Law Librarian Blog

TRUSTe's 2011 Website Privacy Index

From the press release:

In the 2011 Website Edition of its Privacy Index, TRUSTe analyzed the privacy policies of the top 100 U.S. websites (as ranked by Alexa Sept. 2011) to evaluate privacy practices by measuring key policy attributes, as well as the type of disclosures contained in them. TRUSTe found that while nearly 100 percent of websites today include a privacy policy, existing policies are highly complex, lengthy and written in language that is confusing for the average person to understand. Additionally, the vast majority of privacy policies are not readily transparent regarding third-party usage of data or consumer choices.

...

The privacy index findings include current online trends, such as:

• 72 percent of the websites analyzed say that they allow third-party tracking on their sites;
• 36 percent say that they collect users' location data; and
• 31 percent say that they share user-provided data with third parties.

However, in regards to consumer disclosures, many websites still fall short:

• 93 percent of the websites do not disclose how long they keep customer data on file; and
• 68 percent do not explain how a user can delete an account.

View the TRUSTe 2011 Privacy Index: Website Edition.

Hat tip to beSpacific. [JH]

Publishers Hate Libraries, But We Sort Of Knew That

Techdirt has an interesting article on ebooks called If Libraries Didn't Exist, Would Publishers Be Trying To Kill Book Lending?  The article is a reaction to an examination of major publisher attitudes to providing ebooks to libraries as published in the New York Times on Christmas Eve.  In essence, the publisher mentality is to place as many inconveniences on the library patron trying to borrow an ebook so as to nudge those patrons to a sale instead, assuming nudge means something like slamming someone’s head into a brick wall.

As Techdirt aptly points out, the inconvenience of borrowing an ebook may lead a prospective customer to acquire a copy that does not necessarily end in the exchange of money for goods.  If a publisher regards a copy of an ebook borrowed from the library as a lost sale, they can’t be happy with the more convenient customer alternative.  I might point out that the option to which I allude exists whether libraries lend ebooks or not.  So why not work with libraries, entities that respect the limits of copyright law?  Legislation such as SOPA is not a viable alternative, unless we want to end up with an Internet that is mostly shopping and news sites.  I'm sure HarperCollins et al. wouldn't mind.

Both articles point out that there are many smaller, more nimble publishers who have no problem with libraries lending electronic books.  Perhaps these publishers can lead the way to a more enlightened view of engaging the market.  [MG]

Law School Scamblogging Law Prof is ATL's Lawyer of the Year for 2011

Staci Zaretsky announced the winner of ATL's 2011 Lawyer of the Year contest yesterday:

Congratulations to Paul Campos, the tenured, top-tier law professor behind Inside the Law School Scam! He is ATL’s Lawyer of the Year for 2011.

If you’re not familiar with Inside the Law School Scam, it was on this blog that Campos, writing pseudonymously at the time as LawProf, offered readers a harsh indictment of legal education.

Perfect timing for this year's AALS Annual Meeting! I wonder if Campos will add this to his CV.

For details, check out Staci's post. [JH]

Friday Fun: The Unemployment Crisis

... for people with facial tattoos! I'm not sure Title VII is intended to protect this class but I'm thinking some lawyer might try to make the case. [JH]

Just Below the Law: Odds are high that this may be your future, Class of 2012 grads

If you are not about to graduate from a top 10 national law school (even then, you damn well be pretty high in the class rank), your law school's placement office staff may not adivse you of this except with this CYA "you didn't hear this from me."

Moving beyond the causal connection between facial tattoos and unemployment in today's Friday Fun feature, the Class of 2012 that is about to be unemployed or underemployed law school grads might want to start checking out Just Below the Law: A resource for contract attorneys now for tips and advice on how to acquire some sort of gainful employment even if it does not cover their law school loan debt payments.

Frankly I am thinking that after the hooding ceremony, getting a gig as a wait staffer or bartender might pay as much or more, tips included, and certainly will provide more networking opportunities. At some point, I'm betting the legal academy's amoral, myopic and social irresponsibilty will eventually lead to substituting "going postal" with "going hooding." When that happens, the hooding ceremony podium will be full of empty law faculty seats and the law dean will insist on spending tuition cash for body armour as a job-related expense. {JH} 

And now for something completely different: Above the Law’s top 10 most popular posts of 2011 and predictions for 2012

See Above The Law’s Top Ten Most Popular Stories of 2011. Predictions include:

Law schools will get more creative in how they massage their employment numbers. We talk a lot about “transparency,” and there will be MOAR TRANSPARENCY in 2012. But the real goal of getting legal educators and administrators to simply tell the truth to prospective law students will not be realized. Apparently, we live in a world where we have to come up with incentives for law schools to tell the truth, because left to their own devices, they’ll continue to obfuscate the facts.

[JH]

Opening: Emerging Technologies Librarian, Univ. of Minnesota Law Library

The University of Minnesota Law Library is seeking dynamic, innovative, and visionary candidates for the position of Emerging Technologies Librarian. This professional position will identify existing and emerging technologies and apply them in a highly patron-oriented, academic law library that is nationally recognized for its outstanding services and collections. The Emerging Technologies Librarian will report to the Associate Director for Library and Educational Technology.

