Out of the Jungle

Public Law School in Massachusetts?

2009-11-21T15:48:00.006-05:00

Massachusetts is one of only six states without a public law school. I suspect it is a combination of the fact that there are so very many private law schools here, and that (at least some of them) have lobbied so assiduously against the idea every time the issue has come up. I work at one of the schools that certainly has lobbied against the idea. And I will try to present an even-handed report here despite that fact.

The Boston Globe just reported that a panel of the University of Massachusetts trustees approved the first step of a plan to acquire an unaccredited private law school, Southern New England School of Law, and recapitalize it as a public law school. This plan has been proposed several times over several years. Southern New England (SNESL)is not a bad law school, but it is seriously under-capitalized, and I think this is the most serious barrier to its being accredited by the American Bar Association. Despite huge efforts by various creative and innovative librarians, the library, as well as the rest of the school, requires a big infusion of cash to meet ABA standards, if what I hear is correct. According to the Globe article, the current plan promises that the new arrangement will not be a financial drain on the University of Massachusetts, or cost any taxpayer money. The graduates of SNESL had the second-lowest graduation rate for first time takers on the last Massachusetts bar exam. This is actually not a terrible indictment because, as a law school not accredited by the A.B.A., they are not usually getting the best students -- the best law students are tending to choose the accredited law schools first. So, take that figure with a grain of salt.

Southern New England, a 235-student school that lacks national accreditation, is donating its campus and assets to the state, and its officials hope UMass will be able to take the school to a higher level of achievement.

With UMass backing, the law school would accept students starting in fall 2010. It would be able to increase its enrollment to 559 by 2017; generate more revenue to invest in its students, faculty, and library; and raise graduates’ low passing rates on the state bar exam - issues it needs to address to receive American Bar Association accreditation, UMass-Dartmouth’s chancellor, Jean MacCormack, said.

MacCormack told the board the acquisition would not cost taxpayers any money, a concern raised by opponents. Investments made in the school would come from tuition and fees, she said. According to financial projections, UMass-Dartmouth would also remit $1.3 million in tuition to the state by 2017 and build a $10.2 million cash reserve for the campus by then.

“Here’s an institution that for argument’s sake doesn’t meet all of the standards of our university,’’ trustee Victor Woolridge said. “This is an opportunity. You buy low and grow.’’

A similar plan was shot down four years ago by the Massachusetts Board of Higher Education after UMass trustees approved it. One difference in the current effort is that the public law school would return a portion of tuition revenue to the state. (snip)

The UMass board’s committee on administration and finance will take up the issue Dec. 2. The entire board will vote Dec. 10, before the issue goes to the Board of Higher Education.

The most recent proposal looked as though it was going to sink again. A completely disinterested blogger at AbovetheLaw wrote that he opposed the idea of a public law school in Massachusetts, not for any of the reasons raised in the 2004 debates, but because the employment market for lawyers was already super-saturated in the state, and what the hell were we thinking about, starting up a new law school, anyway? This seemed to be a pretty strong argument, and was carrying the day for a while. But then, the Chronicle of Higher Education came out with its annual report on the compensation of university presidents. As last year, the president of Suffolk University, David Sargent, shows up with the highest compensation in Boston, (this year, he dropped to the second highest in the country). But even better, the university trustees voted to extend the 78-year-old president's contract for another five years. The story ran as a local story, in the B section, and was commented on. But the Globe ran it a second time, two weeks later on its front page, with a beautiful photograph from inside the fifth floor of my library (how did they get it?!)(and doubly interesting, the online link only shows the headline and graphics that went with the story, not the story itself or the photograph or the comments). That was the only beautiful thing about the article. The rest was a detailed, outwardly even-handed coverage that went on for 3 pages about Sargent's pay and new contract, looking at the history, the explanations offered by the Trustees, and tearing those apart. They also interviewed disaffected alumni. I happen to know that they interviewed happy alumni as well, but did not include those quotations in the article. The article ran both in print and online. The online version of course, makes it easy to add comments and BOY! did they get comments. Many of the comments were from more disaffected alumni. I cannot help but think that the timing and prominent placement the second article had a profound effect on the vote. But perhaps I am displaying wishful thinking. Maybe the deciding factor is the promise that the new public law school won't cost either the University of Massachusetts or taxpayers anything.

I have to say I do have mixed feelings... The Globe article linked above promises a basic tuition of $23,500, which would be cut in half for students who would commit to public service jobs for four years post-graduation. That would be a wonderful boon to law students who now stagger under huge debt loads. It would allow people to pursue public service jobs in a way they really struggle with now. Even with the new student loan provisions with caps on repayments based on income and ending repayment after so many years, with shorter time spans for public servants and a lower percent of income as well, it can be a huge struggle to take those public service jobs. And I'm enormously frustrated with the trustees and the president at my university who seem to have the public relations sensitivity of oatmeal.

But I certainly do not believe that upgrading Southern New England School of Law is going to be no cost to either U. Mass or to the taxpayers of Massachusetts.

Google enters the legal search engine fray

2009-11-19T11:49:00.003-05:00

See here to see a fascinating post on the Google Blog. The Google engineers are pioneering a new radio button on Google Scholar that allows the user to search by legal topics or by case names. They include a rather graceful statement about "standing on the shoulder of giants:"

We would like to take this opportunity to acknowledge the work of several pioneers, who have worked on making it possible for an average citizen to educate herself about the laws of the land: Tom Bruce (Cornell LII), Jerry Dupont (LLMC), Graham Greenleaf and Andrew Mowbray (AustLII), Carl Malamud (Public.Resource.Org), Daniel Poulin (LexUM), Tim Stanley (Justia), Joe Ury (BAILII), Tim Wu (AltLaw) and many others. It is an honor to follow in their footsteps. We would also like to acknowledge the judges who have built this cathedral of justice brick by brick and have tried to make it accessible to the rest of us. We hope Google Scholar will help all of us stand on the shoulders of these giants.

