Law Librarian Blog

Be Sad When Your Kindle Goes Away

What if you lose your Kindle or it's stolen?  Amazon may not be much help when that happens, except to sell you another.  Read one person's (bad) experience in Ars Technica. [MG]

Houston Public Library Offers Book Curb Service

Does your library have a parking problem?  That's apparently the case for the Houston Public Library.  Their solution is to provide curb service where staff will take your book order out to your waiting car.  Library Executive Director Rhea Brown is challenging the staff to remain relevant in the iPhone era, and this is one of the responses to that challenge.  Other responses are to send vans filled with computers to under served areas, kind of like wandering Internet cafes, and another program called Info 24/7 which is live chat with a librarian.  The name implies around the clock service, but I can't tell from the web site whether that is the case. 

I do remember helping a DePaul Law faculty member at 2 AM when I decided to check email before going to bed.  He happened to be in Australia, and with the time difference, it made more sense to pull the electronic version of the text and email it on the spot rather than wait until I returned to the office.  I can also remember dropping off books to a faculty member waiting at curb side.  DePaul is in the heart (or is it the liver) of downtown Chicago and parking is a premium commodity here.  These are typically exceptions to how we operate, courtesies when circumstances arise.  Will these types of service become more standard?

The details are in an article in the Houston Chronicle. [MG]

From Messenger Pigeons to the Web: Thomson Reuters Spends $1 Billion to Make Its Financial Information Services User Friendly

Reuters, "never really been known for its cutting-edge advances," will unveil Project Utah, the final leg of a $1 billion technology investment to upgrade its systems reports James Ashton in the Sunday Times, Thomson Reuters explodes into web age. Some of the changes mirror Reuters’ rivals, Dow Jones and Bloomberg, which have been making IT investments during the current recession. “People who grew up with Google have totally different expectations of how to interact with information and media. We can’t ignore that, "said Devin Wenig who runs Thompson Reuters market division.

Almost two years in the planning, and arriving early next spring reports Ashton, Project Utah aims to create a common platform for all of Thomson Reuters’ 200 financial products for the first time, making Reuters’ systems simpler to use. “We are not going to be the greatest technology company in the world and nor should we be,” said Devin Wenig who runs Thompson Reuters market division. “But technology is an enabler. We have to put money into it. We can’t just talk about it.” [JH]

No One Likes Heller (Or Why I'm Having the Citator Blues Again)

Like so many (or perhaps so few), on June 26, 2008, I anxiously awaited for the United States Supreme Court’s decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008) to be handed down. The Court held that the Second Amendment confers an individual right to keep and bear arms. The decision itself affects me in no way, but it was about time for the Court to decide the issue. Within days of the decision being handed down, I spent some time testing Precydent (the free legal research database with a citator). Heller did not show up, though Kennedy v. Louisiana, 128 S.Ct. 2641 (2008), which was decided the day before Heller came down, showed up on Precydent. And to this day, Heller does not appear on Precydent. So toss Precydent from your vocabulary.

Recently I spent time looking for examples of cases to illustrate how Keycite (Westlaw), Shepard’s (Lexis) and Authority Check (Fastcase) work for my Lawyering Skills 1 class. On Westlaw, I first ran a search for the “Second Amendment” and the “right to bear arms” in the Westlaw’s Sixth Circuit database. I stumbled on a case, United States v. Napier, 233 F.3d 394 (6th Cir. 2000) which held that the Second Amendment to the United States Constitution does not grant an individual right to bear arms, but rather the right pertains only to militias. And at the time Napier was decided, the issue was for the Sixth Circuit to decide in any way it saw fit. Well, as of today [ed. note - submitted to LLB on Aug. 26th] Keycite indicates that Napier was mentioned in the Heller dissent. However, Napier was clearly overruled, not just mentioned. By looking at Keycite’s status flag (a green C, indicating that the case has been cited but there is not neccessarily negative authority) one who was not aware of Heller’s existence may reasonably believe that there is no individual right to bear arms under the United States Constitution. And that in itself is fine. I would like more from Westlaw editors, i.e. to follow up on cases that are cited in concurring and dissenting opinions, but I’ll accept that green flag as being consistent with Keycite policy, i.e. paying little if no attention to concurring and dissenting opinions and only paying attention to cases cited in majority opinions. What I believe to be disturbing, however, is how Westlaw markets Keycite.

