Law Librarian Blog

Jenkins' The Partisan: The Life of William Rehnquist

John A. Jenkins, the president and publisher of CQ Press, is a four-time recipient of the ABA’s Gavel Award Certificate of Merit, the highest award in legal journalism. Based on early buzz, he might become a five-time recipient for his The Partisan: The Life of William Rehnquist. See, e.g., Peter Landers' LB Bookshelf: Rehnquist Bio Doesn’t Pull Punches (WSJ Law Blog).

Quoting from the summary published here:

William Rehnquist's life story is profoundly significant yet largely unknown, which is how he wanted it. Rehnquist's place on the Court was at once an accident of history and an inevitable result of it—something that Rehnquist had secretly coveted since law school, and yet could never have connived to obtain. His nomination in 1971 was one of the modern political era's most unlikely appointments.
As a justice and later as leader of the Court, he presided over the some of the century's most dramatic decisions, including the impeachment of President Clinton and the resolution of Gore v Bush. In thirty-three years on the Supreme Court (nineteen as chief justice)—from 1972 until his death at age 81 in 2005—Rehnquist was on a mission, waging a quiet, constant battle to imbue the Court with a deep conservatism favoring government power over individual rights. His story is important because it teaches us why the Court matters, and how and why our least transparent, least understood branch of government has been politicized.

[JH]

Stanford Law Exceeds Financial Aid Budget

Hard to believe, but apparently Stanford Law School has run out of financial aid money and has to dip into its unrestricted funds to meet its needs.  Blame the economy on two fronts.  One is that the return on investments is lower due to the economic climate.  The other is that more students qualify for financial aid for the same reason.  The Stanford Daily has the story, noting that the average award for aid is $25,000, leaving students with an average debt of $109,000 at graduation.  I wonder how other schools are coping if this kind of thing is happening at Stanford.  I give Stanford credit for continuing financial aid under these circumstances.  [MG]

Friday Fun: Demetri Martin on Law School "Word of the Day"

From the YouTube blurb: "Demetri Martin telling a story about how he goofed around during law school before dropping out after 2nd year." [JH]

ALA and AAP Exchange Press Releases on eLending, More to Follow in the Near Future?

On Sept. 24, ALA President Maureen Sullivan issued An Open Letter to America’s Publishers (ALA E-content Blog link) regarding eLending practices in the publishing industry due in no small part to Simon & Schuster, Macmillan, and Penguin's refusal to provide access to their eBook titles in US libraries. The following day, AAP issued a response to ALA's "harshly critical open letter". AAP's press release includes the following announcement which I read, perhaps incorrectly, as an invitation to speak to AAP's members:

Within the narrow scope of our authority as a trade association, AAP has tried to help advance the dialogue on e-lending between libraries and publishers. The session we organized for former ALA leadership at our Annual Meeting remains our most-watched online video. In that spirit, AAP is set to host an event to be held in a few days welcoming Ms. Sullivan and providing her with a platform to speak to more than 100 members of the publishing community.

(Emphasis added.)

No word yet on either the AAP or ALA websites. [JH]

What's the Over-Under Bet? Originalism, Law & Economics, and Intellectual Property

In the "now for something completely irrelevant" category to the dustup between Scalia and Posner about Reading Law (2012) [something relevant here], I like both Scalia and Posner. They are "characters." It is not that I have any sort of personal relationship with either but as a nearly invisible PTE at the University of Chicago Law Library while attending Chicago's Graduate Library School in 1978-1980, I sorted Scalia's mail with him looking over my shoulder on Saturday mornings. I also routinely had to step over the library's books that were spilling out of Posner's office into the library's walkways to get to the stacks to pull something from the shelves.

I accepted the opinion of the professional librarians that Scalia was an up-and-comer. Mention was not made about his "orignialism" at the time but then we law librarians do have a professional bias toward performing legislative history research.

