State Courts in Crisis

The New York Times ran an editorial on November 25 featuring a speech by Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall to the City Bar of New York. It will not come as a surprise to many readers of OOTJ that state courts have had their budgets slashed, but the editorial does an admirable job of surveying the nation, drawing a grim picture, indeed, of what state budget cuts have done. The courts, say Justice Marshall, are at the "tipping point of dysfunction." The editorial continues:

in too many cases, the cuts are already impeding core court functions, forcing court closures, shortened court hours and a tangible narrowing of access to justice.

New Hampshire, for example, suspended civil and criminal jury trials in 8 of 10 county courts for one month each between last December and June. In California, state courthouses are closed for business on the third Wednesday of every month. Iowa is planning to close all state courts for several days before the state’s fiscal year ends on June 30.

More than two dozen states have imposed court hiring freezes, and 11 states have put staff on unpaid furloughs of varying length, according to the National Center for State Courts. Court staff, including clerks, court interpreters and security personnel, have been eliminated or reduced. In a financially driven loosening of security in Maine, for instance, magnetic security machines at local courthouses are no longer regularly manned. In Alabama, says the immediate past president of the Alabama Bar Association, Mark White, fiscally driven “compromises in service and security are creating a situation ripe for disaster.”

In Georgia, it can take 60 days to hold a hearing in a temporary custody case that used to take just a few weeks. In other states as well, spending cuts have led to fewer court dates available for hearing and trials, creating a growing backlog of cases. With priority given to serious criminal matters, there is a looming threat to the civil justice system, and its ability to vindicate people’s rights, and to foster economic growth and stability by enforcing business contracts in a timely manner.

The brunt of the budget cuts has fallen on the high-volume courts hearing family and juvenile matters, misdemeanors and small-claims disputes, notes the American Bar Association. Some of society’s most vulnerable people, including battered women, abused and neglected children and victims of vandalism and petty theft, turn to these courts for protection and justice.

There are factors apart from budget problems undermining the vitality of state courts, not least the advent of expensive judicial election and retention campaigns fueled by special interest money. And no one, including Chief Justice Marshall, suggests that state courts should be spared from having to share the burden at a time when cuts to health care and public education are under consideration in nearly every jurisdiction.

But, at some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.

In a press release dated July, 7, 2009, the National Center for State Courts issued the results of a survey showing that all states' and territories' 2010 budgets slashed the budgets for courts. Court administrators were responding by considering hiring freezes, consolidation, changes in venue and jurisdiction rules, and use of technology to increase efficiency.

The survey of 54 states and territories found that for Fiscal Year 2010, courts in 27 states have had their budgets reduced, and 12 additional states are anticipating budgets cuts in coming weeks as their Legislatures finalize 2010 state budgets. Ten state court systems have had their budgets reduced by at least 5 percent. To review the survey results state, go to www.ncsconline.org/wc/budget/activities.asp.

“The national recession is having a profound impact on how Americans gain access to justice,” said Stephanie Cole, Administrative Director of the Alaska State Courts and president of COSCA.

With state revenues in a free fall, the NCSC and COSCA conducted the survey to learn how state courts are coping with, and planning for, the potential of the most severe budget cuts in decades.

Budget cuts are taking shape in a variety of ways:

* 28 state courts have imposed hiring freezes. 13 state courts have frozen salaries
* Seven states have encouraged judges and staff to accept salary reductions – or have imposed salary reductions
* Six states have mandated furloughs of court staff
* Six states have reduced court hours.

A glimpse of what courts across the country are experiencing: In Delaware courts placed a hiring freeze on all positions except security; Florida courts have laid off 280 employees, out of its 3,100 person workforce; Minnesota has cut court hours and public counters are closed a half day each week in some districts; Iowa is considering reducing administrative districts, merging internal court operations and creating more flexibility in allocating judges; in Nevada the Governor has recommended cutting employee salaries by 6 percent, eliminating merit increases and requiring all employees take 12 furlough days a year.