Responsibilities: The Emerging Technologies Librarian evaluates and implements existing and emerging technologies to enhance the Law Library’s general operations, including communication with and delivery of service to the Law School community. The position is responsible for the development of online administrative tools and virtual methods of providing library services, and trains Law Library staff in their use. The position participates in the promotion of the Law Library’s growing collection of electronic resources and develops training tailored for the Law School faculty, students, and Library staff. The Emerging Technologies Librarian contributes to the Library’s instructional programs, including the development of online resources such as multimedia tutorials and participation in classroom instruction. The position assists in the development of content and other enhancements to the Law Library’s website. The Emerging Technologies Librarian participates in reference services, providing reference desk and virtual reference service support. The position serves on internal Law Library committees, University Libraries’ committees, and appropriate local and national professional association committees and work groups.

Required Qualifications

• MLS from an ALA accredited graduate school
• JD from an ABA accredited law school

Demonstrated Evidence of the Following Competencies: knowledge of existing and emerging technologies; knowledge of legal research tools and techniques; organizational and communication skills; commitment to customer-service philosophy; ability to take initiative; ability to work collaboratively; project management and leadership skills; and commitment to scholarly publication and professional activities.

Preferred Qualifications

• Professional academic law library experience strongly preferred
• Substantial experience conducting legal research and/or providing legal research instruction

Salary and Classification: Salary and rank are commensurate with qualifications. Professional librarians are hired under the University of Minnesota’s Professional and Academic classification system which may lead to continuous appointment within six years based on successful fulfillment of library duties, published scholarship, and professional participation.

Application Information: Apply online at http://www1.umn.edu/ohr/employment/. Include letter of application, resume or professional vitae, official transcripts, a diversity statement (1 page max; attach as Additional Document), and a minimum of four professional references.

Note Regarding Application Materials: It is an expectation of the University of Minnesota that people hired into academic positions can demonstrate multicultural competence and a commitment to diversity. The diversity statement should be a summary of actual accomplishments (rather than a philosophical statement). An example might be noting specific actions and success you have had in recruiting for a more diverse staff, retention efforts, committee or taskforce involvement, etc.

The University of Minnesota is an equal opportunity educator and employer.

ABA President Blames Law Students for Going To Law School In A Shrinking Job Market

William Robinson, president of the American Bar Association, gave the most amazing interview to Reuters yesterday.  One could call his words passionately defending his organization or a clumsy expression of how out of touch he is on the reality of the legal job market.  The fact that Reuters titles the piece ABA head has little sympathy for jobless lawyers doesn’t do Mr. Robinson any favors.  In essence it’s the law graduate’s fault for not having a job:

It's inconceivable to me that someone with a college education, or a graduate-level education, would not know before deciding to go to law school that the economy has declined over the last several years and that the job market out there is not as opportune as it might have been five, six, seven, eight years ago.

And before anyone starts raising the issue of misleading job statistics, he’s got that covered.  There’s only four schools out of 200 that have statistic problems.  So graduates, you should have figured it out for yourselves, what with free will and all that.  Eh, we’ll see how those class action suits play out.  Maybe someone might have to revise their numbers or something.  As for the Senate, two or three inquiries out of a hundred members hardly qualify as a groundswell of comment.  I don’t know, maybe a hearing or two might change an opinion on that.  Maybe not.

The one comment that got me was the statement on whether tenure practices raise the cost of tuition.

When I was going to law school, and I sold my Corvair to make first-semester tuition and books for $330, a sizeable portion of the faculty had tenure. They had tenure then and they have tenure now.

No statement about whether he had to walk twelve miles in the snow to get to torts class.  I doubt that at the best reading of his statement that it would resonate with the disgruntled graduate facing a rather large debt load.  For those, they should have chosen a non-elite law school that charged less.  So, in a nutshell (do I owe West any money for using that phrase), quityer[whining].  I wonder if the ABA will use this as marketing to get more members.

Speaking of tenured law faculty, check out this piece from The Careerist.  Better than being a lawyer is to be a law faculty member.  It covers a job survey conducted by AOL of the best and worst jobs out there.  Law faculty is one of the best jobs out there with some of the most time off:

While the entire list could have just been comprised of different types of college professors, we listed only the highest-paying position. Law professors have a median income approaching $100,000, and have a top range of nearly $150,000. Becoming a law professor only requires a law degree, although many today also have a Master of Laws and even a Ph.D. The time spent seems well worth it. Besides the generous salary, they enjoy unique benefits "including access to campus facilities, tuition waivers for dependents, housing and travel allowances, and paid leave for sabbaticals," according to the BLS. Between these sabbaticals and the summer vacation, most professors work nearly 400 hours less than the average U.S. employee. Money magazine and Salary.com rated college professors at No.2 in their 2006 "Best Jobs in America" annual report.

