Author Archives: Mark Giangrande

Hello I Must Be Going

I’ve been at DePaul since 1999 and in Law Libraries generally since I was a circulation assistant at the Chicago-Kent College of Law in 1976.  That’s been around 41 years in the biz.  That’s a long time no matter how one slices it.

I will be retiring from DePaul at the end of June.  I look forward to sitting on my couch with my cats while watching cartoons all day long.  I may even pop up here a little bit more because of all the free time I’ll have.  We’ll see.  I’d like to thank everyone I’ve worked with in the profession.  It’s been fun.

Mark

Friday Fun: Scooby-Doo In The Red Room

There is a lot of buzz going on in the press because Twin Peaks is coming back on the air.  I wonder how many people know that Scooby-Doo and the gang visited the Red Room in one of the episodes of Scooby-Doo:Mystery Incorporated?  The clip below features not only the dancing man but a healthy dose of Ancient Aliens and some conspiracy theory.  What can I say but Nibiru.  Who thinks up this stuff?

Mark

Book Review: Unwanted Advances: Sexual Paranoia Comes to Campus by Laura Kipnis

I like this book.  It has everything: sex, casual hookups, relationships, recriminations, jealousy, careers cut short, and much, much more.  That’s just the backdrop.  The real focus is what happens when any or all of these things go wrong and someone files a Title IX complaint.  Title IX protects people based on sex in educational programs or activities that receive Federal financial assistance.  It also prohibits harassment or retaliation for filing a Title IX complaint.  This is a powerful weapon.  The prevailing understanding is that men are predators and women are victims.  Add a distinct lack of due process in the investigation of a claim and one wonders why anyone would even say hello to another person on campus for fear of having charges filed against them.  I’m not kidding—much.

Kipnis uses the case of former Northwestern faculty member Peter Ludlow as a prime example.  Ludlow was a prominent academic in the Philosophy Department who dated a student.  She was not one of Ludlow’s students and not someone who would necessarily be affected by Ludlow’s status for good or ill any more than if they never met.  Nonetheless, they dated.  Kipnis notes that the relationship was not prohibited by any campus codes in effect at the time.  The relationship ran its course and that was the end of that until the student filed a Title IX charge that they had non-consensual sex.  Ludlow denied the claim and it was investigated.

It’s here that we discover that the Title IX investigator has immense discretion in characterizing the various claims with a decision based on “preponderance of the evidence” standard.  We also discover that the investigation process does not even remotely resemble fairness in that the object of the charges cannot bring a lawyer to the proceedings, can’t examine the evidence, and doesn’t know the details of the charges until after the decision is rendered.  The proceedings in Ludlow’s case a painful to read for those who are trained in legal process.  A judge would never tolerate this in a courtroom.

We discover other details.  The “victim” of these sexual liaisons might be coached by another faculty member.  There are examples in the book where a faculty member has encouraged someone to bring charges against a rival member apparently for malicious reasons.  There were some elements of this suggested in the Ludlow case.

Kipnis describes one case that shows just how out of touch Title IX can be with fundamental due process.  She describes how one female student brought charges against a male student two years after the alleged act was committed.  This happened (apparently) because the complaining student’s boyfriend had found out about her other relationship and she was trying to save face.  The result was that she destroyed the academic career of the other student.

Now, I don’t want to suggest, nor do I believe that Kipnis is suggesting, that men cannot be predators.  She does suggest, however, that women who are over the age of consent and are not so compromised by the “power” of their partner or a campus code of conduct that they cannot make decisions as to whom they can engage in sexual relations.  That is to say that women have sexual agency.  Not every case that falls within a Title IX investigation is automatically a case of predation despite the nature of the Title IX process.

Kipnis said as much in a 2015 essay in the Chronicle of Higher Education called Sexual Paranoia Strikes Academe (premium content).  That essay, in fact, subjected Kipnis to her own Title IX investigation which lasted some 76 days before being closed in her favor.  She describes the case against her in one of the book’s chapter.

