Duncan Law School Sues ABA

No surprise here. Duncan Law School, the Tennessee law school featured in last Sunday's NY Times article about the business of law schools has lost their bid for accreditation. See the post here for a link to that article and some details.

In today's article - New Law School Sues Bar Association - David Segal reports that one of the reasons for the ABA's refusal to accredit Duncan is that admission standards are not high enough to satisfy the current ABA standard. As Segal writes -

Specifically, the council found that Duncan, which is part of Lincoln Memorial University, fell short of a standard that prohibited the school from enrolling students who did not appear “capable of satisfactorily completing its educational program and being admitted to the bar.” The standard, say legal scholars, is to protect students from schools that are trying to cover their costs by admitting people who are unlikely to succeed.

Duncan's Dean, Sydney Beckman disagreed. As Segal notes -

Mr. Beckman countered that the median Law School Admission Test score of Duncan’s incoming students is 147 (out of a possible 180), which he said met or exceeded the scores of eight accredited schools. He added that the grade-point average of incoming students met or exceeded roughly 30 A.B.A.-approved schools.

Of course, if the students at Duncan are willing to practice only in Tennessee the school need not be accredited by the ABA. California has a number of law schools that are only state accredited. As financial realities continue to impinge on the ideal it is possible that more students will forgo the ABA accredited school in favor of lower tuition. That would be a free market economy development that might actually change the law school business model.

Yet Another Article About the Future of Law Schools and the Profession

Once again, the NY Times has printed a lengthy article about the problems associated with legal education. Sunday's article by David Segal - For Law Schools, a Price to Play the A.B.A.’s Way - is yet another examination of the current law school environment, especially the business of running a law school. The article focuses on the Duncan School of Law in Tennessee. Duncan is looking for ABA accreditation but they find that in order to get accredited they must comply with a series of onerous and arcane ABA regulations -

That means complying with a long list of standards that shape the composition of the faculty, the library and dozens of other particulars. The basic blueprint was established by elite institutions more than a century ago, and according to critics, it all but prohibits the law-school equivalent of the Honda Civic — a low-cost model that delivers.

Instead, virtually every one of the country’s 200 A.B.A.-accredited schools, from the lowliest to the most prestigious, has to build a Cadillac, or at least come close.

The net result is that the American people are under-represented. As Segal puts it -

...the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities. This year, the World Justice Project put the United States dead last among 11 high-income countries in providing access to civil justice.

In the end, it is the ABA's stranglehold on legal education that is feeding the current crisis in law schools: law graduates with an unsustainable debt load. Complying with the ABA regulations isn't cheap and it is higher tuition that foots that bill...

ABA Acts on Recent Graduate Employment Data Collection

As expected, the ABA Legal Education Section Council approved a new questionaire designed to elecit more accurate information about recent graduate employment from law schools. The full story from the ABA Law News Now is here. The article detailed the contents and purpose of the new questionaire thus:

The revised questionnaires will also require law schools to report how many graduates are working in various job types and their status, including how many are in jobs requiring a law degree, how many are in other professional or nonprofessional jobs, how many are pursuing graduate degrees and how many are unemployed and either seeking or not seeking work. Schools will also be required to report information about graduates' employment location, whether a position is short-term or long-term and whether it is funded by the school from which the job-holder graduated.

This means, of course, that law schools will no longer be able to temporarily hire their own graduates in order to boost their postgraduate employment stats. And, they will need to disclose when a fully employed graduate is actually fully employed as a barista or waiter.

Lawyers May Use The Cloud

According to a BNA Law Week article by Lance Rogers - Caching Client Information in ‘Clouds'
Is Permissible With Proper Precautions - the Iowa bar's ethics committee has ruled that lawyers may store information in the computing cloud. According to Rogers:

Iowa lawyers may store client information and other data on a third-party vendor's servers rather than their own computers, so long as the lawyer has unfettered access to the data and can reasonably verify that sound methods are being used to protect the information...

Iowas attorneys who want to use the cloud must due diligence in choosing a vendor and in examining the terms of the storage agreement.

Putting confidential client information in the hands of third parties has always been a problem. Cloud computing and data storage raise this and other many interesting questions for attorneys. As we move forward into a brave new electronic world the rules of ethical behavior may need to be reconsidered as each new technological advance occurs.

The full article can be found at 80 USLA 715. If you are a Rutgers-Newark Law student you can access the article by going to the Library's main page > Resources > Databases > BNA Web. Scroll down to find US Law Week. The full Iowa ethics opinion can be found here.

Law Schools Still Not Teaching Lawyering

Despite the Carnegie and MacCrate reports, the NY Times reports that law schools are still not teaching law students the art of lawyering. Last Sunday's article by David Segal - What They Don't Teach Law Students: Lawyering - is yet another call for a more practice oriented curriculum in law school. The article details the efforts by law firms to teach first year associates how to actually practice law.

According to the article, the old model of having firms teach associates how to practice may be permanently broken:

... for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime.

Clients just won't stand on having an unqualified attorney handle any part of their case:

Last year, a survey by American Lawyer found that 47 percent of law firms had a client say, in effect, “We don’t want to see the names of first- or second-year associates on our bills.” Other clients are demanding that law firms charge flat fees.

