January 14, 2012
Gov. 2.0 in 2011
Check out Alex Howard's review of Gov. 2.0 in 2011 on O'Reilly Radar. [JH]
January 13, 2012
Friday Fun: Verbal Brain Jammers
HBR blogger Dan Pallotta reviews five strains of the jargonism epidemic at I Don't Understand What Anyone Is Saying Anymore. You can also listen to Dan explain why we still use jargon even though we hate it, and vote for the all-time worst business buzzword. [JH]
The Northwestern Law Nostradamus on Legal Education in 2012
"Predictions about legal education in 2012? ... OK, I’ll start (although these are more hopes than predictions)" writes Northwestern Law Dean Dan Rodriguez here. [JH}
New Legal Skills Textbooks from Carolina Academic Press
Federal Legal Research
by Mary Garvey Algero, Spencer L. Simons, Suzanne E. Rowe, Scott Childs, Sarah E. Ricks
Forthcoming January 2012
Federal Legal Research explains how to conduct research in the U.S. Constitution and in federal cases, statutes, and administrative regulations. The book begins with an overview of the sources of law and the research process. That chapter is followed with an in-depth discussion of American legal research strategies and techniques for both print and online sources. The book covers secondary sources and practice guides, updating with Shepard’s and KeyCite, and legislative research. A separate chapter focuses on legal ethics and court rules.
Federal Legal Research is effective for teaching legal research in first-year classes that integrate research, writing, and analysis as well as in upper-level courses with a more bibliographic approach. Moreover, the book will provide accessible information about federal legal research for practitioners, paralegals, librarians, college students, and even laypeople.
Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument, 2d ed.
by Austen L. Parrish, Dennis T. Yokoyama
Forthcoming January 2012
Effective Lawyering takes a unique approach to legal writing and oral advocacy. Many excellent legal writing books exhaustively detail how to write effectively. Those books — which are written primarily for first-year law students and are often several hundred pages long — meticulously explain the dos and don’ts of effective advocacy and provide numerous exercises for students to complete. Effective Lawyering, which can serve as a useful supplement to these lengthy introductory texts, takes a different approach. The book assumes the reader has learned the basics of legal writing, and at most needs only to be reminded about them. The book also assumes that most practitioners (and, for that matter, law students) lack the time to read lengthy discussions of all the subtleties of legal method.
Advocacy to Zealousness: Learning Lawyering Skills from Classic Films
by Kelly Lynn Anders
Forthcoming January 2012
Advocacy to Zealousness: Learning Lawyering Skills from Classic Films includes 26 skills, listed in alphabetical order and appearing in separate chapters, which should ideally be in every lawyer’s toolbox. Each is an example of professionalism, and all are possible for every current or future lawyer to attain or sharpen. They also speak to our needs in the legal profession in the new millennium. Interspersed throughout the text are subtle references to diversity, both in the practice of law, as well as in various film references and storylines.
Each chapter includes a discussion of the skill and its use for lawyers, a synopsis of the film associated with the skill, film discussion questions, and brief exercises for improvement. The format encourages readers to either methodically review each chapter in alphabetical order, or skip around as needs and interests dictate. The book concludes with a comprehensive index.
Images, be they positive or negative, are powerful and long lasting. Those found in popular films are often our only points of reference until we meet the real thing — or assume the role ourselves. Many professors already use film clips in their classes, but, until Advocacy to Zealousness, there was no singular point of reference for films selected solely for the purpose of fostering and sharpening lawyering skills. Legal skills training needn’t be dry or cumbersome. With creativity and planning, it can instead be educational, memorable, and enjoyable — while also remaining comprehensive and relevant — thereby enhancing the practice of law and the legal profession as a whole.
Wouldn't some of the above legal skills titles make excellent AALL p- and enhanced e-book imprints? See Dear Santa, Please Give AALL a Clue on How to Make Money. [JH]
January 12, 2012
Supreme Court Action: Out-Of-Court Identifications, Death Benefits, and the Ministerial Exception to Employment Discrcimination
Here are summaries of the three opinions released yesterday by the United States Supreme Court. The first case is Perry v. New Hampshire (10-8974). Perry was convicted of theft by unauthorized taking. One piece of evidence used against him was an out-of-court identification made by a witness at the time of Perry’s arrest. Perry contended that admitting the statement violated due process. The standard procedure in such cases is for the trial court to decide whether the police used unnecessarily suggestive identification procedures and if so, next determine whether the procedures were so tainted to be unreliable. The trial court denied Perry’s motion to exclude the statement. At the time of his arrest, a witness was asked by the police if she could describe the man who was trying to break into cars in a parking lot, she pointed out of her kitchen window to Perry who was standing next to another policeman. Perry argued that the trial court was wrong to require an initial showing that the police arranged a suggestive identification. Suggestive circumstances alone should have triggered a hearing, implying that most all police requests for identification are suggestive.
