Law Librarian Blog

Incorporation by Reference: Private Control Over Access to Public Law

Here's the abstract for Michigan Law prof Nina A. Mendelson's Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards [SSRN], Michigan Law Review, Forthcoming:

To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization that prepared the standard, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.

In assessing the arguments why law needs to be public, previous analyses have focused almost wholly on whether regulated entities have notice of their obligations. This article evaluates several other considerations, including notice to those who expect to benefit from the way government regulates others, such as consumers of dangerous products, neighbors of natural gas pipelines, and Medicare beneficiaries. Ready public access also is critical to ensure that federal agencies are accountable to the courts, Congress, and the electorate for the regulatory power they exercise. As shown by an assessment of the institutional dynamics surrounding public and private interaction to define the scope of federal regulation, the need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm is likely to flow from government adopting regulatory law that is, in contrast to American law in general, more costly to access and harder to find. Full consideration of the importance of public access both strengthens the case for reform and limits the range of acceptable reform measures.

Highly recommended. [JH]

India Publisher Threatens $1B Lawsuit Against Colorado Librarian

Here we go again.  This time it’s a publisher out of India that is threatening to sue Jeffrey Beall, a librarian at the University of Colorado over characterizations he’s made on his Scholarly Open Access Blog.  That blog identifies, in Beall’s opinion, publishers that take advantage of academics needing a publisher for their papers.  Beall recently received a letter from representatives of OMICS Publishing Group threatening a lawsuit seeking $1 billion (not a mistake) in damages and possibly up to 3 years of prison time in India for violations of Section 66A of India’s Information Technology Act.  The Act makes it a crime by its terms to use a computer to publish any information that is grossly offensive or has menacing character.

An article in the Chronicle of Higher Education (this one is not behind a pay wall) offers some details of the letter:

The rambling, six-page letter argues that Mr. Beall's blog is "ridiculous, baseless, impertinent," and "smacks of literal unprofessionalism and arrogance." The letter also accuses Mr. Beall of racial discrimination and attempting to "strangle the culture of open access publications."

"All the allegation that you have mentioned in your blog are nothing more than fantastic figment of your imagination by you and the purpose of writing this blog seems to be a deliberate attempt to defame our client," the letter reads. "Our client perceive the blog as mindless rattle of a incoherent person and please be assured that our client has taken a very serious note of the language, tone, and tenure adopted by you as well as the criminal acts of putting the same on the Internet."

I did a search in WorldCat on OMICS as a publisher.  There were 334 records in the database.  305 of these were Internet links, 10 were serials, and only 2 were books.  The Edwin Mellen Press in contrast was better represented in worldwide library holdings.  Readers may remember that the EMP was one of the first publishers to take legal offense at how its business model was characterized by a librarian.  See LLB posts here, here, here, and here for coverage. 

The CHE article also posits potential results of any lawsuit based on whether a suit is brought in India or the United States.  A favorable outcome for Beall is likely in U.S. courts and uncertain in India’s courts.  There are issues as to whether a judgment in India against Beall could be enforced in the United States.  The numerous comments to the article speculate on that.

I have to believe these kinds of threats will do little to change any impression of OMICS and more likely draw attention to their publications and practices.  I can’t comment on whether or not they are respectable publisher.  As with the Mellen Press, I had never heard of the publisher until it threatened suit.  I know who OMNICS is now.  I’ll be following this one as the situation develops.  [MG]

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]

Should Retired Federal Judges' Working Papers Be Archived as Official Government Records Open for Research Purposes?

Never gave the matter a thought. You? Well, Kathryn A. Watts, Univ. of Washington School of Law, has. Judges and Their Papers [SSRN], 2013 New York University Law Review article, may be the first serious attempt to answer the question, "who should own a federal judge's papers?" Here's the abstract:

Who should own a federal judge’s papers? This question has rarely been asked. Instead, it has generally been accepted that the justices of the U.S. Supreme Court and other federal judges own their own working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues like abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the 50th anniversary of his retirement, and substantial portions of Justice Byron White’s papers, including files relating to the landmark case of Miranda v. Arizona, were shredded. In addition, many collections of lower federal court judges’ papers have been scattered in the hands of judges’ families. Notably, this private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand to the judiciary’s independence, confidentiality and collegiality on the other.

