoming socially autistic because they lack the practicing skills to navigate social and emotional life."

The Globe article suggests one approach to control the distractions created by ubiquitous mobile devices--software that blocks certain websites for up to twenty-four hours at a time. The three apps listed are SelfControl and Freedom, which work on Mac computers, and LeechBlock, which is designed for the Firefox Web browser.

"A Breach of Trust" at the New York Public Library

2011-04-24T15:30:00.014-04:00

The archives collection of the New York Public Library is a treasure trove containing the papers of President Thomas Jefferson and authors such as Herman Melville and Truman Capote. It has a reputation for adhering to the highest standards of archival practice. Now, however, a ugly dispute between the library and author Paul Brodeur, who used to write for The New Yorker, has become public knowledge thanks, in part, to this article in today's New York Times. Brodeur, "known for his zealous pursuit of asbestos manufacturers and corporate polluters as a journalist," donated approximately 320 boxes of his papers to NYPL in 1992. He was led to believe that the library finished processing the collection in 1997, but later learned that the processing was not in fact finished until 2010. In addition, Brodeur was

notified ... that [NYPL] no longer wanted three-fourths of his papers. He was instructed to either retrieve the undesired documents or to allow the library to destroy them ... [Mr. Brodeur] was livid. In a June 2010 letter to the library demanding the return of his entire collection, Mr. Brodeur wrote, "I no longer have confidence in the New York Public Library's stewardship of the papers I donated more than 18 years ago."

The record for the collection indicates that it now contains 53 boxes, not the 320 Mr. Brodeur originally donated. The library explained to him that "as they did with every donation, they had carefully weeded out what would be useful ... (original letters and rare primary documents) amd excluded less-meaningful artifacts (photocopied news stories and multiple drafts of New Yorker writings)."

NYPL's disposition of the papers is consistent with the deed of gift Mr. Brodeur signed, in which he relinquished all rights to his papers. However, why did it take the library almost two decades to process the collection and decide it did not want the bulk of it? Mr. Brodeur apparently had no reason to believe that the collection was not processed in 1997, when he was told that the "documents had been reviewed and prepared for public viewing" and invited to tour the archives by a senior curator. As Richard J. Cox, Jr., a professor of archival studies at the University of Pittsburgh points out, the library decision seems to have come "out of the blue." Mr. Brodeur now regrets his decision to donate his papers to NYPL, and is vowing to "continue fighting for the return of all his work. 'None of this would have happened if the library had decided to return my collection.'"

Felix Salmon's blog post on this topic highlights an essential lack of meeting of the minds on the part of NYPL and Brodeur. The library sees Brodeur as a writer, and deems only what he actually wrote to be of archival value and worth saving. Brodeur, however, sees himself as an investigative journalist; to him, the sources he used are of equal value and equally worth preserving. As Salmon says:

The NYPL is treating Brodeur as it would an imaginative novelist, which seems to me to be something of a category error. All writers are not the same, and if you’re going to go to the trouble of archiving a journalist’s work, you should take the subject matter of the journalism seriously and also preserve the record of how that writer wrote, on top of what that writer wrote.

What will happen to the bulk of Brodeur's materials which were rejected by NYPL? Brodeur has constructed a storage shed at his home on Cape Cod where he is planning to store them. This is not a secure facility and does not have climate control. Nor is it easily accessible to potential researchers. Victims of asbestos exposure are fearful about the possible loss of Brodeur's sources because they consider them to be a unique font of information available nowhere else. Brodeur's own account of the controversy is available on the Authors Guild website.

A Great Way to Celebrate Earth Day

2011-04-22T11:02:00.010-04:00

We learned yesterday that two of Pace Law School's environmental law blogs, PEN-e, maintained by Jack McNeill, the Associate Law Library Director and current chair of the Academic Law Libraries Special Interest Section of the American Association of Law Libraries, and GreenLaw, which is maintained by our environmental law faculty, have been recognized as among The Top 50 Blogs for LexisNexis's Environmental Law & Climate Change Community. According to the press release,

These top blogs offer some of the best writing out there. They contain a wealth of information for all segments of the environmental law and climate change industry, and include timely news items, expert analysis, practice tips, frequent postings and helpful links to other sites and sources.

These blogs also show us how environmental and climate change issues interact with politics and culture. These sites also demonstrate the power of the blogsphere, by providing a collective example of how bloggers can—and do—impact and influence the law and business in the environmental and climate change arena.

Each of the Pace environmental law blogs fills a niche. GreenLaw supplies insightful analysis and commentary about environmental law issues in the news, while PEN-e "provides a gateway to news, commentary, legal research sources, new books and articles, and legislation on Environmental Law, Energy, Land Use Law and related legal topics."