Law Librarian Blog

Don't Mess with Texas: A UN takeover of the United States, really?

ABAJ News Debra Cassens Weiss has the story at Texas County Judge Sees Prospect of Civil War and UN Takeover if Obama Is Re-Elected. Will the US military be providing mosts of the boots on the ground under the UN flag?

Note: The person who made the reported statements may or may not be a sitting county judge hearing cases. In an update to her story, Weiss reports he serves in a county administrative role in Lubbock County on the Commissioner's Court. [JH]

$675,000 Damage Award Stands in Tenenbaum File-Sharing Case

The most recent order in the Joel Tenenbaum file-sharing case came down yesterday.  It’s a clear win for the plaintiff record labels.  Procedurally, the case was returned to the District Court after the First Circuit overturned Judge Nancy Gertner’s reduction of damages on due process grounds (660 F.3d 487).  The First Circuit reasoned that the District Court should consider common law remittitur before considering the due process arguments.  Judge Rya W. Zobel, hearing the case on remand, said that remittitur is not appropriate and that the due process argument on excessive damages does not apply to a case where the damages are defined statutorily.

The Judge would not entertain a remittitur motion because of the way Tenenbaum handled his file-sharing.  He was warned about his activities by numerous parties, including his father.  He subsequently lied about his file-sharing and tried to blame others for it, finally admitting that he lied.  The order recounts what constitutes Tenenbaum’s wilfullness and concludes:

In short, there was ample evidence of willfulness and the need for deterrence based on Tenenbaum’s blatant contempt of warnings and apparent disregard for the consequences of his actions.  In spite of the overwhelming evidence from which the jury could conclude that Tenenbaum’s activities were willful, the award of $22,500 per infringement not only was at the low end of the range – only 15% of the statutory maximum – for willful infringement, but was below the statutory maximum for non-willful infringement.  Considering all of the aforementioned evidence, the jury’s damage award was not so excessive as to merit remittitur.

Judge Zobel noted that the Supreme Court case of BMW v. Gore, 517 U.S. 559 (1996) did not apply in this case.  Gore reduced an excessive award of punitive damages in light of minor damages to a purchased vehicle.  The District Court used St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919) as the standard, taking the hint from the Second Circuit opinion to that effect.  The Court basically said that Congress has the power to set the range of damages under the Constitution and that Copyright Act provides the notice as to the types of damages available to plaintiffs.  The Williams case affords wide discretion to the legislature to set damages which the Court should not disturb.

I think Judge Zobel’s order is written in a way that it will an uphill climb for Tenenbaum and his lawyers on appeal.  The opinion makes it easy for the First Circuit to simply agree with the reasoning and affirm the result.  The Supreme Court declined to review the original appeal which led ultimately to this order.  A copy of Judge Zobel's order is available here via CNET News.  [MG] 

Vendor-Provided Information Solutions for National Party Conventions This Presidential Election Year: First, Lexis-GOP Convention, Second?, Third? ...

Earlier this week it was announced that LexisNexis was named the online research provider for the GOP convention [Dayton Business Journal, Aug. 21, 2012].

"LexisNexis is relied on by business professionals, attorneys, government officials and journalists alike for current state-of-the-art information solutions. We're grateful for their participation" -- William Harris, CEO of the 2012 Republican National Convention Committee on Arrangements.

Like OMG dude, I thought the Republican Party relied on Fox News for its information solutions. Will the Democrats just rely on MSNBC or one of our competing vendors for its convention's information solutions?

Love 3 Geekster Greg Lambert's tweet comment: "hmm… if LexisNexis gets the GOP convention does that mean Westlaw gets the Dems? Bloomberg gets the Libertarians? ;-)" I guess that leaves the Green Party with state-of-the-art open access information solutions. [JH]

A Reference Desk Perspective on the Quality of Content Farm Information

From the abstract of R. Lee Sims and Roberta Munoz's The Long Tail of Legal Information: Legal Reference Service in the Age of the Content Farm, 104 LLJ 411 (2012):

The authors discuss the implications for legal reference service of a new feature of the legal information universe: the content farm. This article describes the content farm, its workings, what makes it profitable, and the market and informational forces that drive content farm creation. It also discusses how reference interactions may be altered if a patron has consulted content farm information before coming to the reference desk.

Recommended. [JH]

Friday Fun: A Law Library Infomercial for Law Students

Created by Maurer Law Library. [JH]

Does Studying For The LSAT Make You Smarter?

