Law Librarian Blog

Under Construction: Turning an Ordinary Monitor into a Virtual Touch Screen

It's called PreCursor and technology uses two camera to add a virtual layer in front of your monitor that signals commands based on your interactions with it. Invented by Pranav Mistry, the technology is still in the lab. Digital Inspiration reports

The virtual touchscreen created by PreCursor is in a way more versatile than the existing touchscreen of your mobile phone or tablet. That’s because in addition to the regular tap /click gesture, PreCursor has also recognize[d] the hover action... .

See PreCursor Turns your Monitor into a Touch Screen for details and a short teaser video of PreCursor. [JH]

11th Circuit Court of Appeals Rule Against Health Law Mandate

The rest of the law stays in place however.  The opinion is here.  This should set up a conflict in the circuits ripe for adjudication by the Supreme Court.  The Sixth Circuit ruled otherwise.  [MG]

eBook Price Fixing Charges Leveled Against Apple and Five the “Big 6” Publishers in Class Action Complaint

paidContent's Laura Hazard Owen reviews the class action lawsuit filed on August 9, 2011 in the US District Court for the Northern District of California against Apple, Hachette, Simon & Schuster, Macmillan, HarperCollins and Penguin alleging the defendants unlawfully fixed eBook prices through the agency model to "“boost profits and force e-book rival Amazon to abandon its pro-consumer discount pricing.” In The Lawsuit Against Apple And Big Publishers: What’s In It, she highlights the main points of the complaint and explains agency pricing, the model whereby book publishers set their own eBook prices, in the context of the traditional wholesale model where publishers offer a suggested retail price that allows vendors to discount.

Remember, the argument for agency pricing of eBooks was that it allowed publishers to control pricing by establishing the value of their eBooks. Also remember that when Amazon finally caved in to several major publishing houses' demand to switch from the wholesale to the agency model for Kindle editions, the Company complained that the switch resulted in eBook pricing being too high but Amazon had no alternative but to acquiesce if the Company wanted to continue selling Kindle editions of titles offered by the publishers. Regarding Amazon's cave-in, complaints and pricing practices, see Amazon Plays Hardball With Small- and Medium-Sized Publishers Over eBook Pricing Model and the LLB posts cited therein.

Quoting from the Complaint's Introduction:

1. In November 2007, Amazon revolutionized the book publishing industry by releasing the Kindle, a handheld digital reader for electronic books or “eBooks.” Using proprietary “electronic ink” technology, the Kindle replicated the appearance of ink on paper and introduced numerousefficiency-enhancing characteristics, including portability and other advantages of a digital format. A major economic advantage to eBook technology is its potential to massively reduce distribution costs historically associated with brick-and-mortar publishing. But publishers quickly realized that if market forces were allowed to prevail too quickly, these efficiency enhancing characteristics would rapidly lead to lower consumer prices, improved consumer welfare, and threaten the current business model and available surplus (profit margins). So, faced with disruptive eBook technology that threatened their inefficient and antiquated business model, several major book publishers, working with Apple Inc. (“Apple”), decided free market competition should not be allowed to work – together they coordinated their activities to fight back in an effort to restrain trade and retard innovation. The largest book publishers and Apple were successful.

2. The original Kindle sold out in less than six hours. To gain market share, take advantage of its first-mover advantage, and capitalize on the tremendous efficiencies associated with eBooks, Amazon set eBook pricing levels significantly below prices for physical books (“paper books” or “hardcover books”). Amazon set the prices of many of the popular new released eBook titles at $9.99. Amazon instituted this pro-consumer, discounted pricing even though on many titles publishers charged Amazon a wholesale price at or above $9.99.

3. Even though publishers were reaping the benefits of Amazon’s successful efforts to vastly expand the consumer base and increase volume of units sold via Amazon’s investment in eBook sales, publishers also feared Amazon’s $9.99 pricing. Amazon’s discount pricing threatened to disrupt the publishers’ long-established brick-and-mortar model faster than the publishers were willing to accept. Being hidebound and lacking innovation for decades, the publishers were particularly concerned that Amazon’s pro-consumer pricing of eBooks would negatively impact theirmoribund sales model, and in particular the sale of higher priced physical copies of books. And, longer term, publishers anticipated Amazon would eventually use its market power to reduce the publishers’ share of the available surplus (profit margins) from each eBook sale.

4. Given Amazon’s first-mover advantage and ever growing installed user base, publishers knew that no single publisher could slow down Amazon and unilaterally force an increase in eBook retail prices. If one publisher acted alone to try and raise prices for its titles, that publisher would risk immediately losing a substantial (and growing) volume of sales. Not wanting to risk a significant loss of sales in the fastest growing market (eBook sales), the publishers named as defendants (“Publisher Defendants”) solved this problem through coordinating between themselves (and Apple) to force Amazon to abandon its pro-consumer pricing. The Publisher Defendants worked together to force the eBook sales model to be entirely restructured. The purpose and effect of this restructuring was to halt the discounting of eBook prices and uniformly raise prices on all first release fiction and nonfiction published by these Publisher Defendants. Under the Publisher Defendants’ new pricing model, known as the “Agency model”, the Publisher Defendants have restrained trade by coordinating their pricing to directly set retail prices higher than had existed in the previously competitive market.

5. The Publisher Defendants’ unlawful combination and pricing agreement would not have succeeded without the active participation of Apple. Apple facilitated changing the eBook pricing model and conspired with the Publisher Defendants to do so.

Download the Complaint.

