Law Librarian Blog

Will You Fight With or Against the Zombies in Librarianship?

Sally Pewhairangi identifies seven dead ideas that still walk among us at Finding Heroes: Project Manaagement for Libraries and Steve Matthews adds four more at 21st Century Library Blog. Do note Pewhairangi's “top five reasons for keeping the zombies in librarianship.” About that, Matthews writes

I’m going to go out on a short limb here and say that her suggestions are intended facetiously. Her final question for readers, and the whole profession is – “Will you fight with or against the zombies?”

[JH]

Supreme Court Action Yesterday: Fee Splitting Under RESPA and Double Jeopardy

The Supreme Court issued two opinions yesterday.  The first is Freeman v. Quicken Loans, Inc. (10-1042).  The case involves an interpretation of the Real Estate Settlement Procedures Act (RESPA).  The Act (§2607(b)) provides that no person shall give and no person shall accept “any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.”  The petitioners received mortgage services from Quicken and filed suit alleging they were charged fees for services not provided, violating RESPA.  The District Court granted summary judgment to Quicken on the basis there were no allegations of fee splitting.  The Fifth Circuit affirmed.

The Supreme Court affirmed the decision, holding that under the Act, the plaintiffs must demonstrate that the charge for settlement services was divided between two or more people for a violation of the Act.  The Court interpreted the section as requiring two distinct transactions, a charge, and then a split.  It rejected the interpretation that merges both transactions into a single event.  The Court examined the grammar of the statute at length to come to this conclusion.  Justice Scalia delivered the opinion for a unanimous Court.

The second case is Blueford v. Arkansas (10-1320).  This is a Double Jeopardy case.  Blueford was charged with capital murder for the death of a one-year-old child.  Lesser offences in the charge included first-degree murder, manslaughter, and negligent homicide.  The trial court instructed the jury to consider the lesser charges if they had reasonable doubt on the capital murder charge.  The verdict forms presented the option of conviction on one charge or acquittal on all charges.  There was not an option to acquit on some.

The jury pursued deliberations and reported that it could not reach a verdict.  The trial court asked about the progress on each event and the jury reported it was unanimous against a verdict of capital murder and first-degree murder, deadlocked on the manslaughter charge, and had not deliberated the negligent homicide count.  The jury ultimately could not reach a verdict and the judge declared a mistrial.  The State then began a retrial on all charges.  Blueford moved to dismiss the capital and first-degree murder charges.  The judge denied the motion and the Arkansas Supreme Court affirmed.

The Supreme Court held that the Double Jeopardy Clause does not bar retrial on the capital and first-degree murder charges.  The Court based its conclusion on the fact that the jury may have reported that it was against guilt on these charges, but that was not a final resolution of anything.  The jury continued to deliberate and could have revisited the issue of guild before deliberations had concluded.  The declaration of a mistrial was not improper under the circumstances.  Blueford argued that the trial court should have taken action on the report, such as sending the jury partial verdict forms.  The Court said it never required a trial court of break the impasse, let alone require a court to give the jury new options.  The form of the instructions was allowed by Arkansas law.  I’ll take retrials for $300, Alex.  Chief Justice Roberts delivered the opinion of the Court, joined by Justices Scalia, Kennedy, Thomas, Breyer, and Alito.  Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg and Kagan.  [MG]

Reminder: LawLibCon's "All Things Private Law Libraries" Podcast This Afternoon

From Rich Leiter's list message for today's episode of Law Librarian Conversations:

We're having a special show featuring co-chairs of this year's [PLL] Summit, Jean O'Grady and Joan Axelroth. We hope that you can join us for a discussion about the law firm library of 2020. Academic law librarians are welcome to learn what the "real world" is anticipating and share your insights into what you think the law school library of 2020 will look like. (Will law school libraries be very different from law firm libraries?)

Not a year has gone by where I haven't regretted not attending PLL's annual summit. What's implicit in Rich Leiter's statement is that what happens in private libraries does not stay in private law libraries.

The podcast starts at 2:00 PM CT Details here. [JH]

Friday Fun: Don't Be a Private Snafu

Future ready? Then start up. Don't be a Private Snafu. [JH]

St. John Fisher College Decides Against Adding a Law School

Words I never thought I'd hear from a college president who has studied the option to add a law school to the academic program:

"I think it was more a matter of the decision that given the strategic plan of the college, our vision of what it should be, we had other priorities. I think that was the main thing."

That was from from Dr. Donald Bain, President of St. John Fischer College on the four year old plan to open a law school in downtown Rochester, NY.  Further:

"We had thought about it at one point but we just found that other programs and projects that (sic) frankly we believe were more important to the college and also more important to our students especially."