The Court responded by stating the Due Process Clause does not require such a hearing absent suggestive circumstances. There are other safeguards under the Sixth Amendment that gives defendants the ability to challenge the credibility of eyewitness identifications. Perry’s reliance on a line of cases where improper police action was clear does not support his position. The decision was an 8-1 split, with Justice Ginsburg writing for the majority. Justice Thomas wrote a concurring opinion, and Justice Sotomayor dissented.
The next case is Pacific Operators Offshore, LLP v. Valladolid (10-507) and it involves determining the correct test for allowing benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA) pursuant to the Outer Continental Shelf Lands Act (OCSLA). Respondent’s decedent spent 98 percent of his time working on an offshore platform but was killed in an accident in an onshore facility. The ALJ denied a claim for benefits under the acts as the death occurred on land rather than on the Outer Continental Shelf (OCS). The Ninth Circuit reversed, holding that the correct test to allow benefits is a substantial nexus between the injury and the extractive operation.
The Supreme Court affirmed, and resolved a split in the Circuits by doing so. The Fifth Circuit used a test that required geographic specificity as to where the death occurred. The Third Circuit used an expansive test that would allow benefits if death or injury happened in any location as long as there was some connection with the work on the OCS. The Court held that the Ninth Circuit got it right as the language of the statute did not limit the location geographically, and the Third Circuit’s “but for” test was too broad. The decision was more or less unanimous, with Justice Thomas writing for the majority. Justice Scalia wrote an opinion concurring in part and concurring in the judgment, joined by Justice Alito. The Court gives the Ninth Circuit a nice pat on the head for a change.
The final case is the one getting the most press. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (10-553) concerns the right of religious schools to hire and fire teachers it designates as ministers. The case is heavily fact dependent. Hosanna-Tabor classified its teachers into two groups, lay, and called. Called teachers have additional academic qualifications including a course in theological study. Cheryl Perich completed the additional academic requirements and was hired as a called teacher and designated a commissioned minister. She taught religion classes to students, took students to chapel services and at times led such services.
She developed narcolepsy and started the 2004-2005 school year on disability. She decided to return in February of 2005 but the school had hired a lay teacher to fill Perich’s position. The congregation offered to pay for part of her health insurance in return for her resignation. Perich refused and ultimately was fired for insubordination and disruptive behavior.
Perich filed charges with the EEOC that she was fired in violation of the Americans with Disabilities Act and for threatening to file an ADA lawsuit. The case went to trial in federal court with Perich intervening in the case. Hosanna-Tabor invoked the “ministerial exception” which bars suits under the First Amendment because the claim is between a religious institution and one of its ministers. The District Court agreed but the Sixth Circuit vacated and remanded, recognizing the ministerial exception but stating that Perich did not qualify as such.
The Supreme Court unanimously reversed, stating that Hosanna-Tabor held Perich out as a minister,and she did as well by acceptin the “called” designation and performing religious duties. The Sixth Circuit erred by placing too much emphasis on her secular duties and some of the similarities in duties that lay teachers performed. Perich was a minister under the ministerial exception and as such the suit should be dismissed. Chief Justice Roberts wrote the opinion with Justices Thomas and Alito filing concurring opinions. Justice Kagan joined Justice Alito’s concurring opinion. [MG]
Content Analysis of SCOTUS Confirmation Hearings: Nominee Candor from Harlan to Kagan
In their recent SCOTUSblog post, Dion Farganis and Justin Wedeking explain the context for their recent article, “No Hints, No Forecasts, No Previews”: An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan, 45 Law & Society Review 525 (2011):
According to the prevailing wisdom, today’s nominees are more reluctant to answer questions during their Senate testimony, and the hearings have suffered as a result. ... Have nominees really become less forthcoming in recent years? Previous studies of Supreme Court confirmation hearings have focused on changes in the topics of the questions that senators ask. But to date, there has been no systematic analysis of how nominees respond to those questions. Therefore, while it is possible that things have gone rapidly downhill since Bork, as the conventional wisdom suggests, the evidence supporting this view has been largely anecdotal.
Farganis and Wedeking provide a content analysis of every Supreme Court confirmation hearing transcript since 1955, the year that the proceedings became a regular part of the confirmation process.
For each hearing, we coded all of the exchanges between a senator and the nominee, recording things such as the type of question asked, the degree to which the answer was forthcoming, and the reasons nominees gave for not answering more fully. Using this original dataset – nearly 11,000 exchanges in total – we then tested a series of hypotheses about nominee responsiveness in the face of Senate questioning.
For the findings of the study, see Farganis and Wedeking's article, “No Hints, No Forecasts, No Previews”: An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan. Recommended. [JH]
Top Ten Evidence Issues for 2012 and 2011 (Could provide issues for ALR assignments)
For litigators at the federal trial level, is there anything more important that evidence issues? Federal Evidence Blog has published two posts covering Top Ten Evidence Issues for 2012 and 2011, retrospective and prospective. After assigning the 2011 recap analysis, the 2012 issues could make for good advanced legal research assignments. [JH]
January 11, 2012
"There is a separate language in each of us."
