Law Librarian Blog

Review of Nexus 7

Jason Griffey reviews the Nexus 7 on ALA Tech Source ("With the arrival of the Nexus 7, I can honestly now recommend a tablet that isn’t the iPad. I still wouldn’t recommend this over the iPad unqualifyingly, but the devil is in the details as far as purchasing decisions go.") [JH]

D'oh, OED Gets Hip By Adding New Words

The venerable Oxford English Dictionary has added several words reflecting both popular culture and the speed at which the Internet creates new expressions.  New additions include D’oh, Bling, Bromance, Frankenfood, Infomania, Muffin Top, Twitterati, and my favorite, Illiterati.  Nina Platt over at Pinhawk.com should be thrilled that Whovian (Defined as: A fan of the British science-fiction television series Doctor Who. "That Whovian is totally geeking out right now.") has also reached recognized status.  Count me in on that one.  I bought pretty every episode that is available on DVD and watch them regularly.  Getting back to D’oh, I would have thought that Homer Simpson’s plaintive expression would have made it years ago.

There is a nice slideshow with all of the words at the San Francisco Chronicle web site. [MG]

Student Debt Data Reported by Barry, Kansas and Rutgers-Camden Corrected

In Law Schools That Misreported Student Debt Figures to ABA, US News Are Identified (ABAJ News), Mark Hansen reports:

Barry originally reported an average student debt load for the class of 2011 of $41,190, earning it a place in U.S. News' list of the top 10 law schools whose students have the least amount of student debt. The correct figure, Barry now says, $137,680.

The University of Kansas School of Law had originally reported an average indebtedness for 2011 graduates of nearly $42,000. The actual figure, the school now says, is $67,598.

Rutgers School of Law-Camden originally reported an average debt figure of $27,423. The correct number, the school says, is $80,446.

[JH]

A Pronouncing Dictionary of the Supreme Court

Sally Pei et al. "have undertaken to identify those cases decided by the Supreme Court of the United States that are most susceptible to mispronunciation and to determine the proper pronunciation." Details about the project at 13 Green Bag 2d 433. The pronouncing dictionary, hosted online by YLS, includes audio for the case names selected. [JH]

Friday Fun: The "21st Century Approach" to Law School Success

Meaning the YouTube video ad was taken down by its creator after Elie Mystal featured it in his ATL story about a 2L who is attempting to charge for his "how to succeed" seminar. See Rising 2L Runs Seminar on ‘How To Succeed In Law School’ After 1L Year At Thomas Jefferson Law School. [JH]

St. Louis U. Law Dean Resigns With An Angry Letter

There is news that the Dean of St. Louis University resigned in a scathing letter to the University president shortly before he was about to fire her.  The St. Louis Post-Dispatch reports that (former) Dean Annette Clark resigned because of what she perceived to be heavy-handed management of the law school by the University president, Fr. Lawrence Biondi.  The law school, for example, is moving to a new downtown facility.  Clark claims in her letter that school administrators were never consulted on the move or the suitability of the new building.  There were also statements regarding the amount of money the University extracted from the law school. 

Biondi countered Clark with his own letter.  He also named Belleville, IL attorney and law school donor Thomas Q. Keefe Jr. as the interim dean.  The PD noted that his appointment marks the third person holding the deanship in two years.  The story quotes Keefe that Biondi contacted him weeks ago about taking over the law school.  No stories so far have quoted any of the faculty as to their reaction to the events. 

The story got more than local coverage as it was picked up by Business Insider, The Sacramento Bee (of all places), and the Wall Street Journal.  U.S. News ranks the school at #101.  To anyone who might want to gauge the local reaction, I suggest reading the comments that accompany the PD story.  The paper quotes extensively from both letters but does not reprint them.  [MG]

Beyond Doom and Gloom: Reimagining Legal Services and just as important Legal Education for the 21st Century (with a little self-interested help from the commercial vendor community)

In Avoiding Extinction: Reimagining Legal Services for the 21st Century (ABA, 2012), the transitioning law firm is the literary motif of Mitch Kowalski's fictional account of a law firm trying to adapt to and remain competitive in the changing landscape for legal services by implementing new internal practices. From the blurb:

The past few years have seen incredible innovation and growth in the way legal services can be delivered--yet most law firms around the world continue to practice law the way it's been practiced for centuries, namely, as a labor-intensive endeavor carried out by high-priced lawyers billing by the hour.

