And they are:

  1. William Howard Taft
  2. Donald Verrilli
  3. Eric Holder
  4. Jan Schlichtmann
  5. Johnnie Cochran
  6. Oliver Wendell Holmes, Jr.
  7. Alan Dershowitz
  8. Douglas H. Ginsburg
  9. Clarence Thomas
  10. Adam Reposa

From BLaw’s YouTube video:

Each year, during November, a charity called Movember encourages men to grow mustaches to raise money and awareness for men’s health issues, specifically prostate and testicular cancer initiatives.

Because of the unique relationship, throughout history, between the American lawyer and the mustache, we salute some of the most famous attorneys to wear a lip rug.

— Joe

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

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

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

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

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

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

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

“We plan to appeal the decision.”

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

Mark

At its November 2013 board meeting, the AALL E-board acted! By that I mean our elected officers finally adopted a formal resolution supporting UELMA “to aid its passage at the state level.” Quoting in pertinent part:

WHEREAS, members of the American Association of Law Libraries participated in the drafting of the Uniform Electronic Legal Material Act and have been instrumental in advocating for its adoption; now, therefore, be it

RESOLVED, that the American Association of Law Libraries supports enactment of the Uniform Electronic Legal Material Act in every state and the District of Columbia…

Better late than never. — Joe

Hat tip to Sally Peat’s BIALL Blog post for calling attention to Informed. Quoting from Informed’s hello world post:

Aim:

This blog has been set up with the aim of providing a neutral space for library and information professionals to share their thoughts about wider information issues.

Objectives:

To provide a neutral space for library and information professionals to publish blog posts on a range of wider information issues

To be outward-looking in our content

To create an audience within and outside of the profession

To provide a neutral space for library and information professionals to publish blog posts on a range of wider information issues

Neutrality is the main guiding principle of this project. It has been started by a small group of like-minded people, it is not affiliated to any groups. Our editorial process will involve volunteer editors reviewing posts prior to publication to ensure that posts are not libellous, slanderous or contain ad hominem attacks. People commenting on posts will also be required to adhere to these basic rules. Editors will not change the content of posts unless these rules are breached and will remain ideologically neutral.

To be outward-looking in our content

This blog will focus on wider information issues, highlighting the relevance to and impact of library and information professionals on society. There are lots of great blogs that are addressing key issues within the profession and our uniqueness will be this outward-looking focus.

To create an audience within and outside of the profession

Attracting an audience both within and outside of the profession is vital as this broad audience will enable us to demonstrate the relevance to and impact on society of library and information professionals.

This is probably the most succinct statement of purpose blog posts I’ve ever read. Based on the content of the posts already published, the Informed Team of bloggers is hitting their aim and objectives. Informed is highly recommended. — Joe

Here’s a bit of reading material now that 3D printers and scanners are inexpensive enough to ask Santa to give you one.

3-D Printing and Product Liability: Identifying the Obstacles [SSRN] by Nora Freeman Engstrom, Stanford Law School:

Abstract: Though just in its infancy, 3-D printing seems poised to transform the goods we buy, the products we use, and the world we inhabit. A question frequently raised about 3-D printing, though, is how product liability law will apply to 3-D-printed goods. Tackling that important and timely question, this Essay applies contemporary product liability law to defective products from home 3-D printers. The analysis reveals that if home 3-D printing really does take off, PL litigation as we know it may well, in large measure, dry up. And if it doesn’t, the technology threatens to unsettle the theoretical justification for product liability law’s development.

Patents, Meet Napster: 3D Printing and the Digitization of Things [SSRN] by Deven R. Desai, Thomas Jefferson School of Law and Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law:

Abstract: Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers dropped, individuals engaged with copyrighted work as never before. The business-to-business models of industrial copyright faltered and in some cases failed. Industries had to reorganize, and claimed foundations for copyright had to be re-examined. This Article examines a prime example the next phase of digitization: 3D printing and it implications on intellectual property law and practice.

