Law Librarian Blog

Damage Award Against Microsoft Reversed in Patent Case

The Appellate court for the Federal Circuit upheld a jury decision that Microsoft infringed an Alcatel-Lucent patent but overturned the $358 million verdict.  The patent involved a date picking feature in Outlook and other Microsoft software.  The verdict was based on the total cost of the software.  The Court said the evidence did not support the size of award.  The feature in Outlook was a small part of the application.  The panel sent the case back to the lower court for recalculation.  The opinion is here.  Coverage is here in the Wall Street Journal. [MG]

SharePoint in Plain English

Some say Microsoft's SharePoint may be the fastest-growing product in Microsoft's history even though it may also be as shoddy as the Company's other offerings. It looks like a relatively inexpensive enterprise-level platform for hosting websites, information stores, documents as well as wikis and blogs all in a collaborative working environment. Here's SharePoint in Plan English by the great creative staff at Common Craft. [JH]

Round-Up of Practitioner Blogs

Miami Criminal Defense Lawyer Blog
http://www.miamicriminaldefenselawyerblog.com
http://www.miamicriminaldefenselawyerblog.com/index.xml
Reviews criminal law news, cases and reports in Florida. Published by Donet, McMillan & Trontz.

Atlanta Personal Injury Lawyers Blog
http://www.atlanta-personal-injury-lawyers-blog.com
http://www.atlanta-personal-injury-lawyers-blog.com/index.xml
Analyzes personal injury law news, cases and reports in Georgia. Published by Commander+Pound, LLP.

Orange County Criminal Lawyer Blog
http://www.orangecountycriminallawyerblog.com
http://www.orangecountycriminallawyerblog.com/index.xml
Covers criminal defense news, cases and opinions in California. Published by the Law Offices of Michael L. Guisti.

Business Licenses Blog
http://www.businesslicensesblog.com
http://www.businesslicensesblog.com/index.xml
Provides opinion on business license news, reports and legislation in Delaware. Published by Corporation Service Company.

Olympia DUI Lawyer Blog
http://www.olympiaduilawyerblog.com
http://www.olympiaduilawyerblog.com/index.xml
Reports on DUI law news, cases and opinions in Washington. Published by Owens, Davies, Fristoe, Taylor & Schultz.

Los Angeles Personal Injury Lawyer Blog
http://www.los-angeles-personal-injury-lawyer-blog.com
http://www.los-angeles-personal-injury-lawyer-blog.com/index.xml
Analyzes injury law news, cases and reports in California. Published by Ellis Law.

Washington Injury Lawyer Blog
http://www.washingtoninjurylawyerblog.com
http://www.washingtoninjurylawyerblog.com/index.xml
Covers injury law news, cases and reports in Washington. Published by Williams Law Offices, PLLC

Los Angeles Business And Tax Lawyer Blog
http://www.losangelesbusinesstaxlawyer.com
http://www.losangelesbusinesstaxlawyer.com/index.xml
Provides opinion on business and tax law matters, news and reports in California. Published by Greenberg Glusker.

Michigan Asset Protection Lawyer Blog
http://www.michiganassetprotectionlawyerblog.com
http://www.michiganassetprotectionlawyerblog.com/index.xml
Examines asset protection opinions, news and legislation in Michigan. Published by Weisman, Young & Ruemenapp.

And just in case you need bail in Maryland this Labor Day Weekend ...

Maryland Bail Bonds Blog
http://www.marylandbailbondsblog.com
http://www.marylandbailbondsblog.com/index.xml
News and information on bail bonds in Maryland. Published by Big Boyz Bail Bonds

Google Offers To License the Book Database at Congressional Hearing

The most recent statement from Google about their exclusive control of the content that is subject to the Book Settlement is that they are willing to license it to other resellers.  This came at a House hearing yesterday.  The offered Amazon the option of licensing their scans at a modest price.  Amazon spurned the offer.  Paul Meisner, Amazon's vice president of global policy was quotedas saying “The internet has never been about intermediation.  We are happy to work with rights holders without anyone else’s help.”  Amazon has scanned about 3 million books compared to the 10 million that are subject to the Settlement.  I wonder how Meisner feels about the Yahoo-Microsoft Bing deal?

Peter Brantley, a director of the Internet Archive expressed skepticism about Google's offer of license in a report from the Los Angeles Times.  "I fail to see what's really new here," he said.  "It's like Macy's telling Sears, 'You can sell Macy's clothing.' There's no fundamental change of the conditions under which Macy's acquires those clothes. Google remains in control."  Well yes, it's true.  Google remains in control, just as Random House remains in control of their library of publications no matter to whom they electronically license them.  The major publisher groups and authors who sued Google seem not to be bothered too much with ceding that control to Google in return for cash.  Yes, the product has come from library shelves.  That does not transform the basic character of how this material comes to the public in a commercial endeavor as far as the rights holders are concerned. 

