Law Librarian Blog

If Attention is Your Most Valuable Resource, Do You Need To Go on a Diet in This Age of Big Info?

The first takeaway I got from Clay Johnson's The Information Diet: A Case for Conscious Consumption (O'Reilly Media, 2012) was that we are not passively experiencing "information overload." Instead we are trying to consume too much information in a world of information abundance. Hence, the need for making conscious choices about information intake or the need for an "information diet" as Johnson calls it. Not making such choices leads to being driven to distraction, which in turn can leave one clueless.

From the product description:

The modern human animal spends upwards of 11 hours out of every 24 in a state of constant consumption. Not eating, but gorging on information ceaselessly spewed from the screens and speakers we hold dear. Just as we have grown morbidly obese on sugar, fat, and flour—so, too, have we become gluttons for texts, instant messages, emails, RSS feeds, downloads, videos, status updates, and tweets.

We're all battling a storm of distractions, buffeted with notifications and tempted by tasty tidbits of information. And just as too much junk food can lead to obesity, too much junk information can lead to cluelessness. The Information Diet shows you how to thrive in this information glut—what to look for, what to avoid, and how to be selective. In the process, author Clay Johnson explains the role information has played throughout history, and why following his prescribed diet is essential for everyone who strives to be smart, productive, and sane.

In The Information Diet, you will:

• Discover why eminent scholars are worried about our state of attention and general intelligence
• Examine how today’s media—Big Info—give us exactly what we want: content that confirms our beliefs
• Learn to take steps to develop data literacy, attention fitness, and a healthy sense of humor
• Become engaged in the economics of information by learning how to reward good information providers
• Just like a normal, healthy food diet, The Information Diet is not about consuming less—it’s about finding a healthy balance that works for you.

[JH]

Google Knows All, Sees All, But We Knew That

Google has a new feature called Account Activity.  It’s explained in a Google Blog post.  It essentially allows individuals to track their use of Google products such as searches, how many emails sent and received in a month, heaviest used contacts, top searches and the like, what browsers and platforms used, and how many views there are of my uploaded videos on YouTube.  If the paranoid out there want to know more about what Google knows, then this helps.  I didn’t find the statistical information very unsettling in particular, with one exception. 

The fact that Google keeps track of all of this to the point of spitting it back to me is hardly surprising.  What I did find as a jolt is that Google seems to track activity even when I’m not logged in to any particular Google service.  I use Chrome as my primary browser, so maybe that’s the answer.  I have it set to maintain my login information as a matter of convenience.  However, I do not stay logged in constantly.  Far from it, in fact.  I discovered this more comprehensive tracking because friends occasionally use my machine (with my permission) when I’m not logged in and I notice their searches wind up in my account history list.  As Arte Johnson used to say, “verrry interesting.”  Individuals with Google Accounts should check their account activity from time to time.  There may be other surprises in store.  [MG]

The More Things Stay the Same, the More Things Will Remain the Same: On the key rule of yadda yadda