3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain—sharing the plans on how to make something in exchange for exclusivity—may be meaningless in a world of digitized things. While these devices will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will force firms to rethink their business practices and courts to reexamine not only patent doctrine but also long established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and takedown provisions of the Digital Millennium Copyright Act to websites that host software enabling the 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now.

See also Michael Weinberg’s 3D Printing, Matisse, and the Arbitrariness of Copyright Terms (Discusses how a 3D-ed scanned and replicated 1909 Matisse bronze relief is the public domain in the US, but is still protected by copyright in France.) and his earlier Public Knowledge Policy Blog post Will 3D Scanners Usher in a New Era of Copyright Infringement?

If someone starts freaking out about how 3D scanners will somehow mean the end of intellectual property as we know it, tell them to take a deep breath.  Sit them down.  Scan their face.  Turn it into a 3D printed mug and fill that mug with whatever liquid you think will best help them to relax.

Instead of a beer coffee mug or a Matisse bronze, I’m thinking about scanning and printing the last print volume of Ohio’s official reports to use as a door stop because TR Legal’s publishing contract has terminated. — Joe

The Volokh Conspiracy played a large enough role to produce what most likely is the first ever published compilation of long-form essays about the influence a law prof blog’s collective postings by multiple legal scholars had on the debate over the merits of a piece of federal legislation which in the case of the Affordable Care Act reached SCOTUS for review. See A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan, Nov. 12, 2013) [Amazon]. Granted the essays are written by VC bloggers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, David Kopel and Illya Somin but this work is recommended for illustrating that law prof blogging can be viewed sometimes as “scholarship in action.”

Here’s the blurb:

The debate over the Affordable Care Act was one of the most important and public examinations of the Constitution in our history. At the forefront of that debate were the legal scholars blogging at the Volokh Conspiracy, who engaged in a spirited, erudite, and accessible discussion of the legal issues involved in the cases – beginning before the law was even passed. Several of the Volokh bloggers played key roles in developing the constitutional arguments against the ACA. Their blog posts and articles about the Act had a significant impact on both the public debate and the legal arguments in the case. It was perhaps the first time that a blog affected arguments submitted to the United States Supreme Court on a major issue. In the process, the bloggers helped legitimize a new type of legal discourse. This book compiles the discussion that unfolded at the Volokh Conspiracy blog into a readable narrative, enhanced with new context and analysis, as the contributors reflect on the Obamacare litigation with the advantage of hindsight. The different bloggers certainly did not always agree with each other, but the back-and-forth debates provide momentum as the reader follows the development of the arguments over time. A Conspiracy Against Obamacare exemplifies an important new form of legal discourse and public intellectualism.

Joe

And for how much?

“No other law blog has come close the impact SCOTUSBlog has had. It’s become the news source of record on the Supreme Court for lawyers, for the press, for the public, and even the justices and their clerks.” — Kevin O’Keefe, Real Lawyers Have Blogs

ABAJ’s Debra Cassens Weiss has confirmed that Tom Goldstein, founder of SCOTUSblog, plans to sell his blog next summer. She reports

Goldstein hopes that he can obtain press credentials to make SCOTUSblog more attractive to potential buyers, according to AP. His current expenses to run the blog, he says, are $500,000 a year.

This could get very interesting. Will BLaw, the current sponsor of SCOTUSblog, be bidding (or will BLaw convert USLW into a clone of SCOTUSblog)? WEXIS? Will the sale price mark the floor or ceiling of similar law-related blogs? — Joe

Inside Higher Ed is reporting about a study of law school faculty hiring practices that will appear in an upcoming issue of the Journal of Empirical Studies.  It’s called The Labor Market for New Law Professors (draft) and it is authored by Tracey E. George (Vanderbilt) and Albert H. Yoon (U. Toronto).  The authors studied hiring practices for the 2007-8 academic year.  The pattern of hiring appears that schools from all tiers would rather hire graduates from first tier institutions as faculty than lower ranked schools.  In fact, the articles states “nearly half of the new professors hired by accredited last schools in 2008 graduated from only three law schools, those of Harvard, Stanford and Yale Universities.”  This isn’t that surprising given a school’s drive to boost reputation and ranking.  Professor George, by the way, is a Stanford graduate.

