Law Librarian Blog

PACER Users Training Site

Hat tip to Deborah K. Hackerson, Law Librarian & Legal Research Adjunct, Univ. of St. Thomas School of Law, for her FYI Legal Skills Prof Blog post about PACER's training site. Do note that according to Nota Bene's Nov. 13, 2011 post, authored by law librarians at Houston Law's O'Quinn Law Library, the site leaves something to be desired:

[N]ot all database content is available in the training site. Currently it includes information and documents from real cases filed in the Western District of New York between 1/1/2007 and 7/1/2007.

[JH]

Thomson Reuters CEO Tom Glocer is Out, COO Jim Smith to Replace Him; What's Next?

Yesterday, TRI reported in a press release, Thomson Reuters Announces New Organizational Structure and Leadership, the Company's latest shake up in its executive suites:

On December 31, 2011, Thomas H. Glocer, chief executive officer of Thomson Reuters and Reuters Group PLC since 2001, will retire and be succeeded on January 1, 2012 by James C. Smith, currently chief operating officer of Thomson Reuters. Mr. Glocer will also retire as a director of Thomson Reuters on December 31, 2011.

Remember, back in September 2011 after another corporate reorg was announced, Glocer did say it may result in some layoffs, though any cutbacks would affect "chiefs, not Indians in front of customers." See Thomson Reuters in Turmoil: Danger Alert, It's Time for "Chiefs" to Duck and Cover.

Succession Has Been in the Works. Due note that yesterday's press release quotes David Thomson about this transition:

“Working with Tom Glocer, the board oversaw the successful execution of an established succession plan in the second half of 2011 and we look forward to beginning the new year with a new management team, new organizational structure, and ever stronger commitment to deliver long-term, sustainable value for all shareholders.”

Well, like that wasn't already obvious to industry observers. Don't know the terms of Glocer's  golden parachute that had to be part of the "succession plan" at Glocer's early retirement age of 52 (DOB: October  8.1959). At 59 (DOB: October 11, 1952) I want to retire now. The Blog Widow says "no." I think my mistake was paying attention to details, speaking my mind, and refusing to kiss employer ass. Don't like my professional opinion, fire me. But as far as I'm concerned my employers have paid me for my professional assessment, even if they don't like what they hear. My bad; no golden parachute for me. At least I don't own any TRI stock.

Ah well, perhaps Tom will have the time now to take up my long standing offer to talk while sharing a pitcher or two of beer at the location of his choosing. I'm thinking he can still pick up the bar tab.

Jim Smith as CEO. Again quoting David Thomson:

“Jim Smith will provide strong leadership for Thomson Reuters at this juncture. He has earned the respect and confidence of his colleagues and the board alike. His instincts and his customer focus have been the basis of a remarkable career in our business.”

WIth Jim Smith in charge, the new corporate line up is:

• Financial & Risk: David Craig, president
• Legal: Mike Suchsland, president
• Intellectual Property & Science: Chris Kibarian, president
• Tax & Accounting: Brian Peccarelli, president
• Global Growth Organization: Shanker Ramamurthy, president

paidContent's Ingrid Lunden and David Kaplan wonder about what's next at Thomson Reuters:

The move leaves a big question mark over whether this will finally put an end to the chops and changes at the company to set it on a more even keel, or whether there will be more to come.

Will It Be "good to be Jim"? Thomson Reuters need a complete corporate culture transformation. That's one very difficult task which requires strong leadership. Matthew Bender achieved it, many, many years ago. Remember, MB was the vendor institutional buyers hated to conduct business with for very justifiable reasons. Now that distinction goes to TR Legal for equally justifiable reasons. 

MB's cultural transformation was a matter of survival. However, I have no idea if corporate cultural transformation is even on Smith's agenda. As for TR's survival, no one expects the Company to go belly-up, but there remains plenty of downside risk.

What's Next? If David Thomson is serious about "deliver[ing] long-term, sustainable value for all shareholders,” he better not be setting his sights on pre-2008 recession corporate financial metrics as the target for near-term or even longer term objectives. As the largest media company of its kind in the market sectors TRI plays in, there really is only one direction, down, down and down, unless TRI makes substantial changes to retain and acquire customers. 

Hello customers,

We screwed up big time but we are willing to correct our past mistakes by making concessions now. We know you don't trust us and we recognize we deserve your distrust because of how we have been conducting business.

We will work damn hard to gain your trust. We know this will be a long and winding road for our company but we are committed to reaching the ultimate destination -- reasonable pricing and accomodating each and every individual customer's need based on what you want and your fiscal circumstances in these trying times.

Cross out what you don't want in our boilerplate take-it-or-leave-it contracts. Replace it with what you need and we will work damn hard to accomodate you to retain you as a now valued customer.

"Trusted resources from Thomson Reuters" will be replaced as our tag line with "Trusting our consumers to know what they want from Thomson Reuters."

David Thomson

cc: Jim Smith

The most sustainable way to enhance shareholder value long-term is to change Thomson Reuters' culture from executive suites all the way down to account and in-house sales reps (who would welcome it) while reducing pricing to something the marketplace will find reasonable and introducing flexiblity in addressing customer needs.  (NB the shareholder stake the Thomson family holds.) I've got some concerns about Jim Smith's "instincts and his customer focus" on that score.

For the sake of hard working TR employees, let's give Thomson Reuters the benefit of the doubt for now. Perhaps we will see a noticeable transformation in how TR conducts business... . Wait 'n see. [JH]

Friday Fun: Going Green by Repurposing Legal Reporter Volumes into Book Flasks

The Bender Books folks have "come up with a new twist on the book flask.  Rather than mass-produce fake books, or concentrate on the classics, we want to take professional and reference books like legal reporters, medical books, cook books, dictionaries, even parenting books, and repurpose them to conceal Italian glass flasks." To kick start this Brooklyn-based project Bender Books is seeking $3,000 in seed capital for their Booze Books product line. Check out their video promo. Imagine the vendor swag opportunities!

