More Bad News for New Graduates

Recently released data confirm the perception that the Class of 2011 fared badly in the employment market.  An article in the ABA Journal states, "Only slightly more than half of 2011 law grads were able to snag full-time, long-term legal jobs, according to an analysis of new ABA data by Law School Transparency."  Specifically, Law School Transparency found that only 55.2%  of graduates had full-time jobs that required a J.D., with 26.2% still underemployed. 

In light of these disappointing (but not unexpected) numbers, two recent stories caught my eye.  The first appeared  in The Wall Street Journal, June 18, 2012, p. B1 (subscription required), and was entitled "Why Hire a Lawyer?  Computers are Cheaper."  The author, Joe Palazzolo, describes the litigation that ensued after the "roofs of three jet hangers [sic] collapsed under heavy snow and crushed 14 private jets in 2010."  The defendant, Landow Aviation, preserved approximately 8,000 gigabytes of information relevant to the suit, and eventually narrowed the field to approximately 2,000,000 electronic documents that would need to be reviewed for evidence of possible liability in the collapse of the roof.  In the past, an army of lawyers would have read each document.  Some of these lawyers may have been temporary hires paid at a low hourly rate specifically for document review, or they may have been new associates assigned to the task.  However, in this case, "the company asked a judge to allow a computer program to do much of the initial work" using "'predictive coding,' a term that refers to computer programs that use algorithms to determine whether documents are relevant to a case."  The article describes how the coding is done and the advantages--it's cheaper and more accurate--and points out that attorneys will still need to review the documents that the coding has identified as being relevant, perhaps 10% of the total.  If the cost savings of predictive coding are significant and the results are more accurate, clients may well be unwilling to pay for traditional document review by attorneys in the future.

The other article, also from the ABA Journal, highlighted a new rule by the Washington Supreme Court that will allow "'licensed legal technicians' to help civil litigants navigate the court system."  The range of activities that the legal technicians will be allowed to perform is very narrow.  According to the press release,

The type of assistance the legal technician will be able to provide include, but are not limited to:
· Selecting and completing court forms;
· Informing clients of applicable procedures and timelines;
· Reviewing and explaining pleadings and;
· Identifying additional documents that may be needed in a court proceeding.

Under the rule, limited license legal technicians will not be able to represent clients in court, or contact and negotiate with opposing parties on a client’s behalf.
       
The purpose of the rule is to help meet the legal needs of people with lower incomes.  The court "acknowledged concerns that the plan poses a threat" to the practicing bar, but feels that there will be no appreciable effect because the legal technicians will not be able to negotiate.  The article doesn't mention any possible negative impact on the market for new attorneys, but it's reasonable to assume that there will be one if current practitioners get less business. 

Reveal Day at ICANN - New Internet Suffixes?

ICANN is opening up new Internet suffixes today, June 13, 2012. They call it "Reveal Day." At their website, they had a video of the press conference in London, but they did not record it, oddly. They still have materials, though, for the public and the media.

There are about 2,000 proposed suffixes that include hobbies, corporate brand names, language and ethnic groups and more. In 2000 and 2004, ICANN offered two "beta test" groups of suffixes which included .travel, .info, .biz and more. These have not been notably popular with the public, who found very quickly that .travel became populated with scam artists and virus-carrying sham-websites. The public has since shown a marked preference for the original 3 suffixes: .com, .org and .edu, or they use a web browser to locate what they want if they do not know the URL.

Petitioners to purchase a new suffix, also known as a top level domain name, face a lengthy process. They must be carefully vetted by ICANN. They answer 50 questions covering their plans for the suffix, their financial health, the support they have for "owning" the name, and more. Petitioners had until May 30 to submit a proposal, which costs $185,000. On June 13, ICANN listed all the received proposals.

There will be months, possibly years of reviews and possibly challenges before proposals are accepted and suffixes are handed out, and available to be used on the Internet. The public will now have 60 days to comment on the proposal. For instance, someone may claim a trademark violation, or that the suffix is offensive.

ICANN has so many proposals (which surprises me, frankly!), that it will review them in groups of about 500. There is a lottery sort of system to decide which proposals are considered first. It could take several years to get to the final group. Besides looking at the financial health of the petitioning company or organization, ICANN will also perform crimimal background checks. They don't want an owner of a top level domain name to become insolvent, or in the unlikely situation that it does, ICANN wants there to be well-thought-out contingency plans. A complete review is expected to take nine months. If there are challenges, a review could take up to 20 months, according to ICANN's estimates.

