Law Librarian Blog

The "Legal-education Industrial Complex"

"Critics of the legal-education industrial complex would probably like to see some radical changes in the U.S. law school system. They’d probably want a few dozen law schools to shut down entirely, to reduce the glut of lawyers in this country" writes ALt's David Lat in A Trend in the Making: Shrinking Law Schools?

Lat's commenary echoes back to of President Dwight D. Eisenhower exit speech on Jan.17,1961, and intentionally so I think. But many law librarians are probably too young to recall it. In his speech, Presidemt Eisenhower warned Americans about the dangers of "military-industrial complex." Just substitute key terms in his speech, below, for the "legal-education industrial complex."

Lat writes: "Alas, expecting ... changes [in the legal-education industrial complex] isn’t terribly realistic. Law school deans and law professors aren’t going to willingly reduce their salaries or send themselves into unemployment — and why should they?" Like Eisenhower's warning, nothing changed in the "military-industrial complex." In fact, it only increased during the Cold War.

Due note, the "military-industrial complex" we take for granted originated in the early days of World War II as America geared up its industrial base by way of defense spending. The current "legal-education industrial complex" really took off to respond to demand for more attorneys, a demand that some now question. [JH]

Happy Birthday Birthday Justice Scalia

Well, let me be among the many few to offer a hearty happy birthday to Justice Scalia.  He was Trenton, New Jersey's greatest gift to us (or only gift, I'm not sure about that) exactly 75 years ago today.  The Atlantic has a piece on the event and suggesting it's time to examine his legacy.  In keeping with Friday Fun, I offer this parody of Justice Scalia joining the show "24."  And then there is this classic Stephen Colbert piece on Justice Scalia's judicial philosphy.  [MG]

How Not to Learn Legal Writing

Two examples:

Omitting the Ellipsis. A lawyer who submitted a brief in his first-ever appeal got publicly reprimanded for failing to use an ellipsis in his brief's presentation of the trial judge's statement of facts. For details, see Mike Frisch's Legal Profession Blog post, First Appellate Brief Deemed "As Brazen A Piece Of Misrepresentation As We Have Ever Seen." 

Ellipsis -- from the Ancient Greek: ἔλλειψις, élleipsis, "omission".

Exceeding Word Count. ABAJ's Martha Neil reports in 7th Circuit Zaps Lawyer for Exceeding 14K Word Limit in Brief, Summarily OKs Lower Court Decision:

In a blistering opinion (PDF) ..., a federal appeals court not only stated or implied that a lawyer had been untruthful in his certification that a brief met the 14,000-word limit but criticized his "rambling" writing.

Then, saying that any further effort by appellant attorney John Caudill to file a brief that complied with the Chicago-based 7th U.S. Circuit Court of Appeals rules would be pointless, a three-judge panel summarily affirmed the district court decision in the case.

Writing for the court in one of the less intellectually challenging matters he has addressed since being appointed to the 7th Circuit in 1981, Circuit Judge Posner states:

The response to the order to show cause, signed by lawyer Caudill, concedes that the brief exceeds the word limit (it exceeds it by more than 4,000 words), and states by way of explanation that he had “inadvertently considered only the words included in the argument section of the brief as part of the Rule 32(a)(7)(B)(iii) requirement (the word count also did not factor in citations made within parentheticals).” It is difficult to see how these errors could be “inadvertent.” Rule 32(a)(7)(B)(iii) states: “Headings, footnotes, and quotations count toward the word and line limitations. The corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, any addendum containing statutes, rules or regulations, and any certificates of counsel do not count toward the limitation.” There is no ambiguity, hence no room for misinterpreting the rule as confining the required word count to the argument portion of the brief (which would, for example, allow for an endless statement of facts), or as omitting citations in parentheses.

(Emphasis added.)

14,001, 14,002, 14, 003... . Lawyer Caudill might want to join the the Word Count Journal, "a new blog format where you write one word your first day, two words the second, three words the third, etc. By the end of a non-leap year you'll have written a total of 66,795 words, more words than most novels." [JH]

Friday Fun: So you want to be a law librarian

Hat tip to LLB contributing editor David Walker for this gem. [JH]

Nature Abhors a Vacuum: Sarah Glassmeyer Launches Wiki for Library/Vendor Relationship

Recently I had the opportunity to interview Sarah Glassmeyer about the launching of her wiki for librarians and other interested parties who want to share information about all aspects of the library/vendor relationship, LISVendor.info.

JH: Sarah, would you stop tweeting for a moment and answer one question, why?

SG: Because I'm a law librarian. LibPunk. information liberator. raconteur and bon vivant.

JH: Any other reasons?

SG: Yes, because I speak softly but carry a big stick.

JH: Well, actions do speak louder than words. Thank you for the interview.

OK, so the above interview never really took place but you can read why Glassmeyer created her LISVendor.info wiki here.

In Ethica Ordine Geometrico Demonstrata (1677), Baruch Spinoza wrote "nature abhors a vacuum." Personally I think Sarah is a "force of nature" doing what needs to be done because an information vacuum most certainly does exist. Why? Because some other law librarians who have tried to work within the AALL establishment aren't "allowed" to fill that vacuum. Sharing information about the buyer-vendor relationship via a wiki, like OMG we can't do that. By the way, what's a wiki? That's my opinion; I do not want anyone to think I am implying it is Sarah's. She could beat the you-know-what out of me with her big stick!

