ALDA Attacks Tenure for Clinicians

The ALDA deans' comments appear to deal with tenure in an even-handed way, while very cleverly setting up their two whipping-boys (clnicians and library directors) to be de-tenured at the first opportunity leaving everybody else in their tenured situation. Their comments read, in part:

Except in extraordinary circumstances, a dean shall also hold Appointment as a member of the faculty with tenure.

We see no reason whatsoever why the conditions of employment of the dean of a law school should be prescribed as an accreditation standard. The dean is the executive officer of the law school; in a university setting the dean will typically be accountable to the president or chancellor, while at a free-standing school he or she will report to the governing board. In either case, the dean is expected to diligently carry out the policies and manage the affairs of the law school. A distinguished legal scholar certainly should have academic rank consonant with his other learning. But an outstanding dean need not be a legal scholar, just as an exceptional university president need not demonstrate great scholarship. The choice of a dean for the skills and talents a particular law school needs at a particular moment in time should not be impeded by having to fit the dean into an academic tenure system. Nor should his or her accountability be diminished by overlaying the artificial cloak of tenure.

This paragraph is so disingenuous that butter wouldn't melt in their mouths! Of course the dean should have whatever acadmeic rank would be consonant with his other learning. And of course the schools (we will see in the next block quote) can offer whatever incentives will keep their faculties happy to stay long-term. Hmmmmm.

Standard 405(a) requires that "A law school shall establish and maintain conditions adequate to attract and retain a competent faculty." With respect to faculty of any type, we believe that there is no reason to mandate tenure or other terms and conditions of employment. Institutions should be held accountable for the quality of their programs, not the means by which they achieve that quality. A good case can be made for some standards as instruments to guaranteeing quality, if only to take pressure off various measurements of quality. If a Standard required that only a fraction of the faculty possess law degrees, for example, one could make a good case for a likely impact on the quality of education. But tenure is unlikely to qualify on that count. Certainly, many institutions will decide on their own to provide tenure or other favorable terms and conditions of employment to their faculty, whether they be traditional faculty, clinical faculty, or instructors in legal writing. That is a decision that should not be mandated by the accrediting agency, but should be left to the judgment of the institution as the best way to provide quality legal education. Generally, we believe that Standard 405 should simply require that a law school engage a faculty that provides an effective legal education and that protects academic freedom.

Requiring tenure or tenure-like employment for clinical faculty is similarly faulty. Standard 405(c) provides in pertinent part:
A law school shall afford to full-time clinical faculty members a form of security of position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to those provided other full-time faculty members. [1] * * * [T]his standard does not preclude a limited number of fixed, short-term appointments in a clinical program predominantly staffed by full-time faculty members, or in an experimental program of limited duration.

They just really HATE to have to give clinical faculty long-term appointments or tenure. I don't get it. Why is it so different from substantive law faculty? And it can go on and on from their comments in this vein. My friends in Clinic tell me that have been tracking this group for years, and this is only the latest attack.

This is like having just finished reading Wicked and just rethinking the Wizard of Oz for me! The ALDA deans go on, attacking clinicians. They want to be able to toss them out the door if they decide to change the clinic. Do they think they ought to be able to throw out the specialty law teacher if they change the substantive law, too? Quite probably. Watch out, folks! Here is some more vintage ALDA:

The irony is that in the same breath the ABA will commend an institution for the excellence of its clinical program and yet cite it as out of compliance with Standard 405(c) - and therefore risk serious sanction - entirely because clinical faculty are engaged under terms of employment which do not necessarily result in the granting of terms euphemistically defined as "reasonably similar to tenure." Indeed, it is entirely possible that the ABA's constraints on the terms and conditions of clinical appointments will result in fewer such appointments, as schools hesitate to create new programs and positions that lack necessary flexibility.

The ABA has professed that the purpose of Standard 405(c) is "to ensure that law schools can attract and retain quality full-time clinical faculty and thereby strengthen the clinical component of the law school curriculum." [2] There is, however, no evidence that law schools are having difficulty attracting or retaining highly qualified clinical instructors, or that the restrictions imposed by Standard 405(c) would improve the quality of clinics. To the contrary, the quality of clinics requires law schools to have maximum flexibility in developing the employment strategies most appropriate to their circumstances.

While innovation is a necessary attribute of all parts of any successful program of legal education, clinical programs are particularly sensitive to changing community needs and priorities, as well as serving as targets of opportunity in responding to emerging areas of practice. Maintaining relevance is a critical element of a successful clinical program, and flexibility in developing and modifying these programs is essential to their success both as pedagogical tools and as important community legal services. Inasmuch as this necessarily demands flexibility in the employment of clinical faculty, it is necessary to create terms and conditions of employment that are specifically designed to meet particular circumstances to secure the services of the most qualified individuals who are able to provide the best clinical experience. Without a reasonable degree of flexibility, law schools, including those most focused on quality, are likely to experiment more cautiously, or not at all, in developing new clinical opportunities, in order to avoid locking themselves into commitments that are not in the long-term interests of the school
or of legal education in general. Standard 405(c) is an unnecessary intrusion into the economic relationship amongst the law schools and those who run their clinical programs. [3]

What are the ALDA deans on about?

