Hat tip to DigitalKoans for calling attention to Jingfeng Xia’s The Open Access Divide, Publications 2013, 1(3), 113-139; doi:10.3390/publications1030113. Here’s the abstract:

This paper is an attempt to review various aspects of the open access divide regarding the difference between those academics who support free sharing of data and scholarly output and those academics who do not. It provides a structured description by adopting the Ws doctrines emphasizing such questions as who, what, when, where and why for information-gathering. Using measurable variables to define a common expression of the open access divide, this study collects aggregated data from existing open access as well as non-open access publications including journal articles and extensive reports. The definition of the open access divide is integrated into the discussion of scholarship on a larger scale.

— Joe

Windows 8.1 became available last week to consumers wishing to upgrade their Windows 8 installations.  The update is free and is only available as a download through the Windows store.  I have a Windows 8 machine that is dedicated to music production.  My so-called productivity machine runs Windows 7 with no plans to upgrade to Windows 8.1 for the foreseeable future.  I am one of the Metro Modern Interface haters, though I’m not pathological about it compared to some of the comments I’ve read in tech stories.  All of my audio/video applications are based in the desktop.  I made the upgrade last weekend.

Aside from the download (about 3.5 GB), a lot of the actual installation happens behind innocuous screens that ask for patience or state “almost done” or words to that effect.  SkyDrive is deeply integrated into Windows with an option in the install process to use it or not (which Microsoft does not recommend).  I declined as I didn’t need cloud storage for everything I do.  Raw recorded multi-channel music files can be in the hundreds of megabytes each and I don’t need to waste the bandwidth to access them.

Microsoft seems to lean on machine owners to log into their systems using a Microsoft account, though there are ways to maintain a local account on the machine.  If a local account already exists, there is an option on the “create a Microsoft account” screen that includes a link to “Continue using my existing account.”  See the illustration and instructions here and here.

Depending on preferences, there are steps to disable Bing search as part of the desktop search, if one doesn’t want it, and steps to boot directly to the desktop (right click on the desktop taskbar and look for the option under navigation).  There are better options for grouping apps on the Start Screen.  The Start Button also returns with my favorite feature.  Right clicking on it brings up several options, including one to power down without having to invoke the charms list on the right side of the monitor.  The Start Button is worth it for that feature alone.  One other point worth mentioning is that antivirus software such as McAffee does not work with Windows 8.1.  The install process silently removes any installed antivirus software and replaces it with Windows Defender.

I understand what Microsoft is doing here by creating an operating system that can share information seamlessly over Windows powered devices.  It makes sense in a world where people use phones, tablets, and desktop machines and need that convenience.  It’s lost on me since a) I don’t use social media, so I’m not constantly sharing anything, b) have only one Windows 8 capable computer with no current plans to buy another, and c) use all of my applications via the desktop with a mouse and keyboard.  I appreciate the fact that Microsoft has built in settings that can be changed to disable most of the new features. I’ll be posting links to the better articles that offer Windows 8.1 tips over the next few days.


As I have noted in other forums, one of the ways American law schools are reacting to smaller classes is to eventually reduce the size of the faculty.  There is another approach in academia generally and it’s documented in a short essay on Slate titled “I Quit Academia,” an Important, Growing Subgenre of American Essays.”  Even tenured folks can find the work unpalatable despite the money and alleged job security.

Also on Slate is an article reprinted from Inside Higher Ed called “Classroom Confidential: Should professors have any expectation of email privacy?”  A faculty member at the University of Wisconsin-LaCrosse responded to students who could not access the Census.gov during the shutdown that Republicans and Tea Partiers were responsible for the lack of access.  Like anything sent to a third party, it made it into the wild and caused quite a stir.  The lesson?  Don’t say anything in email that one would be embarrassed if public.  A good example is this story from Inside Higher Ed, “Iowa TA Accidentally Sent Class Nude Photos.”  Oopsie.

Getting back to law, Harvard Law School announced that the Harvard Law School Program on the Legal Profession has started a Law Research Centers Papers series within the Legal Scholarship Network (LSN).  Papers related to the program are here.  The HLSP web site is here with links to papers and other publications.


At least not until after they appear. Louis J. Sirico, Jr. apologies for a robo ad that appeared on Legal Skills Prof Blog, a member of Blog Emperor Caron’s ROBOnanza:

I am sorry that this blog was used for a cheap political stun.  I have deleted the ad.