The folks write "Books are expensive, even used books.  One Federal Reporter costs $25.   Cook books and medical books aren't much cheaper. We are hoping to eventually buy books in bulk to keep the costs down, but for now we make do with the quantities we can afford." I guess they don't realize that they can get all the law reporters they want from libraries free of charge in the Shed West Era. [JH]

Plaintiff Required to Provide Facebook Login Information as Part of Discovery in Personal Injury Case

In a case involving compensation for injuries caused in a car accident, the defendant has been granted permission to access the plaintiff's Facebook account for discovery. The court has order the plaintiff to hand over her login information to the defendant to seach for lifestyle evidence on Facebook -- messages, photos, etc. -- that would contradict plantiff's claims about the severity of her injuries and their long-term effects.

Two snips from Largent v. Reed (Pa. Common Pleas Nov. 8, 2011):

The Court holds that no general privacy privilege protects Jennifer Largent’s Facebook material from discovery. No court has recognized such privilege, and neither will we. By definition, there can be little privacy on a social networking website. Facebook’s foremost purpose is to "help you connect and share with the people in your life." That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.

...

We further note that, in filing a lawsuit seeking monetary damages, Largent has placed her health at issue, which vitiates certain privacy interests. Any posts on Facebook that concern Largent’ s health, mental or physical, are discoverable, and any privilege concerning such information is waived.

About the ruling, Orin Kerr writes:

While it’s true that neither the plaintiff nor the defendant are regulated entities under the [Stored Communications Act, "SCA"], Facebook clearly is. Facebook is an ECS provider in some ways and an RCS provider in other ways. As a result, the privacy of Facebook communications are protected by 18 U.S.C. 2701 of the Stored Communications Act, which protects ECS providers, in addition to 18 U.S.C. 1030, the Computer Fraud and Abuse Act, which protects all computers generally. Both of these statutes prohibit accessing electronic accounts without authorization or in excess of authorizaton. So while ordering the plaintiff to disclose her password to the defendant doesn’t itself violate the SCA or the CFAA, it’s at least an open question whether the defendant’s future act of accessing the plaintiff’s account might violate those statutes.

For much more, see Kerr's The Volokh Conspiracy post. [JH]

Final Exam Study Aid: CALI Lessons Indexed by Casebook

A quick study tip for studying for finals by way of Sarah Glassmeyer's CALI Spotlight post. Check out CALI's lessons by casebook page. Could be very useful for students because they can locate which lessons go with their class notes based on the casebook used in their courses. [JH]

Opening: Director, University of South Dakota Law Library

The University of South Dakota’s School of Law is seeking candidates to fill a full-time, 12 month position for Director of the McKusick Law Library on July 22, 2012.  The Director reports directly to the Dean of USD’s School of Law and responsible for management of all aspects of the McKusick Law Library. 

The Library is an essential resource for the education of students, scholarship of faculty, service to the State of South Dakota, and the legal profession.  The duties of the Director include managing the Library's daily activities, strategic planning, collection development, budget development and administration, and leading the Library staff. In consultation with the Dean, the Director determines and administers Library policies and programs to accomplish the Law Library's mission of educating Law School students and supporting Law School faculty in their teaching, scholarship, and service. The Director is responsible for the teaching of first year legal research in cooperation with the Director of the Fundamental Legal Skills Program. 

Within the limitations of funding and staffing, the Director also develops and administers services for the practicing bar and judiciary, the University community, and the public. While the Law Library operates as a unit of the School of Law in all respects, the Director is expected to work collaboratively with the University's Dean of Libraries and other University administrators, faculty, and staff. The Director is expected to manage the Law Library in a manner that fulfills the American Bar Association's accreditation standard that requires the Law Library to be an "active and responsive force in the educational life of the law school."

Applicants must hold a JD degree from a law school approved by the American Bar Association (ABA) and MLS degree (or equivalent) from a program accredited by the American Library Association (ALA) for full time, permanent position.

Applications must be submitted through the Board of Regents electronic employment site: https://yourfuture.sdbor.edu/. Include on the website: application letter, vita, and names and addresses of three current references. Inquiries about use of the website may be directed to Robert Noonan, School of Law, University of South Dakota, 414 East Clark Street, Vermillion, SD 57069; email bob.noonan(at)usd.edu; telephone 605-677-6361. 

Review of applications will begin January 15, 2012, and continue until the position is filled. Nominations, preliminary expressions of interest or questions may be directed to Thomas Earl Geu, Professor and Interim Dean at the same mailing address; email: Thomas.Geu(at)usd.edu

The University of South Dakota is an equal opportunity, affirmative action employer committed to increasing the diversity of its faculty, staff, and students. Enrolled members of Native nations, women, and members of minority groups, as well as others, who might contribute to the diversity of the faculty, are encouraged to apply.

More Details On Your Phone Is Spying On You

The news on Carrier IQ software embedded in smart phones seems to be heating up.  Carriers are starting to talk, a little, and Congress is taking notice.  Senator Al Franken is asking pointed questions the company no doubt will not want to answer in any more detail than necessary:

            I ask that you provide answers to the following questions by December 14, 2011. 

(1)                    Does Carrier IQ software log users’ location? 

(2)                    What other data does Carrier IQ software log? Does it log: 

    a.         The telephone numbers users dial?

    b.         The telephone numbers of individuals calling a user?

    c.         The contents of the text messages users receive?

    d.         The contents of the text messages users send?

    e.         The contents of the emails they receive?

    f.          The contents of the emails users send?

    g.         The URLs of the websites that users visit?

    h.         The contents of users’ online search queries?

    i.          The names or contact information from users’ address books?

    j.          Any other keystroke data? 

(3)                    What if any of this data is transmitted off of a users’ phone?  When?  In what form?   

(4)                    Is that data transmitted to Carrier IQ?  Is it transmitted to smartphone manufacturers, operating system providers, or carriers?  Is it transmitted to any other third parties?   

(5)                    If Carrier IQ receives this data, does it subsequently share it with third parties? With whom does it share this data?  What data is shared? 

