Law Librarian Blog

Become a Certified Patriot by Donating Cash to Draw Down the National Debt

That's the idea behind Representative Don Young (Alaska) DebtPatriots.Gov Act of 2011. Introduced last month, H.R. 3504 calls for the creation of federal government website dedicated to collecting donations to reduce the country's public debt. Quoting from the bill, here are the drafted levels of donor recognition:

(A) Corporation Award Levels:

(i) Corporate Founder ($50B).

(ii) Corporate Son of Liberty ($10B).

(iii) Corporate Constitutional Delegate ($1B).

(iv) Corporate Minuteman ($500M).

(v) Corporate Patriot ($1M).

(B) Individual Award Levels (Premium):

(i) Premium Founding Father/Mother ($1B).

(ii) Premium Son/Daughter of Liberty ($500M).

(iii) Premium Constitutional Delegate ($100M).

(iv) Premium Minuteman/woman ($10M).

(v) Premium Patriot ($1M).

(C) Individual Award Levels:

(i) Founding Father/Mother ($100K).

(ii) Son/Daughter of Liberty ($10K).

(iii) Constitutional Delegate ($1K).

(iv) Minuteman/woman ($100).

(v) Patriot ($10).

Do note Sec. 4 of the bill:

The President shall issue a signed certification of appreciation recognizing the award level of each donor who contributes to `Gifts to Reduce the Public Debt'

Of course, anyone can already donate funds to the US Treasury but now you can get certified as a patriot under this legislation.

Hat tip to Ken Chan's Congress Recruiting Founding Fathers to Save the Republic (Justia) [JH]

A Bit More On Carrier IQ

Senator Al Franken received letters from Carrier IQ, AT&T, Sprint, Samsung, and HTC detailing their use of Carrier IQ software as he had requested.  They are available in full from Senator Franken’s Senate web page and summarized in a Bloomberg Business Week report.  The carriers use the software, they say, to monitor such things as network performance, dropped calls, and Internet service outages.  All benign and all disclosed to the extent that user agreements disclose/require the data collection.  They specifically say they don’t collect keystrokes, contents of emails or text messages, contact information, searches and similar information.  AT&T doesn’t collect URLs but Sprint says it does, but not for marketing purposes. 

I’ll just say that as carriers, I would think they could have more direct access to some of that information by the mere fact it flows through their systems and may have been sourced through its servers.  That’s another story or scandal depending how information is disclosed.  Another facet to the story is how the FBI denied an FOIA request about Carrier IQ.  That could mean the agency is either investigating the company, or doesn’t want to disclose if and how it uses the software in investigations.  The denial shouldn’t imply one or the other, as this article suggests.  As we turn more and more of our private lives over to service providers, it would be nice to know more about what is going on with the mechanisms they use to process our use of their systems beyond what they put in the service agreements.  That extends to Google, Yahoo, Facebook, Microsoft, and all the other companies we rely upon for fun and other.  [MG]

SOPA Mark-Up: Manager's Substitute and Links to Webcasts of Committee Hearings

Text of the Manager's Subsitute for  H.R. 3261, the “Stop Online Piracy Act", referred to in yesterday's LLB post. Links to "official" yesterday's and today's webcasts (well, sort of) and more here. [JH]

Friday Fun: The Bottom Rung Job

Bitter Lawyer's Matt Ritter writes "Bottom Rung out of my own experience doing document review in Los Angeles. Until I moved out to LA in 2010, I worked as a big firm corporate associate in New York and had never heard of document review." [JH]

Onshoring LPO Work Because Recent Law Grads Are Looking for Jobs, Any Sort of Jobs, Even Bottom Rung Jobs

In Ten for 2012: Top Ten Trends for Legal Outsourcing in 2012, Fronterion, an international consulting firm for outsourced legal services, identifies profitability squeeze on foreign LPO firms as one of the market dynamics that will impact the industry next year. Why? Because the US labor market is flooded with unemployed law grads willing to be underemployed by taking LPO jobs here in the US. From the report:

Wage inflation abroad and soft labor markets domestically in the United States and United Kingdom have signi:icantly narrowed the cost differential for the legal professionals performing LPO services. Fronterion has observed that offshore LPOs charge clients $25‐35 per hour for basic legal services while contract review attorneys in the U.S., particularly in the Midwest, often are charging comparable rates of $25‐30 per hour.

The soft labor rates in the domestic legal sector place a natural cap on the amount LPO vendors can charge their clients, despite the increasingly expensive wages they pay their offshore staff. This squeeze in profitability is only set to increase in 2012 as the newly minted law graduates in the U.S. and U.K., who flocked to law schools during the downturn, are now seeking to join the workforce.

Hat tip to Want to Outsource Legal Work? Ohio Can Be as Cheap as India, Report Says by ABAJ's Debra Cassens Weiss. [JH]

Law School Theory Vs. Practical Skills, One More Time

Yale’s own Professor Stanley Fish provided his own response to David Segal’s recent article in the New York Times that berated law schools for not teaching practical legal skills.  His lead example is his class on law, liberalism and religion where students learn the “long-standing debates in philosophy and theology about the relationship between religious imperatives and the obligations of democratic citizenship.”  His students will learn the arguments behind the arguments that inform a court’s decisions in the context of state and religion.  He cites John Locke’s Letter Concerning Toleration (1689) as one of those seminal documents that in fact the justices who are deciding a case may never have read but is nonetheless important in the context of cases arising out of the First Amendment’s Religion Clause.