Let's assume the publishers and authors decided to scan their out of print works through agreement with various libraries and selected Google to be the vehicle for scanning and distribution via their search engine.  Would a court or Congress question that?  What to do with orphan works would remain.  Google could probably choose to scan and wait for the inevitable lawsuit and deal with the problem then.  In the current suit, it was the publishers and authors who turned this into a class action that ultimately reached a settlement.  No one is obligated to see a civil suit to the very end. 

Marybeth Peters, Registrar of Copyrights, came out against the deal in spite of generally positive statements earlier.  She based her objections on the fact that the settlement allows Google prospectively scan books published before January 5, 2009.  She says most settlements concern past conduct.  She also objects that the license to scan and sell books is overly broad and should come from Congress rather than the courts.  Representative Zoe Lofgren noted that anyone who didn't want Google to sell their books could tell Google to remove the content from database.  From Lofgren's perspective, the right of control was with the copyright holder.  The Justice Department has yet to file with the District Court.  It has about one more week to have its views before the Court.

The Cornell University Library has offered comments via a letter to the District Court in support of the deal.  The opportunity to have this mass of information liberated from library shelves and made generally available is too irresistible.  Details are here in a press release available through PRWeb.  [MG]

SCOTUS Scores "Just About Right" Rating in Gallup's Latest Poll

As SCOTUS prepares to get down to business, Gallup reports that its 61% public approval rating is the most positive approval rating the Court has received since 2001. The heightened public approval of the Supreme Court is accompanied by an all-time high percentage of Americans saying the Court's ideological tenor is "about right" -- 50%. Two comparisons of Gallup poll results for 2008 and 2009 are provided below. Details and historical data available at Gallup's High Court to Start Term With Near Decade-High Approval. [JH]

Approval Rating of Supreme Court by Party Affliation
Party	Oct. 2008	Sept. 2009
Democrat	38%	75%
Republican	65%	49%
Independent	47%	59%

Supreme Court's Ideological Tenor
Tenor	2008	2009
Too Liberal	21%	28%
Too Conservative	30%	19%
About Right	43%	50%

Friday Fun: Library Pranks, Japanese Style

Note the library staffer in the background [JH]

Tracing the Policy Path of PACER User Fees

Stephen Schultze, a fellow at the Berkman Center for Internet & Society, is looking for feedback for an extensive examination he plans to make about the role of user fees for public access to court records in the budgeting process of the federal courts. At the moment, he is offering his 18-page sketch of the topic in Electronic Public Access Fees and the United States Federal Courts’ Budget: An Overview. Hopefully, he'll upload updated drafts as his work proceeds. Hat tip to Erika Wayne on Legal Research Plus. [JH]

Are Law Schools Making a Mission-Transforming Turn Toward Professional Education?

If your graduates are entering a professional career, one would think providing a professional education would be a no-brainer regardless of the labor market. Not so. In Reality's Knocking, Karen Sloan offers antedotal evidence to support the proposition that "the floundering economy is increasing incentives for law schools to revamp their curricula to prepare students for the realities of the legal profession." Note that most of the examples feature changes at higher ranked law schools.

"Graduates face stiff competition for law firm positions, and clients are balking at footing the bill to train new attorneys," writes Sloan. "Consequently, law school leaders consider it more important than ever to send students into the profession armed with practical skills, not just extensive knowledge of case law and legal theory. More law schools are modifying coursework and adding practical classes to help students develop the skills past graduates have had the luxury of learning on the job."

About this apparent trend, Sloan quotes Washington and Lee Dean Rodney A. Smolla: "I think we are at a moment of historical change across the landscape of legal education. When we look back at this period in five to 10 years, we will mark it as the time when the whole mission of law schools made a fundamental turn."

Maybe. Hopefully. Have academic law librarians seem evidence of this "fundamental turn" in revamping the teaching of legal research? Will law firm librarians be meeting new hires better qualified to perform legal research or remain on-the-job instructors of cost-effective print and electronic legal research? See LLB's post on Patrick Meyer's recently published Law Firm Legal Research Requirements for New Attorneys, 101 Law Library Journal 297 (2009). [JH]

Through the Dharma Gate, Down the Rabbit Hole: Cincinnati Law's Paul Caron on "What's Wrong with Law School"

In a post entitled, What's Wrong with Law School, Cincinnati law prof Paul Caron quotes UC-Irvine Law School Dean Erwin Chemerinsky from a recent Los Angeles Times story about the opening of the law school, UCI Law has status, not tradition. Dean Chemerinsky was reflecting on his own legal education to compare it to UC-Irvine Law's mission. Chemerinsky was confident that his HLS JD would open doors but he was certain he had not received a good legal education. "The law faculty [at Harvard] wanted the best students they could get and then have nothing to do with them after they arrived," said Chemerinsky. "Teaching is the most important thing we do."

Caron adds

I was struck by the very different attitude at my son's liberal arts college -- the faculty there overwhelmingly rejected a proposal to reduce the teaching load from five courses to four because they did not want to detract from the teaching mission of the school.  I wonder if any law school faculty has voted down a proposal to move from four courses to three.

