October 31, 2011
Librarians, Vendors and AALL: Is anyone really asking (or expecting) AALL to do their jobs for them when conducting business with vendors?
In calling upon AALL to doing something in terms of consumer advocacy for its institutional buyer members in the commercial marketplace, some, well at least one, professional law librarian, apparently thinks law librarians are not performing their jobs:
Asking AALL to do your job because you don't like your choices is, in my mind, shirking your responsibility to your firm and not meeting a requirement of your job.
The context of that statement was the petition requesting AALL's Executive Board approval of the Consumer Advocacy Caucus and how this law librarian was not persuaded it was needed. No problem; it certainly is not a matter of "my way or the highway." But I decided to test the notion expressed above.
So last Wednesday night I asked an audience of professional law librarians as institutional representatives directly or indirectly responsible for providing legal resources and research tools to their user populations if they expected AALL to do their jobs for them. The answer was "no." It was unanimous. Do note that I did not contextualize the question by saying "based on AALL's vendor-institutional buyer track record, do you… ."
Granted this was a fairly small sample size, about 20 or so law librarians. The forum was a MichALL dinner attended by MichALL elected officials as well as some law firm librarians and several academic law librarians. I had been invitied to speak on "consumer advocacy in the legal publishing industry." So I am also assuming some in the audience were interested in the topic in addition to sharing dinner and conversation with their colleagues. (BTW, many thanks to all who attended for the warm welcome I received.)
I cannot say definitely that all the law librarians promoting and supporting the Consumer Advocacy Caucus petition which is scheduled for consideration by our Executive Board on Saturday, Nov. 5th are a bunch of law librarians who are "shirking" their responsibility to their employers by waiting for AALL to come to their rescue but I seriously doubt even one is. Certainly based on AALL’s track record, that would be absurd.
A more “robust consumer advocacy equal to AALL’s promise” is what Caucus supporters are asking and, unfortunately based on our association’s past track record, recent developments and current promises that few have any reason to believe that will be fulfilled without a bottom-up grassroots effort by way of a caucus with the following statement of purpose:
The AALL Caucus on Consumer Advocacy will recommend to AALL that it petition appropriate government bodies for specific remedies to ant-competitive and unfair business practices by legal information sellers.
Quoting from Tab 13 of the Board Book for the Nov. 4-5, 2011 Executive Board Meeting.
Our professional association’s top-down manhandling of this situation isn’t stopping law librarians from doing their jobs but isn’t helping in any way either. In fact it is and has been an obstacle for quite awhile. This isn’t a new issue. Even before the current recession, the latest series of criticism about AALL not representing the interests of its institutional members started in 2007 after our annual meeting in New Orleans. Betsy McKenzie, Director, Moakley Law Library and Professor of Law, Suffolk Univ Law School launched the most recent cycle of criticism for the first time in the blogosphere in two Nov. 2007 Out of the Jungle blog posts. Hence I think we should start there.
Excerpts from Betsy’s Saving AALL - Looking to the Future (Nov. 6, 2007) post:
AALL officers have stated that their reluctance to allow criticism of vendors is not based on their fear of losing support, as I had supposed, but, as [then AALL President] Ann Fessenden wrote to LawLibDir-L, the decisions were based entirely on advice from AALL’s legal counsel. She advised that the association needs to avoid antitrust violations such as price-fixing, including “...any concerted effort or action that has an effect on prices, terms or conditions of trade, or on competition.” Thus, under the legal counsel’s advice, AALL decisions were to avoid programming, publications or other communications that could allow inferences that members were agreeing to “... take any action relating to prices, services, production, allocation of markets, boycotts, refusals to deal, or any other matter having a market effect.
The AALL attorney has also advised that our programs and publications are not public forums for purposes of free speech, and that AALL is responsible for statements made by speakers at our programs and in articles in our publications.
Ann cited this particular concern as being the reason behind canceling the one program that Ken Svengalis was giving, under the auspices of the SCCLL-SIS, at New Orleans meeting, because the program description included the word “boycott.” Ann also cited this concern as the basis for the editing of the report [CRIV member] Stephanie Marshall prepared of Ken’s other program that went forward, “Globalization.” One can imagine the same concerns were the reason that Ken was pressured to minimize his criticisms of Thomson-West.
At this point , AALL’s narrow and cautious interpretation of antitrust law is strangling its ability to represent members’ and our patron’s interests in a time of huge change in legal publishing. … If we have no ability to criticize the vendor and publishers’ policies, there is no voice at all, no consumer-oriented voice in the developing market of digital/print legal information.
