On Tom Glocer’s blog, former TRI CEO Tom Glocer returned to the day, some 30 years ago, when he and fellow Yale LS classmate, Ron Wright, launched a computer game at YLS that was designed to be a teaching aid for pre-trial discovery. The program apparently was well received at Yale. It even made the New York Times. Glocer republished the article in his 30th Anniversary Post – Can Computers Teach the Law? post. [Glitchy direct link warning; hence the above link to the blog’s front page.] From Computer Gives Yale Law Students a Taste of Court Process (NYT, Dec. 25, 1983):

Professor Fiss, one of Yale’s three professors teaching civil procedure this semester, is replacing what was a written exercise with a computer game created by Mr. Glocer and Mr. Wright. Process of Discovery.

OK, so the NYT article was Christmas Day newspaper fodder. Still, it’s too bad Glocer didn’t bring that sort of innovation to the table at Thomson Reuters. Then again, WEXIS is the cemetery for innovative thinkers. Perhaps he tried.

Dear Tom,

Don’t know about your non-compete clause but … why not start up an Etsy eCommerce site for one-off  e-“legal solutions” like altSEs, apps, etc., handmade by legal technologists? My hunch is many of those creative folks wouldn’t mind giving you a 4% sales commission for the exposure they might get from a legal Etsy site.

Your pal, Joe

Help Us Improve The Bluebook !

The editors of The Bluebook: A Uniform System of Citation are about to embark on the exciting task of making revisions for the forthcoming Twentieth Edition, and we need your help.  We rely on user input to guide our revisions to The Bluebook. This survey is an opportunity for you to share your ideas with us as we update The Bluebook so that we can target our revisions to best serve your needs.

Please take a few minutes to fill out our survey at  www.legalbluebook.com/survey.  Surveys must be received by November 8, 2013, in order to be considered for the Twentieth Edition. Comments and suggestions are also welcome through e-mail to editor@legalbluebook.com.

Bonus Prize:

As an added incentive for the completion of our survey, we will select five participants at random to receive a Kindle Paperwhite e-reader. An additional twenty participants will be randomly selected to receive a free copy of the Twentieth Edition as well as a two-year subscription to The Bluebook Online (www.legalbluebook.com). Winners will be notified by December 8, 2013.

Source: law-lib announcement (republished with permission). — Joe

Hat tip to Jean O’Grady for calling attention to yesterday’s re-launch of the product now known as “Business Law Center on WestlawNext.” After giving a brief history of Thomson Reuters’ many bungled attempts since acquiring Global Securities Information (GSI) in 2005, Jean provides an overview of Business Law Center and comments on this development.

This relaunch is surely about regaining lost “good will” and reinforcing credibility in the corporate practice space. But I suspect that the Business Center is a beachhead from which a greater initiative will be launched. It is becoming increasingly clear that as content has become commoditized, the large legal publishers will maintain their growth and advantage by providing more integrated content, enhancing context and folding content into tools for process improvement.

In this case, the battleground is for control of the transactional desktop. See Thomson Reuters Re-Launches Westlaw Business (Again): The Business Law Center and the Next Great Battle for the Corporate Lawyer’s Desktop on Dewey B Strategic. Highly recommended.

If interested, see also TR’s press release, Thomson Reuters Introduces Business Law Center on WestlawNext: Next generation of business law research supported by Experts On-Call dedicated research assistance, and its companion podcast discussing Experts On-Call.

Joe

“Now I’m ready to close my eyes. Now I’m ready to close my mind. … Now I wanna be your dog.

Come on!” — The Stooges

After yadda-yadda-ing about AALL’s prodigious generation of a lot of words that have no real world consequences, the e-Board’s hired help writes

Throughout the year I met with legal publishers in person or by phone to discuss our policies and resource guides and to reiterate the importance of compliance with the fair business practices principles.

And yet no news that even one vendor has committed in whole or in part to Guide to Fair Business Practices for Legal Publishers, 3d ed. Securing commitments was a stated goal, remember? None so far posted. Commitments in whole or in part and outright rejections in the written word authored by AALL’s “vendor partners” is one of those proof-of-concept things.

I continued to expand the list of publishers with whom I am in regular communication, providing them with news about our activities as well as feedback about a wide range of issues of concern to our membership.