This Article is the first to give significant attention to the question of who should own federal judges’ working papers and what should happen to the papers once a judge leaves the bench. Upon the 35th anniversary of the enactment of the Presidential Records Act, this Article argues that judges’ working papers should be treated as governmental property — just as presidential papers are. Although there are important differences between the roles of President and judge, none of the differences suggest that judicial papers should be treated as a species of private property. Rather, the unique position of federal judges, including the judiciary’s independence, should be taken into account when crafting rules that speak to reasonable access to and disposition of judicial papers — not when answering the threshold question of ownership. Ultimately, this Article — giving renewed attention to a long forgotten 1977 governmental study commissioned by Congress — argues that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers. By involving the judiciary in implementing the shift to public ownership, Congress would enhance the likelihood of judicial cooperation, mitigate separation of powers concerns, and enable the judiciary to safeguard judicial independence, collegiality and confidentiality.

Highly recommended. [JH]

On the Impending Retrenchment of Legal Practice and Legal Education in China

In 2011, Carl F. Minzner's (Fordham University School of Law) China’s Turn Against Law [SSRN] was published in American Journal of Comparative Law. The article argued that "Chinese leaders’ shift against law is a distinct domestic political reaction to building pressures in the Chinese system. It is a top-down authoritarian response motivated by social stability concerns."

This Article also analyzes the risks facing China as a result of the shift against law. It argues that the Chinese leadership’s concern with maintaining social stability in the short term may be leading them to take steps that are having severe long-term effects of undermining Chinese legal institutions and destabilizing China.

Excerpted from the abstract of China’s Turn Against Law.

In The Rise and Fall of Chinese Legal Education [SSRN], Fordham International Law Journal, Vol. 36, No. 2, 2013, a companion analysis to his earlier article, Minzner has turned his attention to the consequences to China's legal education system, internally and abroad, as the Chinese government strives to regain top-down party control of its legal system. Here's the abstract:

Over the past three decades, legal education in China has boomed. Numbers of law students and schools have increased exponentially. Legal education has become standardized at universities throughout the country. Prominent legal academics have emerged as public voices for political reform.

But Chinese authorities now perceive flaws in these trends. A flood of law graduates faces dismal employment prospects. Schools remain uniformly focused on academic research rather than practical skills. And the liberal orientation of many faculties is at odds with new conservative Party views on legal reform.

In response, officials are remolding legal education. They are reducing numbers of law students. They are pushing law schools to differentiate themselves from each other. And they are increasing political content in classrooms.

This Article analyzes both the expansion of legal education in China and its impending retrenchment.

China’s difficulties are not entirely unique. In both Latin America and Japan, efforts at rapid reform of law schools have foundered. And in recent decades, the United States has experienced unsustainable, credit-fueled growth in the cost and structure of legal education.

This Article argues that the current bubble in Chinese legal education is largely the result of state policies pursued since the late 1990s. These pushed the rapid expansion of university legal education through the use of one-size-fits-all target evaluation systems. But they have detrimentally affected the quality and direction of legal education in China.

As a result, authorities are reviving educational practices from the 1980s, that themselves have roots in the 1950s. Chinese legal education may be returning to its own past, rather than converging with foreign models.

This Article also contends that legal education can serve as the canary in the coalmine for understanding the direction of political and legal reform in China. The ability of conservative Party authorities to politically remold legal education may indicate whether their influence has already crested or if it will continue to expand yet further.

Last, this Article argues that Chinese developments will directly impact the efforts of American legal educators to address their own financial problems. Efforts to blindly ramp up recruitment of Chinese LLM students may be unsuccessful as a long-term strategy to solve the current problems confronting U.S. law schools.

Both articles are highly recommended. [JH]

"Do we need a new Blackstone? Do we need new writers of grand treatises like Story and Williston?"