On page six of Westlaw’s Using Keycite on Westlaw’s Using Keycite on Westlaw User Guide, it states ”When you begin your research, use KeyCite to check the status of your case, statute, administrative decision, or regulation. You’ll see at a glance whether it’s good law on which to base your legal argument.” And while that is sometimes true, one is led to believe that Keycite always will inform a researcher whether a case is still “good law” at a glance, but this is obviously untrue. It will sometimes inform a researcher whether a case is still “good law” at a glance; other times it will avoid the issue altogether. So while I can understand the policy of Westlaw editors as to when and why they will display status flags in the manner they do, I take great issue with the way that Keycite is marketed to consumers, especially law students. We at Duncan School of Law have the luxury of spending an entire 90 minutes (or more) talking about citators with everyone in the first year class, and to make these precious distinctions as to what citators actually do as opposed to what we are led to believe they do, but I know that such time to educate and illuminate law students does not exist for many (if not most) institutions – and heaven forbid students’ only (or majority of) instruction on electronic legal research tools comes from the vendors themselves.

At least Shepard’s identifies that there is “possible negative treatment” when it comes to Napier. While, in reality, there is severe negative treatment by Heller in the case of Napier, one can at least get an indication that Napier might be problematic for the researcher with a mere glance.

And then there is Fastcase’s Authority Check (which provides no indication of courts’ treatment of cases, but nor does it claim to do so). However, what I expect from Fastcase is that when I look to see if a case has ever been cited (at least by a published United States Court of Appeals case) it will tell me so. And Fastcase too has failed me with regard to Heller. Since Heller, there have been quite a number of published, as well as unpublished, cases citing Heller. See, for example, State v. Turnbull, 766 N.W.2d 78 (Minn.App. 2009); Bruley v. Village Green Management Co., 592 F.Supp.2d 1381 (M.D.Fla.2008); United States v. Marzzarella, 595 F.Supp.2d 596 (W.D.P.A. 2009); Maloney v. Cuomo, 554 F.3d 56, 58+ (2d Cir. 2009). But Fastcase indicates, through its Authority Check, that there are no cases within its database which cite to Heller. And that is true. I did a check, and contained within their database were no cases which cite to Heller. The problem, however, is that such case do exist; and some of those cases were decided as early as September 2008. See, United States. v. Knight, 574 F.Supp.2d 224 (D.Me. 2008).

So in the end, Shepard’s truly helps the legal researcher when it comes to District of Columbia v. Heller, 128 S.Ct. 2783 (2008) even though it is certain that after the Heller decision, Napier is no longer good law. And so for warning us to be cautious when using United States v. Napier, I thank you, Lexis; but I’ll be keeping my eye on you too.

But watch out legal researchers, and be forever fastidious in your endeavors because what a product promises and what a product delivers are not the same thing. Perhaps Westlaw and Fastcase ought to be held to the same ethical obligations as lawyers often are. See Model Rule of Professional Conduct 1.1.

David C. Walker, Information Services Librarian, Lincoln Memorial University, Duncan School of Law Library

Editor's Note: Unfortunately this isn't the first time David Walker has had an episode of citator blues. Back on June 12, 2009, he reported that he had been waiting some two weeks for Keycite to reflect that Michigan v. Jackson, 475 U.S. 625 (1986) had been overruled by the US Supreme Court's May 26, 2009 decision in Montejo v. Louisiana. See his LLB post Maybe Westlaw thinks Scalia was wrong, but… which caught the attention of both Keycite and Shepard's editors, obviously for different reasons.

