Law Librarian Blog

Reminder: Register by May 15th for AALL's Webinar on Libraries and Social Software

Sarah Glassmeyer, reference librarian from University of Kentucky, will explore the implementation of social media software in libraries in an AALL-sponsored webinar on May 20, from 12-1 p.m. EDT but you need to register by May 15 to benefit from what looks to be an excellent presentation. Cost: $45 for Members; $60 for Non-members.  [RJ]

Current Odds on Obama's Supreme Court Nominee

Judge Sonia Sotomayor is the current front runner for President Obama's nomination to the Supreme Court according to the Irish gambling website, Paddy Power. Here's the line for the top five:

Sonia Sotomayor  13/8
Diane Pamela Wood  9/4
Elena Kagan  4/1
Kim McLane Wardlaw  9/2
Kathleen Sullivan  8/1

Other notables: Cass Sunstein  16/1, Janet Napolitano  50/1, Hillary Clinton  100/1 and Michelle Obama  500/1 (federal anti-nepotism laws make the First Lady a very long shot). Place your bets here. To make "informed" bets, check out National Journal Online's The Ninth Justice Blog for "news and analysis on the search to fill the bench."

Hat tip to Fox News (of course). Note Paddy Power's early line on the 2012 US Presidential Election here. [JH]

Two Courts, Same Issue, Different Outcome

Wisconsin resident Michael Sveum appealed his aggravated stalking conviction because prosecution evidence included Sveum's movements as recorded by a GPS device police secretly attached to his car.  This, Sveum said, violated his Fourth Amendment rights.  The Wisconsin Appellate Court said no violation occurred because the device was attached to the car in a public place, and is the same type of evidence that can be obtained through other types of public surveillance.  The police did obtain a warrant in this case, but the court made it clear a warrant was unnecessary.

From the Court's opinion:

Like the Seventh Circuit, we discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant.

The Seventh Circuit case to which the Court referred is United States v. Garcia, 474 F.3d 994 (7th Cir. 2007).  The Court was a bit troubled by their conclusion, though not enough to rule otherwise, and suggested that the Wisconsin legislature consider legislation that addressed the issue.  The Wisconsin opinion, issued on May 7th, is here and a news report in the Chicago Tribune is here.

The New York Court of Appeals decided today that placing a GPS system on a defendant's vehicle without a warrant does violate the Fourth Amendment.  The Court reviewed seminal Supreme Court decisions such as Katz and Olmstead and came to the opposite conclusion than the Wisconsin court.  Oddly, the Court of Appeals also cited Garcia, but ignored its holding.  It noted other state courts that took the same view, notable Washington State and Oregon.  The U.S. Supreme Court has yet to rule in this type of case, but may get the chance if one of these two cases goes for further appeal.  The New York opinion is here, and a story about the case in Newsday is here.  [MG]

Should SCOTUS Prohibit Ex Parte Blogging?

In Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy in an Internet Era, 61 Stan. L. Rev. 1535 (2009), Rachel Lee (Stanford Law School (2009), Prospective Law Clerk to the Honorable Susan P. Graber, United States Court of Appeals for the Ninth Circuit, 2009-2010), is sufficiently concerned about bloggers impacting the outcome of pending litigation to recommend that the Supreme Court should regulate ex parte blogging "despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues" and I might add, bring to daylight the discovery of errors.

Lee's Note is well worth reading. It is probably the first systematic analysis of the ethical implications of ex parte blogging and what its effects might be on different groups appearing before the Supreme Court. The Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications and concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Lee writes

Ideally, the members of the Court and their staff would refrain from reading any blog post relating to a pending case, whether written by attorneys involved in the case or not. If attorneys could rely on the Justices’ self-restraint, it would allow the profession to have the best of both worlds. Lawyers could speak out as they saw fit, enriching the public dialogue without danger of tainting the judicial process. Alternatively, if attorney conduct were regulated to prevent lawyers from engaging in ex parte blogging, while the Court also avoided the material, judicial self-regulation would provide another layer of protection for the impartiality of the Court’s decision-making process. However, the legal community is not in a position to bring about either scenario—the Court alone has the power to regulate itself.

Carolyn Elefant thinks any such SCOTUS rule is unnecessary. "I see no reason for regulation. Current ethics rules prohibit lawyers from trying to influence the judicial process so lawyers should not be blogging about ongoing cases for that reason. Moreover, because blogging is public, opponents have an opportunity to file comments in response." Quoting from Do We Need Ethics Rules on Ex Parte Blogging? on Legal Blog Watch.

