Law Librarian Blog

Friday Fun on Saturday: Go the f#ck to sleep

I won't name the former LLB contributor who sent this my way but I know it resonates in his household and many other parents who have young children who won't go to sleep so their parents can catch their breath.

The not-named former LLB contributor wrote "Too racy for Friday Fun but someone finally captured my innermost bedtime." Well if Jason Wilson can use drop the F-bomb into the title of a post about a fluff piece published by an official publication from a professional association that one would expect includes a critical analysis based on professional law librarian expertise, why the hell is this too racy?

I'm referring to Jason's post at Fuck reliability. Screw authentication ("[author's name omited] recent AALL Spectrum article, iCite: Legal Research? There’s an app has me all kinds of pissed off.") Gee, note the directory path "aallnet.org/products." Products, really? See also, LLB's follow-up to Jason's post, Fantasy Island: There's a Legal "App for That" But Should Users Trust It? But I digress... .

The not-named former LLB contributor was calling my attention to this YouTube video where Samuel Jackson reads the blockbuster adult bedtime story, "Go the f#ck to sleep" by Adam Mansbach. Personally, I think it is Friday Fun worthy but in an attempt to avoid having my email in-box flooded with objections it is being posted today. [JH]

Friday Fun: The New Normal in Intelligence Ops: Facebook is CIA's Most Effective and Cost Efficient Information Gathering Tool the Agency Has Created

The only CIA concern is users will get bored with Facebook and move on to something else. [JH]

CIA's 'Facebook' Program Dramatically Cut Agency's Costs

Launch of Schema.org: Structured Data Markup Using Microdata for Web Search Engines

Schema.org, a joint initiative of Google, Bing and Yahoo!, provides a collection of shared vocabularies webmasters can use to mark up their pages in ways that can be understood by the major search engines. From the Schema.org front page:

Search engines including Bing, Google and Yahoo! rely on this markup to improve the display of search results, making it easier for people to find the right web pages.

Many sites are generated from structured data, which is often stored in databases. When this data is formatted into HTML, it becomes very difficult to recover the original structured data. Many applications, especially search engines, can benefit greatly from direct access to this structured data. On-page markup enables search engines to understand the information on web pages and provide richer search results in order to make it easier for users to find relevant information on the web. Markup can also enable new tools and applications that make use of the structure.

Quoting Google's Inside Search Blog's Authorship markup and web search:

We wanted to make sure the markup was as easy to implement as possible. To that end, we’ve already worked with several sites to markup their pages, including The New York Times, The Washington Post, CNET, Entertainment Weekly, The New Yorker and others. In addition, we’ve taken the extra step to add this markup to everything hosted by YouTube and Blogger. In the future, both platforms will automatically include this markup when you publish content.

See also the Official Google Blog post, Introducing schema.org: Search engines come together for a richer web. [JH]

Opening: Associate Dean for Library and Information Resources, Western New England Univ. School of Law Library

Western New England University School of Law is seeking candidates for the position of Associate Dean for Library and Information Resources.

The Associate Dean for Library and Information Resources reports directly to the Dean of the School of Law and has overall responsibility for the administration of the operation, programs and services of the law library, and for assuring that the law library is in compliance with the accreditation standards and membership requirements of the American Bar Association and the Association of American Law Schools, respectively.

Applicants must hold both a J.D. from an ABA-approved law school and a master’s degree from an ALA-accredited program, and have substantial experience in law library administration. The successful candidate will demonstrate administrative, financial, and organizational skills; proven leadership; and an outstanding knowledge of the research, teaching and educational needs of the faculty and student body.

This position is a full-time position, and the successful candidate will be awarded a tenured or tenure track faculty appointment in the Law Library. The salary is competitive and commensurate with qualifications and experience.  Excellent benefits are provided.

The Law Library includes 372,000 volumes - 138,000 in hard copy and 234,000 in microform equivalents - and has 160 electronic databases.  It is currently staffed by eight librarians and seven support staff members. Western New England University School of Law has a student body of approximately 525 JD students and 85 LLM students, 35 full-time faculty members, and offers both a full-time and a part-time law curriculum.

Western New England University is a private, independent, coeducational institution founded in 1919. Located on an attractive 215-acre suburban campus in Springfield, Massachusetts, Western New England serves 3,700 students, including 2,500 full-time undergraduate students. Undergraduate, graduate, doctoral, and professional programs are offered through Colleges of Arts and Sciences, Business, Engineering, and Pharmacy, and a School of Law.

Applications will be accepted until the position is filled. The Chair and a member of the Search Committee will speak with interested candidates at the AALL Annual Meeting. Please submit your application prior to the Annual Meeting to be considered for an onsite interview. The position is available immediately, with a flexible start date.  Excellent fringe benefits including tuition remission for employee, spouse, and dependent children.  Send  cover letter, resume and the names and contact information of three references to: Gregory C. Michael, Executive Director of Human Resources and CareerCenter, Western New England University, 1215 Wilbraham Road, Springfield, MA 01119. Electronic submissions are encouraged and may be sent to Donna Martin at dlmartin(at)wne.edu.

Western New England University is an Equal Opportunity Employer.

Supreme Court Action Today - Tenth Amendment, Comity, And A Lot Of Criminal Stuff

The Supreme Court issued five opinions today, mostly dealing with criminal law issues, though they touch on other aspects of constitutional law.  The first case is Bond v. United States (09-1227), where the Court decided that individuals have standing under principles of Federalism to allege constitutional violations under the Tenth Amendment.  Bond's case originated in Pennsylvania. She was convicted of violating 18 U.S.C. §229 which forbids knowing possession or use, for nonpeaceful purposes, of a chemical that  “can cause death,  temporary incapacitation or permanent harm to humans,”  Bond had used caustic chemicals to harass a (former) friend who had become pregnant by Bond's husband.  Bond's friend received minor burns from Bond's activities.

§229 was enacted as part of a federal act implementing a chemical weapons treaty ratified by the United States.  Bonds argued that the law and her indictment under it was invalid as Congress exceeded its constitutional authority in passing the act.  The trial court denied her motion to dismiss.  The Third Circuit agreed with the Government that she lacked standing, though before the Supreme Court the Government claims that Bonds does have standing to challenge the law provided she limit her argument to one that challenges the statute against the enumerated powers of Congress to enact it.  The Government contends that standing should be denied if Bonds argues that the public policy of Pennsylvania has been displaced by that of the National Government.