Tip of the OOTJ hat to my wonderful colleague, Suffolk Professor Marie Ashe, who e-mailed this link to me!

Modified GoogleBooks Settlement Offered - Justice Department Considering

2009-11-16T14:23:00.002-05:00

The Wall Street Journal reports that the Authors Guild, the Association of American Publishers and Google have re-submitted their revised Settlement Agreement for Google Books to U.S. District Judge Denny Chin in New York. The Department of Justice, which had responded to the original Settlement with a list of concerns in a Statement of Interest, is reviewing the new revision.

The revised pact submitted late Friday would allow Google to distribute millions of digital books online, but would cut the number of works covered by the settlement by at least half by removing millions of foreign works.

Yet the issue of whether it is fair for the settlement to let Google distribute books whose legal rights owners haven't been identified—known as orphan works—is still drawing criticism.

People familiar with the matter say the Justice Department remains concerned that the fact the settlement gives Google immunity from lawsuits related to orphan works may be anticompetitive. The department is expected to file its reaction to the modified agreement by early next year.

A spokeswoman for the Justice Department said the department is reviewing the revised agreement and its investigation into the settlement is "ongoing."

Google, the Authors Guild and the Association of American Publishers designed the revised settlement to mollify the Justice Department and other critics who blasted the original settlement as overly broad and anticompetitive. Under that settlement, announced in Oct. 2008, Google would gain permission to distribute and sell millions of digital books online in exchange for sharing revenue with rights holders.

The new settlement keeps the same structure, but makes a number of changes, including adding more pricing options to address concerns about potential price-fixing and clarifying what sort of services Google can offer related to digital books.

It also aims to address some of the concerns about orphan works by establishing an independent fiduciary to look out for the interests of those rights holders and specifying that revenue collected from those works won't flow back to other rights holders—a move aimed at addressing criticism from the Justice Department.

The modifications were defended by Richard Sarnoff, co-chairman of Bertelsmann Inc., a holding company of publisher Bertelsmann AG, who negotiated the settlement. He said the parties addressed the competitive concerns around orphans by writing into the settlement that Google must act as a reseller of those works to any third party. Google had previously announced its intention to do so.

"This settlement won't determine the digital future of publishing," Mr. Sarnoff said. "It's about reclaiming publishing's past in a way that would be impossible to do in the U.S. in any other manner. And it will benefit scholars, readers, and the rights holders of these books."

But critics say the move doesn't resolve one of their main concerns: that the agreement gives Google exclusive immunity from lawsuits from unknown rights holders.

The notion that the company could distribute those works without the threat of getting sued by rights holders has drawn heat from a broad group of critics, including Google competitors such as Amazon.com Inc., which argue it would be risky to invest in scanning books without a promise of similar immunity.

"I don't see how this fixes anything about orphans," said Gary Reback, an antitrust lawyer who co-founded a group of companies and organizations including Amazon and Microsoft Corp. that is fighting the settlement, in an interview Sunday.

the article, by Jessica E. Vascellar and Jeffrey A. Trachtenberg, notes that the parties hope to set a hearing on the settlement sometime in February, now. The tone taken in the WSJ article actually seems much harsher on the Settlement than the Justice comments warranted. The original tone of the Justice comments were actually very supportive of the GoogleBooks Project, and simply raised issues with the Settlement. The Electronic Frontier Foundation (EFF) offers a very nice Readers Guide to the Google Book Settlement, currently dated October 31, 2009, with legal analysis by their senior staff attorney, Fred Von Lohmann. But, to their credit, they also include a link to New York Law School's Prof. James Grimmelmann's analysis of the Settlement. They also include varying opinions and commentary from librarians Paul Courant at the Univerisity of Michigan, who basically supports the Project and Prof. Siva Vaidhyanathan, who opposes it. We can hope that the nice folks at EFF links will update their commentary, but you can certainly link to the original materials, which show you the changes in color.

Educational Entrepreneurship

2009-11-16T14:11:00.007-05:00

My husband pointed out this article in yesterday's New York Times. There are many teachers in his family, and he thought it was interesting to learn that

[T]thousands of teachers are cashing in on a commodity they used to give away, selling lesson plans online for exercises ... While some of this extra money is going to buy books and classroom supplies in a time of tight budgets, the new teacher-entrepreneurs are also spending it on dinners, mortgage payments, credit card bills, vacation travel and even home renovation, leading some school officials to raise questions over who owns material developed for public school classrooms.

There are philosophical issues as well as ownership issues. One professor of education quoted in the article feels that "online selling cheapens what teachers do and undermines efforts to build sites where educators freely exchange ideas and lesson plans."

The article doesn't explicitly raise the issue of work for hire, but I think it should have been mentioned. Teachers are employees, and one could argue that the work they do in the course of their employment belongs to their employers. The Copyright Office has a useful circular on work for hire, but it doesn't mention teachers, and one can also refer to section 101 of the Copyright Act for a definition of work for hire. It's a slippery concept, however, and the law is by no means settled. I have always believed that I hold the copyright in the original materials I have created for my Advanced Legal Research course (topic outlines, exercises, etc.). I am happy to share my materials with others, but I like to be credited. Does my university believe that it holds the copyright to my course materials? I don't know, because the question has never come up. When I started teaching, I solicited syllabi from other legal research instructors and built upon them. Would I have paid for them? I'm not sure, but it wasn't an option in those days. One of my colleagues suggested that she could envision a situation where one had to subscribe to get updated course materials, but where older materials were available for free.

Verbatim Transcript?

