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.

Mark

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.

Mark

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

Level_of_subjectivity_in_the_evaluation_on_search_quality2-570x286

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

“In the past year, Box’s sales in the legal industry grew more than 150 percent as customers like Perkins Coie, Wilson Sonsini and Fowler White Boggs use Box to collaborate internally and externally, manage and share information, and access legal documents on mobile devices,” wrote Nitin Gupta at Box Adds New Partners to Help Law Firms be More Competitive. In addition to being selected as the newest member of the ABA Advantage Program, Box is partnering with Intapp to prove law firms with a bridge between their legacy document management systems, offering a new integration with Guidance Software’s EnCase eDiscovery product, and has added 22 new end user legal app partners to the Company’s content sharing platform for the follow services:

  • Practice and case management: Rocket Matter, Amicus Attorney, Fastcase, Lex Machina and DirectLaw
  • Timekeeping and billing: Chrometa, Bill4Time and SimpleLegal
  • Access to lawyers: Avvo, UpCounsel, Plain Legal, LawPal and LegalReach
  • Courtroom information management: TrialPad, Lora Courtroom, iJuror, LawPavilion and TrialDirector
  • Productivity: iClient, Legal Viewer, Doc Scan Pro and Parallels

Folks might want to check out Box to avoid becoming a captive client of our very large “legal solutions” vendors. See, for example, Bob Ambrogi’s ABAJ column, Thomson Reuters’ cloud platform Firm Central emphasizes integration—at a cost:

The biggest downside to Firm Central is that all this integration carries a price. Firm Central’s base monthly subscription is $35 per seat, which is cheaper than most of its competitors. But that does not include the optional eBillity, which adds another $25. For the other Thomson Reuters integrations—WestlawNext, Westlaw Form Builder and Drafting Assistant—each requires its own subscription.

Even more unfortunate, when you ask what it would cost to add these products, you are directed to a salesperson rather than given a direct answer. What separates Firm Central from the practice management pack is its integration with other Thomson Reuters products. Unfortunately, the only way to get those integrations is through extra subscriptions.

Hat tip to Fastcase Teams Up with Box:

As soon as the integration is complete, you’ll have an option to store your documents to Box and access them on any device or app implementing the secure Box technology. … [T]he possibilities for what you can do with the documents you save from Fastcase are limited only by how those partners implement this technology. At some point you may even be able to sync your case management system with the research you perform on Fastcase as a result of these partnerships.

At Box Furthers its Push into Legal with New Integrations, Bob Ambrogi identifies the end user legal app providers that offer integration with Box now –“DirectLaw, Chrometa, Bill4Time, Plain Legal, TrialPad, Lora Courtroom, iJuror, Law Pavilion Plus, iClient, Legal Viewer, Doc Scan Pro and Parallels. The rest will become available in the first quarter of 2014.”

— Joe

Google’s fair use victory over the Authors Guild is the company’s second recent copyright victory.  Way back in 2007 the English Premier League and others sued YouTube for copyright infringement after it displayed highlight clips of EPL matches and other uploaded videos.  What started with a 39 page complaint filed on May 4, 2007 ended with a stipulation to dismiss the case filed on November 7, 2013:

Pursuant to Fed, R. Civ. P, 41(a)(1)(A)(2), all remaining plaintiffs, through counsel, hereby stipulate to the dismissal with prejudice of all their claims asserted in this action, with each party to bear its own costs, expenses and attorneys’ fees.

The dismissal came months after the plaintiffs were denied class action status.  The story is in the Guardian.   So, the case ends after 6 years or so and 461 docket entries.  Win or lose, the lawyers get paid.

Mark

Matthew Willens, a Chicago PI attorney who happens to teach part-time at Loyola-Chicago Law, has announced he is creating a $1,000 scholarship he will award to a prospective graduate student who is willing to skip law school and go into any other field. See his Anything But Law School Graduate Scholarship. HuffPost reports that Willens believes his initiative isn’t “anti-law school.” It’s “simply a supply-and-demand issue.” See also Elie Mystal’s ATL post.

On a related note, Elie Mystal reports on a Chicago Craigslist’s job offer from people who know law grads are miserable. See his Horrible Job Watch: Surprisingly Honest Terrible Job Offer. — Joe