Professional Association versus Trade Association

Would the AMA be more like a trade association if they suddenly began admitting drug company representatives as AMA members with the full membership rights to vote, be committee members and become members of the executive board? Why not? It’s the “American Medical Association” not the American Doctor’s Association, right? So anybody interested in medical things ought to be able to join, right? So why can’t drug reps and medical supply reps join that organization? Interestingly, the doctors have begun to see the ethical problems posed by their longtime close relationship with the drug company reps, and painfully begun a separation process (see NY Times article from 2007).

Would the AALL be more like a trade association if we changed our bylaws so that vendor reps had all the membership rights that librarians have? Would the antitrust issues that the specialist lawyer spoke about, concerns over price-fixing and rigging markets become more of a concern with an association if the consumers as well as the providers were full members of the association? Maybe we already have become more like a trade association and just didn’t notice.

I don't know if we need a scandal or some big books to wake us up to the problems that we have between law librarians and our vendors and publishers. We depend on each other, just as doctors and drug companies do. But there needs to be a bit more arms' length, and bit more care about the appearance, as well. And it gets difficult to maintain both the arms length and the appearance when everybody is a member of the same association and everybody is on the decision-making, even when they can be pressured, subtly or not, by their employer, against their own better judgement.

I like and I respect as individuals many colleagues who work or have worked for vendors. It does not make a librarian (or non-librarian) a bad person to work for Lexis or Thomson-West or any other vendor or publisher. But I can see very easily that if I worked for one of these outfits and then I were on a committee at AALL, and my boss came to me to lay some pressure on me about an outcome, I might feel a lot of concern about my job and my family! How much more would this affect our association if the position were on the executive board?

RESPECT: Musing on AALL Members Forum, 2012

I’ve been thinking about the members’ forum at this year’s AALL. There were a couple issues that came up, seemingly disparate.

1. The Bylaws change
This item was introduced gingerly, with the moderator and executive board members obviously waiting for a bunch of angry responses. They had 2 former presidents of the association all ready primed with prepared statements about why it is such a terrific idea and why it’s the future of the association. They sort of didn’t know what to do when they received very little feedback from a fairly silent audience. I stood up and asked them if they would consider issuing any position statement to explain in more detail than had yet been given the reasons for this dramatic and sudden move. The answer was not exactly a position paper, but FAQs, which seems to be the preferred way to communicate with membership these days. People have lost track of how many changes have already been made to the membership category that includes vendors, and there is actually a great deal of confusion right now about what membership rights vendor-employed AALL members already have, so I look forward to the FAQs. But I still do not understand why we are rushing the way we are doing, and I really feel that the process is being non-transparent and procedurally unfair. I might feel less concerned about the content of the bylaw if the process were less stink-intensive!

2. The AALL takeover of the highly successful PLL Summit
This item was brought up by Steve Lastres, the outgoing chair of the PLL SIS. He was very upset with the change. He felt, and probably represented the feeling of many PLL members, that the SIS had worked long and hard to build up a successful program. And now that it was hugely successful, AALL wanted to take it over. (The author has removed part of this post. She replaced it with the following sentences. BMcK 8/14/12). The moderator in replying to Steve's comments made a statement that could be easily misconstrued. In the heat of the moment, disgruntled, possibly angry listeners could easily mis-hear the statement and believe the statement was making things much worse and more outrageous than Steve's original comments. It was simply an example of making a response off the cuff into an emotionally charged environment.


But there is something that ties these apparently unrelated items together. That is the lack of response and respect for membership. Perhaps I am being too sensitive, but I think that there is a real problem here with the Executive Board and the staff at Headquarters understanding that the membership feels that these decisions and the way they are being made and communicated:

a. lacks any sense that this is a membership organization, run for the members, with membership input, for the benefit of members;

b. lacks any opportunity for members to give input or to even hear in a timely fashion about the decisions. I still say that putting the board books out for member information is NOT transparency! Look at the ALA website and see what they are doing for membership information… All you have to do is just cut and paste to put that stuff out on the website. Or maybe abandon the boardbook concept entirely and use the web minutes concept for the board, who might prefer that, anyway!

c. There is a sense that there is impatience with the slow and clunky workings of democracy. It’s messy and takes time to bring people along. But that’s what it takes – you have to take time to educate people and let them think about the issue. People are not stupid, and they are not malevolent. They need to understand the issue, and if you treat them with respect, usually, they will come to a reasonable opinion. It may not be the same as your own, but it will not be a lunatic position.

d. The lack of respect for members who are not on the executive board, or not in the “inner circle” has a lot to do with the fact that AALL may be losing members or that current members are putting their energies into other associations. I am starting to think that way myself. And that is pretty darned sad.

