Law Librarian Blog

2011 Biennial Survey of Federal Depository Libraries Report Released

The Superintendent of Documents report can be obtained here. See also the GPO's suitable for display infographic. Hat tip to InfoDocket's Gary Price. [JH]

Justice Thomas Speaks

According to a short report from the AP, Justice Thomas addressed University of Florida students today and told them that judging people by law school rankings is like discrimination.  Well, yeah, but it doesn't violate the Equal Protection Clause or any federal or state statue, now does it?  He had no answer when asked what was the most important decision the Court made since he joined in 1991.  I'll say this:  Justice Scalia is at least entertaining.  Here's another report on Justice Thomas from WUFT-FM.

In other news, Justice Ginsburg spoke yesterday at CU-Boulder.  Here's a report on her talk.  [MG]

Apple And Publishers To Settle e-Book Case In Europe

The European Commission has posted some details of a proposed settlement between it and Apple and four publishers over the switch from the wholesale model to the agency model.  The Commission investigated whether this violated competition rules for Europe.  From the Press Release:

The Commission considers at this stage that these companies may have breached EU antitrust rules that prohibit cartels and restrictive practices by jointly switching the sale of e-books from a wholesale model to agency contracts containing the same key terms (in particular an unusual so-called "Most Favoured Nation" – MFN – clause for retail prices). The agency model allows more control by publishers over retail prices. The Commission has concerns that this switch may have been the result of collusion between competing publishers, with the help of Apple, and may have aimed at raising retail prices of e-books in the EEA or preventing the emergence of lower prices.

In the proposed commitments, the five companies offer to terminate existing agency agreements and refrain from adopting price MFN clauses for five years. In case any of the four publishers would enter into new agency agreements, retailers would be free to set the retail price of e-books during a two-year period, provided the aggregate value of price discounts granted by retailers does not exceed the total annual amount of the commissions that the retailer receives from the publisher.

The Wall Street Journal reports on the issue and notes that Apple and Macmillan would rather fight it out in the United States rather than settle:

The offer is notable because Apple and one of those publishers—Macmillan—have refused to sign on to a similar settlement in the U.S., where they are gearing up for a court fight with the government over allegations they colluded to fix prices.

The discrepancy raises the prospect that booksellers in Europe will be allowed to discount books by Macmillan in particular, whereas U.S. retailers will not. Macmillan declined to comment on the reasons for its differing legal approaches.

Those differing legal approaches may be related to the differences between the e-book market in Europe and the United States.  Here are excerpts from the Publisher’s Weekly report The Global eBook Market:  Current Conditions and Future Projections 2011:

Emerging ebook markets outside of the US and the UK are all estimated to currently represent at best 1 percent of the overall book market, making projections of future dynamics of growth extremely difficult. (And China is a different case altogether, with the prominent placement in China of mobile platforms.)

* * * *

How the American market picked up speed all of a sudden in fall 2010 to achieve the first double-digit market share in the key segment of bestselling fiction is a lesson to bear in mind for 2012 and 2013 – not for all of Europe, but at least for Germany and France. Yet with both specific factors shaping markets and reading cultures, a simple rerun of the American experience seems rather unlikely. In a global perspective, and with a horizon of the next three to five years, a more complex picture seems more realistic, with a handful of different patterns emerging, some more closely connected to global integration, and others – by cultural separation and through regulations – going digital at a slower pace.

My guess is there wasn’t enough profit in the European e-book market to make a fight with the EU worth the trouble to Apple and the publishers.  The United States, on the other hand….  [MG]

Gray is a Good Thing

Could it be a milage marker on the accumulating wisdom highway? See Betsy McKenzie's Hell No! I won't dye! [JH]

A Glutton for Punishment: (Phillips and) Yoo's Info-Antics

Soon after the SSRN release of The Cite Stuff: Inventing a Better Law Faculty Relevance Measure by James Cleith Phillips and John Yoo, ATL's David Lat wrote 

Some liberals view Professor John Yoo as a sadist. They cite Professor Yoo’s involvement in the so-called “torture memos” during his time as a lawyer in the Justice Department’s Office of Legal Counsel.

But I think Professor Yoo is a masochist. Only a masochist would try to develop a citation-based system for ranking the relevance of law professors.