The implication Inside Higher Ed draws is that these hiring practices belie a movement to teach practical skills in a changing curriculum when new faculty members are drawn from programs that emphasize theory.  I’m not so sure about this.  The study comes from the time that the job market started to collapse.  Schools tended to do what they always did back then, which was pretending there wasn’t a problem, or at least a lasting one.  Two things happened since then.  Enrollment collapsed (and continues to do so), and the American Bar Association is loosening the standards just enough for schools to experiment with the curriculum.  Some schools are reacting by adding transactional instruction in their classes.  It’s not a mass movement by any means but the market for law students may push that change further.

Other schools react by shrinking.  Some have bought out faculty or used other means to reduce the faculty roster.  It may seem conventional wisdom to think that reducing staff will solve the problem, but it’s not.  Paul Campos writes in a post on the Lawyers, Guns & Money blog:

As for expenses, these tend to be both homogenous and fixed, consisting largely of personnel compensation, in a context in which serious downsizing of labor costs can’t be undertaken without declaring a fiscal emergency — a move which has serious reputational costs — and physical plant operation. Costs that can as a matter of institutional politics be treated as variable — for example, library subscriptions, adjunct faculty, and low-status staff — are by comparison relatively small.

His full post is called “80% to 85% of ABA law schools are currently losing money.”  The greatest personnel expenditure in a law school is, of course, faculty salary.

I think the George and Yoon study is interesting.  They acknowledge in their draft that they study does not follow trends over time.  I would like to see a follow-up on faculty hiring practices that takes into account the last six years of the shrinking law school and how that has affected the composition of the law school faculty on skills vs. theory basis.

Mark

Sounds like a simple question that can be easily answered, right? Well, not according to a review of a recent “report” provided to our elected leaders at their November board meeting. See Membership Statistics 2019-2013 (Numbers as of May 31 of each year) behind AALL’s paywall.

The report includes a table for the “number of entities with AALL members” and itemizes AALL member entities in the follow categories:

  • Law School
  • Private Firm
  • Government & Court
  • Corporation
  • Other
  • Non-Affiliated

A couple of data definition questions. Did any member of the E-board seek clarification about the categories used? For example:

  • Does the “Corporation” category report data just for member corporate legal departments, etc., or does it include vendors?

Whatever it includes, “Corporation” membership declined from 80 in 2008-09 to 52 in 2012-13.

  • “Other” probably includes a couple of library consortia, non-profit, non-library-types but god knows what else. Vendors here?

Whatever this category’s stats capture, “Other” declined from 169 in 2008-09 to 133 in 2012-13.

  • As for “Non-Affiliated,” a footnote explains that the category covers those who “have not indicated an affiliation.”

Does that mean individual human beings are being included as institutions or entities in this head count? It’s kind of hard to draw any other conclusion.

Just the “facts”, please. Excluding the mysterious categories a/k/a “Other” and “Non-Affiliated,” but including “Corporations” under the assumption, right or wrong, that it captures corporate legal departments and the like, total law school + private firm + government and courts + corporations membership declined by 191 institutions, from 1,595 in 2008-09 to 1,404 in 2012-13. That’s only a 12% decline. Not bad. Not bad at all.

Oh wait, that’s about half the percentage decline for similar reporting periods reported in  “Table 5: AALL Libraries Estimated Information Budgets” published in the online editions of AALL’s Biennial Salary and Organizational Characteristics Survey.

