Law Librarian Blog

On Widening, More Likely Than Bridging, Any Existing In-House Content-Distribution Divide

Linking librarians to IT adds a necessary quality to the negotiation of contracts for online research services. An emphasis on the content delivered via the contract demands librarian input. They will have worked with the practice groups and can build on these relationships to understand which resources are necessary to maintain a high quality practice. The librarian’s task will be to consolidate this information across the firm and make it possible for the IT Department to negotiate a contract from a content point of view. Here, too, there will be a return on investment. A low cost contract without value adds expense.

Too often the library director becomes embroiled as an adversary in the negotiation process. This compromises the librarian’s relationship with the vendor and jeopardizes the negotiating process. Knowledge about content and lawyer demand is not the same as knowledge about pricing. And while the IT Department may need help with both the pricing terms and the negotiation process, that help will not come from the library. The vendor relationship demanded in the negotiation process is different from the relationship expected when the contract is in place and services are being delivered. Nothing should jeopardize the service delivery, which should be spelled out by the terms of the contract.

Understanding this, it is a gift to librarians to limit their involvement in contract negotiations. They can pass on an understanding of what the firm demands and force the vendor to consider the stake they have in the next contract with the firm. The vendors need to be accountable for the real relationship of pricing and content to contract terms. With that in mind, IT can demand a contract that has no surprises ahead. -- Nina Cunningham, Leveraging the Assets of the Law Library, (LJN's Legal Tech Newsletter, Feb. 2013, republished here).

(Emphasis added.)

Really? Or to quote Greg Lambert, "Um, thanks?" (Emphasis not added.)

Lambert adds "My own thoughts on vendor negotiations, and what I'm hoping where Cunningham is intending to go with this argument, is that there is some value in negotiating with the vendors in a unified way." There certainly is some value. But not, in my opinion, by way of the over-generalized role characterizations in Cunningham's far too simplified recipe.

For much more about this and other topics addressed in Cunningham's article, see Lambert's Are IT and Library "Logical Partners" in Leveraging Library Assets? Highly recommended. Cunningham's Leveraging the Assets of the Law Library, of course, is also highly recommended. [JH]

Friday Fun: "Everybody is going to love today"

From the YouTube description: "I set my computer to take a picture every 30 seconds to document a normal day of law school." [JH]

Book Review: The Naked Constitution by Adam Freedman

Adam Freedman’s book, The Naked Constitution – What the Founders Said and Why It Still Matters, is a statement that the Constitution is the law; that it should be followed in letter and spirit; and interpretation of passages that are ambiguous should be determined by the meaning the words had to the people who ratified it.  It’s an easy enough premise and one that is promoted by any number of scholars, jurists, and even average citizens.  The problem, as Freedman demonstrates, is that it didn’t turn out that way.  He spends a large portion of the book explaining how we’ve strayed—judicially and socially—from the meaning of the Constitution’s text.

The problem is that over the course of 200 plus years constitutional doctrine has evolved in a backdrop of political and judicial agendas.  Take for example administrative agencies.  One example in the book concerns the case Humphrey’s Executor v. United States (1935).  President Franklin Roosevelt fired Humphrey, a Commissioner of the Federal Trade Commission.  He conveniently died some four months after the event and his executor sued for four months of wages he would have earned.  As Freedman notes, the case turned on the power of the President to fire Humphrey.  The Supreme Court held 9-0 that the Federal Trade Act was constitutional and that the quasi-executive/judicial structure of the FTC was beyond the power of the President.  Welcome the unelected bureaucrat to the governance of the nation.

The obvious question is where in the Constitution does power flow to unelected officials to create rules and prosecute violations of those rules independent of the courts and the President?  As Freedman explains, the Supreme Court at the time was hostile to Roosevelt and the New Deal, suggesting that as the basis of the decision rather than fealty to the Constitution.  I guess this is an example of be careful what you ask for.  The federal bureaucracy has grown exponentially long after the members of that Court joined Humphrey in the great beyond.  The online version of the Government Manual is a testament to that growth.

The contradictions between the text of the Constitution and the judicial decisions interpreting it are everywhere in the book.  Penumbras?  Where did those come from?  Cruel and unusual punishment has strayed an awful lot from what was common in 1789.  Any number of frivolous prisoner lawsuits demonstrates that.  Free speech is not free when someone is sued to protest abortion rights and limited to specific locations and times to convey the message while at the same time “politically correct” speech is protected by the courts.  These are simply several examples of many in the book.

