Sunday, December 31, 2006

Happy New Year!

OOTJ wishes all our friends, families and occasional readers a very happy New Year! Here is a link to an entertaining site that lists some history and traditions of New Years celebrations in the western world. Wilstar (the site) notes that winter-time, January 1 is a pretty arbitrary date on which to celebrate a new year starting. Why not mark it in the spring, when the natural world begins to spring back to life? Or perhaps right on the solstice? According to the linked website, the January 1 date was arbitrarily fixed by the Roman Senate in 153 BC to try to repair the shifts their calendar endured under various emperors' decrees, setting it back in sync with the sun. That seems like a pretty poor choice, unless the solstice occurred at a different date back then.

Those wanting the lyrics to Auld Lang Syne, and more info on New Years' traditions around the world, can visit Infoplease.

Whether you eat black-eyed peas for luck, bang pans and firecrackers to scare off evil spirits, party hearty or hit the hay early, have a happy and safe New Years Eve!

Lawyers Using Google Searches as Evidence

The link in the title here points to an article on about a wireless hacker pleading guilty to launching denial-of-service attacks on his former employer, after his Google searches were produced as evidence. Here is a link to the original story on Cnet News. The criminal prosecution was in the 7th Circuit, and was appealed to the Court of Appeals. On October 27, 2006, the court issued its ruling allowing the use of evidence from the defendant's home computer.

Schuster's own Google searches were used against him.

Court documents say that Schuster ran a Google search over CWWIS' network using the following search terms: "how to broadcast interference over wifi 2.4 GHZ," "interference over wifi 2.4 Ghz," "wireless networks 2.4 interference," and "make device interfere wireless network."

Court documents are ambiguous and don't reveal how the FBI discovered his search terms. That could have happened in one of three ways: an analysis of his browser's history and cache; an Alpha employee monitoring the company's wireless connection; or a subpoena to Google from the police for search terms tied to his Internet address or cookie.

Google has confirmed that it can provide search terms if given an Internet address or Web cookie, but has steadfastly refused to say how often such requests arrive. (Microsoft, on the other hand, told us that it has never received such queries for MSN Search, and AOL says it could not provide the information if asked.)

This isn't the first time that Google search terms popped up in a criminal case: Last year, prosecutors in a North Carolina murder case introduced as evidence phrases culled from a seized hard drive. The defendant was found guilty in part because he searched for the words "neck," "snap," "break" and "hold" before his wife was killed.
(from C-Net article)

In an more technical article, a consultant for the FBI in the case explains more about the investigation and evidence that nailed the disgruntled former employee here.

I try to introduce my students to the growing importance of electronic breadcrumbs as evidence. I think they need to be aware of problems with confidentiality and potential evidence as well. The recent uses of the Internet Way Back Machine to prove trademark and copyright infringement is another interesting thing for lawyers to know about link
and here.

Thursday, December 28, 2006

Ong on Networked Reading

At least one of my co-bloggers here will be excited about this, from if:book:

John Walter, a graduate student at St. Louis University wrote to the TechRet list the other day to announce the launch of the Walter Ong Collection, a digital archive based at the SLU. I went to the site and downloaded a PDF of an early version of one of Ong's more famous essays, "The Writer's Audience Is Always a Fiction." In this particular essay, Ong who made his name analyzing the difference between oral and written communication, explores how this shift changed the role of the reader. Ong makes the case that the role of the reader is quite different than the role of the "listener" in oral communication.

"The orator has before him an audience which is a true audience, a collectivity. 'Audience" is a collective noun. There is no such collective noun for readers, nor so far as I am able to puzzle out, can there be. "Readers" is a plural. For readers do not form a collectivity acting here and now on one another, and on the one speaking to them, as members of an audience do."

What's so interesting here, is that it seems that the age of networked reading and writing promises to get us much closer to one of the crucial aspects of oral culture — the sense that the story teller/author and the audience/reader are joined together in a collective enterprise where the actions of each will have a direct and noticeable impact on the other.

Massachusetts SJC ruling on gay marriage constitutional amendment

Of course, all this hoo-hurrah in Massachusetts is involved with political posturing by our current governor Mitt Romney, who wants to run for president. Here is a brief summary from the Boston Globe

Romney, who has taken increasingly conservative stands on social issues such as gay marriage ahead of an expected bid for the Republican nomination in the 2008 presidential race, charged that legislators had subverted the state constitution on November 9 when they took no action on the proposal.

More than 170,000 people signed a petition that asked lawmakers to put the culturally divisive issue before voters in 2008. The initiative seeks to reverse a 2003 decision by the same court that legalized gay marriage in Massachusetts.

Lawmakers voted 109 to 87 to recess before deciding whether to put the amendment on the 2008 ballot, a step that appeared to kill the proposal.

By adjourning the constitutional convention until January 2, the last day of the legislative session, the Democratic-controlled legislature virtually guaranteed the proposed amendment will not be taken up, prompting protests by gay marriage opponents and celebrations by supporters.


Although Romney has consistently opposed gay marriage, the one-term governor has been criticized for shifting his position on gay rights. During a failed 1994 run for U.S. Senate, he promised a gay Republicans group he would be a stronger advocate for gays than Democratic rival Sen. Edward Kennedy.

On December 27, 2006, the Massachusetts Supreme Judicial Court issued its unanimous decision in Doyle v. Secretary of the Commonwealth, in which Governor Mitt Romney asked the court to force the Massachusetts legislature to vote on a citizen-initiated constitutional amendment to ban marriage equality in the state. The court ruled that, while the legislature has a constitutional duty to vote, due to separation of powers under our state constitution, the court has no power to force the legislators. I agree with the statement by GLAD's Lee Swislow:

The court has ruled on this question repeatedly, and today’s decision is consistent with what they’ve said before: that the legislature cannot be compelled to vote. The ruling maintains the critical separation of powers between the branches of government.

The Legislature has consistently refused to insert discrimination into the Constitution. Legislators have not only the freedom, but the right and the responsibility to vote their conscience. It is never right for the majority to vote on the rights of minorities.

As the court has said many times before, voters who don’t like what their legislators are doing can vote them out of office. Voters have in fact returned pro-equality legislators to office, and have voted anti-equality legislators out. Massachusetts voters have clearly told the Legislature how they feel about this issue: Massachusetts voters support marriage equality.

Marriage equality has been good for Massachusetts, its families, and its communities. The right and the ability of same-sex couples to marry is now part of the social and legal landscape of our state. It’s here for good, and it is time for everyone to move on.

Read the decision

See the archived oral arguments in front of the SJC here hosted by Suffolk University.

Read a Globe article, and a second, here

See the GLAD website with a press release, and more. GLAD has a very information rich website, with lots of court decisions, advisory opinions, briefs and more.

See web home of the Massachusetts Family Institute, a proponent of the constitutional amendment to ban gay marriage, which hails the ruling as a victory, as much as the GLAD folks. This website plans to cover the next short legislative session, at which they hope the amendment will come to a vote. Their website also reports in detail on how legislators voted on whether to bring the constitutional amendment to a vote.

Also visit Vote on, the online home of the campaign to bring gay marriage up for a vote by Massachusetts voters.

To me, this is so clearly a civil rights issue. How would it be if we brought up for majority vote whether there could be interracial marriages, or minority groups have voting rights or can attend schools with whites? The rights of minorities should NEVER be decided by majority vote!

Wednesday, December 27, 2006

I'm in the SSRN Top Ten!

The good news: I received this email over the weekend.

Your paper entitled, "Redefining Open Access for the Legal Information Market" was recently listed on SSRN's Top Ten download list for "Legal Writing".
The bad news: there aren't all that many people reading articles about legal writing, so it doesn't take many hits to make the Top Ten.
As of 12/25/2006 your paper has been downloaded 23 times. You may view the abstract and download statistics at the URL:
The next 25 people to download my article each win a free pony! (Disclaimer: no, they don't.)