In 2006, I was visiting a friend in the District of Columbia. It happened that she had a prior engagement that she had to attend during my visit. I took the opportunity to attend a talk by Senator McCain. While I was not much of a supporter of Senator McCain, his speech to a large group of right-to-center lawyers was interesting. The substance of the talk itself is unimportant for our purposes here, but I enjoyed it - it made my outing worthwhile. I did not leave the hotel where he spoke as a newly ordained McCain supporter, but I left with more respect for the man. Frankly, I found the speech inspired. Upon returning to my friend’s apartment, I logged on to MSNBC.com, where I found an article about the speech I had heard thirty minutes prior. The article purported to describe the content of Senator McCain’s speech. It identified the date and time of the speech. I was there. It identified the make-up of the audience and the speaker. I was there. And then it explained what the speaker communicated to the audience. I must have been in an alternate universe. “That was not the speech I had heard,” I thought. I looked for clues to bridge the gap. Was there some plausible interpretation of the speech that I had missed but that the writer had grasped? Was there a sub-text I failed to identify? There wasn’t. Either the author stretched the truth so far as to completely misrepresent what I thought to be an inspired speech or I was in an alternate reality from the one the article purported to describe. Maybe that was just politics. However, after that evening, I never logged onto MSNBC’s website again.
That evening in D.C., I truly experienced what was meant by the saying, “You can’t always believe what you read.” It was a powerful experience for me.
I had almost forgotten that evening until I tried making sense of passages in articles, blogs, comments, posts, and reports about the Duncan School of Law that I had read in the last few weeks. There are verifiable facts, and sometimes a glimpse of the truth in some of the articles and reports and posts. However, I often got the sense that I have been living in an alternate reality for the past two and a half years when I read many of the articles and reports and posts, including Joe’s fact-checking post, where he indicated, “In March 2011 a site team visited Duncan Law and produced a report that was critical of the law school's operations in several respects.” I remember a site team in March 2011. I saw them; they spoke with me. I remember a report they produced. I read it. However, I must not properly understand the term “critical.” So I ask, “Can we really know the truth?” Maybe the courts can. Maybe it is but an illusion. Maybe it’s just politics. Maybe I’m off my rocker.
In any event, I shall conclude with what I see as a truth (or a glimpse of it), a quote from Marilynn Robinson, “In every important way we are such secrets from each other, and I do believe that there is a separate language in each of us, also a separate aesthetics and a separate jurisprudence. Every single one of us is a little civilization built on the ruins of any number of preceding civilizations, but with our own variant notions of what is beautiful and what is acceptable--which, I hasten to add, we generally do not satisfy and by which we struggle to live. We take fortuitous resemblances among us to be actual likeness, because those around us have also fallen heir to the same customs, trade in the same coin, acknowledge, more or less, the same notions of decency and sanity. But all that really just allows us to coexist with the inviolable, untraversable, and utterly vast spaces between us.” (DCW)
Supreme Court Action: Brady Violations, Arbitration, Federal Tort Claims, and Habeas Relief
The United States Supreme Court issued its first opinions of 2012 with four released yesterday and three today. The first of these is Smith v. Cain (10-8145), where the Court considered whether statements that were undisclosed to the defense in a murder case violated Brady v. Maryland. The Court said yes in a case where the conviction was based on the testimony of a single eyewitness identifying the defendant in Court. That witness also made two separate (undisclosed) statements to detectives that he could not identify the perpetrator of the crime. The Court noted that the Brady rule would not apply when the state has other substantial evidence, but that was not the situation in this case. The Court split 8 to 1, with Justice Thomas dissenting. He would have found the testimony at trial compelling to the point where the undisclosed statements would have no effect on the conviction. His dissent is 19 pages, 15 more than the opinion itself.
The next case is Compucredit Corp. v. Greenwood (10-948), in which the Court extends its approval of the Federal Arbitration Act (FAA) to agreements that fall under the Credit Repair Organizations Act (CROA). The petitioners were sued for violations of CROA. They tried to enforce an arbitration clause in their consumer agreement but were denied by the trial court which held that Congress intended that CROA claims to be nonarbitrable. The Ninth Circuit affirmed that ruling.
The Court held that the Act’s requirement that consumers receive a statement containing the words “You have a right to sue a credit repair organization that violates the [Act]” and another provision that prohibits the waiver of consumer rights under the Act does not explicitly override the FAA mandate to compel arbitration. The Court states that these statements are colloquial ways of informing consumers of their rights. These may include judicial action after arbitration. In any event, Congress could be more specific in compelling a right to sue under CROA than the obtuse method suggested by Respondents. As the CROA is essentially silent on whether claims can proceed in arbitration, the FAA requires the arbitration agreement to be enforced. The Court split 8-1, with Justice Sotomayor, joined by Justice Kagan, concurring in the judgment in a separate opinion, and Justice Ginsburg dissenting. Justice Scalia wrote the majority opinion.