Readers of this blog may recall a recent post about value billing. This is a direct result of this kind of client attitude and the need to measure the client's reaction to the firm's rate structure.

The net result? Again, from the article:

The legal services market has shrunk for three consecutive years, according to the Bureau of Labor Statistics. Altogether, the top 250 firms — which hired 27 percent of graduates from the top 50 law schools last year — have lost nearly 10,000 jobs since 2008, according to an April survey by The National Law Journal.

This is all part of a discussion that may actually result in some positive change in favor of a more practice oriented curriculum.

Fee vs. Hourly Rate

A recent post by Toby Brown in 3 Geeks and a Law Blog - When Raising Rates - discusses the difference between increasing hourly rates and the final fee for the work performed. Brown says:

"Have conversations with clients about pricing, versus rates. At the end of the year, or end of a case, what really matters to a client is the fee. How much did the case or deal cost them? Your rate could be $10 per hour, but if you took 100’s of hours to complete a task, the fee is going to be high. A challenge here is that clients tend to compare pricing on a rate level, instead of a fee level. Use the price conversation to help the client shift their thinking towards fees. In the long-run this will greatly benefit them and solidify your relationship with them."

And, he's right. What really counts is the final bill for services. The hourly rate is just a benchmark on the way to the final fee. Lawyers with a niche specialty can charge a higher rate because the depth and breadth of their expertise will justify the final fee. There is no profession (except, perhaps medicine) where the final result justifies the price of services so much as the legal profession. If an attorney can obtain the right result in a complex case with a minimum of effort the fee, if not totally out of line, is secondary. The result justifies the fee.

GOP Candidates Ready to Dismantle Federal Judiciary

The GOP primary contenders appear ready to tear the federal judiciary apart:

- Perry wants to have term limits on the USSC justices.
- Bachman and Paul want to forbid to the USSC from considering cases involving same sex marriage (although for different reasons, of course).
- Gingrich and Santorum want to abolish the 9th Circuit Court of Appeals.

An article by Adam Liptak and Michael Shear in this morning's NY Times - Republicans Turn Judicial Power Into A Campaign Issue - details the GOP's opposition to some or all of the federal judiciary.

Criticism of “activist judges” and of particular Supreme Court decisions has long been a staple of political campaigns. But the new attacks, coming from most of the Republican candidates, are raising broader questions about how the legal system might be reshaped if one of them is elected to the White House next year.

The complaints are in line with the candidates’ general opposition to federal authority. Like the elected branches of the federal government, they say, the federal judiciary has become too powerful and intrusive.

Liptak and Shear take pains to outline why many of these anti-judiciary positions are completely out of the question. Perry's suggestion about term limits would, of course, require amending the Constitution since Article III, Section 1 confers lifetime tenure on the federal judiciary. Perry's proposal that Congress would have the right to overturn a USSC decision by a 2/3 majority would mean the abrogation of Marbury v. Madison - something Gingrich thinks would be a good thing.

Still, there may be a way for Congress to limit the power of the federal judiciary. Article III, Section 2 of the Constitution provides that the USSC, “shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” These and other Constitutional waters remain untested.

ABA Begins Action to Curb Law School Reporting Abuses

In the wake of the scandals at Illinois and Villanova, reported here, an article in the online ABA Journal reports that the ABA Legal Education Section has decided to consider rules designed to penalize misrepresentation of admissions data by accredited law schools.

The Section recently announced a change in the questionnaire designed to elicit more accurate information regarding placement and employment data. For a sample of commentary about the misrepresentation of placement and employment data read the post here in Balkinization.

Westlaw on the Ropes?

The Three Geeks and a Law Blog has made a provocative post about the economic viability of Thomson Reuters. Westlaw is, of course, a subsidiary of Thomson Reuters. There has been speculation about this before. See an earlier post on this possibility. One potential reason for the possible demise of Thomson is competition from Bloomberg.

More on University of Illinois Law School Ethical Challenges

Readers of this blog may recall an earlier post regarding the misbehavior of the administration at the University of Illinois School of Law. Here's a follow-up post from the ABA Law Journal. And, here's more on story with some insightful commentary from Law Librarian Blog and from Above the Law.

When the USN&WR rankings begin to drive admissions policy you know there's something wrong with the system. The rankings are a useful tool for one school to measure itself against its peers. But it should not become the raison d'etre for any school.

Kindle Loosens Library Policy

Readers of this blog may recall two earlier posts regarding the ability of library patrons to borrow both Kindles and the eBooks that are in the library's collection. The first post addressed issues concerning the restrictive license that Amazon, maker and distributor of the Kindle, puts on eBooks downloaded from their site. The second post dealt with Amazon allowing libraries to check out the electronic reader i.e., the Kindle itself. In both cases it was argued that market forces, rather than legal action, would encourage Amazon to allow use of the Kindle in a traditional library setting.

Now, according to a NY Times article by Julie Bosman - Kindle Connects to Library E-Books - it appears that Amazon is on the way to allowing public library patrons to use their own Kindle or borrow a library Kindle, and to download ebooks that are in the library's collection. The conditions are not overly restrictive and are in line with typical library practice; for example, if a library buys 5 copies of a particular ebook it can only lend 5 copies. Just like lending print books.

