Law Librarian Blog

2012 Rule of Law Index

The World Justice Project's Rule of Law Index offers "a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice. It provides original data regarding a variety of dimensions of the rule of law, enabling the assessment of a nation’s adherence to the rule of law in practice, identify a nation’s strengths and weaknesses in comparison to similarly situated countries, and track changes over time." The 2012 Index is available here. [JH]

Penn State and Alt Penn State Schools of Law

NLJ's Karen Sloan reported last week that Penn State Law's University Park and Carlisle campuses will remain a single academic unit of the University but each campus "will develop and implement separate identities, separate admissions policies, and separate educational programs, similar to Rutgers Law-Newark and Rutgers Law Camden, or Arkansas Law—Fayetteville and Arkansas—Little Rock." Quoting Dickinson Law Dean Philip McConnaughay. The reason given for this change is political opposition to secure state approval of Dickinson's "1L consolidation proposal". For details, see Sloan's Penn State's two law campuses to become separate schools.

On The Faculty Lounge, Dan Filler comments "I have many thoughts about this decision, but my first instinct is that it might mark the beginning of a reputational divide between the two Penn State law schools." [JH]

Friday Fun for a Good Cause Supported by BLaw Staffers: Saluting Legal Icons With Mustaches for Movember

OK, so it's the end of November but it is well worth recognizing that the staff of Bloomberg Law is contributing to a worthy cause. From the YouTube text (video below): 

Each year, during November, a charity called Movember encourages men to grow mustaches to raise money and awareness for men's health issues, specifically prostate and testicular cancer initiatives.

Because of the unique relationship, throughout history, between the American lawyer and the mustache, we salute some of the most famous attorneys to wear a lip rug.

William Howard Taft
Donald Verrilli
Eric Holder
Jan Schlichtmann
Johnnie Cochran
Oliver Wendell Holmes, Jr.
Alan Dershowitz
Douglas H. Ginsburg
Clarence Thomas
Adam Reposa

The staff of Bloomberg Law is carrying on in this grand tradition of legal cookie dusters. We've been growing our lip toupees all month long in support of men's health. Visit Bloomberg Law's Movember page.

[JH]

MS Surface Pro Details Announced

Microsoft released more information about the Surface Pro.  This is the version of the Surface tablet that is based on Intel chips and comes with a functional desktop that can run legacy applications.  The 64 GB version will sell for $899 and the 128 GB version will sell for $999.  Keyboards will be extra at $120 to $130 depending on the model.  I have to believe there will be third party keyboards and other peripherals once the Surface Pro is established in the market.  One notable difference is the statement that the Surface Pro will have half the battery life of the Surface RT.  That puts it in the 4 hour or so range.  The article on the pricing announcement in CNET has links to Microsoft’s spec sheet that compares the technical specifications of the two tablets.  Battery life is not one of the comparative points in that comparison.

Reaction ranges from what a great mix of power and price to what a terrible mix of power and price.  I suppose it all depends on what type of computing needs an individual might have.  There are any number of articles out there that comment on how the Surface Pro stands up against the iPad, Nexus tablets, ultrabooks and laptop configurations.  See here,  here, here, and here and any comments appended to the articles.  The commenters, in some respects, are more insightful that the stories.  The Surface Pro is expected to be released for sale sometime in January.

In related news, Microsoft has announced that 40 million Windows 8 licenses have been sold.  Not all analysts see the good in that.  See this article in the Wall Street Journal as an example.  Others are here and here, with the last article noting that after 30 days of general availability Windows 8 achieved a 1.8% market share of computers that accessed the web in that time.  All I can say is something is goofy in Windows land with these conflicting numbers.  [MG]

Is PACER Making a Profit?

The Bay Citizen's Shane Shifflett and Jennifer Gollan report that PACER brings in five times what it costs. For details, see PACER federal court record fees exceed system costs. Hat tip to beSpacific. [JH]

When "None of the Above" Is Not an Option in Electing AALL National Officers

There is no better evidence that the old boys-girls club in AALL national politics continues to thrive than the screening process conducted to select candidates for national office by way of the AALL Nominations Committee. First, just look at the chairs of the Nomination Committees over the years; they are "safe" by E-Board standards which makes this appointment. Like this latest year, it is no surprise when the chair of the Nominations Committee is a former AALL president.

