But it is. Anne Ellis is retiring from Thomson Reuters at the end of this year. Hopefully she will make an appearance at the West Party in San Antonio so we all can give her a toast. But, if not, this one’s for you, Anne. All the best, Joe

A message to our colleagues and customers in the librarian community:

Fifteen years is an extraordinary run in any job. But 15 years with a front-row seat in service to the librarian community, at a time of unprecedented change in the legal market, makes the time Anne Ellis has led the Librarian Relations program for Thomson Reuters even more extraordinary. It is thus with a mixture of gratitude and genuine sadness that I inform you that Anne has decided to retire from Thomson Reuters, effective at the end of the year.

In her time at Thomson Reuters, legal information has truly gone digital, and Facebook friends and Twitter followers have replaced the Rolodex as symbols of one’s influence. But it’s also fair to measure one’s impact on the business by the number of customers and colleagues who would happily claim to be friends and admirers.

And by this measure, Anne is without peer.

Anne joined West Publishing with the charge to build a formal librarian relations program and forge stronger ties to the librarian community. She was the point for formal and informal communications with associations and customers on products, support, and research issues. And Anne was the face of our business with a customer group that expects nothing short of our best, and is uncompromising in holding us accountable. She has hosted countless advisory board meetings, industry roundtables and focus groups. She created and directed symposia and coursework that examined the future of the librarian profession and the profound impact ‘digital’ has had on the profession and our products. She has helped to put out a fire or two, and is a wonderful dinner companion. And through it all, Anne has conducted herself with grace and good humor that we should all aspire to.

Our business, the librarian community and the legal market are vastly different from 15 years ago. But change is inevitable. And Anne’s departure reminds us that we need to continue to focus on building long-term, productive and positive relationships with our most important constituents.

To ensure that we do just that, I am pleased to announce that Anne’s primary customer-facing responsibilities will be assumed by Lori Hedstrom, our National Manager of Librarian Relations. Lori and Anne have long partnered on our most important librarian programs, and I am confident that Lori will continue this important work with excellence and care, and do honor to Anne’s legacy. Please join me in congratulating Lori on her new role.

And as for Anne, I am certain that the next chapter will bring new adventures, and new ports of call. I am also certain that she won’t forget her old friends. Please join me in congratulating Anne on a job well done, and wishing her well in retirement. She has earned it.

All best,

Tom Pfeifer
Global Head of Sales & Customer Experience
Thomson Reuters Legal

Quoting from the abstract of Nicholas R. Parrillo’s Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266 (2013).

Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

Sounds like a very interesting read. The data files produced for this article can be downloaded here. — Joe

I wrote a post earlier this week on LG’s data collection practices on its smart TVs.  LG televisions apparently have a feature for collecting and transmitting to LG channel view information as well as file names from a connected USB stick.  There is a setting that allows a user to turn off the feature though when selected the information was still collected and transmitted.  The rationale for this was to customize ads sent to the TV based on viewing habits even though there was (allegedly) no personally identifiable information collected.

LG figured out it had a publicity problem on its hand.  The company issued a statement saying it will fix the problem with a firmware update that will actually turn off the feature when a user turns it off.  The same update will stop the reading of file names from attached devices as well.  LG admitted that data was transmitted though never stored on its servers.  What?  Then what was the point of transmitting it in the first place?  I think there is more to this than the company wants to admit.  Perhaps the information was sent to a third party who supplies the customized ads.  Who knows.   I think LG needs to be a bit more forthcoming on just what is going on here.

Details are in a report on CNET.


Yesterday, LexisNexis L&P announced two new legal eBook developments in the academic sector. The Company has reached an agreement with Follett bookstores that provides a means for students to buy Lexis eBooks in both brick-and-mortar and online store environments. According to the press release, “[S]tudents can pay for a LexisNexis(R) eBook in a Follett-run bookstore and receive a passcode for downloading the book online at the LexisNexis Store or they can buy codes directly online via efollett.com and use them to download related legal eBooks from LexisNexis.”

Second, LN announced the launch of LexisNexis® Digital Library – Professor Review Copies  to enable professor-only access to the core collection of LexisNexis law school textbooks for review. To the best of my knowledge this is the first major law eBook vendor to provide access to its catalog of academic eBooks for law school course adoption. Perhaps not; that depends on how one views the relationship between TR Legal and its spin-off West Academic.

