Monday, August 31, 2009

Cyber Gender Harassment and the New Campus Gossip Sites

University of Maryland law Professor Danielle Keats Citron has an interesting article on SSNR, "Law's Expressive Value in Combatting Cyber Gender Harassment." Also at vol. 108 Mich. L. Rev. (2009). (A nice coincidence that this pops up right after Marie's post about the new dean at U. Maryland!) The abstract reads:

The online harassment of women exemplifies twenty-first century behavior that profoundly harms women yet too often remains overlooked and even trivialized. This harassment includes rape threats, doctored photographs portraying women being strangled, postings of women’s home addresses alongside suggestions that they should be sexually assaulted and technological attacks that shut down blogs and websites. It impedes women’s full participation in online life, often driving them offline, and undermines their autonomy, identity, dignity, and well-being. But the public and law enforcement routinely marginalize women’s experience, deeming it harmless teasing that women should expect, and tolerate, given the Internet’s Wild West norms of behavior.

The trivialization of phenomena that profoundly impact women’s basic freedoms is nothing new. No term even existed to describe sexual harassment of women in the workplace until the 1970s. The refusal to recognize harms uniquely impacting women has an important social meaning — it conveys the message that abusive behavior towards women is acceptable and should be tolerated.

Grappling with the trivialization of cyber gender harassment is a crucial step to understanding and combating the harm that it inflicts. My previous work "Cyber Civil Rights" explored law’s role in deterring and punishing online abuse. This Essay emphasizes what may be law’s more important role: its ability to condemn cyber gender harassment and change the norms of acceptable online behavior. Recognizing cyber harassment for what it is — gender discrimination — is crucial to educate the public about its gendered harms, to ensure that women’s complaints are heard, to convince perpetrators to stop their bigoted online attacks, and ultimately to change online subcultures of misogyny to that of equality.
The article is important and timely, partly because campus gossip websites are proliferating. The granddaddy of them all, JuicyCampus, went under for lack of advertising revenue. But that has not deterred imitator sites from springing up, proclaiming their intentions to fight all attempts by attorneys generals or university general counsels to shut them down. According to the Chronicle of Higher Education Technology section for Aug. 31, 2009, "They're Back and They're Bad!" (in print at A-20). The various sites, such as CampusGossip, are planning back to school marketing stunts at different schools. One, CollegeACB, paid the owner of JuicyCampus $10,000 to redirect traffic to their website. Despite the fate of JuicyCampus, the new web entrepreneurs must anticipate making money with their ventures. These sites remind me of AutoAdmit, which caused quite a stir in law schools a couple years ago (see OOTJ post 3/27/07 on Cyberbullying and Virtual Rape which includes some discussion and links about Autoadmit).

When victims, school administrators, parents or reporters ask about the sites', the website owners often characterize them as spoofing celebrity tabloids, and attempting a light-hearted ranking of, say, Greek organizations by the best parties, or the best-looking members. But the always-anonymous posting leads to downright nasty entries that name individuals and make truly slanderous allegations -- too often about women.
A discussion thread on CollegeACB lists "sluts" at California State University at Chico, naming women on the campus whom the anonymous posters claim to have had sex with. A recent posting at Peoples Dirt expresses a wish that a group of girls listed in a discussion thread would "die in there sleep and everyone just forgets about them."

In some cases, postings on the sites may cause harm to reputations, with serious impacts on students if the messages are seen by future employers or potential suitors. Unlike slurs scrawled on bathroom walls, online posts can be more public, and more lasting.

"Internet shaming creates an indelible blemish on a person's identity," wrote Daniel J. Solove, a professor of law at George Washington University, in his 2007 book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press). "It's similar to being forced to wear a digital scarlet letter or being branded or tattooed. People acquire permanent digital baggage. They are unable to escape their past, which is forever etched into Google's memory."

Site administrators for both Campus Gossip and CollegeACB say they will remove abusive comments and respond to complaints from readers—something JuicyCampus rarely did.

Peter Frank, a sophomore at Wesleyan University who runs CollegeACB, told me he tries to "minimize damage while still maintaining the site's purpose" by complying with such requests.

Just how responsive the sites are to take-down requests remains to be seen, since students are just now arriving on campuses for the fall semester. "We technically don't have to take anything down, based on what we've been told by our lawyers," a leader of Campus Gossip told me recently. He refused to give his real name, explaining that every employee of the site goes by the pseudonym Lance Lohan. "We choose to do that just to stay on the safe side of things."
In March, 2007, in the OOTJ post on Cyberbullying, and considering both a griefing attack on Second Life and the AutoAdmit sleaze-fests, excerpts from the post are still pertinent:
In both the Second Life griefing attack and the AutoAdmit trash-talk attacks, the perpetrators remain anonymous. In fact, on AutoAdmit, the "hottest law student" contest was abruptly called off, not after the women being posted without their consent protested (they were trashed even more when they asked to be removed) – it was called off when a male commentator was inadvertently outed. Oooh.

On the other hand, what is most appalling in both sets of attacks is the misogynistic nature. The griefing attack used penises to disrupt an interview. The attacks on AutoAdmit, while including racist, anti-semitic and homophobic comments, certainly displayed attitudes that devalued women as a group, and specific individuals. There were comments that considered sexual attacks and punishments against these women, and discussed their physical attributes in overtly sexual ways. These are both specific examples of cyberbullying of a sexual nature.

The women attacked both on Second Life and on the AutoAdmit chat have said they felt demeaned, devalued and threatened. Women law students who have been the subject of AutoAdmit attacks have said they felt they could no longer go to the gym, and had trouble attending class. They felt violated and threatened.

At a class website, the professors, Marcia Cohen and Sherrie H. McKenna describe women's reaction to rape:

" ... but all victims feel varying degrees of fear, guilt, embarrassment and anger. These emotions will not surface all at once but will effect the woman for a long time after the attack. It is important for all those close to her, especially the men to understand her feelings and support her through the crisis.
The fear a woman feels may weave through all aspects of her life. More than likely she was attacked going about her business, feeling safe in her world. Once that security is invaded the woman may be fearful about the once routine activities of her daily life. She may approach strangers and even friends and acquaintances with a new caution.
A woman may feel guilt, wondering why she was the victim. She may question whether she really did “ask for it” or lead someone to the wrong impression. She may also be embarrassed about what other people think of her. These feelings may cause her to avoid sexual relationships for a time."

On the Wikipedia article about rape, these comments about the psychological effects of rape:

"Rape has been regarded as "a crime of violence and control" since the 1970s. Psychological analysis literature identifies control as a key component in most definitions of privacy:
• "Privacy is not the absence of other people from one's presence, but the control over the contact one has with them." (Pedersen, D. 1997).
• "Selective control of access to the self." (Margulis, 2003)
Control is important in providing:
• what we need for normal psychological functioning;
• stable interpersonal relationships; and
• personal development. (Pedersen, D. 1997)
Violation of privacy or "control" comes in many forms, with sexual assault and the resulting psychological traumas being one of the most explicit forms. Many victims of sexual assault suffer from eating disorders such as anorexia nervosa and bulimia, which also center around control issues. Therefore, some argue that it makes more sense to look at the issue of sexual assault as an invasion of privacy" (Mclean, D. 1995)

(Wikipedia, Rape, visited 3/26/07)

I think we should consider how virtual worlds -- whether Massively Multi-Player games like Second Life or chat and listserves, enable such attacks on individuals. We should also recognize that the effects of such attacks, whether you call it cyberbullying or virtual rape, are very bad, attacking the victim's security and sense of self.
So this finally leads back to Professor Citron's thesis, that cyber harassment or cyber bullying should be treated as a civil rights violation. The continued trivialization of the problem is disturbing. In my original post in 2007, I commented that cyberbullying and even virtual rape could happen as easily to males as to females. But apparently, it is still a prevalently feminine issue. I considered whether the problem might be taken more seriously if men were harassed online. And the answer is apparently not. On the other hand, we have had one teenaged girl who committed suicide after being harassed online through text messages sent pseudonymously. According to the Wikipedia entry, a number of Missouri municipalities passed ordninances making online harassment a misdemeanor. The state of Missouri has a bill in process creating a felony for online harassment, and some unstated number of other states may be considering similar bills. On the federal level, Congresswoman Linda T. Sanchez introduced H.R. 6123 as the "Megan Meier Cyberbullying Prevention Act" to "amend title 18, United States Code, with respect to cyberbullying." The bill was introduced in the 111th Congress on April 2, 2009 as H.R. 1966. (link is to and will not only give you the official and wiki summaries, the text of the bill, it will let you send a note to your representative about how you feel about this or any other bill, and check news coverage about whatever bill you are looking at. Great site!)

Friday, August 28, 2009

New Dean at Maryland

I saw a posting about fellow alumna Phoebe Haddon in my Smith College alumnae newsletter. The posting linked to this story from the Baltimore Sun about Haddon, who is the new dean at the University of Maryland School of Law. I didn't have the pleasure of knowing Dean Haddon at Smith, which is a women's college; however, I was interested in her comments about the special insights women bring to the law:

I think women bring new dimensions to thinking about the law, because we ask different questions ...In the area of human rights and domestic problems, women have asked questions about a lack of equity that were simply not asked before.

