Law Librarian Blog

GlobaLex Research Guides

Recently released updated guide:

• An Introduction to Venezuelan Governmental Institutions and Primary Legal Sources by Antonio Ramirez.

[JH}

Supreme Court Action Yesterday - Railroad Liability for Injury and Sentencing

Here are the summaries of the other two Supreme Court opinions filed yesterday.  CSX Transportation, Inc. v. McBride (10-235) concerns jury instructions in railroad injury cases.  McBride was a locomotive engineer who was injured while switching railroad cars.  He filed suit under the Federal Employers' Liability Act (FELA) which holds railroads liable from injury due to carrier negligence.  The District Court instructed the jury that they should find for McBride if CSX's negligence caused or contributed to his injury.  CSX wanted an additional instruction that required any negligence on its part to be the proximate cause of McBride's injury.  The District Court instead used the Seventh Circuit's Pattern FELA instruction which was based on the Supreme Court precedent of Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957).  McBride was awarded damages against CSX.  The Seventh Circuit Court of Appeals affirmed the judgment noting that Rodgers had relaxed the standard of proximate cause in FELA cases and other courts used the same standard.

The Supreme Court affirmed the Seventh Circuit.  It held that the language of the statute and Rodgers was a correct statement of the law.  The instruction used by the District Court tracked the language of Rodgers which correctly stated the level of causation under FELA.  CSX's interpretation would be inconsistent with statutory language that did not incorporate traditional common law applications of proximate cause.  As straight forward as the decision seems.  It was a close decision.  Justice Ginsburg delivered the opinion of the Court, except for Part III-A.  Justices Breyer, Sotomayor and Kagan joined in full, and Justice Thomas joined all except Part III-A.  Chief Justice Roberts dissented, joined by Justices Scalia, Kennedy, and Alito.

Freeman v. United States (09-10245) is a sentencing case.  Freeman was sentenced to 106 months under a plea agreement for various crimes including possession of cocaine base with intent to distribute.  The plea was negotiated by Freeman and the Government under the Sentencing Guidelines using the mandatory minimum length associated with the various charges to which Freeman pled.  Three years after the District Court accepted the plea, the Sentencing Commission issued a retroactive guideline that reduced the penalties associated with cocaine base and powder cocaine so as to reduce the disparity between the two.  Freeman moved for a sentence reduction under the Guideline and the District Court denied the motion with the Sixth Circuit affirming.

The Supreme Court reversed.  It held that the statute authorizing the plea agreement allowed the reduction as the agreement was negotiated under the Sentencing Guidelines.  The Court analyzed the relationship of the Guidelines to the statute and concluded the Freeman was eligible for sentence reduction.  Justice Kennedy announced the judgment of the Court joined by Justices Ginsburg, Breyer and Kagan.  Justic Sotomayor filed an opinion concurring in the judgment.  Chief Justice Roberts dissented, joined by Justices Scalia, Thomas, and Alito.  [MG]

Friday Fun: Shawnas' Alert! HHS Issues Public Health Ban on Tanning Salons

OMG, I hope Plan B for Shawnas is not visiting a law library to research the legislative history that may authorize HHS to take this action. [JH]

Law Prohibits Nation's Shawnas From Using Tanning Beds

Hein Turns the Table on the Anniversary Gift-Giving Tradition!

Normally landmark anniversaries means you give presents to the person(s) who achieved that milestone. Well, that not how the fine folks at William S. Hein & Co., Inc., see it. To mark the Company's 50th anniversary, Hein is offering the opportunity of giving you an anniversary present!

This year, in honor of our 50th Anniversary, we will be giving away a Chevy Cruze! Be sure to stop by booth #617 to enter to win. Drawing will take place on Tuesday, July 26, 2011 at 2:45 pm during the AALL 2011 closing reception in the exhibit hall. Winner need not be present to claim the prize. Registration, title, licensing fees, local, state and federal taxes, insurance and other unspecified costs associated with the vehicle are solely the responsibility of the winner. One entry per AALL member.

Call me a twisted sister but my first thought was that some WEXIS reps are AALL members when I read the following contest rule:

Winner agrees to give permission to William S. Hein & Co., Inf., for use of his or her name to publicize the winner of the drawing.

Would WEXIS AALL Members Take It If One Won? I think their corporate minders might say "no." But then I re-read the rules more closely and saw that "vendors" are not eligible to participate in the drawing. What the heck, some WEXIS reps may need to replace their high-end cars with a Chevy since their glam metal days are over.

So what do I do with the video code for Twisted Sister's classic, "We're Not Gonna Take It"? Why not post it anyway. This one is for Dick Spinelli. My hunch is he will dial up the volume to 11 and folks in Buffalo will congregate in his office for a good old-fashioned heavy metal sing-alone. "Sing it!" [JH]

Sign of the Times and Trust in Law Library Relations with HeinOnline: No Shelving Units Required for Law Review and Journal Runs

Both Washington State Law Library and Case Western Reserve Univ. Law Library are offering law review and journal runs for the cost of shipping. For Case Western the scope of titles being removed from the collection can be measured by the the number of spreadsheet pages -- 11. Check this week's AALL law-lib archives, if interested. One might say because we trust HeinOnline, no shelving units are required for past volumes of law reviews and journals. Perhaps, someday, there will be no need for current issues either, at least at those law libraries that still see a need for them.