I'm thinking LLB co-editor Mark Giangrande may be watching this lawsuit for a possible follow-up to his June 2011 Antitrust Chronicle article, The Rejection of the Amended Google Book Settlement Agreement: A Librarian’s Perspective. [JH]

Friday Fun: Law Library GPS

Last Friday we featured a Duke Law Library educational filmstrip found in the school's archives. This week's law library orientation video is a more modern version by the University of Buffalo. No mention of "hippies" in this one. [JH]

Location, Location, Location: Feeder Law Schools for BigLaw Associate Hiring and Promotion to Partnership

Two B-school profs, Paul Oyer and Scott Schaefer, have published the results of their study at American BigLaw Lawyers and the Schools that Produce Them: A Profile and Rankings:

We profile the lawyers that work at the largest 300 American law firms as of the Summer of 2008. We show how gender, years of experience, prestige of law school, and other qualities vary across lawyers of different rank and firms of different prestige. Geography is an important determinant of where lawyers work, with many going to undergraduate school and law school near where they ultimately practice. Geography is less important, however, at more prestigious firms and for graduates of higher ranked firms. We then go on to rank law firms based on the prestige of the law schools they attended and we rank law schools based on their success at placing lawyers at BigLaw firms. Chicago, Harvard, and Yale law schools are the clear leaders in placing graduates at BigLaw firms. We provide important caveats about these rankings

First, our rankings are sufficiently close to other rankings that it is clear, as one might expect, that whatever leads a school to be successful in other rankings also leads them to be successful in placing lawyers at BigLaw firms. Second, we find that the University of Chicago, Yale, and Harvard law schools are clearly the most successful at placing lawyers at BigLaw schools. Finally, we show that BigLaw firms have a bias towards East Coast schools -- West Coast schools rank lower by our measure than by previous rankings.

(Emphasis added.) Hat tip to Leiter's Law School Reports.

And which law schools produce the most BigLaw partners? Hat tip to TaxProf Blog for calling attention to Loyola-LA law prof Theodore Seto's Where Do Partners Come From? [SSRN]. From the abstract:

Which law schools produce the largest numbers of partners at national law firms? This article reports the results of a nationwide study of junior and mid-level partners at the 100 largest U.S. law firms. It identifies both the top 50 feeder schools to the NLJ 100 nationwide and the top 10 feeder schools to those same firms in each of the country’s ten largest legal markets. U.S. News rank turns out to be an unreliable predictor of feeder school status. Hiring and partnering by the NLJ 100 are remarkably local; law school rank is much less important than location. Perhaps surprisingly, Georgetown emerges as Harvard’s closest competitor for truly national status.

(Emphasis added.)

Comparing Seto's study with Oyer and Schaefer's makes for interesting reading. [JH]

1L Orientation: Why is law school so different and why 1Ls need to work harder

... than they did in college? Texas Tech Assistant Dean for Academic Success Programs Amy Jarmon offers advice at What makes law school so different for many new law students? on Law School Academic Support Blog. [JH]

Opening: Business Development & Research Specialist, Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP, one of the Rocky Mountain region’s most prominent law firms, enjoys a strong national reputation for its corporate finance, natural resources and energy law practices, with emphasis on securities and M&A transactions, complex commercial litigation and regulatory guidance. We are seeking a Business Development & Research Specialist to support the firm’s business development and marketing initiatives.  

The Business Development & Research Specialist will report to the firm’s Director of Business Development and will leverage their research, writing & cataloguing skills to accomplish select tasks and projects, including:

• Writing and editing marketing materials, including information on capabilities, experience and solutions, seminar descriptions, attorney profiles, pitch materials, client alerts, case studies, website features, directory submissions, press releases, and other special projects;
• Serving as the staff point person in preparing proposals and responses to information requests, including coordinating with attorneys and other administrative departments, performing research as necessary, drafting and editing materials, assembling, proofing and distributing final proposals, and tracking results and lessons learned;
• Assisting with customization of marketing materials and PowerPoint presentations for current and prospective client meetings, pitches and proposals;
• Researching, analyzing and summarizing information on clients, companies, business sectors, technologies, and legal trends to assist in firm, practice group and individual business development efforts;
• Researching venues, trade organizations, community boards, publications and mailing lists appropriate for targeted marketing opportunities;
• Compiling, tagging, cataloguing and maintaining up-to-date marketing materials and component content, including polished summaries of the firm’s industry specific expertise and representative work;
• Proactively soliciting attorneys and others for information and representative experience to be used in the firm’s marketing materials; and
• Writing and editing internal communications when needed using email, newsletter, and intranet resources.

The position requires a minimum of seven years of business research and writing experience, preferably within a law firm or professional services environment. This could be a good opportunity for an attorney or law librarian looking to make a career change. 

The successful candidate will:

• Understand the law firm business model, the services provided by a major corporate law firm and the needs and expectations of law firm clients;
• Demonstrate an ability to learn and effectively convey technical information regarding legal subjects, developments and trends;
• Leverage excellent writing and editing experience to prepare marketing materials in a professional services environment with minimal need for revision;
• Apply solid knowledge of legal and business information resources, such as Lexis/Nexis, Westlaw, Factiva, Hoover’s, ALM Research, Lexis AtVantage, PACER and others;
• Take initiative and ownership of projects, using free time to audit, evaluate and suggest additions, edits and improvements to current materials and systems;
• Display a highly curious and resourceful personality combined with perseverance, patience and a desire to deliver accurate, high-value products; and
• Thrive in a fast-paced environment, with strong skills in verbal communication, organization, project management, prioritization and dealing with ambiguity.

To apply for this position, please submit a cover letter (with salary history and requirements), resume, and three references to business.development(at)dgslaw.com. Two writing samples (one of which should be a redacted client-facing piece) will be requested prior to on-site interviews.

No agencies or phone calls please.

Does Google Want To Be Our Lawyer?

Google has indirectly entered the legal services fray when its venture capital arm gave Rocket Lawyer $18.5 million.  Rocket Lawyer is a subscription legal services web site similar to LegalZoom with one minor twist.  Rocket Lawyer offers the opportunity to customers to have their documents reviewed by an actual attorney.  That might hold off the unauthorized practice of law lawsuits from bar associations.  Or maybe not.  Fees range from $9.95 to $20 for the monthly plan, and between $120 and $300 per year depending on whether the plan is personal or professional.  