I don’t necessarily agree with Freedman’s arguments nor am I convinced by all of his examples.  He vilifies the concept of “Living Constitution” and uses some of the more egregious attempts to extend the Constitution beyond reasonable meaning.  Lawsuits over getting a bad grade or PETA’s failed attempts to sue Sea World under a 13^th Amendment argument to free the whales from slavery are examples.   The more absurd comments to come out of liberal constitutional scholars are others. 

From my perspective there is a whole world in between.  Men and women from different political persuasions at different times were appointed or elected to make decisions about the Constitution.  Some of these turned out better than others.  We are more or less stuck with these decisions based on how our system operates.  I doubt seriously that even an overwhelmingly conservative Supreme Court would throw out the federal bureaucracy at this point based on originalist thinking.

Freedman, to his credit, recognizes this and suggests the solution is a constitutional convention.  There’s no going back at this point so we might as well start over.  He argues for including a “human life amendment” to prevent future Roe v. Wade’s.  I’m not sure it would be that easy as there will be just as many people arguing for text that guarantees a right to abortion.  How it turns out would be a political decision, if such a convention were held.  I don’t think holding such a convention is a bad idea but I’m not holding my breath for one.

The book is 353 pages with an index and selected bibliography for each of the chapters.  It is published by Broadside Books which is an imprint of HarperCollins.  According to FTC regulations, if not by ethics alone, I am obligated to tell you that HarperCollins supplied a copy of the book for review.  There you go, Adam.  [MG]

Dick Spinelli, Dark Horse Candidate for Pope?

Rumor is that Dick Spinelli was called away from his modest estate in Italy and escorted by the Swiss Guard to Rome yesterday to be vetted as a possible candidate for Pope. Confirmation from the Holy See was not forthcoming because this reporter cannot speak Latin.

Please don't toss your hat in the ring Dick. OK, OK, I guess becoming the first U.S. legal publishing executive elected Pope would be more historic than becoming the first vendor executive elected AALL President. Folks at Hein indicate that Dick is contractually obligated to attend Seattle 2013 no matter what the hell happens in Rome. Thank god for that! [JH]

ABA Task Force Looks At Law School Reforms

The American Bar Association Task Force on the Future of Law Schools met over the weekend.  Some news reports suggest that the task force is taking their charge seriously.  ABC News quotes Task Force member Thomas W. Lyons III as saying "There is almost universal agreement that the current system is broken."  The article further states: 

Lyons, contacted by ABC News, spoke with candor and passion about the ills bedeviling legal education, which, he and other attorneys say, cloud the employment picture for new law school graduates and result in legal services priced high above what many Americans can afford to pay. Graduates, he notes, are entering practice lacking such basic skills as how to prepare routine legal documents. 

This is nothing new, or at least nothing that hasn’t been in the public discourse for a while.  The idea that a member of an ABA task force is saying the words may mean a bit more than hearing them from the New York Times.  Some of the ideas include creating a limited-license category of practitioner (someone who can do some things like prepare documents and provide limited legal advice but not other tasks); changing the time required to take a law school program to qualify for a bar exam; and change the emphasis from theoretical to practical. 

One group that came in for criticism is law faculty, who were characterized as highly paid while having little connection with practice.  Oh, say it ain’t so.  In fact, someone actually did.  Here’s from the ABC article: 

Professor Ngai Pindell takes strong exception to that characterization. Pindell is co-president of SALT , the Society of American Law Teachers, which represents law professors as well as other professionals in legal education. 

Pindell, who is also associate dean of the law school at the University of Nevada, Las Vegas, professes not to know what tenured law professors make, but says he suspects they are no more highly paid than dental school or medical school professors. 

Really?  A simple Google search on faculty salaries brings up a link to the Society’s newsletter which shows specific school detail on salaries.  The median salary for law faculty at UNLV is $145,000 for example.  The Chronicle of Higher Education has a broader academic salary survey that confirms how law is the highest paid academic discipline.  The average salary for a law school full professor is reported at $134,162.  Medical and dental faculty members are not listed, but full professors in health professions and related clinical sciences show an average salary of $95,437.  Biological and biomedical science faculty salary averages at $92,505. 

It’s an odd world from my perspective where practicing attorneys are brought in to a law school as nominally paid adjunct faculty to teach a skills class to law students.  That only suggests the salary structure may be seriously out of whack given the current suggestions to reform law school.  University presidents take note.  I‘m looking forward to seeing where this goes.  [MG]

Can "Good Law" Certifications Filed in Court Proceedings Be Protected by Copyright?

