Law Librarian Blog

What 2012 Meant for Digital Publishing

On Lean Back 2.0, Emma Gardner offers a set of interesting charts and infographics that capture what 2012 meant for digital publishing. See Charting Digital Publishing in 2012 for details. [JH]

Bloomberg Law: On the five "most influential people In legal education," circa 2012

From Bloomberg Law's YouTube description (with gloss over video below):

National Jurist magazine has released its rankings of the 25 most influential people in legal education, based on a survey of 350 professors and deans. Reformers and innovators top the list.

#5: Kyle McEntee is co-founder of Law School Transparency. The non-profit is dedicated to "fixing the broken economic model that law schools currently operate with."

#4: Erwin Chemerinsky, Dean of the University of California Irvine School of Law, is trying to create the first new elite law school in decades.

#3: Frank Wu, the Dean of University of California Hastings College of the Law, is cutting enrollment, by 20% over 3 years, in response to the lousy job market.

#2: Professor William Henderson of Indiana University School of Law is building a third-year curriculum that would teach lawyering skills to be paid for by law firms, and taught at a consortium of schools.

#1: Leading the list is Professor Brian Tamanaha of Washington University School of Law in St. Louis. He literally wrote the book on legal academia reform. He told us earlier this year that "we lost our moral compass... and ultimately law schools have to be held responsible for this."

Perhaps Bloomberg Law will interview each of the National Jurist's "Top 5" to find out more about each of the reformers and innovators instead of just glossing over the National Jurist's typical editorial pablum. While four of the five are certainly deserving, some may have issues with #3. See The Wu Recipe for Fixing Legal Education. [JH]

Friday Fun: Info Antics, Not Metrics; Say It Ain't So, Seto

Quoting from Theodore Seto's (Loyola Law School, Los Angeles) Where Do Partners Come From?, 62 Journal of Legal Education 242 (Nov. 2012):

You are a hiring partner. You need to spend your recruiting dollars as efficiently as possible. Which law schools offer the largest pools of potential future partners for you and your firm to explore?

You are applying to law school. Your long-term ambition is to become a partner in a national law firm in a certain city. Which schools may increase your chances of realizing that ambition?

To date, no published study has attempted to answer the question: Which law schools produce the largest numbers of partners at national law firms? This article is intended to fill that gap.

To fill that gap, how? According to Pepperdine Law Prof Robert Anderson's Witnesseth: Law, Deals & Data blog post, Bloated Is Better for Law School Rankings, here's how:

The new Theodore P. Seto ranking of law schools is in large measure a reincarnation of the notorious Thomas M. Cooley’s Law School’s ranking of law schools.

Ouch! See also Anderson's Where Partners Really Come From... and A Last Word on the Seto Rankings. In some respects, Anderson's take on Seto's ranking is mild compared to what Paul Campos has to say in his deconstruction of Seto's article at Partnership or death? and A few more points about the Seto partnership study.

Instead of a reference to Shoeless Joe Jackson, here's Weezer. [JH]

LSAC Sues California Over Reporting LSAT Takers With Time Accommodations

The Law School Admissions Council is suing the State of California over a new law that prohibits the the Council from informing law schools of applicants who have received extra time to take the LSAT.  The Council complains that the law, which went into effect on January 1st , violates free speech rights and does not apply to other testing agencies.  Violations trigger a $750 fine.  The Council states that its research shows that the scores those who receive extra time were not comparable to those individuals who did not.  Only those who receive extra time are flagged.  Those who receive other accommodations are not reported.

I can’t say whether the Council’s suit has merit or not.  I know that it has had trouble with allowing variations on LSAT tests to the point where the U.S. government has filed suit against it for violating the Americans with Disabilities Act.  The most recent complaint by the Justice Department, which includes the flagging issue, is here.  The Council seems to take a “barbarians at the gate” attitude whenever its practices are questioned.  More details on the California suit are in the National Law Journal.  [MG]

FISA: The Movie!

The CATO Institute's video commentary on the FISA domestic spying "debate" and reauthorization. Hat tip to ARL Policy Notes by way of Free Government Information. [JH]

The Obama Administration's 2012 National Data Strategy

Hat tip to Text Radar's Alice Wilson for calling attention to the National Strategy For Information Sharing and Safeguarding (Dec. 2012). From the Executive Summary:

Our national security depends on our ability to share the right information, with the right people, at the right time. This information sharing mandate requires sustained and responsible collaboration between Federal, state, local, tribal, territorial, private sector, and foreign partners. Over the last few years, we have successfully streamlined policies and processes, overcome cultural barriers, and better integrated information systems to enable information sharing. Today’s dynamic operating environment, however, challenges us to continue improving information sharing and safeguarding processes and capabilities. While innovation has enhanced our ability to share, increased sharing has created the potential for vulnerabilities requiring strengthened safeguarding practices. The 2012 National Strategy for Information Sharing and Safeguarding provides guidance for effective development, integration, and implementation of policies, processes, standards, and technologies to promote secure and responsible information sharing.

