Law Librarian Blog

eBook Publishing Made Easy

Rich McCue, a systems administrator at the University of Victoria, has created a tutorial on how to create an eBook using Google Docs, Sigil and Calibre. For the text version, see eBook Publishing Made Easy: Google Docs + Sigil + Calibre. The accompanying video is provided below. [JH]

The Most-Cited Law Review Articles of All Time

Fred Shapiro with the assistance of Michelle Pearse has added a third installment to his citation analysis of the most-cited law review articles. The first two studies were published at 73 Calif. L. Rev. 1540 (1985) and 71 Chi.-Kent L. Rev. 751 (1996). The latest study, The Most-Cited Law Review Articles of All Time, is published in the June 2012 issue of the Michigan Law Review.

From the abstract:

New research tools from the HeinOnline and Web of Science databases now allow lists to be compiled that are more thorough and more accurate than anything previously possible. Tables printed here present the 100 most-cited legal articles of all time, the 100 most-cited articles of the last twenty years, and some additional rankings. Characteristics of the top-ranked publications, authors, and law schools are analyzed as are trends in schools of legal thought. Data from the all-time rankings shed light on contributions to legal scholarship made over a long historical span; the recent-article rankings speak more to the impact of scholarship produced in the current era. The authors discuss alternative tools and metrics for measuring the impact of legal scholarship, running selected articles from the rankings through these tools to serve as points of illustration. The authors then contemplate how these alternative tools and metrics intersect with traditional citation studies and how they might impact legal scholarship in the future.

[JH]

Friday Fun: When man's order clashes with nature's

The Librarian was created for the Steinerei 2011. The topic was Chaos and the video was awarded first place by the jury. [JH]

Barnes & Noble Weighs In With the Court on the e-Book Settlement

Barnes & Noble has filed its comments to the Court on the proposed final judgment with the settling publishers.  B&N, as Mr. Horse from the old Ren and Stimpy show would say, doesn’t like it.  No sir, I don’t like it, not one bit.  One would almost think that B&N’s was one of the defendants (which it is not) by the tone of the document.

The document raises the specter of Amazon’s pricing policies pre-agency contract model and how the adoption of the agency model has benefited other retailers in that market.  Specifically, Amazon’s market share of e-books has gone from 90% to 60% since the publishers set prices.  That’s a good thing from B&N’s perspective as it competes with Amazon.  Then there is stuff like this:

The benefits of agency to American consumers are easily identifiable.  Competition is now vigorous among e-book distributors.  Amazon’s share of e-book sales has decreased to approximately 60 percent, while Barnes & Noble, Apple, independent booksellers, and others have emerged to provide consumers more choice in where and how they shop for e-books.

I’ll just make a side note that the antitrust laws are designed to protect consumers and not to protect competitors from each other.  That usually translates into something more than the benefits described by B&N.  Pricing on e-books would be one factor that seems to escape their notice.  That does show up later in the document where a chart shows a decline in the average price of e-books over time, though it does not indicate how that price information is determined.  Popular conception is that prices paid by consumers went up and were similar to physical books after agency pricing went into affect.  I think in this case I would rather have the thousand words than the picture if the words filled in the detail.

As this is not a defendant’s filing, a major focus is that the remedies imposed on the publishers by the Justice Department in the Settlement go well beyond what is requested in the complaint.   The Department, for example, seeks to prohibit Most Favored Nation Clauses (MFNs) on every level of commerce by the publishers though the complaint concerns itself with retail MFNs.  Publishers must also file their contracts with the Department on a quarterly basis for two years.  This transforms the Department into an industry regulator for future contracts.  B&N is the one who gets punished in this scenario according to the filing.

There’s a lot at stake here, B&N says:

The proposed settlement, particularly its overreaching regulatory provisions, warrants an exacting review because of its potential impact on the national economy and culture, including the future of copyrighted expression and bookselling in general, not only electronic books (“e-books”).  Because of the far-reaching implications of the proposed settlement, many millions of Americans, as well as all levels of the distribution chain for books (from authors to publishers to distributors, and especially brick-and mortar stores), stand to be affected by this case’s resolution.