With plenty of time on my hands working weekends at Chicago's Law Library, I spent a fair amount if it reading Posner's classic The Economic Analysis of Law (multiple copies on reserve). It was the first treatise that made me start thinking about "The Law" because what Posner wrote was so foreign to my then naive understanding of what the law is. It was just by chance that reading and scratching my head over Law & Economics was a productive exercise because Posner et al. has proven to be the only "Law & ..." academic-produced school of thought that has had any real impact in the world of statutory and regulatory developments.

In an issue close to the interests of legal information professionals, drums have been beating about rescuing IP legal analysis from the myopia of the Law & Economics school which reduces intellectual property to economic efficiency arguments. The scholarly arguments come from Law & Culture's public policy analysis which attempts to reframe IP as cultural property. See Reclaiming IP Legal Analysis from Law and Economics. Not good enough without proving that the costs associated with IP are inefficent under a Law & Econ analysis.

Toss in an originalist interpretation of the "Copyright Clause"? Limited duration was viewed in the context a person's working life by our Founding Fathers. Applied to books, maps and charts, the Copyright Act of 1790 was for 14 years, with an option to renew for another 14 years. Clearly, this dovetailed into the human life span context. Too bad, however, that the Founding Fathers did not simply state "until the creator dies."

Toss in a more fundamental public policy argument that the current IP regime cannot be effectively enforced in the 21st century because of the inability to police widespread social behavior. See "Hacking" New and Old Prohibitions: From the 18th Amendment to Today's Copyright Laws. Will that resonant with legislators who remember the arguments found in Thoreau's Resistance to Civil Government (Civil Disobedience) (1849)?

What's the over-and-under bet on that happening when legislators' pockets are being filled by corporations whose lawyers are drafting copyright legislation.

Traditionally Congress has relied on copyright lawyers from the major interested companies, to sit down and write copyright legislation, a recipe not designed to protect the public interest. Congress shows little interest in becoming educated in the details of copyright legislation, enacting what the major interested parties agree on. The line at the top of the page [Article I, Section 8, Clause 8] from the U.S. Constitution is the charge given to Congress to "to promote the Progress of Science and useful Arts, by securing for limited Times..." Recent experience, and economic theory suggests that enlarging and encouraging the public domain and "intellectual and innovative commons" may do more to promote the progress of science and useful arts than locking material away as coporate asset. And "limited times" is surely not 95 years.

Michael Webb, Patent, copyright and posterity: Intellectual property and intergenerational rights. [JH]

A Bit More On Suppressing Books

I draw your attention to an article in The Atlantic called How To Make A Book Disappear by Maria Konnikova.  The book in question is Jonah Lehrer’s Imagine, which has been pulled from sales by its publisher over alleged fabrications.  Konnikova reviews other titles that have met the same fate though she is concerned that in the digital age books may not also disappear, but may be suppressed by publishers without explanation.

She recounts the lesson of Amazon years back having pulled George Orwell’s 1984 from Kindles because the company did not have the rights to sell electronic copies in the United States.  Most agree that episode was a heavy handed reaction to a legal question of rights.  The Lehrer removal wasn’t nearly as unilateral.  Copies that existed on electronic devices stayed.  All links, however, were removed from official commercial sources.

I wrote yesterday about publishers’ refusal to sell e-books to libraries as a type of banned books.  I also discounted the fear of piracy as one of the excuses publishers generally use to keep their product out of the digital hands of library users.  It really is a matter of control.  I agree with Konnikova that we should be concerned when digital systems can be used to censor content without a real explanation.  I would only add that the Internet is a lot like Las Vegas:  what happens on the Internet stays on the Internet.

I searched the words Jonah Lehrer Imagine PDF in Google and found a copy of the advanced uncorrected proof in less than 30 seconds.  For those who condemn Google for making this available, the same search in Bing offered the same links.  My point is not to promote literary piracy.  Rather, the point is that piracy regrettably becomes the only alternative when no legal means for acquiring content is available.  [MG]

Pro Bono Net's Libraries and Access to Justice Webinar Series

Quoting from Pro Bono Net's free webinar series announcement:

With funding from a Legal Services Corporation Technology Initiative (TIG) grant, Pro Bono Net is producing four national training webinars for librarians, in collaboration with the Legal Aid Society of Louisville, Central Minnesota Legal Services and Legal Services State Support (MN). The goal of the series is to increase awareness among librarians and community stakeholders about online access to justice resources that are available to them, how librarians can access and utilize those resources to better educate and assist their patrons with legal needs, and models for legal aid-library collaborations to connect people with legal information.