The personal plan offers these types of documents:

• Bill of Sale Document
• Complete Will Document
• Divorce Settlement Agreement
• Power of Attorney Document
• Prenuptial Agreement
• Promissory Notes
• Quit Claim Deed
• Residential Lease Document

The professional plan includes these:

• Bill of Sale Document
• Confidentiality Agreement
• Consulting Agreement
• Contractor Agreement
• Employment Agreement
• General Service Contract
• Non-Disclosure Agreement
• Non-Compete Agreement

Solo practitioners and small firms can’t be too thrilled about this prospect.  It’s not that flat fees don’t exist in the legal profession, though it’s pretty unusual for them to show up at the corner attorney office level.   Sure there is less personal contact between attorney and client, but does that matter for some legal services?  One question that comes to mind is how a web site can establish an attorney-client relationship.  

For pondering that one, Pinky, I would recommend Professor Catherine J. Lanctot’s article Attorney-Client Relationships in Cyberspace: The Peril And The Promise (49 Duke L.J 147 (1999)).  From the abstract:

In this Article, Professor Lanctot examines the issue of lawyer-layperson communications in cyberspace from doctrinal and historical perspectives. The Article's analysis of the case law demonstrates that online exchanges resulting in the giving of specific legal advice likely will be viewed as creating attorney-client relationships. Moreover, disclaimers are unlikely to provide the protection that many lawyers seek. The Article then reviews the history of bar regulation of advice-giving in a variety of contexts, from the Good Will Court radio broadcasts of the 1930s to today's seminars and 900-number services. The Article shows that the bar consistently has both viewed the furnishing of particularized legal advice as creating an attorney-client relationship and frowned on such advice-giving in nontraditional contexts. The bar's cool response to forms of legal assistance spurred by new technology sounds a cautionary note for lawyers on the Internet.

Apparently not so cautionary to stop a company such as Google from getting involved.  I would imagine that at some point Google might leverage some of its other services to Rocket Lawyer.  I could also imagine Google might, depending on the success of the venture, sponsor legal services as part of its broader offerings.  Contracts with Google ads in the margin, anyone?  Maybe it won’t come to that.  Google is a happy industry disrupter.  The fact that the company is putting money into web-based legal services is enough to raise questions as to what this is all about.  Will there be a menu choice called Google Law?  [MG]

Class Action Lawsuits Filed Against Thomas Cooley Law School and NYLS Yesterday

Law School Transparency is reporting that class action lawsuits were filed against Thomas Cooley Law School and NYLS on August 10, 2011 alleging fraud, negligent misrepresentation and deceptive business practices The plaintiffs claim that their law schools knowingly inflate reported rates of post-graduate employment and salary statistics to recruit and retain students. The plaintiffs seek from their defendant schools $250 million from Cooley and $200 million from NYLS in tuition refunds as well as other damages and reformed methods of reporting their graduates' placement statistics.

• MacDonald v. Cooley (Complaint)
• Gomez-Jimenez v. NYLS (Summons and Complaint)

In addition to providing the above-linked filings and background information, a summary of each complaint is available at Law School Transparency. Some early press coverage:

• Law Grads Sue Over Tuition (Wall Street Journal, paywalled)
• New York Law School Sued by Students Over Claims About Graduates’ Success (Bloomberg)
• New York Law School, Thomas Cooley accused of job statistics fraud (National Law Journal)
• Grads Sue New York Law School and Cooley Law, Saying They Inflated Job and Salary Stats (ABAJ)

Filling in while ATL's Elie Mystal is on vacation, Staci Zaretsky comments "Karmic revenge sure is sweet… ." at Cooley Law Gets Served Some of Its Own Medicine (NYLS Is Tardy to the Party).

So Now There Are Three. Alaburda v. Thomas Jefferson School of Law was filed in May of this year: Complaint and Demurrer.

Teachable Moment? All three lawsuits could provide great fodder for canned LWR 1L memo writing assignments. Even better, I'm thinking the issues presented could make for very student-engaged required moot court competitons, too. Cooley, NYLS and TJSL might be able to save some of the cost of legal fees if they follow up the moot court "suggestion."

Of interest, perhaps, see yesterday's LLB post, Incoming Thomas Cooley 1Ls Relax! You Really Are Attending the Second Best Law School in the Country. [JH]

"This Situation Absolutely Requires a Really Futile and Stupid Gesture Be Done on Somebody's Part:" ABA Adopts Resolution on Skills Training

Tuesday, the ABA adopted a Resolution on Skills Training, politely charactered by Paul Kirgis as "tepid" on ADR Prof Blog ("No mention of the actual skills that lawyers need."). I think the edited text speaks for itself:

Click to enlarge. Source. For background, see Mark Giangrande's Aug. 5, 2011 LLB post: NYSBA Asks ABA To Consider More Law Student Skills Training.

Always optimistic, Jim Levy opines on Legal Skills Prof Blog:

The resolution seems largely symbolic, though, since the ABA isn't requiring, or even suggesting,  specific action on the part of law schools. Perhaps it's the thought that counts.

Sorry Jim, but at some point in time, like now, action must speak louder than words.

The ABA dropped "the big one." Time for Delta force, Animal House-style. [JH]

As Satisfied and Well Paid Tenured Profs Lounge, Adjuncts Carry the Teaching Load

In Hello, Adjunct, Meet Prof. Cozy: Instructors teaching six courses may earn less than $20,000 a year; they can only dream of tenure's perks, Frank Gannon writes

The reason that academic politics are so bitter, as the quip goes, is that the stakes are so low. True enough, but at times the stakes can be very high. They can include, for instance, guaranteed lifetime employment, an asset that few workers in the modern economy dare even dream of. After a probationary period of several years, during which essential research and writing is to be done—the infamous period of publish or perish—a professor either wins lifetime job security or becomes, as one victim described it, academic roadkill.