Kipnis is a bit of a lightning rod when it comes to ideas about sexuality.  Conor Friedersdorf wrote an article in The Atlantic recently about an attempt at Wellesley to ban her from campus because she might spread ideas that would cause “damage” or “injury.”  I guess that this book might cause the proponents of the ban an apoplectic fit if it became part of the library collection there.  I highly recommend the book.  The ideas are fresh and worth considering.

HarperCollins provided a copy of the book for review.

Mark

Books Are Violent

Everybody knows that I like cartoons.  Here is an excerpt from The Amazing World Of Gumball that urges people to read books.  I think it’s a great  Friday Fun.  Enjoy.

Mark

Justice Scalia

The fact that Justice Scalia passed away over the weekend from natural causes is, of course, all over the news.  There are any number of articles speculating on how nominating a successor would affect the coming presidential election; who are the potential nominees; how this changes the ideological make-up of the Court, and so one.  All are worthy questions for speculation.  I’d like to highlight what this event means for coming decisions.  The Court has had a certain stability despite the two appointments resulting in the confirmation of Justices Sotomayor and Kagan.  As a side note on that, check out the CNN story by David Axelrod where Justice Scalia quietly expressed a preference for Elena Kagan to replace Justice Souter.  He got his wish when Justice Stevens retired.

Court watchers were always interested in Justice Scalia’s questions in oral argument given the Court’s ideological split, mostly 4-4 with Justice Kennedy in the middle.  While he was identified as a conservative, he didn’t always side with a conservative point of view.  I remember that he was fairly protective of the Fourth Amendment (See U.S. v. Jones, 132 S. Ct. 945 (2012) as an example) when the trend in Federal Courts seemed to find plenty of exceptions in its prohibitions).  Justice Scalia’s questions were as much a clue to his influence on the resulting decision as it was a bit of theater.  He certainly seemed to enjoy the intellectual banter with those presenting arguments.  CNN has another article listing six cases the site highlights as more significant cases than others.  How the Court will handle these and other issues will send Court watchers back to re-analyze the arguments.

The cases that concerns me is the potential appeal of the Google Books case and the Apple antitrust case, both affirmed by the Second Circuit.  The Authors Guild has filed a petition for cert which is pending.  Apple has yet to file its petition but has indicated that it intends to do so.  Justice Scalia will not be a participant in the case whether the Court accepts the cases or hears them.  These cases may stand if the Court splits 4-4 on the issues.  If it makes any difference, Justice Scalia joined Justice Ginsburg’s dissent in the Kirtsaeng v. John Wiley & Sons, Inc. first sale doctrine case.

I have a minor personal story about Justice Scalia.  He came to DePaul several years ago and spoke to the faculty in our Rare Book Room.  Security was exceptionally tight.  I believe it was the first time ever I had to show multiple IDs just to get into the building.  I was sitting at the Reference Desk when the Justice was shuttled up to his engagement via the service elevator.  That was less than 100 feet from where I was sitting.  That is effectively the closest I will likely get to a member of the Court.  It was amusing to have security watch me while I answered the occasional reference question.

I have written pointed things about Justice Scalia in the past.  I’ll remember him as the Justice who rejected legislative history in all possible forms as a vehicle for interpreting statutes.  He did not join all of Justice Ginsburg’s dissent in Kirtsaeng.  He skipped every section that mentioned legislative history, even if appearing only in a footnote.  His attention to original intent had him questioning whether the King could hide a sentry in a coach as an analogy to whether the government could place a tracker on a defendant’s car in some circumstances.  That’s from the Jones case mentioned above.

Goodbye Justice Scalia.  You were larger than life on the Court.  While you will be replaced, there will never be a Justice exactly like you.

Mark

Eighth Annual Morris L. Cohen Student Essay Competition Opportunity

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Cengage Learning, announces the Eighth 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.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses to attend the AALL Annual Meeting.