If Not Retained on Law Library Shelves, Why Publish in Print? In his FoLL presentation, Dick Danner (Duke) reviewed the current status of transitioning to digital-only publication of law reviews in the context of the Durham Statement on Open Access to Legal Scholarship. See his Open Access session presentation (Video 2, accessible from the Conference wiki main page). Despite some current resistance from members of the law review community (and academic law library community), does anyone really believe that law review articles will be published in print ten years from now? [JH]

Opening: Technical Services Librarian, Hamilton County Law Library, Cincinnati, OH Library

The Hamilton County Law Library (Cincinnati, Ohio) is seeking applicants for the position of Technical Services Librarian. Located in the Hamilton County Courthouse and in service to Hamilton County’s legal community since 1837, the Law Library provides legal information resources and services to the courts, elected and appointed officials, attorneys, and the public. The Law Library seeks a highly motivated, experienced, and enthusiastic technical services librarian to join the staff in managing technical services and enhancing collection access for its user community. This is a full-time position (35 hours per week with a typical schedule of 8:00 a.m. - 4:00 p.m.)

Responsibilities (brief summary). The primary responsibility of the Technical Services Librarian is to support the Law Librarian & Director, staff, and library users by managing all aspects of cataloging, serials, and acquisitions, providing bibliographic access to materials in all formats, including electronic resources management. The Technical Services Librarian maintains ILS database integrity and manages the organization of the physical collection, including stack maintenance, filing, and collection shifts. S/he maintains electronic resources contract information and works closely with vendors to resolve any problems with orders for all material types. The position provides supervision of the technical services assistant and any temporary workers assigned to the department. The Technical Services Librarian establishes workflow, procedures, and documentation related to cataloging, acquisitions, and the processing of materials, including discards. S/he maintains statistics, makes recommendations based on analyses of data and processes, and participates in staff-wide projects like inventory and stack maintenance. The Technical Services Librarian engages in interagency and consortium activities related to technical services, assists patrons periodically at the reference desk, and contributes content to the library’s website and social media sites. The Technical Services Librarian is expected to be professionally engaged and make contributions to the field.

Qualifications.
Required: MLS or MLIS from an ALA-accredited program, relevant experience in a library for a minimum of two years, demonstrated knowledge of cataloging standards and serials control along with awareness of new trends, standards, and emerging technologies in technical services, strong service and team orientation, excellent written and oral communication skills as well as organizational and analytical skills, and demonstrated experience with standard library and office computer systems and applications.

Preferred: Working knowledge of and interest in information technology and trends including website content management and social media, supervisory experience or team leadership, demonstrated ability to work with a wide variety of patrons, demonstrated commitment to collegiality and cooperation, experience in collection review and development.

Salary and Benefits. Salary range: $41,000 minimum-$45,000 maximum, commensurate with education, skills, and experience. The benefits offered by Hamilton County are at www.hamiltoncountyohio.gov/hr/Benefits/BenefitsHome.asp.

To Apply. Please submit a current resume, letter of application, and contact information for at least three professional references to:

Hamilton County Human Resources Department
138 E. Court Street, Room 707
Cincinnati, OH 45202
FAX: (513) 946-4720

To apply online: www.hamiltoncountyohio.gov/personnel/employmentapplication.asp

Deadline. The deadline for applications is July 22, 2011.

Note: Applications for Hamilton County positions are considered public records under Ohio’s Public Records Act. As a public record, applications maintained by the County are made available to any person requesting to view them.

Supreme Court Action Today - Sixth Amendment, Free Speech and More

The Supreme Court issued six opinions this morning.  Let’s start with Bullcoming v. New Mexico (09-10876).  Bulcoming was prosecuted in New Mexico for DWI.  The state called a forensic technician named Razatosr to testify about the forensic laboratory report that certified Bullcoming’s blood alcohol levels were above the threshold for aggravated DWI.  The test and report, however, was prepared by a different analyst name Caylor.  The State did not call Caylor to the stand, nor said he was unavailable.  The record showed that Caylor was on unpaid leave without specifying a reason.  Razatos was familiar with the testing equipment and analysis techniques.  He did not, however, have any involvement with testing Bullcoming’s blood sample.  Bullcoming objected that this violated his Sixth Amendment rights under the Confrontation Clause.  Bullcoming was found guilty and the New Mexico Supreme Court upheld the conviction, holding that Caylor was merely a transcriber of machine results and that Razatos qualified as an expert witness.

The Supreme Court reversed and remanded the case.  Justice Ginsburg, writing for the Court, held that Caylor’s certification was more than transcription of a number.  It represented that he received the blood sample intact; that the report number and sample number corresponded; that he performed the test according to a precise protocol; and by leaving the report remarks section blank, that there were no circumstances that affected the test or the analysis.  Allowing another analyst to testify opens the door to other circumstances where anyone with comparative knowledge of equipment operations (think police and radar guns) can testify in a criminal trial.  Surrogate testimony violates the Confrontation Clause of the Sixth Amendment.  The reports are testimonial as they were created to be put into evidence.

Justice Ginsburg delivered the opinion of the Court, joined by Justice Scalia in full.  Justices Sotomayor and Kagan joined to all except Part IV.  Justice Thomas joined to all except Part IV and footnote 6.  Justice Sotomayor filed and opinion concurring in part.  Justice Kennedy filed a dissenting opinion joined by Chief Justice Roberts and Justices Breyer and Alito.