But there is the underclass of toiling adjunct profs who prop up this academic employment infrastructure for both tenued and potential roadkill profs. Gannon's WSJ Bookshelf article is actually a review of Naomi Schaefer Riley's new book, The Faculty Lounges: and Other Reasons Why You Won’t Get the College Education You Paid For (Ivan R Dee, June 16, 2011)[Amazon] and the issue it addresses -- "the question of academic tenure—what it was intended to be, what abuses it now invites and whether it is a good idea at all." About the book, Gannon writes 

It is not a pretty picture, present or future. Although Ms. Riley never quite manages to make up her mind whether she wants to be a polemicist, an advocate or a reporter—she is a bit of all three—"The Faculty Lounges" ends up being a provocative and even profound book, one that recommends itself to anyone who cares about higher education, especially anyone who is about to make a personal investment in it by signing a tuition check.

See also Does Vocationalism Justify Academic Freedom and Tenure? for Stanley Fish's NYT think piece about Riley's The Faculty Lounges.

Hat tip to Mitchell Rubinstein's Adjunct Law Prof Blog post, More On Abuse of Adjuncts ("The review summarizes what we have been highlighting for some time. Adjuncts are grossly underpaid to the point of being abused at many universities.")

Adjuncts in the Legal Academy. In the context of the legal academy which is still struggling with granting some sort of job security recognition for legal skills profs, I doubt many law schools can afford to do what HLS has historically done, namely hire tenure-track profs to carry the the bulk of teaching load while also hiring big name law profs, who do teach, but are primarily hired to publish and be players on the national stage. Harvard makes no distinction between those two unoffical "classes" of law profs institutionally (well, I don't know which class gets the larger offices) but it does mean that HLS doesn't have to rely on adjunct law profs to the degree many other law schools do.

Unfortunately most non-HLS-schools don't have deep pockets to offer a stable workforce so they rely on adjuncts to teach substantive doctrinal law courses, not just practice-oriented courses, to fill in the facutly expertise gap. This can be in areas of law that students may eventually find themselves practicing in but are no longer all that interesting for scholarly proposes. Labor and employment law comes immediately to mind (Mitchell Rubinstein's speciality, by the way). But there are also other doctrinal courses, too.

As law schools scrambled to hire tenure and tenure-track profs for the latest hot areas like IP and intellectual fodder for scholarly analysis in such evolving areas of law this past decade, they have also discovered that their independent contractors who are tenured, even tenure-track, law profs really didn't want to teach UCC, bankruptcy, products liability, estates and gift tax, corporation law, evidence, etc. While law schools are not adverse to increasing law faculty hiring because (1) it reducing the teach load of regular faculty and (2) increases the all important student:faculty ratio for US News rankings, they can't find or afford to hire regular faculty to teach these 'boring-to-faculty" courses. My personal experience is that some profs interested in scholarly analysis such as critical legal theory, etc., accept such teaching loads while on tenure-track but have neither the expertise or interest in teaching these course. An intellectually unengaged law prof isn't likely to produce "teachable moments" for law school students.

Many law schools have had to turn to the unstable workforce that is adjuncts to fill out the course offerings. Of course, some adjunct-taught courses, are needed to pass the bar exam. But you never know which adjunct is going to stay for the long haul over multiple academic years. It might start out as an intellectual stimulating adventure for adjuncts but once they realize the amount of work involved and the ROI in terms of time spent, it is not an uncommon occurance to hear them say, "sorry, got to much billable work to do so I can't teach this year."

Over the years, I read more than just a few student evaluations of adjunct-taught courses. While some do complain that adjuncts spent too much time recounting "war stories," most student evaluations praised adjunct prof courses higher than the tenured and tenure-track faculty for being "more relevant."

Time for the ABA to Regulate the Value-Added Contributions Made by Adjunct Law Profs. Under existing ABA Accredition Standards, the ABA does monitor the use of adjunct law profs. Can't remember if it is a ratio of courses or credit hours but I'm thinking the ABA must dig deeper. In view of my very unscientific review of adjunct prof courses being evaluated as being "more relevant," even in doctrinal courses, I'm not suggesting that the ABA should mandate a reduction in the use of adjuncts but perhaps the ABA should require long-term employment contracts so that there is some measure of stability that students can rely on. Perhaps the ABA also should require compensation that is pro rata based for tenure and tenure-track faculties. Offering CLE credit hours earnings and a small stipend (when the latter is even offers) does not reflect the value added by law school adjuncts to the law school educational experience.

It's Good to be a Tenured Law Prof. Tenured law profs earn a decent living. Considering the oversupply of law school grads in the current labor market, I'm reminded of the once routine whining heard in faculty lounges by tenured law profs about how they earned substantially less than their students who get hired by BigLaw as first year associates, I'm thinking tenured law profs now are, or damn well should be, delighted to be earning more that temps working in document review factories -- that's the new earnings comparison. Tenured law profs also are pretty damn statisfied with their jobs according to TaxProf Blog's American Bar Foundation: Tenured Law Faculty Salaries, Job Satisfaction. The post refers to the ABA Foundation's recently published survey results. See After Tenure: Post-Tenure Law Professors in the U.S. (2011) [JH]

Some Thoughts On the Web's 20th Birthday

Did anyone notice that last Saturday, August 6th, was the 20th birthday of the World Wide Web?  The anniversary didn’t make much of an impact, or at least not enough to justify a Google doodle.  Instead we had a graphic commemorating Lucille Ball’s 100th birthday.  China and related areas had a different one for Chinese Valentine’s Day and Bolivia had one commemorating Independence Day.  That’s one change the Web has brought:  instead of reading those obscure texts in printed calendar day boxes, we rely on Google to tell us the significance of the day through its logo.

The Internet is much older than the Web, starting off as ARPANET, a computer network developed by the Defense Department.  The prophetic first words transmitted over the telegraph in 1844 were “What hath God wrought.”  The first text transmitted on ARPANET was the letters L, O, and G, which promptly crashed the system.  This preceded the blue screen of death on Windows, the sad Mac face that appeared on an Apple machine when it failed to start (try zapping the P-RAM, they’d say), and every other error message that plagues us to this day.

