June 30, 2012
Fashion Statements about Law Librarians
The Naughty Librarian in the Pearle Vision Commercial.
Plus A very naughty librarian.
And an assessment of the stereotypes about how librarians dress at Librarian in Fashion. [JH]
June 29, 2012
Congress and the Courts: New a-la-carte library from HeinOnline once again demonstrates the Company knows its legal bibliography
Quoting from the HeinOnline Blog post:
[The new Congress and the Courts] library focuses on development and growth of the federal courts and the judiciary as a source of original material of congressional fact finding and decision making. Decades of legislative intent, testimony, and pre-enactment history is provided in one centralized library.
Congress and the Courts features:
Congress & the Courts: A Legislative History 1787-2010 Compiled by William H. Manz
Federal Judicial Center Publications
Other Related Works, including Administrative Conference of the United States: Recommendations and Reports – Vols. 1-4, 1978-1995 (1968-1995)
Periodicals, including Federal Probation – Vols. 1-75 (1937-2011)
Links to Scholarly Articles
CFR Title 28 – Judicial Administration
The post notes that libraries on standing order for Congress & the Courts: A Legislative History 1787-2010 by William H. Manz will have complimentary access to the entire a-la-carte library in HeinOnline through December 2012. Congress and the Courts will appear as a subscribed library under one's HeinOnline account until then. For additional information, see HeinOnline's Congress & the Courts brochure.
There is still a need for expert legal bibliography in the 21st century. Once again, it is good to see that there remains one vendor in the industry that knows how to use legal bibliographic skills to create a database research service which provides relevant primary and secondary resources. HeinOnline consistly proves that legal bibliography has an important contribution to make to online legal search. Some of our very expensive search vendors could take a lesson from HeinOnline. Just because they publish this or that title doesn't automatically make those titles worthy for expensive bundled database inclusion. [JH]
Friday Fun: A Mentoring Moment for a Newbie Lawyer
A "junior lawyer for three months" experiences a very politically incorrect "mentoring" moment. From my personal experience, the language used by the senior attorney, while once common, ceased in the mid-1980s.[JH]
Opening: Law Library Director & Chief Information Officer, USC School of Law
The University of Southern California Gould School of Law seeks applicants for the position of associate dean, chief information officer, and director of the law library. The library director oversees all aspects of library and information-technology operations and services, including external relations, budget development and management, personnel management, strategic planning, and legal-research curriculum development and teaching. He or she reports to the vice dean for administration and supervises an associate dean for information technology and two associate library directors, as well as a staff that includes 9 librarians and 8 computing professionals.
The primary function of the Gabriel and Matilda Barnett Information Technology Center and the Asa V. Call Law Library is to support the teaching and research activities of the law school community, which consists of approximately 780 J.D. & LL.M. students, 45 full-time faculty members and 90 support staff. The USC law faculty is recognized as one of the most productive and interdisciplinary in the country. The law library also serves the USC community as a whole as well as the general public. The library has long been committed to a specific philosophy: providing the highest quality of service to the law faculty and students, emphasizing service over collection size.
The computing department maintains a similar commitment to excellent service. It provides a full range of technology services for the law-school community, including help-desk & desktop support, classroom support, network support, web support, student-computing support and technology management. The computing-services staff currently supports: 25 servers, 300 computers, 700 student-owned laptops, 150 printers, 500 network drops, 14 wireless-access points, 12 technology-equipped classrooms, and two video-teleconferencing systems.
Qualifications: A J.D. degree from an ABA-accredited law school and an M.L.S. (or equivalent) from an ALA-accredited program are required. The successful candidate must have at least seven to ten years management experience in an academic law library, and excellent leadership and communication skills.
Appointment Rank: Law Librarians at USC have faculty status and are appointed on a continuing appointment track with rank commensurate with experience and qualifications. The successful candidate will also receive a courtesy appointment as an adjunct professor of law.
To apply: We anticipate interviewing candidates at the July AALL conference. Please submit a cover letter, curriculum vitae and the names and contact information for three references via the following link: https://jobs.usc.edu/applicants/Central?quickFind=65190.
USC values diversity and is committed to equal opportunity in employment.
June 28, 2012
Supreme Court Action Today: The Mandate Is Constitutional, Lying Is Constitutional, And Another Ooops
What a difference an hour makes. I checked in with CNN this morning just before I left for the office and saw the headline that the individual mandate was struck down. I get to downtown Chicago and every news site trumpets that the mandate is upheld. I guess that’s what happens if one reads the first few paragraphs of the syllabus. So, let’s take a look at the opinion and try to figure out just what happened here.
The case is question is National Federation of Independent Business v. Sibelius (11-393). The issue is the constitutionality of the Affordable Care Act and specifically the individual mandate which requires citizens to buy insurance or pay a penalty to the government. There are multiple other issues which were brought out in the several days of oral argument. The Court dealt with them thusly:
- The Anti-Injunction Act does not bar the suit. The Court examines the rationale between calling something a tax and a penalty and concludes the “penalty” for not buying health insurance does not have to be treated as a tax for purposes of the Act.