BTW, I'm delighted to announce that David is joining LLB as a contributing editor. I, for one, can't wait to read his future posts. [JH]

Open Book Alliance Kicks Off Campaign Against the Google Book Settlement

Countdown to Court Review of Proposed Google Book Settlement

September 4: Deadline for submissions to US District Court September 4: Deadline for authors/rightsholders to opt-out of settlement September 7: European Commission Hearing September 18: Deadline for Dept. of Justice to submit findings to US District Court October 7: Fairness Hearing in US District Court on proposed settlement

"Many startling challenges to copyright and competition policy lie buried in the [Google Book] settlement’s 300+ pages," writes Peter Brantley and Gary Reback in Opening the Book as their Open Book Alliance launches it's PR campaign. Challenges include the following:

The settlement is bad for consumers and book-lovers – It deliberately thwarts competition in the emerging e-books market, creating a digital book monopoly that will inevitably lead to fewer choices and higher prices for consumers of digital books.  It would allow a group of erstwhile competitors to collectively set prices and leave Google as the only company with a the right to copy, display or sell digital versions of orphan works (books for which authors or rights holders cannot be identified or located).  Consumers would be better served by a competitive market for digital books that is available to everyone on non-discriminatory terms.  The settlement also contains no privacy commitments to ensure that Google doesn’t use its awareness of what books people are reading to make unfair profit, or doesn’t share its intimate knowledge with commercial interests or governments. Finally, the settlement is carefully structured to ensure that all of the digital content will be available to Google and Google’s search engine.  This will enhance and reinforce Google’s already dominant market power in the internet search market while making the digital books less available and less findable by users of other search engines.
 
The settlement is bad for libraries and schools: While a handful of large and well-funded university libraries participated in the Google book-scanning effort, many other educational institutions and libraries will be forced to pay monopoly prices for access to a wide swath of knowledge, straining already-stretched budgets and creating a system of haves and have-nots in our nation’s education system. Community libraries would get at a single terminal to Google’s private book database, and libraries serving our nation’s children in K-12 schools would get absolutely nothing. The settlement widens the digital divide by limiting access to digital books in financially hard-hit communities that have budget-constrained libraries.
 
The settlement is bad for authors and small publishers: Unless they act to opt out of the proposed settlement by Google’s deadline, authors and other writers lose rights to the fruits of their labor—a future in which they have no negotiating rights for the value of their work. Moreover, the proposed settlement would line the pockets of a handful of lawyers, who collectively would receive more than $45 million, at the expense of millions of authors and small publishers upon whose creativity and hard work the private book monopoly would be built.

The settlement sets a dangerous and unprecedented process precedent. The proposed settlement far exceeds the bounds of a typical legal settlement. It privatizes important copyright and public policy decisions. It abuses class action procedure to create an exclusive joint venture between Google, AAP and the Authors’ Guild, strengthening Google’s dominance in search and search advertising and creating a private monopoly for the sale of digitized books.

The official launch of the Open Book Alliance was August 26th. See Diverse Coalition Unites To Counter Google Book Settlement. Members of the "Sour Grapes Alliance" are expected to file individual objections to the Court by September 4. See the above sidebar for the schedule leading up to the Court's "fairness hearing" and LLB's earlier coverage of the Open Book Alliance: Microsoft, Yahoo, Amazon to Oppose Google Book Settlement and Axis of Hatred to Join Open Book Alliance in Effort to Derail Google's Book Rights Registry.

Opposition to the Book Rights Registry. The anticompetitive consequences of the Book Rights Registry are bad for libraries and schools but only 21.5% of librarians oppose the Settlement according to a recent Publishers Weekly survey. See LLB's post, Are Rank-and-File Librarians Sitting on the Fence Over the Google Book Settlement? Librarians who are still sitting on the fence might want to read UC Berkeley law prof Pamela Samuelson's very accessible series of posts on The Huffington Press. For more, see

• Samuelson's Legally Speaking: The Dead Souls of the Google Booksearch Settlement

• Grimmelmann's How to Fix the Google Search Settlement

• Sag's The Google Book Settlement and the Fair Use Counterfactual

See also Jonathan Band's A Guide for the Perplexed Part II: The Amended Google-Michigan Agreement [JH]

Beware the Armed Law Prof

As reported on LLB here and here, a Louisville Law School library staffer called university police when he saw Thomas H. Irwin, who was banned from campus for harassing an employee, walk into the law library. Irwin was charged with carrying a concealed deadly weapon and criminal trespass for having two handguns and 53 rounds of ammunition. Thanks to the alert staffer a potential tragedy was avoided as noted in Jim Levy's LLB post. Early reports identified Irwin as a former university student and contract employee. Now it appears that he had been adjunct faculty member at the the University of Louisville's Law School. See Louisville Courier Journal's Part-time U of L faculty member arrested for taking guns into law library. Hat tip to Legal Blog Watch.

