Law Librarian Blog

"It must be a bit awkward in the Arkansas faculty lounge this summer."

So wrote Paul Caron on TaxProf Blog about Robert Steinbuch's On the Leiter Side: Developing a Universal Assessment Tool for Measuring Scholarly Output by Law Professors and Ranking Law Schools, 45 Loy. L.A. L. Rev. 87 (2011). From the abstract:

This Article explicates a protocol (the “Protocol”) for measuring all of the scholarly output of any law school faculty member. Building on the Leiter and Roger Williams methods, the expanded Protocol accounts for a wider breadth of faculty publications and includes weighting factors based on law-journal rankings. Finally, this Article concludes by applying the Protocol to its Author and his colleagues. In sum, the Protocol that this Article develops and applies will provide a significantly more objective set of data with which to evaluate the scholarly performance of legal academics.

(Emphasis added.)

See why it might be a wee bit awkward in the Arkansas faculty lounge this summer (and fall) at Steinbuch: A New Method of Ranking Law Faculty and Law Schools assuming, of course, anyone takes Stenbuch's methodology seriously. Personally, I'll thinking he should create an app applying the metric and sell it as a $0.99 game. [JH]

National Treasure: Mystery of the Lost Library of Congress

History tells us that Thomas Jefferson's private library was acquired in 1815 to replace the Library of Congress's collection destroyed by fire on August 24, 1814 during the War of 1812. But was the entire first collection of the Library of Congress consumed in the fires?

Custodia Legis reports that "in the immediate aftermath of the fire, there were conflicting reports about the extent of the damage that was inflicted on the original collection." Some historical records indicate that many of the most valuable and scarce books in the Library’s original collection were removed before the British occupied Washington, D.C. and that only duplicate copies of them were destroyed. But, if that is the case, no one knows what became of the books.

About the lost collection, the Library of Congress post concludes "[o]f course it is generally assumed to have been destroyed. But the story bears repeating every century or so." For details, see The Mysterious Disappearance of the First Library of Congress.

Sounds like a perfect story for the National Treasure franchise to me. Imagine the conspiracy plot line. Jefferson is cash poor and sells his books to Congress because he needs money, The Congressional purchase was controversal. Why? What's the backstory? See National Treasure 3 (or is it 4): The Lost Library of Congress Found. [JH]
 

Friday Fun: The Future of Libraries

"A non-serious look at the future of libraries. Essentially the premise is, if you described what a library does without using the word 'library', people would be blown away by how good it was." [JH]

Boston Firm Advertises Full Time Associate Position At $10,000 Compensation

So it’s come to this.  There is a story in the Boston Business Journal of a job posting on the Boston College career site for an associate position with a salary of $10,000.  The story notes that this figure is below minimum wage.  It’s not a fixed salary.  The ad states the compensation is based on a percentage of worked billed and collected with the expectation it will be $10,000 in the first year.  The Gilbert & O’Bryan LLP firm said it received 32 applications.  The trade-off for the low pay is the valuable experience gained by the successful applicant.

Boston College defends the ad as serious whether it’s attractive or not.  The position does offer benefits such as malpractice insurance, health insurance, employer paid clothing allowance, and a MBTA pass (the Boston area mass transit system).  This is better than nothing for some graduates, I guess, but really.  Will this be the beginning of a trend?  [MG]

Bankruptcy Trumps NDAs in Vendor Contracts: Dewey owes about $4.3 million to Thomson Reuters, Lexis and Wolters Kluwers

According to Dewey & LeBouef's bankruptcy petition the firm owes approximately $351 million to more than 3,000 creditors. For legal research, the WSJ's Joe Palazzolo reports that Dewey owes Thomson Reuters more than $2.3 million, Lexis about $1.4 million and Wolters Kluwers $653,059, all unsecuded debt of course. 3 Geekster Greg Lambert tries to mine a little competitive intelligence data based on Dewey's legal resources debt at Westlaw, Lexis, CCH Feels the Pain of a Dewey Bankruptcy.

Endnote. In Dewey's Stack of Bills, Palazzolo also reports that the firm owns $673,310 for dining services. [JH]

No Business Model Required: Following the latest "Google" example for very expensive online legal search?

