July 30, 2011
Reading List and Upcoming ALA TechSource Workshop on Integrating E-Books and E-Readers into Your Library
From the ALA TechSource announcement:
On August 4 and August 11, Sue Polanka will present the two-part Workshop, Integrating E-Books and E-Readers into Your Library. Our workshop presenters recommend advance readings to encourage learning and focused discussion. Whether you're planning to attend this event or not, check out the reading list Sue has put together--it's a fantastic overview of what librarians need to know about e-books and e-readers right now. You can register for this workshop, at either an individual or group rate at the ALA Store.
- Thursday, August 4, 2011, 2:30pm – 4:00pm Eastern. Session 1: Purchasing eBooks for Libraries
- Thursday, August 11, 2011, 2:30pm – 4:00pm Eastern. Session 2: Lending E-Book Readers in Libraries
The reading list is available here. [JH]
July 29, 2011
Uniform Law Commissioners Address Official Electronic Legal Publishing
One of the more recent developments when it comes to official online law is the creation of the Uniform Electronic Legal Material Act by the Uniform Law Commission. The Act was approved for publication on July 12th. It requires official electronic legal materials to be:
- Authenticated, by providing a method to determine that it is unaltered;
- Preserved, either in electronic or print form; and
- Accessible, for use by the public on a permanent basis.
The Act covers state constitutions, session laws, codified laws or statutes, and administrative regulations. The Act requires a state agency to be named for content responsibility. States have the option to include court documents and agency decisions.
More information is in the ULC press release. Hat tip to Lisa Rush for alerting me to this. [MG]
Editor's Note: See also LLB's July 21, 2011 post, Freeing Digitally Conceived Text, Part 3: The Uniform Electronic Legal Material Act is a Good First Step But Not a Major Accomplishment. [JH]
John Grisham's The Confession Awarded the Harper Lee Prize for Fiction that Best Exemplifies the Role of Lawyers in Society
The Harper Lee Prize was created by the University of Alabama School of Law and the ABA Journal last year to honor Lee for the enduring influence her To Kill a Mockingbird has had in the public perception of the legal profession. John Grisham's The Confession has received the inaugural prize this year. The ceremony will take place at the National Press Club on September 22 in conjunction with the Library of Congress National Book Festival. Hat tip to the ABAJ article.
The writer of Publishers Weekly's review of The Confession might disagree on literary merits grounds. "Grisham's recent slump continues with another subpar effort whose plot and characters, none of whom are painted in shades of gray, aren't able to support an earnest protest against the death penalty." Quoting from Amazon's entry for The Confession. However, it would be damn near impossible for any author to meet the literary standard and social impact of Lee's To Kill a Mockingbird. [JH]
Friday Fun: Congress Passes the Pornographic Media Concealment Act
A Little Light Reading from the ABA: Rantings of a Partner ... and Pushback from the Associate
From the blurb:
Law firm partners have no shortage of opinions about associates. And associates have plenty to say about working with partners. This new book gives both parties a forum to express their views about the current practice of law. Among the rantings and pushback are invaluable tips and advice for succeeding in a law firm.
•Research and Writing
•Mentoring and Development
•Client Relations and Marketing
•Office Politics and Etiquette
•Tips for Success
The issues represented in this book come from partners and associates across the country espousing themes like enjoy your work, give associates meaningful assignments, teach your associates how to market, and "own" your work.
Some of the material is funny. Some of it is eye-opening. Some of it you will disagree with and dismiss. But all of it can be educational--and can help make you a better lawyer.
I'm thinking this ABA title which was published on July 15, 2011 will have very limited market appear considering the current labor market dynamics for associate hirings. [JH]
Something New in the Academic Law Journal Genre: UDC-DCSL's Illustrated Law Journal
The University of the District of Columbia David A. Clarke School of Law has launched the Illustrated Law Journal (ILJ) project "to use web technology and Free Culture licenses to generate meaningful visual illustrations of laws and legal concepts... ." Among the project's goals are to provide the basis of a new-media legal authority on illustrations of laws and legal concepts and to help develop a visual jurisprudence.
ILJ's mission is inspired by the work of Richard K. Sherwin, director of the Visual Persuasion Project at the New York Law School. Quoting from ILJ's About page:
[Sherwin] has made several observations of value to the ILJ’s mission. Among these are the following:
“Legal education must adapt to the contingencies of technology and the emerging vernacular of digital culture and the digital mind.”Richard K. Sherwin, Law In The Digital Age: How Visual Communication Technologies Are Transforming The Practice, Theory, And Teaching Of Law, 12 B.U. J. Sci. & Tech. L. 227, 259-60 (2006).
“Responses to pictures are not arguable in the same way that responses to legal texts are. Absent an extensive tradition of cultural interpretation and without readings that have been applied over time, there can be no appeal to more authoritative texts or to any consensus of scholars.”Richard K. Sherwin, Law In The Digital Age: How Visual Communication Technologies Are Transforming The Practice, Theory, And Teaching Of Law, 12 B.U. J. Sci. & Tech. L. 227, 263 (2006).
