Law Librarian Blog

"Toxic, soul crushing environment” given as reason for quiting law school by 1L

The Southern University Law Center student, Courtney Horne, lists a number of general reasons for calling it quits but spends a fair amount of time on criticizing how her crim law prof conducted his classes at Why I Left Law School. In her follow-up post, Wading into it… (against my better judgement) she included a lengthly comment apparently written by her crim law prof. Christopher Danzig covers the she said-he said on ATL.

Frankly, I find nothing all that wrong with how this crim law prof conducted his classes. If Horne couldn't take it, there is no way she would be able to cope with the reality of practicing law in the real world. [JH]

Justice Scalia, Again

CBS News is reporting on a recent address Justice Scalia gave to the American Enterprise Institute.  Here's a highlight:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state."

I guess we know how he intends to rule in the Proposition 8 case or the Defense of Marriage Act cases when they reach the Court.  It's high contrast to a Court nominee deflecting a senator's question by saying that the issue may come before the Court.  [MG]

Has the Obama Administration “usher[ed] in a new era of open government”?

According to Bloomberg's Jim Snyder and Danielle Ivory the answer is "no." See their story, Obama Cabinet Flunks Disclosure Test With 19 in 20 Ignoring Law, and accompanying interactive graphic, Testing Obama’s Promise of Government Transparency, for details. [JH]

The New Model: Near-Unbiquitous Internet Censorship by Democratic and Authoritarian Regimes

Quoting from the abstract of Arizona Law prof Derek E. Bambauer's Censorship V3.1 [SSRN]:

Internet censorship has evolved. In Version 1.0, censorship was impossible; in Version 2.0, it was a characteristic of repressive regimes; and in Version 3.0, it spread to democracies who desired to use technology to restrain unwanted information. Its latest iteration, Version 3.1, involves near-ubiquitous censorship by democratic and authoritarian countries alike. This Article argues that the new censorship model involves four changes: a shift in implementation to private parties; a hybrid approach mixing promotion of favored viewpoints with suppression of disfavored ones; a blend of formal mandates with informal pressures; and a framing of censorship using uncontroversial labels. It suggests a set of responses to censorship that cabin its abuses and push it towards more legitimate methods: focusing on governmental restrictions, insisting on labeling censorship as such, supporting distributed Internet governance, demanding a default right of access to information, and addressing corporate involvement.

Recommended. [JH]

Friday Fun: Sh*t Law Students Don't Say

No discription required. The video speaks for itself. [JH]

Google Settles With Publishers (But Not Authors Guild) In Scanning Case

Google has settled the seven year old book scanning case with plaintiffs Association of American Publishers (AAP).  Unlike the comprehensive settlement that Judge Denny Chin rejected in March of 2011, this resolution does not require his approval.  The specific terms of the agreement are undisclosed.  I would think there are contingencies built in depending on the outcome of the rest of the litigation.  The joint press release issued by Google and the AAP has this:

The settlement acknowledges the rights and interests of copyright-holders.  U.S. publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project.  Those deciding not to remove their works will have the option to receive a digital copy for their use.

* * * *

Google Books allows users to browse up to 20% of books and then purchase digital versions through Google Play.  Under the agreement, books scanned by Google in the Library Project can now be included by publishers.

Further terms of the agreement are confidential.

This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.

The Guild issued its own terse statement (reprinting the joint press release), stating essentially that this development has changed nothing from their perspective:

“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Authors Guild executive director Paul Aiken said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”

Despite the lack of terms, it seems Google has entered into a blanket licensing agreement with the publishers.  The article in Wired, Google Gives Up Fair-Use Defense, Settles Book-Scanning Lawsuit With Publishers, suggests by its title that Google is abandoning the fair use argument it raised as a defense.  I doubt that the out-of-court settlement forecloses the argument in the remaining litigation or in the related HathiTrust litigation. 