Librarians come in 6^th place for best job (law faculty is 2^nd):

6. Librarians

Hours worked/year: 1,819

Median hourly earnings: $27.35

No. employed: 148,240

Hours worked/week: 38.3

Median annual income: $54,500

Top annual income: $83,510

There are several different types of librarians, and depending on the position, workloads can either be demanding or much lighter than the national average. According to the BLS, those working at colleges can work full-time, and even weekends and some holidays. However, nearly half of librarians (63,000 out of the 148,000 positions) work in elementary, middle and high schools. This means that their schedule is limited to the morning to mid-afternoon on school days, and rarely in the summers. U.S. News and World Report listed the job in its "Best Careers of 2009" report.

What a world.  [MG]

“If we can put a man on the moon, why can't we launch the Library of Congress into cyberspace?” YES WE SCAN Petition

Carl Malamud (Public Resources.Org) and John Podesta (Center for American Progress) have launched a petition drive calling upon the federal government to create a Federal Scanning Commission.

To date, thinking about digitization has been piecemeal. Individual agencies have thought about the problem in terms of prototypes and pilots. Only the White House can bring these efforts together under one roof and begin to think in terms of a national digitization strategy for our federal government.

Quoting from the petition organizers' Letter to the President. The goal is to obtain 25,000 signatures by January 20, 2012  Sign the White House online petition here. (free registration for whitehouse.gov account required). 

See Greg Lambert's post on the 2011 CLawBies Friend of the North Award winning blog (kudos!) 3 Geeks for more. Greg's post also highlights the National Archives Citizen Archivist Dashboard project. [JH]

Duncan Law School's Provisional Accreditation Denial: ABA Asks Court to Butt Out of Its Affairs

In its Jan. 3, 2012 brief in opposition to Duncan Law School's motion for a temporary restraining order, the ABA starts out making its case why the ABA's recent denial of provisional accreditation should not be litigated at this time:

Rather than pursuing an appeal, as provided by federal law and the Section’s Rules, the School asks this Court to intervene and immediately censor any notice of the Council’s decision.

As an initial matter, the Council’s decision is not ripe for review because Duncan has not exhausted its right to appeal to the Appeals Panel constituted in compliance with Department of Education (“DOE”) regulations. Further, the School has not met its heavy burden of clearly establishing each element required for the extraordinary relief it seeks. This relief is undeserved and unprecedented, and should be denied.

As noted at Provisional Accreditation Denial by the ABA: A speculative back-story for Duncan Law School's Lawsuit, Duncan Law's position is that there is no reason to go through the ABA's administrative procedures because the School maintains it has met the ABA standards for provisonal accreditation.

In yesterday's Non-Sequiturs feature, ATL's Elie Mystal adds the following about the ABA brief:

Its basic response is that the ABA doesn’t arbitrarily keep bad schools out, it only arbitrarily lets bad schools in.

For a summary of the ABA's position placed in context, see the WSJ Law Blog's ABA Details Reasons for Flunking Duncan Law School. See also, Law School Transparency's ABA Files Brief in Opposition to Duncan School of Law Complaint.

Hat tip to TaxProf Blog's post for links to the ABA brief and the posts by the WSJ Law Blog and Law School Transparency.

Update: In addition to the ABA's brief, linked above, additional filings include the supporting Declaration by the ABA Consultant on Legal Education, Hulett H. (Bucky) Askew and the ABA's List of Exhibits. See also the ABA's press release. Hat tip to Gary Rosin's The Faculty Lounge post. [JH]

Digital Book World's 10 Predictions for 2012

They include:

• Authors will become disenchanted with the rights they sign away to publishers. Shorter and more flexible copyright terms will become more attractive to authors.
• The standard e-book royalty from major publishing houses will rise next year and will escalate with increased sales.

For all 10 predications along with their explanations, see Digital Book World Editorial Director Jeremy Greenfield's Ten Bold Predictions for Book Publishing in 2012. [JH]

Reminder: Register by January 6th to Receive a 15% Early-Bird Discount for Ark Group’s 6th Annual Conference on Best Practices & Management Strategies for Law Firm Library, Research & Information Services

Register for Ark Group/Managing Partner’s Best Practices & Management Strategies for Law Firm Library, Research & Information Services themed At the Intersection of Process and Knowledge Management—Delivering Trusted Information that Intersects with Intelligent Decision Making (held at the AMA Executive Conference Center, New York City on February 23, 2012) by January 6th here to take advantage of the early-bird 15% discount off the regular $895.00 per registrant cost.

Snips from the conference announcement:

Technology, coupled with the forces of the marketplace, continue to exert a significant influence on the role and practice of today’s law firm library, research and information service professional. The incredible pace of growth around social media and other web content has changed the nature of the function itself as we now face the challenge of supporting the business of law alongside the practice of law—helping lawyers to identify client and business development opportunities, strengthen client relationships, focus on competitive intelligence, and stay up-to-date on legal, regulatory, trade & industry trends. Technology in support of e-libraries, e-books and digital subscription aggregation and delivery—coupled with new law firm economic models—suggest that we should be proactively preparing to substantially refine our workflows and our mission to align with business and practice needs.