(6)                    Will Carrier IQ allow users to stop any logging and transmission of this data? 

(7)                    How long does Carrier IQ store this data? 

(8)                    Has Carrier IQ disclosed this data to federal or state law enforcement?     

(9)                    How does Carrier IQ protect this data against hackers and other security threats? 

(10)                  Does Carrier IQ believe that its actions comply with the Electronic  Communications Privacy Act, including the federal wiretap  statute (18 U.S.C. § 2511 et seq.), the pen register statute (18 USC § 3121 et seq.), and the Stored Communications Act (18 U.S.C. § 2701 et seq.)? 

(11)                  Does Carrier IQ believe that its actions comply with the Computer Fraud and Abuse Act (18 U.S.C. § 1030)?  Why? 

I appreciate your prompt attention to this matter.

Senator Franken and other members of Congress may want to ask similar questions to carriers as to what information they collect and what they do with it.  As of now, any statements made so far point to user licensing agreements in accepting the phone.  Look there, the phone companies say.  We comply with that, and since our customers agreed to terms by using our phones and network, well, what’s the problem?  Maybe they haven’t said that in exactly these words, but reports are coming out suggesting that is the essence of the response.  Computerworld has a story where it asked each major company for comment.  Let’s summarize what Computerworld found:

• AT&T admitted using the software, declined to say which phones had it, pointed to privacy policies and would state nothing further, probably on advice of counsel.
• Sprint says it collects information to understand the user experience but does not and cannot look at content.  The “cannot” is not defined as a matter of law or capability.  Just because we can doesn’t mean we will.
• Verizon, RIM, and Nokia say they do not use Carrier ID software, contrary to initial reports.  
• Apple is another matter.  There are reports that the software is there, but limited and turn-offable.  If I had to guess, it’s more likely an AT&T move than something Apple would insist upon, and that’s based on the track record of the two companies.  But again, who knows.  As they used to say on the X-Files, the truth is out there.  
• HTC and Samsung confirmed that they use the software.

I can understand carriers needing to diagnose their networks, possibly with a client on each phone to help.  That makes some business sense.  Microsoft does it with Windows error reports, though if anyone had noticed, they leave it to the customer/user to enable/decide whether a report is transmitted back to Redmond.  Does AT&T et al. really need every phone forcibly enabled for network diagnostics to be effective?  I’ll just note in passing that if any company’s cell and data network needs help, it is good old AT&T, which may explain why that company is so hot on the idea of Carrier IQ software.  I speak from personal experience as an AT&T customer.  I’ll also note that Verizon runs a large nationwide network successfully without Carrier IQ.  What do they use?

But let’s come back to Senator Franken’s questions for a moment.  I, for one, would very much like to know if any data has been shared with third parties and law enforcement.  I’m not suggesting that law enforcement isn’t entitled to investigatory information.  If we are wrangling over whether agents need a warrant to track cars 24/7 or gather cell phone tracking information via triangulation of tower data, then all of a sudden this treasure trove of tracking/information gets even more interesting in light of the Fourth Amendment.

Senator, don’t limit your questions to Carrier IQ.  Ask their customers how they use the software, without allowing them to hide behind terms of service.  And it’s worth asking, I suppose, what else is lurking in our phones?  Any chance for a hearing?  I understand it's a crime to lie to Congress when under oath.  

Update:  As I read Joe's post below, Lawyers and Firm C-Level Types Oftentimes are No Smarter Than the Ordinary Consumer: The Case of Mobile Phone Monitoring, I'll just remind everyone that the problem goes beyond lawyers.  Federal law places certain non-disclosure obligations on student data maintained by schools.  Anyone sending or reviewing senstive or confidential information protected by law needs to be concerned about the security of their phones.  At least until it comes to this.  Then it's really time to give up.  

Update 2:  CNET has published an article that contains more information about carrier responses to inquiries.  AT&T, for example, stands by its privacy policies in the way that it uses the software.  HTC stated it uses the software at carrier request and suggests contacting them for more information.  Apple released a statement saying that they don't collect user data without an opt in and does not include it in iOS5.  Future updates to iOS will remove the software from earlier versions.  Carrier IQ (the company) has denied the wholesale collection of data as demonstrated earlier by researcher Trevor Eckhart.  The CNET story contains mention of security researcher Dan Rosenberg having reverse-engineered Carrier IQ and his analysis shows that the company is telling the truth about its software.  He says there is no code that collects keystrokes for data collection purposes.  As nice as it is to be provocative about this software, there needs to be definitive, verifiable statements as to what this software does and does not do, statements that do not shift meaning depending on the context of who is making it.

The discovery of this software is disturbing, irrespective of the truth of what it does.  Did any of the parties using it wonder what would happen if it eventually got discovered?  Is corporate confusion the best response with some companies tersely admitting that they use it and others gleefully distancing themselves from the product?  I asked earlier what else is on these devices?  We rely on portable communication electronics too much to leave it as a matter of trust that what we do with them remains private when we want it to be private.  At least that's what this disclosure means to me.  Even if it turns out that Carrier IQ is benign, and the jury is still out on that, I'd rather know about it than not.  Do we need an incognito mode just for phone calls?  [MG]

Lawyers and Firm C-Level Types Oftentimes are No Smarter Than the Ordinary Consumer: The Case of Mobile Phone Monitoring

Yesterday LLB's Mark Giangrande reported on the hidden mobile phone montioring software provided by Carrier IQ that is installed in millions of mobile phones, including most modern Android, BlackBerry and Nokia phones. See Your Phone Is Spying On You But You Weren't Supposed To Notice. ("Doesn’t President Obama use a Blackberry? Maybe someone should tell him about this.")

Hat tip to Wired's Researcher’s Video Shows Secret Software on Millions of Phones Logging Everything for the link to the below YouTube video by Trevor Eckhart. Wired's David Kravets comments:

Cringe as the video shows the software logging each number as Eckhart fingers the dialer.