Fish acknowledges in an off-hand way that the law, as he puts it, “is more than a technical/strategic exercise in which doctrines, precedents, rules and tests are marshaled in the service of a client’s cause.”  I could hardly disagree with him on that.  If I learned anything from law school, it is the rules of the societal game we play on a daily basis.  Personally, I found that profound in how I understand the way the world works.  Law school taught me about the law, the basic legal relationships between people, the obligations it imposes on governments and individuals, and the acceptable ways we interact with each other.  It taught me little on the mechanics of law practice.  

Back in the day when I took the bar, not knowing the mechanics of law practice was far from the worst thing a law school could do.  There were enough opportunities to learn on the go and enough safety nets to avoid legal malpractice claims.  I doubt that Professor Fish would suggest that practice and litigation skills are unnecessary to a lawyer.  I think his point is a scholarly understanding of the law is essential to crafting an argument that can be filled with precedent that expounds that argument.  Having said that, I’m still uncomfortable with his essay in that it I believe it suggests that the way law is taught is just fine the way it is.

I can’t but help thinking that students who do not attend schools with a cachet such as Yale might have more practical problems such as joining or establishing a practice that can provide retail legal services from the get go.  There is that problem of student loans to pay back, after all.  I suspect that the network that helps land a good job for those individuals is a bit more porous than those with a top twenty law school degree in hand.  It would seem, then, if these individuals could demonstrate immediate skills they could also demonstrate immediate value.  I’m sometimes asked to provide references for former students, which I am happy to do.  I get questions such as “are you familiar with the quality of candidate’s motions?”  I make it a habit to get copies of filings from individuals who use me as a reference so I can answer that very practical question to the interviewer.

I guess my point here is there is more to law than philosophy, and law schools should find a way to balance understanding the nature of a contract and how to write one.  For those who would respond that this is what a legal drafting class does, it is my sense that the legal writing program and instructors have long been regarded as second class citizens in most law schools.  In any event, we leave it to the student to integrate what they pick up in related but uncoordinated classes.  We expect students to figure it out for themselves, but maybe we could help them along as a response to the profession and economic conditions.  Could we essentially have a bit of balance in legal instruction where philosophers and practitioners are not academic versions of Twilight?

For fun, I thought I’d check on Westlaw to see if any federal court opinions mentioned John Locke’s Letter Concerning Tolerance.  In all the body of federal law, it is cited exactly once, in Catholic League for Religious and Civil Rights v. City and County of San Francisco, 624 F.3d 1043 (9th Cir. 2010).  Judge Silverman (JD 1976 Arizona State, by the way) passed it along in footnote 72.  For even more fun, I looked up philosopher Jacques Derrida, well known for the critical theory of deconstruction and a law faculty favorite.  He gets 1331 hits in the Journals and Law Reviews database.  The federal courts?  Not so much.  Six hits.  And what hits they are.  Here’s a sample:

Is a houseboat a house or a boat? That, in the abstract, is the enigma posed by this case. Fortunately, we need not answer it directly. As a court of law, we leave such metaphysical rumination to the disciples of Jacques Derrida, and address ourselves instead to the more tractable question of whether the Army Corps of Engineers (the Corps) properly deemed two particular houseboats to be permanently moored structures within the meaning of section 10 of the Rivers and Harbors Act.  (U.S. v. Members of Estate of Boothby, 16 F.3d 19 (1st Cir. 1994)).

Illinois does not apply the deconstructionist approach of Jacques Derrida to the law of contracts. (Transportation & Transit Associates, Inc. v. Morrison Knudsen Corp., 255 F.3d 397 (7th Cir. 2001)).

While deconstructionists like Jacques Derrida contend that language is inherently equivocal, the illogical interpretation of statutory and procedural requirements is rightly disfavored.  (Rodriguez v. Secretary of Health and Human Services, 794 F.Supp. 58 (D. Puerto Rico, 1992)).

Ooooh.  Can’t we all just get along?  [MG]

SOPA Goes to Mark-Up Today in the House Judiciary Committee

On OpenCongress Blog, Donny Shaw reports

ahead of [today's scheduled] meeting the [House Judiciary Committee] chairman, Rep. Lamar Smith [R, TX], has pulled a neat little trick. Smith has come out with a manager’s amendment that eliminates the most insanely unconstitutional elements of the bill, leaving behind an expansive censorship system for the government and the entertainment industry that is meant to seem reasonable by contrast.

It’s a common trick among experienced legislators. Load your bill up with every crazy provision and hand-out its supporters could possibly dream of, and then take some of the extreme stuff out at some point in the legislative process to make it look like you’re being an honest broker. In this case, Smith is scaling back SOPA so that it looks more like the already-draconian Senate bill it was built off of, the PROTECT-IP Act. It changes a bill with a 1% favorability rating among OpenCongress users into a bill with a 2% favorability rating. Progress!

For much more, see Shaw's SOPA Goes Through Staged Compromise, Still Censorship. Monitor SOPA, HR 3156 on OpenCongress.

SOPA Critique Redux. The Stanford Law School Center for Internet and Society hosted a panel discussion called "What’s Wrong with SOPA?" on Dec. 7th. You can now watch the video here. It's not as entertaining as the Colbert Report's video clips but it is informative. Of course, the panel discussion members did not have the manager's amendment for HR 3156 in hand at the time. [JH]

Can Your Dean, Your Law School, Handle the Truth?