That's what one scientific study seems to indicate.  LiveScience is reporting that studying for the LSAT can change brain structure and possibly improve IQ.  Money quote:

Mackey and her team looked at brain scans of 24 college students or recent graduates before and after 100 hours of LSAT training over a three-month period, a statement from Berkeley explained. Compared with brain scans of a control group of their peers, the trained students showed increased connectivity between the frontal lobes of their brains, and between the frontal and parietal lobes. These circuits are involved in fluid reasoning, or the ability to tackle new problems, which is central to IQ tests.

Read the full article here.  I always thought that the LSAT and law school had an effect on the brain.  I just never knew it was a positive effect.  [MG]

Getting Involved in Gov. 2.0, Part I: What is your institution's top priority for open government data?

"There’s plenty of data out there. What are you doing with it? How can you manipulate raw free resources into something good for your institution?" -- Meg Lulofs

In Open data in a librarian hat: What's your Number One?, public law librarian Meg Lulofs makes the case that mission-specific institutional objectives on ways and means to use open government data should be the number one priority for promoting its value:

With respect to open gov data: government accountability is not unimportant to me as a voter. However, as a law librarian, I need to focus on Number Ones with more specific, smaller-scale goals than transparency, that will create measurable outcomes, allowing me to show concrete value to my institution. The big picture of how information is available, and the relationship between the government and the governed is important, but it doesn’t always get you funding, and it can’t always answer the question of the patron in front of you.

When Lulofs writes "we library-types, we information professionals, we decision makers, and perhaps we citizens need to narrow open gov to make it work for us," I don't believe she is calling for the open gov data movement to reduce its comprehensive focus. I prefer to think that Lulofs is calling upon us to narrow our focus on specific institutional and/or shared institutional interests in the utilitarian benefits of having open access to the govenment data to use.

While Lulofs makes a good case to institutional-specific objectives, a more pragmatic case can be made for supporting the development of tools and programs to utilize open gov data based on the shared interests of specific types of libraries in general and different types of law libraries in particular. The key here, as Lulofs highlights, is to craft raw open data into resources that address the information needs of library users. [JH]

Forecasting the Near-Term Future of Big Data Use

Pew Research Center's Internet Project conducted a non-random survey on the future of Big Data that "asked digital stakeholders to weigh two scenarios for 2020, select the one most likely to evolve, and elaborate on the choice. One sketched out a relatively positive future where Big Data are drawn together in ways that will improve social, political, and economic intelligence. The other expressed the view that Big Data could cause more problems than it solves between now and 2020." For details, see The Future of Big Data. [JH]

Suit Against Brooklyn Law School Gets A Rough Hearing

The class action suits against law schools received another hit according to reports in the National Law Journal and the ABA Journal.  Judge Schmidt presiding over the case against Brooklyn Law School (BLS) indicated serious doubts about the fraud claims leveled against the school.  The National Law Journal quotes him as saying to plaintiff’s counsel “Where is the basis for a fraud argument?  You have generalized industry statistics. Where do you see that they have deceived the public?"

The article does not contain a direct response to that question.  The general argument for fraud, though, is that the figure is misleading by not indicating how many of those jobs were legally oriented or required a J.D.  The attorney for BLS countered by saying the school was within reporting standards in place by the ABA.  In any event, the figure of 91.3 percent employment is irrelevant as it is not a predictor of future employment opportunities.  The future is not actionable under New York law.

The attorneys sparred over whether the Second Circuit case of Gotlin v. Lederman applied to the deceptive marketing claim.  That case involved representations of doctors on the cure rate for pancreatic cancer.  There were claims of an advertised successful treatment rate of over 90 percent, though the term “successful” was not explained in specific detail.  There were issues concerning the way the brochures advertising cancer treatment represented the likely results.

The Second Circuit affirmed the dismissal of all of plaintiff’s claims by the District Court but returned the deceptive marketing claim back to the District Court as a genuine issue of material fact as to whether the representations were deceptive and whether plaintiffs were injured.  The Appeals Court did note:

In this respect, the district court correctly concluded that defendants’ marketing brochures are only evidence of “what representations the defendants made” and not “whether those representations were fraudulent or misleading,”  Gotlin v. Lederman, 616 F.  Supp. 2d 376, 392 (E.D.N.Y. 2009) (emphases in original).  Accordingly, the court concluded that it was unable to assess the relative truthfulness of the scientific and medical claims appearing in defendants’ brochures without at least some evidence, expert or otherwise, indicating that those claims were false or otherwise misleading.