Another of the anticipated end of term cases is Sorrell, Attorney General of Vermont et al. v. IMS Health Inc. et al. (10-779).  Vermont passed a law that prevents pharmacies and similar entities from selling prescriber identifying information to data miners who then prepare reports or otherwise use the information to help pharmaceutical companies market their products to doctors.  The law specifically prohibits the disclosure of this information for marketing purposes or marketing by pharmaceutical manufacturers but has exceptions such as health care research.  Data miners and manufacturers sought relief contending the law violated their First Amendment rights.  The District Court denied relief but the Second Circuit reversed holding that the law does burden speech of data miners and marketers.

The Supreme Court affirmed the decision of the Second Circuit.  It held that the statute is subject to heightened scrutiny as it enacts content- and speaker-based restrictions on sales disclosures and other information, and prohibits marketing.  At the same time, it provides for other uses of the same information.  Vermont argues that the law is necessary to protect medical privacy, physician confidentiality, and the doctor patient relationship.  The Court responds by saying the law is not drawn that narrowly.  The only choice doctors have is to consent or withhold consent which limits the use of the information to State supported messages.  In any event, some doctors may want to hear the marketing messages.  They can make up their own minds as to whether they are persuaded by them.  Doctors are an experienced and sophisticated audience.  Vermont can’t pass as law such as this because it doesn’t like the fact that the message is effective.

Justice Kennedy wrote the opinion, joined by Chief Justice Roberts, and Justices Scalia, Thomas, Alito, and Sotomayor.  Justice Breyer dissented, joined by Justices Ginsburg and Kagan.  I wonder how this ruling will affect the number of Internet privacy bills circulating in the Senate and the policy initiatives of the Federal Trade Commission.  The Court was clear that the creation and dissemination of information qualifies as speech within the meaning of the First Amendment.

The next case concerns the saga of the late Anna Nicole Smith’s attempts to receive hundreds of millions of dollars from the estate of her late husband, J. Howard Marshall as challenged by Marshall’s son, E. Pierce Marshall.  Both estates now are parties since he had passed away before this case was decided.  Welcome to Stern v. Marshall (10-179).

The case has a complicated procedural history, of which the Court spends page after page recounting.  Chief Justice Roberts starts the opinion with a quote from Charles Dickens’ Bleak House about generations passing and the litigation pressing on despite the human events.  Not a good sign.  We’ll dispense with the lengthy history here and head straight to the question before the Court.  That is whether a bankruptcy judge, who does not meet the requirements of Article III for tenure and salary protection, has the authority to enter final judgment on a counterclaim by Smith’s estate against Pierce Marshall.  The Court refers to Smith by her real name, Vickie Lynn Marshall.

The relevant facts from the case that give rise to this question come from a proceeding in bankruptcy court where Pierce Marshall accused Smith of defamation.  She filed a counterclaim for tortuous interference with the gift she expected from J. Howard Marshall.  The bankruptcy court has the authority under the Bankruptcy Code to hear “core” matters.  The bankruptcy court entered judgment on the tort.  The Supreme Court concluded that the bankruptcy court did have the ability to render judgment under the statute, but not the Constitution.  

The opinion by Chief Justice Roberts was joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justice Scalia filed a concurring opinion.  Justice Breyer filed a dissenting opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

The next case, Pliva, Inc. v. Mensing (09-993) concerns the conflict of state tort law against federal regulations.  Mensing and other plaintiffs contracted a severe neurological disorder called tardive diskinesia after long term use of a generic version of Reglan, a drug used for digestive problems.  They sued the generic manufacturers for failure to provide adequate warning labels.  The manufacturers defended on the basis that statutes and FDA regulations pre-empted the state tort claims as they mandated the generic drug to be labeled the same as Reglan.  The Courts of Appeals in the Fifth and Eight Circuits rejected those defenses.

The Court, with Justice Thomas writing, reversed the Courts of Appeals.  His analysis starts by noting that state law requires drugs to be labeled in a way that renders it legally safe, thus requiring stronger labels than what were on the packages.  Federal law requires the generic manufacturers to label their products with the same warnings as the original drug, and these warnings cannot be independently changed.  The plaintiffs argued that the FDA has a process for manufacturers to strengthen their warnings unilaterally and they also could have sent warning letters to doctors.  The FDA contended that these methods were not available to these manufacturers.  The Court, as Justice Thomas puts it, defers to the FDA’s views because they are not plainly erroneous and reflect the FDA’s fair and considered judgment that the only avenue to the generic manufacturers was to ask the brand name manufacturers for stronger labels.  The Court holds that it was impossible for the manufacturers to comply with both the state and federal laws in conflict with each other.  The Supremacy clause tips in favor of federal law controlling the issue.

Chief Justice Roberts joined Justice Thomas, along with Justices Scalia and Alito.  Justice Kennedy joined in all but Part II-B-2.  Justice Sotomayor wrote a blistering dissent, joined by Justices Ginsburg, Breyer, and Kagan.  I’ll leave it to other, more qualified commentators out there to discuss how Justice Thomas seems to have his own parallel universe of constitutional law that he smilingly inflicts on litigants.