But of course, as in Massachusetts, state budgets are being trimmed continually through the year, as governors see revenues in freefall during a profound recession. So searching the Internet for the phrase turns up many news stories around the country of new budget cuts and crises in state courts resulting from the new budget cuts. I thought the Times editorial was a powerful statement. It's a terrible thing to choose between fabulously deserving and needy administrative agencies in budget allocations. But this was a very powerful statement. Of course, libraries are another important group that are more needed by the population at large as the economy tanks. And all the social service agencies can make the same claims, I suppose, as well as police, fire and hospital, ambulance, basic infrastructure maintenance.... I guess it all goes on and on. I am glad I am not in charge of budget allocation in any state!

This decoration of Themis holding the scales of justice is from the FBI website at http://www.fbi.gov/publications/leb/2005/june2005/page30.jpg

tiny Thom.as: God Bless Us Every One!

Well, it's not really like in Charles Dickens' A Christmas Carol, and Tiny Tim is certainly different from tinyThom.As, but I just like the name so much, I couldn't resist.

tinyThom.as is a new feature from Library of Congress. If, like me, you have ever tried to create a link to Thomas, their wonderful database of Congressional bills and public laws, you have been frustrated to discover that Thomas cannot create a permanent link. It's a relational database and your link is only temporary to the document. You can only give your reader a link to the database and a search to perform to retrieve the same document. tinyThom.as fixes that. (though why they didn't just create a permalink feature, I don't know). Here is the explanation given:

tinyThom.as is an online tool for preserving the webpages served up by http://thomas.loc.gov for documents related to the U.S. Congress. tinyThom.as generates full-size permanent URLs for THOMAS pages, and also generates short URLs which redirect to those long URLs in order to make them easy to pass around via Twitter, Email, Facebook, etc. We've also provided a public API so that you can generate tinyThom.as URLs in your web applications.

Why is tinyThom.as necessary?

Try this link: http://thomas.loc.gov/cgi-bin/bdquery/D?d111:2:./temp/~bd5CYL::|/bss/|. It worked if you visited THOMAS on November 7, 2009, but it won't work for you now. THOMAS serves most of its results using these links which shut off over time, and only presents permanent links for few of the many kinds of content it serves.

How does tinyThom.as work?

When you send tinyThom.as a URL, it quickly loads the page from the Library of Congress (before the link expires) and then examines the content of the page to determine what search criteria it can use to bring you back to that same page. For example, for a Bill Summary and Status page (example), it finds the bill number and the congressional session, and then generates a URL which searches for just that information. At the same time, it makes a tinyThom.as URL, like http://tinythom.as/0fjZ which you can use to pass the link around without dealing with the long THOMAS URLs.

What kinds of content does tinyThom.as understand?

Bill Summary and Status, like this page.

Bill Text, like this page.

Nominations, like this page.

Congressional Record pages, like this page. (We hope to extend the code to allow it to bring you directly to the remarks in the record, rather than just the list of all remarks on a given page of the Record.)

Some Committee Reports, like this page. Some committee reports are formatted differently, and those don't work yet.

Congressional Record Daily Digests, like this page.

In the future we hope to also process additional content from Thomas; please drop a line at with your requests or if you find a link that doesn't work right.

Integration with OpenCongress and GovTrack

OpenCongress.org and GovTrack.us provide ways for users to discuss legislation, look up bill text and status, learn more about their members of Congress, etc. tinyThom.as makes it easy to find the pages on these sites which correspond to bills in Thomas:

* Put "/oc" at the end of a tinyThom.as URL, like this: http://tinythom.as/8p9O/oc and tinyThom.as will direct that link to the page on OpenCongress, if it exists.
* Put "/gt" at the end of a tinyThom.as URL, like this: http://tinythom.as/8p9O/gt and tinyThom.as will direct that link to the page on GovTrack, if it exists.

In both cases, if the bill doesn't have a good page on the other site (or it's a tinyThom.as link pointing at something other than a bill), it'll just take you straight to Thomas.

About the code

tinyThom.as was written mostly by Asa Hopkins, an open source developer and political activist, with help from others (thanks to the open source code). It is heavily based on the open source code written by Robby Russell for http://rubyurl.com, and the code for tinyThom.as is also open source and available on Github.

Thanks to Chris Griffin for providing the design of RubyURL that tinyThom.as is based on.

