Law Librarian Blog

The Chesapeake Digital Preservation Group's Fourth Annual Analysis Finds the Pace of Link Rot May Slowing Down but ...

Link rot is still present in more than 30% of the URLs in the Group's sample of URLs originally collected in 2007 and 2008. Do note that the sample includes URLs primarily from state government (.state.__.us), government (.gov), and organization (.org) top-level domains.

From "Link Rot" and Legal Resources on the Web: A 2011 Analysis by the Chesapeake Digital Preservation Group:

The Chesapeake Group conducted its first link rot assessment at the program's one-year mark in 2008.  During the program’s first year, 1,266 online titles were harvested preserved within the digital archive. A random sample of 579 titles from the archive was generated for the link rot study, ensuring results at a 95 percent confidence level and confidence interval of +/- 3. When this sample was first analyzed in March 2008, link rot was found to be present in 48 of 579 URLs, or 8.3 percent.

One year later, in 2009, the sample was analyzed a second time as part of the program's second-year evaluation. The second analysis demonstrated that link rot was present in 83 out of the original sample of 579 URLs. In other words, 14.3 percent of the archived titles had disappeared from their original URLs within 12 to 24 months of harvest.

By March 2010, the prevalence of link rot had increased to 160 out of 579 URLs. Within two to three years of harvest, link rot among the sample URLs had increased to 27.9 percent, compared to 14.3 percent in 2009 and 8.3 percent in 2008.

The current March 2011 analysis shows that 176 URLs have succumbed to link rot within a period of 12 to 48 months. This means that 30.4 percent, or nearly one-third, of the archived titles have disappeared from their original URLs. Although this figure is significant, it represents only an additional 2.5 percent of URLs lost to link rot within the past year.

Whereas the prevalence of link rot among URLs in the sample nearly doubled every year during the first three years of the study, it slowed significantly in the fourth year.

Another snip from this very informative Report:

In the original 2008 analysis, link rot was present in 10.8 percent of URLs with state top-level domains, 10 percent of URLs with government top-level domains, and 8.3 percent of URLs with organization top-level domains. Education (.edu) and commercial (.com) URLs were found to have relatively high inactivity levels of 11.8 and 15.4 percent in 2008, respectively.

In 2009, the prevalence of link rot increased among URLs with state, government, organization, education, network (.net), military (.mil), and information-oriented (.info) top-level domains. URLs with organization top-level domains increased significantly in 2009, to 35.3 percent from 11.8 percent in 2008, while no increase in link rot among commercial URLs was observed.

The 2010 analysis of the sample showed link rot to be present in more than 32 percent, nearly one-third, of the URLs with a state-government top-level domain. Link rot was found in more than 22 percent of URLs with an organization top-level domain and in 25 percent of government URLs. Commercial and network URLs both experienced a jump in link rot to nearly 30 percent among .com domains, and to more than 27 percent among .net domains. The single IP address and.uk top-level domain in the sample also succumbed to link rot in 2010.

New and interesting patterns among top-level domains emerged in 2011. While .org and .gov URLs continued to demonstrate an increase in link rot, link rot among state government and academic URLs actually began to reverse.

Link Rot and the Digital Archive Today. Also note that "[f]or the present analysis, a new, separate sample was generated representing all of the content in the archive at the time of the program’s fourth anniversary. In the four years since the program began, 3,246 born-digital online titles were harvested from the Web and preserved within the digital archive. A random sample of 803 titles was selected for the link rot study, ensuring results at a 95 percent confidence level and confidence interval of +/- 3."

For a detailed analysis, see "Link Rot" and Legal Resources on the Web: A 2011 Analysis by the Chesapeake Digital Preservation Group. Highly recommended.

Endnote. Hat tip to Sarah Rhodes, Digital Collections Librarian, Georgetown Law Library, for the heads-up. Participants in the Chesapeake Group include the Georgetown and Harvard Law Libraries and the State Law Libraries of Maryland and Virginia. Professionally speaking, I think we are all indebted to the law librarians who have dedicated their time and effort over the course of the last four years by executing this continuing series which provides an empirically sound analysis of link rot. As noted in the Group's announcement of its latest findings, this is National Preservation Week 2011 and their work product also is a valuable contribution in that context.

The Chesapeake Group is a founding member of the Legal Information Preservation Alliance (LIPA) Legal Information Archive, a collaborative digital preservation program for the law library community. For more information, visit the LIPA Web site or the Chesapeake Group website. [JH]

Everything You Do Online is Being Tracked -- "Don't Get Over It:" Klinefelter's When to Research is to Reveal

When to Research is to Reveal: The Growing Threat to Attorney and Client Confidentiality from Online Tracking, 16 Virginia Journal of Law & Technology No. 1 (Spring, 2011) by Anne Klinefelter, Associate Professor of Law and Director of the Law Library at the University of North Carolina, is quite frankly the best article I have read that addresses the dangers of online tracking to maintaining the confidential nature of legal representation. But don't take my word, read the article and decide for yourself.

We all know that the attorney-client privilege protects legal research. The use of electronic research tools should be within the scope of the privilege when the information sought is necessary for legal advice. That privilege should include but certainly not be limited to search terms used and documents viewed online by attorneys. 