Sunday, December 24, 2006

And the Winner Is...

Inside Higher Education reported yesterday that Southern Methodist University is entering into "final negotiations" to host the George W. Bush Presidential Library. This is a follow up to a blog entry I posted on December 18. Apparently faculty protests and requests for clarification of the proposed library's mission fell on deaf ears.

Saturday, December 23, 2006

More happiness at work: Creating Flow

One component of enjoyment in any activity has been called "flow." This is a mental state in which you lose yourself and become totally immersed in the activity. Below is a neat summary of what "flow" as a mental state requires. The name and initial research is credited in Wikipedia (link in title, and source of the quote), to Mihaly Csikszentmihalyi.

Components of flow

As Csikszentmihalyi sees it, components of an experience of flow can be specifically enumerated; he presents eight:

1. Clear goals (expectations and rules are discernible).
2. Concentrating and focusing, a high degree of concentration on a limited field of attention (a person engaged in the activity will have the opportunity to focus and to delve deeply into it).
3. A loss of the feeling of self-consciousness, the merging of action and awareness.
4. Distorted sense of time - one's subjective experience of time is altered.
5. Direct and immediate feedback (successes and failures in the course of the activity are apparent, so that behavior can be adjusted as needed).
6. Balance between ability level and challenge (the activity is neither too easy nor too difficult).
7. A sense of personal control over the situation or activity.
8. The activity is intrinsically rewarding, so there is an effortlessness of action.

Not all of these components are needed for flow to be experienced.

The interesting links and bibliography to the Wikipedia article show that researchers are looking at flow in sport, gaming, spirituality, stand-up comedy, and the workplace.

The beautiful photo of Sweet Creek is from

Key to Happiness at Work

Fabulous new law blogger Lawsagna (aka Anastasia) interviews the author of Happy Hour in 9-5 link, Alexander Kjerulf. Anastasia finds that Kjerulf has worked with lawyers to improve their happiness at work. You can link to the full text of his short book, or order it in several formats. Worth looking at.

Long ago, the Greek philosopher Epictetus realized:

People are not disturbed by things, but by the view they take of them.

This insight is absolutely vital. We each hold the key to happiness in our own minds. Samuel Johnson once told Boswell, who was upset with his landlord:

Consider, Sir, how insignificant this will appear a twelve-month hence

Johnson's insight is to put things into a larger perspective. Part of human nature seems to be to focus too much on petty annoyances that, in the great scheme of things, don't deserve the energy and angst we lavish on them. He gives us a great litmus test of how much worry something might be worth.

At the same time, we can't wear rose-colored glasses. There are some workplaces that are NOT GOOD for us. This can be a matter of your own values, how you as an individual fit in. Maybe the place is good for some folks, but not for you. Or it can be a matter of the workplace being awful, no matter who you ask. In either case, you are miserable at work, and putting things into perspective is not helping. RUN! Find a new job. We spend too much of our lives working to throw it away in a miserable place. Think if you can take a lower salary (link, hints on living simply) in exchange for a job that gives you more pleasure. (for instance, you could become a law librarian!).

It may be a few days early, but make a resolution to be happier in the new year. All day, all over the world, the sun pours down, or rain showers down, blessings and joy on all of us. All we have to do is look up, and remember that we have the same sky, sun, rain that made us happy as children.

The image is from

Friday, December 22, 2006

AALS Law Blogger Happy Hour

Courtesy of Jurisdynamics:

Law blogger happy hour at AALS

Pilsner UrquellDobrý večer, česke pivo prosím. This microphotographic image of Pilsner Urquell comes courtesy of Beershots, a project of Michael W. Davidson and Florida State University

Bloggers and blog readers throughout legal academia, including contributors to and fans of the Jurisdynamics Network, have been invited to join an AALS happy hour cosponsored by PrawfsBlawg and Concurring Opinions. Libations will start flowing Wednesday, January 3rd, at 9:00 p.m. at Cloud, One Dupont Circle N.W., Washington, D.C., at the intersection of Dupont Circle and New Hampshire Avenue N.W.

Thursday, December 21, 2006

But women with science backgrounds are thriving at firms

Xenia P. Kobylarz, writing in The Recorder (California) in August17,2006, notes that women with technical and scientific backgrounds are thriving at IP firms.

There has been a growing concern among law firms
that women lawyers are leaving in greater numbers than men,
leaving fewer in the partnership pool. But those women who
have deep scientific backgrounds like Hasko appear to be the
exception. They not only stay in firms but thrive, finding
success in the form of partnerships and peer recognition.

"If you have the right experience and the right skills set,
there are multiple opportunities to stand out in this industry,"
[Judith]Hasko said. [Hasko began as a researcher in biotech at
Genentech and is now a partner at Latham & Watkins]

Apparently, the difficulty of balancing family and work is not the main reason this reporter found women to be leaving big firm practice. Rather, dissatisfaction with the importance of the work they are given is a major factor. Women with science backgrounds are finding that the practices give them important clients and jobs, and thus stay with the firms. Also, women leave science as a profession because the scramble for lab space and funding, and a general feeling the field is inhospitable to women. Given the factor I just noted, I would guess that in science, as with non-scientific law, the women feel they are not being mentored and given meaningful work.

The image is a group of postcards of incarnations of the Goddess Iusticia (AKA Themis, Nemesis) from

A large chunk of the female partners at some
firms are biotech and life-science attorneys. Of the 46
women who are partners at Boston-based Ropes & Gray, 18
are biotech and life-science partners. The firm's biotech
and life-science practice, around 60 attorneys with
24 male partners, mostly came through its recent merger
with New York IP firm Fish & Neave.

At 379-lawyer Fish & Richardson, 11 of the 35 women partners
are from the IP firm's biotech and life-science practice.
The group has about 85 attorneys. And out of the 24 female
partners at Finnegan, Henderson, Farabow, Garrett & Dunner,
11 are from its biotech and life-science practice, which has
about 123 attorneys.


For decades, biology was considered more woman-friendly than
so-called harder sciences, like engineering and physics. "The
climate was more welcoming to women in the biological field
than in the physical sciences," said Denise Loring, co-head
of Ropes & Gray's IP litigation department, who holds a master's
degree in molecular biology.

But because of the constant scramble for research funds, many
women were driven out of the lab and into law, according to
Katharine Patterson, who has been a legal recruiter and consultant
for IP practices for 25 years.

"Law has provided a haven for scientific women," Patterson said.
"And their success disproves the theory that women can't succeed
in law firms because they can't do the work. Given the right
incentives, women would work as hard as men."

Indeed, conversations with a handful of successful biotech and
life-science attorneys provide a glimpse at why some women stay
and succeed in law firms despite the difficulty of juggling work
and family life.

Many of nearly a dozen women interviewed by The Recorder say
they put up with the long hours and punishing workload because
they feel they're given enough financial and professional incentives.

Many of the women interviewed said their scientific background
gave them opportunities early in their careers that were not open
to other junior attorneys, including direct client contact and close
interaction with senior partners. Many found mentors who took
great interest in their careers and gave them more opportunities.
And all said they feel professionally rewarded because their
contributions, in a red-hot practice area, are recognized by colleagues.

A 2001 study of top law school graduates by think tank Catalyst
found that while women struggle with work-family obligations, the
biggest reason women lawyers leave a firm is because they are
dissatisfied with the work itself or feel stalled in their careers.

All of the women in that study cited "interesting" and "important"
work as a primary reason they keep doing what they're doing.

See also this posting to the CalLaw blog, "More Woes for Women." The post includes links to several studies and other blogs discussing women's lagging salaries, and an important report from the ABA on women of color in the legal profession, here, "Visible Invisibility."