About the teaching mission of law schools, Caron writes "Dean Erwin Chemerinsky pinpoints a problem afflicting many law schools." To which I add "including the University of Cincinnati College of Law" based on personal observation, student criticism and Cincinnati Law grads who swear they will never give the school a dime because so many of their law profs wanted to be anywhere but in a classroom.

The Long Uphill Climb for Law Schools. Struck by the "very different attitude" ... did Caron just pass through the dharma gate, tumble down the rabbit hole? Is he now going to argue the case for increasing teaching loads during the next faculty meeting debate on teaching vs. freeing up even more time for "faculty scholarship"?

It's going to be a long uphill climb to educate law students for the profession of law when so many members of the legal academy strive to acquire status for themselves and their law schools by trying to "be like Mike Harvard." Few law schools, certainly not Cincinnati Law, have Harvard's resources and prestige to bifurcate faculty hiring and retention into teaching faculty and high profile scholars. To his credit, students of Caron's tax courses regularly give him high marks. So if he can't persuade the UC Law faculty to increase their course load, perhaps he can lead by example by voluntarily increasing his own substantially. Read, one more course a semester or even an academic year. Teaching Into to Law for a week doesn't really count.

At the moment, my hunch is UC law profs are holding their breath waiting for the July 2009 Ohio Bar exam results. They can't get much worse than 2008's last place passage ranking; they also took no responsibility for the unprecedented results. Click on chart, left. See also 2008 Ohio bar results and 2001-2007 results. Dumb students? Not likely, certainly not based on Admissions Dean Al Watson's track record as measured by LSAT/GPA enrollment stats.

Too many adjuncts teaching substantive law courses, too many senior profs on sabbatical when the Class of 2008 was attending UC Law. Calling up players from the minors instead of calling on cite-checking bench-warming veterans to step up to the plate to take a swing at teaching has been the team manager's game plan. The latest example is this month's shout out for a pinch-htting visiting prof for the Spring to teach Corporations I and one other business-related course. "To clinch the deal" the Associate Dean for Faculty "will throw in a ticket to the Cincinnati Reds opening day baseball game.".

A classic example of a weak dean following a strong dean, the current UC Law Dean wants faculty votes for renewing his contract. Caving-in works. But it might be time to get back to the business of legal education, which is preparing law students for the profession of law. The ABA site inspection isn't beyond the horizon anymore. Perhaps the appointment of a former OSU law dean, Gregory H. Williams, president of the University of Cincinnati will turn this situation around. [Press Release | Profile].

The Legal Education Imperative. Cincinnati Law is just an illustration of what's wrong in the legal academy. Penis Status envy produces an uphill climb to the bottom. To find law schools that take teaching seriously, turn the US News Ranking upside down and then sort out the gems from the rubble of Third and Fourth Tier schools. Law schools will have to shift direction if the ABA-AALS cartel is serious about reforming accreditation standards, at least until they figure out a way to game any new output metrics. Frankly, I'm skeptical about self-policing. Maybe state and/or federal education agencies should take over. 

Chemerinsky is right. Teaching is the most important thing law schools do, or should be doing. U-Irvine is setting the example while becoming an elite school by hiring scholars who will teach and promoting skills programming to the level of assocate deanship. Granted, it's early -- a small inaugural tuition-free-ride for the 1L class with more students and more faculty to come; it's easier -- creating a "green" culture at a start-up law school takes much less effort than detoxing a contaminated culture at established schools. Ultimately it is going to takes law profs willing to follow deans inspired by a moral imperative to reform legal education. 

"Down, down, down. Would the fall never come to an end! `I wonder how many miles I've fallen by this time?' she said aloud. `I must be getting somewhere near the centre of the earth. Let me see: that would be four thousand miles down, I think--' (for, you see, Alice had learnt several things of this sort in her lessons in the schoolroom, and though this was not a very good opportunity for showing off her knowledge, as there was no one to listen to her, still it was good practice to say it over) `--yes, that's about the right distance--but then I wonder what Latitude or Longitude I've got to?' (Alice had no idea what Latitude was, or Longitude either, but thought they were nice grand words to say.)"

[JH]

Are a Public School Teacher's Personal eMail Messages Disclosable as a Public Record?

The Wisconsin Supreme Court will decide later this fall whether personal public school teacher emails are public records.  The case involves a citizen request for the emails of Wisconsin Rapids School District teachers conducted at their work computers from the time period of March 1, 2007 through April 23, 2007.  The citizen, Don Bubolz admitted he was on a fishing expedition to see if teachers violated school policies by discussing school board elections.  He argued that the emails were generated on taxpayer equipment and on taxpayer time.  The teachers object as their work mail accounts have a mix of work-related and personal messages.  They at least wanted the personal messages redacted.  The trial court took a broad view of what constitutes a public record in Wisconsin under the language of Wisconsin Statutes § 19.32(2):

(2) "Record" means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. "Record" includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. "Record" does not include drafts, notes, preliminary computations and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.

§ 19.31 provides for "a presumption of complete public access, consistent with the conduct of governmental business." 