There are two major problems that have yet to be resolved:

1. The new Amazon program is limited to 11,000 libraries. Great. But there are 122,000+ libraries in the United States. So, less than one percent of all US libraries will be affected.

2. Some publishers are still reluctant to get with the program. These publishers fear that library usage will cut into their traditional business model (a concern that has been around since the advent of the book iself). Perhaps it is time for publishers to change their business model. One possible business model publishers can adopt is the Netflix model. Unlimited views (think Netflix Instant) for a monthly fee.

PACER Fees Go Up

According to Ericka Wayne and a US Courts press release, the price per page to retrieve a document from PACER has just gone up from 8 cents a page to 10 cents a page effective November 1st. (The price increase is noted in paragraph 5 of the press release. Talk about burying the lead.) This may not seem like a lot until you begin downloading some of records and briefs from a federal district court web site. PACER has slowly morphed into a valid legal research tool. A 25% increase in fees may actually affect download statistics.

Pressure From The Rankings Leads To Cheating By Law School Administrations

Most know by now that some law school administrations have an unhealthy obsession with the US News & World Report Law School Rankings. Paying attention to the rankings is one thing. They do, after all, serve as a way for schools to compare themselves with others and to catch trends. Cheating in the pursuit of higher rankings, however, is beyond the pale. Past cheating scandals include the miserable attempts by at least one school to cook their stats via late admissions of candidates with lower GPAs and LSATs.

Just when you thought it was safe to go back to paying attention to the USN&WR rankings, Villanova was caught taking their GPA and LSAT admissions scores last February. Now, it may be Indiana's turn. A lengthy quote from the Law.com article -

The law school world was scandalized in February when Villanova University School of Law announced that its former dean and admissions officials had for years inflated the Law School Admission Test scores and grade-point averages of the school's incoming classes.

On Sept. 11, officials at the University of Illinois announced that they were investigating the veracity of the same statistics reported by its College of Law after getting a tip that the numbers released for its new class were wrong.

It remains to be seen whether Illinois did, in fact, report bogus numbers this year or in the past, or whether it was done on purpose. But the fact that a second law school had fallen under suspicion within a year raised questions. How widespread is the inflation of the academic credentials? What is being done to ensure law schools are honest?

What indeed? You can and should read the whole story here.

Searching for a Comment/Note Topic? Try US Law Week

If you are faced with the age old problem of finding a topic for a journal comment or note you might consider using the Circuit Split feature in BNA's US Law Week. This week's Circuit Splits section notes nine new circuit splits encompassing antitrust to the Establishment Clause. That could translate into nine different comments/notes.

Not interested in writing something for a journal? This could still be fertile ground for any upper class writing project.

Regardless, BNA US Law Week is a great way to stay in touch with what is happening in the law across the nation.

Rutgers students can sign up to get email alerts by going to the Rutgers BNA page here. Just scroll down, click on the US Law Week link. You can sign up for email alerts by using the link on the right side of the page. It's the last link in the right hand column - could they make it any more difficult to find? Make sure you sign up for email alerts while you are on campus. It just works better that way.

Delayed Birth Certificate in New Jersey - Bureaucratic Overkill?

Here's a heartwarming story about how Chief Judge Alex Kosinski of the 9th Circuit Court of Appeals helped an attorney who was looking for a judge to witness the signing of an affidavit in aid of filing a Certificate of Delayed Birth for a child born in New Jersey. The story is reported in Above the Law and on the ABA Journal site.

The form requires that if the affidavit in support of the Certificate is being signed in a state other than New Jersey it must be signed before a judge. The New Jersey statute that imposes this requirement, of course, is NJSA 26:8-32 (b)(2). According to the ABA Journal and Above the Law, this requirment was deemed either "perplexing" or "unusual."

Justifiable or bureaucratic overkill? You be the judge. So to speak.

More Bad News on the Attorney Job Front

Gawker reports more bad news for attorneys looking for jobs. According to Gawker blogger Neil Hamilton -

Life as an American attorney these days is little more than a steady progression of more and more degrading news stories about the ever-declining status of your job, and, by extension, the rapid downward spiral of your worth as a human being.

Well. Things aren't that bad. But at least one recent trend is disturbing. Hamilton quotes a Wall Street Journal article on an uptick in "legal temp" jobs. Young attorneys are doing document review during the graveyard shift in highly regimented surroundings. This is not the job most law students think they will have when they graduate.

We are all used to contract attorney jobs. The WSJ description of these new "legal temp" jobs takes that idea to a whole new low.

Need for Regulation of Law Schools Intensifies

Today's NY Times article by David Segal's article - How Law Students Lose the Grant Game as Law Schools Win - once again points to the need for additional regulation of law schools. The article details the process by which law schools woo students with high GPAs and LSAT scores with promises of grants only to have those grants dry up when the students find they can't make the grade.

Here's how it works. Highly qualified students are awarded what amount to fully paid tuition scholarships. The only catch is that they have to continue to maintain a high GPA in law school in order to continue receiving the grant. What the schools don't disclose is that it is extremely difficult for a student to make the grade. A large percentage then lose the scholarship. How is this a problem?