If multiple bidders seek the same domain name, ICANN encourages the bidders to seek agreement. Once a suffix is approved, the owner of the domain name may sell and register sub-domain names and control their use. They are in charge of procedures to register the servers and track them. So, the winning petitioner may make some money, but they also have to pay ICANN $25,000 more annually to keep the suffix registered. This is a very expensive proposition!

The Washington Post reports that Internet-based companies from Apple,to Zappos applied for these domain names. But also, bricks-and-mortar companies such as Macy's, Wal-Mart and Tiffany's each ponied up $185,000 to apply for consideration. 87 large corporations filed a protest. A few of the protesters, such as Samsung, went ahead and filed for a suffix. Others, such as Coca-Cola and Kelloggs, abstained from filing for domain names (see BBC story here).

You can follow ICANN on Twitter where it appears as ICANN (not surprisingly). Here is a link to the full list of new Top Level Domain names in potentio. The BBC pointed out that more than half the list consists of U.S. corporations. But from a U.S.-centric point of view, that means that nearly half the new Top Level Domains will be non-U.S., 17 of which were from Africa. ICANN is working on making the Internet more international and more welcoming to the world. At the same time, ICANN itself is firmly based in the United States, through an agreement with the United States government, for at least a good while into the future. While the Internet was built in the United States at the beginning, as ARPANet, it has become a truly international utility of great value. This will a very interesting thing to watch develop.

The red curtain decorating this blog post is courtesy of https://www.marketingexperiments.com/blog/marketing-insights/ecommerce-carts-pricing.html

Even Playing Fields

The American Association of Law Libraries (AALL) published its Guide to Fair Business Practices for Publishers (2nd edition, 2008). They are now in the process of making what are really rather minor revisions to the document. The wonderful Committee on Relations with Information Vendors (CRIV) has a new blog where you can go to link to the proposed changes, and read about how to submit your comments.

The AALL Consumer Advocacy Caucus has looked over the changes and is submitting comments, but the more members who comment, the better. Publishers and consumers alike have an interest in fair business practices. When one or a few publishers engage in unfair practices, the other publishers or vendors who try to conduct their business along fair guidelines are put at a disadvantage. When everybody maintains fair business practices, there is an even playing field, which improves competition, benefiting the marketplace and consumers as well.

I was initially surprised when there were some publishers interested in joining the Consumer Advocacy Caucus, but after listening to a presentation or two from some of the more vocal, I understand better their point of view. It is not just a matter of large publishers against small publishers.... they are concerned about unfair business practices crushing innovation and competition in the marketplace. And consumers have the very same concerns. Speaking up and asking question about problematic business practices benefits everyone in the long run, including the publishers who think they are getting away with something!

Mutabilis mutandi

It looks like some over-zealous programmer for Barnes and Noble set up the Nook e-reader to replace every appearance of the word "Kindle" with "Nook." That works OK when "Kindle" is a proper noun referring to their competition from Amazon. But the results look hilarious, sad, pitiable, ridiculous and outrageous, depending on your mood, when the word is a verb. Philip Howard, who blogs at Okracoke Island Journal, on May 22, 2012, noted that he was reading Leo Tolstoy's War and Peace on his Nook.

As I was reading, I came across this sentence: "It was as if a light had been Nookd in a carved and painted lantern...." Thinking this was simply a glitch in the software, I ignored the intrusive word and continued reading. Some pages later I encountered the rogue word again. With my third encounter I decided to retrieve my hard cover book and find the original (well, the translated) text.

For the sentence above I discovered this genuine translation: "It was as if a light had been kindled in a carved and painted lantern...."

Someone at Barnes and Noble (a twenty year old employee? or maybe the CEO?) had substituted every incidence of "kindled" with "Nookd!"

This discovery is roaring through the blogosphere: Ars Technica tested it and found 8 instances. They include a nice screen shot highlighting an example where "Nook" in inserted for "kindle" in the text. The story also appears on Dvice.com and I originally was told it was covered on MSNBC. The Atlantic has a story on it (they couldn't resist the pun! (Tolstoy gets nookered), and The Baltimore Sun covers it, too. There are many more repeats of the story, but these are the higher profile commentators.

Probably the most insightful comments come from Kendra Albert at Jonathan Zittrain's blog The Future of the Internet and How to Stop it. First Ms. Albert recalls the classic story of the day Amazon panicked that they had not gotten proper copyright clearance for George Orwell's 1984, and yanked it from all e-readers without notice. Even people reading it had it disappear, notes and highlights and all, quite suddenly. Amazon gave back the 99 cents everybody had paid, but it did not diminish the sense of outrage, or the sense of irony, because of the text.