Following the example set by Yale Law School, the University of Chicago Law School has published fairly detailed recent graduate employment data. Yale Law data here, U of Chicago Law data here. ATL's David Lat would like to know if other law schools will follow these examples:

To the deans of top 15 — or top 25, or top 50, or top 100 — law schools: Yale and Chicago can handle the truth. Can your school?

Sorry David, while I agree with the call for the top 15 or 25, those are the easy ones. This needs to be extended to all law schools. In a nutshell, one way to pose the challenge is:

Can Thomas Cooley handle the truth?

Oh yes, it is time for the very obvious clip from A Few Good Men. [JH]

"What would James Madison do if he was staring down a four-hour, closed book Constitutional Law final?"

"I mean besides, you know, not writing the Constitution. I like to think he would have just broken down and started destroying stuff rather than confront the reality of his own intellectual inadequacy and poor post-graduate educational decisions." Quoting again from Look, We Can Either Study for Our Law School Finals, or We Can Bring About the Violent Dissolution of the Legal System by Spencer Moreau:

Exams are less than a week away, and the way I look at it, we’ve only got two options: we can either buckle down and hit the books harder than we ever have in our entire lives, or else can can attempt to bring about the violent downfall of the institution of rule of law in the United States of America.

And between you, me, and this three-hundred page Crim. Law outline I got from a 2L, that second one just sounds more viable.

Hope finals went well enough! A bit hat tip to Sarah Glassmeyer's tweet for this gem.

Speaking of "what would James Madison do?", see today's earlier LLB post on the Brookings Institution's new book, Constitution 3.0: Freedom and Technological Change. [JH]

Adapting Constitutional Values to Plausible Technological Developments Circa 2025

NPR's Interpreting The Constitution In The Digital Era featured Jeffery Rosen on Nov. 30th to discuss Constitution 3.0: Freedom and Technological Change (Brookings Institution Press, Nov. 29, 2011)[Amazon] he co-edited with Benjamin Wittes. From the blurb for the book:

Technological changes are posing stark challenges to America's core values. Basic constitutional principles find themselves under stress from stunning advances that were unimaginable even a few decades ago, much less during the Founders' era. Policymakers and scholars must begin thinking about how constitutional principles are being tested by technological change and how to ensure that those principles can be preserved without hindering technological progress.

Constitution 3.0, a product of the Brookings Institution's landmark Future of the Constitution program, presents an invaluable roadmap for responding to the challenge of adapting our constitutional values to future technological developments. Renowned legal analysts Jeffrey Rosen and Benjamin Wittes asked a diverse group of leading scholars to imagine plausible technological developments in or near the year 2025 that would stress current constitutional law and to propose possible solutions. Some tackled issues certain to arise in the very near future, while others addressed more speculative or hypothetical questions. Some favor judicial responses to the scenarios they pose; others prefer legislative or regulatory responses.

Here is a sampling of the questions raised and answered in Constitution 3.0:

• How do we ensure our security in the face of the biotechnology revolution and our overwhelming dependence on internationally networked computers?

• How do we protect free speech and privacy in a world in which Google and Facebook have more control than any government or judge?

• How will advances in brain scan technologies affect the constitutional right against self-incrimination?

• Are Fourth Amendment protections against unreasonable search and seizure obsolete in an age of ubiquitous video and unlimited data storage and processing?

• How vigorously should society and the law respect the autonomy of individuals to manipulate their genes and design their own babies?

Individually and collectively, the deeply thoughtful analyses in Constitution 3.0 present an innovative roadmap for adapting our core legal values, in the interest of keeping the Constitution relevant through the 21st century.

Contributors include Jamie Boyle, Erich Cohen, Robert George, Jack Goldsmith, Orin Kerr, Lawrence Lessig, Stephen Morse, John Robertson, Jeffrey Rosen, Christopher Slobogin, O. Carter Snead, Benjamin Wittes, Tim Wu, and Jonathan Zittrain.

[JH]

Debt To Earning Ratios and Comfort For Law School Grads

I theorized in Monday’s post about Cooley Law School whether the debt load a student takes on is worth it compared to the progressive income levels one may make in a regular job.  Coming via JD Journal is a story about a paper by Brandies Law Dean Jim Chen available at SSRN called A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability.  Chen compares economic viability using the same standards that mortgage providers use in evaluating loan candidates.  At a minimum, with no additional debt, graduates need to earn three times the amount of their annual loan costs to be financially viable.  Take on debt and that earnings level can increase up to six times the level of annual tuition.  As the JD Journal story points out, NALP statistics show new law graduates earn, on average, $68,500.  The average graduate earning that should have had a tuition level of around $23,000 a year, but can forget the car and the house at that salary.  [MG]

On Frustration and Source Code

So this is somehow law if not law librarianship related, right?

Citing dissent across the Middle East, Europe and even the US in terms of OWS, Time has named "The Protester" as "person of the year." From Person of the Year Introduction by Time's Rick Stengel:

Is there a global tipping point for frustration? Everywhere, it seems, people said they'd had enough. They dissented; they demanded; they did not despair, even when the answers came back in a cloud of tear gas or a hail of bullets. They literally embodied the idea that individual action can bring collective, colossal change. And although it was understood differently in different places, the idea of democracy was present in every gathering. The root of the word democracy is demos, "the people," and the meaning of democracy is "the people rule." And they did, if not at the ballot box, then in the streets. America is a nation conceived in protest, and protest is in some ways the source code for democracy — and evidence of the lack of it.

