I’ve written before on the supposed death of libraries and print due to the creation of the Internet.  The thinking goes that if someone can do something on their own that is a service normally provided by a librarian or library, that person would opt for self-service.  The fallacy in that thinking is that everyone has the same skill sets, needs, and access to the same materials.  Does everyone live on the Internet these days?  Does everyone have a tablet and/or smartphone?  Maybe, maybe not.

At the same time, not all of these devices, even with cloud support, are appropriate for all tasks.  I hate typing on a smartphone screen because the on-screen keyboards are so small.  I keep making corrections more than half my time even with word suggestion.  I would opt for a desktop or a large screen laptop with a real keyboard if I had to do some serious Westlaw or Lexis research.  But that’s me, one of the six billion people in the world without a Facebook account, or an account on Twitter or LinkedIn.

So how do people view libraries against 20 plus years of the Internet and increasingly more and more sophisticated technology?   The Pew Research Center released the results of a survey yesterday that addressed this topic.  It’s called Libraries at the Crossroads.  The subtitle is telling:  The public is interested in new services and thinks libraries are important to communities.  The survey results indicate that while some uses of the library are down by small amounts compared to the last survey, libraries are an important public resource to a lot of people.

Individuals used a public library to access the Internet, look for jobs, look for information to upgrade their skills, and as a source to learn about new technologies.  There is also a social component where the library is used as a meeting and teaching center.  “Additionally, two-thirds of Americans (65%) ages 16 and older say that closing their local public library would have a major impact on their community. Low-income Americans, Hispanics and African Americans are more likely than others to say that a library closing would impact their lives and communities.”

American Library Association (ALA) President Sari Feldman released the following statement regarding the survey’s findings:

 “Public libraries are transforming beyond their traditional roles and providing more opportunities for community engagement and new services that connect closely with patrons’ needs,” said Feldman. “Today’s study shows that public libraries are far from being  just ‘nice to have,’ but serve as a lifeline for their users, as the survey shows more than 65 percent of those surveyed felt that closing their local public library would have a major impact on their community.

“Libraries are not just about what we have for people, but what we do for and with people. Today’s survey found that three-quarters of the public say libraries have been effective at helping people learn how to use new technologies.  This is buttressed by the ALA’s Digital Inclusion Survey, which finds that virtually all libraries provide free public access to computers and the Internet, wi-fi, technology training and robust digital content that supports education, employment, e-government access and more.

“Although the report affirms the value of public libraries, the ALA recognizes the need for greater public awareness of the transformation of library services, as the report shows library visits over the past three years have slightly decreased.  In response, libraries of all types are preparing for the launch of a national public awareness campaign entitled ‘Libraries Transform.’

“Libraries from across the county will participate in the campaign and will work to change the perception that ‘libraries are just quiet places to do research, find a book, and read’ to ‘libraries are centers of their communities: places to learn, create and share, with the help of library staff and the resources they provide.

 “This is an exciting time for libraries, as institutions transform to meet the digital and print needs of their users, and to continue to fulfill their role in leveling the playing field for all who seek information and access to technologies.”

For those who can work without libraries, feel free.  Just don’t denigrate the services libraries provide as anachronistic.  A lot of people like libraries and the help librarians provide.  That’s not going away no matter how many devices one owns.

Mark

The State of Georgia is suing Public.Resources .Org, Inc. and Carl Malamud in federal court for posting copies of the Official George Code Annotated on the Public.Resources.Org.  Georgia contracts with Lexis to create annotated copies of the Code where Lexis fills in the annotated material in what appears to be a work for hire as Georgia claims copyright in the annotations and value-added materials.  In some respects, it explains why Lexis wasn’t a co-plaintiff.  The State does not claim copyright in the text of the Code itself.  The complaint is seeking injunctive relief and requesting that all scanned copies be removed and destroyed, and yes, attorney fees.

I think it would have been much easier for the State of Georgia if copyright remained with Lexis.  The ownership would have been clearer.  It’s a murky situation otherwise.  I guess the question the Court is whether the State can actually claim a copyright in this case.  The United States government, as an example, disclaims copyright in most cases, but there are exceptions.  Two of these indicated at USA.gov are:

  • Works prepared for the U.S. government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the U.S. government.
  • The U.S. government work designation does not apply to works of U.S. state and local governments. Works of state and local governments may be protected by copyright.