Here are some other resources on women in the practice of law

Nat'l Assn. of Women Lawyers (part of ABA)

Directory of Women Lawyers

Women's Legal History Project at Stanford

Women's Trial Lawyers Caucus (part of ATLA)

Black Women Lawyers Association

California Women's Lawyers association

Florida Association of Women Lawyers

Washington (state) Womens' Lawyers

Thompson, Hine Women Lawyers Initiative (a large, international firm, not all women)

Article "Why Women Make Great Trial Attorneys" by Jan Nielsen Little in the firm newsletter for Keker and Van Nest (San Francisco), June, 2006.

Wednesday, December 20, 2006

Gender Equity at Law: Life at the big firms for women lawyers

Life at the big firms for women lawyers

Presumed Equal: What America’s Top Women Lawyers Really Think About Their Firms
By Lindsay Blohm and Ashley Riveira
AuthorHouse, 701 pages, $49.99.

The Boston Globe’s Sacha Pfeiffer reviews the third edition of Presumed Equal, a survey of women attorneys at many of the nation’s largest and most prestigious firms. In 1998, the first survey took the measure of what life is like for the women associates and partners. This third edition asked about 4,000 anonymous responders at about 105 big law firms. While outright gender discrimination seems to be happily rare, there is a great deal of inequality of opportunity still. The book tries to give detailed information about the law firms covered, and notes the list of firms that refused to distribute the survey. The sad and most telling statistic is that, despite about 20 years of 50-50 gender representation in law school, only 17% of law firm partners are women. This low number represents a massive failure by law firms to actively support the women attorneys on their staff as they stagger beneath the demands of motherhood and daughterhood . For the sandwich generation, both can be very demanding! Women see the offered “mommy track” as career suicide, and name tells it all. There is no “daddy track” in most people’s vocabulary – and I detect a faint sneer behind the name.

Some of the problem is the inherent differences between men and women. I know some very involved fathers – a real cultural shift that recognizes and values the need for fathers to be there for their children. I applaud this development heartily. But when you take maternity leave, unless it is for an adoption, that employee has just been through a physically exhausting experience giving birth, and may be nursing the baby every 2 hours or so. Paternity leave-takers may have held Mom’s hand through the night and be quite tired, too, but they have not been through quite the same experience. And a caesarian delivery, increasingly common, is major surgery, cutting through muscle layers as well as the uterus to deliver the baby. After those first weeks and months, you can hope for a more equal distribution of effort and involvement between mother and father, but there is no way that gender equity has managed to allow men to give birth or nurse babies. And most families still tag women for day-in, day-out child care, taking care of elderly parents, school meetings, and taking the day off for sick family members.

That means that even-handed policies that look good on paper are not going to deal with an inherently unequal biological reality. Some law firms are doing better than others, but they all need to think more creatively about how to provide the support, culture and programs needed to advance women associates to partner.

In the same issue of the Globe was a fascinating story detailing the development of one of the year’s hottest toys, the animatronic pony Butterscotch from Hasbro. In the article, it was noted that despite efforts in the 1960's-70's to boost gender-neutral toys, the toy aisles are very distinctly pink and blue. That is not entirely the toy manufacturers’ fault. Most boys and girls have distinctly different play preferences. I would not have believed this before having children myself. My son has never been a rowdy kid, but he always had a very strong preference for Legos and machines. My daughter likes Legos well enough, but given sets to play with, always pulled out the little Lego people and animals for special focus.

Those girls grow into women. Those different preferences persist and should be taken into account when thinking about how to support women employees and change a workplace’s culture to truly advance women. I think the same is probably true of supporting and advancing minority employees. Those employers who really value multiculturalism think in very different ways than those who just pay lip service to the idea. Most women feel differently on many levels and have different priorities than most men. I wish I could say we are just the same – it would make arguments for gender equity simpler.

Students at Mizzou will recognize Lady Justice from their Board of Advocates web page.

Christmas Wishes

Dear blog friends,

Here are my Christmas wishes:

I wish for peace:
* Peace in Iraq and Afghanistan, peace in Darfur and peace throughout all the world
* Peace in my family, my workplace and my heart

I wish for justice:
* Justice in U.S. courts, at Guantanamo and at the World Court in the Hague
* Justice in the way society treats each person

I wish for beauty:
* Every day, each person should have a portion of beauty in their lives and hearts
* I need to see, hear, feel beauty, but I also want to create it, to maintain it and to empower others to do the same.

I wish for love.

I wish for joy.

For me, for you and all our loved ones!

Merry Christmas,

Happy Hanukkah,

Have a happy, peaceful, joyous holiday!

The decoration is from a website that offers a selection of e-cards:

Habeas Couture

It might be too late to buy these for Christmas, but you can try! A line of cheeky clothing inspired by the Military Commissions Act: if you can't have habeas corpus, at least get Habeas Couture! Including this cute item for your favorite 4-legged "enemy combatant." And best of all,


Tip of the hat to Alliance for Justice's "Naughty and Nice" list -- check it out!

Monday, December 18, 2006

W's Presidential Library

"The George W. Bush Presidential Library"--the ultimate oxymoron. And yet three Texas universities (SMU, Baylor, and the University of Dallas) are vying for the dubious honor of being the site of W's library. An article in Inside Higher Ed today discusses what's going on behind the scenes at SMU, once considered to be the front runner in this competition. Dick Cheney used to be a trustee, and Laura Bush is both an alumna and a trustee. In addition, SMU recently was victorious in lawsuit in which it alleged its right to tear down a condomium complex it had purchased to have room to build the Bush library. However, there is a fly in the ointment.

According to the article, "professors at SMU are circulating an open letter calling for the university to have a full discussion of the implications of being host to the Bush library. Several recent press reports have quoted Bush advisers as saying that SMU has the edge and that the library's affiliated think tank will encourage scholarship with a specific [i.e., conservative] political agenda." Apparently, the professors don't disagree in principle with a Bush presidential library where objective scholarship would be generated; however, they do object to a center part of whose mission it would be to hire scholars who would be charged with producing books and papers praising the Bush Administration and its policies.

The best part of the article might actually be the readers' comments that follow it. They are numerous and extremely outspoken, and come from both sides of the political aisle.

On Grading

When I was a law student, I had a very cynical attitude about law school grades. So many law school grades depend entirely on a final exam that is all essay. My feeling was that you either wrote the prof's style or you didn't. While you wouldn't flunk if you knew the subject matter and repeated back what the professor emphasized in class, I believed the subjectivity of essay-grading could make the difference between an A and a B.

Now that the shoe is on the other foot, I have a very different feeling about the grading process. For one thing, I see more classes these days using multiple choice for some or even all of the exam. This is partly due to the finding that a surprising number of law students are failing the bar exam, not on the essay portion, but on the multiple-choice multi-state part. I discover that the fine art of writing multiple-choice exams well is difficult to master, but allows a very rigorous exam.

But I also listen as my colleagues talk about grading philosophy and methods. There are some fairly objective measures that they use for grading essays. And I have a course I teach that is entirely graded on paper projects. When I grade the papers, each one is very different from the others. I cannot create a grading rubric based on issues spotted or terms used. But I have created a grading method that allows me to measure these very different papers against a common standard.

I put my criteria for grading into my syllabus each semester. I go over it many times in class. I have a short paper early in the semester that is only 15% of the grade, but works as a rehearsal for the big paper that counts for 50%. When I give these papers back, they are covered in comments noting what I liked and what I didn't like. I mention in class that this is so that they know what I am looking for in the big paper. I put good examples of past papers on reserve, and electronic reserver. And I require drafts on the big project so that I can give feedback in time for the student to modify the paper.