So, what are the ALDA deans commenting about? The Secretary of Education is asking for comments about accrediting agencies. In law, that means the American Bar Association. For many, many years, the ABA has accredited law schools. That is, they decide which ones are "kosher" enough to have their students take bar exams.

The American Bar Association has a governing board that adopts and modifies standards for law schools. They send out inspection teams to make sure that each law school that is already accredited still meets the standards. The teams do an in-depth inspection. Until very recently, this happened every seven years. Now it is going to happen on a less-intensive level every ten years. Still, it's pretty intense.

Law schools start getting ready for the inspection at least one year in advance. They begin a process known as the self-study. They appoint a committee. The committee members each are responsible for a portion of the report that must be written. The report is structured according to the division of the ABA standards. So there is a chapter on law school administration, a chapter on technology, and a chapter on library resources, a chapter on faculty, a chapter on the building, a chapter on finances, and so on. You can see it is a VERY BIG DEAL.

When it is time, the ABA has to field a group of volunteers from other schools, seven in all, to visit the school to be inspected. The school must host them at its expense and pay for their flights and expenses. Generally, they sort of wine and dine the inspectors, to roll out the red carpet. They make all sorts of documents available in multiple copies, extra computers and printers and connections handy for the inspectors.

And then, the American Association of Law Schools (AALS), has a separate set of standards, a bit more onerous than the ABA standards. Membership in the AALS is voluntary and is an honor for the school. If the school is also a member of AALS (most of them are), one of the ABA inspectors is also designated as the AALS inspector, and will check on whether the school meets those standards.

The standards of the ABA and the AALS, depending on whom you ask, are designed to ensure that law students are getting a fair education for their tuition dollar, and will be well-prepared for the practice of law. Or if you ask some disgruntled folks, the ABA and AALS standards are designed to ensure that law professors get the highest rate of pay for the lowest amount of effort possible. That outlook led to two consent decrees between the ABA and the Justice Department. At one point, the ABA actually collected information from all participating law schools as to the pay rates of the law professors. That information was shared and, according to the law suit brought alleging anti-trust violations, used to pressure the universities and law schools to bring their own professors' rate of pay up to par with the published rates. As part of the consent decree, the ABA no longer collects any information on pay rates.

Now, the ALDA deans, about whom we actually have very little clear information, are commenting to the Department of Education, in response to this Federal Register request on February 6, 2006, that nobody else noticed. They are saying that they think the ABA is still not doing a fair or good job accrediting law schools, and that law schools should be free entirely of standards. They argue that all the standards interfere with the dean's free hand in running each law school as an independent entity and makes them like little clones of each other.

In the first place, I would like to know how the ALDA deans knew about this call for comments when nobody else did. It is a very un-alerting notice; I would never have found it but for the ALDA deans' comments, then the National Law Journal statement that it was comments in response... I am a suspicious, unpleasant minded git.

In the second place, I do not think they make a good case at all that the ABA is not looking out for the students' or the public's interest with their standards or accrediting efforts. In fact, the first time these deans cropped up, it was complaining about being required to meet affirmative action standards. So hearing them complain about the ABA forcing them to meet standards and that it interferes with the way they want to run their schools actually makes me pretty relieved. If the ABA standards are interfering with them discriminating against students, faculty or staff, gee, I think those standards are doing a darned good job of protecting the interests of the students and the public!

They also argue against any tenure (although they are quite tricksy with their argument -- they make it sound as though they are being even-handed and include deans in the same sweeping statement as faculty, clinicians and law librarians. But you have to read this statement very closely. More about that tomorrow!

This nice image of Spy vs. Spy from the old Mad Magazine is from www.dccomics.com/

Timing

I recently received my new Westlaw bill and then received my new Lexis bill shortly afterward. The Westlaw bill came with an offer to come visit me and explain it. I really wasn't able to take them up on the offer, but it certainly set me up for bad news. The Lexis bill just showed up.

Both bills were dramatically higher than in previous years. We had thought we were preparing for jumps in future prices on these lines, adding more than we expected in the coming year. But both Westlaw and Lexis caught us by surprise.

I complained not too long ago about legal publishers and vendors killing the goose that killed the golden egg (see that entry here. When a publisher or vendor raises the price of a product dramatically, they may look to their home office as though they are more profitable, but they are only hogging a larger proportion of the vendor/publisher's share of the library's money. Since the monopolization of legal publishing, so much of the product we buy is concentrated in the hands of West/Thomson and Lexis/Shepards/and their related brands that almost any price increase only hurts my ability to purchase the products of sister brands. It all goes to the same ultimate bottom line. There is a finite amount that the university and law school is willing to give to the law library.