Justice Kennedy, writing for a unanimous Court, rejected that distinction.  He stated that aside from Article III claim or controversy requirements and prudential standing rules, there is nothing preventing a litigant from alleging state sovereignty violations.  The Court expressed no view of the merits of Bonds challenge.  The Court clarified statements appearing in the opinion of Tennessee Electric Power Co. v. TVA, 306 U.S. 118 (1939) that lower courts read to limit Tenth Amendment claims to those invoked by the several states.  In a more sweeping statement, the Court noted:

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.  See  ibid.  By  denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.  When government acts in excess of its lawfulpowers, that liberty is at stake.

The limitations that federalism entails are not therefore a matter of rights belonging only to the States.  States are not the sole intended beneficiaries of federalism.  See New York, supra, at 181.  An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the  States  when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.  (Slip Op. at 10).

I can only imagine how this ruling will affect litigation challenging the Affordable Care Act.  As Chairman Mao did not say, let a thousand Tenth Amendment lawsuits bloom.  Justice Ginsburg filed a concurring opinion joined by Justice Breyer.

The next case is Tapia v. United States (10-5400).  Tapia was convicted of smuggling illegal aliens into the United States.  The District Court sentenced her to a 51 month sentence as she would then qualify for and likely complete the Bureau of Prisons' Residential Drug Abuse Program (RDAP).  Tapia argued on appeal that the sentence violated 18 U. S. C. §3582(a), which instructs sentencing courts to  recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”  The Ninth Circuit upheld the sentence stating that a court may consider a defendant's rehabilitation  after imprisonment is determined to be an appropriate penalty.

The Supreme Court reversed, holding that §3582(a) is clear in its direction to courts not to sentence a defendant based on rehabilitation potential.  Parts of the statute state a court must consider retribution, deterrence,incapacitation, and rehabilitation, and these may apply in different weights or not at all in crafting a sentence.  Nonetheless, the language of the statute is clear both to courts and the Sentencing Commission that judges should not sentence on the basis of rehabilitation potential of a defendant.  There is a difference between the term "imprisonment" as used in the statute and a defendant's continued stay in prison.  Justice Kagan wrote for a unanimous Court.  Justice Sotomayor filed a concurring opinion joined by Justice Alito.

The next case is Davis v. United States (09-11328).  Davis, a passenger in an automobile, was arrested incident to a routine stop for giving a false name to police.  After the driver (arrested for DWI) and Davis were secured, police searched the car and found a revolver in the jacket belonging to Davis.  He was later indicted and convicted of being a felon in possession of a firearm.  At the time of arrest, the law allowed such searches, though Davis raised a Fourth Amendment challenge to preserve the issue for review.  The Supreme Court issued its opinion in Arizona v. Gant while Davis' appeal was pending.  That case changed the rule on suppression of evidence in similar situations to that of Davis.  The Eleventh Circuit held that Davis' constitutional rights were violated under Gant, but declined to overturn his conviction.  That court ruled that penalizing the police officer for following then binding precedent did nothing to deter wrongful police conduct.  

The Supreme Court essentially agreed, affirming the Eleventh Circuit.  The Court noted that Davis' arrest took place some two years before Gant was decided.  It reviewed its precedent and took the position that the police acting in good faith did not require suppressing evidence "obtained as a result of  nonculpable, innocent police conduct."  Both sides conceded that the police did not act outside of existing law in place at the time of the arrest.  The Court stated later in the opinion "About all that exclusion would deter in this case is conscientious police work."  Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Kagan.  Justice Breyer dissented, joined by Justice Ginsburg.

The next case is J.D.B. v. North Carolina (09-11121).  That case involves a 13 year old juvenile confronted by the police at his school on theft claims.  The specific issue involves whether his age informs Miranda custody analysis.  From the Court's perspective, it does.  J.D.B. was removed from his classroom by a uniformed police officer to a conference room where he was questioned for at least 30 minutes.  He had been linked to items taken in home break-ins.  He was not given Miranda warnings nor the opportunity to call his grandmother or another legal guardian.  They did not tell him he was free to leave or not compelled to answer questions.  

He later confessed after officials urged him to tell the truth and indicated the prospect of juvenile detention. It was at this point that one of the investigators told him that he didn't have to answer questions and he was free to leave.  J.D.B. said he understood and provided more details of his involvement in the crimes, and wrote a statement to that effect.  He was later charged under a juvenile petition with breaking and entering and with larceny.

His public defender attempted to supress his statements, which the trial court denied.  The North Carolina Court of Appeals and the North Carolina Supreme Court affirmed finding J.D.B. delinquent.  The North Carolina Supreme Court did not find age relevant on the issue of whether J.D.B. was in police custody during his questioning.  The Supreme Court reversed and remanded for further proceedings.

The Court stated that custodial police interrogation is inherently stressful.  The question of whether a person is "in custody" for Miranda purposes is answered objectively under two inquiries:  what are the circumstances of the interrogation and would a reasonable person have felt that he or she was at liberty to terminate the proceedings and leave.  The objective standard can take into account that a child has less understanding, perspective and experience.  These are the same factors that limit a child's choices in marriage, contract, and other legal relationships until he or she comes of age.  Whether the the child's age is a factor or not in the ensuing custody analysis, it has to be taken into account.  Justice Sotomayor delivered the Court's opinion, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justice Alito filed a dissenting opinion joind by Chief Justice Roberts, and Justices Scalia and Thomas.

Today's final case is Smith v. Bayer Corp. (09-1205).  This case involves whether the relitigation execption of the Anti-Injunction Act applies to a denial of certification in a class action at the federal level in which an unrelated plaintiff seeks class status in a state proceeding.  Bayer had successfully argued against a class certification in a federal case in litigation over Baycol, one of its pharmaceuticals.  An unrelated plaintiff sought certification for a class action over the same drug in West Virginia state court under that state's version of Rule 23, patterned after the federal rule.  Bayer asked for and received in federal court an injunction preventing the state court from certifying the class.  The basis was that the issue of class certification was already decided in the first attempt to certify.  The Eight Circuit affirmed.