In When to Research is to Reveal, Klinefelter presents a systematic analyis of the risks commercial surveillance of online activity present to attorney-client privilege, work-product protection, and the attorney’s ethical requirement to protect the confidentiality of client information. She evaluates the confidential nature of legal representation in the context of current online tracking technologies in detail. "Tracking of internet-based research," writes Klinefelter, "could require courts to develop more nuanced descriptions or definitions of confidentiality."

Securing confidentiality for online research in the context of the attorney-client relationship is not, however, going to be an easy task. "To maintain confidentiality of online legal research, one must take a broader approach to limiting online tracking than simply checking for privacy protections from individual legal research services or websites," writes Klinefelter. Recommended steps include viewing (1) contract terms with subscription services; (2) privacy policy terms of "free" services; (3) Internet service providers contracts and policies; (4) practices to prevent tracking not controllable through contracts or privacy policies; and (5) taking extreme measures such as use of software to anonymize use of the Internet.

From the conclusion:

The commercial tracking of online legal research is a growing threat to the three confidentiality interests relating to legal representation. Attorney-client privilege, attorney work-product protection, and an attorney’s ethical rule of confidentiality are bedrock principles for the United States justice system and for the practice of law. The rapid expansion in data tracking technologies, decreasing cost of data storage, and advancements in data merging techniques and practices have transformed the internet into a dangerous place at the same time that legal research is shifting to website-based systems. Attorneys must take reasonable precautions to prevent exposure of confidential information to third parties not necessary for the rendering of legal advice. Currently, an array of precautions must be implemented to protect these three confidentiality interests. To assist in identifying and updating best practices, attorneys should identify experts who can provide ongoing advice and even evaluate online services’ confidentiality support through a web assurance seal or evaluative chart designed specifically for attorneys. If even these collaborative steps are unsuccessful in securing reasonable and effective precautions for confidential online legal research, legislation or regulation must provide the needed protection. Attorneys are not the only online researchers who seek control over tracking. Laws that support transparency and require some consumer control could address other confidentiality interests threatened by trends in data collection and re-use. Confidentiality of legal representation is not just a benefit to the attorney and client in a particular relationship, but a societal value that has withstood the test of time and should remain protected.

(Citations omitted)

Scholarship in Action. Klinefelter's When to Research is to Reveal illustrates that law librarians can execute scholarship in action by providing professional expert analysis to the more general legal community. In an email to me, Anne wrote:

The article proposes that experts (perhaps from the ABA, AALL, privacy advocacy organizations) provide technological guidance for attorneys likely to be at a loss for how to reduce tracking.  However, the article also points out that tracking is very difficult to reduce because it is always evolving and is not well regulated.  The bottom line is that in the debate about privacy v. innovation, attorney-client confidentiality is a long-established set of privacy interests that are likely to be harmed by the trend towards tracking and sale of data about online activity.  In contrast with the cover story of Time Magazine, March 21, “Your Data For Sale:  Everything About You is Being Tracked---Get Over It”, I’m suggesting that some harms from tracking are not just felt by the fussy or the hyper-paranoid.  If “free” legal (and law-related) research is funded by trading away attorney-client confidentiality, that may not be a good bargain. 

In addition to the scholarly merits of When to Research is to Reveal, Klinefelter's article is an excellent example of how our profession can reach out to the non-law librarian community. 

Endnote. As a personal observation, one I hope doesn't sound condescending, I've know Anne for about 15 years. I believe I have read most, if not all, of her scholarly publications. When to Research is to Reveal is, in my opinion, Anne's best work to date and indicative of a law librarian-scholar who is in her prime. Looking forward to your future publications, Anne. [JH]

Crumbling Relic or Vibrant Source of Legal Illumination: New Citation Study Offers Ray of Hope That Scholarly Legal Articles Are Used by Judges (or at least Their Law Clerks)

The convention wisdom is judges are frustrated with legal scholarship's conceptual nonsense and law profs are upset that all the toil and trouble they put into their scholarly works is viewed with disdain by the bench. Whit D. Pierce & Anne E. Reuben's Empirical Study: The Law Review Is Dead; Long Live The Law Review: A Closer Look at the Declining Judicial Citation of Legal Scholarship, 45 Wake Forest L. Rev. 1185 (2010) offers some evidence that citation to legal scholarly writings is not disappearing from judicial opinions and in some cases is actually increasing. "The outcome of this Study," writes the authors, "is not a reason for the institution of law reviews to rest on its laurels. Lest “the dialogue between practitioners, judges, and academics, which began in 1875 in the first student-edited journal . . . , come to an end,” law reviews should account for the fact that the law and the world in which it operates are dynamic."

Two snips from the study's conclusion:

The point is this: legal scholarship as a means for shaping the law is not a thing of the past but that reality is not a reason for law reviews to rigidly maintain the status quo. The simple fact that so much attention has been devoted by both judges and scholars to ensuring that the legal scholarship supply is meeting the judicial demand demonstrates a continuing need for academic commentary on particularly relevant topics. This need can be filled by a combination of traditional law reviews and their online companions.

...

In the world of law reviews, it appears that, while the traditional print “body” of the institution is weakened, the dignitas of law review—scholarly thought and analysis—remains vibrant and useful.