We didn’t know what we were getting into back then.  There were serious discussions about whether people would get lost retracing their path through hyperlinks.  No one today even remotely thinks they need a Sherpa to perform basic web navigation.  That was part of the naivety over this wondrous invention.  I remember sitting is a library science class down in Austin in 1994.  We were supposed to identify and explain the value resources on the nascent Internet.  That’s when Gopher still ruled and the graphical web had started to emerge in force.  One student showed the FTS flower site.  Oh, the criticism that emerged.  How dare the pure web be sullied by crass commercialism! 

As I’ve taught research over the years I remind students that the Web was designed essentially to sell us movie tickets, DVDs, and the like.  The net was fostered in those early days by the Department of Commerce, not the Department of Education.  That should have told us something without having to dig deeper.  Legal research via the Web at that time was almost non-existent save for some governmental units putting up small archives of public documents. 

We’ve come pretty far since then.  I think, however, that we are still better at selling DVDs than creating a comprehensive source for primary law such as law.gov.  We still struggle with such concepts as reliability, authentication, consistency, reputation of sources, and the like.  Only two courts, Arkansas and Illinois have gone purely electronic for their decisions.  Even the U.S. Supreme Court will tell you that any conflicts with its online opinions and printed versions are resolved in favor of print.  Government likes the convenience of the web, but in many situations it still doesn’t trust it.  I’d like to mention here how GPO is addressing this through its efforts to authenticate the documents that it publishes.  At the same time, that same effort is conflicted by funding cuts.  We’d rather spend money and effort on securing a Grade C movie from unauthorized copying than securing our law for public distribution.

The web was magic in the early days, especially for those of us born analog.  We’ve gone from slow dial-up modems to fast Internet that we can carry in our pockets, for a fee, of course.  We can pay for physical objects by waving a smart phone, buy digital items with a few swipes of a finger, and turn ourselves into minor celebrities through the use of social media.  We’re also struggling with concepts of privacy as the analog world offered built in protections from most strangers that the digital world does not.  Then there is security as bad actors with technical skills prey upon others.  And, of course, there is spam.  The world is a much different place than it was twenty years ago.  Yahoo was the darling back then and curated its links by hand.  It’s impossible to imagine something like that now.  I doubt that very few people could accurately predict what the Internet will look like in twenty more years.  I mean, we still don’t have flying cars.  With that track record, I wouldn’t even predict law.gov or an equivalent will come to pass.  I'll go out on a limb and predict that if it does come to pass, that in twenty years there is a fair chance it might include ads.  [MG]

Incoming Thomas Cooley 1Ls Relax! You Really Are Attending the Second Best Law School in the Country

... according to Judging Law Schools, 12th ed. (2010). And Thomas M. Cooley Law School doesn't like it when anyone says otherwise. In case incoming 1Ls didn't get the "message," the Law School filed two lawsuits last month claiming defamation and tortious interferrence with its students.

To: Students
From: President LeDuc
Re: Litigation
Date: July 14, 2011

Cooley filed two lawsuits in Ingham County today.

The first lawsuit is against a small New York law firm. Our suit contends that the firm has defamed us and tortiously interfered with our student relationships, and that the firm and two of its lawyers have been unethically soliciting former and present Cooley students to join in a class action lawsuit against us. At our insistence, the firm previously retracted blatantly false online statements about Cooley, but only days later the firm moved their focus to Craigslist and Facebook, where they began circulating a draft complaint filled with more false and damaging statements about Cooley.

The second lawsuit is against four John Doe defendants. As with the law firm defendants, we contend the Doe defendants are defaming Cooley online and tortiously interfering with our student relationships through a series of false, damaging, and often vulgar statements in Internet blogs and comments to those blogs and other sites.

For the full text of President and Dean Don LeDuc’s message, including his summary of the school's claims, see this ATL post.

Thomas Cooley Expanding to Florida. Not distracted by the lawsuits, Thomas Cooley is expanding. Evening courses are set to be offered in May of 2012 with day classes commencing in September 2012 at the Law School's new campus in Florida. See the Law School's recent web page announcement. Already the largest law school in the country, Cooley is going to open a Tampa Bay branch campus at Riverview, Florida. Apparently Cooley plans to enroll 700 students at the new campus!

I guess that means that after completion of their first year, incoming 1Ls may be able to transfer from one of Thomas Cooley's four Michigan campuses to Florida to avoid Michigan winters! For more, see Staci Zaretsky's Because Cooley Law Really Needs Another Campus ATL post. Zaretsky adds:

Both the ABA Section on Legal Education and the ABA Accreditation Committee thought it would be a smashing idea for this diploma mill to throw open its doors in May 2012. Color me surprised.

Note to Thomas Cooley Law: sue ALT, not me. I didn't characterize your school as a "diploma mill."

Jim Levy (Nova Southeastern) reports "[t]hat will bring the number of law schools in Florida to Twelve" on Legal Skills Prof Blog (emphasis in the original). No basis for a lawsuit because that is a factual statement. Unless, of course, Thomas Cooley Law can find some sanction-free legal grounds for a complaint that the use of bold somehow injures the school's reputation. [JH]

Providing Routine Legal Services to the "Masses" in the 21st Century, Part Two: A Prescription for Allowing Main Street-Based Services Provided by Licensed Legal Assistance Practitioners

"The county's public law library can help you because ... ." Usually the sentence ends with "court forms" when spoken by local court employee or "information" when spoken by a legal services staffer whose office cannot provide the services requested. And yes, we do have court forms and "information." We have local court forms and court rules (which may or may not be current even when provided from the local court's website), our state's annotated code, regs, case law, state-practitioner focused deskbooks and loose-leaf services plus self-help books, etc. But the operative word is "help." For the self-representative litigant who visits our little county law library, the matter at hand is usually pretty route. The help they are seeking, however, is how-to answers. Our response must be restricted to directional reference assistance to our resources. It's up to them to read, understand, interpret and decide what is relevant and needed.

