Law Librarian Blog

First Open-Source Tax eCasebook (well, first chapter to one)

Texas Tech law prof Michael Hatfield has created the first eLangdell-hosted open source tax casebook, The Ethics of Tax Lawyering. Hat tip to TaxProf Blog. [JH]

GAO Critical on NARA Digitization Efforts

Whenever the GAO focuses on the National Archives and its efforts to digitize government records, it's always bad news.  Today's news doesn't change that track record.  The Washington Post is reporting that the GAO will release another report some time today predicting that the cost of the still-in-development system has gone from the original $317 million to $1.4 billion and could go much higher.  The draft report obtained by the Post criticizes the Archive for lack of project oversight which caused failure at identifying problems with the system early on. 

The article notes that even when the system goes live it will be a lot less than advertised.  Users will be able to search a database that brings up listings for documents but will not be able to retrieve the actual documents themselves.  The Archivist of the United States, David S. Ferriero said the project costs are not that large when the cost of project management, planning, and research are not included.  That narrow view of how the agency accounts for the project money may prove a bit unpopular with the current Congress looking to cut the federal budget as much as possible.  It seems odd that an agency entrusted with managing the essential documents of the nation is having so much trouble getting a handle on digitally produced documents.  Sure, the government produces hundreds of millions of documents that need to be preserved, but if the Archive can't handle it, who can?

My obvious choice is for the Archive to start working with other government preservationists such as those in the Library of Congress.  It should consider public-private partnerships with companies who are well capitalized and specialized in indexing.  I'm thinking Google, but other techonology companies such as Microsoft, Oracle, Xerox have expertise in document preservation.  Google gets a lot of criticism for the quality of their scans, but I would think that they could cost out better quality for a custom project.  It seems that the system currently being developed will pack a lot less bang for an exceeding large amount of bucks.  It's really too bad as it calls into question the expertise at the National Archives. 

Update:  The report wasn't up when I wrote the post.  It is now, and accessible here.  [MG]

Friday Fun: Law School Is Sooo Easy!

No law books were harmed in the production of this video. [JH]

Researching Bush and Obama Presidential Signing Statements

Check out Joyce Green's Presidential Signing Statements which identifies all signing statements from 2001 through President Obama's most recent signing statement on the defense spending bill. The site also lists all statutes subjected to presidential signing statements and offers an informative FAQ. Law profs Neil Kinkopf (Georgia State) and Peter Shane (OSU) have published their updated and now complete compilation of Bush signing statements on SSRN. See Signed Under Protest: A Database of Presidential Signing Statements, 2001-2009 (Version 2.0).

Hat tip to Steven Schwinn's (John Marshall Law School (Chicago)) Constitutuional Law Prof Blog post for calling attention to both resources. See Schwinn's post for commentary: "These signing statements do more than merely object to particular provisions in legislation signed by the President; they also state the President's intention not to enforce or comply with those provisions." [JH]

Is the University of New Hampshire a Better Law School Than Franklin Pierce?

According to the results of Gordon Smith's crowdsourced survey of law schools which asked "In your judgment, which of the following is the better law school?," the answer is "yes." In his recent Leiter Law School Reports blog post, Dan Filler has the following comments:

Perhaps the single most important thing it teaches us is: brand matters.  We all believed this already.  But either accidentally or intentionally, Gordon tested this theory with his new rankings by including one law school under two names: Franklin Pierce and the University of New Hampshire.  The two schools partnered this year and as of this past fall, the Pierce name was replaced by UNH.  So which school does the crowd think superior?  No surprise, State U fared far better than Franklin Pierce.  UNH scored a 43; Pierce a 33.  UNH jumped 20 spots in the reputation rankings simply by changing its name.

[JH]

Opening: Associate Dean for Information Resources and Director of the Law Library, FIU Law

Florida International University College of Law invites applications for the position of Associate Dean for Information Resources, with primary responsibilities for heading the Law Library.  The Associate Dean will report directly to the Dean of the College of Law, who is committed to building and supporting an active and responsive law library.

Applicants should have experience in the development of legal collections, the management of the full range of legal information resources, and the hiring and supervision of professional, technical, and support staff.  The Associate Dean plays an advisory and instructional role in the legal research curriculum of the College of Law and, depending upon qualifications and preferences, in our other curricular offerings.

Candidates should hold both a Juris Doctor and a degree in Library/Information Science.  The Associate Dean for Information Resources is a member of the faculty and administration of the College of Law. Position may be long-term contract or tenure-earning in the library, subject to discussion.  The Associate Dean will shape the College of Law’s Internet presence, work closely with the law school’s and the university’s technology directors to implement research and instructional technology within the law library, and collaborate with other administrators within the university on crafting research and instructional technology strategy for the law school and the university.  
 
About the Law Library. The law library maintains extensive collections of domestic and foreign legal materials, including rare and valuable Latin American and Caribbean law texts and treatises.  In the past, the law librarians have participated actively in teaching legal research and methods to law students.  The library also supports the College of Law’s clinical and community service missions by making acquisitions and providing reference services.  The staff of the law library includes six professional librarians (one position currently vacant) and at least six reference and technical services staff members.
 
About FIU College of Law. As a vital part of Miami's only public research university, FIU College of Law is a dynamic urban law school with approximately 600 students. The College of Law was established in 2000, enrolled its first class in 2002, and currently has 30 full-time faculty members. In the spring of 2007, the FIU College of Law moved into a new state-of-the-art building at the heart of the main university campus. Over the past two years, our FIU on-campus community has been enriched through the addition of a new medical school and the construction of the Frost Art Museum.  FIU is one of the 25 largest universities in the United States, with a student body of more than 42,000. 

Application Procedure. Applicants interested in joining the FIU College of Law faculty as Associate Dean for Information Resources should send a cover letter expressing interest and a resume to:

Professor Howard Wasserman
Chair, Appointments Committee
Florida International University
College of Law
11200 S.W. 8th Street
Miami, FL 33199
 
You may also send application materials electronically via email: wasserma(at)fiu.edu

FIU is a member of the State University System of Florida and is an Equal Opportunity, Equal Access Affirmative Action Employer.

Apple Wants Cash For Sales Made Through iOS Mobile Apps

Apple's latest move ought to shake up the online retailing world.  It rejected a Sony e-reader app for the iPhone because it did not allow for in-app sales of content, which would would have to go through Apple giving it 30% of the sale.  The same developer rules Apple is enforcing should significantly affect Amazon with their Kindle apps for the iPhone and the iPad.  Amazon sells content directly to buyers who can read it on an Apple device.  The question is whether Amazon will abandon Apple's platform,pay up, or do something else.

The implication is that anyone who wants to allow access to paid digital content on iOS via a mobile app will have to use Apple's store to sell it.  Apple has found a unique way to leverage its customer base beyond advertising to them.  The Internet Retailer asks whether Apple will enforce the rule to other types of items and transactions.  There's eBay, for example,  Would listings bought and sold through mobile apps be subject to Apple's tax?  The answer is eBay could limit their transactions to the mobile browser.  It's less convenient for the consumer but it would be friendlier to eBay's bottom line.  