Something like this can happen anywhere. The Louisville story remands me of weapons a Cincinnati law prof found stored above the drop ceiling in his office after it had been vacated by another law prof who disappeared mysteriously, as in dropped off the face of the planet. At the University of Miami School of Law, most law library staffers knew one prof was "packing" a weapon "for protection." There weren't many thugs roaming the Coral Gables campus but that senior citizen was ready for them. It's one thing to be worried about faceless public patrons, quite another to have to be worried about armed law profs "going postal." [JH]

Ferrari and Smart Fail to Score Cash for Clunkers Sales

With the close of the Cash for Clunkers Programs, the Department of Transportation is reporting some stats about the program: 690,114 car sales were transacted with rebate applications totaling $2.877 billion. 84% of trade-ins were trucks, and 59% of new vehicles purchased were cars. Cars purchased under the program were, on average, 19% above the average fuel economy of all new cars currently available, and 59% above the average fuel economy of cars that were traded in.

Average Fuel Economy

New vehicles Mileage: 24.9 MPG
Trade-in Mileage: 15.8 MPG
Overall increase: 9.2 MPG

Top 10 Trade-ins and New Vehicles Purchased

Rank	Top 10 Trade-in Vehicles	Top 10 New Vehicles Purchased
1	Ford Explorer 4WD	Toyota Corolla
2	Ford F150 Pickup 2WD	Honda Civic
3	Jeep Grand Cherokee 4WD	Toyota Camry
4	Ford Explorer 2WD	Ford Focus FWD
5	Dodge Caravan/Grand Caravan 2WD	Hyundai Elantra
6	Jeep Cherokee 4WD	Nissan Versa
7	Chevrolet Blazer 4WD	Toyota Prius
8	Chevrolet C1500 Pickup 2WD	Honda Accord
9	Ford F150 Pickup 4WD	Honda Fit
10	Ford Windstar FWD Van	Ford Escape FWD

Detroit's Big Three grabbed 38.6% of new car sales while Ferrari missed out on the Cash for Clunkers buying spree because the Company's go-green plans to reduce greenhouse gas emissions in half won't hit that mark until 2012. Already green Smart cars weren't high on buyers' shopping list either.

New Vehicles Manufacturers Cash for Clunkers Sales

1. Toyota - 19.4%
2. General Motors - 17.6%
3. Ford - 14.4%
4. Honda - 13.0%
5. Nissan - 8.7%
6. Hyundai - 7.2%
7. Chrysler - 6.6%
8. Kia - 4.3%
9. Subaru - 2.5%
10. Mazda - 2.4%
11. Volkswagen - 2.0%
12. Suzuki - 0.6%
13. Mitsubishi - 0.5%
14. MINI - 0.4%
15. Smart - 0.2%
16. Volvo - 0.1%
17. All Other - less than 0.1%

If someone offered you two set of keys, which would you take?

[JH]

Round-Up of Practitioner Blogs

Tampa Bay Criminal Defense Lawyer Blog
http://www.tampabaycriminaldefenselawyerblog.com
http://www.tampabaycriminaldefenselawyerblog.com/index.xml
Reports on criminal law news, cases and opinions in Florida. Published by the Slavin Law Firm.

Oregon Bankruptcy Lawyer Blog
http://www.oregonbankruptcylawyerblog.com
http://www.oregonbankruptcylawyerblog.com/index.xml
Reviews bankruptcy law news, legislation and reports in Oregon. Published by the Law Offices of Calvin Knickerbocker.

North Carolina Car Accident Lawyer Blog
http://www.northcarolinacaraccidentlawyerblog.com
http://www.northcarolinacaraccidentlawyerblog.com/index.xml
Analyzes car accident news, cases and reports in North Carolina. Published by the Law Offices of Michael A. DeMayo, LLP.