- The individual mandate is constitutional under the Tax Clause rather than the Commerce Clause. Calling the levy a “penalty” may defeat the Anti-Injunction Act, but the characteristics of the application of the levy control its constitutionality. Though the levy is designed to control conduct, there are other “taxes” which do the same thing, such as discouraging the purchase of foreign goods in favor of developing domestic industries, liquor and cigarette taxes that discourage consumption, and taxes on selling marijuana and sawed-off shotguns. Labels do not affect the Court’s ability to measure the exercise of power against the Constitution. Further analysis shows the levy is constitutional under the narrowest interpretation of Congress’ power to tax.
- The Judgment of the Court concludes the provision which denies the states all Medicare money if they do not comply with the provisions of the ACA is unconstitutional. Other provisions of the ACA are not affected by this.
I’ve tried to summarize, albeit briefly, the net effect of the decision. Chief Justice Roberts wrote the main opinion, but five justices did not join all of it. The opinion of the Court is contained in Parts I, II, and III-C where the Chief Justice was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justices Breyer and Kagan joined in Part IV, which is the Medicare section. Parts III-A, III-B, and III-D are all Chief Justice Roberts. Justice Ginsburg filed a separate opinion concurring in part, concurring in the judgment in part and dissenting in part in which Justice Sotomayor joined, and also joined by Justices Breyer and Kagan as to Parts I, II, III, and IV. Justices Scalia, Kennedy, Thomas, and Alito filed a dissenting opinion. Justice Thomas dissented separately, agreeing with Chief Justice Roberts analysis on the limits of the Commerce Clause power. Got all that?
The only other point I would raise about this case is that it is a surprise that Chief Justice Roberts wrote the main opinion in the case upholding the ACA. Many commentators thought that Justice Kennedy would take his usual place as the swing vote in a 5-4 decision and predicted that he would uphold the law. Wrong and wrong, though the law was upheld.
The second anticipated case from today is United States v. Alvarez (11-210). The case involves the constitutionality of the Stolen Valor Act of 2005 which makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved. The Court describes the defendant as a habitual liar who in fact falsely claimed that medal. He pleaded guilty to that charge and reserved the right to appeal the constitutionality of the statute. The Ninth Circuit declared the statute unconstitutional. The Supreme Court affirmed.
The Court stated that exceptions to the First Amendment are few and narrow. Even defamation cases are based on more than lying in that the lying must be knowing and reckless. The Stolen Valor Act targets nothing more than falsity. There are other methods for counteracting the lying, such as public ridicule for making the false claim, compiling an accurate public database of medal winners for common perusal, and others. Essentially, criminalizing lying by itself violates the First Amendment. Justice Breyer’s opinion suggests a statute that penalizes the harm done by the lying could sustain a constitutional challenge.
This is another case where there is a plurality. Justice Kennedy wrote the opinion announcing the judgment of the Court, joined by Chief Justice Roberts and Justices Ginsburg, and Sotomayor. Justice Breyer filed an opinion concurring in the judgment, joined by Justice Kagan. Justice Alito filed a dissenting opinion joined by Justices Scalia and Thomas. Here is an excerpt from the dissent:
Building on earlier efforts to protect the military awards system, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom of speech. The statute reaches only knowingly false statements about hard facts directly within a speaker’s personal knowledge. These lies have no value in and of themselves, and proscribing them does not chill any valuable speech.
By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.
With language like that, would the dissent uphold, say, hate crime speech or anti-bullying laws under the First Amendment?
The third case is First American Financial Corp. v. Edwards (10-708). The case was dismissed on the grounds that certiorari was improvidently granted. Ooops I did it again, I granted you cert when I should have declined, with apologies to Britney Spears.
Supreme Court end-of term bonus: Stephen Colbert comments on United States v. Arizona, with specific emphasis on Justice Scalia’s dissent.
On Scalia's (and Garner's) Reading Law: The Interpretation of Legal Texts
|Because it hasn't been ProView-ed (yet?).
Perhaps Justice Scalia doesn't use WestlawNext.
Or perhaps TR Legal wouldn't give the authors
click-thru payments for advertising WLN.
From the blurb: "In this groundbreaking book..." yadda yadda. Available at WestMart for $49.95 and Amazon for $44.90. Luckily I pre-ordered a copy from Amazon for $37.60. Perhaps I should have waited until it was on the "Deal of the Day" e-rack 'em up because someone is cashing in his chips.
Do note the book's disclaimer:
The views expressed in this book are those of the authors as legal commentators. Nothing in this book prejudges any case that might come before the United States Supreme Court.