The Michigan Law Review's annual book review issue is now online. See Dick Danner's foreword for the issue, Oh, The Treatise! (PDF). Two excerpts from his essay's conclusion:

Today’s lawyers have ready access not only to cases and other forms of legal authority, but also to masses of other information, legal and law-related, generated each day and competing for their attention. Is not the lawyer’s need for context and structure more urgent now than when the first great treatises were written and commentators were worried about how quickly the courts had generated the first few hundred published volumes of American reports?

...

Twenty-first-century Blackstones will be technologically literate legal scholars who understand the relationships between form, content, and structure, and who possess the skills to present legal information in innovative ways appropriate to the formats in which information is now published, identified, and delivered.

Highly recommended. [JH]

Orphan Works and Mass Digitization

Contributions to the Berkeley Center for Law and Technology's 2012 Symposium, Orphan Works & Mass Digitization: Obstacles & Opportunities, are available on The Berkeley Technology Law Journal site.

• Keynote Address: Orphan Works & Mass Digitization: Obstacles & Opportunities by Maria A. Pallante
• Private Digital Libraries and Orphan Works by Randal C. Picker
• The Orphans, the Market, and the Copyright Dogma: A Modest Solution for a Grand Problem by Ariel Katz
• The Orphan Works Chimera and How to Defeat It: A View From the Atlantic by Stef van Gompel
• How Fair Use Can Help Solve the Orphan Works Problem by Jennifer M. Urban
• Abandoning the Orphans: An Open Access Approach to Hostage Works by Lydia Pallas Loren
• Atomism and Automation by Molly Shaffer Van Houweling
• Orphan Works As Grist for the Data Mill by Matthew Sag

Hat tip to DigitalKoans at Private Digital Libraries and Orphan Works. [JH]

Securing the Infrastructure for the First Amendment

From the abstract of Yale Law prof Jack Balkin's essay, The First Amendment is an Information Policy [SSRN]:

This essay, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory frameworks, programs, technologies and practices.

Using the examples of democratic protests in the Middle East and the controversy over WikiLeaks, the essay explains how free speech values are implicated in knowledge and information policies, in the design of digital networks and in the maintenance of infrastructure.

Around the world today, the fight over free speech is a fight over knowledge and information policy, and, in particular, how the infrastructure that makes free speech possible will be designed and implemented. Although the First Amendment is a crucial information policy for democracy, it is only one information policy among many. It needs the assistance of an infrastructure of free expression to make good on its promises. We must design democratic values into the infrastructure of free expression if we want an infrastructure that protects democracy.

[JH]

Law's Information Revolution: On the advent of quantitative legal prediction in the professional legal services industry

Hat tip to Edward Bryant's The Intelligent Solutions Blog post for calling attention to Quantitative Legal Prediction – or – How I Learned to Stop Worrying and Start Preparing for the Data Driven Future of the Legal Services Industry, 62 Emory Law Journal ___ (Forthcoming 2013) [SSRN] by Daniel Martin Katz (Michigan State College of Law). Here's the abstract:

Do I have a case? What is our likely exposure? How much is this going to cost? What will happen if we leave this particular provision out of this contract? How can we best staff this particular legal matter? These are core questions asked by sophisticated clients such as general counsels as well as consumers at the retail level. Whether generated by a mental model or a sophisticated algorithm, prediction is a core component of the guidance that lawyers offer. Indeed, it is by generating informed answers to these types of questions that many lawyers earn their respective wage.

Every single day lawyers and law firms are providing predictions to their clients regarding their prospects in litigation and the cost associated with its pursuit (defense). How are these predictions being generated? Precisely what data or model is being leveraged? Could a subset of these predictions be improved by access to outcome data in a large number of 'similar' cases. Simply put, the answer is yes. Quantitative legal prediction already plays a significant role in certain practice areas and this role is likely increase as greater access to appropriate legal data becomes available.