...

As we grow accustomed to working in a “do-more-with-less” environment, opportunities for cross-functional partnering between departments will no doubt increase. We are already beginning to see an erosion of the walls that separate marketing and business development from knowledge management and the library/information services. This year’s forum will help to illustrate how library, research and information service professionals can be the linchpin to promoting agility and process efficiency by demonstrating a keen industry awareness—clarifying connections between data, information and content—greatly reducing response times while delivering trusted information that intersects with intelligent decision making.

Yes, even with the 15% discount it is a bit expensive. Damn it all to hell, there is NOT one session which would not make a damn good regular program session at AALL's annual meeting in Boston. I'm not talking about a pre-conference PLL Summit with its additional registration, travel and lodging costs. I'm talking about professional education and development sessions during the regular conference that would be of interest to many law librarians -- not just firm librarians. Law firms tend to lead the rest of us down the path of innovation they establish. Topics being addressed at this conference are examples. 

The Conference Agenda includes [download complete agenda]:

Keynote: The Transformation of Legal Research: Training the Google Generation of Lawyers for the New Legal Marketplace by Robert C. Berring, Jr., Walter Perry Johnson Professor of Law

Preparing for the Virtual Library: What Business are you in after your Library is Gone? by Jean P. O'Grady, Director of Research Services and Libraries, DLA Piper LLP

Building a Bridge Between IT and Library Services by Greg Lambert, Library & Records Manager, King & Spalding and Scott Preston, Chief Information Officer, Fulbright & Jaworski LLP

Destroying the Silo: Embedded Librarians & Research Specialists by Marlene Gebauer, Director of Research, Greenberg Traurig LLP, Steven A. Lastres, Director of Library & Knowledge Management, Debevoise & Plimpton LLP, others TBD

Clarifying Connections: Promoting Agility and Process Efficiency by Formalizing the Partnership between the Library & Information Services, Knowledge Management and Business Development by Alirio Gomez, Global Director of Library & Information Services, Milbank, Tweed, Hadley & McCloy LLP, Kathy Skinner, Firmwide Information Resources Manager, Morrison & Foerster LLP, others TBD

Running Library & Information Services like a Business by Sandra Campbell, Library Director, North American Region, Baker & McKenzie LLP, Lynn Oser, Director, Information Resource Management, WilmerHale, Others TBD

No way I can get my little county law library to pick up the tab for this conference. But the day will come when the issues discussed at it will have to be addressed by the statutory user population my library serves. [JH]

Ninth Circuit Upholds Statute Giving Immunity In Spying Case

One of the Christmas presents the major telecommunication companies received last week is the opinion Hepting v. AT&T Corp. out of the Ninth Circuit Court of Appeals.  That case considered whether Congress had the authority to retroactively immunize AT&T and others for cooperating with the government over an alleged warrantless eavesdropping program.  This was reflected in amendments passed by Congress to the Foreign Intelligence Surveillance Act in 2008, notably § 802 authorizing the Attorney General to certify to a court that the telecoms acted within one of five categories that would trigger immunity.  The District Court dismissed the constitutional claims against the statute, and the Ninth Circuit upheld that finding.

The Court dismissed the Separation of Powers argument.  Hepting argued, among others, that the Attorney General became the ultimate adjudicator under the statute and that Congress could not grant the AG that authority without standards that guided his discretion.  The Court noted that other legislation granting discretionary powers to the executive was upheld in more vague circumstances and that Congress gave the AG five specific sets of circumstances that could be invoked to trigger immunity.  Moreover, the rationale the AG used was subject to in camera review by the Court as to its substance.  The nature of national security does not lend itself necessarily to independent challenge by a plaintiff.  That does not violate the Due Process Clause according to the Court.

The Court also noted that the statute may have immunized the telecoms, but it did not immunize the government from suit over the underlying eavesdropping programs.  This was based on the explicit terms of the statute and its legislative history.  The District Court had dismissed plaintiffs’ claims against the government and these were reinstated.  The Electronic Frontier Foundation states in its press release on the Hepting decision that the government will likely invoke the state secrets doctrine in the case going forward against it, and that “this argument has already been rejected in other similar cases.”  I’m not so sure about that.

I wouldn’t consider Wikipedia as a hotbed of legal authority, but the entry on state secrets states that courts have rejected the doctrine only four times since 1953.  The case by case summary suggests the courts have accepted the state secrets privilege in circumstances that are way more egregious than those presented in this case.  Moral authority may be one thing, but legal precedent seems to be something else.  [MG]

Piggybacking on Students' Free WEXIS Access by Practitioners: "No can do" says Utah State Bar

It's a widespread and fairly well-known practice that one "benefit" of hiring a law student as a law clerk is access to free WEXIS legal search. However, under Westlaw's "Educational Purposes" and Lexis "Academic Purposes" licensing agreement clauses with law schools that provide student user accounts, any law student working as a law clerk who is using his or her WEXIS academic account in the workplace is violating the terms of the WEXIS license. Frankly I've got no complaint with that. A license is a license is a license.