Hat tip to Legal Skills Prof Blog. [JH]

Submission Deadline Extended for AALL's Morris L. Cohen Student Essay Competition to April 15th

The Legal History and Rare Books Section (LH&RB) of the American Association of Law Libraries, in cooperation with Cengage Learning, announces the third annual Morris L. Cohen Student Essay Competition.
 
The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School. Professor Cohen was a leading scholar in the fields of legal research, rare books, and historical bibliography.
 
The purpose of the competition is to encourage scholarship in the areas of legal history, rare law books, and legal archives, and to acquaint students with the American Association of Law Libraries (AALL) and law librarianship.
 
Eligibility: Students currently enrolled in accredited graduate programs in library science, law, history, or related fields are eligible to enter the competition. Both full- and part-time students are eligible. Membership in AALL is not required.
 
Requirements: Essays may be on any topic related to legal history, rare law books, or legal archives. The entry form and instructions are available at the LH&RB website: http://www.aallnet.org/sis/lhrb/

Entries must be submitted by 11:59 p.m., April 15, 2011. 

Awards: The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses associated with attendance at the AALL Annual Meeting. The runner-up will have the opportunity to publish the second-place essay in LH&RB’s online scholarly journal Unbound: An Annual Review of Legal History and Rare Books.
 
Please direct questions to Robert Mead at libram(at)nmcourts.gov or Sarah Yates at yates006(at)tc.umn.edu. {JH]

Debunking Myths for Banning Laptops from the Law School Classroom

In Let Them Use Laptops: Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom [SSRN] (Oklahoma City University Law Review, forthcoming), Temple law prof Kristen E. Murray writes:

What has troubled me about the debate is that both sides consistently make arguments based on untested assumptions about how students are using their laptops. The debate has also been uninformed because it often fails to take account of existing knowledge about today’s law student learners; there has been little discussion of the issue in the context of the effect of laptops on student learning.

Armed with survey data and education research, Murray proceeds to debunk five untested assumptions that arise in the classroom laptop debate:

Myth #1: Students Use Laptops to Take Transcript-Style Notes

Myth #2: Laptops in Class Lead to Decreased Class Participation and Engagement

Myth #3: Laptops Primarily Provide Law Students with Opportunities for Distraction

Myth #4: Because They Are Digital Natives, Law Students Make Informed Choices About Laptops and Learning

Myth #5: Law Professors Have Developed Sufficient Standards for Measuring the Results of Law School Laptop Bans

Murray concludes that "to ban [laptops] completely from a lecture hall is to deny students a powerful learning tool—one that many students already use to enhance their learning."

Hat tip to Legal Writing Prof Blog. [JH]

Will Someone Give This Book to Justice Scalia?

What the heck, it only took me the better part of four months to read Madison and Jefferson (Random House, 2010) by Andrew Burstein and Nancy Isenberg, who are the Charles P. Manship Professor of History and professor of history, respectively, at LSU. Well, it is 800-plus pages and is full of footnotes. Plus I have little functional short-term memory and I am easily driven to distraction because I am an aging and decrepit law librarian.

Personally I have found the constitutional interpretation school known as "originalism" and championed by Justice Scalia to be intellectually bankrupt but since I'm not a constitutional scholar, don't sit on SCOTUS, and am not a brainiac like Scalia is, my opinion about schools of constitutional interpretation really don't matter, now does it. Hell, 30-plus years ago all I did was sort out Scalia's mail from the rest of the US Mail delivery on Saturdays when we both worked at the University of Chicago Law School while he was looking over my shoulder, waiting impatiently.

Still, someone should dump Burstein and Isenberg's Madison and Jefferson into his lap (assuming no one has already done so). Could it change his mind about "originalism?" Don't know but it would be interesting to hear what he has to say. As a certified brainiac, someone like Scalia typically is sufficiently intellectually honest to revisit assumptions and long-held opinions.

Based on my reading, I highly recommend Madison and Jefferson to everyone interested in the changing opinions about the US Constitution by our founding fathers over the course of their political careers. Fascinating; subscribers to originalism might want to rethink their assumptions.

Here's the blurb:

In Madison and Jefferson, esteemed historians Andrew Burstein and Nancy Isenberg join forces to reveal the crucial partnership of two extraordinary founders, creating a superb dual biography that is a thrilling and unprecedented account of early America.

The third and fourth presidents have long been considered proper and noble gentlemen, with Thomas Jefferson’s genius overshadowing James Madison’s judgment and common sense. But in this revelatory book, both leaders are seen as men of their times, ruthless and hardboiled operatives in a gritty world of primal politics where they struggled for supremacy for more than fifty years.

In most histories, the elder figure, Jefferson, looms larger. Yet Madison is privileged in this book’s title because, as Burstein and Isenberg reveal, he was the senior partner at key moments in the formation of the two-party system. It was Madison who did the most to initiate George Washington’s presidency while Jefferson was in France in the role of diplomat. So often described as shy, the Madison of this account is quite assertive. Yet he regularly escapes bad press, while Jefferson’s daring pen earns him a nearly constant barrage of partisan attacks.
 
In Madison and Jefferson we see the two as privileged young men in a land marked by tribal identities rather than a united national personality. They were raised to always ask first: “How will this play in Virginia?” Burstein and Isenberg powerfully capture Madison’s secret canny role—he acted in effect as a campaign manager—in Jefferson’s career. In riveting detail, the authors chart the courses of two very different presidencies: Jefferson’s driven by force of personality, Madison’s sustained by a militancy that history has been reluctant to ascribe to him.