See also, Time's cover story, The Protester by Kurt Anderson and The Media Messenger of Zuccotti Park about "how an activist/journalist's live video stream from New York City's Zuccotti Park garnered mainstream attention and helped galvanize a movement." Where was that guy back on Feb. 28, 2011?

There's the tie-in. If we are talking about a "tipping point for frustration", that certainly applies to the legal vendor-institutional buyer relationship and its "source code." Certainly isn't as world shaking as the examples cited by Time but... . [JH]

Supreme Court Action This Week

The Supreme Court issued two opinions on Monday of this week.  One overturned a practice of the Board of Immigration Appeals (BIA) that had been in place for decades.  The Court viewed the application of the “comparative grounds rule” as arbitrary and capricious in deportation proceedings.  That case is Judulang v. Holder (10-694).  The Court examined the application of §212(c) of the Immigration and Nationality Act which permitted the Attorney General to provide discretionary relief to aliens who lawfully lived in the United States for seven years, left the country temporarily, and then returned.  The exclusion proceeding would be based on a crime that fell within a separate list in the Act.  The Court notes that §212(c) had been repealed in 1996 but it still broadly applied to resident aliens living in the United States before the rule was repealed.

The BIA had applied the rule in allowing discretionary relief the context of deportation hearings, which had its own list of crimes that supported deportation, provided they were comparable to the list of crimes that supported exclusion.  The Court examined the application of the rule and found that there was no statutory basis to extend §212(c) to deportation hearings; that comparing the list of crimes became an arbitrary judgment call depending on how the crime was categorized making the BIA’s deportation decisions a “sport of chance.”  The Administrative Procedure Act precludes this as arbitrary and capricious.

I leave it to someone more versed in immigration law to explain the impact of this decision.  The Immigration Prof Blog calls the background of the case complex and will post an analysis of the decision later in the week.  Commentary on the case is here and here.  Justice Kagan wrote the opinion for a unanimous Court.  

The second case is Hardy v. Cross (11-74).  It concerns the “highly deferential standard” reviewing courts must give state courts when considering habeas corpus decisions under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254.  As typical in these cases, the result is fact dependent.

Cross was tried in Illinois for kidnapping and sexual assault.  His victim reluctantly testified at trial, and her testimony was described as halting, with pauses between her responses to questions.  The jury found Cross not guilty on the kidnapping charge and was unable to reach a verdict on the sexual assault charge, resulting in a mistrial.  On retrial, the victim had initially agreed to testify but was unavailable, ostensibly out of fear or anxiety at the prospect of appearing on the stand.  Her mother told prosecutors that she had run away.  Investigators contacted her family and other individuals extensively seeking the victim’s whereabouts without any success.  The trial court granted the State motion to use the victim’s prior testimony against.  The clerk who read it at the second trial did not use pauses that would have characterized it similar to the original testimony.  The jury convicted Cross on charges of criminal sexual assault and acquitted him of aggravated sexual assault.  

The Illinois Appellate Court upheld the conviction, noting as did the trial court, that the State used extraordinary efforts to locate the victim for appearance at the second trial.  The Illinois Supreme Court denied leave to appeal and the defendant filed a habeas corpus petition in federal court.  The District Court denied relief, but the Seventh Circuit reversed, holding the State did not do enough to contact the victim, citing other leads the State might have pursued.  The Court of Appeals criticized the State for not issuing a subpoena to the victim as another ground of reversal.

The Supreme Court held that it never required the State to issue a subpoena in Confrontation Clause cases where the witness went into hiding.  Additionally, it never required the State to pursue all possible avenues to discover the witness’ whereabouts, especially in hindsight.  Based on that reasoning, and the deference standard in the AEDPA, the Court reversed the Seventh Circuit in a Per Curiam opinion.  [MG]

Televising SCOTUS Proceedings: Serious Issues While Tossing in a Cynical 2-Cents Perspective and a Bit of Power Broker History

On Dec. 5, 2011, S. 1945 was tossed in the bill hopper (OK, I'm old school!), quickly read twice, because, well, the text really is brief, and referred to the Committee on the Judiciary. Hearings were held by the Subcommittee on Administrative Oversight and the Courts on the following day. Wow! Perhaps if all congressional bills were required to be one sentence long, our elected representatives would get down to business. (Think income tax reform: "All 'persons," individual human beings and business organizations, earning more than $30,000 will pay X% of their global annual income because all deductions, tax credits, loss carryovers and their kind are "history.")

Was a fire lit under the behinds of members of  the Senate Judiciary Committee because the latest USA TODAY/Gallup Poll found that 72% of the people surveyed think the Supreme Court should allow cameras to televise the 5.5-plus hours of oral arguments to be held during two days in March regarding the health care law being constitutionally challenged  by 26 states and the National Federation of Independent Business? Politics is poll-driven.

However one should note that S. 1945's sponsor is Sen. Durbin. Ah, he is (1) a Democrat and (2) a Senator from Illinois. Anyone remember which party and which state President Obama is from? (Note to readers, I voted for Obama and if I still lived in Illinois, I probably would have voted for Durbin, a relic of Illinois Democratic Party machine politics, if only because he was the brunt of a Karl Rove prank decades ago.)