California Securities Fraud Lawyer Blog
http://www.californiasecuritiesfraudlawyerblog.com
http://www.californiasecuritiesfraudlawyerblog.com/index.xml
Covers securities fraud news, cases and legislation in California. Published by the Alcala Law Firm.

St. Louis Injury Lawyer Blog
http://www.stlouisinjurylawyerblog.com
http://www.stlouisinjurylawyerblog.com/index.xml
Provides opinion on injury law news, cases and reports in Missouri and Illinois. Published by WWF&G.

Kentucky Injury Lawyers Blog
http://www.kentuckyinjurylawyersblog.com
http://www.kentuckyinjurylawyersblog.com/index.xml
Discusses injury law news, opinions and legislation in Kentucky. Published by the Crocker Law Offices.

Atlanta Injury Attorneys Blog
http://www.atlantainjuryattorneysblog.com
http://www.atlantainjuryattorneysblog.com/index.xml
Discusses injury law news, cases and reports in Georgia. Published by the Law Offices of P. Charles Scholle, PC.

Florida Trucking Accident Lawyer Blog
http://www.floridatruckingaccidentlawyerblog.com
http://www.floridatruckingaccidentlawyerblog.com/index.xml
Provides insight on trucking accident news, cases and opinions in Florida. Published by the Law Offices of Flaxman & Lopez.

Maine Injury Lawyer Blog
http://www.maineinjurylawyerblog.com
http://www.maineinjurylawyerblog.com/index.xml
Examines injury law news, cases and reports in Maine. Published by Peter Thompson & Associates.

Los Angeles DUI Attorney Blog
http://www.losangelesduiattorneyblog.com
http://www.losangelesduiattorneyblog.com/index.xml
Reports on DUI law news, cases and opinions in California. Published by the Kraut Law Group.

Is Your Weekend Yard Sale Violating the Consumer Product Safety Improvement Act of 2008?

It is if you are selling recalled products! From the US Consumer Product Safety Commission website:

Selling recalled products is now unlawful. The law sets strict limits for lead in paint and for lead content. Additionally, three types of phthalates are permanently prohibited in certain toys and child care articles and three other phthalates are prohibited on an interim basis in certain child care articles and children's product that can be placed in a child's mouth.

Read more about it at Seller, beware: Feds cracking down on garage sales. Hat tip to The Volokh Conspirarcy. [JH]

Google Books to Support EPUB Format for Public Domain Titles

Google will offer more than one million public domain titles for download in the EPUB format, a free open format supported by a wide variety of readers and applications.  The new Sony reader can take advantage of the format.  Google predicts that new readers will support the format as well.  More here from the Inside Google Books blog announcement.  [MG]

Friday Fun: Divorce Court Will Never Be the Same

It started with the wildly popular wedding ceremony video on YouTube and quickly moved to divorce court. [JH]

iAWFUL's Top Ten Worst Legislative and Regulatory Proposals Targeted at e-Commerce

Through the Internet Advocates' Watchlist For Ugly Laws (iAWFUL) site, NetChoice, a coalition of trade associations and eCommerce businesses, tracks dangerous legislation and mobilizes citizens to defeat bills and proposals that threaten the future of ecommerce and online communication. The inaugural iAWFUL Top Ten was published in June and has now been updated. The August list includes five new items, with new laws in the top 2 slots.

The August 2009 iAWFULTop Ten

1. Maine Predatory Marketing Law (10 MRSA c.1055) - What's AWFUL? Creates an unprecedented prohibition on collecting information about and marketing to teenagers.

2. Hotel Taxes on Online Travel Companies - What's AWFUL? Travel sites are being threatened with wrong tax rate in the wrong jurisdiction.

3. New Jersey Social Networking Bill (A 3757) – What’s AWFUL? It turns social networking sites into social networking police.

4. Digital Download Taxes in Colorado and Washington Without Legislation – What’s AWFUL? Discriminates against goods and services sold online versus offline.

