Law Librarian Blog

Social Media Demographics

Flowtown's infographic on the demographics of the world’s most popular social media sites. Click to enlarge. [JH]

Excessive File Sharing Verdict Rejected By Trial Court For the Third and Final Time

The hardest working case in showbiz made another appearance today.  It's the Jammie Thomas-Rasset song file sharing case.  Judge Davis has had enough.  There were three trials on damages due to the parties' refusal to accept the jury award or a remittitur to the same.  The latest damages verdict came in at $1.5 million for sharing 24 songs.  The Court said the Constitution forbids such an excessive award and reduced the amount to $54,000, or three times the statutory minimum.   Take it, leave it, or take it away to the Eight Circuit Court of Appeals, boys and girls.  A copy of the order in the case is on Scribd.  [MG]

On Tearing Down the Berlin Wall Known as Copyrighted State Statutes

Fastcase's Ed Walters recounts the great State of Oregon take-down notice matter which called for the removal of the State's copyright protected statutes from Justia in 2008. The issue was resolved with the help of Public.Resource.org’s Carl Malamud. Justia was allowed to provide Oregon's statutes online but the State of Oregon did not disclaim its copyright. Walters writes:

This limited waiver means that anyone else who publishes (or quotes) Oregon statutes would face a similar specter of copyright infringement.

This may seem like an isolated incident — perhaps the work of a renegade legislative staff member with an ambitious view of copyright law.  But this incident isn’t isolated.  LexisNexis believes that it owns the Georgia Code.  And the statutes of Colorado, Wyoming, and Mississippi.  The free Websites of many state legislatures contain copyright notices warning the world that copying public law is illegal and punishable under copyright law.

Let's note here that the Uniform Electronic Legal Material Act does not address the issue of copyright. See Freeing Digitally Conceived Text, Part 3: The Uniform Electronic Legal Material Act is a Good First Step But Not a Major Accomplishment.

Walters follows up with a personal opinion, one clearly stipulated as not being associated with Fastcase:

How did we get to this state of affairs?  How can any commercial publisher believe that it “owns” our public law?  Can a publisher’s claims to intellectual property in a state’s laws possibly be enforceable?  And what can we do about it?

I’m tired of copyright being used to monopolize public law. This post should establish once and for all that copyright doesn’t protect public statutes, legislatures can’t grant private copyrights, and contract code publishers who mix their editorial work with state statutes can only claim very limited protection under copyright. It’s time for publishers, legislatures, and innovators to open state statutes.

(Emphasis added.)

Walters proceeds with addressing the issues, including:

• How Can a Publisher Copyright Statutes It Didn’t Write?
• Is a Private Copyright in State Statutes Constitutional / Enforceable?

Then Walters evaluates the copyright claims that publishers would likely make about state statutes and discusses how states can get their codes back.

I'm not going to provide snips because I think his entire post deserves a close reading by all who may have not yet read it. See Tear Down This (Pay)Wall: The End of Private Copyright in Public Statutes on VoxPopuLII.

But I will add a comment. Ed writes "[a]lthough nobody at Fastcase believes statutes are copyrightable, the company has no plans to be the test case for this proposition, thank you very much." Well, you don't think AALL has any real plans to test this proposition either, do you Ed? Please reconsider. I'll even donate $1,000 to your litigation fund (that's like 2, maybe 3, billable hours). Oops, being an AALL member, am I allowed to do this?

To hell with our association's powdered wig wearing royals, I'm willing to do more than just talk. See The World of Actionable Actions, Part IV: The Cold Comfort of Government Intervention for Consumer Advocacy.{JH]

Google Rolls Out Limited Launch of Google Scholar Citations

On July 20th, Google rolled out a limited launch of its new citation tracker because "[t]his is a new direction for us and we plan to use the experience and feedback from the limited launch to improve the service." From the official Google Scholar Blog post: 

We use a statistical model based on author names, bibliographic data, and article content to group articles likely written by the same author. You can quickly identify your articles using these groups. After you identify your articles, we collect citations to them, graph these citations over time, and compute your citation metrics. Three metrics are available: the widely used h-index, the i-10 index, which is the number of articles with at least ten citations, and the total number of citations to your articles. We compute each metric over all citations as well as over citations in articles published in the last five years. These metrics are automatically updated as we find new citations to your articles on the web.

You can enable automatic addition of your newly published articles to your profile. This would instruct the Google Scholar indexing system to update your profile as it discovers new articles that are likely yours. And you can, of course, manually update your profile by adding missing articles, fixing bibliographic errors, and merging duplicate entries.

You can also create a public profile with your articles and citation metrics (e.g., Alex Verstak, Anurag Acharya). If you make your profile public, it can appear in Google Scholar search results when someone searches for your name (e.g., Richard Feynman, Paul Dirac). This will make it easier for your colleagues worldwide to follow your work.

And, I guess, another way to sell ads.

Hat tip to Deborah Hackerson's Legal Skills Prof Blog post. [JH]

Friday Fun: Congress Debates New American Dreams

Live: Congress Debates New Sex-Based American Dreams

Why is Law School Hiring So Pedigree-Sensitive?

JK O'Connor start his Off the Quad post, Disciplinary Diversity & Pedigree Consciousness: A Few Thoughts stating "Count me among those who think there is a significant pipeline problem in the legal academia" and ends it with

Perhaps self-interest comes into play (on a subconscious level): after all, if you have invested a ton in an exclusive legal education, you have a considerable incentive to justify and maintain the value of that investment. Or maybe this pedigree preoccupation is a vestige of the desire to treat the law as an objective discipline like physics. Who knows?

Both O'Connor and Chicago law prof Brian Leiter have studied how a small number of law schools account for a "huge percentage" of all the law profs hired (quoting Leiter). Schools such as Yale, Harvard, Chicago, Stanford, Columbia and Michigan fill the labor market pipeline for the legal academy.