The complaint his available through a link with a story at The Register, which is a U.K. based technology news site.  I’m a big fan of the site due to the somewhat snarky attitude the site takes at tech news.  The story in the Register about this case notes that Georgia effectively calls Malamud a “terrorist.”  Here are the excerpts from the complaint where Georgia makes that claim:

20.  On information and belief, Defendant is employing a deliberate strategy of copying and posting large document archives such as the O.C.G.A. (including the Copyrighted Annotations) in order to force the State of Georgia to provide the O.C.G.A., in an electronic format acceptable to Defendant. Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.

21.  Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3. Defendant also announced on the https://yeswescan.org website that it has targeted the States of Mississippi, Georgia, and Idaho and the District of Columbia for its continued, deliberate and willful copying of copyrighted portions of the annotated codes of those jurisdictions. Defendant has further posted on the https://yeswescan.org website, and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its deliberate and willful copying and distribution of Plaintiff’s Copyrighted Annotations would be “greatly expanded” in 2014. Defendant has further instituted public funding campaigns on a website http://www.indiegogo.com to support its continued copying and distribution of Plaintiff’s Copyrighted Annotations. Defendant has raised thousands of dollars to assist Defendant in infringing the O.C.G.A. Copyrighted Annotations.

Terrorism, seriously?  Someone explain to me how this adds to the substance of the complaint.  It’s not as if black helicopters will be circling Atlanta at the end of the trial, not over annotations at least.

Mark

Earlier in April there was a report about a faculty member at Drexel University having sent a link to porn by mistake to her students when she intended to send a link to an article about brief writing.  I wrote about it here.  Professor Lisa T. McElroy has responded with an op-ed in the Washington Post.  She writes about dignity and how those who spread the news seemed more interested in tearing her down:

No one publicly questioned the dignity of the so-called journalists who wrote salacious stories, broadcast them, waited outside my office to interview my students, called my unpublished cellphone number. And no one questioned the dignity of the intended audience. Tabloid journalists ran with this story because they knew they would get page views. How would they know that? Because they know their readers and viewers — and they know that scandal, sex and shame are irresistible to those who devour their posts.

I can appreciate what she says.  In some contexts it is page views that drive the story onward because it is unusual for these kind of things to happen.  That’s the world we live in, where stuff like this sells ads and eyeballs (though not here).  Drexel has conducted a short investigation and found nothing that would result in any action.  Good for Drexel and good for her.

I still have one question that remains from my original post:  what was the article on brief writing she liked enough to want to send out?

Mark

I think those are the words Bender uses whenever Futurama rises from the dead.  That’s its current state unless one counted the cross-over episode with The Simpsons from the current season.  So, yep, I’ll be posting again, though not necessarily every day.  Keep those press releases coming.  I have a nine month backlog I’ll be going through to see if there is anything both interesting and still relevant to post.

The legal news today is that a judge allowed a woman to serve divorce papers to her husband via Facebook.  It’s a last resort, of course, when the other party avoids service.  But just think what this could mean for future litigation.  Interesting.  Here’s the story in Time Magazine.  Here’s a version of the same story from the New York Daily News, a paper with it’s own unique “character.”

Mark

 

Here are a few of the items I’ve been following while I’ve been convalescing.  Time Magazine focuses on a developing trend in law schools, that of cutting tuition to attract quality students.  The story identifies tuition drops of up to 18% at some schools.  I suppose it’s possible to cut only so many faculty and staff to maintain the status quo.  The last set of U.S. News rankings were particularly brutal for some schools.  While we’re on the subject, the latest statistics from the LSAC show that:

As of 4/4/14, there are 324,781 fall 2014 applications submitted by 47,176 applicants. Applicants are down 8.0% and applications are down 9.3% from 2013.  Last year at this time, we had 86% of the preliminary final applicant count.  Last year at this time, we had 93% of the preliminary final application count.

The drop in applicants and applications is not as great a percentage as earlier years, but it is another drop upon drop upon drop.  Schools will continue to struggle with downsizing nonetheless until the applicant pool stabilizes.

Law suits, we’ve got law suits.  The Authors Guild filed its appellate brief in the Google Book Scanning case that Judge Chin decided in Google’s favor.  The Guild, as usual, takes a narrow and somewhat absolutist view of fair use.  The brief argues in favor of Congress of creating a national digital library with royalties based on use statistics for access to full text rather than snippets of copyrighted works.  I wonder how the publishers would react to that.  A national digital library isn’t necessarily a bad idea.  I would think it would stifle book sales to a casual reader at the very least.   Would publishers get some of that royalty money?  The Guild’s testimony before Congress proposing the idea is here.  There’s a little bit of ripping on the HathiTrust as well.