The entry form and instructions are available at the LH&RB website: http://www.aallnet.org/sections/lhrb/awards Entries must be submitted by 11:59 p.m.,April 18, 2016 (EST).

AALL via Mark.

What The [Bad Word] Is This Supposed Be?

I was helping a cite checker with Pennsylvania Consolidated Statutes when I came across this free site called WestlawNext State Government Sites.  I’m not sure what TR is trying to do with this as FindLaw still exists.  The collection features a small but haphazard collection of primary and quasi-primary materials from what I would describe as all over the place.  The limited number of states represented are far from comprehensive.  The materials presented are just as puzzling.  Each collection has different ways to conduct searches.  Take a look.  Anybody with reactions please let me know.

Mark

Some Thoughts on Thinking Like A Lawyer

What does it mean to “think like a lawyer?”  For all the years I’ve worked in legal education (about 40) I admit I haven’t thought about the phrase much.  I have cups from Lexis with the phrase embossed on them.  But the phrase keeps coming home to me from time to time beyond promotional materials.  I encountered it when I had some unfortunate experience with my home plumbing during the Christmas break.  My kitchen sink backed up on Christmas morning.  That led to a series of events that started with drain cleaner and ended with cracked pipes and water leaking into my basement.  Ugh.

The clog was still intact on the Tuesday after Christmas when two plumbers arrived to remedy the situation. I had bailed the sink more than a few times between Christmas and then.  We put a little water in the sink and it started to pool in the drain.  One of the plumbers asked me what chemicals were in the water.  I said there shouldn’t be in there by now.  He replied that the boiling had to be caused by something.  There was almost imperceptible bubbling in the drain water.  I explained that early on in this adventure a friend of mine and I used drain cleaner at first.  I said almost automatically that I needed to “disclose” that to him.  We then had a short conversation about legal duty, though he wasn’t concerned about that.  I continued that law school does that to people.  I could not think of the condition of the sink without considering the legalities.  I told him at this point it was hard not to because of the perspective legal training creates.

I remember talking to a student last semester.  He had been working at a firm specializing in family relations, particularly those that are strained.  He was only half way through the curriculum and started to view the relationships in his family through a legal perspective.  I told him not to fight it.  That’s what law school does.  That’s thinking like a lawyer.  It’s not that his relatives would be potential clients as much as legal training puts that overlay on life.  It’s either sad or it means law school did what it was supposed to, or both.  I admit, sometimes I watch Tom and Jerry cartoons and count up the civil causes of action both have against each other.  Sad, I know.

Anyway, that’s it.  You know you think like a lawyer when legal rules play a part, not necessarily the only part, of everyday perspective.  In my plumber’s situation, it’s duty to warn or make safe.  Since I couldn’t make the chemicals in the water safe, I had to warn.  I don’t want a lawsuit after all.

 

Mark

Nebraska Courts To Drop Printed Opinions

From the Press Release:

Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.

Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.

Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.

Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.

Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.

Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access.  Hat Tip to Rich Leiter for the news.

Mark

Supreme Court Action: Habeas Corpus and Apply the Federal Arbitration Act to State Proceedings

The Supreme Court issued two opinions this morning.  The first is a habeas corpus case where the underlying issue is where a juror was struck for cause due to ambiguous statements made about applying the death penalty during the voir dire.  That case is White v. Wheeler (14-1372).  Wheeler was convicted of two murders and sentenced to death in Kentucky.  One juror, identified as Juror 638, responded to questions about his ability to impose the death as a sentencing option with answers that went back and forth.  The opinion describes these statements:

