US Supreme Court Opinions and their Audiences (Cambridge UP, 2017) by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth is the first study specifically to investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions. For more, the work was reviewed in the April issue of Law and Politics Book Review here. — Joe
Category Archives: Books
Out of 323 challenges recorded by ALA’s Office for Intellectual Freedom, the “Top Ten Most Challenged Books in 2016” are:
- This One Summer written by Mariko Tamaki and illustrated by Jillian Tamaki. Reasons: challenged because it includes LGBT characters, drug use and profanity, and it was considered sexually explicit with mature themes.
- Drama written and illustrated by Raina Telgemeier. Reasons: challenged because it includes LGBT characters, was deemed sexually explicit, and was considered to have an offensive political viewpoint.
- George written by Alex Gino. Reasons: challenged because it includes a transgender child, and the “sexuality was not appropriate at elementary levels.”
- I Am Jazz written by Jessica Herthel and Jazz Jennings, and illustrated by Shelagh McNicholas. Reasons: challenged because it portrays a transgender child and because of language, sex education, and offensive viewpoints.
- Two Boys Kissing written by David Levithan. Reasons: challenged because its cover has an image of two boys kissing, and it was considered to include sexually explicit LGBT content.
- Looking for Alaska written by John Green. Reasons: challenged for a sexually explicit scene that may lead a student to “sexual experimentation.”
- Big Hard Sex Criminals written by Matt Fraction and illustrated by Chip Zdarsky. Reason: challenged because it was considered sexually explicit.
- Make Something Up: Stories You Can’t Unread written by Chuck Palahniuk. Reasons: challenged for profanity, sexual explicitness, and being “disgusting and all around offensive.”
- Little Bill (series) written by Bill Cosby and and illustrated by Varnette P. Honeywood. Reason: challenged because of criminal sexual allegations against the author.
- Eleanor & Park written by Rainbow Rowell. Reason: challenged for offensive language.
Source: ALA. — Joe
There is so much to catch up on. The recent news is that Ravel Law is teaming up with Harvard to scan significant portions of the primary law collection with the ultimate goal of placing the bulk online for use by the public. The story in the New York Times mentions the fact that the librarians are cutting the books apart so the pages could go through high speed scanners. The implication here is that there is no turning back for the project. Here is another story from the Harvard Law School News.
The interesting part for me aside from having as much primary law on the web is that this is the first major scanning project announced since the Google Book decision from October 16th. Most primary law is in the public domain so there shouldn’t be any question about the legality of scanning. Nonetheless, that decision should comfort the project managers. I wonder if the decision will be giving impetus to any other large scale digitizing projects.
It’s Only A Friday Fun If You Like The Result: Google Wins Again at Second Circuit Over The Book Scanning Project
The Second Circuit handed Google another victory in its battle with the Authors Guild, et al., by upholding the District Court’s determination that its book scanning project is fair use. Here is the Court’s own summary of the decision from the end of the opinion:
In sum, we conclude that: (1) Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.
The Court relied on its decision in the HathiTrust case for declaring that Google’s scans were transformative. The Court here noted that the libraries did not offer snippet view in local search in comparison to Google. That wasn’t a problem, however, as Google’s snippets were no substitute for a copy of the book. At best a research could determine whether the book would be useful in a research project. That would not be a lost sale necessarily if the researcher rejected using the book in a personal project.
I’m still digesting the opinion and may have more to say about this later. I’ll refer readers to c copy of the opinion on Google Drive as supplied by the Chronicle of Higher Education. I’ll also point to a copy linked in a statement of disappointment in the ruling by the Authors Guild. Note, however, that the Guild links ultimately to copy placed on Google Drive as well (oh the irony). I would also draw your attention to the fact that the link from the Chronicle allows the reader to download the document. The version from the Guild does not offer that option. I’m guessing the Guild is hard-wired in that regard.
It’s the end of an era certainly. OCLC has produced its last printed catalog card. We may take online catalogs for granted these days, but someone, somewhere has been using printed cards. An article in the Columbus Dispatch noted that the last set of printed cards went to Concordia College in Bronxville, NY. The peak total for cards within a year was 135 million in 1984. That’s the year personal computers by Apple and IBM started hitting the mainstream. At the end, some 1.9 billion cards had been produced. There is a forest somewhere that is sighing a breath of relief. What to do with the table and drawers that formerly held the carefully organized cards? We use ours to hold snacks for the library staff.