I don’t know how to respond to this except that in the parallel music industry, I remember visiting by local record store (such an archaic name).  They were first threatened by big box stores that had a comparable or better selection at lower prices.  Consumers flocked to them.  Local record stores and music labels were next pressured by digital downloads.  The stores felt the heat because they seemed no longer necessary and the labels similarly so because they saw their product, songs, devalued to $0.99 or less.  Does that sound familiar? 

Somehow music is still created, manufactured, and sold.  Maybe not the way the labels would like, but business is transacted nonetheless.  iTunes is popularly considered the largest owner of the online music market with a share of well over 60%.  That I have nostalgia for the record store experience does not mean that I miss it.  I think the same will happen for bookstores.  Many of the documents in this case stress how the agency model brings less money to the publishers.  That, to me, simply shows how desperate the publishers are to preserve the way they do business.  Somehow books will be written, manufactured, and distributed if digital distribution becomes the norm. 

As a last note, I’ll mention that the American Booksellers Association sent a letter to the Justice Department on October 22, 2009 asking the Department to investigate Amazon’s alleged predatory pricing practices.  It seems the Association was concerned that the price war that broke out between Wal-Mart, Amazon, and Target was having a bad impact on local booksellers.  I don’t remember that the Department acted in any significant way on the request, at least in regard to the Association’s concerns.  More commentary is at paidContent with links to the filing.  [MG]

Was Harvard Law School the First to Ban Student Use of Personal Portable Computers?

Two HLS students were not allowed to use their 25-pound Osborne 1 "portables" to take their final exams in 1982. See Evan Koblentz's Law Technology News story, Harvard Law School Once Banned Portable Computers. Is this the first recorded ban on the use of portable computers by a law school? [JH]

Confessions of a Librarian Who Doesn't Didn't Read Books

I don't read books. (OK, a bit of an over-generalization.) I haven't read a book in years. (Ditto.) I guess the general public assumes librarians must be book-loving readers and would find this confession somewhat shocking. But after laboring in the infomation factory all day, the last thing I really want to do is read.

With the advent of enhanced law eBooks, I felt obligated to test some out via eReader apps on the desktop but also via the eReader gizmos themselves. This meant using my iPad for something more than playing Tiger Woods Golf and using the Blog Widow's Kindle Fire for the first time. (Is it an admission against interest to mention that the Kindle Fire was the Blog Widow's birthday present from me in part because I knew I would have to use one to test enhanced law eBooks?) Testing over. I'll leave it to the much younger and much, much brighter law librarians in the blogosphere to provide a critical assessment of current enhanced law eBook offerings, their desktop eReading apps, and their eReader gizmos based on their user experience. However, one unintended consequence of my testing is that I've started reading books again, eBooks that is.

So what the heck is going on now? A half dozen or so years ago, I tried to jump start the mid-life crisis we boomer gen males are supposed to experience by asking the Blog Widow if I could buy a used Corvette that was for sale at the local gas station. She said "yes" in a very "no-ing" way. Got the message and what the heck it was just a C4, meaning it wasn't even close to one of the Corvette body types in the Blog Widow's "in your deams" fantasies of mine. I'm thinking this whole eBook reading thing must be my mid-life crisis. Ain't getting any younger. The old grey matter certainly isn't working like it used to.

One would think that the last thing a pair of old and tired eyes would want to do is read something off a screen display after hours of staring at a monitor in the information factory. Not mine. Thank you, Jerome Rubin. Serously, I mean it. LA Times obit at Jerome Rubin dies at 86; futurist who foresaw e-books. Quoting, OK, OK, myself, from Jerome Rubin, 1925 - 2012: Passing of a Pioneering Giant in Electronic Publishing History:

Rubin was instrumental in bringing to the commercial marketplace both full-text online legal research [for Mead Data Central aka LexisNexis] and eReader display for eBooks and other electronic content [co-founder of E Ink]. He was one of the giants in the electronic publishing industry. We take full-text legal searching for granted now and, by the end of this decade, we will be taking enhanced Law eBooks for granted. His legacy is the world of information options and opportunities we live in today.

