William Mitchell has been granted a variance from the ABA’s distance learning rule. The ABA’s decision allows the “law school for the real world” to offer approximately 50% of its curriculum via online classes. From the press release:

Students who enroll in the new hybrid program will be on campus for at least one week each semester participating in 56 intensive hours of realistic simulations and other coursework. Students will prepare for their on-campus work through an e-learning curriculum designed by William Mitchell faculty to integrate legal doctrine with practical legal skills. In addition, students will have the opportunity to complete externships in their communities under the supervision of practicing attorneys. This innovative hybrid of on-campus and online learning will provide new access to those seeking a rigorous, experiential J.D. degree from an ABA-accredited law school.

William Mitchell claims “[t]he variance is the first of its kind and comes on the heels of a draft recommendation by the ABA Task Force on the Future of Legal Education that law schools be permitted to experiment and innovate.”

Hat tip to Alfred Brophy’s ABA Approves William Mitchell’s 50% on-line JD on The Faculty Lounge. — Joe

Things I read this morning:

Visits to Wikipedia pages in English declined by 21% in 2013.  The Register reports that this may be due to Google implementing its Knowledge Graph in its search results.  That’s where the search giant ads basic facts about the subject of the search.  Some of the information placed directly in the search results may fulfill the ultimate purpose of the query.  I’ll just add that Microsoft’s Bing product does the same thing.

Last week I wrote about the (predictable) reaction by law faculty to the ABA’s proposed accreditation standard that called for job security for faculty, though not requiring tenure.  Most of the arguments in favor of keeping tenure centered on academic freedom.  Inside Higher Ed has a lengthy article about Professor Louis Wozniak who teaches at the University of Illinois in the Engineering School.  The Board of Trustees at Illinois revoked his tenure for revealing the emotional state of student on his blog.  The article suggests that Wozniak is a “difficult” colleague.  I’ve dealt with all kinds of faculty over the years in the various law schools where I have worked.  Some of them were total jerks.  Could Wozniak’s situation become a cautionary tale for law if the new standards go into effect?

While we’re on the subject, this article in the ABA Journal about a faculty member barred from his campus due to anger issues is also worth reading.  Professor Joel Cornwell is suing the John Marshall Law School in Chicago under the ADA.  The suit claims that the school did not accommodate his Asperger’s Syndrome in violation of the Act.

Finally, this story from the Christian Science Monitor reports on Microsoft’s successor to Windows 8/8.1.  Microsoft will apparently detail what Windows 9 (name subject to change) will contain in terms of features.  A similar article in ZDNet suggests that Microsoft may make more significant changes that balance the tablet/desktop interface, though these aren’t detailed beyond running a windowed version of the Metro interface from the desktop.  That’s kind of the opposite of the way it is now where the desktop runs as a “Metro” selection.  Microsoft needs to figure out what it’s doing here.  It’s pretty much acknowledged that Windows 8 has not penetrated the market as much as Microsoft has liked.

I’m of the belief that the tablet interface makes no sense on a large, non-touch screen connected to a desktop computer.  I appreciate that the company has made it easy to bypass its tablet interface with the release of the Windows 8.1 update.  The tablet apps are interesting, but my traditional desktop applications work well, or well enough, that I need to change.  I may not be typical.  Other speculation in the news is that Windows 9 could be out in early 2015.

Mark

From the January 6, 2014 notice sent to academic law library subscribers:

We’re writing to ensure you are aware of a change regarding access to BNA (Bureau of National Affairs) publications available through LexisNexis®.  BNA was acquired by a new publisher and at their request, BNA sources will no longer be available on Lexis Advance® and lexis.com® after December 31, 2013. BNA documents saved to a folder or included in an Alert on Lexis Advance, will no longer be accessible.

We understand the value of this content which is why I’m thrilled to inform you that we’re providing access to Law360 content at no additional charge under your current LexisNexis subscription.  Law360 content will be available within Lexis Advance in late January.  Law360 is a premier current awareness publisher providing legal professionals with non-stop coverage of high-stakes litigation across  35+ practice areas. Faculty and students will benefit from the latest news and developments on topics and cases of interest.

In addition to Law360, Lexis Advance continues to have one of the largest collections of secondary content to meet your research needs including

[Yadda yadda]

And there you have it. Really, this isn’t a surprise, right? — Joe

Another frigid day with spotty train service means another day browsing the legal news and commentary.  There are several stories worth reading.  The first is the National Law Journal’s report about the AALS panel discussion on the ABA’s proposed standards.  Naturally, the standard eliminating tenure as a requirement for accreditation got significant discussion.  Faculty members on the panel as well as those in the audience were overwhelmingly against the proposal.  Their argument was that removing tenure would weaken academic freedom, among other negative outcomes.  This position is reflected in the published comments (scroll down to Terms and Conditions of Employment) to the draft of Standard 405 at the ABA web site.