Does the list really need to be more extensive than TR Legal Solutions, LexisNexis, BLaw-BNA and Wolters Kluwer. Granted it might be difficult to engage WK in regular communications but … just keeping a feedback loop open with AALL’s so-called major “vendor partners” about a narrow range of issues is hard enough. CRIV Unleashed can handle the rest.

But what really struck me as odd in this year-end review was the following statement from the September 2013 Vendor Liasion Update:

I believe we are in a long period of transition for law libraries and legal publishing as we all struggle to meet the changing demands of legal information users. Law librarians and legal publishers must keep the lines of communication open to ensure affordable and effective delivery of information services. I pledge my support for continuing this dialogue and look forward to working with both groups in the process.

Wait a minute — “working with both groups”! Who the hell pays for this program?! So much for consumer advocacy, the vendor liaison program way. — Joe

Karen Sloan at the National Law Journal is highlighting a new public blog written by law school deans.  The idea is to regularly offer a dean’s perspective about the current state of law schools into the public discourse.  I think it’s about time.  As the article notes, law school deans have occasionally published pieces on blogs and major news outlets, often to sharp criticism.  Many deans may have been surprised by the reaction to their pieces.  This outlet, on the other hand, gives them a chance to respond to critics and continue the conversation about law school trends.

It’s one thing to express views to ABA regulators in private.  It’s certainly another to take a public stand on the nature of the curriculum, law school debt, and the job market. Frank Wu is quoted as supporting the idea:  “We’re playing defense, and I don’t want to keep playing defense. My message to my decanal colleagues is, ‘You’ve got to do this.'” I agree, provided that the contributors are candid enough.  Posts that say things aren’t that bad should be backed by realistic arguments and evidence to that effect.  And when things are bad, well, there should be responses that address the problems.

The article is unclear as to whether the blog has begun publishing.  The blog, however, is located here.  Posts started to appear on October 4th.  Let the discussion begin

Mark

From the WSJ’s Jess Bravin interview with Justice Kennedy:

Of the 9,000 [petitions] we mark about 500 for discussion. From the 500 we discuss, we should take about 100, 120. Lately we’ve been taking only 80. There’s not a lot of emotional or intellectual capital expended arguing over whether we should take the case.  If it’s a really important case and we feel badly that it wasn’t taken, there will be another one [sooner or later] on the same issue.

For more, see Justice Kennedy On Choosing Cases, ‘Empathy,’ And Diversity (WSJ Law Blog). Hat tip to Cynthia Fountaine’s Civil Procedure & Federal Courts Blog post.

And with a hat tip to Eugene Volokh’s post, note this exchange about checking out what blogging law profs have to say after cert has been granted. From Jess Bravin’s Justice Kennedy On Law School, Blogging, And Popular Culture (WSJ Law Blog):

Q: Chief Justice John Roberts, among others, has criticized law reviews for publishing articles on obscure subjects that offer little assistance to the bar and bench. I understand you agree — but have found a substitute.

A: Professors are back in the act with the blogs. Orin Kerr, one of my former clerks, with criminal procedure [and] the internet area, Mike Dorf, Jack Goldsmith. So the professors within 72 hours have a comment on the court opinion, which is helpful, and they are beginning to comment on when the certs are granted. And I like that.

Q: So you’re reading blog posts after cert grants?

A: I have my clerks do it, especially with the ones when we’ve granted cert, to see how they think about what the issues are.

Joe

Google and Facebook are getting to be more and more like each other when it comes to taking advantage of user information.  Google announced today that it will show a +1 and picture of the friend who gave the recommendation in ads and searches.  These are called “shared endorsements.”  Google does offer a mechanism to opt out.  There is a check box in Google Account settings that reads “Based upon my activity, Google may show my name and profile photo in shared endorsements that appear in ads.”  The box is checked by default.  Unchecking it prevents sharing.  Press reports on the new setting are in PC Magazine and ZDNet.  The new setting goes into effect on November 11.

Facebook is making a change to privacy settings on the social network as well.  It is removing the ability for an individual to hide their timeline from search by name.  Facebook had eliminated the setting a while back for those who had not selected it.  This action now removes the opt-out for the less than 1% of accounts that selected it, calling it “and old search setting.”  The site suggests using other privacy settings to limit information that can be seen by others.  I can image there are indignant individuals who use Facebook but resent the lack of control over privacy.  Then there are individuals who have genuine privacy concerns, such as hiding from stalkers or abusive ex-’s.   The report in Ars Technica has the details.