Marketers such as Amazon have a bigger problem.  They deliver their content/product to their customers via a customized iOS mobile app.  Sending that delivery to the browser may be more problematic than simply paying the toll.  The mobile app, after all, keeps all the usage restrictions available on a physical Kindle in place   I suppose it all depends on how large the amount of Apple users that purchase from Amazon.  I would suspect a lot.  How Amazon ultimately reacts will be interesting.

The biggest question I have is how this will affect materials costs for schools and libraries that adopt iOS devices as delivery systems for content.  Will this have any affect on the development and and costs of electronic textbooks.  The idea was to keep costs low by cutting out the physical production costs with at least some of the savings heading to consumers.  Competition, in theory, keeps prices lower than they would otherwise be.  This seems more like raising costs just because it's possible.  Apple's got good competition in the smart phone market but has the pad market pretty much to itself.  That should change when more Android powered models hit the shelves.  Apple will always have the cool factor that guarantees a significant customer base.  Some potential Apple customers might be attracted to those other platforms if marketers can pass on their higher costs generated by Apple.   

I wonder if this concept could spread.  Facebook has half a billion users.  I wonder if it has the clout to demand a cut in sales generated through its referrals beyond what it is already getting for placing the ad.  I guess this is what happens when a company gets large enough that its customers are its inventory.  [MG]

Indoctrination in the New Normal of WEXIS Legal Professional Services Business Model Must Start with Law School Students: The Case of LMO Marketing in the Legal Academy

When I first heard about Lexis for Microsoft Office (LMO), my initial reaction was OMG, what a waste of product development time. But my Lexis rep slapped some sense into me so I took a closer look (Thanks Wendy). I came to the realization that some of the premium features of LMO offer knowledge management capabilities many non-BigLaw firms cannot afford to create on their own. LMO still requires a commitment of in-house tech support time (and meeting tech spec requirements) but it may offer KM benefits to smaller firms, public agencies and state courts. Some are finding this to be the case.

However, I think we all know the best way to increase the adoption rate is to indoctrinate law school stduents. Here is where Lexis is clearly missing the mark. Lexis is pitching LMO to law profs. One local law prof asked me to guess the over-under for attendance at an LMO demo at his school. Interest was zero. Not a surprise.

If WEXIS wants to increase the adoption rate of its productivity apps, with or without online search tie-ins, it must make them available free of charge to law school students. LMO has many functions law students may find useful even if their profs don't. Then as law school grads filter into the real world, they will be receptive. Of course they won't have a clue about costs but then they don't have a clue about what very expensive online search costs either.

Indoctrination of law school students is a tried and true marketing tactic. With the hue and cry about teaching legal skills in the legal academy, WEXIS is missing a golden opportunity to pitch its legal professional services business products under the 21st century's new normal. [JH]

The Saga of the AALL Price Index Continues: Task Force appointed to investigate if the Price Index is needed and is a value to AALL members

You remember AALL's Price Index, right? Well, perhaps only some old-timers do. Once upon a time it provided a useful measure of annual print supplement costs across the vendor spectrum. Then Thomson Reuters proved it really, really wanted to be a "partner" with the law library community by refusing to contribute data. Then is one of those rare instances of AALL demonstrating it had something resembling a spine, our professional organization quietly banned TR Legal from sponsoring our annual meetings because of our “partner’s” refusal. Actually, the Company’s rationalization for taking its course of action was because TR Legal really was our “partner” but only at the individual institutional buyer level. Quoting from the Company's official statement as published in LLB’s July 2009 post, Message from West on AALL Sponsorship Policy:

It’s true that AALL is not accepting sponsorship dollars from West for 2008-2009 because West does not participate in the Price Index for Legal Publications.  It has been West’s position for many years that the retail pricing model laid out by the Price Index for Legal Publications does not accurately reflect the prices our customers typically pay. Our retail prices are easily and clearly available on the West Web site. However, we work closely with our customers to give them the information and flexibility they require to best plan their budgets and collections, and so we approach pricing on an account-by-account basis – which, by the way, is not uncommon in the industry. Our view is that whether an index is produced by a private publisher or trade association, more often it serves to confuse than clarify.

Few, if any, invoice-paying law librarians bought that corporate-speak from the Land of 10,000 Invoices. In his July 9,2010 LLB post, West and AALL Price Index, about this situation, Ken Svengalis, someone who has seen an invoice or two, wrote:

The AALL board’s decision to refuse West sponsorship of the Annual Meeting was a salutary development after many years of dithering. But now, it is faced with confronting the same issue all over again. On the eve of the Annual Meeting, it is hoped that it will give this subject the attention it deserves and demand West’s genuine, not feigned, cooperation. Over the years, West has insinuated itself into the sponsorship of dozens of Annual Meeting luncheons, SIS functions, and parties which are simply extensions of their marketing efforts. Until they come across with the supplementation cost data, however, these are all meaningless exercises that fail to address our most pressing concern.

Unfortunately the Price Index saga continued on. TR Legal agreed to provide pricing data for the 2009 Price Index. Fall-out from the publicity? Consequence of the Shed West Era? The Company was back in AALL’s good graces and was a sponsor for Denver, albeit TR Legal was too damn cheap to ante up the $75,000.01 to be a "gold sponsor." Hey, I would have contributed a shiny new penny if needed by the Company. Loop back up to Ken's comment about TR Legal sponsorship of the parallel universe the Company creates at AALL annual meetings. Of course, LexisNexis executes the same for marketing purposes, too.

Then in a moment of either utter AALL incompetence or off-the-wall "to infinity and beyond" naiveté, the Price Index Committee "discovered" it had not asked specifically for print continuation pricing when it reviewed vendor submitted data for the 2009 Price Index. Of course the Committee did not come right out and say that it failed to ask for this data (but one very knowledgeable and reputable vendor rep did to me in person over coffee in Denver; for a nanosecond I thought "no way" but after a sip of coffee I realized "of course" because we were talking about AALL). Here's what the Price Index Committee said about all this in its official introduction to the 2009 Price Index:

Thomson Reuters agreed to supply prices for the 2009 Price Index. They supplied list prices for new sets for the years 2005 -2009. Historically, prices within the Price Index have been for supplementation. After Thomson Reuters submitted new set prices, the [Price Index for Legal Publications Committee] Chair looked more closely at other publishers' prices within the Price Index. It appears that other publishers have also supplied new set pricing between the years 2005 and 2008. To clarify what is the proper pricing for publishers to supply, the 2010-11 Committee is drafting a set of written pricing standards. These standards will be sent to publishers in advance of their agreement to participate in the Price Index. The written standards will articulate the specific type of price that must be provided for each material type in the index.

(Emphasis added.)

Oops, vendors provided the data AALL asked for. Nothing more, nothing less. Meaning the 2009 Price Index isn't worth the paper one might use to print it out. Imagine the chuckles during vendor meetings upon receipt of the data request. Of course, who knows if one of the vendors called anyone in the walled garden of official AALL-land to ask "don't you want print sup costs anymore?" But imagine when this somewhat notorious TR Legal “bashing” blogger decided it was time to come to the Company’s defense in the sidebar to this post. That post includes more from the text of the 2009 Price Index Introduction. Due note well the frequent references to TR Legal and its supplied data while AALL glossed over its own omission to ask for print continuation pricing.

