Law Librarian Blog

Charley Barth Appointed Director of the Office of the Federal Register

From the July 24, 2012 press release: "Barth brings more than 20 years of records management experience in the Federal Government to OFR from previous positions at the Department of the Navy and Department of Homeland Security." [JH]

C-SPAN Interview With Justice Scalia

In addition to Joe's post today on Justice Scalia, I'll mention that he was interviewed for C-SPAN to be broadcast later on this week where he talks about the health care and immigration decisions.  He comes out against broadcasting the Court's proceedings.  Not exactly Colbert material, but the Court's senior Justice is almost always entertaining, no matter what one's view of him might be.

 

[MG]

Friday Fun: "Forget the message, forget the lyrics, and just play" at the West Party

If ever there was a corporate culture that does not represent wearing tie-dyed t-shirts and handling out flashing Peace Symbols from the 60s, it has to be one of the hosts of their customer appreciation party. Not the staff who were wearing them and were handing out the Peace Symbol trinkets mind you but the ultimate corporate decider-ers. What a delightful demonstration of a psychedelic sense of irony.

All this in good fun, of course. I make that disclaimer because there exists a photo of me in a very "compromising" position that was taken while basking in the sunshine of our love-in at the "West Party."

Those of us old enough to recall, remember why Cream broke up. While being each other's favorite musician, by the end of the two years performing together, they couldn't stand each other.

John, buddy, good to see ya. At the party someone offered to give me the t-shirt off their back, literally, but I declined the offer. It just didn't seem right because I was heading off to another vendor event later that evening. Any chance you can have someone send me an XL tie-dyed t-shirt (even if used)? If possible, just ship it to my bill-to address. I promise to wear it and further promise to leave the Thomson Reuters branding on the t-shirt because it is so inconspicuously displayed on the sleeve. [JH]

Garner on Collaborating with Justice Scalia

Not quite the tell-all story it is made out to be about their latest work, Reading Law: The Interpretation of Legal Texts, but interesting nonetheless. See Jess Bravin's Writers Bloc: Justice Scalia’s Literary Collaborator Tells All on the WSJ Law Blog. [JH]

Penn State Law School Addresses False Press Report on Plans

Penn State’s very public problems with the NCAA were added to with a minor dust-up over how it plans to manage its two law locations.  One campus is in Carlisle, just outside of Harrisburg, and the other is in College Station, some 60-80 miles away.  The Harrisburg  Patriot News wrote a story on Tuesday that claimed plans to divert some students from the Carlisle Campus to College Station would put the University in breach of a contract with the state.  Penn received grants from the state for improvements to the facilities in return for maintaining a law school presence there through June of 2025.  The paper additionally reported that the move would threaten the school’s ABA accreditation. 

The Law School quickly issued a denial that any plans would not necessarily put the school in breach of contract with the state, nor would it threaten accreditation.  The paper assumed that each campus was accredited separately.  The story has been corrected and a follow-up story conveys a “we screwed up big time” message. 

But let’s take a moment to look at what’s going on at Penn State’s law school and the motivation behind any law school plan.  From the Dean’s email to the reporter: 

The law school is engaged in internal discussions about how best to respond to the national decline in J.D. degree applicants and to the increasingly fierce competition among the best law schools for the dwindling pool of especially talented J.D. applicants. 

* * * * 

Were the law school not to reduce the size of its J.D. population in response to the dramatic decline in J.D. applications nationally, the academic credentials of our incoming students would fall appreciably, our ability to find meaningful employment for all of our graduates would diminish, more law school graduates would graduate with high debt and no work, the reputation and stature of the law school would decline, and our best faculty and administrators would leave.  This would disserve our students, our alumni, the law school, the University and Carlisle. 

I wrote a short post last November about the school offering application waivers to students with better LSAT scores.  Other commentators suggested that move was motivated by the negative publicity from the sexual abuse scandal.  I guess it’s getting that bad for schools outside of the top 20 to find qualified applicants that won’t hurt their ranking numbers.  [MG]

Old Habits Die Hard, Part II: AALL Boston 2012 in a Nutshell

From the AALL leadership to the rank-and-file members:

We will protect you from yourselves.

