Law Librarian Blog

The Big Whoop-de-do of Current Services: Why vendors should not forget that the Google Generation is also the YouTube Generation

"In a presentation to advertisers this week Google Executive Chairman Eric Schmidt declined to forecast that Internet video would replace television, Schmidt said, 'That’s already happened, the future is now for YouTube,'" wrote Kevin O'Keefe in his May 4th, 2013 post titled Google’s Schmidt: YouTube has replaced TV. What’s it mean for law firms?

Referring to YouTube both as a specific delivery platform as well as a metaphor for electronic video content generally, I believe the interesting question is what does that mean for our commercial legal publishers, professional legal services, legal solutions (whatever) vendor? If the focused user population is the so-called Google generation and it certainly is, this user population is also the "YouTube" generation now. This applies not only to webinars but to vendor search platforms, productivity platforms, specific practice-centric offerings, "news and developments" coverage, and enhanced eBooks' current status quo.

BLaw's video productions -- easily do-able because the tech infrastructure was already in place -- has resulted in other vendors scrambling to catch up in some areas. Any vendor which might be resistant to the idea that multimedia is not going to be an essential add-on component in all their law-related inventory of e-content is in denial.

But I am not refering to training webinars! Nor am I merely referring to just enhancing legal research and eBook platforms. Today's Google-YouTube generation will also want to incorporate official video proceedings (problematic due to the source's encoding formats) and their own in-house produced videos in work product using licensed "legal solutions."

The big whoop-de-do of "shared folders," etc. is so last century to our vendor's targeted demographic market that it borders on absurdity. I can hear our vendors say "but our focus groups aren't asking for that!" Well, the grim reaper of innovation is making decisions based on focus groups. [JH]

Supreme Court Action: Genetically Modified Soybean Patents and Defalcation Under the Bankruptcy Code

The United States Supreme Court issued two three opinions (see the update at the end of this post) this morning, one of them being highly anticipated by Court-watchers.  That case is Bowman v. Monsanto Co. (11-796).  The case involves patent rights and licensing restrictions in the use of genetically modified soybeans.  Monsanto genetically modified soybeans to resist certain pesticides and sold it under the brand Roundup Ready.  The genetic modifications were given two patents.  Monsanto licensed the use of the modified soybean for one crop planting only, thus requiring successive purchases of the seed over time.

Bowman, an Indiana farmer, used Roundup Ready for one planting.  He subsequently bought seed from a local grain elevator which contained soybeans grown from Roundup Ready and planted them.  He did this knowing that there would be a strong likelihood these beans would contain the same genetic modification from seeds originally sold by Monsanto.  In fact, grain elevators sell soybeans for human or animal consumption rather than for replanting.  Farmers typically do not buy seeds for planting from grain elevators.

Monsanto sued Bowman when it discovered Bowman was evading the licensing terms and won a judgment against him.  The Court of Appeals for the Federal Circuit affirmed.  Bowman, as petitioner in this case argued that the doctrine of patent exhaustion allowed him to use the resulting seeds without restriction.  The Court rejected that argument stating that the doctrine does not allow a purchaser of a patented item to reproduce it; otherwise the patent in this case would be of no value.  The Court rejected Bowman’s other arguments, such as seeds are meant to be planted, and that he didn’t create the copies as the seeds themselves sprouted.  Justice Kagan delivered the opinion for a unanimous Court.

The second case involves the definition of the term “defalcation.”  That case is Bullock v. Bankchampaign, N.A. (11-1518).  Bullock was the nonprofessional trustee of a trust established by his father for the benefit of his siblings.  The sole asset was his father’s life insurance policy.  Bullock borrowed against the policy three times as permitted by the trust instrument.  The first time was at the direction of his father where the funds were paid to his mother and used to repay a debt to his father’s business.  The other two instances were used to buy an interest in a business and to purchase real property, both with his mother.  All loans were repaid at a predetermined 6% rate of interest.

Bullock’s siblings sued in state court for breach of fiduciary duty and won a judgment against him, though the court found no apparent malicious motive on behalf of Bullock.  The court imposed constructive trusts on some of Bullock’s assets, including his personal interest in the trust in order to secure payment on the judgment.  Bullock filed for bankruptcy.  The bank in this case opposed the discharge of the court-imposed debts and the Bankruptcy Court agreed, granting summary judgment because of the wording of the Bankruptcy Code.  11 U.S.C. §523(a)(4) provides that an individual cannot obtain a bankruptcy discharge from a debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.”  The Federal District Court and the Court of Appeals for the Eleventh Circuit affirmed. 