Directly inspired by Richard Susskind's ground-breaking The End of Lawyers (Oxford Univ. Press 2008), Toronto lawyer Mitchell Kowalski now provides a vivid, believable account of everything a law firm could be.

In the book, you'll see how a typical big law firm fails to deliver real value to the client, resulting in dissatisfied clients and burned-out and stressed lawyers in the process. You'll discover the ways the firm can be redefined as a service corporation that is structured and managed in ways that truly deliver value to the client, profitability to the firm and career satisfaction to the lawyers. Then, by the book's end, you will know how to apply these ideas to your own situation and enjoy the benefits.

Slaw's Omar Ha-Redeye writes an excellent and sometimes critical review of the work in The Kowalski Bible on Lawyer Conservation.

A Capstone Course on Preparing "Practice Ready" Law School Grads? If ever the legal academy was to require a capstone course on how to practice law and manage a law practice, Kowalski's Avoiding Extinction should be required reading. Of course to be a skill-based capstone course, many additional courses would have to be offered. In this case, profs would have to come up to speed first, particularly in many real world IT solutions. That's not really being promoted in law school in no small part our major professional legal services vendors are not exposing law profs and, more importantly, law students to most of their commercial solutions.

Why that is the case, is beyond me. If indoctrination to individual vendor online legal search services is the objective of providing them to law students at wholesale prices for three years, why not do exactly the same for solutions? Take for just one example, moot court competitions and law school clinics. By adding productivity and practice management solutions, those regular offerings could be situated in a more realistic setting. Even the editorial processing of law review submissions could be enhanced by productivity-driven work production and workflow solutions tied to online legal search services.

Two related components are clearly missing in reimagining legal services: (1) reimagining skills-based legal education by the legal academy and (2) reimagining the provision of solution suites to law students by commercial vendors. Imagine, for example, "Best Practices" law school competitions judged by practitioners and their law office IT administrators in terms of quality of addressing client needs and efficiency of work production in transactional and litigation settings. [JH]

Disclosure of Lobbying: Are White House Visitor Logs Good Enough?

Nope. See John Wonderlich's Sunlight Foundation Blog post, House Oversight Shows More Visitor Logs Evasion, Deals ("[T]he WAVES [official White House visitor record-keeping] systems were designed for security, not tracking influence. Unfortunately, the White House has chosen to use the visitor logs disclosure as a shield whenever their transparency or ethics are questioned, despite numerous shortfalls in their effectiveness."). [JH]

Sixth Circuit Makes Faculty Tenure Almost Meaningless

When is tenure not tenure?  The answer according to the Sixth Circuit Court of Appeals is that the grant of tenure is defined by the terms of the employment contract rather than a philosophical understanding of tenure.  The Cooley law school dismissed tenured Professor Lynn Branham at the end of her one year contract in December of 2006.  There had been disputes over the subjects of the classes assigned to Professor Branham in that period.  The school wanted her to teach constitutional law and torts, though her vocal preference was to teach criminal law.  She did teach those classes in the spring semester and took a medical leave over the summer.  She was again assigned those classes in fall but refused to teach them.  The school dismissed her in December of that year.

She sued Cooley on various counts, most of which were dismissed by the District Court.  The one claim in which she prevailed was breach of contract.  The school had not followed its contractual process that called for a hearing before the full faculty with the possibility of an appeal to the school’s Board of Directors in case of an adverse decision.  The District Court ordered the hearing to be held.  Professor Branham lost by a vote of 89-15 and the Board upheld the dismissal.

