Friday, June 28, 2013

Law Reviews Born Digital Pt. 2: Archiving Considerations

Most of us are in agreement that it's time for law reviews to go online. As a librarian, my biggest concern is archiving. I want to make sure that we do not lose the valuable information that legal scholars create.

From the Durham Statement: "[W]e believe that, if law schools are willing to commit to stable and open digital storage for the journals they publish, there are no longer good reasons for individual libraries to rely on paper copies as the archival format. Agree-upon stable, open, digital formats will ensure that legal scholarship will be preserved long-term."

I've been trying to find best practices for archiving, and I haven't come up with much. What we consider "stable, open, and digital" is constantly changing, and there are no set standards.

From the FAQ's on the Durham Statement's website:

Are there "stable, open, and digital" formats available now for preserving law journals?
We recognize that there is work to be done to determine what counts as agreed-upon "stable, open, and digital" formats before we all rush to implement it. The Statement is aspirational, in the sense that we hope it will spur research, discussion, and eventual agreement on standards for "stable, open, and digital" formats.

In the short history of computing, there has been no truly stable digital format for legal scholarship or anything else. For a permanent record, there still is no competitor to paper. 
It will be sensible for all journals (or the libraries at their schools) to print them out as back-up, archival copies, to be kept in multiple locations in case of a terrible failure in the digital archiving systems, even if a journal moves away from "print runs" in the way we now know them.

Should the law school web page be archiving material?
The web site is probably not the best place to archive the scholarship produced at a law school. An important part of the Statement is its raising the issue of what responsibility law schools have to ensure the preservation of the scholarship they produce.

What we know: 1) there is currently no agreement on what constitutes "stable, open, and digital," and it's been said that it will never exist; 2) we should keep a paper copy in case all digital files break down; and 3) the school's web site should not be used for archiving.

From The Durham Statement Two Years Later: Open Access in the Law School Journal Environment:

The 2005 Legal Information Preservation Alliance report Preserving Legal Materials in Digital Formats  includes a discussion of the risk factors for digital materials. In summary, the factors are:

Storage Media Obsolescence: Because storage media (hardware) for digital materials change quickly, storing digital materials requires an ongoing commitment to moving the data from one storage medium to another. This is known as “refreshing the data.” It can be costly and time consuming, especially for large quantities of data.

Software Obsolescence: Like storage media, the software needed to access stored data also changes. File formats change, and software programs may not be compatible with older files. Proprietary formats may not always have full documentation; licensing agreements are subject to change; restrictions for use and modification may apply. Open formats and systems may be preferable for preservation purposes.

Organizational and Cultural Challenges: Digital preservation is not solely a technical problem. Concerns over the quality of management of digital materials by creators and other caretakers of digital collections highlight other risks posed by high rates of technological change. Materials may be published on the web, then removed and deleted. Publishers cannot assure that their materials will be available in the long term.

Access: The emphasis on digitizing materials to improve electronic access to information may lead librarians and others to focus on access, without addressing issues of preservation. Over time, there will be no access without a focus on preservation

So what can libraries do?

It is time for law librarians to explore alternatives for preserving legal scholarship by working in concert with the other stakeholders, including:

•       Existing efforts to preserve legal information, such as the Legal Information Preservation Alliance (LIPA), which in 2010 established the Legal Information Archive as “a collaborative digital archive . . . to preserve and ensure permanent access to vital legal information currently published in digital formats.”

Legal publishers holding extensive libraries of law journal content in electronic format—LexisNexis and Westlaw, and perhaps primarily HeinOnline, with its extensive retrospective collections. Will their interests in preserving access to law journals for their commercial value mean they will now preserve digital content as libraries have traditionally preserved print content?

Established preservation and electronic archiving programs such as Portico and LOCKSS, which have worked mostly with libraries and publishers outside of law.

The Library of Congress, which already receives copies of all law journals whether published in print or electronic format under the mandatory deposit requirements of the Copyright Act, and works to establish best practices for digital preservation through the National Digital Information Infrastructure and Preservation
Program (NDIIPP).

Institutional repositories,such as Harvard University’s local Digital Access to Scholarship at Harvard (DASH), or services such as the bepress Digital Commons, which hosts repositories for a number of law schools and supports law review publication.

Printers of law journals, in order to forge the future role of print for preservation or print-on-demand services for legal scholarship.

2. It is also necessary to promote the use of common standards for formatting the files of the documents. Joe Hodnicki has noted ALA’s and ACRL’s calls for across-the-board format standardization, and the use
of a standard mark-up language (e.g., XML) instead of PDF. Wayne Miller has proposed developing mutually agreed-upon law journal formats for archiving, preservation, and other uses.

