Law Librarian Blog

Lost in the Stacks with Amps

Six Brooklyn librarians play in a jazz and blues band called Lost in the Stacks. They perform at book festivals and public library branches in New York City according to Shush! Brooklyn librarians form band and rock out. 3 Geekster Greg Lambert wants to sit in the next time he is in New York City. LLB-er Mark Giangrande also might want to jam with the band. [JH]

Books in Browsers

Books in Browsers 2012: Building the Next Book will take place October 24-26, 2012 in San Francisco. With interest running high in Law eBooks among law librarians as evident by AALL programming, some may find several of the Books in Browsers 2011 archived video presentations worth viewing ahead of Boston 2012. If interested, go here. [JH]

"Friday Fun": The Pre-Sentencing Hearing for the Librarian Judged Obsolete: Something to think about while visiting exhibits at AALL Boston 2012.

Screen capture taken on June 30, 2012.

After publication of The Advance of the “No Touch” Sales Model: On obsolescence in the vendor-buyer "partnership" on June 26, 2012, which included a video excerpt from the Twilight Zone's 1961 Obsolete Man episode, several LLB readers asked me to post the earlier portion of the episode that contained the court scene for the librarian who was judged obsolete and ultimately sentenced to death. One email requestor, who asked for anonymity for reasons that should be obvious to all, thought it would be approprate to do so because of AALL's website promotion for visiting the exhibit hall. "Talking to booth bunny experts, really?" 

Considering the topic addressed in the "No Touch" sales model post, I concur with the requests for posting the below video. It's categorized as a "Friday Fun" post to recognize that at least one uber vendor's strategic objective is clearly striving to make law librarians, also known as well-informed buyer reps, obsolete by following the Amazon model for eCommerce "no touch" retail sales to the individual consumer under its OnePassYourAss billing scheme. [JH]

No more paper, electronic books.

I was informed by Westlaw that come June 2013 the Westlaw Printer Program for academic customers would come to a close. West cited both the cost of the program and its substantial environmental impact, but explained that the law school has the option of assuming owenership of the printers recieved from Westlaw. At first, I was a little more than disappointed. I doubted that the environmental impact had much to do with West's decision to can the program. Afterall, the law school could choose to assume the printers themselves. It is not that the ability to print is going away but rather just the supply of "free" toner and paper that will cease. Nor was I convinced that WestlawNext's viable alternative to prinitng made much sense either. The letter stated, "The foldering and sharing capability within WestlawNext, which is available to students in 100 percent of U.S. law schools, now provides a viable alternative to printng lengthy documents and storing hard copies in paper folders." West noted that with WLN, users also have the highlight, annotate and store documents and snippets in folders.The letter then went on to say that as a result of these new capabilities, West has "already seen a significant decline in printing amoung all WestlawNext users, including law students."

So let me get this right. There has been a significant decline in the use of printing, which means that ending the program will lessen the negative environmental impact? If there's been a significant decline by WestlawNext users, wouldn't that mean that cost and environmental impact are less of a concern than it would have been prior to the introduction of these features?

More interestingly, it noted that there was a decline in printing by WLN users, but said nothing about classic WL users.  Is this just a way of getting people off WL and onto WLN? Let me be clear, I rather enjoy working with WLN, but for pedagogical reasons, I prefer to train students on WL before getting them hooked on WLN. As I've said before, WLN is a great tool for well-trained legal researchers, but it allows students to think they can fly before they can crawl. And I like to operate under the assumption that when current law students get out into practice, they may not have the option of using Next at their place of business, and must use Classic instead. I have found that if one can use Classic Westlaw, one can easily switch to WestlawNext (as long as they understand to use "strict:" at the end of any boolean search string), but I do not find the reverse to be true.

But I digress.

Yes, I was upset at the news at first, but I got over it. Both Westlaw and WestlawNext are beautiful tools. To some extent, both Westlaw and WestlawNext have improved the quality of my working life. I prefer living in a world with them, then one without them.

I was recent;y reminded about how much better life is with Westlaw, then without it when I was having a conversation with my podiatrist while he was tearing off my toenail. "Remember when we had to go into the library and pull out books and spread them all over the table to work on research papers in college? Now, you can just Google it or use databses . . . Research isn't as important anymore." Although I still don't know which hurt more, having my toenail removed or his statement that research isn't as important as it used to be thanks to Google, he emphasized the reason as to why I'm not that upset over the loss of the Printer Program. I was trained in law school to use the books in print to conduct legal research. I would have to get up, walk over to the digests too search for cases, then walke over the reporters to read them, then Shepardize them with print Shepards, then walk back over to the reporters, etc.. And while I read, I had to take notes. There was no printing, and the walls around me did not come crashing down. If I was fine without printing out cases from Westlaw, I should be fine with it now.

The only real problem with the end of paper is that, for me,  the materials are not as easy to read on screen as they are in print. I do find it easier to read material on WLN, then WL, but it still hurts my eyes reading from a computer screen all day. It is easier to actually highlight and mark up a printed page than use the alternative WLN features. But these are things with which I can live; I must.

