Thursday, October 31, 2013

Michigan Bar Exam Passage Rate Up From 2012

Although we are still waiting on the official breakdown of passage rate by school, the State Bar of Michigan Blog reports that five hundred thirty eight certified passers successfully navigated July's bar exam.

That number is up 13.5 percent from last year's certified passer list.

Happy Halloween!

For the man who launched a thousand Halloween costumes, let's pay tribute to David Bowie's reading list.


David Bowie's top 100 must-read books

The Age of American Unreason, Susan Jacoby (2008)
The Brief Wondrous Life of Oscar Wao, Junot Diaz (2007)
The Coast of Utopia (trilogy), Tom Stoppard (2007)
Teenage: The Creation of Youth 1875-1945, Jon Savage (2007)
Fingersmith, Sarah Waters (2002)
The Trial of Henry Kissinger, Christopher Hitchens (2001)
Mr Wilson's Cabinet of Wonder, Lawrence Weschler (1997)
A People's Tragedy: The Russian Revolution 1890-1924, Orlando Figes (1997)
The Insult, Rupert Thomson (1996)
Wonder Boys, Michael Chabon (1995)
The Bird Artist, Howard Norman (1994)
Kafka Was the Rage: A Greenwich Village Memoir, Anatole Broyard (1993)
Beyond the Brillo Box: The Visual Arts in Post-Historical Perspective, Arthur C Danto (1992)
Sexual Personae: Art and Decadence from Nefertiti to Emily Dickinson, Camille Paglia (1990)
David Bomberg, Richard Cork (1988)
Sweet Soul Music: Rhythm and Blues and the Southern Dream of Freedom, Peter Guralnick (1986)
The Songlines, Bruce Chatwin (1986)
Hawksmoor, Peter Ackroyd (1985)
Nowhere to Run: The Story of Soul Music, Gerri Hirshey (1984)
Nights at the Circus, Angela Carter (1984)
Money, Martin Amis (1984)
White Noise, Don DeLillo (1984)
Flaubert's Parrot, Julian Barnes (1984)
The Life and Times of Little Richard, Charles White (1984)
A People's History of the United States, Howard Zinn (1980)
A Confederacy of Dunces, John Kennedy Toole (1980)
Interviews with Francis Bacon, David Sylvester (1980)
Darkness at Noon, Arthur Koestler (1980)
Earthly Powers, Anthony Burgess (1980)
Raw, a "graphix magazine" (1980-91)
Viz, magazine (1979 –)
The Gnostic Gospels, Elaine Pagels (1979)
Metropolitan Life, Fran Lebowitz (1978)
In Between the Sheets, Ian McEwan (1978)
Writers at Work: The Paris Review Interviews, ed Malcolm Cowley (1977)
The Origin of Consciousness in the Breakdown of the Bicameral Mind, Julian Jaynes (1976)
Tales of Beatnik Glory, Ed Saunders (1975)
Mystery Train, Greil Marcus (1975)
Selected Poems, Frank O'Hara (1974)
Before the Deluge: A Portrait of Berlin in the 1920s, Otto Friedrich (1972)
n Bluebeard's Castle: Some Notes Towards the Re-definition of Culture, George Steiner (1971) Octobriana and the Russian Underground, Peter Sadecky (1971)
The Sound of the City: The Rise of Rock and Roll, Charlie Gillett(1970)
The Quest for Christa T, Christa Wolf (1968)
Awopbopaloobop Alopbamboom: The Golden Age of Rock, Nik Cohn (1968)
The Master and Margarita, Mikhail Bulgakov (1967)
Journey into the Whirlwind, Eugenia Ginzburg (1967)
Last Exit to Brooklyn, Hubert Selby Jr (1966)
In Cold Blood, Truman Capote (1965)
City of Night, John Rechy (1965)
Herzog, Saul Bellow (1964)
Puckoon, Spike Milligan (1963)
The American Way of Death, Jessica Mitford (1963)
The Sailor Who Fell from Grace With the Sea, Yukio Mishima (1963)
The Fire Next Time, James Baldwin (1963)
A Clockwork Orange, Anthony Burgess (1962)
Inside the Whale and Other Essays, George Orwell (1962)
The Prime of Miss Jean Brodie, Muriel Spark (1961)
Private Eye, magazine (1961 –)
On Having No Head: Zen and the Rediscovery of the Obvious, Douglas Harding (1961)
Silence: Lectures and Writing, John Cage (1961)
Strange People, Frank Edwards (1961)
The Divided Self, RD Laing (1960)
All the Emperor's Horses, David Kidd (1960)
Billy Liar, Keith Waterhouse (1959)
The Leopard, Giuseppe di Lampedusa (1958)
On the Road, Jack Kerouac (1957)
The Hidden Persuaders, Vance Packard (1957)
Room at the Top, John Braine (1957)
A Grave for a Dolphin, Alberto Denti di Pirajno (1956)
The Outsider, Colin Wilson (1956)
Lolita, Vladimir Nabokov (1955)
Nineteen Eighty-Four, George Orwell (1949)
The Street, Ann Petry (1946)
Black Boy, Richard Wright (1945)

State Fines For Texting While Driving

I'd wager that most people have sent a quick text while driving or have been the remote texter who texts a friend while the friend is driving. While these acts are common, it is obviously risky, and the various states are trying to discourage texting while driving with steep fines.

Lifehacker posted the following map of the states with each state's fine for texting while driving:




"Alaska has the strongest penalty: Up to $10,000 and a year in prison for the first offense. California has the smallest minimium fine—only $20 per offense. Four states: Arizona, Montana, South Dakota, and South Carolina, have no bans or penalties for texting while driving whatsoever. The national median is $100, and many states scale the dollar amounts and penalties up from there."

