Law Librarian Blog

PC Hardward Chart for DIYers

In case you are thinking about fixing or building your our PC. From Mashable. [JH]

Palfrey and Gasser's Interop: The Promise and Perils of Highly Interconnected Systems

The co-authors of Born Digital: Understanding the First Generation of Digital Natives (Basic Books, 2008) recently published a new book, Interop: The Promise and Perils of Highly Interconnected Systems (Basic Books, June 5, 2012). John Palfrey, very soon to be, if not already, former Professor of Law and Vice Dean for Library and Information Resources at Harvard Law School, and Urs Gasser, Executive Director of the Berkman Center for Internet & Society at Harvard University, gave a talk about their new work at Harvard Law School on May 30, 2012. The video can be viewed here.

From the blurb for "Interop":

In Interop, technology experts John Palfrey and Urs Gasser explore the immense importance of interoperability—the standardization and integration of technology—and show how this simple principle will hold the key to our success in the coming decades and beyond.

The practice of standardization has been facilitating innovation and economic growth for centuries. The standardization of the railroad gauge revolutionized the flow of commodities, the standardization of money revolutionized debt markets and simplified trade, and the standardization of credit networks has allowed for the purchase of goods using money deposited in a bank half a world away. These advancements did not eradicate the different systems they affected; instead, each system has been transformed so that it can interoperate with systems all over the world, while still preserving local diversity.

As Palfrey and Gasser show, interoperability is a critical aspect of any successful system—and now it is more important than ever. Today we are confronted with challenges that affect us on a global scale: the financial crisis, the quest for sustainable energy, and the need to reform health care systems and improve global disaster response systems. The successful flow of information across systems is crucial if we are to solve these problems, but we must also learn to manage the vast degree of interconnection inherent in each system involved. Interoperability offers a number of solutions to these global challenges, but Palfrey and Gasser also consider its potential negative effects, especially with respect to privacy, security, and co-dependence of states; indeed, interoperability has already sparked debates about document data formats, digital music, and how to create successful yet safe cloud computing. Interop demonstrates that, in order to get the most out of interoperability while minimizing its risks, we will need to fundamentally revisit our understanding of how it works, and how it can allow for improvements in each of its constituent parts.

In Interop, Palfrey and Gasser argue that there needs to be a nuanced, stable theory of interoperability—one that still generates efficiencies, but which also ensures a sustainable mode of interconnection. Pointing the way forward for the new information economy, Interop provides valuable insights into how technological integration and innovation can flourish in the twenty-first century.

[JH]

Friday Fun: The Lord of the Libraries

From the YouTube description: Before winning an Emmy for his work on "Heroes," then-student Chris Martin wrote and directed 2004's "The Lord of the Libraries" - a tale of action, adventure, and overdue books, parodying "The Lord of the Rings." [JH]

Christie's to Auction George Washington's Annotated Copy of the Constitution and Bill of Rights Today

The estimated value of George Washington's personal copy of the Constitution and Bill of Rights is $2,000,000 to $3,000,000. The copy includes Washington's marginalia highlighting the duties and powers of the president. Quoting from Christie's entry:

It is striking that Washington, the owner of an extensive library at Mount Vernon, added marginalia in only this and one other volume (a copy of James Madison, View of the Conduct of the Executive. Here, in this volume, he has added brackets and marginal notes in light but readable pencil. All appear in the text of the Constitution itself and all relate to the duties and prerogatives of the chief executive in the new government.

-- At Article I, Section 7, Clause 2 (on page vi), Washington has written "President" in the margin and has added a long bracket alongside the passage detailing the process by which legislation originates in Congress and is then subject to the approval or veto of the president: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law."

In a further section of Section 7, Clause 2 (on page vii), Washington has written "President" twice, next to a description of two additional methods by which laws may be enacted or rejected: "But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."
In addition, at Clause 3, President Washington brackets another block of text: "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill."

-- At Article II, Section 2 (on page ix) Washington has written "President" and "Powers" in the margin, and has bracketed Clauses 1, 2 and 3, each stipulating critical responsibilities of the chief executive. First, Washington brackets Clause 1: "the President shall be Commander-in-chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment."

Clause 2, dealing with treaties and their ratification, and presidential powers of appointment is also bracketed by Washington: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate and by and with the Advice and Consent of the Senate, shall appoint Ambassadors and other public Ministers and Consuls, Judges of the Supreme Court and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Additionally, Clause 3 is bracketed: "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

At Article II, Section 3 (page ix), Washington has written "required" and bracketed text stipulating further duties of the chief executive. "He shall from time to time give to the Congress information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and speedy; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall commission all the Officers of the United States."

[JH]

Supreme Court Action Today: Criminal Fines, Union Dues, Drug Sentencing, and TV Obscenity

The Court issued four opinions this morning.  At least two of them are making headlines in the various news sources.    I’ll point out a detail about the cases not in the opinion.  When the Court issues slip opinions online, the name of the PDF file is the docket number.  The file name in all four of these cases contains extra letters and numbers, such as 11-94a1b2.pdf.  This is a change from opinions issued on Monday of this week and for the last several terms.  I wonder what that means. 

The first case is Southern Union Co. v. United States (11-94).  It concerns whether the Apprendi rule applies to criminal fines.  That case held the Sixth Amendment’s jury-trial guarantee requiring any fact that increases the maximum authorized for a particular crime be proved to the jury beyond a reasonable doubt.  Southern Union was convicted by a jury of violating the Resource Conservation and Recovery Act of 1976 (RCRA) for knowingly having stored liquid mercury without a permit for approximately 762 days.  The penalty assessed was calculated at $38.1 million based on a $50,000 fine for each day.  Southern Union argued that the jury instructions and verdict showed a violation of one day.  The District Court held that the content and context of the verdict supported a finding of a 762 day violation.  The First Circuit affirmed, disagreeing with the contextual basis but stating that Apprendi did not apply to criminal fines. 