The Court goes on to note some of the superlatives in the doctors' marketing brochure:  “possibilities never dreamt before,” “superb results,” “great effectiveness,” and “superior outcomes.”  I don’t know if BLS advertised law school as an opportunity leading to a great career in the law or with any language that implied a guarantee or likely success beyond the reported jobs number.  I do think that is the some of evidence the plaintiffs in the law school cases will probably have to supply beyond raw numbers.  This assumes the case against BLS will survive a summary judgment motion which the articles imply it will not.  [MG]

The Bluebook: There's an eReader app developer selling that

Bob Ambrogi reports that the first moble editon of The Bluebook has been launched for the iPhone and iPad using Ready Reference Apps' rulebook as its platform. While the rulebook app is a free download, the content is not. The Bluebook via Ready Reference Apps costs $39.99 or a one-year online subscription costs $32. Bulk licensing discounts are available. Bob notes that the print edition of The Bluebook costs $34. There is also an online web-based subscription service not produced by the app developer for the The Bluebook.  

Ready Reference Apps also sells the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, Criminal Procedure and Evidence priced at $1.99 each for it's rulebook platform. Bob notes that today (August 22) and only today the federal rules but not the The Bluebook will be available for free to all rulebook app users.

For more on rulebook's functionality, see Bob Ambrogi's LawSites post. Bob does not indicate plus I have my doubts that Ready Reference Apps has an exclusive license to be the sole provider of a moble edition of The Bluebook. [JH]

Three Questions about Programming Future AALL Annual Meeting Sessions

While off in a post-op narco-haze (read painkillers for minor knee surgery) late last week, AALL President Jean Wenger posted a message about AMPC's new procedures to screen programming submissions to the Members Open Forum on August 17th. Read it yesterday. More importantly, yesterday Cheryl identified what many may think are the three most important issues in this controversy in Question, Answer, quoting from Wenger's statement, and her issue-specific "Musing" format:

Question 1:  Is it the intention of AALL to bring the currently independent type model of the PLL Summit into the fold of the larger AALL Annual meeting?

Question 2:  How will the "blind review" process that is to be used by AMPC for choosing programs for the annual meeting in Seattle work?

Question 3:  Is it true that all SISs will also be limited to sponsoring only one independent education program?

I don't know if Cheryl was intentionally trying to minic AMPC's FAQ but her takeaways aka musings from AALL President Wenger's Members Open Forum post are more direct and to the point than anything written by AALL officially. Of course, they are Cheryl's own opinions about the issues but her 3 Geeks post, Rethinking My Musings on Future AALL Annual Meetings and the Fate of the PLL Summit, is recommended for deconstructing the matter. [JH]

Beyond Copy and Paste: Intelligent Content EveryWare as the Next Wave of Technological Innovation from Wolters Kluwer

Unlike our other major vendors, Wolters Kluwer's executives and technologists in Europe present business ideas with a minimum of the usual marketing pablum on the Company's Intelligent Solutions Blog. In a recent two-part series of posts, WK's Jack Lynch, a member of the Executive Board of Wolters Kluwer whose responsibilities include global shared services, technology and business development, discusses the "next wave" business model for delivering contextualized and actionable solutions for intelligent data-intensive professional use.

I believe our business is evolving along two dimensions—1) The Computing dimension where we find ourselves today in the Post PC era barreling towards an era of Ubiquitous Computing or, what Adam Greenfield has termed, “EveryWare” and; 2) The Information dimension where today we are just beginning to contextualize information in different customer contexts as we continue to move along the data to information to intelligence continuum.

For more, see Part 1 and Part 2 of Lynch's "Next Wave" post series on the Intelligent Solutions Blog.

Angel Sancho Ferrer, Research & Development Director in Content & Online Services, Wolters Kluwer, South Europe follows up on Lynch's theme at Content in Search and Inference Engines.

The integration of content and software is a topic as broad as how to create Artificial Intelligence; and it is very deeply related with the core assets of Wolters Kluwer, with enriched content and algorithms that understand those special structures for research or workflow tools.

Expanding on the concept of "actionable content" presented by Lynch, he discusses the limitations of current search technology compared to rules-based inference engines.

Search technologies, as powerful as they have demonstrated to be, have limits. They:

• are reactive, and so depend on the quality of the query;
• cannot create information, just select the best documents and fragments (without modifying them, just copy and paste).