These are fines for driving while texting, and New Jersey recently upped the ante when "a New Jersey appeals court held that a remote texter can be held liable to third parties for injuries caused when the distracted driver has an accident. However, that is only true if the individual sending the texts from another location knew they were being viewed by the recipient as he or she was driving."

Just don't do it.

Wednesday, October 30, 2013

Free Online Training For Librarians

Check out LibraryScienceList! From the website: "LibraryScienceList is a hip library science social community for librarians around the world. We are a truly global site for librarians. Our site is run by data and editorial geeks with a community of diverse librarians. Our aim is to showcase creative editorial around the field of librarianship."

Melissa Steele posted a list of free online training websites for librarians earlier this year. Because, as she noted, "the training never ends. There are always new skills to learn and new abilities to master, and that’s why so many librarians continue to utilize online courses to boost their overall knowledge."

Tuesday, October 29, 2013

The July 2013 Michigan Bar Exam Results

The Michigan Board of Law Examiners just released the results for the July 2013 Michigan bar exam.

The results can be found at the Michigan Board of Law Examiners website.

A Law Librarian's Degrees

Hiringlibrarians ran a post about an analysis of law librarians who work at top-50 institutions (U.S. News) and the rank of their degree-granting institutions. Here's a citation to the results: Ahlbrand, A. & Johnson, M. (2012). Degree pedigree: Assessing the effect of degree-granting institutions’ ranks on prospective employment at academic law libraries. Law Library Journal, 104(4), 553-68.

The authors compared the ranks of where librarians acquired their library science and law degrees to the rank of the school at which they were employed. The authors used U.S. News and World Report rankings as the measure since those rankings are most prevalent today

The methodology for the study consisted of the authors recording each librarian’s employing law school and its current rank; the attended law school and its current rank; the attended library science program and its current rank; and the years each degree was attained, if available. The initial data analysis was performed on both the intended sample of librarians working at top-fifty law schools and a random sample drawn from all U.S. law schools by calculating frequency statistics. Then a few chi-square analyses were done to compare the groups of data in different categories.

The study showed that, to attain a position at a top-fifty ranked law school, one should strive to attend a top-ten ranked library science program. The analysis revealed that those working at top-fifty ranked law schools were more likely to have attended highly ranked library science programs than those in the random sample of all law schools.

There was no significant difference between the rank of law schools attended for librarians in the top-fifty and random samples. But more closely comparing librarians working at top-twenty-five and top-ten law schools, the data did reveal a difference in law school educational patterns: librarians working at top-ten law schools were much more likely to have attended highly ranked law schools than those working at law schools ranked in the top twenty-five.

Knowing this fairly recent information from 2012, if one were to apply to a top 50 law school for a law librarian position, should she follow the advice from this Chronicle of Higher Education article and ask in advance if the hiring committee has any particular concerns about her?

The very example the article from CHE gives is: "If you have spent much or all of your career at elite institutions and are a candidate at a nonelite college, you can expect people on the hiring committee to wonder about your ability—and your desire—to make the transition. You will have to make an extra effort to dispel the notion that you are not only from an elite institution but also an elitist."

I wonder if a law librarian candidate should bring a discussion of her degree-granting institutions to the forefront and let the hiring committee know that she realizes that the hiring committee may have questions about the candidate's degree-granting institutions? Or does that seem presumptuous? And should it be done in a cover letter or only once a potential candidate has been asked to interview? Cover letters are tricky things. Trying to set yourself apart on paper can be a challenge.

It feels awkward to bring up any negative information, especially when these seem to be obvious questions. I also do not feel that the degree-granting institution's reputation is always the best way to judge a potential candidate. But depending on the hiring committee, taking a few risks might be worth it to set yourself apart from the rest of the run-of-the-mill crowd.

Monday, October 28, 2013

New England School Of Law Rumored To Cut 14 Faculty

The TaxProfBlog is reporting on a rumored new measure at the New England School of Law to eliminate 14 fulltime faculty positions by August 1, 2014. 

According to information at TaxProfBlog: "Depending on how one counts, this is about 35-40% of the regular faculty. The School's entering class was up in 2012, but was down in 2013 and by some accounts the School has an endowment of $80,000,000. Faculty have been told by Dean John O'Brien that these 14 positions will be eliminated according to the School's needs, regardless of tenure or seniority. An incentive plan has been offered to senior faculty and certain clinical faculty, but those who don't take it have been threatened with termination. Their decisions must be final by the end of the Fall term. Those who still do not comply or were not offered the plan, were told that if they remain, their workload during the next academic year will move from 2 to as much as 4 courses per semester and that they will be required to be at their desks from 9 to 5 each day of the work week or an equivalent time period if they are teaching evening classes."


I bet that many law schools across the country are taking similar measures. The schools are likely utilizing the regular faculty to teach classes that were once taught by adjuncts in better times. This means a higher per term teaching load for the regular faculty. As for the 40 hour workweek, some may think that this is a gesture of good faith by the law school to show that the faculty are working hard -- something that has been recently criticized. 


When looking at the news sources on this information, it appears that the law faculty are taking the brunt of the criticism. It's gone so far as having an ABA Council recommend the elimination of tenure requirements.


At this point, only time will tell what the future holds for all law schools as the various administrations continue to react to the drop in enrollment. 

Friday, October 25, 2013

Happy Open Access Week!

Open Access Week runs from October 21 - October 27, 2013. Although we are nearing the end of this "holiday," it is an important event that celebrates the ideals that inform society. 

From the website: "'Open Access' to information – the free, immediate, online access to the results of scholarly research, and the right to use and re-use those results as you need – has the power to transform the way research and scientific inquiry are conducted. It has direct and widespread implications for academia, medicine, science, industry, and for society as a whole."