The Supreme Court reversed, holding that Apprendi does apply to criminal fines.  The Court has applied Apprendi to a number of sentencing cases and Apprendi will apply to any fine great enough to trigger the Sixth Amendment’s jury trial guarantee.  The Court analyzes the historical role of the jury in criminal cases and principles of common law to conclude that each fact that determines a fine amount has to be proved to the jury.  The rest of the opinion dismisses the Government’s arguments to the contrary, mostly drawn from dissents to prior holdings.  The Court basically told the Government that Apprendi is more than ten years old at this point and to get over it.   Justice Sotomayor delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg, and Kagan.  Justice Breyer filed a dissenting opinion and was joined by Justices Kennedy and Alito. 

The second case is Knox v. Service Employees (10-1121).  It concerns a union’s ability to collect mandatory dues that are later used for political purposes and whether the circumstances of that collection in this case violate the First Amendment.  The Court’s earlier precedent in Teachers v. Hudson, 475 U.S. 292, held that unions can bill non-members in an agency shop for chargeable expenses but not for political or ideological projects under the First Amendment. 

SEIU sent out its notices to California employees in June, 2005 capping its chargeable expenses at 56.35% of its total expenditures in the coming year but stating that the charges were subject to increase without further notice.   The Governor called a special election at the same time on two ballot measures that the SEIU opposed.  The Union then sent a letter after the employee objection period ended which announced a temporary 25% increase in dues and temporary elimination of the dues cap for what it called an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.”  The letter described the fund to be used for a broad range of political expenses. 

Non-union employees brought a class action suit alleging a violation of First Amendment rights.  The District Court granted summary judgment to the employees.  It ordered the Union to send notice to the class members allowing 45 days to object and to provide full refunds to those who objected.  The Ninth Circuit reversed, holding that Hudson prescribed a balancing test that inquired whether the union’s procedures accommodated everyone’s interests.  The Supreme Court reversed. 

The Court first dealt with the mootness issue.  The SEIU had offered full refunds to all class members after certiorari was granted.  The Court stated that the case was not moot as the conduct could happen again once the case was dismissed.  It went on to say that the First Amendment requires a union to send fresh notice when it imposes a special assessment and may not assess funds from nonmembers without their consent.  California created agency shops where non-union members have no choice in paying union fees as a condition for work.  The Court called this an anomaly and said Hudson did not call for a balancing test but made clear that the procedure for collecting fees from unwilling contributors had to be tailored to minimize the infringement of free speech rights.  The special assessment did not meet that standard.  Justice Alito delivered the opinion and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Sotomayor filed an opinion concurring in the judgment which was joined by Justice Ginsburg.  Justice Breyer dissented, joined by Justice Kagan. 

The third case is Dorsey v. United States (11-5683).  The Fair Sentencing Act reduced the disparity in the amounts of crack cocaine and powdered cocaine to trigger mandatory minimums from 100 – 1 to 18 – 1.  The Act took effect on August 3, 2010.  The question in this case is whether the change in sentence triggers applied to defendants who had committed drug crimes prior to the Act but had not been sentenced.  The Court combined multiple appeals on this issue and said the Act applies in this circumstance. 

The statutory construction rules normally require defendants to be subject to penalties in effect when the crime is committed unless Congress expressly provide otherwise.  The Court notes that the language of the Sentencing Reform Act applies the sentencing guidelines in effect on the date the sentence is given to the defendant.  The Court said the savings act passed in 1971 allows Congress to make that change;  the reduction in sentence triggers is not an ex post facto law; applying old sentencing guidelines in these circumstances would create sentencing disparities that the legislation meant to prevent; and the Court finds no compelling principle to rule otherwise.  Moreover, as sentencing guidelines are advisory, the courts can implement the changes before the Sentencing Commission makes changes to its sentencing standards. 

The opinion is the “classic” 5-4 split with Justice Breyer writing for the majority, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion joined by Chief Justice Roberts and Justices Thomas and Alito. 

The final case is FCC v. Fox Television Stations, Inc. (10-1293).  This is the second time this case has been before the Court.  It concerns fines assessed against Fox and ABC for violation of rules on indecent broadcasts.  Obscene words were uttered on two live shows broadcast by Fox and there was brief nudity in a scripted show on ABC.  The three incidents were subject to FCC policies on broadcasts containing obscene, indecent, or profane language in effect since the 1970s.  There was another policy statement issued in 2001 that amplified the considerations for enforcement included “whether the material dwells on or repeats at length” the offending description or depiction.  Subsequent to the incidents but before taking action against Fox and ABC, the FCC issued another policy statement stating that fleeting expletives could be sanctioned.  The Commission then found that Fox and ABC violated the new standard. 

Fox and ABC appealed the FCC’s finding to the Second Circuit, which reversed on the grounds that the timing and notice of the policy made it vague as to what conduct for which the broadcasters could be sanctioned.  The Supreme Court reversed that case asking the Court of Appeals to consider the First Amendment Claims made by the broadcasters.  The Second Circuit found the FCC policy unconstitutional on remand.  The Supreme Court in the instant case vacates that opinion.  It holds here that the FCC orders fail because the broadcasters did not have enough notice of compliance standards, essentially disregarding the First Amendment aspects of the case.  The Government tried making its case against the broadcasters using obscure rulings by the FCC on expletives and nudity.  The Court rejected these as insubstantial in providing guidance. 

The rules are more or less kept in place and broadcasters generally would know what is and is not allowable.  The Commission is free to adjust its rules further for clarity.  The Court, obviously, was not prepared to strike down the FCC obscenity policy on blanket First Amendment grounds despite the earlier remand to the Court of Appeals.  This was a case of be careful what you ask for. 

