Law Librarian Blog

Friday Fun on Saturday: Judge Rules White Girl Will Be Tried As Black Adult

Another Onion News Network report on legal developments not covered by other mainstrean media outlets like the Colbert Report. Wonder what Civ Pro profs have to say about this politically incorrect ruling. [JH]

Judge Rules White Girl Will Be Tried As Black Adult

Friday Fun: OK, so it isn't a Guinness ad

And I have no idea if the Japanese celebrate Labor Day but ... . Hope everyone has an enjoyable and safe Labor Day weekend. Here's this week's Friday Fun video: YouTube clip.

Hat tip to Butler County Law Library's Angie Hamey for this gem. Her email was date stamped "8/30/2011 8:47 PM" so I know she wasn't cruising the Internet on "company time." [JH]

"Satisfaction within the midlevel ranks has fallen to its lowest level since 2004"

That's the subtitle of The American Lawyer's overview article about AmLaw's 2011 The Associates Survey. What the hell are they whinning about, at least they have jobs. Oh, I know why. [JH]

What are the Worst Things a Law Librarian Can List on a Resume?

Bridget Crawford offers her list of what are the worst things a law prof can put on a CV at The Faculty Lounge. Note the comment trail. One of my favorites is "It's probably not a good idea to list appearances on "Hoarders", "My Strange Addiction", or "America's Most Wanted"." With a follow-up comment, "how about "Featured on TV's 'I Didn't Know I Was Pregnant.'"

More generally see The Chonicle Forums' New Game! Ten Worst things to put on your c.v. and Yahoo! Finance's The 10 Worst Things to Put on Your Resume.

You might want to check your resume over the Labor Day weekend to see if it needs editing. [JH]

Law Grad Jobs, The ABA, And U.S. News

Two stories on the law student job market caught my eye today.  One is from the Associated Press via Google News.  It's called Law Schools Lure Fewer Students As Jobs Dry Up.  It relates how law schools in Missouri are down in enrollment numbers and links it to the highly publicized downturn in the law graduate job market.  The quoted figures show that first year enrollment is down 11 percent and applications declining to nearly 17 percent at the University of Missouri.  Washington University in St. Louis reports a 12 percent decline in enrollment.  The article comparatively cites a 14 percent decline in applications to the law school at the University of Michigan and new student enrollment down 16 at UCLA.  The few new students interviewed in the story seem to understand the risks of debt compared to the job market. We'll  see if they feel ok with their decision to go forward with a law career in three or four years.  I hope the AP does a story in 2015 that covers law student attitudes on going to law school after several years of fewer and/or lower paying jobs.  What will they be saying then?

The second story is from the scourge of law schools, U.S. News and World Report.  The education editors, of all people, are critical of the American Bar Association's changes in reported information about employment in the annual questionnaire they require law schools to submit.  By the way, if anyone wondered what questions the ABA asks the law schools, they're here, courtesy of a link from the U.S. News story.  Librarians may be interested in Part 3 which is the nine page section on library operations.  The directors are familiar with this, of course.  The rest of the staff may find the questions interesting in any event.

U.S. News is critical because the ABA may be asking for more detail from schools regarding salary, type of employment, whether the bar is necessary for that job, whether the law school or university is subsidizing that job, and other very specific detail, but will only publish aggregate data on jobs by state.  Here is how Hulett H. Askew, the Consultant on Legal Education puts it in a July 27, 2011 memo to law school deans and career services officers:

As to salary data, rather than provide school-specific salary data, the Official Guide will provide the 25th, median, and 75th percentile salaries of jobs obtained in the various types in each state and region. The salary information will be based on jobs obtained by graduates from all law schools and will not be limited to those graduates from any particular school. This format will avoid the over-reporting of salary information that tends to occur for any particular school because not all of a school’s graduates report salary information to the school. In particular, since the graduates who report salary information tend to be those with higher salaries, a school’s 25th, median, and 75thsalary percentiles tend to be over stated. Rather than provide school-specific data, the Official Guide will provide salary information for each employment type for graduates of all law schools who obtain a position in each state. A prospective student can consult the state data for those states at which the school sends it greatest number of graduates to determine salary levels that might be expected after graduation.