You are not getting more money out of the stone out there; you are killing the goose. There once was a symbiotic relationship between legal publishers and vendors and the related libraries. We relied upon each other. I am afraid that the newer managers are unaware of that mutually beneficial relationship. I am not discussing anything unethical or even as tacky as free lunches or donations to AALL. I mean that law libraries always showcased materials to students and pracitioners. We bought things that most folks could not afford, or thought they couldn't until they used them for a while. If they came in often enough and found the item invaluable, bingo! The publisher made a sale. If the student used Westlaw and Lexis as a student, you guys have certainly been successful at making them reliant on those resources to the point where they have become absolute must-haves in the law firms of today. Who could have dreamed of such a sea change in law practice in the couse of a mere 20 years?!

It never would have happened without librarians and libraries. There is a mutuality here. Do not kill us off, and don't cut off your own noses to spite your sister departments, either. It will not benefit your home corporations, law or libraries!

Timing is Everything (by Jacob Stein, Washington Lawyer, June, 2001)

The link above is to a masterly essay at the DC Bar Association Washington Lawyer website by Jacob Stein. He opens with a lengthy quote from Ecclesiastes:

Washington Lawyer > June 2001



Legal Spectator
Timing Is Everything
By Jacob A. Stein


To every thing there is a season, and a time to every purpose under the heaven: /
A time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted; /
A time to kill, and a time to heal; a time to break down, and a time to build up; / A time to weep, and a time to laugh; a time to mourn, and a time to dance; /
A time to cast away stones, and a time to gather stones together; a time to embrace, and a time to refrain from embracing; /
A time to get, and a time to lose; a time to keep, and a time to cast away; /
A time to rend, and a time to sew; a time to keep silence, and a time to speak; /
A time to love, and a time to hate; a time of war, and a time of peace.
-Ecclesiastes 3:1-8

There is a time to sue and there is a time to counterclaim. There is a time to add a defendant and there is a time to drop a defendant. There is a time to admit and there is a time to deny. There is a time to depose and there is a time to use interrogatories. There is a time to speak and there is a time to remain silent. There is a time to send a bill and there is a time to reduce a bill. There is a time to be bold and there is a time to be cautious. There is a time to cross-examine and there is a time to waive.

(snip)

There is a time to be prudent and there is a time to be reckless. There is a time to ask for a raise and there is a time not to ask for a raise. There is a time to sign a bank loan and there is a time to cut overhead. There is a time to move to recuse the judge and there is a time to flatter the judge. There is a time to go with a big law firm in order to pay the college loans and there is a time to go straight.

There are people who are out of time with the times. There are those who are prematurely wise and who only come into their own time as they grow older. And there are those who are in time when young and out of their time as they grow older. The right time for the right person at the right time.
(snip)
Timing may be everything in the practice of law. As a preliminary matter, in deciding what to do for the client, one must consider whether it is the time for action or whether it is the time to do nothing. To let things be. Let sleeping dogs lie. This brings in the Precautionary Principle. Obedience to the principle requires that we do nothing unless the proponent of doing something can demonstrate by clear and convincing evidence that doing something will not make things worse.

The Precautionary Principle carries with it the temptation to procrastinate. Lawyers are addicted to procrastination. How do you determine whether you are using good judgment in leaving things as they are rather than putting off any decision? If the factors are considered and a decision is made, then you may not be procrastinating. But in my own case I am never sure.

Timing is of critical importance where the sentencing guidelines connect with the future of your client. The guidelines give the prosecutor the option to reduce the sentence by his filing a sentencing statement with the court declaring that the defendant has cooperated. Therefore a defense lawyer must not waste time in telling his client that there is no time to waste in offering cooperation to the prosecutor. If the client delays, he will find that the prosecutor has all the cooperation he needs from those who got there just in time.

A judge recently made this observation: "Counsel's ability to persuade the judge or jury is now far less important than his ability to persuade the prosecutor that the defendant should be allowed to cooperate with the government. . . ." It is a race to the swift.

In a negotiation one must determine when it is the time to hold and when it is the time to fold. There are those who are content to leave something on the table in order to get, with certainty, the benefits of a reasonable offer. Then there are those who are not content to fold unless the adversary's blood is on the floor. Here again the Precautionary Principle comes into play. Will the rejection of the "best and last offer" end the negotiation and lead to a disastrous trial that exposes weaknesses in the case that have as yet not come to light? When to hold and when to fold.

There is also a time to open and a time to close. And this is the time to close. I opened with Ecclesiastes. I close with Shakespeare.

There is a tide in the affairs of men
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
-Julius Caesar 4.3.249-52

Jacob A. Stein may be reached by e-mail at jstein@steinmitchell.com.

I have snipped his masterful essay, for which I am sorry. But I recommend you visit him directly at the link above, and look for more recent essays, since this is old. It just deals so perfectly with my topic: Timing.

Timing of these bills, timing of the offer to meet, timing of the jumps in pricing, and scattering of the price jumps. These vendors and publishers are attempting to cover their tracks with the library community. I do not like being manipulated. I do not trust companies that try to relate to me or my organization as a prey rather than a customer to be treated with.

I object.

Attack of the Law Deans: How Legal Education was Subverted

Well, your cranky librarian has had it up to her eyebrows with law school politics! The ALDA crackpots are passing themselves off to the Secretary of Education and the National Law Journal here as actual representatives of 110 law schools. Phooey on them! They just want to get out from under the Standards where they have somebody telling them they have to actually let clinicians lead a life at their law schools and treat the librarians and the director at least as if they were faculty. Not that ALDA and the deans have been delivering the legal education goods in any way or means.