Of course, many, if not most ask, "is this relevant, is this form I need, do I need something else, how do I proceed in court?" Of course, we can't answer those questions with the specificity they want. That does not stop members of the general public repeating the same question. We take advantage of our little county law library's layout which provides line-of-sight so all staffers can see what is going on at the public services desk because sometimes the public patron will not accept "sorry, but..." until he or she hears it from a second staff member.  

We take a strict and, in my opinion, appropriate interpretation that providing this sort of "help" is an unauthorized practice of law. Hell, we even have a sign posted behind the public services desk with offical citation to the source for why we are not allowed to do so. However, even the questions sounding in the most routine court-related legal formalities can be difficult for many members of the general public. Our final words of "advice" is to suggest to our public patrons that they seek legal counsel and that our local bar association offers a referral service to help them find one. Of course, we never recommend a specific attorney, even when one who could help them is working in our county law library at the time. Most, however, simply cannot afford to hire an attorney. The self-representative litigant is on his/her own.

Let's add that I personally believe most judges have to and do work harder to accommodate the typical self-representative litigant we see in our library when he or she appears in court. No doubt many members of the bench would prefer that the pro se had obtained some sort of legal assistance for routine matters to expedite court proceedding.

Resources for the Self-Represented Litigant. I question the efficacy of the well-intended attempts to provide resources to members of the general public. See, e.g., "2011 Report: Resources to Assist Self-Represented Litigants: A Fifty-State Review of the 'State of the Art'” (Michigan State Bar Foundation, June 2011). No matter how much the "state of the art" improves, many self-represented litigants will simply not comprehend what is required. It's not that they are incapable of eventually understanding what is required. But, more often than not, they simply do not sufficient time to do so.

The equally well-intented "plain-English" movement that started some quarter of a century ago is problematic at best. While the "law" is written in English and can be understood by individuals who did not go to law school, there is a learning curve, one that remains even when "plain-English" documentation of forms and legal procedures are officially recognized. There will always be, in my opinion, a to-understand and to-do gap because the "law" is a formalized process that requires some measure of professional expertise, even for routine legal matters in court or for uncontested transactional documentation.

Comparing the Status Quo to Tax Prep and Healthcare Licensing Requirements. While there may be no solution to the self-represented litigant who has absolutely no funds, there may be a solution to providing legal assistance for routine civil matters that are affordable for many. If states and the federal government can define "tax preparer" to include tax lawyers, accountants, and nation-wide storefront chains which train staff to make decisions on how to input numbers into a software application for personal income tax prep by interpreting income tax requirements, then why not allow the same sort of licensing distinction between attorneys and state-mandated qualified legal assistants. If states can license and regulate the professional distinction between optometrists and ophthalmologists based on educational qualifications for providing eye care services to the masses, between license MDs and once not-accepted but now accepted by insurance providers chiropractors in the healthcare industry, then why not institutionalize the same sort of licensing distinction between attorneys admitted to the bar and certified legal assistants?

Let's start with the medical profession which also protects its industry in cartel-fashion like the legal profession does. When I visit my personal doctor, I always request to see her certified nurse practitioner. While the medical profession requires that they be employed by, work under the supervision of a licensed MD, and cannot prescribe medication on their own initative, but are covered by the doctor's medical malpractice insurance, there is no need for my doctor to spend her valuable time attending to my routine medical needs, even for a person like me who is not "aging well."  If certified nurse pratitioners could practice without being affliated to an MD on "Main Street" under a state licensing regime I would go to one for routine medical matters.

There is certainly an analogy here to the provision of legal services for the masses for routine civil matters. Unless a "client" knows something about the law at issue, he or she is dependant on an attorney's attention to detail. Oftentimes, much of that depends on the attorney relying on a paralegal. Why not allow certified legal assistance practitioners work independently on routine legal matters on "Main Street" under a state licensing regime, something short of appearing in court. They could provide the sort of assistance needed for most routine civil matters, like non-contested divorces, child suport matters (oftentimes form-driven with fill-in the blank state-specific software provided by vendors), probate court filling formalities for uncontested estates, as well as common transactional documentation like basic wills, etc.

Providing Qualified Legal Assistance. Of course that would also break the attorney-centric authorized legal practice cartel, one that is already happening in an unregulated manner. See As Nonlawyer Vendors, Would-Be Clients Take on More Legal Tasks, How Can Practitioners Get Ahead? This ABAJ story reviews “The Once and Future Firm: Fact v. Fiction,” ABA Law Practice Management Section panel session at the ABA Annual Meeting:

Increased competition from nonlawyer entities and blurred distinctions between legal and nonlegal work are just two of the major impactors redefining modern law firms, regardless of their size.

As a result, lawyers need to embrace an entrepreneurial spirit more than ever. Indeed, they should distinguish themselves by providing value, beyond their knowledge of the law and being able to craft documents, panelists said.

See also Mark Giangrande's The Grey Area of Unathorized Legal Practice.

A move like suggested might require a substantial improvement in the quality of paralegal education, perhaps even a one-yeare post-graduate program. And it could produce some sleepless nights for law school administrators who may worry about how to convince prospective students interested in the field of law to go to law school (read load-up on student debt) instead of studying to be a paralegal by way of, for instance, enrolling in a paralegal program (read less student debt). What the heck, it would create the opportunity for a new insurance niche, stand-alone paralegal malpractice insurance. I could even imagine one of our major professional legal services vendors opening a national chain of storefront operations like H&R Block has for tax preparation services. Think John & Jenny Westlaw offices across this great land of ours.