Via Press Release:
This fall, our colleagues at HarvardX, a University-wide initiative supporting faculty innovation in teaching, are helping with those connections by bringing to life some of the library’s holdings in the open online course The Book: Histories Across Time and Space. Harvard librarians have been essential partners in the development of this course, and we hope it will increase awareness about the value of libraries as well as enthuse people about learning more about books and their impact on learning and society.
The Book, developed by HarvardX and available via edX, is an interactive learning experience made up of nine modules that examine the world of books, scrolls, and manuscripts. The course highlights aspects of these materials – from their physical structure and history to the print and handwriting found within their pages – across time and across cultures.
The Book brings learners inside the collections of Harvard’s libraries, providing access to some of the world’s most extraordinary works through the use of digital tools (including a rich image viewer) and perspectives from leading thinkers. A group of distinguished faculty members leads the course, including Jeffrey F. Hamburger (History of Art & Architecture, Faculty of Arts and Sciences), Robert Darnton (History, Faculty of Arts & Sciences and University Librarian emeritus), and Thomas Forrest Kelly(Music, Faculty of Arts and Sciences).
Anyone with an internet connection can take this self-paced course. Sign up for free today, and please share this opportunity with others.
I get press releases. Oh do I get press releases from publicists on some of the wackiest topics out there. I’m not going to go into that because there is one that actually relates to something in which I’m interested. I’ve written about the shrinking print collection before, especially when it relates to primary materials. I have advocated cancelling reporter subscriptions because there is so many alternative sources for it in subscription and free databases. Mind you, it should be a thoughtful cancellation considering how well the online alternatives can be a solid substitute. The same applies to secondary sources where the treatise is available through an electronic subscription via Lexis, Westlaw, or another electronic library package. I believe we at DePaul are not unique in considering the issues.
Well, back to the press release part. The Primary Research Group has issued a commercial study on the shrinking print collections. It’s called Law Library Plans for the Print Materials Collection, ISBN 978-157440-353-4. Here’s a sample set of stats from the publication:
- The cumulative 2-year drop in spending on print resources from 2014-2016 by the law firms in the sample is expected to be 22.6%.
- For small law firm libraries the number of subscriptions to print journals went from 66.67 to 51.67 and then to an anticipated 45 over the three year period, a cumulative 2-year drop of 32%.
- Primary works accounted for a mean of 35.53% of spending on print legal materials with a median of 30% and a range of 5% to 90%. For law school libraries, print primary materials accounted for 54% of the total print materials budget, a much higher percentage than for law firm libraries 28%, or government law libraries, 32.86%.
The last one is interesting. We in the academic business try to prepare students for the tools that they can expect to use in practice. If law firms are buying less print, and I’m assuming a firm in this situation is using an online database, why are academic libraries still buying at a much higher percentage? But, hey, that’s just me wondering that.
Here is more information about the report:
The study is currently available as a PDF and will be available in book format on September 9, 2015 and can be ordered now. The price for either version is $135.00; site licenses are also available. To view the table of contents, an excerpt, questionnaire and list of participants, view our website at http://www.PrimaryResearch.com or visit the product page for this report at http://www.primaryresearch.com/view_product.php?report_id=561.
The question I’m thinking about now is how to utilize the space that will become available. I’ll write my thoughts about that later.
I posted about three weeks ago about the discussion going on at my library concerning the maintenance of the National Reporter System as well as other bibliographic items. This was in connection with ABA Standards for law school library collection allowing for “reliable access” to primary law through electronic resources. This got me wondering. I know that current and ongoing material would be on Lexis and Westlaw and other resources. The immediate question is how far back does everything go? I would assume through representations that the databases cover all case law from the beginning.
I wound up checking each information statement for case law in WestlawNext and compared it to everything that is a citable item in Table 1 of the Bluebook. Westlaw does, in fact, represent that it carries case law for every item listed as a citable reporter in the Bluebook. I’m in the process of checking Lexis at the moment. While I can take issue with the way Lexis organizes its case law files, the survey so far indicates that it goes all the way back as well. Lexis does have some interesting additions in that it seems there are databases for circuit court reports for a select number of states. I’m still working on that survey.
