January 19, 2013
Digital Rights Activism in 2012For EFF, Jillian C. York writes "[A]ctivism for digital rights saw great successes—and innovations—in 2012. While not every campaign was as successful in quashing efforts to restrict rights, it was nonetheless a great year worldwide for digital activism." See York's 2012 in Review: Digital Rights Activism Around the World for some highlights. [JH]
January 18, 2013
Law School Applications Are Still Sliding
So, how are we doing on law school applications for the current application cycle? Here’s the latest from the LSAC :
As of 01/11/13, there are 179,147 Fall 2013 applications submitted by 25,423 applicants. Applicants are down 20.4% and applications are down 23.2% from 2012.
Last year at this time, we had 47% of the preliminary final applicant count.
Charts are available at the link. For whatever it’s worth, these numbers are slightly better than what appeared last December. See my post Current Law School Admission Stats Not Looking Good. Slightly better in these circumstances mean slightly less terrifying to law school deans and budget officers. To paraphrase Leonard Cohen, downsized law schools are coming to the USA. Read Megan McArdle’s take on dropping applications in an article posted on today’s Daily Beast. Here’s a sample:
My guess if a law school closed, many of those out of work faculty couldn’t even work as a reference librarian. Most of them wouldn’t have the right skills set to make it in the service class. [MG]
But the largest knock-on effect is, obviously, more unemployed law professors. Ideally, this will happen mostly through attrition--people who simply never get hired into the legal academy (note that this worsens the job outlook for law grads at least slightly). But when an entire school shuts down, its professors are going to be thrown on the job market. And it's going to be pretty hard for them to find another teaching job, given those enrollment numbers.
Leadership Traits from Lincoln to Law LibrariansHat tip to John Edwards, Associate Dean for Information Resources and Technology and Professor of Law, Drake University Law School, for this heads-up. In the context of Steve Matthews' Top Ten Traits of Great Library Leaders (21st Century Library), featured a couple of days ago on LLB, John wrote "Amazing how those top 10 match Lincoln. [I] heard Doris Kearns Goodwin speak on Tuesday. [The] Des Moines Register article below hits some of those top 10 points." And here is the article, Doris Kearns Goodwin offers leadership advice from Lincoln (Jan. 15, 2013). [JH]
On Playing Games with Law School Data: The buck stops where and by what means of accountability?
In Law Deans in Jail [SSRN], Morgan Cloud and George B. Shepherd (both Emory Law) suggested that law schools, their deans, U.S. News & World Report and its employees may have committed felonies by publishing false information as part of U.S. News' ranking of law schools. From the abstract:
Some law schools and their deans submitted false information about the schools' expenditures and their students' undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates' employment rates and students' undergraduate grades and LSAT scores.
U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data's accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.
That seems a little far-fetched but what about law school administrators' professional obligations? Ben Trachtenberg (Missouri Law) makes the case that law school administrators who are licensed to practice law may be subject to discipline under Rule 8.4(c) of the Model Rules of Professional Conduct. Here's the abstract for Trachtenberg's Law School Marketing and Legal Ethics [SSRN]:
Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics—especially those concerning the employment outcomes of law graduates—in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit.
This article exposes how pitches aimed at prospective students, including the seemingly straightforward recitation of statistics on law school websites, still paint an unduly rosy picture of the legal employment market. Focusing on Rule 8.4(c) of the Model Rules of Professional Conduct, the article explains that law school officials have exposed themselves to professional discipline, which may offer a solution to the pervasive problem of misleading law school marketing.
While under the cloak of academic freedom, individual law profs can crunch data any way they want to (e.g., here and here) no matter how intellectually bankrupt their results may be, clearly that is not the case with law school administrators who have knowingly engaged in deceptive practices. [JH]
Friday Fun: TED Onion Talks Session on Using Social Media as a Marketing Tool
From the YouTube description for this episode in The Onion's Onion Talk series of TED Talk spoofs:
The world's most successful companies know that social media is a powerful marketing tool, and Cameron Hughes knows how to make social marketing even more effective: by never injecting an ounce of effort into it.