For much more, see Lat's The 50 Most Relevant Law Professors ("Relevant law professors? Yes, they exist! ... Yes, law professors are efficient too!") Note well Lat's update by way of quoting from ATL law prof readers:

[T]his study is limited to full-time tenure-track faculty who are not clinical faculty, and is also limited to those professors on the faculty for the 2011-2012 school year. It only looks at the top 16 law schools according to the U.S. News and World Report’s academic peer rankings as databases are constantly updated and a citation study that stretches out over too much time will be biased in favor of the faculties done later in the study as the databases will have been updated and have more citations near the end of the period of gathering data.

Let the punishment begin continue. See, for example, Phillips & Yoo Citation Study Has Some Serious Problems ("Yoo and Phillips aren’t even measuring citations correctly, let alone quality.") Ouch. Leap to the Kevin Bacon frat house Initiation scene in National Lampoon's Animal House.

Frankly, the only value I see in the vast majority of these "studies" resides in their contributions to the arcane BDSM discipline known as the cultural anthropology of the frat house that is the legal academy. But see Beyond Cite Stuff by Law Profs for one research report that deserves closer examination and discussion than it is receiving.

Why isn't Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship [SSRN] receiving much buzz? Is it because the offered methodology is too complex for quick and easy critiques by members of the legal academy? Is it because the data set for the content analysis has nothing to do with law prof or law faculty publications?

Like OMG dude, why are the authors of that paper writing about a method to analyze court opinions and related documents based on information science! [JH]

Friday Fun: Welcome to the Licensing Options, Terms and Conditions of Life

Provided by Tom Scott. [JH]

Reminder: Today's Law Librarian Conversations "Summer 2012 Wrap-up/Fall Look Ahead" Podcast

According to the recent announcement, today's LawLIbCon program will cover "this past summer's annual meeting, a look at a group of new, specialized mini-conferences that will be offered this fall, new developments in legal publishing, new technologies, progress of UELMA, AALL news, the death of How To Find the Law, and much more."  Sounds interesting.

Co-hosted by Rich Leiter, Roger Skalbeck and Marcia Dority Baker, anticipated panelists include Greg Lambert, Ken Hirsh, Sarah Glassmeyer and Connie Crosby. The Summer 2012 Wrap-Up/Fall Look Ahead program will start at 1:00 PM Central Time. Here's the link. [JH]

NY Court of Appeals Formally Adopts Pro Bono Requirement For Bar Admission

I wrote last May about the 50 hour pro bono requirement the New York Court of Appeals planned to put in place for bar applicants in New York State.  The Court announced its formal rule last week and included an explanatory document on the rule.  Some of the relevant details about the rule include that the pro bono requirement will go in effect for anyone seeking admission to the bar after January 1, 2015:

Based on successful passage of the bar examination, any applicant who seeks admission to practice in New York after January 1, 2015 must satisfy the 50-hour requirement.  By way of example, any student commencing legal studies at an ABA-approved law school in the Fall of 2012, or any time after that date, will be required to satisfy the Pro Bono Requirement before admission to the New York bar.  The requirement need not be fulfilled before a law student applies to take the New York bar examination; rather, the 50 hours must be completed before filing an application for admission.

This essentially affects students starting classes this year, assuming they plan on taking the New York Bar exam.  The rule states that the 50 hours could be fulfilled in any of the 50 states and the District of Columbia or even in a foreign country provided the service complies with the rule requirements.  There are additional requirements to explain why the service was performed outside of the United States.  Students will need to be supervised and will be required to fill out a Form Affidavit of Compliance for each separate project.  As the Court made the distinction of the dates between taking the bar exam and admission to the bar, it also noted that the bar exam results are good for three years.  A student or applicant who fails to fulfill the pro bono requirement in that time will not receive a waiver.  That individual will have to retake the exam.

The Court stated what types of projects would qualify:

In general, qualifying pro bono work should be performed in the service of low-income or disadvantaged individuals who cannot afford counsel and whose unmet legal needs prevent their access to justice; involves the use of legal skills for an organization that qualifies as tax-exempt under Internal Revenue Code §501(c)(3); or involves the use of legal skills for the court system or federal, state or local government agencies or legislative bodies.