The Strategy focuses on achieving five goals:

1. Drive Collective Action through Collaboration and Accountability.
2. Improve Information Discovery and Access through Common Standards.
3. Optimize Mission Effectiveness through Shared Services and Interoperability.
4. Strengthen Information Safeguarding through Structural Reform, Policy, and Technical Solutions.
5. Protect Privacy, Civil Rights, and Civil Liberties through Consistency and Compliance.

For an overview, see David Perera's White House data strategy calls for standardized metadata and identity authentication on FierceGovernmentIT.

On a related note, CRS issued The Protection of Classified Information: The Legal Framework on Dec. 17, 2012. From the Summary:

The publication of secret information by WikiLeaks and multiple media outlets, followed by news coverage of leaks involving high-profile national security operations, has heightened interest in the legal framework that governs security classification and declassification, access to classified
information, agency procedures for preventing and responding to unauthorized disclosures, and penalties for improper disclosure. Classification authority generally rests with the executive branch, although Congress has enacted legislation regarding the protection of certain sensitive information. While the Supreme Court has stated that the President has inherent constitutional authority to control access to sensitive information relating to the national defense or to foreign affairs, no court has found that Congress is without authority to legislate in this area.

This report provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. Finally, the report describes some recent developments in executive branch security policies and legislation currently before Congress (S. 3454).

[JH]

Supreme Court Action: Affirmative Defense Burdens And Case And Controversy Issues

The Supreme Court is really feeling the love as the two opinions it released this morning are both from a unanimous court, just as the two from yesterday.  The first of these is Smith v. United States (11-8976).  Smith was convicted in federal court of conspiracy related to the sale of drugs.  He claimed to have withdrawn from the conspiracy before the statute of limitations had run.  The trial judge instructed the jury that once the government had proven its case the burden for proving withdrawal before the statute of limitations had passed was up to Smith.  Justice Scalia writing for the Court stated that the burden does not belong to the government to prove Smith hadn’t withdrawn unless the affirmative defense disproves an element of the crime.  Withdrawal presupposes that the defendant was part of the conspiracy and only relieves the defendant of responsibility for post-withdrawal activities of the conspirators.  There is no constitutional requirement to shift the burden to the government.  Congress could have done so via statute but chose not to do so.

The second case is Already, LLC v. Nike, Inc. (11-982).  Its procedural history is a bit complicated.  Nike sued Already for trademark violation due to similarities in Already’s athletic shoe line to those of Nike’s trademarked Air Force 1 line.  Already countersued to invalidate Nike’s mark.  Nike issued a broad covenant not to sue Already based on any existing or future designs that constituted “colorable imitations” of Already’s current products.  It dismissed its claims against Already with prejudice and moved to dismiss the counterclaim without prejudice.  Already resisted that motion. The District Court found that the case was moot and dismissed the claim and the Second Circuit upheld the dismissal.

The Supreme Court upheld the result based on the fact there was no case or controversy for the court to decide at that point.  It noted that a party cannot shield itself via covenant by voluntary dismissing a case and picking up the same conduct again later.  The covenant that Nike issued, however, was so broad that it basically covered all possibilities.  Already did not offer any evidence at trial or on appeal that it planned to develop a shoe line that fell outside the covenant but could conceivably violate Nike’s trademark triggering a lawsuit.  Already’s alternative theory, backed by affidavits, was that investors were unwilling to invest in the company as long as there was a possibility of suit, thus keeping the controversy alive in the counterclaim.  The Court said conjectural claims does not invoke jurisdiction of the federal courts.  Chief Justice Roberts issued the opinion for a unanimous court.  Justice Kennedy filed a concurring opinion joined by Justices Thomas, Alito, and Sotomayor.  [MG]

And the Winner of ATL's Lawyer of the Year for 2012 is

... try to guess before checking out Staci Zaretsky's Above the Law’s 2012 Lawyer of the Year Competition: The Winner! post. [JH]

"Borrowing" Language from Another Library Association's Strategic Plan for a "Big Audacious Goal" Statement ...

... but intending to execute any tactics based on that?

I doubt I was the only law library AALL member who thought that AALL's Strategic Plan for 2013 - 2016 (or 2015? or 2017?) sounded familiar for its stated long-term goal. The Strategic Plan's "Big (Hairy) Audacious Goal" statement is a pastiche from ALA's Strategic Plan, 2011-2015 except for the "(Hairy)" thing.