Mark

Judge Posner made Thomson Reuters’ “Nobel-class” Citation Laureates list this year. From the press release:

The annual Thomson Reuters Citation Laureates study is based on analysis of proprietary data from the research and citation database, Web of Science™, which identifies the most influential researchers in the categories of chemistry, physics, physiology or medicine, and economics. Based on a thorough review of citations to each person’s research, the company names these high-impact researchers as Thomson Reuters Citation Laureates and predicts they will be Nobel Prize winners, either this year or in the future.

(Emphasis added.)

Due note that TR’s annual ritual spits out enough names to get it “right” often enough eventually. See TR’s ScienceWatch list of successful predictions.

The Noble Prize in Economics will be announced on Oct. 14, 2013. I’m hoping Posner gets the nod. Then the only way his former faculty colleague at the University of Chicago Law School can one-up Posner is if Scalia is canonized by the Catholic Church. Wait ‘n see.

Hat tip to Brian Leiter’s Law School Reports. — Joe

Launched in 1992, the line-mode browser “was the first web browser with a cross-platform codebase so it could be installed on many different kinds of computers. It was a relatively simple piece of software with a very basic interface, but in the early days of the web, it was instrumental in demonstrating the power of this new medium.” You can revisit the very first universally accessible web browser by clicking on the “Launch Line Mode Brower” button here.

Hat tip to Nat Torkington’s Four short links: 7 October 2013 (O’Reilly Radar) for this gem.  — Joe

Raymond Blijd, Project Manager, Online Innovation, Wolters Kluwer Legal & Regulatory, admits that designing a legal research interface for the small screen remains a challenge but he predicts the era of desktop-based legal research is coming to a close. His prediction is based on desktop usage studies and consumer purchasing trends for IT equipment. Once document creation moves to the small screen, so will legal research according to Blijd in his Intelligent Solutions Blog post The Death of Legal Research on Desktop.

Joe

From the blurb for Alan Dershowitz’s Taking the Stand: My Life in the Law (Crown, Oct, 2013):

In Taking the Stand, Dershowitz reveals the evolution of his own thinking on such fundamental issues as censorship and the First Amendment, Civil Rights, Abortion, homocide and the increasing role that science plays in a legal defense. Alan Dershowitz, the Felix Frankfurter Professor of Law at Harvard University, and the author of such acclaimed bestsellers as Chutzpah, The Best Defense, and Reversal of Fortune, for the first time recounts his legal biography, describing his struggles academically at Yeshiva High School growning up in Williamsburg, Brooklyn, his successes at Yale, clerking for Supreme Court Justice Arthur Goldberg, his appointment to full professor at the Harvard at age 28, the youngest in the school’s history. Dershowitz went on to work on many of the most celebrated cases in the land, from appealing (successfully) Claus Von Bulow’s conviction for the murder of his wife Happy, to the O.J. Simpson trial, to defending Mike Tyson, Leona Helmsley, Patty Hearst, and countless others.  He is currently part of the legal team advising Julian Assange.

Joe

Seton Hall Law has rescinded last summer’s termination notices to all its untenured law faculty. On ATL, David Lat reports

Word on the street is that [Seton Hall Law] did so by finding enough senior faculty to either retire or move into a quasi-retirement, in which they keep their offices, continue to teach (at a reduced level), and continued to draw a paycheck (at a reduced level). Much remains unchanged when a professor enters this state, but the savings that can be realized from transitioning a senior tenured professor to a more flexible arrangement are substantial. We understand that the school will have reached deals with about a dozen or so faculty members when all is said and done.

Lat also reports Seton Hall hopes to be “rightsized” by the 2017 academic year. For details see his Law School Rightsizing: This Is How You Do It on ATL.

Joe

Remember when Litchfield Law School was considered “the best” law school to attend and Harvard Law School was floundering, almost to the point of closing before Story was hired?

In 1827, the struggling young law school was down to only one faculty member and one student. In this year, an enterprising alumnus stepped in to save the school by establishing the Dane Professorship of Law, and insisting that the chair be given to Joseph Story, the nation’s youngest Supreme Court justice. Story believed in the concept of an elite American law school, based on merit and dedicated to public service: a tradition that continues today.

Quoting from Harvard Law School’s Our History.