Quoting from yesterday’s press release:

“Today’s law students were born digital and eBooks are simply ‘books’ to them, and that is why our strategy is to meet and exceed their expectations in the media format they want,” said Susan Slisz, vice president at LexisNexis. “Law professors are also embracing eBooks and increasingly need a fast and reliable way to find and review eBook titles for possible inclusion in their class curriculum.”

— Joe

The Increasingly Lengthy Long Run of the Law Reviews: Law Review Business 2012 – Circulation and Production [SSRN] by Ross Davies has been published at 2 Journal of Legal Metrics 245-271 (2013). Here’s the abstract:

This article is the latest in a series of simple annual studies of the sales of some leading law reviews, undertaken with an eye to getting an admittedly rough and partial sense of the state of publishing in the legal academy. Over the years, the data itself has turned out to be a little bit interesting in spots. More interesting (perhaps), and more amusing and worrisome (certainly), have been the continuing small discoveries that some law reviews report relatively low paid circulation numbers to the U.S. Postal Service (which appear only in tiny-type government forms buried in the rarely read front- or back-matter of the reporting law review), but then tout higher sales numbers in promotional sections of their websites. It is reminiscent of the way some law schools have number-fudged their presentation of other kinds of data to, for example, U.S. News & World Report. The law review-school comparison might prompt the reader to wonder light-heartedly how many law school deans were once law review editors. But answering that question would be too easy, and too far afield from the focus here on publishing in the legal academy. There is, however, another question whose answer might be more interesting, and more likely to lead to intriguing comparisons. The question: How have the size and composition of law review editorial staffs changed over time, in absolute terms and in terms of their relationship to the product they put out? Possible comparisons will probably suggest themselves. This year’s report covers the usual ground relating to paid circulation and associated editorial behavior. It also offers a limited and tentative first take on the production question.

For his thoughts about this topic, see Bob Berring’s Slaw post, Something to Hold Onto: Where Paper Makes a Stand. Both are highly recommended. — Joe

From the press release for ARL’s Annual Salary Survey, 2012-2013:

The 2012–2013 data show that Canadian ARL librarians’ salaries kept pace with inflation, but US ARL librarians’ salaries did not. The median salary for US ARL university libraries in 2012 was $67,257, an increase of 1.2% over the 2011–2012 median salary of $66,467. The US CPI rose 1.4% during the same period. The experience of academic librarians in Canada was more favorable: while the Canadian CPI rose 1.3%, median salaries in Canadian university libraries increased from $85,551 (Canadian dollars) to $87,120 (Canadian dollars) a rise of 1.8%.

The survey also found that “gender-based salary differentials persist in ARL libraries in 2012–2013. The overall salary for women in the 115 ARL university libraries is 95.9% of that paid to men.” For more, see ARL’s press release. — Joe

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.


What is the government interest?

This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts.   Legislative listing of such interests – – – whether in preambles, legislative history, or litigation – – – provides language but not necessarily meaning.

The above quote is Ruthann Robson’s (Professor of Law & University Distinguished Professor, CUNY School of Law) lead-in from her Constitutional Law Prof Blog post about San Diego law prof Dov Fox’s forthcoming George Washington Law Review article titled Interest Creep [SSRN].

From the abstract:

Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call interest creep. Interest creep is the uncritical expansion of underspecified interests like national security and child protection to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts.

— Joe

You bet. They can advocate vigorously for the official recognition of federal web communication programs (and not just FDsys) as essential government services to avoid future suspensions the next time the federal government shuts down (and there will be a next time). It’s not just about the provision of digital information. Web-based citizen services are essential. Perhaps the fiasco of healthcare.gov will raise the public profile of this issue. — Joe

There seems to be a convergence of stories recently about privacy and tracking lately.  If privacy isn’t dead it certainly seems to be fighting a losing battle while on life support.  Where to start?  There is a report in CNET on Vint Cerf’s statement, “Privacy may be an anomaly.”  The reason for that is the level of detail people are sharing through social media.  Another Cerf quote:  “Technology has outraced our social intellect.”  I find that hard to argue with that concept.  There are multitudes of ways to track people and their habits down to fine details.