In response to the judge’s questions about his personal beliefs on the death penalty, Juror 638 said, “I’m not sure that I have formed an opinion one way or the other. I believe there are arguments on both sides of the—of it.” App. to Pet. for Cert. 126a. When asked by the prosecution about his ability to consider all available penalties, Juror 638 noted he had “never been confronted with that situation in a, in a real-life sense of having to make that kind of determination.” Id., at 131a. “So it’s difficult for me,” he explained, “to judge how I would I guess act, uh.” Ibid. The prosecution sought to clarify Juror 638’s answer, asking if the juror meant he was “not absolutely certain whether [he] could realistically consider” the death penalty. Id., at 132a. Juror 638 replied, “I think that would be the most accurate way I could answer your question.” Ibid. During defense counsel’s examination, Juror 638 described himself as “a bit more contemplative on the issue of taking a life and, uh, whether or not we have the right to take that life.” Id., at 133a. Later, however, he expressed his belief that he could consider all the penalty options. Id., at 134a.

The judge considered the prosecution’s motion to strike and, after reviewing the juror’s statements, granted the motion.  The Kentucky Supreme Court upheld Wheeler’s conviction and sentence on direct appeal.  Wheeler filed a habeas corpus petition in federal court.  The District Court dismissed but the Sixth Circuit reversed and granted the petition.

The Supreme Court reversed.  It emphasized the deferential approach to state courts required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unless the decision was contrary to federal law as decided by the Supreme Court.  The Court reviewed its precedents and concluded that under the deference requirement the Sixth Circuit erred in granting the petition.  The Court issued the opinion per curiam.  There were no dissents.

The second case involved the application of the Federal Arbitration Act (FAA) as controlling over state law.  Readers may remember that the Court enforced an arbitration clause in AT&T Mobility LLC v. Concepcion, 563 U. S. 333, awhile back.  That case came out of federal court where the Ninth Circuit enforced precedent (the Discover Bank case) that made waivers of class action suits unenforceable. The Court instead said the FAA preempted state law to the contrary and enforced the arbitration clause.

The present case, DIRECTV, INC. v.  Imburgia (14-462), concerns a variation of the Concepcion holding.  DIRECTV was sued in state court by individuals believing early termination fees violated California law.  The arbitration clause included in DIRECTV contracts limited dispute resolution to arbitration with a provision that waived class arbitration.  There was another provision stating that if “law of your state” makes the class arbitration waiver unenforceable then the entire arbitration clause was void.  The California trial court denied a request to send the matter to binding arbitration.  The California Court of Appeals agreed citing Discover Bank.

The Supreme Court essentially ruled that “law of your state” did not include state law that was invalid under federal law.  The Court cited multiple reasons for this conclusion, reasoning that in other circumstances courts would not rely on invalid state law in making decisions.   The “law” in this case includes the ruling in Concepcion which nullified the application of Discover Bank.  The Court made it pretty clear that there was no way of getting around the Concepcion ruling.  Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan.  Justice Thomas filed a dissenting opinion.  Justice Ginsburg filed a dissenting opinion and was joined by Justice Sotomayor.  Justice Thomas believes that the FAA does not apply to proceedings in state court.  Justice Ginsburg would read the entire contract as benefitting the consumer rather than corporate drafters.  He expresses similar views as to Justice Thomas but with a little more depth.

Mark

Supreme Court Action: Convening Three-Judge Panels in Gerrymandering Cases

The Supreme Court issued one opinion this morning.  The case is Shapiro v. McManus (14-990).  Petitioners in this case challenged the constitutionality of Maryland’s congressional apportionment map under First Amendment/Freedom of Associations grounds.  They gave the District Judge a petition to convene a three-judge court to hear the matter.  28 U.S.C. §2284(a) states that when this type of lawsuit is filed and the judge is presented with a petition a three-judge court to hear the matter, the judge shall notify the chief judge of the Circuit who shall designate two other judges to serve on the panel.

The statute contains one qualification: “unless he determines that three judges are not required.”  The District Judge in this case decided that three judges were not required as he did not believe any relief was available to the petitioners in that they were free to join with others to express a political opinion.  Rather than notifying the Chief Judge, he dismissed the case.  The Fourth Circuit affirmed in an unpublished opinion.