One can make the case that the turning point in the creation of the today’s hierarchical structure of the legal academy was the hiring of Story to teach at HLS. Of course it took the Story-Langdell-Ames trifecta to establish the “Harvard Model” as the standard by which all law schools were evaluated.  By the 1920s, the norm was becoming “schools with a ‘scholarly law school dean’ who would make them into a ‘nursery for judges’ that will make American law what American law ought to be through law reform and legal research activities.”

The progeny of the “Harvard Model” is the enduring pecking order of law school status inside and outside the legal academy. In Enduring Hierarchies in American Legal Education [SSRN](Indiana Law Journal, Forthcoming), Arewa, Morriss & Henderson make the case for the importance of understanding today’s law school hierarchies.

Understanding enduring law school hierarchies is important for four key reasons.

1. Defining of Educational Goals. The legal academy places considerable––and, we believe, overly great––weight on institutional prestige in everything from article placement decisions (by both editors and authors) to hiring, promotion, and tenure Yet, as Russell Korobkin argues, prestige competition can channel behavior in productive directions. A clearer understanding of the hierarchy’s nature can play a role in shifting competition toward more productive avenues.

2. Effective Reform Efforts. Understanding the enduring nature of the positional competition among law schools is essential to the ongoing law school reform efforts. Current debates over the role of U.S. News’s rankings largely ignore the pre-existing competition and divisions among law schools. As a result, measures such as calls for schools to decline to participate in U.S. News’s annual surveys are based on the false premise that doing away with or changing a particular ranking will end the “arms race” of competition among schools for status. For better or worse, the quest for status is endemic to lawyers and law professors.

3. Labor Market Outcomes. The law school hierarchy maps onto a parallel hierarchy on employment opportunities for law school graduates. As the U.S. legal academy wrestles with changes in the legal job market in the aftermath of the credit crisis and as the legal job market goes through structural changes, understanding this hierarchy provides an essential realism on the job prospects of law school graduates.

4. Better Understanding of Long-Term Trends. If an enduring hierarchy is shaping the careers of lawyers and law professors, an accurate system of categorization is essential for tracking long-term trends in legal academia and the legal profession. Our analysis provides the basis for variables that capture law school status across time, facilitating future research.

(Citations omitted.)

This article is highly recommended. Law librarians will be very familiar with some of the categories the authors identify as relevant for defining the hierarchical structure of the legal academy (e.g., size of library collections, citation metrics for scholarly and judicial impact). Here’s the abstract for Arewa, Morriss & Henderson’s Enduring Hierarchies in American Legal Education:

Although much attention has been paid to U.S. News & World Report’s rankings of U.S. law schools, the hierarchy it describes is a long-standing one rather than a recent innovation. In this Article, we show the presence of a consistent hierarchy of U.S. law schools from the 1930s to the present, provide a categorization of law schools for use in research on trends in legal education, and examine the impact of U.S. News’s introduction of a national, ordinal ranking on this established hierarchy. The Article examines the impact of such hierarchies for a range of decision-making in law school contexts, including the role of hierarchies in promotion, tenure, publication, and admissions, for employers in hiring, and for prospective law students in choosing a law school. This Article concludes with suggestions for ways the legal academy can move beyond existing hierarchies and at the same time address issues of pressing concern in the legal education sector. Finally, the Article provides a categorization of law schools across time that can serve as a basis for future empirical work on trends in legal education and scholarship.

Joe

If anyone is wondering about the mechanisms available to raise the debt ceiling, the Congressional Research Service has the details.  See the report The Debt Limit: History and Recent Increases (September 25, 2013, RL31967) by D. Andrew Austin and Mindy R. Levit.  A companion report is Votes on Measures to Adjust the Statutory Debt Limit, 1978 to Present by Justin Murray (February 15, 2013, RL41814).  And while we’re on the subject of turmoil in the government, here’s Shutdown of the Federal Government:  Causes, Processes, and Effects by Clinton T. Brass (September 25, 2013, RL34680).  Note that two of these reports were conveniently issued five days before the government closed.