In The Pedigree-Sensitivity of Law Schools in Faculty Hiring, Leiter asks for readers to respond to the question, "why is law school hiring so pedigree-sensitive?," adding

It surely has to do partly with the fact that law school hiring is done on the basis of less information than most other academic hiring:  i.e., most candidates don't have dissertations and don't have letters from faculty advisors who have worked closely with the candidate for years.  Under those circumstances, proxies (even dubious ones) for scholarly ability tend to loom large.  What do readers think?

You can check Leiter's blog post for reader comments. [JH]

ABA Responds To Senator Grassley

I wrote a post one week ago, Senator Asks ABA Questions About Scholarships and Debt, commenting on letter sent by Senator Charles Grassley (R-Iowa) to the American Bar Association.  He asked questions on scholarships, debt loads for students, default rates, and the professional background of the committee memberships associated with law school accreditation.  The full list of questions he asked is in the post.  Senator Grassley asked for an answer by July 25th.  I wrote in my initial post “I hope he makes the ABA's answers public and that they aren't paternalistic babble.”  The response came yesterday in the form of a letter with attachments.  A copy is available from the Wall Street Journal, where Nathan Koppel writes about the response in the WSJ Law Blog.  Is the letter paternalistic babble?  Here’s the last paragraph from Koppel’s commentary:

The gist of the ABA’s response, to our eyes, is:  Don’t worry, we’re paying close enough attention to law schools.  Given the hue and cry about law schools in recent years, we’re guessing some may not find this response satisfactory.

The ABA does not respond to each individual question.  Rather, it offers a group response to the subject raised by Senator Grassley.  It is much easier in that way to make statements such as: 

From 2005 to 2010, total scholarship assistance to students has grown from $536 million to $899 million (an increase of over 67%) and the total number of recipients has grown from 60,000 to 69,000 students. Nearly half (47%) of all law students enrolled in ABA-approved law schools in 2010 received scholarship assistance through their law schools.  

It sure sounds positive, though it is followed by:

The Questionnaire does not currently ask for retention rates (i.e., how many students retain the scholarships into their second and third years) because there is no Standard regarding retention of scholarships, and data has not been collected on scholarship retention.  

So, when Senator Grassley’s first question is “1. Does the American Bar Association compile data on the number of schools which offer scholarships to more students than can statistically retain those scholarships?” I guess the answer is “no.”  Note to lawyers and law students:  try answering interrogatories and deposition questions this way and see how a federal judge reacts.  The follow-up questions aren’t addressed in specific detail, such as whether bait and switch allegations are considered in accrediting a school.  The ABA essentially says there is no bait and switch on scholarships.  Some students simply don’t meet the qualifications for keeping such scholarships such as maintaining a certain GPA or class rank.  It’s their fault.  Either way, the ABA says no one has complained.  Yeah, it’s a tough, competitive world out there.  And while we’re at it, let’s not talk about how schools might be using grading curves to keep those who do qualify for scholarship money to a minimum.  

The ABA answered the debt questions by saying they require schools to provide debt counseling, financial aid counseling, and career counseling and that the inspection teams collect information about how schools are doing in meeting the standards.  No mention, though of how, in fact, schools are doing.   The ABA supplied default rates for 19 schools unaffiliated with universities with most of those have a rate of fewer than 2.2%.  One school, John Marshall in Atlanta, was an anomaly at 7.1% (Attachment 5).  There are no statistics for the 181 other law schools as their default rates are part of the larger university statistic.  The ABA does not force them to break it out.  Oh well, some things are better left unknown.

The ABA answered the questions on the growing number law schools, law school graduates, and the diminishing number of jobs this way:

The net increase in ABA-approved law schools over the past 20 years from 174 in 1990 to 200 in 2011 represented a growth in the number of law schools of 14.9% as compared to a net growth of the United States’ population of 24.2% from the 1990 to the 2010 census.  Most of the new law schools were formed in states or regions where there has been rapid growth in population or in other areas historically underserved by legal education.  And, perhaps more to the point, neither that Department of Education nor the antitrust laws allow the ABA to cap or limit the number of accredited law schools.

How does that go, if you build them to our minimum standards, we’ll accredit them.  That “areas historically underserved by legal education” is a common justification for universities or for-profit groups to justify building another law school in a saturated market.  But the ABA is right.  If people fool themselves into going to law school when market conditions suggest that jobs are scarce, why is that the organization’s problem?  The employment data is all there in the ABA-LSAC Official Guide to Law Schools.  So listen up, prospective law students, do your research before you incur debts you can’t pay back.  Look at those statistics compiled in the guide.  And when you do see the numbers, note that while there may be a percentage of employment listed for the class, you won’t find any salary information.  You won’t know whether graduates are making $120,000 or $45,000.   I guess that is information that will have to get reported empirically in (unreliable?) news articles.  

Speaking of news articles, the ABA chides Senator Grassley for relying on the muckrakers at the Chronicle of Higher Education:

The Section would also like to address concerns raised in the body of the letter of July 11, 2011, to President Zack.  On June 9, 2011, the Section leadership appeared before the National Advisory Committee on Institutional Quality and Integrity (NACIQI).  The article that appeared in the Chronicle of Higher Education on-line that evening seriously misconstrued the outcome of that appearance.  The accreditation staff of the Department of Education recommended the continuing recognition of the Section and NACIQI voted by substantial majority to accept the staff recommendation (of the 18 members of NACIQI, four voted in opposition).  A majority of the Committee did not “express its frustration” with the ABA; only two members of the minority did.  In addition, the NACIQI staff findings did not conclude that the ABA “appears to be doing little to assess student loan defaults.”  The staff found that the Accreditation Project, when gathering data on student loan defaults through its school questionnaires, does not have a benchmark for what is an unacceptable default rate.  You will see from the answers above that student loan default rates at ABA-approved independent law schools are very low.  The Section regrets that the Chronicle article contained this misinformation. 

