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  The Board is reviewing the policy in light of criticisms but has not withdrawn it during the review.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

In Another Troubling Future-Conduct Settlement, James Grimmelmann evaluates the proposed settlement in Berry v. LexisNexis Risk & Information Analytics Group. The lawsuit involves the sale of Accurint data to help debt collectors, private investigators, and others “Detect fraud. Verify identities. Conduct investigations.” The plaintiffs claimed that Accurint data includes “the kind of personal information that can trigger the Fair Credit Reporting Act, but doesn’t comply with the FCRA’s other requirements. They claimed that LexisNexis doesn’t give consumers access to their files, doesn’t let consumers fix mistakes, and doesn’t require Accurint customers to comply with the FCRA.” Oops. Grimmelmann’s post is highly recommended. — Joe

Yesterday, the first issue of the Journal of Open Access to Law was published. The journal is edited by Tom Bruce, Ginevra Peruginelli, Enrico Francesconi, and Pompeu Casanovas. From the JOAL announcement:

This is the first issue of the Journal of Open Access to Law – JOAL, the open-access, peer-reviewed journal for the promotion of the international research on the topic of open access to law. JOAL provides an international forum for academic researchers as well as for practitioners of open legal publishing.

This issue delivers authoritative thought-leadership in governance of new models of legal publishing, projects in open access to law, technical challenges and economic opportunities created by open access to law as well as trends and changes suggested by the globalization of access.

View the TOC here. Hat tip to Ken Hirsh’s Ipso Facto post. See also Tom Bruce’s post. — Joe

Larry Lessig writes

I am completely embarrassed by my google-induced ignorance. And I’m completely committed to tying Bing now that it makes permissions so simple. I’m hopeful they can think more about whether “license” is the right word here. But regardless, Microsoft has taken an important step to make easier for users to use the content they are free to use, and respect the rights of copyright owners who don’t want their content reused.

For more see Lessig’s From now on, I’m “Bing-ing It!”. — Joe

What are we talking about? The Blog Emperor is comparing the differential in the US News law school overall and academic reputation rankings. In this blog post, he listed 53 law schools that are over-performing and underperforming their overall rankings because, well, academic reputation is very, very important.

How about the US News judges-attorneys reputational rankings? No, that’s not important. Only peer assessment scores are. Considering the low sample sizes and, in some years, response rates for both US News reputational surveys, the annual reputational findings are absurd (unless one might be fishing to increase human and robot traffic because law prof blog traffic dips during Winter Break; see today’s earlier post about web communications traffic stats).

For reaction to the nonsense, see the comment trail for Staci Zaretsky’s ATL post. My favorite, so far, is

I’m sorry, but who gives a shit what law professors and law deans think of the school? IF they count as part of the legal community (which I don’t really think they do), it is a small, insular, largely irrelevant portion.

Tell me what real lawyers think about the schools.

Joe

According to Incapsula, bots went from 51% of web traffic in 2012 to 61% of web traffic this year for a 21% year-over-year increase. The cloud computing firm found that most of the increase in bot traffic was due to increased activity by “good bots” like search engines. Spam bots, comparatively, are on the decline. However, the fact remains that any self-congratulatory remarks about a blog reaching a visit and/or page view milestone or blog rankings based on those metrics are wild inflations of this form of “social media.” If the bot traffic trend continues at this pace, pretty soon one will have divide web traffic stats by four to come up with a reasonable estimate of human mouse clicks and eyeballs. — Joe

bothumantraffic20122013

Wolters Kluwer L&R will be releasing its Cheetah research platform soon. The Company, once a dominate player in the legal specialist market, offered Jean O’Grady a sneak peak. “Will Cheetah be just another hyped up launch of a marginally new product? Will it be a “head scratcher” like IntelliConnect?  Can Cheetah find a home in the wild world of legal research? Can Cheetah outrun the competition? Read on” at Can Wolters Kluwer Legal Get its Grove Back? Can Cheetah Outrun the Market? Jean’s concludes her quick review, highly recommended, with the following:

Can Wolters Kluwer position Cheetah’s high performance platform to actually steal the market share that had been in BloombergBNA’s crosshairs? Can Cheetah lure users from Lexis and Westlaw with a promise of high functionality and relatively low annual cost which can be supported without charging clients for cost recovery? It looks like Cheetah is positioned to give them a  “run for their money.”

— Joe

Just a snip from Dan Filler’s Faculty Lounge post:

The [greater Philladelphia] market has five schools successfully fighting for roughly the same cohort of students: Rutgers- Camden, Temple, Villanova, Penn State, and Drexel.  (Yes, Penn State is hours away, but it competes for the same students as the other three schools and scholarship decisions affect the others.)  Notwithstanding differences in US News rankings, many students are willing to select a lower ranked school among the four depending on the bottom line cost of an education.  This is evident from the fact that the LSAT range of each school is pretty wide and that each school’s 25th percentile LSAT is within 4 points of every other’s.  Or, to put it another way, students admitted to the highest US News ranked school of the four – Temple – are routinely lured away to each of the other four schools by virtue of aggressive tuition discounts.

For more, see Philadelphia, The Capital Of Low-Cost Law School Education. — Joe