On and For the Record
May 2010	March 2012
"As you know, Principle 3: Fair Dealing of the AALL Guide to Fair Business Practices for Legal Publishers discourages this practice.  Specifically, section 3.1 of the Guide states "Publishers should obtain the customer's consent prior to making a shipment or initiating a transaction, unless such shipment is part of a standing order or subscription to which the customer has previously consented."  As neither the KeyRules or Transfer Pricing Strategies are part of a pre-existing standing order or subscription, CRIV would ask that West/TR cease the practice.  It is burdensome to both law librarians, West, and the Postal Service to boomerang unwanted material in this fashion.  I have the utmost respect and  appreciation for West's products and customer service.  Please understand that the practice of shipping unsolicited material only serves to hurt the goodwill West has built over the decades with the law library community.  Anything that you can do to have this practice ceased is greatly appreciated." -- Excerpt from Rob Myers, CRIV Chair, email to TR Legal	"After recent listserv discussion about problems with West KeyRules, I sent an inquiry to Anne Ellis at TR/West. Her response is below. If the suggested resolution mechanisms do not work for you or your library, please let me know so that I can follow up on behalf of CRIV and the AALL membership." Shaun Esposito, CRIV Chair.
Dear Colleagues: I would like to thank Rob Myers for allowing me to speak to an issue raised by customers who have voiced concerns about receiving a publication without their prior consent. To be clear, companion products contain content that supplements our customers’ subscriptions and are deemed important to the collection. These are viewed favorably by most subscribers; very few of these products are returned to us. Prior to sending a companion product, we notify subscribers by letter asking that they let us know if they don’t want the particular title. And we’re always trying to improve how we work with customers. The letter now includes a stamped and addressed return postcard where customers can indicate with a checkmark if they do not want to receive the publication, and simply drop the card in the mail. We understand that our customers’ time is valuable, and our goal is to provide only the products our customers want and need. If you received a companion product recently without first getting proper notification, please accept our sincere apology. Thanks, Anne Ellis Senior Director, Librarian Relations	Dear Colleagues: I would like to thank CRIV Chair Shaun Esposito for contacting me about an issue being discussed by librarians recently that related to a blog post about KeyRules shipments. KeyRules are a part of our Court Rules collections. The product gathers all the information needed for a particular filing in one place in one book, including relevant rules and statutes; caselaw and secondary-source materials; and timing, filing, and service requirements, and is deemed important to the collection. Customers overwhelmingly agree that these titles are an important part of their subscription, and only a very few are returned to us. Prior to sending our KeyRules, we notify subscribers by letter asking that they let us know if they prefer to not receive the title. The letter includes a return postcard, stamped and addressed. We understand that sometimes a letter may be overlooked or misplaced by a subscriber, so if a customer receives a KeyRules shipment and decides that the title is not wanted after all, the product can be returned to us at no cost to the subscriber. We understand that our customers' time is valuable, and our goal is to provide only the products our customers want and need. If you received a KeyRules shipment recently without first getting proper notification, please accept our sincere apology. Finally, you also asked whom to contact with questions. For questions around company policy or business practices, I encourage librarians to contact me directly. If your questions relate to your particular account, please contact Thomson Reuters Customer Service at 1-800-328-4880, and press 6. Shaun and my librarian colleagues, I thank you again for allowing me to address your questions. We appreciate that we are allowed to be part of your conversation. Thanks, Anne Ellis Senior Director, Librarian Relations
(Emphasis added to selected boilerplate language.)

As you can see from the above record, this is not some sort of "suggested resolution mechanisms." And I doubt that most institutional buyers find it all that workable. My hunch is most "colleagues" (? I didn't know Anne paid for West crap!) would rather receive titles the old-fashioned way -- by actively deciding to purchase them instead of being a member of the opt-out Columbia Legal Book Club. See TR Legal's Unsolicited Shipments are "Viewed Favorably by Most Subscribers" If "Most" is Defined as 3.7 Percent: Findings of LLB Poll (May 2010).

But what the heck. So CRIV got slapped around again by TR Legal. It was worth the effort to once again put on the record that

1. TR Legal does not understand that its customers' time is valuable;
2. TR Legal's goal is not to provide only the products its customers want and need; and
3. TR Legal's higher-ups, by which I mean higher than the Senior Director of Librarian (Marketing) Relations, are so "threatened" by AALL that they have boilerplated their "customer experience and education" responses to AALL.

Nice try, CRIV. Not your fault; just another example of wasting time. As long as AALL subscribes to its "partnership" nonsense, the more things will remain the same. What the heck, I'll save CRIV and TR Legal the time if AALL wants to ask the question, "what's up with this OnePassYourAss thingamabob?"

Dear Colleagues:

I would like to thank [insert the new what's his/her name name] for giving me the opportunity to respond to an issue being discussed.

OnePassYourAss furthers our goal of providing only the products our customers want and need. Because we understand that our customers' time is valuable, you don't even have to waste any time to order our products. It is even better than our opt-out postcards because now our (oops) your West users can execute new standing orders on their own and they will appear on our (oops) your billing statement.

I hope our corporate revenue generating response to my librarian colleagues is sufficient to understand how much better this is for y'all. It works for us, so it must be a good thing for you.