The Supreme Court reversed.  The Court stated that the statute is written in mandatory terms.  The only discretion the Judge has when presented with a petition for a three-judge panel is analyzing whether the parties properly belong in federal court, not whether the plaintiff’s case has any merit.  The petitioner’s claims clears the bar for jurisdiction.  The petitioner’s claims may or may not have merit, but they are entitled to a hearing before a three-judge court under the statute.  Justice Scalia delivered the opinion for a unanimous Court.

Mark

It’s Pearl Harbor Day – New Text And Audio Collections at the FDR Presidential Library

Here’s a bit of news that archivists and historians may find useful on this anniversary of Pearl Harbor and the entry of the United States into World War II.  The Franklin Roosevelt Presidential Library has placed some 46,000 pages of speeches in draft, transcript, and final form online.  This collection is accompanied by another which comprises the complete audio recordings available of those speeches.  The site describes the collection:

The FDR Library, with support from AT&T, Marist College and the Roosevelt Institute launches online one of its most in-demand archival collections – FDR’s Master Speech File – over 46,000 pages of drafts, reading copies, and transcripts created throughout FDR’s political career. Presented alongside the Speech File is the Library’s complete digital collection of Recorded Speeches of FDR.

The earliest recording is dated 1920.  That’s pretty amazing given the state of recording technology in that era.  It’s more amazing that it can be downloaded in the ubiquitous MP3 format.  It’s that casual.

I’ve visited this site plenty of times in the past.  There is a wonderful collection of public domain photographs that document the Great Depression, the New Deal, and World War II.  There is some amazing stuff in these collections.  Speaking of Pearl Harbor, scroll halfway down this page for digitized research materials relating to Franklin Roosevelt and the Day of Infamy.

23-0132M

The original caption reads: “USS West Virginia and USS Tennessee after attack on Pearl Harbor, December 7, 1941.”  Archivist note:  USS West Virginia, BB-48, sinking after being hit with seven torpedoes and two armor-piercing bombs.  Along side is USS Tennesse, BB-43, after being hit with two bombs and being damaged by the explosion of the USS Arizona.  In the foreground are yard patrol craft which appear to be assisting in damage control and rescue operations.

Mark

Supreme Court Action: Suits Against Foreign Entities and the FSIA

The Supreme Court issued one opinion this morning.  The case is OBB Personenverkehr v. Sachs (13-1067).   The case involves a gruesome and unfortunate accident that befell Sachs as she attempted to board a train in Innsbruck, Austria. She fell on the tracks and before she could recover a moving train crushed her legs necessitating the amputation of both above the knee.  The train was operated by OBB which the parties agree is an instrumentality of Austria.  Sachs sued OBB in the Northern District of California for her injuries and alleged that jurisdiction was proper under the commercial activities exception of the Foreign Sovereign Immunities Act.  One month before her accident she purchased a Eurail pass via the Internet from The Rail Pass Experts, a Massachusetts-based travel agent.  This was the only activity related to OBB that took place in the United States.

Sachs made five claims:

Sachs sued OBB in the United States District Court for the Northern District of California, asserting five causes of action: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those design defects; (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses; and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses.

The District Court dismissed the case stating that her claims did not fall within the commercial exception located at 28 U.S.C. §1605(a)(2).  A divided panel of the Ninth Circuit affirmed.  A rehearing en banc reversed the divided panel and said the sale of the ticket fell within the exception.  The Supreme Court reversed concluding that the sale of the ticket in the United States was too remote from the elements of Sachs’ claims to fall within the exception.

The Court’s analysis turned on whether the commercial activity was directly related to injuries she claimed in her complaint.  The Court said there was nothing wrongful about the sale of the ticket that could be the basis of a suit that survives the FSIA.  Otherwise, the Court stated, many more suits could be filed against sovereigns using creative pleading.  The Court rejected other arguments as well as they were raised for the first time in the Supreme Court hearing.  Chief Justice Roberts delivered the opinion for a unanimous Court.