The Guild seems determined to get a court to say that scanning whole titles without permission for snippet view in a search engine is not fair use.  A contrary ruling would not only civilly exonerate Google but give others the same opportunity.  Think of Amazon or Microsoft via its investment in Barnes & Noble’s Nook as possible competitors.  Then there are the foreign search engines such as Yandex in Russia and Alibaba in China who may also get in the game.

I think Google’s decision to settle is a smart move because it essentially puts the publishers’ interests against those of the Guild.  The AAP did not join the Guild in its subsequent suit against the HathiTrust.  The Second Circuit Court of Appeals is staying the Guild’s suit temporarily so Google can appeal the certification of a class action.  Judge Chin denied that request early in September, probably wanting to get the case out of his trial docket sooner than later.    The Guild ought to consider helping out Judge Chin.  My opinion is that it is easier to do business than to litigate.  A comparable settlement would prevent others from getting into the scanning game if the fair use argument is a ultimate winner at trial and on appeal.  [MG]

Porn Video Shot in Cornell Law Library?

ATL's Staci Zaretsky has the story and some risque photos and clips at Cam Girl Pleasures Herself In A Top Law School’s Library. [JH]

AALL Bylaws Amendments: Vote No

"The name of this Association shall be American Association of Law Libraries."  Bylaws Article I Name

"The American Association of Law Libraries exists to promote and enhance the value of law libraries to the public, the legal community, and the world, to foster the profession of law librarianship, and to provide leadership in the field of legal information and information policy...." (Emphasis added).  Bylaws Article II Object.

To me this says it all.  We are an organization of law libraries and the law librarians that work for them.  It is our responsibility to foster our profession and to provide leadership in the field of legal information.  If we open up the possibility of ceding those responsibilities to others (non-law librarians) and organizations other than law libraries than we have failed and certainly shouldn't expect the legal community let alone the public and the world to take us seriously.

Caren Biberman

Timing a Do-Over on the Proposed Membership Bylaws Changes: Now or Never?

I can only recall one post explicitly supporting the extension of active membership status to commerical vendors. That was published when the issue was first discussed openly. See Greg Lambert's July 18, 2012 post, AALL Membership Proposal -- Let's Have a Conversation on 3 Geeks. Apparently in response to the "open letter" opposing the bylaws changes published on Out of the Jungle and republished on LLB, Tracy Thompson-Przylucki's statement in support of the bylaws changes was published outside the walled garden of AALL web communications on 3 Geeks earlier this week. Both 3 Geeks posts are highly recommended.

Tracy concludes with two suggestions:

If the membership of AALL really thinks this proposed change poses a threat to the Association's integrity, my suggestions would be either:

1. try to describe the very narrow category of people you are trying to exclude and recommend a clause that would cover that instance or
2. consider recommending the revival of an ethics committee within AALL as a more comprehensive solution to the kinds of concerns you are raising.

With respect to Tracy's first suggestion, I think the category of people is fairly clear. Representatives of commercial vendors who are employed in legal information professional tasks should be granted active membership status but those employed in unrelated tasks (e.g., marketing, sales, etc.) should not. Some would argue that current associate membership status for excluded commercial vendors employees is sufficient as is. Others might argue that such associate membership status ought not include being able to vote as currently allowed.

With respect to Tracy's second suggestion, recommendations have been made with respect to a conflict of interests policy being developed after passage of the bylaws amendment or after rejection of the bylaws amendment and in the context of redrafting a membership bylaws change. Personally I seriously doubt any such conflict of interest policy would be enforceable because the term "interest" in the context of "interested in the objectives of the Association" under AALL's bylaws membership clause is just too vague. Even if "interest" was defined someday, would AALL have the guts to enforce a conflict of interest policy?

Both issues could have been addressed had the Executive Board opened the matter by way of rank-and-file crowdsourcing of the draft bylaws. That did not happen. Allowing alternative membership bylaw language to be submitted as part of the voting process was rejected during the Boston 2012 Members Open Forum because the Executive Board had already locked itself into the proposed language and the voting schedule by way of an Executive Board vote at the business meeting conducted before the regular conference commenced. For more about the internal drafting process, see Background on How the Proposed AALL Membership Bylaws Revision Came Into Existence. 