I’m considering an expansion of the survey to other databases such as Hein Online as well as free resources such as Google’s case law and books and other reliable databases for comparative purposes. Hein’s historical databases for case law and statutes continue to expand, especially for state published items. I’m also interested in the formats (text only, PDF, etc.) and the range of coverage for each file type. This information would likely be useful for cite checkers and reference librarians. I have the initial WestlawNext chart for coverage by reporter and date. Feel free to contact me for a copy. I’ll post my progress as I get through this. I may ultimately turn this into an article that compares type of material to availability, format, and whether it’s reliably free or in a subscription database. We’ll see if I have the stamina as this goes forward.
The U.S. Copyright Office has issued a new report, Orphan Works And Mass Digitization, which identifies legislative proposals and other considerations to create mechanisms that allow for legal use of orphan works and mass digitization. The report builds on earlier examinations of the issues released in 2006 and 2011.
From the Executive Summary:
While the fundamental aspects of orphan works and mass digitization have remained unchanged since the Office’s prior reviews, a number of important domestic and international developments have affected the legal landscape. In the United States, it is difficult to separate the issue of mass digitization from two lawsuits arising out of the Google Books project, in which authors and book publishers have asserted violations of their exclusive rights and Google and libraries have asserted fair use.4 Recent decisions in these cases have magnified the public debate surrounding the costs and benefits arising from digitization projects more generally, and how best to license, except, or otherwise regulate them under the law.
Meanwhile, a growing number of countries have adopted legislative responses to both orphan works and mass digitization, ranging from calibrated exceptions to government licenses to extended collective licensing. And, private entities have developed innovative new copyright information registries and other resources to more efficiently bring rightsholders together with those seeking to use their works.
These combined developments – all of which will have substantial ramifications for U.S. copyright stakeholders – strongly suggest that it is time to revisit potential solutions in the United States. The goal in doing so is not to interfere with jurisprudence, but rather to ensure that the rules are clear and that all parties are on equal footing. Indeed, with so many equities at stake, the complexity and breadth of the issues make them well suited for legislative action.5 While the Office has addressed these issues together in this Report, we recommend separate solutions.
The Copyright Office was opposed to the Google Book Settlement which was ultimately rejected by the trial court. The current report (PDF) is available here. Perhaps Congress will get around to actually making reforms in the copyright laws to account for orphan works and digitization projects.
The Second Circuit Court of Appeals rejected Apple’s arguments on appeal and upheld Judge Denise Cote’s finding that Apple violated the antitrust laws:
Defendants Apple, Macmillan, and Simon & Schuster appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.), entered on September 5, 2013. After a bench trial, the district court concluded that Apple violated § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., by orchestrating a conspiracy among five major publishing companies to raise the retail prices of digital books, known as “ebooks.” The court then issued an injunctive order, which, inter alia, prevents Apple from signing agreements with those five publishers that restrict its ability to set, alter, or reduce the price of ebooks, and requires Apple to apply the same terms and conditions to ebook applications sold on its devices as it does to other applications. We conclude that the district court correctly decided that Apple orchestrated a conspiracy among the publishers to raise ebook prices, that the conspiracy unreasonably restrained trade in violation of § 1 of the Sherman Act, and that the injunction is properly calibrated to protect the public from future anticompetitive harms. In addition, we reject the argument that the portion of the injunctive order preventing Apple from agreeing to restrict its pricing authority modifies Macmillan and Simon & Schuster’s consent decrees or should be judicially estopped. Accordingly, the judgment of the district court is AFFIRMED.
The main opinion was accompanied by an opinion concurring in part and dissenting in part, and a dissenting opinion. Here are the opinions:
There is an interesting discussion going on at my library. As others may be doing, we are considering the proper mix between print and online resources. ABA law school accreditation Standard 606 now allows for “a core collection of essential materials through ownership or reliable access.” It’s that last part, “reliable access,” that triggers deep soul searching of what to buy in print or what to buy as an electronic subscription. Tempering the rule are other qualifications that state the core collection should support faculty scholarship and the curriculum, and that a collection that consists of a single format may violate Standard 606.