This article is dedicated to highlighting the coming age of Quantitative Legal Prediction with hopes that practicing lawyers, law students and law schools will take heed and prepare to survive (thrive) in this new ordering. Simply put, most lawyers, law schools and law students are going to have to do more to prepare for the data driven future of this industry. In other words, welcome to Law's Information Revolution and yeah - there is going to be math on the exam.

[JH]

"A book about boilerplate?"

That's Colorado Law prof Robert Nagel's lead-in sentence for his Dec. 20, 2012 WSJ book review of Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton UP, Nov. 25, 2012) [Amazon] by Margaret Jane Radin (Michigan Law). Quoting from Negal's highly recommended Devil's in the Small Print:

The absence of real agreement [according to Radin] means that boilerplate contracts are inconsistent with the moral basis of contract law, which, after all, uses the power of the state to enforce the transfer of one person's property to another on the ground that both agreed to the transfer. This degradation of the moral basis of contract law, in turn, undermines the classical liberal justification for the state, which rests on the need for a public entity that enhances freedom by enforcing private agreements.

You can see where this is heading. Nagel adds:

Ms. Radin is aware of the possible dangers of restricting boilerplate. Consumers, especially poorer ones, benefit from the price reductions that it makes possible. Many established commercial practices could be disrupted by increased regulation. She even briefly considers the possibility of tolerating boilerplate as a useful legal anomaly. In the end, however, she cannot overlook the incompatibility between boilerplate and the rule of law.

In this respect, Ms. Radin's book betrays how tidy is the intellectual world inhabited by many legal academics.

As an intellectual exercise, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law sounds like it may make for stimulating reading. If purchased from Amazon, you can "start reading Boilerplate on your Kindle in under a minute." Just remember to read the fine print. See also Omri Ben-Shahar's compilation in Boilerplate: The Foundation of Market Contracts (Cambridge UP, 2007) [Amazon].

However, in the real world of boilerplate, I recommend law librarians buy a copy of Lipinski's The Librarian's Legal Companion for Licensing Information Resources and Services (Neal-Schuman Publishers, 2012) [Amazon] to deal with the devil in the fine print. OK, OK, so quoting myself:

While Lipinski does not include major legal publishing vendor licensing clauses, the specificity of the addressed licenses analysis, the answers to over 100 questions about specific licensing agreements, and 20 key issues in licensing agreements, accompanied by sample clauses, makes the work a must-read at least until AALL produces something as detailed. OK, OK, that's probably wishful thinking on my part.

I seriously doubt but I hope to be pleasantly surprised if AALL's Library Procurement Process Improvements Task Force turns out to be up to the task of grappling with boilerplate clauses by way of a detailed analysis and a wide range of sample alternative clauses that address in specificity the many institutional buyer issues law libraries face. Could that be why the Task Force hasn't released and/or the E-Board hasn't approved the revision of AALL's 2004 edition of Principles for Licensing Electronic Resources yet? [JH]

On Your Holiday Gift Wish List? Rabban's Law's History: American Legal Thought and the Transatlantic Turn to History

"This accomplished work of intellectual legal history is the first complete account of American legal thought from the rise of Classical Legal Thought in the 1870s to the Sociological Jurisprudence of the pre-World War I era. Though it offers many illuminating challenges to conventional wisdom in the field, the book's first goal is to overthrow the still dominant Holmesian picture of Classical American legal thinkers as unhistorical prisoners of logic. Rabban shows instead the pervasive influence of historical consciousness on leading American legal thinkers, many of them influenced by Darwinian evolutionary ideas." -- Morton Horwitz, Charles Warren Professor of American Legal History, Harvard Law School.

From the blurb for David M. Rabban's Law's History: American Legal Thought and the Transatlantic Turn to History (Cambridge UP, Nov. 30, 2012):

This is a study of the central role of history in late-nineteenth century American legal thought. In the decades following the Civil War, the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic. Their historical analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, conclusions that challenge conventional accounts of legal formalism Unprecedented in its coverage and its innovative conclusions about major American legal thinkers from the Civil War to the present, the book combines transatlantic intellectual history, legal history, the history of legal thought, historiography, jurisprudence, constitutional theory, and the history of higher education.