First, transferring from one law school to another is truly difficult. Once you're in a school, you're usually in for the full three years. If you got hooked with free tuition for a year you might suddenly find that you are enrolled at a school with tuition so high you can't afford to finish the last two years or finishing becomes an even greater financial burden.

Second, the motivation of the school in failing to make the disclosure is highly suspect. By admitting students with higher GPAs and LSAT scores, that school's US News and World Report ranking can go up. Students may find themselves to be pawns in a huge game of rankings chess.

In fairness, it should be noted that students could be better consumers. A little investigation would show how grades are awarded.

And, a quick reality check would indicate that the likelihood of maintaining the same kinds of grades as a law student as an undergrad is unsustainable. Students forget that everyone applying to law school has high grades. Good performance as an undergrad is no guarantee of good performance as a law student.

Still, this is an easy issue to resolve. Law schools should be required to disclose to the uninitiated that classes are graded on a curve and that many students lose their grants after the first year. Readers of this blog may recall earlier posts about post law school employment here, here, and here. Law schools appear to be incapable of self regulation in their pursuit of higher rankings. It is time for the ABA to take a closer look at this entire area.

Part of the Kindle & Libraries Problem Solved

Readers of this blog may recall a previous post regarding Kindles and libraries. That post pointed out two library problems associated with Kindles - loaning the Kindle itself and allowing eBooks to be downloaded (loaned) to the reader's Kindle from the library.

The first problem - libraries loaning out a Kindle - does not appear to be resolved. Again, it seems likely that market forces will eventually resolve this issue. Maybe.

The second problem - allowing a library patron to download a library eBook onto their own Kindle seems to have been resolved. Check out (pun intended) this article by Julie Bosman in the NY Times - Coming to Your Kindle: Library Books. The key factor - think "market forces" - appears to be summarized rather neatly in this simple observation by Bosman:

Amazon’s dedicated e-reader is not compatible with library e-books, leading many new e-reader buyers who are interested in borrowing e-books from the library to purchase a Nook from Barnes & Noble instead.

How long will it take for Amazon to come to terms with the fact that readers will need to borrow not only the eBook but the device they need to read it?

SSRN Takes a Giant Step Forward

SSRN - the Social Science Research Network - has always been a good source for researchers to find either specific articles or to search for articles about a particular topic. One of the strengths of SSRN has been its willingness to be electronically crawled by the search engines. That's why you can find an article on SSRN through a Google, Bing, or Yahoo search.

On Friday morning SSRN made a quantum leap forward in providing an enhanced platform for legal research. The SSRN CiteReader program has now become available. The CiteReader program allows researchers to mine the footnotes associated with any posted article - even articles posted in PDF. The majority of the references and citations are coming from articles posted on the LSN - the Legal Scholarship Network. LSN is the database where most articles, whether in progress or accepted for publication, are posted before they are published in student edited law journals.

Most researchers consult law review articles for two reasons: the analysis and the footnotes. A law review article is a powerful secondary source to find primary law and other relevant secondary sources. This new feature is a real game changer for SSRN.

From the announcement sent this morning by email:

We have been working on extracting references from all SSRN papers for 5 years as part of the CiteReader™ project that SSRN has undertaken with our development firm, ITX Corp. We have created a system to extract references and footnotes from PDF files on SSRN and to have that extracted data proofread by human beings. While this project is not yet complete, we are now announcing the release of over 6.7 million references extracted from the reference sections of over 182,000 papers on the SSRN site as well as over 4.2 million citations that we have linked to SSRN papers.

– The references from each SSRN paper (where we have been able to extract them) can be found on the REFERENCES tab on the public abstract page for each paper.
– The citations we have matched to each SSRN paper are available on the CITATIONS tab on the public abstract page for the paper.
– These reference links provide an excellent way for any reader to go back in the literature in any area, and the citation links provide an excellent way to go forward in the literature.

Lady Liberty Stamp an Object Lesson for Researchers

If you buy a stamp with what appears to be a picture of the face of Lady Liberty on it - think again. The NY Times reports that the picture on that stamp was not taken at the Statue of Liberty in New York harbor. Instead, it was taken in Las Vegas in the parking lot of New York - New York Casino. Sharp-eyed stamp collectors noticed the difference.

How did the USPS make this mistake? Photographs are for sale online from image brokers like Corbis, iStock, Getty, and many others. To help purchasers find the image they want, most of these brokers attach some form of metadata to the image. See this article for a full definition of the term Metadata. The ability to find a particular image is directly related to the kind of metadata attached to the image. Since you can't search the pixels in an image itself you must rely on the words associated with that image, that is, the metadata.

Think of cataloging as the ultimate form of metadata. Being able to use the words associated with ("attached to") a book, a periodical, or a looseleaf to search for that item helps the researcher find it in the collection being searched. Some collections are huge. Without the ability to search the metadata even the best researcher could not find exactly what is in a collection. This is why a library catalog is such a useful tool when you are doing any research including legal research. Without the catalog you miss materials that are out there for you to find or you won't be able to find the exact item you are looking for.

And, it is the metadata in the catalog that keeps you from making a bonehead mistake like the one the Postal Service made. If the image that they chose had been correctly identified and cataloged in the first place they wouldn't have picked a picture of a half-size ripoff of a national icon to put on their stamp.

Scalia's Traffic Stop...