The second criticism is that some of the newer specific graduate employment details sought in the questionnaire will be delayed to the future rather than the immediate survey.  I'm not sure that second criticism is all that valid, only because the future is less than six months away:

The additional data categories that will be collected with the Annual Questionnaire in the subsequent reporting period include whether the graduate’s job is part-time or full-time. It will also ask whether the job requires bar passage, whether a J.D. is preferred for the job, whether the job is in another profession, or whether the job is a non-professional one. As stated, definitions for these categories are currently being developed. Rather than wait until August 2012 to collect these data, our plan is to collect those data from the schools soon after February 15, 2012.

U.S. News says that absent formal data developed for the ABA, it will consider asking schools for more information on graduate jobs:

U.S. News will collect the new ABA questions in fall 2011 and early 2012 for 2010 graduates. In addition, we are studying the possibility of asking the questions that the ABA is not asking in terms of full-time and part-time employment and J.D. required job or non-J.D. required job. U.S. News will continue to publish salaries on a school-by-school basis. There is some likelihood we will use this new jobs data to change the methodology used to calculate employment rates for the 2013 edition of the Best Law Schools rankings, to be published in 2012. Until U.S. News finishes collecting the new data, we are unable to specify how the methodology will change.

As they put it earlier, prospective students will want to know if a specific law school's graduates are getting jobs, not so much how jobs in the state are faring.  I cam imagine a lot of grumbling will going on in the law school administrative offices because of this.  [MG]

Dateline, August 31, 2011, 2:00 PM: Public Safety Alert at Albany Law School Library

For details, see ATL's Watch Out: There’s a Wanker in the Library! Isn't it awfully early in the academic year for this? All joking aside, ATL's David Lat reports that security at the Albany Law School Library is a serious issue. [JH]

How Much Does Your Online Legal Search Vendor Know or Could Know About You and Your Clients?

Got any clue? Jason Wilson writes:

I sometimes wonder how much these CALR vendors could know about you (lawyer/law firm) and your clients at any given moment. Sure, they might not know names, but they would know if related C/M are facing pharma litigation and, say, Federal Corrupt Practices Act violations. For large law, how hard would it be to match C/M data, account data, and public data to determine who your clients are and the specific problems they are facing? And if they, the CALR vendors, were interested in selling services directly to your clients’ corporate counsel, imagine how much those businesses might already know about your clients’ exposure and vulnerabilities. If you think CALR vendors are on your side, you might want to stop and consider just how much they actually know about what you do, and how they plan to compete with your own data.

(Emphasis added.)

For more, see Jason's What does {choose one: Westlaw, Lexis, Loislaw, Fastcase, Casemaker} know about you?

Also of interest on this topic: Everything You Do Online is Being Tracked -- "Don't Get Over It:" Klinefelter's When to Research is to Reveal. [JH]

Thank you AALL for Listening and Being Flexible

I want to publicly thank AALL.  I received an email today from Kate Hagan letting me know that while AALL was adhering to the September 15th deadline they were also going to provide members affected by the earthquake and hurricane the opportunity to request an additional five days to complete their proposals. 

If you were adversely affected by the August earthquake or hurricane on the East Coast and will be unable to meet the September 15 submission deadline, contact proposalhelp@aall.org prior to the deadline.

Thank you AALL and particularly, Kate Hagan, for recognizing the hardships we East Coasters have and are encountering over the last week, and for allowing us the ability to request additional time to complete our program submissions and make this a great Boston conference.  This law librarian much appreciates that you listened and were flexible.

Caren Biberman

Contemplating “RIP AALL” Ahead of Boston 2012: Muster of the Minutemen (and Minutewomen)

As an organization of institutional buyers, AALL is on the verge of becoming irrelevant. Just follow the money. Look at where our major "legal professional service vendors" are spending their ad and meeting sponsorship dollars for marketing their wares. It ain't on "us" anymore. 2011 was the year this became obvious for all to see. Our major vendors are spending proportionally higher amounts of their limited marketing budgets to sponsor and advertise to the Law Tech market. TR Legal is leading the pack to sell "solutions" to this market, some which offer, some which don't offer online search as a component. Good luck with that since the Company has some way to go to catch up with Lexis Legal & Professional which began focusing on software years before TR Legal did. Wait a minute – perhaps, that is why TR Legal has refocused so much of its marketing dollars -- playing catch-up with Lexis?
 