Likely to Happen? I think it is a pipe dream (unless TR Legal gets involved!). While the availability of self-help materials is substantially more widely available by way of the Internet from local courts with respect to their rules and forms and commerical sources by way of state-specific forms of questionable value and self-help guides, most national, some state-specific but all also of questionable value, nothing is going to trump face-to-face meetings between a pro se and someone qualified to explain the ways and means of routine legal matters. I am not, however, arguing that this work should be performed by public sector law librarians. Our contribution should not change. However, to the extent some county law libraries provide services to menbers of the bar beyond services provided to members of the general public, those additional services could be provided to licensed legal assistance practitoiners who work indendently. [JH] 

For the first part in this LLB series, see Internet-Based Legal Document Prep Services.

A Quick Follow-Up to Broken Vendor Business Models: SWAG for Complaints!

I don't tweat but if I did I would follow up Law Firm Libraries Approaching a "Network-style Meltdown" in Conducting Business with Vendors with a tweat about Greg Lambert's Dear Vendors – Upgrade Your Data… Not Your SWAG on 3 Geeks. Got to love it when a vendor responds to a complaint by sending gifts!

If this becomes the vendor business model fix, the IRS might start questioning the increasing amounts of corporate cash spent on "goodwill."

If I wasn't a public sector employee bound by certain ethical standards of conduct, I wouldn't be satisfied with anything less than a weeklong stay at a SWAG-worthy exclusive resort in Bali as a vendor-provided response to complaints. [JH]

Is This the Reason for SCOTUS Not Wanting to Allow Live Cable Broadcasting of All Oral Arguments? Justice Ginsburg on Perplexing Questions

“What [did] James Madison th[ink] about video games?” “What do you think about Satan?”

Those are two of the perplexing questions asked in the 2010 SCOTUS term during oral arguments as highlighed in light-hearted fashion by Justice Ginsburg in her July 22, 2011 speech to the Otsego County Bar Association.

Hat tip to Debra Cassens Weiss' ABAJ post, Justice Ginsburg Lists Term’s Perplexing Oral Argument Questions. [JH]

More Law School Unhappiness

The saga of Widener School of Law faculty member Lawrence J. Connell has taken another turn, prompting the age old question, “What is truth?”  Professor Connell has been suspended by the University for a year without pay for allegedly retaliating against students who claim he made sexist, racist, and violent statements.  He is required to issue a formal apology and to undergo psychiatric treatment.  This comes on the heels of an administrative hearing in June that found that the accusations against Connell were not proven.

Then there is the lawsuit Connell filed against Dean Linda L. Ammons for defamation for making, what else, racists and sexist remarks.  Connell, who is white, is reported to have used Ammons, who is black, in criminal law classroom hypotheticals where attempts were made on her life.  Connell reportedly accuses Ammons of trying to remove him from the faculty because of his conservative views.  The suit continues.  More on the latest developments at Widener is in the Philadelphia Inquirer.

Connell’s lawyers say he is looking for work at other institutions.  Good luck with that.  A lack of success may prompt another series of lawsuits if the case of Nicholas Spaeth gets any traction.  Spaeth is the former attorney general for the state of North Dakota.  He has been a visiting professor at the University of Missouri School of Law and filed an age discrimination case against Michigan State University for not hiring him as a faculty member.  

Spaeth is 61 years old and has an accomplished resume.  He claims that MSU hired younger and less accomplished individuals for faculty jobs.  MSU stated that Spaeth’s areas of teaching interest did not match the school’s needs.  And, for what it’s worth, Spaeth filed claims with the EEOC against more than 100 law schools that did not interview him.  At least 30 of those claims have been dismissed according to the Wall Street Journal Law Blog.  

Both suits have the potential to affect what it means to be in the privileged class of law faculty.  Or it can turn out that the courts will treat these cases as crank suits.  I’m not sure which.  The equities in both of these cases are pretty ugly.  Then again, I’ve never really heard of a friendly little lawsuit.  Gentlemen, start your legal filings.  If you really want to know what the truth is, just ask twelve people who weren’t there and have no connection to the incidents otherwise.  They will be happy to tell you.  [MG]

Providing Routine Legal Services to the "Masses" in the 21st Century, Part One: Internet-Based Legal Document Prep Services

Does LegalZoom's business practices violate Missouri law which bars non-lawyers from preparing legal documents? Been wondering when we would see this issue presented in court. Now that Missouri federal judge Nanette K. Laughrey has set a trial date, August 22, 2011, we may have an answer. In Class Action Claims Online Legal Forms Pose Threat To Consumers,WSJ Law Blog's Nathan Koppel interviewed David Butsch, counsel to the plaintiffs’ class, which apparently consists of 15,000 users of LegalZoom products.

"The state licensure of attorneys was established to protect the public from those untrained and uneducated in the practice of law,” Butsch said. The preparation of wills and other legal documents “may seem simple to a layman, but they aren’t,” he added. “There are consequences of signing a will . . .and those consequences can be great and they can’t be properly communicated by a company over the internet.”

We asked Butsch about the concern that many have voiced that legal services are cost prohibitive to many consumers, a problem that has likely become even more acute in recent years.

Aren’t online legal documents, however crude, preferable to having folks go without any form of legal guidance? In response, Butsch noted that there is now a glut of legal talent in the market, with many law graduates unable to find full-time employment. That fact, he said, has made customized legal help from practicing lawyers increasingly affordable. “I know quite a few lawyers who offer a quality legal service at very good rates,” he said.

(Emphasis added.)

Well, there is "affordable" from a lawyer's perspective and then there is "affordable" from a individual's perspective. Again quoting from Nathan Koppel's WSJ Law Blog post:

“If the plaintiffs are successful, we believe it is going to become a lot more expensive for small businesses and individuals to obtain basic legal forms,” Chas Rampenthal, Legal Zoom’s General counsel, said... . “Missouri would become the only state in the nation to take away a consumer’s right to access online legal document software.”