We don’t like your implications, sir.  Beware you may hear from our solicitors.  Perhaps these hearings ought to be public and broadcast on C-SPAN with follow-up comments in a panel discussion by the hearing officers.  Oh no, that would violate someone’s privacy.  [MG]

Reminder: Bloggers Get-Together Set for Monday Evening, July 25th in Philly

The annual bloggers meeting during AALL will be held on Monday, July 25th, from 5:30 to 6:30 p.m. at McGillin's Olde Ale House (1310 Drury Street, a few blocks from City Hall and a few blocks from the Convention Center). The fine folks who have organized this meeting have reserved a spot in the bar under "AALL Bloggers." Hope to see you there. [JH]

Freeing Digitally Conceived Text, Part 3: The Uniform Electronic Legal Material Act is a Good First Step But Not a Major Accomplishment

Uniform Electronic Legal Material Act From the Prefatory Note's Introduction

Providing information online is integral to the conduct of state government in the 21st century. The ease and speed with which information can be created, updated, and distributed electronically, especially in contrast to the time required for the production of print materials, enables governments to meet their obligations to provide legal information to the public in a timely and cost-effective manner. State governments have moved rapidly to the online distribution of legal information, in some instances designating a publication in electronic format to be an official publication. Some state governments are eliminating certain print publications altogether. The availability of government information online facilitates transparency and accountability, provides widespread access, and encourages citizen participation in the democratic process.

Resources:

Uniform Electronic Legal Material Act (Draft for Approval)

Issues Memorandum for 2011 Uniform Law Commission Annual Meeting

Thinking about the adopted Uniform Electronic Legal Material Act, I'm reminded of a recently expressed desperate attempt by AALL President Janto to prove the "power of AALL and members." It was published on July 18, 2001 as the final paragraph of a statement in the context of back-pedalling because of the reaction to the proposed Antitrust Compliance Policy draft. Quoting from the statement (republished in full here):

AALL recently accomplished a major feat - the adoption of the Uniform Electronic Legal Material Act. This promises what could be the greatest opportunity for increased competition in the marketplace.  When adopted by the states, legal information will be widely available to the public, members of the legal profession, and start-up publishers. This is the power of AALL and members.

(Emphasis added.)

"Promises" as in an aspirational yet-to-be achieved goal, something AALL likes to promote, perhaps. "Accomplished a major feat" -- forget to mention that it took more than just AALL to get this done?

In the context of actually stimulating competition if/when adopted by making state e-law widely available for new entrants into the marketplace, I think Janto is clearly over-reaching. It is too soon for any "major feat" back-slapping celebrations. But what the heck, can't blame Janto for tossing in as puffery a concluding paragraph to try to persuade members that AALL has "power" in the statement concerning our association's latest proposed expression of antitrustism. Nice try.

The "Promise" of UELMA. All UELMA will result in, if adopted state-by-state-by-state, is the creation of multiple governmental eSilos at the state -- even, perhaps, at the state agency -- level, and reciprocal recognition of authenticated legal electronic resources between state jurisdictions that adopt the uniform act. It will not increase competition in the marketplace other than providing some undefined form of free access to government eSilos instead of commercial vendors and it will not make quality-assured primary legal resources "widely available" for start-up publishers. On the matters of quality source material in the context of a state jurisdiction that provides FTP downloading and the clean-up work involved, see Converting and Correcting Bulk-Distributed State Code Text into Well-Formed HTML: Hershowitz on His California State Code Project.

The Uniform Electronic Legal Material Act does not measure up to any "major feat accomplished" standard. While it makes clear that the state is the official publisher of authenticated e-content, UELMA does not address the matter of quality control. It is technology-neutral with respect to documentation standards and online delivery. It does not require research tools. It does not address the issue of copyright. It provides no mandate for bulk distribution. It does not incorporate a format neutral citation standard.

Of course, it does not interfere with the contractual relationship between a state and a commercial publisher when states contract for the publication of its legal material. One can only hope that adopting states require in future contacting that any such commercial publisher  provide some form of the e-content to state eSilos if the publisher was to use the content for commercial purposes. This, at least would be a both a stimulus for wide-spread adoption of UELMA and a cost-savings measure to states for implementing the Uniform Act.

If, If, If and the UELMA. The UELMA was about as successful as one would expect. There is nothing wrong with UELMA if taken in the context of the National Conference of Commissioners on Uniform State Laws' mandate. It would have been a major disappointment if the draft was proposed as a model act instead of a uniform law. So that is a plus. There are, however, too many ifs to claim UELMA is a major feat by law librarianship and documentation community standards. It is spacious for AALL to make the claims Janto does unless one is living in the Internet frontier known as the mid-1990s.  

For those of us living in the 21st century, documentation standards, information technology, and recent Gov. 2.0 initiatives, most notably LAW.GOV (which could provide what's needed to make authenticated, well-formed eLaw readily available for use by start-up legal publishers by way of bulk distribution) know that all the tools necessary to tame those Wild West days are available. It is going to depend on making right choices. Is AALL prepared to advocate for them nationally right now? Or will AALL end up catching up to the pack like it did after local chapters got involved in LAW.GOV on their own initiative?

On 3 Geeks, Greg Lambert reports on his email exchange with Phil Rosenthal, President of Fastcase, who was an observer on the committee:

Rosenthal pointed out many other issues that are hanging out there for the states to determine. Issues such as the availability and affordability of bulk downloads for vendors; issues of ensuring quality control; and, what happens if state budgets don't support the costs of preservation; states once again claiming copyright to this new format and bringing back ghosts of "official pagination" claims once again.

"If the right choices are made, having official online authenticated law will do wonders for public access, preservation, and competition. If the wrong choices are made, access to historical materials may be reduced to a level below where it was in the print-only days, and competition and innovation could be significantly stifled."

For more from this interesting post, see ULC Passes Act to Promote Authentication, Preservation and Access to State Laws and Rules.

Out of Chaos Will Order Come? The best way to view UELMA is as a first step that could lead to further developments which might produce a major accomplishment as measured by documentation and law librarianship standards. One can imagine the chaos that will be created by state adoption of this uniform law. That could lead to an important second step, namely making order out of chaos by way of Gov 2.0 iniatives such as LAW.GOV.