Hey, no problem. Those of us who have been in the legal practice business for sometime, know there is no point in reiventing the wheel. We all grab content for briefs, memos and opinion letters because the sig line only represents that the authors certify statements made are "good law" arguments, not that the content is original.

In the case of AALL's current Strategic Statement, however, one has to wonder if our association intends to back-up borrowed words from ALA with certified actions like ALA has executed since that library association adopted its big audacious goal in 2010. For just one example, take a look at what ALA has been doing to advocate for eBooks for their member institutions and user populations recently. Similar but independent actions by AALL-represented institution buyers would be deemed as "going rogue" unless AALL actually intends to match words with deeds in 2013 for all to see. 

At the moment it sounds like AALL's Vendor Liaison intends to "advocate for transparent and library-friendly policies and pricing structures for e-books" with "our current vendor partners."

• Flying solo?
• Behind closed doors?
• Only our association's so-called "vendor partners" based on their business plans per the Guide to Fair Business Practices for Legal Publishers (2012 ed.) ("The AALL Guide does not explicitly cover publishers' internal operations, understanding that the publisher is in the best position to fully implement the guidelines in a manner suitable to its business plan.")?
• What about private, public and academic library institutional buyers and their business plans?

[JH]

Supreme Court Action: The Clean Water Act And Competency In Habeas Proceedings

The Supreme Court issued its first opinions of 2013 this morning.  The first of two cases is Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. (11-460).  The case involves an interpretation of the Clean Water Act.  The NRCD along with Santa Monica Baykeeper filed a citizen’s suit against the District claiming that the water quality measurements from monitors within the Los Angeles and San Gabriel Rivers showed that the level of pollutants exceeded that allowed by its permit to discharge.  The District Court held that the record was insufficient to hold the L.A. District liable.   Other entities besides the L.A. District also discharge via permit into the rivers.  The Ninth Circuit reversed holding that the pollution levels were detected at monitoring stations in concrete lined portions of the rivers to lower, unlined portions of the rivers.  That Court concluded that the concrete lined portions of the rivers were under control of the L.A. District. 

The Supreme Court reversed, holding that the flow of water from an improved portion of a navigable waterway to an unimproved portion of the same waterway does not qualify as a discharge of a pollutant under the Clean Water Act.  This, essentially, was an answer to the question presented.  This was based on precedent which the Court said all parties agreed covered the issue.  The Court rejected attempts by the NRDC to argue that the L.A District exceeded its permitted levels as shown by its monitoring system.  That argument, the Court said, failed below and will not be addressed here.  Justice Ginsburg wrote for an essentially unanimous Court with Justice Alito concurring in the judgment rather than joining in the opinion.  The NRDC issued a press release on the opinion here. 

The second case is a bit more complex and involves review of two cases that present, more or less, the same issue on mental competency and habeas corpus.  Ryan v. Valencia Gonzalez (10-930) asks the question whether a state defendant on death row can suspend his habeas proceedings due to mental competency issues that may deny him the ability to effectively communicate with his counsel.  Both the Ninth and Sixth Circuits said yes.  Justice Thomas, writing for a unanimous Court said no. 

Justice Thomas made a distinction to the right of competence at trial does not flow from the Sixth Amendment right to counsel but rather from due process.  Further, the right to competence does not flow from a right to counsel.  Habeas proceedings essentially rely on the record below.  Attorneys for habeas petitioners should have ample time and ability to research claims utilizing the materials developed at trial and on direct appeal.  The Ninth and Sixth Circuits relied on different portions of Title 18 of the U.S. Code to provide a statutory right to competence.  These were rejected by the Court as these sections either did not apply to habeas cases as the Courts of Appeal suggested or were limited to federal, not state defendants.  [MG]

To Repeat: There is no oversupply of lawyers according to Case Western Law Dean

Then why is Case Western's Employment Score as tabulated by Law School Transparency only 46.3% with an Under-Employment Score of 37.8%? Case Western Dean Lawrence Mitchell follows up his Nov. 28, 2012 NYT think piece, Law School Is Worth the Money, with the below Bloomberg Law interview. [JH]

Starting Off Ass-Backwards: On Free eBook Companions

One 2012 legal publishing industry development which demonstrates that old habits don't die in the so-called New Normal of 21st century legal publishing is the replacement of CDs with eBook companions to pBooks launched by LexisNexis. If print is dead -- I believe it most certainly is dying in the sense that enhanced Law eBooks is another nail in the coffin of the print medium for professional legal literature -- then why give eBooks away for "free"? Why devalue a 21st century content delivery format that will increasing replace pBooks by adding value?