Justice Kennedy delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Thomas, Breyer, Alito, and Kagan.  Justice Sotomayor did not participate in the case.  [MG]

The Role of Antitrust in Protecting Competition, Innovation, and Consumers as the Digital Revolution Matures

From the abstract of The Role of Antitrust in Protecting Competition, Innovation, and Consumers as the Digital Revolution Matures: The Case against the Universal-EMI Merger and E-Book Price Fixing (June 2012) by Mark Cooper, Director of Research, Consumer Federation of America Fellow, Donald McGannon Communications Research Center, Fordham University and Jodie Griffin, Staff Attorney, Public Knowledge:

This paper presents a detailed analysis of the proposed merger between Universal Music Group (UMG) and EMI by applying the standards and methods outlined in the recently revised Department of Justice/Federal Trade Commission Merger Guidelines. It shows that the UMG‐EMI merger is “an unfair method of competition” that constitutes “an unreasonable restraint of trade” because it will “substantially lessen competition” and is “likely to enhance market power.” Simply put, the postmerger firm will have a strong incentive and increased ability to exercise market power, particularly in undermining, delaying, or distorting new digital distribution business models, in a market that has been a tight oligopoly for over a decade.

The merger creates a highly concentrated market by eliminating one of only four major record labels and results in an increase in concentration that is five times the level that the DOJ/FTC identify as a cause of concern. The recent history of anticompetitive, anti‐consumer conduct by this tight oligopoly and the role of EMI as a maverick in the digital era compound the anticompetitive effects of the merger and significantly increase the likelihood that the merger will not only result in higher prices but also undermine incipient competition.

Claims that piracy will prevent the abuse of market power are directly refuted by evidence on consumer purchasing behavior, estimates of elasticities of demand by academics, and marketing research conducted by the music industry. The analysis demonstrates that the industry has
chronically and grossly overestimated the role of copyright infringement in the development of digital distribution. Correcting this misrepresentation of the extent of infringement is necessary to ensure that policymakers have a proper understanding of the full benefits of digital technologies.

The strong parallels between the impact of the merger on the development of digital disintermediation in the music sector and the recent case brought by the Department of Justice against e‐book publishers highlight the economic efficiency and consumer benefit from the digital distribution of goods and services. The anticompetitive tactics of the dominant, incumbent, physical space firms remind us that these firms will stop at nothing to delay change and preserve their dominance. Antitrust authorities and others must use the full range of tools available to protect competition, innovation, and consumers and ensure that consumers and the economy enjoy the full benefits of the development of digital technologies.

[JH]

Got a Vendor Complaint? CRIV has launched an online form for that

For assistance from CRIV over a vender issue, an online form has been developed by CRIV. Go here to use the Complaint Form. Details on The CRIV Blog identify the sort of detailed information CRIV would like to receive.

This is a long overdue step in the right direction for using modern web communications, so kudos to CRIV. However, there is no word whether CRIV will post on its blog (1) received complaints (redacted appropriately of course); (2) issue calls to the membership for information about similiar complaints to see how widespread the issue is; (3) the status of CRIV investigations of the specific complaints received; and (4) publish vendor responses to CRIV inquiries for all to read. To let the sunshine in, hopefully The CRIV Blog will become the web destination for this.

Until that happens, if it happens, it certainly doesn't hurt for indivdual members to also post their vendor complaints on the various AALL web communities and law-lib for two reasons. First, to inform the membership who may have similar complaints and comments on the topic. And second, because our vendors monitor AALL web forums. [JH] 

Digital Book Publishing in the Association of American University Presses Community: Survey findings from 80 members

"AAUP conducts a semi-regular survey of members on the subject of digital strategies in their book publishing programs. The survey gathers data on the extent to which various models, formats, channels, and digital workflows are being adopted by AAUP members, and takes the temperature of the membership on what issues are of greatest concern and topics on which professional development or information resources might be of greatest interest." See Spring 2012 Digital Book Publishing Survey. Previous survey reports for Spring 2011 and Winter 2009-2010 here. Jennifer Howard provides a summary of the 2012 reported data on Wired Campus. [JH]

I've Got a Bone to Pick with BNA Books

So ... on May 31st, I received a mass email titled "Check Out Bloomberg BNA's 2012-2013 Books Catalog" that stated in part:

The 2012–2013 Books Catalog can be viewed online (pdf file), or you can request a print copy by calling 1.800.960.1220 or emailing books@bna.com.

(Emphasis added; Link to PDF file omitted for reasons stated below.)

Fine with me. Let's save some trees. I downloaded a copy of the PDF to my desktop. Over the course of a couple of days, I scraped the usual content -- title, price, order number and bunded order numbers -- from the PDF into a text file for reviewing possible purchases, bundled or not. Then I searched the PDF for the order forms which the catalog's TOC listed as being in the "center." Not there. To make absolutely certain because I have little short-term memory working, I printed out the entire 60-page PDF on June 11th. Nope, not in the PDF.

While waiting for the print job to be completed, I left the library, ordered a Black Eye at the local coffee shop, and smoked a cigarette. When I returned, the 60 page print job was still spitting out pages but one of my colleagues said "we just received two copies of the sales catalog in the mail and I put one in your office."

Aaargh! Sure enough, the order form were stapled in the center of the p-version of the sales catalog plus there was a letter insert that identified a discount code for non-bundled purchases. In our little county law library, that non-bundled discount offer was important since my wish list of titles were not bundle-able because either we already had the related titles or didn't want them. So, who at BNA Books blindly pushed the Make PDF button without adding both to it?

At least, when I executed a phone order for a couple of BNA Book titles later, BNA Books' customer service was excellent as usual. But I think someone at the Company owes me for the cost of the 60 page printout. Had the order forms and inserted letter been included in the PDF, that's all I would have printed out ahead of executing my order.

Finally and for the secord or third time (meaning I have forgotten how many times I have tried to call this to the Company's attention), will someone in the ad copy department put down his or her coffee and revise the author entry for "Fairweather’s Practice and Procedure in Labor Arbitration," 4th ed., Ray J. Schoonhoven, Editor, before next year's sales catalog! It reads:

Ray J. Schoonhoven, now retired, was a partner in Seyfarth Shaw, Chicago, IL, where he specialized in employment law and labor relations

It should read:

Ray J. Schoonhoven (deceased) was a partner in Seyfarth Shaw, Chicago, IL, where he specialized in employment law and labor relations.

