In an earlier post I asked “since AALL is not changing its name, why does our association need to rebrand?” Perhaps I should have asked “since AALL’s The Economic Value of Law Libraries report failed to quantify in economic terms the ROI of law libraries, why does our association need to rebrand?” The latter question is more to the point than the former because the 2015 report is one of the drivers behind the rebranding initiative. Since the naming debacle, it’s best to view AALL’s rebranding project from that vantage point. You read that report, right? See Jean O’Grady’s review, AALL Releases “The Economic Value of Law Libraries” Report– Long on Rubrics– Short on ROI. She writes:

The bottom line is that AALL and HBR have produced a report that says ‘we couldn’t figure out how to measure your value – we hope you have better luck on your own.’ […] Of course we will all continue to try to hone our own metrics but we expected a report that reached well beyond what we are able to do as individuals. We expected AALL and HBR to do some heavy lifting and instead they have passed the problem back to the members.

With the value problem back in members’ laps, rebranding AALL is moving forward because it is “member driven” according to the February 23rd virtual town hall meeting conducted by AALL’s three presidents, past, present and future. Members, apparently, have asked our association to help us communicate our worth to our employers even though we don’t know how to calculate our economic value in these dollars and cents times. We are not going to preserve our budgets simply by saying “we’re worth it, really we are”. Yet that’s the sort of marketing pablum we are going to get from the rebranding project.

Perhaps we need to redo our homework. By that I mean, redo the ROI report. Why? Because it is doable! Because we are way behind the curve on this one. Our law librarian colleagues down under quantified Australian special libraries’ ROI in 2014. They found that “special libraries have been found to return $5.43 for every $1 invested — and that’s a conservative estimate of their real contribution.” Quoting from Putting a Value on ‘Priceless’ at 3. I’m reluctant to say just use the Aussies’ average benefit cost ratio because their survey covered all sorts of special libraries, not just law libraries.

We’re left with this: for $185,000 AALL will get “messaging” (read marketing pablum), a branding manual, a website refresh, a new logo and a tag line. I’m thinking the tag line should be “We’re worth it, really we are!” – Joe

End Note: Putting a Value on ‘Priceless’ (2014) (h/t to Jean O’Grady) and the Financial Times-SLA report, The Evolving Value of Information Management (2013) are far more informative reads than AALL’s The Economic Value of Law Libraries (2015).

“[S]ubmerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions—putative precedent and not mere evidence of decision-making—that exist only on dockets,” writes Elizabeth McCuskey (Toledo) in Submerged Precedent, 16 Nevada Law Journal ___ 2016 (forthcoming)[SSRN]. Professor McCuskey adds “[s]ubmerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself, not just trial courts’ administration of it.” Here the abstract for this very interesting article:

This article scrutinizes the intensely individual, yet powerfully public nature of precedent, inquiring which decisions are made available for posterity in the body of precedent and which remain solely with their authors and the instant parties. At its broadest level, this article investigates the intricate relationships among precedent, access, and technology in the federal district courts, examining how technology can operationalize precedent doctrine.

Theory and empiricism inform these inquiries. Drawing from a sample of district court decisions on Grable federal question jurisdiction, the study presented here identifies and explores the phenomenon of “submerged precedent” – reasoned opinions hidden on court dockets, and not included in the Westlaw or Lexis databases. The study detailed here found that submergence may obscure as much as 30% of reasoned law on Grable federal questions from the view of conventional research.

This article investigates the structural and institutional forces behind submergence, as well as its doctrinal implications. By effectively insulating some reasoned opinions from future use by judges and practitioners, the phenomenon of submerged precedent threatens to skew substantive law and erode the precedential system’s animating principles of fairness, efficiency, and legitimacy. Most urgently, the existence of submerged precedent suggests that Congress’s mandate for public access to federal precedents in the E-Government Act of 2002 lies unfulfilled in important respects. The application of precedent theory informed by empirical observation suggests a more thoughtful approach to technology and public access to precedent.