3. It is time as well to take the initiative to create opportunities for dialogue with law school deans, law review editors, interested faculty, and legal information vendors on the need for concerted action regarding
access to and preservation of electronically published law journals.

Thursday, June 27, 2013

Law Reviews Born Digital Pt. 1: An Online-Only Publication

It's amazing that in this day and age, no flagship law review has taken the lead to go all digital. To date, all of the American law school's flagship law reviews still publish in print and most are duplicating coverage through their own institutional website or through a digital repository. The information is also uploaded to Lexis, Westlaw, and HeinOnline.

There are many pros to going all digital -- the cost savings associated with canceling print, greater access, and marketing through social media, to name a few.

In fact, the issue was solidified in 2008 with the Durham Statement on Open Access in Legal Scholarship.

"[T]he directors of the law libraries at the University of Chicago, Columbia University, Cornell University, Duke University, Georgetown University, Harvard University, New York University, Northwestern University, the University of Pennsylvania, Stanford University, the University of Texas, and Yale University met in Durham, North Carolina at the Duke Law School. That meeting resulted in the "Durham Statement on Open Access to Legal Scholarship," which calls for all law schools to stop publishing their journals in print format and to rely instead on electronic publication coupled with a commitment to keep the electronic versions available in stable, open, digital formats."

Additionally, "[t]he Statement anticipates both that the costs for printing and mailing can be eliminated, and that law libraries can reduce their costs for subscribing to, processing, and preserving print journals. There are additional benefits in improving access to journals that are not now published in open access formats and in reducing paper consumption."

"[T]he current model of journal publishing is entirely outdated. Right now, law reviews submit content to one of the handful of specialized law review publishers. Those publishers print the content and mail book-like volumes to subscribers. The publisher also sends that content to Westlaw and LexisNexis [and HeinOnline], the [three] major online legal research databases. Journals charge a small subscription fee and, sometimes, a content reuse fee if their articles are reprinted in textbooks. West and Lexis charge a great deal more. Most journals operate at a loss. What is peculiar about this system is that many journals also publish their content as PDFs on their websites. PDFs, of course, are searchable by Google and easily findable through Google Scholar. For free."

So, why hasn't anyone taken the lead? "The answer is probably about competition; no law school wants to be the first to go 'online only.' If prestige is truly the obstacle — we are talking about lawyers here — the solution is an industrywide collusion. If deans from a collection of law schools discussed this, perhaps during an Association of American Law Schools (AALS) conference, they could reach a disarmament agreement." The Durham Statement has been in place for over 5 years, yet no flagship law review has made the jump. 

There are a few factors that give rise to the reluctance to go all digital. Although there are many pros to going all digital, the major con, at this point, is with archiving. Currently, we still consider the print publication to be the most stable format to archive, and we rely on various law libraries to archive the volumes for us.

Many law school institutional websites have not contemplated archiving law review content into perpetuity. It is imprudent for a law review to rely solely on a third-party database to archive the information. For one, the third-party database could, theoretically, go out of business without notice. And second, if a law review relies on a third-party database, those who want to reprint an article will have to purchase the article at a more expensive price from the database, which might preclude the greater dissemination of the work.

Some law schools now rely on digital repositories such as Bepress Digital Commons to house their online content. These repositories are built for longevity, but even those flagship law reviews that use a digital repository haven't ceased printing. Not too long ago, Duke Law Journal announced that it would soon cease printing (it uses Digital Commons), but we still receive the print publication as of May 2013. Also, the cost savings associated with ceasing print could be offset with the purchase of a digital repository and the IT man power to make it work.

It's time for a law review to step up and be the model for all others to follow. We need to contemplate best practices for archiving law review content or risk losing valuable information. 

Wednesday, June 26, 2013

A Momentous Day for Gay Rights

In a surprise ruling, SCOTUS ruled that a portion of the Defense of Marriage Act (DOMA) is unconstitutional for having no legitimate purpose.

"The case on the federal Defense of Marriage Act of 1996, United States v. Windsor, No. 12-307, considered the part of the law that defines marriage as the union of a man and a woman for purposes of federal benefits. The decision on the federal law was 5 to 4, with Justice Anthony M. Kennedy writing the majority opinion, which the four liberal-leaning justices joined. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

This is a surprise ruling given the Court's conservative stance on the affirmative action and Voting Rights Act cases released in recent days.

In a not-so-surprise ruling, SCOTUS avoided the merits of the Prop 8 issue and decided the case on procedural standing grounds. But it does leave open the opportunity for states to decide whether gay marriage will be permitted within their boundaries.