The generic term “defalcation” means one that is a defaulter or behind in debts.  The Court acknowledged that dictionaries are all over the place on the meaning, including where the term imputes fraud or other deliberate breaches of trusts.  The various examples cited by the Court are inconclusive.  The Court resolved the state of mind issue by looking at precedent that distinguished debts created by embezzlement or other scienter compared with fraud in law which does not require imputation of bad faith or moral turpitude.

Methods of statutory construction allow the Court to treat the words of the statute similarly.  “Embezzlement,” “larceny,” and “fraud” require a showing of felonious or wrongful intent.  Interpretation of defalcation based on precedent does not require wrongful intent or any type of falsity.  These principles along with an explanation of how Congress expresses the language of the Code and other lower court interpretations of the statute argue for an interpretation of defalcation that does not require scienter.  Defalcation may include nonfraudulent breaches of fiduciary duty.  The Court reversed the grant of summary judgment and remanded for additional proceedings.  Justice Breyer delivered the opinion for a unanimous Court.

As a side bit of entertainment inspired by the Monsanto case, here is Ry Cooder’s version of Taxes On The Farmer Feeds Us All.

Update:  There was a third opinion out today, Dan's City Used Cars, Inc. v. Pelkey (12-52).  I'll report on that case tomorrow.

[MG] 

Bloomberg News Reporters Have Been Snooping on Subscribers' Use of Bloomberg Financial Services for Years

With the "Terminal" found in most every banking and trading company as well as industry regulators, shock waves rippled through the financial services industry on May 10th when the New York Post's Mark DeCambre broke the story that Bloomberg's financial journalists were extracting subscribers' private usage data at Goldman Sachs employees concerned Bloomberg news reporters are using terminals to snoop. The New York Times' Amy Chozick and Ben Protess reported on how widespread the monitoring activity was within the industry by Bloomberg News reporters at Privacy Breach on Bloomberg’s Data Terminals. 

Reportedly Bloomberg News staff could not see trading activities but the available extracted information about when and how the Company's terminals were used by subscribers provided enough clues to aid its financial journalists for news reports. See also Zachary M. Seward's What Bloomberg employees can see when they snoop on customers.

Bloomberg confirmed that several hundred reporters have been monitoring subscriber usage of various Bloomberg financial services functions for years. The Company also announced that the system functions its reporters had been using were disabled.

First question: Et tu BLaw? [JH]

Half-assed B2B Electronic Transactions: Just make up a PIN for eSigning a Thomson Reuters transaction

As reported earlier, based on the initial response CRIV received from Thomson Reuters about requiring the last four digits of a SSN number to execute an electronic B2B transaction, CRIV decided to make a follow-up request "to see if a more concrete explanation on this topic is available." And here is Thomson Reuters "solution":

Should individuals placing orders prefer not to enter the last four digits of their Social Security number, they are encouraged to create a unique, four-digit personal identification number (PIN) to serve as part of their electronic signature. This PIN will serve as a method of verification for the individual placing an order. Customers can make this change when placing an order.

Ah, OK. Let's just be clear that WestMart is targeting the individual consumer for eCommerce transactions, not institutional buyers, by following Amazon's example. LexisNexis hasn't gone quite as far yet but there is no doubt in my mind that the forthcoming closure and mass layoff of sales and customer support employees in Albany indicates that LN will be more fully institutionalizing the Amazon eCommerce model for "efficiency" (read reducing labor costs) purposes.

If WEXIS wants to conduct B2B electronic commerce, both vendors also should mimic the Amazon model for B2B eTransactions. WEXIS should follow what Amazon does by way of establishing an institutional buyer's credit line for eTransactions. Of course, WEXIS also should follow Amazon's very easy online method for returning stuff ordered with credits made to the institutional buyer's credit line account.

If our major vendors are going to follow Amazon's example, don't just do it half-assed for B2B eCommerce. Is that too much to ask? [JH]

Institutionalizing Academic Mobbing at Brooklyn Law School?

The Brooklyn Law School Board of Trustees has adopted a "adequate cause" definition for termination of tenured law faculty. It reads:

For purposes of the Law School’s regulations, “ Adequate Cause” shall be defined as follows:

“Demonstrated incompetence, including but not limited to, multiple unsatisfactory performance reviews or complaints from supervisors; multiple complaints from students or multiple unsatisfactory student evaluations; sub-standard academic performance; lack of collegiality.”