— Joe

The recent renaming debacle got me thinking about ways and means to raise rank-and-file member participation for the purpose of improving our association’s transparency and accountability in the conduct of association business by the Executive Board. Some easily doable reforms for increasing association transparency by encouraging direct member involvement could be:

  • Allowing rank-and-file members to participate in Executive Board meetings by asking questions and offering comments;
  • Scheduling the summer Executive Board meeting during the annual conference, not days before it, so rank-and-file members can attend in person;
  • Broadcasting all board meetings with a feedback loop so that members in the audience can ask questions and offer comments and a moderator can contribute selected questions and comments to the Board’s discussion; and
  • Conducting pre-election virtual town hall meetings for nominated candidates standing for election to the Board so that members can solicit answers to questions they have submitted.

Some structural reforms requiring bylaw changes to provide for enhanced association accountability by increasing member participation could be:

  • Restructuring the Executive Board to automatically include the elected chairs of the academic, government and private law libraries SISs as voting members;
  • Replacing the Nominations Committee with a Nominations Caucus open to all interested AALL members; and
  • Including “none of the above” in the ballot for the election of VP-President Elect, Secretary, Treasurer and at-large board members.

Increasing the opportunities for rank-and-file member involvement through a more bottom-up approach to conducting association business as outlined in the above suggestions may motivate more AALL members to become active contributors to our association’s affairs. AALL’s official business would become more relevant, more transparent, and more accountable, if members were more directly engaged in the selection of candidates to national office and in the Executive Board’s conduct of association business. —  Joe

In The new (and much improved) ‘Bluebook’ caught in the copyright cross-hairs (The Volokh Conspiracy), David Post writes that “[w]ar is brewing over the most boring piece of intellectual property imaginable: the ‘Bluebook… .’” At issue is the alpha release of NYU Law professor Christopher Sprigman and Carl Malamud’s open-source Baby Blue’s Manual of Legal Citation (Public.Resource.Org, January 1, 2016). From Baby Blue’s Preface:

It is important to understand, when we are talking about “The Bluebook, A Uniform System of Citation,” that we are talking about two different things. There is a product, a spiral-bound booklet that sells for $38.50, which is accompanied by a rudimentary web site available to purchasers of the product.

Underlying that product, however, is something much more basic and fundamental, a uniform system of citation. Unpaid volunteers from a dozen law schools, under the stewardship of four nonprofit student-run law reviews, have labored mightily to reach a consensus standard for the citation of legal materials. This open consensus standard was developed, with no compensation to the authors, for the greater benefit of the legal system of the United States. By clearly and precisely referring to primary legal materials, we are able to communicate our legal reasoning to others, including pleading a case in the courts, advocating changes in legal policy in our legislatures or law reviews, or simply communicating the law to our fellow citizens so that we may be better informed.

We do not begrudge the Harvard Law Review Association one penny of the revenue from the sale of their spiral-bound book dressed in blue. However, we must not confuse the book with the system. There can be no proprietary claim over knowledge and facts, and there is no intellectual property right in the system and method of our legal machinery. The infrastructure of our legal system is a public utility, and belongs to all of us.

Kathryn Rubino’s Controversy At Harvard Law Over The Bluebook? (ATL) summarizes recent developments. — Joe

End Note: Download Sprigman et anon. al., Baby Blue’s Manual of Legal Citation (Public.Resource.Org, 2016).

Odd isn’t it that there were no dissenting votes on renaming AALL at the Executive Board level. Considering how the vote turned out, one would think there might be some representation of rank-and-file interests on the Executive Board (read some opposition to the proposal). My hunch is that some officers were not initially in favor of the name change but were persuaded by something – the merits of the case, peer pressure, etc. – to vote for the renaming. So the question remains — Whose interests does the Board represent?

AALL remains “top-down,” not “bottom-up” in the handling of association affairs. Sometimes that can’t be helped. Sometimes it can. In the case of the renaming proposition, I think the Board heard loud and clear that members wanted more direct participation before the Board takes any action whatsoever. Will that lesson be institutionalized in the Board-Membership relationship?

What about the rebranding initiative (with its $185,000 price tag)? It sounds like rebranding is moving forward but is rebranding needed now that AALL is not changing its name? I, for one, think rebranding was only necessary if AALL’s name changed; it doesn’t seem necessary after the renaming debacle.