I was also interested in her thoughts about attending a single-sex school. At Smith,
professors pushed her to think of inequality not just in historical or emotional terms but in theoretical ways. "It produced a degree of self-confidence, because there was no question that you could lead, no question that your intelligence was valued, no question that you could apply yourself in whichever direction you wanted to go."

I concur with that opinion. There was an unspoken assumption at Smith that there were no limits to what we could accomplish as long as we worked hard. It was a uniquely supportive environment.

As the new dean at Maryland, one of Dean Haddon's goals is to make the Law School an active part of the local community. According to the Sun, "Haddon envisions the law school extending its clinical practices to help city residents and getting more involved in policy issues affecting Baltimore." She is even planning to live close enough to the school that she can walk to work!

Justice Souter's Papers

Retired Supreme Court Justice David Souter has donated his papers, both personal and professional, to the New Hampshire Historical Society in Concord, of which he has been a member for many years. Read Tony Mauro's story in the National Law Journal here. Some historians are disappointed because Souter has "placed an extraordinarily long restriction on public access to his papers, barring anyone ... from viewing the material for 50 years. That's a lengthier seal than any justice has placed on papers in recent memory." When Chief Justice William Rehnquist's papers were donated to the Hoover Institution at Stanford University, stipulations were made as to when materials could be made public. This New York Times ' article reports that no materials relating to cases heard by justices still on the Court would be released until they stepped down.

According to Mauro, Souter's papers are in good order, but will need to be cataloged. He says whether "the society [will] be able to catalog the papers now, or not until the [fifty-year] restriction is nearly over? Apparently Justice Souter is "'considering' allowing an unnamed 'mutual person' ... to do the cataloguing, but otherwise society personnel are covered by the 50-year restriction like anyone else.'"

Ethics for Library Organizations

Gee, this is tough. Karen Schnederman asks what position do I think AALL should take regarding news items such as

Denver Public Library to consider hour cuts, closings
To make up for a budget shortfall of nearly $5 million next year, Denver Public Library officials are considering cutting back service hours, closing branches, and even selling buildings. The city of Denver is expecting a total shortfall of $120 million next year, and all departments have been asked to cut 14% of their budgets. For the public library, which gets 89% of its revenue from the city’s general fund, that translates to a reduction of $4.5 million, on top of cuts from previous years. In 2003 the library system had to take a 7% cut, or $3.5 million....
Rocky Mountain (Colo.) Independent, Aug. 20
If you go to ALA, you can see that they have some very strong statements about public libraries and the need for them growing as the economy tanks. They have a lot of material on their website. People do use the public library more as the economy gets worse.

I don't know how much obligation AALL has to underwrite material like that, but I should think that we ought to at least regret decisions like this and add our voices to the ALA's voice in support of public libraries. I think we do, in lobbying at the federal level, sign on with ALA on issues.

But budget cutting is a very tough issue. In Massachusetts, we recently went through a round where all the various agencies had to take hard cuts. And then the zoo pulled a stunt where they went to the media with a statement that if they had to cut their budget as requested, it would mean euthanizing all the animals! This turned out to be WRONG, and MISLEADING. In fact, mixed in the euthanasia statement from the Zoo New England spokesperson, you can see a second statement from a spokesman for Franklin Park Zoo, that a zoo instead would find homes for the animals at other zoos or parks, if they were not able to care for the animals.

What would happen is that the zookeepers would lose their jobs or take pay cuts, just like the people at all the other agencies. And they would have to cut back on their mission and do with less. Just like lots of other agencies, some with arguably more important missions -- for education, and for care to retarded and disabled people, and which had just as harsh budget cuts. But because the news ran the story about killing the cute zoo animals, hysteria overruled reason here in Boston (and across the country!). The governor had to restore a big chunk of the zoo's budget, and that meant cutting deeper into some other agency's budget.

So, you see what I am saying about the public library issue here: Where do you get the money to keep the library open? If you have to rearrange the existing state budget to put more into the library, where are you going to take it from? Without knowing a lot about the budget issues, you don't know who you are hurting to take the extra million dollars or two, or three, and add it back to the public library budget. The best answer is if you get public support to the point where some corporate support, and pennies and nickels from the public to supplement that money from the government. But that's hard in the economy we're in... Maybe it might work.

Law Student Summer Job Blues

The ABA Journal Weekly Newsletter has a group of stories that pull together to make a very bleak picture of summer jobs this year:

Skadden Arps cuts their summer jobs by more than half here. For the summer of 2010, they plan to hire 100 (down from 225 this summer). And they plan to offer permanent associate jobs to about 95% of their existing summer associates, but to begin those jobs 2011, not in 2010, the year they graduate. That is, they will have a year's deferment.

Lost Year for 2-Ls - Big Law Cuts Summer Hiring in Half. This report is based on the New York Times article that Marie posted recently, and looks at a variety of large firms scaling back summer hiring. They also report on firms canceling or reducing interviewing at elite schools. The result is students who would be working in the big law firms scrambling into jobs at mid-size and smaller firms, government and public interest jobs. The dark cloud of debt is looming over students as they think about summer employment.

A recommendation from Northwestern University assistant dean William Chamberlain that students receiving a summer job offer accept it immediately. The brief article has a link to the National Law Journal column written by Chamberlain so you can read it in full.

A really depressing article about four Ohio firms that cut their summer associate programs in favor of the option of hiring experienced, laid-off attorneys. They didn't want to give the students false hopes when the firm isn't likely to ask them to stay. At least, they're taking the students' feelings into account. I think.

Westlaw returning printers to Southern New England

I got a voice mail from Spencer Clough at Southern New England School of Law today saying that West is returning the printers for their Westlaw. He credits pressure from stories such as the ones here at OOTJ, but also hard work from their own academic rep. We are so glad to hear that West is returning the printers! And we hope that this story, and the similar good news at UDC mean that the policy of removing printers from unaccredited and provisionally accredited law schools has been abandoned entirely. Thank you, West, for being responsive!

Thursday, August 27, 2009

Stanley Kaplan's Legacy

Stanley Kaplan died recently, the entrepreneur behind the Kaplan test preparation company. The link above takes the reader to a lengthy obituary in the New York Times from August 25. Kaplan was born in Brooklyn, and continued to live in the New York area to the end of his life, with homes in Manhattan and Boca Raton. He was a philanthropist to several large New York institutions, with named buildings at the NYU Medical Center and Lincoln Center for Performing Arts. In fact, his business began in his parents' home in Brooklyn, and grew out of his tutoring for the New York Regents' exams.

The Chronicle of Higher Education ran an interesting article (subscription needed, available in print at Chronicle, Aug. 27, 2009, p. ), analyzing "The Legacy of a Test-Prep Entrepreneur." According to both the N.Y. Times and the Chronicle articles, Kaplan got into test preparation because he had been denied entrance to medical school, because he was Jewish and because he graduated from a public university, CUNY. He wanted to democratize entrance to colleges and professional schools, based on merit rather than family ties.

I had not thought of the test-prep folks as providing equal access to education. Instead, I considered them part of the cycle that created the overwhelming anxiety afflicting students as they prepare for these tests. I considered that the test-prep folks benefited from the anxiety and so feed into it, with ads everywhere. At least, at the beginning, it appears that the anxiety was there before the test-prep folks even sprang up in response to it. This is kind of nice to know. It was interesting to read about the battle between the College Board and Mr. Kaplan, over whether test prep actually improves scores. I took my tests so long ago, that I remember the College Board asserting that test prep has no effect -- and believing them. It turns out Mr. Kaplan was right! And he persuaded the Federal Trade Commission, too. Serves me right for believing the College Board!

The Chronicle article also ties the growth of for-profit education businesses generally to Mr. Kaplan's pioneering company. They see the development, not only of other test-prep companies, but also of successful for-profit universities, such as Phoenix University, of course-management software companies like Blackboard, of distance learning turnkey companies, and of student coaching companies, all flowing from the crack in the non-profit facade of higher education made by Stanley H. Kaplan. Undoubtedly, they should include the companies that have cropped up supplying academic libraries as well, with automation systems, databases, and increasingly expensive publications and subscriptions. Once upon a time, nobody viewed universities or colleges as lucrative places to do business. How quaint we were!

The photo of Stanley H. Kaplan is from the New York Times, which credits Kaplan, Inc.

Wednesday, August 26, 2009

Time to Change our Relation to Vendors? Johnny B's Call to Arms

Over at Johnny B: Renaissance Man, John Beatty wrote a terrific call to arms (click on the title to this post to go read it in full). After reviewing the dismal recent events in West's relations with librarians (AALL sponsorship refused; pulling printers from Puerto Rican law schools and non-ABA accredited law schools; and finally the ad stating that knowing your librarian's first name was proof that you were spending too much time in the library), John recalls for his readers that West is no longer a family-owned business, but part of a multi-national mega-corporation. The guiding rule is stock price and profit for these large businesses now, and librarians need to get used to the idea that their vendors and publishers are no longer the small, closely held, family-owned houses they once were.

John considers what the relation should be between a professional and vendors, where the professional will be recommending the products, comparing, teaching and consulting about which would be the most cost-effective product. His conclusion is that carrying mugs, bags, pens and other paraphernalia with the logos of vendors undercuts the professional's independence. He recalls his personal revulsion at librarians' gleeful greed for trinkets in exhibit halls, both at ALA and AALL. Now John has cleaned out his office, throwing out or giving away all the trinkets, mugs, etc. with vendor markings. When he teaches this year, his coffee cup will be blank or have a sports team logo.