Transparency? Accountability? One has to dig a little deeper than time permits for most law librarians to find out what the hell our professional association is doing or not doing, saying or intentionally trying not to say explicitly. Even some hard working law librarians tasked with reviewing vendor submitted price index data for compiling the 2009 Price Index didn’t know what AALL asked for. When our association is this screwed up, is there any reason why the vendor community should take anything AALL does, beyond asking for ad revenue dollars, seriously. See Michael Ginsborg's Spectrum article, Ending our conflicts of interest to protect consumers of legal publication, and this LLB post, Professional Ethics Trumps AALL Acceptance of Vendor Cash Until the Status Quo is Changed.

And the sage continues: AALL Price Index Review Task Force appointed. In case you missed the December 2010 AALL E-Newsletter announcement because you were heading off for vacation as the holidays approached, our association's executive board has appointed a task force to review the Price Index:

The purpose of the task force is to review the index and recommend to the Executive Board any necessary changes to the publication. The task force will investigate all aspects of the index including its value to members. The task force has been asked to submit a final report and recommendations for the July 2011 Executive Board meeting.

Anyone recall a public announcement asking for volunteers to serve? While the e-newsletter announcement is accurate in its gloss-over of what this latest task force will do, the official charge is more specific:

The Task Force will investigate all aspects of the AALL Price Index for Legal Publications. This review shall include, but not be limited to:

• Investigating if the need for the Price Index still exists and is a value to AALL members;
• If the Price Index is of value to members, should it be produced differently;
• How could the work of the committee be more equitably distributed;
• If AALL should partner with another organization or individual to produce the Price Index.

Well, we know what value the Price Index had been when all major vendors were not contributing annual print supplement cost data. Thanks to AALL's boner last year, we certainly know what value the Price Index has when all major vendors contribute data but AALL fails to ask for annual print supplement cost data.

Oh well, AALL’s Price Index Task Force includes some old-timers who may remember what the Price Index once was. The Task Force also includes the current and past chairs of the Price Index Committee under whose combined watchfulness produced the fiasco that is the 2009 Price Index. But institutional buyer representatives -- that's what we are folks -- sleep easy. Have no fear. Rest assured because both the former and current AALL vendor liaisons are also members of the Price Index Task Force. Of course, no current member of CRIV is on the Task Force. 

Soliciting Comments from Others. The "Task Force may solicit comments from members, the SISs or other entities as warranted." "As warranted," mind you. "Other entities;" let's see.

1. The Price Index Task Force "shall prepare a preliminary report for the Spring 2011 Executive Board meeting." That meeting will take place from Thursday, March 24, 2011 to Saturday, March 26, 2011 at the Union League Club in Chicago.

2. AALL's Vendor Colloquium apparently will take place somewhere in Chicago, apparently sometime this month if this aging and decripit Boomer law librarian's memory is recalling a phone conversation accurately.

3. The Planning Committee's Vice-Chair is our current Vendor Liaison and this Committee's Board Liaison is the former Vendor Liaison, if the AALL web page is current. As noted above, both also were appointed by the Executive Board to the Price Index Task Force.

4. Feel free to connect the dots any way you want. Personally, I'm reminded of a line from Casablanca. Captain Renault: "Major Strasser has been shot. Round up the usual suspects." At least the current CRIV chair is a member of Vendor Colloquium Planning Committee.

The 2011 Vendor Colloquium apparently is not important enough to listed on either AALL's official calendar of events or on the Vendor Colloquium Planning Committee’s web page; not even listed with a "details TBA" annotation when I last checked. I guess we can call TR Legal's representative on the Vendor Colloquium Planning Committee to find out what the hell is going on.

Let's spend membership money. Meanwhile, give pause ... the E-Club is meeting at the Union League Club of Chicago! Have you ever been to the most exclusive private membership club in downtown Chicago? I've been to the Union League Club several times ... that would be when one of the founding members of the law firm I worked at came into town from his home in San Diego and asked me to meet him there instead of at the office to go over some projects we were working on because that's where he stayed. It was always a very "acceptable" as in circa-19th century scions of the British Empire experience.

Who is picking up the tab for meeting at the Union League Club? We are (if not, whose Union League Club membership is?). Anyone remember our association's budget issues, our membership's belt-tightening? Our association's chronic and ethically questionable dependence on vendor cash so as not to have to increase membership dues?

Any of our elected representatives or paid-for association staff think that one of Chicago's law schools or law firms couldn't provide a venue for this E-Board meeting at substantially less cost? Well AALL E-club members, at least try to remember the Union League Club's dress code. Even in the 21st century is only a bit more casual than the image displayed below.

So remember the Price Index. In the future when there are no print supplementation costs because print has been priced out of existence the Price Index may be as antiquated as the above Union League Club image. Then, as if not already, a Price Index of eLegal resources -- online search and eBooks -- will be needed. Does anyone even think that is going to be on the agenda of either the Price Index Task Force or the Vendor Colloquium? Oh, my bad, those terms cannot be disclosed under current licensing agreements and god knows "we" cannot interfere with how our vendors conduct their anti-competitive business practices.

The Price Index is not a relic from the past, at least not yet. It still has value to members. It can provide a useful objective standard if our association remembers to ask for the right data. [JH]

Opening: Electronic Services Librarian, UC Davis Mabie Law Library

Responsibilities:  Reporting to the Associate Director, the Electronic Services Librarian position has the following responsibilities:

• Manages the library’s electronic information resources, improving access to electronic resources, and providing technical support, including assistance with authentication, license agreements and payments. Provide faculty, students, and others  access to and assistance in using electronic resources.  Helps with the evaluation and acquisition of electronic resources. Maintains and makes accessible content files of electronic resources. Collects and reports appropriate user and system statistics and provides year-end reports. Assists department accounting unit as needed in maintaining subscription status, licensing information, and payments. Arranges trials of new resources.
• Provides reference services as part of the reference team, including participation in the faculty-liaison program, co-teaching Advanced Legal Research, hosting brown bags, providing selective in-class bibliographic training, assisting with training programs offered student RA’s, journal editors, clinical students, and others.  Assists with setting up personal profiles for law faculty tailored to specific research and scholarship.
• Acts as technology resource for various library applications.  Coordinating with the Law School IT unit as needed, implements various computer applications to update webpage content and design displays on the library’s webpage, develops and produces Research Guides, produces the eResearch Advisor newsletter, and continues projects such as the development of an external blog, library facebook presence, etc  Assists with assessing computer services requirements, hardware and software purchases, and desktop support.

Qualifications: Masters degree in library science from an ALA-accredited  institution or its equivalent; JD preferred; experience in accessing and using legal information resources, both print and electronic;  experience using library computer applications; ability to work effectively with a diverse population with many different levels of technical capability.