The aggressive expansionism of the presidents has long been underplayed, but it’s noteworthy that even after the Louisiana Purchase more than doubled U.S. territory, the pair contrived to purchase Cuba and, for years, looked for ways to conquer Canada. In these and other issues, what they said in private and wrote anonymously was often more influential than what they signed their names to.

Supported by a wealth of original sources—newspapers, letters, diaries, pamphlets—Madison and Jefferson is a stunning new look at a remarkable duo who arguably did more than all the others in their generation to set the course of American political development. It untangles a rich legacy, explaining how history made Jefferson into a national icon, leaving Madison a relative unknown. It tells nasty truths about the conduct of politics when America was young and reintroduces us to colorful personalities, once famous and now obscure, who influenced and were influenced by the two revolutionary actors around whom this story turns. As an intense narrative of high-stakes competition, Madison and Jefferson exposes the beating heart of a rowdy republic in its first fifty years, while giving more than a few clues as to why we are a politically divided nation today.

[JH]

Is WikiLeaks the whistleblowing heir of the Pentagon Papers?

Brooklyn Law School professor Derek E. Bambauer answers "no" in his Consider the Censor [SSRN]. From the abstract:

This Essay argues that portrayal is false, for reasons that focus attention on two neglected aspects of the case. First, the New York Times relied on a well-defined set of ethical precepts shared by mainstream journalists to contextualize the Papers and to redact harmful information. Second, American courts acted as neutral arbiters of the paper’s judgment, and commanded power to enforce their decisions. WikiLeaks lacks both protective functions to regulate its disclosures. The Essay suggests that WikiLeaks is a bellwether: an exemplar of the shift in power over data generated by plummeting information costs. While that trend cannot realistically be reversed, the Essay offers two responses to the problems that WikiLeaks and its progeny create. First, established media outlets must continue to act as gatekeepers governed by strong journalistic ethics, even in an environment of ubiquitous access to raw data. Second, governments should consider, and debate, the possibility of using technological countermeasures – cyberattacks – against intermediaries threatening to disclose especially harmful data. There are times when the censor should win.

[JH]

Is the Writing on the Wall to Change the Monopolistic Model of Practicing Law in the US?

In Redesigning the American Law School [SSRN], David Barnhizer (Cleveland State) writes

Dramatic change is on the way for law schools and it is coming faster than they might imagine. The economic forces in play are coming from every direction and will prove irresistible. The writing is on the wall for law schools if they bother to read. Law schools are likely to find they share the need with other industries for a combination of actions that include downsizing of staff and reduced student enrollment, and development of alternative educational offerings other than the traditional law degree.

Why? Barnhizer explains:

Implications for the immediate future for law schools include the fact that there is no discernible “magic” to the existing structure of legal education in the US. While the schools have been largely insulated from public scrutiny by their connection to the ABA and status as parts of the university institution, this protective “covering” is likely to be removed over the next five to ten years. The result for many law schools is that unless they learn to adapt intelligently to the changed conditions and still declining demand for lawyers as that job is traditionally conceived, some law schools will shrink dramatically. Others will disappear in the face of hardened and unforgiving competitive conditions.

Nor are US law schools well-positioned to prove their quality or necessity in the face of knowledgeable critics. There has been no comparative “value-added” analysis of the relative benefits gained by the American model in which law graduates are required to complete a university degree and then take a three or four year graduate program in law school prior to sitting for admission to the bar. There is also no empirical basis that establishes the quality of services provided Americans by lawyers as a body in exclusive control of the provision of legal services. Pressures for dramatic changes are therefore likely to come at law schools from both the public and private sector.

Barnhizer's article is best economic analysis of the legal academy under the 21st century "new normal" I have ever read. He observes that

'Law schools are having rapidly increasing problems 'selling' their 'products' to potential employers/purchasers" while requiring "more than 40,000 new students each year to 'feed their habit'”.

That “habit” is the preservation of an archaic form of graduate level education whose structure, development and monopoly as the means to gain entry into the lawyers’ guild was a convenient accommodation to universities in need of money. Law schools attached to universities offered a cheap form of instruction from which universities were able to profit. This was a marriage with the organized legal profession whose members were happy to accept the prestige associated with the university degree.

In the face of budget cutbacks, some law schools are feeding their "habit" by increasing their enrollment of students above their historical levels to generate additional tuition revenue while employment opportunities for their "products" are declining. Case in point, the University of Cincinnati College of Law. The irony here is that Barnhizer's article leads off with an economic analysis of Ohio to illustrate the thesis of his article. He warns "Some hard decisions are necessary in Ohio and the surrounding states and it would be far better to engage in intelligent strategic planning that “gets ahead of the curve” than to be the blind and rudderless victims of the economic, accreditation and competitive trends."

What does "getting ahead of the curve" mean? First according to Barnhizer:

Among the most important effects that we are already beginning to see is changes in the level of tolerance that has allowed law schools, the ABA and state-by-state Supreme Court monopolies over legal education. The ABA’s role in accreditation has been questioned. Whatever its historical justification in a legal environment where law practice was essentially local and small scale, and access to practice information often limited and esoteric, the simple fact is that law practice in an Information Age has far transcended localized boundaries.