If widely adopted, one can also expect that commercial services will see a market for selling e-publishing and distribution solutions to the states to create and provide free access at the state eSilo level for authenticated content. [JH]

For previous installments in LLB's Freeing Digitally Conceived Text series, see:

• The Federal Government as Documentation Authenticator, FDsys as a Trusted Repository, and the GPO as a Bulk Distributor of XML Files (July 6, 2011)
• Moving Beyond Print, Commercial Online Sources and Government-Hosted eSilos (July 12, 2011)

Yes, I know its a 7:30 am meeting time but have a say in your program content

I have written some posts in the past complaining about the programming at the AALL Conference.  So this past year I served on the PLL Education Committee.  I will  now be co-chairing the Committee.  We will be meeting on Monday July 25th at (gasp) 7:30 am in the Marriott Rooms 407-409. 

I learned today that of the approximately 200 programs proposed for this year's conference, only about 20 came from PLL.  That's only 10%.  For a SIS as large as we are that is sad.  And yes, as a director at a large law firm, I know how challenging it is to find the time and resources to do a program proposal.  But we on the PLL Education Committee are here to help you.  Bring us your ideas for webinars, for  PLL Summit programs and for AALL Conference programs and we will try to help you make your ideas for programs a reality.  This is your opportunity to have a say in the programming PLL presents during the upcoming year.  Please don't let this opportunity slip away.  Please join us!

Caren Biberman

Opening: Librarian of the Court, Supreme Court of the United States

Statutory Position (28 U.S.C. §674): The Librarian manages the Supreme Court Library, its 27 employees and a collection of more than 500,000 volumes. The responsibilities of the position include space planning for the Court's main library and its off-site annex; budgeting; selection and acquisition of books and information resources in all formats necessary to support the Court's work; and electronic databases and Millennium ILS systems. The Librarian works with the Counselor to the Chief Justice, Clerk of the Court, Marshal of the Court and Reporter of Decisions as one of five statutory Court officers. The Librarian reports to the Chief Justice and the Court.

A law degree and a Masters in Library Science are required. At least ten years relevant managerial experience in a law library utilizing state of the art library information systems is also required. Knowledge of academic or federal law libraries is preferred. The Librarian position requires excellent communication and leadership skills. Employment is subject to successful completion of a security background check.

To Apply: Please FAX OF-306 (which can be obtained from www.usajobs.opm.gov ), resume and cover letter to:

Supreme Court of the United States
Personnel Office, Room 3
1 First Street NE,
Washington, DC 20543
Fax number: 202-479-3076
Phone number: 202-479-3404

Deadline: The closing date for applications is August 15, 2011.

Any questions can be addressed to the Personnel Office listed on the application announcement (202-479-3404).

Picking Up the Tab: Order Food, Drinks, and Dust Off a Caucus Formation Policy That Was Rejected in 2007

Motion for Board Action: That the Executive Board approve the report and recommendations regarding Caucus formation, presented at the November 2007 Executive Board meeting.

Presented at the November 2007 Executive Board meeting, really? Does it take that long? Oh wait, the Board declined to adopt the proposed Caucus Formation Policy at its November 2007 meeting. This was the great Vegan Caucus request that was withdrawn when AALL agreed to list Vegan as a meal option on the annual registration form. You see, the AALL Vegans wanted to formally organize to find optional dining locations where they could eat when AALL chow was being served up at annual meetings.

Picking Up the Tab. Quoting from the Board Book's June 15, 2011 memo re "Caucus Formation Policy" by Janto to the Executive Board found under Tab 18:

However, prior to the withdrawal of the [Vegan] application, there was discussion as to how this proposed Caucus would relate to the overall mission of AALL. There was also discussion regarding how these applications should be reviewed and approved.

Because of this concern, President Ann Fessenden requested SIS Council Chair Catherine Lemann and Executive Board Member Steve Anderson to develop some procedures and standards for the formation of AALL caucuses. The report was submitted at the fall 2007 Board Meeting and was vigorously discussed. The Board declined to adopt the policy.

(Emphasis added.)

Now, almost four years later the 2007 report and recommendations have been dusted and placed on the agenda for the Executive Board's July 21-22, 2011. Why? Again, quoting from Janto's memo:

We have once again been approached by members to form a caucus that may or may not be in AALL’s best interests. I think we should re-visit the idea of having some formal procedures in place governing the formation of caucuses just as we have for the formation of SISs and Chapters. Therefore I have asked Kate to place the 2007 report back on the agenda for the summer 2011 meeting.

(Emphasis added.)

I wonder which proposed caucus that might be. Do note, somehow the Caucus Formation Policy issue has been reframed from "how this proposed [Vegan] Caucus would relate to the overall mission of AALL" to whether a recent expressed interest in forming a caucus "may or may not be in AALL’s best interests."

Damn, my short-term memory is shot. I just realized... . Here's the July 19, 2011 Library Consumer Advocacy blog post

Will a proposed Caucus Formation Policy preclude our eligibility to become an AALL Caucus?
 
AALL President Joyce Janto recommends that the  Executive Board adopt a proposed Caucus Formation Policy at the Board’s July 21st meeting. Our Caucus only just this afternoon became aware of the proposal. We have asked the Board whether it would bar our eligibility to become an AALL Caucus.

Dear Board Members:

Our group of AALL members only just took notice of the proposed Caucus Formation Policy under Tab 18 of the July 21st Board Meeting Agenda. Therefore, we have had no opportunity until now to learn how this proposed policy might apply to our group if we decide to file a new statement of purpose following the Annual Meeting. We will consider our form of organization when we meet on July 25th.

Under these circumstances, we ask the Board to clarify how the Board would apply the policy before the Board acts on the recommendation to adopt it. The policy appears to limit Caucus eligibility to four categories:

1. Shared backround;
2. Shared work environments;
3. Shared professional interests;
4. Work related to a AALL Special Committee

Of course, we believe that our “shared professional interests” would merit our eligibility for Caucus approval. Please confirm that the Board will rely on this interpretation of the policy.