“Every button you press in the dialer before you call,” he says on the video, “it already gets sent off to the IQ application.”

From there, the data — including the content of  text messages — is sent to Carrier IQ’s servers, in secret.

By the way, it cannot be turned off without rooting the phone and replacing the operating system. And even if you stop paying for wireless service from your carrier and decide to just use Wi-Fi, your device still reports to Carrier IQ.

Apparently, even https queries are logged. 

On rethinc.k, Jason Wilson writes about this in the context of lawyers using Carrier IQ enabled mobile phones:

[I]f you are a lawyer using a “smart phone” you probably don’t know what kinds of contractual concessions you’ve made. In short, you’re an idiot. And thus the title of this post, which is you’re fucked.

Deride the luddites all you want, but they won’t be crying when you’re the first lawyer to find him or herself on the wrong side of a third-party subpoena because you were too lazy to read a 100-page EULA.  The shit this kid Eckhart says (and shows) he found scares the crap out of me, particularly when I think about some software program tracking my login/passwords for secured accounts. If you, as a lawyer, don’t see this as a problem for both yourself and your clients, then you’re a fucking idiot.

Wilson is referring to the below video. For more, see Wilson's Why lawyers are fucked post. [JH]

If Only Lawyers Really Were Ethically Obligated to Monitor the Accuracy of Online Legal Search Services and Required to Obtain Detailed Infomation about Vendors' Editor Qualifications and Search Algorithms

Carolyn Elefant is a well-respected attorney-blogger but in a recent post on a proposed new Comment to ABA Ethic Rule 5.3, I think she has over-reached to infinity and beyond in her interpretation. The proposed new comment reads in full:

[3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client.  Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.  When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.  The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law).  When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer.

Elefant take is:

Although proposed Rule 5.3 identifies cloud computing (i.e., an Internet-based service for storage of client information) as one example of computer-based services, by that same logic, computer-assisted legal research services like LEXIS, Westlaw, Fastcase, Casemaker and Google Scholar must necessarily be classified as “nonlawyer assistance” under the proposed rule as well.  Like cloud computing, computerized legal research services are delivered by providers who operate outside of the law firm. Moreover, computerized legal research services “assist the lawyer in rendering legal services to the client” far more extensively than cloud services, since legal research represents a core function of lawyering.

Because virtually every lawyer uses some form of computerized legal research service, the proposed changes to Model Rule 5.3 will have a far-reaching impact. Whereas previously, lawyers could simply  rely on representations of accuracy offered computerized legal research services like LEXIS and Westlaw,  under proposed Model Rule 5.3, all lawyers – from solos to senior partners at the nation’s largest firms – must take a more active role in monitoring and supervising the provision of these services to ensure that they comport with lawyers’ professional obligations.  Among other things, proposed Model Rule 5.3 will require lawyers to inquire about the extent to which these computerized legal research providers rely on support and assistance from lawyers trained in foreign jurisdictions (who are treated as “nonlawyers” for purposes of ethics rules) and to review the extent of training afforded to computerized research company staff. If a lawyer determines that the training provided to nonlawyer personnel who write headnotes or develop search algorithms are insufficient, Model Rule 5.3 obligates the lawyer to “communicate directions [to the nonlawyer] appropriate under the circumstances.

In addition to overseeing the competence and training of nonlawyer research providers and their staff under proposed Model Rule 5.3, lawyers must continuously asses the accuracy of search results generated. To this end, lawyers would be required to obtain from computerized research providers information about their search algorithms, frequency of updates to databases and reported errors in search results.

God I wish Elefant was right about the above implications becoming ethical obligations. They just aren't. For a more sensible and more narrow interpretation, see Ethics 20/20 and Outsourcing, by Andrew Perlman, chief reporter to the ABA Commission on Ethics 20/20  in response to Elefant's post.

Elefant adds, "lawyers must ensure that computerized research services protect the confidentiality of client data – which lawyers frequently divulge when they use computerized legal research tools." Ah, we used to identify clients by an internal billing-matter account numbering system.

What's more important, in my mind, is that vendors can use their logs to scrap content by practice area, even by institutional account, to create competitive intelligence reports as a subscription-based service or more general "white papers." Folks like WEXIS know better than to identify any individual firm's usage stats (I hope) but nothing is stopping them from mining that data for sanitized CI reports. [JH]

Pope Being Charged with Not Wearing Seat Belt While Traveling in Popemobile

And apparently evidence by way of YouTube videos can be offered. Works for me. You?

Lowering the Bar reports:

As a repeat offender, the suit claims, the defendant should face the maximum fine of 2,500 euros (or, presumably, an alternative currency if said euro no longer exists)."

Well, damn Martin Luther to hell. In the good old days, the Pope could have bribed offered to waive fees for granting all interested parties indulgences to vaporize this allegedly repeated moving violation.

Hey, my little county law library gets a portion of traffic fines. Considering the current collection problems our local courts are experiencing, I want our share. Oh, my bad, this happened in Germany. {JH]

Your Phone Is Spying On You But You Weren't Supposed To Notice

There are a number of reports in the technology press about software provided Carrier IQ to phone vendors that track what users are doing.  Phone companies and manufacturers have come under fire for tracking user locations in the name of better geo-location services, at least without notice and the ability to opt out (or in, depending on one’s moral view of tracking).  Malls have come under fire for using visitors’ cell phone signals to track customers’ traffic patterns.  Some have backed off on the practice due to an outcry raising privacy concerns.

The interesting thing about Carrier IQ software is that it is so embedded and hidden in phones that it can’t be turned off or manipulated by users without, essentially, destroying the phone.  One article in CNET describes the software as logging keystrokes, phone numbers, text messages, and other details and sending that information off to who knows where.  The company denies that its software inspects the content of electronic communications, but the researcher who discovered the software maintains evidence to the contrary.  Who knows how this will play out?  Senator Chuck Schumer doesn’t like mall tracking, but so far no legislator has asked pointed questions on phone snitching.  They must not use smart phones much, or more typically, Congress will make its phone exempt.  