January 17, 2013
Your Genome May Not Be Private
My take on privacy, especially on the Internet is that if we and/or the law can’t safeguard our privacy, we should at least know what we are giving up when we give out even innocuous information about ourselves. It’s a complicated process to keep track of it all, of course, as more and more of our characteristics are collated in databases. It was with great interest that I came across this article in Wired, Scientists Discover How to Identify People From ‘Anonymous’ Genomes. Apparently, with nothing more than the analysis of a DNA sample and a little genealogical sleuthing, it is possible to link that sample with an individual with a 12% success rate for Caucasian males. Here’s an example from the article:
Erlich and his team started with the observation that Y-chromosomes and surnames tend to go together. That’s because sons always inherit their father’s Y-chromosome and typically inherit his surname. Certain genetic stutters on the Y-chromosome, in which the letters of the genetic code repeat over and over, vary widely in the general population but tend to be shared by closely related men.
In a few highly publicized cases, people have exploited this to find their sperm donor father. In 2005, for example, a 15-year old boy reportedly found his biological father after having his own Y-chromosome tested and combing a commercial genealogy website for close matches. These matches pointed to a potential surname, which the boy combined with other clues — including the sperm donor’s birth place and date — to track him down.
The current research relies on matching the individual genomes with other publicly known information. It wasn’t too long ago that researchers were able to de-anonymize aggregated search queries. One example of how that works is here. I can imagine how marketers and health care providers may be interested in this. An email or a display ad might say something like “Get your doctor to proscribe Crestor. You’re genetically disposed to high cholesterol.” Here’s another quote from the article:
This is just the beginning. Just wait for the science to mature to the point where we have biological ID cards. Don’t scoff at the idea. You don’t want the terrorists to win, do you? [MG]
“Anonymity is a myth if you’ve got richly detailed genetic information and access to a variety of databases,” said Hank Greely, a law professor at Stanford University who specializes in the ethical and legal implications of emerging biotechnology. Researchers need to ensure informed consent from participants, Greely says, even if that means telling them it may not be possible to protect their privacy.
More Shed West Era Book ArtThis time from Perkins Coie LLP. Repurposing print volumes for the firm's new reference desk in the main library here. [JH]
What Are the Top Ten Traits of Great Library Leaders? (Where will you find today's law librarian leaders?)
Late last year in a 21st Century Library blog post, Steve Matthews wrote:
As we approach the end of 2012, I thought I’d get back to my theme for the year – Library Leadership. In order to be a great leader, a person must possess and demonstrate certain characteristics, or traits of leadership. Here are 10 [link to post] that should be at the top of anyone’s list who is striving to become a great library leader.
Ranked as the number one trait according to Matthews is:
1. Great Leaders Have High Character
Think about a situation in which you knew you could do something and no one would EVER know about it if you didn’t tell. Good or bad, doesn’t matter, your actions would never be found out. There would be no evidence of your actions linked to you. There would be no repercussions to you or anyone you knew. That’s not to say that your actions would have no impact on anyone, actions always have impact on someone or something, just no one you know who could trace your actions back to you. What would you do? The answer to this question is what constitutes a person’s character.
“The measure of a man’s real character is what he would do if he knew he would never be found out.” Thomas Macaulay
Matthews closes his post with the following statement:
Library leaders should be striving to be “great” leaders. It’s what the profession needs to flourish in the ambiguous future and regain the library’s relevance in the community. It is what’s needed for survival.
Who exhibits real library leadership qualities? I believe the lesson to be learned here is that library leadership is not defined by elected library association national office holders. Leadership is not an "official status." Nor is it something one can learn from the pablum of educational and professional development programs about "your value" cranked out by AALL. As the saying goes, if you have to tell people you're valuable, you're probably not. Do note well, there was (hopefully no longer) a time when that saying had to be qualified with "as long as you are a male law librarian" because of a rampant sexist perpective.
