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The Four Topics of Law Library Scholarship

Mark Liberman at Language Log noted a couple of days ago:

In case you missed it this morning, Scott Simon interviewed Edward Hirsch on Weekend Edition, and together they read William Matthews' Four Subjects of Poetry:

1. I went out into the woods today, and it made me feel, you know, sort of religious.
2. We're not getting any younger.
3. It sure is cold and lonely (a) without you, honey, or (b) with you, honey.
4. Sadness seems but the other side of the coin of happiness, and vice versa, and in any case the coin is too soon spent, and on what we know not what.

Which led to Roger Shuy's four subjects of linguistic analysis:

1. I've analyzed a whole bunch of language phenomena and what I've found corrects/amplifies/changes completely what the rest of you less enlightened folks have to say about this subject.

2. I've discovered a spanking new language phenomenon and so, ta-da, here it is in all its glory.

3. I've gone to great pains to compare language phenomenon #1 with language phenomenon #2 and I found:
a. one of the two is more accurate or useful or pleasing or relevant than the other one, or
b. the two are either the same or so similar that it doesn't really make any difference.

4. I've discovered that a certain older language issue is still relevant today, so take that, you modern whipper-snappers.

Which led in turn to Kerim's four subjects of anthropological research:

1. These people are really, really, oppressed, but look! They have agency!
2. Identity is political and transcends national boundaries.
3. These people used to have a tradition, but they’ve adapted it to better fit with their current lifestyle and now it is a different tradition.
4. There are no signifieds, only an endless chain of signifiers representing the illusion of self resulting from desire-as-lack.

So here goes–my four subjects of law library research:

1. We surveyed one of our research classes and they want us to emphasize print sources.
2. We surveyed one of our research classes and they want us to emphasize electronic sources.
3. A current management theory, summarized in ten pages or less, applies to law libraries.
4. Technology will change everything, but there will always be a need for law libraries.

Update 4/13/06: Ann Bartow's four subjects of law review articles.

Jim's Daily Outrage

I've decided to try to limit myself to one posting per day about our continuing slide toward dictatorship. Here is today's entry, from Obsidian Wings: Random Radio Open Thread (emphasis added):

Earlier in the morning, I heard Gen. Anthony Zinni on the Dianne Rehm show. He described one occasion, in the 90s, when he was opposed to the Iraq Liberation Act and the support of Ahmed Chalabi, and William Cohen, who was then Secretary of Defense, and who disagreed with him, nonetheless brought him personally to meet with various Congressional leaders on the grounds that they ought to hear what Zinni had to say. I thought: yes, that's exactly what people who were concerned with the good of the country, as opposed to winning at any cost, would do: they would bring people who disagreed with them, but whose views they respected, to meet with decision-makers, in order to be sure that they heard both sides of the story. It's also what anyone who respected Congress as an equal branch of government would do.

I sometimes worry that we will get used to the levels of mendacity that we've seen from this administration: that we will stop remembering that it is not normal for administrations to lie to Congress on a regular basis, to suppress all dissenting points of view, or to try to game the system so that their preferred outcome prevails. Some of this, I imagine, always happens; but I think we should never forget that it has not always been the norm, and we should never, ever get used to it.

Distinguishing Between Research and Analysis

From Elizabeth Ellis at Slaw (emphasis added):

Law.com has just reported that the U.S. Supreme Court "adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year". Apparently, unpublished opinions represent 80 percent of cases decided in the federal appeals courts.

It seems to me that recent rulings of the courts (Canadian and American) may be the start of a re-evaluation of the legal research process. The Ontario Court decision discussed in the April 10 post "Computers Have All the Answers".- looks as though it will be impetus for some lively debates amongst practicing lawyers (I think the Toronto Research Lawyers will be discussing the case at their April meeting).

As noted in the comment to the April 10 post, one must separate 'research' from 'analysis'.. Twenty five years ago, I recall spending most of my time 'researching' because the finding tools were not that helpful. Once the 'research' was finished, there tended to be a manageable amount of material, usually well written, to digest and analyze. Today, I think the 'research' time has been shortened - but the analysis time lengthened because there is so much more material to consider and the material is often unorganized and confusing. From a client's perspective, I think the legal bills are higher than ever.

Wiki Study Groups

From today's issue of The Guardian Online , the official student newspaper of the University of California San Diego, comes a story about an innovative use of the wiki--websites on Wikipedia where students in a particular class can gather together all their class notes: http://www.ucsdguardian.org/cgi-bin/print?param=features_2006_04_03_01. One of the professors whose students set up a wiki notes that "...the Internet takes old study techniques and amplifies their advantages and disadvantages." Wikis are subject to the same "risks and benefitis of regular study groups," pointed out this professor, while noting that he had found several errors in the notes on the wiki. It will be interesting to see if this trend spreads to law schools, where study groups have, of course, been an accepted learning technique for many years.