On Tuesday morning, Justice Scalia was in a minor fender-bender on the George Washington Parkway. Never one to do things halfheartedly, Scalia's driving error caused damage to four cars including his own. No one was injured. You can read all about it in several locations - Gawker, Above the Law here and here, Beneath Their Robes, the Huffington Post, and the Washington Post.

Scalia was issued a ticket for following too closely. There is no word on whether he will be fighting the ticket on the grounds that the original framers did not include liability for such an offense in the Constitution.

Scalia is undoubtedly the most interesting of the extant USSC justices. He is witty, combative, erudite, and just plain fun to read. To his lasting credit, he made it to Tuesday morning's oral arguments and participated.

Preview of Lexis Advance for Associates

The preview and some cogent analysis is here on Three Geeks and a Blog.

There's not much doubt that this constitutes the Lexis response to WestlawNext. The screenshots of Lexis Advance show folders, an enhanced results screen, a new form of search tool called the "issue trail," integrated Shepard's results, and much more. Many of these features are also on WestlawNext.

Like WestlawNext, all material now available on Lexis will not be available when the new search system debuts this fall.

When combined with Lexis for Microsoft Office this may finally bring Lexis in line with the most recent trends in legal research. Lexis has undergone two major changes in the last year in its quest to challenge Westlaw for legal research primacy.

Careful reading of the Lexis promotional material makes it clear that Lexis designed this product to fit the way associates are now conducting legal research. This confirms the new acceptance that legal search engines need to adapt to their users' abilities and styles of use. A close review of the sample pages show the kind of Web 2.0 functionality that modern users of research tools demand.

As technologies continue to change apace, it is likely that we will continue to see new versions of old products. We may be looking at a new version of Lexis or Westlaw every few years. The vendors are changing their business model to comply with demand from new markets.

Content Farms Defined

So. What is a content farm? Why does the content in a content farm impact the use of legal information?

There are several definitions of a content farm. Since Google is changing its search algorithm the best place to look might be on the Google Blog. See this post by Matt Cutts dated January 21, 2011 - Google search and search engine spam. Cutts says that content farms "...are sites with shallow or low-quality content." It is probably better to say that the definition of a content farm is evolving. See this article by Allan Graves writing for the Website-Article site dated February 11, 2011 - What Is A Content Farm - A Comprehensive Definition. Graves makes reference to Cutts' post on the Google Blog but adds additional factors for determining when a website can be considered a content farm. His list of factors is reproduced in full:

• Multiple writers producing large amounts of content
• Authors are paid and may not be experts on what they are writing
• Content is written around currently popular/profitable long-tail keyword phrases and optimized heavily for those phrases
• Content is of low quality and/or shallow (subjective)
• Content is "spammy" (subjective)
• Content does not link to authority websites or accurate resources
• Content can be considered "intra-domain duplicate content" by the newly upgraded search engine document indexer
• Content is diminutive, without supporting information or resolution
• Website or section of website contains large and growing number of articles
• Pages are designed to drive traffic to other monetized web pages or lead forms
• Content is designed to drive traffic to other monetized web pages or lead forms
• Content is surrounded by multiple advertisements, lead generation forms, contextual adverts, affiliate links or any other monetization techniques

Search engine optimization is a constant concern for all of the major players - Bing, Yahoo, Google, Chrome, Baidu or whoever. Should any site that fits this definition be sent to the bottom of the search results? Will persistent search engine users find the sites anyway? Is there a place for content farms in general when dispensing legal information?

New Google Algorithm Hides Relevant Results

Google has taken steps to suppress what many casual users of its search engines might consider to be relevant results. This February 25th article by Claire Miller in the NY Times - Seeking to Weed Out Drivel, Google Adjusts Search Engine - details some of the changes to the Google algorithm.

Google's problem appears to be what it perceives as poor quality or low-quality pages. The targeted sites are commonly referred to as "content farms." The content farms use online inquiries made to search engines and, through the use of their own algorithm, post short easy to read articles that attempt to answer those questions. Miller takes a adverse view of content farms. She claims that such sites -

"...churn out sometimes mindless articles based on what people are searching for..."

Miller must be using a different Internet than the rest of us. Some people would say that most of the articles that are accessible by casual searching on the Internet are mindless. Weeding through irrelevant results has always been the bane of any search engine user's existence.

Google's problem is that it has noticed that producers of content farm material have found a way to game the existing Google algorithm to make their sites appear at the top of the results list without paying for that privilege. Others seem to have a problem with the quality of the results. Librarians, however, know that every user has his or her answer (see Raganathan's Five Laws or Noruzi's application of the five laws to the Internet). Who, other than the user, has the right to determine whether a particular result is a good one or not?

What does all this have to do with information and the law? Well, some legal futurists see the freely accessible electronic resources that the search engines find as the means by which potential clients will get their legal information, starting now. With the pace of change in information development it should come as no surprise that these content farms are fielding legal questions. So. Why bother to hire an attorney when you can find the answer to your specific question online for free?

Judicial Branch Libraries - Crisis Over or Just Beginning?