So, I really don't have much of an issue with this. While I want as much as I can get from a product, free printing is not why we use Westlaw. We use it for the citators, the hyperlinks, the Key Number System, so on. So go ahead, deny me your toner, deny me your paper. Go ahead, get rid of your student reps too.

Of course, I am rather certain that our law students who had the option to print for free will be in a frenzy come the fall 2013 semester. Of course, printing has always been the bane of a law librarians existence. And I wonder what kind of impact the end of the Westlaw printer program will have on the use of Lexis and Lexis Advanced. I anticipate that LexisNexs will experience a growth in the usage of its products by law students if Lexis continues to keep their printer program. And if LexisNexis is smart, they might consider providing free printing only to Lexis Advance users to boost the use of it.

In any event, academic law libraries have a year to transition to a world with less free paper and more electronic usage. So brace yourselves. (DCW)

A Prelude to PLL's Summit III: On the future of law firm librarianship

It seems appropriate to characterize Jean O'Grady's recent interview as an unofficial prelude to this year's PLL Summit because the summit's theme is "The Path to 2020: A Vision for Change." If registration for a pre-conference event is a measure of interest in the Summit's agenda, then something like 200-plus law librarians are planning to attend. Apparently, some are traveling to Boston only for this event. [JH]

Who needs a Ph.D. - in Law? (Yale thinks someone does).

Today, Yale Law School announced that it has added the nation's first Ph.D. program in Law to the mix of law degrees. Why would one need a Ph.D. in Law? The Ph.D. program "is designed to prepare students who have earned a J.D. degree from an American law school to enter careers in legal scholarship," Yale says. What fascinates me is the fact that there have been legal scholars for centuries. How did those scholars ever get anything published without possessing a Ph.D.? I don't know. Maybe it has something to do with the fact that J.D. programs should be producing graduates who have the capacity to be lifetime learners who are capable of using a vast array of information resources.

And it never occured to me that the legal academy ever needed much help in the production of legal scholarship. Afterall, just about every law school has a law review, and I'm rather sure that most law reviews have their student editors (sans Ph.D.s in Law) produce scholarship. Moreover, the 1,000 + law journals out there don't seem to have issues filling their pages with scholarship.

It has occurred to me, however,  that the legal academy has had trouble producing competent teachers, to which Yale has proposed a resolution in the form of their L.L.M. program. Sure, there are L.L.M. programs all across the country, but Yale's program is for those dedicated to a career in teaching law. Ironically, I can't seem to find a single course offered involving teaching itself, though it has a number of courses in research and writing (which I though formed the basis of scholarship). Perhaps the Ph.D. program (the one geared toward legal scholarship) will have courses in teaching.

What do I know, though? I don't have a Ph.D. in Law. Wait - is it I who needs one? (DCW)

 

Briefs Filed In HathiTrust Case Claim Fair Use Defense

Briefs were filed last Friday in the HathiTrust case calling for the Judge to rule that the libraries use of the scanned corpus is fair use.  The brief filed jointly by the American Library Association, the Association of College and Research Libraries, The Association of Research Libraries, and the Electronic Frontier Foundation recite a litany of uses for the scanned material that qualify as a fair use of the material.  These include citation checking, creating metadata about individual works, and searches through the material that assist collection development efforts.  That last one leads to commercial purchases which benefit the authors.

The second brief was filed by various humanities and legal scholars who describe uses for the scanned material that benefit their work and the general public at large through advanced analysis of the content.  Both briefs stress that all of these positive outcomes happen without making the scanned works available to the general public or even necessarily to the scholars.  Essentially, the security of the collection is maintained, minimizing the concerns of the Authors Guild.  The Guild, on the other hand, continues to argue that the mere scanning of a book by a library without express permission of the rights holder exceeds what the copyright laws allow, and in any event should never be considered fair use.

A second line of argument in both briefs suggests the Guild is disingenuous in its line of argument.  The Guild filed suit early on against Google for its role in the scanning project and never sought any preliminary relief to shut down the scanning project while the commercial side of the dispute was litigated.  The briefs criticize the Guild’s argument that a legislative solution is the best outcome of the dispute.  That, they say, is speculative and may never happen.  They recite the history of legislative attempts to address digitization and licensing that Congress never enacted.  Some of these were defeated through opposition by the Guild and other organizations of content creators.

I believe that the briefs make a strong case for fair use of the collection, whether in these circumstances or in those in the parallel Google book scanning litigation.  Google’s massive scanning efforts are the basis of both suits.  Whether a judge agrees is another question.  The judiciary, it seems, is uncomfortable with making such a sweeping decision, though the courts may have no choice at some point.  The scanning and use of the materials by Google and the HathiTrust libraries is or is not fair use.  They aren’t claiming anything else.  Get on with it and decide the issue.  [MG]

"It Is The Way That Things Are": Your eBook reading is being mined for usage analysis

When one of my colleagues mentioned awhile back that he had just heard a news report about how eBooks are being mined for usage data by eBook sellers that is being shared with publishers my response was "damn I hadn't thought of that but it makes sense because it is doable." The source for this information was WSJ reporter Alexandra Alter's Your E-Book Is Reading You (updated June 29, 2012). A quick snip from Alter's story:

The major new players in e-book publishing—Amazon, Apple and Google—can easily track how far readers are getting in books, how long they spend reading them and which search terms they use to find books. Book apps for tablets like the iPad, Kindle Fire and Nook record how many times readers open the app and how much time they spend reading. Retailers and some publishers are beginning to sift through the data, gaining unprecedented insight into how people engage with books.

eBook reading monitoring can go very deep as in (1) how long it takes to finish reading an eBook (2) what text a reader highlights, (3) what sections the reader skips over, and (4) whether a reader stops reading the book before finishing it in its entirety. Much but not all of the WSJ article focuses on how useful this data can to publishers to help them create books that will hold readers' attention better.