Take your basic MACCRATE REPORT excerpts here, created in 1992, by a joint committee of legal practitioners and educators to guide law schools. It specifically recommends a lot more skills-based education. For instance, what clinicians teach. For instance, legal research and legal writing. The sorts of things that have become a pink collar ghetto in too many law schools, and is the real thrust of the attack by the ALDA group. AHA! And it also specifically recommends multicultural law schools. This is another thing that the ALDA rump group bucks against.

No wonder the lawyers and judges are wondering what has happened to their MacCrate report. The guys in real power in the law schools have been busy burying it since it came out 14 years ago. They are trying to finish off the job right now, by burying the ABA's standards powers.

If you care about the quality of law as taught and practiced in the country -- and you should! -- you should care about the MacCrate Report and what the ALDA group is trying to do with their comments to the Secretary of Education. For years, lawyers' reputations have gone down the tubes. When was the last time you saw a lawyer depicted with dignity as a good guy? To Kill a Mockingbird, maybe or one of the charming Spencer Tracy/Katherine Hepburn romances like Adam's Rib? They can be good guys!

Law is what separates the United States and other free countries from chaotic places where it is dangerous to speak your opinion, criticize the government or open a business that competes with the mayor's son-in-law. It is a mighty sword and a mighty shield. Even in unworthy hands, it accomplishes much. In the hands of a well-trained person of good intentions, how good a thing it is!

We need excellent law schools that REALLY train lawyers in the skills they need in the real world of today. When was the last time you had a professor teach you how to use computers and software to manage documents? Have you ever had a professor talk to you about privacy concerns with e-mail or computerized searching or metadata tags? These things ought to be taught in law school, for heavens sake! Along with good skills in analysis, research, writing, and oral advocacy or deal-making.

Surprise! Here is the notice in the Federal Register that called for comments -- I didn't know it was there -- did you? And I work in a law library. It's a pretty short notice time, too. I'm going ahead and sending in my written comment, despite the fact that it's past time -- you should, too! It's a pretty minor piece of civil disobedience and the poor person who gets the e-mail is the schmoe who suffers, but she can always hit delete! Here is the citation and the announcement:

[Federal Register: February 6, 2006 (Volume 71, Number 24)]
[Notices]
[Page 6059-6061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe06-36]

-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION


Recognition of Accrediting Agencies, State Agencies for the
Approval of Public Postsecondary Vocational Education, and State
Agencies for the Approval of Nurse Education

AGENCY: National Advisory Committee on Institutional Quality and
Integrity, Department of Education (The Advisory Committee).

What Is the Purpose of This Notice?

The purpose of this notice is to invite written comments on
accrediting agencies and State approval agencies whose applications to
the Secretary for renewed recognition, requests for an expansion of the
scope of recognition, or reports will be reviewed at the Advisory
Committee meeting to be held on June 5-7, 2006, at the Hilton Arlington
Hotel, 950 North Stafford Street, Arlington, Virginia.

Where Should I Submit My Comments?

Please submit your written comments by mail, fax, or e-mail no
later than March 8, 2006 to Ms. Robin Greathouse, Accreditation and
State Liaison. You may contact her at the U.S. Department of Education,
Room 7105, MS 8509, 1990 K Street, NW., Washington, DC 20006,
telephone: (202) 219-7011, fax: (202) 219-7005, or e-mail:
Robin.Greathouse@ed.gov. Individuals who use a telecommunications

device for the deaf (TDD) may call the Federal Information Relay
Service at 1-800-877-8339.

[[Page 6060]]

What Is the Authority for the Advisory Committee?

The National Advisory Committee on Institutional Quality and
Integrity is established under Section 114 of the Higher Education Act
(HEA), as amended, 20 U.S.C. 011c. One of the purposes of the Advisory
Committee is to advise the Secretary of Education on the recognition of
accrediting agencies and State approval agencies.

Will This Be My Only Opportunity To Submit Written Comments? Yes, this notice announces the only opportunity you will have to
submit written comments. However, a subsequent Federal Register notice
will announce the meeting and invite individuals and/or groups to
submit requests to make oral presentations before the Advisory
Committee on the agencies that the Committee will review. That notice,
however, does not offer a second opportunity to submit written
comments.

What Happens to the Comments That I Submit?

We will review your comments, in response to this notice, as part
of our evaluation of the agencies' compliance with Section 496 of the
Higher Education Act of 1965, as amended, and the Secretary's Criteria
for Recognition of Accrediting Agencies and State Approval Agencies.
The Criteria are regulations found in 34 CFR part 602 (for accrediting
agencies) and in 34 CFR part 603 (for State approval agencies) and are
found at the following site: http://www.ed.gov/admins/finaid/accred/index.html.
We will also include your comments with the staff analyses

we present to the Advisory Committee at its June 2006 meeting.
Therefore, in order for us to give full consideration to your comments,
it is important that we receive them by March 8, 2006.