I’ll offer summaries of the last two cases on Friday.  [MG]

CRS Issues Legislative History Research Guide

From the summary of Legislative History Research: A Basic Guide (June 15, 2011):

This report provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources.

Hat tip to INFOdocket. [JH]

Springer Launches SpringerReference.com of "Live eReference" Works for Academic and Corporate Libraries

From the press release:

Springer Science+Business Media has launched SpringerReference.com, a new platform for researchers and academic and corporate libraries. It offers living editions of Springer’s eReferences well in advance of their print editions across every subject. Through the platform, scientists can submit updates to articles whenever they want or deem necessary to keep up with the demand for the most recent scientific developments. SpringerReference.com thus offers a way to quickly publish major reference works which need to be constantly updated with the most up-to-date research findings.

The ‘Live eReference’ updates submitted by scientists are peer reviewed to ensure that all content on SpringerReference.com meets the same high standards for quality and integrity that libraries and researchers have come to expect from Springer. These updates are all accessible on one single platform and are interlinked with each other. New articles can easily be added and existing ones updated.

At launch, the new SpringerReference.com gives access to 146 major reference works, corresponding to about 185,000 articles and 220,000 pages. The platform will grow as updates and content are added.

...

Springer References comprise encyclopedias, handbooks and other types of major reference works. The Springer References are multivolume publications, managed by expert scientific boards of editors. These high-quality tomes consist of an organized sequence of entries and contributions by many different authors. The Reference Editorial Office publishes more than 40,000 entries a year covering a wide spectrum of sciences from biomedicine to engineering, from computer science to environmental science and from mathematics to human sciences. The contributions are written in such a way that the reader will benefit from them, even if the field is not his or her area of expertise. SpringerReference.com can be purchased on a subscription-based model.

Hat tip to No Shelf Required. [JH]

Unbound: CALI Conference for Law School Computing Starts Today

Recently I had the opportunity to talk with John Mayer, CALI Executive Director, mentioning that one thing (really the only thing) I miss about not being an academic law librarian anymore was that I cannot justify having my little county law library pick up the tab for the cost of attending CALI. For me, CALI has always been the most interesting annual conference to attend, one where I actually attended sessions throughout each day on the annual meeting. Not being a techie for some 30-years now, CALI's annual conferences exposed me to what was going on -- creativity in terms of new experimental projects, plus status reports on ongoing projects, etc.

CALI's annual session agendas are not in any way, shape or form directly relevant for my little county law library. But professionally speaking CALI was always the best opportunity to see, listen and talk with some of most creative people who are expending their blood, sweat and tears to advance law school computing, which, in turn, may advance legal computing beyond the legal academy. Take for example CALI's eLangdell casebook project. As noble an effort as it is, it may be more ground-breaking as a 21st century model for creating law school casebook published by commercial legal casebook publishers. But isn't imitation the best complement?

Not Just for Techies; Not Just for Academic Law School Computing. CALI's annual meeting certainly is a gathering place for techies but it is also the best place for law librarian non-techies like me to gain a glimpse at what the future might hold. I guess the point of this post is that public and private sector law librarians should not dismiss considering the possibility of attending CALI because it looks like an irrelevant academic legal computing conference. In terms of the cost of attendance, my past experience as a non-techie is that CALI offers a higher return on investment than attending AALL's annual meeting, at least for professional education and development purposes.

Wish I was attending this year's meeting. Perhaps next year. You (or a member of your staff)? [JH]

Court Compels Arbitration Clauses Against Students

Here's a story that makes one stop and think.  The Chronicle of Higher Education (premium content subscribers) is reporting on a federal case where students in Colorado sued Westwood College there for allegedly misrepresenting its tuition costs, accreditation status, and job prospects for graduates.  Does that last one sound familiar? Well, the school found a slick way to defeat the suit and avoid a class action on the matter.  It placed an arbitration of disputes clause in its enrollment documents.  There were two sets of plaintiffs in this case.  One set were students who sued the Westwood's parent group directly (the Bernal plaintiffs).  Another set files an arbitration proceeding seeking class arbitration (The Mensch plaintiffs).  This led to some procedural issue affecting both sets.

The arbitrator for the Mensch plaintiffs said that the contract was not unconscionable and that nothing in the agreement allowed him to compel class arbitration.  A Colorado state court confirmed the ruling.  The question in the suit, at this stage of the litigation, is whether the arbitrator's decision is binding, and if collateral estoppel does not apply, whether the arbitration agreement is unconscionable.  The Court, in considering the question, cited the recent Supreme Court precedent in AT & T Mobility LLC v. Concepcion from April 27 of this year.  Concepcion basically held that states can't prohibit arbitration clauses in contracts as unconscionable under their law, even in adhesion contracts, if that prohibition conflicts with the Federal Arbitration Act's presumption in favor of arbitration.  I think you can see where this is going. 

The Court basically stated it could consider whether the agreement is the unconscionable and would have issued a ruling stating that it was, but for Concepcion.  That changed everthing.  From the Court:

There is no doubt that Concepcion was a serious blow to consumer class actions and likely foreclosed the possibility of any recovery for many wronged individuals. The dissent in Concepcion recognized the impact of the majority's decision and argued that it would effectively end the ability to prosecute small-dollar claims and that those claims would slip through the legal system. Id. at 1761. Countering this argument, the majority wrote: “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Id. at 1753. Thus, the Supreme Court considered the fact that the Concepcions and other class plaintiffs would be denied any recovery by its ruling, and ruled against the class plaintiffs nonetheless. The Court is bound by this ruling and, therefore, cannot be persuaded in this case by the fact that ordering the parties to arbitration may impact Plaintiffs' ability to recover.