Thanks to the folks on the Sunlight Labs wiki for the idea to build this application.

Decorated with an illustration of Tiny Tim and Bob Cratchit from Charles Dickens' A Christmas Carol found on http://blog.pennlive.com/thrive/2007/12/a_dickens_christmas_toast.html

Independent Pacer Survey for Everyone!

The good folks at Stanford Law Library have put together an independent survey on Pacer, which you do NOT have to have a Pacer account to take. They explain:

The Administrative Office of the U.S. Courts is in the midst of an assessment of PACER. This PACER User Satisfaction Survey will only take a few minutes. We plan to submit the responses we receive below to the A.O. for their analysis and improvement of PACER.

Take the independent Pacer Survey:


Here

Xyggy?

Rich Leiter twittered Xyggy legal, a new beta search engine for finding similar cases on the web. Xyggy offers more than just general legal searches, so you can reach Xyggy Patent, which covers patents from 1976 onwards. Xyggy Articles searches through archived news articles of the New York Times from 1987 - 2007.

Xyggy Legal covers:
Supreme Court decisions in US. Reports volumes 1 - 544,
Federal Circuit Courts of Appeal in F.2d, volumes 178 - 999, and F.3d vol. 1 - 491
They state that they are in beta, and that they hope to complete the currently spotty coverage of recent years as they go along.

Xyggy's home page explains the Item search as follows

the fundamental idea:

Xyggy’s paradigm for search is based on the fundamental idea that search should be item-based not just text-based
In everyday life, we constantly search for and find things (items). Xyggy is bringing item search to our digital lives.

What are items?
Documents, web pages, images, music, publications, medical records, proteins, news articles, people profiles, movies, products, sounds, newswires, patents, books, customer profiles, legal cases, resumes and many more are all examples of items.

What is item search?
Finding items with a query of one or more items.

The difference
A text search returns web pages or documents containing the keywords in ranked order. Item search returns similar items in ranked order.

Text search is fine, to a point, but we live in a world of items not just keywords. Item search provides substantial advantages and additional information over keyword search. Item search is a more natural way of finding things.

Why query with one or more items?
A query with more than one item allows Xyggy to discover what the query items have in common and returns better results.

I believe they are searching not only the text but also the metadata. They have carefully selected a few databases that are made available by the government. They have also purchased a dataset from the New York Times. All three already have metadata added. Xyggy searches these in addition to the full text of the documents. This is a very interesting development. I will be interested in testing what the engine can do and will be interested in hearing back from other librarians and other users. What an interesting way to advance! We have Google Scholar's legal button and now Xyggy! Xyggy Legal went live with a demo on November 16!

The decoration is the comic strip character Ziggy, by Tom Wilson. Tip of the OOTJ hat to Rich Leiter!

Public Law School in Massachusetts?

Massachusetts is one of only six states without a public law school. I suspect it is a combination of the fact that there are so very many private law schools here, and that (at least some of them) have lobbied so assiduously against the idea every time the issue has come up. I work at one of the schools that certainly has lobbied against the idea. And I will try to present an even-handed report here despite that fact.

The Boston Globe just reported that a panel of the University of Massachusetts trustees approved the first step of a plan to acquire an unaccredited private law school, Southern New England School of Law, and recapitalize it as a public law school. This plan has been proposed several times over several years. Southern New England (SNESL)is not a bad law school, but it is seriously under-capitalized, and I think this is the most serious barrier to its being accredited by the American Bar Association. Despite huge efforts by various creative and innovative librarians, the library, as well as the rest of the school, requires a big infusion of cash to meet ABA standards, if what I hear is correct. According to the Globe article, the current plan promises that the new arrangement will not be a financial drain on the University of Massachusetts, or cost any taxpayer money. The graduates of SNESL had the second-lowest graduation rate for first time takers on the last Massachusetts bar exam. This is actually not a terrible indictment because, as a law school not accredited by the A.B.A., they are not usually getting the best students -- the best law students are tending to choose the accredited law schools first. So, take that figure with a grain of salt.

Southern New England, a 235-student school that lacks national accreditation, is donating its campus and assets to the state, and its officials hope UMass will be able to take the school to a higher level of achievement.