Betsy closed this post with the following:
I repeat my plea of Nov. 2, to the leadership of AALL: Please move to save our wonderful organization and keep it from being marginalized!
Sound familiar? This, by the way, was a follow-up to Betsy’s Can AALL be saved? (Nov. 2, 2007) post, which led off with this statement:
As a 21 year member of AALL, I call on the current Executive Board members and the new Executive Director, Kate Hagan, to take this opportunity to save our organization. And I really mean SAVE AALL. ...
It is one thing to fail to confront vendors about their unfair business practices; it is something else entirely when our Association attempts to silence members who are not even expressing personal opinions, but are reporting on either a vendor visit or a program at the annual meeting. I say the Association must either reform itself or die and be replaced!
(Emphasis in the original.)
Well, AALL hasn’t reformed itself since 2007. There remains the great kerfuffle over the proposed Antitrust Policy. While it was officially rejected by the Executive Board last summer, it has still been implemented in spirit in AALL's e- communications rules at the national and chapter level. As LLB co-editor Mark Giangrande said during the MichALL dinner conversation the only people protected by AALL’s policy are the vendors. Therein lays the problem. However, even under this virtual (read electronic) gag order I serious doubt anyone is not doing his or her job but some are questioning AALL’s motives.
I have loved my association for more than 20 years. I joined in 1986, as a freshly minted, eager, hopeful (not quite so young) law librarian. And I have been a member of AALL ever since, as well as a member of whichever regional chapter I lived nearest. But, this is like a lot of marriages....
I have to say, honey, your bad habits are starting to really wear on me!
Were you always so damned conservative with your choice of counsel?!
And have you always been this sneaky?!
I hate to think you really meant to try to slip that little Antitrust Policy past me. But I just can't help but be a little hurt and yes, I have to say it, mistrustful.
I'm sorry, honey.
The magic is just not there any more.
The trust is gone. You blew it.
Quoting Betsy from her July 19, 2011 Out of the Jungle post, AALL, Consumer Caucus, Transparency and Bad Advice.
Since Board rejection of the Antitrust Policy proposed by AALL’s legal counsel, “Plan B” appears to be that our Executive Board now needs a policy for evaluating caucus proposals. An Executive Board member mentioned during her ORALL annual meeting lunch speech recently that AALL is working on a caucus policy. There's the consumer advocacy caucus and a very interesting (or was it exciting?) green causus proposal. OK, not an direct quote -- my bad. The whole short term memory thing come into play but it is accurate with respect to the speaker's characterization of one but not both caucus proposals being "interesting" (or was it "exciting"?).
At the upcoming Executive Board meeting, the Caucus Formation Policy Executive Board Special Committee is expected to submit "a preliminary report." The report appears as an Information Item under tab 24 of the Nov. 2011 Board Book. What's this committee's charge?
Building upon the Memorandum on AALL Caucus Formation Policy developed and presented by Steve Anderson and Cathy Lemann to the Executive Board in fall 2007, this special committee will develop a policy and guidelines for AALL caucus formation and governance.
Ah, wait a minute. AALL is "building upon" a memo that is now four years old. Why now? And how does the lapse of so long a period of time build momentum for anything outside AALL's parallel universe? I doubt I am the only one thinking the timing coincides with the petition to establish a consumer advocacy caucus because to the best of my always faulty short term memory, I believe the Caucus Formatation Policy Special Commitee was established before the interesting or was it exciting Green Caucus request was made. Without wanting to speak for Betsy, loop back up to her comments on the status of the "marriage" between AALL officialdom and the AALL membership.
We’ll just have to wait to see if a caucus policy is adopted sometime. Will one be adopted while our association’s current [2010-2013] strategic directions are still effective? The 2010-2013 Strategic Directions do include consumer advocacy goals albeit watered down from past Strategic Directions statements:
2010-2013 Strategic Directions
Promote AALL policies that support members in establishing fair and equitable business relationships with legal publishers.
Expand communication channels with information vendors regarding products, product development, and related policies.
It’s not too much of an over-statement to say that the two above-quoted goals based on Board actions such as the Vendor Liasion and the committee without its traditional mission known as CRIV could be re-written:
Don’t promote AALL policies that support members… ; and
Don’t expand communication channels with information vendors… .