The opinion describes the relevant issue at hand:

As the district court noted, and as Branham concedes, “‘tenure’ [does not] mean[] anything other than what [Branham’s] employment contract provides.”  Further, under Michigan law, “contracts for permanent employment are for an indefinite period of time and are presumptively construed to provide employment at will.”  Rowe v. Montgomery Ward & Co., 473 N.W.2d 268, 271 (Mich. 1991).  The term “tenure” is not defined in Branham’s employment contract, but Branham contends that “tenure” means “lifetime appointment” or “continuous employment.”

Professor Branham relies on Appendix 1 of the American Bar Association’s Standards, Statements on Academic Freedom and Tenure.  The text of the Appendix is incorporated by reference in the employment contract and it states in part:

After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their service should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies.  In the interpretation of this principle it is understood that the following represents acceptable academic practice:

* * * *

4. Termination for cause of a continuous appointment, or the dismissal for cause of a teacher previous to the expiration of a term appointment, should, if possible, be considered by both a faculty committee and the governing board of the institution. In all cases where the facts are in dispute, the accused teacher should be informed before the hearing in writing of the charges and should have the opportunity to be heard in his or her own defense by all bodies that pass judgment upon the case. The teacher should be permitted to be accompanied by an adviser of his or her own choosing who may act as counsel. There should be a full stenographic record of the hearing available to the parties concerned. In the hearing of charges of incompetence the testimony should include that of teachers and other scholars, either from the teacher’s own or from other institutions.  Teachers on continuous appointment who are dismissed for reasons not involving moral turpitude should receive their salaries for at least a year from the date of notification of dismissal whether or not they are continued in their duties at the institution.

ABA Standard 405 calls for schools to have a policy for tenure, the Appendix being an example.  The Court notes that the description of tenure in the Appendix is merely a model, and not the type of tenure held by Professor Branham.  In any event the language of Appendix 1 does not extend rights beyond those in the contract.  She is not entitled to “permanent or continuous tenure.”  The Court of Appeals stated:

Branham’s contract, including Policy 201, which refers to the concept of tenure but does not go so far as to define tenure as a right to continuous employment, does not create an obligation of continuous employment: her contract expressly limits its term to a single year.  While Branham may have had “tenure” in the sense that she had academic freedom, and that she and Cooley generally expected that they would enter a new employment contract in subsequent years, nothing in her employment contract, or the documents incorporated by reference therein, provides for a term of employment greater than one year.  The district court did not err in concluding that Branham is due only the employment protection and process specified in her contract.

I have a funny feeling that faculty, and not only those in Michigan, will be looking at the terms of their contract.  The meaning of the case is that while a faculty member may hold tenure, the employment contract defines the length of employment with no obligation to renew.  If that is the case, then tenure as law faculty understands the concept means, well, nothing.  There was a bit of a firestorm last year when the ABA considered revising the tenure language in the Standard. There is still no resolution to that matter, though the Sixth Circuit may have mooted the issue.  I expect Deans to consult with General Counsel and university presidents to answer the question, “You mean Professor X has tenure but I don’t have to offer him/her a contract?”  As Donald Duck might say, “oh boy, oh boy, oh boy.”  I expect a few more cases from other circuits testing the reasoning of this holding.  In the meantime, it’s law professor beware.  [MG]

Braun Offers Tips on Free Online Legal Research Tools at the ABA Annual Meeting

Here's Stephanie Francis Ward of the ABA Journal interviewing Matthew Braun, legal reference librarian for the Library of Congress at this year's ABA Annual Meeting. [JH]

New Law Students: Make Friends With A Librarian

U.S. News & World Report has a short post out for new law students who will start their law school career in the next few weeks.  It offers four points for navigating law school:

1. Come prepared
2. Focus on finals
3. Make friends
4. Remove distractions

I’d like to focus for a moment on the third one.  The author suggests making connections within the law school and the wider university through activities and other diversions as a break from the law school routine.  That’s great advice as law school can be a highly competitive grind.  I’d like to make one other suggestion that may help the new student:  get to know a librarian.  Why?  Because we know stuff that students do not.

We know the cycle of the law school academic year.  It normally doesn’t shock us when 1Ls invade the library for the legal writing treasure hunt.  It’s not exactly the running of the bulls, but there are certain parallels.  For students it’s a new experience.  For us, it’s “been there done that.”  Don’t be afraid to ask questions, even for the simple stuff.  There’s usually a ready answer that can make a student’s life easier.