S. 1945 is politically correct in that it is not focused on televising just the health care act's oral arguments. That would be too obvious. Titled, A bill to permit the televising of Supreme Court proceedings, the text reads:

SECTION 1. AMENDMENT TO TITLE 28.

(a) In General- Chapter 45 of title 28, United States Code, is amended by inserting at the end the following:

Sec. 678. Televising Supreme Court proceedings

`The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The hearings focused on whether SCOTUS proceedings should be required to be televised by statute (with the due process rights exception) or should by optional as in at the discretion of the Supreme Court. You can view the hearing's webcast here. I wonder if a Supreme Court Justice assigned one of his clerks (oops, my bad) or one of her clerks to watch the webcast.

Time to Get Serious. Federal Evidence Review has published on its website Cameras in the Courtroom Resource Page. It is an extensive collection of materials made available for an informed debate on what really is an important issue -- conducting SCOTUS proceedings in the open in the 21st century. Highly recommended. Also note that Federal Evidence Review has published a summary the Senate Judiciary Subcommittee hearing worth taking the time to read.

With a hat tip to Media Law Prof Blog, one might also be interested in reading Drexel Law prof Lisa McElroy's recent SSRN upload, Cameras at the Supreme Court: A Rhetorical Analysis.

What Would James Madison Do? While televised SCOTUS proceedings will make excellent fodder for the Onion News Network, the Corbert Report, and non-English language audiences for YouTube-ing the equivalent of the popular "Hitler parody videos," I have a hunch that if the framers of the Constitution were drafting the Consitution today, live broadcasts of SCOTUS proceedings would not even be an issue.

While Thomas Jefferson had an assine idea that the Constitution should be rewritten by each generation, I'll defer to the equally assine Originalist school of constitutional law jurisprudience for their opinion. At least one of the two long-time subscribers to that intellectually bankrupt school of thought could become a "rock star" if he sides with the proponents of televising SCOTUS proceedings --- and it ain't Justice Thomas. Besides don't we all want to verify the stats being compiled and published about which Justice is getting the most laughter in the court room?

And Now for Power Broker Gamesmanship. Call me cynical but I'm thinking President Obama et al do not want to queue up for tickets to attend the Supreme Court's oral arguments on health care reform. President Andrew Jackson would have sat in the front row. Perhaps President LBJ, too; more likely he would have called a Justice or two or three to the White House for a meeting. When LBJ really wanted to set the stage, meetings took place in his bedroom (imagine LBJ in his bathrobe ... now try to kill that image!) [JH]

"Advertorial" Reader Survey Rankings of Legal Vendor Services in the NY and DC Markets

On the heels of second annual New York Law Journal Reader Rankings of Legal Vendors published in September 2011, comes the first annual Legal Times Reader's Rankings of Legal Vendors, (dated Novermber 2011)! Yes, yes, I know both titles are owned by ALM. Both reader surveys were conducted by ALM's sales and marketing teams each time. The difference is that the vendor rankings are supposed to be local market spectific. The former for the New York legal market. The latter for the DC market. The NYLJ vendor rankings can be viewed here. Sorry, don't have a link to the Legal Times vendor rankings. Perhaps one is out, but I didn't look hard for it because, well, my hardcopy is as an "advertorial" supplement.

For my idiosyncratic selection of differences in this "local legal market" rankings comparision, I've tried to limit the comparison to very comparable product categories. One assumption I made was that NYLJ had a catagory labeled "Best Online Search Vendor" while Legal Times labeled the category "Best Online Legal Research" Where I could find perceived comparable product categories used by both, I have identifed the rankings from each reader survey in the below table.

Oddly, the NYLY had a category for Best Legal Process Outsourcing (1. Pangea3, 2. UnitedLex, 3. Integreon) while I found no similar one in the Legal Times ranking. Hey, perhaps I missed it. You know, the whole aging and decrepit Boomer-gen law librarian with just about no functional short term memory thing.

The Legal Times survey did have a couple of interesting categories not found in the New York Law Journal survey. (Loop back up to the whole WTF aging and decrepit caveat.) Here are the three unique Legal Times categories I found interesting. The most interesting one is:

1. Best Legal Research (Includes Print)

1. LexisNexis
2. Thomson Reuters
3. Bloomberg

Are the DC practitioners including BGov in addition to BLaw? Does "including print" mean DC partitioners are including BNA by voting for Bloomberg? NB: THe NYLJ poll was conducted before the announcement of Bloomberg's BNA acquisition. Also, does "including print" indicate that voters are responding to perceived differences in editorial quality, relevance of, and pricing for print titles by ranking Lexis ahead of Thomson Reuters?

2. Best Legal Research iPad App

1. WeslawNext
2. LexisNexis Legal News
3. Bloomberg

Ah, OK aren't iPad apps dandy?

3. Best Corporate Kit/Forms Provider

1. LegalZoom(dot)com
2. Blumberg Excelsior
3. LawDepot(dot)com

Really? DC practitioners are using LegalZoom and LawDepot forms? For exemplary research to work off of? For some  associate telling someone "to send this to the client or the billing partner for review and remember to bill the client 2.5 hours of time re: research and drafting X"? OMG, this is a 60-something corner office billing partner's dream come true if he or she is using LegalZoom and LawDepot forms (read "now I call bill the client for something other than reviewed associate's work, etc.).