5. North Carolina Digital Downloads Tax Bill (HB 558/S 487) – What’s AWFUL? Discourages the Greenest Way to Purchase Music and Other Content.

6. North Carolina Tickets Bill (SB 99) – What’s AWFUL? Taxes the Internet (and only the Internet) resale of tickets.

7. Federal Bills on Organized Retail Crime – What’s AWFUL? They create extraordinary burdens on online marketplaces.

8. Massachusetts Online Advertising Bill – What’s AWFUL? It threatens the viability of new business models on the Web.

9. North Carolina Advertising Nexus Proposal – What’s AWFUL? Unconstitutionally expands sales tax burdens to out-of-state businesses.

10. New York Online Employment Services Taxation Issue – What’s AWFUL? Discriminates against Internet services.

Additional information is available on the NetChoice blog. Hat tip to beSpacific. [JH]

Are Rank-and-File Librarians Sitting on the Fence Over the Google Book Settlement?

According to a Publishers Weekly survey as reported by Norman Oder in the Library Journal, the answer is yes. 29% of librarians support the Google Book Settlement. 21.5% oppose it. 37% are unsure. On the publishing industry and Authors Guild lawsuit opposing the Settlement, 25% support the lawsuit against Google. Another 25% oppose it. 50% have no opinion.

Trepid Support for the Settlement. The 225 librarians were part of a larger survey population drawn primarily from the publishing industry. Publishers Weekly's Andrew Richard Albanese summarized the complete survey in Unsettled: The PW Survey on the Google Book Settlement. According to Albanese there is trepid support for the Settlement:

If there is good news for the architects of the deal, it is that net support for court approval outweighs opposition—overall, 41% of respondents supported approval of the settlement, while 23% opposed the deal. Just weeks before the September 4 deadline for opting out or objecting to the settlement, however, it is notable that more than a third (36%) remain unsure of or indifferent to the settlement. Publishers (52%) support the settlement in the greatest numbers, followed by authors (42%) and librarians (29%).

"Your take on the results of our survey may differ," writes Albanese, "our take is this: there is simply too much confusion and too little support for anyone to feel comfortable." More from Albanese:

For us, the survey highlights a fundamental question: for all the good and bad scenarios raised by the deal, was it ever reasonable to think that such a revolutionary, unprecedented pact, negotiated in secret over three years by people with loose claims of representation, concerning a wide range of stakeholders, both foreign and domestic, involving murky issues of copyright and the rapidly unfolding digital future, could be pushed through as a class action settlement within a period of months, in the teeth of a historic media industry transition?

Whether it is approved after its scheduled October 7 fairness hearing, delayed, sent back for modification or rejected outright, behind the Google Book Search Settlement, there is a visionary plan for books. And, yes, this deal could very likely do every remarkable thing its supporters say it will do. The bottom line, however, is that, when the parties sued over a copyright question, no one asked, or expected these litigants to come back with a sweeping plan to transform publishing. And in the sprint to sell this deal, one simply has to look at how the settlement is being sold to know that the parties still don't seem to grasp how significant a challenge that represents.

Hat tip to Digital Koans. [JH]

New Website Offers Documentation on the Palestinian Occupation

The Israel Law Resource Center focus on civil rights, human rights and international law within Israel occupied territories.  The site offers primary source materials, including laws, regulations, military orders, and court rulings.  The Center also offers study guides on various topics as well as public education materials.   [RJ]

U.S. lags behind several countries in Internet speed

Despite being the country that invented drag racing and speed dating, a new report by the Communication Workers of America shows that download speed in America is slower than several other countries. The 2009 speedmatters.org survey also reveals that the U.S.continues to lag far behind other countries. The United States ranks 28th in the world in average Internet connection speeds. In South Korea, the average download speed is 20.4 mbps, or four times faster than the U.S.  The U.S. trails Japan at 15.8 mbps, Sweden at 12.8 mbps, the Netherlands at 11.0 mbps, and 24 other countries that have faster broadband than we do.

The report showed that Internet users who live in the Northeast or Mid-Atlantic regions enjoy faster speeds than those in the South or West. The five fastest states included Delaware (9.9 mbps), Rhode Island (9.8 mbps), New Jersey (8.9 mbps), Massachusetts (8.6 mbps), and New York (8.4 mbps).