I hope to be posting a little more frequently as my strength returns.  — Mark

The federal government wants to make its physical scientific collections accessible through consistent policies that are used to manage those collections.  A memorandum to that effect was issued yesterday by the Office of Science and Technology Policy Director John P. Holden.  I’m quoting part of the directive:

a) Develop and clearly describe procedures for making scientific collections more accessible to educators and researchers, including non-Federal scientists, to maximize public benefit.

b) Work with the Smithsonian Institution to ensure that information on the contents of and how to access the agency’s scientific collections is available on the Internet in a central Federal clearinghouse and to maintain participation in the Federal clearinghouse once it is established.

c) Use machine-readable and open formats, data standards, and common-core and extensible metadata for all new information creation and collection to facilitate search and discoverability and provide clear public guidance for accessing collections materials, consistent with the Executive Order on Making Open and Machine Readable the New Default for Government Information.

d) When available and where not limited by law, make freely and easily accessible to the public all digital files in the highest available fidelity and resolution, including, but not limited to, photographs, videos, and digital 3D models, and associated records and documentation, describing or characterizing objects in government-managed scientific collections.

e) Associate digital files describing or characterizing scientific collections with the agency’s collections catalog and the central Federal clearinghouse referenced in Section 3(b) of this memorandum. By default, this information should be in machine-readable and open formats.

The complete memorandum is here.  A press release from the OSTP describing the memorandum is here. – Mark

The ABA Council on Legal Education and Admissions to the Bar met over the weekend.  The Council decided to leave the faculty tenure requirement in place.  The news that the Council had considered weakening it to a requirement of job security met with intense opposition from individual faculty and the Association of American Law Schools.  Readers will probably know that I was in favor of the change because I believe it would law school administrations more flexibility in dealing with law school costs in times of lower enrollment (like now).  The National Law Journal published details surrounding the decision as well as a few others made at the meeting.

Harvard is seeking a Wikipedian in Residence.  That person, according to an article in The Atlantic, is “someone who can serve as a kind of liaison between Wikipedia and the academic, cultural, and intellectual institutions whose source material its entries rely on.”  That would be Harvard and its collections in this case.  Other major institutions such as the British Museum have such a person in place.  I think it’s a great idea though I wonder how the Wikipedia community will take to the idea.  There have been situations in the past where pages became battlegrounds between historians and the editors.

Salon features a story about McCutcheon v. FEC which is an election case pending before the Supreme Court.  The question presented is:

Federal law imposes two types of limits on individual political contributions. Base limits restrict the amount an individual may contribute to a candidate committee ($2,500 per election), a national-party committee ($30,800 per calendar year), a state, local, and district party committee ($10,000 per calendar year (combined limit)), and a political-action committee (“PAC”) ($5,000 per calendar year). 2 U.S.C. 441a(a)(1) (current limits provided). Biennial limits restrict the aggregate amount an individual may contribute biennially as follows: $46,200 to candidate committees; $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees (e.g., state parties and PACs). 2 U.S.C. 441a(a)(3) (current limits provided) (see Appendix at 20a (text of statute)). Appellants present five questions:

1. Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national-party committees.

2. Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.

3. Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially.

4. Whether the biennial limit on contributions to candidate committees, 2 U.S. C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

5. Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutionally too low.

If one hated Citizen United for striking down contribution limits, one will hate this case as well if the Court strikes down the remaining limits.  On the other hand, plutocrats with political interests everywhere should rejoice.

And finally, the Google/Viacom battle over alleged YouTube copyright violations was settled according to news reports.  Viacom lost twice at trial on the DMCA safe harbor provisions that YouTube claimed.  It took seven years to get to this point.  I’ve often said win, lose, or settle, the lawyers get paid.  CNET News has a good analysis of the case.  — 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

The Internet turned 25 years old today.  At least that is what several articles in the press are reporting.  That anniversary is somewhat in dispute, but hey, crowdsourcing is never wrong, right?  The news report on the local CBS radio outlet pointed out that anyone under 25 would not know a time without the Internet.  Well, duh.  Perspectives change.  I never knew a time without television, radio, telephones, cars, or any of the other technological advances that allow individuals to roam and communicate freely.  It’s evolution.  Anyone remember the telegraph?  Think of Morse code as packets sent over a wire to a receiving station, though a bit more manual than what we are used to today.  Evolution.