2009-11-16T13:36:00.006-05:00

During my Advanced Legal Research class this morning, we were talking about the Congressional Record and the fact that members of Congress are allowed to edit and add to their remarks before they are published. One of the students mentioned that she had read a story in the New York Times over the weekend which described lobbyists for Genentech who managed to get statements they had written "printed in the Congressional Record under the names of different members of Congress. ... Genentech ... estimates that 42 House members picked up some of its talking points--22 Republicans and 20 Democrats ..." This is why, "[i]n the official record of the historic House debate on overhauling health care, the speeches of many lawmakers echo with similarities." According to the Times,

Members of Congress submit statements for publication in the Congressional Record all the time, often with a decorous request to 'revise and extend my remarks.' It is unusual for so many revisions and extensions to match up word for word. It is even more unusual to find clear evidence that the statements originated with lobbyists.

... The statements were not intended to change the bill, which was not open for much amendment during the debate. They were meant to show bipartisan support for certain provisions, even though the vote on passage generally followed party lines.

Some members of Congress used the language provided by the lobbyists verbatim, while others "tweaked" the language to fit their personal style. It is interesting to note that some of these Representatives had received campaign contributions from Genentech, which also had hosted fundraisers for them.

This seems like a particularly egregious example of the influence that lobbyists have in the legislative process. I'm happy to report that my students found the story somewhat shocking, coming as it did so recently after we'd discussed the legislative process. The story underscored why it is so difficult to make any meaningful institutional change in this country.

Second Life Advisors at Penn State

2009-11-13T14:23:00.004-05:00

The Wired Campus feature of the Chronicle of Higher Education dated November 9, 2009 carries a story about Penn State requiring faculty advisors to appear in Second Life to advise students. Penn State has had a campus presence in the virtual world of Second Life for some time, and decided to offer advising there, in addition (according to a comment at the online article) to office hours, e-mail, phone and Skype. Faculty advisors are required to offer a minimum of two hours a week in Second Life and are given training in the online game. They are allowed to choose their own avatar names. It was not clear from the article how fanciful the avatar faculty may be. Second Life avatars do not, of course, have to reflect the gender, height, weight or ethnicity of the person behind the electronic face. But they may also appear as giant rabbits, may sport wings, or become more exotic still. Clothing, of course, can also be negotiable, but one supposes that is still somewhat bound by standards of propriety for advisors during office hours. Many law librarians are Second Lifers. It's a fun way to interact. The Chronicle article reports that faculty members do enjoy their time once they get used to Second Life.

The picture is my own avatar from Second Life, Boptunia Woodget. I am not spending much time there these days, but she is still there, in suspended animation.

Kindle's Read-aloud Function Not Accessible for Blind Users : Maybe Kindle Is Not the Answer!

2009-11-12T14:22:00.005-05:00

The Boston Globe included a story yesterday about the University of Wisconsin-Madison and Syracuse University in New York stating that they would not consider roll-outs of Kindle e-readers until Amazon addresses problems with accessibility for blind users. Both schools bought some Kindles this fall on trial, but were appalled to discover that the Kindle's read-aloud feature would almost certainly require assistance from a sighted companion. The National Federation of the Blind released a statement about the two universities' decisions, based on their nondiscrimination policies. The most disappointing aspect is that:

Amazon spokesman Drew Herdener said many visually impaired customers have asked Amazon to make the Kindle easier to navigate. The company is working on it, he said.

According to the National Federation of the Blind, there are about 1.3 million legally blind people in the U.S. Many more people have other disabilities such as dyslexia that make it difficult to read.

The Kindle could be promising for the visually impaired because of its read-aloud feature, which utters text in a robotic-sounding voice. For blind students in particular, the Kindle could be an improvement over existing studying techniques -- such as using audio books or scanning books page by page into a computer so character-recognition software can translate it for a text-to-speech program.

But activating the Kindle's audio feature probably requires a sighted helper, because the step involves manipulating buttons and navigating choices in menus that appear on the Kindle's screen.

The federation says the device should be able to speak the menu choices as well.

(from the Globe article) This statement from Amazon does not seem to have any urgency about it. If you go to the National Federation of the Blind website above, you may note that they do have a handheld Kurzweil reader for print material, which is interesting and must be very helpful. It seems to be in test mode, still, but the website says it will cost about the same as many flat screen televisions. It will be able:

• The Reader reads most printed documents, address labels, package information, and instructions with ease. It offers readers a choice of hearing a full page, or just a few lines for identification purposes.

• The Reader can store thousands of printed pages with easily obtainable extra memory and users can transfer files to their desktops and laptop computers or Braille notetakers.

• The Reader reads documents from computers or other devices.

• The Reader has a headphone jack so users don't have to disturb others in close proximity.

• The Reader costs about the same as many flat screen televisions today, yet has the power to revolutionize a person's life.

• Sales will be handled by K-NFB Reading Technology, Inc., and its dealer network. To locate your local dealer, call (877) 547-1500 or visit http://www.knfbreader.com/.

The read-aloud feature of the Kindle was initially disabled at the insistence of the Author's Guild which saw it as potentially eating into their profitable second-market for audio books. But the robotic voice which reads for Kindle is no challenge for the professional actors who usually read the audio books, and the Author's Guild eventually caved under intense public pressure.

Librarians and activists for the visually impaired, were very disappointed, though to discover that such users would have great difficulty in managing a Kindle reader alone. I have to say that libraries and educational organizations that want to supply some kind of reader for blind and vision-impaired students or other users, might really do better to consider supplying or subsidizing the new Kurzweil hand held reader instead!

One thing that folks who have not dealt with blind "readers" who listen to books may not realize is that these folks "speed listen." Just as an experienced visual reader reads much faster than a new reader, people who listen to their reading material get so they can speed listen. My mother did recording of textbooks on request for the University of Kentucky visually impaired students for a number of years. And this is one of the things that she learned about the ways her tapes were used. Imagine if you had to listen to an entire casebook read aloud at the usual speed -- it would take FOREVER! So of course, the student learns to speed listen. I don't know if the Kindle has a function for speed listening. I suspect that the Kurzweil reader DOES, because that is the population it deals with. Just one more tiny detail that a visually impaired "reader" would care passionately about in the "reader" they would choose. Besides, who would choose a robotic voice if they didn't have to?