I don't know if this issue has been addressed before in the context of state rules of professional conduct but Utah recently did. "Requiring, encouraging or even tolerating the violation of the law student’s contractual obligation to refrain from using the services for profit is also conduct involving dishonesty or misrepresentation that also is a violation of Rule 8.4(c) of Utah Rules of Professional Conduct." Under Utah law, the state bar also noted that this is a theft of services. 

In a nutshell, and quoting from the Utah State Bar's Ethics Advisory Opinion Committee's Opinion No. 11-03 (Issued Nov. 15, 2011):

1. ISSUE: Is it a violation of the Utah Rules of Professional Conduct for an attorney to ask a law student to undertake research using the law student’s free account and in breach of the student’s contract with Lexis and/or Westlaw?

2. OPINION: A lawyer who encourages or participates in a law student’s violation of the student’s contractual obligation to the electronic research service violates the Rules of Professional Conduct.

For more, see Jim Levy's Utah opinion notes "numerous" law students report employment is conditioned upon criminal misuse of free Wexis access post on Legal Skills Prof Blog. [JH]

Questions a Publishing Industry Futurist is Mulling Over for 2012

One would expect a publishing industry futurist to issue a set of predictions for 2012. But for 2012, Mike Shatzkin writes:

Rather than predict the future for the industry’s biggest players, I am posing what I think are the biggest questions faced by each category of them. Some of the questions are within their power or responsibility to answer; some depend on outside circumstances; and some may never be answered at all. But any honest futurist (and I try to be one) has to admit that questions outnumber answers.

Actually, I prefer this format. I would rather know the questions experts like Shatzkin are asking themselves instead of reading about predictions. Personally I find this to be much more informative.

Skatzkin lists his questions under a number of publishing industry topics, including, for example, The Biggest Publishers, Publishers Bigger Than Small but Not Big Six and Smaller Publishers. I found his questions under the topics Authors, Agents and The Industry (Generally), particularly interesting. A snip from each of those topics (do note there are more questions under each topic).

Authors: How do they build their own online platform? (And every author who plans to make a living through writing and hasn’t yet built a platform has to think about having one.)

Agents: Do they know what they need to know to make a “profit-sharing” deal with a publisher?

The Industry: Does the industry show signs it will trifurcate, with narrative text, adult illustrated, and children’s books becoming three largely different businesses?

For much more, see The Shatzkin Files post, No predictions this year; just questions. Highly recommended.

Now are they any legal publishing industry futurists out there? Hello Jason Wilson! Got questions you are mulling over for 2012? [JH]

Shear Evaluates His 10 2011 Social Media Law Predictions

Unlike many folks who justmake annual predictions, Bradley Shear has actually assessed his 2011 predictions. On Shear on Social Media Law, see Part One and Part Two of his reality checking evaluation. He observes "[f]or 2011, 9 of my 10 ten predictions came true and the other prediction not yet realized appears will come to fruition within the next couple of months." Makes for very interesting reading. [JH]

Chief Justice Roberts on SCOTUS Ethics Procedures

"Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court. I would like to use my annual report this year to address that issue, as well as some other related issues that have recently drawn public attention. The space constraints of the annual report prevent me from setting out a detailed dissertation on judicial ethics. And my judicial responsibilities preclude me from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals. But I can provide some clarification on how the Justices address ethical issues and dispel some common misconceptions" writes Chief Justice Roberts. For details, see 2011 Year-End Report on the Federal Judiciary. See also CJ Roberts' Year End Report on the Federal Judiciary by Ruthann Robson, CUNY Professor of Law & University Distinguished Professor.

Hat tip to BTL's Tony Mauro, In Annual Report, Roberts Defends Supreme Court Ethics Procedures ("Roberts' discussion of Supreme Court ethics was extraordinary, taking up all but the final two paragraphs of his 12-page report.")

Provisional Accreditation Denial by the ABA: A speculative back-story for Duncan Law School's Lawsuit

On Dec. 22, 2011, Duncan School of Law filed a complaint in the U.S. District Court of the Eastern District of Tennessee against the ABA alleging antitrust and due process violations after failing to receive ABA provisional accreditation. [Text of complaint; Links to recent local press coverage] In a recent article by the NYT's reporter blogging law profs love to complain about because of his ongoing criticism of the legal academy from a soapbox much larger than their own, David Segal interviewed New York University law prof Stephen Gillers for his prediction about the lawsuit.

What are the odds of Duncan prevailing with this lawsuit? Worse than dim, predicted Professor Gillers.

“The lawsuit is doomed,” he said. “The antitrust argument seems to be that the A.B.A. is limiting the number of law schools. But there are 200 A.B.A.-approved law schools, so if the council’s secret agenda is to limit competition, it’s doing a lousy job.”