Does this protect academic freedom? Due process? "There is certainly an important need for American law schools to undertake a review of both their tenure standards and their standards for post-tenure review, given the dereliction of duties that are, alas, widespread (but not only in law schools, of course)," writes Brian Leiter. "But these standards are very alarming, and suggest the dangers associated with post-tenure review." For more, see Leiter's Academic freedom (and due process) under threat at Brooklyn Law School?. See also this follow-up post on Leiter's Law School Reports, Brooklyn Law's Dean Allard Replies to Concerns about Academic Freedom. [JH]

Friday Fun: Time for the Class of 2013 to Dance

For job-seeking 2013 law school grads, here's The Beatles performing I'm Happy Just To Dance With You. [JH]

Microsoft To Buy Nook Business From B&N?

Various reports out on the web tell that Microsoft is about to buy the Nook tablet from Barnes & Noble and other investors for about $1 billion.  The Nook is an Android-based tablet/reader and has not been considered a particularly successful product.  paidContent pegs its market share at 25% compared to the Kindle.  Microsoft invested about $600 million in the device last spring.  Most recent news was that Barnes & Noble was adding the Google Play store and other Google services to the tablet.  That raised a few eyebrows given Microsoft’s investment.  I can imagine this probably pushed Microsoft into action, not so much to protect its investment as much as to ultimately fulfill its purpose.  That would be to acquire a bookstore and customer base for its Surface tablet ecosystem. 

Windows 8, whatever one thinks of it on a tablet or PC, does not have an app store that is ready to compete with the other big players.  E-Books are popular and much underrepresented from a Microsoft source where the company makes money from a sale.  This transaction makes sense for Microsoft as it picks up a customer base for content.  I don’t know about consumers who bought a Nook.  I would think this is going to be dead tablet walking as I can’t imagine Microsoft supporting Android in any form in the long run.  If Amazon is smart it would immediately offer a Kindle for Nook promotion in one form or another to pick off part of the Nook customer base.  And if Microsoft is smart, it would do the same with the Surface.  From what I understand, there are a ton of the Surface RT product still sitting in warehouses. 

Publishers might be happy there is another deep-pocketed challenger to Amazon (and Apple).  I wouldn’t rejoice myself.  Publishers and authors are still at the mercy of large technology companies as exclusive distributors of their product.  I’d be more concerned about that down the line.  [MG]

The Most Common Criticisms of the ATL Top 50 Law School Rankings

As reported by ATL's Brian Dalton at The ATL Top 50 Law Schools: A Roundup of Criticism. [JH]

Statistical Analysis of Federal Court Judicial Nominations Since the Reagan Administration

It's not like partisan politics in the presidential nomination and Senate confirmation of federal judical candidates is a late 20th century development. It's been around since the days our founding fathers split into Federalists and Democratic-Republicans camps based on fundamental ideological differences over the role of the federal government. That, however, doesn't mean an analysis of the last 30 or so years of federal judicial appointments isn't warranted. In a recent CRS report, one of the takeaways is the following:

President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).

Of course, the Democratic Party is just as guilty of playing Beltway politics as the Republician Party. Here's an excerpt from the summary of the May 3, 2013 CRS Report, President Obama’s First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan:

The process by which lower federal court judges are nominated by the President and considered by the Senate is of continuing interest to Congress. Recent Senate debates in Congress over judicial nominations have focused on issues such as the relative degree of success of President Barack Obama’s nominees in gaining Senate confirmation (compared with other recent Presidents) as well as the number and percentage of vacant judgeships in the federal judiciary and the effect of delayed judicial appointments on judicial vacancy levels. This report addresses these issues, and others, by providing a statistical analysis of nominations to U.S. circuit and district court judgeships during the first terms of President Obama and his four most recent predecessors.

[JH]

CRS on Marijuana Legalization by the States

The Congressional Research Service has weighed in on the apparent conflict between federal and state drug laws in light of legalization in Colorado and Washington for small amounts of recreational marijuana.  Here is part of the Summary that lays out the issues:

The Colorado and Washington laws that legalize, regulate, and tax an activity the federal government expressly prohibits appear to be logically inconsistent with established federal policy toward marijuana, and are therefore likely subject to a legal challenge under the constitutional doctrine of preemption. This doctrine generally prevents states from enacting laws that are inconsistent with federal law. Under the Supremacy Clause, state laws that conflict with federal law are generally preempted and therefore void and without effect. Yet Congress intended that the CSA would not displace all state laws associated with controlled substances, as it wanted to preserve a role for the states in regulating controlled substances. States thus remain free to pass laws relating to marijuana, or any other controlled substance, so long as they do not create a “positive conflict” with federal law, such that the two laws “cannot consistently stand together.”