The first webinar, Welcoming Librarians to the Access to Justice Movement, conducted on September 13, 2012, provided an overview of legal information needs among low-income and vulnerable Americans, the nonprofit legal aid, court and community groups that serve them. Here's the schedule for the remaining webinars:

• Webinar 2: Connecting Library Patrons with Legal Information: Key Resources
  Date: Thursday, September 27, 2012
• Webinar 3: Helping Patrons Find Legal Assistance in their Community: Online Referral Tools
  Date: Thursday, October 11, 2012
• Webinar 4: Developing Legal Aid-Library Collaborations: Models and Replication Resources
  Date: Thursday, November 1, 2012

Details on Pro Bono Net's Libraries and Access to Justice webinar series can be found here. The webinars will be archived and made available along with all presentation materials.

Hat tip to LISWire. [JH]

GAO's Evaluation of the Implementation of the E-Government Act of 2002

Recommendations for executive action in the GAO report, Electronic Government Act: Agencies Have Implemented Most Provisions, but Key Areas of Attention Remain (GAO-12-782; September 2012) include "develop[ing] a timeline for reestablishing the research and development repository and website and provid[ing] guidance to agencies on their participation in the research and development repository." For more, see Elizabeth Holland's informative summary of the GAO's findings at Some Successes, Room for Improvement on E-Gov (AALL Washington Blawg). [JH]

More Thoughts On Libraries And e-Books

Next Sunday marks the beginning of Banned Books Week.  While we think of banned books in the context of censorship, there is another.  In this case I’m speaking of publisher hostility to libraries when they refuse to sell e-books to libraries or, in the alternative, sell them with attached onerous conditions.  American Library Association Maureen Sullivan issued an open letter to publishers today that highlights the concern:

It’s a rare thing in a free market when a customer is refused the ability to buy a company’s product and is told its money is “no good here.” Surprisingly, after centuries of enthusiastically supporting publishers’ products, libraries find themselves in just that position with purchasing e-books from three of the largest publishers in the world. Simon & Schuster, Macmillan, and Penguin have been denying access to their e-books for our nation’s 112,000 libraries and roughly 169 million public library users. 

Let’s be clear on what this means: If our libraries’ digital bookshelves mirrored the New York Times fiction best-seller list, we would be missing half of our collection any given week due to these publishers’ policies. The popular “Bared to You” and “The Glass Castle” are not available in libraries because libraries cannot purchase them at any price. Today’s teens also will not find the digital copy of Judy Blume’s seminal “Forever,” nor today’s blockbuster “Hunger Games” series.

I realize that publishers see libraries as a threat when it comes to lending e-books.  Their first fear is piracy, and their second is that each lend represents a potential lost sale.  I can appreciate the concern about piracy, though I think the fear that libraries will be havens for piracy is misplaced.  Libraries, by and far, are law abiding citizens who tend not to violate their licensing agreements for electronic content.  If there are disputes, such as the Georgia State e-reserve case and the HathiTrust litigation, they are handled in court.  Piracy is happening to e-books despite their lack in a library’s collection.  I would think that many readers would use the library for viewing content if it were a legal alternative.  With or without library lending, e-book piracy is always an alternative to the determined.

I’m of the belief that while library lending is an alternative to purchase for some, not everyone who borrows will buy.  This is true in the physical world as it is in the digital.  I also believe that the lack of a large selection of e-books in a library may drive some to purchase, but certainly not everyone.  The alternatives there are to borrow a printed copy, or wait until one becomes available.