Because of the top-down handling of this matter, the best way to address the interrelated issues Tracy suggests is to reject the membership bylaws amendment and then open the process for a productive conversation that includes rank-and-file contributions to resolve this matter.

See also Betsy McKenzie's recent post, AALL Bylaw - Why Are they rushing?

A NO vote will force the Executive Board to move at a more deliberate speed and allow for a more inclusive conversation with the members – US!

...

Why is there a need for speed on this decision? We were actually assured by several board members that they believed that this would be a year-long process. Obviously, they were as surprised as I was by the fast-track this bylaw change has been put on.

[JH]

Short Takes On The News: Law School Applications, Cell Phone Location Data, And The PA Voter ID Law

Law school applications are consistently down at law schools across the country, but not everywhere.  A press release issued by the University of Kansas School of Law indicates that it was one of eleven schools accredited by the ABA that saw an increase in applicants.  Typically, schools with lower applications will generate stories that read more like this or this.

The Justice Department presents its argument to the Fifth Circuit today that it need not get a warrant in obtaining customer cell phone data from carriers.  The government is claiming that customers have no privacy interest in location data generated over time.  The appeal stems from the denial of a 2703(d) order by a Texas magistrate judge in a criminal investigation.  This comes on the heels of the Supreme Court case of United States v. Jones where the Court required the government to get a warrant to place a GPS tracker on a suspect’s car for a 28 day period.  One of the issues in the Jones case was the government having to go onto private property to place the bug.  The government distinguishes the present case by stating the information sought is collected as a normal business record.  CNET has the story with links to the legal documents in the case. 

I won’t offer an opinion on whether the government should or should not have to get a warrant in these kinds of cases.  I find it ironic, however, that ad networks can blast a coupon through the ether based on location tracking just because someone happens to be walking past a Starbucks.  Maybe the government should offer sprinkles with their request.

Finally, a trial judge in Pennsylvania has invalidated parts of the voter ID law after receiving instructions from the Pennsylvania Supreme Court.  The law was challenged on grounds that access to ID cards was not in keeping with the enacted law, among others.  The Pennsylvania Supreme Court returned the case to the trial court which held hearings on the issue.  CBS News has the full story with links to the trial order invalidating the law.  [MG]

Now Wait Just a Minute: Who is voting on AALL's membership bylaw amendments?

In what has to be the most absurd reason AALL offers for voting in favor of its proposed bylaw membership changes, one reason given in response to the following AALL-produced FAQ question is

1) Why are we revising the bylaws regarding membership categories at this time?

There are several reasons that we would like to revise the bylaws membership categories.

...

(b) When a librarian new to AALL signs up to become a member or changes jobs, he or she selects the membership category. AALL staff members have noticed that some new members have selected Active even when (by the current definition) they do not fit the definition. AALL staff makes no independent assessment of whether an individual should be in a particular category. Thus, we already have members, including vendor members, who are categorized as Active members.

(Emphasis added.)

Ah, OK. So AALL staffers don't think to ask themselves "this person works for [insert name of vendor] and/or his or her email address (at)[vendor].com so the membership application or renewal calls into question whether the dues-payer may be disqualifed from being an "Active Member." What our association is telling the membership is that AALL HQ does not perform the necessary due diligence required under our association's bylaws. Therefore rank-and-file members should change the bylaws. What the hell is the purpose of bylaws if they are not enforced?

Based on AALL own admission, some vendor reps are voting this month. Do we need a "Jimmy Carter" advocate to ensure voting integrity? Frankly, if officially accepted by AALL as "active members," even Jimmy Carter might say they are permitted to vote. AALL's administrative incompetence calls into question every damn office holder election as well as this bylaws voting.