Maybe, maybe not. [JH]

Book Review: Victory: The Triumphant Gay Revolution

Linda Hirshman’s book, Victory:  The Triumphant Gay Revolution is a well written history of the movement that brought about changes in the legal and social establishments which treated homosexuals as third class citizens.  She calls this the struggle for homosexuals to participate in the social contract with the liberal state for the same benefits as other citizens.  Social movements in the 1960s and 1970s focused on civil rights for minorities and women.  Gays were different.  Their movement had to overcome the religious and moral opposition to homosexuality that imbued laws which treated gays as criminals and outcasts.  Police routinely abused them.  Government would not let them work for it or serve in the armed forces.  Benefits routinely granted to heterosexuals were denied.  Marriage was out of the question.  Being outed as a homosexual amounted to societal humiliation that sometimes had lethal consequences.

The story of the gay revolution started when gays started to think, hey, we look like everyone else, why can’t we be treated like everyone else?  Gay men were being separated from the army right after World War II, after serving on the battlefield, and denied the same benefits granted to their heterosexual counterparts.  The Civil Service Commission thought gays were unfit for government jobs.  Conservatives such as Senator Joe McCarthy used gays in government as boogie men for his attacks.  When he was challenged with “have you no decency,” little or none of any societal decency extended to McCarthy’s targets would include the gay individuals that the Senator attacked.

Movements started, slowly, tentatively at first in order to organize gays socially, and then politically.  People who joined the Mattachine Society in the 1950s did not necessarily want family, (some) friends, and the greater society to know about their membership.  This group evolved into other groups, some more radical than others that began to attack the social and political structures which suppressed participation by gays in that liberal state.  Some of these took the form of legal challenges.  Others pushed the edges of social recognition.  The legal challenges predictably failed.  But the fact that someone tried led to other challenges depending on circumstances. 

One of the strengths of the book is how it weaves the various groups that formed into a timeline describing their issues, their attitudes, their strategies, and particularly the individuals who drove them.  The black civil rights movement had its Doctor King.  I’m sure a majority of people could not identify the leaders of the gay rights movements.  And there were a lot of them, each pushing forward in their own way.  Harry Hay founded the Mattachine Society.  There was D.C. activist Frank Kameny who litigated on behalf of those dismissed by the Civil Service.  Richard Socarides was an advisor to President Clinton.  These are three.  There are hundreds who fought the battles on behalf of gay rights.  They are all in this book.

The story also includes the events that shaped the movement.  The New York City Stonewall riot was pivotal in that it caught the attention of the public.  Gay bar goers would no longer accept police harassment and had the temerity to fight back.  That, of course, did not win the war.  It did, however, encourage others to take up the cause to push back in other areas.  There were marches, civil disobedience actions, and other events that brought gays into the public conscience as equal members of society.  Gays organized politically in urban areas such as New York and San Francisco.  They became a force in the electorate that candidates could not ignore.

That’s not to say that everything went smoothly.  The religious right organized itself to assert its opposition.  We see this today in the way the California marriage case is playing itself out.  This is but one example in the book.  There are others in how the politics of gay rights led to the repeal of “Don’t Ask Don’t Tell” and the foot dragging by the Defense Department to implement the repeal.  It took a court case to end that. 

When AIDS came along, the gay rights organization had to fight government indifference to the disease.  Funding for a medical understanding, let alone a cure, was not the priority of the Reagan administration.  It was more than a matter of lobbying.  The campaign for recognition included “We die, they do nothing,” which made an impression both social and political.  Perhaps that decency which eluded McCarthy’s gay targets was finally forthcoming, but again, not without a fight.

The book documents all of this and more.  There is the distance between those advocating for civil rights for gays and the other civil rights movements.  What the movement achieved was done with little support from others seeking equality.  There is the horrific death of Matthew Shepard which led to laws which stated flat out that gays aren’t targets for sport.  Again, here is decency expressed in a political outcome. 

Anyone interested in the social, political, and moral struggles of how a truly oppressed group fought the law, and in this case mostly beat it should read Victory.  The book is published by Harper and is 443 pages with index.  Harper provided a copy of the book for this review.  [MG]  

Hey Jason and John, Do You Remember Giving Ed Permission to Publish Our Photo Because I Don't

The caption reads: "@jasnwilsn, @johnpmayer & Joe Hodnicki behaving well (briefly) at the @Fastcase hospitality suite." I must have OKed publication after that brief moment of being well-behaved.

Oops, my bad. I didn't ask to republish it! Happy birthday, Ed. [JH]

How Not To Be Seen: "And Now for Something Completely Different" (and Irrelevant in the Real World): Top 70 law faculties in scholarly impact, 2007-2011

The ranking is published on Brian Leiter's Law School Rankings and the analysis by Gregory C. Sisk and his colleagues in the law library at the University of St. Thomas (Minnesota) at Scholarly Impact of Law School Faculties in 2012: Applying Leiter Scores to Rank the Top Third [SSRN].