Ultimately, there is no dispute that the agreement to arbitrate was prominently written in the enrollment documents, including an entirely separate document entitled “Agreement to Binding Arbitration and Waiver of Jury Trial”. (ECF No. 15–2.) There is also no evidence that Plaintiffs were subject to significant external pressure driving them to sign the documents without taking time to review them and/or have someone else review them. The Arbitration Agreements here appear to contain relatively standard terms, which would suggest that they are substantively fair. Plaintiffs had to ability to cancel the contracts and receive a substantial refund. Finally, there is a competitive market for education programs such as those offered by Defendants and Plaintiffs could have chosen to pursue their education elsewhere. All of these factors weigh against a finding of unconscionability. (footnotes omitted)

The Court went on to compel arbitration.  Can you imagine law schools placing arbitration agreements in their enrollment documents?  Consider that as an option to avoid student threats to sue over misrepresentation of job prospects or other disputes.  That would certainly teach law students something about the law.  The case is on Westlaw with supporting documents, Bernal v. Burnett (D. Colo., June 06, 2011) 2011 WL 2182903.  [MG]

Tom Bruce to Congress: Get Your Data in Order

Reporting on last week's hearing of the Committee on House Administration's subcommittee on oversight in Congress Mulls How iPads, XML Can Cut Costs, Elizabeth Montalbano featured Cornell LII Tom Bruce's presentation. Bruce suggested use of smart XML-based word processing, better document management, status tracking and smart tools could increase collaboration in conducting the business of Congress.

To implement these new technologies, however, Bruce said the House needs to get its data in order, which it can do by maintaining compliance with XML-based standards, ensuring the quality of its data, and creating systems that accurately archive legislative information over an extended period of time.

[JH]

Gov 2.0: Guides for Social Media Tools

In How many social media tools does it take to change an agency? It depends, but the agency has to really want to change, Business of Government blog, John Bordeaux writes

[S]ocial media tools, both inside and outside the firewall, can help transform a business or agency into one that is more connected to employees, citizens, partners, and so on. Social tools present an unprecedented opportunity for conversation and knowledge flows to become much more useful to the organization. The focus here is not on the tools, but on the changes that can be realized if the organization is “listening” with a desire to change.

Unfortunately, the focus on 'listening' is often missing from Agency social media initiatives. Too often, the projects bring at best a tenuous connection to their core business. Flailing about with blogs and tweets, with no connection to how they conduct business. With all the promise of a Social Business enabled by modern interaction protocols and technologies - these firms and agencies strike us at the risk of becoming anti-social.

...

Without a clear tie to the agency mission, without providing for the opportunity to realize innovations for your business model arising from these increased interactions - social media efforts in a vacuum show you to be, ironically enough, an “anti-social business”.

The IBM Center for the Business of Government has published two guides on the use of social media for public managers.

Using Online Tools to Engage – and be Engaged by –The Public "describes common scenarios where public managers may find themselves needing, or using, public input.  He describe a mix of ten different tactics managers may find useful for engaging the public online and highlights over 40 different technologies in use today to support those kinds of engagements."

Using Wikis in Government: A Guide for Public Managers "describes the managerial, cultural, behavioral, and technological issues that public managers face in starting and maintaining Wikis."

Opening: Associate Director, Legal Information Center, Univ. of Florida Levin College of Law

The University of Florida Fredric G. Levin College of Law seeks applications for the position of Associate Director of the Legal Information Center.  The primary responsibility of the position is to manage the day to day operations of the Lawton Chiles Legal Information Center (LIC), a premier institution housing one of the largest collections of legal research materials in the southeastern United States.  It is a library faculty tenure track position, whose tenure home is in the Smathers Libraries, the main library of the university.

Responsibilities:  The Associate Director assists the Associate Dean for Legal Information (LIC Director)  with administrative responsibilities, including budget preparation, long and short-range planning, personnel supervision, facilities management, and technology initiatives; is responsible for oversight of the Public Services and Technical Services departments and for the coordination of interdepartmental activities within the Legal Information Center; teaches legal research and participates in reference, research, and faculty liaison service.  The Associate Director reports to the Associate Dean for Legal Information and assumes responsibility for the Legal Information Center in the Associate Dean’s absence.

Required:  JD or equivalent from ABA-accredited school, MLS or equivalent from ALA-accredited institution. Substantial supervisory or management experience in a law library.  The successful candidate should also possess: a strong knowledge of legal information and research techniques in all formats; knowledge of law librarianship trends; a strong service orientation; excellent interpersonal and communication skills; and the ability to coordinate complex activities, develop new services, handle numerous projects simultaneously, and bring projects to completion. The successful candidate will enjoy working with people from a variety of backgrounds and will bring the ability to improve teamwork, maintain positive relationships, train and motivate staff, and engage in continuing professional development. The successful candidate will also support and enhance a diverse learning and working environment.