AALL does not state how many vendor reps have been erroneously granted voting privileges. Perhaps not many. However, except for those very, very few who work in a law library or legal information center for their vendor-employers, the rest are not eligible to vote under the current bylaws.

When folks we hire to "mind the store" aren't doing the job we are paying them to perform and folks we elect to national office to lead our association are not making damn sure the job is being properly performed under our bylaws, it just might be time for the rank-and-file to send a message that AALL better gets its collective act together.

Is voting for the bylaws changes in compliance with AALL's current Bylaws? According to AALL's own admission against interest, the answer is "no."

End note. It is not like this is the first or only example of routine AALL administrative incompetence. It is, however, the most serious currently visible in the sunlight. [JH]

It's Time for a Do-Over: Just say "no" to AALL's proposed membership bylaw change

In a nutshell, our elected AALL officials' case hinges on the notion that the legal information profession and industry has change. Therefore AALL's active membership category should reflect this to allow “any person who is interested in the objectives of the Association” as full Active Members. However, AALL does not explain in any specificity why this "change" requires including commercial vendors in the active membership category. About a quarter of a century ago, you know when a substantial consolidation of the legal publishing industry was taking place, a proposal to extend to commercial vendors active membership status was rejected. It was a wise decision then. It remains so today. The landscape of the commercial legal publishing industry has not changed.

When considering the bylaws ballot, remember what the "objectives of the Association" are:

AALL Bylaws. II. Object:

The American Association of Law Libraries exists to promote and enhance the value of law libraries to the public, the legal community, and the world, to foster the profession of law librarianship, and to provide leadership in the field of legal information and information policy, in recognition that the availability of legal information to all people is a necessary requirement for a just and democratic society.

(Emphasis added.)

Providing legal information to all people as a necessary requirement for a just and democratic society is a noble cause. Providing online legal search services at relatively low cost in a market-based economy is one way to go about meeting that objective. Are our major vendors supportive?

Just ask any member of Ohio's Consortium of County Law Library Resources Board for a little insight. The Consortium is a state agency funded by mandated county law library contributions. The Consortium can contract for online legal search plans that give county law libraries the option to acquire at costs lower than what any individual county law library's purchasing power might obtain. It has made some headway in doing so. The Consortium would like to offer Ohio county law libraries WEXIS public access plans to fill in a gap that exists in the state's cooperative purchasing system. While Lexis has offered a plan, Westlaw's offer has anti-competitive strings attached (think along the lines of only being good if the Consortium does not also offer a Lexis patron access plan option to county law libraries).

No doubt plenty of other examples can be provided. For example, a couple of years ago Lexis refused to license state statutory code content to Fastcase for its relatively low-cost but professional grade search service because Lexis owned the copyright to the code headings. Fastcase does offer competitively low-cost "patron access" licenses to advance the Company's public service mission. That however doesn't mean I am in favor of granting active membership status to employees of

• Fastcase because of its public service mission but not Lexis because the Company's refused to license state primary law content to Fastcase
• Lexis because it offered a competitively priced patron access plan to Ohio county law libraries but not to Westlaw because its offer had anti-competitive strings attached.

I think you get the idea. This is a can of worms that needs to remain closed.

Commercial vendors are "interested" in AALL objectives -- being supportive of them is an entirely different question.  Some concerned AALL members take the matter of a conflict of interest policy seriously in this context, suggesting either addressing the issue before or after changing the membership clause. Does anyone really believe AALL has the guts to enforce one?

Should active membership be extended to

• entities who employ legal information professionals whose jobs may once had but no longer are within the org chart of a law library or legal information center? Absolutely.
• non-profit entities involved in the provision of and/or promotion of legal resources that employ legal information professionals? Yes, why not. They are on the same page as those of us who are trying to provide legal resources to our users by representing our institution's best interests.
• for-profit entities who have an "interest" in the "objectives of the Association"? No. Associate member status is good enough. Of course, if one takes the "objectives of the Association" seriously some for-profit entities would have to be kicked out.