In this context I’ve recommended that we drop the National Reporter System, ALRs, CJS, multiple state codes, and selected treatises that are online. This may sound radical to some. I know that law schools and libraries are experiencing budget cuts due to lower enrollment. That drives part of the analysis. Another factor that bears thought is what we teach these days. The legal writing program at DePaul started teaching all electronic research. We experienced a drop in library visits as a consequence. No more treasure hunts, no answering the same questions over and over at the reference desk.
I can remember how far we’ve come in electronic access. We used to teach print resources because that’s what the legal market had out there. Now electronic access to case law and other primary sources is ubiquitous. At one time it was viable to teach print because the databases were based on print. Understand the organization of print and the online version would make more sense. That’s not so true anymore. Online database providers no longer think in terms of echoing print other than citation and star paging. Certainly there was a time when case law on Westlaw was organized by reporter. Not anymore. It’s all jurisdictional, and that seems natural now compared to looking for a database containing the Northeastern Reporter.
Look at how citators have changed. There was a time when Shepards online would be no more current than the latest print update. Even the CD-ROM product mirrored print. Now everything is dynamic. I can’t imagine why anyone would want to subscribe to the print edition at this point. We cancelled our print copies years ago. If anything was made easier by online access, Shepards, KeyCite, and citators in general are it. They are more complete, can be filtered, and everything is spelled out instead of interpreting symbols attached to citations.
Then there are law reviews. I have to say how much I like Hein Online when it comes to law reviews. Everything back to day one is there in PDF format more or less. We still get paper copies of law reviews but discard them once they appear on Hein. No more binding these books for the collection. Google Scholar works as a handy index to Hein content as well as other scholarly databases.
So now the next question is what is the proper mix for print and online? I know that some libraries have already dropped major primary resources such as reporters. In one sense, we are behind the curve on making that set of decisions. Never in my career had I thought I would be part of this kind of decision. Times change. I find that I’m not very sentimental about physical materials that no one uses at my library.
When I was growing up (a long, long time ago) I would watch Perry Mason episodes on television. That show, and E.G. Marshall starring in The Defenders, presented my first awareness of the legal process. I have been called on by one faculty member who uses video clips in her presentations to locate Perry Mason segments where Perry thunders at a witness (“May I remind the witness that you are under oath!”) with facts derived from Paul Drake’s investigations. The result more often than not brought a surprise confession from the witness or someone in the gallery. District Attorney Hamilton Burger would, more often than not, sheepishly approach the bench and ask for some variation of dismissing the charges. In these days of regulated discovery, even in criminal cases, I’m not so sure these courtroom encounters would pass legal muster. They made for riveting entertainment nonetheless. I often enjoyed searching for these clips as it was more entertaining than locating cases on certain aspects of employment discrimination.
Mason was created by author Erle Stanley Gardner and published the first of a long line of Mason novels in 1933 with The Case of The Velvet Claw. Much to my surprise, the American Bar Association is rereleasing the first five Mason novels on Ankerwycke, its consumer imprint. More information is available here. I think I may go back and wander through some of the clips I’ve collected in the course of reference service.
I haven’t read the decision yet, so I can’t comment about it yet. The opinion is here. The Court’ summary states:
Plaintiff‐appellant authors and authors’ associations appeal a judgment of the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge) granting summary judgment to defendants‐appellees and dismissing claims of copyright infringement. In addition, the court dismissed the claims of certain plaintiffs‐appellants for lack of standing and dismissed other copyright claims as unripe. We hold, as a threshold matter, that certain plaintiffs‐appellants lack associational standing. We also hold that the doctrine of “fair use” allows defendants‐appellees to create a full‐text searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities, and that the claims predicated upon the Orphan Works Project are not ripe for adjudication. We vacate so much of the judgment as is based on the district court’s holding related to the claim of infringement predicated upon defendants-appellees’ preservation of copyrighted works, and we remand for further proceedings on that issue. Affirmed, in part; vacated, in part.