Much of the discussion in the press has focused on Android phones, though there is evidence that phones made by Blackberry and Nokia use the software as well.  Doesn’t President Obama use a Blackberry?  Maybe someone should tell him about this.  Nokia, I might add, just bet the farm on Windows 8 phones by signing a deal with Microsoft to use the MS operating system somewhat exclusively on their phones.  There are reports that iPhones have Carrier IQ software as well.   The software is attractive to carriers as it can give them statistical information as to how their networks are used.  

It’s all positive until the ugly privacy issues come to the fore.  A company representative has stated that it is possible to see user content, but the company doesn’t look at it.  Perhaps that might change if there became a need to have a look.  Note also that smart phones are becoming the new credit cards.  Just think of the marketing possibilities in the connected world where phone transactions are viewable -- by someone.  And though I try not to be the paranoid type, I wonder what law enforcement and security agencies think about this capability.  

There is a more practical consideration to this mound of data.   How would Carrier IQ react when someone in a court case tries to subpoena the data they collected to show where someone was at a particular time, or what is the content of a message that may have been deleted.  I couldn’t have killed Colonel Mustard in the drawing room with the candlestick.  I was Facebooking across town at the time and I can prove it.  One of the comments to the CNET article suggested that phones are turning into personal black boxes.  It just may be coming to that, and the evidentiary possibilities are quite interesting when it comes to documenting personal activities.  It all comes down to who is in control of that documentation.  [MG]

Hello Congress, Want to Eliminate Wasteful Public Spending in the Legal Academy?

Why do we keep reading that new law schools are being launched when there is and has been for some time an oversupply of lawyers in the labor market? Because employment prospects look great based on fudged placement data? I don't think so. It is because there is an endless supply of federal loans for prospective students willing to gamble that they will be one of the lucky ones to get a job. If loan money were to dry up, the legal academy's tuition bubble would burst. In $53 Billion in New Law School Debt by 2020, Matt Leichter observes:

Knowing how anemic job growth has been for lawyers over the last few decades, it is clear that the federal government will waste a lot of money supporting the legal education system due to the impracticability of repayment under even 25-year repayment plans.

Matt Leichter is an attorney who knows how to crunch numbers. His Law School Tuition Bubble blog hasn't come under attack as a "law scam" blog by law profs. Perhaps that is because he is just beginning to receive national attention. Or perhaps it is because the legal academy doesn't want to call attention to his data out of concern that any Congressional hearings on placement stat gaming will lead to Congress eliminating government waste by pulling the rug out from under the legal academy's guaranteed revenue stream.

Some law profs have been criticizing one minor (read sideline) topic in Eric Segal's recent New York Times article, What They Don’t Teach Law Students: Lawyering, namely an estimate of the cost of legal scholarship. Segal was assisted by "law scam" blogger-prof and object of law prof blogosphere criticism Paul Campos to produce the guestimate. WIth respect to the cost estimate for legal scholarship, the criticizing is justified on the basis of fundamental labor economic analysis.

How Much Does Legal Scholarly Work Cost? No one really knows what academic legal scholarship costs. One would first have to define the unit of production. Is it a new idea that pops into a law prof's head. Is output going to be defined by a written work? Does the written work have to express something original? In the day in the life of a law prof, is scholarship also evident in courses taught: all courses, some, none, only new ones for their first "perfomance on stage"? Does minor tweaking of set piece lectures "performed" year after year after year count?

The traditional metric is unit labor costs. The basic forumla encompasses total compensation + cost of materials + cost of means of production/ unit of production. Even if we all agree that the unit of production is a law review article and assume that total compensation is reduced to salary and benefits for the time spent by the author (and his/her research assistant and library staff) to produce the article, costs for materials (let's just limit that to information resources) and means of production (let's just limit that to equipment and software to produce the article) have to be factored in.

Who Funds Legal Scholarly Work? I doubt law faculty really want to calculate the economic cost of legal scholarship on the campus shop floor or industrywide. Why? One source of the revenue funding legal scholarship is tuition. It sure as hell isn't the profits from the sale of goods produced. Hell, if a law prof earns anything from his publications, he gets to keep that money.

Clearly tuition is not the only source but tuition is the one virtual guaranteed revenue stream available. Tuition revenue might be shared with the law school's IHE but IHEs can and have made non-tuition-related budget cuts. Sure some criticize the irresponsiblity of law schools burdening students with heavy debts but few identify the source of debt funding; it is ultimately federal loan programs. Obviously calling attention to this is not something most in the legal academy want to do.

What If... . Congressional examination of the legal academy gaming placement data could eventually leads to curtailing the legal academy's federally financed revenue stream. Imagine the consequences if federal loan programs placed loaned money in escrow until law school grads obtained jobs requiring a JD? And if they did not within a specified period of time the law student did not have to repay the loan because the loan program would not pay the law school. The law school tuition bubble would burst. Unlike the Internet and housing bubbles, impact on the economy would be nil. No bailouts allowed. Welcome to the breadline... . Granted, some careers would be disrupted by my hunch is academic law librarians would find law library gigs one hellva lot sooner than most law profs.

Frankly, I believe the legal academy deserves this. Money talks and it is the only likely cure for the moral corruption evident in the administration of law schools. For example, to obtain loan funds held in escrow, admission practices would have to take into account applicant qualifications while being labor market sensitive which in all but perhaps the top 20 law schools. would be based on localized, not national labor market trends.

From this hypothetical point of view, take a look at Leichter's ranking of public and private law schools by debt revenue in 2010 at The Law School Debt Blob. These are not per capita stats because total dollar amounts matter when it comes to revenue streams. Note well, for once Thomas Cooley ranks in the top ten of something legitimately. In fact Thomas Cooley ranks first by "earning" more money than any other law school from student debt last year.

Leichter observes

The list of top 20 public law schools by graduate debt-revenue doesn't contain too many surprises, but for private law schools, it's an interesting mix of expensive, prestigious law schools and less expensive ones that have very large enrollments... .