All this reminded me of a long-ago article from the Boston Globe about the science of influence. (click here to read the entire original OOTJ post). The Globe article was about a lobby group, AIPAC, for Israel that pays for journalists and politicians of any kind to travel and tour Israel. The woman who wrote had taken one of these trips and then wrote about her experience, including a consideration of whether she thought it had influenced her opinions about Israel. She said there was no hard sell, just the trip itself, which included flying business class, a seven day trip including a tour of the desert and the Old City of Jerusalem with a renowned archeologist, laying on the beach in Tel Aviv, and many more wonderful experiences. They were special experiences the average tourist would not have access to -- visits with government officials, intimate conversations with Israeli families. When she returned home, she really wanted to evaluate how much the trip affected her opinions about Israel.

When I returned to Boston, I had a new store of knowledge and a profound fascination with the Middle East. What else had I brought home?

In January 2003, Justice Antonin Scalia went on a duck-hunting trip to Louisiana with Vice President Dick Cheney, a litigant in a case before the US Supreme Court. In the ensuing uproar, Scalia was indignant. "I do not think my impartiality could reasonably be questioned," he insisted.

Not by him, anyway. Because one of the things psychologists tell us about persuasion is that we have a very hard time knowing if it's happened to us.

I was well aware that I had heard only one side of the story on my trip. So how could I be susceptible to persuasion? But I also knew that any lobbying group that drops thousands of dollars on someone expects to get something in return.

I called John A. Bargh, a Yale psychology professor who studies nonconscious influences on behavior, and walked him through the details of my junket. Did he think I was swayed by the experience? "Of course you are," he said. "You'd almost have to be. And you can't know it."

A key tool in the subtle art of persuasion, he said, is reciprocity: offer someone a pleasant experience or gift and they feel an almost irresistible obligation to return the favor. The norm of reciprocity cuts across every culture, and the value of the gift is irrelevant: a cup of coffee is as effective as an extravagant trip. Another tool is to provide friendship and human connection - it's inevitable that a bond will develop when you spend substantial time with someone, especially in a foreign place, where you depend on them.

In the case of the AIPAC junket, it was a one-two punch: an unforgettable and emotionally charged week with warm, likable people - generous hosts and tour guides whom I worried about after returning to the safety of life in Massachusetts.

Emily Pronin, an assistant professor of psychology at Princeton who studies how bias works in the human mind, told me that she and others have found that although we are quick to spot bias in others, bias in ourselves operates almost entirely on a subconscious level. She calls it the "bias blind spot." Scalia's cozy weekend was innocent in his own eyes. Doctors who worry about the sway of pharmaceutical companies over their colleagues insist that their own medical judgment would never be affected. Journalists think they're too savvy to be hustled by lobbyists. We're all operating under a fundamental misperception about the soft sell: that we'll see it happening and avoid it.

"It's a perception of bias as conscious, evil, corrupt behavior," she told me. "As long as we think that's how it goes, we'll continue to say it doesn't affect us."

Since we're all deeply invested in our own sense of integrity - and being accused of bias is an affront - we are primed to deny it. Because bias is subconscious, Bargh said, when our opinion does change we'll convince ourselves that it's because objective reality has changed, or that we didn't have enough facts before.

Armed with this new appreciation for the subtleties of influence, I've found myself picking over the question: how much has my opinion on Israel been moved?

It's not hard for me to acknowledge that I'm much more sympathetic to the predicament of Israel than I was before I saw the place so extensively with my own eyes. Traveling the countryside has given me a much clearer picture of its precarious state, with a mere 9 miles separating the West Bank from Tel Aviv - less than from Boston to Concord, and easy distance for rockets. You can certainly see why Israel wouldn't give up the West Bank until it has a partner it can trust. Its existence - and the lives of the people we met - are at risk.

Before the junket, I would have described myself as admiring of Israel but increasingly disturbed by its human rights violations.

Now I would say I find myself aligned with a growing group of former Israeli leftists, those who once believed a peaceful solution was imminent but after the debacle of Gaza have, with heavy hearts, lost their bearings and moved toward the center.

Is this a seismic shift? No. But I also have no way of knowing where I would stand had I paid for the trip with my own money, organized my own interviews, and gotten equal access to the Palestinian point of view. (snip)

Was I swayed by AIPAC? It is hard for me to say. I don't think so. Of course I don't.
The bias blind spot is the most disturbing part of this article for me. As a law librarian, I have always liked to think that I could accept mugs and pens from vendors and maintain some objectivity; still be able to recommend the best product for cost-effective research regardless of whose mug or pen I happen to have in my hand. But Johnny B makes a separate point -- the appearance of objectivity to our students, our faculty, our attorneys, clients, patrons of all types, is compromised when we have these items in our offices. I had not really considered this before, though I have been joshed by colleagues before in meetings about a mug or pen.

Clearly, the vendors must think these items are worth something to them -- why else are they spending money to put their names on items to hand out? Why else are they hosting parties, handing out gimmes at the exhibit hall? Actually -- gimmes at the Exhibit Hall: as a member of the various SISes, that may be a different issue -- we buy give-aways ourselves, and put out candy to draw people to our tables so we can talk to them and get our message out. The exhibit hall tchotchkes may be a different thing, to some extent. We certainly see them used as tools to get librarians to sit through product announcements and training sessions, where you have to get multiple boxes or cards checked to get a big prize or series of prizes. But it's a little disturbing to be moved along like Pavlov's dogs, and then handed a branded prize so we can advertise the vendor as if we were a Nascar racer.

Tough Times for Job Seekers

Today's New York Times features an article, "Downturn Dims Prospects Even at Top Law Schools," that makes clear just how tough the job market is this season. The dire situation is summarized in the opening paragraph: "This fall, law students are competing for half as many openings at big firms as they were last year in what is shaping up to be the most wrenching job search season in over 50 years." The article talks about firms that are slashing hiring, cancelling recruiting, and postponing recruiting while they wait to see if the market picks up. On-campus interviewing is down even at the top-tier schools, and students who once assumed that they could count on corporate law jobs that would enable them to pay back their student loans are now looking for jobs with public-interest organizations and the government. Of course, none of this is news to readers of the Above the Law blog, which provides a daily chronicle of the legal employment market. The article doesn't discuss the repercussions of this unprecedented hiring crisis on students who go to less highly ranked schools, but finding a job is even harder for them. One positive result of the contraction in the demand for legal services is that it is forcing firms to look at the "economic inefficiencies" that have long gone unquestioned. Firms have been reexamining the billable hour, "apprenticeships or tiered systems that depart from the traditional 'up or out' partner-track models. Some industry observers say their moves represent first steps that may ultimately give firms greater flexibility in hiring." As the article concludes, none of this innovation is going to offer much relief to members of the class of 2011, who are victims of a "unique logjam created last year. After the September financial crisis, firms chose to defer their new hires at the price of steeply cutting recruiting this year." Many law schools are welcoming slightly larger classes than usual this fall, but I wonder how long this will continue. At what point will students look at the amount of debt they will incur to go to law school and decide that the chances of their getting a job are so low that it just doesn't make financial sense to attend law school?

Tuesday, August 25, 2009

Treasures at the Morgan Library

The Morgan Library and Museum in Manhattan has mounted a show entitled "Pages of Gold" which showcases leaves that were separated from manuscripts and sold individually to collectors. The New York Times reviewed the show in June, but it took me awhile to get there. The exhibition is small--it fills one good-sized room--but very affecting. It is organized by country--Italy, Spain, France, the Netherlands, Germany, Hungary--which allows the viewer to compare the different styles of medieval illumination. Some particular standouts--a page from the Winchester Bible (late twelfth century) illustrating the life of King David and showing David mourning the loss of his son; a grisly depiction from a Hungarian devotional album (14th century) of the flaying of St. Bartholomew; and an exquisite "Virgin and Child with Female Saints" (circa 1500) by the Flemish painter Gerard David. The show is on view until September 13, and if you are going to be in the New York metropolitan area, it is well worth a visit.

Something's Rotten in Brooklyn

The Washington Post ran an appalling story on August 9, 2009 about the Brooklyn Public Library, which hired a firm that specializes in coordinating layoffs to terminate thirteen employees. The firm, the Five O'Clock Club, coaches "businesses on how to execute mass downsizings and often visits companies on the designated day to help coordinate a layoff." Everything is done according to a script--employees are given a kind word and then the bad news. They also get advice on looking for new jobs, but at that point, many are probably too numb to take in what is said. The Brooklyn Public Library paid the Five O'Clock Club more than $15,000 to engineer the layoffs of a variety of workers, including some who were "career employees who [had] not looked for a job in decades ... [the head of personnel] believes the Five O'Clock Club might save the library money in the long run by helping it avoid lawsuits for wrongful termination." What was particularly upsetting about the story was the painful personal information it shared about the employees who were laid off. Enough details were provided that it wouldn't be particularly hard to figure out the identity of most of the individuals--so much for sending people "into unemployment with decency," as the President of the Five O'Clock Club, Kate Wendleton, has vowed to do. It should be pointed out that the unfortunate people who were laid off were not among the unionized employees of the Library.