Thanks

Granted back in the late-19th - early-20th centuries, West Publishing gave birth to law libraries as we know them today because members of the bench and bar could not afford to purchase on their own legal resources that the then new age of commercial legal publishing produced (Sound familiar? Loop back up to OnePassYourAss and here and here). However, that doesn't mean AALL now has to be the George Costanza of library associations in the 21st century.

As an elected AALL Board member who is attending the Board's Spring Meeting right now (and hopefully is wearing a Ten Gallon Hat to carry home all the BS that will be going on while trying to nudge some reforms forward), once said:

We poke a lot of fun at legal publishers (although, we pale in comparison to some of the other blogs out there) and, quite frankly, sometimes the vendors make it too easy for us to point out some of the crazy things they are doing either through new products, organizational reorgs, or pricing schemes.

BS, really? In a nutshell, yes. Of course that's my and only my professional assessment. Why? Because after the Executive Board's and their hired help's long and continuing history of do-nothingism except for producing and directing the production of yadda yadda statements that result in nothing more than giggles from the vendor community, it is BS. Just look at the historical record of the dilution of offical AALL's strategic directions with respect to consumer advocacy. It doesn't take a chemist to know our professional association has reached the pablum stage of lip-service.

Friday Fun? It really is just too damn easy ... but if all we do is poke fun at some of our vendor reps and our association's elected officals and their hired help in their capacity as such, we really are not representing our employers as members of an institutional buyers association. If the above "on and for the record" does not tell us all that it is going to take concerted action by all of us, individually and collectively, to move beyond the de facto yadda yadda "partnership", then what will? [JH]

Friday Fun: Google FUD Videos from Microsoft

"Microsoft is stepping up its anti-Google campaign" writes BetaNews' Ed Oswald. "Googlighting" (video below) is the latest installment.

"Last summer's 'GMail Man' poked fun at Google's use of the content of your email messages in order to serve advertisements. Funny thing, Microsoft's Hotmail slaps ads alongside your messages, too." For details, see Ed Oswald recent post, Microsoft goes for Google's throat. [JH]

Florida To Get It's Eleventh Law School?

Two stories are in the legal news about Florida law schools these days.  One concerns the idea that a new law school may be in the offing for the Daytona Beach, Florida area.  What with dropping applications and an uncertain job market it’s a wonder that the idea of opening a new law school has legs.  Florida has law programs at Florida Coastal, Florida State, The University of Florida, Barry University, St. Thomas, the University of Miami, Nova University, and Stetson University.  Did I leave anyone out?  Oh yes, Florida A&M and Florida International University.  That’s ten, one more than the number in Texas.

The usual rationale applies.  The market is underserved, though I don’t know if that is the market for lawyers or the (diminishing) market for potential law students.  The school’s proponents have a few things going in their favor.  The National Law Journal reports that the school would keep tuition costs lower than other schools by possibly using a vacant police station as the site of the school.  Other savings would come by keeping courses focused on skills rather than vanity “law and” style classes.  I can’t disagree with that focus, though I think as the law school matures (assuming it gets that far) there will be the inevitable fight between the practitioners and the academics over the focus of the school.  It will be like the vampires and werewolves without the teen appeal.

The second story comes from the Independent Florida Alligator out of the University of Florida.  It points out that the UF Levin College of Law had 10.4 fewer applications than last year.  UF officials are quoted as saying the drop in applications is in line with national trends.  Michelle Adorno, assistant Dean of Admissions stated the lower number of jobs available at graduation is one factor.  She believes applicants are becoming better educated consumers.  If a well-established law school is seeing this , good luck to the promoters of the law school in Daytona.  You’ll have some pretty steep competition for applicants.

Edit:  Maybe 12th or 13th.  Cooley is opening a campus in Tampa, and somehow Ave Maria slipped my mind.  This is an underserved market?  Maybe we'll see a day where law schools dot communities like big box stores.

[MG]

Whose law graduates have the most debt (and can they pay it off)?