The next case is Minneci v. Pollard (10-1104). Pollard brought an action against employees at a privately run federal prison in California claiming they deprived him of adequate medical care in violation of the Eighth Amendment. The District Court dismissed the suit as the Eight Amendment did not contemplate federal tort suits against a privately managed prison’s employees. The Ninth Circuit reversed. The Court held that there were adequate state remedies in tort available to Pollard for him to litigate his claims. They may not be equal to federal tort remedies but they need not be equal in any event. The Court refused to extend Carlson v. Green, 446 U. S. 14 to apply a federal tort remedy noting that Carlson involved public employees where this case involved private employees. The fact that a state remedy may potentially not protect Eight Amendment interests is not enough to compel a different result. The split was again 8-1, with Justice Breyer writing for the majority. Justice Scalia filed a concurring opinion joined by Justice Thomas. Justice Ginsburg dissented.
The final case from yesterday’s batch of opinions is Gonzalez v. Thaler (10-895) which addressed several procedural rules covering the timing in which habeas corpus petitioners can make their claims to the federal courts. Gonzalez let his time to appeal to the highest state court expire after his criminal conviction was affirmed by an intermediate appellate court. Gonzalez then sought federal habeas relief and his petition was denied as being time barred by the one year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA requires that a habeas petitioner must obtain a certificate of appealability (COA) to appeal the District Court’s final ruling on the petition. Two separate provisions of the statute require that the COA will only issue if the petitioner has made a substantial showing of the denial of a constitutional right (§2253(c)(2)) and which specific issue satisfies that showing (§2253(c)(3)). The judge that issued the COA provided the former, but not the latter. The Fifth Circuit affirmed the denial of the petition on the untimeliness grounds.
The Court held that §2253(c)(3) is mandatory but not jurisdictional. Thus the Court of Appeals has jurisdiction to consider the appeal under these circumstances. On the direct issue, the Court held that for a defendant that does not seek review in the highest court, the judgment becomes final when the time to seek such review expires. The split was again 8-1 with Justice Sotomayor writing for the majority. Justice Scalia dissented on the basis that the COA requirements were jurisdictional. The single dissents in each of these cases remind me of the nursery rhyme The Farmer in the Dell where the cheese stands alone.
I’ll review today’s opinions in another post. [MG]
AALL's Biggest Blunder of 2011
It's a tough call but I think our association's way-over-the-top antitrustism takes the cake. While a draft (actually it was a second draft) antitrust policy was rejected by the AALL's Executive Board last summer, and the first version of its web communications policy was revised our organization has implemented a fairly restrictive means of web communications that still echoes in antitrustism. It is fair to say the implemented AALL's web communications was based on the rejected antitrust policy.
Is there really a need to revent this wheel? ALA's statement of its legal framework works just fine. Quoting from Twenty questions and answers (last updated 3/12/08) about antitrust considerations and member communications, Questions 13 and 14 are sufficient. Quoting from pertinent parts:
13. Some of the most damaging claims brought against associations have related to antitrust laws. Are antitrust laws relevant to ALA?
Yes. While ALA may be different from a trade association in the extent of its exposure, antitrust laws are relevant. This is a broad and complex area of the law and there are numerous ways in which associations are impacted.
ALA cannot, for instance, encourage a boycott of a specific vendor, product or service. This does not mean that there cannot be discussion of a specific product, service or vendor at ALA meetings or in ALA publications. But, as relates to antitrust considerations, such discussion may not seek to fix prices, regulate the availability of services or products, encourage unfair practices, encourage non-competition, or encourage boycotts.
14. Does the Association have to be “officially” involved for an antitrust violation to occur?
No. The 1982 case American Society of Mechanical Engineers, Inc. v Hydrolevel Corporation determined that the association’s volunteers and lower-level staff members caused competitive injury, although the association’s leadership was not aware of the activities and had not approved them. The Court ruled that the association was liable because it failed to prevent antitrust violations by its volunteers and staff, who had acted within their “apparent authority” in speaking for the Association. Treble damages were assessed the association under provisions of the Sherman Act.
There is absolutely no reason why any AALL individual member can not speak about antitrust issues in a real or virtual forum as long as that member qualifies (1) that statements made are his or her own professional assessment of a single vendor or the legal publishing industry's market structure, practices and procedures and (2) the the person's intent is not to use an AALL venue to incite a boycott, etc. Professional expertise so qualified removes the "apparent authority" concern. I think we all know how to say, "this is my opinion and only my opinion."
There is also absolutely no reason AALL rank and file members can not gather professional intelligence about practices and policies believed to be antitcompetitive for actions individual or groups of members who want to take action on their own iniative, even as a group, as long as any such actions clearly state that they are representing their institutional buyers and are not sanctioned by AALL. In a nutshell, perhaps the association staff -- from AALL's Executive Director to the Vendor Liaison -- are the only individuals who may not join such actions. Even elected office holders from the Executive Board, to Special Interest Groups to the leve of AALL chapters have not given up their rights of freedom of speech, association and petition their governments because they hold elected AALL-related positions. All they have to do is include a disclaimer.