The writing is on the wall. While law librarians are deeply involved in legal tech, many are not sufficiently exposed to these solutions. We certainly address matters of online legal search, particularly with the rise of new WEXIS platforms but we haven't extended our professional expertise to a critical analysis of software products that have been and are coming to market, at least not in AALL literature, forums, or programs at the national level.

Isn't it time to do so? Isn't it time to evaluate what they actual do and what they cost against a backdrop of vendor advertising claims about them? Of course, one can't blame law librarians if they choose not to address this issue. If we can't make "anti-competitive" comments in AALL communication mediums, what’s the point!

AALL already has one foot in the grave. Why? Because our vendors are spending their marketing dollars for their Next Big Think, "solutions," elsewhere while our association's "gag order" to its institutional members is leading AALL's second foot right into the grave of irrelevance. There is, in my opinion, no way to evaluate the services already in the market and services coming to market which will eventually transform, have already transformed "legal publishing" into law-based "solutions," without such critical assessments echoing in consumer advocacy.
 
Even if AALL is nothing more than a vehicle for professional education and development, problematic in my mind unless it changes its name, American Association of Law Libraries Librarians, I attended one Philly program where law librarian panelists made statements that could have been characterized as "anti-competitive" by AALL standards. Had AALL assigned a censors to the session, would the podium mics have been turned off? (Anyone old enough to remember when Mayor Daley cut the sound for the podium during the 1968 Democratic Party convention because the speaker was denouncing the Chicago Police Department's tactics outside the convention hall as protesting turned into rioting?) I also attended another session where the panelists were vendor and jobber reps discussing product development and licensing. Had the same words been spoken by law librarians, I think AALL would have had to unleash its riot police.

I'm thinking AALL really has only two choices left. AALL either

1. retains a law firm that does not have a bend-over stance. One brave soul posed that as a question during the Executive Board Meeting's members forum. You can check the minutes for AALL official response; or
2. increases member dues to pay to medicate our royal family and their courtiers for antitrutism anxiety attacks because the traditional passive-aggressive behavior displayed by many law librarians is being replaced by direct, full, and frank confrontation of the issues publicly.

The hue and cry will just get louder. In medieval times in Jolly Old England, the hue and cry was a sanctioned method for folks who percieved wrong-doing to call on others to help capture those bandits and take them to the local sheriff for their day of judgment because that's how criminal activity was dealt with. In our own Wild West frontier days, our 19th century interpretation of the "hue and cry" was the local sheriff who deputized ordinary citizens for a posse to do the same, although sometimes the niceties of criminal procedure were ignored by hanging the outlaw immediately upon capture. While no one is suggesting hanging any members of AALL's officialdom from the nearest tree, it is clear that some insitutional buyer representatives have and will continue to "tar and feather" our association royalists for their failings.

I'm seeing and hearing this particularly among my cohorts, the Boomer-gen law librarians (who likely remember my reference to the 1968 Chicago convention). Many have decided (1) they have nothing to lose since they are already in positions of institutional authority; (2) they don't want our generation's legacy to remain the status quo; (3) they have long-term memory recall of dealing with AALL, vendors and the way too cozy relationship between them and (4) their past efforts to do something within AALL have been stymied -- some were lone voices calling for change when they were the black sheep of the royal family; others never made it up that far in the royal pecking order.

I might add (5) to the above list. We Boomer-gen law librarians were the legal tech generation of our times but we recognize the expertise of today's legal tech resides in the GenX-GenY law librarians who are coming up the ranks to leadership positions in our institutions. At the moment, if our younger colleagues don't want to squander their expertise, they might as well join some other professional association. I'm thinking legal administrator associations in the private and public sectors might welcome law librarians as special interest groups. Then there is also the ABA which already has a section.

It's time for AALL to justify its institutional existence. It is damn near impossible to separate consumer advocacy from products and services institutional members use, evaluate and communicate their opinions about. While my focus is on WEXIS, this is equally true in the tech services arena. Of course, this assumes that AALL royals really want to catch up to the membership on the issue of consumer advocacy. That's one helluva assumption.