Work Environment:  The University of Florida is a major, public, land-grant, research university.  It is the state of Florida's oldest and most comprehensive university, and it is one of the most academically diverse public universities in the nation. It has a long history of established programs in international education, research and service. It is one of only 17 public, land-grant universities that belong to the Association of American Universities.  Located in Gainesville, Florida, the University is a 90-minute drive from Jacksonville, and less than two hours from Orlando, the Atlantic Ocean, and the Gulf of Mexico.

The LIC serves faculty, staff, and students at the Levin College of Law, other University of Florida students and faculty, as well as the Florida Bar and the general public.  The library’s principal user population includes approximately 60 tenure-track faculty and 40 other full-time faculty members, and approximately 1,100 J.D. and LL.M. students.  One of the LIC’s greatest strengths is the well developed tax collection which supports the College’s top-ranked tax LL.M. program.  The LIC’s staff includes seven tenure-track librarians and twelve paraprofessionals.  The operating budget is $1,306,000, and the acquisitions budget is $1,200,000.   The collection contains 655,000 volume equivalents and most of the standard electronic resources common to top-tier academic law libraries.  Approximately 32% of the acquisitions budget is devoted to electronic resources.

The LIC works closely with the University of Florida George A. Smathers Libraries. Law librarians participate actively in campus-wide library and information science activities. The relationship with the Smathers Libraries has led to successful digitization projects, development of a campus-wide book retrieval system for law faculty, and improved coordination of collection development.  Law librarians participate in shared governance within the University of Florida and also represent the LIC on state-wide committees of the Council of State University Libraries.

To Apply. Go to: http://jobs.ufl.edu; requisition number 0808357. Please include resume, cover letter and the names of three references. Application deadline is July 29, 2011.

Anticipated start date is January 2012.

The University of Florida is an affirmative action/equal opportunity employer. Minority and female applicants are encouraged to apply.  If an accommodation due to a disability is needed to apply for this position, please call (352)392-4621, or TDD (352)392-7734.  The University of Florida is an equal employment opportunity employer. 

Law School Grad Labor Market Oversupply: Not Yet a Trend But Creighton Law Is Willing to Share the Pain

Jim Levy on Legal Skills Prof Blog, by way of ATL's Trendspotting: Will Law School Start Decreasing The Supply of Unemployable New Lawyers?, reports that two more schools have decided to admit fewer students - Creighton and Western New England.

For Creighton, though, this isn't a one-time adjustment in response to lower applications. ... Creighton's Dean Culhane is instead planning on reducing the class size for the next four years and that means forgoing about $600k in revenue for each of those years.

Taking a $600K hit each of the next four years is no small matter. Check out the Omaha World-Herald story, Creighton Law pares class size, for details.

Levy comments "[i]t's a small but important gesture for the faculty to show recent grads that it is willing to share in the hardship of a lousy job market." Well, it is not a trend but at least Creighton Law is acting responsibly. Some other law schools have increased the their traditional student enrollments to "pay for" budget cutbacks. 

Kudos to Creighton Law. "Shame on you" to some other law schools. [JH]

Bloggergate: Is There a Blogger Exception to the Prohibition for CIA Spying on US Citizens?

Visit msnbc.com for breaking news, world news, and news about the economy

On Blog Law Blog, law prof Eric E. Johnson reports:

Jonathan H. Adler of The Volokh Conspiracy points to quite an alarming story in the New York Times reporting allegations that the George W. Bush White House directed the CIA to gather damaging information about blogger Juan Cole, a University of Michigan professor whose liberal views on his Informed Comment blog were highly critical of Bush’s foreign policy.

Eric Johnson's Bush White House Allegedly Directed CIA to Spy on American Blogger blog post comment:

Wow. That sure seems illegal. A former CIA general counsel interviewed for the story agreed, saying, “The statute makes it very clear: you can’t spy on Americans.” ... If Carle’s allegations are correct – or even partly right – this is just completely outrageous.

"Bloggergate" sources:

• James Risen's New York Times story: Ex-Spy Alleges Bush White House Sought to Discredit Critic (June 15, 2011)
• Jonathan Alder's VC post: Did Bush Administration Target Liberal Blogger? (June 16, 2011)

I'm thinking if the Bush Administration spying allegation is true, it might be worth taking Professor Cole's RSS feed. Even if not true, take a look at some of Cole's recent posts to decide for yourself if his Informed Comment: Thoughts on the Middle East, History and Religion blog is worthy of an RSS feed subscription. For me, the answer is "yes." [JH]

Legal Project Management Books for Lawyers (and Private Sector Law Librarians and Members of the Legal Academy, Too)

Slaw's Ted Tjaden writes that there are relatively few substantive books on project management geared specifically to lawyers. In his recent Slaw post, he recommends two recent works because they complement each other. Levy’s Legal Project Management – Control Costs, Meet Schedules, Manage Risks and Maintain Sanity (2009) for its comprehensive treatment and Hassett's The Legal Project Management Quick Reference Guide, 2d ed. (2011) as a reference work that provides many sample tools and templates. Tjaden writes

For lawyers wanting to learn more about project management, it is a 'no brainer' to likely acquire both books and I would be hard-pressed to recommend one over the other.

For more, including a review of Hassett's recently released book see Tjaden's post on Slaw.