[JH]

How Bad Are the Official Records of the Constitutional Convention?: A Critique of Farrand

Boston College law prof Mary Bilder's How Bad Were the Official Records of the Federal Convention? [SSRN] will appear in the George Washington Law Review's symposium on the 100th anniversary of Max Farrand's edition of the Constitutional Convention. Here's the abstract:

The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them - Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering the inaccessibility of the official records. The Article also describes the story of the records after the Convention but before they were published, including the physical limbo of the records in the aftermath of the Convention and the eventual deposit of the records in March 1796 amidst the rapid development of disagreements over constitutional interpretation. Finally, the Article offers a few cautionary reflections about the lessons to be drawn from the official records. Particularly, it recommends using caution with Max Farrand’s records, paying increased attention to the procedural context of the Convention, and recognizing that Constitutional interpretation postdated the Constitution.

See also Sourcing Records on the US Constitution for Evaluating Original Intent Claims. [JH]

What's the Over-Under Bet? Originalism, Law & Economics, and Intellectual Property

In the "now for something completely irrelevant" category to the dustup between Scalia and Posner about Reading Law (2012) [something relevant here], I like both Scalia and Posner. They are "characters." It is not that I have any sort of personal relationship with either but as a nearly invisible PTE at the University of Chicago Law Library while attending Chicago's Graduate Library School in 1978-1980, I sorted Scalia's mail with him looking over my shoulder on Saturday mornings. I also routinely had to step over the library's books that were spilling out of Posner's office into the library's walkways to get to the stacks to pull something from the shelves.

I accepted the opinion of the professional librarians that Scalia was an up-and-comer. Mention was not made about his "orignialism" at the time but then we law librarians do have a professional bias toward performing legislative history research.

With plenty of time on my hands working weekends at Chicago's Law Library, I spent a fair amount if it reading Posner's classic The Economic Analysis of Law (multiple copies on reserve). It was the first treatise that made me start thinking about "The Law" because what Posner wrote was so foreign to my then naive understanding of what the law is. It was just by chance that reading and scratching my head over Law & Economics was a productive exercise because Posner et al. has proven to be the only "Law & ..." academic-produced school of thought that has had any real impact in the world of statutory and regulatory developments.

In an issue close to the interests of legal information professionals, drums have been beating about rescuing IP legal analysis from the myopia of the Law & Economics school which reduces intellectual property to economic efficiency arguments. The scholarly arguments come from Law & Culture's public policy analysis which attempts to reframe IP as cultural property. See Reclaiming IP Legal Analysis from Law and Economics. Not good enough without proving that the costs associated with IP are inefficent under a Law & Econ analysis.

Toss in an originalist interpretation of the "Copyright Clause"? Limited duration was viewed in the context a person's working life by our Founding Fathers. Applied to books, maps and charts, the Copyright Act of 1790 was for 14 years, with an option to renew for another 14 years. Clearly, this dovetailed into the human life span context. Too bad, however, that the Founding Fathers did not simply state "until the creator dies."

Toss in a more fundamental public policy argument that the current IP regime cannot be effectively enforced in the 21st century because of the inability to police widespread social behavior. See "Hacking" New and Old Prohibitions: From the 18th Amendment to Today's Copyright Laws. Will that resonant with legislators who remember the arguments found in Thoreau's Resistance to Civil Government (Civil Disobedience) (1849)?

What's the over-and-under bet on that happening when legislators' pockets are being filled by corporations whose lawyers are drafting copyright legislation.

Traditionally Congress has relied on copyright lawyers from the major interested companies, to sit down and write copyright legislation, a recipe not designed to protect the public interest. Congress shows little interest in becoming educated in the details of copyright legislation, enacting what the major interested parties agree on. The line at the top of the page [Article I, Section 8, Clause 8] from the U.S. Constitution is the charge given to Congress to "to promote the Progress of Science and useful Arts, by securing for limited Times..." Recent experience, and economic theory suggests that enlarging and encouraging the public domain and "intellectual and innovative commons" may do more to promote the progress of science and useful arts than locking material away as coporate asset. And "limited times" is surely not 95 years.