With UMass backing, the law school would accept students starting in fall 2010. It would be able to increase its enrollment to 559 by 2017; generate more revenue to invest in its students, faculty, and library; and raise graduates’ low passing rates on the state bar exam - issues it needs to address to receive American Bar Association accreditation, UMass-Dartmouth’s chancellor, Jean MacCormack, said.

MacCormack told the board the acquisition would not cost taxpayers any money, a concern raised by opponents. Investments made in the school would come from tuition and fees, she said. According to financial projections, UMass-Dartmouth would also remit $1.3 million in tuition to the state by 2017 and build a $10.2 million cash reserve for the campus by then.

“Here’s an institution that for argument’s sake doesn’t meet all of the standards of our university,’’ trustee Victor Woolridge said. “This is an opportunity. You buy low and grow.’’

A similar plan was shot down four years ago by the Massachusetts Board of Higher Education after UMass trustees approved it. One difference in the current effort is that the public law school would return a portion of tuition revenue to the state. (snip)

The UMass board’s committee on administration and finance will take up the issue Dec. 2. The entire board will vote Dec. 10, before the issue goes to the Board of Higher Education.

The most recent proposal looked as though it was going to sink again. A completely disinterested blogger at AbovetheLaw wrote that he opposed the idea of a public law school in Massachusetts, not for any of the reasons raised in the 2004 debates, but because the employment market for lawyers was already super-saturated in the state, and what the hell were we thinking about, starting up a new law school, anyway? This seemed to be a pretty strong argument, and was carrying the day for a while. But then, the Chronicle of Higher Education came out with its annual report on the compensation of university presidents. As last year, the president of Suffolk University, David Sargent, shows up with the highest compensation in Boston, (this year, he dropped to the second highest in the country). But even better, the university trustees voted to extend the 78-year-old president's contract for another five years. The story ran as a local story, in the B section, and was commented on. But the Globe ran it a second time, two weeks later on its front page, with a beautiful photograph from inside the fifth floor of my library (how did they get it?!)(and doubly interesting, the online link only shows the headline and graphics that went with the story, not the story itself or the photograph or the comments). That was the only beautiful thing about the article. The rest was a detailed, outwardly even-handed coverage that went on for 3 pages about Sargent's pay and new contract, looking at the history, the explanations offered by the Trustees, and tearing those apart. They also interviewed disaffected alumni. I happen to know that they interviewed happy alumni as well, but did not include those quotations in the article. The article ran both in print and online. The online version of course, makes it easy to add comments and BOY! did they get comments. Many of the comments were from more disaffected alumni. I cannot help but think that the timing and prominent placement the second article had a profound effect on the vote. But perhaps I am displaying wishful thinking. Maybe the deciding factor is the promise that the new public law school won't cost either the University of Massachusetts or taxpayers anything.

I have to say I do have mixed feelings... The Globe article linked above promises a basic tuition of $23,500, which would be cut in half for students who would commit to public service jobs for four years post-graduation. That would be a wonderful boon to law students who now stagger under huge debt loads. It would allow people to pursue public service jobs in a way they really struggle with now. Even with the new student loan provisions with caps on repayments based on income and ending repayment after so many years, with shorter time spans for public servants and a lower percent of income as well, it can be a huge struggle to take those public service jobs. And I'm enormously frustrated with the trustees and the president at my university who seem to have the public relations sensitivity of oatmeal.

But I certainly do not believe that upgrading Southern New England School of Law is going to be no cost to either U. Mass or to the taxpayers of Massachusetts.

Google enters the legal search engine fray

See here to see a fascinating post on the Google Blog. The Google engineers are pioneering a new radio button on Google Scholar that allows the user to search by legal topics or by case names. They include a rather graceful statement about "standing on the shoulder of giants:"

We would like to take this opportunity to acknowledge the work of several pioneers, who have worked on making it possible for an average citizen to educate herself about the laws of the land: Tom Bruce (Cornell LII), Jerry Dupont (LLMC), Graham Greenleaf and Andrew Mowbray (AustLII), Carl Malamud (Public.Resource.Org), Daniel Poulin (LexUM), Tim Stanley (Justia), Joe Ury (BAILII), Tim Wu (AltLaw) and many others. It is an honor to follow in their footsteps. We would also like to acknowledge the judges who have built this cathedral of justice brick by brick and have tried to make it accessible to the rest of us. We hope Google Scholar will help all of us stand on the shoulders of these giants.