For an contrary view on Tuition Debt Bubblenomics see James Surowiecki's Debt By Degrees (The New Yorker, Nov. 21, 2011). NB Surowiecki's case focuses on college student debt, not professional school student debt. It makes a difference. [JH]

Opening: Legal Research Librarian for Information Technology and Scholarly Communications, Berkeley Law

Legal Research Librarian for Information Technology and Scholarly Communications
Law Library at the University of California Berkeley, School of Law
Associate Librarian VI, $66,492 - Librarian IV, $91,140 (annual salary, 11 month basis)

Overview of Responsibilities: Under the general direction of, and reporting to, the Reference and Research Services Director, provide high-level, in-depth reference and research assistance in a dynamic and challenging environment to faculty, students, and other library users.

Working with the Law Library's web developer, the Legal Research Librarian for Information Technology and Scholarly Communication designs, develops, and implements technologically innovative services and applications and web-based access to information resources. Oversees and produces library web content and develops related best practices and procedures. The position monitors and investigates emerging technologies related to the delivery of library services and digital collections, and assists in the development and deployment of these new technologies. The position will develop research guides, instructional materials, and workshops and trainings for students, faculty, and library staff in the use of library electronic resources and tools.

Provides outreach and education on scholarly communication issues to the Law School community. Monitors and reports on current developments affecting scholarly publishing, particularly open access and institutional repositories. Provides leadership, expertise, direction, and planning for the Law Library's support of scholarly communication and the development of a robust institutional repository. Responsible for assessing faculty and student scholarly communication needs, and providing services to support digital scholarship and the production of digital content. Serves as an advocate for new forms and practices of scholarly communication. Develops educational opportunities for sharing information on scholarly communication, open access, and institutional repositories.

Librarians are also expected to participate in other aspects of Law School life that will further the mission of the Law Library and Law School. Participates in campus library and planning committees and task forces, and regional and national professional organizations.

Experience and Training:
 
Required: Graduate degree in librarianship from an ALA-accredited library school or equivalent.

Preferred: A JD from an ABA-accredited law school. Law library public service experience is highly desirable. Library training and experience must demonstrate an ongoing and active commitment to public service in a diverse environment. Candidates must have thorough knowledge of legal bibliography as well as a mastery of legal research sources in both print and electronic formats.

Demonstrated knowledge of scholarly publishing, new models for scholarly communication, and the associated technical, legal, and information policy issues. Proven knowledge and experience of institution-wide repositories and the ability to communicate their benefits. Expertise in the creation, dissemination, and use of digital information resources.

Familiarity with contemporary web standards such as HTML5, CSS3, JavaScript; familiarity with bibliographic markup standards such as MARC, Dublin Core, MODS/METS, RDF; awareness of current trends and developments in library and information technology; knowledge of integrated library systems. Experience with content management systems such as WordPress, Drupal, et al., and scripting languages such as PHP or Ruby is desirable.

Candidates must also have the ability to balance priorities and meet deadlines; a strong commitment to enhancing service through teamwork; and a proactive approach to library services. This requires the candidate to demonstrate excellent interpersonal, communication, and problem-solving skills.

The Law Library at the University of California, Berkeley, is committed to the support and encouragement of a multi-cultural environment and seeks candidates who can make positive contributions in a context of ethnic and cultural diversity.

Salary and Benefits: Salary is commensurate with training and experience. A description of UC benefits and compensation can be found at the University of California, Berkeley, Office of Human Resources website: http://hrweb.berkeley.edu.

To Apply: Applicants should apply via email including a cover letter discussing qualifications, a full resume of education and relevant experience, and three references to:

Michael Levy
Associate Director, Patron & Computer Services
LL1 62 - Berkeley Law Library
UC Berkeley
Berkeley, CA 94720
mlevy(at)law.berkeley.edu
510-643-4025

Applicants may also use the above email address and telephone number if they have inquiries about the position. The deadline for applications is December 21, 2011.

The University Of California is an Affirmative Action/Equal Opportunity Employer.

Bonuses And Pro Bono Work Down Somewhat At Big Firms

How bad is it getting for the legal-industrial complex?  The ripple effect of not enough jobs and clients balking at paying for new lawyer training now includes smaller end-of-year bonuses and a small decrease in pro bono hours.  The Wall Street Journal is reporting that major firm Cravath, Swaine & Moore LLP is keeping its bonuses at around 2010 levels, with the most senior associates taking around $37,500, and the most junior attorneys getting $7,500.  It’s shocking as the higher figure can only buy the entry level Lexus at best.  Seriously, though, that’s a drop of around 20% from 2007 figures when the markets collapsed.

Fortune is picking up on figures reported last June issued by the Pro Bono Institute and its Law Firm Pro Bono Challenge®, where major law firms contribute legal services to those who could not otherwise afford them.  The number of donated hours significantly increased between 2005 and 2009, ranging from 2.226 million hours to more than double at 4.868 million hours.  The number of reported pro bono hours in 2010 fell to 4.451 million.  Fortune cites a number of anecdotal reports from various large firms suggesting that while they still contribute significant hours, they need to concentrate on the paying customers.  The bright side, if one could call it that, is that new lawyers needing real world experience often find it in a firm’s pro bono work. [MG] 

Bloomberg v Thomson: Playing Risk for World Domination

In The Daily Beast article titled Bloomberg's Plan for World Domination, Nick Summers profiles media giant Bloomberg (the company) while observing that

It’s impossible to talk about the aspirations of Bloomberg the business without addressing Bloomberg the man: it is a company owned by a politician, buying companies that influence politicians.

Summers adds

Long averse to acquisitions, Bloomberg has also started buying up things it covets, like Businessweek magazine and, just this August, the legal-political research behemoth BNA. There is talk that the Financial Times might be its next meal.

And after spending $900 million to acquire BNA this year, it sounds like the Company's got plenty of cash on hand.