I recall that one of Glassmeyer's 2011 New Year's resolutions was "[t]he goal for 2011 is to have a more boring year." Oh well, maybe next year. See 'Tis the Season for Year in Review Blog Posts ("I doubt she will achieve that goal. In fact, who would want that for Sarah! Continue to stretch and stay true to yourself is a far better goal for 2011.") [JH]

GAO's Review of NARA's FY 2011 Expenditure Plan for the Electronic Records Archive

From the GAO Report, Electronic Government: National Archives and Records Administration's Fiscal Year 2011 Expenditure Plan (GAO-11-299, March 4, 2011).

GAO Findings:

NARA’s fiscal year 2010 expenditure plan satisfies four of the six legislative conditions. Specifically, NARA’s plan complies with the agency’s enterprise architecture, conforms to the agency’s enterprise life-cycle methodology, reflects certain system acquisition best practices, and was reviewed by GAO. The expenditure plan partially satisfies the other two conditions:

• NARA partially satisfies the condition that it develop capital planning and investment control review processes designed to help ensure that projects are being implemented at an acceptable cost and within expected time frames and that they are contributing to observable improvements in mission performance. While NARA has conducted regular meetings with senior-level agency management to review ERA progress, these groups did not document approval of important schedule and scope changes to a recent ERA increment. Further, NARA has not conducted post-implementation reviews of deployed ERA capabilities, such as the recently deployed congressional records component, to validate estimated benefits and costs. As a result, NARA has limited ability to ensure that the system is being implemented at an acceptable cost and within expected time frames, and that deployed capabilities are contributing to observable improvements in mission performance.
• NARA partially satisfies the condition that the expenditure plan be approved by the agency and OMB. NARA approved the expenditure plan in October 2010, but the plan was not approved by OMB because, according to NARA officials, OMB will only review the expenditure plan if there is an existing appropriation with language requiring its review. Without approval from OMB, Congress will have limited assurance that the plan is accurate and reliable.

NARA has fully implemented one of our prior recommendations and partially implemented three:

• NARA implemented our recommendation to ensure that ERA’s requirements are managed using a disciplined process by updating the ERA requirements document and developing a process to ensure that the ERA requirements are kept current following significant changes to the program, such as significant modifications to the contract.
• NARA has partially implemented three other recommendations. First, in response to our recommendation that NARA ensure that its investment review process has adequate executive-level oversight by maintaining documentation of the results of reviews, NARA documented meetings that its senior management attended where the ERA program was discussed, but the agency did not document approval of important changes to a recent increment through its review process. Second, in response to our recommendation that NARA provide additional information in the fiscal year 2011 expenditure plan on what was spent and delivered for deployed increments, NARA added information on delivered functionality and additional capabilities planned for fiscal year 2011. However, the expenditure plan lacked other important information, such as the estimated fiscal year 2011 costs and the expected completion date of an ongoing increment. Third, in response to our recommendation to strengthen its use of earned value processes, NARA documented an action plan to improve its earned value processes, but continues to have weaknesses in this area. Among other things, we found that ERA’s earned value data trends do not accurately portray program status, and future cost overruns would likely be between $195 and $433 million if the full ERA system were to be completed as originally designed.

We made three observations related to the ERA program and fiscal year 2011 expenditure plan and summary:

• NARA’s fiscal year 2011 ERA expenditure plan does not provide a reliable basis for informed investment decision making. Specifically, NARA’s plan does not clearly show what functions have been delivered to date or how actual costs compare to planned costs. For example, the plan does not clearly show the system functions of an ongoing increment that have been delivered and how the actual costs of this increment compare to the amount NARA planned to spend, as reported in the fiscal year 2010 expenditure plan. Further, even though NARA plans to end development in fiscal year 2011, the fiscal year 2011 expenditure plan does not clearly show what functionality is planned to be delivered, by when, and at what cost during this period. For example, the plan does not discuss the delivery date of an ongoing increment, nor the fiscal year 2011 costs associated with completing this increment. Lastly, NARA’s cost estimates, used as the basis for determining its fiscal year 2011 funding requests, do not reliably reflect the work to be completed because of weaknesses in the supporting methodology. For example, while NARA’s estimates were based on information provided by the contractor, including estimates of the total lines of software code required and the related costs, these data could not be traced back to their original sources, and NARA did not validate the information when preparing its cost estimates.
• NARA’s fiscal year 2011 expenditure plan does not address how remaining multiyear funds from fiscal year 2010 will be allocated. Specifically, in fiscal year 2010, NARA spent $41.7 million of the $61.8 million in accumulated multiyear funds that it was provided by Congress to develop the ERA system, which resulted in a balance of $20.1 million that is available for obligation in fiscal year 2011. According to NARA officials, the ERA program plans to use the $20.1 million to fund development efforts needed to make the system available to all federal agencies, as well as to fund other operations and maintenance costs. However, NARA’s plans for using these funds and their supporting details are not included in the fiscal year 2011 expenditure plan or the revised summary. Until NARA specifies how it will use the multiyear funds remaining from fiscal year 2010, appropriators will lack information important for evaluating NARA’s fiscal year 2011 request.
• NARA has not yet determined which ERA requirements will be implemented in fiscal year 2011, nor fully prioritized the remaining requirements. In June 2010, we reported that NARA had developed and documented a set of 853 high-level business requirements for ERA and planned to complete about 57 percent of them by the end of fiscal year 2010. Subsequently, in July 2010, NARA updated its requirements document. According to NARA, the original 853 requirements were decomposed to a more detailed set of 1,577 requirements, portions of which were allocated to Increments 1 through 5, deferred to post-Increment 5 (i.e., post-fiscal year 2011), or removed from the scope of the ERA program. However, NARA could not determine which of the remaining requirements would be addressed before the end of fiscal year 2011 because, according to NARA officials, the requirements were subject to ongoing negotiations with the development contractor. This uncertainty is further exacerbated because NARA has not fully prioritized its requirements. Maintaining a prioritized set of system requirements can better ensure that the requirements that are most critical to the customer and other stakeholders are addressed quickly. Until the ERA program fully prioritizes the ERA requirements to be development work is planned to be completed and whether it will result in functionality that is most critical to NARA’s customers and other stakeholders.