The American Library Association issued a statement on the case:
Today, the U.S. Second Circuit Court of Appeals upheld the ruling in Authors Guild v.HathiTrust, deciding that providing a full text search database and providing access to works for people with print disabilities is fair use. The court also ruled that the Authors Guild lacked standing, and therefore could not assert infringement claims against the HathiTrust. The Library Copyright Alliance (LCA), of which the American Library Association (ALA) is a member, filed an amicus brief in support of the HathiTrust.
ALA President Barbara Stripling released the following statement in response to the ruling:
“The Second Circuit today affirmed more than a lower court decision—it affirmed that the fair use of copyrighted material by libraries for the public is essential to copyright law. ALA is pleased that the court recognizes the tremendous value of libraries in securing the massive record of human knowledge on behalf of the general public and in providing lawful access to works for research, educational, and learning purposes, including access for people with disabilities.
“The continued acknowledgement of the importance of fair use to enable learning and support for the development of a well-informed citizenry makes the U.S. copyright law unique and well-functioning.”
This decision affirms that libraries can engage in mass digitization to improve the discovery of works and provide full access to those works to students with print disabilities enrolled at the respective HathiTrust institutions.
The general public can search the database using keywords and locate titles held in 80 member institutions. Full text access to the underlying works is allowed only for students with print disabilities enrolled at the University of Michigan and certified as disabled by a qualified expert. Students with print disabilities are blind or have a handicap that prevents them from reading printed text. Because of the full conversion of the texts to digital format that is accessible, these students can use adaptive technologies, such as text-to-speech, to read.
ALA will continue its defense of fair use in the HathiTrust case, should additional appeals be filed.
I expect that some of the reasoning in this case may affect the Guild’s case against Google. We’ll see. — Mark
Short Takes On The News: Digitizing the Vatican Library, the Good Law School Classes, and Public Privacy
The Vatican has announced that it will digitize manuscripts contained in the Vatican Library that date back to the very beginning of the Church. Some 1.5 million pages will be digitized and placed online over the next four years. NBC News has more details on the project. Some of the libraries holdings were microfilmed during World War II when it was thought that Rome would be bombed. The film now resides at St. Louis University in Missouri, of all places.
The Volokh Conspiracy asks the magic question “What law school classes have you found especially useful for your practice of law?” There are 25 responses as of this writing and most of them identify courses such as evidence, legal writing, constitutional law, criminal law and procedure, civil procedure, and other substantive classes. No one (so far) has identified practice oriented classes such as trial advocacy or clinical experience. Then again, no one has identified what I call the “touchy feely” classes—those that are based in legal philosophy or social sciences.
Those interested in privacy, especially in the context of filming police officers on duty in a public place might find interesting two decisions from the Illinois Supreme Court. Illinois has criminalized such conduct with a statute deemed on of the toughest in the nation. The Seventh Circuit Court of Appeals upheld a determination that the statutes are likely unconstitutional. See A.C.L.U. v. Alvarez, 679 F.3d 583 (7th Cir. 2012). The Illinois Supreme Court also found the statute to be unconstitutional and an overbroad burden on speech. This is from the summary of People v. Melongo 2014 IL 114852:
In this decision, the supreme court said that its analysis was guided by its holding in People v. Clark, 2014 IL 115776, announced on the same day as this case, in which the court held the eavesdropping statute violative of the first amendment to the United States Constitution under the overbreadth doctrine. Here, the supreme court said again that the statute is simply too broad in deeming all conversations to be private and not subject to recording absent consent, even if the participants have no expectation of privacy, and in also criminalizing the publication of those recordings. All of this burdens substantially more speech than is necessary to serve any legitimate interest in protecting conversational privacy, making the statute invalid on its face. This defendant cannot constitutionally be prosecuted for divulging the conversations she recorded.
Both Melongo and Clark were decided without dissent. – Mark
As a writer for the Blog I get a tremendous amount of press releases and other publicity information in my inbox. Sometimes the subjects are interesting enough to lead to a post. Other times the subject is interesting but not viable to publish. I obviously act as the filter here. Since it’s Friday, usually the day I can wander subjectively, I thought I would share some of these items with readers.