Other parts of the document emphasize the use of legal skills as a key component.  Time spent photocopying or other incidental tasks do not qualify as pro bono time.  Some clinical academic work for credit can apply, as well as some limited circumstances where the student receives a stipend.  The rule specifically excludes partisan political activities from applying to the pro bono requirement.  Speaking of partisan political activities, the Court was silent on whether the recipients of the pro bono work should feel “entitled” to this “government program.”  [MG]

eBooks Have "Arrived" According to Aptara-PW's Annual eBook Survey of Publishers

Reformating a series of related bullet points published under the "eBooks Have 'Arrived'" heading in Aptara-PW's Revealing the Business of eBooks, 2009-2012: Fourth Annual eBook Survey of Publishers (2012):

Even with pricing models in limbo (and in court), publishers are finally making real money from eBooks, confirming the legitimacy and potential of the eBook business. 36% of eBook publishers are realizing double-digit annual eBook revenues, an astonishing 100% increase (in publishers) since last year’s survey. Since the early days of eBooks, the double-digit revenue threshold has been regarded as the indicator of eBooks’ “arrival”.

When asked what were the greatest challenges publishers faced, "bringing e-books to market, device and format issues (61%), distribution issues (35%), and quality of converted content (29%) all came out ahead of digital rights management (22%)," quoting Digital Book World's Third of E-Book Publishers Now Seeing Double-Digit Digital Revenue. See also Jim Milliot's Aptara Survey Finds 40% of Trade Houses with E-book Sales Over 10% of Revenue on Publishers Weekly (note some questions about the findings in the comments trail).

A copy of the report can be downloaded here. (Free registration required). [JH]

Reclaiming IP Legal Analysis from Law and Economics

About Madhavi Sunder's From Goods to a Good Life: Intellectual Property and Global Justice (Yale UP, 2012), Martha Nussbaum wrote:

Sunder argues that one traditional focus of intellectual property law, economic efficiency, is too narrow. Efficiency is one important goal, but we should also consider how law affects people's capacity to participate in cultural production, to criticize tradition, and to pursue values of autonomy and mutual recognition. Equally valuable for experts and the general public, this book will reshape the entire debate about culture as property.

Last week Concurring Opinions hosted a blog symposium on Sunder's work. Links to the blog posts here. [JH]

Publishers To Appeal Georgia State e-Reserve Case

As readers know, the recent Georgia State e-reserve case was decided mostly in favor of Georgia State.  It was announced earlier this month that the publishers are appealing.  I refer you to the cogent analysis by Kevin Smith at the Scholarly Communications @ Duke blog on that.  He has links to the press releases by the Association of American Publishers and the joint statement by Oxford, Cambridge, and Sage on the decision and the forthcoming appeal.  Here are some quotes from them with my short comments. 

From the AAP statement:

If left uncorrected, these and other errors will encourage educational institutions across the country to engage in massive infringement of copyright at a great cost to the entire academic community. Publishers, authors, faculty and students are members of an educational ecosystem in which the creators and users of learning materials play complementary roles. Publishers identify outstanding authors and editors, transform manuscripts into leading scholarly works and produce, distribute and market the essential tools of teaching and learning. Publishers and authors must have the incentives to continue contributing to this ecosystem.

We are optimistic that the 11th Circuit Court of Appeals will provide a more balanced view of the fair use exception to copyright as applied to the use of digital content in education.

If uncorrected unchanged, libraries will have a better idea of the parameters of fair use in using electronic course materials compiled on site for integration in campus courseware.  I thought the Judge in the case went into excruciating detail on determining which works were covered by fair use and how she came to that conclusion.  None of it seemed outrageous or out of line in an area of law where congress and the courts seem to dance around the parameters of fair use.

From the joint statement:

This case had the potential to mark a significant first step toward addressing the need for clarity around issues of copyright in the context of higher education, where current practices around fair use in a digital environment vary widely and could benefit from sound judicial guidance. Our hope was that the District Court would provide that guidance.

Instead, the Court’s rulings, culminating in the August injunction decision, shift radically from long-accepted fair use principles and introduce, among other errors, unsustainable policies regarding the proportion of a work not readily available for digital licensing that can be digitally copied without restriction. We have no alternative but to appeal, to protect our authors’ copyrights and advocate for a balanced and workable solution

The case did mark a significant first step toward addressing clarity.  You just wound up on the losing side.  You asked the Court for guidance and you received it.  Maybe it wasn’t guidance you really wanted, but something else.  I don’t believe the Judge gave the library carte blanche to copy anything it wanted willy-nilly.  The Court bent over backwards to balance the equities.  The statement sounds more of a complaint that the troublesome doctrine of fair use exists at all.  I look forward to the briefs and the oral arguments.  [MG]

Colbert Interview With Jeffrey Toobin

I wrote briefly yesterday about Jeffrey Toobin's book, The Oath, in relation to a post on Justice Scalia.  Mr. Toobin was a guest last night on the Colbert Report.  I couldn't let that one go by.