From ILJ's goals statement:
Generating a Critical Authority. In order to counteract the limitation Prof. Sherwin notes in the lack of an authoritative text or consensus of scholars with regard to the interpretation of visual materials illustrating legal concepts, the Illustrated Law Journal aims to generate the kind of critical discussion that will provide the basis of a new-media legal authority on illustrations of laws and legal concepts.
Developing Visual Jurisprudence. Perhaps the loftiest goal of this project is that it will generate an illustrative jurisprudence: one day judges and legislators will pause to think before they create legal authority “how would I draw this law?”, and if it seems as though the law can’t be drawn, perhaps another approach to the problem would be more appropriate.
July 28, 2011
Data Caps Killed My Internet Redux
I’ve been reading the commentary of Andrew Vrignaud highlighted in Joe Hodnicki’s July 25,2011 post A New Genre: ISP Data Cap Policy Killed My Internet. Many major ISPs introduced data caps over the last few years. AT&T, one of the latest, limits customers without U-verse to 150 GB and 250 GB with. Comcast, the subject of Vrignaud’s ire, has a 250 GB cap. I’m both sympathetic and concerned as to how data caps will affect consumption, not just now, but in the future. See, for example, Broadband Caps: Maybe It's Not Just About TV, by Stacey Higginbotham in Bloomberg Business Week. She suggests that one reason for data caps is to force consumers to consider limiting their bandwidth use as they play on the Internet. Another point she raises is how these limits could affect innovation down the line as new, useful, technologies come into play. Vrignaud mentions the same issue in one of his posts. But that gets ahead of the issue at hand, which is Vrignaud getting kicked off his Comcast consumer Internet account.
Comcast banned him from the system for one year for using more than his allotted 250 GB per month bandwidth on multiple occasions. His initial conversations with the company do not read as the best examples of customer interaction. Vrignaud is annoyed that his Internet access is cut off. Comcast comes off as formally disinterested in his problems other than the fact that he violated the data cap rules. What led this to happen? As Vrignaud writes:
According to them I had exceeded their 250 GB monthly cap, and they asked how that might have happened. I told them the simple truth – no idea, other than regular people were probably using it a lot for reasonable things. I have roommates, we stream Netflix HD movies and Pandora music incessantly to multiple devices in the home, and I also have an open access point (in addition to a secured AP that I use to access internal network resources) for guests.
* * * * *
I’m a photographer and audiophile. I shoot all of my pictures in RAW format, and I store the many hundreds and hundreds of CDs I’ve purchased over the last 20 years or so in a variety of lossless and lossy music formats. In the case of music I rip my CDs to WMA Lossless (for ease of streaming to Windows), FLAC (another lossless format, so I can stream losslessly to my Sonos system), and M4A (also known as Apple’s iTunes AAC format, so I can import my music from the media server to iTunes). I’m a big believer in storing the original, lossless digital content so that I can access it in full fidelity in the future no matter how technology evolves. In some ways that makes me a bit archaic as I still buy (used) CDs from Amazon for all of my music so I can rip it losslessly – I’m not a fan of the compressed music formats you buy and download. But the ramification is that I have terabytes of storage in my basement RAID server – each music track is duplicated three times, I have all of my original RAW photos, plus processed JPEG versions of those RAW photos, as well as a variety of other miscellaneous content – documents, spreadsheets, that sort of thing.
This stuff is valuable to me, and I recently purchased a three-year subscription to Carbonite so I could back all of this content up to the cloud. I also recently saw Amazon’s announcement of being able to upload unlimited M4A/AAC tracks to their Cloud Drive service, and decided to upload my library there so I could access it when on the road. And it turns out uploading all of this content to the cloud triggered Comcast’s bandwidth cap and caused me to be cut off from the internet – again. It was never clear to me that Comcast measures both upload and download bandwidth, and I suspect many people are going to be surprised by this in the coming years, especially as the cloud continues to become more and more a part of our lives.
I pretty much agree that when it comes to how people use the Internet, Vrignaud is ahead of the curve in taking advantage of all the convenience it has to offer. I can also understand how Comcast doesn’t think he is worth the $60 per month as a customer. Booting him or people like him off the system is not likely going to affect the stock prices. Vrignaud is not eligible for a Comcast Business plan (one without data caps) because he doesn’t have a tax ID and he still falls under the one year ban from the system. The lack of competition in his area prevents him from signing up with a provider that allows him to use the Internet in the way he wants.
I don’t believe regulatory environment is conducive to addressing problems such as his, at least at this time. The FCC rules on net neutrality pretty much allow hard data caps in the name of network management. The viability of those rules is still facing litigation with past precedent indicating that the FCC does not have the power to regulate the Internet. It’s also unlikely that Congress will give the FCC that power any time soon. Congress these days can’t even figure out if it wants to commit economic suicide. The United Nations has called Internet access a human right, though I doubt that would sway anyone in the government to act accordingly. We can’t get in the way of conducting business.