[Barnes & Noble vice president of e-books Jim Hilt] says that the company is still in "the earliest stages of deep analytics" and is sifting through "more data than we can use." But the data—which focuses on groups of readers, not individuals—has already yielded some useful insights into how people read particular genres.

(Emphasis added.)

I think we all know that just because this sort of data analysis is not focused on individuals it doesn't mean that data collection on eBook reading cannot track individuals. The first mainstream media report on eBook reading deep analytics I found was published in December 2010. See Martin Kaste's Is Your E-Book Reading Up on You (NPR's All Things Considered). In that episode, Cindy Cohn, EFF's legal director, warned that if the collected data is retained long-term the information could be subpoenaed to check someone's alibi, or as evidence in a lawsuit.

And it's not just what pages you read; it may also monitor where you read them. Kindles, iPads and other e-readers have geo-location abilities; using GPS or data from Wi-Fi and cell phone towers, it wouldn't be difficult for the devices to track their own locations in the physical world.

...

"Ultimately, this sort of thing scares the hell out of me," [author Steven] King says. "But it is the way that things are."

As law librarians should we be concerned? I think we should. I'm not sure the data is retained long-term by general trade eBook retailers but there is no doubt in my mind that collecting deep data of the Law eBook usage by WEXIS (and other vendors) for Law eBooks sold to individual consumers can be and hence likely will be, if not already is, collected just like all manner of legal search usage has been.

Our Law eBook publishers may make the case the general trade industry is making that such metrics will help them produce better enhanced law eBooks. For example, "[p]inpointing the moment when readers get bored could also help publishers create splashier digital editions by adding a video, a Web link or other multimedia features." Quoting from Alter's WSJ story.

With reader metrics Law eBook publishers can discover with some level of predictability what it takes to make an eBook a "best seller." Collecting reading habit metrics for Law eBooks can be crucial to the success of legal publishers who are crafting new normal sales models that are just as retail-centric as general trade publishers in the march towards No Touch eCommerce.

I seriously doubt our Law eBook reading users has even thought that their reading can be recorded and analyzed and that is doable down to the level of their user accounts. How do you think billing by user account is created on the fly? Law librarians know what is and has been going on.We know that database usage is mined and has become incorporated in crowd-sourcing, oops, I mean, usage metics for today's search engine designs.

Unlike the general eReading population, when attorneys are reading an eBook, they are typically doing so in their professional capacity. I seriously doubt data crunching vendor programming gurus and their Mad Men give this much thought. However, law librarians should be concerned about the deep data mining of Law eBooks reading.

UNC Law Library Director Anne Kleinfelder certainly does. See her When to Research is to Reveal: The Growing Threat to Attorney and Client Confidentiality from Online Tracking, 16 Virginia Journal of Law & Technology No. 1 (Spring, 2011) and Library Standards for Privacy: A Model for the Digital World?, 11 North Carolina Journal of Law & Technology 553 (2010) [SSRN].

The issues presented in both of Klinefelter's articles will be featured at Boston 2012. She will be presenting this year's well-deserved Distringuished Lecture Address.

Should Librarians Retire the Privacy Ethic?
Monday July 23, 2012, 2:45pm - 4:00pm in HCC-Room 208

Can we really protect library users from being tracked individually by database producers, search engines, websites, and mobile reader devices?   And does government access to this collected data undermine our PATRIOT Act advocacy?  Should librarians retire the privacy ethic and instead embrace the content, customization, remote access, cloud efficiencies, collection control, and safety benefits we can now purchase with privacy?

Klinefelter is also an organizer/presenter for the following Boston session:

Attorney-Client Confidentiality and the Law Librarian
Sunday July 22, 2012, 3:45pm - 5:00pm in HCC-Room 304

Attorney-client confidentiality is challenged by cloud computing, passwords that identify database users, vendor advertisements that identify subscribers, employer access to employee email, Internet Service Provider and web tracking access to online research activity, and some uses of social media. A Boston attorney with expertise in confidentiality and privacy law will outline the scope of ethical and legal requirements for attorneys and for the librarians and IT staff who support them. Participants will receive tips on how to support compliance with confidentiality requirements. A significant portion of the presentation will be devoted to audience questions in order to address specific concerns of those attending.

Clearing interest in the rise of Law eBooks offering from our major vendors is evidenced by the below-listed pre-Conference and Conference session programs featuring Law eBook vendor reps..