The problem with very expensive legal search vendors going Lady Gaga over Google because "our customers wanted it" is that Goggle and its competitors like Bing aren't static. They keep adding new feature that WEXIS "customers" also may want. Take for example Google's Knowledge Graph and Bing's Snaphot displays that now accompany search output in the white space to the right of the list of results.

David Pogue's Going Beyond Search, Into Fetch reviews those new features. He notes that Google's Knowledge Graph will display info snips with links from the Graph's database that contains summaries of 500 million entries. Today's WEXIS SEs are supposed to be smart enough to do that already and yesterday's SEs did "plus" research results in sidebar displays but that doesn't mean users won't want this sort of display feature "because Google has it."

However, Pogue also notes that Microsoft's Snapshot display tends to focus on displaying opportunities to spend money. Lexis Advance already provides a sneak peak at out-of-plan output but how did the West Search folks in the Land of 10,000 Invoices not come up with the idea of using search to sell ProView titles since ProView is used to increase WLN adoption rates.

Think of the "Buy Now" ProView eBook sales opportunities in a right sidebar display of WLN search results. Heck, I'm thinking that since a user is already logged into WLN under the OnePassYourAss account scheme, what could be easier for potentially enhancing the recurring revenue stream. No business modeling of this idea is required.

Time to launch the video TR Legal marketing puppet masters may close their powerpoint presentation that explains what's the next next for WestlawNext to West Search geeks. There will be dancing in the conference room. [JH]

Apple Files Its Answer In The e-Book Antitrust Case

Apple has answered the complaint filed by the Department of Justice in the e-book pricing litigation case now that the Court has denied the motion to dismiss.  I can characterize Apple’s answer in several ways, if characterize is the operative word here.  One is that Apple would have the Court view the big picture, that Amazon ruled the e-book world before Apple entered the e-book market to introduce competition rather than stifle it.  Pricing is merely one element in a competitive market and Apple suggests higher prices only affected a handful of titles (Introduction).  As an example of the fuller market, Apple points to the interactivity and color capabilities the iPad introduced to the electronic publishing market.  That may be true for magazines, but I’m not aware that offerings from the defendant publishers took advantage of these capabilities.  In some sense Apple wants to change the subject.  Then again, all defendants try to do that when they can. 

Another is that all Apple wanted from the publishers was pricing guarantees that made offerings through the iBookstore competitive with any other distributor.  It didn’t matter to Apple whether the publishers used the agency model or the wholesale model.  If I read what Apple is saying correctly, if Amazon sold an e-book for $9.99, then that is the price Apple should get to sell the book, less its 30% cut.  If that’s the case, Apple was essentially asking the publishers to subsidize the difference between Amazon’s prices and the wholesale price for a title.  That appears to guarantee that publishers would lose money on almost every e-book sale through the iBookstore if Amazon was paying the wholesale price and selling to consumers for less than that.  Apple claims this would hardly induce the publishers to demand Amazon go to an agency model (Response paragraph 66).

Apple says that its meetings with individual publishers neither directed their strategy nor had Apple act as a conduit for the publishers to work in concert with each other.  Apple was only concerned with its own “legitimate business interests” in positioning the company’s entrance in the e-book market (Response paragraph 69).  Any quoted statements from Steve Jobs reflect Apple’s interests in its own sales and not any attempt to control pricing in the e-book market.  Essentially, Apple didn’t care what the ultimate price of e-books would be as long as it could sell them competitively.  Otherwise Apple might not have entered the market at all.

Apple is effectively severing its interests from that of the publishers in this case.  I take it from the whole of the answer that Apple’s view is that the company negotiated a hard bargain with the publishers in good faith.   If the publishers acted illegally with each other, Apple had no part in or motivated those actions. 

I don’t know what evidence exists beyond what is contained in the allegations.  Those were upheld to state a claim that Apple and the defendant publishers violated the antitrust laws.  I have to believe that the Justice Department has more material from its investigation that supports the complaint, otherwise why file it?  I also have to believe that given Apple’s stance, its interests in the case outcome may not coincide with those of the publishers.  How they characterize their meetings with Apple representatives may not agree completely with Apple’s version of reality.  The Justice Department might or might not be counting on that.  We’ll see once discovery commences.  There should be some very interesting depositions about to take place.  [MG]

Advocating for Fair and Reasonable Library Access to Commercially Produced Digital Information: There's an app a library association which does that

Last week, ALA published “E-content: The Digital Dialogue,” as a special supplement to the May/June 2012 issue of American Libraries. Quoting from the May 23, 2012 press release, New ALA report explores challenges of equitable access to digital content:

In the report, titled “E-content: The Digital Dialogue,” authors explore an unprecedented and splintered landscape in which several major publishers refuse to sell e-books to libraries; proprietary platforms fragment our cultural record; and reader privacy is endangered.

