“I think it’s safe to say a lot of people are going to be talking about this,” wrote Alfred Brophy about  Konefsy and Sullivan’s forthcoming Buffalo Law Review article. Coming from Brophy, that’s a good enough recommendation for me to “read more about it.”

In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust [SSRN] by Alfred S. Konefsky, SUNY Buffalo Law and Barry Sullivan, Loyola Law – Chicago.

Abstract: This essay seeks to situate the challenges facing legal education within the broader context of professional culture — a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.

In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary.

— Joe

According to a review of “Table 5: AALL Libraries Estimated Information Budgets” published in various online editions of AALL’s Biennial Salary and Organizational Characteristics Survey, the answer appears to be “yes.” AALL institutional membership (by which I mean law libraries, not vendors) declined by 57.5% since 2001.

I seriously doubt that 756 AALL member law firm libraries + 333 AALL member government law libraries + 51 AALL member academic law libraries for a total of 1,140 former AALL member law libraries shut down since 2001. So why such a very large, huge really, decline? That was the first question I had when reviewing the recently pay-walled release of the 2013 edition of The AALL Biennial Salary and Organizational Characteristics Survey this weekend.

And the second question I asked myself this weekend was “can AALL remain sustainable when institutional membership declines from 1,984 to only 844 law libraries in a little over a decade?” My hunch is the answer lies in becoming relevant. — Joe

aall member libraries stats

From the press release:

The Open Data Index is a community-based effort initiated and coordinated by the Open Knowledge Foundation. The Index is compiled using contributions from civil society members and open data practitioners around the world, which are then peer-reviewed and checked by expert open data editors. The Index provides an independent assessment of openness in the following areas: transport timetables; government budget; government spending; election results; company registers; national map; national statistics; legislation; postcodes / ZIP codes; emissions of pollutants.

Countries assessed (in rank order): United Kingdom, United States, Denmark, Norway, Netherlands, Australia, Finland, Sweden, New Zealand, Canada, Iceland, Moldova, Bulgaria, Malta, Italy, France, Austria, Portugal, Slovenia, Switzerland, Israel, Czech Republic, Spain, Ireland, Greece, Croatia, Isle Of Man, Japan, Serbia, Russian Federation, Ecuador, South Korea, Poland, Taiwan R.O.C., China, Indonesia, Hungary, Brazil, Germany, Mexico, Jersey, Guernsey, Slovak Republic, Bermuda, Romania, Costa Rica, Bangladesh, Tunisia, Singapore, Lithuania, South Africa, Cayman Islands, Egypt, Nepal, Senegal, Saudi Arabia, Nigeria, Gibraltar, Belgium, Hong Kong, Barbados, Bahamas, India, Bahrain, Yemen, Burkina Faso, Kenya, British Virgin Is., Saint Kitts & Nevis, Cyprus.

Full results of Open Knowledge Foundation’s assessment and graphs of the data. — Joe

It’s that time of the year for not being able to vote for “none of the above” in AALL’s E-board elections. But there may be a candidate or two to vote for after viewing their biographies and campaign statements, assuming you haven’t already turned in your AALL membership “card.”

The polls open today; “may I have the envelope please.”

Vice President/President-Elect:

  • Carol Bredemeyer, Assistant Director for Faculty Services, Salmon P. Chase College of Law Library, Northern Kentucky University
  • Keith Ann Stiverson, Director of the Law Library and Senior Lecturer, IIT Chicago-Kent College of Law

Secretary:

  • Katherine K. Coolidge, Law Librarian, Bulkley, Richardson and Gelinas, LLP
  • Sarah K.C. Mauldin, Director of Library Services, Smith, Gambrell & Russell, LLP

Executive Board Member (vote for two):

  • John W. Adkins, Director of Libraries, San Diego Law Library
  • Miriam D. Childs, Associate Director/Head of Technical Services, Law Library of Louisiana
  • Tina Dumas, Reference Librarian, Nixon Peabody LLP
  • Donna Nixon, Electronic Resources Librarian & Clinical Assistant Professor of Law, Kathrine R. Everett Law Library, University of North Carolina at Chapel Hill

Joe

Hat tip to Slaw’s Monday’s Mix for information about the following University of Ottawa Press book.

