Law Librarian Blog

Mamas, Don't Let You Babies Become "Functional Psychopaths" (like successful lawyers???)

About Cambridge University research psychologist Kevin Dutton's new book, The Wisdom of Psychopaths, Debra Cassens Weiss reports in The Legal Field Attracts Psychopaths, Author Says; Not That There Is Anything Wrong with That (ABAJ News):

It’s a matter of degree, author Kevin Dutton argues in the book. At the high end of the scale are serial killers like Ted Bundy. But some psychopathic traits can pave the way to success and help people deal with the stresses of living, Dutton says.

From the blurb for The Wisdom of Psychopaths (Amazon):

Dutton argues that there are indeed “functional psychopaths” among us—different from their murderous counterparts—who use their detached, unflinching, and charismatic personalities to succeed in mainstream society, and that shockingly, in some fields, the more “psychopathic” people are, the more likely they are to succeed. Dutton deconstructs this often misunderstood diagnosis through bold on-the-ground reporting and original scientific research as he mingles with the criminally insane in a high-security ward, shares a drink with one of the world’s most successful con artists, and undergoes transcranial magnetic stimulation to discover firsthand exactly how it feels to see through the eyes of a psychopath.

As Dutton develops his theory that we all possess psychopathic tendencies, he puts forward the argument that society as a whole is more psychopathic than ever: after all, psychopaths tend to be fearless, confident, charming, ruthless, and focused—qualities that are tailor-made for success in the twenty-first century. Provocative at every turn, The Wisdom of Psychopaths is a riveting adventure that reveals that it’s our much-maligned dark side that often conceals the trump cards of success. 

For more, see Michael Shermer's book review for the WSJ, When Madness Pays Off. [JH]

US Calls For Dismissal Of Bob Kohn's Appeal In Apple e-Book Case Settlement

The United States has filed its brief with the Second Circuit Court of Appeals opposing the appeal by attorney Bob Kohn in the Apple e-book settlement entered by Judge Cote last September.  Kohn had filed a motion to intervene in the case which Judge Cote denied.  The appeal ostensibly is on that denial, though Kohn indicated that he intended to use the appeal as a vehicle to attack the settlement on appeal.

The Justice Department argues that the appeal should be dismissed because there is no case or controversy before the Court.  Kohn, the Department argues, does not have standing because he is not a party to the settlement nor is he harmed by it.  My favorite line in the argument:

But paying lower, rather than higher, prices does not in itself constitute an injury; there is no legally protected interest in paying higher prices.

Other arguments include reversing the order entering the final judgment would not redress Kohn’s alleged harms.  His lists of points raised on appeal do not add to his standing before the Court.  For what it is worth, Apple filed a motion to revise the caption of the case.  It now shows Apple as “defendant-appellee.”  Apple states that it is not a party to the settlement and it is not appealing anything.  Apple’s brief also states that it takes no position on Kohn’s appeal, noting that the settling publishers also opposed his motion to intervene.  His response is due by December 14.

Brief of the United States:  Download United_States_of_America_v._Ap_23.

Brief of Apple: Download United_States_of_America_v._Ap_24.  [MG]

Imagine the Legal Academy's Resistance to Converting Legal Studies to an Undergraduate Major That Allows Students to take the Bar Exam

First there would be a blow to the law prof ego -- "we ain't political science profs ... law is not a profession like nursing." Then there is the distinct possibility that tenure standards were be ratched up to where publishing an article or two in a student edited law review instead of peer-reviewed publications wouldn't be enough. Then required course loads would eventually be increased by university administers to meet the course load requirements of other college departments' profs. After that there would be no justification for paying law profs the premium salaries they current have which are the envy of the rest of the profs on campus. Law librarians would have to be willing to accept integration into a university-wide library system bureacratic structue. Finally, the ABA would have to accept that in today' labor market, its accredition standards are absurd. Hell the ABA-Legal Academy cartel might even go out of business. Entrenched special interest groups don't react positively to transformative reformation.