This report summarizes the Washington and Colorado marijuana legalization laws and evaluates whether, or the extent to which, they may be preempted by the CSA or by international agreements. It also highlights potential responses to these recent legalization initiatives by the U.S. Department of Justice (DOJ) and identifies other noncriminal consequences that marijuana users may face under federal law. Finally, the report closes with a description of legislative proposals introduced in the 113th Congress relating to the treatment of marijuana under federal law, including H.R. 499 (Ending Federal Marijuana Prohibition Act of 2013); H.R. 501 (Marijuana Tax Equity Act of 2013); H.R. 689 (States’ Medical Marijuana Patient Protection Act); H.R. 710 (Truth in Trials Act); H.R. 784 (States’ Medical Marijuana Property Rights Protection Act); and H.R. 964 (Respect States’ and Citizens’ Rights Act of 2013).

The report is State Legalization of Recreational Marijuana: Selected Legal Issues.  It was issued on April 5, 2013.  The order code is R43034.  [MG]

Predators of Freedom of Information

On World Press Freedom Day, May 3, 2013, Reporters Without Borders released its annual Press Freedom Index.

After the “Arab springs” and other protest movements that prompted many rises and falls in last year’s index, the 2013 Reporters Without Borders World Press Freedom Index marks a return to a more usual configuration.

The ranking of most countries is no longer attributable to dramatic political developments. This year’s index is a better reflection of the attitudes and intentions of governments towards media freedom in the medium or long term.

Quoting from the Introduction to the 2013 Press Freedom Index.

Reporters Without Borders also released an updated list of Predators of Freedom of Information The list identifies  39 "presidents, politicians, religious leaders, militias and criminal organizations that censor, imprison, kidnap, torture and kill journalists and other news providers. Powerful, dangerous and violent, these predators consider themselves above the law." [JH]

Lawyer2Lawyer Returns!

Bob Ambrogi and J. Craig Williams' very long running Lawyer2Lawyer legal affairs podcast program has returned. See Bob's We’re Back! Our Lawyer2Lawyer Podcast Resumes post for details. The first podcast after a six month or so hiatus was Will Accused Boston Marathon Bomber Dzhokhar Tsarnaev Get the Death Penalty? (links to archived podcast). [JH]

San Jose State Philosphy Faculty Reject Electronic Lecture Courseware

The Philosophy Department at San Jose State University is resisting the integration of a MOOC/online lecture as part of their class offerings.  The University signed a contract with edX (a joint project of MIT and Harvard) to provide additional course content in the form of videotaped lectures.  The Philosophy Department was asked to add Justice, a survey class developed by Harvard Professor Michael Sandel for edX.  The Department more or less said “no” to the University and provided its reasoning in an open letter to Sandel. 

There were several reservations expressed.  One emphasized the lack of interaction between student and media:

….[W]e believe that having a scholar teach and engage his or her own students in person is far superior to having those students watch a video of another scholar engaging his or her students.  Indeed, the videos of you lecturing to and interacting with your students is itself a compelling testament to the value of the in-person lecture/discussion.

Another is the potential for creating a two-tiered educational system.  One would be for those who can afford to attend a college staffed by live faculty and another educational experience consisting of faculty facilitating videotaped lectures as part of their courseware.  One presumes the latter would be less expensive for the student, otherwise what is the point?

A lot of the discussion about law student debt ranging in the $130,000 to $150,000 or more range somehow never raises the fact that the average total cost of attendance for first-time, full-time students living on campus and paying in-state tuition was $20,100 at public 4-year institutions and $39,800 at private nonprofit 4-year institutions.  That lurks underneath the costs of a law degree.  I have a funny feeling that a student would take a less expensive option if it were available and the credits viable.

I can understand the concern as trustees and legislatures are always looking for ways to cut costs at their institutions.  Reducing the need for live faculty is one way to accomplish that if electronic courseware does not significantly diminish course outcomes [read grades].  An article in the Chronicle of Higher Education notes that a pilot program at SJSU using an electronic version of an introductory course in electrical engineering showed students passing at a much higher rate than those in traditional sections.  The article does not explain that result.  I could imagine concepts in electrical engineering are less subjective than to those in philosophy.  What works in one field may not work in another.  It’s hard to make a judgment without more comparative information.

The letter raises diversity issues as another objection:

…[W]hat kind of message are we sending our students if we tell them that they should best learn what justice is by listening to the reflections of the largely white student population from a privileged institution like Harvard?  Our very diverse students gain far more when their own experience is central to the course and when they are learning from our own very diverse faculty, who bring their varied perspectives to the content of courses that bear on social justice.