"The rulings leave in place laws banning same-sex marriage around the nation ..., but in clearing the way for same-sex marriage in California, the nation’s most populous state, the court effectively increased to 13 the number of states that allow such unions."

I love that social media is blowing this up in a positive way. My Facebook news feed is full of friends applauding the decision and discussing its ramifications, and I rarely see my friends discussing SCOTUS. Twitter's trending hastags are #DOMA, #SCOTUS, and #loveislove. #loveislove was started by Barack Obama's tweet: "Retweet if you believe everyone should be able to marry the person they love. #LoveIsLove"

This is a telling sign of where the American populace sits on the issue. The ramifications of leaving gay marriage up to the states will be interesting to follow. What will happen when a couple who is married legally in one state moves to another state where gay marriage is illegal? I suppose we'll have to wait for another day when SCOTUS takes it up again, and it makes it to the merits.

NYTimes -- Supreme Court Bolsters Gay Marriage With Two Major Rulings

Tuesday, June 25, 2013

eHearsay You Say?

The law is constantly trying to keep up with technology. Technology changes at such a rapid pace, and the law, well, does not. With the advent of social media and real-time updates, William & Mary Law professor Jeffrey Bellin proposes a new eHearsay rule to help accommodate the unreliable witness.

From the abstract of William & Mary Law prof Jeffrey Bellin's eHearsay article [SSRN] (Minnesota Law Review, Vol. 98, 2013):

"This Article proposes a new “eHearsay” rule of evidence that will permit the admission, over a hearsay objection, of a broad spectrum of electronic out-of-court communications. The proposal builds on prior hearsay reform proposals, and also takes advantage of the fact that electronic statements are invariably recorded. Litigants’ ability to show jurors actual text messages, Facebook “status updates” and Twitter “tweets” authored by percipient witnesses shortly after a disputed event and prior to litigation makes these out-of-court statements compelling vehicles to liberalize the much-maligned American hearsay prohibition. In fact, the new communication norm of generating real-time observations in recorded text messages and social media posts could – in concert with the proposed hearsay exception – transform American litigation’s longstanding struggle with uncooperative, unavailable and forgetful witnesses."

Law Librarian Blog: A New eHearsay Rule of Evidence? 

Monday, June 24, 2013

Library Vinyl Record Collections In a Post-Vinyl World

To commemorate my trip to Memphis, TN, including a trip to Sun Studio, I thought I'd show a little love to library vinyl record collections.

I think it's safe to say that most libraries ditched their vinyl record collections around the time of the cassette tape, but there were a few libraries who held onto these gems presumably for archival purposes.

But with the budget and space constraints of the last decade, even those libraries that initially held onto their record collections started to shed them. As one librarian noted in 2010, "[w]e had noticed over the last several years that the vinyl is not circulating like our CD’s are, or our DVD's, and what we wanted to do was make space for new items and get them into the hands of people who would really appreciate them." So they held a sale that I wish I would have been around for. "[T]he Chattanooga-Hamilton County Bicentennial Library in Tennessee has sold its collection of rare vinyl record albums for $1 a piece. Some of the vinyl was valued at a thousand times as much. The library staff was obviously clueless of its value."

This may have been a little shortsighted, however, because the music industry has recently seen a rise in vinyl record sales. "These days, every major label and many smaller ones are releasing vinyl, and most major new releases have a vinyl version, leading to a spate of new pressing plants ... thanks largely to an audience of record collectors, many born after CDs were introduced in the 1980s."

It is sad to see the small library vinyl record collections go the way of the 8-track (into oblivion), but do not fear! The Library of Congress has started the "Packard Campus for Audio-Visual Conservation, a 45-acre vault and state-of-the-art preservation and restoration facility on Virginia's Mt. Pony. It's here that a recent donation from Universal Music Group, nearly a quarter-million master recordings by musicians including Duke Ellington, Billie Holiday and Bing Crosby, is now permanently housed."

I am one of those record collectors born after CDs were introduced who happens to prefer vinyl over any other medium. Long live the vinyl record!

Frank Beacham's Journal -- What Were They Thinking? Library Tosses Rare Vinyl Record Collection

NYTimes -- Vinyl Records Are Making a Comeback

Thursday, June 20, 2013

More Libraries Than McDonald's or Starbucks!

In news that makes any librarian's heart flutter, there are more public libraries than McDonald's or Starbucks in the United States.

"If you have ever felt overwhelmed by the ubiquity of McDonald's, this stat may make your day: There are more public libraries (about 17,000) in America than outposts of the burger mega-chain (about 14,000). The same is true of Starbucks (about 11,000 coffee shops nationally).