The comment trail for Koppel's WSJ Law post makes for interesting reading

On Communications. Whoa. I don't think we are talking about just downloadable forms-only purchasers, although I have no idea how many members of the class were just downloadable forms-only customers. Rampenthal fails to mention LegalZoom's personalized "Peace of Mind Review" by automated checks and document specialists who may contact individual LegalZoom users with follow-up questions and its 100% guarantee claim and lifetime customer support. See LegalZoom's partal front page screen capture taken on August 6, 2011, click to enlarge. Quoting from LegalZoom's website:

What is a LegalZoom Peace of Mind Review?

Unlike software or do-it-yourself kits, LegalZoom services include a personal review of your work for completeness, consistency and common mistakes. Along with hundreds of automated checks, our document specialists carefully review the answers you provide for the following:

• Complete information. Our document specialists will contact you by phone and email if additional information or clarification is needed.
  Internal consistency.
• Spelling, grammar and punctuation. We do not rely solely on software spell checkers. Every document is proofread by a document specialist.
• Correct capitalization and lowercasing where required.
• Proper pagination and blank space elimination.
• Complete words. We spell out abbreviations or symbols in English.
• Professional and consistent font usage.
• Correct residency information. Indicating the proper state is critical to ensure the document conforms to your state's requirements.
• Full names. We verify that full names are given (first and last) and that all names appear consistently throughout the document.
• Correct shipping addresses and email addresses to ensure timely delivery.

(Emphasis added; no direct link because the statement is a pop-up)

Granted, this is the sort of work paralegals commonly perform for routine matters but they do so under the supervision of a licensed attorney and firm-employed paralegals are covered by the firm's malpractice insurance. No malpractice insurance available if this issue sounds in "unauthorized practice if law;" just the proforma legal disclaimer.

LegalZoom has the usual prophylactic legal disclaimer. It states in part:

LegalZoom's document service also includes a review of your answers for completeness, spelling and grammar, as well as internal consistency of names, addresses and the like. At no time do we review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation. LegalZoom and its services are not a substitute for the advice of an attorney.

Although LegalZoom takes every reasonable effort to ensure that the information on our website and documents are up-to-date and legally sufficient, the legal information on this site is not legal advice and is not guaranteed to be correct, complete or up-to-date. Because the law changes rapidly, is different from jurisdiction to jurisdiction, and is also subject to varying interpretations by different courts and certain government and administrative bodies, LegalZoom cannot guarantee that all the information on the site is completely current. The law is a personal matter, and no general information or legal tool like the kind LegalZoom provides can fit every circumstance.

Do note the testimonial about LegalZoom's "professional services" by attorney Rene R. It is displayed above the legal disclaimer text. (August 6, 2011 image capture, above right, click to enlarge)

Will this disclaimer provide LegalZoom with a caveat emptor defense accepted at the conclusion of the trial?

As a Practical Matter... On our little county law library's Legal Forms Research: Guide to Online Resources for Agency, Court, Business & Personal Forms web page, we currently list LegalZoom with the following warning under the heading "Business & Personal Forms Services (selective):" 

Warning: The Butler County Law Library does not endorse any commercial online legal document preparation service or use of downloadable forms. Advice from an attorney is strongly recommended, even for the drafting of ordinary, uncontested documents.

...

The commercial services listed below are provided for informational purposes only to illustrate the types of services available online; note well the fees and other expenses incurred in the purchase and/or use of online legal document services.

As a law librarian who once did his fair share of legal work under attorney supervision (and the firm's malpractice insurance) but now is a public law librarian, I certainly can say that it oftentimes takes more time to explain to our non-attorney public patrons that we cannot tell them which transactional form they should use (or how if one were to take clauses A, B and C from one form sample, clause "D" from another form and clauses "E and F" form a third form, fill in the blanks and "that will work") because that would be an unauthorized practice of law.

Frustrating? Yes. Required? Yes. Necessary as a practical matter? Not usually. However, I am not suggesting public law librarians be permitted to take the "next step."

Hat to to Legal Skills Prof Blog for calling attention to the August 22, 2011 trial date for LegalZoom. [JH]

A Little More on Drexel Law's ABA Accreditation

Opened in the fall of 2006, the  Earle Mack School of Law at Drexel recently received ABA accredition as Mark Giangrande posted on LLB earlier this week. Folks may recall that when plans for the law school were announced in 2005, some statements made by Drexel about legal research and law library collection development produced a bit of kerfuffle in academic law library circles. The statement was retracted and replaced by Drexel. For the statement that caused the buzz(right side callout quote) and its replacement, see this June 22, 2005 LLB post. See also Drexel's Law Library website.

The ABA news is a great way to start off Drexel Law's 2011-2012 academic year; congratulations to all. [JH]

Temp Lawyers Performing Document Review Subject of Malpractice Lawsuit

The WSJ's Vanessa O'Connell reports:

An increasingly contentious lawsuit by a former client against law firm McDermott Will & Emery LLP is putting a spotlight on the legal industry's widespread use of itinerant "contract" attorneys who review documents for lower hourly wages.

J-M Manufacturing Co., the world's largest maker of plastic pipe, hired McDermott five years ago to help respond to prosecutors' request for documents after a former employee filed a whistleblower lawsuit. Late last week, Los Angeles-based J-M amended its pending lawsuit, abandoning some allegations against the law firm while adding others, including that the contract attorneys McDermott used "negligently performed their duties."

Quoting from Objection! Lawsuit Slams Temp Lawyers (WSJ subscription required)

The ABAJ's Debra Cassen Weiss must have a WSJ subscription. In Malpractice Suit Targets Quality of BigLaw’s Temporary Lawyers, she adds

The newspaper says the suit “is seen in the industry as an important case concerning the quality of work performed by a growing cadre of temp lawyers who are paid as little as $25 to $30 an hour to review documents.”

The suit alleges that McDermott lawyers “negligently performed limited spot-checking of the contract attorneys’ work,” leading to the disclosure of about 3,900 privileged or irrelevant documents.

If true, oops! Do law firms need to assign an in-house paralegal to monitor "itinerant contract attorneys" performing document review work? [JH]