To the best of my knowledge, the rank and file will not vote on whether or not rebranding should proceed. But there is an opportunity for members to express their opinion about rebranding, including the desirability of moving forward. AALL has scheduled a virtual town hall for Tuesday, February 23, from 2:00-3:00 p.m. (CST) “to provide time for further discussion and to answer any questions you may have.” First question: Since our association is not changing its name, why does AALL need to rebrand? — Joe

In The Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford UP, 2016), Richard Susskind and Daniel Susskind predict that our Internet-based society will have little need for teachers, accountants, architects, lawyers, and many other professions (librarians?), who continue to work as they did in the 20th century. The book describes the people and systems that will replace them. From the book’s blurb:

The authors challenge the ‘grand bargain’ — the arrangement that grants various monopolies to today’s professionals. They argue that our current professions are antiquated, opaque and no longer affordable, and that the expertise of their best is enjoyed only by a few. In their place, they propose six new models for producing and distributing expertise in society.

Some food for thought after AALL’s name change debacle. Recommended. — Joe

“LexPredict has developed an algorithm, {MARSHALL}+, that the company says can accurately predict Supreme Court cases. Using their algorithm, they’ve come up with predictions on which cases will be affected [by Justice Scalia’s death]” writes Bob Ambrogi. According to LexPredict, there are 14 cases whose decisions are likely to be impacted. “These changes will result in either reverse to affirm or vice versa switches, or by changing the opinions from precedential to non-precedential.” Details here. — Joe

End Note: On a related note, SCOTUSblog’s Amy Howe examines whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. Read more about it. See also Lyle Denniston’s Is a recess appointment to the Court an option?, also on SCOTUSblog.

From February 11th’s report of 2015 full-year and Q4 earnings results comes the news that TRI’s cash cow, Thomson Reuters Legal, reported an operating profit margin of 29.4% for 2015. That’s one percentage point higher than last year’s results. Propelling this increase is the high-margin legal solutions line of products and services. As US Print continues its death spiral and US Online Legal Information remains stagnant, Solutions grew revenues by 6%. There is reason to believe that the continued growth of Solutions likely will produce an operating profit margin of 30% by the end of 2016. Soon, too, Solutions will represent 50+% of TR Legal’s revenue.  See graphics, below.

During the Great Recession, the Shed West era of collection development brought dramatic change to TRI’s balance sheet. From a high of 33%, TR Legal’s operating profit margin dropped to 26%. TR Legal shifted gears from being a publisher to being a legal solutions vendor that happened to have a large digital inventory of legal information.  That is to say one of our three very expensive suppliers of legal information is coming out of the Great Recession no longer primarily focused on legal publishing.  There will be consequences for the law library community. For one, I doubt many law libraries outside of the private sector participate in the solutions market. — Joe

tri 2015 legal results

tri 2015 pie

In response to a takedown notice issued by Lawriter (dba Casemaker), Fastcase is seeking a declaratory judgement and injunctive relief in US District Court so that it can continue to publish the Georgia Administrative Rules and Regulations for the Company’s 800,000 member subscription base, including, interestingly enough, members of the Georgia state bar. In a nutshell, Fastcase is hoping for a ruling that states that no one can own and publish exclusively public law. Here is the complaint in what may be a landmark case for the Open Law movement. — Joe

Update: Bob Ambrogi reports that Lawriter will not fight Fastcase’s lawsuit.

AALL’s rank-and-file turned out to vote down the Executive Board’s unanimously recommended rebranding of AALL as the Association for Legal Information (ALI). The “I am a law librarian and I work in a law library” argument opposing the initiative apparently resonated with many voters. The vote wasn’t even close:  80% opposed to 20% in favor. By AALL standards, voter turnout was extremely high at almost 60% of the membership, indicative I think of the collective nerve the Executive Board struck with its proposal. Rare indeed it is for the rank-and-file to stand up to be counted in opposition to the Executive Board. This aging and decrepit law librarian cannot remember the last time the membership so forcefully slapped around the Executive Board.

I voted for the name change. It offered the admittedly long-shot chance at presenting additional opportunities for reforming AALL so I wanted to see this recommendation pass. I just wish the Executive Board had brought this issue to the attention of the rank-and-file in a more direct way.

While the Executive Board and HQ staff did a good communications job — emails, enewsletters, videos of Executive Board members, AALL communities, etc., I would have preferred to see the issue also debated at our annual meeting’s members open forum before the Executive Board took any action whatsoever. Had the Executive Board heard the hue and cry calling for adding the word “professionals” to the proposed name, the Association of Legal Information Professionals (ALIP) might have persuaded many of the “I am a law librarian and I work in a law library” voters to accept changing AALL’s name.