Luckily the editorial quality of the books I ordered will be better than the PDF production and ad copy quality of BNA Books' sales catalog. Time for a video. It is captioned "This is what happens when I have a spare 30 minutes." Obviously, the creator wasn't busy with BNA Books-related collection development matters. [JH]

July 5, 2012 Update. Fixed now.

Tom Glocer on the Re-invention of Paper

Former TRI CEO Tom Glocer recently contributed a post to The Economist's Lean Back 2.0 blog. A quick snip:

While in my original post [iPad and Beyond, April 5, 2010] I accurately (but none too bravely) predicted future versions of the iPad would have 3G/wifi connectivity, a longer battery life and a better screen, we have not yet seen my bolder prediction of lightweight digital plastic sheets becoming the new print medium. This will come. As has often been noted, technology appears to evolve slowly in the near-term and then very rapidly over longer timespans as we consistently underestimate the compounding effects of incremental development.

While the iPad3 I use today is an impressive and enjoyable machine, it is but a hint of things to come.  Many await Apple’s entry into full screen home television – likely with a further evolved Siri voice control; however, I am still waiting for the re-invention of paper. That’s right, paper. What we call paper today has evolved over centuries from stretched animal skins to papyrus to wood paper pulp. It is lightweight, foldable, easily transportable, readable in bright light and relatively cheap. However, in its current “wooden” form, it is not immediately reusable, not searchable and comes with an environmental cost.

(Emphasis added.) For more, see Glocer's The iPad and the future of paper. Do note which new electronic publisher he has invested some money in.

Endnote. It appears that Glocer will be contributing additional posts to The Economist's Lean Back 2.0 blog. From What Is Lean Back 2.0?:

This Lean Back 2.0 blog aims to examine, discuss and track the impact that new digital reading devices, particularly tablets, are having on both reader behaviours and media businesses. Written primarily by Andrew Rashbass, chief executive of The Economist Group, it also includes thinking from commentators across the media, publishing, advertising and technology industries.

Why do we call this blog Lean Back 2.0? The print age created a Lean Back experience with reading as a solitary, ritual pleasure. The web age introduced Lean Forward as readers began to embrace information from multiple sources, actively researching and sharing content. Tablets and eReaders are driving yet another profound change in our relationship with content. They have made reading an immersive, lean-back experience again and created new opportunities to read. This is Lean Back 2.0.

[JH]

Words of my father echoing . . . (past the advice of Forbes)

I still remember driving from Long Island to New Jersey with my father some fifteen years ago when he intimated to me that although he'd been an accountant for twenty years, he never enjoyed it. I could have taken that in one of two ways: (1) Sometimes we need to do things to survive in this world even if we don't enjoy it; or (2) Find something you enjoy doing and do it. While I find both interpretations to be valid, what I took from it is the later, to get paid to do something I enjoy doing. I lucked out because I love what I do.

Recently, Forbes reported what it found to be the best and worst graduate programs for jobs. The worst degree was one in Library and Information Science, reporting a mid-career median salary of $57, 000 and 8.5% projected employment increase. The report noted that it did not take job satisfaction into account, but it was basically telling college grads not to become librarians. (Is this a dying profession? How is it that when the world of information is exploding, the profession at the heart of information access is imploding?)

Among the top worse degrees were the other graduate degrees I might have considered had I not chosen to go to law school, then library school : English(2), Music(3), History(9). And while I don’t find the subject itself fascinating in an academic sense, since that is one of the things I do, Education (4) made the list too. Surprisingly, Philosophy was not on the list, nor was Law (considering all the bad press law schools have received over the past year.) What was most surprising is that the Masters of Studies in Law(MSL) was not on the list - what is that?

Well, it boils down to dollars and cents, I suppose. Don't do anything unless you can make a good living out of it. The fact that I somewhat believe that is only further evidence of my entrance to fatherhood, but at the same time, I hear the words of my father in my head saying to me in uncertain terms, "Find something you enjoy doing and do it."

I truly enjoy working in legal education. I can recall that on a weekly basis for the first year of working at the Charleston School of Law, I would think to myself, "I can;’ believe that they pay me to do this." I still will to direct a law library (despite the fact that I believe my mentor secretly prayers for the end of law libraries). And if I were a recent college (or law school) grad wondering whether I should enroll in the Rutgers School of Communication, Information and Library Science (SCILS), now School of Communication and Information (SCI), I still think I would choose the MLIS degree (though attaining the JD was so much more fun).

Well, I've been the crossroads and I've chosen my path (which has had its bumps), but what would I tell myself some seven years past? The answer is simple: Find something you enjoy doing and do it. So my advice to anyone considering becoming a law librarian is this: If you're going to do it, make a life out of it. Don't watch the clock while you do it. It is not just a job; it is a career. Don't do it if you'd rather be doing something else. Do it because you feel called to do it. I heard the calling, and I came a calling, irregardless (yes, I know" irregardless" is not a word) of what Forbes or anyone else would say about it. So son, if you want to be a librarian, be a librarian (but marry a doctor as the healthcare industry seems to be the ideal environment to find work). (DCW)

Are eReaders for Law eBooks Accessible?

On ALA's E-Content blog, Christopher Harris writes that "[p]eople with vision, dexterity, or cognitive disabilities need certain specific features, and ebook readers are all over the map in what they offer and how they offer it." He offers the following tips:

• For people who are blind, the text must be spoken aloud, and descriptions provided for images and graphs. Controls must be distinguishable by touch. (Some touchscreen devices now provide a way for controls to announce their function without activating them.)
• For people with low vision, the text must be high contrast and magnifiable ,or in a large, easy-to-read font.
• For people with cognitive disabilities, controls must be easy to use. Text must be able to be spoken aloud and highlighted as it is spoken.
• For people with dexterity impairments, controls must be easy to operate, and not require more than one action at a time, or complicated actions. Devices must be easy to lift, hold, and operate with one hand.
• For people with hearing loss, audible alerts and alarms should have a visible form as well. Any audio content should be available in text.