Leadership is or needs to be defined by the content of one's professional character and the actions taken by individual law librarians who assume that risk. This is particularly clear in uncertain times like the structural transformation underway today. Eventually the cumulative impact of those actions does wake up AALL officialdom as they try to catch up to the pack to "assume" a leadership role that has been defined by the concerted activities of the rank-and-file who are leading law librarians towards a direction needed for survival. [JH]
January 16, 2013
ABA Section on Litigation to Commemorate 50th Anniversary of Gideon v. Wainwright with Live Webcast Friday, Jan. 18th
From the announcement:
The 50th Anniversary of Gideon v. Wainwright
Friday, January 18, 2013 / 10:30 am – 12:00 pm EST
A program commemorating the 50th anniversary of the landmark decision, Gideon v. Wainwright will be live streamed on January 18, 2013. This decision recognized a constitutional right to the appointment of counsel for indigent criminal defendants charged with felonies. Mr. Gideon was in prison when he submitted his handwritten petition to the U.S. Supreme Court requesting counsel.
Professor Bruce Jacobs, Dean Emeritus and Professor of Criminal Law at Stetson Law School and Anthony Graves, an exonerated death row prisoner from Texas. Moderating will be Joanne A. Epps, Dean of Temple Beasley School of Law.
To view the live event on Jan. 18th, go here.
Hat tip to Cocky Law Blawg. [JH]
Supreme Court Action: Admiralty Jurisdiction and Justice Thomas "Speaks"
The Supreme Court issued one opinion yesterday. It concerned an interpretation of a section of the Rules of Construction Act (1 U.S.C §3) that defines a vessel. The case is Lozman v. Riviera Beach (11-626). Lozman owned a floating home that was docked at a marina in Riviera Beach, FL. It had been towed between locations on several occasions with one tow running a distance of two hundred miles. The Court observed that the home had no ability to self-propel or generate electricity.
Lozman and the City did not get along very well. Riviera Beach tried evicting Lozman from the marina and ultimately filed an in rem action against Lozman under the Federal Maritime Lien Act, invoking admiralty jurisdiction in federal court. The District Court determined Lozman’s floating home was a vessel under the Rules of Construction Act and found for the city. The Eleventh Circuit affirmed. The Supreme Court took up the question of jurisdiction and focused on the statutory language defining a vessel, “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”
The Court looked to past precedents and took the position that the floating home was not designed to any practical degree to transport persons or things over water. The fact that it was towable did not change any of this:
Though our criterion is general, the facts of this case illustrate more specifically what we have in mind. But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering mechanism. 649 F. 3d, at 1269. Its hull was unraked, ibid., and it had a rectangular bottom 10 inches below the water. Brief for Petitioner 27; App. 37. It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connections with the land. Id., at 40. Its small rooms looked like ordinary nonmaritime living quarters. And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows. Id., at 44–66.
The Court ultimately held that nothing about the home could lead a reasonable observer to consider it designed to a practical degree for transportation on water. As a side note Riviera Beach had taken possession of Lozman’s home via the prior litigation and had it destroyed. The City had posted a $25,000 bond in case Lozman prevailed. Whoops. Justice Breyer delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg, Alito, and Kagan. Justice Sotomayor wrote a dissent joined by Justice Kennedy. She stated that the test of a reasonable observer changes the application of past precedent and would have remanded the case for more fact finding on the qualities of the floating home. A picture of the home is included on page 16 of the slip opinion.
In other startling Court news, Justice Thomas actually said something at a Supreme Court oral argument on Monday. He was moved to make an unintelligible joke that is reputed to be a dig at Yale (his alma mater) or Harvard. His last comment from the bench otherwise was February 22, 2006. Here is the section of the argument transcript from the case of Boyer v. Louisiana:
MS. SIGLER: Well, there was a provision - there is a provision in Louisiana law that allows someone to move for the admission and the certification of somebody as capital counsel, which was the procedure employed in this case. That is perfectly permissible. But Miss Lehman at that time was a very experienced attorney, and we lay out her qualifications in the brief. So while she may not have been perfectly qualified under Rule 31 to serve as lead counsel, she was certainly more than qualified -
JUSTICE SCALIA: She was a graduate of Yale law school, wasn't she?