OT: Remember crowdsourcing Kennedy v. Louisiana? [JH]

Legal Technologists on Wireless WiFi Routers

Legal technologists are abuzz about tiny wireless WiFi routers, which provide a WiFi bubble anywhere you are.  Verizon’s Novatel MiFi 2200 was described by David Pogue in the May 6 New York Times. The Canary Wireless Digital Hotspotter HS20 and the CradlePoint PHS300 were reviewed May 5 by Brett Burney in LLRX. Folks are also discussing WiFi sharing using the “Internet Sharing” setting on certain computing devices in conjunction with wireless cards, as discussed by David Pogue and several messages at Teknoids. Hat tip to John Quentin Heywood and the Teknoids folks. [Robert Richards]

Attention Federal Court Litigators: Statutory Time-Periods Technical Amendments Act Signed

On May 7, 2009, President Obama signed H.R. 1626, Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16 [Thomas]. The Act amends 28 statutory deadlines making them consistent with time-computation amendments to the Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy Procedure, Federal Rules of Civil Procedure, and Federal Rules of Criminal Procedure approved by the Supreme Court on March 26, 2009. The effective date of the legislation is December 1, 2009. [JH]

AAUP Releases Annual Report on Faculty Salaries

"With the broader economy in free fall and new indicators reported almost daily, the economic outlook for faculty members and higher education is anything but clear." That's according to the AAUP's report, On the Brink: The Annual Report on the Economic Status of the Profession, 2008–09  which provides the most up-to-date and comprehensive analysis available of faculty salaries at colleges and universities around the country.  [RJ]

What's Your Retainer Agreement Say About Online Research Billing Practices?

The National Law Journal is reporting that a lawsuit has been filed in California state court against Chadbourne & Parke for allegedly overcharging a client for online legal research costs. Waggoner v. Chadbourne & Parke, No. BC408693 (Los Angeles Co., Calif., Super. Ct.). Plaintiff's counsel, Patricia Meyer alleges that the firm pays a flat fee for online serves which should have resulted in a $5,000 bill for costs to her client instead of the $20,000 billed.

There's appears to be nothing wrong with cost-plus billing but the plaintiff, in this case, claims that it is a violation of California ethics rules to charge the higher amount without disclosing the arrangement. According to the National Law Journal interview with Meyer "that many similar lawsuits are in the pipeline, noting that she has amassed evidence that shows at least a dozen other law firms are overcharging clients for legal research, but not telling them." (emphasis added)

It's only "overcharging" if the online billing practice isn't disclosed and time spent performing research by attorneys and law librarians is usually treated as billable hours. Sounds like firms should review and, if necessary, revise their retainer agreements. [JH]

Tracking H1N1 Flu

Tracking H1N1 Flu?  Then try this page from the CDC which offers advice and updates. Even Google Trends has a Flu Trends Page. [MG]

More on the Death of Newsprint

Newsprint may be dying slowly, but the news is very much alive.  Reports indicate that the Wall Street Journal is going to introduce micro-payments some time in the future for access to individual articles.  The concept will extend to other News Corp. properties such as the New York Post, and other papers around the world.  This is one way for newspapers in decline to sell access to original content.  The Wall Street Journal is a unique publication, but will anyone pay a tiny fee to read about subway crime in the New York Post.  There is competition for the news in New York City.

Howard Kurtz writes in the Washington Post that his newspaper is talking to Google about some form of online collaboration, so far unformulated.  This news should thrill the Post's competitors and possibly the Justice Department.  Ars Technica has an analysis of Google's market strength in non-search products that bring traffic to the site and attention from the DOJ.  A possible deal with the Post can't but bring more attention to Google.  Imagine if it involves subscriptions and some form of payment for news access.  The book sales store is a good vehicle for Google allied newspapers to make money, and Google Checkout may just be a vehicle to process the payments.  Couple that with the ads Google would likely place on a page, and the dollars will flow.  This is pure speculation, but if any one player can alter the delivery of news to make it profitable, it could likely be Google. [MG]

Fake Journals by Elsevier

News in the library community is beginning to spread about the fact that the database Elsevier published a "peer-reviewed" journal that was a shill for the pharmaceutical company Merck. The specific title in question is the Australasian Journal of Bone and Joint Medicine. This journal reportedly published data favorable to Merck products without basis and justified its peer reviewed status by containing excerpts from peer-reviewed papers.

While many law reviews and journals are not peer reviewed the great proliferation of humanities law (or any of its other names), i.e. Law and Religion or Law and Sociology, should cause concern for those studying in fields that their research may have been compromised by actions such as this by database publishers. Additionally, this action begs the question of a libraries ability to trust database publishers and if any similar shenanigans have taken place in legal research databases. 

HT's to the Bioethics.net Blog, this Slashdot article, and @AmandaClay on Twitter who is a librarian at my undergrad alma mater who informed me of this story.   {BB}

Access to Court Records in the UK and Europe

“[T]rans-European research on civil or criminal justice would appear to be impossible given” a lack of access to court records, and inconsistent regulation respecting that access, “in the various European member states,” argue Philip Leith and Maeve McDonagh in their new article, New Technology and Researchers’ Access to Court and Tribunal Information: The Need for European Analysis, 6 SCRIPTed 33 (2009). The authors call for a European-wide study of access to court records, in order to thoroughly document access barriers faced by researchers, and to develop a basis for policy recommendations.