Book Thieves, Rare Books, the Desire of the Book

2009-11-08T17:18:00.004-05:00

The Boston Globe Idea section today has an interview with author Allison Hoover Bartlett about her recent book, The Man Who Loved Books Too Much: The True Story of a Thief, a Detective, and a World of Literary Obsession (Riverhead), about John Charles Gilkey. Gilkey stole rare books from dealers and bookstores around the country. While serving several prison terms, he took classes to improve his understanding of literature and help him recognize rare books and manuscripts.

He might never have been caught but for the diligence of Ken Sanders. A ponytailed Utah bookseller whose shop was a countercultural hangout, Sanders found a new calling as an amateur detective when he volunteered to serve as security chair for the Antiquarian Booksellers Association of America. As Sanders uncovered the patterns of thievery that eventually led him to Gilkey, he became as absorbed in the the hunt for his nemesis as he would have been in pursuit of a rare 17th century withcraft tome, or a signed copy of “Finnegan’s Wake.” (snip)

Bartlett will appear in Boston at the Antiquarian Book Fair at Hynes Convention Center on Nov. 15. She spoke with us by phone from her home in San Francisco.

IDEAS: You’ve said you love reading but don’t share the collecting impulse yourself. Why do people dedicate their lives to hunting down rare books?

BARTLETT: The collector has this very deep appreciation for the book as a physical object that’s mixed with that other love that the rest of us have. And it seems to be almost something you’re born with. With lots of the collectors I met, it seemed like it’s an unidentified genetic trait. Because a lot of them grew up around collectors, their parents were collectors or their uncle was, and it just seems to be almost innate, like a musical ear.

IDEAS: For many collectors, you write, the goal is “to stumble upon a book whose scarcity or beauty or history or provenance is even more seductive than the story printed between its covers.” (snip)

IDEAS: Like legitimate collectors, Gilkey’s motivated by a passion for books. What drove him to steal?

BARTLETT: I think that in many ways Gilkey is a loner, an outsider... He wanted the world to see him as a cultured erudite gentleman who revered literature. But there’s a lot of anger alongside that also; I think he’s frustrated that he’s not yet seen that way. And he has gone to prison repeatedly, I think five or six times at least for this. And what happens when he gets caught and goes to prison is, he wants revenge…. like OK, now I’m getting even, now I’m getting the book collection I deserve.

IDEAS: You write that “for Gilkey . . . having not paid for books... adds even more to their allure.”

That little, telling piece out of the larger interview really grabbed my attention. The combination of the passion for collection, the passion for rare books, manuscripts, incunabulae, etc, and the self-justification that leads to theft.... Oh, my! And there are more people out there like this than I had guessed. Ken Sanders has nabbed more people than just Gilkey. If you travel to the International League of Antiquarian Booksellers' news site here, you find a rather long and unwieldy page. But if you use control F, and search for "Ken Sanders," you will find a number of fascinating investigations he has carried out. I believe the "news," is fairly current -- September - October, 2009, as far as I can tell. The links out from the story about Sanders, though, are broken, sadly. However, Sanders is a fascinating character, not only a rare books dealer, but a rare books detective. Law enforcement agencies rarely are able to spend much time or manpower on rare book thefts, however valuable. And someone who recognizes the item and understands the world is a uniquely valuable investigator. Somebody who pursues the investigation with bulldog tenacity is even more valuable!

The rare book world, after all, is where Sanders has spent his life since he began collecting as a teenager.

There is another world, too, in which Sanders has grown adept at manoeuvring, a world filled with shadowy figures and deceit. In this world, Sanders is not merely a rare books dealer, but a rare books detective. As chair of the security committee for the Antiquarian Booksellers' Association of America (ABAA), Sanders spends between ten and fifteen hours a week poring over reports of theft and fraud, sending alerts to ABAA members and, as the situation warrants, conducting his own investigations. His tenure as security chair for the ABAA-a volunteer position-began in 1999 and has coincided with the rapid growth of Internet commerce and of its spawn, electronic fraud, to which the bookselling community has been especially susceptible.

Book dealers who have been defrauded know to turn to Sanders, as law enforcement agencies like the FBI and Interpol almost never take an interest in the jurisdictional complexity of tracking down rare-book thieves. Using a stolen credit card number and just enough literary knowledge, a typical thief can convince an unsuspecting dealer to ship a valuable first edition across several time zones. Rare books are small, easily portable, not overtly suspicious and, thanks to Internet auction sites like eBay, easily converted into cash. No one keeps track of total losses, but the most notorious thieves working the trade have made off with as much as $100,000 US each in books-taking care never to "spend" more than about $5,000 at a time so as to avoid rousing suspicion.

Reports of theft and fraud have shaken up the rare book trade, to the chagrin of many. "It's been a trusting, gentle business for most of its existence," says Sanders, "a handshake kind of business." Rooted deep within the culture of bookselling is a certain reticence, an essential genteelness that Sanders, with his hard-charging efforts, seems to have endangered. Booksellers seem dismissive of any talk about theft and scams and consider it a serious impediment to business. Steven Temple, security chair for the International League of Antiquarian Booksellers, doesn't think that theft is necessarily increasing at all, only that it is now more commonly reported.

Sanders' investigations, however, have undeniably led to results. He has shut down gangs in Belgrade operating with stolen credit card numbers and eBay accounts-though not before they managed to scam dealers of about $40,000 in rare books. Sanders has also disrupted gangs of credit-card fraudsters based in Nigeria and Ghana, baiting them by accepting orders and then shutting down their stolen card numbers. Sanders takes pleasure in asking for another card, and then another, until the fraudsters realize he's on to their schemes.