A review of the budgetary crisis facing the Connecticut Judicial Branch Law Libraries from 2008 - 2010 appears in the February 2011 issue of AALL Spectrum. The article - Saving Connecticut Judicial Branch Law Libraries - by Jonathan Stock is a summary of what occurred and a timely review of the potential looming crisis in funding public law libraries and maintaining public access to legal information. Stock's review of why the crisis happened is a classic exposition of the problems facing all law libraries and is well worth reading. One of Stock's telling points is that there are simply too many naive expectations that useable legal information is available for free on the Internet. Any serious researcher will tell you that this is simply not true.

Libraries and the Kindle Licensing Problem

The primary reason why libraries seem reluctant to loan out Kindles and the ebooks that can be downloaded onto them, appears to be the license agreement that comes with the Kindle. This blog post by Erika Wayne on Legal Research Plus - Kindles and Libraries - discusses two reasons why loaning a Kindle and ebook content is or will become problematic.

1. The first, the method of payment and access via Apple Apps, is an impending issue. It is outlined in the blog post and at this NYTimes story - Apple Moves to Tighten Control of App Store. This issue will undoubtedly be resolved by the market. Apple and Amazon will reach some kind of agreement in which they share fees for ebook downloads.

2. The second, and more serious reason discussed by Wayne in her post, concerns the restrictive license that Amazon places on use of the Kindle and on the ebooks from the Amazon Kindle site. As part of her discussion she cites a recently published article in the Baltimore Law Review by Gregory Laughlin - Digitization and Democracy: The Conflict Between the Amazon Kindle License Agreement and the Role of Libraries in a Free Society. Wayne quotes from Laughlin's article:

“Amazon, in the license agreement to which a purchaser of a Kindle e-book must assent prior to downloading the e-book, retains ownership of the “Digital Content” (i.e. the e-book), and imposes a number of restrictions that are inconsistent with transfer of ownership to the purchaser, including prohibiting redistribution. If libraries are not owners of the Kindle e-books they acquire, then by the explicit terms of the Amazon license agreement, as well as Section 106 of the Copyright Act, they may not lend the e-books to their patrons.”

This is not a new issue. Peter Hirtle in the Library Law Blog, raised this issue last June in his post - May a library lend e-book readers? This appears to be an intractable problem that will not be resolved by the market. Instead, unless Amazon relents in its insistence on strict compliance with the terms of the license agreement, a change in law will be required.

Adoption of WestlawNext by Big Law

It has been a year since the February 8, 2010 launch of WestlawNext. Thomson Reuters has decided to celebrate this anniversary with a press release carried by PR Newswire and picked up by CNBC here.

The release is interesting both in what it says and what it doesn't say. First,

"...since its launch on Feb. 8, 2010, over 15,000 law firms; corporate law departments; and law departments in federal, state and local government organizations have upgraded to WestlawNext..."

But, 15,000 new subscribers is a drop in the proverbial bucket of the total number of law firms, corporate law departments, etc., etc., that are out there. A far more interesting figure would be what percentage of their total subscribers have upgraded to WestlawNext.

Next (no pun intended), they say that 33 of 100 Am Law 100 firms have upgraded to WestlawNext. The Am Law 100 is a construct of the ABA and includes the largest 100 firms in the United States. But if 33 of the largest firms - those most likely to have sufficient assets to acquire and actually use WestlawNext - have upgraded what about the the other 67 firms? Have they rejected WestlawNext, are they still negotiating their new subscription agreement, or are they waiting until all the beta issues are resolved? Who knows. What we do know is that we are only seeing part of the entire picture.

Our real concern should not be with those "Big Law" firms from the Am Law 100. Our real concern should be with the small firms, the medium sized firms that are the actual backbone of the practice of American law. How many of them have upgraded to WestlawNext?

Arizona Bill Defacto Secession?

Probably.

You can see a copy of Arizona Senate Bill 1433 here courtesy of a link from this KPHO.com page. The purpose of the bill is to support Arizona state nullification of federal law that a committee - The Joint Legislative Committee on Nullification of Federal Laws - finds to be objectionable.

Legal researchers will take particular interest in Section 2 of the bill which provides for enactment of the legislative intent as part of the bill. Section 2 is an extended polemic about states' rights.

Section 3 provides that,

"The Secretary of State shall transmit copies of this act to the legislatures of the several states to assure that this state continues in the same esteem and friendship as currently exists and that this state considers union for specific national purposes and particularly those enumerated in the Constitution of the United States to be friendly to the peace, happiness and prosperity of all the states."

Thus allowing Arizona to be part of the Union when it finds it acceptable to be so.

Law School Dean Searches

Dan Filler at the Faculty Lounge blog has posted his annual compendium of ongoing law school dean searches. For those who keep track of such things the lists for the two prior years are here and here. For those are are really interested, the comments to the annual post are often a surprising source of information, disinformation, and well-reasoned speculation.

US - China Deal Article Part of the "New" Legal Scholarship

Steven Davidoff is referred to as the "Deal Professor" by the NY Times in its regular Deal B%k feature of the business section. Today's article - Actions of U.S. and China Will Shape Deals to Come - is an outstanding and timely example of the changing face of legal scholarship.

Davidoff's article appears, on first reading, to be a standard op-ed piece, hardly rising to the level of what can be considered "traditional" legal scholarship. Closer reading of the article, however, supports a deeper analysis of the trade issues that exist between China and the United States. This analysis could hardly be possible without Davidoff's true scholarly roots. Thus, the foundations of his analysis and argument are based on his prior scholarship.