In A Victory for Fair Use: Online Publication of Attorney Filings OK, Copyright Suit Against Lexis and Westlaw Dismissed, Jean O'Grady reports that US District Judge Rakoff dismissed the plaintiff's claims in Edward White v. West Publishing Corp, U.S. District Court for the Southern District of New York, No. 12-1340, that WEXIS violated ... well, just read the title of the Dewey B Strategic post.

Call me even more cynical that O'Grady. The only thing the author of court filings can lay claim to is certifying that the legal arguments made are based on "good law." O'Grady reports that Judge Rakoff's dismissal will be followed up with an opinion. I doubt WEXIS will complain if the Court's opinion is derived from their briefs. [JH]

National Jurist's Law School Rankings Fatally Flawed...

... by failing to include the "Hotness" score component from the Rate My Professors online rating site. Yes, that's right, the Rate My Professors metric was used by National Jurist to rank law schools.

In National Jurist in Competition to Displace Thomas Cooley Rankings as Biggest Joke in Legal Academia, Chicago Law prof Brian Leiter makes the following request: "If readers catch any law schools publicizing their National Jurist ranking, please let me know." (The list is growing at Leiter's post.) If readers spot any law school or tax prof re-crunching the numbers to include the "Hotness" score, please let me know. [JH]

What Was the Most Significant Development in the Legal Publishing, Legal Solutions, Professional Legal Services (whatever) Industry in 2012?

No doubt we all have our own opinions on this topic. Here's mine.

The most significant development in our vendor industry last year was the appointment of Greg McCaffery as CEO of Bloomberg Law. That's right, it wasn't some product or service roll-out. It's a real live human being who succeeded Larry Thompson upon his retirement.

According to the Sept. 4, 2012 press release, "McCaffery will be responsible for development and execution of strategy and management of day-to-day operations as Bloomberg Law expands its role as a leader in the field of online legal research." The PR language is a fairly boilerplate iteration of a CEO gig. So that is not why Bloomberg's appointment of McCaffery as BLaw CEO is significant.

Can you name any WEXIS CEO who started his legal publishing career as a content creator? Any WEXIS CEO who worked his/her way up the corporate ranks from reporting and editorial as Greg McCaffery did (1986-1990) into management and eventually into the uber executive suite as McCaffery did when he was appointed BNA President and COO in 2007? I can't think of one WEXIS CEO who did. (NB: Jim Smith, TRI's current CEO, may have some sort of journalism background from way-back-when).

Being an aging and decrepit law librarian who starting practicing his profession as a research specialist in BigLaw back in 1980 by relying on expert-written and expert-screened publications like current awareness services such as BNA's USLW, Daily Tax, Daily Labor, Securities, Antitrust and Trade Reg, and BNA's loose-leafs covering practice specialities such as labor law, labor arbitration, employment discrimination, wage and hour, collective bargaining plus the first-to-market individual (employment) rights back in the at-will war days, I wonder if any of the content and/or tools I used were sourced by Greg when he was in the editorial trenches. Can you think of any other legal vendor CEO whose employment history might cause one to ask that question?

But pointing to something that's a quarter of a century ago isn't the reason McCaffery's appointment as BLaw CEO is the significant event in 2012. It's just a lead-in.

After the early days of BNA launching multiple websites for specific p-equivalents, BNA moved towards consolidation and integration of its web destinations. BNA's resource centers were Greg's babies. Perhaps only conceptually. Perhaps the concept wasn't even his idea. However, he was the one who said "do it" because he knew that for a business model which centers on Content, delivery of that content must change based on do-able technological containers.

But even pointing to BNA's resource centers isn't the reason why naming McCaffery BLaw CEO is significant. 

Seeing that BNA did not have the deep pockets to continue to keep pace with technology, McCaffery realized that for BNA and its workforce to survive and thrive as a high quality legal publisher, this employee-owned company would have to be acquired by a company that valued and intended to maintain BNA's reputation with a substantial capital infusion. This is where the very deep pockets of Bloomberg came into play. You don't think Bloomberg paid $900-plus K, one hellva whooping premium above what any employee would have received for cashing out his/her BNA shares to the Company, to acquire BNA for its 1% world market share and/or for its subscription roll, do you?