“There’s always that joke that there’s a Starbucks on every corner," says Justin Grimes, a statistician with the Institute of Museum and Library Services in Washington. "But when you really think about it, there’s a public library wherever you go, whether it’s in New York City or some place in rural Montana. Very few communities are not touched by a public library.”

In fact, libraries serve 96.4 percent of the U.S. population, a reach any fast-food franchise can only dream of."

Here is a link to the article and a few maps:
The Atlantic Cities -- Every Library and Museum in America, Mapped.

Wednesday, June 19, 2013

Class-Based Affirmative Action

SCOTUS is set to rule on the most recent affirmative action case any day. Is society beyond the need to guarantee diversity in higher education through the use of affirmative action? Are the races keeping up with one another in terms of achievement?

Some say yes, others say no, but one thing is certain -- race-based affirmative action will end at some point because it is only meant to be a temporary solution. Many commenters believe that race-based affirmative action should be replaced with class-based affirmative action. "There is no question that [race-based affirmative action] is a relatively efficient way to make higher education less monochromatic. But sooner or later, racial preferences, which were originally designed to be temporary, will end. Whatever the court decides in the pending case, it is time for college administrators to shift their attention decisively away from racial preferences to an affirmative action based on class."

It's interesting to note that race-based affirmative action doesn't do that much to promote class diversity, but class-based affirmative action would help both racial diversity and class diversity on college campuses. "Racial preferences don’t help all that much in promoting class diversity, because selective colleges heavily favor minorities from middle-class and affluent families; but class-based preferences favor minorities, because blacks and Hispanics are more heavily represented among the poor."

At this point, what we're seeing is that we are schooling ourselves into two different classes. "Students from families in the highest income quintile are now eight times more likely than students in the bottom quintile to enroll in a 'highly selective' college."

Even if SCOTUS decides to end race-based affirmative action, there will likely be class-based admission factors to take its place. "Reversing the long-term trend toward education inequality would be an impressive feat for the Obama administration, which has tried to intelligently reform federal programs that serve low-income students."

NYTimes--Affirmative Reaction

NYTimes--School Ourselves in an Unequal America

Tuesday, June 18, 2013

Florida's Costly Timely Justice Act

While I was listening to This American Life on NPR this weekend, I heard a horrifying story about Florida's new Timely Justice Act.

The Act essentially speeds up the death penalty process. "It sets a deadline of 30 days for the governor to sign a death warrant once an inmate’s appeals become final—that is, after at least one round of state and federal appeals, and after a review by the governor for clemency. And once the governor signs the warrant, the Timely Justice Act says the execution must occur within 180 days."

To some, this may seem like a good thing if we look at the death penalty in purely economic terms. It is hugely expensive to put someone to death with all of the appeals and years and years of waiting on death row.

But it's not purely economic because 'death is different.' It is imperative that we go through the legal processes because we can't undo this punishment. "One of the enduring arguments in Supreme Court death penalty jurisprudence is that the death penalty is 'qualitatively different' from all other punishments in
ways that require extraordinary procedural protection against error."

What's so horrifying about Florida's new Act is that Florida has the highest death penalty error rate of any state in the nation. "Since the mid-1970s, the state has executed 77 people. Florida has also exonerated 24 people who’ve been sentenced to die—the most of any state. In other words, for every three inmates executed, one is set free."

One of the sponsors of the Act "insists that the Timely Justice Act won’t make it quicker and easier to execute someone who is innocent." According to the sponsor, "[w]hat it does is it puts the condemned and his or her lawyers on notice that if they have claims of innocence, they need to gather them and present them to a competent court of law, and do so in a timely manner."

The problem is that evidence of innocence can surface years after a conviction. "Take the case of Juan Melendez. He was on Florida’s death row for 16 years before a diligent defense investigator discovered a tape in the case files—a tape of another man confessing to the murder that no one had presented to the jury. Before the tape came out, the Florida Supreme Court rejected his appeals three times. If the Timely Justice Act had been in effect at the time, Melendez might easily have been executed. [There are] four more exonerees like that. These men spent between 13 and 21 years on death row. It took time and a lot of work to undo the mistakes that initially doomed them."

Slate -- Death Trap

Monday, June 17, 2013

Public Service Loan Forgiveness

Did you know that there is a student-loan forgiveness program specific to those who work at a qualifying non-profit organization? Whenever people ask me about student loan repayment, I am quick to inform them of Public Service Loan Forgiveness (PLSF) because many people do not know that the program exists.