Remember, Segal featured Duncan Law in his Dec. 17, 2011 article, For Law Schools, a Price to Play the A.B.A.’s Way. The article spilled a fair amount of ink on the high cost of complying with ABA Accreditation Standards. In the context of Duncan Law and its institutional mission to supply the labor market with lawyers for the common man (and woman) Segal reviews the on-going legal education debate:

The debate about legal education has focused on tuition costs in the stratospheric layers of the law-school world. But what of the ground floor? Duncan hopes to draw students from economically distressed parts of the country, including the Appalachian Mountains of Tennessee, and sincere efforts have been made to keep overhead to a minimum.

Later in the article Segal reports Emory law prof George B. Shepherd opinion:

What the A.B.A. can be blamed for, says George B. Shepherd, a professor at the Emory University School of Law, are exorbitant prices even at those schools that aspire to affordability. That, he maintains, is all about accreditation.

Consider business schools, Mr. Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

Professor Shepherd says aspiring lawyers should have the same choices as aspiring executives and managers. Others say the case against the A.B.A.’s standards is that they are one-size-fits-all and overly rigid, which drives up the cost of both a diploma and of legal services.

I'm not sure the B-School analogy really works for me. Bad business advice isn't the same as bad legal advice for criminal matters. But civil law matters are an entirely a different matter.

Ensuring wannabe attorneys are qualified to practice law. The ABA's mantra in response to media attention has now boiled down to its accreditation role as serving society by making damn sure that would-be attorneys are qualified to practice law by the professional education they receive from ABA-accredited law schools. manymay believe that is a load of crap; hell, it wouldn't take much effort to find some scholarly-inclined members of the legal academy who stated "that's not our job, dude."

State bar exams decide this issue. Pass, you are nominally "qualified." Don't pass, take the bar exam again. If the ABA is just concerned with producing qualified lawyers, all it has to do is get in the bar exam prep business. Just ask many debt-laden law school grads. Bar prep compresses the old tradition of "reading the law" into a intensive cramming session that does not require attending law school. Like OMG, just about anyone with a BA or BS who knows how to play logic games, can memorize black letter law and has acquired the ability to construct a few paragraphs in a semi-coherent fashion can pass state bar exams after taking a bar prep course to be licensed to practice law without three years of law school.

Quoting again from Segal's For Law Schools, a Price to Play the A.B.A.’s Way article:

This has been a difficult year for the A.B.A. It has been peppered with insistent letters by members of Congress — most notably Senators Barbara Boxer, Democrat of California, and Charles E. Grassley, Republican of Iowa — over a number of accusations of failings. Among the contentions is that the organization has not done enough to prevent law schools from overstating the current job prospects of graduates.

The A.B.A. has lobbed back lengthy and detailed letters to Capitol Hill, which appear to have done little to lower the temperature. Threats of Congressional hearings have surfaced in the news media.

In this volley of correspondence, the A.B.A. has noted that it would be an antitrust violation to cap or limit the number of law schools. That is true, but it suggests that the debate about legal education is focused in the wrong place. What ails the law school market isn’t a lack of regulation, says Clifford Winston, a senior fellow at the Brookings Institution and co-author of a book, “First Thing We Do, Let’s Deregulate All the Lawyers.” He says it’s the near-total absence of competition.

“The A.B.A. is a powerful group that has a strong status-quo bias,” he says. “Getting them to turn things around is obviously quite difficult because they’re looking out for their own interests.”

(First Thing We Do, Let’s Deregulate All the Lawyers, by the way is an interesting if difficult read. I've been slowly trying to read (and understand it) because it is full of economic analysis that is a bit much for my small brain. I've yet to read a damning critique of the work in the law prof blogosphere. Perhaps law prof bloggers have been too busy, first with criticizing the "law scam" law prof blogger and now Segal. But I digress... .)

Segal's Dec. 17, 2011 article closes with Duncan Law waiting to hear the outcome of the law school's Dec. 2 meeting with ABA regarding its request for provisional accreditation. Yes, it is a bit dramatic.The ABA's official response came shortly after the article's publication. See Controversy Over the ABA Denying Provisional Accreditation to Duncan Law School which quotes the ABA's official notice, dated Dec. 20, 2011, as stating that "At its December 2-3, 2011 meeting, the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association denied the application for provisional ABA approval [by Duncan Law]."

A speculative back-story. Much has been made about the timing of the ABA's official notice to Duncan Law and Segal's Dec. 17, 2011 NYT article. However, WSJ Law Blog's Joe Palazzolo reports in Duncan Rejected by the ABA, Sues for Accreditation (Dec. 22, 2011) the following:

An ABA spokeswoman had no immediate comment on the lawsuit but pointed out that the association’s accreditation committee notified Duncan in October that it intended to recommend that the school be denied provisional accreditation.

(Emphasis added.)

Making 2012 an even more difficult year for the ABA. Being cynically (or pragmatically) inclined, Duncan Law probably had a damn realistic expectation that the ABA was going to deny provisional accreditation even if the ABA's gatekeepers did not clue in the law school back in October by what would have been an unofficial notification as suggested in Palazzolo's article. Given that distinct possibility the "selection" of Duncan Law in the context of the tenor of Segal's Dec. 18, 2011 article should be noted.