After a couple of fitful attempts to mimic BNA's current awareness services as well as licensing treatise content from PLI and industry associations for online access, while pretending not to be all that interested in secondary source product lines, BLaw needed BNA to compete in the uber high-end private sector space. This is how a new player differentiates itself from the status quo of established vendors and their offerings. Bloomberg's acquistion of BNA had nothing to do with property and goodwill assets. It was a human capital acquisition, one that was overwhelming supported by BNA's employee-owners.

Bloomberg stated that BNA would remain a standalone. During the last 30-plus years of M&A activity up to and including some very recent deals in this industry, those statements are made routinely but such pro forma hands-off "commitments" do not endure. So why is McCaffery's appointment as CEO of BLaw the most significant development in 2012? It is because the appointment confirms that a guy who worked his way up the ranks from Editiorial to this latest promotion affirms that BNA was a human capital asset acquisition. Call it symbolic if you want but based on his 25-year career track record I seriously doubt Greg will be anyone's icon of a lap dog when it comes to the "development and execution of strategy and management of day-to-day operations" for BLaw.

End note. If BLaw's bar is stocked with nothing but the swill known as Bud Light Lime at the Seattle 2013 cocktail party, I'll have to publish a retraction. Despite his sense of humor, Greg probably won't be responsible for instructing the catering service to load the ice coolers with just that. However, the buck has to stop with someone and Greg isn't known for pushing anyone under the bus. (If the Bud Lite Lime Guy makes an appearance at Seattle, those coolers better be very well stocked.) [JH]

The Latest From The LSAC

Here are the latest law school application figures from the Law School Admissions Council:

As of 02/01/13, there are 244,784 Fall 2013 applications submitted by 34,618 applicants. Applicants are down 20.4% and applications are down 22.7% from 2012.

Last year at this time, we had 64% of the preliminary final applicant count.

Cue the stories on the death of law schools.  While we're on the subject, TR News & Insight reports that law firm hiring in 2012 was flat.  In the meantime, Business Insider reports that law firm profits jump a "whopping" 4.3% last year, though that might not be sustainable as a trend.  I don't know.  Cutting people costs while sustaining the same level of operation may contribute to a healthier firm bottom line.  Is that a sustainable trend?  [MG]

The Curious Case of Edwin Mellen Press

(Ironically, no college librarian's blog post disparaging an academic publisher has ever been read by a human being.) -- Quoting Hamilton Nolan's parenthetical comment in Publisher Sues College Librarian for Saying Publisher Sucks.

Nolan is referring to Dale Askey's "The Curious Case of Edwin Mellen Press" on The Bibliobrary. The post was published in 2010 and taken down in early 2012. It is the basis for a libel (including vicarious libel) lawsuit brought in a Canadian court by Edwin Mellen Press and can be found here. The publishing house is seeking from Askey and his university employers something in the vicinity of $4.5 million in damages according to some US-published accounts that might be based on exchange rate calculations. In $-CAN the damages amount stated in the court filing totals $3.5 million.

With the rise of eBook self-publishing, perhaps this is the order-of-magnitude amount of cash the Press needs to execute an exit strategy. Alternatively and based on what may be why academic authors eventually end up seeking the Edwin Mellen Press imprint for their works, perhaps this is the amount of cash the Press needs to gear up in a big way to bring to market its current and/or future catalog offerings in eBook formats which otherwise might not see the light of day "published by Edwin Mellen Press".

Edwin Mellen Press publishes titles in philosophy and other disciplines. Having read a bit of philosophy in my day (BA with a major in Philosophy and a minor in Theology plus one year's work towards an MA in Philosophy -- until I decided to change my career track from driving a taxi to something else) and continuing to do so, like Mark Giangrande wrote in his post, I also had no idea what sort of titles Edwin Mellen Press brought to market. Interested, I delved into my 40-plus years of collected works on philosophy last weekend. Nope, didn't find a single Edwin Mellen Press title. Then I took a look at the publisher's sales catalog for philosophy titles. Yup, I saw nothing I would want to add to my private collection.

"I'm no lawyer, but can't judges immediately dismiss libel lawsuits that are clearly about topics that no one in their right mind would care to read about?" wrote Gawker's Hamilton Nolan. Catching the drift of what he thinks about this lawsuit?

And can't those judges also order the clown-like academic publisher that filed said lawsuit to be locked in a room for a period of one hundred days with nothing to read except The Middle Eastern Influence on Late Medieval Dances: Origins of the 29987 Istampittas?

This isn't the first time this publishing house filed a lawsuit based on the same sort of published statements made by Askey. Note well, Edwin Mellen Press lost its earlier lawsuit. [JH]