"In 2007, Congress created the Public Service Loan Forgiveness Program to encourage individuals to enter and continue to work full-time in public service jobs. Under this program, borrowers may qualify for forgiveness of the remaining balance due on their eligible federal student loans after they have made 120 payments on those loans under certain repayment plans while employed full time by certain public service employers."

In legal terms, what this means is that: 
  • You must make 120 on-time, full, scheduled, monthly payments on your Direct Loans. Only payments made after October 1, 2007 qualify.
  • You must make those payments under a qualifying repayment plan.
  • When you make each of those payments, you must be working full-time at a qualifying public service organization.
I am taking advantage of PSLF as an employee of a non-profit law school. "Qualifying employment is any employment with a federal, state, or local government agency, entity, or organization or a non-profit organization that has been designated as tax-exempt by the Internal Revenue Service (IRS) under Section 501(c)(3) of the Internal Revenue Code (IRC)." To check to see if your employer is a 501(c)(3), you can use this database:

My first step was to consolidate all of my loans under the Direct Loan Consolidation program to make sure that the loans qualified for PSLF. I then signed up for Income Based Repayment (IBR), which counts as a qualifying repayment plan. Now all that is left is the 120 on-time, full, scheduled monthly payments.  This equates to 10 years.

The wonderful thing about this program is that the amount that is discharged after the 120 payments is not taxed. Thank goodness for PSLF!

Thursday, June 13, 2013

What is Metadata?

To piggy back on my last post about the National Security Agency collecting the metadata associated with our cell phone calls (data), it might be important to describe metadata and why it is useful.

So what is metadata? "Simply put, metadata is data about data. It is descriptive information about a particular data set, object, or resource, including how it is formatted, and when and by whom it was collected. Although metadata most commonly refers to web resources, it can be about either physical or electronic resources. It may be created automatically using software or entered by hand."

In the library world metadata is extremely important because it is how we organize information. "The underlying concepts of metadata have been in use for as long as collections of information have been organized. For example, the information structure for materials in library catalogs is a type of metadata that has served as a collection management and resource discovery tool for decades."

Each resource in a library is tagged with specific metadata decriptors to make resources searchable through the use of fields and subject headings, for example. Without the metadata available to help search for materials, a library would be little more than an overwhelming amount of books, with many being lost to obscurity.

This is the important, proper use of metadata - to help us search for the world's information in an organized way.

As I mentioned yesterday, metadata is currently the least protected form of communication information. This is probably because metadata is data about data, so it feels far enough removed to warrant serious protection. The lack of protection makes metadata susceptible to nefarious uses -- arguably like that of the NSA.

Because metadata is so useful and is becoming increasingly more powerful, it does need added protections in today's landscape. This is another example of the law trying to keep up with technology.

Indiana University Knowledge Base -- What is metadata?

Wednesday, June 12, 2013

Invading Privacy Rights In the Name of Protection

We all now know that the National Security Agency has been collecting our (meta)data from our wireless and Internet service providers. We can't say that we didn't see it coming, since George Orwell prophesized about Big Brother in his book 1984. In fact, Amazon sales of the book have skyrocketed over 7000% over the last week.

But now that we know they are collecting our data, is there reason to be concerned? Our leaders are poo-pooing any concern with statements that [i]ntelligence agencies were not reading personal messages, but rather information about the messages. “This is just metadata,” Senator Feinstein said at a news conference. “There is no content involved.”

It's not that simple, however, because "researchers in the field of data analysis [say that] metadata, or the information about such things as where a message came from and when it was sent, is frequently more valuable to security officials than the content of the messages. A study published in Nature last March demonstrated that just four data points about the location and time of a mobile phone call made it possible to identify the sender 95 percent of the time."

Currently, metadata is the least protected form of communication information, but some lawmakers are starting to renew the debate surrounding the PATRIOT Act, which authorized the collection of the metadata in the name of national security. "One lawmaker, Senator Rand Paul of Kentucky, called the surveillance programs unconstitutional and said he would organize a class-action lawsuit against the government through Internet and phone companies."

One of the overarching themes in response to the disclosure of the surveillance program is 'who cares, I have nothing to hide.' "When I hear someone say 'I don’t have anything to hide' I want to say 'that’s not the point. This isn’t about me. It isn’t about you. It’s about us.' We can’t be a free people if we are constantly watched by the state. It’s as simple as that."

"To describe the problems created by the collection and use of personal data, many commentators use a metaphor based on George Orwell's Nineteen Eighty-Four. Orwell depicted a harrowing totalitarian society ruled by a government called Big Brother that watches its citizens obsessively and demands strict discipline. The Orwell metaphor, which focuses on the harms of surveillance (such as inhibition and social control), might be apt to describe government monitoring of citizens."