GAO's Conclusions:

While NARA’s fiscal year 2011 expenditure plan meets four of the six legislative conditions, the lack of critical capital planning and oversight steps—including documentation demonstrating approval of significant changes to a recent ERA increment, post-implementation reviews of deployed capabilities, and OMB’s approval of the expenditure plan—limits NARA’s ability to ensure that the system is being implemented at an acceptable cost and within expected time frames and contributes to observable improvements in mission performance. These issues are further exacerbated by the agency’s partial implementation of several open GAO recommendations, such as those related to improving investment oversight and earned value processes. With significant weaknesses in many basic oversight and management processes, as well as continued delays in completing Increment 3, NARA’s ability to make significant development progress in the remainder of the fiscal year will be challenged.

In addition, without a reliable ERA expenditure plan, NARA has not provided adequate information to assist congressional oversight and informed decision making related to the use of appropriated funds. When these weaknesses are combined with the lack of prioritization of the remaining requirements under negotiation for fiscal year 2011, Congress has little assurance that additional funds allocated to ERA will result in significant benefits to potential users. With OMB’s direction to stop development after 2011, it is unclear whether NARA will be able to effectively address the full range of weaknesses we identified and still have adequate time to complete significant development efforts.

GAO's Recommendations for Executive Action:

We are recommending that the Archivist of the United States immediately take the following two actions while the current system development contract is active:

• Report to Congress on the specific outcomes to be achieved with the balance of any previous multiyear funds in fiscal year 2011.
• Ensure that the ERA requirements planned for fiscal year 2011 are fully prioritized so that those most critical to NARA’s customers and other stakeholders are addressed.

To ensure that any future efforts are completed within reasonable funding and time constraints, we are recommending that the Archivist of the United States take the following four actions:

• Ensure that significant changes to ERA’s program’s cost, schedule, and scope are approved through NARA’s investment review process.
• Conduct post-implementation reviews of deployed ERA capabilities to validate estimated benefits and costs.
• Submit ERA expenditure plans to OMB for review and approval prior to submitting to Congress.
• Update the ERA Requirements Management Plan and related guidance to mandate requirements prioritization throughout the project’s life-cycle.

See also the GAO's Electronic Records Archive: National Archives Needs to Strengthen Its Capacity to Use Earned Value Techniques to Manage and Oversee Development (GAO-11-86 January 2011) and GAO Critical on NARA Digitization Efforts.

ERA Will Launch This Month. In Stripped-down digital records archive set to debut, the Federal Times reports:

The National Archives and Records Administration's Electronic Records Archive (ERA), after years of delays, will launch at three agencies this month, but will have fewer capabilities than originally planned.

The State, Justice and Health and Human Services departments will be the first to fully access the system to transfer electronic documents to NARA for preservation. Some of the records will be accessible to the public through an existing online portal.

[JH]

Michigan Consumer Protection Law Invoked in Textbook Pricing Case

There's an interesting case that's developing in the Eastern District of Michigan.  Textbook seller MBS Direct LLC and MBS Textbook Exchange, Inc. are under fire for allegedly violating the Michigan Consumer Protection Act.  MBS is the largest mail-order textbook business in the United States, according to the Court.  The essence of the suit is that MBS enters into exclusive contracts with schools and universities to act as their bookstores.  These schools direct their students to MBS for their class materials, having supplied MBS with reading lists for the term. 

MBS made representations on their web site such as “MBS Direct relieves the burden, hidden costs and hassles of textbook fulfillment,” and “Best of all, there are no start-up or hidden fees for our services.”  In reality, prices are higher for books than MBS' other web site textbook.com, which is not a school-directed destination.  There are similar so-called cost-saving statements cited by the plaintiff and the Court.  MBS allegedly did not disclose that it paid a "commission" to the referring school, or as the plaintiff identifies it, a "kickback" of somewhere between 4% and 11% on the sale of the book.  This is one potential reason for the higher prices.