For more, see Making Ebooks Accessible. [JH]

Member and Vendor Comments on First Draft of Revised AALL Guide to Fair Business Practices for Legal Publishers Due by July 15

Quoting from the Vendor Liasion Update for June 2012:

The Revisions Task Force on the AALL Guide to Fair Business Practices for Legal Publishers seeks member and vendor comments on its first draft of the next edition of the guide. The task force invites suggestions for alternative language, problems or successes in using the guide, and new developments that should be included in the principles. Comments can be submitted via the Vendor Relations Community on AALLNET (login required) or to survey@aall.org.

The task force was created in July 2011 and is charged with reviewing the guide’s second edition (adopted by the AALL Executive Board in 2006) and submitting a report with proposed revisions this fall. The purpose of the guide is to educate vendors and consumers on "fair business practices" and to set realistic expectations on both sides that will facilitate effective and productive relationships. The task force’s goal is to update the guide to ensure that it remains relevant for print and electronic resources; this may include modernizing the practices addressed, clarifying language, strengthening principles, and adding supporting examples.

The deadline for comments is July 15.

Download a redlined version of the first draft here. [JH]

Opening: Emergi​ng Technologi​es Librarian, Villanova Univ. School of Law

The Emerging Technologies Librarian, under the general supervision of the Assistant Director for Reader Services, will identify, evaluate and implement current and emerging technologies and applications for delivery of library services. Primary focus shall be on reference and instruction (e.g., virtual reference, discovery, social networking, app development, institutional repositories, mobile, instructional technology). Track trends, investigate new developments and applications, and incorporate appropriate technologies into the library environment to improve the library’s public services. Collaborate with Assistant Director for Collection Management to generate staff development opportunities for building technology awareness and encourage the adoption of technologies that improve the library’s physical and virtual presence. Find and implement widgets and apps designed to embed library resources and services into learning spaces. Collect and report statistics and assess impact of technology-based services on library users. Participate in the design and development of the library’s website and instructional and promotional materials. Participate fully in reference to include some evening and weekend hours.  Participate fully in instructional services to include teaching in the first year legal research program; and giving other classroom lectures as requested. Serve as the liaison to the IT and Ed Tech Department. May supervise student assistants.  Perform other duties as assigned.

Required Education and Experience: M.L.I.S. from ALA accredited library school and J.D. from ABA accredited law school.  At least two years’ experience in Electronic Services or Emerging Technologies field. 

Required Skills and Abilities:

• Demonstrated experience developing tutorials or other research/instructional tools.
• Remonstrated ability in creating and managing institutional repositories.
• Demonstrated ability to provide reference and instructional services.
• Current awareness of issues and trends in information technology and public services.
• Familiarity with standard practices in web development and usability.
• Experience using course management systems, online collaborative productivity tools, and content management systems.
• Excellent organizational, interpersonal, and communication skills with the ability to interact with diverse group of students, faculty, and staff.
• Substantial knowledge of legal research databases and web-based subscription services Course work in legal research.
• Ability to work both independently and as part of a team .
• Commitment to providing responsive and innovative services.

Preferred:

• Proficiency with one or more programming languages such as HTML or CSS, and a content management system like Wordpress or Drupal.
• Reference and instruction experience in an academic library.
• Experience providing instructional technology support; experience participating in collaborative web application development; familiarity with XHTML, XML, or PHP, and relational databases. 

To apply for this position, please submit a letter of interest, resume and the names of three references directly to the Villanova University Human Resources Department jobs site.

Another day behind the yellow curtain.

Let's face it, legal researchers tend to be neurotic. To the less experienced researcher, there is always a legal answer which exists, and that answer can be found; it can be found by looking into the past, answered in case law. (My supposition is that the casebook method employed in law school belies a large part of the problem. After all, in a law school class, the answers tend to be found within the readings or extrapolated from the readings.) Often there is the inception of a sometimes debilitating idea that if a court in one jurisdiction has held something, a court in my jurisdiction must have held the very same -"the issue must have been raised here if it was raised there. It must exist. It has to!"

Every summer, a law student emails or calls me asking me to work my wizardly ways, i.e., find something that does not exist. The request usually comes in one of two forms. The first form of the inquiry usually looks something like this:  "I'm looking for the legislative history of a state statute and I can't find anything." On its face, there is nothing really wrong with this request. In fact, I am often pleased to see that a former student remembered that resorting to legislative history is often a valid method to search for legislative intent. More often, however, the student forgets that in certain states (like Tennessee) it is extremely unlikely that any meaningful legislative history exists. (In Tennessee, apart from the bill, the only pieces of legislative history that tends to exist are the actual recordings of floor debates, and this is more often a rare case. And the only way to acquire the statements on the floor is to have a librarian at the Statehouse determine whether any legislative history exists and if so have her send copies of the recordings themselves - never transcripts of the recordings.) I explain this fact to the student every time. The response is often, "But it must exist. Isn't it somewhere on Westlaw?" I sigh.

The second form of the request to conjure law from the dust is more unnerving, but the frustration is exacerbated when I failed to conduct a proper reference interview. The form of this request usually begins with, "I need to find a case that says. . . " Again, on its face, there is nothing really problematic about the question. The problem is that what the student means is, "I have searched far and wide to find a case that holds X. I cannot find it but it must exist; otherwise I wouldn' be looking for it." The frustration is exacerabated by the failed reference interview when I later learn what the student means is, "I have searched far and wide to find a case that holds X. I have found numerous cases that have held the opposite of X (perhaps one even decided by the relevant court of last resort in the last couple years) but I need one to say X. It must exist. I know it exists because I need it." Sometimes there is a variation on the situation where the student explains, "The lawyer I am working for says that he knows that holding X exists."(Well, it must exist then. For as soon as one is admitted to practice, one can never err, right?) The termination of many of these conversations often ends in the sound of a defeated law student when they have looked behind the yellow curtain and realized that I am not, in fact, a wizard.