I, however,  would have voted against renaming AALL ALIP because this matter should be about what we work with — legal information — and who we work for — private, government and academic sector employers — not about our professional self-identification be that as law librarians or legal information professionals. While I will keep paying my membership dues to Ye Olde AALL, I also would pay membership dues to an Association for Legal Information, if some of the 496 rank-and-file members and Executive Board members who voted for the name change were to take it upon themselves to establish ALI. That, however, seems highly unlikely; I think the carpe diem moment may have passed.  – Joe

NB: AALL has scheduled a virtual town hall for Tuesday, February 23, from 2:00-3:00 p.m. (CST) “to provide time for further discussion and to answer any questions you may have.”

In The State of Legal Research Education; A Survey of First Year Legal Research Programs or ‘Why Johnny and Jane Cannot Research’ [SSRN] Washington and Lee’s Caroline Osborne identifies the following four elements in the ideal design for a basic legal research class:

  1. A required research class of a minimum of two credits taught in the spring semester of the first year (1 credit) and the fall semester of the two-L year (1 credit).
  2. A professor with both a JD and an MLS or MIS, preferably admitted to the bar and possessing some experience in the practice of law or an equivalent level of practical experience.
  3. A grading schema equivalent to that of the first year doctrinal courses.
  4. A curriculum that includes research strategy; the fundamental resources of secondary sources, case research, statutory research and the administrative state; problem-solving; and concepts of efficiency and effectiveness.

Here’s the paper’s abstract:

Dissatisfaction with the research skills of the new associate is an oft-repeated refrain. This article explores the state of research education in the law school curriculum. Questions explored include: whether or not legal research is a required first year class; the number of semester of research instruction; the expertise of the professor; number of credits awarded for legal research, scope of the curriculum and observed challenges. Also considered is the impact of a more vigorous writing focus on research skills education. Survey data collected from the two hundred ranked law schools is used to explore these questions and as the basis for reforming research education.

Recommended. — Joe

Among several other product announcements, Thomson Reuters Legal recently disclosed that it will release in beta the first legal product using Watson’s cognitive computing technologies by year’s end. On Dewey B Strategic, Jean O’Grady writes

Ever since TR announced their collaboration with IBM Watson last October, the legal community has been impatient to learn how this alliance will manifest in a legal product. We still don’t know but TR did promise that they will be the first company for built a legal product using Watson technology. The alliance will combine IBM’s cognitive computing with TR’s deep domain expertise. A panel of executives from TR and Watson revealed that there will be a beta product available by the end of 2016. Their first collaboration will focus on taming the complexities of global financial regulation.

Bob Ambrogi adds “The product will help users untangle the sometimes-confusing web of global legal and regulatory requirements and will be targeted at customers in corporate legal, corporate compliance and law firms. Initially, it will focus on financial services, [Erik Laughlin, managing director, Legal Managed Services and Corporate Segment, and head of the Watson Initiative] suggested, but will also address other domains important to corporations.”

Very interesting. Wouldn’t it be something if TR was prepared to demonstrate how this product will work at AALL ALI AALL in Chicago this year? — Joe

Sarah Glassmeyer has released the results of a survey of state primary law. State Legal Information Census (PDF). Here’s the abstract:

This report presents findings from a survey of state level primary legal information.   Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions).  This survey was done with the goal of reviewing the free and open status of this legal information.

Findings indicate that there exists at least 14 barriers to accessing legal information.  These barriers exist for both the individual user of a resource for personal research as well as a institutional user that would seek to republish or transform the information.   At the time of the census, no state provided barrier-free access to their legal information.

Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources.  Current collections allow for citation retrieval and some basic keyword searching.  No state allows for federated searching of legal information collections.   The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon.   There is also a worrisome lack of archival material maintained by states.  Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.

States were scored and ranked based on the openess of their legal publication practices.  On a scale of 0 – 24, the highest score achieved was 18.  The lowest was 8 and the median was 14.  These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices.

— Joe

Yes, Judge Richard Posner has written another book, Divergent Paths: The Academy and the Judiciary (Harvard UP, Janurary 2016). Here’s the blurb:

Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges―at the risk of intellectual stagnation―to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.

The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.

Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.