The Internet itself has evolved.  I don’t need to go into things like Gopher sites (remember them?).  I remember complaints in the early days when advertisers and merchandisers established web sites to sell us stuff.  Some believed this was the wrong direction for a medium with such a strong educational potential.  The Internet is now an enthusiastic marketing paradise for consumers and companies alike.  Education is in fact one of the products.

I want to harken back to a few events at the dawn of the Internet age that come to mind when these anniversaries pop up.  I don’t know if anyone remembers Usenet.  It was (and is still is) a global discussion board for all kinds of topics.  Law academics and technologists would use it to share ideas about the distribution of legal materials.  The discussions were substantive and interesting.  A message appeared in 5,000 newsgroups one day in April, 1994 from the law practice of Cantor and Siegel.  It offered firm services in regard to a green card lottery.  The discussion groups exploded in outrage.  My point about this is outrage or not, spam should join the terms death and taxes as certainties.  Wikipedia has more information about this.

The second event happened a little bit earlier.  Anyone remember Lotus 1-2-3?  It was the spreadsheet software of choice before Microsoft Excel hit the market.  Lotus announced in 1990 that it intended to sell CDs with contact and other demographic information for 120 million U.S. consumers.  It would include purchasing habits in the information set.  The collective outrage forced Lotus to cancel the project approximately one year later before any CDs were released.  Today the discussion focuses around how much of our information corporate collates.

I think we have more or less accepted the concept that we are tracked.  How secure that information is kept and who has access to it seems to dominate the conversation these days.  There are those, of course, who believe we shouldn’t be tracked at all.  I acknowledge their fight.  I think the best we can get is control over how our information is used in some form.  I’m not averse to being surprised in this policy fight, however.

My point for those 25 year olds who never knew a life without the Internet is simple.  You also may not have known an Internet without spam, without tracking, without government interference, without being characterized or classified.  Consider the cultural norms that have evolved with the Internet and decide if you’re happy with the trade-offs you accept for convenience.  The Internet wasn’t always the way it is now.  Some of those old norms still have value.  — Mark

 

The big news today is the announcement that Comcast is acquiring Time-Warner Cable (TWC) for $45 billion.  Internet activists are aghast at the idea as it has the potential to reduce competition between Internet service providers in markets served by both companies.  A petition is already posted on the White House web site urging the rejection of the merger.  Comcast has stated that it believes the merger will likely be approved, albeit with conditions.  It’s already stated that it would shed some 3,000,000 customers for the combined company to stay under or maintain a 30% market share.

I have a funny feeling that the merger will be approved as well due to the politics surrounding it.  I believe activists are right in that competition will suffer.  How many cable and Internet services exist in any given area?  Usually it’s one or two and in some major metropolitan areas it can be three or four.  The FCC wants to foster competition in cable and Internet services and approving the merger would seem to go against that policy.

About three weeks or so ago, the FCC lost a major case where its net neutrality rules were struck down.  The Court said that the FCC didn’t have the power under its rules to regulate information service providers.  The Court said that the FCC has the power to reclassify Internet providers as telecommunications carriers if it wanted to.  These can be regulated.  FCC chairman has made statements that he will take the Court up on its suggestion.  The problem, of course, is that the reclassification is a time consuming process subject to political pressure.

Regulation would prevent an Internet Service Provider from slowing down or blocking traffic from Internet companies.  A deliberately slow connection for Netflix or Amazon media streams isn’t good for that either company.  Payments from either would solve that problem without regulation.  It’s that kind of business model which is at stake.  Congress is not of one mind when it comes to allowing the FCC to regulate in this area or not.  Lobbyists, start your cash machines.

Let’s harken back several years when Comcast merged with NBC.  The FCC lost a similar case when it tried to prevent Comcast from slowing bit torrent traffic on its network.  The FCC’s leverage at that point was to impose net neutrality-like conditions on Comcast in approving the merger.  I suspect that there will be a similar result in this case.  The FCC, in this scenario, will get Comcast to abide by net neutrality principles in exchange for its takeover of TMC.  It’s a politically expedient outcome that will give the Commission more time to work on its net neutrality strategies.

One can only hope that Google starts building out last-mile fiber connections in more places than Kansas City and Austin to expand competition between carriers.  It takes a huge financial investment to wire up a city and Google is one of the few companies with both the money or interest in taking on the challenge.  – Mark

There is an interesting case out of Missouri where a federal judge has issued a preliminary injunction forbidding the town of Ellisville from prosecuting individuals for flashing their lights to warn of speed traps.  The town has an ordinance which restricts flashing lights.  The judge, however, said that individuals flashing their lights as a warning was expressive conduct and likely protected by the First Amendment.  The ABA Journal has more information on the case with a link to the opinion.  I’ve made lengthy road trips in the past with a CB radio in the car.  Among the usual trucker chatter were warnings of where “bears” were operating including mile marker details.  That isn’t much different from this case in my opinion, other than how the warning was given.