No Institution Left Behind

From Discourse.net:

It's amazing. This administration corrupts everything it touches -- even librarians. And that's saying a lot, because librarians have been in the forefront of fighting against many of the objectionable aspects of this governments' information control policies. That's why it's such a shock to learn from The Project On Government Oversight (POGO) Blog that the National Archives Agreed to Coverup Reclassification Scheme:

The National Archives and Records Administration (NARA) secretly agreed to hide from researchers attempts by intelligence and defense agencies to reclassify thousands of documents that had already been publicly released, some for as long as 50 years. Through the Freedom of Information Act (FOIA), the National Security Archive (the Archive) obtained a secret memorandum of understanding (MOU; pdf) between NARA, the Air Force, the Central Intelligence Agency and other intelligence agencies whose existence has been covered up through redactions.

The National Security Archive site's explanation of what it discovered says that the program started four years ago, in 2002. The deal to which the Archives agreed could hardly be more explicit in its goals, among them "to avoid the attention and researcher complaints that may arise from removing material that has already been publicly available."

I should note that although this agreement is dated 2002, the National Security Archive's article suggests the reclassification program may have started "at the end of the Clinton administration" although I'm unclear on what they base that. Not that it matters; it's wrong as a general matter.

I won't go so far as to say that there are no circumstances in which an accidentally declassified document should be pulled from the shelves; I just think at most they're very rare. And it's evident that this program, which swept up thousands of documents, many of no possible national security value, was nowhere near reasonable.

Recovery Ain't Easy

From Ezra Klein:

With Bush's approval ratings hovering somewhere around -112%, we're seeing the inevitable rush of commentators explain how to save his presidency. Rich Lowry's plan, as described by Ryan Lizza, is an "enforcement-only immigration bill, speeches denouncing eminent domain abuse, happy talk about the economy, tax reform, more judicial battles, a spending bill veto, and chats with conservative bloggers." Yes, and after Bush makes nice with the 12% of Americans who are in his base, he'll slip back into the high 30's. But Lizza's counterporposals, while better from a policy perspective (Fire Cheney, bring in McCain, make Iran bipartisan, jawbone Iraqi, get serious about reform), are similarly unlikely to halt Bush's slide.

The problem, of course, is that Bush isn't flailing because this White House is insufficiently politically adept. He's flailing because the major policies on which he's staked his presidency are self-destructing. Iraq is a bloodbath, the deficit threatens to swallow the country whole, the Middle East is less stable than ever, economic insecurity is rampant, inequality has risen, the government response to a national disaster was staggeringly incompetent etc, etc. So while any of Lizza's ideas might result in a temporary bump, that spike would rapidly flatten under the perpetual stream of bad news. Fact is, Bush is proving that presidencies are about something more than communication strategies. This White House was predicated on the belief that policies didn't matter, only politics did. That's been disproven, they've found themselves unable to fight failure with photo-ops. And this country will be better for it.

Attorney General Gonzales in a candid moment

Uncovered by Glenn Greenwald at Unclaimed Territory (emphasis added):

But as Gonzales pumped up a hill, he said he wasn't troubled by critics. He was troubled by terrorists. "I stay up at night," he said, rounding a corner near the water. "I read the reports. Sometimes I ask myself, when will it end?"

The river rippled away from the shore. "The answer is -- it probably never will."

That is an extremely important yet virtually never acknowledged truth revealed by the selfless Gonzales (who doesn't care at all about criticism of him, only about the dangers posed by terrorists). The "war" on terrorism -- which justifies everything from lawbreaking to expanded presidential powers across the board, and which means that we should be muted in our criticisms of the Commander-in-Chief (when we are allowed to voice them at all) -- is expected to end . . . right around never.

All of those Bush defenders who are constantly justifying radical changes to our country based on this "war" are not advocating short-term, temporary or finite changes. They seek fundamental and permanent changes to our system of government, and to transform the United States into a country that is in a state of war that literally has no end. That is not news to many people, but it is still striking to see it acknowledged so nakedly and starkly as Gonazles, likely unguarded by the family puff piece, admitted to it here.

The continuing slide

Betsy has asked me to keep an eye on things while she is out of town, so I guess I've been passed the outrage torch for a few days. It's so hard to keep up--new Bushite scandals seem to crop up by the minute. Here's the latest, via Shakespeare's Sister:

Phone Jamming Records Point to White House

WASHINGTON
- Key figures in a phone-jamming scheme designed to keep New Hampshire
Democrats from voting in 2002 had regular contact with the White House
and Republican Party as the plan was unfolding, phone records
introduced in criminal court show.

The records show that Bush
campaign operative James Tobin, who recently was convicted in the case,
made two dozen calls to the White House within a three-day period
around Election Day 2002 — as the phone jamming operation was
finalized, carried out and then abruptly shut down.

The national
Republican Party, which paid millions in legal bills to defend Tobin,
says the contacts involved routine election business and that it was
"preposterous" to suggest the calls involved phone jamming.