“Broad information access is essential for communities to compete in the global knowledge economy,” said ALA President Molly Raphael. “As more and more content is delivered digitally, we simply cannot afford to lock down books and lock out readers. This timely supplement addresses the need to protect fair and reasonable library access to digital information.”

In his "A Look Down the Digital Road," editional published in "E-content: The Digital Dialogue," the director of ALA's Office for Information Technology Policy and editor of the supplement, Alan S. Inouye, provides a summary of the supplement's content:

We’ve gone mad about ebooks—both in terms of great enthusiasm and considerable consternation. We see the rapid rise in ebook demand from our patrons and know the promise that this still-emerging technology brings. At the same time, our relationships with a number of ebook publishers and distributors—and especially the largest ones—are in flux.

The American Library Association has heard member concerns. (Boy, have we!) In response, the Association’s Digital Content and Libraries Working Group has been busy the past several months. In the first article of this supplement, Working Group Cochairs Sari Feldman and Robert Wolven summarize recent activities and suggest directions for the future.

The next two articles delve into the constraints of ebook licensing regimes. Robert Maier and Carrie Russell recount a bit of the evolution (going back to the 2011 incident involving HarperCollins’ 26-loan limit) and discuss various licensing models. Instead of a focus on contract terms per se, JamesLaRue uses the stakeholder lens—whether reader, writer, bookseller, publisher, or librarian—to explain the real-world implications of such ebook licensing terms.

If the publisher-library relationship is indeed challenged, then the first step for improvement is communication. In her article, Lisa Long Hickman urges both librarians and publishers to take initiative and engage each other, as there are considerable mutual gains to be had.

Deborah Caldwell-Stone explores the difficult challenges ebooks and other forms of digital content pose to privacy and intellectual freedom. She provides a cautionary note that access at any cost or under any terms may well not be desirable access. We are librarians; we promote and protect important information values for our communities that must not be jettisoned for contract expediency.

This supplement concludes with Peter Brantley’s explanation of how today’s proprietary platforms and systems impede universal information access. Brantley argues that we are approaching a widespread disconnect in which we will not be able to read, experience, and share the same stories. By contrast, open-source tools are increasingly available so that we can all tell our own stories—and he recommends that libraries should aggressively enable this personal storytelling.

(Emphasis added.)

Inouye's final paragraph in "A Look Down the Digital Road" makes it clear that ALA consumer advocacy efforts are not just limited to eBooks.

While the recent ALA emphasis on ebooks from the “Big Six”—the largest trade publishers—is necessary, it is not sufficient. Ebooks represent only one component of the larger digital revolution facing libraries, and today’s licensing regimes may not work well for future ebooks with highly dynamic features. In the months ahead, you will be hearing more from ALA on ebooks and much more on the wider world of digital content. Some of the work in this supplement reflects this broader thinking about both the here and now, and what is to come down the digital road.

ALA may not be the best damn library association on the planet. No doubt some members have justifiable criticism of it. But when it comes to consumer advocacy for its institutional buyers and their patrons, AALL doesn't even come close to measuring up to ALA. Will we hear the chatter of more zombie library association ideas about how AALL is restrained by the bondage of antitrustism in Boston?

I'm hoping that The CRIV Blog's sidebar countdown, image right, is hinting that the answer will be "no." [JH]

Opening: Head of Electronic Services, George Washington Univ. Law Library

Please note the following reposted position announcement for the Head of Electronic Services position at the George Washington University Law Library:
 
Head of Electronic Services: The George Washington University Law School, Jacob Burns Law Library seeks a qualified librarian to lead and manage its Electronic Services Department. Basic qualifications for this position are an ALA-accredited MLS (or equivalent), an ABA-accredited JD (or equivalent), and a minimum of one year of professional library experience.
 
Review of applications will begin April 15, 2012, and continue until the position is filled. Additional information about the position, including details on the application procedure is available on the Law Library’s Web site, http://www.law.gwu.edu/Library/Pages/EmploymentOpp.aspx.  Only complete applications will be considered.
 