For details about the robo ad by a political group that disparaged one of his colleagues who is seeking election as a trial judge, see Sirico’s post, Ads Appearing on This Blog. — Joe

Hat tip to Legal Informatics Blog for calling attention to D’Aspremont and Van den Herik’s The Digitalization of the Assembly Line of Knowledge About Law: A Reinvention of the Confrontational Nature of Legal Scholarship? [SSRN]. Here’s the abstract:

This paper reflects upon the rise of new tools of production and dissemination of knowledge about law as well as their impact on the dynamics and the nature of the profession of legal scholar. Taking the contemporary international legal scholarship as a case-study, it discusses the potentially dramatic changes brought about by the new media of communication, not only with respect to the configuration of the assembly line of knowledge about law in the 21st century but also regarding the profession of legal academic as a whole.

This paper starts by distinguishing modes of law-making and modes of knowledge-production with a view to showing that these two modes of production of authoritative statements share are not always following radically different dynamics. It then recalls that the production of knowledge about law has always been estranged from the State and rested on a competitive social process between professionals. The paper subsequently makes the point that knowledge-producing processes in international legal scholarship have been dramatically altered in the cyber-age. Knowledge about international law is now created, selected and disseminated through previously unknown channels that cannot be influenced by the State. These mutations have required legal scholars to change how they envisage and construe their contribution to the production of knowledge and thus how they see their own profession. The paper finally formulates some concluding remarks about what it means for the discipline as a whole.

— Joe

“It’s always interesting to see how a lawyer’s oral argument marries up to their briefing, and for me, it helps give greater context to the points,” wrote Jason Wilson at The Annotated Oral Argument: Tucker v. Thomas (#SCOTX). Check out his example of annotating an oral argument  conducted before the Supreme Court of Texas. (NB: the annotation links to open source texts of court opinions and statutory code sections.) He adds, “If y’all like these annotated arguments, I can start posting more here or on Annotations.”

I think Jason is onto something here. While I have little need for Lone Star State annotated oral arguments here in the Buckeye State, I think e-publishing high court annotated oral arguments by an editorial staff that actually knows something (and links to open or opened resources) is a great idea. Hell, that’s why I buy Jones McClure’s annotated federal codes instead of … well, you know.

I would be very interested in annotated US Supreme Court oral arguments, ditto for the Supreme Court of Ohio, if produced by a reliable publisher like Jones McClure. At the SCOTUS level, who might that be? Hint — who is the sponsor of SCOTUSblog and the publisher of USLW?


Hat tip to Legal Research Plus for calling attention to this interesting NBER working paper:

Searching for Physical and Digital Media: The Evolution of Platforms for Finding Books by Michael R. Baye, Babur De los Santos, Matthijs R. Wildenbeest

NBER Working Paper No. 19519; Issued in October 2013

Abstract: This paper provides a data-driven overview of the different online platforms that consumers use to search for books and booksellers, and documents how the use of these platforms is shifting over time. Our data suggest that, as a result of digitization, consumers are increasingly conducting searches for books at retailer sites and closed systems (e.g., the Kindle and Nook) rather than at general search engines (e.g., Google or Bing). We also highlight a number of challenges that will make it difficult for researchers to accurately measure internet-based search behavior in the years to come. Finally, we highlight a number of open agenda items related to the pricing of books and other digital media, as well as consumer search behavior.


At Noon, Central Time, today, Rich Leiter and the gang will be hosting the PLL-SIS Executive Board at Law Librarian Conversations to discuss the new normal in law firm libraries. Topics include a proposed name change for PLL-SIS. Jean O’Grady, chair of the PLL Board, provides more information about the topics to be discussed including for example the success of the annual PLL Summit, on Dewey B Strategic. Sounds like a very interesting program. — Joe

Hat tip to Peter Martin for calling my attention to Citing Legally: Occasional observations about the citation of legal authorities by lawyers and judges. The blog is a byproduct of this year’s revision of Introduction to Basic Legal Citation (online edition hosted by LII) and the forthcoming revision of The Bluebook. Launched yesterday, Citing Legally’s first post is titled Statutes – Citation norms that reinforce copyright claims. Highly recommended. — Joe

I want to thank all the readers of old LLB for making our last month on the Law Professor Blogs Network such a smash hit. Not counting our We’re Moving post, Mark and I published only 2 posts on old LLB in September (because I forgot that I had scheduled them) while traffic reached record-breaking heights — 59,947 page views with 57,395 visits as measured by SiteMeter.

Wait a minute, that’s virtually a 1 to 1 ratio of views per visits. Ditto for August. Normally old LLB’s ratio was 1.4 page views per visit as logged by SiteMeter.  I need to amend my early statement:

Thank you robots for making the last two months so special for old LLB.