We also know the resources.  It may be nice to have all of those apps on tablets and phones.  And I’m sure there are plenty of new law students who have a lot of experience doing research in college.  Legal research, however, is a different animal.  Lexis, Westlaw, and Bloomberg Law are not free in the wild.  The mechanics can be a challenge despite the trend to provide Google-style interfaces.  Librarians understand how this stuff works and can help.

I’ll offer related word of advice:  not everything is online.  More important, not everything is online and is free.   It’s more often than not a pay for play world.  Luckily the law library has licensed a lot of the good stuff.  We can tell students what information is easily accessible and what is not.  We can also explain how to get remote access to stuff, like articles, hard to find documents, exams, and other materials.

Librarians know the law school.  We’re not the concierge for the school, but we know how it works.  We can tell you generally which office likely handles what responsibility.  We can tell you where are public copiers, scanners, microform readers (yes, they are still necessary) and other useful resources may be.  We can also tell you generally what your expectations should be in using them.  The library is probably the friendliest location in the law school.  Students use the library facility regularly in spite of the integration of technology into the curriculum.  We try to make the place a comfortable and quiet space to study.  Take advantage of that.

So, make friends with a librarian.  We won’t break the rules for you.  But our institutional knowledge of the law program and legal information can make a student’s life easier.  We even know where the bathrooms are located.  Don’t be afraid to ask.  [MG]

AALL's Bylaws FAQ Was Released on Schedule

7) What are the next steps in the process for the proposed bylaws change?

The AALL Executive Board approved proposed bylaw amendments submitted by the Bylaws Committee on July 20, 2012. The motion approved by the AALL Executive Board read as follows: “That the Executive Board approve the proposed amendments to the AALL Bylaws and that the proposed amendments be submitted to the membership by distributed ballot, with a 60-day advance notice to the membership as of August 1, followed by a 30-day voting period.” Ballots will be distributed electronically to all current AALL voting members on October 1, 2012. Voting members may request a paper ballot if voting electronically is not an option for them. All ballots must be received electronically or by mail at AALL Headquarters by 11:59 p.m. on October 30, 2012.

I knew the E-Board's Bylaws FAQ was supposed to be released on August 1st. It was. Quoting a comment to this LLB post published on August 6th:

The Bylaws FAQ was released on Aug. 1. I got word of it by direct email from AALL Pres. Jean Wenger. Since I'm not remotely important, I have to assume it was sent to all AALL members. Anyway, it can be found at www.aallnet.org/main-menu/Leadership-Governance/bylaws/2012-bylaws-proposedamend-faq.pdf

(Emphasis added.)

Thanks Anon! I know I didn't receive the email last week. You?  It must have gone straight into my spam folder. Hopefully, the e-ballot email notice doesn't end up there.

I don't recall seeing the Bylaws FAQ link (or, for that matter, the July 30th date-stamped news release, Executive Board Approves Bylaw Amendments) on AALL's front page under the News heading when I checked AALLNET last weekend while drafting "All the world's a stage" at AALL's Members Open Forum. But, what the heck, perhaps the Bylaws FAQ link was displayed below the "View all News" fold at that time. My bad, I guess. As of this morning, both are displayed above the fold under the News heading.

No matter. The selected eight answered questions in the five page FAQ is a quick read. Do note that Board-approved proposed amendments also affect Article XI, Section 5: Chapter Bylaws and Article XIII: Rules of Order in addition to proposed Membership changes to Article IV, Sections I and 2. [Complete text of affected sections with proposed language changes] and are addressed in the FAQ. 

During the notice period, I guess alternative Bylaws suggestions ahead of the vote can be posted to AALLNET web communities but I know some AALL members refuse to participate in the forums because of AALL's web communications policy. Might be time to lurk to "read more about it." [JH]

Will Algorithms Replace or Assist Human Editors in Production of Legal Content?