In addition, "Open Access (OA) has the potential to maximize research investments, increase the exposure and use of published research, facilitate the ability to conduct research across available literature, and enhance the overall advancement of scholarship. Research funding agencies, academic institutions, researchers and scientists, teachers, students, and members of the general public are supporting a move towards Open Access in increasing numbers every year. Open Access Week is a key opportunity for all members of the community to take action to keep this momentum moving forward."

I am a huge fan of open access to keep scholarship broad and accessible. Although I will not go so far as to become a martyr to the cause, I will continue to promote the value of open access in the scholarly community any chance that I get.

By art designer at PLoS, I converted a pdf into svg (http://www.plos.org/) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons
http://commons.wikimedia.org/wiki/File%3AOpen_Access_PLoS.svg

Thursday, October 24, 2013

A Repository Of Law Review Publication Agreements

Here is a great new resource that I first noticed over at Law Librarians -- The PrawfsBlawg has compiled a number of law review publication agreements.You can find the whole spreadsheet of the compiled law review publication agreements here.

As noted, "[i]t might be useful for folks to have access to law reviews' publication agreements, whether to help with negotiations, compare copyright provisions, or whatever. [PrawfsBlawg] has begun a spreadsheet with links to such agreements that are available on the web. If you are aware of other such links, please add them in the comments to the [PrawfsBlawg] post or email [PrawfsBlawg] directly, slawsky *at* law *dot* uci *dot* edu," and the agreements will be added to the spreadsheet.

PrawfsBlawg is interested in links to any law review publication agreements, whether main journal, secondary journal, peer-reviewed, or student reviewed.

I have a forthcoming article coming out titled, How Law Librarians Can Assist with Law Journal Publication Agreements. In the article, I talk about the necessity of looking at other law journals' publication agreements as samples when journals are updating their own. One of the key considerations in law review publication agreements, today, is open access. It is a great idea to keep open access in mind and allow authors to retain the right to distribute their articles at places like SSRN.

Open access will inevitably create a wider readership base because the articles will generally be discoverable through Google searches. In this day and age, when many researchers are relying primarily on convenient resources on Google, it is a great idea to broaden the current scholarship available and help prevent the very narrow scholarship that might otherwise be churned out.

Thanks to PrawfsBlawg for taking the initiative to start this great repository of which we can all benefit!

Wednesday, October 23, 2013

Law Schools Dabble In Online LL.M. Programs

A National Law Journal article notes that there are three law schools that have taken the plunge into online LL.M. degree programs -- USC Gould School of Law, Florida Coastal School of Law, and Washington University in St. Louis School of Law.

"Florida Coastal School of Law was the first to offer an online LL.M. in U.S. law in 2010. Washington University in St. Louis School of Law followed suit in 2012, effective at the start of 2013. Administrators initially expected to enroll about 20 students, but 51 are participating. In a further bid to break out of the pack, USC’s online program will offer students the opportunity to concurrently earn a certificate in entertainment law or business law at no added cost."

This makes sense as online degree programs gain traction and also because "LL.M. tuition has become something of a lifeline for some law schools as J.D. enrollments plummeted during the past three years. [LL.M. programs] face little oversight from the ABA and law schools are not required to report the incoming academic credentials of students or their employment outcomes. Thus law schools like LL.M. programs because they do not affect rankings.

And LL.M. programs are financially appealing to law schools. "Most foreign students pay full tuition, which can run as high as $70,000. Plus, LL.M programs generally don’t require many new faculty members, since students often take open seats in J.D. classes already on offer. As with the program at Washington University, tuition for USC’s online LL.M. will be the same per credit as for the residential program—for a total cost of about $42,000."

Not only do LL.M. programs face little oversight and are a smart financial option, they are also the only degree program where enrollment has significantly increased since 2000. "The total number of non-J.D. students—of which foreign-trained LL.M. candidates comprise the single largest group—increased by 52 percent between 2000 and 2012, according to the American Bar Association. By contrast, J.D. enrollment grew by just 1 percent during that same period."

I suspect that it is only a matter of time before all law schools jump on the bandwagon. These law schools are smart to be the first to adopt these online LL.M. programs because there is currently little competition.

However, I do think that online programs should not cost as much as face-to-face. Online students have to purchase their own hardware/software, and they are not using the physical infrastructure of the campus. I think that this should be taken into account with pricing. Otherwise, the online idea is a sound one. There are simple platforms, such as Blackboard, that facilitate lectures and discussion, which is the heart of any LL.M. program today. And many prospective LL.M. students would be dissuaded to uproot their lives to attend a traditional program. On paper, it seems to work. We'll see if this type of innovation transfers to the JD program, as well.

Tuesday, October 22, 2013

Let's Talk About The Good Things Going On With Law Reviews

People are talking about law review reform, so it looks like the recent paper met its goal. 

This time it's the NYTimes reporting on law review reform with questions like, "why are law reviews, the primary repositories of legal scholarship, edited by law students?" 

And other obvious statements like, "[t]hese student editors are mostly bright and work hard, but they are young, part-time amateurs who know little about the law or about editing prose. Yet they are in charge of picking the best articles from among many hundreds of submissions written by professors with authentic expertise in fields the students may never have studied."

The article notes that judges do not rely on law review articles, and anyone arguing in front of the Supreme Court would be an idiot to cite one. Judge Dennis G. Jacobs, of the federal appeals court in New York, said that he hasn't opened up a law review in years. “No one speaks of them. No one relies on them.”

So the NYTimes fact checked that statement: "[t]hat is only mild hyperbole. About 43 percent of law review articles have never been cited in another article or in a judicial decision."