Let me see.  What kind of assumptions go into that statement?  Harvard is such a rarified atmosphere that class participants have no (or not enough) practical observations in a class on justice at SJSU?  Or is it that presumed privilege distorts a participant’s views?  I don’t know much about the circumstances of the Harvard graduate student body.  I wouldn’t assume everyone there comes from a “privileged” background.  I wouldn’t presume to know what kind of experiences anyone at Harvard may have had with authority before they got to the classroom. 

Technology changes things.  Just ask the music, movie, publishing, and newspaper businesses among others.  They’re still creating and selling media despite the fact that their business models have shrunk their infrastructures.  They may not be as profitable as they once were, but they are still out there.  Education is the next industry ripe for change and I for one look forward to it.  Give me reasons (with information to back them up) why the new approaches aren’t viable and I may be more sympathetic to preserving the old ones. 

The Open Letter from the SJSU faculty is here.  Professor Sandel's response is here.  [MG]

Texas Supreme Court Issues Warning About Errors in West's Texas Rules of Court

The warning was published on the Texas Supreme Court website. That's a first, I think. Jason Wilson has the story at In publishing, the little things do matter. [JH]

Roncevic's E-book Platforms for Libraries

"Librarians, I hope you find the comparative tables useful and the vast landscape of ebooks a bit less daunting after having read this report. Library vendors, I hope you benefit from the insight into how your products compare to others and how you can continue to improve their functionalities and business models." -- Mirela Roncevic, No Shelf Required

Roncevic's E-book Platforms for Libraries, Library Technology Reports, April 2013 issue, is now available for purchase from the ALA Store. Here's the blurb:

E-book vendors continue to experiment: adjustments to business models, consolidation of  content, and mergers with competitors mean constant change. What’s good for innovation can equal confusion when it comes to choosing an e-book platform for your library. Making a sound purchasing decision requires research and close consideration of trade-offs, and Roncevic’s new issue of Library Technology Reports will get you started. Based on surveys  of e-book vendors with an established presence in academic, public, and/or K–12  library markets, this report includes

• Background and business model descriptions for 51 leading e-book vendors
• Four tables comparing content, technical specifications, functionality, and business  models
• An at-a-glance overview of platforms, including vendor website URLs
• Bulleted checklists of factors to consider, and questions to ask vendors
• An examination of the blurring channels of publisher, aggregator, and distributor platforms, with advice to help you avoid content overlap

[JH]

Is BigLaw Heading for a Crash Landing?

From the Bloomberg Law video's description:

Paul Barrett, assistant managing editor and senior writer for Bloomberg Businessweek tells Bloomberg Law's Lee Pacchia that Big Law is currently experiencing "a very difficult crash landing that is taking place now and will persist for at least another several more years." While acknowledging that the 2008 recession was partially to blame for the slowdown, Barrett sees the current situation compounded by the bursting of a bubble among large law firms that hired too many lawyers and entered into ill-advised mergers. We are seeing the reckoning from overkill that built up over many years, he says.

[JH]

Bringing Sanity to Digital Licensing of Commercially Published Newsletters

Well, at least for law firm marketing purposes when a firm's lawyer writes the newsletter article.

For those of us who toil at the intersection of copyright and human behavior, any publisher who keeps making it easier to legitimize the natural impulse of lawyers to embrace every venue for highlighting their accomplishments and share news and insights with their clients gets my endorsement.

Quoting from Jean O'Grady's News You Can Use! Wolters Kluwer Continues to Bring Sanity to Digital Licensing and Oh Yes Releases Two New Daily Newsletters (Banking & Finance and Products Liability). [JH]

A New Law School Rankings and Everything That's Wrong With It

Check out ATL's first Top 50 Law Schools and Elie Mystal's Everything That Is Wrong With The Above the Law Law School Rankings. [JH]

Friday Fun: Baby, just conform this way

From the 2012 Cardozo Law Revue. Good luck Class of 2013 grads. [JH]

"Posted on Behalf of LexisNexis"

"So I just read Lexis’ responses to questions posed by CRIV on it’s eBook program," wrote Jason Wilson in This week in random ad placements: Lexis’ response to CRIV on eBooks, "and when I finished, the following ad appeared at the end of the piece [video below]. Brilliant conclusion."

The ad that appeared in the CRIV Blog post, LexisNexis Response to April 2013 eBook Questions – Posted on Behalf of LexisNexis, when I read it wasn't nearly as good as this one. Thanks Jason! [JH]