I think ALA or SLA could very easily win a sizeable chunk of PLL members right now. They are pissed, and I think rightly so. There may be good reasons to centralize the Summit. But you don’t just come in and seize programming that an SIS has worked to build up til it’s the best educational programming that ran at the meeting. There was a reason that it was the best stuff there for the private librarians, and that was because it was sponsored. If they walk out, to form a new association, I might just go with them.

Here is a link to Aretha Franklin singing RESPECT! sing it, woman!
(the image of Aretha Franklin is from http://www.aretha-franklin.com/, and looks to be from the day she sang for President Obama's inauguration in 2008.

Same Sex Marriage News

Viet Nam Government Considering Legalizing Same Sex Marriage

Viet Nam's first gay pride parade will be held in Hanoi on August 5. And even long time gay rights activists in the region were stunned when the Vietnamese government announced it was considering legalizing same sex marriage. Whether the law will ultimately pass remains to be seen.

The Justice Ministry will consider opinions from the public along with government agencies before submitting its draft proposal to the National Assembly next May on whether to recommend same-sex marriage or some other type of legal recognition with rights. Then, it must be approved by a majority of parliament.

(from the NPR story linked in the title for Viet Nam section)

But just the consideration of such a law in Viet Nam is historic in the Asian region, where there is little support for gays and lesbians. The NPR story at the link above gives a thumbnail sketch of the status in various Asian nations, with generally low support, especially in the Muslim nations of the region. But even Thailand, which, to casual visitors may seem to have a vibrant gay/lesbian/transgender life in the cities, actually provides very little beyond the tourism areas where these activities thrive. Viet Nam’s Communist government is distinctive in repressing religious expression that might otherwise press back against the measure.

Maine

Maine will have a ballot question in November, 2012, asking voters
"Do you want to allow the State of Maine to issue marriage licenses to same-sex couples?"

And of course, money is pouring into the state from supporters and opponents.

Washington (state) Referendum 74

But not as much, I think as is pouring into Washington state. In February, the legislature there passed a law legalizing same sex marriage. But opponents collected enough signatures to put the decision to a referendum ballot vote, Referendum 74. The largest single public gift so far has come from Amazon’s Jeff Bezos who gave $2.5 million to help support same sex marriage after receiving an e-mail request from one of Amazon’s earliest employees (no longer working there)!

Democrats Include Same Sex Marriage in Party Platform
And the Democratic National Party seems poised to include a plank for the party platform in support of same sex marriage!

Student Debt Discharged

Many students today take out large loans in order to finance their educations and then spend years paying back those loans.  Some commentators have likened this phenomenon to indentured servitude.  Whether it's smart to borrow to pay for education, undergraduate or graduate, has been the subject of much discussion.  Student loans are not normally dischargeable in bankruptcy (see 11 U.S.C. 523(a)(8)(B)) unless the obligation imposes an "undue hardship" on the borrower or his dependents; the statute doesn't define "undue hardship," and a number of courts have applied the test articulated by the United States Court of Appeals for the Second Circuit in the Brunner decision.  In In re Brunner, 831 F.2d 395 (2d Cir. 1982), the court required the petitioner who sought to discharge student loans to prove that she couldn't maintain a minimal standard of living if she had to repay the loans; demonstrate that her financial position was unlikely to improve for a significant portion of the loan repayment period; and show that she had made a good-faith effort to repay the loans.  This standard is rarely met, and most people with student loans do not get the fresh start they seek.

However, Judge Michael Kaplan of the Bankruptcy Court of the Western District of New York ruled recently in In re Bene that the facts presented in that case were so compelling that they warranted a discharge.  Unfortunately, the case probably doesn't offer much hope to law students trying to discharge their student debt because the result is very fact specific.  Donna Bene, the petitioner, is sixty-four years old, works on an assembly line, earns $11 an hour, and recently got a layoff notice.  The judge noted she had no hopes of a higher income and "no option that she might choose in order to improve her ability to repay $56,000 in student loan debt."  She had never finished her college degree and paid off what she could of her debt.  She supported her elderly parents. Judge Kaplan noted that she hadn't made mistakes or bad choices.  The decision is extremely narrow, and it is unlikely most other debtors would present such a compelling justification for a discharge of their student loans.

Regulatory Capture and Professional Associations

I do not mean to hurt the feelings of long-time friends and colleagues, with whom I disagree on this point about the bylaws change by that last OOTJ post. I apologize, though I will not remove my earlier post.

But I do want people to stop and think deeply about what would the future face of AALL look like, what would its activities be, if we truly changed the bylaws, in the way being proposed?