"The average indebtedness figures for 2011 law graduates are stunning. Last year, 4 law schools had graduates with average debt exceeding $135,000. This year 17 law schools are above $135,000. Last year the highest average debt among graduates was $145,621 (Cal. Western); this year the highest average debt is $165,178 (John Marshall)," writes Brian Tamanaha. In a post that lists the top 20 schools by student indebtedness, he adds

What's remarkable is that the majority of graduates from these law schools--with the exception of Northwestern--do not obtain jobs with salaries sufficient to make the monthly loan payments due on the average debt. At some of these schools 90% or more of graduates with debt do not earn enough to make the loan payments on this level of debt (not all indebted students will carry the average debt).

(Emphasis in the original.)

For more, see Tamanaha's The Quickly Exploding Law Graduate Debt Disaster ("This financial insanity will not stop until significant changes are made to the federal student loan program.") The complete ranking of law schools by student debt from the US News can be viewed here. [JH]

The Most Honest Law School Final Four Match-Ups

It's down to the final four most honest law school match-ups in ATL's March Madness 2012. And the contests pit Brekeley v. Chicago and Stanford v. Michigan. Yes, that's right, no Ivy League law schools. Damn I was rooting for Harvard! Oops, my bad, I meant in the NCAA tournament. Voting for the final four round in ATL's version of March Madness closes on Thursday at 11:59 PM (Eastern time) For details and to vote, go here.

How about an honesty metric in US News Law School Rankings? We know that a couple of law schools that got caught with their pants down for gaming last yeare, were punished in this year's rankings. What we don't know is the motivation. Was it a moral outrage vote by their peers or a damn it all to hell vote for getting caught response? Of course, it might just have been the consequence of reporting more truthful data this year. 

I wonder if US News will steal ATL's idea by adding a ranking metric based on honesty. It could be a third reputational ranking score based on a survey of recent grads from each law school. It also could be a way to deflect some criticism that US News relies on unaudited data provided from the citadel of the legal academy and "the few, the proud" the deans, former deans and law profs who have way too much influence in regulating law schools by way of their participation in crafting ABA accreditation standards and inspecting law schools for compliance.

"Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You?"

[JH]

Supreme Court Action Today: Damages Under The Privacy Act, Retroactive Application of Immigration Reform, And Sentencing Conflicts

The Supreme Court issued three opinions this morning.  The first of these is FAA v. Cooper (10-1024).  Cooper deliberately failed to disclose his HIV condition to the Federal Aviation Administration at various times when he renewed his pilot license.  The Department of Transportation conducted a blanket investigation with the Social Security Administration to cross-reference pilots with those who were receiving long term disability benefits.  Cooper’s name was on the list.  He was subsequently indicted for making false statements to a government agency and his pilot certificate was revoked.  He pled guilty and was fined and sentenced to probation. 

He subsequently filed a civil suit under the Privacy Act of 1974 alleging that the agencies violated the Act’s provisions and that he was entitled to damages for mental and emotional distress for the cross-agency disclosure of his medical records.  The District Court held that the Government had violated the Act but the statutory term “actual damages” precluded recovery as that term was ambiguous, and as such, required a more definitive statutory statement to overcome the sovereign immunity waiver.  The Ninth Circuit reversed, holding that the Act was not ambiguous and included damages for mental and emotional distress.

The Supreme Court reversed the Ninth Circuit holding that the statute does not unequivocally waive sovereign immunity in its language in this circumstance.  The Court stated that the term “actual damages” is far from clear.  Statutory construction relies, to some extent, in the context in which the terms are used.  The Court analogized that the term as used is similar to libel per quod and slander where “actual damages” is the same as “special damages,” those being provable losses.  The use of the statutory term “actual damages” in this case limits damages to those which can be proven.  This interpretation is bolstered by events where Congress considered and rejected a change in the statute to include general damages.  The Court did say that the Ninth Circuit’s interpretation is plausible, but its examination of the legislation led to a different conclusion.  Justice Alito delivered the opinion of the Court, joined by Chief Justice Robert, and Justices Scalia, Kennedy, and Thomas.  Justice Sotomayor filed a dissenting opinion joined by Justices Ginsburg and Breyer.  Justice Kagan did not participate in the case.