The Supreme Court held that the relitigation exception did not apply.  The Court said that the history of the exception shows that it should be applied conservatively.  The second plaintiff was unrelated to the first, though he could have been a member of the federal class action.  The issues in both cases, though similar, were not identical.  Moreover, though the West Virginia tracked the federal rule, it was not identical.  West Virginia courts had, in fact, departed from applying provisions as in the federal courts.  In any event, a a rejected class action may not bind non-parties.  Justice Kagan delivered the opinion of the Court, joined by all Justices except Justice Thomas, who joined only Parts I and II-A.  [MG]

Axiom Law's Temporary Labor Business Model

Well, it's not "day labor" but Axiom Law has created a profitable niche by provided lawyers to law firms and corporations for temporary assigments on matters. According to a recent Forbes article, we're not talking about run of the mill attorneys looks for a step up from contract document review work. When Mark Harris launched Axion Law, the attorneys he hired (note hired) "had years of experience but not much appetite for putting in the long hours to make partner at a big firm. Harris hired them for around $250,000 a year plus benefits, about what they'd earn as senior associates at a big firm." Axiom Law now employs 500 lawyers and will pull in more than $100 million in revenues. For details about this very creative business model, see New Precedent For Law Firms.

Watch Out Mark Harris. After moving into legal processing, I don't see why TR Legal won't coming knocking on your door wanting to acquire Axiom Law. I've got no idea what the buyout ratio would be -- 5 times, 7 times revenue? -- but take it in cash, not stock. [JH]

WestlawNext: Pros and Cons and General Comments from Law Librarians

Published with permission from the AALL listserv (lightly edited):

Summary of Librarians’ Comments Given Regarding WestlawNext

Most comments were pretty black-and-white however [there were a] couple conflicting or contradicting comments. Most comments came from law firm librarians, but there were also comments from two law school librarians and one court librarian.

General Comments

Comparable Lexis product – Lexis Advance for Associates – is coming out in the fall. This will probably make it necessary for Westlaw to come down on their pricing with the new competition.

We're not going to switch until Westlaw.com is retired. We don't want to pay more to access the same data via a new interface.

The WestSearch algorithm (their plain language search system) seems to work better when black letter law is sought or when searches are very simple; it seems to work less well for factually driven searches (not surprising, considering how they have put the system together) and more complicated searches.  It is good to know that searching by terms and connectors is still possible (and necessary).

It would cost the [state judicial branch significantly] more than regular Westlaw so we are NOT going with WestlawNext.

I don't like it, but it's the wave of the future, and it's the way to go, since people no longer want to be bothered with learning "how" to do research.

WLN is being touted (with appropriate price increase) as a huge leap forward that will make Classic obsolete. To me, it looks like WL is just trying to make itself more palatable to new law grads who think Google is the alpha and omega of all knowledge - and if actual in-depth research suffers, so be it.

Pros

• Good for inexperienced searchers (Google-like).
• Good for case law research
• The foldering features and doc sharing tools are great.
• Will draw users that otherwise have an aversion to online research.
• Good for researching things you don’t know anything about.
• Much, much easier to search for law reviews/secondary sources.
• Some very nice new resource pages.
• The legislative history is much easier to use.
• Users vastly prefer WestlawNext Keycite and have commented that it’s easier to find cases using WestlawNext.
• The options for using it on a Kindle/tablet are superior.
• The appearance customization options are good for people with vision impairments.
• I like that West has decided to clean up their interface.

Cons

• Bad for seasoned researchers because it is too “dumbed-down” makes it harder to get results and results are less precise.
• Way too expensive.
• Seasoned researchers find it confusing.
• Have come across some very odd results with the West relevancy ranking. The most critical documents are often way down the list.  Associates should not rely on it blindly.
• Don’t the ability to rank order chronologically by court.
• Don’t like not having the control that you have with traditional Westlaw.
• Without the good search terms and some basic understanding of the issue it can be difficult to use.
• Administrative law is even harder to find.
• Statutes are difficult to research.
• WestlawNext and Westlaw sales people don’t seem to communicate with each other.
• They’re doing weird things with solo pricing on it (incentive to switch w/o telling solos about better priced WestlawPro product).
• There is no star pagination in secondary sources.
• One retrieves way too much garbage in a jumbled fashion with WestlawNext.
• When we research an issue, it isn't unusual for an attorney to scan 40 or 50 cases at a time to get the total picture - the WLN pricing structure penalizes this kind of exhaustive research by charging for each result viewed, while the WL Classic model supports it.
• WLN seems optimized for the easy, quick answer, which isn't usually the kind of legal work we handle.
• Dislike. It is very expensive and our ability to bill back suffered as an overall percentage of recovery because with two systems, usage stayed the same but the bill got bigger.

OK, It is Admittedly an Informal Survey of Professional Law Librarian Opinions But... . In addition to the above less than stellar general comments, looks like the "Cons" out number the "Pros" and do so by highlighting serious search-related flaws. I'm thinking TR Legal's marketing mavens better start coaching the Exhibit Hall Dilbert booth dwellers at Philly 2011: Cream Cheese, Cheesesteak or Karaoke on what to say after "Hey, WestlawNext was named 2011 Product of the Year by AALL!" Lots and lots of coaching on the official script because it appears that Johnny and Jenny Westlaw have been "retired."

Being named Product of the Year by AALL doesn't mean a damn thing other than AALL failed to do its due diligence this year. Personally, I have to wonder how many of the Award Committee members actually used WLN daily before making the decision to recognize a legal search service that is still not ready for "prime time." AALL did nothing more than provide fodder for the TR Legal PR team. From the press release:

“The WestlawNext team is honored to be accorded this recognition from the customers who best understand our service and its value." -- Mike Dahn, chief marketing and product development officer, Westlaw U.S., and former law librarian.

(Emphasis added.)

[JH]

Converting and Correcting Bulk-Distributed State Code Text into Well-Formed HTML: Hershowitz on His California State Code Project

Ari Herdhwitz discusses the process he went through to turn California's statutory code text into structured HTML with hyperlinked internal references after downloading the code titles the State makes available via FTP. He notes that some of the text errors he found where probably produced by the State's own conversion of text from print to electronic format. "With almost all legal research now being done electronically, I think it's reasonable to expect official government electronic sources that can be relied upon." Quoting from Cleaning Up California Law: Errors in online sections.