Davidoff's entire body of work, including his more "traditional" writing, his "popular" writing, and his more "casual" writing must be considered as part and parcel of his total scholarly output. Indeed, all such work by any member of the legal academy should be so considered if it rises to necessary level of academic discourse.

There might not be any footnotes in today's article but the academic mind is clearly in evidence. It is not mere reportage: it is reportage with an academic twist. Can't make up your mind? Consider his previous articles here, here, here, and here. Consider the body of work, not the individual article standing alone.

A recent trend in legal academic publishing has been the well-supported extended op-ed article or book. That kind of writing is clearly considered as scholarship by tenure committees and, increasingly, by the legal academy as a whole. Compare that kind of article with the article in question - it is all scholarship. The only real difference is one of degree, not kind.

Full Disclosure - Davidoff is a member of the faculty at the University of Connecticut School of Law.

United States Code - Area 51

As Brian Huddleston, Senior Reference Librarian at Loyola New Orleans, points out, Congress has just added the 51st Title to the United States Code. Title 51 - National and Commercial Space Programs - was created by Public L. 111-314, signed into law by the President on December 18, 2010. Having more than 50 titles to the USC is an alien concept. As Brian aptly points out, "Now every legal research book is out of date and there's a lot of handouts to change."

So true. But, the creation of Title 51 is all part of the Office of Law Revision Counsel's plan for world domination, er, Positive Law Codification. In fact, we can look forward to Title 52 - Voting and Elections: Title 53 - Small Business: Title 54 - National Park System: and Title 55 - Environment. Since world domination is easier to explain than positive law codification this quote from the Law Revision Counsel's website will have to suffice for now:

Because many of the general and permanent laws that are required to be incorporated into the United States Code are inconsistent, redundant, and obsolete, the Office of the Law Revision Counsel of the House of Representatives has been engaged in a continuing comprehensive project authorized by law to revise and codify, for enactment into positive law, each title of the Code. When this project is completed, all the titles of the Code will be legal evidence of the general and permanent laws and recourse to the numerous volumes of the United States Statutes at Large for this purpose will no longer be necessary.

Their nefarious plan is laid out here:

Positive law codification bills prepared by the Office do not change the meaning or legal effect of a statute being revised and restated. Rather, the purpose is to remove ambiguities, contradictions, and other imperfections from the law. For more information about the process of positive law codification generally, see the brochure Positive Law Codification in the United States Code.

Apparently PL 111-314 is only the latest in a long line of decisions designed to:

1. Spread chaos throughout the law librarian universe.
2. Force hapless legal research instructors to revise their PowerPoints, handouts, and lecture notes.
3. Provide unlimited income for legal publishers who are now forced to sell law libraries new volumes of the USCA or USCS containing Title 51. And then, Titles 52, 53, 54, and 55...

Yes Brian, you may retire now.

Reality Check - LSAT Apps Down

Yes, applications to take the LSAT have decreased. Mark Giangrande, writing on the Law Librarian Blog, has made a post about the decrease here - LSAT Applications Down. He cites from the LSAC President's report here. Will this mean a better new lawyer to job ratio in three years making it easier for this potential crop of graduates to find jobs? Maybe. But as Giangrade points out, there will still be a glut of JD graduates.

Lawsuit Loans - Regulation Required

In today's NY Times, Benyamin Appelbaum continues his brilliant series on lawsuit loans. Today's article - Lawsuit Loans Add New risk for the Injured - details abuses by this niche market industry. Readers of this blog will recall four previous posts here, here, here, and here.

Lenders argue that they should not be covered by existing lending laws because borrowers don't repay the loans unless they recover in their suits. Some states are fighting back. Colorado recently filed suit against two lenders - Oasis and LawCash. From the story -

“It looks like a loan and smells like a loan and we believe that these are, in fact, high-cost loans,” John W. Suthers, the state’s attorney general, said in a recent interview. “I can see a legitimate role for it, but that doesn’t mean that they shouldn’t be subject to regulation.”

"High-cost" is a real understatement. In fact, according to a survey by the Center for Public Integrity, some of these loans appear to accrue interest at the rate of 100% annually plus fees. The lenders, through their industry spokesman, argue that these are risky loans because the plaintiffs (the injured) may never recover. This is a disingenuous argument. As discussed in previous posts, these loans are carefully vetted by the lender (or investor if you will) before one dime is sent to the injured plaintiff.

How big is the market for these loans? Just consider that the industry has hired a spokesman. That's a pretty good indication that this market has reached critical mass and is ready for national regulation.

The Need for Law Student Financial Counseling

Yet more fallout from the story last Sunday in the NY Times - Is Law School a Losing Game? - by David Segal.

The article highlights the sad story of one Michael Wallerstein. This student (with what Segal calls a "surfer dude" mentality) appears to have been more than slightly irresponsible in his excellent law school adventure. He attended a for profit stand alone law school that charges high tuition - Thomas Jefferson School of Law in San Diego. Here's the Top-Law-School.com profile. The Top-Law-School profile shows that -

The average TJSL law student graduates with an overwhelming $131,800 in law-school-related debt, giving the school the honor of saddling its graduates the highest debt load in the nation. Thomas Jefferson School of Law does not offer its students a loan repayment assistance program.