This is an instance of starting off ass-backwards. The smarter course of action whould have been to sell eBooks while giving away for free at the buyer's discretion their companion pBooks until such time as individual consumers and institutional buyers no longer wanted the pBooks. And that time will come. Then what Lexis? [JH]

Law Librarians Part of The Problem For High Law School Costs

The Chronicle of Higher Education (subscription required) is reporting on the mood at the current AALS meeting.  The coverage suggests that law deans are considering their options to the crisis in legal education.  It’s bad enough that they are acknowledging the possibility that some law schools could close.  I posted about the downtick in LSAT applications this past December; see Current Law School Admission Stats Not Looking Good.  The Chronicle indicates that the trend in downsizing class seats may delay (but not necessarily prevent) that eventuality.  The trend for the current admission year is for 53,000 students to fill 55,000 available seats.

The article further points out the rise in tuition costs where a private school’s tuition averaged $25,574 in 2003 and now runs at $39,184.  Public schools are the better bargain though the rates have gone from an average of $10,819 to $22,116 for the same time period.  Why the significant rise in tuition one may ask.  For one answer, see Does Law School Have A Future? published last December in Fortune:

Salaries are a major factor, with some law professors at elite or large law schools earning in excess of $350,000 to $400,000 annually. These sums significantly outpace other legal remuneration, except for the 10% in the upper ranks at top law firms.

For another view, see We Must Break the Law School Cartel by Dean Lawrence Velvel of the Massachusetts School of Law.  He blames, as the title implies, the standards set by the American Bar Association in conjunction with the cozy relationship the ABA has with the law school faculties and the state supreme courts.  And, if there was any doubt, he blames the librarians as well:

Buildings are plush.  Libraries -- which are very costly -- are huge, and many expensive administrators are required.

Now we know that academic librarians are part of the problem.  I just want a moment to mention that many on an academic law library professional staff had to go to law school (at significant personal cost) and library school (at a further cost) to get a job with a starting salary somewhere in the $40,000s or so for the service they provide.  This may not refer to “expensive administrators” per se, but a law school either runs a library (with attendant costs) or it doesn’t.  Technology can replace some staff and materials but it has its own similar overhead in staff and equipment.  The money just moves somewhere else.

The fundamental problems with law school economics may require radical change.  My personal solution would be to make law an undergraduate major with graduate law school acting as the point where students learn those practical skills required for practice.  That could save a lot of time and money to get to the bar exam.  Graduate or undergraduate, there is still a need for a library and staff.  [MG]

AALL's Vendor Liaison Announces Goals for 2013

Goals include "work[ing] with our current vendor partners to secure their commitment to support the principles outlined in the Guide to Fair Business Practices for Legal Publishers" (emphasis added; see Not Yet There) and "advocat[ing] for transparent and library-friendly policies and pricing structures for e-books" (emphasis added; what about rank-and-file members discussing and advocating  "pricing structures" by way of official AALL web community rules?).

Plus one additional self-determined AALL employee or AALL E-Board -- but not necessarily rank-and-file defined -- goal is presenting a final draft of the Vendor Relations Policy at the spring 2013 Executive Board meeting for adoption after soliciting comments from AALL members and "our current vendor partners". My hunch is AALL officials would like to either sweep the entire "antitrustism" policy fiasco under the rug or it will reappear in the form of a "vendor relations policy" statement. For more, see the January 2013 Vendor Liaison Update. [JH]

Acquiring Current Awareness and Productivity Solution Services for Private Sector Specialist Legal Markets by WEXIS

Reaching beyond the generalist legal market because that is not where the cash flow is, WEXIS started off 2013 with announcements that Thomson Reuters acquired UK-based how-to Practical Law Company and Lexis acquired Seattle-based Knowledge Mosaic. No details yet on what Thomson Reuters plans to do with Practical Law Company's services but Jean O'Grady identifies some potential synergies and strategic implications in her recent Dewey B Strategic post.

Following last year's acquisition of Law360, LexisNexis is beefing up its news and current awareness portfolio for speciality law practice areas. Reportedly, Lexis will offer Knowledge Mosaic as a standalone service while also integrating its content and tools with Lexis services such as Lexis Practice Advisor. Check Dewey B Strategic for Jean O'Grady's promised post about Knowledge Mosaic's acquisition by LexisNexis. [JH]

Kennedy's 2012 Blawggie Awards

Once again Dennis Kennedy recognizes all law librarian blogs in his 2012 Blawggie Awards for Best Law-related Blogs:

These blogs are places to find great information, help for finding information, links to great resources and just plain interesting insights into topics like knowledge management and our changing world of information.

[JH]