It is also true that SCOTUS does not rely on law review articles as much as it used to. "In the 1970s and 1980s, about half of all Supreme Court opinions cited at least one law review article. Since 2000, the rate is just 37 percent -- even as Supreme Court opinions have grown longer and more elaborate."

As noted, "[t]he general debate on how to improve law reviews is an old one, and there is little prospect of change. Law reviews will continue to publish long, obscure and dated articles, and their readership and influence will continue to drop."

NYTimes, please let's continue to expound on all of the negative things about law reviews and offer no suggestions for change -- the same with law schools, in general. As an expert legal researcher, I use law review articles a lot. Law reviews are one of my go-to resources for a preliminary analysis to find an overview of the law with citations to cases and statutes. I mine the footnotes for other relevant information on topic because the beauty of law reviews is that you can generally find an article written on any topic.

In light of this article and others, I am inspired by the changes happening at my school's law review (and many others). Many law reviews are taking the open access route by providing their articles for free on their websites. They also have online companions that are more akin to blogs. As I mentioned before, the law review at my school is starting to dabble in peer review -- at least to get a professor's opinion about a hard to understand topic.

So, I have to respectfully disagree that things are not changing. There are good things going on in law review land if you just take the time to look. However, this does remind me that those affiliated with law reviews need to do a better job of promoting the good things.

Monday, October 21, 2013

Policies For Shorter Law Review Articles Go Unenforced

As a law librarian who works extensively with law journals, I can attest to the general consensus that law review editors believe that law review articles are too long.

The ABA Journal recently reported on a UCLA law professor named Stephen Bainbridge who wrote a 39,000-word law review article this fall. "But he wondered if he should cut it. Why? A joint statement from 2005 from 11 leading law reviews indicated that they wanted to start running shorter articles based on responses to a survey that reflected 'one particularly unambiguous view shared by faculty and law review editors alike: The length of articles has become excessive.'"


Currently "submission guidelines from Harvard and Yale now explicitly state that they discourage articles of more than 25,000 words." Articles that are 25,000 words equal about 50 pages. 

Professor Bainbridge decided to look at the seven most recent issues of the Harvard Law Review and Yale Law Review and check the length of the articles. He saw that zero of Yale's article were under 50 pages, and that zero of Harvard's were under 60 pages. 

Professor Bainbridge said that he didn't know if there are other journals out there enforcing the rules more strictly. "At the very least, however, it seems that Harvard and Yale are just joshing us. So [his] advice is: Write the article to the length you need and ignore the word limits."


The law review at my school favors articles that are closer to 30 pages in length. The thought is that because we are a more practical school, our audience prefers shorter, practical articles. I think it works, and there are definitely differing audience considerations than the traditional Harvard & Yale journals. It may mean that the advice to ignore word limits may depend on the journal to which you are submitting. 

Friday, October 18, 2013

Libraries Connect With Community By Lending Unusual Items

Most people think of libraries as a place to check out books or DVDs, but NPR recently ran a story about the unusual items that public libraries lend.

Libraries have increasingly gone to creative lengths to continue to connect with their communities in the digital age. "What's the point of a library in the digital age? It's a question that makes librarians bristle. They are quick to remind you that they are not just repositories for printed books and DVDs. Regular patrons know this, but public libraries want to reach beyond the faithful. To that end, many librarians are finding creative ways to get people through the doors despite their limited resources."

For example, a handful of library branches in New York lend out fishing poles. "The New York State Department of Environmental Conservation provides the library with eight poles, and the local Fish and Game Club gave funding for tackle boxes."

Some may ask what fishing poles have to do with libraries? As one library director put it, "a library's job is to inform and enlighten, but also to connect its patrons with the community. Other libraries try to bring people in simply by offering things they might need around the house, like toys, pots and pans, tools — and even humans."

Another library created The Human Library where they cataloged people in the community who were experts in certain things -- like electronics or plumbing. If somebody has a question that these experts can help answer, they can check the human out.

"The Human Library is just a different way for library patrons to have what could be a transformative experience. Instead of reading stories, the patrons are hearing from people in their community, firsthand, face to face."

I love the idea of The Human Library experience. What a beautiful way to give back to the community. When the recession hit, many libraries saw a surge in patron use because the community was hurting financially, and the library was a place to come and use resources for free. Instead of paying a plumber hundreds of dollars to fix a leaky faucet, a patron can come and learn about it from an actual plumber and repair the sink herself. That's pretty amazing.

Thursday, October 17, 2013

Circuit Splits & Law Review Topic Selection

When there is an issue that has the federal circuit courts split on interpretation, it is the perfect time to step in and analyze the issue in a law review comment. 

Circuits splits are particularly good for law review comments because it gives the author a chance to analyze what the circuits are doing and offer suggestions for SCOTUS should the case make it that far. Circuit splits are great fodder for the United States Supreme Court, especially if the justices believe that the circuits are interpreting laws or cases in a way that was not intended. It's also substandard to have the various circuits interpreting laws in different ways because federal laws are the supreme law of the land, and their interpretation should be consistent no matter which federal circuit court hears the case.

There are a few great places to go for circuit split news:
  • Circuitsplits.com offers background information about circuit splits, as well as mentions the various case citations for a great start to research.
  • Federal Evidence Review offers information on federal evidence circuit splits.
  • Seton Hall Circuit Review is a law journal dedicated solely to federal circuit issues. There is generally a section on current circuit splits in each issue. 
  • Split Circuits Blog is a blog written by a law professor and tracks the various circuit splits. 
Law librarians from around the country have also complied various research guides on circuit splits:
These are just a few of the resources available from law libraries. A quick Google search for 'circuit split research guide' or 'law review comment topic selection' will lead you to many more examples. 