That, however, would require that "primary legal materials, and the methods used to access them, should be authenticated so people can trust in the integrity of these materials." Plus, the task Hershowitz went through to convert the distributed text into well-formed HTML would not have been such a strenuous effort had technical standards for document structure, identifiers, and metadata had been implemented. See LAW.GOV's Principles and Declarations.

Hershowitz has written about the conversion process he used in the following very interesting Tabulaw blog posts:

• How to Convert All Files in a Directory: CA Legislation.
• How to Convert Citations to Hyperlinks: CA Laws.
• How to: Convert Sections Into Hyperlink Targets.
• How to convert Text to HTML: Using txt2html Perl Module.
• California Laws: Converting Plain Text to HTML.
• California Law: Recovering Meaning and Metadata with RegEx.

Hat tip to Free Government Information blog. [JH]

Meet the New Chief Marketing Officer for Wolters Kluwer Law & Business: Might Need a Master Class Taught by Dick Spinelli

Wolters Kluwer Law & Business announced on June 13, 2011 that the Company named Alan Scott Chief Marketing Officer, "effective immediately."

Scott will be responsible for directing marketing strategy and execution, as well as business intelligence activities, across Wolters Kluwer Law & Business to advance connections with customers and improve the overall customer experience.

Most recently, Scott was Senior Vice President/Chief Marketing Officer for Dow Jones’ Enterprise Media Group, He also served as Chief Marketing Officer for Factiva. Scott also held leadership positions at Forrester Research/GIGA Information Group, Spencer Trask & Co. and Gartner Group.

I guess expertise in the legal market isn't required for being a chief marketing officer at Wolters Kluwer Law & Business. Thank god, Hein doesn't think like that. Ah, Alan, gonna make an appearance at Philly 2011: Cream Cheese, Cheesesteak or Karaoke? Know what the hell Wolters Kluwer Law & Business sells in the market niches it plays in?

Might Be Time for a Master Class Taught by Dick Spinelli. Ya got about month to understand what the hell you are pitching, Alan, if you plan to stroll down AALL's exhibit hall wearing a name tag. I suggest you take a master class from the best in the business -- Dick Spinelli. Got passport? If Dick isn't in Buffalo, you better hop a corporate jet to Italy.

Hey Dick, you owe me a Guinness in Philly if you charge this newbie Chief Marketing Officer a fee. Damn it all to hell, don't give it away for free. I'm gonna require lots of Guinness to survive this year's annual meeting. It's rich in iron content, you know. [JH]

ABA Gives And Takes In Law School Accreditation Changes

The American Bar Association may be smarting from the recent finding by the Department of Education that it is out of compliance with 17 standards applied to accrediting agencies.  A they did not lose their status to oversee law schools, see Victoria Szymczak's post An Intervention: ABA Violates 17 Department of Education Accreditation Regulations, the ABA exercised their authority on June 11 by changing the status of several law schools.

The ABA granted full accreditation to Elon University School of Law in Greensboro, NC, and to the Charlotte School of Law in Charlotte, NC.  Elon noted in its statement that it achieved approval at the earliest possible date under the ABA guidelines.  The Charlotte School of Law does not have a public statement on their web site.

North Carolina schools may have won big, but California schools did not fare quite as well.  The University of California, Irvine School of Law received provisional accreditation in less than two years after opening its doors to students.  That comes as no surprise given the support the school had from the University of California system and the high profile faculty and administration that established the school.  The School's statement on provisional accreditation is here.

Not faring well is the University of LaVerne College of Law.  The College was, in its words, dealt a setback when the ABA withdrew provisional accreditation.  The reason was the bar passage rate for first time takers.  It was 34 percent in 2009, and even though it jumped to 53 percent in 2010, it hadn't improved enough to be competitive with other law schools.  The school's statement indicated that it continues to improve with the goal of re-achieving accredited status and the ability for its graduates to take the California Bar.  The school was established in 1970 and was unranked in the latest U.S. News survey of law schools.  The status of the two other provisionally approved law schools, the Charleston School of Law, and the Earle Mack College of Law at Drexel University remain unchanged. A report on the develoments from the National Law Journal is here.  [MG]

Is There a "Future" for Law Libraries Without Gov 2.0 and Competition in the US Market?: An Observation on Tomorrow's "The Future of Law Libraries: The Future Is Now?" Conference Hosted by Harvard Law School Library

The Conference announcement poses a provocative question:

This is supposed to be the future of law libraries. A decade into the 21st century, how is it working? Is the digital utopia all it's cracked up to be? What's taken off like a rocket? What's misfiring? Join us on June 16, 2011 for a day of reviewing where we've come from, looking at how the predictions panned out, examining what's going well, and dissecting missteps. We'll also discuss and critique blueprints for the next iterations of our future.

(Emphasis added.)

With presentations like the following:

• The Open Law Movement
• The Open Access Movement
• The Open Collections Movement
• Working Together
• Hacking the Casebook: eLangdell and other Studies in Cases
• Developing Human Resources: The Skills Needed for Law Librarians of Today and the Future

Plus break-out groups covering suggested topics (or a lightly moderated discussion during the same time slot); it should be a very interesting meeting.

The keynote speaker will be Bob Berring, always interesting and perhaps in the context of the conference's theme we will hear some of his thoughts on the history of legal publishing, which he is rumored to be writing. Talk about capping off one's career in a very big way. (Mine will be a "Good-bye World" LLB post, LOL). If true, get in line behind me for obtaining a copy because I always learn something "reading Berring."

Suggested Readings for the Conference. The conference organizers have compiled a suggested reading list. At least two should be elevated to "recommended" reading status, IMHO. They are:

• Danner, Kauffmann and Palfrey's The Twenty-First Century Law Library, 101 LLJ 143 (2009)
• Palfrey's Cornerstones of Law Libraries for an Era of Digital-Plus, 102 LLJ 171 (2010)

One would hope all law librarians interested in the future of law libraries have already read them.