The safest way to protect our elected officers from themselves is to just say "no" to the membership bylaws amendment as drafted. Then a do-over would be possible. [JH]

It's The First Monday In October, With One Opinion Out On Redistricting

It’s the first Monday in October, which means the Supreme Court’s 2012 term opens.  Two cases are on the docket for argument today, Kiobel v. Royal Dutch Petroleum (10-1491), and Lozman v. Rivera Beach, FL (11-626).  The former deals with application of the Alien Tort Statute to corporate activity and the latter as to whether a floating structure that is indefinitely moored and receives power and other utilities from shore is considered a vessel under federal statutes.  The oral argument transcripts should be available from the Court’s web site later on today.

The Court did issue one per curiam opinion last week.  The case is Tennant v. Jefferson County Commission (11-1184).  The case concerns redistricting of congressional districts in West Virginia.  A three judge panel invalidated the redistricting plan implemented by West Virginia for violating the “one person one vote” principle embodied in Article I, §2 of the Constitution.  The Court requires that populations in congressional districts be more or less the same number, but does allow differences when the districts are drawn in a way that meets legitimate state objectives.

The plaintiffs argued that there was a population difference of 0.79% between districts.  Competing state plans could have brought this number lower if one had been adopted.  Some of the legitimate state objectives include not splitting counties between districts, limiting population shifts, avoiding contests between incumbents, splitting political subdivisions, and others.  The Court said that under its standards from Karcher v. Daggett, 462 U. S. 725 (1983), West Virginia demonstrated legitimate state interests through the plan that was adopted.  The others didn’t come as close in that regard, though they may have further minimized the population differences compared to the plan before the Court.  The three-judge panel’s decision was reversed and remanded for further proceedings.

I should note one more Court related development.  The Los Angeles Review of Books has published an interview by Don Franzen with Justice Scalia concerning his book with Bryan Garner, Reading The Law.  There are no snipes with Judge Posner.  A sample:

FRANZEN: Some would be surprised to see that you actually argue against strict construction. In fact, you include strict construction in your list of thirteen fallacies. Most people think textualism, originalism, and strict construction are sort of a trinity.

SCALIA: I think strict construction gives a bad name to textualism. My approach is to give the text a reasonable meaning that it bore when it was adopted. For instance, if you interpret strictly the First Amendment, it would be the case that Congress could censor handwritten letters, because, strictly, it covers only freedom of speech and of the press. A handwritten letter is neither speech nor press. Come on, that’s absurd, that’s not the meaning of the First Amendment. The First Amendment reasonably understood is a guarantee of freedom of expression, whether handwritten or oral, or semaphore or burning a flag.

FRANZEN. Then what about the Reno case, extending it to the internet?

SCALIA: Of course. There’s no reason why speech on the internet is not speech.

The rest of the interview is well worth reading.  [MG]

An Open Letter to AALL Members on Our Association's Proposed Membership Bylaw Amendment

Unlike push-back "Dear Colleagues" letters by vendors about business practice concerns expressed by practicing law librarians and CRIV, what follows is what I characterize as an "open letter" from several AALL members about AALL's proposed membership bylaw amendment. This "open letter" was published inside and outside AALL's wall garden of web communications last week, just ahead of voting. Voting by eBallot is scheduled to commence tomorrow. Check your email. More about why I think it is time for a "do-over" by voting down the amendment later this week. [JH]

Open Letter to AALL Members

Dear Colleagues,

As members of our Association, you will soon be asked to cast your vote on the issue of the Proposed 2012 Amendments to AALL Bylaws. The proposal seeks to eliminate the category of Associate Member and allow “any person who is interested in the objectives of the Association” as full Active Members. The language that will be removed from the present Bylaws, should we vote to adopt this proposal, is highlighted below:

(1) Active: Any person who is interested in the objectives of the Association and works with legal information in a library or information center or provides library services on an independent contract basis.