Wednesday, October 16, 2013

The Time Is Upon Us -- Take The Bluebook 20th Ed. Survey Now!

I received this information via email, and then saw it posted on Law Librarians, so I thought I would also share it.
Help Us Improve The Bluebook !
The editors of The Bluebook: A Uniform System of Citation are about to embark on the exciting task of making revisions for the forthcoming Twentieth Edition, and we need your help.  We rely on user input to guide our revisions to The Bluebook. This survey is an opportunity for you to share your ideas with us as we update The Bluebook so that we can target our revisions to best serve your needs.
Please take a few minutes to fill out our survey at  www.legalbluebook.com/survey.  Surveys must be received by November 8, 2013, in order to be considered for the Twentieth Edition. Comments and suggestions are also welcome through e-mail to editor@legalbluebook.com.
Bonus Prize:
As an added incentive for the completion of our survey, we will select five participants at random to receive a Kindle Paperwhite e-reader. An additional twenty participants will be randomly selected to receive a free copy of the Twentieth Edition as well as a two-year subscription to The Bluebook Online (www.legalbluebook.com). Winners will be notified by December 8, 2013.

As an example, I shared with the editors some valuable information about the shed West era. The Bluebook has a preference for print, but more and more libraries are canceling print in favor of electronic access. If the associate editors do not have access to print to substantiate the text of an article because their library has canceled the print, it can make it especially hard for the die hard journals that still require print (and their librarians). 
Within the last year, my own journals have caught onto this idea (with a little nudging from me). Our library is starting to cancel some print statutes and print reporters, so the journals have decided to rely on Westlaw to gather some resources. The journals cite to the information published by West (generally the annotated codes and regional reporters), and the citation ends with (Westlaw YEAR). Ex. Mich. Comp. Laws Ann. § 722.401 (Westlaw 2013). 
This is especially nice for statutes because in print sets, the books may have been published on different dates, which can be confusing. If an article written in 2013 cites to a print statute published in 2006, some readers not familiar with The Bluebook may be confused as to why the author is using an old statute to write a current article. It's not that the statute is old, it's still the current statute, it's just that the print book that the statute can be found in was published in 2006. With our version (Westlaw YEAR), we use the current year and cite to the electronic database. It seems to cause less confusion about dates, etc....
I think that this is a smart move for The Bluebook editors to consider because the future looks bleak for print statutes and reporters, and it's better to stay forward thinking about these things.

Tuesday, October 15, 2013

An Enlightening Interview With SCOTUS Justice Antonin Scalia

My last post was about an interview with Justice Kennedy, and today it's Justice Scalia's turn. Both of these interviews are nice glimpses into the current state of mind of the Supreme Court Justices.

The Law Deans Blog posted about a New York Magazine interview with Justice Scalia.

Scalia, in part, discussed his originalist views:

Had you already arrived at originalism as a philosophy [while in law school]?
I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

But as law students, they were taught that the Constitution evolved, right? You got that same message consistently in class, yet you had other ideas.
I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, “I better reexamine my position!” I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.

There was also a discussion of his drafting process and his choice of clerks:

Let’s talk about your opinions for a second. Do you draft them yourself? What’s your process?
I almost never do the first draft.

How do your clerks know your voice so well?
Oh, I edit it considerably between the first and the last.

How do you choose your clerks?
Very carefully. What I’m looking for is really smart people who don’t necessarily have to share my judicial philosophy, but they cannot be hostile to it. And can let me be me when they draft opinions, can write opinions that will follow my judicial philosophy rather than their own.

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

He also talked about who he writes his dissents for:

When speaking about the tone of his dissents, Scalia said, "I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?"

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

While I still don't fully understand or agree with many of Scalia's views, this interview does offer some understanding. I like that he admits to basically arguing devil's advocate because if no one has an opposing view, it makes him uncomfortable. The fact that he is open to taking a law clerk from a 'lesser law school' is nice lip service, and I hope he actually does it someday. Law students are the perfect audience for dissents! I had never considered it before, but the law students will be the ones to read and possibly agree with dissents. They are in the best position to see both sides of the law objectively and perhaps even work to change the law to agree with the dissent one day.

Monday, October 14, 2013

An Enlightening Interview with SCOTUS Justice Anthony Kennedy

Law Librarians discussed the WSJ Law Blog's post on a conversation that Justice Anthony Kennedy recently had with WSJ's Jess Bravin.

Below are excerpts from this conversation:

Q: Some 9,000 or 10,000 appeals typically are filed each year at the Supreme Court, fewer than 100 usually are accepted. Can you explain the process?

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

This answer is interesting for the though process of not taking a case. To Kennedy, it seems that there is no harm in not taking a case because if it is really important there will be a similar case that comes down the pipeline sooner or later. However, I can't help but think about the cost associated with similar cases reaching the Supreme Court. Isn't it better for the justices to put up a fight and take these cases the first time around rather than waiting for a similar issue to reach them later? It's extremely expensive to argue a case all the way to the Supreme Court, and if a justice can assume that the issue will rise again, they should decide to fight for the issue to be heard in the first instance.

Q: How are opinions assigned?

A: If there’s a division, the senior judge in the majority assigns the opinion and the senior judge in dissent assigns the dissent. And we try to keep the workload even so that one judge doesn’t get all the railroad reorganization cases. Most of us, the first thing you write, it’s no good, you throw it in the waste basket and start again and then you circulate this draft and hope you that you get four other votes.

This reiterates the notion that good writing takes time, and writers often need to throw out entire first drafts before something worthwhile takes shape.

Q: The Supreme Court for the first time includes three women and black and Hispanic members. Is that new diversity benefiting the court?