An older story in Ars Technica tells that Facebook is working on a way to collect mouse movements.  As the story points out, it’s not uncommon for web sites to track where someone clicks on a page.  That’s one way to determine an ad’s effectiveness.  What Facebook intends to do is watch the mouse.  How does someone move along the page?  Where does the mouse hover and for how long?  Mobile views obviously do not use mice, but tracking in this context extends to tracking when a newsfeed is visible.  My understanding is that the Facebook like button is its own tracking device between sites whether one has a Facebook account or not.

The next item concerns the humble toothbrush, though it is symbolic of the so-called “Internet of things.”  The concept is promoted as a social good in that all of the dumb devices we use will become smart at some point and our interactivity with them will come with new conveniences.  Consider this statement from Salesforce CEO Marc Benioff as reported by ZDNET:

“Everything is on the Net. And we will be connected in phenomenal new ways,” said Benioff. Benioff highlighted how his toothbrush of the future will be connected. The new Philips toothbrush is Wi-Fi based and have GPS. “When I go into the dentist he won’t ask if I brushed. He will say what’s your login to your Philips account. There will be a whole new level of transparency with my dentist,” gushed Benioff.

Any marketer would gush over this level of personal detail.  It may benefit the doctor-patient relationship, but who else would have access to this information and how will it be used?  I’m not sure I would be comforted by doctor-patient confidentiality in these circumstances.  I’m sure it will all be in the terms and conditions for the device, or not, at least if the next story’s details are accurate.

A blogger in the U.K. has discovered that his LG smart TV sends details about his viewing habits back to LG servers.  Those habits also include the file names of items viewed from a connected USB stick.  There is a setting in the TV that purports to turn this behavior off (it’s on by default).  It doesn’t work as data is forwarded to LG no matter what the setting.  LG responded to this disclosure as reported in the story on Ars Technica:

“The advice we have been given is that unfortunately as you accepted the Terms and Conditions on your TV, your concerns would be best directed to the retailer,” the representatives wrote in a response to the blogger. “We understand you feel you should have been made aware of these T’s and C’s at the point of sale, and for obvious reasons LG are unable to pass comment on their actions.”

Or putting it another way, we don’t care if you’re put out by these practices.  Life’s good, as they say, depending on who has the power in these relationships.

When I think of Marc Benioff’s toothbrush scenario I can imagine smart devices coming with embedded chips that connect to the web automatically and upload information.  As of now the choice is ours as to whether to connect our devices to the web.  I have a DVD player that is web-enabled though I have not turned on that feature.  My TV set is huge, but also not connected to the web.  My choice, of course, and I may not be typical.  In fact, I’m sure I’m not.

I can predict that there will be a time when a web connection is going to be mandatory for some devices to even work out of the box.  It’s in every marketer’s interest if that came to be.  Or, if I wanted to be exotic, I can predict another pervasive wireless Internet that overlays the one we know and love.  It will just be for smart devices that will connect automatically for our “convenience.”  There may just be enough moneyed interests to make that happen.  Terms and conditions may or may not apply.


After Wells Fargo and Citibank released their studies of the financial performance of the AmLaw 200, Bloomberg Law’s Lee Pacchia interviewed law firm consultant Bruce MacEwen. On AMLaw Daily, see Wells Fargo: 2013’s Growth Continues at Anemic Pace and Citi: Firms’ Revenue Rose 2.7 Percent in Third Quarter (registration required for both stories).

More generally, see AmLaw Daily’s coverage of LegalView’s Legal Market Index report at Study: Demand for Legal Work Down 5 Percent This Year. Hat tip for this story to Brian Leiter’s Law School Reports post (screen capture below), now a member (again) of Blog Emperor Caron’s ROBOnanza. I’ve omitted the post’s link because I don’t recommend clicking on the “Download on Our Site, Full Version, Sign Up Free Trial” robo ad that was embedded in the post when I visited Brian Leiter’s Law School Reports. Why? Because download what from which site? what full version? free trial to what? — Joe

leiter law school reports ad

Is Axiom the bellwether for disruption in the legal industry? Bill Henderson thinks the answer is “yes.” “Axiom … is on the brink of demonstrating the benefits of the first mover advantage in law,” he writes. Axiom progress can be measured as having moved to the early adopter phase of market penetration in the corporate legal department market sector, the same market BigLaw competes in.