For example, Senator Barbara Boxer tells us that she testified before the Senate Rules and Administration Committee on the 10th of March on the LINE Act. She introduced the legislation with Senator Ben Nelson. It would require states to minimize waiting time at polls for voters by developing contingency plans when lines are long. It targets states where long lines frustrated voters. Her video testimony is here, and more details about legislation are here. I should mention that I am an avid reader of political stories though I tend to keep my opinions mostly to myself when it comes to the Blog. I reserve my snarky comments to the comment sections for these stories.
I get offers to review books or articles that go somewhat afield of the law but are interesting nonetheless. Here are several titles I could have received as review copies:
- World War I For Kids by R. Kent Rasmussan (Chicago Review Press, 2014). The release notes that this is the 100th anniversary of the beginning of WWI. The book description: With vibrant illustration and original images, hands-on activities, and clear explanations on everything from how the war began to how United States’ entry into the war helped end it, World War I for Kids pinpoints the war’s impact on later historical events and encourages critical thinking. Instead of offering a laundry list of battles, names, and dates, Rasmussen notes that “it is more important to know what events were truly significant, why they happened as they did, and how they were connected with one another.” I love watching stuff about World War I on what used to be the History Channel. I watched one of the Channel’s documentaries on the Battle of Jutland on DVD recently. Great stuff. It’s a pity they don’t do more of it.
- As I write this piece, Oxford University Press sent this to my inbox: Oxford University Press recently published Dealing with Losers: The Political Economy of Policy Transitions, by Michael J. Trebilcock. This book explores the political economy of transition cost mitigation strategies in a wide variety of policy contexts including public pensions, U.S. home mortgage interest deductions, immigration, trade liberalization, agricultural supply management, and climate change, providing tested examples and realistic strategies for genuine policy reform.
- Routledge sends this: There is a threat to preserving the historical record of the Northern Ireland Troubles which may be as hazardous as any fire or flood. In a new article published in the journal Archives and Records James Allison King warns that the fallout from a recent intervention by the British Government risks silencing people’s accounts that would otherwise have been put on record. In his paper, “‘Say nothing’: silenced records and the Boston College subpoenas”, King examines the ‘Belfast Project’ at Boston College, a ground-breaking oral history endeavour in which interviews gave valuable and previously unheard accounts of the Irish conflict. Those contributing were promised that the recordings wouldn’t be released until after their death. However, investigations by the Police Service of Northern Ireland’s Historic Enquiries Team into the 1972 murder of Jean McConville intervened. This resulted in the relevant interviews being subpoenaed by the US Federal Government at the request of the UK. An ongoing court battle has succeeded in limiting the number of oral histories to be released for now. Read the article online here. Readers know that I’ve covered the troubles at Boston College’s archive on this issue.
- West Academic Publishing sent this: Graduation time is just around the corner! Coming next month is an indispensable volume of wisdom and advice for law students of all ages written by Paula A. Franzese, a nationally-acclaimed educator and unprecedented ten-time recipient of the Professor of the Year Award. A Short & Happy Guide to Being a Law Student (West Academic Publishing March 2014) is a daily companion for school, work and life, Franzese shares essential wisdom on how to be one’s best and features five guideposts for success as well as priceless advice on how to succeed in class, on exams, on job interviews, at work and in relationships. March 3, 2014 | West Academic Publishing | ISBN-978-0-314-29107-3 | Paperback | 293 pages | $17.00.
There is a press release that announces that George Washington University created a highly informative infographic detailing a paralegal career titled, “Changing the Legal Landscape: The Evolution of the Paralegal” The over-saturation of the legal landscape is leaving eager law school graduates struggling to find suitable positions. With the decreasing employment rate for lawyers, one facet of this field is on the rise—paralegals. Due to their flexibility in working in a variety of areas of law and affordable starting salary compared to lawyers, paralegal careers are rising exponentially. Many attorneys thrive in the roles of managers, planners, and strategists, while paralegals tend to be very detail oriented and succeed as technicians and fact experts.
Readers may not know that I have lectured in commercial CLE programs aimed at paralegals. The ABA and others have discussed the idea that law schools should consider creating programs that educate students in aspects of the law without leading to a J.D. I believe law schools should be naturals at educating paralegals rather than leaving it to a separate program.
