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.