Univ. of Chicago law prof Brian Leiter writes:

Professor Sisk and colleagues include all the appropriate caveats in their write-up.  Mean scholarly impact is one kind of measure of academic distinction of a faculty; to the extent that school reputations depend more on the very best faculty, rather than the mean impact, then schools like Virginia, Georgetown, Texas, and Southern Cal are underranked, as they probably would be deemed to be in a survey of scholarly experts.  Still, mean impact does also provide a check on casual assumptions about faculty quality, and constitutes a useful data point for schools trying to assess the performance of their faculty and for students particularly interested in the scholarly visibility of the law schools they are considering.

(Emphasis added.)

Time for the instructional video on how not to be seen. [JH]

[JH]

ABA Fines University of Illinois Law School for False Admissions Data

In a story just published, the Chicago Tribune is reporting that the American Bar Association has fined the University Of Illinois College Of Law to the tune of $250,000 for reporting false admissions information.  The second paragraph of the story reads: 

It is the first time the American Bar Association has fined a university for reporting inaccurate consumer data, according to an ABA spokesman. 

Here’s the same information from the ABA press release: 

The council determined that the law school had violated the section’s Standards for Approval of Law Schools requiring law schools to maintain sound admissions policies and practices and to publish basic, accurate consumer information. The censure refers to intentionally false LSAT scores and incoming student grade-point-average data the school provided for the entering class of 2005 and the entering classes of 2007 through 2011. 

That’s an interesting characterization, as the judge who dismissed the Cooley law student case last Friday said the going to law school was a business decision and did not fall under the Michigan consumer protection laws.  I wonder how this might affect other ongoing litigation? 

One other question, does the ABA have the authority to issue fines?  Mind you, I’ve criticized the ABA for not acting forcefully enough in the past.  Given their tentative steps at reacting to market forces, this is really an aggressive step on their part.  Wow, law schools are now on notice that they can’t play fast and loose without the possibility of costing them money.  Who knew?  [MG]

U.S. News Looks At Academic Publishing Costs

U.S. News editor Simon Owens has an article about the current state of academic publishing and the high cost of subscribing to available content, particularly in the scientific fields.  The crisis is exemplified by the Harvard Libraries telling faculty that the cost of subscribing to their research journals is “unsustainable.”  Prices rise for the captive academic customers and a few publishers make a tidy profit despite the economics of publishing these journals. 

We in academic law libraries may see the side effects of this crisis indirectly.  If our libraries contribute to the cost of some of these subscriptions, then our costs rise as well.  I think it’s true for most law faculties to spend more time researching and writing about social science issues rather than pure law.  I find myself using Academic Search Premier, Wiley, Elsevier, JSTOR, and other databases way more than I use Lexis or Westlaw.  The latter have become document delivery sources rather than to research a legal issue.  Such is the state of faculty research. 

Then there is the question of what to do about the cost of law reviews.  Hein Online is such a stable and affordable source for current and archival law reviews that it seems less and less compelling to keep bound volumes on the shelf.  Of course, this view only works provided some predatory publisher or conglomerate doesn’t purchase Hein and upsets that stability.  I guess that is always a possibility even if unlikely.  But I digress. 

Harvard’s message to its scholars is to ask that they consider publishing in open source publications.  The problem with that is careers are made on prestigious citations.  Open source journals haven’t necessarily reached that status in the academic world.  That’s not to say that there isn’t support for the idea.  The Public Library of Science (PLoS) publishes more and more content as time progresses. 

Two other issues affect the reasonable availability of open access articles.  One is the peer review process many commercial publications use which is to leverage the expertise of the scientific community for the editorial work.  Note that these reviewers do not get paid for their activity.  At the same time, they do get access to the journals for their own publications. 

The second reflects the attempts by the publishers to keep government funded research from any type of free access.  The latest withdrawn example, the Research Works Act, would have stopped government agencies and the National Institutes of Health in particular from creating repositories of research articles based on public funding.  Some publishers and scholars opposed to these repositories suggest the taxpaying public wouldn’t understand the highly technical content of these articles.  My response to the argument is that scholars pay taxes.  In any event, why shouldn’t scholars build on publicly funded research without having to pay (or pay a lot) for the privilege? 

One alternative suggested by Fred Dylla, executive director at the American Institute of Physics, is for agencies to list papers generated from their grants and then link the public to sources where papers could be downloaded for a small fee.  He said there are around 40 publishers using a rental model for one-off downloads with the price similar to that of a cup of coffee.  I’m not so sure about that.  So far the rental accesses I’ve seen seem more around the price of a coffee urn than a cup.  Then again, that 30-40% profit margin must be maintained. 