You Can Join the Conference. Do note that this is not an AALL-sponsored event. So the organizers subscribe to open access to all, including those interested law librarians who cannot attend. The intention is to live webcast as much of the proceedings as possible and blogging and tweeting are encourage. The hashtag for the event is #FoLL2011. I'm speculating that the break-out sessions may not be live webcasted but certainly will be blog and tweat-able by attendees. I'm thinking the informal "lightly" moderated discussion that will be taking place at the same time as the break-sessions may be webcast.

In the free exchange of ideas, I believe Harvard Law School Library's organizers give off-site viewers more credit that AALL certainly did for the Vendor Colliquium by recognizing viewers are intelligent enough to distinguish between professional opinions and expressed opinions representing the speakers own institutions. Check back here for the webcast link.

A Few Thoughts about the Harvard Conference Theme. Having lived through the last "future of law libraries" by which I mean the transition from print-only research to the introduction of what became very expensive online legal search by Mead Data Central (aka Lexis Global Legal) in 1973 and West (aka TR Legal) in 1975 to the widespread acceptance of online legal search's in the mid to late 1980s, my perspective is that we will only fully understand the "future" after it has become well-entrenched in the "present." We are not "there" yet; we are not close to being "there" yet.

This is indeed the first decade of the 21st century but the future of law libraries is still a "work-in-progress." My take on the situation is fairly straightforward. Perhaps myopic. But the future will be more like the present if the current WEXIS-dominated market structure continues to exist. It is going to take Gov 2.0 exemplified by the the bulk-distribution of well-formed legal e-materials proposed by LAW.GOV to change the status quo. In the 30-odd years since I left library school, this is is the best opportunity we have to structurally transform the provision of legal resources, not just primary but also secondary legal literature, not just "free" but also "for profit." Not merely replicate current research tools, but also provide the basis for the invention of new ones by new players, non-profits and commercial ventures.

Berring has observed many open access primary legal resources sites are not stable. True. Many have disappeared. At least one "free" access site I know of was launched for commercial purposes -- to prove and offer licensing opportunities for its very good search engine. It's also dead. But for LII's, much in the open access to law movement remains uncertain. While I like what CALI is doing with its use of RECOP for its The Free Law Reporter, only time will tell whether this is something more that a "proof of concept" experiment. This requires cold hard cash to remain a stable e-resource. So does the RECOP distribution system, for that matter. In fact, shouldn't open law -- the e-distribution of primary legal materials in stardardized mark-up -- be the responsibility of the public sector in the Gov. 2.0 era? 

Call Me a Capitalist Pig. But if I am, I am one who believes that the market for primary and secondary legal resources must become competitive again for law libraries to move into the future. As institutional buyers we are consumed by duopolists with monopolistic tendencies. Price escalation since the mid-1990s far exceeds common consumer price and purchasing power indexes. Quality deterioration can be seen in the increasing reliance of in-house authors. While it would be damn hard to prove collusion (and I think WEXIS is too smart to leave smoking guns), it is very clear that for years both TR Legal and Lexis have been imitating each other in pricing and content commoditization. Our current situation is not a recipe for structural transformation in US legal publishing.

It would be a hard case to make that TR Legal and Lexis Global Legal restrain trade under Section 1 of the Sherman Act. But Section 2 of the Act, which focuses on unilateral or monopolistic practices that create barriers to entry for other competitors, might be worth examining. Certainly a consumer-based approach to antitrust in the context of the current WEXIS duopoly should be pursued at the federal and states level. However, I suggest there is an alternative that may be more effective: implementation of LAW.GOV's principles by governmental bodies for bulk distribution of e-legal materials will encourage innovation in the legal information market by reducing barriers to entry. As law librarians the task at hand is what we do best, advocate for access, for access to materials the documentation community provides (Gov 2.0 generally, LAW.GOV specifically).  By doing so in a concerted manner, we can help reduce the barriers of market entry which in turn can increase competition. With competition, comes innovation in UI, search and not just for primary legal materials. We can also expect to see new secondary titles from publishers who are driven by editorial quality and innovative uses of technology. We can expect to more competitive pricing from WEXIS because the market entry barrier has been smashed.

The Nexus of Law Libraries and the Legal Publishing Industry. The future of US law libraries is clearly tied to the future of the US legal publishing industry. Until the status quo of the latter changes, there will be much talk about the future of law libraries but little more than isolated silos of innovation which will have little impact outside the law library community. Least we forget, legal literature is a professional literature. It is first and foremost intented to be used by practitioners -- members of the bench and bar and government agencies. By now it should be clear to all that our major vendors have and are deploying e-commerce sites in Amazon-like fashion to execute a strategy they have dreamt about for years -- sell to the individual consumer, out-flank the institutional buyer that employs "librarians whose names are known."

A structural transformation of the US legal publishing industry does not happen in "Internet time." I firmly believe it can happen. Progress cannot be stopped when the technology needed to "make it happen" is already available. Budget cutbacks in the public sector certainly can slow down the deployment of Gov 2.0 initiatives. So, perhaps, the first step is to recognize that in the first decade of the 21st century eGov websites and technology for providing public services and disseminating information must be viewed as essential government functions. [JH]

Google Enhances Desktop Search

Google announced several enhancements to search today at an Inside Search event held in San Francisco.  These are summarized at Google's Inside Search Blog post published earlier this morning.  Voice search will now be available from the desktop.  There will be a microphone icon in the search box that activates voice search with a click.  A physical microphone connected to the computer takes the input and displays results.  Google points to long queries or those with hard to spell (correctly, at least) terms as selling points for the technology.  Not mentioned is how much fun it would be to annoy others in a shared office by talking at the computer.  The feature is available in the Chrome browser starting with version 11.  The current version is 12.  Presenters said Google would like to see the same ability in other browsers.

Search by Image is another feature that becomes available on the desktop.  Searchers will now be able to drag an image to the search box at images.google.com.  The results will consist of similar images, descriptions of the content of the image, copies of the same image at different resolutions, and web pages that contain that image or similar images.  Images can come from the computer's hard drive or from the web.  Google indicated at the presentation that this technology would not include facial recognition features.  Private investigators and other interested will still have to look to Facebook for that type of utility.  Image search extensions for Chrome and Firefox will become available in the next few days.