There is also absolutely no reason the AALL Caucus on Consumer Advocacy can be prohibited from gathering professional intelligence for the purpose of convening resolutions to the Executive Board that call for promoting legislative and regulatory corrective issue by issue at the federal and state level because the Caucus is advising, some would say, lobbying the Executive Board to take action under Board authority. In the event that the Board rejects any such Caucus proposals, institutional buyer representative are free to take up the iniatives on their own or by way of grassroots groups to petition their governments. An offical AALL rejection removes any "apparent authority" concerns.
But first, our association has to provide a means of open communications because the current rules protect no one but our vendors. ALA has got it right. AALL has got it wrong.
Recently I realized that I was nominally, semi-automatically enrolled in AALL's current web communications platform because I was receiving emails from my government libraries special interest group for months. No problem but when I went to activate my account, I was presented with AALL TOS rules. This time I clicked "agree" and even joined a couple of other web communities. I don't anticipate I will be participating but if I do and somehow violate the "rules" I'll leave it up to a vendor member monitoring the forum to make the objection.
On Jan. 3, 2011, we all probably received notice about the new "AALL Members Open Forum" which stated in part:
By default, all current AALL members will automatically be set to receive messages from this eGroup as a daily digest.
I saw nothing that stated that this "AALL Members Open Forum" is exempt from AALL's web communications rules. What the heck, join the web communities and ignore its restrictions until our association gets its collective act together. Just remember to include a disclaimer! [JH]
End Note. See also ALA's official statements to questions 7, 8, 9 and 10 about direct lobbying, grassroots lobbying, providing testimony before Congress and association lobbying registration requirements.
Free Passes for Law Bloggers Who Want to Attend LegalTech New York, Jan. 30 - Feb. 1
A reminder from Bob Ambrogi:
[L]egal bloggers are eligible for free passes to attend the LegalTech conference in New York, Jan. 30 to Feb. 1, 2012. This is a full-access pass, covering all programs and the exhibit hall. Also again this year, LegalTech is hosting a Blogger’s Breakfast on Tuesday, Jan. 31, at 9 a.m. in the Petit Triannon room at the New York Hilton.
For details on how to reserve your free pass, see Bob's Free Passes to LegalTech for Law Bloggers post. [JH]
January 10, 2012
Google Adds Social Search, Offers Unfiltered Results As An Option
Google rolled out a new search feature today. Google account holders can now get social search results related to materials in Google+ as integrated into search results. The details are announced on the Official Google Blog in a post entitled Search, plus Your World. Only those materials that are shared with a Google account holder or publicly available will show up in the social side of results. This immediately generated the criticism that Google is promoting its own content at the expense of competitors. Results from Facebook and others will appear lower on in a results page. I’m not so sure as some of the utility of this requires a Google account. Nonetheless, this feature is bound to appeal to the social minded as Google+ gains traction.
For those who would prefer to avoid the feature entirely there will be a button in the upper right hand corner of the page that will display the same results without personalization. That is interesting as only a few commentators picked up on the significance of that. Here is the text from the Google blog post describing the alternative:
We’re also introducing a prominent new toggle on the upper right of the results page where you can see what your search results look like without personal content. With a single click, you can see an unpersonalized view of search results.
That means no results from your friends, no private information and no personalization of results based on your Web History. This toggle button works for an individual search session, but you can also make this the default in your Search Settings. We provide separate control in Search Settings over other contextual signals we use, including location and language.
What this apparently means is that a researcher can view results that have not been filtered against that researcher’s search habits and previous searches. One ongoing criticism of Google is that the search engine anticipates what a researcher wants to see and pushes that information compared to the universe of possibilities. The “no personal results” button turns that off while eliminating social search features for that individual search. It’s possible to turn social search off permanently, as the excerpt suggests.
The new feature will be rolled out over the next several days starting today. I’m more intrigued by unfiltered search results than anything Google+ can offer to me. [MG]
In Defense of the Corvair: Worth one hellva lot more than trading it in to pay for law school
In what will go down in the annals of ABA history as one of the most assine interviews by an ABA president:
Robinson had the grace and the courage to tell law students it was their own fault for the rampant price gouging that happens as a result of the ABA’s ineffective oversight of law schools. It took real strength of character for Robinson to share this anecdote: “When I was going to law school . . . I sold my Corvair to make first-semester tuition and books for $330.” I mean, how many people in Robinson’s position would be so out of touch that they think prospective law students are driving automobiles that can cover a whole semester of tuition at an American law school!
Quoting from ATL's Elie Mystal's Law School Professionals Want Bill Robinson to Put a Sock in It. See also Mark Giangrande's ABA President Blames Law Students for Going To Law School In A Shrinking Job Market.
Robinson earned his JD in 1971 ... pause for counting on my fingers ... OK, done. That means he sold his Covair in 1968. If all he got was $330 for a second generation Corvair (1965-1969), then he really was an idiot. Note how I don't say he is still an idiot but you can decide that for youself by reading the interview he gave to Thomson Reuters News & Insight. (Do note this is the very first TR News & Insight story worth reading since its launch.)