For 2010, revenue approached $7 billion. Comparisons to public companies are inexact, but the New York Times Co. reported $2.4 billion in revenue for 2010, and Thomson Reuters $13 billion. But while Reuters’s operating margin is 19.6 percent, and the Times Co.’s is about 10 percent, Fortune estimates Bloomberg’s to be an astonishing 30 percent.

Given that most of Bloomberg's revenue and its associated  estimated profit margin came from Bloomberg's online financial data and information services in 2010, one can understand why the Thomson family is kicking Thomson Reuters executive butt to ratchet up Markets performance. I'm thinking the Thomsons thought they would have an easy go at dominating the world. Risk is underway. Meet Bloomberg... . Here's where the Corporate just might get Personal in the world of family mega-fortunes. In this game of Risk, I would bet on Bloomberg winning.

It is clear that Reuters’ Eikon and Elektron platforms haven't been attracting as many financial services customers as TR hoped. "The Bloomberg" as the service is called in the financial industry continues to be a well-established platform. Bloomberg's move to extend its user population beyond its core financial markets clients by adding multimedia and social media features is a matter of concern for Reuters. Here's a thought ...  why not steal some talent to play this game of Risk.

Oh wait, TR did that recently. paidContent's David Kaplan reports that Dan Colarusso is leaving his post as managing editor of Bloomberg Television to join Reuters as the news service’s global head of programming. Colarusso will take over responsibility for Reuters Insider, a video on demand option for its subscribers. Ain't competition grand.

Playing Risk in the Professional Legal Services Marketplace. In the professional legal services product mixes of both TR Legal and Bloomberg, only one is competitively positioned to integrate multimedia content into its online service. Yup, that would be BLaw and BGov. But multimedia is only one facet in this game. Already positioned for the 21st century New Normal is much more fundamental.

What are the odds that TRI made an offer to acquire BNA during the bidding war with Bloomberg? I think the odds are very high. If so, what are the odds that BNA would accept any competitive offer from TRI? Considering TR Legal's track record of distroying the editorial quality of past legal publishing acquisitions, my hunch is the odds are slim to none. The Bloomberg offer presented a golden opportunity for BNA to participate in the New Normal of 21st century e-delivery of high quality legal content with a digital-first publisher not hampered by TR Legal's legacy of a 20th century business model. Sure BNA also had a similar legacy. However, the Company recognized that to be a 21st century player, it did not have the cash or credit line to make the transition. But Bloomberg did and did without the baggage of TR Legal's corporate reputation. Due note that Nick Summers' Bloomberg's Plan for World Domination discusses Bloomberg's acquisition of BNA in the context of the Company's overall strategy one can expect to be played out on the Board(room) table game known as Risk.

What are the odds that Bloomberg will make a bid for Lexis Legal and Professional? Since the launch of BLaw I've been asked that question by several European investment house analysts (usually after the question re what impact will BLaw have on WEXIS). Both questions were repeated after the BNA acquisition. My 2-cents response has been that it doesn't make a lot of sense in terms of acquiring online primary and secondary content. But the more I think about it, the more I think about the competitive advantage Lexis has over TR Legal in terms of productivity-workflow "solutions." Lexis has been much more software engineering focused than legal publishing focused vis-a-vis TR Legal for many years now.

I view "solutions" (some which integrate legal search) as the strategic objective of WEXIS. The hodge podge of various WEXIS offerings will be more integrated eventually in an attempt to offer one-vendor-will-fit-all (private sector)-needs as soon as you sign the licensing agreement. Lexis certainly has the executive suite and product development team talent but does Reed have the intestinal fortitude to make the capital investment required to take this next step?

Don't know. But I do know one thing. Bloomberg may. Bloomberg also does not have a competitive "solutions" line of product and services yet. If the Company intends to be a player by integrating "solutions" to become a more complete professional legal services vendor for its high-end business and law subscriber base, Bloomberg will have to make a choice -- create "solutions" internally (some of which can be organically enhanced  extensions of what BNA already offers) or acquire them. If the latter, Lexis Legal & Professional, or some part of Lexis Legal & Professional would be a logical target of acquisition. [JH]

Opening: Head of Access Services, Loyola University Chicago, Law Library

Loyola University Chicago is accepting applications for an experienced librarian to assume the position of Head of Access Services.  The Head oversees all aspects of access to the law library’s space and collections, both print and electronic.  To be considered, applicants must hold an MLS degree from an ALA accredited institution; at least five years of academic library experience; and at least two years of supervisory experience. 

Excerpts from the official job announcement (link provided below):

Duties and Responsibilities: The head of access services oversees all aspects of access to the law library's collections, both print and electronic. Those responsibilities include the circulation, reserve, interlibrary loan, and stacks maintenance functions as well as the law library's webpage. Members of the access services department are often the first contact patrons have with the law library. It is the responsibility of the head to establish and model a high level of patron service by ensuring that all staff are knowledgeable, courteous and helpful.

The head supervises a department of three full time paraprofessionals and approximately 12-15 part time student workers to complete the work of the department. In consultation with the director, the head sets departmental goals and priorities; oversees all hiring, training and management of staff; establishes departmental policies and procedures; monitors all departmental activities and adopts and adapts policies and procedures as appropriate.

Minimum Education or Experience: ALA accredited MLS; at least 5 years of academic library experience; at least two years of supervisory experience; excellent oral and written communication skills. Experience with ILLIAD and webpage development preferred.

For Complete Information and To Apply: https://www.careers.luc.edu/applicants/jsp/shared/frameset/Frameset.jsp?time=1322145442755

Loyola University is an equal opportunity educator/employer.  Women and minorities are
encouraged to apply.

Being There: From Existential Angst to Professional Optimism

While my Thanksgiving Day LLB post was full of existential angst about the future from a personal, that is to say non-professional, perspective, Jenny Wondrackek's RIPS Law Librarian  post offers a more positive professional perspective:

With all of the budget cuts, vendor price increases, library closings, and other depressing things that have happened this year, I thought that it would be appropriate to share some of the things in my professional life for which I am thankful.