Then look at the nominees' CVs and campaign statements. Involvement in AALL official activities appears to be a key factor. But what really is key to be selected as a candidate is AALL involvement that does not "rock the boat" as defined by the same sort of people who by and large were elected based on the same screening criteria.

Rank-and-file members never see the names of nominated law librarians who have been rejected by the Nominations Committee. Some of those "rejects" have dedicated substantial time and effort to AALL activities but failed to play the game by speaking opinions AALL officialdom didn't want to hear. Reform-minded law librarians oftentimes are recommended to the Nominations Committee, repeatedly in some cases, but their names rarely, if ever, appear on the official ballot.

This funnelling process leaves little hope for rank-and-file members who want their professional association to reform itself to become responsive to today's environment. They are the disenfranchised because the "approved" candidates have been filtered by AALL's old boys-girls network. No wonder many find AALL to be a waste of time, find little of revelance to their professional activities to attend national meetings, and are hard-pressed to justify paying membership dues.

AALL's nomination procedure is archiac. The option to write-in someone for an office is absurd. Thanks to late 20th century technology, there is no reason why anyone who wants to stand for election to a national office cannot do so by acquiring a stipulated number of signatures. The first step could be executed by AALL members calling for signatures by way of AALLNET with a statement explaining why the person wants to be nominated for the specific office. If the number of required signatures is reached, the candidate is placed on the ballot.

Only recently has the hue and cry from the rank-and-file forced AALL to reverse official course -- think of the PLL Summit being resuscitated for 2013 (but not necessarily beyond 2013). Hopefully the old boys-girls club will be a little more cautious in plotting its official course in the future -- think the results of membership bylaws amendment voting because that was hardly a mandate.

The rank-and-file message in both incidents goes well beyond making AALL more transparent and accountable. The message is that AALL officialdom must become much more representative. Eliminating the top-down selection of candidates who become national AALL leaders based on the old boys-girls network would be one way to remove the straitjacket that produces a group think mentality. Just crunch the numbers for E-board votes on motions for substantive issues. Most are unanimous. Only very rarely is there even one dissenting vote. Has there ever been one vote in recent memory that passed by a one vote margin?

Of course changing the nomination process requires a bylaws amendent which would have to be OK-ed by the E-Board before it is put to a vote by the membership. What are the chances of that happening when the E-Board has a track record of telling the Bylaws Committee to go back to the drawing board because it didn't like what was offered.  

I seriously doubt AALL will allow candidates to stand for office by way of the above-suggested petitioning process anytime soon, if ever. It's just too disruptive of the status quo. Our pre-screened elected officers have anxiety attacks over members "going rogue." This is indicative of the filtering process that produces like-minded elected officials who do not trust the common sense of the rank-and-file.

Plan B. Perhaps instead of just the "meet the candidates" ritual at our annual meetings and read their campaign statements later, why not also conduct an open forum session at our annual meetings, one that is archived for non-attending members. This way attendees can ask questions about where the candidates stand on particular issues. Even if AALL seeds the audience with members of the old boys-girls club like our elected officials did by having two former AALL presidents primed with prepared statements in favor of the membership bylaws amendment at last year's Members Open Forum, one or two hard questions might be asked of the candidates.

"Voting" closes tomorrow. Voting for AALL's vetted and approved candidates for national office ends on November 30th. What the heck, this year's slate of candidates was pretty good. By that I mean I had no trouble voting for one candidate. As for the rest, well ... because "none of the above" is not an option, (not voting is not the same as voting for "none of the above") rank-and-file voting members don't even have this means to signal their objection to the status quo. 

End note. A few years ago a friend wanted to nominate me for an AALL national office. My response was over my aging and decrepit body. Involvement in chapter, SIS and other AALL activities can be a "plus" for candidates standing for election and that is something I haven't even thought of doing since working on a couple of CALL committees over 25 years ago.