Michigan's consumer protection states, among other provisions:

(i) Making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions.

* * *

(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.

* * *

(z) Charging the consumer a price that is grossly in excess of the price at which similar property or services are sold.

* * *

(bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.

(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.  

The case is at the stage where defendants have filed a motion to dismiss.  They succeeded on dismissing one part of the claim which stated MBS should have provided ISBN numbers along with other details so purchasers could comparison shop.  The Court said that  MBS did not a legal duty to make that information available.  Another defense was that higher prices of 4% to 11% were not "grossly in excess" of similar property or services.  The Court didn't buy that one, at least for a motion to dismiss, and said the suit could proceed.  Discovery will determine whether there is enough evidence for the claims to stick.   

My suggestion to anyone buying or selling textbooks online:  shop around.  The school may care about that revenue stream, but I'm almost certain instructors do not care where a student purchases books.  Not everything online is a deal.  Hat tip to the Legal Skills Prof Blog and the BNA Electronic Commerce & Law Report.  The case is Stalker v. MBS Direct LLC, E.D. Mich., No. 10-11355, 3/01/11.  The order with the rest of the details of the case is on Justia.  [MG]

Most Cited Authors in HeinOnline's Law Journal Library: Rankings and Browse Function

The citation analysis was run over the 1,450+ legal periodicals, 35,000+ volumes, and 1,000,000+ articles in the HeinOnline's Law Journal Library to produce the top 50 most cited authors. Here's the top five:

1. Sunstein, Cass R. cited 14,694 times in 284 articles.
2. Posner, Richard A. cited 14,225 times in 274 articles.
3. Easterbrook, Frank H. cited 7,793 times in 92 articles.
4. Epstein, Richard A. cited 6,311 times in 300 articles.
5. Coffee, John C. Jr. cited 5,882 times in 73 articles.

Browse HeinOnline’s Law Journal Library by Most-Cited. HeinOnline’s Law Journal Library now provides the option to browse by Most-Cited. The browse option will list the top 100 cited authors, articles and journals based on Bluebook citation analysis across all of the titles available. When you view the top cited articles, a link to the article and also a list of articles that cited that article are provided. Details here. [JH]

Will Someone Give This Book to Justice Scalia?

What the heck, it only took me the better part of four months to read Madison and Jefferson (Random House, 2010) by Andrew Burstein and Nancy Isenberg, who are the Charles P. Manship Professor of History and professor of history, respectively, at LSU. Well, it is 800-plus pages and is full of footnotes. Plus I have little functional short-term memory and I am easily driven to distraction because I am an aging and decrepit law librarian.

Personally I have found the constitutional interpretation school known as "originalism" and championed by Justice Scalia to be intellectually bankrupt but since I'm not a constitutional scholar, don't sit on SCOTUS, and am not a brainiac like Scalia is, my opinion about schools of constitutional interpretation really don't matter, now does it. Hell, 30-plus years ago all I did was sort out Scalia's mail from the rest of the US Mail delivery on Saturdays when we both worked at the University of Chicago Law School while he was looking over my shoulder, waiting impatiently.

Still, someone should dump Burstein and Isenberg's Madison and Jefferson into his lap (assuming no one has already done so). Could it change his mind about "originalism?" Don't know but it would be interesting to hear what he has to say. As a certified brainiac, someone like Scalia typically is sufficiently intellectually honest to revisit assumptions and long-held opinions.

Based on my reading, I highly recommend Madison and Jefferson to everyone interested in the changing opinions about the US Constitution by our founding fathers over the course of their political careers. Fascinating; subscribers to originalism might want to rethink their assumptions.

Here's the blurb:

In Madison and Jefferson, esteemed historians Andrew Burstein and Nancy Isenberg join forces to reveal the crucial partnership of two extraordinary founders, creating a superb dual biography that is a thrilling and unprecedented account of early America.

The third and fourth presidents have long been considered proper and noble gentlemen, with Thomas Jefferson’s genius overshadowing James Madison’s judgment and common sense. But in this revelatory book, both leaders are seen as men of their times, ruthless and hardboiled operatives in a gritty world of primal politics where they struggled for supremacy for more than fifty years.

In most histories, the elder figure, Jefferson, looms larger. Yet Madison is privileged in this book’s title because, as Burstein and Isenberg reveal, he was the senior partner at key moments in the formation of the two-party system. It was Madison who did the most to initiate George Washington’s presidency while Jefferson was in France in the role of diplomat. So often described as shy, the Madison of this account is quite assertive. Yet he regularly escapes bad press, while Jefferson’s daring pen earns him a nearly constant barrage of partisan attacks.
 
In Madison and Jefferson we see the two as privileged young men in a land marked by tribal identities rather than a united national personality. They were raised to always ask first: “How will this play in Virginia?” Burstein and Isenberg powerfully capture Madison’s secret canny role—he acted in effect as a campaign manager—in Jefferson’s career. In riveting detail, the authors chart the courses of two very different presidencies: Jefferson’s driven by force of personality, Madison’s sustained by a militancy that history has been reluctant to ascribe to him.