There also is a substantial difference in the absolute number of AALL member libraries, institutions, entities, whatever, for similar reporting periods when the above reported stats are compared to stats used to estimate AALL member libraries total information budgets. Compare the below chart sourced with the data supplied to the E-board this month (which includes “Corporations” in the Private Sector category)

aall member entities 08 13

with the below chart compiled from AALL biennial survey data that was reported at Has AALL lost more than 50% of its institutional membership since 2001? (Nov. 4, 2013):

aall member libraries stats

What’s up with this? Hell if I know. I lean toward having more confidence in the committee that has been responsible for collecting and reporting AALL’s biennial survey findings. But  if  the data reported to the E-Board is correct,  then  AALL’s estimated total information budget stats for AALL member libraries are wildly inaccurate,  unless  someone recently decided to count “affiliations” at some sort of internal local level, like, for example, counting each branch office or each functional unit of a law firm as a unique institution, entity, whatever.

— Joe

The November issue of The CRIV Sheet provides summaries of vendor-themed sessions conducted during last summer’s AALL annual meeting, including for example:

  • “CRIV Vendor Roundtable” authored by Michelle Cosby, North Cosby Carolina Central University School of Law Library, at 3;
  • “Making Sense of the Numbers: Understanding Vendor Statistics” authored by Sara Paul Raffel, Paul Hastings LLP, at 4; and
  • “Off the Page and Beyond the Book: New Models for Buying and Selling Legal Information” authored by Todd Melnick, Fordham University Law Library, at 8.

If you didn’t attend the Seattle 2013 Rethinking AALL’s Value annual meeting, all of the session summaries in this month’s CRIV Sheet are highly recommended. They are not filled with the sort of happy talk we’ve come to expect for AALL HQ. CRIV, like us invoice-paying working stiffs, knows our vendors are not our partners.

Also recommended for working law librarians, is the call for contributions to The CRIV Sheet:

[A] solicitation for contributions to The CRIV Sheet: our content is so relevant because working librarians have volunteered to take the time to write about the vendor-relations issues they confront every day. As you work with vendors to build your collections, look for ways to cut costs, and deal with publishing practices that affect your work, please consider writing about those issues, and others, for The CRIV Sheet. — David Hollander, Editor, The CRIV Sheet.

— Joe

About Archive-It

Archive-It (www.archiveit.org) is a subscription based service launched in early 2006 at the Internet Archive. The service enables organizations to build, manage and preserve collections of web content. The service includes hosting of the data, access, and two copies stored in perpetuity. The service currently has almost 300 partner organizations in 46 U.S. states and 16 countries. These organizations have created over 2300 public collections which are browse-able and searchable at www.archiveit.org.

About Reed Technology

Reed Technology and Information Services Inc., part of the LexisNexis® family, serves its clients in the public and private sectors with the expertise required in the technology-focused fields of Web Archiving, IP services, and Life Sciences. Reed Tech Archives offers website and social media capture that can be easily archived and forensically preserved (www.reedarchives.com). These capabilities support capture of trademark infringement as well as compliance and e-discovery needs. Reed Tech Archives provides these services to law firms, corporate accounts, government and the financial industry.

Quoting from yesterday’s press release which announced that both parties have agreed “to jointly market and sell Archive-It, and continue to support the growing community of organizations currently using the service. The agreement combines the commercial archiving experience and resources of Reed Tech with the breadth and depth of the Internet Archive, the largest publicly available web archive in existence and the foremost provider of web archiving services for the cultural heritage marketplace.”

“Reed Tech is honored to be engaged in the alliance supporting and expanding the Archive-It mission to deliver world class digital collection and access services to a worldwide portfolio of clients,” said Dave Ballai, CIO/VP commercial solutions at Reed Tech. “The business combination expands the range of capabilities for further developing and delivering the Archive-It service to a steadily growing array of cultural heritage institutions.”

I’m not quite sure what to make of this deal. You? For more, see Gary Price’s LJ INFOdocket post. — Joe

Well perhaps and, if so, apparently only in … wait for it … Spain! As a friend would say, “you can’t make this shit up.”

Thomson Reuters ProView™ has partnered with third-party vendors to offer our customers the ability to manage their eBook libraries. This program allows users to read eBooks using the proprietary ProView platform, while using the library management system they prefer.