In the aftermath of the story, the director of the Brooklyn Public Library apologized to staffers, saying that the "'library did not collaborate with either the Washington Post or The 5 O'Clock Club in writing this article.' Attached [to the apology from the director] 'was an apology from company president Kate Wendleton, who wrote, 'I intended this article be a profile of my company ... and not, as it turned out, a detailed and personal account of the downsizing ... [T]he mention of Brooklyn Public Library by name should never have happened.'" From here, the plot thickens.

The Post's Omblog reported on August 19 that Wendleton's "note of apology was actually written by library officials. 'I took the rap for it ... The Brooklyn Public Library wrote it, 100 percent.'" The author of the original article, Eli Saslow, has stated that "library officials knew he would be accompanying Five O'Clock Club staffers to the library, that he would be writing about it and that the library would be named in the story. He said he even contacted the library before publication 'to run through what the story was about and to tell them that employees' names weren't being used ... '"

I will think of this sorry tale the next time someone dumps on unions and wonders what they do for their members. Everyone comes out of this looking bad--the personnel director at the Library who was "nervous" and needed to be helped through the process of firing people; the library director who claimed she was misled but was on notice of what the story would contain; the Five O'Clock Club president who wrote a letter of apology and then disclosed that she had not actually written it; the reporter who needlessly revealed intimate information about fired employees and callously violated their privacy. This episode could serve as a template about how not to fire people.

Change in Policy at Wikipedia

Yahoo News is reporting that Wikipedia is "testing a new method for curbing false information in its entries as the online encyclopedia seeks a balance between credibility and openness." Wikipedia will continue to allow anyone to write and edit articles, but it is experimenting with requiring changes to article about living persons to be run past experienced Wikipedia editors before they show up on the site. What does it take to be considered an "experienced" Wikipedia editor? "Users who are registered for a few days can give changes the OK ..." The bar has deliberately been set very low so as not too make editing so difficult that volunteer editors will be discouraged from keeping articles timely. A similar system has been in place for the German-language Wikipedia for over a year. The New York Times's more complete coverage of this Wikipedia development is here.


In an effort to jiggle loose the Justice Department's Pacer database, programmers from Harvard, Princeton and the Internet Archive have provided a Firefox Plug-in called RECAP (that's PACER spelled backwards). It tests the search you run in PACER against a database of already-retrieved documents that have been donated to a free "shadow" PACER database, RECAP. If the document you want exists in RECAP, you get it for free. Yay!

If the document isn't already in the free database, sadly, you have to pay. But, you get to be a hero and donate it to the RECAP database so the next person will get it for free.

Here are two stories about RECAP:

Wired and Reason

Tip of the OOTJ hat to Michael Lynch.

Monday, August 24, 2009

Printing Reinstated in Puerto Rico

I just received an email from Maria Otero, Director of the University of Puerto Rico Law Library. She shared with me the good news that Thomson Reuters has decided to reinstate support of standalone printing at law schools in Puerto Rico.

"Dear all:

After a very good and thoughtful telephone conversation with Mr. Mike Suchsland, President of West Education Group , and Mr. Chris Parton, Vice President, the Westlaw printer program has been reinstated for all Puerto Rico law schools. Both officials have promised that any future reductions in the program will be equally applicable to all law schools who currently participate in it.

Dean Aponte-Toro and myself are very satisfied with this result and wish to thank all of you who helped that our voices from this "distant ocean community" (Chief Justice Taft in Balzac v. Porto Rico, 1922 ) were heard.
We also wish to thank Mr. Suchsland and Mr. Parton for their understanding and swift action.

If those of you who sent messages concerning this subject could relay this one to those you contacted, I would certainly appreciate it. The same request to you bloggers, who also helped a great deal.

Thank you all very much,

José Julián Álvarez González
Professor of Law
University of Puerto Rico School of Law"

I wonder if Thomson will reconsider the decision not to support standalone printers at the District of Columbia College of Law and at Southern New England.

Thomson West: Epic PR Fail

One more time, West stumbles over its own feet in its haste to offend the librarian community... They came out with nifty little "cards" aimed at practitioners, "Are you on a first name basis with the librarian? If so, you're spending too much time in the library." See the card reproduced for your viewing pleasure above. The librarian community was chatting about the card on Law-Lib and Craig Griffith of West did come out and claim that he had no knowledge of the ad campaign, and said the slogan did not represent West's attitude toward librarians... Well, it's a little late, though.

In the meantime, all this summer,...

* West finally pissed off the AALL Executive Board enough that they passed up the money and refused to accept Thomson-Reuters-West as a Sponsor at AALL this year, because for years the company has flatly refused to cooperate by supplying any information for the AALL Price Index. Every other vendor and publisher supplies the pricing for its supplements so that AALL can maintain this very useful measurement of how much various types of legal publications are costing from year to year, not by publisher, but by type, over time. But without the participation of the largest legal publisher, the index becomes nearly meaningless. Hooray for the AALL Board for finally putting pressure on West!

* West began pulling the free printers from the law school in Puerto Rico. At first, it looked as though this was the only law school to be so treated. But after I blogged about this in June, I heard from the director at Southern New England School of Law that West had treated them the same way. I surmise that it's because they are non-ABA-accredited. And since Marie just posted again with a fire-brand letter from one of the professors at Puerto Rico, we hear from the D.C. School of Law that they also were treated the same way until their dean faced West down! Again, it sounds as though West treats non-accredited and provisionally accredited law schools differently than the fully accredited. But it also looks uncomfortably like racial and ethnic discrimination, when you look at these three schools:

** Puerto Rico - the only 100% hispanic law school;

** D.C. Law School's website proudly lists that it has 47% minority enrollment (and the blog comment noted that it has a female dean);

** Southern New England School of Law has an African American dean.

Library Chairs - the wood, the bad and the ugly

Reprinted from my e-mail response on the directors' listserve, to a query about straight, 4 legged wooden chairs, which is what we have in my library:

Here is what I learned the hard way about sturdiness of straight 4 legged wooden chairs. You MUST have stretchers between the legs, or the legs will split. Stretchers are the horizontal dowels between the legs. The lower down they are, the stronger the protection. And, it's better to have them front and back, if you can, but if you can only have them in one position, have them on the front.

The reason the stretcher is so key is that the biggest stress on a chair is not being banged down or sat upon. The biggest stress comes when somebody sits down and decides to scootch the chair just a bit to one side or the other, to "center" themselves a bit. That is when the chair legs will be torqued and splintered. And most of the stress is on the front legs, not the back leg when this scootch happens, most of the time.

Arms on the chair will add a lot of strength to the chair, too. Armless chairs are much more prone to breakage, whatever the design. But you have to be sure the arms will fit under your tables. Measure it carefully.

Sit in the chair and see if you can get students and a variety of staff to try them out. Be sure the carved seat is comfortable. Sharply defined edges on the seat are gonna be BAD on the behinds for your students. The amount of lumbar support from the back of the chair matters, too. Remember how long law students end up sitting in the library!

And be sure they put good glides on the chair feet no matter what kind of chairs you get. That will save a lot of wear on your floor, carpet & chairs.

And Last! A warranty is not worth a damn if the company is not going to stand behind it. We had a warranty on the chairs we ordered and it still was pretty much worthless. The company wanted to quarrel about whether the chair breakage was due to misuse. They can get out of their warranty any time if they want to... If you can, get the company to give you several library references. They can supply all the offices in the world. Libraries are a whole different ballgame!
I learned this because our chairs began to split on the front legs within a week or two of the library opening in the summer -- that's with very light use. I assumed that people were tipping the chairs back and coming down hard while sitting in them. I was wrong! This kind of leg splitting is classic for the leg torque that comes from that side twist as the chair is moved sideways while the person sits without lifting their weight out of the seat. I discovered this by calling a chair specialist at Purdue University. But later found that the man's work was also included in an American Libraries Technical Report on library chairs.

Most architects and furniture specialists do not know how different the requirements are for library furniture. The standards for regular office furniture will simply not stand up to the rigors of library use. Don't let the architects or designers order standard office furniture for the public spaces in your library! That's what happened in my library and we have paid for it. It's penny wise and pound foolish. I could not get the university central administration to listen, and we had to retro-fit the wooden chairs with stretchers that first summer and add better glides, just to keep the whole set of chairs from collapsing.

The supplier of the wooden chairs did not honor the warranty. They claimed that the breakage was due to mis-use of the chair. We ended up negotiating a settlement where all the participants -- the designer, the supplier, the vendor, the individual sales rep, and the law school, all chipped in part of the cost. It wasn't worth it to the university to sue the company to force them to honor the contract, but we will certainly never do business with that furniture supplier again. So much for warranties.

One more thing that I did not anticipate: bluejeans' grommets are scratching the heck out of the wooden seats. All the wooden chairs' seats are quite scarred. We need to schedule some regular maintenance on the wooden chairs as well as carrels, tables and the window sills close to lines of carrels where students have been placing coffee cups!

The Christopher Baldy Prizes at the University at Buffalo Law School

The Baldy Center for Law and Social Policy at the University at Buffalo Law School, The State University of New York, is pleased to announce the establishment of three new prizes for innovation in the area of law and social science: Online Communication, New Scholarship and Distinguished Contribution.