Maybe folks who say they are too busy to have anybody spend much time doing AALL business because they are a profit-making organization, are telling the honest truth. But they would also say that if they wanted to take control of an organization that has haunted them...

Does the phrase ‘regulatory capture’ mean anything to you?

We ain’t actually doing much regulatory function, to tell the truth, here in AALL, and we should be ashamed of that fact.

We hold ourselves out to the world as so called professionals.

And one of the things we as professional law librarians are supposed to be good at, is understanding the markets for legal information.

We are supposed to be the folks who speak up when the GPO is under-funded.. And we do that OK, mostly, thanks to our wonderful Washington office, and the many librarians who will respond to the alerts that go out and contact their senators and representatives about this issue.

We are supposed to be the folks who speak up when there are laws proposed that affect the rights of all information users to access the Internet or government information, or other information issues. And again, thanks to our AALL Washington office, and members, we do pretty well, along with the members of ALA and SLA on these issues. We reacted to a number of issues lately, such as SOPA and PIPA, and ACTA, for instance.

But, we have been falling down in a major way in speaking up for consumer rights. ALA has been a leader in this area, lately, and I have been admiring them, a great deal. AALL, meanwhile, is mired in silly arguments over antitrust that seems more and more specious as we watch ALA and other library organizations of various sizes move ahead where we should be as well.

And I can’t help but feel that this change in the bylaws is one of the major nails in the coffin for this association that has been getting weaker and weaker as I’ve been a member.

I think I would be less suspicious of the change in definition of “active members” if the change had not been discussed in such a non-transparent way. I am sorry, but it’s darned hard for me to envision way that Board Books are a handy and open way to notify the general membership of ANYTHING that the Executive Board is discussing. I had never heard of Board Books until very recently... And I find them difficult to locate on the AALLNet website. I think it’s difficult to locate any topic in the Board Books. Please understand that discussion of a single agenda topic may cover more than a hundred pages. So, if you are trying to locate a particular discussion, it is not easy, and it’s not a good way to make board action transparent.

Are we on the verge of giving our association away to the profit-seeking corporations whom we are supposed to be balancing on behalf of our employers? If we do not speak up on behalf of legal information consumers, who else is left? I suspect that calculation may already have been done in some minds. Let us keep it in our own minds and stay true to our duties as legal information professionals.

Selling your association for a mess of pottage

Excellent post by Joe Hodnicki at Law Librarian Blog, about the AALL Executive Board proposed bylaws change.

One of my big questions is, if this bylaws change to broaden the definition of “active membership” is such a great development, why was it being slithered in such secrecy? Would they have actually announced it to the membership in a realistically transparent way if Michael Ginsborg had not stumbled upon it in the Board Books and said something on this Caucus list? And thanks to Gail Daly for speaking up as well.

I am not completely against the idea of vendor membership, but I am deeply troubled by the way this has been brought in... and it is making me more and more suspicious of the motives and future plans for the bylaw change. The more I think about this the more uneasy I become....

Our association already has a great deal of trouble separating the interests of our user groups -- the Consumers of legal information -- from the its own (or perhaps HQ's own) interests in deriving revenue from vendors, having comfy relations with vendors, and not antagonizing vendors! They have truly lost their credibility with me as far as INTEGRITY goes. Sold for a pen and a plastic cup.

The illustration is from Wikimedia Commons, originally from the 1728 Figures de la Bible, illustrated by Gerard Hoet (1648-1733) and others, and published by P. de Hondt in The Hague.

AALL changing definition of Active Members!

AALL members have been changing their duties. Firm librarians as well as law school librarians have changed their titles and their duties, sometimes entirely dropping more traditional librarian sorts of duties. We thus have law firm marketers, competitive intelligence workers, and academic deans who still identify with AALL and would like to still be active members of the association. Headquarters staff had asked for a change in the bylaws because the old definitions no longer fit current reality.

According to a conversation with Darcy Kirk, the Bylaws Committee first offered an amendment that tightened the definition of an active member. The Executive Board sent them back with directions to broaden the definition, instead. And did they broaden it! The new definition is so broad that it would extend the rights to vote and hold office to any employee of a legal publisher or other company that has consistently violated basic consumer protections in our Association’s Guide to Fair Business Practices. Some members are concerned that a significant ethical problem would unfairly burden such employees elected or appointed to offices in which their activities could directly or indirectly influence AALL policy or action on consumer advocacy, or could reasonably sustain the perception of conflicted influence. Of course, the issue remains debatable. In fact, our colleagues debated a similar issue of conflict of interest in 1987. The debate ended without resolution, but such acrimony accompanied it that repeating the controversy now seems to concerned members no small risk that our Board can and should avoid. The Board would effectively confer its imprimatur on the expanded definition of active definition by approving it in its present form for the membership’s vote, even though some members do not agree that the proposal should carry this de facto seal of approval.