So there, ALDA! That's where legal education ought to be heading, bei mir. This image of Zeus, getting ready to zap you with a lightning bolt is courtesy of
http://www.islandnet.com/~see/weather/graphics/wxdrphotos/zeus.jpg
The site does not credit the photograph of the greek redware vase. But they do include interesting note on Zeus:

Greek mythology tells us that Zeus received his thunderbolt weapons from the Cyclopes, gigantic one-eyed monsters born to Gaea and Uranus, as were Zeus and the other Titans. When Cronus came to power among the Titans, he imprisoned the Cyclopes in Tartarus. When Zeus freed them from their imprisonment, they became his allies against the Titans for supreme power. As a reward for securing their release, the Cyclopes gave Zeus the mighty weapons of lighting and thunder which he used to assume celestial sovereignty among the Titans. Afterward, the Cyclopes continued serving as his smiths, forging his thunderbolts on Mount Olympus. Three -- Arges (thunderbolt), Steropes (lightning), and Brontes (thunder) -- were storm gods.

Zeus had control over all the heavens, and thus governed the sudden changes of weather and power of storms. Zeus the Thunderbolt wielded his power from Mount Olympus; Zeus the Descender came down to earth in each flash from heaven, consecrating spots on the ground with his fiery touch. Although his thunderbolt would kill, they permitted the gods to confer immortality on the victim.

What is this thing called cool?

Cool is defined in "Da Bomb's Mini-dicitionary of Slang" here:

cool: (adjective) 1. Calm. 2. Fine, acceptable. 3. Neat; exciting; interesting; very good.

It goes beyond these things to define the desirable state of being considered part of an attractively insider group. The most cool define their own group, rather than following some other party's dictates of fashion.

Slang can often be a large part designating coolness, and subtly (or not so subtly) designating those outside the inner group. See the online page of current college slang here. This is also the site with Da Bomb's Mini-dictionary. One of the aspects of coolness they note in slang is a playfulness, a sense of fun with the language. The slang not only defines the inner group and excludes non-belongers, it also becomes a kind of performance art. It exhibits how current the slanger is. But you would never speak slang to a dean or parent the way you would to a close friend. Slang makes reference to closely shared experiences, and helps reinforce your friendships, while being fun, humorous, and even rising to the level of art.

Cool has long been identified with rebellion against parents and the powers that be. Jazz, rock and roll, blue jeans, even long ago, rag-time were all considered somehow linked with sex, drugs and undermining authority. And that is cool, somehow. From the 1920's decadence, cool took a definite break during the Great Depression. Then it broke out again with the development of Swing Jazz and Dance during the 1940's. The Beat Generation was cool with coffee, cigarettes and poetry. And Elvis Presley wiggling his pelvis in television -- mass hysteria and a new definition of cool. Then rock and roll in the '60's - blue jeans and Woodstock: another kind of cool.

Here is an interesting book that looks at how corporate advertising has hijacked the popular images of cool for selling products. The Conquest of Cool Business Culture, Counterculture, and the Rise of Hip Consumerism by Thomas Frank. See a generous excerpt here.

rebel youth culture remains the cultural mode of the corporate moment, used to promote not only specific products but the general idea of life in the cyber-revolution. Commercial fantasies of rebellion, liberation, and outright "revolution" against the stultifying demands of mass society are commonplace almost to the point of invisibility in advertising, movies, and television programming. For some, Ken Kesey's parti-colored bus may be a hideous reminder of national unraveling, but for Coca-Cola it seemed a perfect promotional instrument for its "Fruitopia" line, and the company has proceeded to send replicas of the bus around the country to generate interest in the counterculturally themed beverage. Nike shoes are sold to the accompaniment of words delivered by William S. Burroughs and songs by The Beatles, Iggy Pop, and Gil Scott Heron ("the revolution will not be televised"); peace symbols decorate a line of cigarettes manufactured by R. J. Reynolds and the walls and windows of Starbucks coffee shops nationwide; the products of Apple, IBM, and Microsoft are touted as devices of liberation; and advertising across the product category sprectrum calls upon consumers to break rules and find themselves.

Frank's excerpt includes some thought-provoking images of advertisements that use "cool" to sell products such as car models. Frank's actual premise is that right from the beginning, corporations were following, co-opting and using the counter-culture. He produces many examples to show that the advertisers and corporate world did not wait to absorb and re-fashion cool for their own purposes.

One more book examination of Cool, The Laws of Cool: Knowledge Work and the Culture of Information, by Alan Liu, reviewed here.
Here is an excerpt from Susan Shreiber's interesting review of the book:

... one of Liu's final chapters entitled "Historicizing Cool: Humanities in the Information Age," in which he ponders the role of education as a parallel anti-universe of cool. Liu argues that anti-learning, or learning that does not happen within the education system, is a turning away from "an education system it believes represents dominant knowledge culture toward a popular culture whose corporate and media conglomerates, ironically, are dominant knowledge culture." (p. 305) Although Liu writes that the cool themselves realize the irony of their own positions, he also demonstrates how humanities education has failed to demonstrate that cool itself is a historical condition and lacks understanding of how cool is of and not outside history. This recognition would go a long way in countering the routine charge by postindustrial business that humanities education is obsolete, inefficient, and irrelevant. Indeed, in reading, or more specifically, in re-reading, The Laws of Cool, one realizes that countering this charge is the central premise of the text.