The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, Edited by Michael Geist.

Description

In the summer of 2012, the Supreme Court of Canada issued rulings on five copyright cases in a single day. The cases represent a seismic shift in Canadian copyright law, with the Court providing an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights, while emphasizing the need for a technology neutral approach to copyright law.

The Court’s decisions, which were quickly dubbed the “copyright pentalogy,” included no fees for song previews on services such as iTunes, no additional payment for music included in downloaded video games, and that copying materials for instructional purposes may qualify as fair dealing. The Canadian copyright community soon looked beyond the cases and their litigants and began to debate the larger implications of the decisions. Several issues quickly emerged.

This book represents an effort by some of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. The diversity of contributors ensures an equally diverse view on these five cases, contributions are grouped into five parts. Part 1 features three chapters on the standard of review in the courts. Part 2 examines the fair dealing implications of the copyright pentalogy, with five chapters on the evolution of fair dealing and its likely interpretation in the years ahead. Part 3 contains two chapters on technological neutrality, which the Court established as a foundational principle of copyright law. The scope of copyright is assessed in Part 4 with two chapters that canvas the exclusive rights under the copyright and the establishment of new “right” associated with user-generated content. Part 5 features two chapters on copyright collective management and its future in the aftermath of the Court’s decisions.

This volume represents the first comprehensive scholarly analysis of the five rulings. Edited by Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, the volume includes contributions from experts across Canada. This indispensable volume identifies the key aspects of the Court’s decisions and considers the implications for the future of copyright law in Canada.

You can download the complete book as an open access PDF from the above link. — Joe

No or not until computers can generate a document that meets the reader’s needs and expectations according to Syracuse Law prof Ian Gallacher in his essay, Do RoboMemos Dream Of Electric Nouns?: A Search For The Soul Of Legal Writing [bepress]. Here’s the abstract:

This essay considers the possibility that computers might soon be capable of writing many of the documents lawyers typically write, and considers what qualities of writing are uniquely human and whether those qualities are sufficient to render human written work superior to computer generated work.

After noting that despite the claims of rhetoricians and narrative theorists, not all legal writing is persuasive writing, and that it is in the non-persuasive area of prosaic, functional documents that computer generated documents might gain a bridgehead into the legal market, the essay tracks the development of computer-generated written work, particularly in the areas of sports journalism and corporate reporting. The essay notes that the templates developed to generate these documents can be customized to produce the tone desired by the customer, meaning that both rhetoric and narrative have been captured and transformed into tools that can be manipulated by computer programmers. This in turn means that computer generated documents will not be devoid of rhetorical or narrative interest, making the programs that develop them potentially appealing for lawyers even if they seek to use them to draft persuasive as well as more functional documents.

What these programs will lack, however, is empathy — the ability to anticipate what information a reader will need from a document, and when the reader will need it, and to draft a document that meets the reader’s needs and expectations. An empathetic human writer knows when to follow and when to break the genre expectations of a document and can send powerfully persuasive messages to a reader by use of that knowledge.

The essay concludes that empathy is a crucial, and uniquely human, aspect of persuasive writing and that an empathetically-aware written document should be superior to a technically accurate but non-empathetic computer generated document.

Joe

— in order to begin to address domestic concerns that laws are being implemented in ways beyond what was thought allowable and to rebuild faith with our international partners?

I guess we will have to wait ‘n see. Quoting from OpenGovernment.org’s Oct. 29, 2013 newsletter article, “US to Outline New Commitment​s at the Open Government Partnershi​p Summit”:

Later this week the Obama Administration is scheduled to announce the US’ new round of commitments to make the government more open and accountable during the meeting of the Open Government Partnership in London. Due in part to complications created by the government shutdown, the US will not be unveiling its full action plan (the full plan will be released in early December), but US officials will be presenting an outline of what they consider to be ambitious commitments. The commitments that will be discussed during the meeting are expected to be related to modernizing the Freedom of Information Act (FOIA), spending transparency, and open data.