Last year Sanders helped nab book thief John Charles Gilkey, who may have stolen as much as $100,000 in books. For months Gilkey-who was "brazen as hell," says Sanders-placed orders with booksellers over the phone, often chatting up dealers before using a stolen credit card to make the purchase. Before the charge could be disputed, Gilkey would call back to mention that a cousin or nephew was conveniently in town and able to drop by the bookshop. Then he or his accomplice-identified afterwards as his father-would leave with the book in hand. Gilkey later switched methods and asked booksellers to send books by overnight mail to hotels, where he had reserved a room with a different stolen credit card.

When Gilkey attempted to scam Ken Lopez, president of the ABAA, Lopez and Sanders worked with police in San Jose to set up a sting. Lopez, a Massachusetts-based dealer, let Gilkey go through with an order for a first edition of John Steinbeck's The Grapes of Wrath. Though the asking price was $6,500, Gilkey actually talked Lopez down to a price of $5,850. He also asked Lopez to send the book overnight to the upscale Westin Hotel in Palo Alto. When Gilkey, dressed in rumpled slacks and a baseball cap, arrived to pick up the package, police were on the scene to apprehend him. After posting a $15,000 bail, Gilkey disappeared, eluding authorities for weeks until he was eventually caught in another sting. He is now serving a three-year sentence in California.

Why does Sanders pursue these white-collar criminals so relentlessly? "I have an innate sense of fairness," he says. His daughter Melissa agrees: "He takes [theft] so personally, not only when it happens to our store, but to our colleagues."

(from the International League of Antiquarian Booksellers' news website). There is a lot more there, including information on a far more dangerous-sounding thief, "...David George Holt, aka Frederik Buwe, aka Professor Karl Fisher. Holt, a sixty-two-year-old Illinois native turned globetrotter, actually has many more aliases, all allegedly used in email and Internet scams that have plagued book dealers since the mid-1990s." Holt has apparently threatened Sanders, leaving messages on the voice mail. He is a strong suspect in the murder of New York bookseller Svetlana Aronov. Holt certainly stole about $100,000 in U.S. Savings bonds from his grandmother, and abandoned his wife and five children in the suburbs of Milwaukee to flee to New Zealand in 1991. He has stolen thousands of dollars worth of rare books, apparently from booksellers, rather than libraries. He is wanted on charges of securities fraud as well. The nastiness of this particular book thief is rather out of the ordinary. Most book thieves tend to be more like the book collectors they prey upon; scholarly, bookish, literate, though, on both the cases of Holt and of Gilkey, they certainly have a streak of sociopathic egotism that makes it seem just fine to them to crush others under foot as long as they get their way. I enjoyed the survey review written by Julia Keller of the Chicago Tribune, partly because it recalled past books about the mania of book collecting (Nicholas A. Basbanes' A Gentle Madness: Bibliophiles, Bibliomanes, and the Eternal Passion for Books (1995), which also includes the story of Stephen Blumberg
, a truly large scale book thief. Blumberg, unlike the thieves mentioned earlier, preyed largely on university libraries and museums. The report I read totaled the final count at "-more than 20,000 rare books and 10,000 manuscripts from 140 or more universities in 45 states and Canada. (One report said they were taken from 327 libraries and museums." (Conservation Online's Abbey Newsletter, vol. 15, no. 7, Nov., 1991, quoting the OCLC Newsletter, July/Aug. 199 1, p. 10).

And here is the Desire of the Book part... What draws these thieves, or for that matter, the rare book collectors, sellers, and curators? What is it that makes these thieves decide to steal a book, when books cannot be fenced, as Julia Keller, the Chicago Trib reviewer so succinctly puts it? This is not a matter of making money, merely. The author of the Man Who Loved Books Too Much...

Bartlett spends a great deal of time interviewing Gilkey, both in and out of prison, recording his equivocation and his loneliness and his pathetic self-denial. "The Man Who Loved Books Too Much" ends up underlining an important sociological truth: For all of our excitement about new media and innovative forms of storytelling, when it comes to signifying high culture, books still rule. Books are symbols of erudition and sophistication. If you want people to think you're intelligent, you install bookshelves in your home and you fill them up. Gilkey, Bartlett notes, was obsessed with "the image of an English gentleman with a grand library." He wants books because, he tells her, " 'There's that sense of admiration you're gonna get from other people.' "

This, I guess, is why you still see all the photographs of law professors and lawyers taken in front of shelves of law books. They may not use the sets of reporters any more. They may not even own the set at the firm... but they want the photo taken in front of the National Reporter set, because of what it signifies: scholarliness, wisdom, lawyerliness.

The image is courtesy of the City College of San Francisco English Major website at http://fog.ccsf.cc.ca.us/~cgreger/Images/Scribe.jpg

"Google Mistrial"

2009-11-06T10:53:00.004-05:00

This editorial, published in today's Boston Globe, caught my eye because my husband is currently serving on a federal grand juror here in New York, where cell phones and other electronic devices are banned from the courthouse. The editorial discusses the growing phenomenon of "tweeting, texting, and obsessive e-mail checking" which now threatens the jury system. "Increasingly, courts have had to warn jurors that blogging or searching the Web during trial jeopardizes the very foundations of the judicial system." The author, Renee Loth, cites examples from trials in Florida, Arkansas, and Massachusetts that were compromised by jurors Googling the defendant, checking definitions of legal terms, "unearthing evidence that had been explicitly excluded," and sending Twitter messages from the courtroom. Loth says that the "problem is widespread enough that legal experts have coined the term 'Google mistrials.' No verdict has yet been overturned for texting-while-deliberating, but the retrials themselves are costly and gum up the wheels of justice." Loth points out that the Internet has made everyone an expert (think about the proliferation of medical information that has changed the relationship between doctor and patient), and people are used to seeking out information on their own. However, there is a downside to seeking out information on our own. "'The rise of digital technology has devalued expertise across the board,' observed journalist Mat[t] Bai ... Such a cultural shift has dire implications for a trial system that relies on testimony from expert witnesses" and on jurors who are expected to weigh only the evidence that is presented to them in court. Of course, nothing but her conscience prevents a juror from going home at night and researching the defendant's prior criminal history or even reading in the newspaper or online about the very case she is trying.