The Christopher Baldy Prizes for Innovation in Law and Social Policy have been established to commemorate the thirtieth anniversary of the founding of the Baldy Center for Law and Social Policy at UB. The prizes are aimed at stimulating and rewarding innovative research, scholarship and uses of communication and information technologies that advance our knowledge and understanding of socio-legal issues. In keeping with the Baldy Center’s mission to promote interdisciplinary research and scholarship in law and social policy, the prizes will be awarded to individuals who have demonstrated creative and original thinking or developed novel approaches in socio-legal research and practice. Professor Rebecca French, Director of the Baldy Center, explains: “Perhaps the most important quality needed in our society today is innovation in social policy - advances in how we think about and create the social world that we live in. Law has been a vital resource in these innovations.”

The Baldy Center will grant three $7,500 prizes in the following categories:

* Online Communication: This prize will be awarded to an individual, group or organization that effectively integrates online technology in innovative ways to communicate creative ideas and best practices in law and social policy. The online work will typically combine such elements as text, audiovisual media, and social networking technologies that have a significant practical impact on law and social policy.

* New Scholarship: This prize is designated as a subvention for either a first or second manuscript in the area of law and social policy. It is intended for a new scholar in the field who demonstrates innovation and ingenuity by bringing fresh ideas to longstanding problems, exploring previously unacknowledged issues, or developing novel methods and approaches to analysis of law and social policy.

* Distinguished Contribution: The last prize will be given to a distinguished scholar who has consistently demonstrated a commitment to innovative thinking in the area of law and social policy. The recipient will be someone whose groundbreaking and substantial body of work in the field has profoundly influenced the way we talk and think about law in its social contexts.

The Christopher Baldy Prizes are open to all fields of law and social policy. Nominations can be made through the Baldy Center’s website and will be accepted up to December 1st of this year. The winners will be announced in January of 2010, and each winner will be invited to come to the University at Buffalo Law School to receive their prize and give a talk on their work. For more information on eligibility and nomination procedures, please visit

The Baldy Center is an endowed, internationally recognized institute that supports the interdisciplinary study of law and social institutions. More than 100 UB faculty members from 17 academic departments participate in Baldy Center research, conference and scholarship activities, as do an increasing number of graduate students. The center maintains cooperative ties to other interdisciplinary research centers and co-sponsors a regional network of socio-legal scholars in Ne
w York State and Canada. The Baldy Center also hosts distinguished scholars from around the world as visitors, speakers and conference participants.

Since its founding in 1887, the University at Buffalo Law School -- the State University of New York system's only law school -- has established an excellent reputation and is widely regarded as a leader in legal education. Its cutting-edge curriculum provides both a strong theoretical foundation and the practical tools graduates need to succeed in a competitive marketplace, wherever they choose to practice. A special emphasis on interdisciplinary studies, public service and opportunities for hands-on clinical education makes UB Law unique among the nation's premier public law schools.

The University at Buffalo is a premier research-intensive public university, a flagship institution in the State University of New York system and its largest and most comprehensive campus. UB's more than 28,000 students pursue their academic interests through more than 300 undergraduate, graduate and professional degree programs. Founded in 1846, the University at Buffalo is a member of the Association of American Universities.

Contact information
: James Milles, 716-645-5543,

Sunday, August 23, 2009

Thomson Reuters Discriminates Against Puerto Rican Law Schools?

A colleague alerted me to the email below, sent to Thomson Reuters on August 21 by a professor at University of Puerto Rico School:

Dear Thomson Reuters executives:

The enclosed e-mail by ... is self-explanatory. In it, he objects to your discriminatory policy to discontinue providing the printers’ service (complimentary printers and supplies), which were installed at the local Puerto Rico law school libraries. That policy, it seems, is only directed against Puerto Rican law schools. I am also informed that all efforts by our head librarian at the University of Puerto Rico Law School to have Thomson Reuters end that discriminatory policy have been rebuffed.

Since Thomson Reuters seems only to understand cost benefit analysis (in its own idiosyncratic way), let me complicate that analysis a bit. If Thomson Reuters does not immediately change its discriminatory policy to make it non discriminatory (for instance, a cap on sheets of papers and ink, applicable to all law schools everywhere on a per student basis), I will cease using Thomson Reuters texts in my courses, and will urge all colleagues at the four Puerto Rican law schools to do likewise. I will also bring the matter up with as many colleagues as I can in United States law schools.

I teach Constitutional Law, Federal Jurisdiction and Comparative Law. In Constitutional Law I have used Foundation Press casebooks for 28 years, usually Gunther´s (now Sullivan & Gunther), but some years I also used Cohen's. During those 28 years I also used some version of Nowak & Rotunda's hornbook as an additional text. My sections usually have between 60-80 students. In Federal Jurisdiction I have always used Wright's casebook, and many times I have also assigned Wright's hornbook as an additional text to the 30-40 students in that course. In Comparative Law, which I have taught for some seven years, I have used Schlesinger's casebook and Glendon's nutshell. I usually have some 10-15 students in that course. Also, I have taught that course four times in January at the University of Ottawa Law School, and will be teaching it again this January, Those courses usually have 15-20 students. I had already informed Ottawa that I would be using the new edition of Schlesinger (Mattei et al.) next January, but there is ample time to change that. And, as you well know, and Aspen and Lexis-Nexis representatives keep reminding me, there are many satisfactory susbtitutes for all of these texts.

I am sending a copy of this e-mail to Professors Kathleen Sullivan, John Oakley and Ugo Mattei, whose casebooks I would be forced to discontinue using, if you discriminatory policy remains in effect, and to Professors Owen Fiss and Carol Rose, of the editorial board of your University Casebook Series (Foundation Press). I will also forward it to as many stateside professors of Puerto Rican descent as I can identify. Professors Angel Oquendo (Connecticut), Pedro Malavet (Florida), Ediberto Román (Florida International) and Alberto Bernabe (John Marshall) immediately come to mind. All professors at Puerto Rico law schools will also receive a copy of this e-mail.

Since moral arguments have not been enough to make Thomson Reuters reconsider its discriminatory policy, I hope that math does the trick.

Professor of Law
University of Puerto Rico School of Law

The reason for the decision was apparently that per capita use of free dedicated printers and supplies is much higher at Puerto Rican law schools than at other law schools located within the United States. This probably means that Puerto Rican law students have fewer resources at their disposal, i.e., home and/or work printers that they can use instead of the dedicated LexisNexis and Westlaw printers, from which it can be inferred that the decision will hit them particularly hard. This decision is hard to reconcile with the recent announcement of Thomson's second-quarter earnings. "Despite difficult global economic conditions, Thomson Reuters achieved revenue growth and margin expansion as a result of its balanced portfolio of businesses, continuing progress on the Reuters integration and effective cost management." Given this optimistic report to shareholders, what compelling need can Thomson Reuters cite to justify cutting off a valuable service to one relatively small group of law students? If this can happen to the students in Puerto Rico, it could happen anywhere. All of our students rely on the free standalone printers for budget relief and also for convenience. I urge law librarians to email the Thomson Reuters executives responsible for this wrongheaded decision:,,,

Friday, August 21, 2009

When Settlements Remove Decisions from Lexis & Westlaw

Shannon Duffy, at reported on Aug. 19, that a settlement agreement in Klein v. Amtrak called for removing eight legally significant decisions from publication. Two trespassing teens were badly burned by electric catenary wires when they were horsing around on a parked train car. But the train was parked for quite a while and the owner of the train yard and the owner of the train car knew that there were frequent trespassers, so the situation was dangerous. They could have shut off the power to the catenary wire, or posted warning signs -- but didn't. A jury awarded large damages and huge punitives.

After years of litigation, the parties reached a settlement. Interestingly. the defense attorneys managed to get the trial judge to order all previous decisions related to the case "removed." Duffy says that Westlaw plans to honor the judge's decision to remove the eight cases. No response from Lexis by the time the article went to press. Duffy's excellent article focuses largely on the legal issue of the secrecy of sealing the decision and "erasing" the previous, related decision.

As a librarian, though, my attention was immediately on the discrepancy factors and archiving issues. Print volumes will continue to house the decisions. Will courts accept them as precedent or will they be considered "unpublished" if researchers locate them and try to use them in arguments in the future? Will there be some way that the printed cases are marked to show they have been retracted by the court? Or will it show up in Shepards and KeyCite that these cases no longer "exist?" What if Lexis decides not to take them out of its database? The judge's order has no binding effect on the company.

Have there been any decisions in the meantime that relied on these eight decisions as precedent? What effect will that have on those cases? How will KeyCite and Shepards code those cases, especially thinking about the Table of Authorities feature?

Isn't this kind of like New Speak in Brave New World? I am rather disturbed by the whole thing. Tip of the OOTJ hat to Grace Mills for alerting me to the issue!

Wednesday, August 19, 2009

i-AWFUL List: Internet Advocates' Watchlist for Ugly Laws

Click here for's press release dated August 18, 2009, detailing the internet advocacy organization's list of the ten worst internet laws . In part:

"The Internet is increasingly under attack as lawmakers seek to mandate technological behaviors, impose new taxes and otherwise restrict the free flow of information and commerce online," said Steve DelBianco, Executive Director of NetChoice, which maintains iAWFUL. "While we were pleased to see some measures fall off the iAWFUL list, thanks to the efforts of Internet advocates, new attacks on innovation and online freedom have arisen to take their place."