How far will the creation of professional legal content be automatically generated is the topic of WK's John Barker post, Algorithmically Assisted Editorial Insight for Professional Publishers. A snip from the conclusion of the post:

I still do not see algorithms replacing editors. But there is an interesting possibility with “low value” content. For example, officially unpublished opinions do not have precedential value. The volume of these opinions is high. Human editors cannot invest valuable resources in summarizing those opinions compared to appellate court opinions. This is an example where automated methods might be sufficient for a customer’s research needs. Of course, automated content enrichment methods could be used to identify for editors those officially unpublished decisions that might be of particular interest. Closer attention is needed into the value of each type of content for professional customers and what combination of human and algorithmic enhancements are necessary to make it actionable.

I am convinced that professional publishers must strike a balance between applying algorithms and editors to content. What is clear is that technology is advancing and what tasks are delegated to computers versus editors will always be in flux. Any thoughts?

It is unusual for a vendor representative involved in tech and publishing to be seen thinking out loud by blogging. Certainly we do not see that from BLaw, Lexis or TR Legal, at least not uncensored and not full of marketing pablum. You may find WK's The Intelligent Solutions Blog interesting and insightful about where WK is heading. At the moment, WK is developing legal solutions for its European markets that may eventually make an appearance in the US market. [JH]

The Authors Guild Files Its Memorandum in the Google Book Scanning Case

The Authors Guild filed a motion for partial summary judgment in the Google book scanning case.  The motion calls for the following:

1. Google’s unauthorized reproduction, distribution, and display of in-copyright books violates 17 U.S.C. §§ 106(1), (3), and (5);
2. Google’s unauthorized reproduction, distribution, and display of in-copyright books are not “fair uses” pursuant to 17 U.S.C. §107; and
3. Under 17 U.S.C. §504(c)(1), representative plaintiffs and members of the certified class are entitled to an assessment of statutory damages of $750 per Book for Google’s copying, distribution, and/or display of Books in violation of 17 U.S.C. §§ 106(1), (3), and (5).

17 U.S.C § 106 reads as follows:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

I guess the Guild has accounted for the part of the statute that reads “Subject to sections 107 through 122” with the second point of the filing.  Google’s reasoning in its brief calling for a finding of fair use is pretty reasonable in light of precedent.  The Guild’s memorandum of law supporting the motion counters by saying Google’s scanning is not transformative at all because it is verbatim copying in whole and snippets are not transformative.  The Guild cites Supreme Court and Second Circuit precedent to that effect.  The Guild argues further that Google’s purpose is commercial in that it seeks an advantage over other search engines which do not have similar indexing and display of books.

Google argued that the scanned books did not act as a market substitute for the books at issue.  The Guild counters that the market was indeed harmed because it distributes books to libraries in return for scanning their collection.  The harm in this situation is that the libraries did not seek a digital license from the publishers to scan nor bought digital copies.  Under Supreme Court precedent, the harm should be measured to potential markets, such as a licensing market.  The Guild, being the nice guys that they are, seeks the statutory minimum of $750 per infringement.  Judge Chin will have his work cut out for him.  Reply briefs are due near the end of August.

Download the Memorandum of Law in Support of Authors Guild.  [MG]

"All the world's a stage" at AALL's Members Open Forum

And at Boston 2012, this was clearly evident in the Podium People's "As You We Like It" performance.

In RESPECT: Musing on AALL Members Forum, 2012, Betsy McKenzie offers her perspective on the two major issues "addressed" during AALL Boston 2012's Members Open Forum: the proposed bylaw membership changes and how future annual meeting programming will be administered by AMPC. I put addressed in quotes because the Podium People kept saying "we are prepared to answer questions" about the bylaws amendment that was unanimously approved by the Executive Board in their pre-conference Boston board meeting. In this case, "prepared" means theatrical staging. Betsy writes:

This item was introduced gingerly, with the moderator and executive board members obviously waiting for a bunch of angry responses. They had 2 former presidents of the association all ready primed with prepared statements about why it is such a terrific idea and why it’s the future of the association. They sort of didn’t know what to do when they received very little feedback from a fairly silent audience.

