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.

Mark

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.

Mark

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

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.

Not good.

Finally, the National Center for Education Statistics released its annual report on academic libraries called Academic Libraries: 2012 First LookInside Higher Ed has short commentary on the report.  – Mark

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.

Getting back to the tenure issue for a moment, I was reminded of the Pretenders’ song Brass In Pocket.  Or should the musical moment be Back On The Chain Gang?

Mark

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 LibrariesPublishers Weekly has the story on the AG appeal.

Mark

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.

More details are in a report from Publishers Weekly.  A copy of the filing is here:  Apple Memorandumn Opposing Class Certification.

Mark

Judge Denny Chin ruled today in favor Google in the book scanning case.  The ruling is consistent with the results in the Georgia State electronic reserve case and the HathiTrust case in particular.   Judge Chin assumed that the Authors Guild established a prima facie case of copyright infringement at this stage of the proceedings.  He examined each of the four factors for the defense of fair use and found:

  • Purpose and character of the use (factor one):  Google’s use is “highly” transformative in that the word index helps readers, scholars, researchers, and other to find books.  Moreover, the manipulation of electronic text can help researchers discover historical trends in how words are used.  Google’s for-profit status is of slight concern because of the important educational purpose served by Google Books.  Factor one favors Google.
  •  Nature of copyrighted work (factor two):  The majority of books scanned are non-fiction.  Though fiction deserves greater protection, all scanned books were published and available to the public.  In any event, both parties in the case agree that the second factor is not determinative.
  • Amount and substantiality of the portion used (factor three):  Google scans the entire book.  Courts have held, however, that copying the entire work can be fair use in some circumstances.  Judge Chin notes that the key to Google Books is its ability to offer full-text search.  Google tightly controls and limits the display as snippets in response to a search.  Factor three weighs slightly against a finding of fair use.
  • Effect of use upon potential market or value (factor four):  The Authors Guild argued that Google Books would act as a market replacement for books.  Alternatively, a searcher can use multiple word searches to construct a book out of snippets.  Google enhances the book market as each display links to sources where the book can be purchased.  As such, it provides a way for authors to get noticed.  As for the snippet to books argument, someone would have to have a copy of the book in order to construct a copy from the online display.  In any event, this would not be possible as Google has blacklisted some snippets as never displayable.    The fourth factor weighs strongly in favor of finding fair use.

If any of that wasn’t enough, Judge Chin had this to say:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

Take that, Authors Guild.  Speaking of whom, the Guild issued the usual “we’re going to appeal statement:”

Judge Denny Chin today ruled that Google’s mass book digitization project to be a fair use, granting the company summary judgment in the copyright infringement lawsuit brought by the Authors Guild in 2005.

“We disagree with and are disappointed by the court’s decision today,” Authors Guild executive director Paul Aiken said. “This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of fair use defense.”

“We plan to appeal the decision.”

I’m sorry the Guild disagrees and is disappointed with the ruling.  I’m not.  The only question I have is why did it take this long to get to this point?  The opinion is here courtesy of Public Knowledge.

Mark

From the blurb for Alan Dershowitz’s Taking the Stand: My Life in the Law (Crown, Oct, 2013):

In Taking the Stand, Dershowitz reveals the evolution of his own thinking on such fundamental issues as censorship and the First Amendment, Civil Rights, Abortion, homocide and the increasing role that science plays in a legal defense. Alan Dershowitz, the Felix Frankfurter Professor of Law at Harvard University, and the author of such acclaimed bestsellers as Chutzpah, The Best Defense, and Reversal of Fortune, for the first time recounts his legal biography, describing his struggles academically at Yeshiva High School growning up in Williamsburg, Brooklyn, his successes at Yale, clerking for Supreme Court Justice Arthur Goldberg, his appointment to full professor at the Harvard at age 28, the youngest in the school’s history. Dershowitz went on to work on many of the most celebrated cases in the land, from appealing (successfully) Claus Von Bulow’s conviction for the murder of his wife Happy, to the O.J. Simpson trial, to defending Mike Tyson, Leona Helmsley, Patty Hearst, and countless others.  He is currently part of the legal team advising Julian Assange.

Joe

It’s pretty hard to publish a Scalia post on LLB without also publishing one about Posner. So here we go. A couple of days ago NPR’s Scott Simon conducted a brief interview with Posner about his latest book, Reflections on Judging (Harvard UP, Sept. 16, 2013). [Podcast with transcript] Wait a minute, Posner might have published another book by now.