Michael Webb, Patent, copyright and posterity: Intellectual property and intergenerational rights. [JH]

Sourcing Records on the US Constitution for Evaluating Original Intent Claims

In the "now for something completely relevant" category to the dustup between Scalia and Posner about Reading Law (2012), Gregory Maggs, Professor of Law and Co-director of the National Security and U.S. Foreign Relations Law Program at George Washington University Law School, has added a third installment in his series on sources of the original meaning of the Constitution. From the abstract of A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution [SSRN], 81 Geo. Wash. L. Rev. (forthcoming 2012):

The article describes the Constitutional Convention and the various kinds of records that were kept of its proceedings. The essay then explains, with examples, how judicial opinions and academic works draw upon the records for evidence of the Constitution’s original meaning, including both the meaning that the Framers may have subjectively intended the document to have and also other possible meanings. The essay next identifies and assesses seven important potential grounds for impeaching assertions about what the records show. Each of these potential grounds has merit in some contexts, but all of them are also subject to significant limitations or counter arguments. The essay, accordingly, recommends that anyone making or evaluating claims about the original meaning of the Constitution should proceed with caution, carefully taking into account both the possible grounds for impeaching claims and the arguments against these grounds. Appendices to this essay include an annotated bibliography and a table of the deputies who participated at the Constitutional Convention.

Earlier articles in Maggs' highly recommended concise guide series:

A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007) [SSRN link] and

A Concise Guide to The Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457 [SSRN link]

Excellent additions to an ALR class reading list. [JH]

Salmon Chase, Who?

Showing my utter ignorance of US legal history, I asked a colleague who the namesake of the NKU College of Law was when I first moved to the Buckeye State. "Oh yeah, that guy." Since then I've delved a bit into Salmon Chase's early law practice mostly by way of reading 19th century Cincinnati legal newspaper accounts.

Georgetown Law prof Randy Barnett has uploaded to SSRN his forthcoming Case Western Reserve Law Review article, From Antislavery Lawyer to Chief Justice: The Remarkable But Forgotten Career of Salmon P. Chase. Haven't read it yet but plan to. Here's the abstract:

Salmon P. Chase was as responsible as any single person for the abolition of chattel slavery in the United States. Yet his name is barely known and his career is largely forgotten. In this paper, the author seeks to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why this is a career worth both remembering and honoring, the author offers some possible reasons why his remarkable achievements have largely been forgotten.

[JH]

Old Habits Die Hard, Part I: SMART Publish or Perish for Serial Law Titles in the 21st Century

Get SMART

While not discussing hardware monitoring (see Wikipedia entry for that), the all-caps format for "SMART" in this post's title is used intentionally to echo "self-monitoring, analysis and reporting technology" in the context of anticipating failures for generating reliable legal content research, analysis and communication at the intersection of publisher and consuming reader. Of course, it could a "good thing" if AALL would someday set an example by getting SMARTer. Apparently that is too much to ask from an "old habits live on" publisher whose intented audience is 21st century legal information professionals right now. Failure at the intersection of publisher and audience in print-bound AALL publications like LLJ and Spectrum, make many law librarians who live in the 21st century professionally embarrassed by their association's mimicry of an obsolute publishing format when LLJ and Spectrum are e-disseminated. For a recent failure example, there was clearly insufficent LLJ editorial oversight during the mocked-up production of dialog between two law librarians that confused the new WEXIS platform with WLN in a recent LLJ article. See "WestlawNext": What happens when a brand becomes synonymous with the negatives of all similiar products. On Nota Bene, Dan Baker stated the case explicitly, along with quoting text to illustrate the point at Yet Another Lexis Advance Polemic: A Reply to Sellers & Gragg ("[N]early every statement made by the authors about WestlawNext also applies to Lexis Advance".) A SMARTer LLJ publishing platform would allow the authors of their fossilized-in-print article to clarify their statements.