Environment: The Library is part of the UC Davis School of Law and provides services to over 600 professional and master’s degree candidates, law and campus faculty, members of the legal profession in the Northern and Central California region, and members of the public.  There are 16 employees, (7 librarians and 9 staff), and four departments comprising the library: Acquisitions/Serials, Cataloging, Public Services and Administration. The Library uses Innovative Interface’s Millennium online catalog.  Additional information about the Mabie Law Library is available at http://www.law.ucdavis.edu/library/.

The School of Law offers a three-year curriculum in the study of law, and has a student body of approximately 600 degree-seeking candidates, 50+ faculty and lecturers, 70+ staff members, and comprehensive annual budgets exceeding $16.5M. The School of Law staff work in a dynamic workplace and are dedicated to providing unparalleled service and support to our legal community. In the pursuit of its strategic goals, the School of Law promotes a high degree of collaboration, innovation, and professional development opportunities among its staff.

Benefits: Librarians are academic appointees and represented by a collective bargaining unit. The University offers several health, dental, vision and other insurance plan options, 24 days of vacation and 12 days of sick leave per annum, retirement options, and access to University programs. Salary is competitive and commensurate with qualifications and experience. Open until filled.

Applications: Please send letter of interest, resume, and list of 3 references to: Laura Cauchi, UCDavis Mabie Law Library, 400 Mrak Hall Dr., Davis CA 95616, or email: licauchi(at)ucdavis.edu

The University of California, Davis, is an affirmative action/equal opportunity employer with a strong institutional commitment to the development of a climate that supports equality of opportunity and respect for differences.

Backed Into a Corner

Article 1, Section 8, Clause 8 of the U.S. Constitution provides for Congress to "promote the progress of science and useful arts, by securiting for limited times to authors and inventors the exclusive right to their respective writings and discoveries."  Toward that goal, Congress passed the interlibrary loan exception in section 108 of the copyright law.  This allows us to make a single copy of something to send to someone who doesn't own the original.  However, to make sure we don't abuse the exception, the Copyright Office gave us the CONTU guidelines.

The CONTU guidelines state:

(a) with respect to any given periodical (as opposed to any given issue of a periodical), filled requests of a library or archives (a "requesting entity") within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request. These guidelines specifically shall not apply, directly or indirectly, to any request of a requesting entity for a copy or copies of an article or articles published in any issue of a periodical, the publication date of which is more than five years prior to the date when the request is made. These guidelines do not define the meaning, with respect to such a request, of "...such aggregate quantities as to substitute for a subscription to [such periodical]."

So the problem comes when you have people making requests for materials outside your library's scope of collection.  Unlike law, other professions rely much more on peer reviewed literature than student run journals, and they charge you for the privilege. 

Let say someone(s) requests articles from the Journal of the American Medical Association.  JAMA is a very popular general science journal that has not yet joined the open access movement in the scientific community. A quick search in the footnotes on Lexis US Law Reviews and Journals reveals that 374 articles have cited to this Journal in that database.  It sits in the number 2 position on the eigenfactor scale, and has an impact factor of 28.9 (which is pretty good).  So, it is not unlikely that lawyers will have a need to read articles from this journal from time to time. Six articles in five years is not really very many.  And, the larger your faculty or student body - or company - the more likely it is that you would run afoul of the guidelines for the ILL exception.

Even if you are not hitting the CONTU benchmark for copyright infringement, if you use the Copyright Clearance Centerto broker royalties, this particular journal requires at least a $40 fee to copy and lend the article.  Now, I am not really a copyright expert and I need to do some more research in this area, but I will assume assume that if the article is not going to be used for private study, scholarship or research. I believe this is the correct analysis and credit an excellent review of US copyright law in cultural institutions written by Peter Hirtle, Emily Hudson and Andrew T. Kenyon which helped me understand many nuances in the copyright law and libraries.  It is titled "Guidelines for Digitzation for U.S. Libraries, Archives, & Museums" and was published just last year. You can find it at the Cornell eCommons:  http://ecommons.cornell.edu/bitstream/1813/14142/2/Hirtle-Copyright_final_RGB_lowres-cover1.pdf (Warning:  It is more like book rather than an article but if you like this stuff, I think you will enjoy it.)

But back to my original point of being stuck in a corner...

If I hit the CONTU benchmark, I am obligated to either purchase the journal, tell the patron 'no' or be a bad gatekeeper and ignore the guidelines and the law.  So, why not just buy it?

In 2000, my institution paid a $100 subscription fee forJAMA.This year, we were advised that the annual online/print subscription has jumped to $845.  That makes for a $745 increase in price in the last 11 years.  That is a lot of money.  Isn't it?  And it is just one journal. I don't mean to pick on JAMA, but it is convenient to make the point that allowing journal prices to rise unfettered and to ask libraries to abide by stingy guidelines cannot possibly fulfill the spirit of Article 1, Section 8, Clause 8 of the U.S. Constitution.

And, as we all know, JAMA is small potatoes compared to other journals. I have seen price tags that exceed the cost of a good used car.  Even the peer-reviewed legal periodicals have shocking prices tags for reasons many cannot understand -  including me.  But, it is more likely than not that many of the law related journals are included in collection plans - unlike nonlegal periodicals.  If not, well, the argument is even stronger in my opinion.

I feel that without intervention, we are being backed into a corner and being forced to make decisions that benefit no one but the publishers of the journals.(VS)

"Barred in Any US Jurisdication," Thomson Reuters Still Wants to Hire You But is LPO Regulation on the Horizon

TR Legal learned its "lesson" when it outsourced digesting unofficial court opinions to India some time ago. (Frankly, that was fine with me.) But in furtherance of its new LPO business since the acquisition of India-based Pangea3, the Company is "cool" with hiring lawyers "“barred in any U.S. jurisdiction” to “build multiple document review project teams” in “anticipation of establishing a document review facility" here in the states. So reports the ABAJ at Thomson Reuters Hiring Attorneys for New LPO Outfits in Michigan, Texas based on TR Legal's Monster and Craigslist job ads. According to Rachel M. Zahorsky's report:

When we inquired about the number of lawyers to be staffed in Ann Arbor and asked whether any other U.S. facility locations have been planned, Thomson provided a vague response.

"As we've mentioned, we see a multishore, 24/7 operating structure as key to supporting Pangea3 customers in all parts of the world. We're working on this now, and will keep you posted as things progress," a company spokesman wrote in an e-mail.

See also Jason Wilson's Some thoughts on Thomson Reuters Legal ("[T]his LPO business is something else. It’s just the tiny tip of an iceberg, and what lies beneath in store for your clients or potential clients is anyone’s guess at this point.") and Zahorsky's follow-up, Vendor or Competitor? Pangea3 Purchase Pleases Some, Worries Others:

The deal, valued between $35 million and $40 million, also sparked debate among consultants, lawyers and bloggers about ethical concerns of the legal information giant delving into competition with its client base.

...

In the long run nobody is going to notice whether the work is performed in India or the U.S. as long as efficiency is increased, predicts consultant David Curle, director and lead analyst at Outsell Inc., a research and advisory firm for the information industry.

(Emphasis added.)