There was a time that I tried to teach the lesson that legal researchers are not wizards by giving them a research exercise where the answer does not exist in the way one would expect. It is the Jailbird question, where, in the end, the answer is, "zero." I will create one right here:

Between 1803 to 1813, how many lower court decisions were upheld by the State of California's court of last resort?

It seems like a somewhat daunting question until you realize that there couldn't be any dispositions affirming lower court decisions in the State of California during that period as California was not yet a state. I stopped asking any such questions as some colleagues though them to be cruel. However, they are not cruel; they merely require critical thinking.

And critical thinking must be fostered in law schools. Law students must learn that an answer cannot always be found within the volume of a reporter. And instead of a law student sounding defeated after peering behind the yellow curtain, there should be joy in his voice as the lack of precedent provides for the opportunity to - wait for it - make an original argument. And if no legitimate original argument can be made, then the logical consequences must follow.

I hope to one day see the names of these students listed as the attorneys in the cases contained in future reporter volumes, to see them as a part of the great chain of change that is American law. In the meantime, I am more than willing to let them peer behind the yellow curtain to see that I am not the conjuror that they can be.

 

Supreme Court Action: Indian Affairs, FLSA Overtime Rules, and a Very Messy Expert Witness Case

The Supreme Court issued four cases this morning, drawing headlines not because of their holdings, but because none of them involved health care or state attempts to control illegal immigration.  Expect them and other controversial cases to come down next week.  And while we’re on the subject, Justice Ginsburg gave a hint of what to expect without revealing the substance behind the expectations.  She is quoted in CNN as saying:

"As one may expect, many of the most controversial cases remain pending," she noted. "So it is likely that the sharp disagreement rate will go up next week and the week after."

The first of the four cases is Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (11-246).  The case involves the power of the Secretary of the Interior to acquire land under the Indian Reorganization Act (IRA) and whether nearby property owners to that land had standing to sue over that acquisition.  The Secretary in this case acquired property for the tribe to use for a casino.  David Patchak sued to reverse the acquisition alleging that the tribe was not federally recognized when the IRA was passed in 1934.  The tribe did receive recognition in 1999.  Patchak also alleged different types of harm that would ensue if the Band was allowed to operate a casino.

The District Court ruled that Patchak did not have prudential standing to challenge the Secretary’s decision.  The Court of Appeals for the District of Columbia reversed, rejecting the argument that sovereign immunity barred the suit.  The Supreme Court affirmed the Court of Appeals.  The Tribe and the Government argued that the Quiet Title Act (QTA) contained an exception the Administrative Procedure Act’s general waiver of the Government’s immunity from suit.  That Act allows suit asserting a “right, title, or interest” in real property that conflicts with a claim by the United States.  The Act contains an exception to suit for “trust or restricted Indian lands.”

The Court rejected the exception as Patchak was not asserting a claim to the property.  His standing is derived from a broader set of claims, such as environmental, aesthetic, and other types of   impact for the envisioned use of the land.  Justice Kagan delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Alito.  Justice Sotomayor filed a dissenting opinion.

The second case is Salazar v. Ramah Navajo Chapter (11-551).  The case involves the interpretation of the Indian Self-Determination and Education Assistance Act (ISDA).  The Act allows the Secretary of the Interior to enter into contracts with tribes to provide educational and law enforcement services that the Government would otherwise provide.  The ISDA requires the Secretary to pay the full amount of contract support costs.  Tribal contractors are entitled to seek money damages under the Contract Disputes Act when a breach occurs.  The Department asserted that Congress did not appropriate enough money in several fiscal years to pay all contractors.  The Secretary then paid them on a pro rata basis.  The contractors sued.  The District Court granted summary judgment to the Government.  The Tenth Circuit reversed, holding that the Government had to pay the full amount to each contractor.  The Supreme Court affirmed the Tenth Circuit.

The Court held that Congress allocated enough money for purposes of paying the contractors and that the Department could not shift funding to other purposes under the Act.  Essentially, paying contractors is the priority when Congress makes lump sum appropriations that adequately fund the contracts under the Act.  The Court cited several cases it had decided years earlier to reach this conclusion.  Justice Sotomayor delivered the opinion of the Court, joined by Justices Scalia, Kennedy, Thomas, and Kagan.  Chief Justice Roberts filed a dissenting opinion joined by Justices Ginsburg, Breyer, and Alito.

The third case is Christopher v. SmithKline Beecham Corp. (11-204).  It concerns whether pharmaceutical workers who perform promotional work with doctors are considered to be an “outside salesman” under the Fair Labor Standards Act (FSLA) and regulations of the Department of Labor.  If so, they would not be eligible for overtime under the terms of the Act.  Each worker in this case spent about 40 hours in the field promoting products to physicians who made nonbinding commitments to prescribe company products.  The workers spent an additional 20 hours attending events and performing other tasks.  They were paid a base salary and had incentives built in based on the sales performance of the drugs in their portfolio.

The workers sued for overtime and the District Court granted summary judgment to the SmithKline Beecham.  The workers filed a motion to amend the judgment based on the Department of Labor’s interpretation of the regulations that would favor their position.  The District Court denied the motion and the Ninth Circuit affirmed, holding that the Department’s interpretation was not entitled to deference.  The Supreme Court affirmed, holding that the workers were outside salesman under the most reasonable interpretation of the Department’s regulations.

The Court notes that a Department is generally entitled to deference in interpreting its own ambiguous regulations.  The Department filed amicus briefs in lower courts advocating the position that a sale for purposes of the regulation involves a consummated transaction directly involving the employee.  Once the Court accepted the case for argument the Department changed its argument, stating that a sale only occurred when a worker actually transfers title to the property at issue.  The change in position would impose massive liability on the company for conduct that was in place well before the position was announced.  Moreover, the Department never initiated enforcement actions against any pharmaceutical manufacturer for any alleged unlawful conduct. 