Maine's Gay Marriage Repealed in Voter Referendum

2009-11-04T11:36:00.002-05:00

Time online reports on Maine's voters repealing gay marriage in that state. GLAD.org, the organization that has engineered most of the gay marriage legal and political efforts across New England and beyond has more information at their website.

I consider gay marriage to be a civil right issue. Consider for a moment what would have happened in 1964 if the deep south had been allowed to have voter referendums on whether they would support the Voting Rights and, and other civil rights legislation, including perhaps, the 14th Amendment.... Alabama, Mississippi, Georgia, Florida, Texas, Arkansas, Louisiana, North and South Carolina, ... all the states of the old Confederacy -- AT LEAST, would have repealed those pieces of legislation and the Constitution. Possibly, many states in the North, as well, would have repealed some pieces of civil rights laws.

Would we have mixed marriage? Would we have integrated schools or even buses where people of color may ride in the front of the bus? Would black people be welcome in restaurants or be able to drink from water fountains where whites drink, even now? Would the Reverend Martin Luther King even have found a toe hold for any of his work in that world? I do not think so!

If you allow the majority to rule in the matter of civil rights, the minority will NEVER be granted their rights.

And that is why you DO NOT have voter referendums on civil rights matters.

And that is why we SHOULD NOT have voter referendums on the matter of gay marriage.

It is a matter of civil rights.

Extraordinary Rendition Decision Places Executive Branch Above the Law

2009-11-03T17:49:00.002-05:00

The New York Law Journal, in an excellent (and free!) article discusses an en banc decision by the Second Circuit Court of Appeals about the extraordinary rendition of a Canadian citizen in 2002. Mark Fass writes

The 7-4 majority held that the Canadian, Maher Arar, failed to state a claim under the Torture Victim Protection Act and that his remaining claims did not satisfy the test for "implied" constitutional causes of action under the 1971 U.S. Supreme Court decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388.

"Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government," Chief Judge Dennis G. Jacobs wrote in his 59-page majority opinion.

"Rather, we conclude that, when a case presents the intractable 'special factors' apparent here. . . it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress—and not for us as judges—to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation."

In a statement yesterday, David Cole, the Georgetown University Law Center professor who argued Mr. Arar's appeal in cooperation with the Center for Constitutional Rights, said the ruling "effectively places executive officials above the law."

"This decision says that U.S. officials can intentionally send a man to be tortured abroad, bar him from any access to the courts while doing so, and then avoid any legal accountability thereafter," he said. "It effectively places executive officials above the law, even when accused of a conscious conspiracy to torture."

The facts of the case were laid out in great detail in the New Yorker story in February 14, 2005, 'Outsourcing Torture, the secret history of America's "extraordinary rendition" program,' by Jane Mayer. The case is officially styled Arar v. Ashcroft, and the documents are posted at Center for Constitutional Rights here, along with a description of the case and links to videos from CNN, CSpan, YouTube, audio from NPR and links to articles from the New York Times. There is also a nice timeline which simplifies the story, which can be confusing in the more emotionally fraught full stories.

The decision from the Court of Appeals is posted here as a single PDF document, but there is a majority opinion, and then a series of separate opinions and dissents totally 124 pages, according to the New York Law Journal. Be sure to watch for Guido Calabresi's dissent:

"In its utter subservience to the executive branch, its distortion of Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the [Torture Victim Protection Act] and of §1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray," Judge Calabresi wrote. "It does so, moreover, with the result that a person—whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law—is effectively left without a U.S. remedy." (snip)

"[B]ecause I believe that when the history of this distinguished court is written, today's majority decision will be viewed with dismay, I add a few words of my own, 'more in sorrow than in anger,'" he wrote, quoting Act I, Scene 2, of "Hamlet."

"[The majority] has engaged in what properly can be described as extraordinary judicial activism. It has violated long-standing canons of restraint that properly must guide courts when they face complex and searing questions that involve potentially fundamental constitutional rights. It has reached out to decide an issue that should not have been resolved at this stage of Arar's case."

Mr. Arar released a statement through the Center for Constitutional Rights.

"After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch," Mr. Arar said. "Unfortunately, this recent decision and decisions taken on other similar cases, prove that the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law."

(quote from the New York Law Journal article). Check here for the press release from the Center for Constitutional Rights, which is representing Mr. Arar.

Image of Mr. Arar is from the BBC News website reporting here on the U.S. court rejecting Mr. Arar's claim.

Professor Warren Takes on the Credit Industry

2009-11-03T15:25:00.007-05:00

I had the pleasure of serving as the library liaison to Professor Elizabeth Warren when I worked at the University of Pennsylvania Law School. She has since moved on to Harvard Law School, where she specializes in commercial law and bankruptcy law. Her treatises on bankruptcy have been very influential, drawing as they do on empirical methods to paint vivid portraits of real people caught in the web of debt. Threee of the best known are As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America, The Fragile Middle Class: Americans in Debt, and The Two-Income Trap: Why Middle-Class Mothers and Fathers Are Going Broke. Through her scholarship, she has helped to change the image of debtors, sometimes characterized as wastrels and spendthrifts, to that of victims of predatory lending practices. During the current debate over health care reform, one of the themes has been the number of people who have declared bankruptcy because of medical debt caused by lack of health insurance. Professor Warren has been instrumental in bringing this issue to the forefront of the debate.