The aggressive expansionism of the presidents has long been underplayed, but it’s noteworthy that even after the Louisiana Purchase more than doubled U.S. territory, the pair contrived to purchase Cuba and, for years, looked for ways to conquer Canada. In these and other issues, what they said in private and wrote anonymously was often more influential than what they signed their names to.

Supported by a wealth of original sources—newspapers, letters, diaries, pamphlets—Madison and Jefferson is a stunning new look at a remarkable duo who arguably did more than all the others in their generation to set the course of American political development. It untangles a rich legacy, explaining how history made Jefferson into a national icon, leaving Madison a relative unknown. It tells nasty truths about the conduct of politics when America was young and reintroduces us to colorful personalities, once famous and now obscure, who influenced and were influenced by the two revolutionary actors around whom this story turns. As an intense narrative of high-stakes competition, Madison and Jefferson exposes the beating heart of a rowdy republic in its first fifty years, while giving more than a few clues as to why we are a politically divided nation today.

[JH]

Judgement Day? Back to the Past Because It's 1999 Again: Topic for Today's Episode of Law Librarian Conversations is the AALL Vendor Colloquium 2011 (or we've always got Philly 2011: Cream Cheese, Cheesesteak or Karaoke)

The topic of today's Law Librarian Conversations will be AALL's Vendor Colloquium. According to the announcement, Colloquium participants AALL President Joyce Janto, AALL Vendor Liaison Margie Maes, King & Spaulding's Greg Lambert and Hamilton County Law Library's Mary Jenkins have been invited to participate in the podcast. The program's host, Rich Leiter, also attended the meeting. The program will be taking callers with questions and comments. From the announcement:

We're eager to hear from listeners about questions that you wish the panel to address, and we also invite participation from critics.

Better Late Than Never? Not Really. Well, it's a bit after the fact but let's not hold that against Rich Leiter. His intention is well-meaning, and this podcast is evidence of that. However, critical analysis requires primary source documentation to examine for ourselves the actual proceedings instead of trying to rely on someone else's "eyewitness testimony." We are law librarians; we know this, don't we? We know the problems associated with eyewitness testimony, right? It's a subfield within legal psychology.

Yes, we know this even when our professional association prefers to ignore it. Second-hand information or officially sanctioned blog post summaries are no substitutes for providing transparency in the conduct of our association's offical business. It's bad enough that this important meeting was official AALL business held behind closed doors particularly when this could have been presented in the open this summer in Philly 2011.

It is made worse by censoring individual participants at the  meeting until afterwards by our association's insistance on a publication moritorium. Stealing from our vendors' playbook? That's what our vendors do when they provide sneak previews of new products and services.

Add due-paying insult to injury by filtered official blog posts during the meeting along with the distribution of preparatory materials at the very last minute so few had any time to digest them. Absolutely no criticism of Mark Estes who posted to AALL Spectrum Blog is intended; hell, use the less than "professional grade" AALL website search engine and you just may find a newsletter article by him about an earlier Vendor Colloquium. He's been reporting on AALL events for one helluva long time. I'm pretty sure Mark knows what century we are in. Isn't it time for a by-laws admendment to require transparency and accountability in AALL's conduct of our official business by way of timely communications that are not based soley on print conventiions requiring long lead times for publication? Desktop publishing is so 1999.

As for AALL using web communications in a timely manner to address uninvited membership concerns by way of utilizing 21st century media, the following Spectrum Blog post hardly requires comment. See Vendor Colloquium: The reporter’s role – and other reporting ("Discussions about the possibility of reporting the Colloquium by blogging began in early January, because the publication lead-time for AALL Spectrum meant that a feature-length article would not appear until after the AALL Annual Meeting in July.") Loop back to Estes' newsletter article summarizing an earlier Vendor Colloquium, assuming you can find it.

Hello AALL, It is the 21st Century. Isn't it time to look at the calendar? At least ALA knows how to address, communicate and solicit member input using not-bleeding edge technology. See ALA Task Forces Work on Coordinated ALA Response to E-Book Marketplace Issues.

Our professional association's handling of the entire Vendor Colloquium is well beyond being a professional embarrassment. The he said-she said recounting of the meeting just might leave some members with the below Saturday Night Live concerns.

Do note Law Librarian Conversations is returning to BlogTalkRadio this week so here is the link. Today's program is scheduled for 2:30 PM Central Time.

This Podcast May Be Interesting in a Second-hand Sort of Way. I'll probably be taking a pass on spending any real-time listening because a couple of the panelists are likely to be nothing more than "talking heads." But that's just me; I've got WEXIS invoices to pay. See my "Cone of Silence" post for why. Comments by some of the other panelists may actually be worth the time to listen to today.

For AALL, It is Still 1999. The 2011 AALL Vendor Colloquium is history -- undocumented history circa 2011 standards. It is your call to see who actually engages in a frank discussion  and who does not in today's Law Librarian Conversatios' podcast. But with no shared experience serving as a basis, how can non-Vendor Colloquium participants make informed judgments?