The second case is Vartelas v. Holder (10-1211).  It concerns retroactive effect of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  Prior to the Act there was a distinction between hearings for excludable aliens already in the United States and those seeking entry for the first time.  The IIRIRA did away with that distinction.  Vartelas was lawfully within the United States when he traveled briefly to Greece.  He had a conviction from 1994 for conspiring to make counterfeit securities.  When he returned he was classified as an alien seeking admission based on his conviction and was subject to a removal proceeding.

His attorney conceded removability and asked for discretionary relief under the old law.  Relief was denied and administrative appeals were rejected.  The Second Circuit affirmed.  The Supreme Court reversed, holding that Vartelas’ status is based on the regime in force at the time of his conviction.  Retroactivity applies only in circumstances where Congress explicitly authorized retroactive application of a statute.  That is not the case here.  Justice Ginsburg delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Kennedy, Breyer, Sotomayor, and Kagan joined.  Justice Scalia dissented, joined by Justices Thomas and Alito.

The final case is Setser v. United States (10-7387).  Setser was facing a drug charge in Texas state court as well as revocation of probation on another drug offense.  He was sentenced on federal drug charges to a 151-month term to run consecutively to any state sentence he would receive in state court for pending probation violation proceedings, and concurrently with any sentence on the state drug charge.  The state court sentenced him to 5 years for the probation violation and 10 years for the drug charge.  The Fifth Circuit held that the District Court could impose the sentence even if it was unclear on how to calculate it in light of the state sentence.

This issue is complicated by §212(a) of the Sentencing Reform Act of 1984 which allows for the imposition of sentences on a defendant who is already subject to multiple terms of imprisonment imposed at the same time  on a defendant who is already subject to an undischarged term of imprisonment.  Setser’s federal sentence came before the state sentence.  Setser and the Government both argued that as such, the District Court lacked authority to impose the sentence it did. 

The Court basically stated that while there is a problem in calculating whether the federal sentence would be merged or following his state sentences, the District Court did have authority to impose the sentence it did.  It is up to the Bureau of Prisons to work this out. If Setser is unhappy with that determination, he can seek relief through the Administrative Remedy Program and then a writ of habeas corpus.  Justice Scalia delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Thomas, Alition, Sotomayor and Kagan.  Justice Breyer dissented, joined by Justices Kennedy and Ginsburg.  [MG]

The First Casualty of the Annual Law School Rankings War is not Truth: On "sober assessments" in Dean Offices

The first casualty may be turnover in dean's offices. UConn law dean Jeremy Paul made a valiant attempt to explain why his School of Law has continued its decline from #52 a few years ago to #62 in the US News Law School Rankings after the release of this year's rankings report. Now ATL's Elie Mystal is wondering if Dean Paul is the first casualty of the 2012 rankings.

Dear Members of the Law School Community:

As has just been announced, Peter Nicholls and I have agreed that next year will be my last as Dean of the Law School.

...

I have established outstanding leadership teams on both the academic and development sides of our enterprise. I would have enjoyed working with them to help the Law School advance further, and thus this decision is not without personal regret.

Institutional leadership, however, is by definition about more than individual satisfaction. After a sober assessment in recent weeks, and following discussions with many members of the community, I have concluded that the Law School is ready for new leadership.

(Emphasis added.)

Quoting from Dean Paul's message. For the complete text as well as commentary, see Is This Dean the First 2012 Casualty of the U.S. News Law School Rankings? on ATL. For a quote from Dean Paul upon release of this year's rankings, see ATL's Early Reactions to the U.S. News Rankings: Deans and the Excuses They Make. [JH]

Oxford Report: Not All Internets Are Equal

There is a recent article on The Atlantic web site by Alexis Madrigal called Confirmed:  The Internet Does Not Solve Global Inequality.  It concerns a new e-book by the Oxford Internet Institute, Geographies of the World’s Knowledge.  It essentially states, according to Madrigal, that academic and user generated publishing comes from the Western world and the United States dominating that.  There are charts which graphically demonstrate the overwhelming presence of the United States both in generating content and consuming it. 

I’m not particularly surprised.  I’m fond of telling students what became the public Internet was shepherded by the Department of Commerce, not the Department of Education.  That should have told us something way back when.  From Madrigal’s article: 

"Many commentators speculated that [the Internet] would allow people outside of industrialised nations to gain access to all networked and codified knowledge, thus mitigating the traditionally concentrated nature of information production and consumption," she writes. "These early expectations remain largely unrealised." 