We seek this clarification because we have recently asked Joyce to consider two statements of purpose under which we might organize as an AALL Caucus. In her memo of June 15, 2011, Joyce says that “we have once again been approached by members to form a caucus that may or may not be in AALL’s best interests. I think that we should re-visit the idea of having some formal procedures in place governing the formation of caucuses just as we have for the formation of SISs and Chapters.”  We do not know that Joyce was referring to our Caucus proposals, or that she meant to compare our group with a “Vegans” group that sought Caucus status in 2007. Nevertheless, we ask that the Board reject the policy if the Board would interpret it to bar our eligibility to become an AALL Caucus.

Michael Ginsborg
Chair, Consumer Advocacy Chair

Pick Up Tab 18. [JH]

CRS On The Debt Limit

What with all the goings on about the need to raise the debt limit and the implications for doing so, or not, the Congressional Research Service has issued a report entitled The Debt Limit:  History And Recent Increases.  It doesn't forecast what would happen if the debt ceiling was not raised.  It does note that the Social Security Trust Fund, among other government accounts, is the owner of a whole lot of bonds issued by the government in exchange for cash from social security tax collections.  There may be something to Obama's statement that he can't guarantee the checks to seniors going out after the beginning of August if there is a default.  Anyone following the dance of the debt limit as it has been performed by Congress and the President over the years would find this interesting.  [MG]

Consumer Advocacy to Start on July 25: Library Consumer Advocacy Caucus to Meet during AALL Philly 2011

The Library Consumer Advocacy Caucus will meet during AALL's annual meeting to start the process of engaging in real advocacy. From Caucus Chair Michael Ginsburg's recent Library Consumer Advocacy Caucus blog post's open invitation to participate:

Please join us for our 12-1 p.m. meeting on July 25th at the Philadelphia office of Drinker Biddle (One Logan Square, Ste. 2000, at the corner of 18th & Cherry Streets). We will discuss the status of our registration with AALL, decide our form of organization, and consider our initial priorities.

A recent On Firmer Ground blog post, A Call To Support Consumer Advocacy For Law Libraries, reports:

Earlier this year, AALL hosted a Vendor Colloquium that left consumer advocacy almost entirely unaddressed. ... A Colloquium Working Group developed an Action Plan to implement AALL’s “Shared Principles For Law Librarians and Legal Information Vendors.”  The Working Group invited AALL members to comment on the Action Plan. In response, twenty Caucus members have signed the ... comment to encourage more vigorous consumer advocacy by AALL.

Do note that since the above July 13th On Firmer Ground post, I have heard that the number of signatories has increased from 20 Caucus members to 32 and the library institutional demographics are:

• Academic Sector (public and private): 56%
• Private Sector: 31%
• Public Sector: 6%
• Other: 6%

Quoting from the Caucus response to the Vendor Colloquium Working Group as published in On Firmer Ground: 

Dear Vendor Colloquium Working Group:
 
Thank you for inviting AALL members to comment on your Action Plan.  The undersigned are among AALL members who want AALL to revitalize its commitment to consumer advocacy. Some of us bring to our recommendation many years of experience as AALL members and law librarians.

We appreciate your dedication to improving librarian-vendor relations, and we support goals designed to aid communication. However, the Action Plan has a serious shortcoming: it falls far short of AALL’s promise as a consumer advocate. The “partnership” ideal endorsed in the Action Plan appears to apply to all legal information vendors, whether or not they have extensive histories of anti-consumer practices. In fact, you do not define “partnership” or “consumer advocacy,” and appear to limit consumer advocacy to discussion during an Annual Meeting program. At any rate, we support the idea of engaging smaller legal publishers, under Goal II-C, and any other legal-content vendors who follow consumer and antitrust law in their business practices.

Even before the ongoing economic crisis, law libraries could not afford the cumulative costs of anticompetitive and unfair business practices by some vendors of legal and law-related information. In 2006, an attorney for the Information Access Alliance testified on skyrocketing subscription prices and unreasonable contractual constraints from single-firm, anticompetive conduct. Although his testimony concerns harm to research libraries from “bundling” of scholarly journals, the same type of conduct has harmed law libraries when they renew their subscription contracts. As described in a recent Library Journal interview, evidence also abounds of unfair business practices. A few of the many examples include:

• opaque, confusing, and deceptive pricing models for online subscriptions and for “bundled” portfolios of print or print-and-online subscriptions;
• non-disclosure demands in contracts;
• inclusion of more or fewer titles than requested in bundled subscription contracts, with inadequate or no options for correction;
• serious, widespread failures in editing, indexing, updating, and revising of publications

The business misconduct has reached a scale of devastating impact on law libraries. It has imperiled not just the quality and integrity of their services, but also, in many cases, their long-term sustainability.

Law libraries and allied consumers of information services should work together to remedy anti-consumer practices within the industry. They can do so without violating antitrust law. They may act in coalition to petition appropriate governmental bodies for remedies vital to their collective interests, and to the public interest.

We would rally behind AALL if it did everything possible to advance  this vision of consumer advocacy. We would welcome collaboration with AALL’s leaders. So we recommend, as a first step, that AALL’s Executive Board embrace our proposal of a more robust consumer advocacy than AALL has pursued. At your request, we would be happy to elaborate on the proposal. We also ask that a future Colloquium focus on the means and goals of  consumer advocacy, with digital or phone-conferencing access to all members, and a full, open record of proceedings.

Go to On Firmer Ground's A Call To Support Consumer Advocacy For Law Libraries for links to supporting references and take the blog's RSS feed while you are there. Remember this blog is a collaborative effort of SLA's Legal Division, AALL's Private Law Libraries Special Interest Section, CALL/ACBD and BIALL. I'm thinking both AALL and some of our more very expensive vendors are anxiously monitoring the blog's posts because the blog's primary audience spending is what moves the market. However, academic and public sector law librarians should also take the blog's RSS feed IMHO.

It's about time to engage in vigorous consumer advocacy. Many members of the Caucus hope their professional association would whole heartedly support their efforts. If not, AALL will once again find itself trying to catch up to the pack to justify its "leadership" role.