To date, it looks to me that AALL asks our legal counsel, "How do we avoid this issue?" The appropriate issue to present to legal counsel  now is "give us ways and means to serve our membership by assisting their consumer advocacy efforts with sufficient legal muscularity so we won't be the laughing stock at Boston 2012: Muster of the Minutemen (and Minutewomen), like we were at Philly 2011: Cream Cheese, Cheesesteak or Karaoke." If AALL is not dependent on vendor dollars for essential services, as was stated during the 2011 Executive Board meeting, then AALL better be prepared for declining vendor-source revenue. All one has to do is look at TR Legal presence at Philly this year to see the future. I doubt I am the only one thinking that TR Legal may be setting an example. One has to wonder how many other major vendors went back to HQs to talk about downsizing their financial commitments to AALL because TR Legal did.
 
IMHO, the only way to stem this trend is for AALL to reverse its institutional course by allowing all members to apply their professional expertise to all issues that concern their employers for all products and services before shovels tap down the ground on the gravesite of AALL. It's too soon to say "RIP AALL" but it is not too soon to contemplate it's irrelevance.

Just imagine what AALL will look like 20 years from now if our professional organization continues to proceed down the path it has been on for the last 20 years. Well, we’ll just have to wait ‘n see. How many months away is Boston 2012: Muster of the Minutemen (and Minutewomen)? [JH]

Updated GlobaLex Research Guides

August 2011 updated guides available on GlobaLex:

• International Sports Law by Amy Burchfield
• Guide to Legal Research in Belarus by Tatyana Khodosevich & Nadia Shalygina; Update by Nadia Shalygina
• An Introduction to Colombian Governmental Institutions and Primary Legal Sources by Antonio Ramírez and Hernando Otero
• An Electronic Guide to Mexican Law by Francisco A. Avalos and Elisa Donnadieu; Update by Francisco A. Avalos

[JH]

The ABA's Latest Response To Senator Grassley

The American Bar Association, or more specifically, the Section of Legal Education and Admission to the Bar, responded to Senator Charles Grassley’s letter of August 9th, which was a response to the Section’s July 21st response to the Senator’s original letter to the ABA from July 11th.  Confused?  For the whole history and correspondence, see my LLB posts Senator Asks ABA Questions About Scholarships and Debt, ABA Responds To Senator Grassley, and Grassley to ABA: I'm Not Going Away That Easily, and A Bit More on Senator Grassley And The ABA.  I make the distinction about who is responding to Senator Grassley as the Section points out in its current response:

As stated in our memorandum of July 20, 2011, the Section is separate and independent of the American Bar Association, as required by the Department of Education’s regulations governing accrediting agencies.

A minor distinction I’m sure, as the cover letter comes from current ABA president William T. (Bill) Robinson III, and the section letterhead strikingly uses the ABA logo as such.  What was that I learned way back in the day when I attended my agency class, something about the appearance of apparent authority?

Senator Grassley’s second letter took the form of 10 questions with multiple sub-questions, not unlike an interrogatory to the opposing side.    The ABA’s, excuse me, the Section’s response comes in a mere four pages, in contrast to the 67 page response to the first inquiry.  The answers are grouped according to the theme of the topic.  A copy is here.

The Section notes that law student default rates on student loans are lower than those of undergraduates and acknowledges that unemployed law graduates face challenges in repaying those loans.  The answer to this is action by lenders to give more information the prospective students and train law school financial aid administrators.  The accreditation Standards and interpretations now require law schools to provide debt counseling at the beginning and end of the educational program.  The Section doesn’t have an established a benchmark for what is an unacceptable default rate because it is low, but will consider revising the Standards and report to the Department of Education on that effort before the summer of 2012.  In any event, the Section says, states do not admit defaulted students to the bar.  

I suppose that doesn’t account for those who default after passing the bar.  In any event, the Section seems to be saying that while it expresses concern, the default rate is low enough that it’s not a real problem.  If this were a courtroom we would call this a question of fact.  Neither side has established the details of that fact. 

Senator Grassley questioned the background and composition of the Section members and specifically that of the committees and inspection teams.  He implied, I believe, that academics were overly represented in the organization.  Not so much is the response.  The Section complies with the Department of Education governance requirements.  Hey, we have judges, lawyers, and bar examiners of various genders, racial, ethnic, and geographic categories.   We’re diverse.  Diverse is good.  Eleven of the twenty-one members of the Section’s Council are not employed by a law school or involved in the governance of a law school.  I believe that qualifies as more than half.  Moreover, there are ethical and conflict of interest rules by which all members must abide.  