PLL Summit III Session
E-books: Is Colecting Vinyl Appropriate in the 21st Century?
Saturday, July 21, 2012, 2:30-3:15 p.m. at Marriott Copley Place

From the PLL Summit session announcement:

Are the new apps of e-books truly necessary/helpful for modern day research or are they a throwback to albums, eight-tracks and CD ROMs?  A panel of vendor representatives will share their perspectives on this rapidly changing medium.

Presentations by Scott Meiser, LexisNexis, Brian Kundeson, Thomson Reuters and John DeFeo, Wolters Kluwer Law & Business.

If you can only attend regular AALL program sessions, PLL is offering the following eBook session:

Law Firm Libraries: Your E-book Future Has Arrived
Monday July 23, 2012, 1:15pm - 2:15pm in HCC-Room 306

With little fanfare, LexisNexis has begun offering some content in e-book format (e.g., the color books such as the Redbook New York Civil Practice Law and Rules). Thomson Reuters has indicated court rules for New York and others will be in e-book format in the fourth quarter of 2011. The ABA and Apple have entered into a partnership to publish legal e-books for sale in the Apple bookstore. Visions of attorneys waving their Kindles and iPads in front of our faces demanding e-books have begun to haunt our dreams. So many questions come to mind: What will the functionality be like? How will updates work? Will attorneys want both print and e-book formats, and what will that do to our budgets? What happens when an attorney leaves, along with e-book content paid for by the firm? A panel of two firm librarians who have conducted e-book trials, and two vendors will talk about this experience, as well as what vendors are doing with regard to functionality, pricing, and administration.

Presentations by some (all?) of the above-listed Summit III vendor reps?

Clearly saving the dates and times for the above-listed "Should Librarians Retire the Privacy Ethic?" and "Attorney-Client Confidentiality and the Law Librarian" should be included in your AALL Boston 2012 schedule if you are attending Boston 2012 IMHO. [JH]

First Circuit Upholds Order To Release Oral Transcript Archival Material for UK Criminal Investigation

The First Circuit Court of Appeals issued an opinion last Friday that should be read by every archivist that promises confidentiality to contributors who may be involved in criminal activities.  The case concerns interviews and transcripts held in Boston College’s Burns Library.  They were made by various participants in “The Troubles” between the British Government and Irish paramilitary groups.  Previous LLB coverage on the case is here. 

The United Kingdom requested copies of specific transcripts from the oral histories as part of an investigation into an unsolved murder of an alleged informant in 1972.  The UK made the request under the Mutual Legal Assistance Treaty it held with the United States.  Boston College initially resisted the multiple subpoenas from the United States for the materials.  The District Court denied various motions to suppress. The First Circuit now affirms that result. 

The appeal has a convoluted procedural history based on the interests of the different parties involved.  Ed Moloney heads the Belfast Project at Boston College.  Anthony McIntyre is a former IRA member who works as a researcher for the Project.  Boston College told Moloney to include a clause in the interviewee contract that confidentiality would be observed to the extent that American law allows.  That clause was not in the contracts, though Moloney did promise participants confidentiality. 

Boston College decided not to appeal some of the subpoenas in the case.  Moloney and McIntyre tried to intervene in the case but the District Court denied that attempt.  They filed separate suit alleging the right to intervene; a claim under the Administrative Procedure Act; and various constitutional and procedural issues.  That suit was dismissed and the opinion at hand addresses those issues, and disposing of most of them as failed claims or describing them as not controlling in the case. 

The most important elements of the opinion analyze the academic freedom issues compared to a reporter’s privilege.  The Court of Appeals stated they are not comparable, and even if they were, reporters have no special privilege when it comes to criminal investigation.  The Court dismissed the notion that the University could guarantee confidentiality by the accidental omission of the “full extent of American law” clause.  Money quote: 

The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers. 

* * * *

That failure in the donation agreement does not change the fact that any promises of confidentiality were necessarily limited by the principle that "the mere fact that a communication was made in express confidence . . . does not create a privilege. . . . No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice."  Branzburg, 408 U.S. at 682 n.21 (quoting 8 Wigmore, Evidence § 2286 (McNaughton rev. 1961)) (internal quotation marks omitted).

The Daily Beast has coverage on the case here.  [MG]

AALL's "Approved" Antitrust FAQ: A BS-Free Resolution for Our Association's De Facto Antitrust Policy

Do other professional associations have antitrust policies?

The FAQ's "answer" to Question #10 is "yes." "American Library Association discusses its antitrust policies here." (Link embedded emphasis added). OK, well that is just another FAQ. Considering ALA's recent advocacy actions of behalf of its institutional members and their patrons, ALA's FAQ does make for interesting reading since ALA clearly is not afraid of and has not been sued or investigated for that library association's example-setting actions. The ALA FAQ does, however, offer answers to topics omitted from AALL's FAQ which are directly related to the antitrust issue, most notably the role of lobbying activities which certainly is relevant to petitioning federal and state governments as consumer advocates. A link to SLA's "policy" is also provided in response this, the last question, in AALL's FAQ. It sends interested readers to a wide-ranging "Legal Issues" narrative but for additional information that text cites to SLA's Tax and Legal Handbook. AALL "approvers" apparently thought obtaining a copy of the Handbook wouldn't make for interesting reading by AALL's rank-and-file members. Of course, all this assumes that whomever included the ALA and SLA links into AALL's FAQ answer to Question #10 actually read the content in the linked documents.