I'm thinking Robinson had a first generation Corvair (image right). So did I in the late 60's. I had a '61 (or was it a '63 first gen) Corvair and a '57 Chevy Bel Air back then. Whichever car started on any given day was my mode of transportation for that day. Frankly, my Corvair was more reliable than my 57 Chevy.
OMG, trading in a Corvair to pay for law school. I sure as hell would not have sold my Corvair to pay for first semester 1L tuition and books! Granted the car did not track corners very well. It sort of took bunny hops around a curve. You could find yourself sitting in a ditch, particularly in Chicago winters -- been there, did that. But the car could catch on fire and restart after the fire was out!
How do I know? It happened. We, me and a couple of high school friends, were driving down Main St. (literally) in our Chicagoland suburb when all of a sudden the cabin filled with smoke. "Hey, don't bogart that joint!" Well that wasn't the case. I pulled over, opened the trunk (remember the Covair was rear engine) and the damn thing was on fire (read oil leak). We put out the fire but the Covair wouldn't start. So ... being something like after midnight on a Friday or Saturday (can't remember) and also being in a bit of an "altered state of consciousness," we left the Covair that evening. Next morning, I went back and the damn thing started right up as if nothing had happened. By nothing, I mean I didn't even have to replace any wiring, etc.
Now, I know that Time Magazine once ranked the Covair as one of the "50 Worst Cars of All Time" but when was the last time you hear of a car that had an engine compartment fire and then started up and continued running as if nothing had happened. It is one thing for the ABA President to make idiotic statements about financing law school some 40-plus years ago and blaming law students for not being knowledgeable enough of the dismal legal services labor market (ah, remember the issue of gamed job placement data?). It is quite another to imply that a Corvair was worth selling off to pay for the first semester of law school. An exploding Ford Pinto, sure. But not a Corvair. [JH]
"Julie of the Wolves" or Julie Eaten by the Wolves
HarperCollins is suing digital publisher Open Road Integrated Media for copyright infringement over the digital rights to Jean Craighead George’s Julie of the Wolves, a children’s book published in 1972 based on a 1971 contract with the author which gave HarperCollins the right to publish the book in any format. In a complaint filed in the US District Court for the Southern District of New York, the HarperCollin claims Open Road's eBook may cut into Company's print sales and devalues its’ exclusive rights to publish the children's book in eBook format.
Well, at least HarperCollins isn't suing the author who at 93 probably doesn't need this headache. Do note that Open Road was founded by former HarperCollins CEO Jane Friedman in 2009. Hum. Details and text of the complaint in Laura Hazard Owen's HarperCollins Sues Open Road Over E-Book Rights on paidContent.
Perhaps Open Road's Jane Friedman has a litigation strategy that may nullify HarperCollins "any format" claim. Could "any format" be defined in terms of available format options at the time the contract was signed? Don't know but this case also reminds me of two of Digital Book World's 10 Predictions for 2012. [JH]
January 9, 2012
Legal Labor Market Remains Bleak According to BLS Stats
According to the latest report by BLS, professional and technical services showed job expansion running at 8.5% and the only subgroup that showed a decline was legal services (- 1.8%). On WSJ Law Blog, Joe Palazzlo reports that while the economy added 200,000 jobs in December, the legal services sector lost about 1,800 jobs. [JH]
Federal Judge Offers Ideas To Reform the Teaching of Law
Judge José A. Cabranes of the Second Circuit Court of Appeals was the lunchtime speaker at the Association of American Law Schools’ gathering last Friday. He was pretty blunt about his view of the current state of law schools, suggesting they should focus on core curriculum classes and scale back the interdisciplinary subjects. These could be taught in a concentrated program for two years with an optional year of apprenticeship. Clinical education should be a part of this, but coming after learning the substantive law in which a clinical program is based. His real life example was that of a student working in a housing clinic without having taken a property class. Students, in the alternative, could forgo the apprenticeship and stay on for a third year where they could learn the more theoretical aspects of the law.
He answered critics of the law school as trade school by saying that there isn’t anything wrong with teaching practical skills to students. I can agree with him, as I’ve never heard anyone question the professionalism of a medical school because that model requires a residency program before a student can become a licensed doctor. I also think there is many a patient who would rather be treated for cancer by a doctor who has practical skills in that area than one who has merely thought a lot about the disease. Why should the teaching of law be any different?
Judge Cabranes had a few words for the current state of legal scholarship. He is quoted in the National Law Journal as saying "Legal scholarship is a conversation among members of the academy with the rest of us reading — maybe." Consider that more people have probably read David Segal’s criticisms of law school published in the New York Times than most of the scholarship that has come out of the legal academy. I grant that the writings are aimed at very different audiences, but so far only Stanley Fish has made any attempt at defending the current law school model, and not all that convincing at that. Something is going to have to change at some point. Judge Cabranes’ comments should give the legal academy something to ponder over. Let’s see how those consumer fraud cases against law schools pan out in the meantime. It would be ironic, indeed, if change was motivated by a court order rather than from within.