Mark

Legal Analytics, A Legal Writing Conference, and Bats Turn Into Turkeys

Yes, it’s been a while.  Between the ever present health issues and building and teaching a set of lesson plans on legal research to our first year students, it’s been tough to get back to the blog.  Well, the teaching part is essentially over until the first week of classes in January.  Let me catch up with a few things, a couple of business and one essentially fun.

The first business item is the announcement I received recently noting that Lexis has purchased Lex Machina:

Today LexisNexis announced that it has acquired Silicon Valley-based Lex Machina, creators of the award-winning Legal Analytics platform that helps law firms and companies excel in the business and practice of law.

A look into the near future. The integration of Lex Machina Legal Analytics with the deep collection of LexisNexis content and technology will unleash the creation of new, innovative solutions to help predict the results of legal strategies for all areas of the law.

With its acquisition, Lex Machina becomes part of the ongoing LexisNexis commitment to offer modern, next-generation solutions that help legal professionals work more efficiently, make better-informed decisions and drive success for their clients, practice and business.

The acquisition is described as a “prominent and fresh example of how a major player in legal technology and publishing is investing in analytics capabilities.”  I can understand that.  As we grew up with Lexis and Westlaw we were taught (or taught) the utility of field searching.  The available information in a document allowed us to search particular judges or attorneys to do our own analysis of their involvement with topics and issues.  We have the ability today to make more detailed analyses.

Expert witness reports are where Lexis and Westlaw mostly provide background information and the track record of particular witnesses.  Both companies offer comprehensive details because there is quite a market for experts in litigation.  Lex Machina is identified with analytics associated with copyright and a few other forms of intellectual property.  I can imagine Lexis and Westlaw expanding analytics for other litigation prone subjects such as medical malpractice and products liability.  I can see this as a new area of competition between the major research databases.

The second business item is a one day conference at Ohio State University:

OSU reference librarian Ingrid Mattson is co-chairing a great one-day conference for the Legal Writing Institute.  I’m sharing the announcement just in case you’d like to attend.  There are several presentations by ORALL members.

Join us in Columbus, Ohio, on December 11 for our one-day workshop, “Collaboration In and Out of the Legal Writing Classroom.” Topics include collaborating with legal writing colleagues for successful scholarship; students working together in the classroom; librarians and legal writing faculty joining forces for more effective research instruction; and connecting with casebook and clinical faculty, the community outside the law school, and university offices to provide meaningful, resource-conscious instruction.

Our workshop website, which includes program details and hotel information, can be found here. Workshop registration can be found here.

Columbus offers a number of unique experiences year round and particularly during the holiday season. Consider staying through the weekend to enjoy a dessertcoffee, or beer tour of a city with a dynamic food scene. Those who are more literary-minded will enjoy a Dickens of a Christmas and a Dickens Dinner at the historical Ohio Village. If you have an interest in politics, history, or architecture, touring the Ohio Statehouse is fun and free. A short walk from the workshop site you can explore the Billy Ireland Cartoon Library and Museum. Finally, for anyone visiting with children or who fondly remembers Jack Hannah and the Columbus Zoo on David Letterman, check out the zoo’s extraordinary holiday light tradition, Wildlights. For more information on the exciting goings-on in Columbus, visit Experience Columbus.

Columbus truly is the heart of it all. We are driving distance from places like Indianapolis, Pittsburgh, Lexington, Chicago, Charleston; and a non-stop flight away from pretty much everywhere else.
We hope to see you in December! For more information about the conference, please feel free to contact us at Kelly.864@osu.edu or Mattson.30@osu.edu.