Launched in June, iAWFUL identifies America's 10 worst legislative and regulatory proposals targeted at the Internet. The iAWFUL Web site ( urges Internet users to join the fight to fix or fight against bills that threaten the future of online commerce and communication. The list is regularly updated to reflect the most immediate dangers, based on regulatory severity and likelihood of passage. (snip)

The full iAWFUL list, complete with bill descriptions is available at Twitter users can follow iAWFUL developments on the NetChoice feed (@NetChoice). Expanded information is also available on the NetChoice blog at The current iAWFUL list is:

1) Maine Predatory Marketing Law (New to iAWFUL)

2) Hotel Taxes on Online Travel Companies - (New to iAWFUL)

3) New Jersey Social Networking Bill - A 3757 (Formerly #1)

4) Digital Download Taxes in Colorado and Washington (New to iAWFUL)

5) North Carolina Digital Downloads Tax Bill - HB 558/S 487 (Formerly #10)

6) North Carolina Tickets Bill - SB 99 (Formerly #4)

7) Federal Bills on Organized Retail Crime (Formerly #6)

8) Massachusetts Online Advertising Bill - HB 313 (New to iAWFUL)

9) North Carolina Advertising Nexus Proposal (New to iAWFUL)

10) New York Discriminatory Tax on Online Resume Searches

Monday, August 17, 2009

Information Doesn't Always Want to Be Free

The Financial Times has been charging for online access since 2002. This made it an outlier in an environment in which most other papers (The Wall Street Journal being the major exception) were giving away online access to their content. Other media executives felt that charging for content was a prescription for financial disaster. However, the decision of The Financial Times has been "vindicated" as "other publishers are starting to see wisdom in the paper's ways," according to an article in today's New York Times. The reason that newspapers are looking for ways to generate revenue from their websites is the "deep slump" in advertising; there are "few signs that advertising is rebounding." Ad revenue and subscriptions to the print versions of newspapers have declined, and other ways must be found to pay for "[q]uality journalism."

Other papers, including all those owned by Rupert Murdoch's News Corporation, are starting to add "pay walls" to their websites. The Financial Times is also experimenting with other payment models, such as a "plan to accept micropayments for individual articles, as an alternative to a subscription." I was interested to read that "the newspaper restricted access last year to its content through databases like Factiva and LexisNexis, requiring users to buy special licenses to read archived articles." This restriction doesn't affect academic subscribers, fortunately; there are, however, over 600 corporate customers. The Financial Times has carved out a niche as a source of high-quality financial information for which certain individuals and firms are willing to pay premium rates. The article questions whether general-interest, non-niche publications could successfully charge for content. When The New York Times experimented with charging for content, they got only 227,000 paying customers (compare that figure to the approximately 1,000,000 customers of The Wall Street Journal), and abandoned the initiative in 2007. "Executives of The New York Times have said they are considering ways to get readers to pay for online access, though they have yet to disclose specific plans." Speaking selfishly, if newspapers do move in the direction of paid content, I hope they will carve out an exception for academics.

The End of Solitude

The Chronicle of Higher Education just re-ran the excellent essay from January, 2009, by William Deresiewicz, The End of Solitude. If you have a Chronicle subscription and password, you can read it in full at this link. I will attempt to summarize a bit of it here, but he makes complex arguments and ties into many writers and thinkers. It is a lovely essay and very worth reading in full.

Part of what I like about it, though, is the sense, that many of us have, that we are seeing a watershed in our culture. We feel that something basic is shifting in the way we think and relate to the world and to one another. This essay is an excellent attempt to capture that.

What does the contemporary self want? The camera has created a culture of celebrity; the computer is creating a culture of connectivity. As the two technologies converge ... the two cultures betray a common impulse. Celebrity and connectivity are both ways of becoming known. This is what the contemporary self wants. It wants to be recognized, wants to be connected: It wants to be visible. If not to the millions, on Survivor or Oprah, then to the hundreds, on Twitter or Facebook. This is the quality that validates us, this is how we become real to ourselves — by being seen by others. The great contemporary terror is anonymity. If Lionel Trilling was right, if the property that grounded the self, in Romanticism, was sincerity, and in modernism it was authenticity, then in postmodernism it is visibility.

So we live exclusively in relation to others, and what disappears from our lives is solitude. Technology is taking away our privacy and our concentration, but it is also taking away our ability to be alone. Though I shouldn't say taking away. We are doing this to ourselves; we are discarding these riches as fast as we can
The author asked several of his young students who admitted that they were unnerved by being alone. Several could not understand why anybody would want to be alone. Deresiewicz then surveys a number of cultures throughout history to elucidate the value that solitude has held for poets, for philosophers, mystics and saints. He notes that the Reformation "democratized" solitude and Romanticism "secularized" it.
...Calvinism created the modern self by focusing the soul inward, leaving it to encounter God, like a prophet of old, in "profound isolation." To ... Calvin, Marguerite de Navarre, and Milton as pioneering early-modern selves we can add Montaigne, Hamlet, and even Don Quixote. The last figure alerts us to reading's essential role in this transformation, the printing press serving an analogous function in the 16th and subsequent centuries to that of television and the Internet in our own. Reading, as Robinson puts it, "is an act of great inwardness and subjectivity." "The soul encountered itself in response to a text, first Genesis or Matthew and then Paradise Lost or Leaves of Grass." With Protestantism and printing, the quest for the divine voice became available to, even incumbent upon, everyone.

But it is with Romanticism that solitude achieved its greatest cultural salience, becoming both literal and literary. Protestant solitude is still only figurative. Rousseau and Wordsworth made it physical. The self was now encountered not in God but in Nature, and to encounter Nature one had to go to it. And go to it with a special sensibility: The poet displaced the saint as social seer and cultural model.
Now we have entered familiar territory for people of my generation. Reading, solitary walks in nature, musing in the woods and at the beach... and Thoreau as our culture hero. As cities became larger, in response, writers and our culture became more focused on the individual seeking into him- or herself for wisdom and self-validation. But our younger generation did not grow up in a city, but a suburb. They do not fear being subsumed in a mob. They fear isolation.

In a very interesting analysis, Deresiewicz states that neither boredom nor isolation were understood in the modern, negative sense before the 19th Century. He cites the Oxford English Dictionary in support of his argument that both sensations existed well before then, but were not experienced as bad things until a palliative was developed. The author offers his own experience growing in the 1960s with television teaching him that nothing entertaining him equalled boredom and that was a bad thing. He considers himself damaged by the experience and regrets it. He sees a parallel in the current experience of young people afraid of experiencing isolation, and avoiding it through constant interaction with others through cell phones, texting, and other electronic contact.
The alternative to boredom is what Whitman called idleness: a passive receptivity to the world.

So it is with the current generation's experience of being alone. That is precisely the recognition implicit in the idea of solitude, which is to loneliness what idleness is to boredom. Loneliness is not the absence of company, it is grief over that absence. The lost sheep is lonely; the shepherd is not lonely. But the Internet is as powerful a machine for the production of loneliness as television is for the manufacture of boredom. If six hours of television a day creates the aptitude for boredom, the inability to sit still, a hundred text messages a day creates the aptitude for loneliness, the inability to be by yourself. Some degree of boredom and loneliness is to be expected, especially among young people, given the way our human environment has been attenuated. But technology amplifies those tendencies. ... If boredom is the great emotion of the TV generation, loneliness is the great emotion of the Web generation. We lost the ability to be still, our capacity for idleness. They have lost the ability to be alone, their capacity for solitude.

And losing solitude, what have they lost? First, the propensity for introspection, that examination of the self that the Puritans, and the Romantics, and the modernists (and Socrates, for that matter) placed at the center of spiritual life — of wisdom, of conduct. Thoreau called it fishing "in the Walden Pond of [our] own natures," "bait[ing our] hooks with darkness." Lost, too, is the related propensity for sustained reading. The Internet brought text back into a televisual world, but it brought it back on terms dictated by that world — that is, by its remapping of our attention spans. Reading now means skipping and skimming; five minutes on the same Web page is considered an eternity. This is not reading as Marilynne Robinson described it: the encounter with a second self in the silence of mental solitude.

But we no longer believe in the solitary mind. If the Romantics had Hume and the modernists had Freud, the current psychological model — and this should come as no surprise — is that of the networked or social mind. ... One of the most striking things about the way young people relate to one another today is that they no longer seem to believe in the existence of Thoreau's "darkness."

... Today's young people seem to feel that they can make themselves fully known to one another. They seem to lack a sense of their own depths, and of the value of keeping them hidden.

If they didn't, they would understand that solitude enables us to secure the integrity of the self as well as to explore it.
This is a wonderful essay and I urge you to read it in full. I can do nothing here but bring you a few highlights. I was so struck by his analogy between television teaching us to learn boredom instead of idleness as an opportunity for meditation, and the Internet teaching us to fear isolation rather than using solitude as the same opportunity to meet ourselves. These are hard lessons to learn for the modern mind. It's OK to do nothing. And it's fine to be alone. Thinking nothing we sometimes make great discoveries.