 

You can read a synopsis of the report here courtesy of CNET.com as well as the original CWA report here.

 

Hat tip to BNA Internet News.

 

(jbl)

Genachowski Says FCC Will Enforce Net Neutrality Principles

The Hill caught up with newly installed FCC Chairman Julius Genachowski on Tuesday.  The big news, though not very surprising, is Genachowski's statement that the agency will enforce net neutrality principles.  Broadband providers are probably grumbling that they have to put up with this mindset for at least the next four years.  Comcast in particular got spanked last year for throttling peer-to-peer traffic by then Chair Kevin Martin and two other commissioners.  Comcast's reaction was to sue claiming the FCC had no authority to tell Comcast or others how to manage their network.  That suit is still pending.

The language the FCC used to enforce network neutrality principles on Comcast came in a footnote to a policy statement.  It is an open question as to whether the FCC has actual authority, and Comcast is banking on the courts agreeing with them.  Genachowski hedged on this question when asked about pending legislation that explicitly grants the authority to the Commission.  He basically said that the Commission will ask for that authority if it has to.

One of the basic problems with managing a network is meshing customer use with so-called sound network management practices so that everyone has uninterrupted service.  The debate has the carriers claiming that without network management, they will reach capacity.  Video, and especially high definition video, is a bandwidth hog.  So far, for the thousands of videos uploaded to YouTube and other sites, and the millions of views they get, the networks seem to hold up.  It's when the carriers become content providers that the capacity question gets dicey.  AT&T added U-verse to its offerings.  Comcast has always provided video through its network and now offers phone service.  Critics charge that carriers want to protect or prioritize their own offerings through network management.

YouTube doesn't generate fees to carriers, but does all that traffic really detract from the network operation?  I'm sure video traffic has an effect, but there's never been a story that Internet video traffic has killed a provider.  One element to network management I've never seen is a clear statement of the actual capacity of the broadband network in the United States compared to the current utilization.  I've read statements that raise the issue of reaching capacity, such as this one, but I've never seen hard numbers.  If anyone has anything different, please let me know.  In my opinion. this is the kind of question the FCC should be asking these companies to justify prioritization of traffic.  [MG]

Healthcare Insurance Reform, the Back of the Napkin Explanation by Dan Roam

With debunked claims still popping up in town hall meetings about health care reform, as reported recently by CNN in Rumors influencing health care debate, perhaps we need a back of the napkin explanation. Dan Roam, author of The Back of the Napkin: Solving Problems and Selling Ideas with Pictures (2008), has created one. Hat tip to Common Craft Blog. [JH]

Healthcare Napkins All

View more documents from Dan Roam.

Shedding West at Stanford Law Library

Stanford's Paul Lomio has to cut his law library budget by 15%. How? Let's start with West. On Legal Research Plus, Lomio writes "We are shedding West publications left and right (mainly because of, in my opinion, outrageous annual price increases), and our patrons (all of whom know our first names) are doing just fine, producing outstanding scholarship and achieving significant clinical victories." See his post for a pricing illustration.

This brings me back to the point of my post yesterday, Another Boner from West: "Hi, my first name is Joe and I'm a law librarian." It's time for West to agree to provide some short-term relief by

1. moderating its historical price increases for print continuations for the next year or two by cutting them in half to an average 6-7%;

2. fully disclosing pricing information for the AALL Price Index; and

3. committing to freezing its annual price increases when multi-year Westlaw contracts come up for renegotiation during each law library's forthcoming round of Westlaw bargaining.

Or face the consequences. Once titles are canceled, the odds law libraries, including great academic libraries like Sanford, will pick them up later when library finances improve are slim. [JH]

Ted Kennedy, 1932 - 2009: The Passion of My Life Speech

Massachusetts Sen. Edward Kennedy died late Tuesday at his home in Hyannis Port, Massachusetts after a long battle with brain cancer. He was 77. Long-time champion of civil and voting rights whose endorsement of Barack Obama remains a political debt still unpaid, Kennedy was the elder statesman of traditional liberal causes. President Obama will deliver a eulogy at Kennedy's funeral on Saturday. I doubt the late senator would mind if Obama took the event as an opportunity to affirm his support for Kennedy's position that health care is a human right deserving requiring legal recognition.