(Emphasis added.)

Second, educational specialization at the law school level. Although Barnhizer does not point to medical education as an example, law schools can get "ahead of the curve" by competing with each other for survival like medical schools do. If you want to be a heart surgeon, X, Y, and Z medical schools are where an aspiring heart surgeon hopes to attend. If you want to practice intellectual property law, A, B or C law schools is where you want to attend because the curicumulum meets the aspiring IP attorney's educational requirements.

It remains to be seen if the legal academy reads the "writing on the wall." My hunch is the entrenched tenured faculty will do everything possible to maintain the status quo as long as possible. As Barnhizer writes:

[L]aw schools are not structured or managed in ways that allow easy adaptation or downsizing.

[JH]

An Analysis of Laughter's Function in Supreme Court Oral Arguments

NPR recently featured an interview with litigation consultant Ryan Malphurs at Which Supreme Court Justice Cracks The Most Jokes? The answer to the question is Justice Scalia. The interview covers some of Malphur's findings in “People Did Sometimes Stick Things in my Underwear” The Function of Laughter at the U.S. Supreme Court, 10 Communication Law Review 48 (2010). Malphur's article focuses upon the effect of laughter, not the role of humor, during Supreme Court arguments. From the article:

Most readers would agree that generally the impact of humor is laughter, but I focus upon the impact of the resulting laughter upon the communication environment of oral arguments. So for these reasons, this study emphasizes the role of laughter rather than humor. The delineation between humor and laughter is important in the analysis of laughter’s function during Supreme Court oral arguments, not only to prevent interpretive challenges, but also because, historically, studies of laughter have fallen under the larger canopy of humor theory and readers should not confuse a study on laughter with a study of humor.

Only 28 pages long, Malphur's article might make a interesting Friday afternoon read. [JH]

Reminder: AALL/LexisNexis 2011 Call for Papers is Underway

Have you been thinking of writing an article of interest to law librarians?  Need a push to get started?  Well, here it is. The AALL/LexisNexis Call for Papers Committee is soliciting articles in three categories:

• Open Division: for active and retired AALL members and law librarians with five or more years of professional experience;
• New Members Division: for recent graduates and AALL members who have become law librarians since July 1, 2006.
• Student Division: Participants in this division need not be members of AALL. To be eligible in this category, you must have been enrolled in law school, or in a library school, information management, or an equivalent program, either in the Fall 2010 or Spring 2011 semester.

The winner in each division receives $750 generously donated by LexisNexis plus the opportunity to present the winning paper at a program during the AALL Annual Meeting in Philadelphia!  Winning papers are also considered for publication in Law Library Journal. 

Application form and details, including a list of past winners, can be found at the Call for Papers website

Selected winning papers from earlier competitions can also be found at http://works.bepress.com/aallcallforpapers. This list can give you an idea of the range of topics that law librarians have chosen. 

Deadline for Submissions:

• Articles in the Open and New Members Division must be submitted by March 1, 2011. 
• Articles in the Student Division must be submitted by April 15, 2011.

If you have any questions, please contact a member of the AALL/LexisNexis Call for Papers Committee: 

Chair, David Hollander, dholland(at)princeton.edu
Vice-Chair, Jennifer Lentz, lentz(at)law.ucla.edu
Connie Lenz, lenzx009(at)umn.edu 
Mark Podvia, mwp3(at)psu.edu

[JH]

Business Models for Offshore Legal Outsourcing

Case Western Reserve Law prof Cassandra Burke Robertson has posted A Collaborative Model of Offshore Legal Outsourcing on SSRN. Here’s the abstract:

International outsourcing has come to the legal profession. The ABA and other bar associations have given it their stamp of approval, and an ailing economy has pushed both clients and firms to consider sending more legal work abroad. This article integrates research from the fields of organizational behavior, social psychology, and economic theory to analyze the effectiveness of the legal outsourcing relationship. It identifies organizational pressures in the practice of law that affect how legal work is performed in a transnational context, and it examines how individuals on both sides of the outsourcing process influence the success or failure of a globalized practice. Ultimately, the article recommends that parties involved in legal offshoring should move away from a model of disaggregation and toward a model of collaboration. Unlike a disaggregation model that assumes outsourcing vendors will autonomously complete discrete legal tasks, a collaborative model would explicitly focus on cooperation, communication, and renegotiation of status and resources.

Hat tip to ContractsProf Blog. [JH]

Transitioning from Industrial Production to Social Production of Content: The Failure of Traditional Premises of Copyright Law to Accommodate the Social Web

From the abstract of Niva Elkin-Koren's (University of Haifa Faculty of Law) Tailoring Copyright to Social Production [SSRN]:

The prevalence of social production and the increase in User Generated Content (UGC) destabilize some of the fundamental premises of our current copyright law. Copyright law is primarily designed to regulate the relationships of a single owner with other non-owners and is focused on the sovereignty of the author/owner. Social production, by contrast, requires us to articulate a matrix of relationships between the individual, the facilitating platform and the communities and crowds involved in social production. The transition from industrial production to social production transforms the social relations associated with the production of content and therefore requires adjustment of the institutions that design such relations.