Tip of the OOTJ hat to my wonderful colleague, Suffolk Professor Marie Ashe, who e-mailed this link to me!

Modified GoogleBooks Settlement Offered - Justice Department Considering

The Wall Street Journal reports that the Authors Guild, the Association of American Publishers and Google have re-submitted their revised Settlement Agreement for Google Books to U.S. District Judge Denny Chin in New York. The Department of Justice, which had responded to the original Settlement with a list of concerns in a Statement of Interest, is reviewing the new revision.

The revised pact submitted late Friday would allow Google to distribute millions of digital books online, but would cut the number of works covered by the settlement by at least half by removing millions of foreign works.

Yet the issue of whether it is fair for the settlement to let Google distribute books whose legal rights owners haven't been identified—known as orphan works—is still drawing criticism.

People familiar with the matter say the Justice Department remains concerned that the fact the settlement gives Google immunity from lawsuits related to orphan works may be anticompetitive. The department is expected to file its reaction to the modified agreement by early next year.

A spokeswoman for the Justice Department said the department is reviewing the revised agreement and its investigation into the settlement is "ongoing."

Google, the Authors Guild and the Association of American Publishers designed the revised settlement to mollify the Justice Department and other critics who blasted the original settlement as overly broad and anticompetitive. Under that settlement, announced in Oct. 2008, Google would gain permission to distribute and sell millions of digital books online in exchange for sharing revenue with rights holders.

The new settlement keeps the same structure, but makes a number of changes, including adding more pricing options to address concerns about potential price-fixing and clarifying what sort of services Google can offer related to digital books.

It also aims to address some of the concerns about orphan works by establishing an independent fiduciary to look out for the interests of those rights holders and specifying that revenue collected from those works won't flow back to other rights holders—a move aimed at addressing criticism from the Justice Department.

The modifications were defended by Richard Sarnoff, co-chairman of Bertelsmann Inc., a holding company of publisher Bertelsmann AG, who negotiated the settlement. He said the parties addressed the competitive concerns around orphans by writing into the settlement that Google must act as a reseller of those works to any third party. Google had previously announced its intention to do so.

"This settlement won't determine the digital future of publishing," Mr. Sarnoff said. "It's about reclaiming publishing's past in a way that would be impossible to do in the U.S. in any other manner. And it will benefit scholars, readers, and the rights holders of these books."

But critics say the move doesn't resolve one of their main concerns: that the agreement gives Google exclusive immunity from lawsuits from unknown rights holders.

The notion that the company could distribute those works without the threat of getting sued by rights holders has drawn heat from a broad group of critics, including Google competitors such as Amazon.com Inc., which argue it would be risky to invest in scanning books without a promise of similar immunity.

"I don't see how this fixes anything about orphans," said Gary Reback, an antitrust lawyer who co-founded a group of companies and organizations including Amazon and Microsoft Corp. that is fighting the settlement, in an interview Sunday.

the article, by Jessica E. Vascellar and Jeffrey A. Trachtenberg, notes that the parties hope to set a hearing on the settlement sometime in February, now. The tone taken in the WSJ article actually seems much harsher on the Settlement than the Justice comments warranted. The original tone of the Justice comments were actually very supportive of the GoogleBooks Project, and simply raised issues with the Settlement. The Electronic Frontier Foundation (EFF) offers a very nice Readers Guide to the Google Book Settlement, currently dated October 31, 2009, with legal analysis by their senior staff attorney, Fred Von Lohmann. But, to their credit, they also include a link to New York Law School's Prof. James Grimmelmann's analysis of the Settlement. They also include varying opinions and commentary from librarians Paul Courant at the Univerisity of Michigan, who basically supports the Project and Prof. Siva Vaidhyanathan, who opposes it. We can hope that the nice folks at EFF links will update their commentary, but you can certainly link to the original materials, which show you the changes in color.