See Wondracek's A Law Librarian’s Reasons To Be Thankful for details. All good reasons IMH professional opinion to push forward thoughtfully. [JH]

European Court of Justice Says No To Filtering Internet Traffic As A Response To Copyright Infringement

The European Court of Justice issued an opinion last week holding that it is a violation of EU law for member states to impose filtering requirements on ISPs.  The case came by way of a dispute between Belgian IP licensing company SABAM and ISP Scarlet Extended SA.  A lower court in Belgium found that copyright infringement was taking place over Scarlet’s network through its customers’ use of peer-to-peer software.  That court ordered Scarlet to filter out traffic containing SABAM’s unlicensed content.  Scarlet appealed to a higher court in Belgium which referred the case to the European Court of Justice.

The question before the ECJ as appealed by Scarlet is whether the imposition of a filtering requirement violates EU privacy, data protection, and human rights laws.  Apparently, it does, as the mechanism for identifying SABAM’s copyrighted content requires monitoring all content to make the distinction.  That would interfere with Scarlet’s business, and it would not respect the right to protection of personal data and the freedom to receive or impart information.

One statement from the Court’s opinion is likely to offend copyright holders everywhere:

43      The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.

Or putting it another way, yes, intellectual property is important, but we’re not going to destroy the Internet to protect it.  Aggrieved parties may sue intermediaries such as ISPs, but the remedies will not include the imposition of a filtering system.  The Viacoms of the world will not be happy with this one.  

Congress, in contrast, takes the opposite attitude, hence the PRO-IP Act and SOPA.  I suspect that the U.S. Government will put Europe on a watch list or such over this decision.  The ECJ judgment is here, and the press release accompanying the decision is here.  [MG]

Thank You LLMC. I Heart You!

Law journals seem to be taking the brunt of the space burden in the world of the shrinking library.  My impression is that many libraries are tossing them, though there are some old fashioned librarians like me who are philosophically opposed to throwing out our legal scholarship without a comprehensive preservation plan in place - even if many think those articles are useless or impractical.  From what I understand, the tossing libraries will depend on currently friendly commercial vendors like Hein Online, or the currency of SSRN.com, for future access.  It really isn't the fault of the librarians.  Tossing those titles is just the best of several bad choices that responsible librarians are being forced to make.

[Perplexing note:  Dean wants Library space for law professors' offices so that they have a place to write more law journal articles that will be published in law journals that their library will buy and then throw out, or may not purchase at all.]

So what is LLMC doing that I find so wonderful?  LLMC is saving the law journals.  More importantly, and quite selfishly, they are saving my (my as in the UH Law Library) law journals. And, in a very James Bond sort of operation, are storing them in a salt mine 5 miles under the mantle of what us terrestrials call Kansas.  Our journals will be neighbors to the Hollywood vault, financial institution 'stuff' and who knows what else people store in 50 foot salt bays that sit in a 42 acre underground storage facility made of NaCI.

I inherited this stroke of brilliance so I cannot take credit for it, but I will certainly benefit from it and so will you.

Right now, articles published from 1923 forward, are still in copyright.  They cannot legally be scanned by LLMC to be added to their digital collections.  But, they can take the paper copies and scan them year-by-year as they fall out of copyright (LIPA is responsible for the digital only journals that are now being produced by schools).  The staff at the UH Law Library is diligently boxing up hundreds of volumes and the boxes are pilng up all over our staff space waiting to be carted over to Kaneohe across the island.  Understandably, it is a slowish process but one to which we are all excited to contribute.  (Well, I am excited but I'm not so sure about the students who are doing the labor.)  And it frees me from having to make the hard decision about tossing legal scholarship produced by the academy, and hopefully, might make the decision a little less painful for others.

Along with taking over the stacks at the Richardson School of Law, comes a closer working relationship with LLMC.  Closer physically, and professionally.  I feel like we need to shed some PR on the good work this organization is doing with regard to preserving what many libraries are tossing in the dumpster - relying for one reason or another on commercial database vendors to replace print titles in favor of the latest space needs for the school.  After JH's post last week (see Right-sizing Academic Law Library Print Collections), which summarized some of the problems with the tossing policy, I wanted to remind all of us that there are groups out there, like LLMC, who are fulfilling a mission that has traditionally been part of research library operations.

Some other current digitization projects include:

• Court records for California, New York (joint Google project re:Records and Briefs series) and South Carolina
• Inner Temple Manuscripts (12th to 20th Century Inns of Court materials)
• LLMC Native American collection
• Haiti Legal Patrimony Project

Take a look at LLMC's most recent newsletter for more information about these projects.

So thank you LLMC Staff, Board of Directors and members of the Advisory Council for your vision and good work. (VS)

RIP Michigan Law's Wolverine Scholars Program

In 2008, Michigan Law established the "Wolverine Scholars" program which would admit Michigan undergrads into law school if they had a minimum 3.80 GPA. No LSAT required. One may say, no LSAT wanted. A fair amount of criticism was leveled at Michigan Law back then. See Paul Caron's LSAT-Free Law School Admissions Can Goose U.S. News Ranking ("The rankings benefit is that there is no LSAT score to report to U.S. News, while the minimum 3.80 GPA will boost Michigan’s median 3.64 GPA, which counts 10% in U.S. News’ methodology")

In Michigan's New Admissions Policy, Bill Henderson wrote

The lofty rhetoric of the Wolverine Scholar program cannot be squared with the unnecessarily rigid admissions criteria. In my opinion, the only rational explanation is that Michigan seeks a rankings payoff. Here, an elite law school sets a new low in our obsession of form over substances — once again, we legal educators are setting a poor example for our students….

The law prof blogosphere criticism didn't stop Michigan Law but the school now has killed the Wolverine Scholars program. ATL's Elie Mystal wonders if it has anything to do with the recent Univ. of Illinois College of Law admissions scandal. For more, see The Life and Death of the Michigan ‘Wolverine Scholars’ Program. [JH]