Then, playing off that experience with the extreme mutability of e-texts, Albert continues to examine the Kindle to Nook event. She comments that the change probably happened when the company that formatted the text, Superior Formatting, a contractor for Barnes and Noble, ported the text. They probably do the same work for Amazon, and may insert ads for the Kindle in work that they do for that company. So they probably did a search and replace to find and replace all the ads for the Kindle e-reader over the ads for the Nook. It just wasn't well-thought-out, and now, they look pretty stupid. Or, Barnes and Noble look stupid, which is worse!

The unwitting hilarity of a publisher doing a “find and replace” and accidentally changing the text of a canonical work of Western thought is alarming. Many versions of e-books are from similar outfits, that distribute public domain works formatted for Kindle or Nook at the lowest possible prices. The great democratizing factor of the ebook formats – that anyone can easily distribute – can also mean that readers can never be quite sure that they are viewing the texts as the author intended.

Interestingly enough, we seem to have come a full circle. The earliest job of the great scholars and librarians was to recognize the correct copies of the classics, and weed out the incorrect copies. When everything was copied by hand, it was very easy for errors and changes to creep into those scrolls and manuscripts.


Tip of the OOTJ hat to my colleague Spencer Simons at University of Houston. The illustration of Tolstoy came from the Atlantic article, and is credited to the Wikimedia Commons, which credits it to Nikolai Gei, translated in English as Leo Tolstoy at His Desk, painted around 1870.

Judges and Politics

One of our law students was telling me he recently attended a reception where former Chief Justice of the Massachusetts Supreme Judicial Court Margaret Marshall spoke about the increasing mix of judges with politics. She says, it's a problem, not surprisingly. And I don't think that she is drawing any partisan line about this, though I did not hear her speech. Here is a link to the event at which she spoke where she received a medal from Radcliffe. Here is a report of Chief Justice Marshall's speech. She used as an example of the ways in which the First Amendment of the federal Constitution is being used to "undermine the notion of impartial justice" a 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White.

A summary of the facts of the case and the main issue provided by the Oyez project:

Minnesota's Constitution provides for the selection of all state judges by popular election. The announcement clause of the Minnesota Supreme Court's canon of judicial conduct prohibits a candidate from announcing his or her views on disputed legal or political issues. While running for associate justice of the Minnesota Supreme Court, Gregory Wersal filed suit, seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. The District Court found that the announcement clause did not violate the First Amendment. The Court of Appeals affirmed.

Question

Does the First Amendment permit the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues?

In a 5 - 4 decision, the Court ruled that the Minnesota rule prohibiting judges from announcing views on disputed legal or political issues was an unconstitutional burden on the judicial candidates' freedom of speech. Chief Justice Marshall finds the decision very disturbing for several reasons, according to the report in the Harvard Magazine. Most disturbing seemed to be the “short shrift given by the Court to the very notion that judges must be, or even can be, impartial.”

The White decision, Marshall said, opened “a Pandora’s box of noxious influences on the principle, and the reality, of fair, impartial justice in our state courts.” The ruling opened the door, Marshall noted, for judges in other jurisdictions to “strike down other rules of judicial ethics aimed at ensuring the integrity of our courts,” including rules prohibiting “judges and judicial candidates from promising in advance to decide certain cases a certain way,” or from personally soliciting campaign donations.

Margaret Marshall was notably even-handed in her speech, quoting both Newt Gingrich and Sandra Day O'Connor in making her points. But if one adds other straws in the journalistic wind to this speech, there is a very disturbing picture that seems to be growing of the current state of the federal judiciary at least. I have seen very little discussion of the article that appeared in the New Yorker magazine, May 21, 2012 by Jeffrey Toobin, "Money Unlimited: How Chief Justice John Roberts Orchestrated the Citizens United Decision."

See also, this brief article from the Brennan Center for Justice at New York University School of Law, "Judges and Politics Don't Mix."
by Adam Skaggs, dated 2/12/10. Here is a N.Y. Times article about the Minnesota case.