There are plenty of involved members with that experience but there is a real problem here because those members who do not toe the line while being involved in association activities are pegged as "trouble makers." Professionally, I believe our association needs some trouble makers holding national office if AALL is going to thrive. [JH]

Supreme Court Action: The Federal Arbitration Act Applies To The States

The Supreme Court issued one per curiam opinion on Monday.  The case is Nitro-Lift Technologies, L.L.C. v. Howard (11-1377).  The opinion reinforces the application of the Federal Arbitration Act (FAA) in state courts as controlling over state statutes and court decisions to the contrary.  The dispute arose over the interpretation of a contract containing both a non-compete clause and an arbitration clause.  Two former employees of Nitro-Lift left the company to work for a competitor.  Nitro-Lift served them with a demand to arbitrate.  They filed suit in Oklahoma state court asking that the noncompetition agreements to be held null and void.  The district court found the arbitration clause to be valid and said the dispute over the non-compete clauses should be settled by the arbitrator.

The Oklahoma Supreme Court issued a contrary decision.  It held that a state statute limits the enforcement of non-compete clauses.  That court analyzed U.S. Supreme Court decisions and declared that it could review the underlying contract despite the arbitration clause.  The Oklahoma Supreme Court further indicated that its decision was made under adequate and independent state grounds which would deprive the U.S. Supreme Court of jurisdiction.

The Court cited earlier opinions holding that the FAA applied to the states and that there were no exceptions under the Supremacy Clause when state and federal law conflict.  Neither the trial court nor the Oklahoma Supreme Court found the arbitration clause invalid.  The arbitrator under these circumstances is the one to determine whether the clause survives Oklahoma statutory law.

The opinion is notable in its language criticizing the Oklahoma Supreme Court for ignoring U.S. Supreme Court precedent and writing its opinion in a way  to evade review.  I guess this is an example of what they call judicial tough love.  [MG]

The CRS And CBO Takes On The Fiscal Cliff

With all the talk about the impending doom regarding the “fiscal cliff,” I offer the Congressional Research Service’s take.  The Service issued a report in September called The “Fiscal Cliff”: Macroeconomic Consequences of Tax Increases and Spending Cuts (R42700, September 20, 2012) by Senior Specialist in Economic Policy Jane G. Gravelle.  From the Summary:

A major policy concern for Congress is when and whether to address the “fiscal cliff,” a set of tax increases and spending cuts that would substantially reduce the deficit in 2013. In projections made in March 2012 by the Congressional Budget Office (CBO), this fiscal restraint, constituting 5.1% of output in 2013, would reduce growth to 0.5% from 4.4%. Unemployment would increase by 2 million. In August, updated estimates projected growth at a negative 0.5%.

Policy choices with respect to the fiscal cliff are difficult because of the conflict between shortrun and long-run economic and budgetary objectives. In the short run, the reduction in demand from the reduced budget deficits could damage an already fragile recovery. In the longer run, however, deficit reduction is needed to address a projected unsustainable debt level.

For FY2013, compared with FY2012, the policy-related fiscal cliff is $502 billion, 80% reflecting tax increases. There is an additional $105 billion from economic changes. The expiration of the 2001, 2003, and 2009 tax cuts (extended in 2010) and the expiration of the alternative minimum tax (AMT) “patch,” which indexes the AMT exemption for inflation, account for 44% of the policy-related fiscal cliff. Other tax provisions include expiration of the temporary two percentage-point reduction in the employee’s Social Security payroll tax (19%); the expiration of other tax cuts, including depreciation and the “extenders (13%); and taxes scheduled to come into effect as a part of health reform (4%). Spending reductions include the automatic spending cuts under the Budget Control Act (13%); the expiration of extended unemployment insurance benefits (5%); and the “doc fix” that will lower Medicare payments (2%). Most changes take effect after 2012, although the AMT and many of the extenders expired after 2011.