A: Sure, I think it’s helpful that we have different points of view. I’m not sure that rigid categories of gender and ethnic background are always proxies for diversity, but it gives legitimacy to what the court does. [Still], it used to be that diversity was geographical. [Nowadays], I’m the only justice from west of the Mississippi, [while four justices come from New York City].

Thank you, Justice Kennedy, for reminding us that race is not the only factor when it comes to diversity. There are also issues of socioeconomic status, as well as geographical location that matter when it comes to diversity. I, for one, did not realize that four of our current justices hail from NYC -- that's a lot from a nine-member Court. The legal education of the justices is generally not very diverse, either. Of the current Court, five of the justices graduated from Harvard Law School, three from Yale Law School, and one from Columbia Law School.

It's nice to get a glimpse inside the inner workings of the Court.

Friday, October 11, 2013

The Old Debate Of Law Review Reform

This debate has been going on forever, and according to The National Law Journal, there is a new article that expounds on the various reasons that the current law review system needs to change. The article is “Do Law Reviews Need Reform: A Survey of Law Professors, Student Editors, Attorneys and Judges," in the latest edition of the Loyola Law Review, 59 Loy. L. Rev. 1 (2013).

"The eight authors queried 1,325 law professors, 338 student editors, 215 attorneys, and 156 judges about how they view the current system, the quality of law review articles, the way articles are selected, and how they would like the system reformed." 

The ideas for reform include:
  • Blind peer review
  • Shorter articles
  • More student training

"The law professors responded that law reviews frequently select articles based on the author’s credentials instead of the quality of the submitted article, and that law reviews don’t give adequate consideration to articles before making a decision on whether to accept them (in other words, the students don't always understand the law at the level the professors are writing). Law professors also were the most negative about the quality of editing that law review articles receive at the hands of students."

This is another law review reform article in a long list of many, and "[d]espite the intense debates about law reviews and the hundreds of articles that have been written about them, the vast majority of law reviews have not substantially changed since they were first created in the late nineteenth century."

The authors of the article hope to start another conversation about the need for reform. The good news is that some law reviews have started to heed these types of suggestions. I know that my school's law review is receiving much more substantial training in the editing process, and the editors ask professors to help select articles if they don't fully understand the content. Our law review has also started to favor shorter articles that are 20-30 pages in length. At least we are moving in the right direction. 

Thursday, October 10, 2013

The Florida Bar's New Social Media Rules

The ABA Journal recently reported on the Florida state bar’s new social media rules, enacted as part of new rules on lawyer advertising approved in May by the Florida Supreme Court.

"According to this summary, the guidelines require advertising lawyers to list their names and office addresses, bar misrepresentative testimonials and restrict the use of the words 'specialist' and 'expert,' as well as their variations."

"Many law firms consider the rules regarding Facebook, Twitter and LinkedIn to be the toughest in the country. Lawyers on Twitter are concerned about the need to state an office location on each tweet. Lawyers on LinkedIn are concerned about the need to ban third-party endorsements and to refrain from using the word 'expertise.' For lawyers on Facebook there is another potential problem—the need to refrain from posting inappropriate or unprofessional photos and videos."

Currently, the "bar is involved in two disciplinary probes regarding LinkedIn, but there are no probes of Twitter violations." As for Facebook, "[o]ne lawyer had pictures of his staff with skirts too short," and he kindly removed them when asked by the bar to do so.

These types of rules only seem to add more questions that answers. If a Florida lawyer tweets and then uses a tiny url to link to the office website, is that sufficient to meet the demands of the new requirement to list office addresses? If not, it would be nearly impossible to ever tweet anything because an office address would certainly take up most of the 140 character limit.

As for LinkedIn, a lot of endorsements and things are done by third parties. I suppose you do have some control over the final endorsements because you have to approve them, but it sets a tough standard to follow.

When it comes to Facebook photos depicting staff with skirts that are too short -- unless the bar starts requiring skirts knee length or longer, I'm not really sure how this is violating any rules. Talk about draconian.

It'll be interesting to see if other state bars follow suit.

Wednesday, October 9, 2013

The Importance Of Punctuation In Statutory Drafting - Case Turns On A Comma

The WSJ Law Blog reported on a recent case out of the 2nd Circuit that underscores the importance of punctuation in statutory drafting. And "Kenneth A. Adams, a contract drafting expert from Long Island, has written a must-read polemic about [this particular] comma."

The U.S. Second Circuit Court of Appeals opinion was authored by Judge Pierre Leval. "The question before the 2nd Circuit — whether federal courts had jurisdiction over a lawsuit involving an offshore banking transaction — hinged on the meaning of a comma found in an obscure 1933 statute that Congress attached to an international banking law known as the Edge Act. It was a comma sandwiched between a list (composed of a mix of nouns or phrases) and a modifier."

Accordingly, "[t]he plaintiffs and the defendants disagreed on what part of sentence was modified — the whole list or just the last bit before the comma. According to Judge Leval, this sort of comma is governed by a simple rule. 'When a comma is included, as in the Edge Act provision, the modifier is generally understood to apply to the entire series,' the judge wrote.

To demonstrate the rule, Judge Leval offered a contrasting example:

“This basketball team has a seven-foot center, a huge power forward, and two large guards, who do spectacular dunks,” differs from the statement, “This basketball team has a seven-foot center, a huge power forward, and two large guards who do spectacular dunks.” The first statement conveys that all four players do spectacular dunks. The latter statement conveys that only the guards do so.

Mr. Adams, however, offers his own examples to show how Judge Leval may have gotten it wrong:

[1] She was accompanied by a lawyer and the accountant who was advising her on her tax matters.

[2] She was accompanied by the lawyer and the accountant who were advising her on the revision of her will.