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Jeffrey Toobin
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive

[MG]

Beckman Center Report on eBooks and eLending in Libraries

O'Brien, Gasser and Palfrey prepared a briefing document entitled E-Books in Libraries (July 1, 2012) [SSRN] for a library eLending workshop. Here's an excerpt from the abstract: 

Beginning with a brief overview of the history and the current state of the e-book publishing market, the document traces the structure of the licensing practices and business models used by distributors to make e-books available in libraries, and identifies select challenges facing libraries and publishers. Where possible, we have made an effort to incorporate stakeholder perspectives and real-world examples to connect analysis to the actual questions, issues, and challenges that arise in practice. The document concludes with a number of informative resources – including news articles, whitepapers, stakeholder and trade association reports, and other online sources – that might inform future conversations, investigations, pilot projects, and best practices in this space.

The topics presented in this briefing come at an important moment for the publishing industry, and in particular the e-book market, both of which have been rapidly evolving over the last several years. These changes are, in turn, affecting the models used by publishers’ horizontal and vertical business partners, such as libraries and distributors. While we have endeavored to provide accurate information within this document, the dynamic flux of the industry can make it difficult to accurately capture a comprehensive snapshot of its current state. For instance, during the course of our initial research we found that some information published as recently as September 2011 had already become outdated; other salient information is not made publicly available for competitive reasons. Please note that we consider this to be a working document, which we hope to develop further as information changes and the issues evolve.

Highly recommended. [JH]

In re Books Conference on Oct. 26-27

Organized by the Institute for Law and Information Policy, In re Books: A Conference on Law and the Future of Books will be held at the New York Law School on Oct. 26-27, 2012. Program topics include rightsholders, bookstores, libraries, eReaders and more. Details including registration information here. [JH]

CRS Questions The Relation of Tax Cuts To Economic Growth

For some reason, the amount of taxes individuals pay compared to their voting habits is in the news.  I don’t take a position on that, but I refer you to this article in the Atlantic, Tax Cuts Don't Lead to Economic Growth, a New 65-Year Study Finds.  The study in question is stated in a CRS report released yesterday called Taxes and the Economy: An Economic Analysis of the Top Tax Rates Since 1945 (Order Code R42729, September 14, 2012).  Here is an excerpt from the Summary:

Advocates of lower tax rates argue that reduced rates would increase economic growth, increase saving and investment, and boost productivity (increase the economic pie). Proponents of higher tax rates argue that higher tax revenues are necessary for debt reduction, that tax rates on the rich are too low (i.e., they violate the Buffett rule), and that higher tax rates on the rich would moderate increasing income inequality (change how the economic pie is distributed). This report attempts to clarify whether or not there is an association between the tax rates of the highest income taxpayers and economic growth. Data is analyzed to illustrate the association between the tax rates of the highest income taxpayers and measures of economic growth. For an overview of the broader issues of these relationships see CRS Report R42111, Tax Rates and Economic Growth, by Jane G. Gravelle and Donald J. Marples. 

Throughout the late-1940s and 1950s, the top marginal tax rate was typically above 90%; today it is 35%. Additionally, the top capital gains tax rate was 25% in the 1950s and 1960s, 35% in the 1970s; today it is 15%. The real GDP growth rate averaged 4.2% and real per capita GDP increased annually by 2.4% in the 1950s. In the 2000s, the average real GDP growth rate was 1.7% and real per capita GDP increased annually by less than 1%. There is not conclusive evidence, however, to substantiate a clear relationship between the 65-year steady reduction in the top tax rates and economic growth. Analysis of such data suggests the reduction in the top tax rates have had little association with saving, investment, or productivity growth. However, the top tax rate reductions appear to be associated with the increasing concentration of income at the top of the income distribution. The share of income accruing to the top 0.1% of U.S. families increased from 4.2% in 1945 to 12.3% by 2007 before falling to 9.2% due to the 2007-2009 recession. The evidence does not suggest necessarily a relationship between tax policy with regard to the top tax rates and the size of the economic pie, but there may be a relationship to how the economic pie is sliced. 

[MG]

More on Justice Scalia

I’ll add a little bit to Joe’s post on Justice Scalia, Is Originalism Hitting Its Sell-By Date? "October 1 may be the first day of the post-Scalia era."  The Hill is reporting on Jeffrey Toobin’s new book, The Oath.  He describes Justice Scalia as “furious” and “enraged” that Chief Justice Roberts changed his vote on the health care decision.  The book describes the ideological struggle on the Court to revise constitutional analysis.  But there is more. 