The proposal was explained by Saint Louis University Professor Jeffry Lewis and ABA committee chair revising the accreditation standards.  He noted the text contains several options for job security and protection of academic freedom that can replace tenure.  The proposed ABA standards would require schools to have job restrictions in place that would attract competent faculty by having effective rules that provide provide job security and protect academic freedom.  The draft options and interpretations of the proposed standards are here

I wonder just how far schools will go in defining the faculty relationship if this is approved.  It will be pretty interesting to see what the employment contract’s terms sans tenure will be for new professors.  Will they be largely standardized or will they be negotiated individually?  How will publication reflect advancement?  Really, it could be the world turned upside down if this is approved.      

Publishers Weekly has a review of the top 10 library stories of 2013.  The items include the decision in the Google book scanning case, somewhat more liberal terms for libraries to lend e-books, and the emergence of the Digital Public Library of America.  The story nicely sums up the legal and technological issues affecting libraries in the last year.

Wandering over to the New Yorker finds two stories of interest.  One details the dismemberment of antiquarian books to sell parts to collectors through various exchanges, including eBay.  Everything is for sale these days.  Historical objects are obviously no exception.  The other story concerns the fight Apple is having with the court appointed compliance monitor over his rate (Apple is footing the bill, and it is large) and the level of access to executives and board members.  Apple filed objections in Court over the issues.  The story details the background to this particular aspect of the case.

Getting back to the tenure issue for a moment, I was reminded of the Pretenders’ song Brass In Pocket.  Or should the musical moment be Back On The Chain Gang?

Mark

LexisNexis and Fastcase announced that Collier TopForm & File will now be provided exclusively by Fastcase, and will be known simply as TopForm. From the press release:

The exclusive license will bring together the editorial expertise of LexisNexis, a leading provider of content and technology solutions, and the focused product development of Fastcase, an award winning legal software company. LexisNexis will continue editorial updates to the service through 2017, with Fastcase focusing on product development, especially a Web version of the TopForm software tightly integrated with Fastcase’s legal research service. The combination will produce the most authoritative, powerful bankruptcy software on the market.

Under LexisNexis, TopForm has been a CD-Rom product that only works on PCs. With this exclusive agreement, Fastcase will be taking TopForm to the web, adding new features, and essentially refreshing TopForm with smarter tools and technology. See product details at TopForm™ by Fastcase.

Also from the press release:

“This will offer a valuable benefit for professionals in the bankruptcy community,” said Fastcase President Phil Rosenthal. “Integrating the editorial expertise of LexisNexis and one of the industry’s best filing and form systems with Fastcase’s technology and online database will provide every TopForm subscriber with more access and helpful tools than ever before.”

— Joe

“In the spirit of collecting the wisdom of colleagues, I thought it would be interesting to do a poll on what we started or stopped in 2013 and on what we plan to start or stop in 2014. What products did we stop using? what new ones will we adopt in 2014?” — Jean O’Grady, On Firmer Ground

Jean has launched a brief Start/Stop 2013/2014 survey to collect your answers. She will report the findings after the survey closes on January 15th. — Joe

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

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

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

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

Mark

Legal and other professional publishers act as if they believe they have all the content they need. Hence the current goal is to repurpose the content they already have. In Ever Cuddled an Aardvark? Ever Studied Zymurgy? (Slaw), Robert McKay reviews this repurposing trend. Highly recommended.

Of course, what this means is that legal and other professional publishers do not want to spend money to acquire new content (and, in some cases, do not have the editorial staff to develop it). — Joe

I’ve had a quiet hiatus from the blog for the last several weeks or so.  Thanks, Joe.  I’ve appreciated the time off.  Now that it’s 2014, here are some of the items from the last several weeks that are worth noting.  If anyone is wondering if law school applications are stabilizing, the short answer is no.  The latest news out of the LSAC for the class of 2014 is not looking good:

As of 12/06/13, there are 90,032 Fall 2014 applications submitted by 14,171 applicants. Applicants are down 13.6% and applications are down 15.7% from 2013.  Last year at this time, we had 28% of the preliminary final applicant count.  Last year at this time, we had 16% of the preliminary final application count.

The graphs that accompany this text are here.  To quote Dr. Zachary Smith, “Oh the pain, the pain, the pain.”