[3] She was accompanied by her father and her sister, who was now seven months pregnant.

[4] She was accompanied by her father and her sister, who were both giving her their full support.

"More specifically, note how in [2] the absence of a comma doesn’t preclude wide-scope modification, with the restrictive clause modifying more than the preceding noun. And note how in [3] the presence of a comma doesn’t preclude narrow-scope modification, with the nonrestrictive clause modifying just the preceding noun. Those results are inconsistent with the comma test under the rule of the last antecedent."

Adams went on to state that "[t]he case demonstrates that one cannot assume that judges are equipped to analyze ambiguity, any more than being a careful driver equips one to service a car engine."

It is a great example of how a case can turn on something as little as a comma.

Tuesday, October 8, 2013

Return On A College Education Investment

As the "[d]ebate over the return on investment of higher education has intensified as tuition has risen faster than family income, The Chronicle of Education reports on the recent Education Pays 2013: The Benefits of Higher Education for Individuals and Society report.

"The expansive triennial report examines the value of college in both financial and nonfinancial terms. The goal is to 'call attention to ways in which both individuals and society as a whole benefit from increased levels of education,' the authors write."

The report shows that "[t]he earnings gap between young college graduates and their peers with only high-school diplomas has narrowed slightly in recent years, but adults with bachelor's degrees still make significantly more over their careers. In 2008, males ages 25 to 34 with bachelor's degrees made 74 percent more in median earnings than did high-school graduates in the same age range; the figure was 79 percent for women. In 2011, however, the difference was only 69 percent for men and 70 percent for women, the report says. In 1991, male and female bachelor's-degree holders ages 25 to 34 made 56 percent more than their counterparts with only high-school diplomas."

Ages 25-34 is still considered early adulthood, and generally, a college graduate will be able to make the time and money for attending college back by age 36. "Using the median earnings of a high-school graduate for comparison, the student who enrolls in college at 18 and completes a bachelor's degree in four years can expect to make up for being out of the work force as an undergraduate and for borrowing the full average cost of tuition and fees by age 36. Using the lower average tuition and fees at public colleges, the break-even age drops to 33."

So it appears that not only do college graduates make more at the outset, they will have a complete return on investment by age 33 or 36. And this trend will continue for the rest of their careers.

"Beyond early adulthood, the report shows that, in most cases, it does pay to attend college. Over the course of a 40-year career of full-time work, the median earnings of those whose highest academic credential is a bachelor's degree are 65 percent higher than those of high-school graduates." Sixty-five percent is a large discrepancy and shows that it does still pay to attend college even as the cost of college continues to increase.

I'd love to see an updated study on law school return on investment....

Monday, October 7, 2013

SCOTUS's New Term Starts Today

The Supreme Court begins a new term today. As the NYTimes reports, "[t]he court has agreed to hear more than 50 cases so far on disputes both familiar and fresh: from affirmative action and freedom of speech, to campaign finance and the president’s power to make recess appointments."

AFFIRMATIVE ACTION A familiar issue, but this time the question is whether a state may amend its constitution to prohibit the consideration of race or sex in public university admissions decisions.

CAMPAIGN FINANCE In one of the most closely watched cases of the term, McCutcheon v. Federal Election Commission, the court will consider the constitutionality of overall limits on how much an individual donor may give directly to federal candidates, party committees and PACs in a two-year election cycle.

FREEDOM OF SPEECH AND RELIGION In McCullen v. Coakley, anti-abortion protesters are challenging a Massachusetts law that sets a 35-foot “buffer zone” around health care clinics where abortions are performed.

In Town of Greece v. Galloway, the court will decide whether the First Amendment permits a prayer before a town board meeting.

ABORTION Cline v. Oklahoma Coalition for Reproductive Justice deals with the constitutionality of an Oklahoma law that requires doctors to use abortion-inducing drugs precisely as the Food and Drug Administration approved them 13 years ago.

PRESIDENTIAL POWER National Labor Relations Board v. Noel Canning addresses issues as vast as the separation of powers and as small as the meaning of the word “the.” The case involves the president’s constitutional power to make appointments “during the recess of the Senate,” as President Obama arguably did in January 2012, when he appointed three members to the N.L.R.B. The board then ruled against a bottling company called Noel Canning in a labor dispute.

"Beyond these cases, the new term could hold other surprises. Several of last year’s biggest cases were not accepted by the court until after the term began. For instance, the justices have yet to decide whether to hear an appeal on the issue of the Affordable Care Act’s requirement that the health plans of private for-profit employers cover birth control." Here's to a new term!

Friday, October 4, 2013

10 Tips For Writing Scholarly Nonfiction

An article in The Chronicle of Higher Education proposed "10 tips on scholarly nonfiction writing that might help people write less badly."

1. Writing is an exercise. You get better and faster with practice.

2. Set goals based on output, not input. "I will work for three hours" is a delusion; "I will type three double-spaced pages" is a goal.

3. Find a voice; don't just "get published."

4. Give yourself time. Many smart people tell themselves pathetic lies like, "I do my best work at the last minute." Look: It's not true.

5. Everyone's unwritten work is brilliant. And the more unwritten it is, the more brilliant it is.

6. Pick a puzzle. Portray, or even conceive, of your work as an answer to a puzzle.

7. Write, then squeeze the other things in. Put your writing ahead of your other work.

8. Not all of your thoughts are profound.

9. Your most profound thoughts are often wrong.

10. Edit your work, over and over. Have other people look at it.

These are all sound principles of writing. I am constantly reminding students that they have to practice to be a good writer. It is like toning a muscle, and the more you do it, the better you become. I like the idea of setting goals on output (like writing a blog post each day). Although many academics must publish for tenure, getting published should not be the end goal. You should add to the discussion in a meaningful way (see number 6). For those procrastinators out there, number 4 is for you because you won't have time for number 10 if you rush. And number 10 adds a lot to a paper -- things like grammar, punctuation and even typography add to a finished work.

