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.

Book Studies at Smith College

It's hard to imagine that today's undergraduates, who have used technology all their lives, would be interested in studying the book as an object. Are book studies relevant in the era of the Kindle, the Nook, etc.? Smith College, my alma mater, answers this question in the affirmative with its concentration on Book Studies. As a budding librarian during my college years, I would have loved to have had the opportunity to take classes on "the history, art and technology of the 'book.'" I eventually did just this while pursuing my M.L.S. at Columbia's now-defunct School of Library Service--my favorite course was the History of the Printed Book, taught by Professor Terry Belanger, a well-known expert on the subject. Smith's offerings on book studies go way beyond anything available at Columbia. According to the website, the concentration "connects students with the exceptional resources of [Smith's] Mortimer Rare Book Room and the wealth of book artists and craftspeople of the Pioneer Valley." Students take courses at Smith and at the other schools that are part of the Five College consortium. They learn about book design, binding, paper, publishing, printing, libraries, rare books and manuscripts. All students in the concentration are required to undertake a "practical learning experience" or internship related to book studies. Students are encouraged to think about "radical new forms of typography, illustration and links to other media," and to ponder whether "electronic books [will] eventually unite the beauty and clarity of the forms that precede them with new possibilities as yet unimagined?"

The illustration for this blog post shows Martin Antonetti, Smith College's Curator of Rare Books, during an instructional session in the Mortimer Rare Book Room.

E-book Market Shake-up as Justice Pursues Anti-Trust

The New York Times reports that the Justice Department has filed suit against Apple and six publishers of e-books on anti-trust grounds that they colluded to set pricing. Attorney General Eric Holder alleges that the group met at expensive restaurants and "double deleted" e-mails in an attempt to hide their efforts to fight back against Amazon.com's low pricing of e-books. Led by former Apple boss Steve Jobs, they agreed to set their e-book prices for the iPad between about $12.99 and $14.99 compared with the typical $9.99 Amazon e-book Kindle price. Using the popularity of the iPad, the group hoped to fight back against the low prices driven by Kindle's popularity and Amazon's pricing.

The complaint alleges that the collusion caused

“consumers to pay tens of millions of dollars more for e-books than they otherwise would have paid.”

Three publishers that were investigated, the Hachette Book Group, Simon & Schuster and HarperCollins, have already agreed to a settlement that will most likely overturn their pricing model. Macmillan and Penguin Group USA, which were also named in the suit, have not settled. ... The publishers who have settled are required to end their e-book contracts with Apple and any other retailer with a “most favored nation clause,” which says that no other retailer can sell e-books for a lower price. For two years, the publishers are also prohibited from restricting any retailer’s ability to discount e-books.

Amazon appears poised to lower the prices for its e-books even further, which should be further pressure on the remaining competitors in the marketplace. There is a companion article in the Times about this, and concerns by some business analysts that Justice may be inadvertently setting up Amazon as a true monopoly in the e-book market.

Firestorm in Massachusetts over Judicial Independence

District Attorney Dan Conley has long complained that trial judge Raymond G. Dougan is biased for the defense. Now, spurred by his complaints, and probably by coverage of his complaints in the press, the Massachusetts Commission on Judicial Conduct (CJC) has taken up the case. They are undertaking an unprecedented investigation of Judge Dougan. Usually, when the CJC investigates a judge, they are looking at unprofessional behavior of some sort. In this case, instead, an aggravated DA has pulled together a list of 25 or so cases that make Judge Dougan look, (at least to the public), biased against the prosecution. He has persuaded the CJC that this list of cases merits their investigation of Judge Dougan's 21 years on the bench.

The investigation has triggered a firestorm here in the Commonwealth, and head scratching, at least beyond. Judge Dougan has petitioned the Supreme Judicial Court (our top tier court) to bar the investigation. As far as anybody can tell, this is the first time in the 34 year history of the CJC that a judge under investigation has challenged its authority to investigate.

J. William Codinha, the special counsel leading the year-long investigation of Dougan, said it would set a bad precedent to allow Dougan to escape questioning. In a state where judges are appointed for life and do not have to retire until age 70, said Codinha, the commission is the only agency that can hold judges accountable for their actions.

If Dougan succeeds, “no sitting judge need ever remain truly impartial, for he may not be asked under oath if he is, and any improper bias or influence can remain safely concealed,’’ Codinha wrote in his memo to the court.