I take grading very seriously. So do my faculty colleagues. It's a big part of what we do and we try very hard to be fair and objective. We also often take it personally when our students show that we failed to get across in class the knowledge we meant to impart. It's a very depressing thing to hand out bad grades, for most of us professors. The up-side is how thrilling it is to have a bunch of terrific grades!

All Silent on the McKenzie Front

Dear Blog Friends,

I have been having great difficulty getting in to Blogspot to post on OOTJ lately. I have a second blog on Blogspot that is mine alone. I moved that blog to the beta version of Blogger. What I did not understand was that having done that, I now can ONLY sign in at the Beta version. The big problem is how often I log in and Blogger Beta tells me they cannot connect to OOTJ. I am very frustrated, and if I seem silent lately, it is not merely the dean search and end of semester frenzy.

Friday, December 15, 2006

U.S. Gets Subpoena to Force ACLU to Return Leaked Memo

This should be an interesting legal test, the first time a criminal grand jury subpoena has been used in an attempt to seize leaked material. The ACLU website reports and contains links to materials. The Justice Department filed suit in federal district court, Southern District of New York using the 1917 Espionage Act. The ACLU contends that there is nothing very secret and only mildly embarrassing to the government. Now that they have our attention...!

"The government's attempt to suppress information using the grand jury process is truly chilling and is unprecedented in law and in the ACLU's history," said ACLU Executive Director Anthony D. Romero. "This subpoena serves no legitimate investigative purpose and tramples on fundamental First Amendment rights. We recognize this maneuver for what it is: a patent attempt to intimidate and impede the work of human rights advocates like the ACLU who seek to expose government wrongdoing."

The quote is from the ACLU story noted below, and the image is from the ACLU website.

Read a second Washington Post article

The ACLU’s Motion to Quash is online at:

The grand jury subpoena that was issued to the ACLU is at:

Declarations regarding facts in the case were also filed by ACLU Executive Director Anthony Romero at, ACLU Senior Corporate Counsel Terence Dougherty at and attorney Joshua Dratel. They are online at:

R.I.P. Sara Robbins

Most folks in the law library community have already heard that Sara Robbins, the long-time director of the library at Brooklyn Law School, was killed December 13. She was struck and killed by a private trash contractor as she crossed the street to work early in the morning.

Sara was a very kind and sweet colleague. When I started as a director, she was one of the people who spoke with me, and encouraged me at AALS meetings and elsewhere. I remember her beautiful needlepoints that she worked as she sat listening at meetings. I will miss her, as I am sure many others will. What a terrible shock and loss! My thoughts and prayers are with her and her family.

Memorials preferred in lieu of flowers to Hadassah.

Funeral Home Obit link

The online guest book memorializing Sara here

News story

Brooklyn Law School Mourns

Brooklyn Law School brief bio

Thursday, December 14, 2006

Lawyer Blogging and Advertising

Much of the lawyer blogosphere* is watching what New York does with its proposed amended regulations on lawyer advertising and "computer-accessed communications." The proposed amendments are so broad that they could seem to cover any public writings by lawyers (even law journal articles), and explicitly subject lawyers outside of New York to regulation if their communications are accessed in New York State.

Last week I recorded a conversation with three New York law bloggers--Bill Altreuter, Nicole Black, and Matt Lerner--about the proposed rules. That conversation is now online at the Check This Out! podcast, Episode 55.

*I hate the term "blawg" and refuse to use it.

Monday, December 11, 2006

On Human Nature

In a piece of research published last Wednesday in Nature, Manfred Milinski of the Max Planck Institutes in Germany studied how people responded to rewards and punishments. Some of the results will come as no surprise to students of human nature, but it's an important and exciting study nevertheless.

The researchers created a game where participants each put an equal amount of money in a pot. If everybody participated, the pot was doubled, and evenly distributed. As long as those rules were followed, participation increased. However, the rules were changed so that some folks did not contribute. These were not punished, and even received a larger part of the pot, diminishing the pay-out for the actual participants. After a few rounds of these rules, participation fell apart.

The researchers tied this observation to the "tragedy of the commons" effect (see Wikipedia article). In that model,

a hypothetical example of a pasture shared by local herders. The herders are assumed to wish to maximise their yield, and so will increase their herd size whenever possible. The utility of each additional animal has both a positive and negative component:

* Positive : the herder receives all of the proceeds from each additional animal
* Negative : the pasture is slightly degraded by each additional animal

Crucially, the division of these components is unequal: the individual herder gains all of the advantage, but the disadvantage is shared between all herders using the pasture. Consequently, for an individual herder weighing up these utilities, the rational course of action is to add an extra animal. And another, and another. However, since all herders reach the same conclusion, overgrazing and degradation of the pasture is its long-term fate
(from Wikipedia)

In the context of a workplace like a library or a law school, one analogy would be the disincentive to hard workers of seeing a slacker get the same or greater rewards.
In the Nature research noted above, there was a new step introduced:

scientists then offered the players two options: They could reward fellow players with good reputations. Or they could reward cooperators and punish defectors, paying a fee to take money from the defector.

Overall, the carrot-and-stick option generated the most money for the pot when compared with reward or punishment alone, said Manfred Milinski of the Max Planck Institutes in Germany.
(from Globe article linked in title)

One could imagine allowing co-workers to vote on each other's compensation, but that seems ripe for abuse. In the workplace, I think it's probably up to management to make folks feel that rewards are distributed fairly in proportion to the merit, and to confidentially use the stick if necessary. How would this research apply to law students? A very interesting piece of research!

Recharge portable electronics wirelessly!

MIT physicist Marin Soljacic is planning a device that will recharge your Ipod, cell phone, digital camera wirelessly. The idea is to carefully design a magnetic field (wow! you'd better be careful about where you place your computer, disks, thumbdrive!), that will reach around a 10-15 foot radius. You leave the electronic gadget in that zone and it will recharge automatically. No more plug-ins! I was reminded of this when I passed a cellphone charging in a library outlet this morning. Sadly, this terrific idea probably won't see the shelves for a while. (Read the full story from Boston Globe in the title link above).

Friday, December 08, 2006

Exam Time! Manage law student stress

Nothing brings out law student stress more than exam time (except, the big one, the Bar Exam). OOTJ already discussed the link between stress and depression, with some links for help, here,
and here. And we hosted one posting on exam stress last year. Here is another list of hints on managing exam time stress for law students.

* Do not link your sense of self-worth to grades in law school. Law School grades merely measure how well this professor believes you learned this course's material, and how well you read and analyze the facts given.

* Maintain your balance! Take care of your body and your mental state -- skip the heavy doses of caffeine and totally avoid drugs and alcohol as props. Exercise, meditate or pray. Talk to folks who are not part of law school. Law school is just one part of your life -- it's time-consuming, but don't let it eat you up!

* Manage your thoughts and attitudes. When you begin telling yourself, "I must..." or "I need to..." -- stop! Look below for Irrational Thoughts and Rational Thinking from University of Florida brochure for students. The way you talk to yourself and others about your goals and values has a powerful effect, draining your energy or boosting it.

* Manage your time (it may be too late for early outlining, but you can still schedule your study time -- pace yourself).

* Do not agonize about exams you have finished. It will do no good to participate in the Post Mortem, and may actually interfere with your preparation for upcoming exams. Let it go!

"Maiming the Cubs," by James J. White, excerpted from a fuller article at 32 Oh. N. Law Rev. 287, experienced law teacher's perspectives on the link between law school and stress. link. Memorably disputes notion that law school stress permanently scars students, but recognizes that stress, which often leads to depression, is definitely caused by the rigors of law school. Among other trenchant observations:

Many of our students came from undergraduate disciplines where they earned certain and predictable rewards for hard study and diligent recollection. ... In many law school classes, students must distill general principles from the cases themselves and must show some analytical ability on the examination. When one's practiced modes of learning no longer work, stress and anxiety are inevitable. ... Not all law students will be as academically successful in law school as they were when they were undergraduates. (quoting Prof. Susan Daicoff) "In law school, is students equate self-worth with achievement, to the extent that self-esteem depends entirely on continual successes, a less-than-average academic performance equates with personal worthlessness. The law school experience itself frustrates individuals' need for achievement, since formerly top students in college may not be only average students in law school. Due to law students' demonstrated high needs for achievement, success, and dominance, this phenomenon may have devastating effects on their self-esteem and self-worth."