Here is the Congressional Budget Office’s take in a report from May of this year called Economic Effects of Reducing the Fiscal Restraint That Is Scheduled to Occur in 2013.  The latest CBO report is Choices for Deficit Reduction from November 8^th.  A companion post on the CBO Director’s Blog is here.  [MG]

The Winds of Sweeping Change are Forcing Cutbacks in Staff and Probably Faculty at Vermont Law School

Facing a $3.3 million budget shortfall due to declining enrollment, Vermont Law School started offering voluntary buyouts to staff this month and will likely offer buyouts to law faculty early next year. "Sooner or later, I think everyone will have to face what we're facing right now," said Vermont Law School President and Dean Marc Mihaly. "We're all facing the winds of sweeping change," he said. For details, see Karen Sloan's New Vermont Law School dean taking on $3.3M budget shortfall (NLJ). [JH]

Becoming Mini Me to Doctor Evil: Some law librarians may start WFT-ing (oops, I probably meant WTF-ing!) when they receive the "great news" accompanying shipments of Lexis pBooks "with eBook"

I have 60-plus copies of Anderson's (read Lexis) Ohio Criminal Law Handbook on standing order. Our little county law library keeps two on our shelves. We pay for all of them (pricing discounted because of the number of copies) but the rest are directly shipped across the entire county to government stakeholders (judges and public sector attorneys). Recently I looked at the packing slip for the 2012-2 edition. It read "Anderson's 2012-2 Ohio Criminal Law Handbook with eBook". Ah, OK. "With eBook" doesn't cost anything more than without eBook. Download the "Great news!" Dear Customer letter. It explains that companion CDs, clearly a tech dead end, have been replaced with free eBooks. Such a deal.

Of course when one realizes that many of my recipients do not have Lexis user accounts, won't know the difference between the two eBook formats available, wouldn't know how to install the eBook reading app on the desktop, and probably won't know how or won't take the time to learn how to use the app's functions without training, one has to give LN's corporate decider-ers credit for becoming the Mini Me to Doctor Evil.

There was no advance notice that this was coming and no opt-out choice in what is clearly a stunt to unsolicitedly expose Lexis pBook subscribers to the Lexis eBook format. My hunch is Anderson's 2012-2 Ohio Criminal Law Handbook isn't the only title being shipped on standing order with an enhanced eBook "free." It certainly is not the only Lexis pBook that comes (or came) with a CD.

So imagine the consequences of mid-sized and large law firms receiving shipments of some LN titles "with eBook" in much larger numbers whether or not law firm librarians want that at this early stage of the enhanced Law eBook era. According to Bess Reynold's The Challenges of E-Books in Law Firm Libraries many are not interested right now for a number of very good reasons. Well, institutional buyer disinterest be damn. Lexis is pushing out titles to end users in what I guess is a trial run to generate end user interest. When willingness to pay for Law eBooks is low, Plan B for Lexis appears to be to give some eBooks away for free for now.

"Free" however is not free. I, for one, will have to explain the following: 

1. how to install the Lexis eReading app on desktops if the individual's desktop is hardware and software compatable (more likely I will have to travel across the county to do it myself);
2. that click-thru may not be available without a Lexis user account;
3. I, the invoice-paying guy who is supposed to coordinate purchasing of these materials, had no say in this matter; and
4. most likely when "with eBook" is no longer "free" the Board I report to for acquisition approvals for government stakeholders may not approve the additional expense for "personal" copies of Lexis eBooks even if the end user gives up his or her pBook copy because we may go the eLending route to save costs instead.

Just like TR Legal's ProView eBooks are tied to WLN, Lexis eBooks are tied to the Company's search platform. So exposing Lexis eBooks to non-Lexis users mimics TR Legal's strategy to increase search platform adoption rates by way of end user frustration. Meanwhile our little county law library has a couple of Ohio Criminal Law Handbooks "with eBooks" but not one eBook edition is available via the Lexis enterprise eLending solution unless I want to pay for that.

Frankly, I don't even know if this is the first Lexis pBook "with eBook" title we have received. While I check every damn TR Legal pBook title we receive, I used to have more trust in Lexis pBook deliveries. Now, well this is strike two in about a month or so. Strike one is here.

Do note: Standalone purchases of the 2012-2 edition title apparently come "with eBook" at no additional cost on the Lexis eCommerce site. [JH]

Was the Michigan State Bar Exam Just Too Hard for Thomas M. Cooley Law Grads?