We're not only talking about publishing in academic journals or Wikipedia. The book's authors, Mark Graham, Monica Stephens, Scott A. Hale, and Kunika Kono, sampled user-generated content on Google and found that rich countries, especially the United States, dominate the production of user content. 

The fact of the matter is that people without money can't afford to get the education necessary to publish in academic journals, Internet-enabled or not. The other fact of the matter is that the vast majority of people in very poor countries don't spend their time producing content for free. Hope as we might, the Internet isn't a magic wand that makes the world more equal. 

I’m quoting from the article rather than from the free e-book.  That’s because in order to read the book, one must have an iPad, or at the very least install iTunes to get a copy of the book.  It seems ironic to me that a piece that decries the lack of multicultural voice on the Internet is only available through Apple’s walled garden, albeit in a free patch.  I grant that Apple’s products are widely distributed world-wide.  They are, however, only one distribution channel.  

The authors' cite Apple's cutting edge technology for incorporating interactive multimedia in a presentation.  I think it's great that they and Apple can do that.  I also think the form of the presentation and its viewing requirments limit the audience, especially those from outside the Western world.  Does the dazzle do anything to change what the book is about?  [MG]

Resources for SCOTUS Oral Arguments in the Patient Protection and Affordable Care Act Cases

Argument Transcript and Argument Audio from the Supreme Court website. Do note the audio may give a different impression than the transcript at times. See Orin Kerr's Is the Individual Mandate Really a Mandate?

Patient Protection and Affordable Care Act Oral Argument Schedule with Links to SCOTUSblog's Coverage:

3/26: H.H.S. v. Fla.

Health care: Anti-Injunction Act

3/27: H.H.S. v. Fla.

Health care: Minimum coverage

3/28: Fla. v. H.H.S.

Health care: Medicaid

3/28: Nat'l Fed. of Ind. Business v. Sebelius

Health care: Severability

See also SCOTUSblog's Health Care resource page and C-SPAN's Supreme Court Oral Arguments on Health Care. Download CRS Report, ACA: A Brief Overview of the Law, Implementation, and Legal Challenges (Mar. 23, 2012).

Since televised coverage of the oral argument in court is not permitted, sketch artists are covering the event. Here's one of Bill Hennessy's sketches provided by PBS Newshour's Lorna Baldwin via her Twitter account. [JH]

ConText: Perhaps Justice Scalia will be interested in crowd-sourcing Madison's Notes

The Center for the Constitution at James Madison's Montpelier in partnership with the Brookings Institution has launched ConText. It is an "experiment in crowd-sourcing commentary on dense historical texts and in illuminating those texts for the public, for students, and for scholars in new ways, writes Benjamin Wittes. For a very interesting discussion of the backdrop for this project, see Wittes' ConText: An Experiment in Crowd-Sourced Commentary.

ConText was launched on James Madison's 261st Birthday with Madison’s Notes of the Debates in the Federal Convention of 1787. ConText also includes Madison's Vices of the Political System of the United States. Commentary for crowd-sourced documents are organized into the following categories: Historical, Current Events, Theoretical/Philosophical and Other. More documents are expected to follow. The site's Featured Documents page includes an RSS feed for tracking purposes.

ConText in my opinon is an excellent example of independent educational organizations like The Center for the Constitution at James Madison's Montpelier and the Brookings Institution supporting open scholarship during its beta stage of development. From the site's About Page:

Working with an interdisciplinary group of historians, political theorists, lawyers, technological innovators, educators, and you, we are all together crowd-sourcing the most important documents in our nation's history. With this site, you can explore historical documents through browsing the text, reading scholar commentary, and adding your own observations. In the process, you will delve into the document's historical context and realize its relevance to the contemporary world.