The recent book by Justice Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, has received criticism by a number of individuals.  One of those critics, Judge Richard Posner, apparently stung Justice Scalia enough to respond.  The Chicago Tribune describes Posner of accusing Justice Scalia as “making flawed arguments based on sloppy research.”  Scalia struck back yesterday by saying "You can get away with it in The New Republic, I suppose, but not to a legal audience."  Oh, I don’t know.  I think anyone can say anything to anyone.  Judge Posner is a known quantity where people take notice of his statements whether on or off the bench. 

Other quotes from the Tribune: 

"We are textualists. We are originalists. We are not nuts," he said. 

Can I get that on a tee shirt?  And on Roe v. Wade: 

What's more, the court's subsequent decisions on abortion are based on the judge-made theory of "substantive due process," which guarantees certain fundamental rights like privacy. It's "utterly idiotic," Scalia said. 

The entire article is worth reading.  [MG]

Is Originalism Hitting Its Sell-By Date? "October 1 may be the first day of the post-Scalia era."

Baltimore Law prof Garrett Epps thinks Justice Scalia may becoming a solid vote on SCOTUS -- "sort of a Clearence Thomas who talks." Solid votes do not influence other justices, something Scalia once did.

At 76, Scalia may have legacy on his mind. That might explain the massive new book he has just published with Bryan Garner, Reading Law: The Interpretation of Legal Texts, which proposes nothing less than a Unified Field Theory of legal interpretation. It might explain the overblown publicity offensive of the summer (Piers Morgan, for heaven's sake? Was Rachael Ray not available?), reprising greatest hits like the ever-popular "Get over it!" It might explain his eagerness to tell the world that he holds no grudge against Roberts for saving the PPACA.

For much more, see Epps' Does Antonin Scalia Still Matter?

Watch for Scalia (and Garner's) Reading Law: The Interpretation of Legal Texts becoming a regular "Deal of the Day" feature on WestMart. After the buzz dies down for this "groundbreaking book" yadda yadda, I'm thinking the marketing pitch will be...

Reading Law is a collectible because it is the last traditional legal treatise published by Thomson Reuters.

[JH]

Google Offers Software To Create Online Classes

Google is getting into the educational technology game by introducing Course Builder.  It's a piece of free software used to manage online classes:

Course Builder is our experimental first step in the world of online education. It packages the software and technology we used to build our Power Searching with Google online course. We hope you will use it to create your own online courses, whether they're for 10 students or 100,000 students. You might want to create anything from an entire high school or university offering to a short how-to course on your favorite topic.

Course Builder contains software and instructions for presenting your course material, which can include lessons, student activities, and assessments. It also contains instructions for using other Google products to create a course community and to evaluate the effectiveness of your course. To use Course Builder, you should have some technical skills at the level of a web master. In particular, you should have some familiarity with HTML and JavaScript.

Massive Open, Online Classes, or MOOCs, are getting popular in the general educational world.  I wrote about them recently in how they could impact law schools.  My basic premise is that law schools could use something like this to demystify the law to either the general public or prospective law schools.  As a side note to that discussion, see this story in the Daily Camera (Boulder) which describes how the Law School at the University of Colorado is conducting a set of legal lectures in a “Mini Law School” open to the public for a nominal fee:

In the end, CU officials hope the lectures will help people better navigate the legal system or even get them interested in considering law school.

Imagine doing that online instead of on campus.

Google offers design help through its wiki and other sources.  The company does take a bit of advantage by cross-promoting its own resources, offering other optional information about Course Builder via Hangouts on Google+.  Anyone interested in producing their own online classes should take a look at this.  It might also be useful to produce library instructional material.  [MG] 

Happy 225th "Birthday," U.S. Constitution

The National Constitution Center is "serving as the national headquarters for the 225th anniversary of the Constitution’s signing". [JH]

Size Matters in Recent Font War

For details, see Lowering the Bar's DOJ: Opponent's Use of 12-Point Font "Prejudices the United States" and NLJ"s In voter ID case, how big is the letter of the law?.

Where's my copy of Matthew Butterick’s Typography for Lawyers, "a book about legal typography that every person serious about good legal writing should own." Quoting Matthew Salzwedel. See also On the Virtues of Good Typography. [JH]