Amazing.  A college president (and I assume a board of trustees) that read the studies and came to the conclusion that the school didn't need to invest in a law program.  With Syracuse, Buffalo, and Ithica, home to established law schools and not terribly far away, the Rochester area is not necessarily underserved.  There are fifteen law schools in New York State according to the New York State Unified Court System web site.  More on this is available from the local ABC News affiliate in Rochester.  [MG]

"I’d love to hear from a few vendors about why they have or have not become COUNTER compliant"

So wrote Todd Melnick, Associate Librarian for Public Services, Fordham Law School Library, in his May 21, 2012 CRIV Blog post titled Why Aren’t More Legal Information Vendors COUNTER Compliant? So far, no comments to the post from the vendor community.

Perhaps the "no reply" is because the poor souls in the vendor community who are assigned the task of monitoring law librarian blogs had not passed on the post to someone higher up the corporate communications food chain quickly because they don't know what COUNTER is. (Melnick did link to the relevant resources by the way.) Perhaps someone up in the corporate communications food chain is waiting on an answer from their techies. Perhaps those techies have bounched the question to some SVP of product and services type because they found the company could implement COUNTER but they are afraid that Das Company doesn't want to disclose the data that way. Perhaps the Librarian (Marketing) Relations team is still waiting to obtain a waiver of their company's "don't you comment to a blog post" ban.

Dear Colleagues

First I want to thank CRIV for launching The CRIV Blog and for giving me the opportunity to talk about database usage statistical systems in a medium that everyone can read now that I know The CRIV Blog exists.

Based on extensive customer input, our customers like spending huge amounts of cash on systems that provide usage stats at the database level. They do not want to discontinue using their systems out of fear that this niche industry would go out of business. Being in the solutions business ourselves, we never want to contribute to the demise of another service provider even if it meant our customers' funds could be better spent on retaining some of our products and services.

After multiple focus group sessions with customers who cannot afford a database usage stat solution, we learned that our customers like the customer experience and education of wrangling 12 months of stats about our legacy systems from us. Since COUNTER would eliminate that, we would be disappointing our customers if we implemented it. Obviously we are not in the business of disappointing our customers.

Thank you,

The Entire (what remains of) the Librarian (Marketing) Relations Team

In other words, a vendor no-rely to a post is a reply. And posting a question of interest for all to read and to see no replies forthcoming is a good thing. Keep posting CRIV! [JH]

The Marketing Gurus Have Taken Hold of Lexis Advance

LN's the nutty professor ad is my all time favorite from the marketing gurus at Lexis. This one, image right, for Lexis Advance, is not.

If one wants to be in a generous spirit, the ad implies that LA's SE is so good you won't be confronted with contrary legal authorities produced by someone else that is going to require additional research. Alternatively, it implies LA's SE is so good, its search output won't require follow-up searching because the initial results will hit the nail on the head.

Any experienced practitioner knows both are dead wrong. No SE will ever produce that good a "sleep well" search experience because "real world" searching is interested, not disinterested, searching. It's the arguments made and the transactions crafted by opposing parties which is the end result of legal research. Legal research is a means to an end and that end is interpreting materials in the most favorable light. Those interpretations oftentimes require re-searching.

In a less generous spirt, not having to perform follow-up topical searching for the research assignment at hand is just a myth. Remember the WLN video which promoted the truly asinine storyline that WLN is going to find you that one document,which answers all needs. Finding this sort of holy grail of legal research hardly ever happens and WLN's West Search hasn't been making it happen more often.

I guess that when vendors develop new SEs, they just can't restrain themselves from crafting epic myths about them as the selling point for their new platforms. This may be the story WEXIS marketing gurus want to tell but how much "real world" legal research experience do you think these Mad Men have?  [JH]

Massachusetts Bar Calls For More Practice Skills in Law Schools to Spur Employment Opportunities For Grads

The Massachusetts Bar Association (MBA) issued a report last week that calls for greater practical training for law students as a way of making them more competitive, that is, hirable, in a down market.  The report takes into account how medical and dental schools operate and the lack of underemployment for graduates.  There is a projected shortage of skilled medical personnel in the coming years.  The law market isn’t quite the same in that medical schools have to invest heavily in a scientific infrastructure where law schools do not.  Nonetheless, medical graduates have more opportunities to gain experience before going into actual practice than the average law graduate.  That makes an immediate impact on the employment prospects in the medical field.

The report calls for more practical experience for law students by adjusting the curriculum in several ways.  One would be to place a heavier emphasis on externships.  Another would be to enhance transactional training through legal writing programs.  Much as students work through problems in trial advocacy classes, legal writing programs could create contract drafting problems as group simulations.  I know that some law schools do this already.  The report notes that despite previous studies on legal education urging a greater teaching of practical skills, schools make few changes to the established curriculum. 