Owens does a nice job of examining the economics of the academic publishing industry.  It’s well worth a read.  And the best part is that U.S. News hasn’t placed it behind a pay wall.  [MG]

My Playlist for Boston 2012, Tuesday: Roy Buchanan & Albert Collins performing Further On Down The Road

[JH]

DOJ Files Comments And Response to e-Book Consent Decree With Publishers

The United States Department of Justice received 868 comments on its proposed consent decree with the settling publishers in the Apple e-book litigation.  They are available here, with access to comments by number, name, and by through local search.  The United States has filed its own response today to the comments, many of which suggest that collusive conduct is far more favorable than handing a big chunk of the market to Amazon.  To that, the Justice Department says:

Some of the criticism directed at Amazon may be attributed to a misunderstanding of the legal standard for predatory pricing.  Low prices, of course, are one of the principal goals of the antitrust laws.  Cf. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 340 (1990).  This is because of the unmistakable benefit to consumers when firms cut prices.  Id.  “Loss leaders,” two-for-one specials, deep discounting, and other aggressive price strategies are common in many industries, including among booksellers.  This is to be celebrated, not outlawed.  Unlawful “predatory pricing,” therefore, is something more than prices that are “too low.”  Antitrust law prohibits low prices only if the price is “below an appropriate measure of . . . cost,” and there exists “a dangerous probability” that the discounter will be able to drive out competition, raise prices, and thereby “recoup[] its investment in below-cost pricing.”  Brooke Group v. Brown and Williamson Tobacco Corp., 509 U.S. 209, 222-24 (1993).  No objector to the proposed Final Judgment has supplied evidence that, in the dynamic and evolving e-book industry, Amazon threatens to drive out competition and obtain the monopoly pricing power which is the ultimate concern of predatory pricing law.  The presence and continued investment by technology giants, multinational book publishers, and national retailers in e-books businesses renders such a prospect highly speculative.  Of course, should Amazon or any other firm commit future antitrust violations, the United States (as well as private parties) will remain free to challenge that conduct. 

Or putting it another way, Amazon’s price cutting is a feature, not a bug.  I’m sure the statement “This is to be celebrated, not outlawed” must gall some of the commenters, as much as this statement might:

Finally, even if there were evidence to substantiate claims of “monopolization” or “predatory pricing,” they would not be sufficient to justify self-help in the form of collusion.

Amazon can undersell because it diversified its revenues and profits by selling other products besides books.  I could order cat food from Amazon if I wanted to.  The booksellers generally sell books in one form or another and not much else of consequence.  As Steve Jobs might say, you’re holding your business model all wrong.  [MG]

My Playlist for Boston 2012, Monday: Amy Winehouse's Cover of Will You Still Love Me Tomorrow

The E-Board is so tuned into what's going on, I wonder if they know that Amy Winehouse is no longer performing "live." Come to think about it neither are Roy  Buchanan or Albert Collins who have been featured in my earlier (and again in a later) playlist music videos for AALL Boston 2012. Oh well, there is always Lady Gaga. [JH]

Some Details Emerge On The ISP Copyright Infringement Monitoring

Jill Lesser, the Executive Director of the Center for Copyright Information wrote a piece last week in CNN that explains a bit of the mechanism that ISPs will use in their cooperative effort with content owners to squelch copyright infringement on the web.  The plan calls for graduated responses from ISPs described as “non-punitive.”  The possibility exists for the ISP to dump a user to an educational page on the evils of copyright infringement or slow down the stream in some circumstances.  It seems that the content holder will be doing the tracking while sending notices of “hey you stop that” through the ISP.  Names and other personal information will not be given to the content holder.

It appears from her statement that the focus will be on peer-to-peer traffic:

As they have done for years, content owners will use technical methodologies to identify alleged infringements over peer-to-peer networks and will request that notices of such alleged infringement be passed on to subscribers by the participating ISPs.

I would find it hard to believe that content owners would limit themselves to P2P traffic given the number of file lockers, blogs, and other sites at which content may be available.  I suppose they could get the Megaupload treatment under existing law.  The tracking should have started July 1 if previous reports are to be believed.  We will have a better idea once the notices and the circumstances surrounding them start hitting individual users.  I have a funny that this may not slow down infringing conduct at all, and may be used as a failed experiment to show that we need more SOPA type legislation.  I hope they notice that not all P2P traffic out there contains copyrighted content.  [MG]

My Playlist for Boston 2012, Sunday: Love Me Like You Say performed by Albert Collins

[JH]