Through a library management system setup, librarians have a single view of all eBooks in their library – regardless of source – and will be able to manage eBook acquisitions, cataloging and circulation.  Libraries can purchase an eBook copy that can be accessed by any user – either named or anonymous – with check-in and check-out functionality.

Thomson Reuters Spain has currently partnered with Odilo on library management system development. Additional affiliations with partners in Spain will be available for release later in 2013.  Visit Odilo’s website to learn more about their capabilities.

Quoting from Library Management Systems.

One also cannot make this shit up — No one from Spain was in the audience when a TR rep displayed the above-linked web page to pitch the Company’s “library management systems” for ProView titles at an eBook session during ORALL’s Annual Meeting.

Here in the U.S., law librarians solve the problems created by “legal solutions” vendors like Thomson Reuters. At this point in time, I believe the solution lies in not buying a single TR ProView eBook until the acquired eBook can be loaned out and can be discovered by a vendor agnostic OPAC. Rumor has it that TR was but no longer is discussing the OPAC matter with EOS. — Joe

Intel has acquired Kno, a software provider for interactive textbooks. “[T]he main idea behind Kno is that the books are not only digitised but also include additional features to help students and teachers assess their progress, share information with others and generally get more engaged in the content,” wrote TechCrunch’s Ingrid Lunden and Rip Empson about the acquisition. They added

Although the pricing of the deal remains unclear, we have learned that the entire Kno team will be joining Intel as a result of the acquisition — with one notable exception. Osman Rashid, the co-founder and CEO (who is also a co-founder of Chegg), will not be joining the company.

In announcing the deal, John Galvin, VP of the Sales and Marketing Group at Intel Corporation and general manager of the World Ahead Program, explained

Intel has acquired Kno, a leading education-software company whose guiding mission is to change the way students learn. Much like Intel, Kno believes engagement is key to student success.

The acquisition of Kno boosts Intel’s global digital content library to more than 225,000 higher education and K-12 titles through existing partnerships with 75 educational publishers. Even more, the Kno platform provides administrators and teachers with the tools they need to easily assign, manage and monitor their digital learning content and assessments.

My hunch is that the demand for more interactive law eBooks, let’s call ’em “2nd gen Law eBooks”, will come from users who have become accustomed to interactive textbooks during the K through college educational experiences, if not sooner than then. — Joe

There is an interview with Judge Richard Posner that was published on The Daily Beast last Thursday.  Judge Posner states the obvious when he says he likes to write.  We learn that he isn’t interested in being considered for the Supreme Court:

At this point in your career, would you like to sit on the Supreme Court?

No. First I’m too old. I’m 74 and they don’t appoint people my age.

But you sound peppy.

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.

Judge Posner’s view of the Supreme Court is interesting, but that’s not the real news for me.  As to the matter of pets he says:

Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. I like animals generally. I’m very soft about animals. My cat is a Maine Coon named Pixie. What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats. She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house. She’s very social. She appears to recognize members of our families, kids and grandchildren. She’s a real sweetie. It’s one of the reasons I work at home a lot now. The nature of my work is such that I don’t really have to be in the office unless I’m hearing cases. I spend probably at least half the time at home working. Everything I need, I have with me or have electronic access to. One reason is that the cat wants us at home.

Well, meow.

Mark

From the YouTube video description:

David Wolfson, partner at Milbank, Tweed, Hadley & McCloy and chair of the firm’s professional development committee, talks with Bloomberg Law’s Lee Pacchia about the Milbank@Harvard program. The week-long course at Harvard Law School and Harvard Business School takes mid-level Milbank associates through a wide range of professional development courses.

Very interesting. Can’t wait for Thomas M. Cooley Law School to offer the same sort of program. — Joe

Are MOOCs just a fad or will MOOCs settle into being a useful tool to combat the rising costs in high education? Way too soon to tell but MOOCs are “higher education’s hot and sexy topic” right now. Judith A. Pirani, a consultant at the EDUCAUSE Center for Analysis and Research (ECAR) and president of Sheep Pond Associates, has published A Compendium of MOOC Perspectives, Research, and Resources. Recommended. — Joe

You can run an in-browser emulation of Berzerk, a multi-directional shooter video arcade game released in 1980 by Stern Electronics of Chicago but avoid at all costs Evil Otto. Alternatively, you might want to play Pitfall! That game was released by Activision in 1982. At the time, it is the second best-selling game made for the Atari 2600 (after Pac-Man), with over 4 million copies sold.