It's also up to you to wonder why AALL officialdom is behaving like it is still 1999. Time for the music video with lyrics! Just a suggestion for Cincinnati Law library director Ken Hirsh's annual AALL Karaoke night. Perhaps this should be an official annual meeting event. And  yes, I was "dreamin' when I wrote this" post. Can't wait for the YouTube video from AALL Philly 2011: Cream Cheese, Cheesesteak or Karaoke. "Oops, out of time." [JH]

Top 25 Law Schools Ranked by Law Firm Recruiters

U.S. News asked 750 hiring partners and recruiters at law firms who made the 2010 Best Law Firms to rank the best law schools. Note that the response rate was 14 percent. From the US News story, Law Firm Recruiters Rank Best Law Schools:

U.S. News asked hiring partners to rank the schools based on a 5-point scale, with 5 being outstanding, 4 strong, 3 good, 2 adequate, and 1 marginal. Unlike the main U.S. News rankings of law schools, which take into account many factors, including selectivity, faculty resources, and success in placing graduates in jobs, the rankings by recruiting professionals are strictly reputational in nature based upon their assessment of each school's academic quality.

Here's the Top 10:

1. Harvard University 4.9
2. Stanford University 4.8
2. Yale University 4.8
4. Columbia University 4.7
4. University of Michigan–Ann Arbor 4.7
6. New York University 4.6
6. University of Virginia 4.6
8. Cornell University 4.5
8. Duke University 4.5
8. Northwestern University 4.5
8. University of California–Berkeley 4.5
8. University of Chicago 4.5

The rest of the top 25 ranked schools here. The complete list of the top 100 schools ranked by law firm recruiters will be available on March 15th when US News releases its annual law school rankings report. [JH]

ALA Task Forces Work on Coordinated ALA Response to E-Book Marketplace Issues

From ALA's March 8, 2011 announcement:

Recent action from the publishing world in the e-book marketplace has re-ignited interest and sparked many questions from librarians, publishers, vendors, and readers. Two ALA member task forces – the presidential task force on Equitable Access to Electronic Content (EQUACC) and the E-book Task Force – were recently created to address these complex and evolving issues.  EQUACC met this week in Washington, D.C., to provide ALA with guidance and recommendations for a coordinated ALA response to the challenging issues.

In light of recent publisher changes affecting libraries’ ability to provide e-books to the public (e.g., restricting lending of e-books to a limited number of circulations) and the refusal of some publishers to sell e-content to libraries entirely, the task force will:

• Work to establish meetings between ALA leadership and publisher and author associations to discuss model lending and purchase options for libraries.
• Establish mechanisms for interactive and ongoing communication for ALA members to voice concerns and pose questions to ALA leadership.
• Establish communication and solicit input with other ALA member divisions and units, including the Office for Intellectual Freedom.

In addition to the above, the task force recommends that ALA pursue the following:

• Conduct an environmental scan to understand the current landscape and project future scenarios.
• Work with appropriate partners within and outside of ALA to improve access to electronic information for all, with a particular focus on people with disabilities.
• Identify and support new and emerging model projects for delivering e-content to the public.
• Develop a national public relations and education campaign highlighting the importance of libraries as essential access points for electronic content.

ALA members and the public can communicate with ALA on these issues through a new website dedicated to the challenges and potential solutions in libraries for improved access to electronic content.  This site will be live within 10 days, and the URL to be announced at launch. These efforts reflect on libraries’ long-standing principles on equitable access to information, reader privacy, intellectual freedom, and the lawful right of libraries to purchase and lend materials to the public.

ALA calls upon all stakeholders to join us in crafting 21st century solutions that will ensure equitable access to information for all.

(Emphasis added.)

Hat tip to INFOdocket. See also More Libraries and Librarians Weigh In On eBook Lending Limits. On LLB, see

• Some Thoughts on eBook Licensing Terms for Libraries
• Librarians Call on Institutional and Individual Consumer Licensees to Boycott HarperCollins Over Plan to Cap eBook Lending
• Harper Collins and Libraries

[JH]

Illustrating Legal Research Concepts Using Examples from Pop Culture: There's a Wiki for That!

I’ve Got a Hit! is a new wiki which collects examples of legal research concepts found in movies, TV shows, songs and print. Entries give detailed information about where to find the example, which research concept it demonstrates, how it can be used in class and more. From the wiki:

When preparing for class, we've all occasionally found ourselves wanting to throw in a little something which illustrates that lecture's core concept -- a brief example that will stick in the students' minds or relieve the monotony of a 75-minute lecture. But trying to find the right one isn't always easy. Then again, our own law professors did it; our colleagues do it from time to time too. Why not harness the hive mind and ask everyone to contribute ideas?

So, here we are. I've Got a Hit! is a place to collect all these examples together. If you're looking for a good illustration, visit the wiki, read through the descriptions given and voila! You've got a song to play or a clip or comic to show in class. This wiki was started by a law librarian, so the main focus here is pieces illustrating general or legal research techniques, but feel free to add scenes showing other legal concepts as well.

The wiki creators are looking for new contributors and listings. Deborah Schander, Reference/Student Services Librarian, Georgia State University College of Law Library, writes

If we’ve missed that classic example you use in class - or if you run across a new one the next time you’re watching TV - feel free to add it. Editing access is available for law librarians, professors and others interested in expanding this area.