Prof. Barbara Glesner-Fines at UMKC Law School link adds:

... there is always more you can do. In law school, as in legal practice, there is always one more possible way to view a problem; one more possible source of authority or enlightenment; one more possible solution; one more possible way of communicating your ideas.

In addition, for most of this work you are on your own. In any educational setting, you are responsible for your own learning. However, in law school, one of the primary skills you should be learning is how to exercise that responsibility. How to learn actively and independently. At first, you may feel like there is a secret you haven't been told and you will be searching for answers.

Yet this, too, is one of the differences about legal education. In undergraduate education, you could usually come to class reasonably familiar with the assignment and leave class with greater clarity and certainty about the materials. That won't happen in law school as often. Rather, you will sometimes come to class believing that you understand and have mastered the materials and leave class feeling as though you really don't understand at all. Why is that so? Because law school is designed to develop your critical thinking skill. That skill requires that you be able to generate as many questions as answers. And that uncertainty, that sense of suspended learning, can be extremely stressful.

By the way, I can help with some of that stress. You will often find yourself, in the first weeks of the semester, asking yourself, or each other "But what's the answer?" I'll tell you the answer right now. The answer is "IT DEPENDS." It depends on the facts, the politics and the cultural context, it depends on which jurisdiction, it depends on which time, it depends on which decision maker, IT DEPENDS....

There is a another sense in which legal education can be stressful. Even if there were clear answers to most legal questions, you will be receiving less specific, evaluative feedback than in undergraduate education. Most faculty in the first year give mid-term exams, but few (outside of perhaps your legal writing instructors) provide the type of weekly, graded homework that you might have received in undergraduate education.

Instead, your entire grade for most classes is based on a final comprehensive exam. And those grades count for so much -- becoming a source of considerable stress as you engage in a more competitive, explicit ranking process than many of you have faced since junior high. Think about it -- you are all at the top of your class, you are all highly talented and intelligent people, you are all outstanding students -- but you can't all graduate with a 4.00 grade point average. (You can all graduate, but 90% of you will not graduate in the top 10% of the class).

... Finally, there are all the personal sources of stress that are made worse by law school.

Few of us has enough time. Law school takes all the time you have and then some.

Few of us has enough money. Law school is enormously expensive -- for most of you, the debt you will take out of law school will be the equivalent of a mortgage on your first home.

Few of us are in the kind of physical shape that we would like to be -- imagine the results of a diet consisting heavily of coffees, donuts and Wednesday pizza, and a workout program that consists entirely of carrying 100 pounds of law books from locker to library. (it isn't pretty)

Few of us are crystal clear about why we came to law school -- that question looms even larger when you are sitting up at midnight reading a totally incomprehensible piece of legal writing from the late 19th century.

University of Florida, Maintaining the Balance: A Self-Help Guide for Students link

Irrational Thinking

* Jumping to Conclusions is making a negative assumption even though there are no clear facts supporting the conclusion ("He canceled our date, he must not like me anymore").

* Personalizing is assuming external events are automatically being caused by or directed at yourself when in fact they are not ("She's yawning a lot, she must think I'm boring").

* Selective Attention is ignoring accomplishments and positive experiences and focusing only on negative events and perceived failures. This colors your perception of all future experiences as you selectively look for only negative results and reactions.

* Catastrophizing is exaggerating the significance of an unpleasant event or events ("I got a 'D' on my first exam. I'm so stupid. I'm going to fail chemistry and then I'll never get into medical school").

* Predicting Doom is deciding that failure is imminent before the task is even begun ("I'll never find another girlfriend. I'll never pass calculus").

* Shoulds and Musts are punitive self-statements. They are based on the faulty belief that you are inherently bad or worthless. Therefore, the only way to motivate yourself or succeed in life is to beat and whip yourself into shape. You do this by placing unrealistic demands on yourself ("I must never disagree with him or he won't like me. I must be liked by everyone I know in order to feel like a worthwhile person. I should never make mistakes. I should never cry").

* Dualistic Thinking is perceiving situations and people, including yourself, as either all good or all bad with no room in between. If your performance is less than perfect, you feel you must be a failure.

* Labeling is taking one or two instances of your own or other's behavior and over-generalizing by attaching an exaggerated label ("I'm a loser... she's a liar").

If you use these distorted thinking strategies, you will inevitably feel angry, anxious, depressed and overwhelmed. Just as we have learned to think in stress-producing ways, we can also learn to think more rationally and calmly. Once you have identified your distorted thought patterns, you can start to replace them with more logical thinking, and feel more in control!

Using rational thinking and positive self-statements to deal with external stress will help you feel more in control of your emotions, more positive about yourself, and better able to handle situations. You may still feel disappointed, but you won't feel devastated; annoyed but not enraged; nervous but not incapacitated with anxiety. You may or may not be able to change the external situation, but you can always change how much it affects you by regaining your perspective.

Let's look at some rational thinking alternatives...

Rational Thinking

* Focus on the Present (don't jump to conclusions) "He canceled our date, but he said he'd call tomorrow so there is no reason to think anything is wrong. I'll use the free time to relax with that book I just bought."

* Stay With the Facts (Beware of catastrophizing) "I got a D on my first exam but it doesn't mean I'll fail chemistry. I didn't understand what the professor wanted. I think I'll meet with her so I'll know what to expect on the next exam."

* Be Realistic and Objective (Avoid personalizing) "He's yawning, he's probably tired. It doesn't have to mean that he doesn't like me."

* Be Optimistic (Try not to predict doom) "I'm lonely now... because she's gone. It's natural to feel this way. And even though I may never find anyone quite like her, I'll find someone new and different when I'm ready."

* Be kind to yourself (Don't "Should" yourself) "It's OK for me to disagree with him, it doesn't mean he won't like me. My opinions are valid."

* Retain your perspective (Watch out for negative labels) "I may not have won this time, but that doesn't mean I'm a 'loser.'"

You have the right to make mistakes and to express your feelings. Making mistakes is all part of being human.

Jurist on Exam Taking link. Lots of practical hints from a dozen law profs at various schools.

Barger on Legal Writing; One-L Help link Helpful hints from Prof. Colleen Barger at UALR Law School.

Check Law Student Stress link

Law School Pressure at Top Law Student link

The image of an exploding head is from the Frontier Centre for Public Policy link, a Canadian think tank.

Wednesday, December 06, 2006

Another Merger

This week's Chronicle of Higher Education reports another merger that will likely have huge repercussions for librarians and researchers--John Wiley & Sons is purchasing Blackwell Publishing Ltd. for approximately $1.13 billion. The combined Wiley-Blackwell will publish over 1,200 scholarly journals, putting it right behind Reed Elsevier and Springer in terms of numbers of journals published. Librarians are especially concerned "because Blackwell has been broadly regarded as the most benign of the for-profit scholarly publishers, and librarians are uncertain whether Blackwell's prices and practices will survive the merger." Most law librarians, who are veterans of a number of high-profile mergers in the legal publishing industry, would say that Blackwell will change as the result of the merger. Every merger that I can think of has led to dramatically higher prices and diminished quality of service, and there is no reason to think that the Wiley-Blackwell merger will turn out any differently.