Apparently no one is going to notice whether a lawyer is licensed or has been disbarred from practicing law either. What the heck, at least TR Legal is hiring in the US. Maybe it really is time to make document review a required law school legal skills course. See It's 2011: Isn't It Time for the Legal Academy to Add Some Legal Tech Skills to the Mandatory Curriculum (even if only on how to perform document review)? What next? How to scan and OCR.

Regulation of Legal Process Outsourcing Coming? Perhaps. According to Fronterion, outsourcing agreements may come under increased regulatory scrutiny.

In the three main LPO markets – the United States, the United Kingdom and India – there is the potential for rule changes which could place outsourcing agreements under increased scrutiny or even have a material impact on the ability of law firms and companies to send legal work to external providers

For these reasons many, industry insiders, including Fronterion which highlighted the issue in its Top 10 Trends for 2011 report, think regulation is the single most important issue in LPO this year.

Hat tip to 3 Geeks' Greg Lambert's tweet for the Fronterion link. [JH]

Q. What is RECOP? A. Proof of Concept. Consequence: Time for the ABA, AALS and AALL to take the next step

RECOP (Report of Current Opinions)  is the first concerted private sector-nonprofit collaborative step that can lead to competition in the legal online research marketplace based on who builds the smartest tools, not who has the most comprehensive eLegal primary resources. See For Westlaw and Lexis, an AOL Moment: Fastcase's Ed Walters on LAW.GOV. Why? Because RECOP is the nation’s first public broadcast of standardized judicial opinions for bulk download.

RECOP public feeds have begun. Lanuched in mid-January, the feeds are still raw and experimental, but are fast evolving. RECOP will include new judicial opinions from all state Supreme Courts, state Courts of Appeal, federal Circuit Courts of Appeal, and the U.S. Supreme Court. The opinions will be available for download for free and without restriction under a Creative Commons CC-Zero license and will include full star pagination.

This data is being obtained through LAW.GOV's agreement with Fastcase. See both Fastcase's press releaseand Carl Malamud's O'Reilly Radar blog post. Malamud reports "We will work with our partners in Law.Gov to perform initial post-processing of the raw HTML data, including such tasks as privacy audits, conversion to XHTML, and tagging for style, content, and metadata." Law.Gov participants include both for-profit organizations such as Justia and Fastcase and academic institutions such as Princeton, Cornell, and Stanford. As noted below, William S. Hein & Co. is also providing critically important data.

The RECOP feed will include periodic releases of important segments of the back file, including:

• A release of 3 million pages of 9th Circuit briefs from 1892 to 1968 which was produced in cooperation with the UC Hastings College of Law and the Internet Archive and is scheduled for release in Q1 2011.
• Double-keyed HTML for at least the first 10 volumes of the Federal Reporter, First Series and all 30 volumes of the Federal Cases will be completed by the end of Q2 2011. This data is being furnished as part of the YesWeScan Project.
• William S. Hein & Co., which provided high-resolution scans of the Federal Cases, is providing a high-resolution scan of the Federal Reporter, First Series which will be released in Q1 2011.

Hard and Soft Deadlines. About RECOP, Malamud writes:

[W]e have set two timeouts on this new service:

First, we have built a sunset clause into RECOP. The Report of Current Opinions will be provided in 2011 and 2012 and will then terminate as a private sector activity. The government should be able to provide the basic primary legal materials in a way that meets the strong consensus arrived at in the Law.Gov Principles. The Report of Current Opinions is a transition step towards government meeting those principles, not a substitute for governmental action.

Second, the participants in Law.Gov all feel strongly that work on the Report of Current Opinions over the next two years requires the active participation of government partners, joining industry and the nonprofit sectors. We have placed active offers to work with institutions in all three branches of our federal government to help us make the feed better and to provide access to the public. We have established a milestone of July 1, 2011 by which government needs to step up to the plate and join us in helping make this service real. This service is expensive—$35,000/month for just the basic feed, not counting post-processing and hosting—and we can't justify doing this if government is not taking the effort seriously.

In a comment to his blog post, Malamud adds: "If .gov becomes a no-show, we reserve the right to come up with a plan B. But, if they step up to the plate (which I believe is going to happen … people are really enthusiastic), we’re here for the two full years."

"Proof of Concept" Is Underway; Time to Take the Next Step. I like ad hoc groups because they can take the initative in a timely manner by gathering the necessary expertise for a group effort while not being bogged down by the bureaucracy of established organizations. LAW.GOV and all its partners had led the way but we are now reaching the stage where others must join the campaign to realize the potential of what 21st century distribution of primary legal resources can bring. This is probably the most important development since John West consolidated the chaotic publication of court opinion publication via standalone offical reports and local legal newspaper publication of digests of recent state court rulings in the late 19th century. Only this time, a national reporter system is not a commercial venture. Since I can't say it any better, here's what Malamud has to say:

But now, it is time for the legal profession to step up to the bar and help make the dissemination of our primary legal materials an important issue. The ABA, AALS, AALL and other legal associations need to start wrestling at their weight, insisting that legal materials be made available to all. Our government institutions need to join with them and begin to take far more seriously their obligations to make access to justice and the rule of law a reality. There can be no due process under the law when access to the law itself is preconditioned upon access to money.

Our current system hurts innovation as much as it hurts democracy, and we are ever hopeful that our friends in industry—at companies like West, Lexis, and LoisLaw—will shoulder their responsibilities not only to their shareholders but to the public we all serve by helping make our legal system function better and more transparently. It would not only be good for their business, it would be the right thing to do.

I know that Lexis is not opposed to LAW.GOV, that the Company assumes the bulk distribution goals will be realized while being confident that its value-added services will not threatened by the project's objectives. TR Legal? Wolters Kluwer Law & Business? BNA? Others? Wait 'n see. [JH]

MS Uses Google To Generate Bing Results

So, Microsoft is using the Bing Search Toolbar to monitor the search and browsing habits of computer users.  No surprise there.  Most all companies that provide toolbars have some degree of monitoring built in.  Microsoft gets customer approval for the monitoring by asking whether the user wants to improve the online experience, with the default set to yes.  The company does disclose what information is collected.  There is notice whether anyone reads it or not.  Part of improving that online experience however, is to monitor and analyze search habits generated through other search engines.

Google thought something was up and tested by throwing dummy pages into search results that featured a commonly searched web site.  Sure enough, those results started showing up in Bing against similar results.  Microsoft says that it doesn't copy Google, which has technical truth to it.  The company says it uses a lot of different inputs to generate its search results.  Checking how Google answers a query is only one of them.  This has never been a secret, though not necessarily promoted.

Microsoft is hardly alone (or random) when it comes to copying technology.  It's probably legal for them to do this since there is no copy protection for "sweat of the brow" compilations.  But the situation does seem to suggest that Microsoft can't make search work completely on its own.  I suppose that's the difference between leading and keeping up.  That's a great reputation for a technology company.  [MG]

Thinking Strategically: AALL Nominations Committee Seeks Candidates for Office

While being criticized as a notorious AALL-basher (no problem, have thick skin), I do like our association's emphasis on calling for nominating law librarians who have demonstrated the ability to think strategically. There's plenty of well-qualified members who meet that criterion. You are most likely to find them at the SIS, local chapter level, or by their participation in SLA or ad hoc groups. Here's the official call:

AALL is looking for the next leaders of the Association. If you, or someone you know, have proven leadership experience, commitment to law librarianship, and demonstrated ability to think strategically, please consider serving on the AALL Executive Board.