I think the message here is that SCOTUS brief writers should first cite to an opinion by Justice Scalia and then tack on a see also reference. Always the prankster during oral argument, we might hear Scalia say, "oh, Garner wrote that section." [JH]
HathiTrust Better Than Google for Full-Text Access to Federal Gov Docs
Quoting from the conclusion of A Comparison of HathiTrust and Google Books Using Federal Publications by Laura Sare (Texas A&M), 2 Practical Academic Librarianship 1, 21-22 (2012):
Since most users want access to full-text, HathiTrust offers the best database for finding government documents after 1923. Users concerned with privacy issues may prefer HathiTrust or want to use Google Books while logged out of their Google account. Those familiar with the Google eBookstore or who want the added functionality of data visualization to read and provide reviews may prefer Google Books. Regarding record overlap, HathiTrust had a greater percentage of publication records also available in Google Books, but with fewer records overall, while Google Books had records for more government documents than HathiTrust, and therefore a smaller overlap range. These results show that if a user cannot find a federal document in HathiTrust, Google Books might have a “Snippet” view record for that document and that record may provide more information for users to determine if the document is one that would be useful to them. However, caution is also advised for Google Books’ records, as metadata mistakes on the full-text and “Snippet” view records should be taken into account by librarians and users alike.
Free Government Information highlights the reasons for this conclusion at Comparing Hathitrust and Google Books as repositories of government documents. [JH]
June 27, 2012
Will Market Forces Affect Law Faculty Salaries?
The Wall Street Journal published a story on Sunday called Should Tenure For College Professors Be Abolished? It comes in the usual point-counterpoint discussion where two individuals lay out their case for and against. The standard arguments come up. Tenure preserves academic freedom is one. Tenure protects faculty who may be good at publishing but poor at teaching. Pick a side.
One quote from the pro-tenure side, represented by Professor Cary Nelson of the University of Illinois caught my eye:
Critics of tenure argue that the system rewards research, not teaching. But pay comparisons indicating that research is more highly valued can be faulty: Professors in some fields are simply paid more than those in other disciplines, regardless of the amount of research they do, and different fields lend themselves to different proportions of classroom and research time. So direct lines between pay and classroom time are difficult to draw.
That got me thinking. I wrote last August on the faculty salary survey from the Chronicle of Higher Education which showed law faculty as the highest paid in academics. The average salary for a full law professor is listed at $134,162. One of the common justifications for that high salary I’ve heard for as long as I’ve been in academics is that law schools have to pay market rates for faculty salaries as a school competes with the legal profession for the best talent. I grant that the statement is anecdotal, but I have heard law school deans say it more than once. I just wonder if they say that to university presidents. And I wonder if university presidents are going to start questioning that line of reasoning.
There is no doubt that the legal job market for new graduates is bad. There are plenty of stories that indicate that large firms are either deferring associate hiring or paying less for associate talent, or both. Essentially, the current market for legal talent doesn’t support the kind of salaries that firms paid out before the recession hit. There is commentary that suggests the situation isn’t going to change much even if the economy picks up.
As the number of LSAT takers and law school applicants has dropped significantly, at least 10 law programs have announced they are reducing the number of seats in their entering classes. That means reduced revenue which tends to lead to cuts in the program. Cuts in the program usually mean staff reduction. So I’ll just throw it out there: will law schools adjust their faculty salary structure in light of current market forces?
I’m not suggesting that law faculty do not necessarily deserve their salaries. I’m sure law schools consider their faculty offers and rates of pay on any number of factors. I would think, though, the current state of the legal market would be one of them, or will be at some point. My impression is that once cost cutting gets to the faculty, we’ll know that things are really getting bad for the schools. I’m looking forward to the next salary survey in the Chronicle to see where this is heading. Will faculty status defy economics? [MG]
What Publishers Do
... according to Random House. For commentary on this video, see Jeremy Greenfield's Random House Explains What Publishers Do. [JH]
A Copyright-Free Congratulations to the 2012 AALL Hall of Fame Inductees
Long-time friend to the law library community and one of the few vendor executives would could write a "Dear Colleagues" letter without recipients ROTFLMAO, Bill Hein will be inducted into AALL's Hall of Fame this year. I seriously doubt a description of his many contributions needs to written. Barbara Bintliff, Michael Chiorazzi and Erwin Surrency also will be inducted into the Hall of Fame. Certainly well-deserved but since I do not want to violate "© 2012 Margaret K. Maes" for her June 2012 AALL Spectrum article (announcement by the AALL Awards Chair), you will have to read about their contributions here.