Is our Executive Board "approved" Antitrust FAQ an official AALL policy statement? The question is prompted by several Q & A's in AALL and Antitrust: Frequently Asked Questions (FAQ). See sidebar right for one example.

The fundamental issue is presented in the very first Q & A:

1. Why do we need an antitrust policy?

The Executive Board feels a responsibility to provide members who are interested in consumer advocacy issues with information that would help them act in a manner that would not subject them or the Association to legal liabilities. Some activities of professional or trade associations may subject the associations or their members to liability under the antitrust laws. At its 2011 Summer Meeting the AALL Executive Board considered a proposed antitrust policy that was an effort to provide members with information on how the Sherman Antitrust Act could affect their activities. The Board did not adopt the proposed policy in order to allow more careful understanding and evaluation of the issues currently of concern to AALL members.

Ah, OK. In some unbelievably sloppy language that is usually corrected during 1L LW&R courses, the Executive Board "feels a responsiblity" to provide the membership with some "information." Thoughts and feelings are not the same. Emotions are physical sensations and, as we all should know, such feelings can distort reality if logic is not applied to understand them.

So did the "approvers" of AALL's FAQ have a collective emotional moment? If so, is it one that might require group therapy? Talk therapy in AALL-land might be the next order of the day. Will we see all E-Board members at Antitrust Considerations and the Association (Monday, July 23, 2:45 pm – 4:00 pm in HCC-Room 306)? Or will some, if not all, of our "approving" elected officers be too busy rehearsing for the immediately following AALL General Business Meeting and Members Open Forum (4:15 pm - 5:30 pm in HCC-Ballroom B)?

Moving beyond this uncorrected IL student legal writing practice, the FAQ's very first "answer" provides some "information" but "information" is not an official AALL statement of antitrust policy. Do note well that the "Antitrust Considerations" session also is not intended to be a discussion of policy. For all practical purposes, it assumes one already is in place. From the session's blurb:

Join in this practical exploration of how antitrust issues relate to associations, led by Shaun Esposito, CRIV Chair 2011-2012.  Stephen W. Armstrong, Senior Counsel and chair of the Antitrust Practice Group at Montgomery, McCracken, Walker & Rhoads, LLP, will provide a brief overview of antitrust concerns relevant to professional organizations.  AALL Vendor Liaison Margaret Maes will briefly summarize the “AALL and Antitrust FAQs” recently published on AALLNET, with Armstrong providing commentary and analysis of the FAQs.  Esposito and Maes will then take turns presenting fact scenarios to Armstrong based upon activities that AALL members and leadership have identified as key challenges facing associations when considering action at the organizational level.  Audience members will then be invited to ask questions or present fact scenarios of their own for consideration.

The spoon-fed "fact scenarios" from the podium to AALL's new (and for the first time identified) antitrust legal counsel will be very interesting in a top-down sort of communciations way. Certainly the audience will hear some well-crafted Do's and Don'ts. Much more interesting will be the selection of (and omission of) fact scenarios presented by Maes and Esposito to Armstrong. I think this part of the program will remind law school grads of a canned session of the Socratic method of learning to "think like a lawyer." However, in this case, the "students" on the podium will be posing the questions to the "law prof-like" expert so the so-called learning outcomes are really intended for the audience to learn how to think like our association leadership currently does based on a de facto antitrust policy.

A close reading of the FAQ can, however, extract what AALL's de facto antitrust policy is. And here it is in the form of a resolution.

A Resolution Supporting Competition and Fair Business Practices in the Provision of Commercial Legal Resources WHEREAS, the American Association of Law Libraries endorses federal and states public policies promoting competition and fair business practices in the commercial marketplace; and WHEREAS, the Association is the largest non-profit organization of academic, government, public and private sector institutional consumers of legal resources in these United States; and WHEREAS, the Association fully supports the eradication of unfair and deceptive practices in the commerce of legal resources in all formats by both the rigorous enforcement of existing federal and state laws and regulations and the enactment of new laws and regulations to protect consumers; and WHEREAS, the Association fully supports the eradication of anti-competitive business practices in the commerce of legal resources in all formats under current and/or future antitrust laws and regulations that provide consumers with certain rights and immunities under the Noerr-Pennington doctrine and protects States’ rights to govern under the Parker doctrine; and WHEREAS, the Association acknowledges that the First Amendment of the United States Constitution guarantees that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” and that the States have enacted similar guarantees essential for a free society. NOW THEREFORE BE IT RESOLVED that the general membership of the Association affirms that the eradication of anti-competitive and unfair and deceptive practices shall be the objective for any and all official actions to engage in a lawful program of robust consumer advocacy sanctioned by the Association. BE IT FUTHER RESOLVED that the Association encourages the efforts of those legal resources consumers who individually or collectively as a class of representative consumers lawfully document anti-competitive, unfair and deceptive practices and seek to redress their grievances through all lawful means on behalf of consumers of commercial legal resources throughout the nation. HOWEVER, no such efforts by those legal resources consumers who may be members of the Association including but not limited to elected officials, committee and caucus members at the national or chapter level are authorized to or are acting with the apparent authority of the Association.  ACCORDINGLY, the Association disclaims any and all advocacy efforts on behalf of legal resource consumers by its members that the Association’s Executive Board or the general membership of the Association have not affirmatively approved in a timely manner by resolution following the procedures set forth in the By-Laws of the Association.