If your read President and Dean Don LeDuc's recent "commentary," you reach the conclusion that the reason why only 51% of Cooley grads passed the Michigan State Bar exam was because the exam was just too damn hard. What's he complaining about? So what if only 110 Cooley Law grads will have to take the exam over. The School has already pocketed their tuition.

Perhaps Dean LeDuc thinks that the use of the bar exam to regulate the labor supply of lawyers in Michigan is inappropriate. See ATL's Test Takers Tank On The July 2012 Michigan Bar Exam post by Elie Mystal. Dean LeDuc writes

The 2012 results are a great disservice to those who took the examination and to the law schools, an issue that should have been addressed by the Supreme Court and the Board of Law Examiners before these results were released. These bodies and the law schools have a common responsibility to assure that the bar examination is a valid vehicle for assuring that those who seek to enter the legal profession have a minimally acceptable level of competence. I cannot speak for the other Michigan law school deans, but for myself I cannot accept that the 2012 results validly assessed our graduates. In short, these results are not for real.

Perhaps what Dean LeDuc really thinks is that graduates of the self-proclaimed second best law school in the country should be exempt from taking the bar exam. For more, see LeDuc's Are the Bar Results for Real? and Staci Zaretsky's Quote of the Day: Sorry, Dean, Those Bar Results Are ‘For Real’ on ATL. [JH]

Overhead or Not Overhead: Size Matters in Law Firms Eating Legal Research Costs According to BLaw Survey Findings

For details, see Bloomberg Law's recent survey, which found that 43 percent of law firm survey respondents absorb more of their legal research costs today than in 2010. Due note, however, that the size of a law firm is a factor in being able to charge back legal research costs with the clients of Big Law firms being more likely to pay for what in the 21st century is clearly law firm overhead costs for doing business.

Until the trend to push back research costs by clients of Big Law escalates substantially, it is unlikely that WEXIS will have to change its pricing and database selection licensing model. Since BLaw's major food group is Big Law, the survey findings also indicates that BLaw's "predicable" pricing for its entire eContent inventory will require increased Big Law client pushback to gain more traction. At the same time, the survey confirms that for mid-sized and small law firms, flat rate pricing for in-plan only WEXIS licenses are substantially more cost competitive than BLaw in those private sector market sub-segments. [JH]

Should Law Schools Form Cooperative Online Classes?

Some of the more interesting educational news in the last few weeks was the announcement that several undergraduate programs from major schools would form a consortium where students from one school could enroll for credit in online courses presented at another school.  Tuition would be handled by the source school.  Schools taking part in the program, called Semester Online, include Northwestern, Duke, Notre Dame, the University of North Carolina at Chapel Hill, Brandeis, the University of Rochester, Vanderbilt, and Wake Forest.

The advantage for students is they would have a broader selection of classes available to complete a major.  Another advantage is students would have a learning experience that is potentially broader than the perspective that exists within the local faculty.  A third advantage is the availability is automatic within the range of online offerings.  The program seems to make the online offerings available with local classes as a registration option.

The undergraduate cooperative program may have some application to law schools.  These days law students can ask for and receive permission from their enrolled schools to attend another school for a semester or more.  The problem is the bulky process that makes this work.  There has to be separate applications, tuition payments, and transfers of credits.  But why not form cooperative alliances between law schools similar to the undergraduate programs? 

The same advantages could apply to law students outside of the first year required courses.   This kind of approach can be useful for students taking elective lecture classes and possibly some of the more esoteric seminars that schools offer.  Broader online offerings give students more options to meet program requirements and expand opportunities for personal interests in subjects.  Some schools have great programs in health law, antitrust, copyright and other subjects.  Students may be able to take some of these classes in subjects with a greater degree of flexibility online compared with the local schedule.

One advantage for law schools could be attracting students who would be interested in attending classes in a cooperative program.  Schools with online programs may appear to be more in touch with today’s technically adept students.  It’s no secret that admissions are tight these days with schools competing with each other for the better students.  Offering classes together may help fill the seats with quality students. 