The next feature is called Instant Pages.  Essentially, instead of loading search results from a query, Google will actually load the page from the result that it believes the searcher would reliably click, cutting out that step.  This only works when Google has reason to believe the search result is predictable, such as a destination or a specific item on the web.  If I search for the San Francisco Chronicle, the main page from sfgate.com would appear instead of appearing in a list of results.  If I searched for something more open-ended, say, European merger control policy statements, the traditional search list should appear.  And I thought Bing was the decision engine.  I assume Google gets some of that intuition by tracking my search habits, not that Google, Bing, or the others do not do that anyway.  The feature is one that can be turned on or off, depending on how helpful or annoying it can seem to individuals.   No word on how soon Google will advance this technology to predict if a searcher will commit a future crime and notify the authorities in advance.    

This leads me to another technological development, this time involving Comcast and Skype.  Both companies are announcing a partnership to bring video calling and chat to the living room via TV sets and high definition webcams.  The ideas is to make the TV set more social.  The example is a child's birthday party where the action can be directly shared with Grandma and Grandpa via a web connected TV set.  This is in contrast to making the call from another room that interrupts and presumably diminishes the party experience. I'm sure it will be delightful until a report surfaces on the web about a bored engineer remotely turning on the webcam and capturing a frothy slice of Americana.  Oops, that was really system maintenance.  Sorry.  In fact, why not attach a webcam to every screen in every room of the house.  Wouldn't that be the most social experience of all?  [MG]

ALM Webinar to Address Law Journal Press Online Issues Set for June 16

Hat tip to Rob Myers, CRIV Chair, for passing along the information that ALM will be hosting a webinar to address the many issues law librarians have raised about Law Journal Press Online's move to print-online combo or online-only pricing for the Company's loose-leaf treatises. From ALM's announcement Rob posted to AALL lists.

Please join us for a WebEx conference answering your questions about Law Journal Press Online.

Be the first to know about important recent fixes designed to address your concerns and about enhancements planned for the near future. We will also be pleased to reply to any additional questions or concerns that you may have.

Thursday June, 16 2011
1:00 – 2:30 PM EDT

RSVP to Jeannine Kennedy at jkennedy@alm.com
You’ll receive your WebEx credentials 48 hours prior to the conference.
 
From billing and customer service to search functionality and content, we’ve heard your comments, and we are taking action. Learn more, participate in a live Q&A, and find out how we are dedicated to serving you better!

Thanks Rob! Do note that neither CRIV nor AALL is endorsing or sponsoring the webinar in any way. I've been queried by the Company about "what to do" but credit goes to Rob for his steadfast vigilance on LJP issues. Good to see that there is still a spark of life in good old CRIV. [JH]

Internet Access as a Human Right: US Government Moves to Develop and Deploy "Shadow" Internet to Undermine Repressive Regimes

"[T]he Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression, as guaranteed by article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights," states Frank La Rue, a special rapporteur to the United Nations. Quoting from Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (May 16, 2011). "[A]ny restriction to the right to freedom of expression must meet the strict criteria under international human rights law."

From the UN Report:

The Special Rapporteur remains concerned that legitimate online expression is being criminalized in contravention of States' international human rights obligations, whether it is through the application of existing criminal laws to online expression, or through the creation of new laws specifically designed to criminalize expression on the Internet.

Such laws are often justified as being necessary to protect individuals' reputation, national security or to counter terrorism. However, in practice, they are frequently used to censor content that the Government and other powerful entities do not like or agree with.

"Shadow" Internet Initiative. James Glanz and John Markoff report that the Obama Administration led by State Department efforts "is leading a global effort to deploy 'shadow' Internet and mobile phone systems that dissidents can use to undermine repressive governments that seek to silence them by censoring or shutting down telecommunications networks." Past government efforts included "development of software that preserves the anonymity of users in places like China, and training for citizens who want to pass information along the government-owned Internet without getting caught."

Glanz and Markoff report that "the latest initiative depends on creating entirely separate pathways for communication. It has brought together an improbable alliance of diplomats and military engineers, young programmers and dissidents from at least a dozen countries, many of whom variously describe the new approach as more audacious and clever and, yes, cooler." For much more see U.S. Underwrites Internet Detour Around Censors (NYT, June 12, 2011). [JH]

Opening: Librarian/Research Specialist, Reinhart Boerner Van Deuren s.c., Milwaukee

Reinhart Boerner Van Deuren s.c. law firm is currently seeking a Research Specialist/Librarian. Responsibilities include providing reference and research services to internal clients. Other responsibilities include business development research, presentation of research training, intranet development and some technical services.

Required qualifications:

• An advanced degree in library science or equivalent experience
• At least three years of legal and/or business research experience, preferably in a virtual setting
• Research experience emphasizing issues relating to business/competitive intelligence
• Strong working knowledge of a wide variety of print and electronic resources commonly used in a large law firm and consistent ability to determine the appropriate resource based on time and cost requirements
• Excellent written, oral and email communication skills
• The ability to work comfortably in a virtual team environment, set priorities, and handle multiple tasks under pressure
• Strong dedication to client service
• Strong technology skills

Our constant focus is on superior client service.  Candidates should enjoy the challenge and satisfaction of working in a fast-paced cooperative service-oriented environment. If you can demonstrate the skills and commitment required for this position, we invite you to discover the Reinhart Advantage.  Please forward your resume along with a cover letter and salary requirements to:

Cindy Miilu-Draper
Employee Relations and Staff Recruiting Manager
Reinhart Boerner Van Deuren s.c.
1000 North Water Street, Suite 1700
Milwaukee, WI  53202
Or e-mail to cmiilu(at)reinhartlaw.com

An Intervention: ABA Violates 17 Department of Education Accreditation Regulations

The National Advisory Committee on Institutional Quality and Integrity advises the Secretary of Education on matters related to accreditation and to the eligibility and certification process for institutions of higher education.  Last week, the Committee reviewed 10 agencies, including the American Bar Association.  The ABA did not fare well.  The Committee, in its report, found that the ABA was out of compliance with 17 regulations.  The regulations are published at 35 C.F.R. 602. 

Wait!  Seventeen violations!  Really?  And the ABA has the nerve to be making changes to the accreditation standards for law schools when they are not even in compliance themselves.  Somehow, this seems wrong to me.  Maybe it does to the Department of Education too.