I believe the above is a fair statement of AALL's de facto policy but I have no intention to propose the resolution since I have a number of issues with it, professionally speaking but only from my own POV. Frankly, one doesn't need to be an expert in antitrust law as it applies to professional associations who represent institutional buyers to see where our association's leaders are heading on this issue.

Nor does one need to be an antitrust expect to be or become informed about relevant issues as it applies to professional associations. Experts can always be retained later. There are plenty of reliable monographs to "read more about it." Some, well actually one, of the titles listed below (see the second listed title) includes very prophylactic measures recommended based on its trade association-centric analysis as if those measures are entirely appropriate for library associations.

Suggested Reading List

The following suggested reading is, I believe, a non-partisan selection. Certainly I am neither recommending nor even suggesting that interested rank-and-file members try to cram for the upcoming "Antitrust Considerations" session by reading them all now. Interested and engaged rank-and-file members can certainly "reading more about it" after Boston 2012, although some members might want to start now.

My hunch, however, is that AALL "approvers" failed to do their own due diligence in their official capacity. Instead they hide behind the cloak of the "apparent authority" of legal counsel. According to the soon to be former AALL President Darby Kirk's June 2012, AALL E-newsletter:

The Executive Board met on June 7 by conference call to consider Antitrust FAQs that were drafted to address member questions about antitrust law and AALL. We consulted with an antitrust lawyer, Stephen W. Armstrong from the firm Montgomery McCracken in Philadelphia, to draft the FAQs.

If our elected national officers want to do the job they are expected to do by the rank-and-file as "leaders" of AALL instead of trying to catch up to the rank-and-file to justify being "leaders," then this reading list is also provided for their benefit. Some might consider it one of those "Learn, Connect, Grow" "proposals" as a "positive and forward-thinking theme for the upcoming year and the 2012 Annual Meeting to be held in Boston." Hell, for one, I won't object if AALL membership dues are spent to provide each one with a personal copy.

1. ABA Antitrust Section, Monograph No. 19, The Noerr-Pennington Doctrine (1993) (113 pages) which is only available from re-sellers via Amazon.
 
While it focusing on the right to petition, one should take into account that the traditional view that First Amendment rights are “cut from the same cloth” and thus “are inseparable,” may no longer be the case. See Justice Kenedy's opinion in Borough of Duryea v. Guarnier, 131 S. Ct. 2488 (2011). Kennedy wrote that there could be cases “where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis” and where the rights of petition and free speech “might differ in emphasis and formulation." See Krotoszynski's Reclaiming the Petition Clause: Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for a Redress of Grievances (Yale UP, 2012) (Borough of Duryea v. Guarnier "suggests that the court could be sympathetic to carefully devised arguments focused on the right to petition.")  My April 2012 post about this speculation can be found here. There may be an analysis of the antitrust implications of Borough of Duryea or even antitrust opinions citing the dicta but I haven't looked into that because I'm no antitrust expert but the dicta could be a good thing. However, I do not see it reflected in the formulaic Antitrust FAQ.
 
My bottom line is that this 1993 ABA monograph remains a very good doctrinal law starting point, assuming you haven't read it yet. Why? Basing arguments on academic speculation can be weak. However, basing arguments on ALA's official consumer advocacy activities are not weak.
 
2. ABA Section on Antitrust Law, Antitrust and Association Handbook (2009) (248 pages), available from the ABA bookstore.
 
This text can be viewed as the "Bible" for trade and industry-setting standards associations. Library associations are neither. The work does discuss professional associations like AALL but the "Sample Association Antitrust Compliance Policy" and "Association Antitrust Reminders and Meeting Guidelines" fail to make important distinctions. Do note that when I think of ALA's recent eBook advocacy efforts in the context of this work and AALL's FAQ, I find ALA to be taking a much more aggressive approach than the prophylactic measures recommended by this ABA title.

3. ABA Section on Antitrust Law, Market Power Handbook: Competition Law and Economic Foundations, 2d ed. (2012) (183 pages), available from the ABA bookstore. Recommended because it tries to approach market power in a non-technical manner. I say "tries" for good reason because that is relative to the uber technical economic analysis that has taken over the original "trust-busting" federal legistative intent. I'm not implying that this is a "bad thing." Hell, it is the one instance where academic legal scholarship has actually contributed to real world statutory interpretation by way of regulatory enforcement. However, the "non-technical" characterization is relative because it does require a fair amount of "law and economics" homework.
 