The next part of the response focused on how law schools managed scholarships.  There has been criticism that law schools give money to students in the first year and then use a grading curve to pull money from those who don’t make the cut for a continued grant in successive years.  The Section “is moving” to require law schools to provide more information about this via the annual questionnaire which will be published by the ABA.  The Section “is considering a proposal” to amend the Standards to require schools to publish scholarship data on their websites.  

The last part of the response covers the legal employment market.  The Section says it doesn’t regulate that and as such, it does not conduct economic research.  Antitrust law, it believes, prevents it from placing a cap on the number of law, though setting more rigorous standards would not.  The law school accreditation standards, however, are already rigorous, and they require law schools to provide career services.  The Section “is currently working” on a revision to the Standards requiring law schools to “affirmatively demonstrate that they are devoting satisfactory ongoing efforts to assist students in finding jobs to promote student loan repayments when a school’s placement rate falls below a specified level.”

A lot of the language in the response indicates concern and action but is exceptionally vague as to what form that action would take.  I get the distinct impression that the Section wanted to say as little of substance as possible in this public response to Senator Grassley.  Rather than leave it at that the Section expressed a desire to take this matter out of the public record.  Here is the memorandum conclusion:

In closing, thank you for your continuing interest in law school accreditation Standards.  We renew our request for a meeting with you and Section leadership to address any remaining issues you may have.  Please feel free to contact us again if we can be of any further assistance.

My impression is that the ABA and the Section will make law schools sweat the little things, such as an academic law library director’s status as a faculty member, while looking the other way and whistling when it comes to consumer and economic issues.  One is easy and one is hard.  Can you guess which one is which?  I have the further impression that law students and graduates are not the focus of the accreditation process.  As long as the factory is ok we don't have to look too closely (bar passage and employment rates aside) to the product it produces.  

I actually have a little sympathy for the Section as it is probably not used to being challenged in this way.  At the same time I like the idea of holding accreditors of law schools to justifying their standards and actions by someone with enough gravitas to pull it off.  Perhaps that conversation the Section is seeking with Senator Grassley might take the form of a Senate Judiciary Committee hearing at some point.  That would be a hoot.  [MG]

Why must AALL annual meeting program proposals be submitted a whooping 10 months ahead of the event?

I think if one checked other associations, you will find AALL probably has one of the earliest deadlines for program proposal submissions for ass'n annual meeting planning. One doesn't need earthquakes and hurricanes to pose this question: Why must annual meeting program proposals be due a whooping 10 months ahead of the event? So while some of us await for what we can only hope will be a retraction of AALL's official "NO" response to Caren Biberman's justified request for a mere five day submission extension because of an act of god, chew on the whole 10 months thing. A later deadline would also allow for submission of proposals that may be more relevant to events that had occurred ahead of our annual meeting.

I think the response from AALL would be that AMPC has a lot of work on its hands reviewing 300 or so proposals and must meet in late October to get started. That's easily rectified by going to a peer group track scheduling model. Academic, Public and Private sector groups could be given slots to fill in the program schedule. Under the direction of each group's elected officials, separate peer group mini-AMPCs would review and select proposals for scheduling their slots and a general AMPC would do the same for slots allocated for all other programs. Conflicts in programming? Now, how hard would it be to avoid that... . If there is so much work, dividing it up would also allow for pushing the September 15th deadline back.

Our profession is living in interesting times, times where important events happen after September 15th of each year. I'm assuming our AALL officials are living in these times, too. Perhaps that's a wrong assumption. However, in this age of modern communications there is no good reason for having a deadline 10 months before our annual meeting even if AALL doesn't want to follow up on the above-mentioned suggestion for dividing the labor for reviewing program proposals. AMPC doesn't have to meet in October and can work together in a virtual environment if AALL is too worried about losing it grip on our annual meeting. Unless, of course, AALL's official policy is that nothing significant happens in our profession after September 15th.

We all should have, to quote Caren, "zero patience" with how our annual meeting programming is administered. Kudos to last year's AMPC members for the hard work they did but that was the result of individual efforts. We need to institutionalize this to gain momentum so that it is not utterly dependent on who AALL officials select to be on the Committee. Unlike Caren, we should not need an act of god for having zero patience with the current state of affairs. Well, we may need an act of god to get reforms made. 