Educational Entrepreneurship

My husband pointed out this article in yesterday's New York Times. There are many teachers in his family, and he thought it was interesting to learn that

[T]thousands of teachers are cashing in on a commodity they used to give away, selling lesson plans online for exercises ... While some of this extra money is going to buy books and classroom supplies in a time of tight budgets, the new teacher-entrepreneurs are also spending it on dinners, mortgage payments, credit card bills, vacation travel and even home renovation, leading some school officials to raise questions over who owns material developed for public school classrooms.

There are philosophical issues as well as ownership issues. One professor of education quoted in the article feels that "online selling cheapens what teachers do and undermines efforts to build sites where educators freely exchange ideas and lesson plans."

The article doesn't explicitly raise the issue of work for hire, but I think it should have been mentioned. Teachers are employees, and one could argue that the work they do in the course of their employment belongs to their employers. The Copyright Office has a useful circular on work for hire, but it doesn't mention teachers, and one can also refer to section 101 of the Copyright Act for a definition of work for hire. It's a slippery concept, however, and the law is by no means settled. I have always believed that I hold the copyright in the original materials I have created for my Advanced Legal Research course (topic outlines, exercises, etc.). I am happy to share my materials with others, but I like to be credited. Does my university believe that it holds the copyright to my course materials? I don't know, because the question has never come up. When I started teaching, I solicited syllabi from other legal research instructors and built upon them. Would I have paid for them? I'm not sure, but it wasn't an option in those days. One of my colleagues suggested that she could envision a situation where one had to subscribe to get updated course materials, but where older materials were available for free.

Verbatim Transcript?

During my Advanced Legal Research class this morning, we were talking about the Congressional Record and the fact that members of Congress are allowed to edit and add to their remarks before they are published. One of the students mentioned that she had read a story in the New York Times over the weekend which described lobbyists for Genentech who managed to get statements they had written "printed in the Congressional Record under the names of different members of Congress. ... Genentech ... estimates that 42 House members picked up some of its talking points--22 Republicans and 20 Democrats ..." This is why, "[i]n the official record of the historic House debate on overhauling health care, the speeches of many lawmakers echo with similarities." According to the Times,

Members of Congress submit statements for publication in the Congressional Record all the time, often with a decorous request to 'revise and extend my remarks.' It is unusual for so many revisions and extensions to match up word for word. It is even more unusual to find clear evidence that the statements originated with lobbyists.

... The statements were not intended to change the bill, which was not open for much amendment during the debate. They were meant to show bipartisan support for certain provisions, even though the vote on passage generally followed party lines.

Some members of Congress used the language provided by the lobbyists verbatim, while others "tweaked" the language to fit their personal style. It is interesting to note that some of these Representatives had received campaign contributions from Genentech, which also had hosted fundraisers for them.

This seems like a particularly egregious example of the influence that lobbyists have in the legislative process. I'm happy to report that my students found the story somewhat shocking, coming as it did so recently after we'd discussed the legislative process. The story underscored why it is so difficult to make any meaningful institutional change in this country.

Second Life Advisors at Penn State

The Wired Campus feature of the Chronicle of Higher Education dated November 9, 2009 carries a story about Penn State requiring faculty advisors to appear in Second Life to advise students. Penn State has had a campus presence in the virtual world of Second Life for some time, and decided to offer advising there, in addition (according to a comment at the online article) to office hours, e-mail, phone and Skype. Faculty advisors are required to offer a minimum of two hours a week in Second Life and are given training in the online game. They are allowed to choose their own avatar names. It was not clear from the article how fanciful the avatar faculty may be. Second Life avatars do not, of course, have to reflect the gender, height, weight or ethnicity of the person behind the electronic face. But they may also appear as giant rabbits, may sport wings, or become more exotic still. Clothing, of course, can also be negotiable, but one supposes that is still somewhat bound by standards of propriety for advisors during office hours. Many law librarians are Second Lifers. It's a fun way to interact. The Chronicle article reports that faculty members do enjoy their time once they get used to Second Life.

The picture is my own avatar from Second Life, Boptunia Woodget. I am not spending much time there these days, but she is still there, in suspended animation.