Of course the July 25th Caucus meeting is not sanctioned by AALL and will be conducted off-site, but not too far off-site. Interested? Even if the meeting is standing room only, you can bring your brown bag lunch. No doubt like-minded law librarians will rotate from sitting to standing for all. [JH]

The Law Librarian's Bible: 2011 Edition of Legal Information Buyer's Guide & Reference Manual

Usually when you see a publisher's "Dear colleagues" message posted on AALL listservs, it is a push-back using a lot words to say nothing about institutional buyer complaints authored by TR Legal. Not this time. Of course, that's because it is not from TR Legal.

Dear colleagues,

A number of you have e-mailed me to inquire about the release of the 2011 edition of the “Legal Information Buyer’s Guide & Reference Manual.” I am pleased to report that it will be delivered by the printer on Monday [July 11th] and will be shipped immediately to all our standing order customers. We are now accepting orders at nelawpress.com.

The 2011 edition of this Joseph Andrews Bibliographic Award winning volume includes reviews of nearly 120 new treatises and reference titles carefully sifted from among several thousand new titles published in 2010 and early 2011. It also includes completely updated bibliographic, pricing and supplementation cost data on the existing body of more than 3,000 legal titles. It also includes, where applicable, the costs of used titles on amazon.com. Now 815 pages in length, it reports on the continued double-digit price and supplementation increases of West Publishing, which continues to enjoy industry-leading profit margins at the expense of law libraries everywhere. We painstakingly collect all the data so you don't have to, and arrange it in a manner designed to save you time and money.

In no other publication will you find such a wealth of data to make comparative evaluations of legal publications.  Whether you are in acquisition mode or cancellation mode, we provide you with all the data you need to sort out your options. It is the only publication on the market that gives you the unvarnished truth about the legal publishing industry and provides you with the information necessary to navigate its treacherous shoals. And unlike other legal information review media, we are totally independent and accept no advertising.

The 2011 edition is priced at only $156.00, same as it was last year. The CD-ROM version is also $156.00, or $80.00 when purchased in combination with the print edition. The CD-ROM will give you the ability to print out individual chapters or subject area sections for internal or patron use. We offer no free luggage, stuffed animals or other gimmicks, just honest, accurate and timely information on how to save your library thousands of dollars annually.

I also wish to announce that, after fifteen years in existence, Rhode Island LawPress has become New England LawPress, reflecting our relocation to Connecticut.  A cover letter and W-9 will accompany each shipment to assist you in updating your records. We look forward to seeing you at the Reference Shelf/Basch Subscriptions booth in the exhibit area at the AALL Annual Meeting in Philadelphia.  I also look forward to seeing those of you who will be attending the inaugural meeting of the Caucus on Consumer Advocacy.

Please visit our revamped web site at: nelawpress.com

See you in Philly,
Ken Svengalis

(Emphasis added.)

The amount of work it takes to produce Legal Information Buyer’s Guide & Reference Manual annually is unbelievable. And now Ken Svengalis has added the Amazon used book feature this year. [JH] 

How important is it for law journal authors to have their articles published in print?

The print format is fairly important if the author's work was not accepted by the most prestigious law journal he or she submitted it to.

Over two-thirds of the respondents to our survey said they would have published their article in the journal where it appeared even if that journal no longer published print issues. However, as a general matter, given the chance to publish in more than one of these prestigious journals, other than those they considered to be the most prestigious, more than half of these authors indicated that continuing publication of print issues would be the deciding factor in choosing which offer to accept.

That number, considered along with the 32 percent of all respondents who would not have published in the journal that published their article if the journal were not publishing print issues, is large enough to give pause to law journal editors thinking about eliminating print issues. In the short time they serve as editors, students without long term investments in publishing legal scholarship are unlikely to make far-reaching decisions to change publishing formats for their journal, whatever their personal reliance on print resources in their own research.

Quoting from Print or Perish? Authors’ Attitudes Toward Electronic-Only Publication of Law Journals [SSRN], an analysis on the prospects for the adoption of the Durham Statement on Open Access to Legal Scholarship, by Richard Danner (Duke Law), Kiril Kolev (Hendrix College) and Marguerite Most (Duke Law). The authors do, however, report that there appears to be generational differiences. The print format is less likely to be as much of a factor among youger law profs, the ones who must publish or perish.

Why survey law journal authors' attitudes toward electronic-only law journals?

[B]ecause scholars in all disciplines try to place their works in the highest ranked journals in their field, [so] it is important to consider the perspectives of legal scholars who have published in the primary journals of the top-ranked law schools.

Based on their survey findings the authors observe what can be characterized as "print or perish," a format differential in law journal competition for article submissions:

The difficulties are significant for any single journal, other perhaps than the very most prestigious, to move on its own to electronic only publishing.

One has to wonder whether and if so when the generational shift noted above may eventually move law schools to adopt electronic-only publishing. For details and analysis of the survey, check out Danner, Kolev & Most's Print or Perish? Authors’ Attitudes Toward Electronic-Only Publication of Law Journals [SSRN]. Here's the abstract:

An increasing number of U.S. law journals post at least current issues in freely accessible PDF and (in some cases) HTML formats on their web sites. Yet, perhaps without exception, the journals that make their articles freely available on their websites also continue to publish print issues in the face of declining subscription numbers, and law libraries’ growing disinterest in collecting and preserving journals in print. As universities reduce staff, freeze open positions, eliminate salary increases, and cut library budgets, why have law schools continued to subsidize print publication of journals that are accessible in electronic formats? Among the reasons suggested for this is the possible impact of electronic-only publishing on a journal’s reputation and ability to attract authors. This paper reports on the results of a survey of law journal authors’ attitudes toward electronic-only law journals.

Highly recommended.

On a related note, see the Council of Canadian Academic Law Library Directors endorsement of the Durham Statement in the Council's Calgary Statement on Free Access to Legal Information. Details here. [JH]

Some Academic Libraries Jointly Negotiate Electronic Access Deals

I have only a little bit to add to the antitrust discussion, and that is merely referencing an article published on July 17th in the Chronicle of Higher Education (Premium Content, subscription required).  It's called Libraries Abandon Expensive 'Big Deal' Subscription Packages to Multiple Journals and it details how three Oregon academic libraries abandoned a comprehensive subscription package because of low usage and high prices.  The original deals were negotiated by two different library consortia.  