Work Life Balance

I thought about that article from last week about the best law firms for mothers or other J.D. folks who want a work-life balance. If you read the whole article, or paid attention to the parts I excerpted and read between the lines, you may have noticed that part-time for lawyers is a 40 hour week. And that the lawyers who took time off when their babies were born were sort of under a bit of obligation at some firms to pay back their group by coming back big time when the babies were little (and wouldn't notice that mommy wasn't there). Then, they could be home when the kids were big enough to articulate complaints as they got older, or when Mom got worried in the teen years.

I am not sure that this really constitutes any kind of excellent work-parenting balance. I don't want to guilt-trip anybody who really prefers to work. Not every body is cut out to stay home with babies or toddlers. A lot of kids are better off when Mommy goes out to work and leaves them with a really good child care arrangement. If a parent is really unhappy about being the primary care-giver, it spills over on the kid, and that's not good. But IF you really wanted to be home, and this is the arrangement you got offered, this is not a very good deal.

I am watching from a distance as my sister-in-law, who is a doctor, works "part-time" so that she can juggle parenting a little better and take better care of her own health. Hah! I say, and wish she lived closer. "Part-time" doctoring, after she finishes filling out the paper work at the end of the day is also about 40 hours a week.

As I read the article about the best law firms, at first I was wondering if that pool of lawyers who leave practice to become clinical profs, legal writing faculty and librarians would dry up.... By the time I thought this over, I kind of doubt it.

Friday, August 14, 2009

Fascinating Justification of Costs of CALR

Read the analysis of online research cost recovery by guest blogger Mark Gediman at 3 Geeks and a Law Blog. He titles his post "Cost Recovery... Such a Deal." Gediman's analysis is nicely detailed. He relies on hourly billing at the full lawyer $300/hour rate at his firm for pulling a case, for instance to calculate that it saves money to download the case electronically compared to pulling it off the shelf and copying it, when you bill the client.

Gediman does have a point when he comments that his time calculation does not even take into account the costs of housing the print collection. This is probably the main reason that most firms have dropped so much print from their collections. The cost per square foot in their rent of office space simply became too large a calculation when they could replace the print volumes that took up many linear feet of shelf space with a PC on the existing desktops of the attorneys. But where I really part ways with Mr. Gediman is his comparison of online versus print research:

Case & Code research is better online.

First, let’s do this research online. Type in your search, starting broadly, and then narrow your search with focus or locate. It takes about 5 minutes to run the search and about 15-30 minutes to review the cases with your terms in context. In the interests of fairness, we’ll go with 30 minutes. Then print the cases you want and you’re done. Total time spent we’ll round up to 40 minutes to allow for printing. At our hypothetical $300/hr rate, the cost of the time spent comes to $200. Add in $40 for the search and you’ll have a total cost of $240. This analysis assumes that this is a normal search, not too esoteric, and that the search result is manageable, say about 20 cases. The analysis is essentially the same for searching codes.

Next, let’s look at the process for researching cases and codes in print. Picking up a digest or a code index, and looking for the correct subject can take anywhere from 10 minutes to an hour. This assumes that what we are looking for is easily translatable into the canned headings they use and not horrendously cross-referenced (i.e., “See post-trial” which then says “See Judgments”). This process can take anywhere from 10 minutes to an hour depending on the research. For the sake of discussion, we’ll stick with 10 minutes. Then we spend about an hour pulling and reading the cases that were listed in under the digest heading. Then we add in the 17 minutes it takes to copy the darn things. We now have a total time spent of 1 hour and 27 minutes and a cost of $435.

The cost to research cases and codes online is only 55% the cost of doing it in print. A significant difference I would say.

-Researching can be more cost effective online

The online process is relatively simple. Run the search in one or several treatises, focus or locate the sections discussing your specific terms, review the results and print the sections you want to keep. Say, about 40 minutes of your time. Couple that with the $40 search charge gives you a total cost of $240.

It is not quite as simple to do this with print. The process and time spent are similar to the case/code research referenced above. Assuming the book is on the shelf to begin with, start with the index or table of contents, look at the several sections/chapters that you find for the most relevant and then copy what you want. Total time is 1 hour 35 minutes and cost comes out to $435.

Again about a 55% difference in cost.
He will concede that if the user knows the treatise intimately, it works better in print. Gediman includes a link to an article he wrote on this phenomenon, posted at AALLnet. When you are talking about an experienced searcher, a librarian or a skilled paralegal, these arguments undoubtedly do make a certain amount of sense. I think he overstates the ease of searching statutes in particular -- my own experience (and I think that of many others as well) is that statutory and regulatory language is so non-intuitive that it's very difficult to search. Certainly, I need to leave Boolean terms and connectors behind, which I hate to admit! But even with a natural language search, I often have to browse through results and re-do the search, which is going to mess up his neat calculations.

I also wish the essay stated that his calculations are based on expert, experienced librarian and paralegal searchers, not associates. It makes me itchy all over thinking that my students may come across this little blog post and use it to argue that they should be able to stop learning the print and rely entirely on their self-evaluated digital skills. Eeeuwww! Can you say, Trainwreck?

Working Mother on the Best Firms for Work Life Balance

Click on the title for this post to read a nice article at Working Mother on how the tanked economy is helping firms see the wisdom of work-life balance. Now male attorneys are starting to take advantage of family leave -- it's not just a mommy track thing any more. And it might just become a long-term part of the culture inside many firms, persisting even after the economy improves. Reduced hours (and still get benefits!), flexible hours, contract work, are all strategies that allow parents to spend more time with children, or sandwich generations to manage their obligations, or just let people have more flexible lives.

The move isn’t purely altruistic: By offering more flexible work arrangements, the firm is able to contain costs in slow practice areas and still retain top talent. “We are seeking every alternative to layoffs,” explains Nancy Vollertsen, 59, who chairs the firm’s employment law practice. “We’re being as flexible as we can and we believe it will pay off for us when the business comes back.”

To minimize layoffs, some firms are asking attorneys to work reduced-hour schedules. For example, in some practice groups at New York-based Pillsbury Winthrop Shaw Pittman, attorneys have temporarily switched to 90 percent schedules to preserve jobs. And at Chicago-based Chapman and Cutler, partners are saving billable tasks for associates as way to save jobs as well. (Partners instead are focusing on strategic initiatives like research and client development, explains Melanie Gnazzo, 50, mother of Robert, 15 and Ryan, 11, and full-time equity partner in the firm’s structured finance group. “We view this downturn as temporary and are going into investment mode,” she says.)

While impressive, these three Best Law Firms remain in the considerable minority when it comes to acknowledging the use of such options. That’s because too many attorneys still fear the impact a voluntary downshift might have on their career, even temporarily, while too many firms worry that publicizing reduced-hour schedules will make their business appear troubled. American Bar Association president Tommy Wells, who has discussed the topic with firms nationally, says, however, that such views are a mistake. Reduced hours “is a better model” for a downturn than layoffs, he argues. “It spreads the pain more broadly and it preserves talent and the culture of the law firm.”

Reduced hours can also help preserve a firm’s coffers as well, something of particular interest during this recession: Researchers at the UC Hastings Project for Attorney Retention estimate, for example, that in a six-lawyer practice group, a firm could save roughly $30,000 by having each attorney reduce their hours 20 percent, versus laying one off. It’s a tidy sum, considering that PAR’s calculation doesn’t factor in disruptive costs related to a termination—including gaps in client service, loss of institutional knowledge, loss of training investment and damage to employee morale, or even the cost of re-hiring and training a new associate, which PAR has conservatively estimated at $300,000 to $500,000 per associate, when business improves.

Deborah Epstein Henry, founder and president of Flex-Time Lawyers, which consults on work-life and women’s issues, has taken the reduced-hour concept a step farther by advocating that firms “reset” their billable hour system by instituting multiple target-hour tracks, ranging from 1,200 to 2,000 hours annually and making commensurate adjustments in salary. (These different target billable-hour commitments could be adjusted during different periods of the attorneys’ careers based on business and personal needs.) It’s a move that Henry says mirrors the current billing patterns at firms, given the declining demand for legal services, adding that it could help save jobs and bring salaries in line with market conditions while avoiding a traditionally stigmatized “part time” role.
The article goes on to talk about the pressures the economy is putting on the "billable hour." Clients hate it, and it's anathema to those who want a more flexible work environment as well. And here is the link to their list of the best law firms for women lawyers. They also have in the same issue of the online magazine the best 100 companies for women and interviews with the "best of the best" on what they do that supports women in the workplace, a nice central link here.
A first generation of reduced-hours lawyers—many of them working moms—found themselves on a dead-end career track. Now progressive firms are offering them the chance to make equity partner and share in the decision-making and the profits. (snip)

Notorious for their grueling, non-family-friendly schedules, law firms have traditionally reserved partnership for full-time attorneys, while those opting to work reduced hours have found their careers stalled. Though Pamela’s roughly 40-hour week isn’t what most employees would consider “part-time,” in her profession—where performance is measured in billable hours—it’s common to log twice as many hours each week. Her reduced schedule means she can make her most important daily appointment—6:30 p.m. family dinner with sons Addison, 7, and Marshall, 6—without sacrificing her career. In fact, as an equity partner at Arnold & Porter, she not only has a voice in the firm’s management but also shares in its profits.