The merger will likely get some measure of scrutiny from the U.S. Department of Justice, according to Mark J. McCabe, an assistant professor of economics at the Georgia Institute of Technology. He thinks the proposed merger would receive "at least a cursory investigation" from DOJ's Antitrust Division. Professor McCabe has written extensively on the effect of mergers on prices, and his article entitled "Merging West and Thomson: Pro- or Anti-Competitive?" appeared at 97 Law Library Journal 423 (2005). Not surprisingly, his article concluded that the West and Thomson merger resulted in significantly higher prices for consumers of legal information; law librarians didn't need an economist to make this point.

Rethinking Internet Search Engines

New start-ups are rethinking how search engines can work. So far, we have text-based searching, augmented with some algorithm that ranks sites based on the number of links to that site, and possibly other factors to estimate the value of the page. What other ways could we devise to sort through the huge volume of the World Wide Web? For millenia, the main information problem was finding it. Now, our problem is to sort through the mass of it for the most reliable and useful bits.

It's worth checking out Search Engine Showdown here to see what is happening. They include a very helpful news feature and reviews of the largest search engines. They have a very handy table that lays out the features of the search engines they review side-by-side, for easy comparison. But let's think outside the box. I was struck by ALEXA search technique which looks at where other web surfers have gone before and after visiting a site. They don't rely so heavily on relevance of the text on the site, but use surfer behavior as a guide to what is connected on the Web. What are some other features that could help manage the ocean of knowledge on the Web?

Hakia Inc., a New York-based start-up, is engaged in building what it calls a "meaning-based" search engine, said Melek Pulatkonak, chief operating officer, at a Tuesday conference hosted by Piper Jaffray in New York.

"Search is primitive now," Pulatkonak said. Instead of simply matching search terms to popular results, Pulatkonak said Hakia hopes to create an engine that understands what someone searching the Web is really looking for -- answering a user's "why" question, or giving results that are time-sensitive, like "investment conferences taking place right now."

While Pulatkonak gave few technical details, she said the company's engine can understand what Web pages mean, not just what words they contain.

See the Hakia Beta at this link. I tested it briefly and am not sure my socks have been knocked off. But I plan on taking more time to look.

Another model, that takes advantage of IA (Intelligence Augmentation, see post here), is Cha-Cha here. Cha Cha claims to be the worlds largest live search site. I tested it with the same query I used on Hakia and Google, looking at "law office knowledge management." The difference with Cha Cha is that you connect for a live chat with a "guide." It's a lot like having live chat reference, except you know nothing of the guide's qualifications. They were searching "the deep web," PDF files and databases within websites.

I have been fascinated in the past by knowledge mapping techniques. I wonder if anybody is working on that as a way to augment a search engine? I guess it's already sort of there with "more like this," and "Search Results Plus" on Westlaw. Other ideas?

The Thinker, by Rodin, is from the University of Kentucky.

ABA as gatekeeper of legal education

I happen to agree with most, if not all, the standards the ABA uses to evaluate law schools for accreditation. I believe the standards are good-faith efforts to be sure students are offered a good level of education if they go to an ABA-accredited school. Mass School of Law in Andover, MA, disagrees. This school was founded to prove the ABA standards are not needed to guarantee a good legal education. They have not been accredited by the ABA (not surprisingly), sued the ABA for blocking their students from taking the bar. As part of a settlement agreement, students from the Mass School of Law may take the Massachusetts bar exam, and if they pass, practice here. Now, the deans at Mass School of Law are challenging the ABA's position as accreditor for law schools nationwide, by condemning the standards to the Secretary of Education (link here to the story in the Boston Globe by Sacha Pfeiffer). This is yet another attack on the ABA's authority to accredit law schools, separate from ALDA deans.

Tuesday, December 05, 2006

University Presses and Google

Well, one university press, anyway. Reading a blog post about the effects of the minimum wage, I just ran across a link to a book by Alan Manning, Monopsony in Motion: Imperfect Competition in Labor Markets. What struck me there was this link:

Explore full text using Google Book Search

I've never seen this before: a publisher using (presumably partnering with) Google's Book Search feature rather than seeing it as a copyright violation. I know--Google has long since become a big, evil corporation--but still, it's a positive sign to me that (at least some) publishers are seeing the benefits of giving away (at least some) information.

Monday, December 04, 2006

Massachusetts, Microsoft and ODF

Some time ago, The Boston Globe reported that the Massachusetts state Information Technology office had decided to have all state offices use Open Document Format rather than Microsoft Office Link
There has been a steady stream of reports in Computerworld on the battle between the state CIO, who wanted to take this bold step to remove the state government from Microsoft's sole domain, and Microsoft lobbyists and state legislators who became Microsoft's front men.

...a controversial decision to adopt the Open Document Format for Office Applications, or ODF, as its standard file format. Even worse, from Microsoft’s perspective, the policy stipulated that new desktop applications acquired by state agencies feature built-in support for ODF, a standard developed and promoted by some of its rivals — most prominently, IBM and Sun Microsystems Inc.

The amendment [Microsoft lobbyist Brian] Burke was promoting had the potential to stop the ODF policy dead in its tracks by giving a government task force and the secretary of state’s office approval rights on IT standards and procurement policies. (snip)

...more than 300 e-mails and attached documents obtained by Computerworld under the Massachusetts Public Records Law. The e-mails provide a behind-the-scenes look at some of the hardball tactics used, compromises considered and prickly negotiations that ensued as Gutierrez and Yates each tried to deal with the ramifications of the first-of-its-kind policy calling for state agencies to adopt ODF by Jan. 1, 2007.

The topic of document formats may have an arcane air to it, but it matters deeply to the world’s richest software company. Document formats have played a critical role in helping Microsoft to secure and maintain its dominance of the office-productivity applications market, with more than 400 million users of its Office software worldwide. (snip)

When Massachusetts committed to its ODF policy, migrating away from Office appeared to be the only way that executive-branch agencies could comply. Microsoft had spurned the state’s requests to engineer ODF support directly into Office, complaining in a 6,425-word document sent to the IT division in November 2005 that the open standard was “nascent and immature.”

The company argued that its new Office Open XML format also merited inclusion in Version 3.5 of the IT division’s Enterprise Technical Reference Model (ETRM), the newly minted open standards blueprint for state agencies. (snip)

The fact that the ODF policy threatened Microsoft’s business interests wasn’t lost on Eric Kriss, who had paved the way for its adoption while serving as a cabinet secretary under Massachusetts Gov. Mitt Romney. In an interview, Kriss said he wasn’t surprised by “the aggressiveness” that Microsoft showed both publicly and privately in pursuing its opposition to the ODF policy.

“I think Microsoft took a good run at trying to change the world as opposed to trying to change [itself],” Kriss said. “And you expect to get the shock and awe when that happens. That’s what we got.”

Kriss, who left his post as secretary of administration and finance shortly after Version 3.5 of the ETRM was issued in September 2005, instigated the open-standards policy based on the belief that public documents shouldn’t be tied to a single vendor’s proprietary document format. (snip)

In early July, Microsoft announced that it was sponsoring an open-source project to develop an Office plug-in for translating files between Open XML and ODF. And Gutierrez formally announced on Aug. 23 that the state at least initially would adopt a plug-in strategy to fulfill the ODF policy. By then, he had no need to rely solely on the fruits of the Microsoft-backed project. Plug-ins also had been submitted to the state for testing by Sun and the OpenDocument Foundation.

The tortuous process that played out in Massachusetts is starting to have an effect well beyond the state’s borders. For example, without the plug-in approach, Belgium’s national government wouldn’t be able to meet ODF adoption deadlines that are due to begin taking effect next September, said Peter Strickx, chief technology officer at the Belgian Federal Civil Service’s Information and Communication Technology Division in Brussels.