The three libraries struck out on their own and negotiated a new deal together with Elsevier.  The company wasn't expecting that as a standard course of business, but took it seriously once it realized that the schools were also serious.  The libraries were successful at crafting a deal that got them a subscription package with the right content at an acceptable price.  My favorite quote from the article, referring to the proactive negotiation process:

Relatively few have tried it yet. Mr.[David C.] Fowler [University of Oregon's library's head of licensing, grants administration, and collection analysis] thinks that fear is what has held a lot of libraries back. "Fear of change, fear of upsetting the apple cart," he said. "They're afraid of faculty blowback and student reaction and 'What if the vendor's mean to us?'"

Mean indeed.  What?  Fewer toys at the convention booths?  [MG]

The World of Actionable Actions, Part IV: The Cold Comfort of Government Intervention for Consumer Advocacy

In On editing & updating standards (March 30, 2011), Jason Wilson, Vice President of one of the very few remaining independent legal publishers left in the US, Jones McClure Publishing, wrote:

[W]hat do you, the consumer, consider to be a quality update to a legal treatise? It’s rare to find lawyers talking about such things, and law librarians had a perfect opportunity to do so at the recent AALL Vendor Colloquium, but instead limited their focus to pricing and subscription models, vendor communications, digital v. print, etc. Honestly, what difference does all of that make if you don’t know what standards vendors use to measure the underlying quality of the product?

(Emphasis added.)

At the time Wilson wrote that post, the Shared Principles for Law Librarians and Legal Information Vendors (June 1, 2011) and Action Plan: Draft for Comment (June 13, 2011) had not yet been published. So what do those documents say?

As "an aspirational foundation for further work and communication, similar to a mission statement, and are the basis for the development of a corresponding action plan," two "shared principles" and their corresponding goal statements are:

Shared Principle: We each are committed to providing library users the highest quality research tools and information content, even in times of social and economic transformation.

Part II – Continuation of Current Work, Goal II-C: Create formal and informal means for vendors, librarians, and stakeholders to have the opportunity and platform to engage in dialogue about the future of legal information publishing and vendor-librarian relations.

Shared Principle: We recognize the importance of collaboration as the most effective and respectful way to share information; such collaboration can result in mutually beneficial high quality products and services.

Part I – New Project Work, Goal I-C. Identify and promote methods of demonstrating return on investment (ROI) and reporting usage statistics and metrics.

Part II – Continuation of Current Work, Goal II-A. Clarify the roles of the Vendor Liaison, CRIV and other entities involved in vendor relations.

Part II – Continuation of Current Work, Goal II-B. Improve vendor relations communications.

You decide, but like Wilson I have to conclude that editorial quality and updating standards should have but were not major themes addressed in AALL's behind-closed-doors Vendor Colloquium as revealed in those officially sanctioned documents. Nor was this matter even listed under Part III of the so-called action plan as an issue to be developed for future consideration.

Some 10 weeks after his On editing & updating standards post, Wilson adds in a Slaw post, PUNY LAWYERS, PUNY LIBRARIANS. HUNK SMASH! a Brief Comment on Fighting Words & Legal Publishers:

And as best as I can tell, we’ve spent the last 40 years taking an accounting of the misunderstandings — many of which have been the same for over 70 years — but that’s about it. That goes for the latest Vendor Colloquium as well. Just more accounting of grievances and misunderstandings (read: lip service). ... So where does this leave us?

(Emphsais added.)

Where does this leave us? Once again, we can turn Jason Wilson. In his June 16, 2011 Slaw post, PUNY LAWYERS, PUNY LIBRARIANS. HUNK SMASH! a Brief Comment on Fighting Words & Legal Publishers, he writes:

While government action may be cold comfort to many of us in this business, whether consumers or vendors, it is probably the only thing that will make a difference. I know that many readers of this column believe their online words can effect change, but I’m here to tell you they can’t. That’s not to say stop writing, but just recognize that in one way or another lawyers, law librarians, and legal publishers have been exchanging pleasantries and barbs for over a hundred years, and not a lot has changed. Just the technology.

(Emphasis added.)

I have to agree. Wilson illustrated the cold comfort of government intervention by citing to the 2009 Florida Attorney General-Matthew Bender settlement of the Company's shipment of unordered merchandise and negative option plans. The Assurance of Voluntary Compliance required Matthew Bender to (1) pay $2 million and (2) change the Company's business practices nationally. Wilson adds:

Not surprisingly, in the same year as the Matthew Bender settlement, the [Florida] Attorney General opened an investigation into West Publishing for “receipt of unordered merchandise.” The AG’s office cannot comment on ongoing investigations, but as a legal publishing consumer and vendor, I am very curious to know the scope of the investigation and what has been learned so far. I hope the resolution of the civil investigation will help us all... .

(Emphasis added.)

We must face the real world of actionable actions. The only thing that is going to change vendor business practices is taking action that prompts government intervention, be it at the state level or at the federal level or both. We can talk, we can write, all we want -- we should continue to do so publicly as Wilson recommends, but at some point, we law librarians have to take real action as consumer advocates. 

If the past is prologue, we shouldn't expect our professional association of institutional buyers to lead the way. AALL is too busy securing vendor revenue, too submissive under its self-imposed version of BDSM known as antitrustism to offer any leadership initiatives on its own for this form of cold comfort. The output from Vendor Colloquium is just the most recent example of this. It offers no reason to believe that AALL lives in the real world of actionable actions, at least not yet.

This World of Actionable Actions series of LLB posts stated off with the following statement on May 4, 2011:

The ways and means to reforming the current and long-standing status quo in the buyer-legal publishing vendor relationship will not be quick or easy. But there are ways and means. Just like there is a "universe of thinkable thoughts" (Berring) in the context of legal research, there is a world of actionable actions in the context of conducting business with legal publishers. It is "doable."