As Banned Books Week will begin, think of all the e-books that are banned from libraries due to a publisher’s desire to keep them out the hands of the borrowing public.  [MG] 

Sourcing Records on the US Constitution for Evaluating Original Intent Claims

In the "now for something completely relevant" category to the dustup between Scalia and Posner about Reading Law (2012), Gregory Maggs, Professor of Law and Co-director of the National Security and U.S. Foreign Relations Law Program at George Washington University Law School, has added a third installment in his series on sources of the original meaning of the Constitution. From the abstract of A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution [SSRN], 81 Geo. Wash. L. Rev. (forthcoming 2012):

The article describes the Constitutional Convention and the various kinds of records that were kept of its proceedings. The essay then explains, with examples, how judicial opinions and academic works draw upon the records for evidence of the Constitution’s original meaning, including both the meaning that the Framers may have subjectively intended the document to have and also other possible meanings. The essay next identifies and assesses seven important potential grounds for impeaching assertions about what the records show. Each of these potential grounds has merit in some contexts, but all of them are also subject to significant limitations or counter arguments. The essay, accordingly, recommends that anyone making or evaluating claims about the original meaning of the Constitution should proceed with caution, carefully taking into account both the possible grounds for impeaching claims and the arguments against these grounds. Appendices to this essay include an annotated bibliography and a table of the deputies who participated at the Constitutional Convention.

Earlier articles in Maggs' highly recommended concise guide series:

A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007) [SSRN link] and

A Concise Guide to The Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457 [SSRN link]

Excellent additions to an ALR class reading list. [JH]

Georgia State Archives Limiting Access To The Public on November 1

There are a bunch of interesting stories (here, here, and here) running about the news that the State of Georgia is effectively closing its state archives to the public on November 1 due to budget issues.  Various stories indicate that the archives would be open to researchers on limited days and by appointment.  According to a story in the Chronicle of Higher Education (subscription required), Georgia Governor Nathan Deal has said he’ll find a way to keep the archives open to the public, though the existing budget process may not forestall the November 1 staff reductions.

Let’s compare this situation to another story from last year about a state-funded enterprise.  The Georgia Go Fish Center was established in 2007 at a cost of $14 million.  That dollar amount is funded by a bond issue that has taxpayers on the hook for $1.6 million a year for the next six years.  So if I understand it, researchers would have limited access to Georgia State documents while visitors to the Go Fish Center can sit in a chair simulating a fight with a Marlin. 

I don’t know how bad finances are in Georgia.  I work in Illinois, which is a financial basket case when it comes to state debt and budgeting.  No one in Illinois is considering the state archives as a source of potential savings.  Georgia needs to work on its priorities.  [MG]

He Said, He Said and Then Another He Said: Posner v. Scalia's Mediated Point-Counterpoint in Good Old Saturday Night Live News(maker?) Fashion

Adding to Mark's More on Justice Scalia post which followed up my Is Originalism Hitting Its Sell-By Date? post, here's the latest "all the news that's fit to print" as created by the Reuters news branch of the publisher of Reading Law: The Interpretation of Legal Texts.

On September 17 Reuters Editor-in-Chief Stephen J. Adler "interviewed" Justice Scalia (and Bryan Garner) on their book, Reading Law: The Interpretation of Legal Texts (2012). [Video below; transcript here]. During the interview, Scalia accused Posner of lying in Posner's eviscerating review of the book in The New Republic, The Incoherence of Antonin Scalia. At issue is whether Scalia deviated from his textual originalism to strike down the District of Columbia handgun ban by doing "legislative history" as Adler characterized Posner's remarks about Heller.

"To say that I used legislative history is simply, to put it bluntly, a lie."  -- Antonin Scalia

Quoting the post-interview follow-up article by Thomson Reuters' Terry Baynes in Fanning furor, Justice Scalia says appeals court judge lied (Thomson Reuters News & Insights, Sept. 17, 2012).

Lied, really? At worse it would be a matter of misinterpretation. It this case, however, it is a matter of Adler misrepresenting what Posner said. I'm not saying Reuters' Editor-in-Chief lied about what Posner said in The Incoherence of Antonin Scalia. I prefer to think he simply does not know how to apply "textual originalism" to Posner's text.