MS. SIGLER: She's a very impressive attorney.
JUSTICE SCALIA: And another of his counsel,
Mr. Singer -- of the three that he had -- he was a graduate of Harvard law school, wasn't he?
MS. SIGLER: Yes, Your Honor.
JUSTICE SCALIA: Son of a gun.
JUSTICE THOMAS: Well -- he did not -
MS. SIGLER: I would refute that, Justice Thomas.
JUSTICE SOTOMAYOR: Counsel, do you want to define constitutionally adequate counsel? Is it anybody who's graduated from Harvard and Yale?
JUSTICE SOTOMAYOR: Or even just passed the Bar?
MS. SIGLER: Or LSU law.
JUSTICE SOTOMAYOR: I would think -- no, no, no. This is a very serious question, which is, I don't know that we have ever defined what the minimum qualification is for qualified counsel. But it is - some of it has to be that counsel themselves feel adequate to represent a capital defendant.
The question presented in the case is:
I’m going to wager a guess and bet that Justice Thomas will answer the question with a “no.” I’ll revisit this when the opinion is announced. [MG]
- Whether a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, should be weighed against the state for speedy trial purposes?
Lawyers, Librarians and the Law
"We are in a difficult position: we want users to access information, but we want them to do it correctly. Spending all our time telling them that a contract says they can only do X, when they want to do X, Y and Z is often just a waste of time, as they will continue to do exactly what they want, and we have no power to stop them doing it." Quoting from a post by a member of Scottish Law Librarians Group that was published on On Firmer Ground.
- Sharing subscriber-only content with other staff who are not authorised for access to that content
- Distributing subscriber-only content to clients
- Sharing passwords for subscriber-only databases
- Using and distributing material from commercial sources without attribution
For much more, see When the lawyers ignore the law. Recommended. However, I do believe law librarians have some power to stop license violations. To the extent we can, we have a duty to do so. [JH]
January 15, 2013
What's Going On At SMU?
SMU Dedman School of Law Dean John Attanasio will not be renewed when his contract expires in May. As we know, deans come and go in the legal academy. This going, however, has its own controversy associated with it for a number of reasons. One is that it was the SMU’s choice rather than Dean Attanasio’s. Another is that it came out of the blue. Even Dedman’s executive board wasn’t aware of it. According to the ABA Journal, Dallas attorney and board member Leslie Ware resigned after hearing the news. He had recently donated $1 million to the law school. Two other board members are considering similar action.
The Dallas News (subscription required) reports quotes from other prominent Dallas litigators who are also upset by the news. Most reactions note that there was no explanation or justification by the University for the action. The closest there was to a reason was in the internal memo sent to Attanasio that said “it is now time for another individual to take on the leadership of the law school at SMU and to provide leadership for the challenge necessary in the current climate of legal education.”
I’ll say that university presidents and provosts are well within their rights to tinker with the administration of their law schools if they want to, and typically without any negative reaction by the ABA if past events are a guide. There are political consequences depending on the circumstances. The alumni and donor base at Dedman like Attanasio and are rising to defend him from everything I’ve read. Their pressure may prompt some explanation beyond the usual “new beginnings” BS. [MG]
Aaron Swartz, 1986-2013: A Tribute and a Legal AnalysisSee Ellen Miller's In Tribute to Transparency Activist Aaron Swartz (1986-2013) (Sunlight Foundation) and Orin Kerr's The Criminal Charges Against Aaron Swartz (Part 1: The Law) (The Volokh Conspiracy). [JH]
Beyond the Wire-Agency Age: Does “Reuters Next” signal changes for WestlawNext and, if so, what sort of changes?
I was disappointed by the launch of WLN, not for the marketing nonsense about WestSearch, but because content integration with Reuters news was not embedded within WLN. Perhaps the Coding Demigods were unable to make that work (assuming that anyone in the Land of 10,000 Invoices was thinking about adding Reuters content like BLaw was doing with Bloomberg news content). Joe Pompeo reports on a major tech overhaul underway for Reuters. From Pomeo's Reuters gutting web infrastructure for 'Reuters Next,' its big online retooling (Capital):
At a glance, Reuters.com looks as prolific and well-designed as the homepage of any news orgnization with resources as its disposal. But fundamental inefficiencies lurk beneath the surface.