However, many professional law librarians have simply given up all hope of accomplishing anything. Why? Could it be because their primary reference point is their own professional association and its dismal track record? Of course, AALL's track record has contributed to the long-standing and progressively worsening status quo in the vendor-institutional buyer relationship.

It is up to law librarians who take their role as institutional buyer representatives seriously to take the necessary corrective actions -- inside or outside of AALL. [JH]

Previous installments in LLB's The World of Actionable Actions series:

• Institutional Buyers, Individual Consumers and the Legal Publishing Industry (May 4, 2011)
• Addressing Vendor Inefficiencies Because Format and Quality Matters (May 11, 2011)
• Who Protects Individual Buyers of Commercial Legal Resources When Their Legitimate but Ill-informed Expectations Aren't Fulfilled by Their Acquisitions? (July 13, 2011)

Janto Predicts Proposed Antitrust Policy Provided by AALL Legal Counsel Will Not Be Adopted as Currently Drafted

Source:

I would like to take this opportunity to provide more information regarding an item on the AALL Executive Board's agenda for its July meeting. The item is the consideration of a proposed Antitrust Policy (page 42 - requires member login) for AALL.

The proposed policy is on our July agenda for discussion by the board. This does not mean the policy will be adopted as written. In fact, I am confident it will not be adopted as written because the board is aware members would not be satisfied with this policy, without further revision. 

However, it is the policy that was developed by legal counsel, and it is the board's fiduciary responsibility to consider the policy as submitted and then to make decisions as to how to proceed. The board has a number of options available as to how to move forward on this issue (or if to move forward at all), and after the meeting I will advise the membership of the board's actions. I can assure you that its actions will be in the best interests of all members. 

As we all know, vendor pricing and practices are important issues to AALL members. It is an issue we have been grappling with for many years. One facet of this issue involves antitrust law, and I think we are all in agreement that it does have some bearing on what we can and what we can't do as an association.

For a number of years, many members have inquired about a policy in this area which would clarify the role AALL can play in representing the interests of our members with vendors. The Executive Board has discussed this since that time, and that is why I recently asked AALL legal counsel to develop a PROPOSED antirust policy for AALL. 

There is a lot of online discussion taking place regarding this agenda item, and it is helpful for the board to hear from members. One of the main reasons the Executive Board books are made available on AALLNET for all members to review is so that members can comment on issues that the board is considering. So I would also like to thank everyone who has commented on this issue.

AALL recently accomplished a major feat - the adoption of the Uniform Electronic Legal Material Act. This promises what could be the greatest opportunity for increased competition in the marketplace.  When adopted by the states, legal information will be widely available to the public, members of the legal profession, and start-up publishers. This is the power of AALL and members.

Sincerely,
Joyce Manna Janto
AALL President

(Emphasis added.)

Did I violate some whim or fancy of AALL by republishing this without permisson. If so, email the take-down notice to me.

Got Legal Analysis? Where is our legal counsel's memo or opinion letter that formed the basis for this latest expression of antitrustism? [JH]

Textbook Rental Comes To The Kindle

The promise of electronic textbooks has been with us for awhile.  Anyone remember the competing platforms of Folio on Lexis and Premise on West?  Both companies sold electronic versions of their casebooks in the 1990s, though they were heavily drenched with DRM that nearly suffocated a text's utility.  That is one of the major reasons why we remember them rather than use them in those old formats now.  Fast forward to 2011 in an age of Kindles, pads, and apps, all connected online, and the legal eTextbook is making a cicada-like reappearance, sort of. 

Amazon has announced a Kindle-based textbook rental program.  There is a law section, and it does list books commonly used in legal education.  The problem is that many of the casebooks listed, typically from West or Aspen, have no electronic counterpart.  The titles that are available electronically are likely not going to be assigned as a reading by an instructor, with the possible listings for some of the legal research and writing titles.  I assume this lack of commonly used textbooks in electronic form is based on the continuing publisher paranoia that a reader may actually get more value from a book for which there was no payment, or that all law students are assumed to be theives.  I suppose, it's best to guard the goods under these circumstances.

Details of the rental program are here.  The Amazon textbook store breaks its listings down into subjects with law as one of the topics.  I wandered through approximately 100 title listings before I found a West casebook in a Kindle edition.  That was Business Law by Clarkson, Miller,Jentz, and Cross.  The Amazon hardcover prince comes to $189.49.  The Kindle Edition is priced at $157.56.  The rental price is $45.19, if I rented it starting today ending my lease on September 30th.  Extending it to October 31st would extend the cost to $55.39.  That's still significantly lower than the harcover price for a new copy.  Amazon, however, lists the same title as used starting from $29.95.  That's a significant saving on the Kindle edition if a purchaser can actually get a copy at that price. 

Comparatively, Cengage Learning offers the same title for $223.49 in hardcover, as an eBook for $131.49, and chapter rental for $3.99.  Complete text rental is $83.99 for 60 days and $94.49 for 90 days.  There are options for more time that are more expensive.  Cengage allows for access via portable devices in addition to PCs, at least that's the impression I get from their FAQ.  I would think there are other distributors out there as well.  The moral of the story is to shop around to find the best deal that fits individual needs.  I've only described price here.  Choice of a distributor can take into account many different features and delivery systems.  Amazon promotes the fact that the texts they rent have note-taking features and that these notes will be available after the rental period expires.  I don't know if Cengage offers anything comparable.  Note that all of these prices are listed as of July 18th.  They obviously can change with the market for the goods.

I think that the textbook rental market opening to electronic devices such as the Kindle is a great development.  Not everyone wants to carry expensive, heavy books and keep them any longer than they would need.  A textbook in a Kindle Edition is a positive step. It would be great for law study if more commonly used textbooks were available, giving students a choice in formats and vendors.  Some commentary on the Amazon store is in Ars Technica.  The only question I have at this point is whether I've violated some rule or something or other because I referenced current prices that exist on publicly available web sites?  [MG]