AALL's Knee-jerk "No" Responses. Is "yes" to membership requests even in AALL's official vocabulary? Being a born and bred Chicago native, I think the next time Chicago experiences a severe snowstorm we all should call AALL HQ. When the phones aren't answered because of that act of god, perhaps we need to email our AALL officials because our AALL staff were scheduled to be at work. [JH]

So what that there was a Hurricane and Earthquake--Adherence is More Important

I will start this post by admitting that after the events of the last week I have zero patience.  We, on the East Coast, have dealt with two very unusual events for us, an earthquake and then a hurricane.  I can only speak for myself but those two events have caused me to lose at least four days between work and personal time.  Days when I might have otherwise accomplished things.  Like perhaps in my spare time writing the two program proposals I personally have committed to for the next AALL Conference.

With the deadline looming (September 15th) and work about to ramp up with first year associate training planning and other projects and some personal commitments I thought, let me suggest to AALL that they give us a little more time to complete these proposals.  I didn't think an extra 5 days would be such an unreasonable request.  That would have given me (and of course everyone else) an additional weekend to finalize everything. 

I took it upon myself to write Kate Hagan (AALL Executive Director) and Darcy Kirk (AALL President) an email requesting that AALL extend the deadline to September 20th to give us that additional weekend and suggesting that "I think it would be viewed as AALL being very compassionate and flexible if you were to do this."  I pointed out that while academic librarians are encouraged to submit proposals for programs by their employers, private law librarians are not.  In fact for private law librarians anything done for the profession is generally outside their job and as a friend said to me tonight a  "labor of love." 

Now I will say that I received a very swift and nice phone call from Kate Hagan asking if there was anything she could do short of extending the deadline.  And she did make her case that the Committee meets in October and has usually 300 proposals to review.  So that would put more of a burden on them.  According to the Important Dates to Remember on the AALL Annual Meeting Site that meeting is in late October.  And I am certainly not trying to minimize the work done by the AMPC, I do recognize its a huge job.  But I truly believe, given the circumstances, extending the deadline would be the right thing to do.  I made my case to Kate during our phone call and she said she would discuss with others and get back to me.

I received an email this evening telling me my request had been considered but that AALL would not change the deadline.  Why?  What I was told was that they had been advertising the date since early June and they want to adhere to the date.

So I leave it to my colleagues to decide if adherence is more important then flexibility.  Not in my book.  And yes, I am sure this blog post will make me persona non grata.  And I am sure some will suggest I could be writing a proposal instead of this blog post.  But as I said I have little patience left.

Caren Biberman

Did Facebook Respond to Google+ By Implementing New Privacy Controls?

Don't know but Facebook did implement some new Google+ like user controls without using the words "privacy" or "Google+" on August 25th. See Facebook's Making It Easier to Share With Who You Want and the ACLU's analysis of the changes, You've Been Tagged on Facebook—But Now You're in Control. See also the recently released ACLU Guide to New Facebook Privacy Controls. [JH]

Duke, Cornell, Johns Hopkins, and Emory To Offer Orphan Works Electronically

I wrote at the end of June about the decision by the University of Michigan Libraries to give campus access to electronic versions of orphan works scanned by Google from the school’s collection.  See University of Michigan To Allow Campus Access To Digital Orphan Works for more information.  Paul Givler, executive director of the Association of American University Presses, was not happy with the move.  The Michigan access has not been challenged so far and there are no reports of orphan works owners storming the campus with torches, pitchforks, or subpoenas.

That may or may not have encouraged what comes next.  Duke University, along with Cornell, Johns Hopkins, and Emory University are about to do the same thing according to a report in the Charlotte News and Observer.  The books to be made available are copies of orphan items that appear in the print collection.  The plan is to post a notice about titles for 90 days.  The titles will remain online if no one comes forward.

I like the idea that libraries are pushing the issue of electronic access to orphan works.  Google can’t do it because the pending settlement issues concerning orphan works are unresolved.  As Judge Chin rejected the last settlement, he stated that Congress needs to act to allow Google to display orphan works.  Google wants to play nice with the publishers so it can’t push the issue unless all talks break down and the case actually goes to litigation. 