It's the "personal use" exception at issue here in § 19.32(2), especially since the District's policy allows for the assigned governmental accounts to be used for personal purposes.  I gather from the amicus briefs that a number of governmental entities in Wisconsin have similar policies.  It is a case of first impression in Wisconsin.  Florida has ruled on the issue saying that personal emails on government computers doesn't make them public records if they are unconnected to the business of government.  Florida's public records law is similar to that of Wisconsin, State of Florida v. City of Clearwater, 863 So. 2d 149, 153 (Fla. 2003).  Arizona has a similar ruling, Griffis v. Pinal County, 215 Ariz. 1, 156 P.3d 418, (Ariz. 2007).  Idaho has ruled that personal emails are subject to disclosure if they relate to government work, otherwise not, Cowles Publ’g Co. v. Kootenai County Bd. of County Com’rs, 144 Idaho 259, 159 P.3d 896, 899-900 (Idaho, 2007).  There is a Wisconsin case that favors disclosure of emails and other records when the discipline of a teacher revolves around excessive or unauthorized personal use of government computers, Zellner v. Cedarburg School District, 300 Wis.2d. 290, 731 N.W.2d 240. The present disclosure case is not a disciplinary case.   

The School District says in its filing says it conducted an analysis under the statute and concluded that emails were not "preliminary" in that they were delivered to third parties in final form.  The District also argues that by sending the email to a another party the use no longer becomes personal, because it has, in fact, been communicated to someone else.  For the District, the content has nothing to do with defining what is personal.  My reaction to that line of argument is, with apologies to Charles Dickens, if the law supposes that, the law is an ass.  I tend to agree with the other state courts that have addressed the issue.  They interpret personal as content not related to government work and not disclosable.  That approach seems too pragmatic for the District.

The fact that these cases come up should alert anyone working in a government/state job that mixing work and personal matters on a work email account is a bad idea.  The law as written could be more specific to avoid these kinds of case and administrative interpretations.  In lieu of that, however, there are some practical steps individuals can take to avoid disclosure of personal email.  One is to access one of the many web-based free email services for personal communications.  Granted that some public entities restrict access to the general web for employees, but for those who don't, this is an option.  It would have likely been an option at the District as they allowed personal use of government computers. At the same time, don't use personal email for work related issues.  A private email account is under the control of the employee and not the government employer.  Work related content in private email may become a public document in some circumstance, and may be subject to discovery or disclosure no matter who controls the account.

There is a general feeling that even though email has a sense of privacy in the communication, it really doesn't work that way.  Any recipient can forward or otherwise expose content to anyone else.  It may be a bit extreme to say if it can't be said to the world, it shouldn't be said at all.  That approach is obviously not practical in a lot of situations.  For purely personal materials, however, it should lurk in the background.

The story on the case is from the State Bar of Wisconsin web site, and the briefs are at the Wisconsin Court System web site.  The action is titled Karen Schill v. Wisconsin Rapids School District, Appeal Number 2008AP000967 - AC [MG]

Are all law librarians legal positivists?

Or, put another way, should all law librarians acknowledge that their job is to be legal positivists?  Legal Positivism is a school of Jurisprudence which holds that the only legitimate source of laws comes from written laws specifically enacted or adopted by a government body.  Legal Positivists don't try and answer what the law ought to be, but what it is.  As John Austin put it, “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”

When someone comes to us as librarians and asks. "What is the law regarding the constitutionality of book burning?" we do not answer, "I find it distasteful and thus it couldn't possibly be the law."  On the contrary, if we are doing what we are expected to do, we find the relevant statutes, regulations, caselaw, etc.  If it is a gray area, we note it.  We may then even seek out treatises and articles from scholars to illustrate the gaping whole of the matter yet unsettled.

Does this topic ever matter?  Well, perhaps it may help us become more self-aware.  Are we merely passive observers to the workings of the subject which surrounds us?  Perhaps it can help us define our roles in the legal community.  Perhaps not.  All I know is that no one cares what I think about the law, but rather that I know how to find the pieces of the puzzles for them. And I'm fine with that. I may well even prefer it. (DCW)

The International Conference on Academic Libraries & PKP

The International Conference on Academic Libraries meets in Delhi this October with an eye to create a future roadmap for academic libraries.  The Conference, idea, and location are all intriguing, but what I want to report on is the conferencing software being used to organize the conference.

Open Conference System is a free conference management and publishing system (using LAMP) made available through the Public Knowledge Project. PKP's mission is to explore how new technologies can be used to improve the value of open scholarship to the generally public by partnering faculty, librarians, and graduate students.  Toward that end, they make available two platforms that should be of interest to Law Librarian Blog readers.  One is for conferencing and the other for OA journals.

Open Conferencing System
Their open conference software is quite friendly and can be used for organizing a conference and accessing post-conference materials.  For example,when organizing a conference PKP allows you to:

• Create a conference Web site
• Compose and send a call for papers
• Electronically accept paper and abstract submissions
• Allow paper submitters to edit their work
• Pay for conference registration via Paypal

Post-cenference materials are browsable and searchable by author, title, abstract and index terms - and are OA using Creative Commons Licensing. A really nice feature is the ability to integrate online discussions with the program materials.  Using this type of system involved conference attendees in helping plan and set the agenda and continue doing so up and until the conference begins, and will allow the discussions to continue past the conference meeting. 