Like Massachusetts, Belgium is taking a wait-and-see approach toward Open XML. “The objective is interoperability,” Strickx said. But he added that the government doesn’t plan to migrate its entire user base away from Office. “That’s between 60,000 and 80,000 users,” he noted. “We’re in a very tight budgetary situation, so we cannot ask the IT managers to spend even more on something that in their opinion doesn’t bring any real business value.”

Read the entire article via the link in the title, but also see the full drama by following the saga in Computerworld articles, links below. This is one of the ways that large technology companies stifle innovation that threatens their market dominance. Of course, some of the other favorite techniques are patent battles and hostile take-over of upstart challenger companies. Neither option open when battling open source adoption by a state government. None of this is stopping European governments from similar moves to vendor-neutral standards that open up the playing field of providing software for government agencies.

Opponents of ODF Strike back in Mass., but support for format rises in Europe Link, June 30, 2006

Mass Confirms it Will Stay on Office for Now, but will start using ODF plug-ins link, August 23, 2006

Microsoft Gets Help From Both Sides of the Aisle on Lobbying link, Dec. 4, 2006

State's Snub on File Format Caught Microsoft by Surprise link, Dec. 4, 2006

A sort-of related article on the Massachusetts CIO Gutierrez tendering his resignation in October over the Legislature's failure to pass a bond for information technology investment, and how it would not interfere with the state moving to Open Document Format link, October 9, 2006.

Very little of this appeared in the Globe.

Mock-ad depicting Microsoft PC threatening Mac (and by extension, all competitors) is from an entertaining site that hosts fake ad contests,

Sunday, December 03, 2006

Inquiring Minds

Admit it, you've always wondered: what if the Supreme Court justices were rock stars?

Saturday, December 02, 2006

The Human-Computer Interface

Librarians have long understood that "artificial intelligence" is more often an illusion born of the interface between human intelligence and computer technology. Many legal researchers have a faith in the results of computer-assisted searches that borders on assuming it has true artificial intelligence. It seems to be a natural human assumption; I feel it myself. If I have searched repeatedly online, and found nothing, I feel convinced there is nothing there. But it is a false sense of confidence. For instance, I tell my students that whether they use "terms and connectors" searches or "natural language" searches, their results will always depend on their personal success envisioning the document of their dreams. They must use the terms that will be in the actual text in a "terms and connectors" search. They must succinctly state the issue and select appropriate synonyms from the thesaurus in a natural language search.

Last Sunday, there was a wonderful article in the local paper proposing the term "intelligence augmentation" for the use of humans to augment computers by providing the tasks that people do better than machines. Link
here to the Boston Globe's article, "Souls of a New Machine." Examples given in the article are Wikipedia and the new "game" where people go online to donate labels to Google Image Labeler by competing against each other to name more images in a few seconds' time. In both cases, humans are adding to information databases in a way available only when computer networks provide the "architecture of participation." The Globe article is based on a blog entry, see the original here at Tim O'Reilly's Radar blog from March, 2006:

... the old dreams of artificial intelligence were being replaced by this new model, in which we are creating more intelligent systems by using humans as components of the application. Tom neatly summed up the paradigm shift: "AI becomes IA." ("Artificial Intelligence becomes Intelligence Augmentation.")

This is the power of memes: they are framing concepts that help you to see the world in a new way. Now that I understand that we're building a next generation of bionic systems, I'm seeing them everywhere.

The weakness in this "bionic" partnership can often come from the human side of the equation. We are all aware of the edit wars and vandal scandals of Wikipedia. Now, there is a new aspect of those issues on the Chinese version of Wikipedia: Self-Censorship. C-net
carries a story comparing the English version and Chinese version of Wikipedia through their treatment of Mao Zedong. Despite edit-fights in the Chinese version, a carefully self-censored version prevailed, omitting any mention of the famine caused by Mao's Great Leap Forward and the brutal repressions of the Cultural Revolution.

The power of the Chinese government's censorship and control of education extends itself through the information offered by those controlled minds on the Chinese Wikipedia. Once again, the "intelligence augmentation" effectiveness founders on the fallibility of human intelligence. We do so many things easily that are nearly impossible for computers. This partnership, this form of bionics will certainly be continuing in the future through a multitude of projects. But we need to test and re-test the results, to avoid falling victim to our human foibles.

Image is from the Boston Globe

Thursday, November 30, 2006

Trouble in Minnesota

A controversy has erupted at the University of Minnesota Law School about the hiring of Robert Delahunty, currently an associate professor of law at the University of St. Thomas. An article in the November 29 issue of Inside Higher Ed summarizes the controversy surrounding Delahunty, which "stems from a memorandum drafted in 2002 by Delahunty and a Justice Department colleague, John Yoo, a conservative scholar and professor of law at the University of California at Berkeley's Boalt Hall." This is the infamous memo that "concluded that the Geneva Convention did not cover Al-Qaeda suspects captured in Afghanistan, and helped lay the foundation for the Bush administration's handling of prisoners captured during the war on terror." When one considers the damage that our treatment of prisoners has done to our standing in the world community, it is easy to understand why some members of the Minnesota community would object to Delahunty's presence at their law school.

A first-year student is circulating a petition requesting that the dean reconsider bringing Delahunty to Minnesota. The administration at Minnesota has stated that the students' objections were a "gross violation of academic ethics and academic freedom." But the students respond that their objections do not stem from ideology, but rather from legal ethics. The faculty has also become involved in the controversy. Nine Minnesota professors who objected to Delahunty's hire stated in a "sharply worded letter" that "Mr. Delahunty's role in the Torture Memos was not academic and we object to hiring someone of his credentials rather than to anything that he may say in class should he be so hired..." It is shocking to think that an individual who twisted the Constitution in order to make it fit what Bush, Cheney, and Rumsfeld were intent on doing should be entrusted with teaching constitutional law at one of the top law schools in the United States.

Wednesday, November 29, 2006

Can an employer fire or refuse to hire smokers?

Another local development is this Globe story about Scott's lawncare firing an employee for smoking off the job. The former employee has sued. I am a non-smoker who is very grateful for the societal changes that reduce my exposure to second-hand smoke. But even I found it pretty disturbing that an employer would think it right to control employees' private behavior. It leads to all sorts of disturbing scenarios that have been raised as testing for various diseases and genetic pre-disposition for disease became possible.
I found this blog posting tracking announcements of Scotts and other employers that they will no longer employ smokers. North Carolina's Atlantic Beach also decided not to hire smokers link. Here is a CBS News story on employers regulating employees' private lives, titled "Whose Life is it anyway?"

And this announcement that refusing to hire smokers is NOT discrimination in the EU. This website discusses in considerable detail the author's legal analysis of including smokers as a group under "negligent hiring," as being dangerous to other employees. Includes a bibliography and lists of cases on hiring/firing, dangerous cigarettes, and more. Attributed to The Crime Prevention Group link which states as its mission:

# three functions, providing (1) background information on smoking and laws,
# (2) links to more detailed information, and
# (3) letter writing samples for you to take action to promote safe cigarettes by contacting government officials with authority to accomplish that goal.

The MSN money website also mentions an employer firing employees after instituting a no-smoking-employees policy link. This story links to WorkRights, where a search for smoking turns up a number of stories of employers firing, testing, and refusing to hire, smokers here.

The issue is sometimes called "lifestyle discrimination." Under that rubric, you can locate reports from

the ACLU here

Stephen Sugarman paper at U.C. Berkeley e-repository link (dated 6/27/02)

You're Not The Boss Of Me: A Call For Federal Lifestyle Discrimination Legislation, 74 The George Washington Law Review 553 (April 2006).

National Workrights Legislative Brief link Includes model statute, list of states with relevant legislation, and a brief bibliography, which only dates 1980's - 1991.