Rule systems, on the other side:

• Can follow a dialog-based approach to obtain more information from the user, and even from a software system, changing its internal states and strategy.
• Can create information that was not there (i.e. a computable document).

The delivery of actionable content by way of inference engines can be viewed as a solution that embeds search and professional-grade editorial content to generate made-to-order templates for work product. Think today's personal income tax preparation software only ratched-up well beyond Form 1040 rules for complex legal matters. This borders on Artificial Intelligence. But to make it work it will require specialist legal expertise with an editorial staff constantly reviewing legal developments to update inference engine rules.

One could argue the case that WK's US legal platforms are not even close to WK's "Next Wave" business development model. But they may be someday. If they do, WK presents a competitive threat to BLaw in several specialist market segments and could "nudge" BLaw and WEXIS to offer specialty-centric "solutions" that are state-of-the-art as defined by WK. [JH]

Law School Applications Down, Tuition Goes Up

One would think that law school news about declining applications and the terrible job market for law graduates isn’t worth a mention anymore.  Three current articles news articles taken together highlight some of the problems facing law schools as the fall semester is about to begin.  The first is from U.S. News & World Report, indicating the top ten law schools receiving the most applications in 2011.  The surprise here is only four schools ranked in the top 10 are represented.  

Those are Columbia University (3^rd list, ranked 4^th), the University of Virginia (4^th list, ranked 7^th), New York University (6^th list, ranked 6^th), and the University of California-Berkeley (6^th list, ranked 7^th).  The school with the most applications is Georgetown University, with 9, 413, down from 11,524 in the prior year.  Given that the available seats in the entering class are merely a fraction of either number doesn’t exactly inspire sympathy.  Yes, yes, I know.  The quality of potential students in that application pool may not be as good as in previous years, which leads to the next story. 

Above The Law reports that the entering class at Cooley Law School is down some 400 law students, or 27 percent.  The article contains the usual rips to Cooley, but offers that the solution to the problem is to raise tuition by 8 percent.  If there is any outrage over that, it should be shared by other law schools as CBS News is reporting that average tuition at private law schools has jumped 4 percent to an average of $40,585, and 6 percent to an average of $23,590 at public law schools.  The inflation rate for 2011 came in at 3.16 percent.  What a world.  [MG]

What Does "Open Government" Mean?

Quoting from the introduction of Harlan Yu & David G. Robinson's The New Ambiguity of "Open Government", 59 UCLA L. Rev. Disc. 178 (2012):

In this Essay, we ... argue that the term “open government” has become too vague to be a useful label in most policy conversations. Open data can be a powerful force for public accountability—it can make existing information easier to analyze, process, and combine than ever before, allowing a new level of public scrutiny. At the same time, open data technologies can also enhance service delivery in any regime, even an opaque one. When policymakers and the public use the same term for both of these important benefits, governments may be able to take credit for increased public accountability simply by delivering open data technology.

In place of this confusion, we offer a stylized framework to consider each of these two questions independently. One dimension describes technology: How is the disclosed data structured, organized, and published? We describe the data itself as being on a spectrum between adaptable and inert, depending on how easy or hard it is for new actors to make innovative uses of the data. The other dimension describes the actual or anticipated benefits of the data disclosure; the goals of disclosure run on a spectrum between service delivery and public accounta­bility. This is admittedly a simplification of reality: In practice, many disclosures serve both objectives. However, it is common for one of the two motives to predominate over the other, and we believe this provides a useful starting point for thinking about the competing goals of disclosure.

[JH]

Learning How to Unlock Government Data: The Sunlight Academy Launched

The Sunlight Academy is a collection of interactive tutorials to learn about tools and resources created and used by the Sunlight Foundation and others to unlock government data. The objective is to provide a government data research training portal to make government more transparent and accountable.

So whether you are an investigative journalist trying to get insight on a complex data set, an activist uncovering the hidden influence behind your issue or a congressional staffer in need of mastering legislative data, our transparency training program will teach you how to better connect the dots and make our tools and resources work for you.

For more, see Amy Ngai's Sunlight Goes Back to School post. [JH]

Google Book Scanning Case Update

The Court in the Google book scanning case formally accepted a joint amicus brief filed earlier in the month by the American Library Association and the Electronic Frontier Foundation.  I wrote about the content of that brief on August 2.  Since that time the Authors Guild argued against the Court accepting those briefs.  The Guild’s points were that the briefs were really friends of Google than of the Court, citing precedent that rejected such filings.  The response was that there is no mechanical application of a rule that limits amicus briefs at the District Court level, noting the discretion of the Court in accepting such briefs.  The Guild, in any event, has filed similar briefs in cases where it had self-interest.