Endnote. Who in AALL-land makes these ROTFLMAO copyright decisions? (Do note that I am not suggesting that our part-time employed vendor liaison and the E-Board's full-time go-to person had anything to do with this.) Even if one assumes this article was not produced in an official capacity as AALL Awards Chair where copyright would be owned by AALL, perhaps AALL-landlubbers are unfamiliar with the seafaring ways of Creative Commons licenses. From the Creative Commons License Chooser: "For those new to Creative Commons licensing, we've prepared a list of things to think about." [JH]
2012 Roy M. Mersky Spirit of Law Librarianship Award Recipients: Leah Sandwell-Weiss and Lynn Wishart
Congratulations to Leah Sandwell-Weiss, Reference Librarian at the University of Arizona College of Law and, Lynn Wishart, Associate Dean of the Law Library at Cardozo School of Law.
Quoting from the announcement by the Roy M. Mersky Spirit of Law Librarianship Award Committee (Richard Leiter of the University of Nebraska College of Law, Barbara Bintliff of the University of Texas School of Law, Dick Spinelli of William S. Hein & Co., and Sara Sonet of the Supreme Court of the United States and the 2011 Award recipient):
Leah Sandwell-Weiss has a significant record of service to the immigrant community in Southern Arizona. Recently ordained a deacon in the Episcopal Diocese of Arizona, Leah is deeply involved in the Pima County Interfaith Council, an independent organization of congregations, schools and not-for-profit organizations that embraces the rich diversity of Pima County, Arizona and works for a fuller participation ini our democracy and toward the creation of a more just society. In recognition of her efforts she was presented with the Corazón de Justicia award by the Coalicion de Derechos Humanos for her work on immigration.
Lynn Wishart, too, has a significant record of service to the underprivileged. For years Lynn was coordinator of the outreach programs at Fifth Avenue Presbyterian Church in New York City. The programs include a Homeless Shelter, Habitat NYC, Low Income Advocacy, Special Events for the Homeless, Meals on Wheels, Project Find, Bowery Mission, Crop Walk, Mission Trips and Benevolence (charitable grants to individuals and groups). Lynn’s work as coordinator has involved establishing procedures, drafting committee manuals and organizing the groups for efficiency and excellence. Lynn presently chairs the Shelter Committee and serves on the East Side Congregations for Housing Justice advocacy center.
June 26, 2012
How the proposed Rutgers/Rowan merger affects my view of Seton Hall Law.
There has been talk of a merger between Rutgers University and Rowan University for months, the details of which are somewhat confusing. According to former New Jersey Attorney General, John Farmer, Jr., the "New Jersey Medical and Health Sciences Education Restructuring Act" will split "Rutgers-Camden from the rest of the university and (Rutgers-Camden will be) funded separately; control will reside in a separate board for Rutgers-Camden and a joint board with Rowan University." While this seems unduly complicated, I wonder what it means for my alma mater, Rutgers School of Law - Camden.
Does "Rutgers Law - Camden" become "Rowan Law?" If it does, it'll make things complicated for Rutgers Law- Camden graduates, new and old. In one instance, I would have to explain that I attended Rutgers Law, that there used to be two Rutgers law schools, but the one I attended is now Rowan Law, instead of having to explain that Rutgers has two seperate law schools, and that I graduated from the one closer to Philly (afterall, New Jersey is the mass between Philadelphia and New York). Okay, so semantics. And, afterall, I'm not sure that the merger would force a change of the name of Rutgers School of Law - Camden. Would the merger affect the education I would have recieved had I attended Rutgers after the proposed merger? I doubt that there would be an immediate affect, if one assumes that a legal education is primarily the result of the efforts of a law school faculty. While I cannot tell you that I found the instruction in all of the courses in which I enrolled to be above par,I believe that a number of professors truly shaped my legal educatuion in a way in which the same would not have been true at other institutions. Thanks to Michael Carrier (Intellectual Propery); Dane Perry (Religion and the Law); Sandra Gavin (Evidence); Earl Maltz (Conflic of Laws); Richard Singer (Criminal Procedure); Robert Williams (Statutory Interpretation); Camille Andrews (Antitrust and Independant Study in the interpretation of the federal antitrust statutes), my legal education may not have been the same. (To be fair though, the quality of the legal research instruction was sub-par in my humble opinion. Let your librarians teach research skills; you'll be better for it. Hays Butler was my Legal Research professor at Rutgers for my MLIS and he was far better than my LRW professor.). So (notwithstadning the legal research instruction) if the faculty remain and are replaced by equally qualified teachers (which may prove to be difficult should the merger ensue) I have faith that the little law school in what is perhaps the worst little city in America will continue to provide a quality legal education to its student body. That being said, prospective students may disagree as applications at Rutgers Law - Camden are reportedly down. While the stats reveal a sad fact, it might be worse; prospective students might choose Seton Hall instead, where the law library director doesn't event hold a library degree. So my advice to prospective law students in New Jersey is: Don't go to Seton Hall. (DCW) P.S. The merger in no way affects my view of Seton Hall Law.