Typically about 50% of traffic to a web destination is generated by robots. The above 1:1.4 stat for old LLB included such robot traffic. Then there are botnets designed to mess with web traffic stats. See Christopher Steward and Suzanne Vranica’s Phony Web Traffic Tricks Digital Ads (WSJ).

In the case of old LLB’s August-September traffic increase, I think another acknowledgement must be sent out into the uncensored blogosphere:

Thanks Blog Emperor Caron for your tech crew’s “robust testing” before launching the Law Professor Blogs Network’s make-over in August.

Initially I thought googlebot was hitting “LPBN 2.0” just because of the implementation of the redesign generally. Perhaps not. No chance that robots hit old LLB during its last two months so frequently because of the sloppy implementation of robo-ads on Network blogs, right?

I don’t know about current Network authors but I’m thinking this is “bad for business”.  As illustrated by LLB’s SiteMeter stats, below, some but not all Network blogs have  experienced a similar — purely coincidental, right? — traffic pattern change starting in August. Oops.

And then there is the traffic log for one of two SiteMeters for Blog Emperor Caron’s own blog. Over one million page views in September and 2 million page views since August as of last evening.  See  the below screen capture. — Joe

Old LLB Traffic StatsTaxProf Blog SiteMeter Log

ALA’s Virtual Town Hall on eBooks will explore emerging subjects in the eBook lending arena, including digital preservation, reader accessibility, self-publisher engagement, and libraries as publishers. It will take place from 11 a.m. to noon Central time on Wednesday, October 23, 2013.

Panelists include:

  • Barbara Stripling, ALA president;
  • Maureen Sullivan, ALA immediate past president;
  • Keith Michael Fiels, ALA executive director;
  • Sari Feldman, executive director of the Cuyahoga County Public Library and DCWG cochair;
  • Robert Wolven, associate university librarian of Columbia University and DCWG cochair;
  • Alan S. Inouye, director of ALA’s Office for Information Technology Policy.

Register here.


Illinois is just one state in a long line that has imposed sales tax collection on out-of-state retailers when there are in-state affiliates that refer sales to that out-of-state retailer via links on the in-state affiliate’s web site.  These laws are pretty much aimed at Amazon and any other large retailer that use the same arrangements.  The Illinois General Assembly passed its own “Amazon tax” in 2011.  It was challenged by the Performance Marketing Association, Inc. Unlike the result in other challenges in other states, the PMA won at trial with the decision affirmed by the Illinois Supreme Court in a 6-1 opinion released last Friday.

The PMA argued that the tax collection requirement was discriminatory and as such was a violation of the Internet Tax Freedom Act (ITFA) (47 U.S.C. § 151 note (2000).  The provision which limits the collection of discriminatory taxes on electronic commerce as prohibited reads:

“(A) any tax imposed by a State or political subdivision thereof on electronic commerce that—

* * *

(iii) imposes an obligation to collect or pay tax on a different person or entity than in the case of transactions involving similar property, goods, services, or information accomplished through other means.” 47 U.S.C. § 151 note.

The distinction the Court draws comes from the fact that tax collecting requirements are not imposed on out-of-state retailers who enter into advertising campaigns with Illinois publishers and broadcasters.  The PMA argued that the taxing requirement comes into effect simply through a link on a web site which can be international in scope.  The Court agreed with this:

Under paragraph 3 of the definition section of the Use Tax Act, retailers who enter into contracts with Illinois publishers and broadcasters for advertising “disseminated primarily to consumers located in this State,” i.e., locally, are obligated to collect use tax. But Internet advertising is different. As the parties’ joint stipulation of facts states: “The home page and other publicly-available pages of any Internet website can be accessed from a computer, or other digital device, located anywhere in the world that is connected to the Internet via wire or radio signal. Thus, information appearing on a webpage is available and disseminated worldwide.” (Emphasis added.) Illinois law does not presently require out-of-state retailers who enter into performance marketing contracts for “offline” print or broadcast advertising which is disseminated nationally, or internationally, to collect Illinois use tax. However, under the Act, out-of-state retailers who enter into such contracts with Illinois Internet affiliates for the publication of online marketing—which is inherently national or international in scope and disseminated to a national or international audience—are required to collect Illinois use tax. In this way, by singling out retailers with Internet performance marketing arrangements for use tax collection, the Act imposes discriminatory taxes within the meaning of the ITFA.

The case is Performance Marketing Association, Inc. v. Brian Hamer, Directory of Revenue 2103 IL 114496.