The
Justice Department has secured three convictions in the case but hasn't
accused any White House or national Republican officials of wrongdoing,
nor made any allegations suggesting party officials outside New
Hampshire were involved. The phone records of calls to the White House
were exhibits in Tobin's trial but prosecutors did not make them part
of their case.

Lots more at the link.

So, does this mean Bush was authorizing phone-jamming schemes to block Democrat voters? Who knows? Who cares? We've gotten to the point with this "president" that just about any story sounds plausible. I'm sure this will be sneered away as tinfoil hattery, but christ, if it were true, would it even matter? Would anything happen to this criminal that's drunk-driving our country off a cliff and into the LaBrea tarpits?

And, more importantly, will pooh-poohing of Bush's involvement in this crap erase the fact from the minds of the public that Republicans were scheming and carrying out plans to stop Democrats from voting?

If we don't have free elections in this country, we have nothing.

ALDA on Legal Writing Instructors and Library Directors

The ALDA deans also attack the Legal Writing Instructors. Frankly, I think they have chosen whatever targets they think they might get away with. Whomever they think the other faculty will not rise to defend. These are largely feminized fields: Clinical, Legal Writing and Law Librarianship. Not that there are no male colleagues, but there are probably more women faculty in each of these three fields, and possibly more minorities in these, at least in Clinical. Do we see a pattern?

So we go on analyzing the comments of the ALDA deans:

Likewise, Standard 405(d) requires "A law school shall afford legal writing teachers such security of position and other rights and privileges of faculty membership as may be necessary to (1) attract and retain a faculty that is well qualified to provide legal writing instruction and (2) safeguard academic freedom." As with all other faculty, we do not believe that ABA should require any specific terms and conditions of employment.

The same issues emerge in the context of the Standard applicable to the directors of law school libraries. Standard 603(d)[4] provides:
Except in extraordinary circumstances, a law library director shall hold a law faculty appointment with security of faculty position. (Emphasis supplied.)

There is simply no reason for requiring that a senior administrative officer have such status. While some law schools have chosen to engage their library directors in tenured positions, there is no reasonable connection between the quality of the law library and the terms and conditions of employment of the director.

As in the case of reviews of clinical programs, the substantive reviews of institutions that have been cited for failure to comply with the requirement of Standard 603(d) are replete with glowing praise of the quality of their law libraries and the services those law libraries provide. [5] The tenure status of the law librarian seems uniformly <>unrelated to the qualitative review of the law library and the services provided by its professional staff. We further note that it is the entirely reasonable position of many law schools (and the universities within which most such schools are embedded) that it is inappropriate "to provide tenure or similar employment security to people who have significant management responsibility." [6]

There is, however, a very direct connection between the ABA Standard and the policy of the professional association of law librarians, the American Association of Law Libraries, which provides, under the heading "Policy Statement on Job Security, Remuneration, and Employment Practices," the following:
Security of employment enables a law librarian to work responsibly without fear of interference or of arbitrary or unjust dismissal. Security of employment encourages a law librarian to make professional decisions without fear of reprisal. Security of employment provides a sufficient degree of economic security to make the profession of law librarianship attractive to persons of ability. Security of employment means that, following the satisfactory completion of a probationary period, the employment of a law librarian under any form of permanent appointment status carries with it a commitment to continuous employment. (Emphasis supplied.)[7]

Professional organizations can be expected to advocate job security for its members. And it is certainly within the discretion of a law school to decide whether to adopt such a policy. But it should not be within the realm of an accrediting organization, certainly not one bearing the imprimatur of the Secretary of Education, to translate advocacy for specific economic terms into prescribed conduct. This is an abuse of the power that the accrediting agency has secured by means of its governmental recognition.

But by comparing these paragraphs with the previous paragraphs attacking the ABA standards on tenure status for clinicians and the statements made about deans and substantive faculty, that the real drive here is to separate out clinical, legal writing and library faculty from the rest. They are treated quite separately, despite the glossy beginning assuring us that the deans will begin by treating of their own position. They have no intention of endangering their own job security. They only intend to undercut the job security of the feminized, minority fields of clinical, legal writing and law library directors as tenured or long-term faculty.

And why do they object to the ABA's accreditation pressure to provided faculty in these positions with job security or tenure? With straight faces, the ALDA deans tell the Secretary of Education, while hinting darkly that the ABA may be breaking antitrust rules again...

... the ABA has an obligation to focus its attention on those elements of institutional performance that relate to the quality of education provided its students. When it dictates terms and conditions of employment, the accrediting body inappropriately inserts itself into the internal affairs of the institutions it accredits and does so in a way that forces homogeneity, and conversely stifles innovation and diversity, among law schools.

What is it about the elements of the law school performance that tenure for clinicians, legal writing instructors or a law library director interferes with? What does that job security do to force homogeneity and stifle innovation and diversity? Why it forces the ALDA deans to allow women and minorities to stay on their faculty, doggone it! Geez, louise! Isn't that awful? Do you think the minority or women students at their schools would like to have an occasional feminine face or person of color to speak with? I DO!

I sure hope the Secretary of Education agrees!