Finally, our friends at the American Library Association make this announcement:
On Friday, March 14, 2014, the American Library Association (ALA) will award President Barack Obama’s Review Group on Intelligence and Communications Technologies the 2014 James Madison Award during the 16th Annual Freedom of Information Day at the Newseum in Washington, D.C. The Presidential Review Group will receive the award for calling for dozens of urgent and practical reforms to the National Security Agency’s unlawful surveillance programs.
“The Review Group’s recommendations are aligned with the American Library Association’s commitment to maintaining public access to government information,” said Barbara Stripling, president of the American Library Association. “Thanks to the steadfast commitment of this group, impractical reforms to the government’s unconstitutional surveillance practices may soon be on the horizon.”
The full press release is here.
Thanks for reading. And to all the press officers out there, keep sending the stuff. I may do more of these posts every now and then. – Mark
OCLC Research is presenting a free webinar called “Inside the Digital Public Library of America” Presented by Dan Cohen. From the description:
In this OCLC Research Distinguished Seminar Series presentation, Dan Cohen goes behind the scenes to discuss how the DPLA was created, how it functions as a portal and platform, what the staff is currently working on, and what’s to come for the young project and organization.
More information and sign-up is here. –Mark
If readers haven’t seen the essay on legal writing by Bryan A. Garner published in the February issue of the ABA Journal, here’s a link to it on the Journal’s web site. It’s hard to argue with the essay that begins with these words:
Legal writing is notoriously dull, slow, cumbersome, obtuse, roundabout and pedantic. There are many reasons: (1) unnecessary jargon, (2) overreliance on abstract nouns, (3) overlong sentences, (4) overlong paragraphs, and (5) the failure to differentiate between useful and useless details.
One of the main arguments is to place citation in footnotes rather than in the text. The result will be a clearer writing style that communicates appreciably better. Naturally, there is pushback in the comments. I have to admit that reading cases, memoranda, and other legal documents when I was in law school pretty much killed most any desire on my part to read long form. Putting it another way, I don’t read for fun at this point. I suspect I’m not alone, which may explain why cat videos are so popular on the Internet. I still have dreams featuring never-ending Civil Procedure I lecture where I’m trying to fathom in rem and in personam jurisdiction.
In other news, the Kansas City Star reports on the tuition war going on between the UMKC School of Law and the University Of Kansas School Of Law. The border position of both schools between Missouri and Kansas offer options for in-state tuition rates for potential students from either state. Yes, it’s come to this. While we’re at it, here is the latest application statistics from the LSAC:
As of 2/7/14, there are 227,912 fall 2014 applications submitted by 32,532 applicants. Applicants are down 11.1% and applications are down 12.2% from 2013.
Last year at this time, we had 62% of the preliminary final applicant count.
Last year at this time, we had 67% of the preliminary final application count.
Finally, the National Center for Education Statistics released its annual report on academic libraries called Academic Libraries: 2012 First Look. Inside Higher Ed has short commentary on the report. – Mark
Stay At Home Tuesday: The Faculty Security Issue Under Proposed ABA Standards, Last Year’s Library Stories, History For Sale, and Apple
Another frigid day with spotty train service means another day browsing the legal news and commentary. There are several stories worth reading. The first is the National Law Journal’s report about the AALS panel discussion on the ABA’s proposed standards. Naturally, the standard eliminating tenure as a requirement for accreditation got significant discussion. Faculty members on the panel as well as those in the audience were overwhelmingly against the proposal. Their argument was that removing tenure would weaken academic freedom, among other negative outcomes. This position is reflected in the published comments (scroll down to Terms and Conditions of Employment) to the draft of Standard 405 at the ABA web site.
The proposal was explained by Saint Louis University Professor Jeffry Lewis and ABA committee chair revising the accreditation standards. He noted the text contains several options for job security and protection of academic freedom that can replace tenure. The proposed ABA standards would require schools to have job restrictions in place that would attract competent faculty by having effective rules that provide provide job security and protect academic freedom. The draft options and interpretations of the proposed standards are here.
I wonder just how far schools will go in defining the faculty relationship if this is approved. It will be pretty interesting to see what the employment contract’s terms sans tenure will be for new professors. Will they be largely standardized or will they be negotiated individually? How will publication reflect advancement? Really, it could be the world turned upside down if this is approved.