The most egregious of these is the difficulty of inserting hyperlinks, people who know their way around the back-end told Capital.
"The current site was built on a legacy system conceived in the wire-agency age," said one of them.
Nor are video embeds a piece of cake. And with the exception of the homepage, live-blogs and other special features, content ends up where it does as a result of automation rather than human intervention.
But Reuters is working on a sweeping web relaunch that's expected to debut sometime in the first quarter of 2013, according to people familiar with the plans.
Known internally as "Reuters Next," the new reuters.com will be a "state of the art" offering with a redesigned front-end and a proprietary content management system built from scratch, said our sources, who described the site as being remodeled into editor-curated, stream-based channels such as world news, politics, business and tech.
Time to wait 'n see if "Reuters Next" content will be repurposed into WLN for a 21st century content delivery system like BLaw incorporated multi-format resources from Bloomberg News and then built upon the readily available IT back-end. Perhaps it will even go beyond Reuters content. Could this "state of the art" ground-up CMS be ported over to WLN for in-house editor curation for secondary sources via WLN and eBook formats? For updating them without being tied to print publication cycles?
Hat tip to Jason Wilson. Perhaps he also is thinking about the CMS implications. See his The “Next” Strategy: Does “Reuters Next” hint at changes for WestlawNext? [JH]
January 14, 2013
AALL RIPS Issues Call for Book ReviewersSince the last time the Research Instruction Committee of RIPS issued a call for voluneers to review new legal research textbooks, about 10 new books or editions have been published. If interested, details and contact information in this RIPS Law Librarian Blog post. [JH]
Short Takes On The News: Digital Libraries, Law School Dean Salaries, and Law School in Two Years
CNET is reporting on one version of the digital library of the near future. It will be realized in Bexar County, Texas, which includes the city of San Antonio. There will be no books, only rows of terminals. Residents will be able to check out e-readers for loan periods up to two weeks. The County will spend about $250,000 for access to the first 10,000 books available through the system. The design of the facility is said to be based on an Apple store. The library system is adding the digital library to its existing system. More details are in the San Antonio Express-News.
Las week I referenced an editorial written by Massachusetts School of Law Dean Lawrence Velvel where he ripped into the ABA and other law school actors for creating unnecessary overhead and raising the cost of law school. One of his targets was the library and its personnel and associated costs. The Boston Globe wrote a story yesterday that disclosed the salaries of deans from various schools. Dean Velvel comes in at $292,861. His salary is modest compared to others. John F. O'Brien of the New England School of Law is up there at a whopping $867,358. The Dean at Georgetown is around $300,000 while the Deans at Michigan, Texas, and Virginia are in the mid $400,000s. So tell me again while law school is so expensive? More information from the Globe is here and here.
Karen Sloan in the National Law Journal reports that New York educators and court officials will meet on January 18th to discuss whether law students should be allowed to take the New York Bar after two years of law school. I would think that law schools would be opposed to the idea. Anyone who passes would certainly deprive law schools of a full year of tuition income in a climate where enrollment is dropping. The fact that a major court such as the New York Court of Appeals would even consider such a move must be scary. It could propel other courts to take similar action. Schools, at the very least, will need to explain the value of the third year. I’m looking forward to hearing how this turns out. [MG]
"Half of Winning Is Just Showing Up": Some thoughts about a plausible future "New Normal" for the sales-buyer relationship in business-to-business transactions
There is no substitute for human contact in business-to-business selling.
As much as each of us have days when we would love some delightful magic that would make people buy our products and services without our having io interact with them, there is no substitute for talking with your customer. Said another way, we must get out there and sell, whether in person or by phone.
(Emphasis in the original.)