Does "Rutgers Law - Camden" become "Rowan Law?" If it does, it'll make things complicated for Rutgers Law- Camden graduates, new and old. In one instance, I would have to explain that I attended Rutgers Law, that there used to be two Rutgers law schools, but the one I attended is now Rowan Law, instead of having to explain that Rutgers has two seperate law schools, and that I graduated from the one closer to Philly (afterall, New Jersey is the mass between Philadelphia and New York). Okay, so semantics. And, afterall, I'm not sure that the merger would force a change of the name of Rutgers School of Law - Camden.
Would the merger affect the education I would have recieved had I attended Rutgers after the proposed merger? I doubt that there would be an immediate affect, if one assumes that a legal education is primarily the result of the efforts of a law school faculty. While I cannot tell you that I found the instruction in all of the courses in which I enrolled to be above par,I believe that a number of professors truly shaped my legal educatuion in a way in which the same would not have been true at other institutions. Thanks to Michael Carrier (Intellectual Propery); Dane Perry (Religion and the Law); Sandra Gavin (Evidence); Earl Maltz (Conflic of Laws); Richard Singer (Criminal Procedure); Robert Williams (Statutory Interpretation); Camille Andrews (Antitrust and Independant Study in the interpretation of the federal antitrust statutes), my legal education may not have been the same. (To be fair though, the quality of the legal research instruction was sub-par in my humble opinion. Let your librarians teach research skills; you'll be better for it. Hays Butler was my Legal Research professor at Rutgers for my MLIS and he was far better than my LRW professor.). So (notwithstadning the legal research instruction) if the faculty remain and are replaced by equally qualified teachers (which may prove to be difficult should the merger ensue) I have faith that the little law school in what is perhaps the worst little city in America will continue to provide a quality legal education to its student body.
That being said, prospective students may disagree as applications at Rutgers Law - Camden are reportedly down. While the stats reveal a sad fact, it might be worse; prospective students might choose Seton Hall instead, where the law library director doesn't event hold a library degree.
So my advice to prospective law students in New Jersey is: Don't go to Seton Hall. (DCW)
P.S. The merger in no way affects my view of Seton Hall Law.
Web Cites in Supreme Court Opinions
The Supreme Court opinions yesterday generated a lot of news coverage as end-of-term opinions usually do. That coverage missed a point. Two of the three opinions contained research citations that appear to be a trend at the Supreme Court. These are citations with links to web sites and pages that contain information that supports the view of the opinion author (and the Court by extension). For example, Justice Kagan cites statistics from Human Rights Watch as part of her analysis on state practices giving life without parole to juvenile murderers in Miller v. Alabama. This is from footnote 10:
According to available data, only about 15% of all juvenile life-without parole sentences come from those 15 jurisdictions, while 85% come from the 29 mandatory ones. See Tr. of Oral Arg. in No. 10–9646, p. 19; Human Rights Watch, State Distribution of Youth Offenders Serving Juvenile Life Without Parole (JLWOP), Oct. 2, 2009, online at http://www.hrw.org/news/2009/10/02/state-distribution-juvenile-offendersserving-juvenile-life-without-parole (as visited June 21, 2012, and available in Clerk of Court’s case file). That figure indicates that when given the choice, sentencers impose life without parole on children relatively rarely. And contrary to THE CHIEF JUSTICE’s argument, see post, at 5, n. 2, we have held that when judges and juries do not often choose to impose a sentence, it at least should not be mandatory.
Justice Kennedy has 5 citations to web sources in the Arizona v. United States opinion, though all of them are to government web sites such as the Department of Homeland Security or that of Immigration and Customs Enforcement (ICE).
There is a paper on SSRN called Confronting Supreme Court Fact Finding by Alli Or Larsen that examines this trend of citing outside research in detail. Here’s the abstract:
Supreme Court justices routinely answer factual questions about the world – such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that these findings are informed through the adversary system: by reviewing evidence on the record and briefs on appeal. Routinely, however, the justices also engage in what I call “in house” fact-finding. They independently look beyond the briefs and record to answer general questions of fact, and they rely on their discoveries as authorities. To be sure, judges have always done this, and the Federal Rules of Evidence contain no rule restricting it. But times have changed. The world has recently undergone a massive revolution in the way it receives and evaluates information. No longer do justices need to trek to the library to look up factual questions. Instead they can access virtually infinite amounts of factual information at the click of a mouse.
This article discusses how that change in technology has and will affect the Court’s fact-finding practice. It collects over 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record. These are not insignificant rarities: almost 60% of the most important Court opinions in the last ten years rely on in house research at least once. The article then examines the potential dangers of in house fact finding in the digital age – specifically the possibility of mistake, the systematic introduction of bias, and notice/legitimacy concerns. It concludes that these concerns require an update to our approach to Supreme Court fact finding. It then offers two independent and contrasting solutions: new procedural rules that restrict reliance on factual authorities found in house, or alterations to the adversary method to allow for more public participation.