The Nominations Committee is asking members to nominate individuals who would make strong candidates for the 2011 AALL Executive Board election for the offices of vice president/president-elect, and two Executive Board members.

If you or someone you know is ready to serve on the AALL Executive Board, let the Nominations Committee know. The chair of this year's committee is Kelly Browne of the Sacramento County Public Law Library. You can email her with your nomination. The committee is accepting nominations through March 1, 2011. The election will be held in November 2011, for three-year terms beginning July 2012.

[JH]

New IntelliConnect Enhancements: What Do You Think?

Since I wasn't a "buyer" of IntelliConnect ver. 1.0 and have no clue who my CCH Wolters Kluwer Law & Business account rep is anymore (read WK is more tightly integrating its brands so my sole contract with the Company is a very good "Aspen" rep at the moment) here's some snips from the CCH Wolters Kluwer Law & Business press release dated Jan.31, 2011. Just marketing or substantial improvements?

As part of ongoing efforts to continually enhance IntelliConnect and boost the productivity and efficiency of its users, the new enhancements include advanced searching, browsing and viewing capabilities that speed research by helping users pinpoint relevant information faster and easier than ever before.

Home Page Enhancements. New enhancements to the IntelliConnect home page make reading, browsing and navigating even quicker and easier for users. New resizing commands allow for quick and easy adjustment of the panels. The redesigned divider tool allows for manual adjustment of panel widths. The toolbar automatically fits the width of the left panel so users never lose access to commands. In addition, up to 10 tabs are now available, stretching across the full width of the display, with each search resulting in a new tab.

Improved Browsing Features. In response to valuable customer feedback, the Browse tree is now wider by default letting users explore their subscription content with less need to move the divider bar. Searching for specific information through the Browse tree has become easier with new functions to pinpoint specific content titles. One click of the new “Expand All” (+) or “Collapse All” (-) icons on the left side of the home page expands or contracts the content search list, saving users time and effort. Selected content is now also available under multiple browse topics providing quick access to materials.

Powerful New Search Capabilities. By leveraging leading-edge technology, Wolters Kluwer Law & Business has elevated the accuracy of search results and increased the relevancy of search rankings, enabling IntelliConnect users to reach faster, more precise results. Users now have access to a new integrated citation search that allows them to enter a citation reference within search expressions and have their results include both the cited documents, as well as those documents which meet their search criteria. A new filter and a “View All” command allow users to quickly access the citation documents.

New pre-search filters also allow users to drill further down in their search results. Letting users restrict searches by jurisdiction, court or specific timeframe enable users to obtain desired results faster. Users also have the option of setting this search filter as a default by simply checking a box to apply this filter to all future searches. This advance search feature allows users to conduct multiple searches with open simultaneous search tabs and the ability to toggle back and forth between searches.

Improved Document View. Enhancements to the Document View navigation commands within IntelliConnect make research easier with fewer clicks required. Users can click through their relevant documents using the easily accessible “Read Next Document” and “Read Previous Document” links that make flipping through on-screen pages as easy as reading a book.
Select practice areas contain new Relate buttons that allow users to conveniently access related content. Users will also find increased hyperlinking within documents that quickly connects users to primary source materials. Within these linked documents, users can continue to use links to open additional cited materials.

Keeping Current with Practice Area Developments with IntelliConnect. It’s now easier for IntelliConnect users to stay in the know of new developments within their practice areas with Tracker News updates and analyses that are delivered right to users’ inboxes and/or smartphones devices from over 140 tracker titles and 120 Newsletter/Report Letter titles.

Product demonstration here.

[JH]

Social Media as a "Fundamental Right" (for Egyptians): So Says US State Department

State Department Spokesperson P.J. Crowley, speaking to Al Jezeera about the situation in Eqypt, described "social media" as a "fundamental right." The video clip is available at this Constitutional Law Prof Blog post by Ruthann Robson, Professor of Law & University Distinguished Professor, CUNY School of Law. Check out CCN's Jack Cafferty's blog post and comments at Social media and Egypt uprising?

My question, not Professor Robson's is: How does State reconcile this statement with what it did re shutting off access to Wikileaks, even warning State Department employees not to search Wikileaks' diplomatic cables disclosures to see if any of the employees' own cables were made public? [JH]

Entire Health-Care Reform Act Ruled Unconstitutional

In Florida v. U.S. Department of Health and Human Services, No. 3:10-cv-91-RV/EMT(N.D. Fla., Jan. 31, 2011) Judge Roger Vinson ruled the the entire Health-Care Reform Act was unconstitutional because the Patient Protection and Affordable Care Act's "individual mandate" requiring most Americans to purchase health insurance by 2014 or face stiff penalties could not be severed from the rest of the Act. Judge Vinson held that the Act's "individual mandate" exceeds the regulatory powers granted to Congress under the Commerce Clause of the Constitution. Text of Judge Vinson's ruling here.

Hat tip to HealthLawProf Blog for calling attention to Wake Forest law prof Mark Hall's Commerce Clause Challenges to Health Care Reform [SSRN]("This article reviews and pinpoints the strongest arguments for and against federal power under the Commerce Clause to mandate the purchase of health insurance.") [JH]

Government Wants ISPs to Retain User Information To Aid Law Enforcement

Last week Congress heard from the Justice Department and other law enforcement officials on the proposal to require ISPs to keep detailed records on its customers' activities on the Internet for about two years.  This comes up from time to time, most recently before this in 2006 when then Attorney General Alberto Gozales pushed the proposal.  The purpose would allow law enforcement authorities to have a detailed online history for anyone who caught their interest.  The main justification at the time was to aid investigation into child pornography offenses.  Congress listened and did not enact a law to that effect.  That hasn't changed with the current hearing, titled "Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes."  

There was push back at the time of the 2006 hearing from various civil liberties groups on how citizen privacy would be affected by such a law (like a lot).  There was also push back from ISPs, as keeping detailed records which the government wanted costs more money than the standard billing record retention.  The current practice for storing minimal information would be anywhere from one to six months depending on provider.  The government answered that one by offering to subsidize the ISPs, to some extent, for the extra overhead.     

The legislator pushing the current proposal is the same on who pushed it the last time, Rep. James Sensenbrenner (R-WI).  He is reported to have backed away from actually submitting the bill shortly after he proposed it in 2006.  We'll have to see if history repeats itself.  The issues on both sides of proposed law haven't changed much, if at all, in two years.