Thursday, October 3, 2013

THOMAS.gov Transitioning To Congress.gov For Legislative Information

It's difficult to write about government websites in the wake of the shutdown, but I was able to use a Google cache workaround to access the Library of Congress's website for information about the retirement of THOMAS.gov. As an FYI, if you Google a website and it is shutdown, instead of clicking on the link to the website, click on the down arrow next to the link and click on 'cache' to access most of the information.

"THOMAS was launched in January of 1995, at the inception of the 104th Congress. The leadership of the 104th Congress directed the Library of Congress to make federal legislative information freely available to the public. Since that time THOMAS has expanded the scope of its offerings to" include bills, resolutions, congressional record, committee information, and treaties, among other things.

THOMAS.gov will soon be retired and replaced by Congress.gov.

From the Library of Congress (who maintained THOMAS):
"We are hard at work preparing for the day that THOMAS will be retired and Congress.gov will be the system for everyone. We are really proud of Congress.gov.  So proud that starting in November, when someone types in the URL THOMAS.gov they will be redirected to Congress.gov.  THOMAS.gov will remain accessible from the Congress.gov homepage through late 2014."

"The beta version of Congress.gov contains legislation from the 103rd Congress (1993) to the present, member profiles from the 93rd Congress (1973) to the present, and some member profiles from the 80th through the 92nd Congresses (1947 to 1972). Congress.gov is in an initial beta phase with plans to transform the Library of Congress's existing congressional information system into a modern, durable and user-friendly resource. Eventually, it will incorporate all of the information available on THOMAS.gov. (For a comparison of the scopes of legislative information on THOMAS.gov versus that of the beta site, see Coverage Dates for Legislative Information.) Since its release in 1995, THOMAS.gov has undergone multiple updates. In its present form, the foundation of the system can no longer support the technological expectations of today's users. The goal of Congress.gov is to provide a user- friendly site with a strong technical infrastructure."

If you are unfamiliar with the new system or want to learn more, Congress.gov online trainings are available Oct. 17 and Nov. 14. There is a form to complete at the Library of Congress's website, but it is currently shutdown...

Wednesday, October 2, 2013

Library Resource Discoverability & A Pre- And Post - Internet Scholarship Age

An article on InsideHigherEd got me thinking about the complexity of library research and the reason that some scholarship remains unread and not cited -- it's just too hard to find.

The author did a hands-on exercise with students to get them familiar with the various resources in the library. "Groups of students had four citations: a mix of books, journal articles, essays in edited collections, and conference presentations."
  • Is it a book? Use the catalog, look for the location and call number, figure out what floor it’s on, and find it on the shelf. 
  • If a book is not in our catalog, use Worldcat to request it through interlibrary loan.
  • Is it an article? Type the name of the journal it was published in into our journal list, unless it’s an article in a book. The journal list will tell which volumes of that journal are in any of our databases or in print at our library. 
  • The surprise was the conference papers. Often, a citation to a paper means you’re out of luck unless you can get a copy from the author or find published proceedings somewhere in a library

By the end of the exercise, the author admitted that she was depressed "by all of the work and money put into systems that are supposed to help people find stuff but which, in spite of our best efforts, remain bizarrely complex."

As the author noted, "libraries are wasting too many resources trying to make library content discoverable. But that’s just part of the problem. It’s also exacerbated  by scholars and their peer evaluators who don’t care if scholarship finds readers or if readers find scholarship, who see it only as a thing scholars do. Once it’s on the CV, it's work is done."

We do need more open access ventures, and libraries should not feel the need to compete with Google (we simply cannot). I do not disagree that libraries are becoming increasingly complex, especially when compared to Google, but researchers and scholars, alike, need to see the value and have patience in the library research process. If our researchers and scholars continue to increasingly rely on the full-text, convenient content available directly from Google, we are sure to have a pre- and post- Internet, narrow scholarship age. 

Tuesday, October 1, 2013

For The Love Of Archives

On a night out last month, I was on my way to a R. Buckminster Fuller documentary at the Detroit Institute of Arts when my friend asked me, "why do we need libraries and librarians when everything is online?" I hardly had a moment to answer because the documentary was about to start, but I did rattle something off about the slow process of digitization and the need to organize the world's information.

Then something magical happened. During the beginning of the documentary, the narrator went into great detail about his visit to the Dymaxion Chronofile. "The Dymaxion Chronofile is Buckminster Fuller's attempt to document his life as completely as possible. He created a very large scrapbook in which he documented his life every 15 minutes from 1920 to 1983. The total collection is estimated to be 270 feet (80 m) worth of paper. This is said to be the most documented human life in history." And the very reason that we still have this wonderful piece of recorded human history is because of the Stanford University Libraries Archives.

Some of the material in the Dymaxion Chronofile has been digitized, but the vastness of this collection means that, in all likelihood, it may never all be digitized. It was an obvious answer (to me) about the continuing need for libraries and librarians in the digital age. If we do not preserve our historical materials, we may have a pre- and post-Internet research and scholarship age.

After the documentary and this interaction with my friend, I came across an article on InsideHigherEd about the joy of archival research. As one writer put it, "it is defined by rules, habits, worries (especially with fragile documents), and a kind of ambient awkwardness. The historian learns to frame questions that the archive knows how to answer – while remaining open to the secrets and surprises to be found in the boxes of paper that haven’t been delivered to her desk yet."

It sounds lovely. Now, what research question can I ask that the archives will answer? TBD.