(from http://boston.com link above and an article in the Boston Globe)

But many people are echoing Judge Dougan's challenge to that investigation. The Massachusetts defense bar, is rallying to Judge Dougan's defense (don't laugh). In a post in the local legal blog, Massachusetts DUI Lawyers Blog, Benjamin P. Urbelis wrote

Conley mounted an unprecedented attack on the judge, having each of his Assistant District Attorneys who stands before the judge in a criminal case ask his honor to recuse himself on the grounds that he cannot be fair. (As a former prosecutor, I can say that this puts the young ADA in an extremely uncomfortable and difficult position). Conley took his cause even further when he asked the Judicial Conduct Commission and the Supreme Judicial Court to prevent Dougan from hearing criminal cases altogether.

Within days, the Massachusetts Defense Bar appropriately fired back, outraged by DA Conley's recent actions, which they call an attempt to intimidate judges.

Some judges are prosecutor-friendly, some judges are defense-friendly. That's the nature of our criminal justice system. Judges are expected to use their legal education, life experience, legal experience, and judicial experience to apply the law and ensure justice. Judges are human and will differ in the manner in which they handle and rule on cases. Case law is created when judges issue "Opinions." The extreme position that Judge Dougan is biased and a threat to our public safety could also be said of several judges that Massachusetts defense attorneys would love to remove from the bench; but we understand that it is not our job, nor our right, to do so.

(from MA. DUI Lawyers Blog)

Others defend Judge Dougan:

“I think the judge has an explanation, a good, solid explanation for any of the matters that are raised in that particular motion,” [Conley's motion to the CJC] said Michael Keating, the attorney for Judge Dougan. Keating says the district attorney’s motion mentions 25 or so instances out of some 50,000 cases that the judge has presided over. As a judge, Dougan acted within his discretion and independence, Keating says. But despite the challenge to his reputation, “he is precluded from giving that explanation under the code of judicial conduct.”

To support its claims of bias and unlawful actions, the district attorney, who declined to talk with us, points to the frequency with which the judge’s decisions have been appealed by the prosecution or overturned by the Appeals Court. He leads all judges in Boston’s district courts.

But defense attorney and author Harvey Silverglate says reversals and appeals don’t tell the story, especially with experienced judges familiar with the problems of evidence from police.

“District attorneys get very upset when there’s a judge on the bench who actually understands how the system works on the street,” Silverglate said. “They call that bias, but in fact it’s not. It’s simply an increased level of sophistication that certain judges have about how the system works.”

(from http://www.wbur.org/2011/04/20/conley-dougan )

Nancy Gertner, a retired US judge now teaching at Harvard Law School, has been a vociferous supporter of Dougan. “Here’s the thing: Judges are already held accountable,’’ she said. “They’re held accountable on appeal. This is an attack on someone whose opinions you disagree with.’’

She also made reference to an independent judiciary. She believes this investigation is bad news for independent-minded judges. “The idea that this will have no bearing on judicial independence is absurd,’’ she said. “I’ve literally never heard of a case where a judge is being investigated for the content of his decisions.’’

(from Adrian Walker, "Judging the Judge", column in the Boston Globe, April 9, 2012)

The shocking part of this story is that the Judicial Conduct Commission did not dismiss the complaint out of hand. Judge Dougan has had to ask the Supreme Judicial Court to intervene to block the JCC from requiring him to submit to questioning about his decisions. Really, there aren’t enough adjectives for how bad this is. Judges make decisions. That’s what they do. And every decision will leave someone unhappy and feeling like the judge was biased. To my knowledge, no judge has ever been required to explain himself absent some form of misconduct like having an undisclosed interest or ex parte communication.

Conley was able to assemble a list of cases that make Judge Dougan look bad, and to the lay observer, they certainly do. The judge did release a defendant before trial with horrifying results. But for crying out loud, we don’t pig pile on a judge for locking up a defendant who is later acquitted. Should we go after judges whose convictions are later reversed on appeal? Mr. Conley may not lose any sleep over the possibility that an innocent person will be convicted when a judge sleeps through the trial, but the rest of us rely on the judicial branch to thoroughly test the prosecution’s case. (snip)

I wonder if Mr. Conley would answer honestly if asked whether any judges are biased in his favor. It’s not a secret in the trenches. ADAs don’t even need to spell it out. After I rejected the offer of a plea deal, one young ADA was hugely amused. “A trial?” he chortled. “You’re going to try this to Judge X? Don’t come here often, do you?” Trying cases to some judges is just a slower way to plead guilty. Does Mr. Conley think his assistants should ask these judges to recuse themselves?