Vrignaud plays up the angle that the Internet is something akin to a public utility such as having access to electricity or water. I agree in the sense that when I run all the spigots in my house the water company charges me accordingly. The same happens if I run electric cords to my neighbor’s house and let the juice run wild. My power company is more than happy to hit me with a bill that reflects that kind of use. Comcast should do the same. Make money off the guy. AT&T for example, automatically gives an additional 50 GB for $10 when exceeding its cap, like it or not. Comcast can come up with its own rates which may or may not discourage someone like Vrignaud from exceeding 250 GB per month.
There will be a point in time where using cloud computing will impact more users. I don’t believe we are there yet, and I think that companies such as Comcast know it. That’s why Vrignaud is the exception rather than the rule for most consumers and their Internet access. The rise of Netflix and other streaming sites do not exacerbate the networks as much as it offers opportunities to monetize traffic beyond the monthly subscription. Consumer cloud services will do the same. ISPs will adjust their rates (no doubt higher) to accommodate that kind of use when it gets to the mainstream. It’s just good business. There may even be rates that accommodate uploading three terabytes of data. [MG]
The Fastcase 50: Honoring the law's smartest, most courageous innovators, techies, visionaries and leaders
Earlier this week the fine folks at one of the most, if not the most, innovative online legal publisher, Fastcase announced its inaugural class of the Fastcase 50: "the fifty 49 most interesting, provocative, and courageous leaders in the world of law, scholarship, and legal technology" and one cranky aging and decrepit law librarian blogger. Well, perhaps 49 1/2 leaders in so far as that person was also acknowledged for co-founding the Law Professor Blogs Network back in 2004.
I believe the purpose of the Fastcase 50 is to recognize individuals who may not otherwise be acknowledged by the usual award giver-outers. It is certainly a diverse group of people with broadly defined shared interests within their own fields for engaging in transformative change, one that highlights the progressive intersection in law, scholarship and legal technology in the 21st century.
If you ever want to talk with vendor executives who give a damn about the proverbial big picture for the provision of legal resources in the 21st century, who are committed to assisting in providing free access to primary legal resources in action, not just in words, who are not hiding under their desks in their offices hoping this whole "21 century" thing is just a passing fad, who are committed to competing in the marketplace based on the value Fastcase adds, then Ed Waters and Phil Rosenthal are the folks you want to talk to. There are no two better, honest, well-informed publishing execs who are willing to share their opinions in candid (read unscripted by marketing drones) conversations.
I guess neither were listed in the Fastcase 50 because, ah, well, they are members of the Fastcase team. But Ed and Phil also deserve the recognition this award was intended to acknowledge. Kudos to them as well as the other members of the inaugural class of the the Fastcase 50. Do take a moment to review the 2011 Fastcase 50.
End note. As for me, I think the recognition should go to the long-suffering Blog Widow. She deserves it. Not me. The Blog Widow has put up with the insanity of managing a network of 40-plus law prof blogs, the largest of its kind, as well as the work involved in LLB. I would like to also acknowledge all the co-editors and contributing editors who have contributed to LLB since it was launched in 2005.
If there is a gain of truth in the Fastcase 50's statement about me --
Sometimes hard truths must be spoken, and when they must, you can bet that Joe Hodnicki will speak them.
Then I must also acknowledge that over the years many law librarians have taken time out of their busy days to call attention by way of leads and their professional opinions about matters that could benefit from openness and transparency, particularly for a profession that values sunlight as the best disinfectant. Unfortunately, the sad state of affairs is such that they all too often request that they not be acknowledged publicly.
"Truth" is an existential process of unveiling. It is not what one person says. It is the result of exchanging full and frank professional opinions publicly available for all to read, meaning not behind the walled garden of AALL communication vehicles. It is the result of the disclosure of issues that must be addressed and are addressed by multiple professional assessments. This is how institutional players, be they vendors or AALL, are held accountable for their statements and actions. [JH]
No Digital Library Monopoly, Public or Private
Randal Picker, Univ. of Chicago Leffmann Professor of Commercial Law and Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory, addresses the future of digital libraries in the context of the rejection of the GBS settlement. Here's the abstract for Picker's very interesting paper, After Google Book Search: Rebooting the Digital Library [SSRN]:
The rejection of the Google Book Search settlement means that we are at a point of rebooting how we design our digital library future. There were many criticisms of GBS and the settlement but perhaps chief among those was the risk that approval of the settlement would have locked in a single approach to digital libraries. Google would have received unique access to the so-called orphan works and that would have provided it what may have been a decisive advantage against digital library competitors, both private and public. As we move forward on the orphan works, we need to do so with two principles in mind. First, we need to enable broad competing uses of the orphan works while, to the greatest extent possible, respecting the rights of the orphan works holders. Second, we should not repeat the mistake of the GBS settlement by somehow tilting the table in favor of digital library monopoly, either public or private.
We should want to foster a rich digital library ecosystem. GBS makes clear that we can have large-scale private digital libraries. That is an important development and one that we should seek to enable. If we create use rights for copyrighted works for digital libraries, we should be sure to make those privileges available to both public digital libraries and private digital libraries such as GBS and its successors. Our existing statutory safe harbors for libraries favor noncommercial libraries and archives. The emergence of GBS suggests that that is too narrow a conception of what libraries can be in the digital age and we need a statutory scheme that supports that.