They are currently looking for beta testers for the latest version of their software, OCS 2.3.  You can review other PKP conferences at http://pkp.sfu.ca/ocs-conferences. 

Open Journal Systems
There has been a lot of discussion about making our law journals available online, for free, in a stable and open format.  PKPs OJS is management and publishing system developed to help fulfill goals like those espoused by the Durham Statement.  A sample list of journals using PKP can be viewed at http://pkp.sfu.ca/ojs-journals (this is a sample list as there are more than 2,000 peer reviewed journals using OJS since its inception in 2002).

With OJS, the submission, management, and review process is controlled at the local level.  It also provides granular level indexing to complete the workflow process.  Its plugin architecture makes it easy to add new features such as those that facilitate indexing in Google Scholar, authentication (if needed), and COUNTER. I also like the ability to integrate mutimedia files into journals, and the ability to collect comments. Finally, OJS is LOCKSS compliant, ensuring ongoing access to journal content.

If you want, you can take it for a test drive on the OJS servers.  See http://pkp.sfu.ca/ojs_demo for your logon information.

There are many other tools that we can take advantage of in our efforts to present and conduct our activities in a professional manner and in pursuit of an OA world.  I found PKP to be relevant because they are already working with other countries to develop scholarly portals (for example, see African Journals Online at http://ajol.info where I first learned about OJS). If anyone has experience with PKP, I would appreciate your feedback. (VS)

Lexis offers sexy cheesecake calendar as part of rewards program

LexisNexis has just upped the ante in its competition with Westlaw for your online research dollars.  Above the Law is reporting that Lexis has embarked on a new "rewards" program that allows subscribers to redeem points for "millions of items."  One of them is a pretty racy cheesecake calendar pictured here (scroll down).   As described in the subscription only Lexis "rewards" catalog, it is "tasteful and glamorous but pushes the edge of sexy glamour photography."  Only 1261 Lexis reward points and you too can hang it on your office (or garage) wall.

We'll wait to see how Westlaw responds to this latest salvo.

Hat tip to Above the Law.

(jbl)

IALL 2009 Website Award Contest

The International Association of Law Libraries (IALL) is seeking nominations for its annual website award contest. Here is the announcement:

This is an opportunity to nominate your favourite legal information website. The winner will be announced at the 28th Annual Course in International Law Librarianship in Istanbul (Turkey), 11th - 15th October, 2009.

With this Award, the Association seeks to recognise and promote free legal information websites that are authoritative, comprehensive, up-to-date, useful, and user-friendly. The selection panel will make its decision based on these criteria. The websites nominated may be those designed specifically for researchers, information professionals or librarians, in a national or international context. Websites that have a connection to the members of the selection panel cannot be nominated. The Association also wishes to emphasise that selection is not restricted to English language websites; sites in all languages are welcome (check the previous winners of the Award).

The selection panel for the 2009 Award is Ligita Gjortlere (Riga Graduate School of Law), Xinh Luu (University of Virginia), Teresa Miguel (Yale Law School) and Mirela Roznovschi (New York University).

Please send (1) the names and web addresses of your recommended websites and (2) your comments by the closing date of 14 September 2009 via E-mail or mail to:

Ligita Gjortlere
Riga Graduate School of Law
Strelnieku 4K-2
Riga LV-1010
LATVIA

I will submit my nominee (Audiovisual Library of International Law - http://www.un.org/law/avl/) in the next day or two. What will you nominate? [RLS]

Google to Defend Book Settlement Before House Judiciary Committee Today

Google's Vice President of Corporate Development and Chief Legal Officer, David Drummond, will be quizzed by the full House Judiciary Committee this morning as will be Paul Aiken, Executive Director of the Authors Guild. The speaker list also includes Paul Misener, Vice President of Global Policy, Amazon.com, and Marybeth Peters, Register of Copyrights. ZDNet Government's Richard Koman writes "the speaker list seems to me a bit heavily weighted to the Google forces, but perhaps that is so the congressmen can tell the dealmakers what they think."

Meanwhile U.S. District Judge Denny Chin and his clerks have plenty to read before the Oct. 7 Fairness Hearing. More  than 60 groups and individuals have filed objections to the Google Book Settlement. See 11th-Hour Filings Oppose Google’s Book Settlement (New York Times) and Google May Have to Modify Book Settlement for Judge’s Approval (Bloomberg). For a summary of one objection, see Microsoft: Google Books is illegal 'joint venture,' not settlement (ZDNET Government).