Axiom and large law firms are definitely targeting and servicing the same clientele — Fortune 100 legal departments. The substance of their work is also very similar — sophisticated, complex legal work related to disputes, transactions, and compliance.  But in many cases, the solutions offered by Axiom are radically different.

Bill Henderson, Professor of Law and Director of the Center on the Global Legal Profession at Indiana Univ. School of Law – Bloomington, explains in detail why he thinks the times they are a-changing and why “[t]his is bound to have the beneficial, balancing effect on the rest of us” in this Legal Whiteboard post. Highly recommended. See also, Michael Bonasso and William E. Vita’s A profession on the verge of a paradigm shift? (The Metropolitan Corporate Counsel, Nov. 3, 2013).

Do keep “legal solutions” provided by our very expensive professional legal services vendors in mind should you read Bill’s post. See, for example, Managed legal services: the way of the future? by Will Ashenmacher, Social Media Marketer, Large and Medium Law, Thomson Reuters:

Given the large-scale changes that the legal industry has seen even in just the past five years, the next decade or so is likely to be a turbulent one. The role that nontraditional law businesses like Axiom take, or do not take, will be of particular interesting.

— Joe

As (I hope) we all know by now, Congress.gov is moving into full production today and Thomas.gov’s tombstone is expected to read RIP, 1995-2013, soon. In case someone has not read Andrew Weber’s Sept. 23, 2013 In Custodia Legis post for guidance, see The Transition from THOMAS.gov to Congress.gov.

What may have been lost in this domain transition news is David Moore’s Oct. 29, 2013 announcement that OpenCongress.org has been acquired by the Sunlight Foundation from Participatory Politics Foundation. Details here. — Joe

Colosseum Builders’ John Miano “The Legal Research System of the Future” is a series of videos that present his ideas about how to design a large scale legal search service. He is sharing them “in the hope that someone will build a legal research system that is more than a Google box on top of a legal database.” The below video addresses how online legal content ought to be formatted. Highly recommended

Check Miano’s The Legal Research System of the Future for additional videos in this series. — Joe

Angel Sancho Ferrer, Research & Development Director in Content & Online Services (COLS),  Wolters Kluwer, South Europe, asks “how to measure search quality?” in a recent Intelligent Solutions Blog post. From a vendor’s perspective, he writes in his lead-up to answering the question:

To measure search quality helps us to improve our market position as it let us know (a) what are we able to do or not, (b) what are our competitors able to do or not, and (c) how should we act accordingly. By identifying pain points and proof points we can compare better our quality and communicate it better.

Ferrer discusses the issue in qualitative, one may say subjective, terms (see below) without going into metrics. That being said, How to Measure Search Quality? is still recommended reading. The post can, for example, be used as an introduction to teaching legal research in both print and electronic formats.

Do note that “searching for a particular document” probably refers to a look-up search for a known document, not TR Legal’s early marketing nonsense about how WLN’s West Search was great for finding that mythical one document which addresses all issues (and hopefully in the client of the researcher’s favor). — Joe


On Concurring Opinions, Margot Kaminski provides her analysis of the leaked draft of the TPP’s (Trans-Pacific Partnership) Intellectual Property Rights agreement that was published by WikiLeaks just ahead of Nov. 19-24, 2013 TPP Chief Negotiators summit in Salt Lake City. See Kaminski’s Capture, sunlight, and the TPP leak and The TPP and Copyright.

Quoting from the WikiLeaks announcement about the draft TPP’s Intellectual Property Rights:

The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP. … The chapter published by WikiLeaks is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents. Significantly, the released text includes the negotiation positions and disagreements between all 12 prospective member states.

“It’s not a pretty picture,” wrote EFF’s Maira Sutton and Parker Higgins. They examine the following issues presented in the leaked draft:

  • Copyright Terms
  • Fair Use and Fair Dealing
  • Intermediary liability
  • Anti-Circumvention
  • Temporary Copies
  • Patents

From locking in excessive copyright term limits to further entrenching failed policies that give legal teeth to Digital Rights Management (DRM) tools, the TPP text we’ve seen today reflects a terrible but unsurprising truth: an agreement negotiated in near-total secrecy, including corporations but excluding the public, comes out as an anti-user wish list of industry-friendly policies.

For details, see Sutton and Higgins’ TPP Leak Confirms the Worst: US Negotiators Still Trying to Trade Away Internet Freedoms. — Joe