Hat tip to Antitrust & Competition Policy Blog. [JH]
July 27, 2011
Some Apple Mobile Apps Losing Store Links
Well, it happened. Apple finally got around to enforcing its app rule that if a purchase was made in-app, it had to go through the iTunes store with Apple taking a 30% cut of the purchase. It its original incarnation, the rule required anyone with an app that viewed subscriptions or other content to provide an option to purchase additional content at the same or better price through the app with Apple taking its cut. Amazon, among other content distributors, was fairly upset at the policy. Commentators wondered how Amazon would react. Would they pull their Kindle apps? Ars Technica notes that Apple quietly dropped the requirement that a viewing app provide a store link or limit pricing in early June. The result is the Kindle app stays on Apple devices, but the links to the Kindle store are removed. Anyone using an Apple product will now have to go through the browser to Amazon's site to make the purchase. Steve Sande on Tuaw.com writes how inconvenient this is. It take two clicks (!) to buy something rather than one. Oh, the extra work.
Any number of other publishers and online stores have followed suit. Barnes and Noble didn't waste any time either. The more interesting analysis comes from Tim Carmody at Wired (via CNN) who suggests that periodical publishers may start to flock to Amazon to get their material on the Kindle app for Apple devices, effectively bypassing the iTunes store all together. Amazon's own rumored tablet may be another attraction. Either way, Apple isn't going to be picking up much extra cash through reader apps as it turns out. [MG]
Does the President Have Directive Authority Over Agency Regulatory Decisions?
I think I would add Maryland law prot Robert V. Percival's Who's in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions? [SSRN] 79 Fordham Law Review 2487 (2011) to the reading list for an ALR course. Here's the abstract:
After describing three principal views on whether the President has directive authority, this Article discusses the constitutional foundations of this debate. It then reviews the history of presidential oversight of agencies and its implications for the debate over directive authority. The Article concludes by explaining why, even if the President has unfettered removal authority over the heads of non-independent agencies, it matters that this removal power does not imply the power to control decision making entrusted by law to agency heads.
History of Dictionary Usage by the Supreme Court: Is SCOTUS Guidance Needed?
And we are not talking about Black's Law Dictionary. From the abstract of Jeffrey L. Kirchmeier and Samuel A. Thumma, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77 (2010):
This Article examines the Court’s use of dictionaries in the first decade of the twenty-first century, building on previous research by Professor Kirchmeier and Judge Thumma regarding the Supreme Court’s history of using dictionaries. See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227 (1999); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 Green Bag 51 (2001).
During Supreme Court Terms 2000-2001 through 2009-2010, the Justices have referenced dictionary definitions to define nearly 300 words or phrases. Yet the Court has never expressly explained the proper role and use of the dictionary in American jurisprudence. The Article studies the frequency and the approach the Justices have taken to citing dictionaries in the new century, and it considers the Court's lack of a reasoned process for selecting or using dictionaries.
Part I examines the frequency of dictionary use in the new century as compared to past use, comparing the different Justices with respect to their dictionary usage and the dictionaries most frequently cited by the Court. Part II addresses the stages of dictionary use, from the initial decision to use a dictionary to define a word to the selection of the dictionary and the choice of definitions. Part III examines some recent cases that illustrate the approaches taken in using dictionaries to define terms from various sources, including the United States Constitution, statutes, and prior cases. The Article includes three comprehensive appendices that compile information from the twenty-first century cases listing: (1) the terms defined by the Court with references to the cases; (2) the Justices who have used a dictionary in opinions (along with their frequency of use and which dictionaries are used); and (3) the dictionaries used by the Court. These appendices, when combined with the authors' previous articles examining the Supreme Court's dictionary use through the twentieth century, provide a comprehensive compilation of the use of dictionaries since the Court began.
The Article concludes that, in the twenty-first century, the Court continues to use dictionaries at a high rate with little guidance for parties, lawyers or others regarding when to turn to dictionaries, which dictionaries to use, and how to use dictionaries. Although the authors are able to deduce several principles from the Court's history, to date, the United States Supreme Court has issued no definitive decision squarely addressing the proper use of the dictionary. The ongoing usage of dictionaries by the United States Supreme Court and other courts continues to demonstrate the need for such guidance.
July 26, 2011
The Next Approach to Online Piracy
Did you hear about the latest proposed effort to combat online media piracy? This comes via a proposal from the performing Rights Society (PRS) in the United Kingdom, or the UK's equivalent of ASCAP and BMI. The central proposition is to mark sites within search results with a red tick symbol if they are determined to contain unlicensed content. The standard for identifying an offending site is by scoring the number of ignored notice and take down requests. That process would be managed by a centralized, independent "authority body" that would identify all licensing defects rather than music, which would be the major focus for the PRS.