"The page volume of law reviews has proliferated beyond reason with no corresponding rise in compelling content" is the pull quote from Walter Olson's article, Abolish the Law Reviews!, in The Atlantic. The case Olson makes against law reviews isn't new. But for compelling content, he promotes timely online published short-form works that OSU law prof Douglas Berman characterized during the early days of law prof blogging as "scholarship in action". Olson writes:

One way or another, some scholarly apparatus will be found to publish meritorious longer articles that advance the mission of serious research into the law. But when it comes to discussion of timely controversies, slash-and-thrust debates, and other forms of writing that people actually go out of their way to read, there's no doubt where talented legal academics are headed: to blogs and other shorter-form online publications.

... Professionally edited web outlets (including The Atlantic) allow law professors to get their arguments before an intelligent audience in hours rather than weeks or months. As online law writing has taken off, readers are rewarding qualities like clarity, concision, relevance, and wit, and steering clear of pedantry and mystification.

(Emphasis added.)

Sounds good, right? One question is whether long-form legal scholarly works will end up only being published in peer-reviewed law journals like the rest of university scholarship is? If not, I have my doubts that the mission of serious law writing will be well-served. Being realistic, however, I seriously doubt the student-edited law review will disappear any time soon, if ever (unless law tenure standards are ratched up to conform to the norms very well-established for other disciplines "on campus").

A much more important question is how the long-form law article should be published. Mark Giangrande makes the case for electronic publication of law reviews. While some law reviews have experimented with online supplements to their print titles, Mark calls for the enhanced law review article in Don't Abolish the Law Review, Adapt It:

I think a law review could easily exist online with the same editorial standards that appear now.  In fact, I think they would have a better life online by adopting some of the features of online publication.  The footnotes, for example, could lead to live sources, and at the very least PDF versions of the information.  The “last visited” could be replaced or augmented with snapshots of sites as they existed at the time of the research.  There need not be “on file” notes with some content.

Moderated comments could aid readers as well.  The articles can be updated and revised over time.  West does it with weekly updates to ALR online.  Law faculty can take charge of revisiting their content.  There is precedent for that with SSRN as a pre-publication outlet with some faculty having multiple drafts of the same article on the site.  I’m sure a law review editorial staff could develop standards for publishing revisions.

My biggest problem with law review content is that even when it is presented online it still generally conforms to print.  Maybe it’s the Bluebook mentality.  There is the possibility of an enhanced presentation of an article if someone can set standards in light of the available web features.  One or two respected titles can lead the way.  The rest will likely follow.

With enhance law eBooks at one end of the spectrum and law blogs at the other end, I believe it is inevitable that the long-form law article will adapt to the new normal of electronic publishing. Whether it begins with academic law serials, commercially published law journals, or ABA journals remains to be seen. But eventually, reader expectations will push the long-form law article into the 21st century of e-publishing.

In the process one can only hope that law journals and enhanced regularly updated serial law eBooks will also eliminate the print era version of date-stamping by ceasing publication of "issues" for journals and, for serial eBooks, scheduled "supplements" or "editions." As soon as the text has completed the editorial process, just e-publish the damn thing immediately.

Old publishing habits die hard, but it is time to create new ones by eliminating print era legacies.

Endnote. A case in point on killing off print era legacies -- this is "part one" of a series of blog posts on "old habits die hard" but I don't even know what the hell the topic for part two in this series will be right now, when it will be published, or how many parts to this post series I will get around to writing and eventually publishing. Plus, based on past experience of "thinking out loud", there is no doubt in my mind that some "parts" will be drafted but never be published. [JH]

Confirming the Conventional Wisdom: SCOTUS Justices Time Their Retirements to Suit Partisan Politics

From the abstract of Retirement and Death in Office of U.S. Supreme Court Justices [SSRN] by Ross M. Stolzenberg (Univ. of Chicago Sociology Department) and James Lindgren (Northwestern Univ. School of Law):

In general, our empirical account supports the rich historical literature that documented individual cases in which justices resigned, retired, or took senior status to perpetuate party influence on the Court. We find that Supreme Court Justices act more or less as one would expect sophisticated people to act regarding their careers. While personal factors, such as pension eligibility, are more important predictors of retirement than political variables, the data are nonetheless consistent with a hypothesis of politicized departure: Whether leaving by retirement, resignation, or death, justices tend to time their departures from the Court based in part on a president’s party and the years remaining in a president’s term in office.