It may make sense to turn the study of law into an undergrad degree program like one finds in some European countries because law schools do not produce "practice-ready" lawyers and may never do so. It certainly makes sense because students will be carrying less debt into their post-undergraduate legal career. But ... well, check out David Lat's post What Does the Future Hold for American Legal Education? See also, Mark Giangrande's Prediction For Law Schools Is Cloudy With Chance Of Closings. [JH]

Friday Fun: Legal Research, the Silent Movie

This video was YouTube posted on Jan. 12, 2007. Some things have changed since then but not irrelevant hits produced by sloppy research. {JH]

Prediction For Law Schools Is Cloudy With Chance Of Closings

Paul Campos is at it again.  His latest article in Business Insider compares the 2007 economic crash with coming law school enrollment crisis.  It’s not a pretty picture.  He sees law school applications on an alarming downward trajectory to the point where law schools will either not be able to fill their seats or in the alternative will lower admission standards to the point where they will admit anyone just to fill the seats.  I should make the point that the ABA frowns on tuition mills when applying the accreditation standards to law schools.  If Campos’ prediction comes remotely true, and I’m not arguing against it by any means, few schools will care.  It will be a matter of survival.  Campos expects some schools to go out of business.

His statistics show these numbers:

Total applicants, 2003-2004 cycle:  98,700

Total first year enrollment: 48,239

Percentage of ABA law school applicants who ended up enrolling in that cycle:  48.9%

Total applicants, 2011-2012 cycle:  68,000

Total first year enrollment:  48,697

Percentage of applicants who ended up enrolling last cycle:  71.6%

You can see where this is going.  We obviously don’t have the numbers for the current academic year.  However, the LSAC shows double-digit declines in applicants for each admissions cycle since 2010 and the lowest number of LSATs administered since before 2003 in the last academic cycle.  The job market for law graduates continues to be dismal.  Joe and I both reported on how the number of available law jobs in the next ten years has already been outstripped by the current number of graduates.  See here and here for details. 

I don’t see how anyone could possible want to open a new law school under these conditions.  Nonetheless, Bradley University in Illinois is the most recent institution to study the option.  This is from the Peoria Star:

"I think there's opportunity, even if the times are difficult," says study-group member James Shadid, chief U.S. district judge for the Central District of Illinois, based in Peoria and encompassing 46 counties. "But if we're going to be like all the rest, then there's no reason to be there. So, the discussion has centered on, how can we be different?"

Shadid and the rest of the team focused on a law school's viability only in terms of potential enrollment, education and employment. The next step would involve economic and fund-raising realities. But from a classroom perspective, the future looks brightly optimistic, advocates say.

"I'm excited about the idea," Shadid says. "Whether it happens remains to be seen."

Competition may come from other sources as well.  Business Insider also reports that Northwestern University Professor John McGinnis advocates dropping the required number of course hours for the graduate law program from 80 to 60.  He further advocates that law could be an undergraduate subject that leads to the bar exam.  I can imagine the traditionalists among law school faculty shuddering at that thought.  Undergraduate faculty members, after all, are compensated far less than their graduate law counterparts.  Bette Davis said it best:  Fasten your seatbelts, it’s going to be a bumpy ride night.  [MG]

Texans Messing with Texans by way of Dueling Petitions Littering the We Petition Site: Republic of Texas, State of Austin?

Launched on Nov. 9th, by Nov. 12th, the below petition hosted on the White House's We Petition site exceeded the 25,000 signature threshold by 2,000 and continues to garner substantial support. Go here for the current signature count. Do note the number of supporters who do not live in Texas. 

Peacefully grant the State of Texas to withdraw from the United States of America and create its own NEW government.

The US continues to suffer economic difficulties stemming from the federal government's neglect to reform domestic and foreign spending. The citizens of the US suffer from blatant abuses of their rights such as the NDAA, the TSA, etc. Given that the state of Texas maintains a balanced budget and is the 15th largest economy in the world, it is practically feasible for Texas to withdraw from the union, and to do so would protect it's citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our founding fathers which are no longer being reflected by the federal government.

Yes, what about Austin, TX, you ask? There's this petition. Also note the number of supporters who do not live in Texas.

Peacefully grant the city of Austin Texas to withdraw from the state of Texas & remain part of the United States.

Austin Texas continues to suffer difficulties stemming from the lack of civil, religious, and political freedoms imposed upon the city by less liberally minded Texans. It is entirely feasible for Austin to operate as its own state, within the United States, in the event that Texas is successful in the current bid to secede. It is important for Austin to remain in the union as to do so would protect it's citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our founding fathers.

We would also like to annex Dublin Texas, Lockhart Texas, & Shiner Texas.