Endnote. I seriously doubt anyone gives a hoot about what I am reading. But if you do, I am currently reading Philip Delves Broughton's "The Art of the Sale: Learning from the Masters About the Business of Life." Recommended, at least until Keith Hawk & Michael Boland's "Get-Real Selling: Your Personal Coach for REAL Sales Excellence" is eBook-ed; soon please, I'm running out of my pBook inventory to hand out to new account reps with my "nice to meet you, we'll get down to business after you read this book and there will be a quiz first" mantra. David Graeber's "Debt: The First 5,000 Years" is being held in reserve for reading during some AALL sessions in Boston. You know, to keep from falling asleep.  [JH]

A Former Dean Writes on the New Law School Reality

Phil Closius, the former dean at the University of Baltimore Law School, penned an editorial piece in the Baltimore Sun titled American Law Schools In Crisis.  I’m guessing that the headline must have been written by the Sun editorial staff as he notes state schools and elite universities are almost immune to market pressures.  That leaves 132 of them, by his count that have to deal with admitting quality students, teaching them law, and helping them find jobs.  The name recognition of the institution, unless it is an elite school, is not going to do it for them.  They are going to have to change and the change he prescribes is to focus on students.  One would think that schools are student-centric by the mere fact that students are in the law program.  It doesn’t always work that way.  As Closius puts it:

Faculties are mainly interested in curriculum, publication and their teaching schedule. Presidents are focused on revenue. Deans, selected by these two groups, normally share these priorities. The things that matter to students — admissions, career services, tuition and budget, bar passage, transparency and teaching quality — are frequently ignored or delegated to staff. This paradigm, derived from the elite/flagships, will no longer work for the schools facing a radically different market. Their deans must have CEO skills informed by academic values and be actively championing student priorities.

I think there is a lot of truth in that description, though it varies with individual law schools.  In the old pre-job crash market students generally went through the program and got jobs.  No one sweated anything, except possibly the career services officer who had to compile the statistics for the annual ABA report.  Now it’s a matter of trying to find the best students out of the shrinking pool of applicants and figuring out how to make them more competitive once they graduate.  That’s where status quo doesn’t always work. 

It’s not just a matter of shrinking the number of seats (which also means less revenue – shudder the fact) or even adding a few skills classes here and there.  There has to be a connection to the students that make them feel more than a product.  Closius suggests that the school get more involved in marketing students to prospective employers.  One way to do that is to market the school as a source for well-prepared graduates.  That’s more than simply sending out puff-piece brochures to the legal community:

Not every alumnus can donate $1 million, but all can help a student get an internship or job. The dean, faculty and staff must also visit potential employers. Concurrently, admission credentials will rise if the dean conveys a passionate vision to prospective students and the school increases its investment in scholarships. Good, satisfied students are a school's best asset in recruiting better students. As admissions credentials increase, rankings go up. As both of these occur, more employers will consider students for internships and jobs. These efforts won't transform a down market, but they will make a particular school's students more competitive.

The idea of faculty visiting potential employees is interesting.  The dean at one of my previous law schools had to mandate that faculty had to be present in their offices daily, rather than only the days they taught.  It’s my impression that some faculty members are not terribly interested in the kind of outreach that Closius suggests.  The current pressures on the legal education market may prompt some schools to foster a different attitude. 

Schools ought to consider some of the ideas presented in the editorial, or at least be motivated to consider new ways to work with the local legal community for the benefit of their graduates.  Law firms and law practice generally have had to adjust to changes such as clients demanding lower fees, less frills, and other ways legal services are rendered.  No one will expect to go back to the old way of doing business even if the economy improves.  Law schools are better served by proactively adjusting to that reality instead of lamenting it.  [MG] 

Penetrating the Once Impenetrable WEXIS Market: Fastcase's Android App for Legal Research as an Illustration

I don't know how many of Fastcase's 500,000 paid subscribers use Android devices but those who do now can use Fastcase's legal research app built for the Android OS. Yesterday, the Company announced the launch of the first legal research app for Android phones and tablets here. The app also may attract cost conscious practitioners who have not jumped on the iPhone-iPad bandwagon to Fastcase. Smart move.