While I can’t see a lot of pent up demand for an electronic copy of "Lecture On Bees," a 1925 title by E.R. Root, cited in the News and Observer story, I like the idea of the collective libraries’ decision to go forward with access.  The source libraries are not part of the litigation.  They can be independently sued by a rights holder and will defend by claiming fair use, should that happen.  Universities are risk-averse by nature.  The fact they are willing to do this means the university and library administrations believe fair use allows this.  [MG]

Time for AALL to "Interfere" in Licensing: An Approach for Petitioning State Governments

Initially I thought the title of this post would be "Time for a Model Act on Fair Use Preservation in Licensing of Electronic Content?" Certainly UNC Law's David Robert Hansen has provided a working draft for consideration by the NCCUSL in his A State Law Approach to Preserving Fair Use in Academic Libraries [SSRN]. But hold on for a minute. Hansen's work also provides a framework for consumer advocacy that echoes in one of our association concerns, namely "fair use." It also provides an illustration of what a national AALL Library Consumer Advocacy Caucus could do by serving as a clearinghouse of information individual institutional members could if they so choose use to petition their state governments for legislating a necessary corrective to model licensing agreements. In saying so, I am merely expressing my own opinion, not that of the Library Consumer Advocacy Caucus which is still trying to get an official okey dokey from AALL officialdom.

In A State Law Approach to Preserving Fair Use in Academic Libraries, Hanson writes

Contracts can do funny things to the balance of rights granted by Congress in the Copyright Act. For public institutions that spend large amounts of money on copyrighted content, contractual restrictions on users‘ rights are especially problematic given the needs of academic library patrons. In recent years, academic libraries have experiences a dramatic shift in acquisitions practice, from purchasing physical copies of works to licensing access to those works. With this shift toward licensing, academic library users‘ rights under federal copyright law have been diminished. In particular, these restrictions have narrowed the scope of fair use, a right whose free exercise is important to academic freedom and equity across institutions of higher education. These contractual limitations alter the delicate balance‖ of author and user rights, and have garnered significant criticism in the literature. Thus far, proposals to restore the balance have not been effective because they are either too ambitious (as with federal preemption) or too weak (as with model licenses). This paper proposes a solution that falls between those two extremes, and which may be useful to rebalance the rights of content owners and users with respect to other academic uses as well.

Hanson's hypothetical Educational Fair Use Preservation Act would render any licensing provision between rights holders and an IHE that modifies or eliminates fair use for users void. While it addresses the issue in the context of public academic libraries, Hansen observes:

Academic library users are not, however, the only group of users that are negatively impacted by licensing restrictions on rights like fair use. As the digital distribution of copyrighted works becomes more common, consumers are presented with the same problems as those in academia. Because contracts—creatures of state law—are what enable these problems, serious thought should be given by states courts and legislatures to modifying state contract law, either for individual classes of users (as this paper proposes), or for consumers in general.

Amen to that. [JH]

Round-Up of Law Practitioner Blogs

Denver Divorce Attorney Blog
http://www.denverdivorceattorneyblog.com/
http://www.denverdivorceattorneyblog.com/index.xml
Discusses family and divorce cases, news, and legal opinions in Colorado. Published by Plog & Stein, PC
Examines divorce news, opinions and related matters in Florida. Published by Whitney Lonker, of the Apple Law Firm PLLC

Arizona Criminal Defense Attorney Blog
http://www.arizonacriminaldefenseattorneyblog.com/
http://www.arizonacriminaldefenseattorneyblog.com/index.xml
Discusses criminal law news, case and related matters in Arizona. Published by James E. Novak.
 
Florida Bankruptcy Lawyer Blog
http://www.floridabankruptcylawyer-blog.com/
http://www.floridabankruptcylawyer-blog.com/index.xml
Examines bankruptcy cases, news, and opinions in Florida. Published by Law Offices of Justin McMurray.

Jacksonville Foreclosure Lawyer Blog
http://www.jacksonvilleforeclosurelawyerblog.com/
http://www.jacksonvilleforeclosurelawyerblog.com/index.xml
Discusses foreclosure news, cases and related matters in Jacksonville, Florida. Published by The Law Office of Garrett J. Strahl.

Kansas City Whistleblower Lawyer Blog
http://www.kansascitywhistleblowerlawyerblog.com/
http://www.kansascitywhistleblowerlawyerblog.com/index.xml
Discusses whistleblower news, cases and related matters, reports in Kansas. Published by Brady & Associates

Los Angeles Probate and Trust Lawyer Blog
http://www.losangelesprobateandtrustlawyer.com/
http://www.losangelesprobateandtrustlawyer.com/index.xml
Discusses probate news, cases and other related matters in California. Published by Law Offices of Jan Morrison.