Ted Kennedy on the passion of his life, universal health care, April 2008.

Tributes and commentaries on Kennedy's legacy will be far too numerous to list but here's the National Law Journal's Ted Kennedy's Legal Legacy. See generally CNN's special report. [JH]

Where Are the "Academic Lawyers"?

I guess Judge Posner and I have one thing in common (though it's certainly not IQ scores). We're both "old school" about law school and by that I mean the legal academy is or at least was the place where, to use Posner's characterization, "academic lawyers" contributed to society and governance by looking at the big picture through the lens of law and policy analysis.

While attending the Graduate Library School of the University of Chicago in the late 1970s, I worked in Chicago's Law School Library. Future judges Posner and Esterbrook were teaching there at the time as were former federal agency officials including Scalia (Office of Telecommunication Policy, Administrative Conference of the United States and DOJ), Dam (OMB and Council on Economic Policy, later Treasury and State) and Levi (Attorney General in the Ford Administration). Now U of C wasn't your typical law school but the experience led me to view law profs as "academic lawyers," individuals who were equally comfortable, as in qualified and prepared, to walk down the hallways of congressional and federal government office buildings as they were when heading to law school lecture halls. These old school "academic lawyers" bounced between federal and academic appointments and when they landed in the legal academy, they were prepared to address current law and policy issues with an eye toward practical solutions based on first hand experience.

Certainly law profs wouldn't need high-level public service experience to offer practical solutions for contemporary problems if the legal academy was a training ground for future policy wonks and a proving ground for law profs to demonstrate their street creds through their research productivity. Case in point, Posner's early work in law and economics, the one and only school of thought that has had any substantial impact outside the legal academy in living memory (sorry critical legal theory fans). But the legal academy is neither of these things. In The Role of the Law Schools in the Recovery from the Current Depression, Judge Posner writes

[The] career structure in academic law today ... is inimical to research oriented to practical solutions to current problems. This limitation has two aspects. First, recruitment of academics from practice has declined, as academic law has become progressively "academified" and specialized. Increasingly, in imitation of more conventional academic disciplines, legal academics are expected to focus the research  component of their work (and this inevitably influences the teaching component) on specialized research the results of which are publishable in academic journals read mainly by other academics in the author's specialized subfield. The preparation and publication of such research are time-consuming endeavors and therefore are ill adapted to responding constructively to rapidly evolving current issues, especially ones that cross disciplinary and subdisciplinary boundaries.

To put it in my small brain way, the "academic lawyer" has been marginalized in the legal academy. Law schools like to have one walking down the hallway, perhaps for PR purposes, just like they carry on their faculty a token legal historian and a foreign and international law librarian, though they too appear to be dying out in favor of acquiring junior faculty willing to jump on the latest intellectual fad in legal scholarship.

Judge Posner's point in his commentary on the state of the legal academy is, in his own words:

As a result, with a few notable exceptions, ... academic lawyers ... have not made a contribution to the understanding and resolution of the current economic crisis, even though it bristles with legal questions. And I don't mean only or primarily legal questions that can be readily answered on the basis of orthodox legal materials; for those questions can be answered adequately by the large, sophisticated law firms engaged in a commercial or corporate practice. I mean rather legal issues that cannot be resolved intelligently without consideration of issues of policy--in the present instance issues of economic, including macroeconomic, policy. And not only legal issues, but issues of economic policy to which legal knowledge is relevant, even if the issue itself is, for example, legislative in character, rather than requiring the application of existing law.

See his post in The Atlantic for more. Do note that sometimes his critique of the legal academy's shortcomings sounds like he is asking where are the academic lawyers with Posner-esque qualifications. But Posner's article does underscore the consequences of the "academification" of law schools. The hallways are full of law profs ill-equipped to to serve society as "academic lawyers." Perhaps we don't need "academic lawyers," but Posner thinks we do and I'll take his word on that. [JH]