The implementation would come from cooperation from a search engine provider which would supply the red ticks to the affected site in the search results. Another possibility would be cooperation from virus protection software manufacturers. Many provide indicators such as a checkmark in a green circle placed next to search results that identify sites as safe for browsing. It is possible that a red tick next to a green circle means the site would be safe from malware but detrimental to one’s moral health, depending, I suppose, on one’s view of copyright morality. There is a possibility that something like this could be implemented via law in the United Kingdom through the Digital Economy Act.
PRS notes that the red tick scheme would be effective for 90% or so of Internet users. The other 10% are free to click on these sites at their peril, or at least that is the implication. As they say:
Traffic lights are part of an escalating set of sanctions to address problems online. It performs the critical role of establishing a distinction between good and bad in the minds of users, which we hope will be enough to deter 90% of users from accessing problem sites. This distinction is vital and provides the bedrock for an escalating series of measures to deal with the remaining determined offenders.
Those escalating series of measures are not spelled out but I trust they would inconvenience downloaders to the full extent the law allows. Europe is fond of three strikes, though we in the United States seem to prefer six.
Takedown notices, at least in the United States, require an action on the part of the receiver. The DMCA allows for counter-notices that allow the return of the disputed content, as such setting up potential litigation to determine the legal status of the subject content. The likelihood is that many sites would rather take down the content than fight an expensive court case. I am sure that rights holders are counting on that fact when they send takedown notices even where fair use is implicated. That is the problem from my perspective. The number of ignored takedown notices may be determined by an independent body, but sending a takedown notice (or multiples) is arbitrary as to its reasons. There is a lot of potential for abuse merely to achieve a red tick result. Whether or not any implementation will account for in any abusive practices remains to be seen.
This may be an English solution to the problem of Internet piracy, but one no doubt viewed by the RIAA, the MPAA, publishers or anyone else with U.S. copyright interests. They will likely push a receptive Congress for something similar in the United States. Count on it. [MG]
Does Vocationalism Justify Academic Freedom and Tenure?
In a recent New York Times think piece, Vocationalism, Academic Freedom and Tenure, Stanley Fish writes:
In her new book, “The Faculty Lounges: and Other Reasons Why You Won’t Get the College Education You Paid For,” Naomi Schaefer Riley brings together two subjects that are usually treated separately in the literature.
The first is the increasing tendency, on the part of students, legislators, administrators and some faculty members, to view higher education in vocational terms and to link questions of curriculum and funding to the realization of career goals. The second is the debate about academic freedom: what is it, who should have it, should anyone have it? What Riley does is take the standard rationale for academic freedom seriously and then argue that the ascendancy of vocationalism, in combination with other factors she names, undermines that rationale and leaves very few college teachers in need of, or deserving of, academic freedom.
What Riley shows is that vocation-oriented teaching, teaching beholden to corporations and politically inflected teaching do not square with the picture of academic labor assumed by the institutions of tenure and academic freedom. She says that, given the direction colleges and universities are going in, faculty members have little claim to the protection of doctrines that were fashioned for an academy that holds itself aloof from real world issues, either political or mercantile.
Certainly, the legal academy should have a vocationally oriented mission, by which I mean producing law school grads qualified to practice law, not merely sufficiently informed to understand bar prep courses they take to pass the bar. If that ever becomes the case, the justification for academic freedom and tenure would fall by the wayside. However, I bet what the legal academy will do is grant tenure for legal skills profs instead. At the moment, however, the ABA Standards Review Committee proposal still fall short of granting legal skills profs traditional tenure. See Legal Skills Prof Blog's Majority of ABA Standards Review Committee favors job security for skills profs.
From the blurb of Naomi Schaefer Riley's The Faculty Lounges: and Other Reasons Why You Won’t Get the College Education You Paid For (Ivan R Dee, June 16, 2011):
Parents and taxpayers shouldn't get overheated about faculty salaries: tenure is where they should concentrate their anger. The jobs-for-life entitlement that comes with an ivory tower position is at the heart of so many problems with higher education today. Veteran journalist Naomi Schaefer Riley ... explores how tenure has promoted a class system in higher education, leaving contingent faculty who are barely making minimum wage and have no time for students to teach large swaths of the undergraduate population. She shows how the institution of tenure forces junior professors to keep their mouths shut for a decade or more if they disagree with senior faculty about anything from politics to research methods. And she examines how the institution of tenure—with the job security, mediocre salaries and low levels of accountability it entails—may be attracting the least innovative and interesting members of our society into teaching.
Hat tip to Josie Brown's First Amendment Law Prof Blog post. [JH]
Could Jailhouse Lawyers Teach Legal Skills to Law School Students?
What the hell, why not? Could save some employment costs at state-run law schools. But I don't think Wisconsin Governor Scott Walker is thinking outside-the box. Not yet, anyway. See Adjunct Law Prof Blog's Gov. Walker To Now Use Prison Labor post. [JH}
July 25, 2011
The Grey Area of Unathorized Legal Practice
How many times in my career have I told a public patron that I couldn’t answer a question because I couldn’t provide legal advice? How many times have they told me that they didn’t want legal advice but proceeded to ask questions about court procedure, how to fill out a form, or what to put into a document intended as a court filing, or something similar? I’ve even had an attorney come to me once asking for arguments on a statutory construction issue he could put in a brief that was due in less than 24 hours. Does that constitute the unauthorized practice of law?