Fact-checking the Duncan Law School Story
In an earlier post, I speculated that it was probably not a coincidance that Duncan Law was featured in a New York Times article by David Segal just before the law school received official notice that the ABA denied its request for provisional accreditation in view of the lawsuit Duncan Law filed almost immediately after receiving official notice. The New York Times article, published on Dec. 17th, failed to mention that Duncan Law had received negitive warnings prior to the accreditation meeting conducted on Dec. 2. In fact, the article failed to take "journalist notice" of a long-running series of exchanges between Duncan Law and the ABA. They include:
- In March 2011 a site team visited Duncan Law and produced a report that was critical of the law school's operations in several respects.
- Invited to respond to the site inspection report, Duncan Law's Aug. 6, 2011 report provided "voluminous information and provided line-by-line responses and clarifications to various points in the site report."
- On September 29, 2011, the Accreditation Committee conducted a brief hearing on Duncan’s application for provisional approval with Duncan officials.
- On October 12, 2011, the ABA sent Duncan Law the 23-page Recommendation of the Accreditation Committee. Quoting from the Declaration by the ABA Consultant on Legal Education, Hulett H. (Bucky) Askew, filed with the ABA's pleadings in the on-going litigation (which is also the source of the above chronology):
Based on these Findings of Fact, the Committee concluded that Duncan was not in substantial compliance with each of the Standards and had not presented a reliable plan for bringing itself into full compliance within three years. (Citation omitted.) Specifically, the Committee concluded that Duncan had not established substantial compliance with four separate Standards and, in some cases, accompanying Interpretations.
Based on the above sworn testimony, it should come as no surprise that Duncan Law was denied provisional accreditation by the ABA. While Duncan Law's litigation strategy includes claiming it is in compliance with ABA standards, Duncan Law officials would have had to be in a state of collective delusion based on the above chronology to believe it had even a snow ball's chance in hell of being granted provisional accreditation after its Dec. 2 meeting.
That does not mean Duncan Law cannot make a case for being in ABA compliance in a court of law, as unlikely as that seems. It does however bring up some important issues in telling the "Duncan Law Story" in the court of public opinion by way of Segal's Dec. 17th New York Times article.
One has to ask, did Duncan Law or the New York Times omit essential facts? In Was the New York Times Used by Duncan Law School (or were readers duped by the Times)?, law prof Brian Tamanaha, a well-known but even-handed critic of the legal academy status quo, wrote:
[O]ne must wonder why this crucial information was omitted from the story. One possibility is that Duncan administrators did not tell the reporter, David Segal, about the Committee's negative finding. That would be shocking if true. It would suggest that Duncan law school used the Times to help it mount a preemptive public campaign against the ABA before the negative finding came to light. Another possibility is also shocking: that Segal knew about the negative conclusions but deliberately failed to mention them because to do so would disrupt his story line.
Having spent some time working in the newspaper industry for the Chicago Tribune, one possible explaination for the New York Time's article omitting the fact that Duncan Law did not receive numerous advance indications that it was in trouble with the ABA is if Segal conducted the inteview with Duncan Law officials before Oct. 12th report. If that was the case, it is a highly unusual scenerio. Newspaper reporters tend not to write articles two months in advance of publication but even if that was the case, journalism ethics would call for fact-checking data that was two months old, particular data this important to the story line.
There is another possible scenario. Editors of a reporter's story have the final word on what gets published. Oftentimes, draft stories are sized down to fit space allottments. A good clue that a story has been edited down to fit the print edition's "news hole" is when one sees a series of trailing one sentence paragraphs near the end of the text; the rest of those paragraphs were likely eliminated by an editor. Having had a fair amount of experience in seeing this happen, there is nothing Segal's story that shows the hand of an editor chopping out essential elements of Segal's narrative.
A third scenerio is that Segal intentionally withheld the information. I find this unlikely because the entire chronology of events, if Segal knew about them, could have dovetailed into the story line of his article. Here I disagree with Brian Tamanaha. However, readers of the New York Times are likely to never know what happened that resulted in the New York Times story as published unless Segal writes a follow-up article, which to date he has not.
Tamanaha's post is highly recommended for other reasons. Tamanaha's media-related questions are just a lead-in to his "limited defense of the [ABA's denial of provisional accreditation for Duncan Law]" and his critique of "why the ABA still is more a part of the problem than a part of the solution." For those reasons, his post is highly recommended.
Also keep an eye out for Tamanaha's forthcoming "Failing Law Schools" (Chicago 2012). Along with the likes of law prof Bill Henderson, Brian Tamanaha has a track record of taking a balanced approach to transforming the legal academy. It the issue of the ABA-Legal Academy cartel reaches the level of congressional hearings, finger-pointing can be resolved by Henderson and Tamanaha testimony, assuming they are invited to give testimony.