— Joe

It’s almost time to vote on the Executive Board’s unanimous recommendation that our association change its name to the Association for Legal Information (or “ally,” not “A”, “L”, “I”). But it is going to take more than mere rebranding (with its $185,000 price tag) to transform AALL into a vital organization for legal information consumers today and into the future. I wonder if we are up to the task of creating a new normal for providing leadership in the field of legal information and information policy.

Will we see a membership drive that reaches out to legal information professionals who work outside of the law library if the name change proposal is accepted by the rank-and-file? Of course, it is hard for many law librarians to justify paying AALL dues. Will non-law librarians working in the legal information field find the cost worth it to join under the big tent to be known as ALI? Non-traditional legal information professionals have been able to join AALL with full membership privileges for a couple of years now with no perceptible growth in membership rolls. While AALL doesn’t need money from new dues-paying members, our association does need to grow a non-traditional legal information membership base to change the negative connotations associated with “libraries” and “librarians.” If we change our name without also expanding our membership base, we will not be able to promote the value of all legal information professionals in any substantive way.

Will we see the rationale for this name change begin being realized with something other than the same old programming typical of most of our previous annual meetings? Hell if I know if AALL is prepared to “make it new.” I doubt an annual meeting programming initiative will happen without an influx of new, non-traditional members who, like the rest of us, are tasked with the professional mission of putting content in context. If we change our name without acquiring experts in the fields of knowledge management, competitive intelligence, legal analytics, search engine engineering and artificial intelligence as ALI members, we will have lost an opportunity to foster the development of the legal information profession.

Will we see a major revision of AALL’s bylaws? To give this rebranding effort teeth to take a bite out of negative, limiting, narrow perceptions about “libraries” and “librarians,” constitutional reform of AALL is needed. That reform, in my opinion, ought not to be put off. A case can be made that the Executive Board’s rebranding initiative should have been postponed until substantive bylaw reforms are made and voted on by the membership. If we change our name without restructuring our association, we will be in no better position to serve a leadership role than we were during the Great Recession; our association needs more than a name change to respond to the forces of change being thrust upon legal information professionals and their employers in the 21st century.

What we do see so far is that AALL has done a good communications job. There are plenty of resources available to members to read more about the proposed name change, including:

End Note: I have no illusions about membership drives, annual meeting programming and bylaw revisions but I will be voting in favor of the name change because of the opportunities it presents. I have not seen an argument opposed to the name change written in the blogosphere but an excellent post in favor can be found here. Voting opens Tuesday, January 12th, and results will be announced on February 11th. – Joe

From the announcement by Rick McKinney (Federal Reserve Board Law Library):

The Legislative Research Special Interest Section of the Law Librarians’ Society of Washington, D.C., Inc. (LLSDC) is pleased to announce a new addition to its Legislative Source Book entitled “Sources for the Congressional Record: Free and Commercial”. The new website contains a list with links to most all online sources for the Congressional Record, free and commercial, with dates of coverage, including the bound Record, the daily edition, the Congressional Record Index, and predecessors to the Congressional Record. Also included are brief notations about search, browse, print, and cite retrieval capabilities of the sources as well information on libraries with paper and microform issues. Finally there are a number of links to aid researchers in understanding the Congressional Record, its history, its volume numbers, and what is or is not included in the pages of the Record.

Visit LLSDC’s Legislative Source Book. — Joe

Prompted by Thomson Reuters Legal’s decision to make Wright & Miller’s Federal Practice and Procedure more selective in describing and analyzing new case developments, Professor Joan Steinman, a co-author of the treatise, has been publishing digital compilations of case descriptions and citations to law review articles that complements the contents of the pocket parts to volumes 14B and C of the Wright & Miller treatise. “The cases described here either are not included at all in the 2015 volume 14B and C Pocket Parts or are cited there for different propositions than are reflected in this electronic publication.” Quoting from the abstract for Removal and Remand — Beyond the Supplements [SSRN, posted July 7, 2015]. See also Removal and Remand — Beyond the Supplements [SSRN, posted March 4, 2014].

This is the first time I’ve noticed something like this happening. Treatise authors confronted by similar WEXIS editorial decisions may want to follow Professor Steinman’s example. Unfortunately, the pocket parts at issue make no mention of Professor Steinman’s digital supplement. A statement could have been placed at the end of the following quotation from the pocket parts’ Preface:

As always, it is essential that the judge or lawyer using the Treatise check the supplementary material in connection with the question in which he or she is interested in order to be fully informed of the current state of the law.

— Joe