On Fairness Hearings.Hat tip to to Alexandra Lahav (Connecticut) on Mass Tort Litigation Blog for calling attention to William Rubenstein's The Fairness Hearing: Adversarial and Regulatory Approaches, 53 UCLA L. Rev. (2006) [SSRN]. [JH]

"You have to start all over" when a new Justice joins SCOTUS: C-SPAN's Interviews with Supreme Court Justices

Here's some excerpts from C-SPAN interviews of Supreme Court Justices -- to be shown in their entirety during C-SPAN's "Supreme Court Week" beginning Oct. 4, 2009. Tied to Sonia Sotomayor's first appearance on the Bench, the quotes reflect Justice's thoughts on how new Justices affect the Court, first days on the Court, and being a female Justice. More info on C-SPAN's Supreme Court website and SCOTUS YouTube page. See also Tony Mauro's post Supreme Court Opens Up to C-SPAN. [JH]

Not a West! Moment: Hi, my name is Jen and I'm your Matthew Bender Account Manager

Jen has been my Matthew Bender account manager for about a year now but I haven't needed to call on her services much because, unlike the folks from the land of 10,000 invoices, you don't need to be a brainiac to understand the LexisNexis billing system. A few weeks ago I did have an occasion to call her for help (and it's ever so easy because her name and phone number is on every invoice). I was trying to buy a title online as a government buyer but the online registration system wouldn't accept my email account because our county domain is registered as an .org instead of a .gov. So I dropped Jen a little note, thinking I would get a reply back in a couple of days.

Not! Jen emailed me back the same day to say she would rather I order titles by contacting her directly because she could then offer me a 10% discount. Now, I have learned that if you have a real live person as your vendor rep and you ask the rep what he or she can do for you, you can sometimes get a quick 10% off, but you have to ask. I forgot to in this instance because I was having a senior moment. So thanks, Jen, even a $35 savings matters.

A Rock Star. But that's not the point to this story. We're in the process of changing our internal accounting system to better track where our spending is going, literally, to which location, our main library, our branch library, our courts, etc. Under our current system we have a pretty clear but not crystal clear picture of what we are buying, for whom, etc., so it was time for a reality check with some of our vendors.

I wanted a 12-month analysis of our accounts by ship-to address for titles, number of copies and total annual cost. I started the phone conversation with Jen by joking that this is the sort of call one gets when one provides good customer service. I explained what I needed, even mentioned that we probably will be following up with some cancellations once I compared her information to mine, told Jen I didn't need the information immediately and hung up the phone, hoping I wouldn't have to make a follow-up request for additional information. Yes, I was in a West frame of mind.

That was a Thursday afternoon phone call. First thing Monday morning, my email in-box contained a spreadsheet from Jen along with an apology for taking so long (you got to be kidding!) because to meet some of my data specs, she had to pour some info into the spreadsheet by hand. And the data? Everything I needed to confirm our own analysis. My rep is a rock star and I let Jen know that. I also called her supervisor to let him know I was in love with Jen in an Excel sort of way.

My West! Moment. Meanwhile, back in the land of 10,000 invoices and account reconciliation (AR) reports that take a set of colored pens to map, I've been waiting almost two months for one human being to be appointed my primary West rep for billing purposes. I know they exist ... somewhere ... Having reached a breaking point, the West! moment, other library directors have insisted and some have even managed to get one human being assigned to their accounts. After a fiasco with West's billing department that lasted several weeks, I really, really, really want to get on a first name basis with one. 

Plan A. About the fiasco, I will say up front that it was mutual. We messed up some and that was a "my bad" because I didn't sufficently explain how to draw down aged payable credits for a Westlaw account that including print invoices, but so did West. On our part we missed paying a fair number of invoices over the course of several months after making advance payments to three accounts totalling $149K. We knew the problem existed and also knew that the best way to perform our analysis was to wait for West's "Second Notice" because the publisher's AR reports are an unmitigated disaster. If you have never seen one, imagine a horde of fire ants feasting on a dying worm baking on a hot sidewalk consuming what remains of any motivation you may have had to send West a check.

On their part, one West billing clerk didn't know which invoices to credit a $3,700 payment she received from us because she said she doesn't get the backup that itemized the invoices covered by our payment. After weeks of repeated phone calls between this person whose calls consisted of repeating the same questions to my library's bookkeeper -- did I mention the phone connection was always terrible, her email account didn't work, and our faxes may or may not have gotten into her hands  -- I did the "director thing" by stepping in to inform her:

1. we were working out the accounting at our end; 

2. we would have a check to West as soon as it was sorted out; 

3. we did not want her to touch the payment she did not know where to credit because we would inform her of the invoices it should be applied to;

4. we do not want a call from her again about this matter (because each prior call was just a reiteration of the same questions); and

5. we do want a call if some other unrelated problem arose in the meantime.

I thought I got the message across when I hung up the phone (I used my "stern" voice -- hell, it sort of worked with my teenage step-sons).

Plan B. Wrong! She (hereinafter as "No. 1") called back twice with the same two questions in a span of 10-minutes after I hung up the phone! Time for Plan B. I emailed my Westlaw rep because he is the only person at West I know by name, saying I never wanted to hear from No. 1 again or to hear from anyone else about this particular billing fiasco again because we almost had it sorted out. I followed up that email with another to him explaining: (1) I had used my "stern" voice in the first email so he could push it up the chain of command; (2) I wasn't upset with him; and (3) I knew that this whole matter wasn't really his job but I had no one else to turn to for help.