I'm not sure this Star Trek clip fits the bill for discussing the relative merits of print vs. online but I know if I ever have to do another one of those traditional "how a bill becomes a law" lectures, I'll start off with this clip. [JH]

More information about this great idea, I’ve Got a Hit!, is available at the wiki itself, or you can email the wiki administrator Deborah Schander (dschander(at)gsu.edu) directly with any questions. [JH]

Is WikiLeaks the whistleblowing heir of the Pentagon Papers?

Brooklyn Law School professor Derek E. Bambauer answers "no" in his Consider the Censor [SSRN]. From the abstract:

This Essay argues that portrayal is false, for reasons that focus attention on two neglected aspects of the case. First, the New York Times relied on a well-defined set of ethical precepts shared by mainstream journalists to contextualize the Papers and to redact harmful information. Second, American courts acted as neutral arbiters of the paper’s judgment, and commanded power to enforce their decisions. WikiLeaks lacks both protective functions to regulate its disclosures. The Essay suggests that WikiLeaks is a bellwether: an exemplar of the shift in power over data generated by plummeting information costs. While that trend cannot realistically be reversed, the Essay offers two responses to the problems that WikiLeaks and its progeny create. First, established media outlets must continue to act as gatekeepers governed by strong journalistic ethics, even in an environment of ubiquitous access to raw data. Second, governments should consider, and debate, the possibility of using technological countermeasures – cyberattacks – against intermediaries threatening to disclose especially harmful data. There are times when the censor should win.

[JH]

Supreme Court Action

The Supreme Court issued three opinions yesterday, one of which made an impact on the news.  That case of the three is Skinner v. Switzer (09-9000), where the Court sided with an inmate who was seeking DNA testing on evidence that had been taken from the scene but not examined or used at trial.  The vehicle to that position was unusual as the Court said is was ok to raise the issue in a §1983 civil rights case rather than strictly through a habeas corpus proceeding.

Skinner was convicted in Texas for a rather brutal murder.  Some years after the conviction Texas enacted Article 64 which allows for postconviction DNA testing in some circumstances.  The Texas courts denied Skinner's petition on various grounds including the statutory requirement that the evidence was not tested through no fault of the defendant.  Skinner's counsel passed on testing some of the evidence as he thought it could conclusively implicate his client.  A sound trial strategy noted the Texas Court of Criminal Appeals, but one that did not meet the requirements for postconviction testing.

Skinner's next move was the §1983 claim in federal court, which was dismissed by the District Court and affirmed by the Court of Appeals.  Both said that §1983 suits are not appropriate for relief.  The Supreme Court reversed, noting that Skinner as not challenging the validity of his conviction, nor would the results of the test necessarily be exculpatory.  Skinner had properly alleged a civil rights violation by challenging the Texas courts' interpretation of Article 64, which denied him the ability to utilize other existing procedures to challenge his conviction.

The case of Wall v. Kholi (09-868) answers the question as to what constitutes "collateral review" as it applies to actions that may toll the time period for a prisoner filing a habeas corpus petition.  Applicable law requires that the petition be filed within one year from the time a conviction becomes final.  Kholi's conviction became final in 1996 and his first postconviction motion to reduce sentence was denied in final review in 1998.  His second postconviction motion was also denied and that denial was final in 2006.  He needed tolling generated by both motions to qualify for a timely habeas corpus petition.

The Court's analysis was based on the meaning of the words "collateral review."  and in particular whether the original motion for sentence reduction qualified as an collateral review action.  Dictionary analysis of the words "collateral" and "review" suggest collateral means "indirect" and review means "judicial re-examination."  The Rhode Island rule governing sentence reduction is similar to the applicable federal rule.  That, the definitions, and the various courts' own precedent construing the federal rule as collateral review was enough to hold in favor of Kholi. One interesting point in this case is the Court's use of dictionaries and linguistics to reach a decision.  This trend was noted in a recent article in The Atlantic concerning the AT&T opinion released on March 1.

The third case is Milner v. Department of the Navy (09-1163).  Like the AT&T case, it interprets the Freedom of Information Act, in particular Exemption 2.  That covers material concerning employee relations or human resources.  Lower courts  used earlier Supreme Court precedent on the exemption to interpret the exemption in two ways.  The "Low 2" exemption covered human resources and employee relations records and the “High 2” exemption applied to records whose disclosure would risk circumvention of the law.

Milner had requested information for explosives data and maps used by the Navy in storing munitions at a naval base in Washington State.  The Navy invoked Exemption 2.  The Courts relied on the High 2 interpretation and found for the Navy.  The Supreme Court reversed, stating that the Low 2 interpretation is all the Exemption 2 covers.  The Navy may have other exemptions it can potentially invoke, though those will have to be litigated in further proceedings to test their validity. 