It might be time to pick up my dusty copy of 1984 and read about a future that is more on point than I am comfortable to admit.

NYTimes -- Bits Blog: Intelligence Agencies and the Data Deluge

NYTimes -- The Caucus Blog: Feinstein 'Open' to Hearings on Surveillance Progams

InsideHigherEd -- Ordinary Americans

The Chronicle of Higher Education -- Why Privacy Matters Even if You Have 'Nothing to Hide'

Tuesday, June 11, 2013

A MOOC For New Librarianship

It was just announced that there will be a MOOC (massive open online course) devoted to New Librarianship. It is free and has guided instruction from July 8 - August 4.

I hope to take part in the class as professional development, so I'll be sure to let you know how it goes.

Announcing the New Librarianship Master Class Online

The Sway of a Judicial Law Clerk

How much influence does a judicial law clerk have on the happenings of a court?

At the United States Supreme Court level, the Justices' clerks may be the key to judicial reform that keeps pace with current society.

Edward Lazarus, a former law clerk to Justice Harry Blackmun wrote a booked called Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court that was released in 1998. In the book, Lazarus "claims that clerks hold too much influence over their justices-- they succeed in persuading the justice to accept the clerk's view."

In a law review response piece to Lazarus's book, Sally J. Kenney, writes, "I think clerks do have a positive influence on the justices and the Court by bringing fresh ideas and providing a close-knit group wherein justices can reconsider their positions if they choose to do so. Being persuaded by clerks to reconsider a position or accept an argument is very different from being manipulated by them." 25 Law & Soc. Inquiry 185 (2000).

We may see Kenney's position play out with the same-sex marriage opinion that is expected from the court shortly as "[o]penly gay law clerks are now common in the chambers of both liberal and conservative justices."

"As the justices consider two major cases on same-sex marriage, with decisions expected this month, they are, of course, focused on legal issues. But students of the court say other factors may also play a role. In addressing for the first time whether the law must recognize lesbian and gay couples as families,” said David C. Codell, who served as a law clerk to Justice Ruth Bader Ginsburg, “certain of the justices undoubtedly will reflect upon their real-world experiences of getting to know and to understand lesbian and gay people as individuals and as members of families.”

NYTimes -- Exhibit A for a Major Shift - Justices' Gay Clerks

Monday, June 10, 2013

Please Don't Cite Me

In Maryland v. King, the recent SCOTUS decision regarding DNA sampling of arrestees, Justice Kennedy quoted a book called 'Actual Innocence' for support. 'Actual Innocence' was written by the founders of the Innocence Project. But, in this case, the authors of the book are not happy because Kennedy took the quote out of context. Kennedy made it appear as if the founders of the Innocence Project support the DNA sampling of people upon arrest, but they do not.

NYTimes -- Cited by a Justice, but Feeling Less Than Honored

Legal Internship or Free Labor?

Many law schools require their students to get practical legal experience with an unpaid internship. These internships are valuable for networking and for a hands-on education with a mentor. But an internship is more valuable if the student is actively learning. The internship is much less valuable if it merely amounts to free menial labor.

"With job openings scarce for young people, the number of unpaid internships has climbed in recent years, leading federal and state regulators to worry that more employers are illegally using such internships for free labor."

Interns must be paid if an employer cannot comply with the six federal legal criteria that must be satisfied for an internship to be unpaid. "Among those criteria are that the internship should be similar to the training given in a vocational school or academic institution, that the intern does not displace regular paid workers and that the employer 'derives no immediate advantage' from the intern’s activities — in other words, it’s largely a benevolent contribution to the intern."

However, many employers fail to pay even though their internships do not comply with the six federal legal criteria, and there are "cases where unpaid interns really were displacing workers and where they weren’t being supervised in an educational capacity.”

This is becoming an even larger problem with the glut of law students and new attorneys who are looking for anything to add to their resumes. I've heard stories of Ivy League graduates working for free trying to make it to the next rung. We're also seeing that, in many instances, much of the work is menial with little supervision. It will do any law student well to make sure that they are actually learning and that their legal internship is heavily supervised with an educational component.

And the next question is, do these unpaid internships favor well-to-do and well-connected students?

"While many colleges are accepting more moderate- and low-income students to increase economic mobility [including law schools], many students and administrators complain that the growth in unpaid internships undercuts that effort by favoring well-to-do and well-connected students, speeding their climb up the career ladder. Many less affluent students say they cannot afford to spend their summers at unpaid internships, and in any case, they often do not have an uncle or family golf buddy who can connect them to a prestigious internship."