Frankly I expected the Executive Board to approve the bylaws changes but I had hoped one or more E-Board members would have voted against it. So the unanimously approved membership bylaw change will be up for a vote of the AALL membership. The Podium People indicated that an FAQ about this will be provided. Will it be based on the prepared statements Betsy referenced?

I am unclear whether that FAQ will accompany the ballot or will be published separately and before the ballot with a reasonable amount of time being provided for the expression of alternative views. Of course, then there is the issue of how any such views would be provided to the membership -- by the same means the E-Board uses? Since the E-Board vote was unanimous, there will be no minority views expressed in its approved FAQ.

Where is the "healthy debate'"? AALL statements prepared for former AALL presidents to present at the Members Open Forum, really? The attendance of two rank-and-file members at the E-Board session who were not asked to express their opinions about the Bylaws agenda item per E-Board meeting protocol that stipulates non-Board members may speak only when asked to by a Board member. None did.

If the E-Board's approved Antitrust FAQ is any indication, conveniently selected questions with equally convientiently scripted brief answers is becoming AALL's norm. For the official bylaws FAQ, it is reasonable to expect a white-washed gloss-over based on the warm snuggie known as the E-board "group-think" soliloquy.

Time is of the essence, right? In the Bards of Chicago's Théâtre de l'Absurde, timing certainly is. On July 22, an FAQ about AALL programming procedure changes was posted on AALLNET. That was a couple of days after Steve Lastres, the outgoing chair of the PLL SIS, posted a membership alert on AALL web forums. It was also the first day of Boston 2012. Now, how many attendees do you think actually thought about checking their emails for AALLNET postings during the annual meeting?

Great timing for the release of this FAQ. Of course if our association's official playwrights view rank-and-file existence as having no meaning or purpose other than being a revenue source, then all communication can be expected to break down because contrary opinions are just irrational and illogical speech that leads to one ultimate conclusion, silence. Loop back up to the last sentence in Betsy's quote above.

The already approved annual meeting programming changes was another topic addressed at the Members Open Forum and reviewed in Betsy's post. She charactizes it as "the AALL takeover of the highly successful PLL Summit." In response to Steve Lastres' questions the nutshell answer from the Podium People was "take a hike, Steve." (My assessment, not Steve's.)

This issue is broader than just the PLL Summit. Even my little SCCLL SIS issued a membership alert after the annual meeting. The programming changes are a wholesale takeover of the annual meeting's agenda. See Programming AALL's Next Annual Meeting: Top-Down or Bottom-Up? Compare the new AMPC procedures with the following rhetorical statement from the AMPC FAQ [Download the FAQ]:

Annual Meeting attendees seek relevant, substantive educational content that addresses their professional needs. AALL members – particularly SISs – will be crucial to helping the Annual Meeting Program Committee (AMPC) identify topics critical to our members’ professional success and development.

In calling for improved and more timely communications from the E-Board to the rank-and-file, the E-Board's FAQ communications strategy have taken the tactic of issuing top-down propaganda soliloquies. With respect to AMPC FAQ and the forthcoming Bylaws FAQ, a strong case can be made that their release is a tad too timely for rank-and-file responses. My hunch is given the opportunity, some members would present alternative proposals by way of logical construction and argument in reasoned narratives, something AALL apparently cannot do since it has fallen in love with the convenience of the FAQ short-form format.

E-Board flash "transparency" needs rank-and-file accountability. Absent an Occupy AALL movement, that's more than just a wee bit difficult to do when the Official AALL Players is staging its performance of "As You We Like It" with tickets priced at the cost of membership dues. For more, see Betsy's four-point statement on where the real problem lies. [JH]

"America's Only Sports Breastaurant!" Buys a Deserted Town in Texas and Renames It "Bikinis"

Did you know you could buy a town on Craigslist? That's what the company that owns the Bikinis Sports Bar & Grill chain did. The company purchased the abandoned Texas town known as Bankersmith, Texas and promptly renamed it Bikinis, Texas. See Say hello to Bikinis, TX: Proud "breastaurant" empire expanding into city governance. Hat tip to Bruce Carton's Law Blog Watch post. [JH]