Fastcase CEO Ed Walters was quoted in a paidContent article published the day before the Android app roll-out (no, not about the app per se). A snip:

Today, digital technology is letting Bloomberg Law scan and sort a vast pool of law that would once have taken decades to assemble. But while its tools rival those of the incumbents [WEXIS], there is also a bigger question of whether the industry’s underlying business model is still viable.

That business model is based on charging lawyers enormous money to access a tightly controlled pool of information is still viable. It is also highly labor-intensive. Fastcase’s Walters described practices like Westlaw’s technique of reading and annotating cases as a “relic, an anachronism from the age of print … they’re acting as if search engines never existed.”

Fastcase’s own model relies on using algorithms to rapidly sort cases and track precedents. The company sells retail subscriptions for $95 a month and also offers bulk memberships to state bar associations.

Companies like Fastcase are far from displacing the giants, but they do illustrate how technology is allowing not just Bloomberg but upstarts to challenge a once impenetrable market. At the same time, Google and the Cornell-based non-profit Legal Information Institute are making stacks of cases, patent histories and more available for free.

(Emphasis added.) For more, see Jeff John Roberts' Bloomberg’s big bite for billions of legal dollars (June 4, 2012).

Once WEXIS "owned" virtually 100% of the commercial legal search market. It is quite possible their combined market share will be reduced to 50-60% with BLaw, Fastcase and other search providers grabbing the rest of the market from them. [JH]

"WestlawNext": What happens when a brand becomes synonymous with the negatives of all similiar products

Once upon a time, we "xeroxed" something to make a copy. Being the first to launch and acquire a substantial presence in the marketplace, users identified the activity with the company that made the machine. Mad Men strive to do this when something "new" or "innovative" is being brought to market. Competitors will enter the marketplace with similar products so acquiring positive brand recognization in the product segment is a major plus for sales.

But, what happens when the opposite impression is created in the minds of potential consumers? What happens when the Company or brand name (or both) becomes synonymous with all the negatives associated with a new design model?

You get "WestlawNext" as the icon for all that is wrong in the new WEXIS model for online legal search.

"I westlawnexted it."

"That must by why you missed this [opinion, statute, regulation, secondary source] cited by opposing counsel."

Christine L. Sellers and Phillip Gragg's LLJ Back and Forth column titled WestlawNext and Lexis Advance, 104 LLJ 341 (2012), could end up being the basis for a Harvard Business School case study on how not to be the first to launch and market a new product based on a design model that will be adopted by major competitors. [JH]

Penguin And Macmillan Answer the e-Book Complaint

Penguin and Macmillan have filed answers to the Justice Department’s complaint.  The major thrust of the responses is that the DOJ mischaracterizes the events that allege conspiracy.  If the collective CEO’s met, it was social and hardly business related.  If a meeting was business related, it was to work on joint ventures that were well within the law. 

These include something called “Bookish” which is identified as a site that would replicate the book discovery process that brick and mortar stores historically performed.  The site is now characterized by a holding page offering future information to anyone who enters an email address. All of this predates, they say, the creation of the iPad and Apple’s entry into the e-book market.  The rest of the response is standard stuff, either denying the allegation or the knowledge or information relating to the truth of the allegation.  Double-delete emails?  We don’t know anything about this.  Essentially Penguin and Macmillan join Apple in telling the DOJ to prove its case. 

There are a few little points worth mentioning.  Penguin’s response to Allegation 38 charges the Justice Department with “conspicuously” omitting context for quotes that show the discussions of the CEOs was about “Project Z initiatives” which was the Bookish project code name.  The DOJ in fact uses Penguin’s same excerpt with the allegedly omitted sentence in Allegation 49.  The Department’s point is that these meetings occurred and while common legitimate business activities may have been discussed, these were opportunities to deal with the problem of Amazon’s dominance of the retail market and the $9.99 pricing which the publishers hated.  Again, it all comes down to how strong the evidence is to support the complaint. 

In a somewhat related development, Judge Posner ruled in a dispute between Apple and Motorola that Apple could not turn the trial into a popularity contest based on juror’s positive impressions of Apple and Steve Jobs or negative impressions of Motorola (and new owner Google).  He also denied Apple’s earlier motion to prevent Motorola from using quotes from Steve Job’s biography where Job’s threatened a nuclear response to Android.  