A recent letter coordinated by OpenTheGovernment.org and signed by 45 organizations that work on a variety of issues urged the President to take advantage of the Summit’s international stage to commit to curbing secret law. As regular readers know, secret interpretations of the law have been at the heart of recent controversies ranging from opinions by the Justice Department’s Office of Legal Counsel memo authorizing interrogation techniques that many say equate to torture to opinions by the Foreign Intelligence Surveillance Court (FISC) that allowed for massive expansion of the National Security Administration’s surveillance programs. The most recent revelations regarding surveillance have raised serious concerns about what the government is doing in our name and the extent of violations of American’s privacy and civil liberties, and critical questions about whether the US’s programs breach international law. We intend to continue to raise these issues with the Obama Administration, and push for concrete commitments.

The embedded link in the above quote sends one to the press release for the Oct. 21, 2013 open letter. Here’s the list of signatories:

  1. American Booksellers Foundation for Free Expression
  2. American Civil Liberties Union
  3. American Library Association
  4. American Society of News Editors
  5. Arab American Institute
  6. ARTICLE 19
  7. Bill of Rights Defense Committee
  8. Brechner Center for Freedom of Information
  9. Californians Aware
  10. Center for Democracy and Technology
  11. Center for Effective Government
  12. Center for Media and Democracy
  13. Citizens for Responsibility and Ethics in Washington – CREW
  14. The Constitution Project
  15. Council on American-Islamic Relations – CAIR
  16. Electronic Frontier Foundation
  17. Electronic Privacy Information Center – EPIC
  18. Essential Information
  19. Federation of American Scientists
  20. First Amendment Foundation
  21. Government Accountability Project – GAP
  22. Human Right Watch
  23. iSolon.org
  24. James Madison Project
  25. Just Foreign Policy
  26. Liberty Coalition
  27. National Coalition Against Censorship
  28. National Freedom of Information Coalition
  29. National Security Archive
  30. No More Guantanamos
  31. OpenTheGovernment.org
  32. PolitiHacks
  33. Project On Government Oversight – POGO
  34. Public Citizen
  35. Public Knowledge
  36. Reporters Committee for Freedom of the Press
  37. Reporters Without Borders
  38. Society of Professional Journalists
  39. Sunlight Foundation
  40. Tully Center for Free Speech at Syracuse University
  41. Understanding Government
  42. Vermont Coalition for Open Government
  43. Vermont Press Association
  44. Washington Civil Rights Council
  45. Win Without War

Yup, AALL is not a signatory. — Joe

Patrick M. Ellis, a 3L who is an associate editor of the Michigan State Law Review, decided to find out. Here’s the abstract for his working draft of 140 Characters or Less: An Experiment in Legal Research [SSRN]:

In 1995, Robert Ambrogi, former columnist for Legal Technology News, wrote about the Internet’s potential to revolutionize the accessibility and delivery of legal information. Almost 20 years later, Ambrogi now describes his initial optimism as a “pipe dream.” Perhaps one of the greatest problems facing the legal industry today is the sheer inaccessibility of legal information. Not only does this inaccessibility prevent millions of Americans from obtaining reliable legal information, but it also prevents many attorneys from adequately providing legal services to their clients. Whether locked behind government paywalls or corporate cash registers, legal information is simply not efficiently and affordably attainable through traditional means.

There may, however, be an answer. Although the legal industry appears to just be warming up to social media for marketing purposes, social media platforms, like Twitter, may have the untapped potential to help solve the accessibility problem. This Note attempts to prove that assertion by showing an iteration of social media’s potential alternative use, as an effective and free information sharing mechanism for legal professionals and the communities and clients they serve.