I bring up the ethical obligations of librarians because of this article in Forbes: Non-Lawyers Find It Hard Avoid Breaking Bar’s Vague Rules. It details several instances where non-lawyers are up on charges for doing things such as preparing forms for individuals to use in immigration filings, even though the U.S. Customs Service encourages their use. There are other instances where non-lawyers prepare paperwork used in uncontested divorces, paperwork that is typically filed by a pro se litigant. And of course, there is the LegalZoom case, where a software package that writes wills is under class action challenge in Missouri even though no consumer harm is alleged. The software was created by former O.J. Simpson attorney Robert Shapiro.
Contrast this approach to legal services with that in the United Kingdom. The Legal Services Act of 2007 divides work into reserved and unreserved categories with 80% of the work performed by law firms described as unreserved. That means anyone can enter the legal advice business short of appearing in court. The Act takes effect this October and the result should be interesting to anyone in the legal advice business. Will the British find these alternative legal services satisfactory to meet their lesser needs? How will the incompetent entrants be sorted out, aside from market forces? We will begin to see next year what a deregulated legal services market will look like going forward under the Act.
I realize that lawyers in the United States are protective of their franchise. The Forbes article quotes the licensed attorney fallback statement that consumers wouldn’t want to be operated upon by an unlicensed doctor. That statement completely ignores medical treatment offered by nurses and nurse-practitioners. Not every medical procedure requires a doctor, and not every legal matter requires a lawyer. I’ll point out that nurses practice their version of the medical arts in a regulated environment. It would be simple enough to do the same thing with simple legal problems if it weren’t for the paranoia of the established bar. I’d like to see education requirements and professional standards established for what could be the nurses of the legal profession.
Getting back to ethical issues for librarians and legal advice, my approach for handling the “non-legal” legal questions is to offer the patron general information on the area of law involved in their question. That acts as a context for any of the research materials to which I direct them that may help them with their specific problem. I’m always careful not to give them specific, interpretive answers to the legal problem at hand. It works for the most part, but not always. I had an encounter once with an impatient patron who demanded some legal interpretations of the statute of limitations. She wasn’t happy with my responses and heatedly asked if I was a lawyer. I responded by saying, yes, I was a lawyer, but I wasn’t her lawyer. This incident was a rare exception to how my encounters with public patrons tend to work out. [MG]
A New Genre: ISP Data Cap Policy Killed My Internet
In Data Caps Are Screwing Things Up, Public Knowledge blogger Michael Weinberg writes "[t]he story of Andre Vrignaud may well end up being the template for the soon-to-be-popular genre of 'I just hit my data cap and now I cannot access the internet' stories.'"
It turns out that he was doing a lot of uploading (remember, downloads and uploads count against data caps). He was backing up 20 years worth of pictures and music to an online backup service. Since he stores all of his pictures and music in multiple lossless formats, it was a lot of data.
We do not have a way to independently verify what Vrignaud was doing to hit his cap. In some ways, it does not really matter. The activity he is describing is both plausible and legitimate. As more and more consumers look to cloud services for storage, streaming, and applications, they are likely to run it this same problem themselves.
See also Mark Giangrande's March 15, 2011 LLB post, Some Thoughts on Data Caps ("The trend to moving to a streaming or cloud-based ecosystem will impact subscription costs in the long run.")
Andre Vrignaud's Experience and Thoughts in His Own Words. Check out Vrignuad's blog posts:
- The Day Comcast's Data Cap Policy Killed my Internet for 1 Year (July 11, 2011)
- Follow up: The Day After Comcast's Data Cap Policy Killed my Internet (July 13, 2011)
- Comcast Data Cap Policy News Coverage (July 15, 2011)
- A Cloudy Future (July 19, 2011) ("[S]hould ISPs be able to limit or cut off your internet access for “overuse”? We won’t get to the heart of this matter until people start asking the right questions. And so with that in mind I wanted to summarize the key issues.")
Round-Up of Law Practitioner Blogs
We've fallen behind in LLB's regular Sunday Round-Up of Law Practitioner Blogs feature. So in an effort to start catching up, here's a listing of blogs that may be of interest. While most law practitioner blogs tend to focus on state law developments, the following blogs appear to be more national in scope. More to come on Sundays. [JH]
Lawyers To The Rescue Blog
Examines important humanitarian efforts worldwide and how the legal professionals can get involved. Published by Lawyers To The Rescue a nonprofit organization.
Discusses global outsourcing news, cases, and legislation in the United States and internationally. Published by Pillsbury, Winthrop, Shaw, Pittman, LLP.
Legal Insurance Blog
Examines pertinent matters related to legal service plans nationwide. Published by Countrywide Pre-Paid Legal Services, Inc.