Inside Higher Ed tells us about a change to university personnel policies by the Kansas Board of Regents that makes improper use of social media grounds for discipline up to an including termination.  The policy covers any facility for online publication and commentary.  The Board is reviewing the policy in light of criticisms but has not withdrawn it during the review.  Good thing I don’t work in Kansas as I might comment on matters such as evolution and climate change.  I wouldn’t want my views to conflict with those in Kansas.

The Chronicle of Higher Education (subscription) tells us that other disciplines beyond law are suffering job placement problems.  Some disciplines fare better than others.  Job listings for Ph.D.’s in History fell 7.3%.  Economics fell some 6.6% in 2013.  Foreign Languages and English, and Political Science had modest declines while Sociology seems to be on the rebound.  I remember ribbing to a friend of mine who had graduated with a philosophy degree if he knew how much cab medallions cost.  I investigated and I was shocked to discover that the median price of a cab medallion in Chicago is $357,000!  Note to law grads and others without job prospects:  driving a cab for a company may be viable; owning an independent cab in Chicago costs more than going to law school.  Who knew?

And finally, in the no-surprise at all category, the Authors Guild is appealing Judge Chin’s decision that Google’s book scanning project is fair use.  We’ll see how far they get as the case is similar to the HathiTrust case that was recently argued in the Second Circuit.  A summary of that proceeding is available from the Columbia University LibrariesPublishers Weekly has the story on the AG appeal.

Mark

“If you live in Canada, January 1st 2014 would be the day when the writings of Robert Frost, W.E.B. Du Bois, C.S. Lewis, Sylvia Plath, and even Aldous Huxley enter the public domain. “O Brave New World, that has such treasures in’t!” In Europe, the works of Fats Waller, Nikola Tesla, Sergei Rachmaninoff, Elinor Glyn, and hundreds of others will emerge into the public domain – where they are freely available for anyone to perform, translate, or republish. All of these public domain works can be freely digitized and archived, so that anyone can find and use them. Canadians can stage their own Chronicles of Narnia, and Europeans can set Tesla’s autobiography to Rachmaninoff’s most intricate passages, all without asking permission or violating the law.”

And what if you live in the US? See Duke University’s annual report, Public Domain Day: January 1, 2014 — The Road NOT Taken, for the answer. — Joe

Bob Ambrogi identifies his top ten legal tech picks. One, the most important one in my opinion, is

Competence in technology turned from dalliance to necessity

In August 2012, the American Bar Association voted to amend the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent in technology. Specifically, the ABA voted to amend the comment to Model Rule 1.1, governing lawyer competence, to say that, in addition to keeping abreast of changes in the law and its practice, a lawyer should keep abreast of “the benefits and risks associated with relevant technology.” During 2013, we saw several states follow up on the ABA’s action. Delaware became the first state to formally adopt a duty of technology competence and it created a Commission on Law and Technology to help lawyers comply. Massachusetts is considering adoption of this rule. And in Pennsylvania on Nov. 21, amendments took effect to that state’s professional conduct rules to comport with the ABA model rule.

(Links omitted).

For his complete list, go here. Bob asks “What am I missing? What would be on your list?” — Joe

I wrote in LLB’s “Hello World” post … oh, my bad, soon after Mark and I left the Law Professors Blog Network, Blog Emperor Caron deleted all of LLB’s posts, a first for a network blog. So I can’t quote from or link to this blog’s first post. So it goes.

Happy 1, 2, 3, 4, 5,  … running out of fingers to count and type at the same time, anniversary to our loyal readers. All the best to you and your loved ones for the new year. — Joe

And here’s the list.

Opinions for the Court

• Frank H. Easterbrook, Silverman v. Motorola Solutions, Inc., 2013 WL 4082893 (7th Cir. 2013)

• Susan Illston, In re National Security Letter, 930 F.Supp.2d 1064 (N.D. Cal. 2013)

• Brett Kavanaugh, Vann v. U.S. Department of the Interior, 701 F.3d 927 (D.C. Cir. 2012)

• Raymond Kethledge, Bennett v. State Farm Mutual Automobile Insurance Co., 731 F.3d 584 (6th Cir. 2013)

Concurrences, Dissents, Etc.