Apple certainly downplayed quotes from Job’s biography on the agreement with the publishers in the e-book complaint.  These were cited in support of the Justice Department’s position on Apple’s culpability.  Apple may have trouble in limiting their use in this case as well.  More interestingly, I wonder if Walter Isaacson has the raw tapes of his interviews with Jobs and if they will be played in open court as evidence.  Ironically, the book was published by Simon & Schuster, one of the settling defendants. 

paidContent has an article on the Penguin and Macmillan responses with links to their filed answers.  Penguin response includes the allegations and the point by point responses.  The complaint, along with related documents is available from the Justice Department, here.  [MG]

Isn't The Clarence Darrow Digital Collection Ineligible for the 2012 Joseph L. Andrews Bibliographical Award?

"The Joseph L. Andrews Bibliographical Award recognizes a significant contribution to legal bibliographical literature. The work may be a book, pamphlet, periodical contribution or publication in some other form. ... Only works published during the current calendar year will be eligible for consideration." In practice, that rule has been interpreted to mean the previous calendar year. Thus works published in 2011 are eligible for this year's award but not works published in 2010.

I'm sure this year's Joseph L. Andrews Bibliographical Award "co-winner", The Clarence Darrow Digital Collection, is an excellent resource but it went live in June of 2010 with more than half of the site's current collection of Darrow correspondence -- 473 of the current 806 letters in the collection. Resources at launch even received the attention of the New York Times. Clearly The Clarence Darrow Digital Collection was not an "under construction" launch, one that could be construed as really, really being published in 2011. So what's up with this? (Do note that no award was handed out in 2011 when The Clarence Darrow Digital Collection was eligible to receive it.)

Congratulations to Dick Danner and Jules Winterton. They are co-recipients of this year's Joseph L. Andrews Bibliographical Award for The IALL International Handbook of Legal Information Management, which was published in 2011. [JH]

Supreme Court Action: Equal Protection and Qualified Immunity

The Supreme Court issued two opinions this morning.  The first Is Armour v. Indianapolis (11-161).  The case concerns an Indiana state law that assesses landowners for sewer projects as applied the city of Indianapolis forgave charges for some landowners when it transitioned to a different assessment system.  Under the Barrett Law system, lot owners are equally assessed for the cost of a project but can either pay the entire assessment as a lump sum or over time in monthly payments for a period of 10 to 30 years.

Indianapolis completed the Brisbane/Manning sewer connection project and sent notices to all affected landowners.  Thirty-eight elected to pay in a lump sum.  Shortly afterwards, Indianapolis transitioned to a new STEP system of financing projects which used bonds, thus lowering the costs for individual landowners for future projects.  The City decided to forgive future payments owed by landowners for the Brisbane/Manning project after the new system was adopted.  Those who paid lump sums asked Indianapolis for a refund.  The City refused the request.  Thirty-one of those sued Indianapolis claiming the denial was a violation of the Equal Protection Clause.  The trial court and intermediate Appellate Court held for the plaintiffs.  The Indiana Supreme Court reversed, holding that the City had a legitimate interest in reducing its administrative costs when it elected to forgive future payments for the Brisbane/Manning project.

The Supreme Court agreed and affirmed the Indiana Supreme Court.  It stated that the City’s action did not involve a fundamental right or suspect classification, nor did it discriminate with out-of-state commerce or new residents.  As such the distinction is valid so long as there is any reasonably conceivable state of facts that could provide a rational basis for the classification.  Reducing administrative costs for the City is one of them.  The Court stated continuing the legacy system for the years left for all landowners to pay could prove complex and expensive.  Processing refunds would add further costs.  There was also the possibility that taxpayers from other projects would seek refunds or adjustments to their costs.

The Court’s opinion and that of the dissent turns on the applicability of the precedent of Allegheny Pittsburg Coal Co. v. Commission of Webster City, 488 U.S. 336 (1989).  That case held that a county assessor’s practice of valuing property based on the last sale price violated the Equal Protection Clause in light of a state constitutional provision and state law that required equal valuation of equally valuable property.  The Court distinguished this case by noting that the Indiana statutes say nothing about a forgiveness program or how to design one, or whether or when rational distinctions in doing so are permitted. 