And it all boils down to who you know...

NYTimes -- Unpaid Intern, Legal or Not

NYTimes -- Jobs Few, Grads Flock to Unpaid Internships

NYtimes -- Internships for Credit, but Is It Due?

Friday, June 7, 2013

Employment Stats For 2011 & 2012 Law Grads Nearly The Same

The employment statistics for the 2012 graduates are nearly the same as those for the 2011 law school graduates.

"As of Feb. 15 ... 56.2 percent of all 2012 graduates of ABA-approved law schools held long-term/full-time jobs—expected to last a year or more—that require a license to practice law. That’s a slight improvement over the previous year, when 54.9 percent of 2011 graduates of ABA-approved schools held full-time/long-term jobs requiring a law license nine months after graduation."

One telling statistic is that the "percentage of 2012 graduates who still were unemployed and seeking work nine months later—10.6 percent—reflects an increase from 2011, when 9.2 percent of all graduates were unemployed and seeking work nine months later."

However, there were more law school graduates in 2012 than at any other time in law school history. "At 46,364 graduates, the [201] class was the largest on record, 5.4 percent more than the 43,979 graduates of ABA-approved law schools in 2011." So there are more graduates clogging the already strained market.

The 'good' news is that this trend may not last long with the low enrollment in law schools. There has been a 38 percent drop in law school applications since 2010 as reported by the Law School Admission Council.

One commenter cautioned prospective law students to think twice before taking on serious debt to finance a legal education because law school is expensive relative to job outcomes. It's true that unless you receive a wonderful scholarship to attend a great school, you might want to think twice about attending until the market corrects itself. That being said, no one would have swayed me not to attend law school, and it's the best decision I've ever made -- even with a sizable debt. It changed my entire life.

ABAJournal -- Employment picture for law grads looks pretty much the same as a year ago - for better and worse

Thursday, June 6, 2013

The Weighty Consequences Of Law Practice

This seems like a no-brainer, but a survey this week reinforced the notion that the duties of the legal profession help pack on the pounds.

"Lawyers, judges and other legal professionals work in one of the top professions for weight gain, according to a survey of nearly 3,700 full-time workers by CareerBuilder."

Among those most likely to report weight gain:

1) Administrative Assistant (69 percent said they gained weight in their current jobs)

2) Engineer (56 percent)

3) Teacher/Instructor K-12 (51 percent)

3) Nurse Practitioner or Physician’s Assistant (51 percent)

5) IT Manager/Network Administrator (51 percent)

6) Attorney/Judge/Legal Professional (48 percent)

7) Machine Operator/Assembly/Production Worker (45 percent)

8) Scientist, Biological/Physical/Social (39 percent)

As AOL Jobs observes, "[t]hose in the law profession have to read reams and reams and reams of text. Not the kind of text that you can scan while jogging on the treadmill, but the kind of text that takes hours to study, highlight, and annotate. Reading that much is good for the mind, but not so hot for the body."

I've worked at a law school long enough to see this trend in law students. They come in as fit, fresh-faced 22 year olds and leave as overweight (and sometimes wrinkly and bald) 25 year olds. Moral of the story: make sure to start a healthy lifestyle while in law school that will transfer over to your work in the legal profession. If you are already hard at work in the legal profession, stay cognizant of the weight gain pitfalls.

ABAJournal -- Is weight gain a job hazard for lawyers? Profession cited for packing on the pounds.

Wednesday, June 5, 2013

Should Judges Have To Retire At Age 70?

Across the United States, 33 states and the District of Columbia have mandatory retirement for judges who reach a specific age. 

The most popular mandatory retirement age is 70, and Michigan is one of the states that requires judges to retire at 70. Vermont has the highest mandatory retirement age at 90. 

There are arguments brewing that 70 is too young for a mandatory retirement age -- mainly because life expectancy is longer today. Many of the mandatory retirement age limits were put into place 50+ years ago when life expectancy was 61, and a judge in New York argues "as long as I am physically and mentally capable of doing this, I want to keep doing this."

New York is set to vote on legislation "that would amend the State Constitution, if approved by voters, to extend the retirement age to 80 for hundreds of judges statewide." As the sponsor of the bill said, "[t]he 70-year-old that existed in the 1890s is not the 70-year-old of today."

I see this from both sides. On one hand, I would hate to be told when I had to quit working a job that I love based on a seemingly arbitrary age limit imposed a half century (or more) ago. On the other hand, the current crop of judges still tend toward white, old men, and it would be nice to have them make way for a more diverse crop of judges, as well as those new to the profession.