Alternatively, Adler could have been slow pitching a lead-in for Scalia to hit one out of the ball park. My hunch is that he at least knew that Scalia (and Garner's) Reading Law is a a repudiation of using "legislative history" in judicial decision-making. Did Reuters' Editor-in-Chief read all 600-plus pages of text before the interview? Don't know but he wouldn't have had to pay for a copy out of his own pocket because it was published by Thomson Reuters.

In response to the headline grabbing pump-it-up to infinity and beyond Reuters mudslinging:

"There is no question that Scalia in Heller was looking for the original meaning of the Second Amendment-that is his method of constitutional and statutory interpretation, the method defended in Reading the Law."  -- Richard Posner

Quoting from Text of Judge Posner's respose to Justice Scalia (Thomson Reuters News & Insights, Sept. 20, 2012).

And then one publication day later came Scalia's response to Posner's response in what Thomson Reuters News & Insights' Terry Bayner charactized as "fir[ing] another salvo in his unusual public feud with Judge Richard Posner over the meaning of 'legislative history.'" (Emphasis in the orginial but "added" because Bayner's entire introduction to Scalia's statement is published in italics which to be fair appears to be the house style for lead-ins to published statements but one can you smell the excitement in Reuters' newsroom for creating the news instead of just reporting it.)

"I stand by my statement." -- Antonin Scalia

Quoting from Scalia v. Posner: Round 4 (Thomson Reuters News & Insights, Sept. 21, 2012).

Keep the buzz alive? Perhaps these two brainiacs eventually will move on to a related judicial decision-making topic. Scalia could go on the offensive by addressing the doctrine of stare decisis as "applied" (read sometimes if not oftentimes ignored) by Posner. Perhaps some grunt at Thomson Reuters News & Insights -- "featuring content from Westlaw" -- can compile the history and treatment of Posner's Seventh Circuit opinions by Scalia for a News & Insights feature to keep the buzz alive. If so, the first thing I would do is slap the scraped text into Lexis for Microsoft Office to fact-check the KeyCites by way of Shepard's.

The below video interview of Scalia (and Garner) by Adler is not characterized as a interview. Adler's role is identified as serving as a moderator. Just Thomson Reuters BS. However, a moderating referee would be required if the feuding principals (sorry Garner) were interviewed together. Since LexisNexis hasn't gotten into the legal news broadcasting business yet, IMHO the only neutral forum is Bloomberg Law. It could be as interesting and entertaining as this still timely classic 1978 SNL Point-Counterpoint skit on the topic of abortion.

For what most likely will be the last traditional legal treatise published by Thomson Reuters, buzz just can't get any better than this. Perhaps TR can talk Justice Thomas into writing a legal treatise on silence. Garner is probably available to "co-author" it. [JH]

A Literary Dictionary of Crutch Words

"Basically," "um," "honestly," "it is what it is," "right?" are frequently used crutches, words which The Atlantic Wire's Jen Doll defines as "those expressions we pepper throughout our language as verbal pauses, and sometimes as written ones, to give us time to think, to accentuate our meaning (even when we do so mistakenly), or just because these are the words that have somehow lodged in our brains and come out on our tongues the most, for whatever reason. Quite often, they do little to add meaning, though. Sometimes we even use them incorrectly. Almost always, we don't need them at all, which doesn't mean we won't persist in using them."

Doll lists frequently used crutch words and "what your crutch of choice has to reveal about you" at Actually, Literally, What Your Crutch Word Says About You. Reader responses resulted in a list of additional crutches at A Literal Epidemic of Crutch Words. Bruce Carton chimes in at Breaking Down the 'Crutch Words' in Legal Blogging on Legal Blog Watch. [JH]

Hello Gmail

Like it, use it. Decent spam filter but how come no matter how often I "mark as spam" political emails, they keep filling my in-box from the same sources? Love how the push notifications to my phone tell me I have "X" or "XX" emails but can't the notifications also tell me how many of the great unread are unfiltered political spam? [JH]