The reasons for this proposal are presented in the Executive Board’s recent FAQ (frequently asked questions (FAQs), and the main purpose for the amendment hinges on a desire to “align member categories with the changes that have occurred in the legal arena due to economic conditions and evolving legal information demands.” While the goal to make Active Membership possible for former librarians who leave traditional law library environments is admirable, we feel this proposal is overly broad. In most cases, employers pay the dues of members. Vendor employees of profit-making entities that are regularly engaged in business transactions with librarian members, are primarily accountable to the entities’ respective corporate authorities and shareholders, thereby not being as freely “interested in the objectives of the Association.”

This change would make it possible for vendor-members to serve on the Executive Board.

As stated in our Bylaws:

II Object:

The American Association of Law Libraries exists to promote and enhance the value of law libraries to the public, the legal community, and the world, to foster the profession of law librarianship, and to provide leadership in the field of legal information and information policy, in recognition that the availability of legal information to all people is a necessary requirement for a just and democratic society.

Concerns about vendor participation on the Executive Board level include:

• According to an article published in AALL Spectrum, April 1999, (http://www.aallnet.org/main-menu/Publications/spectrum/Archives/Vol-3/pub_sp9904/pub-sp9904-bylaws.pdf) one of the reasons to change our Bylaws to a two-tiered membership structure was to “expand the category of ‘member’ to include others not working in law libraries.” Because of a membership survey conducted during the Bylaws change in membership status, “the right to hold elective office on the Executive Board is reserved for the new category of ‘member,’ which includes active and retired members. This was the one privilege members of the Executive Board heard from members that should be excluded in an expansion of rights and members.”

• At this critical time in the history of publishing, and the rapidly evolving shape and nature of information management, it is imperative that we, as an organization in support of curators of legal information, represent our needs and goals, without conflict of interests or possible impediments to our mission.

• If vendor members served on the Executive Board they may be able to influence the outcome of our primary objective, as stated in our Bylaws (above).

• It may appear that opposition to the Bylaws reflects an unreasonable, distrustful fear that vendors will “take over” the Association. We embrace and seek many levels of partnership in our future endeavors. The overwhelming concern is the inherently conflicting interests and goals that arise even in the day-to-day work of the Association. While there is a conflicts policy in place for Executive Board member activities, vendor membership raises the possibility of more frequent conflicts of interest. As part of the Bylaws change proposal, The Association would benefit from a discussion of how the current conflicts policy has been applied and how it would be applied in this new context.

• Approval of the Bylaws as proposed would necessitate that the organization articulate whether it is representing libraries or the larger legal information industry. Partnership is distinct from and possible without full or joint membership. Traditionally, the organization has been expected to act as a voice for law libraries and those working for them. Are we changing the makeup of the organization? Are we removing the advocacy role? Who will speak for consumers of legal information if not law librarians?

• This change may result in an inherent unfairness to smaller publishers. Larger and more affluent publishers could enroll more voting members into the organization exerting more influence through sheer voting power and creating the potential to fill leadership roles.

• The desire to expand the definition of Member beyond traditional librarian roles is admirable, but could be addressed in alternative ways. For example, the Bylaws could be changed to make an exception for Active Members for all vendor members who work for entities that are non-profit or funded primarily by membership dues such as NELLCO, CALI, or LLMC.

As stewards of the dissemination and availability of legal information to all people we should hew to our stated objectives. We ask you to consider carefully the ramifications this change in the Bylaws will have on our Association and future as law librarians and urge you to vote against it as currently drafted. Your NO vote will make it necessary for the Executive Board to devise another, less far-reaching, plan to engage the small number of former librarians who are now in other roles. The symbolic significance of this change—which we think may signify a shift in our Association’s mission—should not go unheeded.

Thank you for your consideration. We hope this will engender a productive dialog among people on all sides of this issue.

Caroline Walters, Suffolk University Law Library
Michelle Pearse, Harvard Law Library
Stephanie Edwards, Roger Williams School of Law Library
Brian Striman, University of Nebraska College of Law Library