• Rosemary Barkett, U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012)

• Elena Kagan, American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013)

• Mark S. Massa, Indiana Gas Co. v. Indiana Finance Authority, 992 N.E.2d 678 (Ind. 2013)

• Milan D. Smith, Jr., Lane v. Facebook, Inc., 709 F.3d 791 (9th Cir. 2013)

Books

• Randall Kennedy, For Discrimination: Race, Affirmative Action, and the Law (Pantheon Books 2013)

• Margaret Klaw, Keeping It Civil: The Case of the Pre-nup and the Porsche & Other True Accounts from the Files of a Family Lawyer (Algonquin Books 2013)

• Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press 2012)

Long Articles

• Vanessa Banni-Viñas, Correcting a Ballerina’s Story: The Truth Behind Makletzova v. Diaghileff, 53 American Journal of Legal History 353 (2013)

• John H. Langbein, The Disappearance of Civil Trial in the United States, 122 Yale Law Journal 522 (2012)

• Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 California Law Review 1445 (2012)

News and Editorial

• Jess Bravin, In Mississippi, a Gray Area Between Black and White, Wall Street Journal, March 16, 2013 (updated March 28)

• Jack Chin, Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman, PrawfsBlawg, prawfsblawg.blogs.com, October 21, 2013

• Brandi Grissom, Trouble in Mind: How Should Criminals Who Are Mentally Ill Be Punished?, Texas Monthly, March 2013

Miscellany

• Stephen B. Kaplitt, Letter to Richard D. Trenk (June 17, 2013)

• David Keating, Letter to Senator Richard J. Durbin, Center for Competitive Politics (September 16, 2013)

• John G. Roberts, Jr., 2012 Year-End Report on the Federal Judiciary, Supreme Court of the United States, Public Information Office (December 31, 2012)

• Stephen E. Sachs, Jeffrey S. Bucholtz, and Daniel S. Epps, Brief of Professor Stephen E. Sachs as Amicus Curiae, Atlantic Marine Construction Co. v. U.S. District Court, 134 S.Ct. 568 (2013)

— Joe

Hat tip to Out of the Jungle for James Milles’ Legal Education in Crisis, and Why Law Libraries are Doomed [SSRN]. Here’s the abstract

The dual crises facing legal education—the economic crisis affecting both the job market and the pool of law school applicants, and the crisis of confidence in the ability of law schools and the ABA accreditation process to meet the needs of lawyers or society at large—have undermined the case for not only the autonomy, but the very existence, of law school libraries as we have known them. Legal education in the United States is about to undergo a long-term contraction, and law libraries will be among the first to go. A few law schools may abandon the traditional law library completely. Some law schools will see their libraries whittled away bit by bit as they attempt to answer “the Yirka Question” in the face of shrinking resources, reexamined priorities, and university centralization. What choices individual schools make will largely be driven by how they play the status game.

Joe

Hat tip to Jacob Gershman’s ‘Cultural Cachet’: A New Argument in Favor of Law School (WSJ Law Blog) for Tennessee Law Prof Lucy A. Jewel’s Tales of a Fourth Tier Nothing, a Response to Brian Tamanaha’s Failing Law Schools, Journal of the Legal Profession, Vol. 38, No. 1, 2013, [SSRN]. Here’s the abstract:

This is a paper written in response to Professor Brian Tamanaha’s Failing Law Schools. Much of the book is laudable for highlighting the serious structural, policy, and moral issues confronting legal education today. However, I disagree with several of Professor Tamanaha’s ideas for reforming our system. In this paper, I write from the perspective of a tenured legal writing professor teaching at a for-profit fourth tier school, in fact, one of the schools that Tamanaha repeatedly implies are the problem and not the solution for the legal education crisis.

Part One addresses the idea, which dates back to 1921, is that students at lower-tiered schools should be able to receive a different education (impliedly lower quality) than those students matriculating at higher ranked schools. Part Two counters Professor Tamanaha’s dichotomous view of legal scholarship and teaching, arguing that scholarship and legal theory carry a unique practical value for students, particularly in the context of a non-elite legal education. Part Three considers Tamanaha’s puzzling claim that clinical faculty and legal writing faculty must accept less job security and unequal pay in order to help save legal education.

Part Four of this paper presents an alternative explanation as to why students might choose to attend law school, even with the deep economic hardships involved. In terms of the continuing value of the J.D. degree, both Professor Tamanaha’s narrow economic analysis and the predominant counterarguments (e.g., you can do anything with a law degree!) miss the point that, for many, a law degree carries cultural value that operates apart (but sometimes in tandem) with economic capital. The idea that we should impose restraints on the ability of students to obtain a law degree, if they so choose, is somewhat paternalistic and at odds with the free market aspects of his analysis. The paper concludes by briefly developing social policy arguments that explain why we must work on reducing the institutionalized elitism that afflicts the legal profession and its educational system. Legal education must be reformed. But my suggestion is that we look for ways to make it better – less elitist and less hierarchical – as well as cheaper.

“You want talk about the non-economic benefits of going to law school? FINE! Let’s talk about the social and cultural “cachet” you’ll get, and see if it’s worth all the CASH you won’t ever be seeing again” wrote Ellie Mystal in his 10 Non-Economic Benefits Of Having A Law Degree post on ATL. — Joe