Both and many more early PC-Apple games as well as some early productivity programs such as WordStar, the most popular word-processing program of the early 1980s and the grand-daddy of mark-up coding, plus a 1979 version of VisiCalc, the first-ever spreadsheet program, are available as in-browser emulations from the Internet Archive’s new Historical Software Collection.

Hat tip to Bob Ambrogi’s Retro Fun: Try Out Historical Software (LawSites post). — Joe

LexisNexis prevailed in a case from the Sixth Circuit that was released a few days ago.  The issue concerned whether the arbitration clause in a contract for access to LexisNexis databases allowed for class arbitration.  The ultimate answer to that question was no.  The underlying issue in the case that triggered the lawsuit and appeal had to do with the practice LexisNexis employed in its flat fee access plans to attorneys.  I’ll let the Court explain it:

        LexisNexis (a business division of Reed Elsevier) provides legal-research services, primarily on-line. In 2007, Craig Crockett and his former law firm—Dehart & Crockett, P.C.—subscribed to a LexisNexis Subscription Plan. The Plan allowed subscribers unlimited access to certain legal databases for a flat, monthly fee.  Subscribers could access other databases for an additional fee. According to Crockett, LexisNexis told subscribers that a warning sign—such as a dollar ($) sign—would display if the subscriber was about to use a database outside of the Plan.

Several years after signing up for the Plan, Crockett complained to LexisNexis that his firm was being charged additional fees without any warning that the firm was using a database outside the Plan. LexisNexis allegedly insisted on payment of the additional fees anyway.

Those of us in academics working with our subscriptions to Lexis and Westlaw are very familiar with either premium databases not appearing or alternatively messages stating the desired content is not part of the current subscription.  It makes me wonder, assuming the allegations are true, why Lexis can’t manage flat fee plans.  Of course, we’ll never know since the dispute is heading to arbitration.

Though the Court is not sympathetic to Mr. Crockett’s legal arguments concerning how the arbitration clause in the contract is read (precedent is against him), it does offer this cautionary advice to prospective commercial consumers:

Crockett’s remaining argument is that, if read not to permit classwide arbitration, the arbitration clause is unconscionable. The clause is indeed as one-sided as Crockett says: the clause favors LexisNexis at every turn, and as a practical matter makes it economically unfeasible for Crockett or any other customer to assert the individual claims that Crockett seeks to assert here. The clause provides that any arbitration of any dispute concerning LexisNexis’s charges must occur in Dayton, Ohio, where LexisNexis is headquartered. The customer must pay his own legal fees, even if the arbitrator concludes that LexisNexis’s charges were improper. And unlike many corporations that require arbitration of disputes with their customers, LexisNexis makes its customer split the tab for the arbitrator’s fee.

The idea that the arbitration agreement in this case reflects the intent of anyone but LexisNexis is the purest legal fiction. But all of these things—the one-sided nature of the arbitration clause, and its adhesive nature—were also present in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013). And there the Supreme Court held that, all of those concerns notwithstanding, the absence of a class-action right does not render an arbitration agreement unenforceable. Id. at 2309 (The solution to Crockett’s problem is likely a market solution; as the district court observed, Westlaw’s agreement with its customers lacks any arbitration clause, much less a clause of the sort at issue here.)      Under Italian Colors, therefore, the agreement here is not unconscionable.

The case is Elsevier, Inc. v. Crockett, et al. (6th Cir. 12-3574, November 5, 2013).  Copies of the opinion are here and here.  Hat tip to Michael Ginsborg for the links.  As Paul Harvey would say, now you know the rest of the story.

Mark