The George Washington University is an Equal Opportunity/Affirmative Action employer.

Supreme Court Action Today: Habeas Corpus and Credit-Bidding Under the Bankruptcy Code

The Supreme Court issued two opinions this morning.  The first is Coleman v. Johnson (11-1053).  Johnson was convicted in Pennsylvania as an accomplice and a co-conspirator in a murder.  His conviction was affirmed in the Pennsylvania courts and he sought relief via a habeas corpus petition in federal court.  The District Court denied relief, but was overturned by the Third Circuit Court of Appeals on the grounds that the evidence was insufficient in supporting the conviction.  The issue in the case concerns the deference that a reviewing federal court should give a state court decision in habeas petition cases.  

The Court stated the standard is that a reviewing court may set aside a jury’s verdict only if no rational trier of fact could have agreed with the jury, and on habeas review a federal court may not overturn a state court decision simply because it disagrees with it.  The Court then recounted the evidence in the case, including testimony that Johnson was present earlier in the day when the perpetrator and the victim had a fight over money and the perpetrator threatened to kill the victim; that Johnson later that evening helped the perpetrator walk the victim into an alley; that the perpetrator was wearing a coat with a bulge; that the victim was shot with a shotgun, and that the gun was found abandoned in the alley. 

The Court of Appeals reasoned that there was a common intent to threaten the victim, but to infer intent to kill was mere speculation.  The Court said the Court of Appeals committed error in looking to Pennsylvania law to determine the difference between inference and speculation.  Federal law is the appropriate source and only requires juries to draw reasonable inferences from basic facts to ultimate facts.  The Court reviewed the evidence a bit further and concluded that there was enough for the jury to draw its conclusions of guilt and defeat the due process challenge.  The decision of the Third Circuit is reversed in a Per Curiam opinion. 

The second case is RadLAX Gateway Hotel, LLC v. Amalgamted Bank (11-166).  The case involves the interpretation of the Bankruptcy Code that covers cramdown reorganization plans where the lien holder is not permitted to credit-bid in the ensuing auction of the distressed asset.  RadLAX purchased a hotel at the Los Angeles airport and began to build a parking garage.  The project ran out of money and went into bankruptcy.  The debtor proposed a sale of the property where Amalgamated would be one of the bidders but required to bid with cash rather than with their debt interest in the property as an offset.  The Bankruptcy Court denied the plan and was affirmed by the Seventh Circuit.  The Supreme Court affirmed both in that the debtors may not get court approval for a plan that sells the asset free and clear of the Bank’s lien but does not permit the Bank to credit-bid at the sale. 

The relevant statute of the Bankruptcy Code, 11 U.S.C. §1129(b)(2)(A), offers three options that the debtor plan must meet.  The creditor may retain its lien and receive deferred cash payments;  the debtors may sell the property free and clear of the lien provided the lien holder can credit bid at the sale and provide the creditor with a lien on the sale proceeds; or the plan may provide the secured creditor with the “indubitable equivalent” of the claim.  The debtors argued that their proposed sale would fall under the third option by giving the Bank the proceeds of the sale. 

The Court stated that under the canons of statutory construction, the specific governs the general.  The statutory text of the third option is more general than the text of the second option.  Under the rule, it would make parts of the text of the second option superfluous.  As such, it will not apply to a matter specifically dealt with in the second option.  The Court reviews arguments to the contrary and rejects them.  Justice Scalia delivered the opinion for the Court, joined by all other members except Justice Kennedy who did not participate in the case.  [MG]

Supporting FRPAA (Supporting AALL's Efforts to Support FRPAA)

Hat tip to the AALL Washington Blawg for reminding this aging and decrepit law librarian to support the Federal Research Public Access Act of 2012 (FRPAA) (S. 2096 and H.R. 4004) by signing the White House-hosted online petition: "We petition the Obama Administration to 'Require free access over the Internet to scientific journal articles arising from taxpayer-funded research.'" From Take Action: Sign the White House Petition on Open Access to Research!:

Members of the public have a right to access research funded by their taxpayer dollars. We urge you to sign the petition today.

This is a critical opportunity for AALL members to demonstrate that we believe open access to federally funded research should be a high priority for the administration. Demonstrating public support will also strengthen FRPAA’s chances in Congress. With your support, we can influence the White House to act.