[JH]

Supreme Court Action Today: Statutes of Limitation in Securities Cases, and Congressional Power in Foreign Relations

The fact that the Court is just beginning three days of hearings on the constitutionality of the Affordable Care Act did not stop it from releasing two opinions this morning.  The first of these is Credit Suisse Securities (USA) LLC v. Simmonds (10-1261).  The case involves tolling of the statute of limitations for suits against corporate insiders who realize profits from the purchase and sale, or sale and purchase, of the corporation’s securities within any 5-month period.  The limitations period is two years under §16(b) of the Securities and Exchange Act of 1934.

Simmonds filed various actions against multiple corporate defendants which were consolidated in one case in the Western District of Washington.  These were based on underwritings for IPOs that were offered in the 1990s and 2000s.  That court dismissed 24 of the 55 complaints.  The Ninth Circuit reversed under its own case law which held that the §16b action was tolled until the defendants filed a disclosure statement under §16(a) of the act. 

The Supreme Court reversed the Ninth Circuit, holding that §16(b) by its terms starts the clock running at “the date such profit was realized.”  The Ninth Circuit’s tolling rule has no basis in the statute.  Moreover, the Ninth Circuit rule does not follow established equitable tolling principles which hold that the tolling ends when the fraud was discovered or should have been discovered.  Otherwise defendants could be sued for activities which took place decades before.  The opinion was delivered by Justice Scalia, and joined by all other Justices except Chief Justice Roberts who did not participate in the case.

The second case is Zivotofsky v. Clinton (10-699).  The facts in the case create a conflict between the power of the Executive in light of a Congressional enactment which may or may not intrude on that power.  Zivotofsky was born to American parents in Jerusalem in 2002.  The State Department practice was to stamp passports for those born in Jerusalem specifically with the word “JERUSALEM” and not Israel or Jordan. 

Congress passed Foreign Relations Authorization Act, Fiscal Year 2003 which made several policy decisions as to the official treatment of Israel by the United States.  One of these was included a provision that would stamp passports in these circumstances with Israel as the birthplace.  The Act was signed by President Bush with a signing statement that said the provision “impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch.”  Zivotofsky’s parents brought suit to have the passport stamped “Jerusalem, Isreal.”

The lower courts held that the suit was based on a political question and dismissed the case.  The Supreme Court reversed, holding that this is not a political question.  Rather, it is a question as to whether the Act does intrude on the President’s authority to conduct foreign affairs.  If so, it is unconstitutional.  The case was returned to the lower court to create a record.  As the Court noted, it is a court of last resort, not the first resort.  As such it declined to decide the constitutional question at hand.  Chief Justice Roberts delivered the opinion of the Court, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan.  Justice Sotomayor filed an opinion concurring in part and concurring in the judgment.  Justice Alito filed an opinion concurring in the judgment.  Justice Breyer dissented.  From my perspective, the validity of the rationale contained in a signing statement gets litigated at last.  [MG]

LexisNexis Is Going to Win the First Round in Providing a Circulation Solution for Commercial Law eBooks

Back in September 2011, I opined that Thomson Reuters was going to win the second round in the Law eBook slugfest because it was the first major publisher to come to market with an enhanced law eBook format. Other than downloading two laughable free ProView titles, I've been too damn scared to buy even the least expensive ProView title I could find because I couldn't buy it without agreeing to accept it on a "good 'til cancelled" license. Oh, well, I will muster up the courage eventually to see if the embedded linkages in an acquired ProView title are as haphazardly "selected" as the ones in the two freebie offerings. Of course, I won't be able to see if the links actually work because I do not subscribe to WestlawNext.

Since that post, Lexis has started bringing to market enhanced law eBooks. The embedded links were more consistent throughout the two free titles I tested. [Sample downloads here.} The links send you to Classic Lexis (login required) and to my surprise the links sent me to database resources outside of my in-plan only Lexis license. Frankly, I'm not sure if that was the case because the titles I tested were freebies or is a feature of purchased enhanced eBooks from Lexis but access was based on my Lexis user account.

So far it looks to me that TR Legal has more enhanced law eBooks in the marketplace but Lexis is beginning to catch up. However, beware of using Lexis’ bookstore site listings. For the moment, at least, there is no way to distinguish enhanced editions from unenhanced eBook editions. Enhanced editions will more likely have a 2012 publication date but it is wise to check with your p- and e-book account rep for confirmation unless it does not matter which form of eBook you are buying. For me, it matters. I see no point in buying any eBook that does not start to take advantage of the eBook publication form as a platform for enhancement.