Various legal and humanities scholars submitted their own amicus brief shortly after the same time the ALA and EFF filed their brief.  This was formally accepted by the Court in the same order.  That brief argues that “text mining is a non-expressive use that presents no legally cognizable conflict with the statutory rights or interests of the copyright holders.” 

The technology implemented by Google, and potentially others, allows for unprecedented analytical opportunities through digitized content.  The use here is non-expressive and the copying (even at the level of 20 million or so books) is merely incidental to generate the metadata used by scholars.  This use is socially beneficial and that is one of the considerations in a fair use analysis.  The brief contains a series of examples of how scholars use Google’s technology to advance their understanding of their fields. 

The Court has laid out a briefing schedule as follows:  The amici will not be allowed to file responses to subsequent filings;  parties will file their opposition to the cross-motions for summary judgment on October 24;  the Guild can file its response to the amicus briefs by November 19; final briefs in support of the cross-motions for summary judgment are due on the same day; and oral argument on the cross-motions for summary judgment will take place on December 4. Relevant documents appear below.

Download Authors Guild Motion Opposing Amicus Filing

Download Reply To Opposition of Amicus Filings 

Download Amicus Brief by Humanities and Legal Scholars

Download Order Accepting Amicus Briefs

Download Order With Briefing Schedule

[MG]

Living in the Past: Who will take the lead in establishing legal citation protocols now that the end of the print era is in sight?

The next edition of the Canadian Guide to Legal Citation "could prove to be a breakthrough edition if the editors choose to end the fiction that print law reports still matter in legal research" writes Gary Rodrigues. To do that, he recommends the Guide's editors should "introduce reality into the practice of citing court decisions by a few simple changes to the recommended Hierarchy of Sources for case law."

Rodrigues adds:

Of course, the legal publishers can cut to the chase and get ahead of The Guide to Legal Citation. Citations to electronic sources for the commercial publishers now appear in print publications for their own digital sources together with print citations.

Where it is unavoidable, citations for competing electronic databases are also referenced, i.e. where a judgment specifically refers to a competing electronic source. Ideally, legal publishers should follow the print model and provide all possible correlative electronic citations in every print publication. Without a doubt, the fear of giving a competitor an advantage makes that unlikely in the foreseeable future.

Fear of change will also delay decisions to drop print citations. Academics in particular will worry that their words will look less scholarly and less authoritative if they are not heavily footnoted by print citations. No publisher will want to be first for fear of being criticized by those living in the past.

Here in the US, legal publishers also could cut to the chase by adding paragraph numbering to court opinions in their e-text where pagination has not yet been officially eliminated for pinpoint cites. Who will be the first to take the bull by the horns by just doing it? Since what is and what is not a paragraph is a matter of interpretation, commercial vendors can copyright their individual paragraph numbering systems! Who will decide that a blockquote is (or is not a) new paragraph first just may win AALL's Best Product of the Year award someday.

Rogrigues explains why citation protocols should change because the era of print law reporting is history on Slaw in Reality Check. The same argument can be made for statutory and regulatory resources now and, in the not too distant future, for secondary legal sources. [JH]

Can't Beat the "Real Thing" (Or why LLB posts have been adding music video clips to recent posts because music is the universal language)

It's not unlike Mad Men don't know that commercial jingles have a certain stickiness. Remember Coke's wildly popular 1971 Hilltop singers ad? It was preceded and followed by snippets of the jingle message used in it.

Will we see AALL and vendor pitches producing similar ad jingle series based on their repetitious rhetroical messages to sell their "real thing" POVs across ? Might be a good idea for AALL to produce musicial renditions of their FAQs. Ditto for push-back "Dear Colleagues" and "Valued Customers" boilerplate letters from TR Legal. [JH]

The Precusor to the Hilltop Singers Ad: The  relatively unknown 1969 radio commerical "It's the Real Thing" and "Coca-Cola is Coke" Jingle Performed by The Fortunes

The Mad Men Landmark Pitch: I'd Like to Buy the World a Coke Commercial, 1971

A Circa 1972 Follow-up.

And, Of Course, the 1990 "Hilltop Reunion" Super Bowl Ad. It featured the original singers and their children, and culminating in a medley of the original ad lyics and the then-current "Can't Beat the Real Thing" follow-up jingle.