One of Larsen’s major concerns is that the research conducted by Justices or staff is outside the record of the case. As a reference librarian, I find the concept of a Justice relying on the web for opinion fodder (if I can call it that) interesting. Law schools tend to teach concepts of authority and precedent. When it comes to the web, we have to add site reputation, permanence of the information, the methodology used to collect the information, and other factors that affect the reliability of the web-sourced material. I don’t mean to criticize Human Rights Watch or Justice Kagan for citing the organization’s web site, but it seems implicit that she accepts that information to the point where she is willing to rely on it to support a position. Should we simply accept the information because it is there in the opinion?
When a Justice cites a case or transcript, we know the significance of that citation independent of its use in the case. When it comes to generic information from web sites, we’re not clear on its legal significance until it is used in the context of the opinion. Then again, does the non-legal information help shape the context or vice versa? As thinking about that makes my head hurt, I’ll leave that to someone else to sort out.
Larsen suggests ways in which the practice of web citations could be curtailed, by rule or other methods. I think there is another possible outcome, and that is for counsel to cite information from the web in briefs and arguments. Supreme Court Rule 24.3 states:
3. A brief on the merits may not exceed the word limitations speciﬁed in Rule 33.1(g). An appendix to a brief may include only relevant material, and counsel are cautioned not to include in an appendix arguments or citations that properly belong in the body of the brief.
Relevant material isn’t defined, though I wonder, if a Justice can find a web site useful, why not counsel? It’s all in the strategy, I suppose. Let’s see if law schools teach the web as a source for arguments. [MG]
The Advance of the “No Touch” Sales Model: On obsolescence in the vendor-buyer "partnership"
Every major legal publisher has an eCommerce site for purchasing products. We routinely see this in the advertising spam that fills our email boxes with “Deals of the Day” and time-sensitive discount codes for executing multiple purchases via vendor websites. This is called “no touch” sales. By “no touch” is meant the automated processing of sales transactions – no labor cost expensive human interaction required on the vendor side of this “partnership.”. Just “click” to make the purchase and input the necessary billing data. (Don't be surprised if billing data is automatically filled in the online order form some day.) It's the Amazon model.
The difference is that Amazon has always been a “no touch” seller. Our legal vendors have not. Will we see the day when real human beings will only be servicing uber large accounts and the rest of us will be “no touched” for print standing orders and online licensing? I think it is very possible that we will.
Downsizing sales forces and reorganizations of sales territories is already becoming an almost annual event. It is not beyond the realm of the industry’s cost-savings objectives that the only humans in a sales force will be those who hunt for new accounts in the field. Why? Could it be because the MBA-types who are calling the shots fail to understand the sales relationship between vendor field reps and buyer reps? Could it be because they never received an education in sales in B-Schools? Could it be because all they understand about a sales force is that they have to meet in Las Vegas every year?
It certainly can be the objective of some vendors to make their field reps obsolete and hopefully make well-informed buyer reps also obsolete by way of No Touch eCommerce sites. Just market sales pitches to ill-informed individual consumers. At the moment, West Mart is leading the vendor pack in implementing “no touch” sales by way of its eCommerce site and its OnePassYourAss scheme. Will other vendors follow to this extreme into the twilight zone of mutual obsolescence because the human factor just doesn’t compute in the business model for sales? [JH]
June 25, 2012
Supreme Court Action Today: Immigration, Finally!, Sentencing Children, and State Campaign Finance Laws
The Supreme Court issued three opinions this morning. The health care case was not one of them. The Court, however, stated that the term will end Thursday, so the wait for that case will be short. The blockbuster immigration case pitting state’s rights against the federal power to preempt state law came out mostly in favor of the federal government. The case is Arizona v. United States (11-182).
Four sections of Arizona’s controversial S.B 1070 law were at issue. These are:
- Section 3: Making it a state misdemeanor for failure to comply with federal alien-registration requirements;
- Section 5(C): Making it a state misdemeanor for an unauthorized alien to seek or engage in work in Arizona;
- Section 6: Authorizing state and local officers to arrest without a warrant an individual the officer has probable cause to believe that individual has committed a public offense making that person removable from the United States;
- Section 2(B) requiring officers conducting a stop, detention, or arrest to verify the person’s immigration status.
The District Court issued a preliminary injunction that barred enforcement of these provisions and the Ninth Circuit affirmed. The Supreme Court agreed that the first three were preempted by the federal government’s “broad, undoubted power” to regulate naturalization as derived from the Constitution, Art. I, §8, cl. 4, and the Government’s inherent sovereign power to control and conduct foreign relations. Those powers give the Government broad discretion in exercising removals.
The Supremacy Clause gives Congress the power to preempt state law when a statute contains a express preemption provision. Two other justifications apply: when Congress has determined that a particular field must be governed exclusively by federal law, or when State law conflicts with federal law to the point where State law stands as an obstacle to the execution of that law or frustrates the purposes and objectives of that law.