This Article closely examines the social dimension of content production and analyzes the consequences for the governance of content in the social web. The Article proceeds as follows: Part I describes social production and analyzes the implications for the stakeholders involved. I focus on three key features of social production which affect why we create, how we create, and what assets are generated by these social processes involving creation. Part II explains why social production might be incompatible with the current copyright regime. In particular, I argue that copyright law mainly defines rights against strangers and fails to provide a framework for managing the rights and interests within a gigantic group of collaborators.

Hat tip to Media Law Prof Blog. [JH]

Understanding Shifts in Legal Doctrine By Examining Foundational Facts

From the introduction to Vanderbilt Law prof Suzanna Sherry's very interesting forthcoming article, Foundational Facts and Doctrinal Change, [SSRN], 2011 U. Ill. L. Rev. ___ (January 2011):

Shifts in the tectonic plates under the Earth's bedrock cause earthquakes. Shifts in the tacit factual assumptions underlying legal doctrine can produce equally seismic results. This Article suggests that focusing on these hidden foundational facts—the factual assumptions on which doctrine is based—is a vital but neglected approach to understanding legal doctrine. Just as earthquakes were once the only observable sign of movement in the tectonic plates, sudden and seemingly inexplicable changes in doctrine may alert us to changes in underlying assumptions. Indeed, such shifts may sometimes trigger our first awareness that foundational facts were driving the doctrine in the first place. And because foundational facts are invisible, the judges who alter the doctrine differ from modern scientists studying earthquakes. The judges may be unaware of (or unwilling to acknowledge) either the original assumptions or their replacements. This blindness can yield a jarring discontinuity between old doctrine and new doctrine, accompanied by a denial that the doctrine is changing at all.

This Article uses these doctrinal discontinuities to challenge conventional views of legal doctrine. The usual approach to doctrine focuses on identifying and evaluating its underlying purpose and its applications. What is the doctrine designed to do and how does it function? But some—perhaps many—doctrines cannot be adequately understood or evaluated under the conventional model because they contain an additional, but hidden, element. More specifically, some doctrines are built on foundational facts: potentially contested factual assumptions that are embedded in the doctrine itself and on which the doctrine is based. Without an understanding of a doctrine's foundational facts, we have an inadequate understanding of the doctrine and its changes over time.

Foundational facts, as described in this Article, are judges' generalized, but invisible, intuitions about how the world works. They are distinguishable from judicial values because they are, at least in theory, empirically testable. Foundational facts, however, are more generalized than what might be called the decisional facts specific to each case. Whether a particular defendant acted in a particular way out of a particular motive are decisional facts (and doctrine determines what consequences will follow from those decisional facts). But the likelihood of actors in defendant's position acting in a particular way or having a particular motive is a foundational fact, and doctrinal rules—including burdens of proof and standards of review—will be structured differently depending on whether judges assume a high or low likelihood. ... Foundational facts thus drive doctrine, and are internal to it.

These foundational facts come to light only when doctrine shifts, seemingly inexplicably and often without any judicial acknowledgment that anything has changed. When assumptions about foundational facts change, doctrine shifts as well. That doctrinal shift serves as a cue to look for changed foundational assumptions that might be driving the change in doctrine. Identifying those foundational facts, in turn, allows us to better understand and evaluate both the doctrines and the underlying assumptions.

Hat tip to Civil Procedure and Federal Courts Blog. [JH]

Prosecutorial Power and Accountability

Hat tip to CrimProf Blog for calling attention to the following two articles:

Ronald F. Wright (Wake Forest) & Marc L. Miller (Arizona), The Worldwide Accountability Deficit for Prosecutors [SSRN] From the abstract:

In democratic governments committed to the rule of law, the prosecutor must be accountable both to the people and to their laws. The theoretical need for prosecutor accountability, however, meets practical shortcomings in criminal justice systems everywhere. Because individual responsibility is the origin of good behavior among prosecutors, it does not generate the level of public trust that one might expect in a government of laws. Institutional strategies to guarantee prosecutor accountability all fall short of the mark. Call it the accountability deficit.

Darryl K. Brown (Virginia), American Prosecutors’ Powers and Obligations In the Era of Plea Bargaining [SSRN]. Abstract:

This paper, written as a chapter for a forthcoming volume on international comparisons of prosecutors’ roles in various jurisdictions, provides a basic overview of the different rules and practical constraints on American prosecutors. It offers a critical view of how state and federal prosecutors differ in the exercise of their discretion and ability to influence adjudication outcomes according to variations in such factors as sentencing rules, control over investigations, resource constraints and the pervasiveness of plea bargaining. It describes, for instance, the effect of generally stronger evidence gathering in federal prosecutions and the ability of charging discretion to compensate for weak government evidence in achieving convictions through pleas.

[JH]

State Workers' Compensation: Social Networking Sites as Evidence to Resolve Civil Disputes

Gregory M. Duhl (William Mitchell College of Law) and Jaclyn S. Millner (Fitch, Johnson, Larson & Held, P.A.) have uploaded Social Networking and Workers’ Compensation Law at the Crossroads to SSRN. The authors examine how social networki sites, meaning postings to them, have influenced workers’ compensation law, focusing on the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems. From the abstract:

Workers’ compensation laws are no-fault insurance systems designed to resolve disputes efficiently. Consequently, the rules of evidence are often more relaxed and the rules of discovery often more restricted than in state and federal court litigation. The flexible and self-contained structure of workers’ compensation systems provides an ideal backdrop against which to examine how information from social networking sites can be used as evidence to resolve civil disputes.