I harken back to Professor Stanley Fish and his response to David Segal’s articles in the New York Times on how law schools are more theoretical than practical.  His push back stated a need for students to understand the law as a subject as much as a tactic if not more.   The subject informs the strategy of a case.  I agreed with him in an earlier post but I still believe that there is room in the curriculum for teaching practical skills.  Not every Yale graduate is destined for a faculty slot at another law school.  Calling for the teaching of practical skills does not diminish legal scholarship in the academy.

The MBA report goes further than suggesting changes to the curriculum.  The reality is that schools operate in ways that increase position in the U.S. News rankings.  What better way to get schools on the bandwagon than to change the ranking formula to include the teaching of practice skills.  It’s an interesting idea.  Withering criticism from Congress, the press, and even lawsuits by graduates have only motivated changes to the way statistics are reported, not the way schools teach the law.  Hey U.S. News, the Massachusetts Bar has some ideas for you.

The Report of the Task Force on Law, the Economy, and Underemployment is available here.  A press release about the report from the MBA is here.  An interview with Eric Parker, the co-chair of the Task Force that produced the report is here.  [MG]

2011 List of Notable Gov Docs and More...

LJ's Marianne Ryan has published ALA Government Documents Round Table's annual list of notable government documents. It is an excellent springboard for her overview of the current state of affairs at the GPO and FDLP. See Notable Government Documents 2011: Past as Prologue. [JH]

Litigation Involving Social Media Evidence: X1 Discovery's survey findings for 2010-2011 reported court decisions

It took over a year to persuade my county's information services department to stop blocking all social networking sites for our county law library users because they are necesssary resources in criminal and domestic relations litigation. While most state court trial level decisions go unreported, X1 Discovery identified 689 cases where evidence from social networking sites played a significant role.

On Forensic Focus, John Patzakis reports:

Criminal matters marked the most common category of cases involving social media evidence, followed by employment related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/ unfair competition). As only a very small number of cases involve a published decision that we can access online, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period. Even so, this limited survey is an important data point establishing the ubiquitous nature of social media evidence and the importance of best practices technology to search and collect this data for litigation and compliance requirements.

The case tally by networking site from the 2010-2011 survey was MySpace, 315; Facebook, 304; LinkedIn, 39; Twitter, 30; and Foursquare, 1. An interactive web spreadsheet of the findings can be found on X1 Discovery site at Published Cases Involving Social Media Evidence (2010-2011). [JH]

Supreme Court Denies Appeal in Tenenbaum File-Sharing Case

One of the actions taken by the Supreme Court yesterday was to deny the petition for certiorari by Joel Tenenbaum in his protracted file sharing case out of the District of Massachusetts.  Tenenbaum was found liable for sharing or downloading 30 songs on the Internet and assessed statutory damages to the tune of $22,500 per each track, or $675,000.  The District Court lowered the damages to about 10% of that figure on constitutional grounds. 

Tenenbaum appealed to the Supreme Court on four questions:

1. Do statutory damages under § 504(c) of the Copyright Act apply to noncommercial individuals without requirement of nexus with actual damages?

2. Did the Feltner Court redraft § 504(c) to authorize juries to set statutory damages which Congress had authorized only judges to impose?

3. Should instructions to juries charged with awarding statutory damages against noncommercial copyright infringers quote the statutory maximum, clearly intended for commercial infringers?

4. Does the Seventh Amendment require a judge who remits an excessive statutory damage award to offer the plaintiff a new trial as an alternative to accepting the remitted award?

The Court did not bite on any of them, condemning Tenenbaum, as his petition states, to “an endless cycle of retrials at the behest of corporate plaintiffs whose tactic has been to overwhelm and bankrupt noncommercial individual defendants with the asymmetric burden of federal litigation.”  This is because the plaintiff record labels do not have to accept a reduction in damages and can have a new trial on damages as a result.

Tenenbaum is not exactly the poster child for sympathy in this case.  The District Court found evidence that he was repeatedly warned about his activities by the labels and relatives and chose to pursue sharing.  The “everybody’s doing it” defense did not work at trial or on appeal.  The petition to the Supreme Court tried to work an argument that there should be some relationship between actual damages and statutory damages for shaping an award.  It also argued that there should be some consideration for a non-commercial infringer.