Congress has left no room for States to regulate the area of alien-registration. Section 3 fails under the Court’s analysis. Section 5(C)’s criminal penalties conflicts with the federal regulatory system. The Immigration Reform and Control Act of 1986 (IRCA) imposes criminal penalties on employers and civil penalties on aliens seeking unauthorized employments. IRCA’s preemption provisions do not speak on whether additional penalties may be assessed. The Court states that the statute does not prevent the application standard preemption principles. The text, structure, and history of the law indicate that Congress decided additional criminal penalties are inappropriate. Section 5(C) is an obstacle to IRCA. The arrest power under §6 is an obstacle to the federal regulatory scheme as well. It would provide state officers with greater arrest authority with no instruction from the Federal Government. State agents may work with federal officials in apprehension, detention, and removal of aliens. Federal law does not, however, give state officers unilateral power to detain individuals.
Section 2(B) survives because state courts have not had an opportunity to construe its application and because it contains three express limitations on its application. A detainee is presumed not to be an illegal alien with the proper identification; racial profiling is not allowed except to the extent permitted by the State and Federal Constitutions; and the section’s provisions must be implemented consistent with federal law. State agents consult with federal agents under the regulatory scheme in place and the mandatory consultation requirement does not upset that scheme. The Court specifically stated that §2(B) can be challenged later if it is applied in a way that violates the Constitution or federal immigration law.
Justice Kennedy delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, and Sotomayor. Justices Scalia, Thomas, and Alito filed opinions concurring in part and dissenting in part. Justice Kagan did not participate in the case. Justice Scalia’s opinion singles out for criticism the President’s recent announcement of a suspension of certain aspects of immigration enforcement. He questions whether state would join the union, he says, if the Court’s ruling were in the Constitution.
The second case is Miller v. Alabama (10-9646). It consolidates two cases, one from Alabama and one from Arkansas where a 14-year-old was convicted of murder and sentenced to a mandatory term of life imprisonment with no possibility for parole. The question is whether these outcomes violate the Eight Amendment’s prohibition of cruel and unusual punishments. The state appellate courts in both cases said no. The Supreme Court disagreed and said that the Eighth Amendment forbids a sentencing scheme mandating life in prison without possibility for parole for juvenile homicide offenders.
The Court examines two lines of cases to come to its conclusion. One line has banned sentencing practices based on the mismatches between culpability of a class of offenders and the severity of the punishment. These cases dealing specifically with juveniles are concerned with their lesser culpability. Case law interprets the Eight Amendment to prohibit capital punishment for children and life without parole for non-capital cases. In this situation, life without parole is likened to the death penalty. The second line of cases requires sentencing authorities to consider the characteristics of a defendant and the details of the crime before imposing a death sentence. The analysis of these cases leads to the conclusion that the Eight Amendment applies here.
The State argued that there is a consensus among the states with 29 of them having the same statutory scheme authorizing life without parole for juveniles. The Court rejected the argument noting that decisions by prosecutors and judges which transfer juvenile offenders to adult court sometimes has the effect of a light or severe punishment depending on the decision and the state transfer scheme. The Court said that the inconsistency in the approach questioned whether a legislature had endorsed a given penalty for a juvenile offender.
Justice Kagan wrote for the majority joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Breyer filed a concurring opinion joined by Justice Sotomayor. Chief Justice Roberts filed a dissenting opinion joined by Justices Scalia, Thomas, and Alito. Justice Thomas filed a dissenting opinion joined by Justice Scalia. Justice Alito filed a dissenting opinion joined by Justice Scalia. In this day of social media, it could be said that Justice Scalia friended all of the dissents. Justice Thomas, by the way, viewed the Eight Amendment as only covering torturous methods of punishment. 14 year-olds were subject to trial and punishment as adult offenders at the time of the adoption of the Constitution. Mandatory life imprisonment would hardly be seemed cruel and unusual at that time.
The third case is American Tradition Partnership v. Bullock (11-1179). It’s a Per Curiam decision that applies the holding of Citizens United v. Federal Election Commission to the states. As the Court states, “There can be no serious doubt that it does.” Perhaps not, though Justice Breyer dissents, joined by Justices Ginsburg, Sotomayor, and Kagan. That makes it 5-4. (The original post read 6-3. Thanks to all who noticed.) [MG]
George Washington's Annotated US Constitution Returns to Mount Vernon
Just a quick follow-up to Friday's post about Christie's auction of George Washington's annotated copy of the Constitution and Bill of Rights. The auction house's estimated value was between $2M and $3M but it sold for $9,826,500. The new owner is the Mount Vernon Ladies' Association which owns and maintains Washington's Mount Vernon estate. The book will become part of the Fred W. Smith National Library for the Study of George Washington slated to open in 2013. [Press release]
The Mount Vernon Ladies' Association took possession of George Washington's estate in 1860. Whether or not the book was part of the estate at the time is unclear. The BBC reports that the book was sold at auction to a private collection in 1876 and was sold once more in 1964 before Friday's auction. [JH]
Exposing Potential Buyers to eBooks by Lending Them
This past year, the online resources with the highest public profile are e-books and e-readers. As demand for e-books soars, libraries of all sizes have added e-books to their collections. In the 2011-2012 study, 76.3 percent of libraries report offering access to e-books, up from 67.2 percent in 2010-2011 and 38.3 percent in 2007 (the first year this question appeared in the study). Additionally, e-readers have increasingly become a fixture in public libraries, with 39.1 percent of outlets providing access to such devices. Increasing e-book circulation statistics is likely attributed to a growing awareness of the availability of e-books at public libraries and Kindle’s compatibility with OverDrive, the subscription service that the majority of libraries with e-book collections use.