Instead of appealing the ABA's denial or reapplying after 10 months, both available under ABA rules, Duncan Law decided to sue the ABA because the school maintains it already is in compliance See the Knoxville News story (quoting from an email by Duncan's Law School dean). The Courthouse News Service's Dan McCue recaps some essential elements of Duncan Law's claim:

[Duncan Law] claims that the ABA's decision was "also contradicted by the findings and decisions of two other accrediting agencies - SACS-COC [the Southern Association of Colleges and Schools - Commission on Colleges] and the Tennessee Board of Law Examiners ('TBLE') - one recognized by the United States Secretary of Education and the other an arm of the Tennessee Supreme Court." ... The school claims, "these accrediting authorities applied substantially similar standards as did the ABA's council to the same facts."

See also Karen Sloan's NLJ article Duncan School of Law denied accreditation.

Following this line of pure speculation, Duncan Law can be viewed as taking the entire controversy of the ABA as a federally sanctioned accreditation body to the court of public opinion by way of major media coverage and now by way of filing this lawsuit. Even if Duncan Law loses in court, the publicity just may ratchet up congressional interest beyond the minutiae of gamed law school information that met ABA reporting requirements to examine the entire cartel structure. See, e.g., U.S. Rep. John J. Duncan Jr., R-Knoxville reaction in the local press, Congressman Duncan: ABA decision on LMU law school arbitrary (Knoxville News).

Issues that if addressed by Congress could produce a bipartisan agreement. Here's the big three:

1. Providing affordable civil legal services to voters because the World Justice Project's 2011 Rule of Law Index [US County Profile here] ranks the US last among 11 high-income countries in providing access to civil justice. Do note that the study was co-sponsored by several ABA Sections.

2. Allowing states and only states to accredit law schools as a "states rights" issue since the license to practice law is based on passing a state bar exam and allowing states to work out reciprocity. The ABA could offer model standards each state could ignore or modify as they individually see fit to do. This just might lead to state enacted statutes and regulations along the lines of the ground-breaking UK's Legal Services Act.

3. And, perhaps most importantly, smashing the ABA-legal academy cartel's guaranteed revenue structure by holding law schools accountable for the "lifeblood" of law school financing, federal loan programs that currently place all the risk of loan repayment on law students who may not find employment requiring a JD after law school. As William D. Henderson and Rachel M. Zahorsky recently wrote in The Law School Bubble: How Long Will It Last if Law Grads Can’t Pay Bills?

Very few critics, however, have examined the part played by the federal government through its student loan policies in creating a law school bubble that may be on the verge of bursting—one strikingly similar to the mortgage crisis that cratered the economy in 2008.

Direct federal loans have become the lifeblood of graduate education, and they shelter law schools financially from the structural changes affecting the profession. The bills are now coming due for many young lawyers, and their inability to pay will likely bring the scrutiny of lawmakers already moaning about government spending.

For more about this, see What Factors in 2012 Will Be Examined That Can be Viewed as a Federal Public Policy Failure to Provide Affordable Civil Legal Services to the Electorate?

The ABA better come up with more convincing rhetoric than "wanting to protect the public and make certain that graduates who offer themselves as qualified lawyers know what they’re doing." While the Duncan Law School lawsuit may fail, the School's recent series of actions can be viewed as taking the public campaign against the status quo to the next level. No doubt the ABA will mount a vigorous defense in court for a while at least. If the ABA is smart, it will make the lawsuit disappear by granting provisional accreditation to Duncan Law. Wait 'n see.

Of course, this possible back-story is pure speculation on my part. [JH]

The Corporate Tao of TR Legal: Laying Off More West Account Reps in Recently Executed Sale Reorganization

Back in mid-November, in a post titled More TR Legal Layoffs? I reported that a reliable tipster informed me that Thomson Reuters Legal may announce another wave of layoffs soon and that the layoffs may affect customer service operations. Official announcement? Nope, not yet. Perhaps TRI's annual meeting will make a reference to "right-sizing" the cost of "customer experience and education."

However, mid-November may have been the time West account reps were given their pink slips effective the end of December 2011. By now most affected law librarians may have been informed that they have a new West account rep or that they will have to deal with someone in Eagan's customer service instead. Actually the latter started earlier last year with "small" West accounts losing their reps.

What happened to your former account rep? TR Legal has executed a "sales reorg" which has resulted in terminations -- fewer account reps, fewer support team members and managers, and in some cases larger territories to cover, too. In the world of legal publishing account representation where newbies come and go within a year or two, this wave of terminations is reaching deeper into TR Legal's more experienced sales workforce.

For a company already known for less than stellar customer service, this certainly is not a step in the right direction. While I have no idea how many folks were laid off in this latest round of terminations, my hunch is this is being driven by the Company's bottom line. Cutting the workforce is the easy way out. Cutting pricing to secure and eventual increase sales by way of a sales force that has something to offer just isn't within the realm of TR Legal's collective imagination.