Shreiber, p. 112.

The picture decorating this essay is of U-2 Irish musician Bono. He and Bobby Shriver, Chairman of DATA (Debt, AIDS, Trade Africa), created RED to engage the private sector in the fight against AIDS in Africa. They included corporate partners such as American Express, Converse, Gap and Giorgio Armani. On January 26, 2006, at the World Economic Forum in Davos, Switzerland, Bono and Bobby Shriver announced Product RED, an economic initiative designed to deliver a sustainable flow of private sector money to the Global Fund to Fight AIDS, Tuberculosis and Malaria. It is the first time that the world’s leading companies have made a commitment to channel a portion of profits from sales of specially–designed products to the Global Fund to support AIDS programmes in Africa with a focus on women and children.

Now, that's defining your own standard of cool.

Legal Classics Gone Wild!

One of the advantages of the big marketing budgets that Westlaw and LexisNexis have is their ability to offer an abundance of useful training materials, along with the free t-shirts, travel mugs, and other goodies. This makes it hard for other vendors to make it on the typical law student's radar.

Hein Online is making an effort to offer training without the free gifts. They have just released their first two instructional videos, on the Federal Register and Legal Classics libraries. These are simple Flash animations, with no interactivity, but they are short and to the point.

Should you take cookies from strangers?

For many readers here, this terrific web page from the National Cyber Alert System will not be news. It is all about how cookies work, and what you need to understand in order to be safe browsing the web. But it's always a good idea to brush up and make sure you grok this stuff. Briefly, this handy page, by Mindi McDowell of Carnegie Mellon University, tells you that cool little javascript programs that create moving splash pages and drop-down menus can include spyware and malicious code that can invade your computer system when you load the program to look. Then she goes on to explain cookies of various types and how they work. Cookies let you do great stuff, like keep track of what you are ordering in your shopping cart, or personalize pages, or maintain preferences. They can last just for one session, or can persist. The information here is very helpful, and you should read over it just to be sure you are practicing safe browsing.

But even if you feel quite certain you are up to speed on cookies, they go beyond this basic cookies page here. You can sign up for an RSS feed to keep up with the latest in cyber-security tips for the non-technical user. This is a great site, and I highly recommend it.

Just as your parents taught you -- think twice before you take cookies from strangers! The cookie decoration is from a K - 12 web page on web safety with the same motto: Don't take cookies from strangers! They go on to say:

Don't leave a trail of crumbs for someone else to follow you! Set your browser to just say "No!" to cookies.

From http://www.media-awareness.ca/ at the Safety Highway, Media Awareness for Teachers.
That's rather more extreme than practical. For instance, Lexis and Westlaw require cookies to work. But do look at your security settings on your browser, and periodically clean out cookies. Be sure you have good anti-virus software and keep it current. Be sure you have all the patches for your operating system, and keep them current -- especially if you are using Windows!

Use spyware detection software -- there is decent stuff available as shareware or freeware (try "Spybot Search and Destroy" here and "Ad Aware" from LavaSoft here). PC Magazine has a good webpage on how to remove spyware and malware here, but it is pretty technical. Beware! Some programs that advertise themselves as spyware- or malware-removers actually install some of the worst offenders. Be careful what you use on your computer! This link can be an excellent resource for information about spyware and hijacker-ware. It has an RSS feed, so it can be an convenient way to keep current. It has chat rooms and lots of info. And lastly, I think this is a good site, too.

Be careful who or what you invite in. And be careful where you leave your information, including your e-mail. Now you can change the e-mail address that your university may want to post all over its website into an image file. The robots and crawlers that are out there looking for e-mail addresses for spammers cannot recognize an e-mail address that is an image file. Alternatively, you can write out the symbol @ at. Humans will know what they are seeing, but bots and crawlers won't know it's an e-mail address. Says the woman who hasn't done any of these things herself, yet!

Tax Implications of Travel to a Law Library

James Maule, a tax prof at Villanova and blogger at Mauled Again, has posted some intriguing comments on a recent Tax Court case.

The case [Berge v. Comr.] involves a lawyer who also is a CPA, and who resided in Los Angeles. Berge not only was employed full-time as a consultant by Arthur Andersen, he also was self-employed as both an attorney and an accountant. Of the almost 14,000 business miles that he drove during the year in question, he racked up roughly 4,300 miles traveling to the law library at Chapman University Law school in Orange County. Each round-trip to that library involved roughly 70 miles of driving. Berge, a graduate of Southwestern University School of Law, lived about 5 miles from that school's library, and his office at Arthur Andersen was roughly the same distance from Southwestern.

Berge claimed a $5,216 business deduction for his business mileage. The IRS audited Berge's return and disallowed $2,710 of the deduction. At trial, Berge conceded that because of a math error he should have claimed a deduction of only $4,544, thus conceding $672 of the disputed deduction and leaving $2,038 at issue. The IRS argued that the $2,038 represented the cost of mileage driven by Berge to visit his family in Orange County, which would make it non-deductible under section 262 as a personal expense.