The above statement is equally true from the buyer’s side in B2B commerce. Half of winning from the buyer’s perspective -- where winning is defined as reaching a mutually successful conclusion in a B2B transaction -- is being there when a sales rep shows up in person or by phone.
There really is no substitute for human contact. It builds understanding. In our respective “official” roles, we have “good reps” and bad ones. Account managers have “good clients” and bad ones. “Bad” can be characterized as being unable to accept the policies and practices that “the other” must abide by because there is no way to change them. Thus, when I say “I can’t accept that offer” or when a vendor rep says “I can’t accept your offer” we are both saying the people we report to "can’t" or "won't" based on either the vendor's or buyer's business plans. We both, however, agree to the fundamental principle, namely, we are engaged in B2B commerce by way of direct one-on-one human interaction. This interaction can also build mutual trust and respect. It’s good for us as buyers to know something about the business of selling. It is good for vendor reps as sellers to know something about our business of providing resources for our users.
However, I have serious concerns that the days of human interaction in the vendor-buyer relationship are numbered. Just take a look at circa 2012 marketing campaigns and sales platforms -- our major vendors eCommerce sites, our vendors click-to-purchase (read end-around our reps) discounts ads that fill our email in-boxes and our vendors robo pseudo customer-specific emails. Is it not clear that sales and account maintenance increasingly will be conducted online by way of eCommerce? That’s not just for pBook and eBook sales but also, in the future, for lockstep boilerplate licenses including research platform renewals.
While I have embraced technological change during my 30-plus year career, this may be a luddite reaction on my part (and one that eventually may be viewed like reactions that can be found in our professional literature when online legal search was moving to center stage). At the moment, about all an institutional buyer can do is ignore eCommerce and emailed price discount offers by contacting their buyer's account rep. However, B2B sales may be defined by mouse click transactions in the not too distant future with account maintenance issues by way of access to some "customer experience and knowledge base" and with the ultimate resort being "communicate online with one of our (a)live representatives or send us an email using this online fill-in form."
The era of having WEXIS reps who know your institutional past history and current needs may be coming to a close unless your business entity has uber purchasing power. Frankly, I see no long-term future for most sales reps in the “professional legal services” (once known as legal publishing) industry. The future just may be retail sales, not B2B sales.
If I am in the Internet retail business I may be able to achieve sales just by appealing to people who are window shopping online. However, if I am a business-to-business professional selling problem-solving solutions, I must remember that people do not typically become interested in my product offerings until they discover that they have a need (usually with my help), and they will require that I personally advocate my solution, handle their objections, negotiate terms, and plan for implementation.
"With my help." That is the crux of the matter in the B2B buyer-seller relationship. But the retail eCommerce model is designed to out-flank professionals at both ends of the equation by pitching products and services directly to the end-user consumer. In our world of institutional buying which is based on informed evaluations of offerings and terms and conditions of sales, this targeted consumer happens to be end-users we represent with help from vendor reps.
Why? Two reasons come to mind. Sell directly to less well-informed consumers (our end users) and reduce the labor cost of sales (their vendor reps). This is the "free money" our major vendor marketing mavens dream intend to collect by way of converting B2B sales to the "Amazon" eCommerce model to win the lottery.
Is it time for ... yes, it is.
End Note: The source of the above two quotes as well as this post’s title (but not subtitle) is Hawk & Boland's Get-Real Selling (Nova Vista Publishing, 2008; 2010 paperback edition (and now available in a Kindle edition)) at 39. It happens to be a book I give to new vendor reps who show up at my library’s doorstep (but for how long?). I find it to be an excellent foundation to build a successful long-term buyer-seller relationship upon (again, but for how long? -- with field reps as well as in-house reps who communicate by phone and who answer their phone or reply back to an email when I have a problem that needs to be resolved). While the book addresses the art of sales, it is sensitive to the buyer’s perspective as well. That is what it takes to maintain a successful B2B relationship which acknowledges there is an ethical imperative in providing needed legal resources to practitioners. Accordingly, it is a book I also recommend to young law librarians who are now responsible for institutional buyer-side B2B transactions (but for how long?). [JH]