I agree with Tenenbaum’s argument to the extent that the record labels will not reduce damages willingly.  That’s a precedent they will never set.  They may have abandoned the practice of suing file sharers, but that doesn’t mean they can’t resume that strategy for whatever reasons.  It’s possible that the Court expects one side to blink on settlement or acceptance of the outcome.  It’s also possible that the District Court could deny a future motion for remitter and set up an appeal that squarely addresses the constitutional issue of excessive damages.  I wouldn’t bet that the Court would take up the issue even in that scenario.

News coverage of the denial of certiorari is in Bloomberg and CNET.  [MG] 

Executive Board Supports Intensified Advocacy on Behalf of Member Library Buyers

That would be ALA's Executive Board after one of its board meetings, not, well, you know. At issue, persuading the general trade industry to permit public libraries to loan eBooks. See ALA President Molly Raphael's report at ALA Board Backs Intensified Ebook Advocacy (April 27, 2012).

In itself, a library association's executive board statement doesn't mean much, not if you restrict the horizon of your experience to AALL. In the case of ALA, this association already has a track record of advocating for its institutional members with respect to eBooks. It has produced some results and follow-up promises by both ALA and some publishers, some ALA criticism of recent eBook publisher actions and ALA blog communications available for all to read in a fairly timely manner. Hence the use of the word "intensified" in the title of Raphael's blog post does not have a hollow ring to it. As for actions since the April 27, 2012 post about that association's executive board pledge to intensify its advocacy efforts on behalf of its institutional members, see Raphael's follow-up post dated May 18, 2012, Ebooks: Promising New Conversations.

Has ALA taken a "don't like what we are doing publishing industry, sue us" position? Or does ALA have better legal advice than what AALL members saw last year? Can ALA execute this advocacy campaign only because its member libraries are open to the public? Well, there are plenty of law libraries that are required to be open to the public including many public academy law libraries as well as many, if not most, state and county government funded law libraries. [JH]

Supreme Court Action Today: Statutory Construction of Immigration Law, Court Interpreters, and Social Security Benefits

The Supreme Court issued three opinions today, all of them dealing with statutory construction issues in one form or another.  The first of these is Holder v. Martinez Gutierrez (10-1542).  Immigration laws allow the Attorney General to cancel the removal of an alien when he or she has held lawful permanent status (LPR) for five years and has lived in the United States for at least seven continuous years after a lawful admission.  The question is whether the LPR status and residency of parents should be imputed to children.  It is possible that a parent might meet that requirement while a child does not.  The issue came to the Court in two consolidated cases.

Respondent Martinez Gutierrez was not given LPR status until 2003 though his father attained that status in 1991.  He had illegally entered the United States with his family in 1989.  He was apprehended in 2005 for smuggling undocumented aliens across the border.  He sought cancellation of his removal.  The Immigration Law Judge agreed that he qualified for cancellation due to his father’s status but the Board of Immigration Appeals (BIA) reversed.  The Ninth Circuit granted a petition for review due to its own precedent imputing status to the parent in these cases.

Respondent Damien Sawyers attained LPR status in 1995 and was convicted of a drug offense in 2002.  He was a few months shy of seven continuous years of residence as required under the statute.  He appealed to the Ninth Circuit seeking status under his mother’s residency and the Court granted his petition for review.  The BIA had disagreed with the Ninth Circuit precedent and expressly refused to follow it outside of the Ninth Circuit.

The Supreme Court reversed, holding that the BIA’s rejection of imputation to the parent is a permissible interpretation of the statute.  The Court said that the BIA’s interpretation is reasonable even though it is not the only or best interpretation, citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).  The BIA’s interpretation is consistent with the language of the statute, and it is not contradicted by the context of the statute or its legislative history.  Justice Kagan delivered the opinion for a unanimous Court.

The second case is Taniguchi v. Kan Pacific Saipan, Ltd. (10-1472).  The question it addressed concerned the award of court costs to the prevailing party for translation of documents from Japanese to English under the Court Interpreters Act.  The Ninth Circuit held that Act covered the translation of documents.  The Supreme Court held that it did not.  The ordinary meaning of the word “interpreter” is someone who translates orally.  As such, it does not include the cost of document translation.  The Court examined the history of the statute and various dictionary definitions to reach its conclusion.  Justice Alito delivered the opinion of the Court joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Kagan.  Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.  She would allow the costs under a broader meaning of the term “interpret” and cites a large body of federal cases that are consistent with that position.

The final case is Astrue v. Capato (11-159).  The case involves whether twins conceived via in vitro fertilization 18 months after their father’s death are eligible for Social Security survivor benefits.  The Social Security Administration (SSA) denied the application.  The District Court affirmed on the basis that the father was a domicile of Florida and that state’s law did not allow for inheritance through intestate succession for posthumously conceived children.  The Third Circuit reversed holding that the state law did not apply in qualifying for survivor’s benefits.