And now for my admittedly idiosyncratic selection of category comparisons. Since sales and marketing teams ran these polls, I have no idea if the categories are strictly defined. I also have no idea how the surveys were conducted (eg for each category was a large list of product opinions provided? Was the list limited to advertisers for each individual publication?) Remember, one for primary purposes of these reader surveys is to sell "thank you for voting us top vendor in [insert local market]" ads. Also note that the published results from each only ranks the top three and provides absolutely no information about stats. Did number 1 beat out number 2 by one vote, 50, 300?. For the voting population in a category, what percent of readers picked the top ranked product, 20%, 50%, 70%?

Best Online (Legal) Research Vendor
Rank	NYLJ (9/2011)	Legal Times (11/2011)
1	WestLaw Next	LexisNexis
2	LexisNexis Total Litigator	Thomson Reuters
3	eLaw	Bloomberg
Best Small Firm/Solo Research Vendor
Rank	NYLJ (9/2011)	Legal Times (11/2011)
1	Westlaw Litigator	LexisNexis
2	Lexis Advance for Solos	Thomson Reuters
3	Google Scholar	Fastcase
Best Tables of Authority Software
Rank	NYLJ (9/2011)	Legal Times (11/2011)
1	LexisNexis	LexisNexis
2	WestCiteLink	Thomson Reuters
3	Shepard’s Full Authority	Fastcase
Best Case Management Software
Rank	NYLJ (9/2011)	Legal Times (11/2011)
1	SAGA Systems	Thomson Reuters ProLaw
2	Time Matters	Capital Novus
3	CaseMap	Symantic
Best Matter Management Systems
Rank	NYLJ (9/2011)	Legal Times (11/2011)
1	Serengeti Law	LexisNexis CaseMap
2	Corporation Service Co.	Serengeti
3	Bridgeway Software & CaseTrack	CaseTrack
Best Docketing & Calendaring Software
Rank	NYLJ (9/2011)	Legal Times (11/2011)
1	eLaw	LexisNexis Firm Manager
2	CompuLaw	Thomson Reuters ProLaw
3	Time Matters	Clearwell Systems
Best Time & Billing Software
Rank	NYLJ (9/2011)	Legal Times (11/2011)
1	Sage Timeslips	LexisNexis Time Matters
2	Time Matters	Thomson Reuters ELITE
3	SAGA Systems	Tab3
Note: Product identification listed as published in each publication. Caveat: I am dyslexic!

What can we say about the above survey results? For example...

Can we say that the presence of Bloomberg in the DC market finding and its absence in the NY market indicates that Bloomberg has better penetrated the DC market than the NY market? Don't think so unless the readers are including BGov and BNA and even then one must qualify that by recognizing the time differential between the two reader surveys.

Can we say that the failure of Wolters Kluwer to be listed in the top three of any relevant category means the Company is heading down the path of oblivion? Not without knowing the institutional demographics of readers who particpated in each survey and whether WK was listed as a voting choice.

Can we say that Fastcase has made significant inroads in the DC but not the NY market? (Like OMG, Google Scholar is ranked third in the NY best solo research service). Who knows because the methodology and findings of both surveys leave huge gapping information holes.

Is there anything we can say about the survey findings with some degree of certainty? I think there is. Law students are not being exposed to many of the above listed productivity-related services. Ditto for legal skills profs and law librarians. IMHO, case and matter "solutions" can and should be integrated into the legal curriculum to the greatest extent possible by becoming part of the law school "package" at no additional cost, assuming of course, vendors want to indoctrinate law students in their use for future licensing receptiveness.

Is there anything else that can be said with some degree of certainity? You bet. The "advertorial" value of reader surveys conducted by ALM sales and marketing department probably means that we will be seeing more local market surveys like the two covered in this post. [JH]

Cooley Dean Says Job Prospects For Law Graduates Are Strong

Nelson Miller, dean of Thomas M. Cooley Law School's Grand Rapids campus penned an editorial published in The Careerist last week.  He paints a rosy picture of the legal jobs market using Bureau of Labor Statistics data.  He cites 1,040,000 employed lawyers as well a other stats showing strength in the market for legal services.  The BLS page on lawyer occupation is here, and was cited in the comments to the editorial.  That page shows a 531,350 total for employed lawyers with a 0.7% relative standard error.  There is a footnote to the numbers, however, that states estimates do not include self-employed workers.  By Nelson’s numbers, that must mean there are approximately 500,000 solo practitioners out there, or something.

The problem is less with his numbers than his editorial doesn’t link to the BLS tables he uses for his estimates, making it difficult to replicate his conclusions.  I think it’s clear in legal writing, as an analogy, that the purpose of citation is to give the reader a clear path to the cited authority.  Maybe the citations will show up in the legal memoranda filed in the false employment data cases against Cooley. This may be an opinion piece, but the lack of identified, specific sources from the BLS undermines Miller’s argument that the legal employment picture isn’t as bad as critics make it out to be.    

As other comments note, the real problem is not necessarily employment generally, but quality employment that can pay off the crushing debt students incur getting a law degree.  I’ve seen other analyses that suggest leaving a $50,000 job to attend law school just to get a similar or slightly higher salary in the legal industry (or just industry generally, I guess) doesn’t make much sense in the long haul.  Hope springs eternal, but reality is what counts when it comes to law school debt.  [MG]

Update:  Dean Miller responds to my question of citation and specificity in the comments.  I thank him for this.