The conference cost is a very reasonable $45 aside from any lodgings.  I’m not expecting to sample the charms of Columbus while I’m there.  I was interested in going to a Blue Jackets game but it turned out the team is on the road in Winnipeg on December 10th.  The Islanders come in to Nationwide Arena on the 12th but unfortunately I can’t stay over.

And now the fun part.  As part of the Halloween picture extravaganza, I shared costumes and decorations from a number of libraries.  One of those picture sets from Wayne State included periodicals turned into bat decorations.  Well, it seems the bats have turned into turkeys for the coming holiday.  See the pictures below.

Thanksgiving 2 Thanksgiving 3 Thanksgiving 1

Well, I hope to publish more frequently now that my major semester project is effectively over.

Mark

University of California System Goes Open-Access on Faculty Scholarship

The University of California System issued a directive near the end of October that require faculty to place their scholarly works in open access sources:

Each Faculty member grants to the University of California a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, for the purpose of making their articles widely and freely available in an open access repository. Any other systematic uses of the licensed articles by the University of California must be approved by the Academic Senate. This policy does not transfer copyright ownership, which remains with Faculty authors under existing University of California policy.

* * *

To assist the University in disseminating and archiving the articles, Faculty commit to helping the University obtain copies of the articles. Specifically, each Faculty member who does not permanently waive the license above will provide an electronic copy of his or her final version of the article to the University of California by the date of its publication, for inclusion in an open access repository. When appropriate, a Faculty member may instead notify the University of California if the article will be freely available in another repository or as an open-access publication. Faculty members who have permanently waived the license may nonetheless deposit a copy with the University of California or elsewhere for archival purposes.

Notwithstanding the above, this policy does not in any way prescribe or limit the venue of publication. This policy neither requires nor prohibits the payment of fees or publication costs by authors.

That last line is interesting.  There are two articles at the Chronicle of Higher Education worth reading that relate to the issue of fees.  One is What Open-Access Publishing Actually Costs by Ellen Wexler, and the other is What a Mass Exodus at a Linguistics Journal Means for Scholarly Publishing, also by Wexler.  Both are pretty good examinations of issues surrounding the hidden costs of open-access publishing.  The first article (later in date) points out that placement of scholarly articles even for open access can require a publication fee.  Comments there point out that someone is paying for the time to peer review (usually the university or college employing the reviewer through salary), or providing the server space, or other elements that go between the publication and its editorial and distribution network.

The other article tells of the mass resignation of the editorial staff for the journal Linqua, published by Elsevier.  The staff had asked that the journal become open-access and given to them to pursue that goal.  Elsevier unsurprisingly said no.  The company has said that it continue publishing the title under a new team.  The article states that authors currently must pay some $1,800 per article to make it free to readers among other costs.

This isn’t necessarily the model for law reviews.  They are edited by students and usually not peer-reviewed.  The trend is to make content available for free via the law journal’s web site.  Even still, the University or Law School has underlying costs to make this happen by paying for the underlying technical equipment and/or subsidizing the loss of subscriptions.  The takeaway from Wexler’s articles is that free really isn’t really free.  Costs shift to someone else.  Whether that model is sustainable remains to be seen.

Mark

Supreme Court Action: Qualified Immunity When Deadly Force is Used By Officers During A Car Chase

The Supreme Court issued one opinion today.  The case, Mullenix v. Luna (14-1143), decided whether a Texas state trooper (Mullenix) was entitled to qualified immunity when he fired shots at a suspect’s car during a high speed chase, killing the suspect.  The Court’s restatement of the facts show that Israel Leija, Jr. resisted an attempt to arrest him and fled in his car.  Another officer, Sergeant Randy Baker, pursued Leija in a chase reaching speeds between 85 and 110 miles per hour.  Other officers joined the pursuit.  Leija called local police dispatchers twice and informed them that he was armed and would shoot officers if the chase was not called off.  This information was relayed to the pursuing officers along with information that Leija may be intoxicated.