The ABA Standards Review Committee has been butting heads with the vast majority of law school faculties for two years regarding their controversial changes to the job security of faculties.  There is little evidence from the field that these changes are needed to improve the education of our students.  Evidence offered actually points to the contrary; however, heedless of the advice from legal educators around the country, the Review Committee pushes forward with its reforms.  Yet, the ABA cannot even manage itself.  I think their time and energy should be spent on cleaning house or their proposed changes will not mean a thing anyway.  But, back to the violations.

The violations are noted below:

The ABA needs to

1. adopt the proposed changes to its internal operating procedures regarding records retention and demonstrate with documentary evidence that it has implemented amended records procedures
2. demonstrate its expectation regarding job placement data that it collects
3. adopt a record of student complaints standard and demonstrate with supporting documentation that it has implemented the standard in its evaluation of law schools
4. demonstrate that its evaluation of law schools includes an assessment of the impact student loan default rate data, or the results of financial or compliance audits or program reviews on its accreditation decision
5. adopt the revisions to Standard 306 and/or the interpretations to address student identity verifications as required by this criterion.  In addition, the agency will need to demonstrate that it has implemented the revisions with supporting documentation (306 is distance education)
6. demonstrate that it has reviewed and taken follow-up action, as appropriate, on its review of the annual reports and the actions it requires of its programs
7. demonstrate that the council adopted the proposed changes to the standards and rules consistent with its proposal.  In addition, it will need to demonstrate with supporting documentation that it has implemented the changes (602.22(a)(2)(i-vii))
8. demonstrate that the council adopted the proposed changes to the standards and rules consistent with its proposals.  In addition, it will need to demonstrate with supporting documentation that it has implemented the changes (602.22(a)(2)(ix-x))
9. adopt revisions to its standards and rules regarding subsctantive changes in which the effective date is not retroactive.  It must demonstrate implementation with supporting documentation
10. demonstrate with supporting documentation that it has implemented its policy to solicit and consider third party comments from the public as part of the accreditation review and decision-making
11. demonstrate that it has implemented the proposed revisions after adoption by the council in June 2011
12. demonstrate that it has in place a process and guidance for the submission of a teach-out plan and protocol that includes criteria established by the agency, by which it reviews and on which it bases its approval as required by this criterion
13. demonstrate that it has developed and effectively implemented procedures for reviewing (during each comprehensive review) its requirements regarding transfer of credit
14. demonstrate that it has sent positive deicions notifications to all of the recipients listed in 602.26(a)
15. demonstrate that it has sent negative deicions notifications to all of the recipients listed in 602.26(b)
16. provide evidence that it has implemented the requirement to provide the public with written notice within 24 hours after it notifies the school of the negative accreditation decision
17. provide evidence of its notice to teh Department [of Education] with teh affected program's comments or in the alternative, notice that the affected party had been offered the opportunity to provide official comments

The ABA must submit a report within 12 months to show that they have corrected the compliance issues noted above.  I presume that the ABA will be stripped of its authority to accredit and evaluate law schools if it does not comply.  Tough love.

In the Executive Summary of the Report, each violation is discussed in about a page or two and provide the relevant details.  For example, with respect to issue number 2 above, the analysts point out that the ABA adopted standard 301 and interprative note 301-3 which considers the "rigor of the academic program, including assessment of student performance and bar passage rates of its graduates."  The ABA and its standards clearly state that a school failing to meet the bar passage requirements in the standards will be considered out of compliance with the accreditation standards.  The Staff Determination on this point finds that the ABA does not provide information on the schools' expectation for placement or the criteria by which it evaluates a school's performance in this area.  And so, it requires it to take steps to bring itself in compliance with the Staff Determination.

At least with this one violation, there has already been some progress as reported by Law School Transparency: 

The ABA Council on Legal Education and Admissions to the Bar completed an enormous step this morning towards helping prospective law students make informed decisions. The Council, which is the sole accrediting body for U.S. law schools, unanimously approved the Questionnaire Committee’s recommended procedures for the improved collection and sharing of employment data. The recommendation is based on last December’s Questionnaire Committee hearing, at which interested parties, including LST’s executive director, presented on the issue of consumer information transparency.

You can review the now-approved recommendation here (pages 22–28).

There is also an interesting article in the Chronicle of Higher Education on the report.  In that article, the author Eric Kelderman quotes some Committee Members who were opposed to continue the ABA's recognition as an accrediting body. 

I hope that the ABA takes their slap constructively.  They do not enforce their current policies and prefer to change them to new standards against the advice from the experts in the schools.  They seem to encourage the establshment of any new school without regard for the ability of that school to provide a realistic job picture in the face of enourmous student debt, or sanction existing schools for ultra large class sizes and incredibly high tuition.  The ABA should use this opportunity to get themselves in order and be grateful for this intervention. (VS)

Supreme Court Action Today - Government-Attorney Privilege, Rule 10b-5 Actions, and Conflicts of Interest

The Supreme Court issued three substantive opinions this morning, and one summary affirmance based on an equally divided Court.  The first case, United States v. Jicarilla Apache Nation (10-382), concerns whether the "fiduciary exception" to discover legal advice made in the administration of a trust applies to the United States in an action against it for trust mismanagement.  The case originates in the Court of Federal Claims (CFC).  The Tribe sued the government for money damages resulting from the mismanagement of a trust fund generated from the development of natural resources on the Tribe's land. 

The Tribe sought discovery of certain documents relating to the trust management and the government asserted that some were protected by attorney-client privilege.  The CFC basically held that the fiduciary exception applied.  Under that doctrine, a trust administrator who obtains legal advice related to the trust is precluded from asserting the attorney-client privilege against the trust beneficiaries.  The Court of Appeals for the Federal Circuit agreed with that ruling, setting up the instant appeal.

The Supreme Court reversed, holding that the statute that sets up the obligations supersedes application of the common law operation of the fiduciary exception.  The lower courts analogized the Government to the role of a private trustee.  That is incorrect.  The rights that flow in this relationship come from the fact that the Government is acting as the sovereign that consents to be liable to private parties.  This is in distinction to rights created between private parties.  The common law theory creates the exception because the trust corpus pays for the advice, with the beneficiaries as the real client.  Government attorneys are instead paid by congressional appropriations at no cost to the Tribe.  That structure confirms to the Court that any legal advice the Government sought was in its role as sovereign.  As such, the Government's interest in managing Indian affairs is greater than the administration of tribal trusts.  Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas.  Justice Ginsburg filed an opinion concurring in the judgment which was joined by Justice Breyer.  Justice Sotomayor dissented.