Jason M. Weinstein, Deputy Assistant Attorney General leads off his testimony with examples of heart-wrenching cases of child abuse that could have been solved if data retention requirements were in place.  He notes other cases that were solved with "lick" that the records were there.  His argument is that data retention is all over the place with respect to the time an ISP would keep it.  His second argument is that those with privacy concerns should be heartened by this type of legislation, as it will help law enforcement go after those who violate privacy.  He notes that though there may be large amounts of information kept by ISPs, the government would still need to use standard procedures to gain access to it.  Though he advocates for the legislation, he doesn't offer specific proposals:

In offering this testimony, our goal is explain the nature of the public safety interest in data retention by providers. We do not attempt to discuss appropriate solutions, evaluate cross-cutting considerations, or evaluate the proper balance between data retention and other concerns. We look forward to continuing the dialog on these important issues with Congress, industry, and other interested organizations.

Weinstein's positions are supported by Chief John M. Douglass, Chair of the Mid-Sized Cities Section, International Association of Chiefs of Police.  His testimony extols the use of tracking information in solving Internet related crimes.  His case examples are all successful, though ironically under existing law.  More tracking information is wonderful and welcome.

What's missing from both of these presentations is context.  Nothing in what they say conveys any sense of how the lack of available data has impaired past investigations.  In other words, how many cases are there that were not successfully prosecuted because of a lack of Internet tracking data compared to successful prosecutions. Wouldn't that determine the need for formal retention requirements?  And just as important, wouldn't that information help identify what kinds of data retention should be in place?  

The other side is represented by Kate Dean, Executive Director of the U.S. Internet Service Provider Association, and John B Morris, Jr., General Counsel of the Center for Democracy and Technology.  Dean's testimony focuses on how her members work with law enforcement to track down child pornographers and others through voluntary cooperation, the burden that would be placed on her members from mandated retention, and the lack of specifics (at this stage) of what retention means.  Current law works well, she says, and that her organizations members work with law enforcement constantly to identify and prosecute predators.  Congress should identify where the system in place doesn't work before considering changes.  She raises the point that potential transactions to record can number in the billions, which may actually slow down the ability to provide timely information to law enforcement.

Morris' testimony covers the impact a retention law would have on an individual's privacy, the increased risk to identity theft, and the chilling effect on First Amendment rights.  Although he didn't say it, the government's track record when it comes to laws involving the Internet that implicate the First Amendment is low.  Any law passed by Congress would be up for a challenge.  Morris makes the point that everyone would be subjected to the law, though not everyone has criminal intent in using online access.  Echoing Dean, there are more possibilities for data breaches when there are more records in more databases.  I can understand the concern.  How many secure databases have been breached and private data either winding up online or sold by criminal elements?  I think the best example is the Wikileaks breach.  Wasn't the stream of diplomatic cables supposed to be secure?  Can private industry do better than the government when it comes to keeping a secret?

I tend to agree that creating open-ended data collection is a bad idea.  One of the points raised in the 2006 hearing is the concept of mission creep.  Data collection begins with storing IP addresses.  Then, wouldn't it be interesting to see where that IP address went?  Let's store addresses.  Then, wouldn't it be interesting to store copies of those pages in case that IP address is the target of a criminal investigation?  Internet content changes all the time, after all.  Wouldn't it be a good thing if we made all of that available to intellectual properties holders and other civil plaintiffs who are enforcing property rights?  It may be a parade of horribles, as the courts say.  Some of them were plausible enough the first time around for this idea.  

Any change in the law should be justified on the basis of where it doesn't work, not on the basis of what law enforcement could do if they knew everything about everybody.  Saying that the Department of Justice could have caught one more horrible individual should not be enough to put the entire Internet population under a microscope.  Existing laws didn't stop the FBI from swooping down on a few individuals in conjunction with the DDOS attacks against Visa et al.  

On one hand, the goverment seems concerned about what marketers know about us, and to what detail, by proposing laws or regulations that give consumers the right to opt out of tracking.  On the other, it wants to exempt itself from those same concerns.  Right now, I think I would trust Google, Yahoo, or even Microsoft before I would trust the government to get this right.  [MG]

Professional Ethics Trumps AALL Acceptance of Vendor Cash Until the Status Quo is Changed

In a very rare instance, meaning the first time in recent memory, an official AALL publication has allowed publication of criticism of AALL policy by someone who has been practicing our profession long enough to have a well-informed perspective of AALL official actions in the context of vendor relations over the course of the last two decades. Younger law librarians who may be unaware, take notice. It's what some of us older law librarians have to offer with respect to how we got to this dismal current state of affairs and what some of us recommend for getting out of this mess we currently find our professional assocation in. The intention is not to lecture but to inform.

In the current issue of AALL Spectrum, see Ending our conflicts of interest to protect consumers of legal publication by Michael Ginsborg. I believe Ginsborg's emphasis that AALL has a consumer advocacy mission that extends beyond institutional interests to include public interest advocacy by recalling ethical standards that once were but no longer are the case for AALL's relationship with vendors due in no small part to revenue received by them is a much needed wake-up call. I professionally hope Ginsborg's article will be well received by younger law librarians who must take the necessary corrective measures that we older law librarians have, unfortunately, dumped in their laps.

Ginsborg characterizes all this as a "proposed ethical test." He writes

Our collective effort in a $4.4 billion market could make a difference, especially if we also engaged the largest share of consumers—attorneys. And we have effective options short of a boycott or other antitrust violation. For example, we could undertake mass education of attorneys on how exorbitant costs undermine the critical public value of commercial legal publications; seek renewed FTC guides for full and transparent disclosure of all ranges of subscription discounts and criteria for discounts; set up a website for reporting and tracking consumer complaints; forge alliances with national, state, and local bars and legal advocacy groups; and launch joint investigations of legal publishing practices as warranted by complaint trends. We have missed the mark in our current efforts at consumer advocacy, however, because we follow the wrong model for our business relations with publishers. Legal publishers divide us against one another as we try to negotiate less onerous print subscription costs for our respective employers.

The proposed ethical test requires AALL and chapters to ban cash and non-cash donations from legal publishers with anti-consumer practices. (It also requires us to ban meals, social events, ads, and exhibits by these publishers in all our professional venues... .)

It is a very sad state of affairs when we as professional librarians must be reminded about law librarianship ethics. Made worse when two former AALL presidents, Judith Meadows and Kay Moller Todd respond in counter-point fashion to defend AALL official actions. They write:

AALL is stalwart in its support for the general availability of primary source materials, but to argue this public right for secondary sources is without basis.

Our Association has made significant efforts to ensure the availability of legal information to the public, parity of access across rural and urban markets, and a market that is not dominated by one specific vendor. We are all better off when the marketplace includes large and small vendors.

I take Meadows' and Todd's opinions to be genuine expressions -- not scripted responses -- but I find their article full of utterly unconvincing arguments. Like it or not, an AALL official publication has selected this counter-point statement that in a nutshell states "the status quo for AALL is a good thing." The status quo, however, is a duopoly with monopolistic pricing tendencies, restrictive contracting practices and very questionable pricing schemes designed to guarantee revenue flowing to WEXIS without guaranteeing editorial quality in print and online legal resources. As our major vendors move forward with eBooks and later will move forward with enhanced eBooks with in-app purchasing, individual consumers will be facing the same eBook duopoly they and we institutional buyers are facing now in print and online resources. It is utter nonsense to be hearing from two former AALL presidents that the market is not dominated by one specific vendor since it most definitely is in many state jurisdictions. It is even worse to hear that "we are all better off when the marketplace includes large and small vendors" because that is hardly the case.