Further, the way the Department announced its position, via brief, did not give the public opportunity to comment.  The statutory text is not definitive, though it offers clues within the context of particular industries as to what is a sale.  These workers qualify as outside salesmen for their promotional activities under the Act and the regulations.  Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas.  Justice Breyer filed a dissenting opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

The fourth case is Williams v. Illinois (10-8505).  It concerns the level of testimony necessary to set a foundation for DNA evidence in a criminal case, and whether the Confrontation Clause is satisfied with a state technician testifies to the work of an outside lab.  In this case Illinois State Police lab forensic specialist Sandra Lambatos testified in William’s criminal trial that she matched a DNA profile produced by outside laboratory Cellmark to a profile the state lab produced using a sample of William’s blood.  Cellmark used swab samples taken from the victim. 

The defense argued that Lambatos did not testify as to how Cellmark handled those samples nor could she vouch for Cellmark’s accuracy in their work on the profile.  As such, the defense argued that her testimony should be excluded under the Confrontation Clause as Lambatos was not competent to testify about Cellmark’s work.  The prosecution successfully argued that the testimony was admissible and any deficiencies went to weight and credibility.  Williams was found guilty and his conviction was affirmed by the Illinois Court of Appeals and the Illinois Supreme Court.  Those courts held that Lambatos’ testimony did not violate Williams’ Confrontation Clause rights because the Cellmark report was not offered into evidence to prove the truth of the matter asserted.

The Supreme Court affirmed the conviction in a pluraity where no five justices could agree on the rationale.  Justice Alito, joined by Chief Justice Roberts, and Justices Kennedy and Breyer concluded that the form of testimony did not violate the Confrontation Clause.  Experts may testify about facts known to them even if those facts are not in evidence.  One factor is that Williams’ trial was a bench trial rather than a jury trial.  The Court assumes the trial judge could understand that the testimony was not admissible to prove the truth of the matter asserted, or chain of custody evidence. 

Essentially, the qualifications a judge may have to make to a jury are understood by the judge in a bench trial.  The plurality further states that the purpose of the Cellmark report was to help identify an at-large individual rather than to build a case against someone already in custody.  The plurality attempts to reconcile this case with recent precedent that has excluded scientific testimony in similar circumstances.

Justice Thomas added his vote to affirm the conviction strictly because Cellmark’s out-of-court statements lacked the requisite “formality and solemnity” to be considered testimonial. His opinion concurring in the judgment considers at length the meaning of what is and is not testimony for purposes of the Confrontation Clause.  Justice Breyer wrote a concurring opinion.  Justice Kagan filed a dissenting opinion and was joined by Justices Scalia, Ginsburg, and Sotomayor.  [MG] 

The 2012 Edition of the Bible Has Arrived: Legal Information Buyer's Guide & Reference Manual, 16th ed. is now available

Quoting from page 22 of the 2012 Edition:

Consumer Advocacy Caucus Formed One of the most significant developments on the consumer from in many years was the formation of the Consumer Advocacy Caucus under the leadership of Michael Ginsborg and other dedicated law librarians. The caucus took form following an informal gathering of interested law librarians in Philadelphia, in conjunction with the 2011 AALL annual meeting. From a core group of about a dozen law librarians, the caucus has grown to more than 50 members. After considerable preliminary work by interested law librarians, and the circulation of a petition to AALL members that garnered the support of more than 175 law librarians, the following petition was submitted to the AALL Executive Board for its approval A Petition Of Undersigned AALL Members To AALL's Executive Board As AALL members, we petition AALL's Executive Board to approve this statement of purpose for the creation of the AALL Caucus on Consumer Advocacy: "The AALL Caucus on Consumer Advocacy will recommend to AALL that it petition appropriate governmental bodies for specific remedies to anti-competitive and unfair business practices by legal information sellers." We do not consent to any disclosure of our names as signatories. Disclosure could allow legal information sellers to retaliate against us by singling out our employers for less favorable business relations. On November 5, 2011, the AALL executive board unanimously approved the Consumer Advocacy Caucus's petition for official recognition. The petition was also endorsed by the Private Law Libraries-SIS. This spontaneous movement to take a bolder stand on consumer advocacy was prompted, among other things, by: (1) dissatisfaction with the current state of publisher practices; (2) the inadequacy of the current response by the American Association of Law Libraries and its related committees; (3) dissatisfaction with AALL's proposed Antitrust Policy which would have unfairly stifled comment and criticism of publisher practices (including pricing practices) and (4) the need for a more robust mechanism whereby members can petition government bodies for specific remedies for "specific remedies to anti-competitive and unfair business practices by legal information sellers."

Folks on standing order likely received the 2012 edition of the law librarian's best friend, the Legal Information Buyer's Guide & Reference Manual, late last week (or will soon). It has always been the best buyer's guide available but, because AALL has so utterly screwed up its Price Index by failing to ask for print supplement pricing for its last index, Ken Svengalis's work is also the only guide for estimating print supplementation costs for a law library's print budget.

Quoting from Ken's June 13th law-lib message:

I am pleased to announce the release of the 2012 (16th) edition of the "Legal Information Buyer's Guide & Reference Manual."  It's the book Kevin Gerson, Director of the UCLA Law Library, has described as "hands-down the most useful book on legal information ever written."  The book appears annually in June.  Because having accurate and up-to-date supplementation cost data is essential to making informed collection development decisions, its release date is dictated by the process of collecting, collating and publishing the prior year’s supplementation costs.   

Under our continued economic challenges, it has exactly the information your library needs to confront the rising costs of legal information.  Its genesis in 1996 was one law librarian's response to the challenges we faced then.  Those challenges have grown ever more acute with each passing year.  Page for page, the “Legal Information Buyer’s Guide & Reference Manual” contains more useful and cost-saving information than any legal product on the market.  It is the ONLY legal title that tracks supplementation costs, which is why most of our customers prefer to have it on standing order.  