The Supreme Court reversed, holding that the SSA’s interpretation of the statute was reasonable, if not the best.  Citing Chevron again the Court said the interpretation was entitled to deference.  The Court examines the context and amendment history of the applicable provisions of the Social Security Act to conclude that the intestacy law of the state does apply in determining eligibility.  Justice Ginsburg delivered the opinion for a unanimous Court.  [MG]

Surreptitiously monitor text messages, GPS locations, calls, conversations ... and what's under an employees's skirt: There's a app for that!

Actually three or more but Kashmir Hill, former ATL blogger, identifies three in her The Not-So Private Parts blog post on Forbes:

• Cam-u-flage, “the best spy camera app to take pictures without anyone noticing.”
• Night Recorder, a voice activiated recorder
• Mobile Spy, an app that will “silently monitor your child or employee’s text messages, GPS locations, calls, photos and more.”

App download links omitted because the apps creep me out. But if you want to get your creepster on, Hill provided the links in her article.

Can you identify which app is featured in an employment lawsuit filed by three employees against their employer who alledgely encouraged them to wear “skirts and high heels.” See The iPhone App Your Boss May Be Using To Take Upskirt Photos Of You. Note well, the employer's counterclaim.

"In what may be the most tone-deaf counterclaim of all time, he accused the three of violating the Computer Fraud and Abuse Act by “delet[ing] data from his iDevices without authorization." The judge dismissed that claim, Hill reports, because the employer failed to identify exactly which files were deleted, speculating "Perhaps because it would have been incriminating?"

"The unwilling film stars are claiming damages of $75,000 each." All things considered, I would have jacked up the damage claims at least by one order of magnitude, assuming, of course, that the allegations are proven in court despite the distruction of evidence (CYA, CYA, CYA, Joe). Did I mention that the employer is an attorney!  [JH]
 

Browsing On A Sunday: Changes to Google Search, Teaching Corporate Practice, e-Books, and Yet Another Social Network

Google made changes to its search engine last week.  One of these is Knowledge Graph.  Results about things, places, or people will now include a side bar with related information for the searched term.  This content can include key dates, images, writings, and other facts.  Search, for example, H.L.A. Hart and immediately to the rights of the results is a picture of Hart; a snippet from the Wikipedia page on Hart; dates for birth and death; links to books; and related searches.

At least one article in PCWorld suggests that Google is developing the Knowledge Graph as the basis of a competitor to Apple’s Siri product.  It makes sense that Google would leverage its expertise in search for this type of service if, as the article says, Google could get the voice part right.  It’s been a while now since Google added voice search to its interface.  It should have a significant amount of experience by now with search by voice to make a credible leap to natural language queries. 

More changes to Google search are described in a post on the Inside Search blog.  MSNBC has a short piece on 5 ways to use Knowledge Graph.

The Washington Post is reporting about the law schools at Catholic University and Georgetown offering classes on in-house lawyering.  The courses emphasis corporate law practice and bring in experienced corporate counsel along with business leaders as lecturers.  American University and George Washington University are in the planning stages for similar courses.  The initiative is to make graduates more attractive to small and mid-size businesses who would not have a legal department. 

Hachette is starting a pilot program to make e-books available to libraries, according to paidContent.  Hachette stopped selling e-books to libraries in 2010.  There are no details as to the nature of the program or the technology behind it, at least not yet.  Hachette is one of the publishers that settled with the Department of Justice in the price fixing case filed against Apple and five other publishers.

If anyone is looking for yet another site that lets users share web content, then take a look at Microsoft’s So.cl site.  It’s pronounced “social.”  Get it?  So.cl has left the beta stage and is now available to the general public.  The site helps a subscriber assemble links and other content into a “compelling visual montage.”  The site FAQ suggests that it is not a competitor to other social sites.  It is mostly a place to share search content with others.  The beta phase took place at several universities where students naturally search the same content.  Login requires a Facebook or Windows Live account.

The idea of analyzing search for similar content sounds a little like what Google is doing.  Sharing is just another way to get people to participate.  Is Microsoft working on a competitor to Siri as well?  [MG]

2012 Harper Lee Prize for Legal Fiction: Voting for one of three finalists closes on July 8

The finalists in the ABAJ-Alabama Law School's second annual Harper Lee Prize are

• The Fifth Witness by Michael Connelly
• Murder One by Robert Dugoni
• Breach of Trust by David Ellis

The reader poll as well as brief descriptions of each novel are provided in Molly McDonough's ABAJ News post, Help Pick the Legal Novel of the Year. [JH]