(Emphasis in the original.)

Assuming you support this legislative initiative, have you signed the petition? I did over the holiday weekend. Launched in mid-May, the petition drive needs 25,000 signatures by June 19th. The last time I checked it was about 6,000 short of reaching this goal.

From the above linked AALL Washington Blawg post:

Once you have signed the petition, you can also encourage your colleagues, friends and family to do the same.

And once you sign it, you can view the list of other like-minded supporters. An example of the information you will see is provided in the above screen capture. It is not a lot of information but it is enough to connect the dots. By that I mean, you can get some idea about how many AALL official types have signed the petition. [JH] 

Memorial Day 2012: “They hover as a cloud of witnesses above this Nation.”

The reality is nations go to war to resolve political conflicts, to impose on an opponent its own will. It is the final and hopefully least desirable action taken in international affairs. This is a world defined as the Will to Power and Presentation.

Presentation is the practice of showing by words and deeds information, intention, ultimately expectation, to someone else. It can shape the future in ways not intended. It can lead to armed conflict when the strategic objective might have been something short of going to war.  There are justifiable and unjustifiable reasons to go to war. That depends on personal civilian assessments of our government's Presentation objectives, stated and implied.

But there is one known consequence when a nation does go to war –- the ultimate sacrifice made by the men and women who serve in our military which we remember today. The negation of a future due to death in combat is something family and friends live with every day.

The below photo was taken at Arlington National Cemetery. The caption reads “"Fiancé killed in Iraq in February, 2007" and includes the following quote.

They hover as a cloud of witnesses above this Nation. -- Henry Ward Beecher

[JH]

War as Will and Presentation

"War ... is an act of violence intended to compel our opponent to fulfill our will." Carl von Clausewitz, On War (1874). Sounds a simple enough statement for a "plain language" understanding but it is one of the most densely packed modern definitions of war one will ever read.

The notion of "will" was part of the cultural vocabulary in 19th century German when Clausewitz wrote On War. In Schopenhauer's The World as Will and Presentation (1818, 1848), "striving," "wanting," "urging” … or Will as being a non-rational instinctual urge was at the foundation of our personal drive to act. In a world understood as will and presentation, the Will to Live was central to the human experience as individuals. But if let loose to run amok the Will to Live would produce a world of strife. However, Schopenhauer's concept contradicts risking one's life in combat. So enter the concept of the "will to power” in Germany’s cultural vocabulary.

"A living thing seeks above all to DISCHARGE its strength -- life itself is a WILL TO POWER; self-preservation is only one of the indirect and most frequent RESULTS thereof.” -- Nietzsche, Beyond Good and Evil (1885).

As a corrective to Schopenhauer's Will to Live, the Will to Power certainly explains why individuals are willing to place themselves in harm's way where they may sacrifice their lives in combat. However, the Will to Power is not a justification for war. For Nietzsche, seeking to discharge one's strength can create something out of nothing or creatively destruct something into nothing is beyond good and evil.

While I sincerely doubt Clausewitz knew of, let alone read, Nietzsche after the publication of his classic treatise he did not have to. With "Will"  in the cultural air, changing "one’s will" to "our will" by way of the Prussian military concept of duty was a given;  it also was a ethical ideal shared generally in German culture by way of a diluted understanding of Kant's "moral imperative."

What is critically important to remember is that the 19th century was the age of the unification of Germany under the leadership of Otto von Bismarck. He provoked a series of short victorious wars to create a powerful German Empire under Prussian leadership, one sufficiently powerful to dominate Austria and France in central European affairs. 

Today, one might define war as the resolution of political disputes by armed conflict. That holds the same meaning as Clausewitz’s in a work that is required reading in just about every military academy where future military leaders are educated. MacArthur's 1962 Duty, Honor, Country speech at West Point, for example, resonates in the Clausewitzian-inspired 19th century rhetoric on war. 

Historical stats on warfare clearly indicate that the aggressor nation is much more likely to win a war because it is better prepared than its opponent. For this reason, I prefer the below part of General Schwartkopf's 1991 West Point speech to the Corp of Cadets after Desert Storm over MacArthur's speech. And do so in no small part because tomorrow is a day of remembrance of the men and women who have made the ultimate sacrifice in the service of their country and the families would live with that sacrifice every day. [JH]