An eBook Divide

eBooks seem to hog up a lot of space in both the information and legal professional trade presses these days.  

On pg 12 of the December 2011 Information Today issue, there is an article on "Ebook trends" (the author used Ebook instead of eBook, not me) that discusses the international marketplace.  Specifically, it notes a white paper issed by O-Reilly Media at their Tools of Change for Publishing conference called "The Global eBook Market: Current Conditions and Future Projections."  

The research report discusses the current state of the eBook market.  It projects growth and preferences.  It reviews the state of the market country by country, noting some interesting facts that impede eBook domination. (This first report focused on continental European countries using the UK and US as benchmarks.  According to the article, there will be two more supplements to complete global coverage by 2012.) For example, unlike traditional books, eBooks do not enjoy a reduced VAT tax in Europe.  This is because they are classified as a license, not a product.  Result: eBooks cost more than their print counterparts and slows their adoption in the EU.

In addition to the pain of the pocketbook, Europeans seem to have a negative opinion of things that go digital. They have a dim view of the Google book scanning project and see it as a cultural attack. There are also concerns about surveillance and privacy, particularly in countries like France where they already deal with the Hadopi (three strikes piracy law).

Nevertheless, the eBook market continues to grow even in Europe.  

In addition to the research conducted by Tools of Change for Publishing, Bowker announced that in 2012 it will launch a major study to "assess and track device adoption, attitudes, and purchasing habits of ebook consumers in Europe, Asia, Australia, and North and South America."  It will be interesting to see if these studies conflict or support each other's findings.

Obviously there is money to be made in the eBook market.

Contrast this information with a story about an African library movement that was published in this same issue.  

On Pg 34, there was a sidebar to a larger story about bringing libraries to impoverished children.  The sidebar spotlighted the Lubuto Library Project in Zambia (Lubuto is the Zamibian word for enlightenment). Founder and Librarian Jane Kenney Meyers started her first library with finaical assistance provided by Dow Jones and with books from Follett Corp.  I was struck by this quote:

"We have been helping our librarian colleagues in Zambia define what a good book collection is, and we will go to Follett and request seven more collections that match our guidelines."

Will "a good book collection" include eBooks?  Probably not.  The end user of an eBook has to make an initial outlay of about $100 USD before they can even access an eBook.  These children are not likely to have an e-reader handy.  In case you had not noticed, Bowker will not be conducting any research on eBooks in Africa.

Will the eventual domnance of the eBook format divide the digital and not-so-digital native generation even further apart than we have already seen?  We are already seeing books only being published in digital format.

And what of our universities?  Will those blessed by large, well-managed endowments be able to provide digital tools, or attract the clientel who are able to afford these devices while less wealthy institutions of education will de facto be at a disadvantage?

Don't get me wrong, I see great promise in the eBook future; however, the commercial discussion of the eBook marketplace juxtaposed against the laudable work of Librarian Meyers was quite stark. And it caused me to think about how the playing field will change, even at a very local level.  

I had one bright thought that made me smile and that I would like to pass on to you.  I bet that those Zambian children will learn how to read a book from cover to cover and be in a better position than many of the very smart people who go to law school to concentrate on one 'thing' for extended periods of time and actually reflect on what they have read.  Of course, this is not ONLY due to a lack of eBooks but hey - Way to go Meyers!   (VS)

SOPA/PIPA vs a Crowdsourced Alternative, the OPEN Act

U.S. Senator Ron Wyden (D-Ore.) and U.S. Congressman Darrell Issa (R-Calif.) recently released a public draft of the Online Protection and Enforcement of Digital Trade (OPEN) Act as a bi-partisan alternative to the Stop Online Piracy Act (SOPA) and the Protect-IP Act (PIPA). You can view the Issa-Wyden public draft at www.keepthewebopen.com. The site also provides a Section-by-Section Explanation for the OPEN Act and a FAQ regarding the ITC and OPEN. Much more interesting is the opportunity to use a new crowdsourcing platform called "Madison" that allows everyone to comment and collaborate to craft an even better draft of the OPEN Act before it is formally introduced.

About the OPEN Act, see Techdirt's Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue. The Techdirt post includes what is called a draft framework for discussion by the OPEN Act's sponsors titled "Fighting the Unauthorized Trade of Digital Goods While Protecting Internet Security, Commerce and Speech" which closes with the following statement:

We intend to make public a draft of the legislative text of this proposal in order to enable the public to provide us with feedback and counsel before the proposal is formally introduced in the House and Senate.

A key provision of the public draft of the OPEN Act would provide the International Trade Commission with the authority to issue cease and desist orders against websites found to be dedicated to infringement. The public draft is now available via Madison here. What do you think? See, for example, Jonathan Zittrain's A SOPA compromise is floated.