Defense Base Act Lawyers Blog
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Opening: Resource Acquisitions & Metadata Services Librarian, Univ. of Maryland School of Law, Thurgood Marshall Law Library
The University of Maryland School of Law, Thurgood Marshall Law Library seeks a highly motivated, creative, entrepreneurial professional to coordinate the acquisition of library resources, provide metadata services for library materials, and lead the library's relationship with consortial partners to develop library systems and resource acquisition opportunities.The Law Library, located in Baltimore on the campus of the University of Maryland, is a vibrant institution dedicated to supporting the research and scholarship of the faculty and students of the School of Law. The library is committed to exploring and implementing innovative technologies and expanding consortial relationships to enhance library services to the law school community. The staff of the Technical Services Department is responsible for a wide variety of activities ranging from those traditionally associated with technical services including acquisitions, serials, cataloging and metadata creation as well as an array of outreach services including copyright clearance, digital archiving, resource sharing, and scholarly communications. The Department has developed and manages an extensive institutional repository featuring faculty publications, special digital collections, and online journals.
The Resource Acquisitions & Metadata Services Librarian reports to the Associate Director for Technical Services & Administration and together with other members of the library faculty, provides a wide range of outreach and research services to the law school community.
- Manages the assessment, licensing, and procurement of library collections;
- Represents the library within the University System of Maryland and Affiliated Institutions and other consortia on issues related to resource acquisitions and library systems;
- Coordinates metadata policy and procedures to ensure overall completeness, accuracy, and currency of library collection records for all formats; may perform original cataloging as required;
- Assists faculty, students, staff, and public patrons at a public service point.
Minimum Qualifications: Required: ALA accredited masters degree in library or information science or its equivalent. Desirable: subject masters degree or JD; experience in technical services in an academic library environment.
Knowledge, Skills and Abilities:
- Knowledge of standard and emerging cataloging principles and metadata schemas;
- Ability to represent the library to consortial partners and the vendor community;
- Excellent oral and written communication skills;
- Strong service orientation and outstanding interpersonal skills;
- Familiarity with current and emerging trends in library and information services.
Salary and Benefits: Salary is competitive and commensurate with qualifications and experience. Comprehensive benefits package. The position is a 12-month library faculty appointment. The successful candidate will be expected to meet library and university requirements for permanent status and promotion. A candidate with prior professional experience may be considered for initial appointment at a level above Librarian I.
To Apply: Interested applicants should submit electronically a cover letter, resume, and the names and phone numbers of three references to: LAW-HR(at)law.umaryland.edu, with subject line Resource Acquisitions, or mail to:
Mary Alice Hohing
Director, Administration & Operations
University of Maryland School of Law
Baltimore, MD 21201-1786
The University of Maryland is an affirmative action, equal opportunity employer.
July 24, 2011
Picking Up the Tab, Part 2: Are You Frustrated by the Airing of Complaints Against Particular Vendors?
Kudos to this year's program planning committee because Philly 2011: Cream Cheese, Cheesesteak or Karaoke programming does appear to be a notch better than past years. No doubt it took helluva work and effort on their part to add a handful of relevant sessions which have cracked the traditional formulaic programming of past AALL annual meetings. Perhaps someday AALL will even get around to that 20th century invention in conference programming known as tracks. Oh wait, professional development and education programs have to be tied to some sort of homogenized AALL law librarianship policy. Certainly we are an association of institutions which have some interests in common but we are also an association of institutions that have very specific interests and concerns in the academic, private and public sectors that are unique to our employers as separate market segments. So there will be no official tracks without a change in AALL policy.
Of course, I thinking this year's pre-meeting PLL Summit could have one such track. Apparently, there is also a program submission timing matter at play here, one that resulted in scheduling this year's PLL Summitt ahead of regularly programming, just like last year's summit was. So move back the deadlines for god's sake. Not yet. But the 2011 program planning group has made a good first step in responding to member complaints.
To Do List for Killing Time during Philly 2011: Cream Cheese, Cheesesteak or Karaoke. Alas, there still remains plenty of downtime attending 2011: Cream Cheese, Cheesesteak or Karaoke, at least for this aging and decrepit law librarian. That's when killing time kicks into gear before evening dinner and bar hopping commences with colleagues to discuss matters of mutual interest. Killing time means I head to the Exhibit Hall, grab a cup of coffee at BNA (thank you, thank you, thank you). I proceed to Hein's booth, plant a big wet sloppy kiss on Dick Spinelli's lips. Then cruise the Hall, feigning OMG, that's fantastic interest before asking some questions vendors may not want to answer.
Thanks to Margie Maes, AALL Vendor Liasion, for providing the first question I will ask some vendor rep booth dwellers this year:
Are you frustrated with the public airing of complaints against particular publishers by way of blogs and AALL listservs?
Against, Really? Not "About." You see, in a memo to the Executive Board found under Tab 17 of the Board Book for the 2011 Spring Executive Board meeting [link provided below], Maes writes in the context of discussing the Vendor Colloquium:
All of the vendors are frustrated with the public airing of complaints against particular publishers but they recognize that this is not a problem AALL can control. They seem encouraged by the vendor relations program and hopeful that this will stem the flow of some of that negative communication in the future.