Watch out because I don't think Austin has its own air force.

And finally there are these two mean-spirited petitions hosted on the White House's We Petition site:

• Deport Everyone That Signed A Petition To Withdraw Their State From The United States Of America
• Strip the Citizenship from Everyone who Signed a Petition to Secede and Exile Them

Hat tip to Lowering the Bar's Counter-Petition Asks to Deport People Who Signed Other Petitions. [JH]

Google Asserts Fair Use To Defeat Class Action Status In Book Scanning Case

Google filed its brief on Friday contesting Judge Chin’s decision to certify the plaintiffs in the book scanning case as a class.  Judge Chin at the time of certification denied Google’s request to stay the action and set the case for trial.  The Second Circuit stayed proceedings in the case pending the outcome of the appeal.

Google essentially argues three points:  1) the class is divided over the benefits or harms to authors due to the scanning project; 2) Google is allowed to present the fair use defense and the application to the facts may vary with individual books; and 3) each class member’s right to recovery will vary depending on the proof of copyright and registration.  Google relies on the Wal-Mart v. Dukes class action case decided by the Supreme Court in the last term, the Georgia State e-reserve case, and the HathiTrust case among others for its positions.

Google questioned the Authors Guild’s representation to the class by citing its own expert survey that showed 58% of author responders approved Google scanning their works.  The Authors Guild has the burden of showing that its interests do not conflict with that of class members according to the filing.  So far, that showing has not been made.

Other case law allows Google to mount the fair use defense in this action.  Other cases, such as the Georgia State e-reserve case weighed fair use against the type of use made for individual volumes.  Some of this measured the amount of use and the purpose for which it was used.  I can imagine the Authors Guild arguing against this simply on the basis that Google is a for-profit entity where a public university is not.  Google nonetheless has the right to assert that defense, especially in light of the HathiTrust case (and other precedent) where the District Court found the electronic index created as a result of scanning to be transformative and fair use.

This leads to the third argument that the class is potentially unrepresentative due to the amount of proof necessary to show a given book or author is even part of the case.  Google offers that registration records would have to be produced on individual works and evidentiary hearings would be held to see if a book qualifies for a remedy under the case.  The fact that different authors may have different interests in their works falls against class certification.  I imagine the Authors Guild would argue against these points when its brief if filed.

A copy of the brief with additional commentary and comments is available here at paidContent.  [MG]

Erwin C. Surrency, May 11, 1924 - November 8, 2012

Erwin Surrency's law librarian career spanned many decades including serving as law librarian and professor of law for 28 years at Temple and director of the law library at the University of Georgia Alexander Campbell King Law Library in Athens for 15 years. A recognized authority in legal history and a founding member of the American Society for Legal History, the Surrency Prize is awarded annually to the person or persons who wrote the best article published in the Society's journal, the Law and History Review. In 2012, Professor Surrency was inducted into AALL's Hall of Fame. For more about his long and distinguished career, see the Athens Banner-Herald obituary. [JH] 

What May Become the Next Normal in Pricing Online Legal Search in the 21st Century?

In the "good old days" when we aging and decrepit Boomer-gen law librarians were bright young things, very expensive legal search vendors only offered "everything." At that time, everything in the databased content inventory wasn't all that much. Soon enough, "everything" was limited to the non-academic law library market because certain resources were excluded from academic law library licenses.

Early on database vendors' pricing mechanism generated very high variable search costs in the private and government sectors. While the private sector was then still able to charge back costs to clients, the government sector could not afford this model because, well you know, government entities have budgets to maintain. The call went out for some sort of in-plan access. "Impossible!" was the vendor responses based on false technology claims. Citing the differences in academic plans compared to the entire database universe model in private and government sectors plans, "impossible" became "possible."

Thus arrived the era of in-plan access with fixed costs with an out-of-plan option that included a variable cost component. Of course, fixed costs were and still are based on a mysterious pricing matrix that takes into account database selections, number of user accounts, number of legal professionals and various print tie-in arrangements at the institutional buyer's level. Ultimately, however, it boiled down to an institutional buyer's purchasing power, the negotiation skills of that buyer's representative, and, in the private sector, the consultants sometimes employed because the NDAs incorporated in licensing agreements prohibit sharing pricing data.