I can’t imagine law schools doing anything immediately.  Changing the rules for law school operation at the ABA and in the law school administrative offices is glacial.  As an example, it took Congressional criticism and intense public pressure to change the job statistics reporting.   Another hurdle is the major investment in technology infrastructure for something like this to happen.   Despite all this I believe there is gain for law schools if something like this were to happen.  [MG]

Publishing Suicide: Another Possible Merger in the General Trade Publishing Industry

First came the Random House and Penguin Group merger which together will have a combined 28-30% share of the US market if it passes regulatory scrutiny. Now rumors are flying that News Corp, owner of HarperCollins Publishers, is interested in acquiring Simon & Schuster from CBS Corp. Reportedly in preliminary talks, if the deal is concluded, the combined HarperCollins-Simon & Schuster would account for an 18-20% US market share, making it the second largest publisher in the US. For details, see Christopher S. Stewart and John Jannarone's WSJ report, News Corp. Eyes Book Publisher.

The coming consolidation in the the general trade publishing industry has even caught the attention in the law prof blogosphere. On Concurring Opinions, Lawrence Cunningham writes in Suicide in American Trade Publishing:

The slow death of big-time American trade publishing is becoming rapidly more imminent, suggests the Random House-Penguin merger of desperation. Technology is only an accomplice, after the fact, to this fate. The real cause is suicide.

The big publishing houses do precious little to add value to the products they distribute. Except for a handful of editors within a few houses, authors and their own teams of privately-hired agents and editors do all the real work in manuscript writing, editing and rewriting — and marketing.

At many publishing houses, editors do not even read manuscripts, other than acquisition editors giving a skim to verify acceptability and young copy editors going over them for minor quibbles about punctuation and hyphenation.

Ah, OK. Like the above editorial practices aren't already common in the legal publishing cartel. Law librarians have known this for years but it only appeared in the sunlight two years ago

• Raising the Bar for "Publisher's Staff" Content After Rudovsky? On some really bad decisions made by West and its many and varied consequences for not being "proud" of publishing a "sham" pocket part (Dec. 22, 2010)
• The Rudovsky Case and Quality Control (April 21, 2011)
• A Bit More On The Rudovsky Case (Sept. 23, 2011)
• Whatever Happened To The Rudovsky Case? (Nov. 21, 2012)

Cunningham adds

True, publishes create a dust jacket, but though that often takes some skill and a bit of imagination, many covers could be done by any modestly capable graphic designer. Some covers come out with ad copy that suggests that the copy writer, much like her colleagues in editing, didn’t actually read the book. For non-fiction, publishers even outsource the creation of indexes to freelancers.

Hell, legal publishers have standardized book covers. No additional skill or imagination required. Indexing leads to blind page cites. Even title pages oftentimes are not fact-checked for current authorship attributions. [JH]

Live Webinar Hosted by Kaplan Test Prep on Law School Survey Findings Tuesday

From the Kaplan press release:

Responding to the reality that the toughest job market for new lawyers in 20 years may be the new normal for the foreseeable future, law schools are taking unprecedented steps to course correct.  According to Kaplan Test Prep’s 2012 survey of law school admissions officers, 51% of law schools have cut the size of the entering class; 63% said the reason was the contraction of the job market in the legal industry.  And more cuts may be on the way; of the law schools that have not cut the size of their entering classes, 28% say they will likely do so for the current application cycle.

Kaplan will discuss the findings of its 2012 survey of law schools with admissions officers from top law schools during a live, online event on Tuesday, November 27 at 8:30 PM EST.  To register, visit http://blog.kaplanlsat.com/the-180-live.

While admissions info is hard data, due note the following soft data questionable survey findings:

The Kaplan survey also finds that 68% of law schools have already revamped their curriculum to make their students more “practice ready”; 5% say they’ve decided to so, but haven’t implemented the changes yet; 9% say they are considering making curriculum changes; and 18% say they have no plans to make curriculum changes.  Among the curriculum changes some schools have made or are considering making: more clinical work opportunities and giving students more opportunities to specialize in a specific field, which can give them a competitive edge in a field that values specialization.

For more, see Kaplan Test Prep Survey: Facing A Tough Employment Landscape for New Lawyers, Law Schools Cut the Size of their Entering Classes and Revise Curriculum to Adapt to Evolving Market. [JH]