There was no question that Berge had relatives living in Orange County. He testified that roughly 4,300 of the miles he drove were on account of his visits to the Chapman Law School library. He conceded that there were law school libraries closer to his home and office than the one at Chapman, including the one at Southwestern. Berge testified that he "found the Chapman Law School Library was superior to the libraries that were closer to his residence."

The Court explained that a business deduction is allowable if an expense is paid or incurred during the taxable year in carrying on any trade or business, and that for an expense to be “ordinary” the transaction generating the expense must be of a common or frequent occurrence in the type of business involved. This principle was set forth by the Supreme Court in Deputy v. du Pont, 308 U.S. 488, 495 (1940). The Court also explained that to be “necessary” an expense must be “appropriate and helpful” to the taxpayer’s business, referring to a principle enunciated by the Supreme Court in Welch v. Helvering, 290 U.S. 111, 115 (1933). Ultimately, the “determination of whether an expenditure satisfies the requirements of section 162 is a question of fact,” an observation made in Shea v. Commissioner, 112 T.C. 183, 186 (1999) and many other cases.

The court then stated:

Upon the basis of the record in this case, we find that the primary purpose for petitioner’s trips to Chapman Law School Library was to conduct legal research for his business clients, and, therefore, said travel is directly connected to petitioner’s business. Petitioner’s visits to his family, if such visits occurred, were a secondary consideration. We hold for petitioner on this issue, as modified by petitioner’s concession at trial.

Implicit in the court's decision is the notion that the travel expense deduction of an attorney, or any other professional needing to use a law library, is not limited to the cost of visiting the closest such library but can include the cost of visiting a more distant one if the professional determines that doing so is necessary to the conduct of his or her business activities.

Imagine if, instead, the outcome of the case enabled a test that permitted a deduction for traveling to a more distant library only if it were proven objectively that the more distant library was, in fact, superior. Tax law litigators then would need to embark on an analysis of the advantages and disadvantages of law libraries. Perhaps U.S. News and World Reports would have reason to publish yet another "rankings" issue. Courtrooms would fill with "experts" testifying about the superiority or inferiority of law libraries. Would the number of volumes matter? Would the scope of the collection be relevant? Would the adequacy of the heating and, more importantly in southern California, the air conditioning system be admissible? If you don't think the last concern matters, just stop by when the HVAC system supplying the law library a mere 1/20 of a mile from my office decides to take a vacation.

If I'm giving the impression that I'm pleased with the court's decision because it frees the tax practice world of another matter for which non-tax expertise must be developed, I should explain another impression that struck me when I read the case. In an age of on-line research, why does anyone need to go to a library to do tax research? I have a fine friend who is an elementary school librarian, and so I must write carefully lest I give the impression that libraries have been obsoleted by digital technology. They have not. Look, I like libraries. I enjoy books. I've been told I have the mind of a librarian. This isn't an obituary for libraries. Quite the opposite. There are many important reasons to go to libraries. They are places of quiet conducive to reading and study, places where one can learn to do research, places that are fascinating to browse, places where interesting book and print exhibitions are held, places where fun activities are undertaken, and places where one can have conversations with librarians who can open wide vistas of adventure and excitement conveyed through a variety of media including but extending beyond books.

But for a busy tax professional, does it make good business sense to drive 70 miles round-trip in southern California traffic to access tax and legal materials that most likely are available on-line? I wonder if Berge charged his clients for the time invested in his library trips. Fifteen years ago, I was in our school's library at least once a day, and sometimes I spent an hour or two or three doing research in the stacks. Today, I rarely enter our school's library, and when I do so it's almost always to interact with the computer technology specialists who are housed there or to provide the library with its traditional copy of something that I have published. I haven't been in the stacks for years. Of course, were I a first-year student, I'd be in the library for hours, as I once was and as our students now are, not only to study but to learn how to do the research I would be needing to do. . . . [All emphases added.]

Virtual Reality Shaping Our Views Of Life

I have been thinking for some time about how computers are shaping the ways we think. The massively multi-player online role-playing games are an interesting example, though not the only ones. Involved players are reported to often become disappointed in real life, because it lacks the excellent add-ons they enjoy in the games. The creation of idealized or radically different avatars that change their real-world shape and persona is one special perquisite of role-playing virtual reality games. However, there are social constrictions on how "fake" the avatar can be, and still be acceptable, if the player is known to friends online. Many games offer floater cars, wings, and other special transport not available in the real world. The cities and social worlds can be constructed with more or less idealism to fit the desires of the group. The only limit is the ultimate "law" imposed by the owner of the game system, and any laws adopted by the gamers as a group. See earlier OOTJ post here of March 9, 2006, Law and Order on the Virtual Frontier.