Generally speaking, law review editors and other academicians demand that authors support every claim with a citation, or, at the very least, require extensive research to support claims or theses. This Note seeks to fulfill this requirement, with a variation on conventional legal scholarship. Almost all of the sources in this Note were obtained via Twitter. Thus, this somewhat experimental piece should demonstrate social media’s potential as an emerging and legitimate source of legal information. By perceiving and using social media as something more than a marketing tool, lawyers, law schools, and, most importantly, clients, may be able to tap into a more diverse and more accessible well of information. This redistribution of information accessibility may not only solve some of the problems facing the legal industry, but also has the capability to improve society at large.

Hat tip to Bob Ambrogi’s LawSites post. — Joe

For history of US legal education buffs, Yale Law School Library’s Document Collection Center has launched a wonderful resource, Litchfield Law School Sources.

This resource brings together text, images, interpretive material and bibliography about Litchfield Law School and the law notebooks kept by its students.  During the school’s years of operation, 1774 to 1833, nearly 1,000 young men traveled to Litchfield to study with Tapping Reeve, the founder, and James Gould, his assistant and sole proprietor after Reeve’s death. More than 270 notebooks have survived, representing the efforts of 90 students as they recorded law lectures delivered by their teachers and copied charts and essays on particular points of  law. At a time when the usual method of legal training in this country was an apprenticeship with a solo practioner, these notebooks are evidence of the beginning of professional legal education, based on a comprehensive curriculum which relied heavily on the content and structure of  William Blackstone’s Commentaries on the Laws of England.

Why did so many of the best and the brightest sons from elite families attend Litchfield? For the answer comb through the provided resources. See, for example, Composite Curriculum at Litchfield Law School based on lectures of Tapping Reeve, 1790-1798.

Hat tip to Dan Ernst’s Legal History Blog post. — Joe

A new gold rush has come to California, with the state’s massive legal system open for mining as courts and lawyers move to new technology. Investor Warren Buffett’s right hand man has joined in the race along with enormous software and publishing companies from around the nation. “It’s truly the wild west here in California,” said an industry insider, “a land grab.”

They are scrambling for a mother lode of multi-million-dollar contracts for software and licensing, vast additional sums for upkeep, and the right to set up a toll booth on Court Road for 38 million people. — Maria Dinzeo, Courthouse News Service

Why? Dinzeo explains that “the rush of deal-making follows the collapse of a half-billion-dollar, ten-year state project to develop a Court Case Management System for all California’s 58 trial courts. Widely savaged by judges as a ‘fiasco” and a “boondoggle,’ the software developed by Deloitte Consulting was abandoned last year.” For much more see Tech Gold Rush Strikes CA Courts. — Joe

Sounds like New England Law School administration has found a novel hardball way to downsize faculty ranks. The title of Blog Emperor Caron’s post explains the School’s plans in a nutshell: New England Law Faculty Face 8-Course Teaching Loads, Mandatory Office Presence (M-F, 9-5) Unless 35% Accept Buyouts. Yikes, that sounds like the four letter word most feared in the legal academy — W O R K. Apparently tenured and junior profs targeted for buyouts will have to work such grueling hours if they do not accept the buyouts being offered before start of the 2014 academic year.

Hat tip to Brian Leiter’s Law School Reports. — Joe

Hat tip to DigitalKoans for calling attention to Jingfeng Xia’s The Open Access Divide, Publications 2013, 1(3), 113-139; doi:10.3390/publications1030113. Here’s the abstract:

This paper is an attempt to review various aspects of the open access divide regarding the difference between those academics who support free sharing of data and scholarly output and those academics who do not. It provides a structured description by adopting the Ws doctrines emphasizing such questions as who, what, when, where and why for information-gathering. Using measurable variables to define a common expression of the open access divide, this study collects aggregated data from existing open access as well as non-open access publications including journal articles and extensive reports. The definition of the open access divide is integrated into the discussion of scholarship on a larger scale.

— Joe