Justice Scalia was out and about earlier in the week.  He spoke at the University of Hawaii law school and suggested that while the Korematsu case upholding the internment of Japanese citizens was wrong, he wouldn’t be surprised in the Court issued a similar ruling in the future.  Quote the Justice:

“Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again.”

I understand that Guantanamo Bay has a warm climate at the very least.  CBS News has a report on the visit.  He also commented that the Court will have the last word on the NSA data collection.  As he said in his own charming way:

“The executive knows very well what’s going on and what the threats are. Congress can have hearings for accessing threats and find out what’s going on,” Scalia said. “We can’t have hearings. We sit back and let them bring stuff to us.”

This reminds me of the old saying that if one wants to know the truth about a disputed issue at trial, just ask twelve people who weren’t involved.

In a little bit of law school news there is a report that the Charleston Law School is up for sale.  The prospective buyer is for-profit InfiLaw.  Some legislators in South Carolina want to bring the law school to the College of Charleston or the University of South Carolina as a public institution.  How this transaction goes down will depend on local politics.  The State has the full report illustrated by a nice picture of the law library.

The New York Law Journal reports on the downsizing of the Albany Law School in New York.  Layoffs and buyouts are on the table.  There was apparently a discussion between the administration and the faculty on how to reduce costs and increase revenues.  One idea floated by the faculty was to admit lesser qualified students to increase enrollment and revenues.  From the article:

One Albany Law professor said a “small but vocal minority” of faculty want the school to lower its standards to boost its tuition revenues and lessen the chances of layoffs.  “It is a very selfish, selfish endeavor,” the professor said. “They are really trying to save their jobs, but they’ve ginned this up to make it look like we are denying academic rights.”

Faculty members are self-serving?  That never would have crossed my mind after some 36 years in legal education.  No.  Never.

And while we are on the subject of declining enrollments, let’s take a look at the latest statistics from the LSAC:

As of 1/24/14, there are 187,726 fall 2014 applications submitted by 26,379 applicants. Applicants are down 12.6% and applications are down 13.7% from 2013.  Last year at this time, we had 51% of the preliminary final applicant count.  Last year at this time, we had 57% of the preliminary final application count.

As George Takei might say, “Oh my.”  — Mark

 

 

 

 

 

 

 

Readers may remember the case where the U.K. government requested tapes contained in the Boston College archives consisting of interviews with I.R.A. members.  The nominal rationale for the request was to aid in solving a murder of an alleged British informant in 1972.  Britain asked the Justice Department for the tapes under a treaty that called for mutual assistance in criminal investigations.  The College resisted turning over the tapes and the matter went to litigation in federal court.  The District Court judge in Boston ordered the College to release 85 tapes from the interviews.  The Court of Appeals later modified that order for the release of 11 tapes.

The Chronicle of Higher Education has a lengthy article on how the Belfast Project was conceived and carried out.  It’s a story of secrecy and misunderstandings.  The secrecy came from the sensitivity of the subject matter.  Former I.R.A. members would not speak freely if they weren’t assured that their comments were held in confidence while they were alive.  The misunderstandings related to the secrecy.  The College was agreeable to the project.  There are conflicts, however, in the understanding of what legal protections the College could offer to interviewees.  The contracts offered to participants were not vetted in advance and did not contain key language defining the legal extent of confidentiality.

Two of the principles in the project are Anthony McIntyre and Ed Moloney.  McIntyre, a former member of the I.R.A. who spent a number of years in prison for his actions, conducted the interviews.  Moloney was the project director.  He wrote a book in 2008 called Voices From the Grave: Two Men’s War in Ireland which used quotes from two participants who had previously died.  The book essentially revealed the Project and drew attention from law enforcement officials in Britain and Ireland.  This showed more misunderstandings in that McIntyre and Moloney had no idea the mutual assistance treaty existed as they carried out the interviews.  The lack of communication and legal oversight put the parties at odds in defending against release.  The College appears to be blindsided in some respects as were McIntyre and Moloney.