Circulation Solutions.  In terms of lending enhanced law eBooks, I will note that when I took a look-see on TR Legal’s eCommerce site, I found that I could “add West user accounts” for purchasing a ProView eBook but again I was too scared to do so. Was I buying one "good 'til cancelled" eBook license accessible to every damn West user account I added or was I buying multiple licenses? What was the cost? The only thing I knew for certain was that this option was not clearly indicated as being for circulation purposes. When a company has a reputation for maximizing its opportunity to guarantee its revenue stream in no small part because the investment community focuses on “recurring revenue,” and the Company is allowing any user of a OnePass account to purchase materials on its eCommerce site that will appear on an institutional buyer's billing statement without making any attempt to confirm with that institution that the OnePass holder has the authority to make purchases, there is absolutely no reason to trust that vendor.

Oh well, I won’t be a buyer of ProView titles for my user population until I have no choice but to license WestlawNext instead of Classic Westlaw. Alternatively I may switch over my Westlaw users to Lexis-Lexis Advance. Clearly enhanced eBooks and the ability to circulate them will be an important factor in any future collection development decisions for all legal resources. As time marches on, there is no doubt in my mind that enhanced Law ebooks from our major vendors will cannibalize database selections in online search license plans whether by way on a reduction in out-of-plan resources or even in-plan resources. Perhaps, I should say  "may cannibalize" because of possible bundling and tie-in requirements.

In a matter of great concern to all institutional buyers who have been thinking about the law eBook phenomenon, Lexis announced with very little fanfare last Friday that it has launched an eBook circulation solution powered by Overdrive. In addition to providing a means for lending its eBooks, the platform includes circulation controls and collection development usage tools that libraries can use "to eliminate title duplication and quantify savings for firm management." This is exactly the opposite tactic TR Legal is using to sell ProView titles. Remember the legal publishing industry adage – “do the opposite of whatever the folks in the Land of 10,000 invoices eBook Licenses is doing.”

No doubt, both companies recognize that their enhanced eBook offerings will cut into their pBook sales. Why buy X number of office copies and y number of library copies of a title in print and/or in eBook formats if you can reduce both of those numbers some by buying Z number of eBook titles that circulate. Only one company right now is willing to work with institutional buyers to provide a sensible solution in the commercial market space. That’s why LexisNexis is going to win the first round in the eBook lending solution slugfest.

In the context of circulation options for commercial law eBooks, we currently have only one choice. See Introducing LexisNexis Digital Library... for some information about this service. The web announcement does not (yet) answers many of the questions institutional buyers will have but it is a start in the right direction for the user populations of most institutional buyers. Details to follow. [JH]

Round-Up of Law Practitioner Blogs

California Trademark Attorney Blog
http://www.californiatrademarkattorney.pro/
http://www.californiatrademarkattorney.pro/index.xml
Examines trademark cases, news, and related matters in California. Published by Mandour & Associates
 
Florida Personal Injury Attorneys Blog
http://www.floridapersonalinjuryattorneysblog.com/
http://www.floridapersonalinjuryattorneysblog.com/index.xml
Examines injury cases, news, and related topics in Florida. Published by Law Offices of Jason Turchin.
 
Wagners Serious Injury Lawyer Blog
http://www.wagnersseriousinjurylawyerblog.ca/
http://www.wagnersseriousinjurylawyerblog.ca/index.xml
Examines serious personal injury cases, news, and related matters in Nova Scotia. Published by Wagners
 
Charlotte Injury Lawyers Blog
http://www.charlotteinjurylawyersblog.com/
http://www.charlotteinjurylawyersblog.com/index.xml
Discusses injury cases, news, and related topics in North Carolina. Published by Arnold & Smith.

Orange County Criminal Lawyers Blog
http://www.orangecountycriminallawyersblog.com/
http://www.orangecountycriminallawyersblog.com/index.xml
Examines criminal law cases, news, and related topics in California. Published by the Law Offices of Vincent J. LaBarbera, Jr.