In other Supreme Court news, Ars Technica reports that the Court will hear arguments in the next term on whether items in the public domain can be restored to copyright status by treaty obligations where the work is still in copyright in a foreign jurisdiction also a party to the treaty.  [MG]

Friday Fun on Tuesday: Andy Rooney on eBooks

Why Tuesday? Because it is just too entertaining to wait for Friday. Check out the video (and transcript) here. Hat tip to LISNews. [JH]

Status of Public Sector Information in the United States

Timothy Vollmer, Creative Commons Policy Coordinator, has published State of Play: Public Sector Information in the United States [ePSI-plus]. The report examines US public sector information policy, the economic effects of open access to public data and recent developments relating to public data re-use.

From the executive summary:

The U.S. federal information framework is constructed primarily through legislation and regulatory policies, including the U.S. Copyright Act, Freedom of Information Act, Office of Management and Budget Circular A-130, and others. The U.S. federal framework is unique in that under Section 105 of the Copyright Act there exists no copyright protection for information created by the federal government. This policy typically does not extend to information created and disseminated at the state and local levels. At the state and local levels, there is a wide range of policy frameworks, and some rely on restrictive information management schemes in order to maintain control and in theory recuperate costs. However, some states and local entities have been proactively making PSI available.

U.S. federal PSI promotes economic activity because of the lack of intellectual property restrictions and non-adherence to strict cost recovery policies. Information created and shared by the National Oceanic and Atmospheric Administration (NOAA), particularly weather information, stimulates economic activity - approximately $700 million annually - and leads to the creation of other value-added industries.

The U.S. has been active in disseminating and promoting the re-use of its public sector information. Three recent initiatives in the U.S. include Data.gov, the National Institutes of Health Public Access Policy, and the Trade Adjustment Assistance Community College and Career Training Grant Program. These and other projects show a groundswell in government and citizen interest in sharing and re-using PSI.

[JH]

Some Thoughts on eBook Licensing Terms for Libraries

The news feeds picked up the move by HarperCollins to restrict library loans of ebooks to just 26.  After that, a library will have to buy an additional license for another 26 loans.  Rinse and repeat.  The magic number of 26 was derived by assuming a print copy of a book will survive that many loans before a library would have to replace it.  I think librarians everywhere would think that a book manufactured with basic quality would survive more than 26 check-outs.  But that's quibbling about the number and not the reason why the limitation on the license exists at all.  HarperCollins believes that ebooks, without the same overhead associated with print, without deterioration due to wear and tear, should be treated as an analog.  The company should not be deprived of that replacement revenue simply because it creates a product that remains pristine in its use.

Never mind that e-text can't be copied or pasted (legally).  Never mind that digital rights management enforces other restrictions on the text that do not exist in the analog world.  What's important is monetizing ebooks further by placing artificial restrictions borrowed from the old way of doing things.  How odd, to create value from a construct rather than finding ways to adapt to new forms and new market strategies.  There was a time when I characterized the music industry as one who hated its customers by assuming that every person out there was a pirate.  I think the publishing industry is moving into that same mind-set by punishing public libraries if it adopts these new licensing terms wholesale.

Consider that ebook vendors purport to sell texts for their proprietary devices "in perpetuity."  If this starts with public libraries, could not outright individual purchases turn into pay for view?  Why should the buying public pay only once in a system where the reader is replaced rather than the text.  Publishers may consider this imbalance as they as think of ways to recoup value from their product.  Portable electronic devices are created as consumption machines partially because of practical design considerations and, I think, partially to enforce a consumption mentality, one that is susceptible to constant tolls for access.  Charlie Brooker, noted Mac-hater, wrote recently that he has adopted the platform, but points out how lacking it can be when he wants to do something he can't by deliberate design of Apple.  Everything must go through iTunes, for example, even when it need not.  This is the evolving digital world, and not only from Apple.  It's called "control."  The revolution may not be televised, but it will be licensed.

I read an article once, I don't remember where, otherwise I would link to it, that suggested that piracy actually promotes preservation by allowing archiving where a rights holder deliberately prevents it.  Books can be scanned and DRM can be stripped from files.  It's a pity that the people who are trained to manage digital information collections (librarians) are the ones with the least legal right to apply that training.  In one hundred years, sadly, the richest archives of digital information will not be coming from libraries.  No wonder the publishing industry hates Google.  [MG]

Lexis versus Westlaw: Goldman Sachs Wants to Know Your Professional Opinion

It’s been over two years since Stanford Law Library ran a survey on Lexis versus Westlaw and Goldman Sachs thought it would be informative to see how the results would fare two years on. (Especially given the launch of several new products by Lexis and West). Goldman Sachs is taking a survey in the same spirit as Stanford did earlier. 
 
To gain a good sample, the investment firm encourages all librarians to take the survey so GS can gauge preferences. So do I because Goldman Sachs has much more "clout" than institutional law library buyers and their professional association. Remember, "investor relations" is what matters most to the CEOs of our major legal vendors (and their parent companies).

The survey should only take a few minutes to complete. You will find the survey at: http://gs.angel.net/gir/survey/?_id=x8b847730

When the results are compiled, Goldman Sachs promises to share its findings. If you have any questions, please contact Rakesh Patel, at Goldman Sachs International, rakesh.patel(at)gs.com. [JH]

To post or not to post (today), that is the question

Source: Ashley Connick's Newsflash: Legal Bloggers are real people! Reflections on the #LawBlogs seminar. [JH]