The second case is Janus Capital Group, Inc., et al. v. First Derivative Traders (09-525).  It concerns who can be held liabile under a 10b-5 private action for making false statements.  First Derivative Traders (FDT) represented a class of stockholders in Janus Capital Group, Inc. (JCG).  They filed suit alleging that JCG and its wholly owned subsidiary, Janus Capital Management LLC (JCM) made false statements in a mutual fund prospectuses filed by Janus Investment Fund, of which JCM was the investment advisor and administrator.  These statements, FDT contents, affected the price of the parent JCG's stock.  The legal status of the Janus Investment Fund is that of a separate legal entity owned entirely by mutual fund investors.  The District Court dismissed the suit and the Fourth Circuit reversed, holding that JCG and JCM made the misleading statements by participating in the writing of the documents.

The Supreme Court reversed, holding that the false statements included in the prospectuses were made by Janus Investment Fund and not by JCM.  As such, JCM and JCG cannot be held liable in a private action under Rule 10b-5.  Precedent holds that aiders and abettors who contribute substantial assistance to the making of a statement but who do not actually make it cannot be sued in a 10b-5 private action.  The Court rejects the Government's view that "make" should be equated with "create."  Congress should reaportion the liability of these close relationships rather than the courts.  Janus Investment Fund had the ultimate control over what was disseminated.  Justice Thomas delivered the opinion of the Court in which Chief Justice Roberts joined, along with Justices Scalia, Kennedy, and Alito.  Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.

The third opinion is Nevada Commission on Ethics v. Carrigan (10-568).  Nevada's Ethics in Government Law requries public officials to recuse themselves from voting on or advocating a position when their independent judgment in a private capacity is materially affected by the interests of others.  The Law goes on to describe various conflicts and private capacities including a catchall clause that covers relationships and commitments similar to those explicitly mentioned.  Carrigan was censured by the Ethics Commission as he voted on a hotel/casino project proposed by a company that used a long-time friend and campaign manager as a paid consultant.  Carrigan challenged the censure on the grounds that the Ethics Law violated the First Amendment.  The Nevada Supreme Court agreed.

The Supreme Court held that the Nevada Ethics Law is not unconstitutionally overbroad.  A legislator's voice is not protected speech as the legislative power belongs to the people that legislator represents, not to the legislator personally.  The United States Senate adopted conflict of interest provisions that barred a member from participating when a conflict arose as early as 1801.  The House took similar action.  The long-standing tradition prohibiting action when a conflict exists presumes the prohibition is constitutional.  Justice Scalia delivered the opinion of the Court in which all Justices except Justice Alito joined.  He filed a separate opinion concurring in part and concurring in the judgment.  Justice Kennedy filed a concurring opinion.

The case in which the Ninth Circuit's decision was affirmed by an equally divided Court is Flores-Villars v. United States (09-5801).  Flores-Villars challenged the the statute conferring citizenship on one born overseas if they had one U.S.-citizen parent.  That parent had to reside in the United States for a certain period of time before the child was born.  If the citizen-parent was the father, the period is five years.  If the mother, then the period is one year.  The Ninth Circuit affirmed Flores-Villars conviction for being a deported alien found in the United States after being deported.  That opinion is here.  Justice Kagan did not participate in the case, causing the split.  [MG]

SLA's 2011 Annual Conference and INFO-EXPO Is Underway: Virtual Conference Sessions Available for Members Who Cannot Attend

SLA's "Get Future Ready" meeting started June 12 and continues to June 15 in Philly. SLA members who are unable to attend the annual conference can participate in an excellent offering of sessions and a virtual exhibitor hall through SLA's Virtual Conference Component, something AALL has yet to figure out how to do.

As a virtual component attendee, you will have the opportunity to view, as well as participate in, the Closing General Session and a generous helping of Spotlight Sessions ... in real time! We will also have a virtual INFO-EXPO hall. This will give you the opportunity to meet with exhibitors that have signed up for the Virtual Hall.

(Emphasis added.)

Oh, my bad, weren't we supposed to vote for broadcasting a session or two for members who could not attend Philly 2011: Cream Cheese, Cheesesteak or Karaoke? Do note SLA's Virtual Conference costs $250 but that is substantially less than the cost of attending in person. Score one for SLA being "future ready" for professional library association meetings.

Sponsorship Dollars: SLA v. AALL. A quick check of where vendor sponsorship dollars are going reveals something interesting. While Bloomberg Government is an SLA sponsor, Bloomberg Law is not listed as a sponsor for our annual meeting. I guess we institutional buyers of legal resources just don't rate. Who is in charge at AALL HQ for pitching the "hard sell" for conference sponsorship? [JH]

Article Format of the Future: Elsevier Leads the Way for Online Journal Literature

Elsevier has launched new Article of the Future prototypes. From the press release:

The improved Article of the Future format is one of several enhancements Elsevier is introducing to SciVerse ScienceDirect. APIs have been released to allow for applications to be built using ScienceDirect content among other products within the SciVerse suite, and considerable developments have been made to search and discovery functionalities across article content. All of these enhancements are made to enhance the research workflow, with the Article of the Future project specifically focusing on improving the content and presentation of the individual article

The experimental format for online journal articles in the scientific journal literature can be viewed through prototypes in seven disciplines at the Company's Article of the the Future website. If you take a look-see, imagine what a new article format prototype might be for law in the context of what new content opportunities a similar (or substantially different) experimental format might bring to the online legal literature.

Hat tip to Gary Price's INFOdocket post. [JH]

Opening: Foreign and International Law Librarian, Univ. of Miami Law Library

The University of Miami Law Library is seeking an experienced Foreign and International Law Librarian who is fluent in Spanish. In addition to general reference responsibilities, the Foreign and International Law Librarian coordinates all library training and outreach related to supporting the law school's extensive curriculum in foreign and international law and develops the law library's collection in foreign and international law materials.

For detailed information about the position, please visit the Law Library's website.