End note on the Duncan Law Library. In the ABA's brief in opposition to Duncan Law School's motion for a temporary restraining order and the ABA's press release, standards with which the Duncan Law was not compliant are (or "include" according to the press release):
Standards 303(a) and (c) and Interpretation 303-3: Academic Standards and Achievements
Standard 303(a): “A law school shall have and adhere to sound academic standards, including clearly defined standards for good standing and graduation.”
Standard 303(c): “A law school shall not continue the enrollment of a student whose inability to do satisfactory work is sufficiently manifest so that the student’s continuation in school would inculcate false hopes, constitute economic exploitation, or detrimentally affect the education of other students.”
Interpretation 303-3: “A law school shall provide the academic support necessary to assure each student a satisfactory opportunity to complete the program, graduate, and become a member of the legal profession…”
Standard 501(b) and Interpretation 501-3: Admissions and Student Services
Standard 501(b): “A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar.”
Interpretation 501-3: “Among the factors to consider in assessing compliance with Standard 501(b) are the academic and admission test credentials of the law school’s entering students, the academic attrition rate of the law school’s students, the bar passage rate of its graduates, and the effectiveness of the law school’s academic support program.”
At least the law library was not implicated. Segal's article starts off with the following opening paragraphs:
The library at the Duncan School of Law may look like nothing more than 4,000 hardbacks in a medium-size room, but it is actually a high-tech experiment in cost containment. Most of its resources are online, and staples like Wright & Miller’s Federal Practice and Procedure — $3,596 for the multivolume set — are not here.
“We have a core collection,” says Sydney Beckman, the school’s dean, “and if someone needs something else, we provide it.”
I bring this up because one of the true innovators in academic law library collection development, one who has succesfully implemented what had been a nominal "format neutral" ABA standard, is Gordon Russell, Duncan Law's Associate Dean, Professor of Law and Director of the Law Library. During this turmoil between the law school and the ABA, there is no doubt in my mind that the law library staff will continue providing Duncan Law students with the resources and services they need. [JH]
ABA Standing Committee on the Law Library of Congress Offers Free Training Session on How to Conduct Free Legal Research Online in NOLA Next Month
Hat tip to Amy E. Horton-Newell, Director, ABA Standing Committee on the Law Library of Congress for calling this interesting education and professional development opportunity to my attention.
The American Bar Association Standing Committee on the Law Library of Congress will host a free training program on how to conduct free legal research online at the Royal Sonesta Hotel in New Orleans on Friday, February 3, 2012. Librarians, lawyers, law students and researchers are encouraged to attend.
How to Conduct FREE Legal Research Online
Friday, February 3, 2012
10:00 am to 11:30 am
Royal Sonesta Hotel, Fleur de Lis A, Lobby Level
This program will focus on the legal research services and resources available from the Law Library of Congress and other free online collections. Following a general overview of the Law Library and its services, there will be an explanation of the organization, structure and content of the two leading websites maintained by the Law Library—THOMAS, covering federal legislative information beginning with the 104th Congress (1995) with full texts of bills, resolutions, the Congressional Record, legislative calendars, committee information, treaties plus much more! Learn about the Law Library's global research services, vast collections in 195 languages from over 220 jurisdictions worldwide, and expert legal staff from Matthew Braun, Legal Reference Specialist at the Law Library of Congress. Expert legal researchers will also highlight other free online collections and search engines to equip participants with reliable sources for legal research.
- Familiarity with the specialized services, websites, collections and expert legal research staff available from the Law Library of Congress free to all including solos, practicing lawyers, librarians, researchers and those new to the profession;
- Understanding of the organization, structure, content, and search strategies to perform time‐saving legal research in THOMAS and other free legal databases from your own computer wherever you are in the world; and
- Interactive research demonstrations and explanations of websites and other research products produced and maintained by the Law Library of Congress as well as other authoritative Web‐based collections and useful search engines.
Speaker: Matthew Braun, Legal Reference Specialist, Law Library of Congress, Washington, DC
Download the Program Announcement.
A Trip to NOLA! Professionally, I'm long past due needing a refresher course on Law Library of Congress resources and other free online collections, particular one that will be conducted by Law Library of Congress Legal Reference Specialist. Personally, I'm just wondering what the home renovation cost would be to attend this in New Orleans on a Friday, which in my case would probably end up being returning home on the following Monday. AALL NOLA 2007 cost me all new widows for two stories or our three story house! New siding? Last quote was in the $25K range. Based on my past track record, I'm thinking the Blog Widow would say, "no problem, go to NOLA." [JH]
January 8, 2012
Round-Up of Law Practitioner Blogs
Sacramento Real Estate Lawyer Blog
Discusses real estate cases, news, and related business matters in Sacramento, California. Published by The Law Office of Kristina M. Reed
Whistleblower Qui Tam Law Blog
Examines whistleblower cases, news, and related matters nationwide . Published by
Stein, Mitchell & Muse LLP
Maryland Injury Attorneys Blog
Discusses personal injury cases, news, and related matters in Maryland. Published by Brassel Law Group, LLC
Attorney Client Match Blog
Examines legal cases, news, and opinions nationwide . Published by Robert N. Katz, Esq.