Mark

Trial by Google: Judicial Notice in the Information Age [SSRN] “explores the emerging phenomenon of courts taking judicial notice of facts gleaned from Internet web sites, like Google Maps.  It highlights the inviting and terrifying intersection of venerable judicial notice doctrine and the Internet, and ultimately suggests guidelines for courts applying Federal Rule of Evidence 201 (Judicial Notice) and state analogues to Internet sources,” according to the article’s co-author, Jeffrey Bellin, on EvidenceProf Blog. Here’s the abstract for Bellin and Andrew Guthrie Ferguson’s forthcoming Northwestern University Law Review article:

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.

Very interesting and highly recommended for legal research and writing instruction.  Joe

It’s pretty hard to publish a Scalia post on LLB without also publishing one about Posner. So here we go. A couple of days ago NPR’s Scott Simon conducted a brief interview with Posner about his latest book, Reflections on Judging (Harvard UP, Sept. 16, 2013). [Podcast with transcript] Wait a minute, Posner might have published another book by now.

From the blurb for Reflections on Judging:

In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying how the judiciary has changed since his 1981 appointment, he engages the issues at stake today, suggesting how lawyers should argue cases and judges decide them, how trials can be improved, and, most urgently, how to cope with the dizzying pace of technological advance that makes litigation ever more challenging to judges and lawyers.

For Posner, legal formalism presents one of the main obstacles to tackling these problems. Formalist judges–most notably Justice Antonin Scalia–needlessly complicate the legal process by advocating “canons of constructions” (principles for interpreting statutes and the Constitution) that are confusing and self-contradictory. Posner calls instead for a renewed commitment to legal realism, whereby a good judge gathers facts, carefully considers context, and comes to a sensible conclusion that avoids inflicting collateral damage on other areas of the law. This, Posner believes, was the approach of the jurists he most admires and seeks to emulate: Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, Robert Jackson, and Henry Friendly, and it is an approach that can best resolve our twenty-first-century legal disputes.

The very first thing I spotted when glancing at my copy of Posner’s Reflections on Judging was a footnote to Scalia (& Gardner), Reading Law: The Interpretation of Legal Texts (West, 2012).

Joe

The Supreme Court’s 2013 term begins today with arguments in two cases.  That’s not the news.  New York Magazine has published an in depth interview with Justice Scalia.  Most of the press focuses on his statements about religion and homosexuality.  Salon leads with the headline Scalia: I believe in the Devil.  That part of the conversation isn’t particularly revealing or shocking given that Scalia is a good Catholic.  As he points out in the conversation, even Jesus believed in the Devil.

Slate focuses mostly on Scalia’s attitudes on homosexuality.  Its headline reads Is Scalia in Denial About His Own Homophobia?   Scalia says that he doesn’t hate homosexuality.  He acknowledges that Catholic doctrine teaches that homosexuality is wrong.  The Constitution does not require the people to adopt one view of it or the other.  That is mild compared to the antagonistic statements the Justice has made in other public occasions which are linked in the article.

Here are my favorite parts of the interview:

Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?

I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.

And:

It was recently reported that the justices don’t communicate with one another by e-mail. Do you go online at all? 

Yeah. Sure, I use the Internet.

You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?

I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that ­people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.

And:

How picky are you about which law schools they [law clerks] come from?

Well, some law schools are better than others. You think they’re all the same?

Now, other things being equal, which they usually are not, I would like to select somebody from a lesser law school. And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled. It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.

And for whom does he write opinions:

My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?

Law students.

Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.

We glean other facts.  He admires the new Pope, politics in Washington is a lot more ideological since he came to the bench, and he doesn’t care too much about how history will treat him.  That alter point is the angle in story in The Atlantic.  In other Supreme Court coverage, Slate has an additional story, Elena Kagan Will One Day Control the Supreme Court.  Here’s a sample:

Kagan didn’t just go hunting with Scalia once. She became a hunter. She quipped to the students about shooting a doe after a recent unsuccessful elk-hunting trip in Wyoming—just because there was nothing bigger around to kill. The students went silent. When she was nominated, many Harvard students wanted Kagan to be the Great Liberal Hope who’d do combat with the court’s formidable conservatives. Now she was proclaiming, “I love Justice Scalia!”

Though the Court starts its new term, there is this ominous note at the bottom of the Court’s home page:

The Court will continue to conduct its normal operations through October 11. The Court building will be open to the public during its usual hours, and the Court will hear the scheduled oral arguments.  A further update will be provided in the event the lapse of appropriations continues beyond October 11.

The Court’s term may be affected by the “partial government shut down.”

Mark