Segal describes how Wallerstein chose this school -

WHEN he started in 2006, Michael Wallerstein knew little about the Thomas Jefferson School of Law, other than that it was in San Diego, which seemed like a fine place to spend three years.

“I looked at schools in Pennsylvania and Long Island,” he says, “but I thought, why not go somewhere I’ll enjoy?”

Segal goes on to detail some of the debt that Wallerstein proceeded to incur while a student. Apparently, Wallerstein was not in the mood for "austerity" during his education -

... Mr. Wallerstein rented a spacious apartment. He also spent a month studying in the South of France and a month in Prague — all on borrowed money. There were cost-of-living loans, and tuition of about $33,000 a year. Later came a $15,000 loan to cover months of studying for the bar.

In the end it appears that Wallerstein owes about $250,000 for his legal education. The figure is approximate because, as Wallerstein admits, “I’m not really good at keeping records.” Is this the kind of person you want planning your parent's estate?

But this student's attitude is only part of the problem. Apparently, the school in question failed to offer or require any form of financial counseling; not an uncommon situation in most law schools. So, is this the student's fault? Some may say so. The Subprime JD blog perceptively refers to this as a form of cognitive dissonance - delusional thinking on the part of the law student. And, the #Crasstalk blog calls this The least sympathetic 'I have lots of student debt" story ever.

But the larger fact is that many schools have no incentive to provide or require financial counseling or to put any kind of realistic constraints on the borrowing habits of their students. Private for-profit schools are especially under scrutiny right now. As mentioned Sunday, it may only be a matter of time before the ABA or the Department of Education begin to take a closer look at law schools.

Can You Get Your Law School Tuition Back?

Well. You can certainly ask for it. And that's exactly what one law student did. Readers of this blog will recall a recent post on this issue here. As mentioned in the story from Sunday's NY Times - Is Law School a Losing Game? - a BC law student asked the Dean of that school for his tuition back. The story was originally reported in a Times blog onNovember 8th - Tuition Reimbursements for Jobless Graduates. Here's a copy of the letter to Interim Dean Brown at Boston College Law School as posted in the student online newsletter the EagleiOnline. BC's response is here.

But this is not a new story. Read the Wall Street Journal article from September 24, 2007 about the increasingly difficult job market for law school graduates - Hard Case: Job Market Wanes for U.S. Lawyers.

The story of the BC student went virtually viral in October of 2010. Here are links to the Boston Herald story, the CTI Career Search blog, the BrainTrack blog (Universities Colleges and Careers), the Consumerist blog (Shoppers Bite Back), the NECN New England cable news site (complete with video!), the Tax Prof Blog, and, of course Gawker (with humorous posed photograph). These are just a few of the dozens of posts.

More to come...

Is Law School a Losing Game?

Maybe. At least that's the premise behind this Sunday's article in the NY Times by David Segal. The lengthy article includes interviews with former students who don't know how they are going to pay off their student loans and educators who feel the need to change the system. The main culprit appears to be the U.S. News and World Report rankings -

"Enron-type accounting standards have become the norm,” says William Henderson of Indiana University, one of many exasperated law professors who are asking the American Bar Association to overhaul the way law schools assess themselves. “Every time I look at this data, I feel dirty.” It is an open secret, Professor Henderson and others say, that schools finesse survey information in dozens of ways. And the survey’s guidelines, which are established not by U.S. News but by the American Bar Association, in conjunction with an organization called the National Association for Law Placement, all but invite trimming.

A law grad, for instance, counts as “employed after nine months” even if he or she has a job that doesn’t require a law degree. Waiting tables at Applebee’s? You’re employed. Stocking aisles at Home Depot? You’re working, too.

Number-fudging games are endemic, professors and deans say, because the fortunes of law schools rise and fall on rankings, with reputations and huge sums of money hanging in the balance. You may think of law schools as training grounds for new lawyers, but that is just part of it.

The U.S. Department of Education recently proposed regulations that require certain kinds of for-profit schools to disclose post-graduation placement and employment statistics and to establish some kind of nexus between the school's curriculum and real-world employability. Here's a NY Times article that's on point. Maybe it's time to force law schools to follow suit.

Open Access Online Casebook Preview

At last - an open access legal text.

A preview of the first open access legal casebook is now available on the eLangdell site. The Legal Informatics Blog reports -

The preview — which consists of portions of Roger C. Park and Douglas D. McFarland’s Evidence for Civil Procedure Students — is available in several formats: ePub, mobi, PDF, and HTML, and is licensed under a Creative Commons BY-NC-SA 3.0 license.

This is a monumentally positive development for law students. The price of casebooks has reached dizzying heights in recent years. Open access casebooks and text will almost certainly be the norm in a few short years.

As a rule, unless a casebook reaches some kind of cult status, most academic authors are not particularly well paid. To produce and publish an open access casebook is akin to publishing an articles in a student edited journal. Thus, publishing open source becomes yet another way to achieve and maintain tenure while benefiting the primary casebook consumers - law students.

You can almost hear the shifting of the foundations of the casebook industry.