Starting at slide 11, Bess Reynolds, Technical Services Manager, Debevoise & Plimpton LLP, addresses pain points, budgetary concerns and the failure of vendors to develop library management tools, issues all law libraries, large and small in the private and public sectors, face in acquiring and maintaining today’s digital resources. From her Oct. 4, 2013 presentation at LLNE’s Fall Meeting, “Acquiring and Maintaining Resources for the New Collection” [complete stack below], pain points include:

  • Substituting digital formats for print without proper notice;
  • Digital versions of print serials that circulated to many may come with a prohibitively high single user price tag; and
  • Creating proprietary platforms for eBooks thwarting single silo for discovery

With respect to vendors failing to develop library management tools, Bess notes that busy lawyers don’t have time to register themselves on web sites, manage their passwords and learn new platforms. Internal IT department restrictions designed to protect an institution’s network results in attorneys and librarians not able to install applications or vendor plug-ins. And, of course, any new vendor software scheme requires extensive in-house testing.

It is “important for publishers to hear directly from their customers” because official AALL vendor relations dogma maintains that “we don’t all have the same needs and perspectives.” I believe Bess Reynolds’ presentation underscores that working law librarians are grappling with the same issues regardless of their institutional setting when it comes to acquiring and maintaining resources for the new normal in collection development. — Joe

It’s an old story on Salary.com, covering jobs that are evolving or going extinct.  Librarian was the first in the slide show and the verdict was “evolving.”  The short version of the rationale included this statement:  “The new librarian is a digital archivist, savvy with searches, keywords and helpful websites.”  We’ll sure.  Those of us in law libraries understand the subject specialties and literature in detail when working with lawyers, faculty, students, and public patrons know that it is a bit more than that.  Nonetheless, in the spirit of Friday Fun, I offer my own short version of the Song of the Reference Librarian:

I can’t believe they pay me to Polly-waddle Google all day.

I sit on my butt in front of a screen and Polly-wolly Google all day.

Fair thee well, fair thee well, I’m Polly-wolly Googling all day.

I move a mouse and point and click, Polly-wolly Googling all day.

I’ve seen that Shirley Temple movie collection ad one time too many, and that’s what it turned into for me after probably the 100th time on screen.  Oh, and I had to Google the original lyrics so I could spell “wolly” correctly.  Librarians will still be around mining the Internet, if for no other reason than to show patrons that there is more to useful information than Wikipedia.    


Congressional lawmakers—more than two-fifths of whom are lawyers by education—often can’t resist from referring to their law school days when in need of a pithy anecdote for speechifying.

In remarks on the House and Senate floors, members of Congress this year brought up law school in a variety of ways, from arguing that an issue is too difficult to understand—not even a lawyer can figure it out!—to saying that a concept is so easy to grasp that even a first-year law student would not be vexed. Need to make fun of yourself? Mention how you didn’t get into Harvard Law School. Trying to fill time during a filibuster? Tell a story about law school. — Todd Ruger

Ruger proceeds to list seven of the best law school mentions in his National Law Journal article (free registration required). — Joe

And law profs don’t like student editors. Wow! And law reviews impact law prof careers negatively. Hum… . Why?

Those are the takeaways from a recent Loyola Law Review article, What Do U.S. Law Professors, Student Editors, Attorneys, and Judges Think about U.S. Law Reviews and the Need for Reform? by Richard A. Wise, Joseph C. Miller, Douglas P. Peters, Heather K. Terrell, Brett Holfeld, & Joe R. Neal [GSTF Digital Library, DOI: 10.5176/2251-2853_2.2.127]. Here’s the abstract

We surveyed 1325 law professors, 338 student editors, 215 attorneys, and 156 judges about their beliefs about U.S. law reviews and the need for reforms. Law reviews play a critical role in the law and legal education in the U.S. They are also one of the best means for social scientists to convey research about the law to legal professionals. Law professors were generally the most critical of law reviews and student editors were usually the least critical. Respondents identified several problems with law reviews. They believed that law review articles are too long. Most respondents also believed that U.S. law reviews have a negative effect on law professors’ careers and that they are not meeting the needs of attorneys and judges. The vast majority of respondents indicated that reforms are needed and that U.S. law reviews should implement blind, peer reviews. We also discuss the significance of our findings for the U.S. legal system and for social scientists who study the law.

About that negative career impact thing, Karen Sloan writes

The law professors surveyed had a more negative take on law review article selection than did the student editors, while the judges and practitioners were largely neutral on the issue. The law professors responded that law reviews frequently select articles based on the author’s credentials instead of the quality of the submitted article, and that law reviews don’t give adequate consideration to articles before making a decision on whether to accept them.

Quoting from Law Review Articles Need A Makeover, Study Finds (NLJ, Oct. 10, 2013; behind paywall).

In other words, “my submission is better than that other law prof’s submission.” Would peer review change that?  — Joe