Do note that Tjaden calls attention to Boake and Kathuria's Project Management for Lawyers (2011). He hasn't received his copy and promises to review it on Slaw if it turns out to be a good addition to the lawyer-focused literature on project management.

My hunch is many private sector law librarians, firm and corporate, are (or should also be) reading these works. For example, Tjaden notes that he likes the fact that Levy's work includes a chapter aimed specifically at in-house counsel.

Legal Project Management to Educate Law Students to Practice Their Chosen Profession. In the good old days, the legal academy could get away with saying "we can't really teach law students to practice law." Then came clinical opportunities. Now, well, legal practice is much more IT-based (and not just online legal search). While some schools have been leaders in the introduction of and instruction in legal productivity applications (eg, Colorado for example, and based on that trend-leading example, other schools), there are no excuses other than (1) a failure of will, (2) a lack of expertise, and (3) pinhead faculty status requirements, to march forward.

It certainly wouldn't hurt legal skills profs to read these works, too. But if the non-legal skills prof community in the legal academy is not just paying lip service to the call for adding more courses to the legal skills curriculum, courses on legal project management and other legal IT courses -- not just a the use of some applications or lecture or two about them) would help educate law school grads for practicing their chosen profession. This is doable by adding Legal Technology professors with the same status as "scholarly" law profs. Yes, I know, considering the decade long struggle for legal skills profs to acquire similiar "pecking order" status, with many still related to the the less than prestgeus "clinical law prof" title, this may be a stretch. But hasn't the time come for doing this. NB: having a JD isn't required so perhaps the ABA Accredition Standards Review Committee's deliberations should be looking toward being "future ready."

BTW, in another interesting 3 Geek's "elephant post" do check out responses to the question, "Is it 'legal' project management or just project managment?" Responses include one from Steve Levy, author of Legal Project Management – Control Costs, Meet Schedules, Manage Risks and Maintain Sanity (2009). [JH]

Opening: Deputy Director, Maryland State Law Library

For details go to this announcement. [JH]

Supreme Court Action Today - Wal-Mart Class Actions, Global Warming Regulation, and More

The Supreme Court issued four opinions this morning.  At least two of them are major end of term cases that shake up the legal landscape.  The first of these is the Wal-Mart class action case, Wal-Mart Stores, Inc. v. Dukes (10-277).  That case concerned whether a class could be certified for female employees seeking redress for alleged discrimination under Title VII of the Civil Rights Act of 1964.  The basic claim was that Wal-Mart managers favored men in decisions regarding pay and promotion.  The District Court certified the class and the Ninth Circuit affirmed.
 
The Supreme Court reversed, holding that the class was improperly certified.  The commonality requirement of Federal Rule of Civil Procedure 23(a)(2) was not met as it requires a class wide resolution.  A Title VII claim is individualized to the circumstances of the specific employment decision while this suit contemplates suing for millions of decisions at once.  Without more, it’s uncertain whether there is a common answer to each of the grievances.  The proof that bridges the individual claims to those of a common class is missing. 

The only evidence of a general discrimination policy is a sociologist’s statistical analysis that Wal-Mart has a gender bias in employment decisions.  The Court noted his testimony fell far short of establishing the significant proof that Wal-Mart had a general policy of discrimination.  At best, the evidence shows that Wal-Mart left a lot of discretion in wages and promotion to individual managers.  Given the size of the company, not everyone in the purported class would have suffered under that policy.

Back pay claims did not meet certification standards under Rule 23(b)(2) because they are too individualized to be considered under a single remedy.  At best, such claims belong under Rule 23 (b)(3) where individuals can receive notice and decide whether to opt out of the class.   Even this may not be practical as potential class membership is fluid.  Any claims against Wal-Mart for back pay should be measured against individual relief. 

The Court more or less agreed that the action should not go forward as a class.  Justice Scalia delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito.  Justices Ginsburg, Breyer, Sotomayor and Kagan joined in Parts I and II of the opinion.  Justice Ginsburg also filed an opinion concurring and dissenting in part, joined by the same Justices.  The disagreement from these four comes whether the class has options under Rule 23(b)(3).  Justice Ginsburg and the rest would have reserved that question for determination on remand rather than precluding the class strictly on the lack of commonality.  Nonetheless, all Justices agree that the class should not go forward as it exists at this stage of the litigation.  This is consistent with suggestions from the oral arguments.

The second major case announced is American Electric Power Co. Inc., et al. v. Connecticut (10-174).  Several states, New York City, and three non-profit land trusts commenced lawsuits against certain power companies under federal common law of interstate nuisance for emitting significant greenhouse gasses that contributed to global warming.  This, in turn, interfered with public rights.  The remedy plaintiffs sought was a decree setting a cap on levels of emissions to be reduced over time.  The Court held in an earlier case that the EPA had the authority to regulate carbon dioxide and other greenhouse gasses and ordered it to commence rulemaking to that effect.  The EPA has committed to a final rule by May 2012. 

The District Court dismissed the suits as presenting a political question but the Second Circuit reversed, holding that a justiciable claim had been presented and stated a claim under federal common law of nuisance.  The Supreme Court split 4-4 on the issue of jurisdiction.  That part of the Second Circuit’s decision was upheld.  However, the Court reversed on the merits claim, holding that the Clean Air Act and the rulemaking action by the EPA displace any common law right that may have existed.