To be sure, this new breed of equity partner is still the exception, not the rule. Today women make up only 18 percent of equity and nonequity partners nationwide, and according to the National Association for Law Placement (NALP), only 12 percent of these partners work a reduced-hours schedule. (All told, only 3 percent of male and female partners nationwide work reduced hours, according to NALP.) But for a growing number of progressive firms, the part-time partnership option is a critical recruitment and retention tool. “Many young lawyers want to start their careers at a fast pace but know that someday they want a family,” says attorney and law recruiter Karen Welling, who owns a consulting firm in Boston. “A firm’s commitment to family is a huge selling point.”

The Best Law Firms for Women are leading the charge for change. Indeed, 100 percent of our winning firms allow reduced-hours lawyers to be elevated to partnership. They also report 22 percent of female nonequity partners working reduced hours and 12 percent of female equity partners working reduced hours. But more important, over the past five years, these firms have continued, albeit slowly, to promote reduced-hours lawyers to nonequity and equity partner at an average rate of two lawyers a year per firm. These firms also offer support—including mentoring, business-development training and backup child care—to help these lawyers succeed. “Our flexible-schedule and part-time partners are among our most respected and valued, both inside and outside the firm,” says Jerry H. Biederman, managing partner of Chicago-based Neal, Gerber & Eisenberg. “Firms that don’t give part-time attorneys the option to pursue the same career path as full-timers risk turning away or demoralizing some of their best talent.” (snip)

For lawyer moms, and women in general, the real excitement in the legal profession today is that firms are taking this next step to part-time partnership—albeit a baby step. “This is a second-generation issue,” says Cynthia Calvert, codirector of the Project for Attorney Retention, an initiative of the Center for WorkLife Law at University of California Hastings College of the Law. “The first generation was allowing attorneys to reduce their hours. Now it’s about allowing reduced-hours attorneys to advance to the point where partnership is an issue.”

This change is a ray of light in the legal profession, which has lagged sorely behind comparable professions even in offering the part-time option. Today, while only 5 percent of lawyers at major firms work part-time, federal statistics show that nearly 14 percent of employees across most white-collar jobs do. Fields such as medicine and accounting have seen their ranks revolutionized by flexible working arrangements; however, at many law firms, reduced-hours attorneys often find themselves stigmatized as less committed than their peers and excluded from the prestigious work that leads to partnership.

With attrition rates for women at major law firms now hovering at 76 percent by their fifth year of practice, some firms see flexible work arrangements backed by real career advancement possibilities as the key to retaining top talent. At the Minneapolis firm Dorsey & Whitney, for example, attrition among women dropped to 10.8 percent last year from 27 percent in 2005, thanks to flexible work arrangement programs that have resulted in four reduced-hours attorneys being elevated to equity partner since 2003.

Networking and mentoring tailored to reduced-hours lawyers are also becoming increasingly prevalent, especially at our winning firms—nearly 80 percent of which assign an employee to keep tabs on the reality of reduced-hours workloads. (snip)

Flex Works Both Ways
Women who have made partner while working reduced hours are spreading the word—and offering advice to the next generation. Emily Yinger, managing partner for Hogan & Hartson’s Northern Virginia office and mother of Meredith, 14, Matthew, 12, and Claire, 5, encourages fellow part-timers to strive for partnership. “It gives you the ability to develop a team,” says Emily, who also serves on the firm’s executive committee. “A team can backstop you, and you can be there to help them out. It’s a huge part of how I became successful.”

But Emily, 45, doesn’t sugarcoat what partnership requires: top-quality work, substantive expertise and revenue production. “I tell them, if you want a predictable job, this isn’t it. But we can give you a whole lot of flexibility now that technology is so good.’”

That flexibility is key for both part-time attorneys and their full-time colleagues. Take Diane Hertz, 43, a litigation partner with Bingham McCutchen’s New York office, who has twice shifted between part- and full-time schedules since her son, Braden, 6, was born. Diane recalls she returned from maternity leave to find coworkers buried in a big international litigation. “So I went back full-time for eight or nine months to help,” she says. “It was a great deal of travel, which was okay because he was just a little guy. But when he became aware of my going away and started to get upset, I knew it was time to step back.” Her willingness to ramp up for key cases branded her a team player at Bingham McCutchen; the firm, in return, has worked to support her schedule. “I appreciate their flexibility when I say, ‘I’m ready to go back to my other schedule,’” says Diane.

For most reduced-hours lawyers, being flexible means being in BlackBerry contact, keeping full-time child care for backup and being willing to postpone a day out of the office for urgent matters. “If you are too rigid about it,
it won’t work,” says Miranda Mandel, 51, general counsel for Neal, Gerber & Eisenberg and one of six reduced-hours equity partners at the firm. “You have to be available to your clients. It’s not necessarily dropping everything to do the work, because then you’re not part-time. But it is being responsive in a way that tells your client or colleague that you know something needs to be done.”

Thursday, August 13, 2009

Karl Rove and The Attorney General Firings in the W. Administration

With all the other stuff going on in the news, people may have lost track of the release of the transcripts of testimony and e-mails that showed that Karl Rove was very much behind the political firing of Attorneys General during the George W. Bush administration under Alberto Gonzales as Attorney General. Several papers covered it but the Washington Post probably is the best source as a sort of "home town" paper. Here are several stories, all from Aug. 12, 2009:

Testimony Puts Rove at Center of Firings, by Stephen Ohlemacher:

Transcripts of closed-door congressional testimony indicate that Rove played a central role in the ouster of David Iglesias, who was one of nine federal prosecutors fired in a series of politically tinged dismissals in 2006.

Harriet Miers, then White House counsel, said in testimony June 15 to House Judiciary Committee investigators that Rove was "very agitated" over Iglesias "and wanted something done about it."

The committee released more than 5,400 pages of White House and Republican National Committee e-mails, along with transcripts of closed-door testimony by Miers and Rove. Committee Chairman John Conyers, D-Mich., said the documents reveal that White House political officials were deeply involved in the firing of Iglesias and the other U.S. attorneys.

The documents show that staffers in Rove's office were actively seeking to have Iglesias removed after Republican figures in New Mexico complained that he was not pursuing voter fraud cases they wanted. In 2005, Rove aide Scott Jennings sent an e-mail to another Rove aide saying, "I would really like to move forward with getting rid of NM US ATTY."
Former Attorney General Makes the Mistake of Talking
by columnist Al Kamen, catching up with Alberto Gonzales, who seems to be writing a book!
Analysis: In Attorney Probe, One Burning Question, by Matt Apuzzo, an A.P. writer who has some pretty trenchant observations:
In keeping the controversy alive, Democrats have muddied the discussion: Did political adviser Karl Rove fire a prosecutor so his friend could get the job? Did the White House cut a deal with a senator and agree to fire a prosecutor in exchange for putting a judge on the bench? Did political operatives second-guess decisions about what cases prosecutors were filing?

Those are the questions House Judiciary Committee Democrats focused on this week after releasing thousands of pages of e-mails and transcripts of their interviews with Rove and former White House counsel Harriet Miers.

But politics in the Justice Department is nothing new. The real question is whether the Bush administration took it a step further and illegally used prosecutors to go after political enemies.

The Justice Department has a unique pedigree. It is a governmental descendent of the mythological Lady Justice, who carried a sword to fight evil and blindly balanced fairness. But it also has political DNA, inherited from a long line of presidents who used the department to champion civil rights, break up companies and fight communists and terrorists as the White House saw fit.There is built-in tension here before the president picks any of the nation's 93 U.S. attorneys. Job seekers in any administration can expect some variation of the questions, "What have you done to help elect the president?" and "Do you have anything in your past that could embarrass the president?"

On paper, a U.S. attorney has wide authority as the senior federal law enforcement official in his district. In reality, he gets his priorities from the attorney general and the White House. If the administration's priorities are terrorists, guns and gangs, the new U.S. attorney may shut down investigations into environmental crimes, corruption or computer fraud.

At its heart, that's a political decision. If the president promises to stop violent crime but a U.S. attorney is instead getting tough on polluters, the White House is going to notice.

In the run-up to the 2006 firing of New Mexico U.S. Attorney David Iglesias, the head of the state's Republican Party e-mailed the White House, complaining that Iglesias was soft on voter fraud. He asked that Iglesias be replaced so the state could "make some real progress in cleaning up a state notorious for crooked elections."

The Bush administration took the complaint to heart. In a June 2005 e-mail, White House adviser Scott Jennings said the New Mexico congressional delegation was also frustrated over the lack of voter fraud cases. He urged that Iglesias be fired.

"Iglesias has done nothing. We are getting killed out there," Jennings wrote to Rove's deputy.

Comments like this are what the controversy is really about. The firing only matters if it offers insight into whether the White House wanted Iglesias to take out its political opponents. Federal prosecutor Nora Dannehy is investigating that question, and House Judiciary Committee Chairman John Conyers, D-Mich., says he gave her all the documents the panel collected.

The relationship between U.S. attorneys and Washington is not a simple matter.
He points out that the matter is not black and white and that both the Republicans and the Democrats are being disingenuous and hiding the ball in this discussion. Both the President and Congress routinely ask offices to investigate in their own interests. Read the whole article.

And for real political junkies, here is the link to the actual documents posted by the House Judiciary Committee.