She is the subject of an entertaining article in today's Boston Globe. Professor Warren came from a family that struggled after a series of financial reversals. Both of her parents worked, but things were always difficult for them. This experience helps her to empathize with other families that are struggling despite hard work. She has proposed a new federal agency, the Consumer Financial Protection Agency, which is the subject of a bill, H.R. 3126, that was introduced on July 8 by Representative Barney Frank. It passed the House Financial Services Committee on October 29, but faces opposition in the full House and Senate. If approved, the new agency would regulate consumer financial products, and is vehemently opposed by business groups. Some in the business community accuse Professor Warren of positioning herself to be the director of the agency if it comes into being, but she feels any such discussion is "premature." In the meantime, she continues to teach and to serve as TARP overseer.

Kindle Review

2009-11-03T13:16:00.004-05:00

A cogent review of the Kindle reader was published in today's Inside Higher Education. Written by Alex Golub, who teaches at the University of Hawaii at Manoa, the review discusses whether Kindle is appropriate for use by academics. He concludes that Kindle's current design is best suited to pleasure reading and not to reading of academic texts--"the Kindle makes moving back and forth between endnotes, body text, and bibliographic material a tremendous pain--a key concern for scholars who read by moving through the main text of a book and its scholarly apparatus simultaneously." It is also difficult, if not impossible, to mark up the text on the Kindle, something that many academics do while reading print texts. Golub concludes that Kindle and its competitors "are not ready for prime time yet, [but] they are stil great places to outsource our pleasure reading and reference libraries. And soon they might be good for even more." I like the tone of this review--it is evenhanded and balanced.

Helping Our Students Bridge the Gap: Expert Legal Researchers

2009-11-02T15:44:00.006-05:00

I have spent a couple decades by now teaching legal research. I started with the optimistic idea that I could just pour the information into students' heads. Well, not quite that naive, but nearly. Early on, we lectured, and then gave our students worksheets, and reading assignments to introduce them to the various research tools. But over the years, I began to feel that the lecture was really not doing much, and the worksheets were where the learning (if any) was happening. I thought back to my own days as a library school student. The bibliography classes were hugely time- consuming, but we really learned how to understand all those different tools, how to teach ourselves new resources in the future, and how to evaluate and choose them, too. I thought, that is what I think the law students really need. Nearly anything I teach them NOW will be different by the time they graduate. So, I went to work on creating a bunch of worksheets that showed the law students how to look under the hood at various types of legal research tools.

Then, I spent the next decade or so scaling them back... Ahem. Those bibliography classes WERE very time-consuming after all. I do read all the comments on my student evaluations, and take them very seriously. I was practically killing my students. So, after continual tinkering, I have seriously stream-lined the worksheets, but the core of the class is basically the same... For most of the classes, the students have a worksheet to complete beforehand. They have a reading assignment that will help them understand what is going on, if the resources are strange. Then, the class is mostly spent discussing what they found and how they found it, and what they thought about what their experience was. I don't really care WHAT they find, so much as HOW they find it, and there are a LOT of different ways to find things. The discussion is the whole thing. What they liked, and didn't like. What worked and what didn't .... And why do they think it didn't.

I did not really have words to explain this until I was reading a book for a reading group I signed up for at our Teaching Center. Metacognition is one word that explains part of what is going on in my class. Metacognition is thinking about knowing. And it seems to be one step toward deeper understanding of any subject... to think about what you know, and how you know it -- the process of learning. It's a hot topic in cognitive psychology applied to learning theory. The book I'm reading is Why Don't Students Like School: A cognitive scientist answers questions about how the mind works and what it means for the classroom, by Daniel T. Willingham (San Francisco: Jossey-Bass) 2009. (WDSLS)

In WDSLS, Willingham makes a number of points useful to classroom teachers at all levels, from kindergarten through college and post-graduate levels. The book is easy to read, and moderately entertaining, and the points are easy to pull out of the text, laid out in special fonts and boxes. There are entertaining illustrations and puzzles to help make his points. But I did not really catch fire, feeling that I saw a strong connection between this book and my own thinking about the problems of teaching legal research, until about two thirds of the way through.

Suddenly, at page 104, Willingham is talking about the difference between experts and novices:

... transfer [of previous learning to new situations] is so difficult because novices tend to focus on surface features [that is the surface difference between problems] and are not very good at seeing the abstract, functional relationships among problems that are key to solving them [that is, seeing the abstract similarities that make problems analogous, so one can transfer the solution of a previous problem to the new problem]. Well that is what experts are great at. They have representations of problems and situations in their long-term memories and those representations are abstract. That's why experts are able to ignore unimportant details and home in on useful information; thinking functionally makes it obvious what's important. That's also why they show good transfer to new problems. New problems differ in surface structure, but experts recognize the deep, abstract structure. That's also why their judgments usually are sensible, even if they are not quite right.

This is what lawyers and librarians mean when they say, "You get a feel for the shape of the law." They mean that after you do enough legal research, you begin to see the underlying similarities that let you solve the research problem by recognizing the abstract, functional relationship to previous research problems you have solved, which may look on the surface like very different problems. And you can very quickly guess where the answer will lie, and look for it much more efficiently. But it has never been something I could articulate for students any more clearly than the little quip about knowing the shape of the law.

And I now have a way to articulate for my students what I am trying to do with the classroom discussions. If they will discuss and argue about what they find, not to show me or get my approval, but to explain to themselves and help themselves see what they know and how they came to know it, they will be stepping much farther along the path toward making themselves into experts. They will be taking the time they spent on the worksheets and supercharging it, by making it into a much richer experience.

Why Lexis and Westlaw Should NOT be Like Google

2009-10-30T14:55:00.004-04:00

For the first time, I had a student write in my Advanced Legal Research class that they wished that Lexis and Westlaw could be more like Google. I had heard other librarians moan about this but had just not run across it til now. It really gave me pause to have it in hand. And it made me think, it challenged me. Why should this student not get her wish? If I sat down with this young woman and had a conversation, what would I say about why I disagreed? There must be more than just a knee-jerk revulsion against the transformation. What would be my reasoned argument to her?