Those were the "select your database, then perform your search" days. With the next gen current gen WEXIS platforms, it is perform your search  and then filter your results largely by data elements that once were segment or field searches in former menu-driven database categories. Eliminating the marketing nonsense about how this or that vendor's metadata-enhanced SE is better than the "other guy's," buyers are still left with to options: (1) in-plan only negotable fixed rate or (2) in-plan with out-of plan variable rate. Of course what is "out-of-plan" does not necessarily mean "everything else." Access to "out-of-plan" databases is negotiable and oftentimes excludes much of the vendor's databased inventory to reduce variable costs. The clear trend, however, in the private sector is in-plan only licenses for a selected set of resources at a fixed rate for classic or next gen current gen WEXIS licenses.

Now comes the silliness. What is the point of next gen current gen WEXIS federated search engines if WEXIS doesn't provide its entire databased content inventory at a fixed rate? Why not stop applying a 20th century pricing scheme to a 21st century platform? "Impossible!" WEXIS will say but not for a psudeo-technological rationalization. Why then? Because WEXIS is still applying last century's revenue generation model to the 21st century as if the legal services industry has not changed permanently.

Will the "impossible" become possible as the next normal pricing scheme for very expensive online legal search if BLaw's flat rate pricing for that Company's entire database universe becomes a competitive threat to WEXIS?  That may depend on BLaw reducing its per seat flat rate for something less than institution-wide licenses.

For a little background on what may be the next normal in the 21st century from the institutional buyer's side of this equation, see The No Sacred Cow Models: Sole Provider, Primary Provider, or Multiple Narrow-Focused Providers for Online Legal Search in the Private Sector. [JH]

Supreme Court Action: Jurisdiction Under The Little Tucker Act

The United States Supreme Court issued one opinion this morning.  The case is United States v. Bormes (11-192) and it concerns whether jurisdiction for violations of the Fair Credit Reporting Act (FCRA) by the United States are founded under the FCRA or the Little Tucker Act.  The latter is a generalized waiver of sovereign immunity for suit when a statute offers a remedy but not a mechanism to receive that remedy.

The facts in the case are pretty straightforward.  Bormes, an attorney, paid for a client’s filing with a credit card at pay.gov.  He received a receipt that included the last four digits of his credit card and the expiration date of that card.  The terms of the FCRA state that it should be one or the other, not both.  Bormes sued the government for the violation in the Northern District of Illinois claiming jurisdiction under both the FCRA and the Little Tucker Act.  The Trial Court dismissed the action holding that the FCRA did not explicitly waive immunity.  The Court of Appeals for the Federal Circuit reversed, holding that the Little Tucker Act provided consent to suit.

The Supreme Court reversed.  It held that when a statute such as the FCRA provides a detailed scheme for judicial remedies under an act, it displaces the generalized jurisdictional grant under the Little Tucker Act.  The Court analyzed the structure of the FCRA and laid out the detailed elements of the Act that justified its interpretation under past precedent that similarly analyzed other statutes. 

The Court remanded the case to the Federal Circuit with orders to transfer the case to the Seventh Circuit to consider whether there are jurisdictional elements in the FCRA to allow (or not) the suit.  Justice Scalia delivered the opinion for a unanimous Court.  [MG]

Nudging the FTC on the Prenotification Negative Option Rule to Include Institutional Consumers

In 2009, AALL submitted comments to the FTC that advocated expanding the scope of the Prenotification Negative Option Plan Rule beyond individual consumers to include institutional consumers. Nothing happened. In a renewed effort to get the FTC's attention, AALL's Consumer Advocacy Caucus developed a model Prenotification Negative Option Plan complaint that was approved by the Executive Board this summer. See FTC Prenotification Negative Option Rule Recommendation and FTC Prenotification Negative Option Rule Update.

AALL’s Government Relations Office has issued Action Alert: Submit a Vendor Complaint to the Federal Trade Commission Re: the Prenotification Negative Option Rule (Sept. 2012) to carry forward this effort. The objective is that if the FTC receives enough complaints, the FTC might actually do something about revising the scope of the Prenotification Negative Option Plan Rule.

Will It Work? My hunch is the bad actors in the legal publishing industry eventually will stop sending and billing institutional consumers unordered publications without adequate prenotification periods and disclosures to avoid FTC oversight. That in itself would be a consumer advocacy victory but we will have to wait and see.