A state’s workers’ compensation system should use the rules that have traditionally applied to non-electronic information as a starting point to address issues arising from lawyers gathering and introducing into evidence information stored on social networking sites. At the same time, because of the efficiency of workers’ compensation law and the large discretion vested in its judges, workers’ compensation systems have the potential to be laboratories for new technologies and how they can be used in the resolution of disputes, both inside and outside of workers’ compensation.

Hat tip to Mitchell Rubinstein's Adjunct Law Prof Blog post. [JH]

Unmasking the Ego at Durham

On Friday, Duke Law held a conference, Implementing the Durham Statement: Best Practices for Open Access Law Journals. It was a full house with student law review editors, law librarians, law review advisers, publishers, and others who are interested in open access and legal publishing crammed in a large classroom at Duke. Don't get me wrong, I was quite comfortable and can't complain about access to endless cups of coffee for free. There was a lot covered at the conference, and I don't plan on getting into all of that. If you're curious, you can watch the recordings of Part I and/or Part II. I intend only to point out one (of the few) conclusions reached at the conference.

On November 7, 2008, the library directors from University of Chicago, Columbia University, Cornell University, Duke University, Georgetown University, Harvard University, New York University, Northwestern University, the University of Pennsylvania, Stanford University, the University of Texas, and Yale University met in Durham, North Carolina at the Duke Law School met to draft the Durham Statement on Open Access to Legal Scholarship. It was published on February 11, 2009. The statement had two objectives: (1) to have law schools commit to providing open access to their law journals (2) to end the publication of law journals in print and move to an all digital model. (In my mind, this would make the world shine a little brighter.) My understanding is that there were originally sixteen signatories to the statement, but many more have since signed. (And you can too). Since the publication of the statement, not one law journal which provides readers a copy of their issues in print have stopped their presses. On a practical level, this means nothing to me. I work in an academic law library which does not subscribe to the print publication of a single law journal. We have access to things like Westlaw, Lexis, Heinonline, ProQuest, JStor, and EBSCO Host. If we don't have something, we can get it.

However, on a theoretical level, I am disheartened. I almost always read law journal articles only when I am trying to uncover knowledge of a specific subject matter. Should we have print copies of law reviews, I would not endeavor to roam the shelves and pick a volume at random and start reading. Nor would I make it a habit to regularly read a single title. I don't even read my alma mater's Rutgers Law Journal. While not exclusive, my use of law review articles is done in the course of researching a specific are of law; and I suspect that is the case for most practitioners. When I do search for law review articles, I use online tools such as WEXIS or Hein. In any case, I require only the single article in a digital format – though I prefer PDF as a general rule. I’m not sure that I have ever needed an original print copy of a law journal issue save to show my students and say, "Um, this is what it looks like."

The conclusion reached at Durham as to why most journals are reluctant to move to an all digital open-access format is the fear of losing prestigious authors. The journal editors seem to believe that if they go all-digital, prestigious authors might be view the electronic-only journal to be less prestigious than a journal in print and not want to submit their work to the electronic journal. In turn, they believe that losing prestigious authors would make their journals less prestigious. So the fight is against two egos: (1) the egos of the authors; and (2) the egos of the editors.

I don’t know of any evidence that any author (prestigious or not) would refrain from having their work published in an electronic-only journal. And even if that were so, does it matter? If a journal’s prestige is linked primarily to its impact factor, all a journal needs to do is publish timely, well-researched, well-written articles on issues of importance to courts, practitioners and other academics. Rarely do I include the name of the author in one of my searches. It is subject matter for which I am concerned, and the well-researched, well-written articles make it to my final results (should I need to choose). Assuming, however, that the prestige of authors might actually matter when it comes to impact factor, I think a study is in order. (It can be as easy as polling the authors of article from the top 20 to 30 highest ranked journals in the last few years as to whether the fact of the journal being absent a print medium would matter to them). I submit that I don’t think it would matter to most of them. Right now, however, all we have is editor fear; and, moreover, that fear lies entirely in narcissism. So maybe we have another conclusion, i.e., law review editors are inherently narcissistic.

I’m tending to think that LMU Law Review should publish their first issue in print, and then cease all print publications from there on out, making them the first print law review to go all digital. Of course, that would be hippocritical since we don’t carry print journals in our library. (Which leads us to another question: how much power do libraries have over their schools’ journals – my guess is mostly none).

In the end I can only offer my advice: authors write, editors publish; do us all a favor and save some trees.