I have never played a MMORG, though it's tempting. I think I would have to take another sabbatical, because it sounds very absorbing. Also, I think most of the people involved tend to be a lot younger than I. My son rails against the economics of the games because you pay for the game at the store, and then have to pay a fee each year to stay connected. There is no way to play offline. What we have played at our house are the various types of sim games produced by Maxis: Sim City 1, 2, 3 and Sim Life, Sim Ant, Sim Farm, Sim Tower, Sim Park. I have to admit my favorite part in Sim City is shooting down the traffic copter -- I'm so bad! It is very attractive to move into God Mode and set up disasters to destroy cities, though I get so attached to my sims that I have trouble doing this.

So, we have a lot of single-player sim games. They are a lot of fun and are not multi-player games. But I can already see the lure and twist on reality: we starting talking about "I should have saved!" years ago. Wow, what a great feature! Save your action before you do something risky, and then if there is a disaster, you can just quit and go back to the situation as it was before you took that risk. Gee what a great concept. Too bad you can't do that in real life.

So, how much is this online reality shaping people's thinking about the world? I think it is doing this in subtle ways. Nobody in my family really thinks they can save the game and go back if a disaster happens. But the idea has been planted. We wish it were possible. We hadn't thought about it before. I think it's like the way Star Trek subtly influenced the development of technology. Watch the oldest shows, and you will see that the little memory disks look a lot like our CDs and DVDs. The communicaters look like cell phones. I can't help but think that the CDs look the way they do because the folks who worked to develop them watched Star Trek in their youth and were influenced by it. The communicaters affected the development of cell phone design for the same reason. There is no reason these things have to look like that. Other science fiction shows had other technology looks. But Star Trek, while its science was often wrong, got the scientific ethos, the science style, right. They treated science with reverence. So, it had a strong influence on scientists and scientists- and technologists-to-be. Here is a nice link to NASA with an informational webpage about the science of Star Trek. They took it pretty seriously, even though twinkling their eyes with nostalgia.

So, I think we are seeing a huge influence on the future. Younger people are going to say, "If we can do this, and live this way online, why not in the real world?" Will that include, not just technology, but the social and legal aspects? That would be very interesting, indeed! I find the article posted in PDF format here, by Betsy Book, looking at social aspects of virtual worlds to be a very thought provoking piece. I recommend looking at it in some depth, though it takes a bit of time to download unless you have a quick connection.

Also, people are blurring the edges between virtual reality and electronic media and old media and plain old life. The illustration for this blog entry is from Wagner James Au's blog about Second Life, New World Notes at http://nwn.blogs.com/. The entry is reporting on an interview he undertook on telephone for NPR Open Source with Christopher Lydon on March 29, 2006, and "... appearing live from an SL stage created by The Electric Sheep Company. Also on the panel is the esteemed Sherry Turkle of MIT, author of the vastly influential Life on the Screen-- without which, I likely wouldn't be writing this blog." (quoting from the blog entry). Then the MP3 of the interview was posted to PRI's website here. I found the blog entry and illustration with avatars and a real photograph mixed to be a perfect metaphor and example of how people are merging media, virtual reality and plain life.

News Flash! Indiana Government Withdraws From Union in Desperate Attempt to Avoid Daylight Savings!

The National Guard has been called out in Terre Haute, Indianapolis and South Bend, Indiana, to attempt to restore order. The Governor of the State has declared martial law and attempted, with a strong majority of the legislature, to secede from the United States.

For thirty years, Indiana has been one of three states which has refused to adopt state-wide daylight savings time. The result has been a patchwork of time zones. Here is a link to a very good website developed by the Monroe County school district attempting to explain "What time is it in Indiana?" The site is very impressive since it was developed in large part as a class project by eighth graders.

In the fall of 2005, legislation was passed, partly under the impetus of the U.S. Department of Transportation, to create uniform time-zones and adopt Daylight Savings across the entire state. As of April 2, 2006, Indiana was due to move into Daylight Savings across the entire state.

People were panicking. Newspapers, radio stations and television stations were pushing out information on how to set your clocks ahead an hour. They were recommending not to actually stay up until 2 AM to do this, but do it before going to bed. There were debates on talk radio and in cafes and bars. Letters to the editor flooded into the newspapers, and church bulletins published fervent prayers. Farmers swore that their cows would know the difference and would not be fooled by the damned fool fiddlin' with the clocks. Communist plots were alleged. Terrorists were blamed.

At last, under extreme public pressure, the governor of the state has seized control of the situation and attempted to withdraw from the Union rather than submit to the forced imposition Daylight Savings time. State legislators are making declarations about states' rights.

However, the Justice Department is taking a very dim view of the attempt at secession. They are arming a group of federal marshalls and a special services squad to go to the state capitol. They are sending F.B.I. agents with a special negotiator. They plan to arrest or ask for the surrrender of the governor and eight of the ring-leaders of the secession plan. This is shaping up into the sort of head-on collision of states' rights against federalism that we have not seen since the days of integration in the deep south.

The last communication with the outside world was with the Astro-Physics Department at Indiana University. They were working on space-time continuum theory, in an attempt to solve the issue through application of quantum theory to real-world problems. Professor H. F. G. Taschentuch, Ph. D. explains that if they are able to find a niche in time, they might be able to save nine.