The article is useful in that it is a cautionary tale on how not to organize and manage an archival project on a sensitive subject.  There are quotes from outside archivists and others on the need to put a legal team together in advance of collecting interviews.  The Belfast Project is essentially dead at this point.  Interviewees are requesting the return of their tapes.  The University has said that it will honor those requests to the extent that it can, whatever that means.  The litigation is over though the fallout from the Project continues.  –Mark

Here’s a bit of political contradiction.  A recent article in the Washington Post contained the comments of James L. Capra on Washington and Colorado’s initiatives to decriminalize marijuana for recreational use.  Capra is the Chief of Operations for the Drug Enforcement Agency and he’s not particularly happy about the legalization movement:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”

Contrast that to this report in CNN on recent comments made by President Obama:

Speaking to New Yorker editor David Remnick, Obama said he still viewed pot smoking negatively – but that on the whole, the drug wasn’t the social ill that it’s been viewed as in the past.

“As has been well documented, I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don’t think it is more dangerous than alcohol,” Obama told the weekly magazine.

The president said pot was actually less dangerous than alcohol “in terms of its impact on the individual consumer.”

“It’s not something I encourage, and I’ve told my daughters I think it’s a bad idea, a waste of time, not very healthy,” he said.

I have to believe that Capra might be a bit discouraged by the President’s comments.  Twenty years ago President Clinton had to make the absurd “I didn’t inhale” statement.  How far we’ve come.

For those who may be interested, the CRS has several reports on issues relating to the marijuana legalization movement:

State Marijuana Legalization Initiatives:  Implications for Federal Law Enforcement (Order Code R43164, September 9, 2013)

State Legalization of Recreational Marijuana:  Selected Legal Issues (Order Code R43034, April 5, 2013)

Medical Marijuana:  The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws (Order Code R42398, November 9, 2012)

Medical Marijuana:  Review and Analysis of Federal and State Policies (Order Code RL33211, April 2, 2010)

I can understand the desire to legalize and tax.  Some states might be able to partially dig themselves out of their pension problems if they tax legal product.  – Mark

That is the question Gary Lawson (Boston Univ. School of Law) attempts to offer an answer in One(?) Nation Over-Extended [SSRN]. Here’s the abstract:

The conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased returns from control over a large territory can swamp the transaction costs of building a winning coalition. The obvious solutions are a decrease in the size of the national government, an increase in the costs of constructing winning factional coalitions, or a breakup of the United States into smaller, more manageable units. The first and second options are unfeasible, and the third (secession) is unconstitutional even if feasible.

Interesting. — Joe

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

It’s cold in the Midwest.  The temperature is -15 outside as I write this.  I’m at home, comfortably indoors, as my institution had the good sense to close today.  I’m grateful as all commuter train service between Indiana and Chicago was cancelled making it impossible to get to the office in any event.  I spent the weekend shoveling excessive amounts of snow several times and can use the day off.  I’m being trailed by a calico kitten I rescued from my back yard on Christmas Eve.  If that’s the worst I have to deal with today I’ll take it.

The unexpected break gave me a chance to catch up on the news out there.  I’d like to recommend a couple of pieces.  One is from Brian Leiter in the Huffington Post.  He argues against mandatory experiential learning as it is being considered by the American Bar Association.  Personally, I’m a big fan of modifying the law school curriculum to include more practice oriented classes.  I can agree with Professor Leiter that the rules should allow schools to offer such classes and see where the market takes them.  Some people who want to be scholars would likely have no need for such learning.  Others, however, would benefit from changes in the curriculum.

The second article I would recommend is the commentary provided by Andrew Cohen in The Atlantic concerning the New Year’s Eve decision by a federal judge that struck down a drug test requirement before getting welfare benefits.  The state argued its “legitimate” concerns in preventing tax dollars used by recipients to buy drugs.  The Court, for the second time in this litigation struck down the requirement because the evidence didn’t support the state’s concern.  The Fourth Amendment factored in the decision as well on suspicionless drug testing.  Cohen quotes parts of the opinion and links to the full text.

I’m personally happy to see this result.  I can think of a parade of horribles in terms of policy decisions that could flow if the decision were otherwise.  I’ll give you one example.  It’s known that people drink and drive.  Or they use other stimulants that might impair them behind the wheel.  Would anyone care to take an alcohol and/or drug test to get or renew a driver’s license?  The state does expend considerable amounts of tax money to provide the licensing scheme as well as manpower and facilities for public safety.  It’s not that much of a leap to go from drug testing welfare recipients to drug testing license applicants.  There’s an actual track record based on DUI arrests and accidents.  I’ll be waiting for that kind of measure to be introduced in a state one of these days.    

Mark