Publishers Weekly has a review of the top 10 library stories of 2013. The items include the decision in the Google book scanning case, somewhat more liberal terms for libraries to lend e-books, and the emergence of the Digital Public Library of America. The story nicely sums up the legal and technological issues affecting libraries in the last year.
Wandering over to the New Yorker finds two stories of interest. One details the dismemberment of antiquarian books to sell parts to collectors through various exchanges, including eBay. Everything is for sale these days. Historical objects are obviously no exception. The other story concerns the fight Apple is having with the court appointed compliance monitor over his rate (Apple is footing the bill, and it is large) and the level of access to executives and board members. Apple filed objections in Court over the issues. The story details the background to this particular aspect of the case.
Short Takes On the News: Law School Applications, Academic Freedom In Kansas, Job Prospects for Other Disciplines, and the Authors Guild Appeal
I’ve had a quiet hiatus from the blog for the last several weeks or so. Thanks, Joe. I’ve appreciated the time off. Now that it’s 2014, here are some of the items from the last several weeks that are worth noting. If anyone is wondering if law school applications are stabilizing, the short answer is no. The latest news out of the LSAC for the class of 2014 is not looking good:
As of 12/06/13, there are 90,032 Fall 2014 applications submitted by 14,171 applicants. Applicants are down 13.6% and applications are down 15.7% from 2013. Last year at this time, we had 28% of the preliminary final applicant count. Last year at this time, we had 16% of the preliminary final application count.
The graphs that accompany this text are here. To quote Dr. Zachary Smith, “Oh the pain, the pain, the pain.”
Inside Higher Ed tells us about a change to university personnel policies by the Kansas Board of Regents that makes improper use of social media grounds for discipline up to an including termination. The policy covers any facility for online publication and commentary. The Board is reviewing the policy in light of criticisms but has not withdrawn it during the review. Good thing I don’t work in Kansas as I might comment on matters such as evolution and climate change. I wouldn’t want my views to conflict with those in Kansas.
The Chronicle of Higher Education (subscription) tells us that other disciplines beyond law are suffering job placement problems. Some disciplines fare better than others. Job listings for Ph.D.’s in History fell 7.3%. Economics fell some 6.6% in 2013. Foreign Languages and English, and Political Science had modest declines while Sociology seems to be on the rebound. I remember ribbing to a friend of mine who had graduated with a philosophy degree if he knew how much cab medallions cost. I investigated and I was shocked to discover that the median price of a cab medallion in Chicago is $357,000! Note to law grads and others without job prospects: driving a cab for a company may be viable; owning an independent cab in Chicago costs more than going to law school. Who knew?
And finally, in the no-surprise at all category, the Authors Guild is appealing Judge Chin’s decision that Google’s book scanning project is fair use. We’ll see how far they get as the case is similar to the HathiTrust case that was recently argued in the Second Circuit. A summary of that proceeding is available from the Columbia University Libraries. Publishers Weekly has the story on the AG appeal.
Apple filed a brief last week opposing class certification for private consumers suing the company over alleged harms in e-book pricing during the time agency contracts were in effect. Judge Cote found last July that Apple conspired with publishers to set fixed prices in the e-book market via agency agreements and most-favored-nation clauses in industry-wide distribution contracts. Apple continues to argue that its entry into the market benefitted consumers as an alternative to Amazon. I’m not sure about this myself. The net result was that consumers were going to pay the same price no matter which retailer consummated the sale. The Court found that consumers were harmed despite Apple’s statements to the contrary.
Apple defends against certification based on the Wal-Mart Stores, Inc. v. Dukes case from 2011. That case found that alleged injuries to members of the class were too disparate to support certification. I’m not sure that this case applies here. Consumers either bought an e-book at a set price or they didn’t.
Apple also opposes state lawsuits on jurisdictional grounds. Apple argues states do not possess Article III standing because they have no direct injury despite language in the Clayton Act that supports parens partriae suits. Apple further argues that the states need to meet the class action certification standards in Federal Rule 23 if the Court allows the suits to go forward. Most commentators suggest this is a losing position on Apple’s part. The brief does seem to be aimed at the Second Circuit Court of Appeals just as much as the District Court.