That may be why supporters of the Consumer Advocacy Caucus are calling upon “robust consumer advocacy equal to AALL’s promise” based on direct grassroots participation of members in the form of a recognized caucus.
Do note, however, the substantial difference between our association’s current statement of strategic directions and the advocacy goals of AALL’s 2005-2010 Strategic Directions. What’s missing? The following (with emphasis added):
2005-2010 Strategic Directions
Law librarians will influence the outcome of legal information, technology policy, and librarianship issues of concern to AALL members.
Increase resources available for advocacy efforts
Improve grassroots participation in advocacy efforts.
Remember, the 2005-2010 Strategic Directions were in effect during the 2007 NOLA annual meeting. On can argue that grassrouts participation in advocacy efforts were already been subjected to over-reaching antitrustism censorship in the provision of critical, documented legal publishing industry analysis at our annual meeting as well as at least one attempt to dilute a CRIV article summary of one allowed presentation.
Also note that the 2005-2010 statement was already a substantially watered down version of AALL's 2000-2005 Strategic Directions. This early statement deserves to be quoted at some length because it has now been over a decade since our association addressed consumer advocacy this strongly in an offical statement with specific outcomes identified.
2000-2005 Strategic Directions
From the Preamble:
The Plan's Strategic Directions are priority statements, major paths to guide the Association during 2000-2005. Outcomes are specific phenomena that the Plan seeks to create to move the Association in the strategic direction and make a real difference in the professional lives of law librarians, consumers of legal information, and AALL members. Initiatives are specific activities or steps to be undertaken by AALL and its membership to bring about the outcomes. The Strategic Plan is the tool for choosing among competing priorities for Association resources-such as member and staff time and fiscal resources.
From the "Environmental Scan" section:
There are rapid, significant changes in the components of a law library: the resources and the services. On the resource side, mergers, buyouts, and changes in the focus of individual publishers have created a new resource environment where traditional practices and relationships are no longer valid. Two mega-publishers, a few new alternative publishers, and many heavily marketed new electronic sources have replaced the finite number of reliable products and known philosophies of traditional publishers. Leased information, price increases, loss of knowledgeable customer support personnel, and titles, and formats that come and go with bewildering speed have created a resource-consuming, indefensible environment that adds to the workload and impacts the credibility of law librarians. Extant federal regulations and a revised industry focus yield incomprehensible pricing practices, major cost increases, a diminution in quality, and the threat of a permanent loss of valuable legal resources.
Strategic Direction #4: A Diverse Legal Publishing Industry Offers a Broad Range of Legal Publications in a Competitive Environment.
Outcome A: High quality, authoritative legal publications in all formats are available at fair prices.
- Produce and widely disseminate a report analyzing evolving pricing patterns and comparing trends in legal publishing to trends in other publishing sectors.
- Provide consumers with tools for informed decision-making, such as an annual price guide with needed budgetary information.
- Engage legal publishing executives in discussions that will educate both vendors and librarians about our common concerns and represent the best interests of our members.
- Work with other groups, consumers and members to provide leadership and ensure a vibrant and competitive legal publishing environment.
Outcome B: Legal publishers follow fair business practices.
- Develop a model code of fair business practices for legal publishers that is an accepted standard in the industry.
- Build a power base among consumers of legal information to encourage worthwhile and beneficial practices and to highlight those that are harmful to end users.
- Recognize publishers and publishing practices that conform to AALL's model code.
(Of course, emphasis added.)
Ah, those were the days. We aging and decrepit Boomer-gen law librarians may not remember what we did or said 15-minutes ago but we do recall distant memories. So let's end this post by quoting just one of the reasons Consumer Advocacy Caucus members and supporters think AALL recognition of this initiative is justified:
We need a new approach. Caucus members seek the opportunity to independently influence AALL policymaking in a matter of high importance to the membership. An AALL Caucus would provide AALL members a forum to fully exchange their views on consumer advocacy, and a transparent venue to reach consensus on a policy recommendation to the Executive Board. The Caucus would not decide policy for AALL or act on its behalf. Caucus members seek only to have their voices heard; to open a new outlet for member participation in AALL; and to collaborate with AALL’s leadership in developing an effective consumer advocacy.
End Note. Perhaps the law librarian who wrote
Asking AALL to do your job because you don't like your choices is, in my mind, shirking your responsibility to your firm and not meeting a requirement of your job.
was just having a bad day. What the heck, we all have bad days these days. [JH]