The Court acknowledged that a federal common law exists despite claims to the contrary in the venerable case of Erie v. Tompkins.  Nonetheless whatever the claims, once Congress speaks on the issue, it precludes the courts from creating the controlling law under a common law theory.  The Court further rejected the argument that federal common law is not displaced until the EPA acts.  The Court was clear that it’s not the quality or reach of the Congressional action but the fact that the action speaks to the issue.  The regulating agencies have the subject expertise compared to federal judges.  They cannot investigate, call upon experts or otherwise duplicate the effort of the agency.  Any subsequent complaints to the eventual rule can be handled through existing administrative law precedent and procedures.  The Court did leave one option open to the plaintiffs.  It said that the issue of proceeding on the basis of state law was still an open question.

Justice Ginsburg wrote the opinion joined by Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Kagan.  Justice Alito, joined by Justice Thomas, wrote an opinion concurring in part and concurring in the judgment.  Justice Sotomayor did not participate.

The third case is Turner v. Rogers (10-10).  After numerous child support proceedings in a South Carolina Family Court Turner was sentenced to 12 months in prison for willful civil contempt.  Both he and Rogers were unrepresented by counsel in the civil contempt hearing.  He claimed after he had completed the sentence that the Constitution should have allowed him appointed counsel.  The South Carolina Supreme Court ultimately rejected this claim, holding that civil contempt proceedings do not require the same protections as criminal contempt proceedings. 

The Supreme Court held that even though he completed his sentence, the case is not moot as it fell in the category where it was capable of repetition while evading review.  The Fourteenth Amendment’s Due Process Clause does not automatically require provided counsel at civil contempt hearings in situations where both parties are not represented and the state provides alternative procedural safeguards. 

The Court’s precedent does not help to answer the question in this context.  What precedent does exists shows that right to counsel appears in cases involving potential incarceration, though none of them establish whether that right should be available in all such cases.  The Court examined factors such as the nature of the private interest affected, the risk of erroneous deprivation of that interest, and the magnitude of any countervailing interest in not providing a substitute for procedural requirements.  This analysis strongly argues for right to counsel in Turner’s circumstances.

The Court describes four substitute procedures that would satisfy due process:  (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.  The Court noted that since Turner had neither the benefit of counsel nor these alternative procedures, his rights were violated.  The Court reserved the question of whether this applied when support is owed to the state as reimbursement for funds paid to the custodial parent.

Justice Breyer wrote the opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Thomas dissented in his usual original intent analysis, joined by Justice Scalia.  Chief Justice Roberts and Alito joined only Parts I-B and II of the dissent.

The final case is Borough of Duryea, Pennsylvania, et al. v. Guarnieri (09-1476).  Guarnieri was fired by the Borough and brought a union grievance that led to his reinstatement.  The Borough then issued directives on how Guarnieri should perform his work.  He brought a second grievance and the arbitrator ruled that some of the directives should be modified or withdrawn.  Guarnieri filed a §1983 suit alleging that the directives were filed as retaliation for filing the first grievance and violating his First Amendment right to petition the government.  The District Court ruled that the grievances were constitutionally protected and he was awarded damages.  The Third Circuit upheld the ruling but modified the award. 

The Supreme Court noted that the Third Circuit’s precedent was out of line with every other Circuit to have ruled on the issue.  The correct view of the law is that alleged retaliatory actions do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern.  Even in cases where a public employee speaks as a citizen on a matter of public concern, that speech has to be balanced against the Government’s interest in promoting efficiency and effectiveness of public services.

Suits such of these seek results that contravene government policies or impair the performance of government.  Essentially, Guarnieri’s interests as a private citizen must be balanced as noted.  The case was vacated and remanded for  further action.  Justice Kennedy delivered the opinion, joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan.  Justice Thomas wrote an opinion concurring in the judgment.  Justice Scalia wrote an opinion concurring in the judgment in part and dissenting in part.

Summary of Harvard's "Future of Law Libraries: The Future is Now?" Conference

Reportedly some 700 people viewed at least a portion of the live webcast of Harvard Law's Future of Law Libraries: The Future is Now? conference on June 16. One member of my little county law library staff reported that the live webcast was limited to 150 viewers at any given time so he went about his business when he saw the number of folks waiting to view the proceedings live. But there was plenty of alternatives.

For example, the host, John Palfrey, live-blogged the proceedings for folks who were unable to watch the entire conference. John's summary of my comments makes more sense than my actual presentation (!); our Open Law session had to be cut short to get the proceedings back on schedule -- no problem, these things happen. Letting Bob Berring "go long" in his keynote presentation is never a bad idea.

Plus the twitter stream: Twitter stream of the Conference here which I didn't check until this morning. John tweeted the link to my LLB post that included much of what I intended to say. See Is There a "Future" for Law Libraries Without Gov 2.0 and Competition in the US Market? Thanks, John. Hat tip, BTW, to Robert Richards for producing an archive of the tweets in .csv format.

The archived webcast of FoLL is also available on the Conference's website (ah, I mean wiki) segmented by session.

Most Memorable FoLL Moment. For me, it was Kathie Price's closing comment in her presentation during the "Developing Human Resources: The Skills Needed for Law Librarians of Today and the Future" session. Not a direct quote but her point was that AALL must confront publishers over antitrust issues before it is too late. [JH]