I am disappointed in Mr. Conley for acting like an uneducated hypocritical crybaby, but my real disgust is reserved for the Judicial Conduct Commission. How many complaints of bias (mostly brought by non-lawyers who don’t understand the concept of judicial independence) has the Commission dismissed with a form letter explaining that a claim of bias, without more, cannot be investigated? If the JCC did not have the courage to tell Mr. Conley to put on his big boy underpants, I surely hope the Supreme Judicial Court will.

(from Cambridge attorney Lowry Heussler, posting at SameFacts blog on April 7, 2012, "Dan Conley: much worse than a sore loser".

Kudos to CALI

The last webinar of Topics in Digital Law Practice (TDLP), CALI's free online course, was presented on Friday. The course was nine weeks long, with each webinar lasting approximately one hour. I have to confess that unless a webinar is compelling, I tend to tune out, figuratively if not literally, before the end. That did not happen during the TDLP presentations. I even went back and listened to some of them again after they were archived on the course website. In short, TDLP was a good investment of my time.

A new topic was covered each week, and there was a different speaker each time, but the course content built on the fact that technology is changing the practice of law, and the change is far reaching and irreversible. It was essentially a crash course in twenty-first-century legal practice. These were the subjects we covered: Virtual Law Practice, Document Automation, Technology in the Courts, Unbundling Legal Services, Free Legal Research (the handouts for this session, available on the course website, include a great legal research flow chart I hope to adopt for use in my Advanced Legal Research class), Contract Standardization, Online Legal Forms in Legal Aid, Unauthorized Practice of Law in the 21st Century, and Social Media and Lawyering.

I have already begun sharing insights gained from the course with my students, and I plan to introduce A2J (an automated system used by individuals who are representing themselves in legal actions) to our clinical faculty. Overall, the course was well executed and thought provoking.

As with any new venture, there are some kinks that need to be worked out if TDLP is offered again. It would have been nice to receive CLE credit for the course, but the sponsors had not arranged for that; had credit been offered, it might have been more of an incentive for participants to do the homework assignments. A lot of participants did not do the homework, which I can understand. Some of the homework assignments amounted to busy work, and some took a lot more time than I had to give them during a semester that has turned out to be very hectic. Another problem with the homework was that it required us in a few instances to submit information to a website that would create documents based on the information we provided. I found it difficult to fake it, and as a non-practicing attorney, I had no way of assessing for myself whether the documents that were generated were of good quality. Finally, it would have been nice to have had some contact with the other people taking the course, perhaps by doing homework assignments collaboratively, but this would probably have been difficult to coordinate.

I found TDLP to be extremely valuable, and I heartily recommend that OOTJ readers listen to the archived presentations.

FTC Works for Consumer Privacy Online

The New York Times reports today on a report, and a call from the FTC for new legislation from Congress, to rein in the huge industry that mines data collected from Internet consumers. The report, "Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers," is the result of many comments from people in the privacy consultation business as well as comments from people in the business of selling the data mined from consumers.

The FTC is withstanding pressure from the folks who are making tons of money with your data and mine, to call upon Congress to pass a law, which would allow them to regulate the industry further. It may not be a simple matter of track or do not track... Consumers may simply want more transparency about what data is collected and how it's used. And they may want some say about what data they allow to be collected and how it will be used, not simply ban all collecting.

After all, most of us understand that the targeted advertising that powers "free" websites like Google, depend upon some level of consumer data. And everybody likes "free" searching!

Lexis Shoots Itself in the Foot

I learned yesterday that when students extend their Lexis accounts for the summer this year, they will only get access to Lexis Advance, not to lexis.com. If a student needs access to materials beyond what is available on Lexis Advance, e.g., international law, then we will need to contact our academic representatives to get the student access to lexis.com. If all or most lexis.com content had been migrated over to Lexis Advance, this decision might make sense, at least from the corporate point of view. I can understand Lexis wanting to push students over to the new platform, but I'm not sure this is the best way to do it. Not all content has been migrated, and this is going to create a serious disincentive to use Lexis Advance this summer. For instance, we have a Land Use Law Center here at Pace Law School that hires many student interns to work over the summer; municipal regulations on which they depend are not on Westlaw and they are not yet on Lexis Advance. I already mentioned international materials and municipal regulations, but Lexis Advance is also missing some news sources and secondary legal materials. I can't help but think that this is a wrongheaded decision that will ultimately push students to use WestlawNext. It's also going to create administrative headaches for the reps, who will have to intervene to get lexis.com access for those students who need it. This policy is almost as annoying as the decision to require a new password for Lexis Advance in the first place!