Well, I can say one other thing: good conference, Danner. Thanks. (DCW)

 

The Google Book Settlement as Copyright Reform: On Google's possible motivation to settle the Authors Guild lawsuit

Berkeley Law Prof Pamela Samuelson has made her forthcoming Wisconsin Law Review article, The Google Book Settlement as Copyright Reform, available on SSRN. Here's the abstract:

An intriguing way to view the proposed settlement of the copyright litigation over the Google Book Search (GBS) Project is as a mechanism through which to achieve copyright reform that Congress has not yet and may never be willing to do. The settlement would, in effect, give Google a compulsory license to commercialize millions of out-of-print books, including those that are “orphans” (that is, books whose rights holders cannot readily be located), establish a revenue-sharing arrangement as to these books, authorize the creation of an institutional subscription database that would be licensed to libraries and other entities, resolve disputes between authors and publishers over who owns copyrights in electronic versions of their books, provide a safe harbor for Google for any mistakes it might make in good faith as to whether books are in the public domain or in-copyright, and immunize libraries from secondary liability for providing books to Google for GBS, among other things.

This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

[JH]

Protecting Speech Interests of the Fair User from the Imbalanced Legal Landscape that Favors Copyright Holders

By way of following up on Mark Giangrande's When Is eReserves Like Illegal File Sharing? about the on-going litigation in the Northern District of Georgia, Civil Action No. 1:OB-CV-1425-0DE, where three academic publishers (Cambridge, Oxford, and Sage) are suing Georgia State University for copyright infringement because the University places excerpts of their publications on electronic reserve without paying a fee, Arkansas law prof Ned Snow's Untangling Fair Use as a Matter of Law, [SSRN] may be of interest. Snow writes:

Fair use once existed as an issue of fact for the jury, rarely appropriate for courts to decide as a matter of law. During the 1980s, however, courts started to change this classification. Appellate courts started to review fair-use decisions de novo; trial courts started to decide the issue as a pure matter of law on summary judgment. By the 1990s, this treatment was commonplace.

Snow provides a critical case law analysis of the situation and offers the following conclusion:

As an issue of fact, fair use may be decided as a matter of law—but only where doing so serves its speech-protective function. On appeal, courts should defer to a jury finding that favors the fair user. Everything else courts should review de novo. This double standard of review is necessary to protect speech interests of the fair user from the already imbalanced landscape of the law that favors copyright holders. Adequate speech protection requires that both judge and jury have an opportunity to recognize the fairness of a use. For this reason, trial courts should decide fair use on summary judgment only if the ruling would favor the fair user. The proposed double standard of review and one-sided application of summary judgment are necessary to ensure that fair use protects speech.

Hat tip to Media Law Prof Blog. [JH}

Why the Internet Works: "The seeming schism between 'private' and 'common' [ought not be taken] too seriously."

One of the law prof bloggers who was omitted from a recent NLJ special Law School Report supplement titled "A look at professors who have made blogging a mainstream medium" was New York Law School's James Grimmelmann. See LLB's On Unintended Consequences: Tenured Law Profs Who Helped Make Blogging a Mainstream Medium in the Legal Academy. Grimmelmann started writing on the Internet long before any of the featured law profs in the NLJ piece. Why was he omitted? Failure to do homework, no doubt. Grimelmann's current web destination is The Labortorium. Well, what do you expect from the legal press.

Recently he published an article titled The Internet Is a Semicommons, 78 Fordham Law Review 2799 (2010) [bePress] which adds to David Post’s In Search of Jefferson’s Moose: Notes on the State of Cyberspace (2009) and Jonathan Zittrain’s The Future of the Internet and How to Stop (2008) commentary on the Internet. Some may view what he has to same as a much-needed corrective to those works. At the very least, it is a more balanced analysis of the current state of affairs. In that context, Grimmelmann writes:

I’d like to suggest a third reason that the Internet works: it gets the property boundaries right. Specifically, I see the Internet as a particularly striking example of what property theorist Henry Smith has named a semicommons. It mixes private property in individual computers and network links with a commons in the communications that flow through the network. Both private and common uses are essential. Without the private aspects, the Internet would collapse from overuse and abuse; without the common ones, it would be pointlessly barren. But the two together are magical; their combination makes the Internet hum.

Highly recommended. A snip from the article's conclusion:

In the scholarly debates over the significance of the Internet, the private versus common dichotomy looms large. Triumphalists proclaim that the Internet creates new forms of collaboration and that the commons is the way of the future. Skeptics respond that the stability and sustainability of the Internet depend on private ownership. These are the Comedic and Tragic stories, and they animate scholarly controversies in telecommunications, intellectual property, privacy, intermediary regulation, virtual worlds, and almost every other corner of Internet law. In addition to its analytical virtues in explaining why some Internet systems thrive and others fail, semicommons theory also speaks to these debates. It reminds us not to take the seeming schism between “private” and “common” too seriously.

 [JH]

Who Owns Computer-Generated Works That Require No "Human Intervention"

The "usual suspects are: a) the author of program; b) the user of the program; c) the program; and d) none" according to Mark Perry and Thomas Margoni, (University of Western Ontario, Faculty of Law) in From Music Tracks to Google Maps: Who Owns Computer Generated Works? [SSRN] Let's add, maybe it's a joint work when we are talking about output that has been computer-generated without direct “human intervention" beyond a mouse click.

From the authors abstract:

Increasingly the digital content used in everyday life has little or no human intervention in its creation. Typically, when such content is delivered to consumers it comes with attached claims of copyright. However, depending on the jurisdiction, approaches to ownership of computer-generated works vary from legislated to uncertain. In this paper we look at the various approaches taken by the common law, and the legislative approach take in the United Kingdom.

Hat tip to Media Law Prof Blog. {JH]