End Note. Wouldn't it be interesting if someday all formally introduced federal legislation was crowdsourced and all contributions became part of the legislative history? Wouldn't need groundbreaking technology to do that... . Well until then, we still have Stephen Colbert. [JH]

Stop Online Piracy Act

Browsing On A Sunday: Copyright, Cat Hair, And Warranties

Constitutional scholar Laurence H. Tribe has submitted an analysis of the Stop Online Piracy Act to the House Judiciary Committee.  He says the Act is an unconstitutional implementation of prior restraint.  This counters a memo by Floyd Abrams who says copyright infringement is not protected by the First Amendment.  While that’s true, there’s something to be said for getting to decide what is or is not copyright infringement before denying protection.  Isn’t that part of the First Amendment prior restraint jurisprudence?  Note that Abrams’ statement (on behalf of the Directors Guild of America and others) is available on the House Judiciary Committee’s background page for the bill.  Only pro-passage material seems to be there.  Anyone wanting Tribe’s assessment can scrounge for it on Scribd.  More on this from The Hill.  That reminds me, I understand the recent elections in Russia were free and fair.  

Speaking of copyright violations, Mark Twain would probably be a proud supporter of SOPA based on this story from the Montreal Gazette.  It recounts and appearance in Montreal by Twain in 1881.  He had considered applying for Canadian citizenship to protect his literary output.  The article notes that that brothers Robert and Alexander Belford used a stolen set of proofs to produce a Canadian version of Tom Sawyer some six weeks before the official American version.  Twain estimated he lost $10,000 in royalties because of this.  The Authors Guild will likely estimate this as $20 billion in today’s dollars, and Viacom will likely blame Google for the breach.  

In another twist of the IP knife, author Cory Doctorow relates the tale of a song created by major artists P Diddy, Will.i.am, Alicia Keys, Snoop Dogg, and Kanye West in praise of file sharing site MegaUpload.  Imagine, artists who may actually lose sales due to piracy singing the praises of a site the RIAA et al. accuse of fostering piracy.  Well, for some reason, Universal Music did not care much for the music video that got uploaded to YouTube and sent takedown notices.  According to Doctorow, there has been a back and forth with notices and counter-notices flying fast and furious with the song appearing and disappearing from the site.  MegaUpload says it has contracts with all of the artists and can prove it.  Doctorow adds:

Either Universal has done this [file multiple piracy complaints] deliberately, to stifle debate over its policies using false copyright complaints, in which case it would be social suicide for America to pass SOPA and give Universal the power to shut down any website with a fake copyright complaint.

Or perhaps Universal did this through blundering, inexcusable incompetence, a total inability to distinguish between the music it owns and the music everyone else owns. In which case it would be social suicide for America to pass SOPA and give Universal the power to shut down any website with a sloppy, erroneous copyright complaint.

Either way, Universal and its pals have demonstrated their absolute unfitness to wield power over free expression.

As of now, the song is down via the links posted on Boing Boing.

Next we have the story about cat hair voiding the warranty on a computer.  It seems one gentleman named “Chris” sent his HP Elitebook in for a warranty repair and HP refused to provide service.  The excuse?  The unit was so full of cat hair that it constituted a “biological hazard.”  Anyone who has cat or cats as pets must be living in a biological hazard by that logic.  There are pictures, though I agree with Chris that he probably had more hair on his shirt than what the pictures showed in the Elitebook’s electronics.  I suppose if it were nothing more than thick mounds of house dust everything would have been fine.  Chris thinks that HP was trying to find a way to avoid servicing his unit.  

It’s always a good idea to take a can of compressed air to any computer’s vents, just to blow out the dust from time to time.  It can affect the performance of the electronics if it builds up over time.  But if one needs to have a machine serviced, it’s best to clean it out thoroughly to avoid the potential of a company shirking its warranty responsibilities.      

Finally, we have another Homer Simpson quote: “Extended warranty?  How can I lose?”  CBS Money Watch thoughtfully explains how a retailer pushing extended warranties is legalized betting.  The company bets you won’t need to use the extended warranty and gets to keep your money.  I remember buying an $80 printer at Best Buy once with the sales clerk trying to get me to sign up for an extended warranty.  Why would I want to, I wondered, when the replacement ink cartridges amounted to about two-thirds of the initial purchase price?  Easier and cheaper to buy a new printer with ink supplied.  [MG]

Round-Up of Law Practitioner Blogs

Florida Family Lawyer Blog
http://www.floridafamilylawyersblog.com/
http://www.floridafamilylawyersblog.com/index.xml
Discusses family law cases, news, and opinions in Florida. Published by Steven Blumenthal .

Mississippi Criminal Defense Lawyer Blog
http://www.mississippicriminaldefenselawyer-blog.com/
http://www.mississippicriminaldefenselawyer-blog.com/index.xml
Examines criminal cases, news, and opinions in Mississippi. Published by The Stroud Law Firm.

San Jose Estate Planning Attorney Blog
http://www.sanjoseestateplanningattorneyblog.com/
http://www.sanjoseestateplanningattorneyblog.com/index.xml
Discusses estate planning news, opinions and related matters in San Jose, California. Published by Raymond Sheffield of the Sheffield Law Office.

Mesothelioma Attorney Blog
http://www.mesotheliomaattorney-blog.com/
http://www.mesotheliomaattorney-blog.com/index.xml
Discusses mesothelioma and asbestos cases, news, and related matters nationwide. Published by Pintas & Mullins Law Firm.

Reyes, O'Shea & Coloca, P.A.
http://www.mesothelioma-lawyersblog.com/
http://www.mesothelioma-lawyersblog.com/index.xml
Examines mesothelioma and asbestos cases, news, and related matters nationwide. Published by Reyes, O'Shea & Coloca, P.A.