From the blurb for Reflections on Judging:

In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying how the judiciary has changed since his 1981 appointment, he engages the issues at stake today, suggesting how lawyers should argue cases and judges decide them, how trials can be improved, and, most urgently, how to cope with the dizzying pace of technological advance that makes litigation ever more challenging to judges and lawyers.

For Posner, legal formalism presents one of the main obstacles to tackling these problems. Formalist judges–most notably Justice Antonin Scalia–needlessly complicate the legal process by advocating “canons of constructions” (principles for interpreting statutes and the Constitution) that are confusing and self-contradictory. Posner calls instead for a renewed commitment to legal realism, whereby a good judge gathers facts, carefully considers context, and comes to a sensible conclusion that avoids inflicting collateral damage on other areas of the law. This, Posner believes, was the approach of the jurists he most admires and seeks to emulate: Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, Robert Jackson, and Henry Friendly, and it is an approach that can best resolve our twenty-first-century legal disputes.

The very first thing I spotted when glancing at my copy of Posner’s Reflections on Judging was a footnote to Scalia (& Gardner), Reading Law: The Interpretation of Legal Texts (West, 2012).

Joe

It’s nice to be back after what I will call a “vacation” from the blog.  As a way of getting back in the swing of things, let’s see what developments have taken place in the down time.  These are the kinds of things I covered at our former blog.

The Apple e-book trial ended in early summer with a finding of liability for attempting to fix e-book prices.  Apple continues to deny the finding by Judge Denise Cote and plans to appeal.  The Court issued an injunction specifying remedies on September 6th.  These include forbidding Apple from entering into publisher contracts containing MFN clauses for five years; retailers having the right to discount e-books for two years; staggered windows for negotiations with the settling publishers, in settlement order; and requiring an external compliance monitor who would make sure Apple complies with the terms of the Court’s order.  The one remedy denied to the Justice Department was its request to allow in-app purchases on iDevices without having vendors pay the standard 30% commission to Apple.  The Justice Department would further expand that requirement to other media besides books.  The Judge declined the request stating essentially that she did not want to regulate Apple’s overall business model.  More details, including a copy of the Court’s order, are at paidContent.

The ABA Taskforce on the Future of Legal Education issued its latest draft report on September 20th.  The key conclusions include the fact that a student with lower LSAT scores and GPA will not get a greater return on investment as they are less likely eligible for student aid.  The better students will get aid regardless of need.  “These practices are in need of serious re-engineering.”  I can hear a dean somewhere asking “but what about the rankings?”

The twin components of accreditation and innovation are addressed by noting how current accreditation standards are worthy of the profession up to now.  The problem is that they standardize much of legal education in a way that stifles innovation.  Regulation should allow for flexibility and experimentation in constructing a law program that prepares a student to deliver legal services.  “The Task Force thus recommends that a number of the Standards be repealed or dramatically liberalized.”  Here’s another conclusion that will not be popular with the faculty:  “The balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further toward developing the competencies required by people who will deliver services to clients.”  Legal Writing programs just became a little more important.

The Report additionally calls for expanding the number of people who can deliver common legal services through training and certification that is short of the full J.D. program.  The cost of legal services to the general public is skyrocketing because of the cost of training lawyers.  Something along these lines would make legal services more affordable.  The ABA Journal has additional details.

Regular readers of our old site know that I covered Supreme Court cases for the last several years.  I intend to continue that practice as the new term begins next Monday.  I’ll continue to add significant cases from the lower courts.  You may remember a case out of Virginia last year where a federal judge found that a Facebook “like” was not protected speech.  The Fourth Circuit recently decided otherwise.  I’ll also be covering significant technology developments.  The public update to Windows 8/8.1 is just a few short weeks away, and there’s the Surface 2 as well.  Yahoo has a new logo, and Google is still in trouble with the European Union and member states.  There will be commentary on educational technology as always. There will also be book reviews of new Oxford University Press items and other publishers.  Everyone take note that I am a slow reader when it comes to long form.  Law school (reading too many doctrinal cases lo those many years ago) lowered my desire to pick up a book, and if that desire ever re-awakened, well the pace of the Internet turned it into consumption of zombie short form.  Lots of it.

And I just may review the occasional media item.  I just picked up Simon Schama’s History of Britain (BBC Special Edition DVD set).  I highly recommend it.  If you’re interested in Scooby-Doo, well I’ve got something to say.  Beyond that, welcome to the new Law Librarian blog.  Thank you for reading.

Mark