1st Circuit Court of Appeals Rules DOMA Unconstitutional

The First Circuit Court of Appeals in Boston ruled yesterday in two cases, Gill v. Office of Personnel Management which decision incorporates a ruling on the companion case brought by the Massachusetts Attorney General, Massachusetts v. DHHS. In Gill, seven same-sex couples and three surviving spouses of same-sex marriages, all from Massachusetts, where such marriages are legal, brought suit because under the federal Defense of Marriage Act (DOMA), they are denied many federal benefits available to heterosexual couples in the same state. These include Social Security survivor benefits and the ability to file tax returns jointly, for instance.

The Massachusetts v. DHHS case was brought by the Massachusetts Attorney General because the Commonwealth is being forced to discriminate against some of its citizens and treat them differently because of the federal DOMA. For instance, Medicare benefits are not available to same-sex spouses, but are available to heterosexual spouses. And a same-sex survivor spouse of a veteran may not be buried at a federal military cemetery in Massachusetts, while a heterosexual widow or widower may. And these differences are enforced even though, under Massachusetts law, the two individuals are viewed exactly the same.

The GLAD organization represented the plaintiffs in Gill, and provide many links to news stories around the nation, as well as a complete selection of the pleadings in that case and all the cases they have been involved with. Here is their page. The Boston Globe link that GLAD offers leads to a different article than the more in-depth one that appeared in the print Globe. Here is the print article from the Boston Globe, and a more recent article from the Globe, about Judge Michael Boudin, who wrote the opinion.

Clarity in legal writing

Beginning today, May 21, 2012, Scribes, the Clarity international association and the Center for Plain Language are co-hosting a conference in Wash8ing D.C., focusing on the new United States Plain Writing Act of 2010 (excellent information page here). There is also a Plain Regulations Act, but that is not the focus of the conference, exactly.

Tip of the OOTJ hat to The Scrivener, whose Winter, 2012 issue not only announces the conference, but also has some powerful and charming articles on plain language writing. I recommend it!

Wait, just a darned minute... the sky isn't falling!

I was flipping through the May 1, 2012 issue of Library Journal, when I was amazed to see a very short item in News Desk (page 11 in print) about the Libraries Online Incorporated (LION) a consortium of 25 Connecticut public, academic and school libraries boycotting new purchases of e-books from Random House. There is actually a fuller story online at Library Journal's Digital Shift. On March 2, Digital Shift covered a huge price increase, of as much as 300%, imposed by Random House on libraries buying their e-books. An e-book that cost $40 one day jumped to $120 the next, while the print version remains at $20 with the library discount! Random House is the only large publisher to make its e-books available to libraries without onerous restrictions, according to the article, but this is their rationale for the price increase:

“We believe our new library e-pricing reflects the high value placed on perpetuity of lending and simultaneity of availability for our titles,” said Stuart Applebaum, a Random House spokesperson. “Understandably, every library will have its own perspective on this topic, and we are prepared to listen, learn, and adapt as appropriate,” he said.

“Simultaneity” here means that Random House’s titles are available to libraries on the same date the retail edition is put on sale. It is not referring to simultaneous, multiple user access. The model remains one book, one user.

The reader can see the entirety of the Random House spokesperson's statement at the end of the Digital Shift article linked above.

To return to the boycott. The LION boycott was voted unanimously by its members on March 20, and communicated to Random House by LION president Richard Conroy. This boycott follows a similar boycott by a consortium of public libraries in Nova Scotia the South Shore Public Libraries, which voted to boycott purchases of new e-books from Random House by April 3, when this article ran in the The Chronicle Herald News. I think the issue is nicely put by the chief librarian Troy Myers:

"I don’t want to pick a fight with them, but their pricing’s unfair and I think they need to change it," chief librarian Troy Myers said Monday. (snip)"It’s public money we’re talking about here, and for us as a board to be good stewards of that money, we can’t justify paying these prices,"

(snip)
Library board member Alan Wilson ... fully supports the boycott, saying it's important to take an early public stand.

"If this is a trend and not a single publisher, it’s something to be very concerned about," Wilson said.

"It’s a question of equity and fairness," he said, for both the authors and readers, and the publisher should have discussed the issues with the Writers’ Union of Canada and the Canadian Publisher’s Council.

"It seems ill-considered, it seems ill-timed and unilateral.""

I was quite surprised that these 2 groups were coming out as consortia, organizing a boycott against a publisher because of a pricing issue. Because, you know, we've always been told by our professional organization that if we acted as an organized group of librarians to act against a publisher on any issue of pricing, for instance, or other consumer issue, for instance, we might be accused of ...

ANTITRUST VIOLATION

That we, the consumers would somehow be organizing as a trust or bloc to somehow illegally manipulate pricing.