Some officers set up road spikes at a location Leija was expected to pass.  Mullenix intended to set up spikes as well but decided he might disable the car by shooting at it.  He radioed his decision to his supervisor, Sergeant Byrd, who said to stand by and see if the spikes worked first.  Mullenix was joined by  Officer Shipman and they discussed Mullenix’ plan to shoot at the car.  Leija approached and Mullenix fired six shots.  Leija’s car hit the spikes and rolled over two and a half times.  Four of six shots Mullenix fired hit Leija in the upper body and killed him.  There was no evidence that any of the bullets hit any portion of the car that could have disabled it.

Leija’s family sued Mullenix on civil rights violations, specifically that Leija’s Fourth Amendment rights had been violated.  Mullenix filed a motion for summary judgment based on qualified immunity.  The district court denied the motion and the Fifth Circuit Court of Appeals affirmed the denial.  The Fifth Circuit withdrew its first opinion but substantially upheld the denial in a second opinion.

The Supreme Court reversed.  It stated the standard for applying qualified immunity is whether the conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The Court explained that lower courts should not apply the standard in a general sense and that the application is fact dependent.  The Court noted there were only two prior cases where it ruled on excessive/deadly force involving car chases.  In those two:

The Court has thus never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.

Further, lower court cases decided subsequently have not established that the use of force in situations similar to the present case is inappropriate.  The mere fact that other courts have found the level of force appropriate in more extreme cases does not render the use inappropriate here.

The Court issued the case as a per curiam opinion.  Justice Scalia concurred in the judgment.  Justice Sotomayor dissented.

Mark

 

Friday Fun: More And More Halloween Pictures

The latest come from Adeen Postar at the University of Baltimore.  She writes:

My staff does a terrific job decorating at Halloween!  We add to the fun decorating every year.

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Mark

Friday Fun: More Halloween Pictures

As I wrote the previous post, even more pictures showed up.  Here they are.

Caren Luckie from the firm Jackson Walker in Houston submitted these:

Each year the attorneys and paralegals host an appreciation lunch for the staff at Halloween – complete with awesome decorations, games, and a costume contest.  I don’t have all of the pictures from my phone downloaded yet, but here is our Chief Knowledge Services Officer (and candidate for AALL President), Greg Lambert, my assistant, and our newest associate.

associate Sarah Maize

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The next one was sent in by Carolyn J. Keery from the Law Offices of Hinckley Allen in Providence RI.  The source was Facebook.

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Mark

Friday Fun: Halloween Pictures

The first batch comes from Miriam Murphy, Interim Director of the Ruth Lilly Law Library at IUPUI in Indianapolis.  Miriam writes:

My wonderful staff turned the library into a “Frozen” wonderland. We participiated in a law school wide trick or treat give away to the children of our students, staff and faculty.  We won best office décor, but lost out on the group costume to the Dean’s office where they were “A Christmas Story” with the Vice Dean as Ralphie in the pink bunny suit in the back right of the larger group photo.

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The next batch comes from Beth Applebaum at the Arthur Neef Law Library at Wayne State University in Detroit.  All I can say is one of them is a unique use for a print periodical.  You can’t do that online unless you hang a monitor from the ceiling.

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I’m writing this as I’m sweating it out in my Jake the Dog Costume. Yes, those are Shepards volumes on a cart behind me.  They are scheduled to go to that big Law Library recycling bin in the sky.  That is below with a few others from the Rinn Law Library at DePaul.  Keep sending them in and I will post them through next week.

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Mark

 

It’s Halloween

We’re celebrating Halloween at our library.  I’m sure others are as well.  Feel free to share pictures of Halloween at your library.  I’ll post the best of them all through next week on the Blog.  Send pictures or a link to their location to me at mgiangr@gmail.com.  I’ll be in costume tomorrow at DePaul as Jake the Dog from Adventure Time.  Yes, I’ll post that picture.

Mark