The opinion of the Court was delivered by Justice Breyer and joined by Justices Kennedy, Thomas, Ginsburg, Sotomayor, and Kagan.  Chief Justice Roberts dissented, joined by Justices Scalia and Alito.  Chief Justice Roberts’ view of the record is that the City had records of payments that were easily examined to determine any refunds that could be made.  He discounted the costs associated with at least that part of transitioning systems.  As he put it:

The Equal Protection Clause does not provide that no State shall “deny to any person within its jurisdiction the equal protection of the laws, unless it’s too much of a bother.”

The second case is Reichle v. Howards (11-262).  The underlying facts of the case got their share of headlines when they occurred.  There was an event where citizens were able to meet Vice President Cheney.  Secret Service agent Doyle overheard Howards speaking to someone via cell phone that he planned to ask Vice President Cheney “how many kids he killed today.”  Howards entered the line to meet the Vice President, told him that his policies in Iraq were “disgusting” and touched the Vice President’s shoulder as he was leaving. 

Doyle briefed Agent Reichle who interviewed and then arrested Howards.  He was charged with harassment.  The charges were dismissed and Howards brought a §1983 and Bivens action against the agents.  Howards claimed he was arrested and searched without probable cause in violation of the Fourth Amendment and that his arrest was in retaliation for criticizing the Vice President.  The District Court denied the agents’ motion for summary judgment on the basis they were entitled to qualified immunity.  The Tenth Circuit reversed in regard to the Fourth Amendment claim holding that there was probable cause for the arrest but affirmed the denial of qualified immunity on the First Amendment claim.  There was question whether Supreme Court precedent holding that probable cause to arrest defeats a First Amendment retaliatory prosecution.

The Court reversed the Tenth Circuit on the First Amendment retaliation claim, granting the agents qualified immunity on that count.  The Court stated that it was not clearly established by prior case law that an arrest supported by probable clause could give rise to a First Amendment violation.  The right would have to be sufficiently clear that every reasonable official would have notice or understanding that his actions violate that right.

The Court noted that Tenth Circuit precedent had distinguished Supreme Court holdings to the contrary on the First Amendment violation.  The Court’s prior precedent granted immunity in retaliatory prosecutions.  It was an open question whether that precedent applied to arrests.  The Court goes to some pains to hold that today’s decision does not automatically apply to arrest circumstances, but as an open question, the agents are entitled to qualified immunity.  There is discussion on the relationship between arrests and prosecution in that prosecutors are absolutely immune for their decisions while those who prompt the arrest can have immunity in some circumstances. 

The logic of the holding is a bit complex, though that is expected when the opinion (and its underlying reality) is delivered by Justice Thomas.  He was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Sotomayor.  Justice Kagan did not participate in the case.  Justice Ginsburg, joined by Justice Breyer filed an opinion concurring in the judgment.  She would give some leeway to agents charged with protecting public officials in making split second decisions in the field.  [MG]

Dueling Twitter Titans DLA Piper and Fulbright & Jaworski Square Off in the Battle for the BigLaw King of 140 Characters Crown

Hat tip to AttorneyFee for this infographic and to ATL's Christopher Danzig for his deconstruction of it at Infographic of the Day: Commence the Biglaw Twitter Wars. [JH]

Suggested Revenue and Expenditure Reforms Could Completely Change the Landscape of the Legal Academy

1. Revenues: Restrict the flow of federal tuition loan dollars into the legal academy.

2. Expenditures: Strip away the ABA requirements that mandate spending money to support faculty scholarship.

Do note, that the second option could mean that the the ABA would no longer require maintaining a substantial academic law library collection.

See Brian Tamanaha's New York Times op-ed piece, How to Make Law School Affordable. Hat tip to Brian Leiter's Tamanaha's Proposals on Reforming Legal Education Financing and Regulation ("[A]dopting one or both [options] would completely change the landscape of American legal education.") [JH]