As a result, a number of calls to various Executive Board members have been made. It appears that the Board still plans to vote on the Bylaws Committee change at its meeting this July. They may accept the proposal as is, or may change the language themselves, table it for later consideration, or send it back to the committee for more work.

Darcy points out that a change to the Bylaws this close to the annual meeting means that the 60-day waiting period would prevent any membership vote at the 2012 AALL meeting. So, if the Executive Board votes to accept the Bylaws Committee proposal, there will be a 60-day waiting period for members to consider the change. Members will have the ultimate say on whether to accept any change! Pay attention!

There will also be an opportunity for questions at the Business Meeting and Members' Forum on Monday, July 23, at 4:15 PM in Hynes Convention Center Ballroom B! If you will be at the annual meeting, and have questions, you can e-mail your questions ahead of time to ambusmtg@aall.org. The deadline for submitting a resolution passed on July 2, sadly.

Here are some talking points:

• Members were not well-apprised of the initial proposal to change the bylaws at the Board's March, 2012 meeting. Relying on the Board Book to tell general membership about important issues is NOT the kind of transparency members reasonably expect of the leadership!
• Members were not adequately informed of the request to the Bylaws Committee to broaden the active membership definition that took place at the March, 2012 meeting. Ordinary members should NOT have to dig through the Board Books and sift through 149 pages in them to find information that bears on ALL of our interests! This DOESNOT satisfy a reasonable expectation of transparency, but invites a suspicion, however misplaced, that the Board has tried to sneak a change past the membership.
• This has been a very divisive and rancorous issue in the past – when the issue of vendor membership was raised more than 20 years ago in 1987, it was a very bitter, emotionally charged town meeting.
• Changes to the Bylaws require a 2/3 approval of the full membership. An active minority will spare no procedural effort to defeat the proposed change in its present form. No one wants an avoidable conflict. The Board can still has means to avoid precipitating a conflict that otherwise seems inevitable..

They never give up! ACTA... now CETA

The EU sounded like they had some sense about IP and the Internet when they passed on the Anti-Counterfeiting Trade Agreement (ACTA). Well, maybe they just knew a loser for PR when they saw one. Now comes Michael Geist, Professor of Law at Ottawa University to explain that the EU thinks they can slither around the dark edges and sneak a different trade agreement, the Canada-EU Trade Agreement(CETA). According to Prof. Geist, who provides in this blog post a handy section-by-section comparison, the two agreements are eerily similar. I hope EFF and its Canadian and European counterparts are paying attention! Ahoy out there!!

Law Reviews: Rest in Peace?

Walter Olson, the always provocative legal commentator, has struck again with an article in The Atlantic.  Entitled "Abolish the Law Reviews!", the article uses the Harvard Law Review to illustrate the plummeting circulation and stunning irrelevance of even the most prestigious of the academic law reviews in the twenty-first century.  Olson touches on the arguments for law reviews moving away from print and becoming digital publications--cost savings plus publishing articles as soon as they are ready to be published--but his real "question is whether the law review model of content--with its long lead time to publication, editing by students, and format that's resistant to after-publication editing--yields enough scholarly gems to deserve surviving in its present form even online."  Olson answers this question in the negative, stating that "the page volume of law reviews has proliferated beyond reason with no corresponding rise in compelling content."   He makes the point that "talented legal academics are headed ... to blogs and other short-form online publications."    The reason for the shift is obvious according to Olson; such publications are distinguished by their "clarity, concision, relevant, and wit, and [avoid] pedantry and mystification."  Commentators can "get their arguments gefore an intelligent audience in hours rather than weeks or month," thereby giving them a voice in ongoing policy discussions.

Before he relocated, Walter Olson was a regular user of the Pace Law Library.  He is a senior fellow at the Cato Institute, the well-known conservative think tank.  He blogs at Overlawyered, and he is the author of The Litigation Explosion and Schools for Misrule:  Legal Academic and an Overlawyered America.  A quick glance at the latter book will tell you Olson is no fan of American legal education! 

Academic Elitism - William Henderson in the ABA Journal

The July, 2012 issue of the ABA Journal has a great cover story, "The Pedigree Problem" by William D. Henderson and Rachel m. Zahorsky. Henderson, a professor at Indiana University, has been an interesting thinker about the future of legal education. Here, he is talking about how brand bias and elitism in legal hiring is choking off innovation and change in the legal academy. It's a great read!