In exploring this topic, the authors provide an enlightening discussion of the public/private status, physical/administrative accessibility, and regulation (particularly respecting article 8 of the European Convention on Human Rights, the EU Data Protection Directive, the UK Data Protection Act 1998, the UK Freedom of Information Act, and cases and administrative materials interpreting them) of court documents in the UK and Europe.  For example, the authors observe that

“judgments from most European courts are copyright of the relevant government or agency. In the UK . . .  there is some dispute over whether the judge or Court Service owns the judgment, and frequently the only text version of a judgment is copyright of the privately employed court stenographer. [] Is, then, [UK and European] court based information public? Answered in toto, it certainly is not.” 

The article is of potential interest to those conducting research on UK or European law, librarians who assist them, those engaged in public policy work respecting access to court records, and those who build or administer digital law collections. [Robert Richards]

Privacy and Goggle Book Settlement's Institutional Subscription Provisions

The Utility of Google Book Search Debate

Recently, on a mailing list associated with new media transformations, there emerged a debate on the inherent utility of Google Book Search. Involving Paul Duguid (UC Berkeley Information School), Danny Sullivan (Search Engine Land), Tim O’Reilly (O’Reilly Media), and Donald Waters (The Andrew W. Mellon Foundation), the debate drew out many of the tensions of Google Book Search. With the permission of the posters, Brantley has reproduced the debate on Knowledge Rules.

On Everyone a User Account, Peter Brantley raises important privacy issues rising from the Institutional Subscription Terms and Conditions provisions of the Google Book Settlement Agreement. Two snips:

[O]n an institutional basis, including in U.S. government agency subscriptions, it might well be the case that users have to establish Google accounts tied to institution boundaries to provide the kind of auditable transaction record and compliance regime specified by the settlement.  If that is the case, then not only will Google know what I've been reading, and what books I've been searching, but they could well correlate with certainty against my news subscriptions, my Google Map searches ... the list grows long.

...

Many universities have previously turned away from Google Accounts for Higher Ed due to privacy concerns, including concerns relating to liability and identification of responsible parties in cases of private, State, or Federal legal action, including subpoena.  They now face winding up entering an unexpected set of relationships through an institutional license with Google.

For much more, see Brantley's post. [JH]

ASPIRE: LexisNexis Does Something to Help Law School Grads Whose Law Firm Employment Has Been Deferred

LexisNexis is offering a very accommodating program, ASPIRE, for law school grads who have accepted Associate positions at law firms, but 1) are experiencing a deferred fall 2009 start date, and 2) are taking on public interest work during their deferral period. The LexisNexis’ ASPIRE Program offers:

• Free access to a LexisNexis menu consisting of federal and state case-law, codes, regulations and law reviews.

• The Martindale-Hubbell Career Center which provides access to non-profit interest and pro-bono job opportunities.

• Online training and materials to be better equipped for public interest work.

• Non-profit companies can post job opportunities for free on the site.

ASPIRE Program details. Qualifying students can register here.

Robert Romeo, SVP & GM Research & Litigation Solutions of LexisNexis, was kind enough to answer the following questions I had about the program.

Q. What's the duration; how long will participants have access to resources under this program?

A. As part of the registration process we are asking for fall associates to provide us with the expected dates that they will be engaged in their public interest position.  
 
Q. If no specific period, how will LexisNexis know when to stop access; case-by-case...?

A. Law firms have announced varying lengths of deferral periods, in some cases up to 12 months from the originally intended start date.  We will be as accommodating as possible to fully support these graduates during the course of their deferral period.

[JH]

Webinar on Using & Searching HeinOnline's Law Journal Collection Set for May 13

The great folks at HeinOnline will be conducting a free webinar focusing on using and searching HeinOnline's Law Journal Collection Wednesday, May 13, 2009 from 2:00 p.m.-3:00 p.m EDT. [Registration Page] Topics to be covered include

• How to quickly pull up a journal article when you have a citation.
• How to search for a journal article by article name
• How to search for articles written by a specific author
• Browsing or searching by subject, state, or country
• Overview of Indexes and Finding Aids available
• How to use the full power of Hein's ScholarCheck tool to connect citations and view citation analysis
• Finding coverage information for a journal title

[JH]

First 100 Days of Obama Internet Policy

On Public Knowledge, Art Brodsky evaluates the first 100 days of the Obama Administration on Internet policy. Key appointments have been made but "Internet policy might have to wait until mid-summer at the earliest, just to get started." [JH]

Disengage From Your PDA and Engage in a "Real" Conversation

Hilarious piece from the Washington post entitled "Text Is Cheap Do Your Friends a Favor: Put Down the PDA and Talk to Them" that offers some prudent advice on proper crackberry etiquette.  [RJ]