[JH]

Creating the Declaration of Independence

Creating the Declaration of Independence is an online exhibit that is part of the Creating the United States exhibition produced by the Library of Congress which "demonstrates that the Declaration, the Constitution, and the Bill of Rights are living instruments that are central to the evolution of the United States." Highly recommended this 4th of July. Hat tip to Mark Giangrande's July 3, 2010 post for the link to the Library of Congress online exhibit. 

De- and Re-Constructing the Declaration of Independence. Many excellent works of historical scholarship on the Declaration have been produced since 1979 but I always turn back to my 30-plus year old copy of Inventing American: Jefferson's Declaration of Independence by Garry Wills this time of year. It remains one of my favorites because Wills distinguishes the "Declaration of Congress (which is mainly political) from the Declaration of Jefferson (which is philosophical in the eighteenth-century sense, that is, scientific) and from our Declaration (which is symbolic, the thing we have reshaped even as it was shaping us)." (Quoting from "Plan of the Book;" Emphasis in the Vintage Books edition, 1979). [JH]

The Most-Cited Law Review Articles of All Time

Fred Shapiro with the assistance of Michelle Pearse has added a third installment to his citation analysis of the most-cited law review articles. The first two studies were published at 73 Calif. L. Rev. 1540 (1985) and 71 Chi.-Kent L. Rev. 751 (1996). The latest study, The Most-Cited Law Review Articles of All Time, is published in the June 2012 issue of the Michigan Law Review.

From the abstract:

New research tools from the HeinOnline and Web of Science databases now allow lists to be compiled that are more thorough and more accurate than anything previously possible. Tables printed here present the 100 most-cited legal articles of all time, the 100 most-cited articles of the last twenty years, and some additional rankings. Characteristics of the top-ranked publications, authors, and law schools are analyzed as are trends in schools of legal thought. Data from the all-time rankings shed light on contributions to legal scholarship made over a long historical span; the recent-article rankings speak more to the impact of scholarship produced in the current era. The authors discuss alternative tools and metrics for measuring the impact of legal scholarship, running selected articles from the rankings through these tools to serve as points of illustration. The authors then contemplate how these alternative tools and metrics intersect with traditional citation studies and how they might impact legal scholarship in the future.

[JH]

ConText: Perhaps Justice Scalia will be interested in crowd-sourcing Madison's Notes

The Center for the Constitution at James Madison's Montpelier in partnership with the Brookings Institution has launched ConText. It is an "experiment in crowd-sourcing commentary on dense historical texts and in illuminating those texts for the public, for students, and for scholars in new ways, writes Benjamin Wittes. For a very interesting discussion of the backdrop for this project, see Wittes' ConText: An Experiment in Crowd-Sourced Commentary.

ConText was launched on James Madison's 261st Birthday with Madison’s Notes of the Debates in the Federal Convention of 1787. ConText also includes Madison's Vices of the Political System of the United States. Commentary for crowd-sourced documents are organized into the following categories: Historical, Current Events, Theoretical/Philosophical and Other. More documents are expected to follow. The site's Featured Documents page includes an RSS feed for tracking purposes.

ConText in my opinon is an excellent example of independent educational organizations like The Center for the Constitution at James Madison's Montpelier and the Brookings Institution supporting open scholarship during its beta stage of development. From the site's About Page:

Working with an interdisciplinary group of historians, political theorists, lawyers, technological innovators, educators, and you, we are all together crowd-sourcing the most important documents in our nation's history. With this site, you can explore historical documents through browsing the text, reading scholar commentary, and adding your own observations. In the process, you will delve into the document's historical context and realize its relevance to the contemporary world.

[JH]