If you can't imagine possibilities, you can't maximize opportunities. Imagine the shock if institutional buyers heard from their West account reps that the Company was now cutting its annual print price inflation by 50% without strings attached like "assured pricing" plans or the latest flavor of multi-year West "Complete" agreements. That's what Matthew Bender did in response to the recession without any strings attached.

Imagine a West account rep coming to your office to say the company has reviewed your current standing orders by title and is going to discount your print subs because of the number of current copies on a per title basis with no strings attached. Hell, my MB print rep did that on her own initiative! 

Imagine your West rep saying all your current Classic Westlaw user account holders can have WestlawNext for free during the duration of your current Classic Westlaw licence if you want like Lexis is offering for Lexis Advance.

Unthinkable! But that is how to retain and increase a customer base which in turn would enhance TR Legal's bottom line if the corporate gurus looked beyond the next financial quarterly report.It sure as hell isn't by way of West's "Deal of the Day" eCommerce offerings. Every damn major legal vendor knows that the best business practice is to see what TR Legal is doing and then do the opposite.

More TR Legal layoffs in 2012? My hunch is "yup."

Chiefs, not Indians, really? Do you recall what TRI CEO Tom Glocer said back in September that the merger of Markets and Professional may result in some layoffs, though any cutbacks would affect "chiefs, not Indians in front of customers"? Sounds like Indians to me.

Oh wait, Glocer got the axe, too. While Jim Smith did not officially taken over as TR CEO until Jan. 1, 2012, sales reorgs don't happen overnight (meaning planning could have been underway when Glocer made the above statement in September). Only the truly naive would believe that Glocer was running the shop then. On the executive floor of TRI, he was "history" last summer.

Wishful thinking that replacing a Reuters exec with a Thomson exec as CEO might lead to change. Not exactly getting off on the right foot with institutional buyers, Jim. Of course, that is hardly as important as making the Thomson family happy because none of them are too attached to any corporate asset they own. Remember the oil and gas business, Jim?

Looks like more of the status quo to me. More about that in a later LLB post.

Thanks for your efforts. For those who have been laid off and their families, thanks for all your hard work. Those of us who have been around awhile know corporate policy made it very difficult for you to assist us, your customers, as much as you wanted to address our specific needs. There are more better legal information service vendors, even a very some number of old fashioned legal publishers, dedicated to working with their customers. Hopefully, you won't abandoned the industry and will find gainful employment with one of them soon. It just might be a liberating experience.

Some say that next to the death of a loved one, losing one's job is one of life's most traumatic experiences. Obviously by informing affected employees just ahead of the holidays, TR Legal just didn't give a damn. This isn't the first time. Over the years, TR Legal has executed layoff effective the end of the calendar year because it is also and more importantly the end of TRI's fiscal year.

What's next for TR Legal's "customer experience and education"? My hunch is that the only institutional buyers who will actually receive a visit from a TR account rep will be the really big law firms and federal government account spenders in the not too distant future. If not a member of West's premium accounts, the next stage may be that you may conduct business by video conferencing with "your" account rep, assuming at that time, you still have an account rep. At some point it time only DLA Piper, the Departments of Homeland Security and Justice and of course the US Supreme Court will have on-site visits from a TR Legal rep. Might want to keep that in mind the next time you meet face-to-face with your current or new West rep.

Perhaps, I'm old school but trusted business relationships aren't just about face-to-face meetings in my office. They are established after an official business meeting or during an annual conference in personal conversations. There we each get to know each other. Our topics may include "business" but may also extend beyond the "company" to include the current and likely future state of the industry and further extend beyond the interpersonal "professional relationship" to learning about our backgrounds and even oftentimes something about our personal lives.

Do you know:

• How your reps got into this business?
• What you reps' past employment history is?
• The ages of the children of your reps?
• What your reps do with their free time?

Do your reps know similar information about you?

Video conferencing for product demos is fine but for customer relations and account management it will not replicate the total experience that ultimately and fundamentally takes place in a matrix of the Professional and the Personal.

There may come a time when TR Legal "explains" that based on customer surveys, TR Legal is switching to video conferencing with Company reps because that's what the customers want. Then again they may skip straight to eCommerce. Any close watcher of the development of TR Legal's eCommerce site is probably already wondering when institutional buyers will be informed to transact all their TR Legal business by way of the recently rebranded "Westlaw Store." (At least the Company has taken down the "trusted resources from Thomson Reuters tag line.)

First comes commodization of content. Then comes depersonalization of the business relationship. That the TR Legal Tao. Unlike the traditional Dao, it is not an inscrutable order of the TR Legal's universe whose ultimate essence is difficult to circumscribe. It is pretty damn obvious. As noted above, more about that in a later LLB post. [JH]

LLB Turns Seven Years Old Today

Happy New Year's Day to all and happy anniversary to all the co-editors, contributing editors and readers of LLB since we started publishing on Jan. 1, 2005. [JH]