AALL and our major vendors may be enjoying a partnership of sorts but as Ginsborg argues in his article there is no such "partnership" between our major vendors and buyers, institutional or individual. We have been seeing the same sort of publisher abuses since the FTC revoked its Guidelines for the Law Book Publishing Industry in 1999 that were sufficiently serious to compel the FTC to prescribe appropriate practices that the legal publishing industry should follow in the publication, advertising, and sale of legal publications back in 1975.

There is, however, one major difference. Unlike 1975, the market dynamics is now and has been for quite some time, sufficiently more concentrated to the point of being a duopoly with the anti-competitive consequences that produces. Back in 1975, there were many legal publishing houses that have either disappeared completely or are nothing more than "brand names" of WEXIS. In the state of Ohio, for example, there once was Banks-Baldwin (now owned by West) and Anderson, which managed to survive until acquired by Lexis in the mid-2000s. Small vendors only remain in those state jurisdictions which have a sufficiently larger practitioner base to justify the risk of publishing titles, states such as California. I once asked a small publishing house executive why his company was not offering Ohio titles. His answer was they examine state bar association membership rolls by practitioner specialities as reflected in special interest group membership and in the case of Ohio, there simply was insufficient numbers to compete with WEXIS.

Let's add a second, not inconsequential difference. The move toward electronic primary and secondary resources dominated by WEXIS. In Time to Reinstate the FTC’s Guidelines for the Law Book Publishing Industry, Brian Carson observed

[S]ince [the FTC Guidelines] revocation, we have seen exactly those same abuses over and over again, including the now-common practice of not providing open and competitive pricing for publications and databases. In fact, many license agreements include non-disclosure clauses that prevent the open sharing of information, a necessary condition to ensure competitive and anti-monopolistic contracts.

Meadows and Todd state

[AALL's financial structure] is similar to many other professional organizations that enhance dues revenue by accepting donations and sponsorships. Our research confirms that comparable professional associations have protocols for sponsorship that are very similar to AALL’s. Mr. Ginsborg asserts that the level of these donations not only has affected AALL’s impartiality on issues but also causes our members to lose objectivity and critical decision making when faced with whether or not to purchase a legal title.

Three comments, my opinion because I do not want readers thinking I am speaking for Ginsborg. First, to the extent that members once could rely on CRIV, that is no longer the case. It is now well-documented that CRIV's mandate has been reduced to dealing with minutia by the insertion of a compensated Vendor Liaison between CRIV and our vendors and between CRIV and the membership.

Second, Ginsborg's suggested action plan is narrowly tailored to avoid antitrust boycott violations that all similarly situated professional associations must avoid while demonstrating to the membership that AALL is indeed impartial. Meadows' and Todd's reference to other similarly situated professional associations echos in maintaining the status quo and entirely misses the point of Ginsborg's article. Considering the credibility gap that exists between AALL and its institutional buyers, AALL's consumer advocacy actions are  questionable at best. Some would say they are so completely unproductive that ad hoc collective action outside AALL is needed because AALL has failed. 

Third, AALL's response to the revocation of the FTC Guidelines was the promulgation of its Guide to Fair Business Practices for Legal Publishers which has been ineffective because it is unenforceable under antitrust law. Any so-called "partnership" between vendors and buyers would be evident by vendors voluntarily complying with AALL's Guide to Fair Business Practices for Legal Publishers but we all know that has not been the case.

In the context of Ginsborg's call to action, Meadows and Todd write

The author’s other proposal that AALL should undertake mass education of attorneys; establish a website for reporting and tracking consumer complaints; forge alliances with national, state, and local bars and legal advocacy groups; and launch joint investigations of legal publishing practices is impressive but completely unrealistic. He presents no business plan for such an office, nor does he consider the financial and budgetary implications of such a proposal. Would our members really support the kind of dues increase to be expected by refusing all donations of any kind at the same time as establishing a new venture that would require additional staff?

Quite a telling statement. Vendor revenue vs. membership dues increase. That's how dependent AALL is on our major vendors. Have we utterly forgotten that A-A-L-L stand for the American Association of Law Libraries, not law librarians? We are an association of institutional buyers. We most definitely can justify increased dues to our employers if we can demonstrate that our association can produce results that benefit them specifically and also contribute to the common good. We can also cutback on other AALL activities until the status quo is changed.

I seriously doubt most of the membership agrees that the status quo is a good thing but at least Ginsborg's article was published in AALL Spectrum. See also his supporting documentation, Vendor Sponsorships and Related AALL Financial Data, 2005-2009 Data From IRS Form 990.  Hopefully, Ginsborg's article is the first crack in the wall -- the stone-walling tendency of our professional association, expressed by two former AALL presidents.

Prior to the official publication of his Spectrum article, Ginsborg guest posted Initial Thoughts on a Plan to Restore FTC Oversight of Publisher Trade Practices on LLB as a follow-up to Bryan Carson's insightful post, Time to Reinstate the FTC’s Guidelines for the Law Book Publishing Industry. Unlike this cranky old geezer-blogger, Ginsborg circulated his draft post to other law librarians for peer review input, incorporating many suggestions provided. That's not standard operating procedure for blog posts but he sought out unattributed input. My hunch is he did the same for his Spectrum article.

Required Reading for Those Outside AALL's Current Power Brokers. So here is a blog post, Ginsborg's, not this one, that was produced by "due diligence" in part from contributions from other law librarians dissatisfied by the current state of AALL's official policies -- the status quo. This is an instance where one law librarian has gone out on a limb to state his professional opinion which has been informed by other like-minded law librarians. I believe the above cited blog posts and Ginsborg's Ending our conflicts of interest to protect consumers of legal publication are required reading by all law librarians who (1) believe they represent their institutions as AALL members but (2) also believe our profession has an obligation to serve the public interest including the publication of secondary sources. Have we already forgotten about Rudovsky?

Ginsborg writes, and this aging and decrepit Boomer law librarian hopes Gen-X and Gen-Y law librarians agree, and will insist on taking up the challenge one way or another, inside or outside AALL because the actions of our profession association over the past 10 years have failed to do so:

To become stronger consumer advocates, we must restore consumer advocacy to our ethics, end our conflicts of interest, invite attorneys to join us as associate members, and, if necessary, amend AALL and chapter bylaws. We must be prepared to forgo all donations from specific publishers as we remake national and local organizations worthy of alternative donations from attorneys. Otherwise, we will continue to compromise ourselves, our constituents, our employers, and an important public interest.

Sorry, Future Leaders of AALL. At least those who have not utterly given up on AALL. This mess we leave you to correct. Those of us who have been around a while -- Ginsborg, Carson and others -- offer some need-to-know historical perspective. Ginsborg's call to action is a well-informed and thoughtful recommendation of what AALL can do under the current legal restrictions. It is something that is doable by our association right now. If it requires reducing other AALL activities until the status quo is changed, so be it. [JH]