It contains, among other features, the most extensive annotated bibliography of the legal treatise literature in print, combined with a buyer's guide useful to lawyers and librarians who are in either acquisition or cancellation mode.  It will allow you to carefully consider new acquisitions with full knowledge of the supplementation costs you are likely to incur, or to re-consider existing titles in your collection in light of rising supplementation costs. Consider this:  

Since the merger of Thomson and West in 1996 (and the first edition of my book), West's print supplementation costs have risen more than 330% (1995 through 2011), reflecting an average annual increase of at least 11.5%.  There has been virtually no diminution in the rate of increase for 2011, despite an economy which has brought law libraries from Maine to California to dire financial straights, and threats of closure in a number of states.  Publications in every category have seen double-digit increases.   

Consider just the National Reporter System series:  Over the past two years, for example, the cost of Atlantic Reporter advance sheets has risen 20% annually, from $1,382.50 in 2010 to $1,659.00 in 2011 to $1991.04 in 2012.  A bound volume subscription has increased from $5.407.50 in 2010 to $7,392.00 in 2012, or 36.69% over two years.  Thomson Reuters’ maintained an extremely health 27.5% profit margin in 2011 (compared to the corporate average of 8.4% since 1980) at a time when law libraries all over are struggling.   Yet, ironically, West will want us to sit down with them at a variety of receptions, luncheons, and parties at the upcoming annual meeting and ignore these glaring realities.  The expense of hosting these functions represents an infinitesimal fraction of the profits they have made off struggling law libraries, most of whose librarians cannot afford to attend the annual meeting because their libraries are so strapped for funds. 

In light of the current state of the economy and the perilous position of many law libraries across the country, the current cost and supplementation cost data in the “Legal Information Buyer’s Guide & Reference Manual” will no doubt prove an invaluable resource to libraries of all kinds.  Those of you who have been in the profession for many years will remember the former "FTC Guides for the Legal Publishing Industry."  Those guides required publishers to provide customers the last two years' supplementation costs in their promotional literature, a requirement that was often ignored.  

With the demise of the FTC Guides, and the lack of an effective replacement, the availability of this supplementation cost data is virtually non-existent, unless one asks for it specifically.  This is where the "Legal Information Buyer's Guide & Reference Manual" has stepped in to fill the breach.  After all, it's all about the supplementation, from which legal publishers derive 80-85% of their revenues.  Getting a handle on supplementation costs is the primary way in which law libraries can confront these budgetary challenges. 

We are now tracking the costs of more than 3,000 publications, including nearly 2,100 legal treatises, 128 reference titles, and hundreds of the leading state and federal publications.  The 2012 edition now includes supplementation costs as far back as 1993 and up to and including 2011 (or 2012 in the case of LexisNexis Matthew Bender).  The initial cost and supplementation costs for the years 2008-2012 are also featured in a 26-page spreadsheet in Appendix H, providing a convenient and timesaving means of conducting comparative product evaluations of all the supplemented titles we cover.   There are also reviews of more than 80 of the most significant new treatise titles and legal monographs published in 2011 and early 2012.  In addition to substantial new content, the 2012 edition includes complete updating of all pricing data, including West’s Monthly Assured Print Pricing, CD-ROM and Internet pricing, and the cost of used monographs on Amazon.com.

Shipments to all standing order subscribers were made early this week.  If you are uncertain if your library is on standing order, please e-mail us and we will confirm your status. The 2012 edition is priced at only $162.00 plus shipping and handling, reflecting our first price increase in three years, and that less than 4%, reflecting increased costs for printing and shipping.  The 2012 "Legal Information Buyer's Guide & Reference Manual" may be ordered on our web site www.nelawpress.com, ... by calling our order line (860) 535-0362, or Faxing us at (860) 535-0378.  We accept Visa, MasterCard, PayPal, or will invoice.  Additional copies shipped to the same address are only $130.00 each.  A fully searchable CD-ROM version of the book is also priced at $162.00, or $80.00 when ordered in combination with the print edition.  Libraries have found it to be a convenient means of printing out subject or state bibliographies, or any other material, for attorneys, judges, faculty and students. 

We will, again, be at the Basch Subscriptions/Reference Shelf booth at the AALL Annual Meeting in Boston, where we will be raffling off one copy per day.  Please stop by and say “hello” and enter the raffle.

Regards,
Ken Svengalis
New England LawPress

Note to FTC. No free review copy provided. I acquire every annual edition. Keep the current one in my office, the prior year's edition at home and earlier editions in the law library to answer reference questions about recommended publications. [JH]

Round-Up of Law Practitioner Blogs

Phoenix Real Estate Lawyers Blog
http://www.phoenixrealestatelawyersblog.com/
http://www.phoenixrealestatelawyersblog.com/index.xml
Examines real estate cases, news, and related topics in Arizona. Published by Platt & Westby, P.C.
 
San Diego Criminal Lawyer Blog
http://www.sandiegocriminallawyer-blog.com/
http://www.sandiegocriminallawyer-blog.com/index.xml
Discusses criminal law cases, news, and various topics related to crime defense matters . Published by Gedulin & Greany .

Naila MD Skin System Blog
http://www.acnewrinkletreatment.com/
http://www.acnewrinkletreatment.com/index.xml
Dr. Nalia Malik discusses luxury skin care solutions and products on her blog related to maintaining healthy and beautiful skin at any age nationwide. Published by Naila MD
 
California Elder Abuse Lawyer Blog
http://www.californiaelderabuselawyer-blog.com/
http://www.californiaelderabuselawyer-blog.com/index.xml
Examines elder abuse cases, news, and related topics such as nursing home negligence in California. Published by Walton Law, A.P.C.

Atlanta Injury Attorneys Blog
http://www.atlanta-injuryattorneysblog.com/
http://www.atlanta-injuryattorneysblog.com/index.xml
Examines injury cases, news, and related legal topics in Georgia. Published by Goldstein & Hayes P.C