So ... of course, a couple of days later I get a phone call from a new billing person, oh, let's call her "No. 2," who wants to go over this. I repeat everything I had told No. 1. See i-v above and note the number of ordering systems being used in this post: alphabetical, roman and arabic but not yet chinese numerals.

 "By the way, No. 2," I added, "we still have over half of last year's $149,000 advance payment in three accounts unspent -- sitting in West's bank account -- so 壹 I think we're good for 'it' (hint) and 貳 if my instructions are not followed we will never make another advance payment to West again (threat)." No. 2's response, "oh." She did not call back so it was looking like real progress was finally being made. We could finish the task at hand without repetitious interruption.

So everything gets sorted out at our end. We've itemized our invoices for cutting a $29K check  -- remember, this ended up taking a couple of months to sort out because of the maze that is West's accounting system, all the communications problems we had with No. 1, and our need to tie payments to specific invoices -- and we identified the invoices to apply the $3.7K payment West received but had not yet credited. I was feeling this long ordeal was about to be over until ... wait for it ... I pulled up a new AR report to compare it to the the old one I was using. Silly me, other than have a few new invoices, I thought they would be the same.

Not! Someone in West billing, No. 1 or No. 2 (or No. 3),  applied the credit I asked be left untouched and did so by picking invoices out of thin, namely older ones we were about to pay. Yup. We had to readjust our accounting records, list of invoices for the special check we were a nanosecond away from writing, and that check's amount.

Plan C. Enough was enough. Time for Plan C. Once again I contacted my Westlaw rep. This time to tell him to come to my office because I was hand delivering the check to him along with every shred of backup information the land of 10,000 invoices and lousy online "My Account" system could conceivably need for their end of this transaction. Backup information included but was not limited to an annotated and color-coded AR report that mapped out everything. You see, I was a bit concerned because I was also providing a second check to pay our current invoices. Two checks to West at the same time for the same account might be problematic. By this time my library's bookkeeper was recommending that we only make advance payments to vendors who have relatively straightforward online accounting systems and procedures for crediting all payments that include following our instructions.

It may not be my Westlaw rep's job to pick up checks but when I have to spend this much time in addition to the time spent by my library's bookkeeper and professional accountant along with my instructions to West not being followed, this was the only way the Company was going to get paid. So we turned back the pages of legal publishing history to the late 19th century when John West hit the road to acquire subscribers and payments. The only difference being that West traveled by train and horse and buggy, and my Westlaw rep drives a car.

Yes, he got an earful in my office. In addition to hearing that I would never again make a six-figure advance payment on future invoices to West, I demonstrated how straightforward Matthew Bender's online "My Account" system was. Need we mention that West has had a hundred year head start on LexisNexis in establishing an accounting system? This is when my Westlaw rep, finding himself in the wrong place at the wrong time and listening to my "stern" voice, suggested we realign some of our accounts (fine by me) and have a single person manage my billing at their end (great!).

A + B + C = So where do we stand? Looks like we're transitioning some of our accounts but no dedicated billing manager yet. The two month anniversary of our face-to-face meeting is just around the corner. In payment processing, I've noticed a couple of credits but I haven't canceled anything. So I've got a question or two if I ever get a rep assigned (I promise I won't hold this West! moment against you). Until then, I'll take credits from West any day of the week. At least that shouldn't result in endless phone calls from No.1 or No. 2.

Oh, by the way, did I mention that the reason given for the overly aggressive collection activity was that the folks who do billing for government accounts for West also do billing for law firms and sole practitioners, some of whom aren't paying their bills. Apparently having the words "county" and "law" and "library" strung together in an account name or on our checks doesn't register.

Hi, my name is Joe and I'm the law librarian who pays West invoices but I'm not the only law librarian who has experienced a West! moment, nor the only one who is shedding West from his library. Indeed it is about pricing but it is also about customer service. Maybe I'll start writing 10,000 checks to the land of 10,000 invoices  (a/k/a Plan D) or just stop writing checks to West (that would be Plan E). I don't think John West would be real happy about any of this.

Love you, Jen.

Okay, okay, you too Pete (BNA) and Rob (Aspen) and maybe you too Rob (Westlaw) if I get my own billing rep by the time our Westlaw contract comes up for renegotiation in December of 2010. [JH]

Attorney Use of Free Email Services and Third Party Communications

Is the use of free email services like Gmail and Yahoo for client communications a violation of Rule 1.6(a) of the ABA Model Rules of Professional Conduct because  lawyers are revealing client information to a third party? Toby Brown says "yes" in Use Gmail - Waive Privilege? Check out his discussion of both email providers' TOS and the comments to his post on 3 Geeks and a Law Blog. See also Toby Brown's two follow-up posts: Gmail Waives Privilege - Part Deux and More on the Dangers of Freemail. [JH]

Law firms begin to develop policies on social media use

I'd previously posted on the Legal Writing Prof Blog a story about the USMC banning soldiers from using social media because, among other reasons, the security risks these forms of communication present.  I speculated in the post that private law firms might not be far behind and lo and behold comes this post from the Legal Blog Watch reporting that several firms are doing just that.