And that's why we, as AALL members, for instance, are supposed to sign some sort of agreement before we go on the AALL lists, right? That we won't discuss

THINGS that might violate ANTITRUST

or wait...

is that really just about

making some really big publishers

UNCOMFORTABLE?

Obama first sitting U.S. President to speak in favor of same sex marriage

When President Obama spoke to Good Morning America on Wednesday, May 9, 2012 about his evolving feelings about same sex marriage, he became the first sitting American President to support same sex marriage. The Boston Globe ran a very nice article about the interview, which ran in two parts. There was a "breaking news" interruption of soap operas on Wednesday morning, and a longer airing of the full taped interview on Thursday.

Obama said his position on same-sex marriage evolved over several years as he spoke with friends, family, and neighbors about it. He cited the influence of members of his staff “who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together,’’ and the gay soldiers, airmen, Marines, and sailors “who are out there fighting on my behalf’’ but not allowed to marry. (snip) Obama said he has “stood on the side of broader equality’’ for the lesbian, gay, bisexual, and transgender community, “and I’d hesitated on gay marriage in part because I thought civil unions would be sufficient . . . and I was sensitive to the fact that for a lot of people, the word ‘marriage’ is something that evokes powerful tradition and religious beliefs.’’

The article quoted some activists who were angry and disappointed at the timing of the President's announcement, coming right after the North Carolina vote to amend their state constitution to ban same sex marriage on Tuesday, May 8. The President, in fact, expressed his disappointment in the voting outcome.

Obama's opponent in the Presidential race, Mitt Romney, when governor of Massachusetts, unsuccessfully sought several times to find a legislative way to overcome the judicial opinion that legalized same sex marriage in our state. He has stated that he opposes same sex unions and would support a federal Constitution ban on gay marriage. He would also support the current Defense of Marriage Act (DOMA). So there is a clear split between the candidates on this issue. Obama does say that he supports individual states' right to decide for themselves how to treat the issue, so he does not contemplate a federal law that would override state laws on the matter.

I was listening to the radio on Thursday, and they were interviewing people about their reaction to the announcement. One gay journalist said that he really had not expected that the announcement would have much affect on him, but when he actually heard his President speaking words that reaffirmed his humanity, he was so moved that he burst into tears.

This is a civil rights issue. It is about treating people with dignity and equality. Bless President Obama for taking a huge step and doing the right thing in this area. I hope it does not hurt his campaign, but only helps.

Celebrating William Garrow

Did you ever wonder where the presumption of innocence in criminal trials came from?  What about the inadmissibility of hearsay evidence?  I had always assumed (incorrectly, as it turned out) that they had been part of British law at least as far back as the Normans.  Recently, however, thanks to a terrific British television series, Garrow's Law, I learned about the man who was responsible for the introduction of these important principles into the Anglo-American legal tradition.  The series uses real-life legal cases argued by Garrow at the Old Bailey to dramatize the career and life of the man who brought about what amounted to a revolution in the English common law. 

Sir William Garrow (1760-1840) isn't as well known as he deserves to be, but the TV series and recent  biography (John Hostettler and Richard Braby, Sir William Garrow:  His Life, Times and Fight for Justice, 2009) should help to rescue him from obscurity.  Garrow was a  crusading barrister who was a fixture at the Old Bailey--the Central Criminal Court in London--for about ten years in the late eighteenth century.  According to the preface of the Hostettler and Braby biography, Garrow's "aggressive defence of clients creat[ed] a new phenomenon in the criminal trial."  In fact, Garrow "led the way in altering the whole relationship between the state and the individual by his role in the revolutionary introduction of adversary trial."  (p. ix).  Garrow's skills at cross examination were legendary, and he helped to create rules of criminal procedure meant to protect the rights of prisoners.  According to Hostettler and Braby, "adversary trial was given constitutional recognition in the United States Bill of Rights and spread to all countries influenced by the common law."  (p. xi)  Garrow eventually became a member of Parliament, Solicitor-General, Attorney-General, and a judge, but was mostly forgotten after his death.  

Drawing mainly upon his career in the Old Bailey, Garrow's Law ran for three series of four episodes each.  The BBC recently decided not to renew it for a fourth series, which is a shame because I found it to be well acted and compelling.   The producers of the series drew upon the Old Bailey's archives for their inspiration, a process that is documented in this short film about the making of the show.   The Garrow Society website also offers information about his life and work.  All are well worth checking out.