4. For unfair and deceptive practices at the States' level and at the FTC federal level, Pridgen & Alderman's Consumer Protection and the Law, 2011-2012 ed. (2 vol. West "pamphlet", 2011) looks good enough. I say "looks good enough" because (1) we didn't own the earlier edition so I have no idea how well it has been updated with caselaw and state statutory changes and (2) when I ordered the work in April, I insisted that my library not be placed on standing order for later editions. This is not a "buy" recommendation because there are excellent and substantially less expensive than the $867 WestMart list price for god knows how many of the 2,500-plus pages were actually updated with something more than Keycite string citations.

End note. Even an old dog like me can still learn a new trick or two. The National Consumer Law Center publishes in print (with low cost print updates and companion websites) some damn good resources that fills the gaping hole in the offerings by WEXIS like the above mentioned Consumer Protection and the Law title. My one-time purchase of Consumer Protection and the Law was an experiment in whether our county law library patrons would opt for "Brand Recognition" instead of professional editorial quality. They have not -- the National Consumer Law Center's regularly updated publications circulate more than anything even close to being comparable by WEXIS in our little county law library. Who will be the first to license them? BLaw, Lexis or TR Legal? But I digress... . [JH]

Duncan Law School Denied Provisional Accreditation After Appeal

The Duncan School of Law at Lincoln Memorial University hit another snag last Friday when it was revealed that the American Bar Association rejected an appeal of an earlier rejection of provisional accreditation.  The school has 30 days to appeal the rejection of the appeal.  The University is mulling its options.  The news came in a court filing in the school’s ongoing antitrust suit against the ABA which it filed shortly after the first denial of provisional accreditation.

The Tennessee Board of Bar Examiners granted accreditation to Duncan with the understanding that it would be approved by the ABA in 2012.  That deadline is now extended to 2017.  Duncan students will be allowed to take the Tennessee Bar.  The Dean of the law school is quoted in the Knoxville News Sentinel as saying that the school met or exceeded applicable standards.  Neither the school nor the ABA has released the contents of the letter denying the appeal. 

LLB published this bit of information last January:

1. In March 2011 a site team visited Duncan Law and produced a report that was critical of the law school's operations in several respects.
2. Invited to respond to the site inspection report, Duncan Law's Aug. 6, 2011 report provided "voluminous information and provided line-by-line responses and clarifications to various points in the site report."
3. On September 29, 2011, the Accreditation Committee conducted a brief hearing on Duncan’s application for provisional approval with Duncan officials.
4. On October 12, 2011, the ABA sent Duncan Law the 23-page Recommendation of the Accreditation Committee. Quoting from the Declaration by the ABA Consultant on Legal Education, Hulett H. (Bucky) Askew, filed with the ABA's pleadings in the on-going litigation (which is also the source of the above chronology):

Based on these Findings of Fact, the Committee concluded that Duncan was not in substantial compliance with each of the Standards and had not presented a reliable plan for bringing itself into full compliance within three years. (Citation omitted.) Specifically, the Committee concluded that Duncan had not established substantial compliance with four separate Standards and, in some cases, accompanying Interpretations.

Way back in July of 2011 the ABA responded to pointed questions from Senator Charles Grassley with this statement:

The net increase in ABA-approved law schools over the past 20 years from 174 in 1990 to 200 in 2011 represented a growth in the number of law schools of 14.9% as compared to a net growth of the United States’ population of 24.2% from the 1990 to the 2010 census. Most of the new law schools were formed in states or regions where there has been rapid growth in population or in other areas historically underserved by legal education.  And, perhaps more to the point, neither that Department of Education nor the antitrust laws allow the ABA to cap or limit the number of accredited law schools.

Is the ABA trying to look tough in light or criticism of how it handles law schools in a changed legal market place or is Duncan’s plan so lacking?  I only ask as the process seems to include a “never say never” component, what with extended appeals and deadlines.  More details on the standards at issue in the original denial are cited in this LLB post. [MG]

Old Habits Die Hard, Part I: SMART Publish or Perish for Serial Law Titles in the 21st Century

Get SMART

While not discussing hardware monitoring (see Wikipedia entry for that), the all-caps format for "SMART" in this post's title is used intentionally to echo "self-monitoring, analysis and reporting technology" in the context of anticipating failures for generating reliable legal content research, analysis and communication at the intersection of publisher and consuming reader. Of course, it could a "good thing" if AALL would someday set an example by getting SMARTer. Apparently that is too much to ask from an "old habits live on" publisher whose intented audience is 21st century legal information professionals right now. Failure at the intersection of publisher and audience in print-bound AALL publications like LLJ and Spectrum, make many law librarians who live in the 21st century professionally embarrassed by their association's mimicry of an obsolute publishing format when LLJ and Spectrum are e-disseminated. For a recent failure example, there was clearly insufficent LLJ editorial oversight during the mocked-up production of dialog between two law librarians that confused the new WEXIS platform with WLN in a recent LLJ article. See "WestlawNext": What happens when a brand becomes synonymous with the negatives of all similiar products. On Nota Bene, Dan Baker stated the case explicitly, along with quoting text to illustrate the point at Yet Another Lexis Advance Polemic: A Reply to Sellers & Gragg ("[N]early every statement made by the authors about WestlawNext also applies to Lexis Advance".) A SMARTer LLJ publishing platform would allow the authors of their fossilized-in-print article to clarify their statements.