This was reported to the Executive Board before Kathie Price, looking in the direction of where Maes was sitting at Harvard's FOLL meeting, cautioned in no uncertain terms and in a public webcast that AALL must confront publishers over antitrust issues before it is too late.
Really, all the vendors? All 16 or so in attendance representing four vendors? Was there a roll call vote on that? Does this "all" include vendors who place themselves at a competitive disadvantage by compiling with AALL's publishing industry guidelines while others in the room do not and hence become a cause of public criticism?
Hell, some vendors publicly air complaints about other publishers. Oops, I believe those may not have been invited to the Vendor Colloquium meeting. Vendor representatives that were invited: BNA 3, Hein 3, LexisNexis 3, Thomson Reuters 4, and Wolter Kluwers 3. I'm thinking that two reps from each vendor would have been enough. That would have allowed for four more vendors being invited, you know perhaps a struggling indie or two, perhaps ALM, Fastcase, CaseMaker ... . Nothing beats an association of institutional buyers telling some vendors you are too insignificant to sit at our table in a behind-closed-doors meeting.
Perhaps, vendors who repeatedly execute corporate screw-ups don't like the public airing of complaints but they are oftentimes matters of public record. They have not, however, been deemed sufficiently important for AALL to make official, public statements, even when asked to do so by an in-coming AALL Executive Board member. So much for consumer advocacy. So much for informing the membership. Perhaps that is why law librarians (and some publishers) are airing complaints in public.
Do vendors also not like the private airing of complaints in this new era of "customer experience and education" via AALL listserv messages posts by law librarian members? On this score, we know two things. First, all major vendors assign someone to monitor listservs -- its a benefit of membership, you know, and second, oftentimes that is the only way institutional buyer-members can alert fellow members to a problem and wake up the particular vendor and CRIV-Lite. The state of the buyer-vendor relationship has become one where publicizing matters of some significance by law librarians to their fellow law librarians is the only course of action left because they have little faith in AALL doing much more than allowing a vendor to post a "Dear Colleagues" push-back message.
I can tell you from repeated personal and confidential communications with vendors over the years that some vendor execs, managers and employees are not frustrated by the public airing of compliants, particular when one bad actor reads about a screw-up by another bad actor. There's a delight-in-hearing factor in play when a competitor reads about screw-ups aired publicly or on AALL listservs about another competitor -- hell, it's a momentary morale booster as such publications circulate in-house. There is also, somethings, an I-wish-we-could-get-this-changed factor in play from some about their own companies screw-ups -- alas, it's oftentimes more along the lines of "I wish Corporate HQ would understand that some of their decisions are killing our business, that we want to do a good job but our hands are tied."
Prince Valiant or Returning to the Medieval Times of the Hutesium et Clamor. In the context of AALL inaction as a consumer advocate and the gate-keeping function of the vendor liaison (I'm sorry, the "vendor relations not quite yet organized") program, of course some vendors are "hopeful" that the flow of the hue and cry negative communications will be reduced in the future! The vendors may recognize that AALL has no control over this "problem." However, it is pretty damn clear that AALL royals have been making valiant attempts to reduce library institution buyers from airing grievances.
- First there was the initial AALL My Communities TOS (revised since this June 20, 2011 post, Narco-Induced Antitrustism Paranoia: Fine Print AALL-Style for Participating in My Communities Forum).
- Second, the now notorious draft Antitrust Compliance Policy which according to President Janto will be revised in the "best interests of all members." See Tiananmen Square, AALL-Style: AALL's Proposed Antitrust Compliance Policy, Consumer Advocacy Initiatives and the First Amendment to the US Constitution.
- Finally, the AALL Vendor Liaison reports "We also tried to follow up on general complaints there were posted to listservs, while encouraging librarians to contact me or CRIV directly." (Emphasis added) Quoting from Vendor Liaison Report for the Summer 2011 Executive Board meeting found at the Tab 8 of the Board Book. (Link provided below.)
AALL Plays in a League of Its Own. At this moment in law library history, AALL has become an object of ridicule among members, vendors, and even other library associations. It is not, nor will be, taken seriously. It is has become nothing more than laughingstock.
Unfortunately until AALL can be depended upon to regularly speak out by publicly criticizing and condemning some vendor practices, the number of member voices airing complaints publicly and in online AALL communication channels will not stop and will likely increase and get louder because AALL simply is not and has not been for a very long time representing the "best interests of all members." [JH]
Resources: A law librarian recently reported that "a number of our colleagues have had trouble finding these agenda behind AALL's Berlin Wall" so the board books were posted to Scribd.
- March 25-26, 2011 AALL Executive Board Meeting Board Book
- July 21-22, 2011 AALL Executive Board Meeting Board Book
For the first part of this unintended LLB series, see Picking Up the Tab: Order Food, Drinks, and Dust Off a Caucus Formation Policy That Was Rejected in 2007.