Do note that the Action Alert requests that a copy of any complaint submitted to the FTC should be sent to AALL's Government Affairs Office to "keep track of the complaints submitted." I don't know if this means the Government Affairs Office intends to monitor the FTC's responses to complaints or not but the Office has done its job.

By promoting more robust AALL consumer advocacy efforts, I believe and it is only my opinion, that the Consumer Advocacy Caucus, author of the sample complaint, should receive copies of all filed complaints and any FTC responses received by law libraries in a watchdog-like manner for follow-up purposes.

But first, AALL and the Caucus must work out their differences. The E-Board recently rejected the revised statement of purpose the Caucus submitted during AALL's re-registration process. I, for one, have not seen the re-registration statement so I have no opinion on this issue. The E-Board may have legitimate reasons for its rejection. Alternatively the Caucus may need to explain whatever changes it made are necessary for executing more robust AALL consumer advocacy efforts. [JH}

Do Students Lose Interest In Law School By The Third Year?

There is an article in Business Insider called Law Students Reveal Their Third Year Is For Totally Slacking Off.  It’s written by Professor Paul Campos of the Inside the Law School Scam Blog.  The thrust of the article is that students find out that the third year of law school is a waste of time and (their) money.  I can’t say that I disagree, though I may not share the depth of cynicism reflected by Professor Campos or the student comments he quotes from a Top-Law-Schools.com forum.  Quotes such as “Sitting in Ethics now. Not a goddamn clue what's going on” and “I'm already burnt out and ready for it to end...bad sign?” may be a bit over the top.  The collective attitude has to come from somewhere, though.

My own description of law school is that the first year works a student to death via the writing program and novelty of learning substantive law.  The second year calms down the experience enough to focus on learning the law.  The third year puts students to sleep.  I’ll just say the energy drink industry must benefit a lot from 3Ls.  By the third year the “excitement” of being in law school wears off, especially knowing that it will soon be time to reckon with job and debt issues.    

Campos describes a situation that finds students missing third year classes regularly out of boredom or general lack of interest.  He has four major points which I’ll summarize: 1) reading and attendance does not correspond to grades; 2) class standing is set pretty much by the third year making it pointless to try and improve; 3) law school is an inefficient way to learn how to be a lawyer; and 4) the last of the law school program has taxed the attention span after being in classrooms for 20 years. 

I know that some schools are turning the third year of law school into a program that teaches skills.  While it may address the idea that graduates should be able to practice law competently upon graduation, this approach to the third year may hold a student’s interest because it has some real value to them.  Other schools are considering optional compressed programs that eliminate the third year entirely.  I think Professor Campos’ article exaggerates the problem of 3L boredom, but the problem is real.  Law school doesn’t have to be entertaining.  It should, however, be intellectually interesting. 

Addressing the 3L blahs might even improve bar passage rates.  My experience has seen schools having a hard time motivating at least some of their graduates to take the bar exam seriously.  The third year structure as it is may condition some students to believe that cramming through bar prep classes is enough to get through the bar.  If it worked for law school classes, why not the bar exam?  That (wrong) notion could be dispelled by turning the third year into something other than more of the same.  [MG]

Experimenting with Experiential Learning in Legal Research Instruction

The fundamental legal research skills students need to master have not changed despite recent platform changes and generational shift but the habits of today's connected law school students can be integrated in teaching legal research in a positive way. See Cindy Guyer's (USC Gould School of Law) recently SSRN-post article, Experiential Learning: Context and Connections for Legal Research – A Case Study. Here's the abstract:

The ABA requires that all law students receive “substantial instruction” in legal research. This article discusses a unique legal research program that meets this requirement by focusing on experiential learning. Two components of experiential learning, context and connections, are explained pedagogically and specifically as to legal research curriculum.

Recommended. [JH]

Honoring the Sacrifices Made by Our Veterans and Their Families This Veterans Day

By saying a prayer for peace and making a tax-deductible donation to organizations that help our vets and their families like the Wounded Warrior Project. Founded in 2003, WWP’s purpose is to raise awareness and enlist the public’s aid for the needs of injured service members, to help injured service members aid and assist each other, and to provide unique, direct programs and services to meet their needs. You can make a one-time or monthly gift to support WWP's mission.

In a military tribute to all American soldiers who fought in all wars, here is Til' the Last Shot's Fired performed by Trace Adkins and the West Point Glee Club. [JH]