"The page volume of law reviews has proliferated beyond reason with no corresponding rise in compelling content" is the pull quote from Walter Olson's article, Abolish the Law Reviews!, in The Atlantic. The case Olson makes against law reviews isn't new. But for compelling content, he promotes timely online published short-form works that OSU law prof Douglas Berman characterized during the early days of law prof blogging as "scholarship in action". Olson writes:

One way or another, some scholarly apparatus will be found to publish meritorious longer articles that advance the mission of serious research into the law. But when it comes to discussion of timely controversies, slash-and-thrust debates, and other forms of writing that people actually go out of their way to read, there's no doubt where talented legal academics are headed: to blogs and other shorter-form online publications.

... Professionally edited web outlets (including The Atlantic) allow law professors to get their arguments before an intelligent audience in hours rather than weeks or months. As online law writing has taken off, readers are rewarding qualities like clarity, concision, relevance, and wit, and steering clear of pedantry and mystification.

(Emphasis added.)

Sounds good, right? One question is whether long-form legal scholarly works will end up only being published in peer-reviewed law journals like the rest of university scholarship is? If not, I have my doubts that the mission of serious law writing will be well-served. Being realistic, however, I seriously doubt the student-edited law review will disappear any time soon, if ever (unless law tenure standards are ratched up to conform to the norms very well-established for other disciplines "on campus").

A much more important question is how the long-form law article should be published. Mark Giangrande makes the case for electronic publication of law reviews. While some law reviews have experimented with online supplements to their print titles, Mark calls for the enhanced law review article in Don't Abolish the Law Review, Adapt It:

I think a law review could easily exist online with the same editorial standards that appear now.  In fact, I think they would have a better life online by adopting some of the features of online publication.  The footnotes, for example, could lead to live sources, and at the very least PDF versions of the information.  The “last visited” could be replaced or augmented with snapshots of sites as they existed at the time of the research.  There need not be “on file” notes with some content.

Moderated comments could aid readers as well.  The articles can be updated and revised over time.  West does it with weekly updates to ALR online.  Law faculty can take charge of revisiting their content.  There is precedent for that with SSRN as a pre-publication outlet with some faculty having multiple drafts of the same article on the site.  I’m sure a law review editorial staff could develop standards for publishing revisions.

My biggest problem with law review content is that even when it is presented online it still generally conforms to print.  Maybe it’s the Bluebook mentality.  There is the possibility of an enhanced presentation of an article if someone can set standards in light of the available web features.  One or two respected titles can lead the way.  The rest will likely follow.

With enhance law eBooks at one end of the spectrum and law blogs at the other end, I believe it is inevitable that the long-form law article will adapt to the new normal of electronic publishing. Whether it begins with academic law serials, commercially published law journals, or ABA journals remains to be seen. But eventually, reader expectations will push the long-form law article into the 21st century of e-publishing.

In the process one can only hope that law journals and enhanced regularly updated serial law eBooks will also eliminate the print era version of date-stamping by ceasing publication of "issues" for journals and, for serial eBooks, scheduled "supplements" or "editions." As soon as the text has completed the editorial process, just e-publish the damn thing immediately.

Old publishing habits die hard, but it is time to create new ones by eliminating print era legacies.

Endnote. A case in point on killing off print era legacies -- this is "part one" of a series of blog posts on "old habits die hard" but I don't even know what the hell the topic for part two in this series will be right now, when it will be published, or how many parts to this post series I will get around to writing and eventually publishing. Plus, based on past experience of "thinking out loud", there is no doubt in my mind that some "parts" will be drafted but never be published. [JH]

Round-Up of Law Practitioner Blogs

Michigan Healthcare Law Blog
http://www.wachlerblog.com/
http://www.wachlerblog.com/index.xml
Examines healthcare law cases, news, and related legal topics in Michigan. Published by Wachler & Associates
 
Chicago Injury Lawyer Blog
http://www.chicago-injury-lawyer.org/
http://www.chicago-injury-lawyer.org/index.xml
Examines injury and accident cases, news, and related legal topics in Illinois. Published by the Law Offices of John J. Malm
 
Florida Injury Lawyer Blawg
http://www.floridainjurylawyer-blawg.com/
http://www.floridainjurylawyer-blawg.com/index.xml
Discusses serious personal injury cases, news, and related topics in Florida. Published by Leesfield & Partners
 
New Jersey Lawyers Blog
http://www.newjerseylawyersblog.com/
http://www.newjerseylawyersblog.com/index.xml
Examines various legal topics related to business matters through case discussion as well as news on employment and consumer law matters In New Jersey. Published by McLaughlin & Nardi
 
Atlanta Injury Attorneys Blog
http://www.atlantainjuryattorneys-blog.com/
http://www.atlantainjuryattorneys-blog.com/index.xml
Examines injury and accident cases, news, and related legal matters in Georgia. Published by Sammons & Carpenter.