But according to Pew Internet's Libraries, patrons, and e-books survey "12% of readers of e-books borrowed an e-book from the library in the past year. But a majority of Americans do not know that this service is provided by their local library."
- 58% of all library card holders say they do not know if their library provides e-book lending services.
- 55% of all those who say the library is “very important” to them say they do not know if their library lends e-books.
- 53% of all tablet computer owners say they do not know if their library lends e-books.
- 48% of all owners of e-book reading devices such as original Kindles and NOOKs say they do not know if their library lends e-books.
- 47% of all those who read an e-book in the past year say they do not know if their library lends e-books.
Pew's survey also found that e-Book public library borrowers' expectations are not always being met for a number of reasons:
- 56% of e-book borrowers from libraries say that at one point or another they had tried to borrow a particular book and found that the library did not carry it.
- 52% of e-book borrowers say that at one point or another they discovered there was a waiting list to borrow the book.
- 18% of e-book borrowers say that at one point or another they found that an e-book they were interested in was not compatible with the e-reading device they were using.
One can make the case that eBook borrowers are not aware of the general trade industry's relucant to provide public libraries with lending copies of eBooks under a model similar to pBooks. Public library patrons expectations are based on their experience with the availability of borrowing pBooks. Since Pew's survey found that "58% of Americans have a library card, and 69% say that their local library is important to them and their family" one can expect user demand for eBooks to increase.
Pew's findings indicate that library card holders use more technology, and library card holders report that they read more books. The survey also found that many library patrons would like to learn more about borrowing eBooks.
- 46% of those who do not currently borrow e-books from libraries say they would be “very” or “somewhat” likely to borrow an e-reading device that came loaded with a book they wanted to read.
- 32% of those who do not currently borrow e-books say they would be “very” or “somewhat” likely to take a library class on how to download e-books onto handheld devices.
- 32% of those who do not currently borrow e-books say they would be “very” or “somewhat” likely to take a course at a library in how to use an e-reader or tablet computer.
Learning how to use an eReader or tablet computer is just one facet of the role public libraries play in providing tech training for patrons. According to ALA:
- Overall, 90.2 percent of public libraries offer some type of formal or informal technology training:
- Over 44 percent of libraries offer formal technology training classes. This increases to 63.2 percent for urban libraries.
- Over one-third (34.8 percent) of libraries provide one-on-one training by appointment.
- A large majority (82.7 percent) of libraries offer informal point-of-use training assistance.
- In all, over 36 percent of public libraries report increased use of technology training classes for patrons.
Being the source for tech training and digital literacy for members of the public, one can make the case that public library may enhance the sale of eBooks and eReaders to personal consumers if the general trade industry moved to a more reasonable lending solution for eBooks. Sales of eReaders and tablets and eBooks may increase after wider exposure to patrons in a public library setting.
Lending Law eBooks. The same argument can be made for law libraries' user populations. Absent a lending solution to expose and educate library users in the benefits of enhanced law eBooks and their eReader platforms, sales of single copy Law eBooks to individual practitioners could be less than what vendors are hoping for. Lexis is the only eBook-eLending publisher that has realized this right now. The eCirculation solution offered by Lexis has also solved the format compatiblity problem for user eReaders because lending copies of Lexis eBooks are available in both epub and mobi formats at no additional cost to the lending library. [JH]
June 24, 2012
Round-Up of Law Practitioner Blogs
South Florida Criminal Lawyers Blog
Las Vegas Injury Attorney Blog
Examines injury cases and news, as well as employment law matters in Nevada. Published by Cohen & Padda
Atlanta Business Litigation Lawyer Blog
Examines business cases, news, and related topics such as employment law and litigation in Georgia. Published by The Golden Law Firm LLC.
Tampa Bay Criminal Lawyer Blog
Discusses criminal cases, news, and related crime defense topics in Florida. Published by Pearlman & Tetreault
New York Restaurant Lawyers Blog
Examines legal topics related to the restaurant industry such as lawsuit risk reduction and liquor license regulation in New York. Published by The Law Offices of David A. Gabay.