I remember upon entering law school that there were projections about the number of attorneys that would retire and make way for the newbies, but those projections did not hold true. With the recession, many people (including attorneys and librarians, for that matter), have to continue to work, which clogs the system for people newly entering the field. 

At least if a judge doesn't want to stop working at 70, he could always go back to private practice with the vast network that he created while on the bench. But something tells me that given that choice, many of them would choose retirement.  

Tuesday, June 4, 2013

The Invaluable Michigan Courts' Website

The Michigan Courts One Court of Justice website is an invaluable resource for Michigan practitioners.

Below I will highlight just a few of the resources available on the Michigan Courts' website, but I would advise anyone interested in practicing law in Michigan to make yourself very familiar with this website.

  • You can find State Court Administrative Office court forms that are fillable PDF forms and can be filed in courts throughout Michigan. These forms offer a pre-formatted caption and the information necessary to start a cause of action. 

  • There is a free case law database where you can find Michigan Supreme Court and Michigan Court of Appeals cases using the party name, docket number, or by doing a keyword search. 

  • You can find the Model Civil Jury Instructions, which are often a helpful place to start research. The MCJI give the necessary elements for a civil cause of action with citations to both case law and statutes to further your research. 

  • There is information about the various filings fees required by the district courts, circuit courts, and probate courts. 

  • There is an amazing self-help center that offers information about particular causes of action, including a general overview, statutes, and court forms. You can find self-help in many areas of law: appeals, civil, custody, divorce, eviction, felony, name change, parenting time, personal protection, setting aside a conviction, and small claims. 

All states would be lucky to have a court website like the one in Michigan. For attorneys practicing in other states, you should find the reputable resources available online that will help you in practice. The Washburn School of Law has created a clean portal that will aid you with links to information for all states. 

Monday, June 3, 2013

Scribes Guidelines for Excellence in Law Reviews

In 2011, The Scrivener released the Scribes Guidelines for Excellence in Law Reviews written by Scribes board members Bryan A. Garner and Richard C. Wydick.

Below are the main points:

Every member of a law review should be required to buy and learn the current editions of these books:
  • The citation manual the law review uses (e.g., The Bluebook or ALWD).
  • Eugene Volokh's Academic Legal Writing.
  • Bryan A. Garner's The Redbook: A Manual on Legal Style.
Each edit suggested by a new member of the review should be supported by citation to one of those texts. 

A law review office should have in its library current editions of the following books:
  • Two copies of each of the three books listed above.
  • Black's Law Dictionary.
  • Wydick, Plain English for Lawyers.
  • Garner's Dictionary of Legal Usage. 
  • Kimble, Lifting the Fog of Legalese.
  • Trimble, Writing with Style.
  • Garner, The Elements of Legal Style.
Anyone wishing to become an editor of the law review should be able to certify that he or she has read at least three of the books listed above. 

It is also advised to do the following:
  • Fret about the opener of each piece: an interesting lead that immediately predisposes readers to continue (be wary of stultifying "roadmaps").
  • Insist on good, idiomatic English of the kind to be found in such publications as The New Yorker or The Economist and other first-rate nonfiction publications.
  • Delete every unnecessary paragraph, sentence, and word.
  • Footnote sensibly, not rabidly. Use your head -- and repeal any "rule" that requires a footnote after every sentence.
  • As a tonic to your style, as as a caution to your members, have everyone affiliated with your law review read Fred Rodell's Goodbye to Law Reviews -- Revisited, 48 Va. L. Rev. 279 (1962). While you're at it, you should also read George Orwell's "Politics and the English Language," 4 The Collected Essays, Journalism and Letters of George Orwell 127 (1968) (and widely reprinted). 
These are great guidelines for law review editors. In addition to their list of recommended reading, I would also have editors read William Zinsser's On Writing Well. I just had a chance to read this book for the first time, and as a former law review editor and current Scholarly Writing professor, I know that this book gives a lot of great tips on writing nonfiction. It's also an enjoyable read, which isn't always the case with these types of books.

Many of the ideas in the guidelines are modern trends in academic legal writing that have not totally caught on. We still footnote rabidly and use roadmaps. The footnoting issue can be difficult when dealing with student writers. Law students writing scholarly articles are generally not considered experts in a field, so they footnote heavily to substantiate their arguments. It may be less important for legal scholars who are experts in their field to rabidly footnote, but I think that many law review or journals could easily reject a student comment or casenote for a lack of footnotes.

In the meantime, I will continue to advocate these guidelines to my institution's legal publications as their library liaison.