Washington Post article dated 10/06 on workplace discrimination link

Ungaretti and Harris law firm report on Illinois law prohibiting "lifestyle discrimination." link

Inside Counsel's analysis of how the ADA may prevent lifestyle discrimination here

Seattle Times story from 2004 on employers' refusing to hire smokers, which lists employers I did not see noted elsewhere link

Jackson-Lewis Connecticut Employer article on lifestyle discrimination from 2005 link

Bender's Labor & Employment Bulletin, June 2006 on the legal implications of "Wellness Programs." link through Jackson-Lewis.

Article from American City & County on how wellness programs reduce health care costs (dated March 1, 2005) link

Image courtesy of


Now this is truly a fantastic idea: the Allen County Public Library in Indiana is posting internal training, outreach, and local community videos on YouTube! What a great way to offer training for staff--and for library users--whenever and wherever they like!

Boston Bar's Volunteer Lawyer Project links lawyers to clients for trial opportunities

The article in the title link here is from today's Boston Globe. It details the phenomenon of the "disappearing trial." So many cases now settle out of court, that many newer lawyers have difficulty finding opportunities for trial work. The Boston Bar Association's excellent pro bono program, Volunteer Lawyers Project, is addressing that problem by offering Boston area attorneys the chance to represent landlords and tenants in the Housing Court.

Tuesday, November 28, 2006

No Two Snowflakes Are Alike

Everybody says these things, but who knows if it's true? I mean, have you actually examined snowflakes to see? And how could you ever know -- nobody could examine all the snowflakes in the world. Actually, it turns out that some physicists at CalTech do, in fact know. Statistically speaking, it seems to be true: no two snowflakes are likely to be exactly alike. Visit the link in the title for a nice change of pace and read why.

I'm just living vicariously here -- Boston is preternaturally mild all this November. When we should be having bluster, snow and sleet, it's been soft blue skies and sun or mist. Makes all good New Englanders fear the winter that's surely coming!

Legal Materials Prices

The discussion on pricing of legal materials fascinates me. If I were an economist, I would be better able to approach the question.

In the court libraries, law reviews and SSRN are never used. Practicing attorneys and judges rarely read more than five law reviews a year. SSRN articles are never used. I know that in my library, I could cancel law review subscriptions without any marring of patron satisfaction, Even though law reviews are cheap, the time spent creating serial prediction records and check-in could be better spent.

Judges and attorneys heavily use the commentaries and annotations in the New York State codes. The indexes to print materials are very helpful. The West’s New York Practice series answers almost all of my reference questions that are not answered by the Matthew Bender materials.

What is the value of those items? And is the value applicable to the price? Practicing attorneys don’t pay for these materials. They rely on public investment. My library saves a lot of attorneys a lot of money. The court by subsidizing these materials promotes the more efficient use of court time. For the amount of people working in my unit, my proportion of court moneys is substantial.

The publisher’s editorial enhancements are a substantial intellectual effort to place legal effort within a framework. My most successful attorneys rely upon those editorial efforts. It is the self-represented who sit at the terminals composing searches. The attorneys use Lexis when they know what they want.

My question is—how can this intellectual effort be priced? Value is a different term than price. We are not happy with the price, but the attorneys are happy with the value of these resources. Right now, libraries are cutting back on titles. Will this damage court administration? Will there be less justice in the street because we cancel law reviews?

At some point, the merry-go-around stops. The courts could announce that they will only accept criminal cases. That was threatened at one point during the NYC budget crises. Civil cases would go to private judges and be handled only by boutique firms with their own libraries. That practice has affected court filings in California and by extension the California public access law libraries that rely on civil filing fees for their budgets. Solo practitioners might disappear; people cannot afford attorneys and the poor solos lead lives of desperation.

The states and courts have done a good job of making current law available over the Internet; it is the intellectual work to conceptualize the law which the private sector provides. I don’t see universities or libraries doing as good a job as the private publishers I don’t understand the calls for universities to compete with private publishers. Such an effort would require a complete reorganization of funding, promotions, tenure, and teaching, even clerkships because law reviews would have to be dropped. Law schools have a poor editorial record of supporting courts; the private publishers do a better job. Complain as we do about the prices, the publishers provide a service. We just don’t like the price. Our economy has shifted from manufacturing to information; maybe we have to start new ways of measuring value and price.

Sometimes I think the private publishers have identified government as the last growing part of the economy and price accordingly. They are in a spot. Their classifieds are going down; Craig’s list destroyed newspaper classifieds. The publishers have laid off staff and outsourced production. Where else can they go to make money, but government and courts?

Monday, November 27, 2006

Presidents usurping legislative powers - a longer view

Apparently, a historical view of the issue of executive encroachment into legislative prerogatives reaches back considerably before the signing statements of current President Bush. Interestingly, the Cato Institute issued a report in 1999, Executive Orders and National Emergencies: How Presidents Have Come to "Run the Country" by Usurping Legislative Power link. Note the date, still during the Clinton presidency. See also the Cato analysis of The Problem with Signing Statements, link, which also appeared as an essay in the Chicago Tribune, in July, 2006. You can see an interesting webography on the issue of separation of powers at Cato, here.

Another historical survey of presidential powers, from The Daily Reckoning, here, dated 2006, "The Limits of Presidential Power: All the President's Power," by By Thomas E. Wood Jr. This site describes itself as libertarian.

The American Bar Association's bi-partisan committee studied the effect of presidential signing statements link, in July, 2006. See here for a link to the full text of the report and information on the taskforce members.

In-depth law review article at 52 Duke Law Journal 403, Mark J. Rozell, "Executive Privilege Revived?: Secrecy and Conflict During the Bush Presidency," link.

A list of law review articles on the topic of presidential powers from the American Constitution Society, here.

And, at (which bills itself as independent investigative reporting since 1995), there are a variety of essays on the topic of the new "imperial presidency" model of Bush-Cheney:

Roberts and the Apex of Presidential Power link

Bush's Absolute Power Grab, here. This essay covers the signing into law of the Military Commissions Act, which was blogged in-depth here at OOTJ here.
More on this troubling act, here and here, at ConstitumNews, from Robert Parry. Here is a webography from ConsortiumNews on the "Imperial Bush," link.

For another discussion on the limits of presidential power, see Legal Affairs' Debate Club dialog between Berkely law Prof. John C. Yoo and Prof. Neil J. Kinkopf of Georgia State University College of Law, link from November, 2005.

Prof. Yoo writes at the Heritage Foundation, on "Energy in the Executive: Re-examining Presidential Power in the Midst of the War on Terrorism," last April, here.

Prof. Kinkopf writes more as well, on Jurist at Pitt Law, in March, 2006, link, on statutes and presidential power.

CQ Researcher, in 2002, issued this report, Presidential Power v.12-40. See also CQ link to "Constitutional Powers of the President."

This report at, under the aegis of the conservative People for the American Way. Titled, "PRESIDENTIAL POWER, CONGRESSIONAL AUTHORITY, AND ROLE OF COURTS," the report is looking at the confirmation of Justice Alito. Another article looking at the same issues in the context of Alito's confirmation, from the L.A. Times, at the Pew Forum on Religion and Public Life website, here.

On Findlaw's Writ, John Dean writes here on "The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration," in January, 2006. Dean analyzes the effect of the signing statements.

From a comment on Slashdot, a collection of quotes dated 2004, from past presidents on their view of executive power, here, compiled by Tod Landis.

An essay on the Hamdan v. Rumsfeld decision as the "most important decision on executive power, ever," at The Nation, here, July, 2006.

A brief article from IndyMedia, here, and a referral to the New Yorker article of July, 2006, here, by Jane Mayer, "The Hidden Power: The legal mind behind the White House’s war on terror." That mind belongs to David S. Addington, Vice-President Cheney’s chief of staff and his longtime principal legal adviser.

At The American Conservative, an article on Bush's use of signing statements here, from July, 2006, "Power of the Pen: The president uses signing statements to decree which laws apply to him ," by James Bovard.