[L]aw firms are beginning to develop guidelines for social media, to ensure that social media activities by the firm's individual lawyers remain consistent with the law firm's image. Unfortunately, some of the contemplated policies seem a bit draconian. For example, at Boyle Fredrickson, a law firm now developing social media guidelines, attorney Adam Brookman expressed the following concerns about a firm attorney using the testimonial feature on LinkedIn:

The bigger concern if you say something [in a testimonial] about somebody in-house or a former employee who ends up terminated, is that raises some potential employment issues, so you have to be very careful.

Another firm said that it discourages lawyers from setting up profiles on more recreational sites, like Facebook or Twitter, which doesn't make much sense to me. After all, these so-called recreational sites enable lawyers to build personal connections with potential clients, which can help generate business.

LBW has invited readers to comment about whether their firms are doing something similar.  We invite our readers to do likewise in the comment link below.

(jbl)

Will Microsoft buy Blackboard in 2010?

That's the hypothetical being posed by a blogger on the Inside Higher Ed website.  Five reasons are suggested as to why we should expect to see Microsoft acquire the education-ware maker sometime next year.

1. The education market will continue to grow and is an important sector for a technology and platform company to have a presence. The CMS is increasingly at the heart of the campus educational experiences and is integrated with other campus services. The opportunity to offer schools a vertical and integrated solution (from server OS, to communication/collaboration, to storage and the CMS) will be attractive to many institutions. A good business case can be made that Blackboard will provide reliable earnings into the future due to ongoing subscriptions from the large customer base, with opportunities to leverage the existing sales force for new customers while up-selling to other services and platforms. Microsoft has the scale in marketing and sales to grow the CMS business internationally.

2. Buying Blackboard will instantly address the problem of Microsoft losing relevance in higher education. Google's Apps for Education program is rapidly gaining traction, crowding out the traditional Exchange based contracts. Students and faculty increasingly prefer Apple products and the Apple OS for high-end machines, with Linux and the Google Chrome OS posing a significant threat for low-end computers. Purchasing Blackboard will immediately make Microsoft relevant on campus, particularly if the purchase allows services to increase and costs to be driven down due to the scale and existing products that Microsoft can bring to the business.

3. The CMS market will evolve towards the cloud. Multi-tenancy (many customers running on one instance) allows cloud applications to scale, radically reducing per unit cost by distributing inputs such as power, cooling, backup, maintenance etc. over many users. Educational institutions that have existing local Blackboard instances will strain to meet the financial and people resource demands as complexity increases. Growth in the CMS market will largely need to be in the cloud, as both secondary schools and international educational providers will not be able to afford to local run and maintain the CMS. Microsoft will be able to leverage the enormous investments the company has made in its cloud infrastructure to both increase the capabilities of the CMS and drive down costs per institution.

4. Microsoft could improve the Blackboard experience by bundling in cloud based services such as personal storage, robust presence awareness and collaboration, and integrated calendaring, messaging and e-mail. Web-based productivity tools (Office Live - documents, presentations, spreadsheets) could also be integrated into Blackboard for more powerful authoring and sharing of content. Bundling all these services seamlessly into Blackboard would erode the momentum that Google has been gaining on campus with Google Docs. Integrating Microsoft's search technology into Blackboard (search is terrible in Blackboard) would be great way for Microsoft to leverage this technology within a vertical market. Allowing students and faculty to tag content that is open, and then having a universe of open content from Blackboard to search for and display in Blackboard (or even from Bing) would represent an advance over Google in search.

5. Education is an important core value for the Microsoft culture. Extending Blackboard to schools and universities throughout the world with locally appropriate pricing (made possible by Microsoft's data center scale) will contribute to and extend Microsoft's mission of empowering people through technology. Bill Gates' effort to offer great lectures to the world through the Web with project Tuva can be integrated and expanded into a Microsoft owned Blackboard business. Think of the depth of educational content that Microsoft could capture, share, and distribute in conjunction with a cloud based Blackboard sitting on a universal database of learning materials. For years Microsoft has had a presence in offering learning content, an effort that never gained any traction in higher education. Using Blackboard to both aggregate and distribute learning content on a worldwide basis would build on efforts such as MIT's Open CourseWare, and be a counter to efforts by Apple and Google in this space.

I wonder if anyone from Microsoft is going to read this post? Microsoft needs to find a way to join a larger conversation in higher education beyond their installed SharePoint / Exchange base. The truth is that Microsoft simply has not felt very relevant to innovations in learning technology for the past few years. One signal that they care about this space would be to find ways to engage our community in debate and discussion.

What do you think? Is Blackboard too small a company to take advantage of the opportunities they have created by rolling up the for-profit CMS space? Is Blackboard an outlier in a world of consolidation within the technology industry? Is Microsoft the right company to purchase Blackboard? Would this be a good or bad thing for higher education? What do you think the odds are that I'm correct that we will see a Microsoft purchase of Blackboard by the end of 2010

  Here's a link to the full post.

(jbl)