I. Google flattens the world of information

When Google retrieves things from the Web, it does not distinguish what kind of information it is bringing back or what kind of source it is retrieving it from. For lawyers, this is disastrous. As a lawyer, you must care a great deal whether you are retrieving a statute or a piece of an article or a blog entry, or a case or a headnote. Some of these items are actually primary law (statutes and cases), which carry legal authority, and can be relied on in court. Others are secondary authority and will help you locate and interpret the primary authority (pretty much everything except the blog entry probably, and possibly even that). And some of it is merely commentary, and not reliable enough, probably to do secondary resource job. I am beginning to see occasional students who do not distinguish between these various resources, and now begin to see why. If they simply rely on Google to bring it, and learn not to care what "it" is, what a very dangerous habit for lawyers!

Students already seem to have trouble distinguishing between statutes and regulations on a pretty common basis. They need to have this explained, sometimes, even after taking an Administrative Law class. Perhaps they are merely being sloppy with terminology, but that is rather dangerous in itself. For that carelessness to extend to the whole world of information, bodes very badly indeed! This is not just a fussy librarian speaking. They will lose jobs; they will lose in court; they will lose clients; they will be disgraced.

II. While the goal of Google is to save you work, intellectual work is what lawyering is about, and what distinguishes the lawyer from the paralegal.

Already, searching on Lexis and Westlaw has done some interesting and perhaps deleterious things to legal analysis. I suspect that young lawyers and law students may be often relying on the cases found to do the legal analysis for them, rather than doing their own original thinking, or pre-analyzing the case. There seems to be growing weakness in analysis, and if it is not taught affirmatively in law school or some other part of training a lawyer for practice, many lawyers simply will not know how to do careful and creative analysis.

For instance, my students had not generalized the skills of reasoning by analogy or making policy arguments in cases where they could not find precedent in their jurisdiction. I am sure they had read cases in textbooks for other classes that did both, but they had never thought about doing that themselves! We had to talk through about how they what would they do, if they could not find cases on point in their jurisdiction. They certainly came up with persuasive authority -- bringing in cases from other jurisdictions. But nothing else at all came to mind.

If you are not prepared to do careful, precise thinking, the life of the law is not for you. If your ideal is to have Google or some other AI genie do your thinking, you are not cut out for lawyering. Not now, and not ever. Even if there ever is a true AI, a profession means that the human is taking a higher level of responsibility, and a higher level of expertise. For lawyers, the expertise is THINKING, ANALYSIS. We don't KNOW the law so much as know how to THINK ABOUT the law.

Berring on Free Legal Information Sites: Contretemps

2009-10-30T14:34:00.004-04:00

At Legal Currents, a blog by Thomson Reuters (West), Bob Berring is featured in a very thought-provoking and articulate video about the efforts by government agencies and volunteers (read GPO and PublicResource.org/Law.gov, and the Legal Information Institute) to make legal information freely available. He speaks of how admirable these efforts are, but thinks that ultimately they always fail because the government efforts are always the first to fall to the budget ax and volunteers are likely to lose interest after time, without monetary incentive. While praising the currently available efforts, and directing his advanced legal research classes to them, he sees them as ultimately doomed, which I find very depressing, personally.

Not too surprisingly, Carl Malamud, who is working hard on the Law.gov effort laid on some comments, followed up by Brian Baker. At first, West appeared to have removed the rather challenging comments, which stated that Berring should have revealed his long relationship with West (and also, less becomingly, called Berring a paid spokesperson). Another, spoof-named (I am pretty sure Vic Trola is not anybody's real name) commenter was more vicious. Bob Berring certainly has a long relationship with West, as a West author, and producing videos with them over the years. Eventually, the comments were reinstated. But Bob, no shrinking violet, also posted his own reply:

I am troubled by the comments impugning my ethics and moral bona fides. The statements are false. I am not a spokesperson for West, nor was I compensated for my remarks. They were made as part of video tribute being put together for the 2009 AALL meeting. The beauty of being an old, tenured professor is that one can say just what one means. And I did. You might contend that I am off base, but I say what I believe to be true. The issues are worth discussing. Ad hominen attacks don’t add much to that discussion.

As always, Berring's original comments are thought-provoking and interesting, even if my idealistic self wishes I could believe that the projects to provide free legal information had better prospects than he foresees. Visit the site and see what Bob has to say about the future of pro bono legal information projects. There is more there, of course, than gloom & doom! The photo of Prof. Berring is from his faculty page at Berkeley.

New GAO Report on Legal Education

2009-10-27T11:21:00.007-04:00

The GAO has released a new report on the cost of legal education, according to a news brief in Inside Higher Education. The Chronicle of Higher Education also covers the new report in an article published yesterday. Some individuals and groups, notably ALDA, have blamed the ABA accreditation process for piling on "unnecessary requirements that discourage innovative practice (and stifle competition from new schools) and ... drive up costs for students." The GAO concluded that aacreditation requirements are not causing tuition increases; rather, "the move to a more hands-on, resource-intensive aproach to legal education and competition among schools for higher rankings appear to be the main factors driving the cost of law school." Tuition has increased by 7.2 percent over the last twelve years at public law schools, but only by 5.3 percent at public medical schools. What has contributed to rising tuition costs at law schools? It is cheaper to staff large (100+ students) classes than it is to staff clinics and other programs that require a lot of interaction between professor and student; more faculty are required, and faculty salaries represent the lion's share of expenses at most law school. Tuition at public law schools has increased in response to declining levels of state funding. Academic support programs, which are of fairly recent vintage, have increased costs. And how much money has been spent to move law schools higher in the U.S. News and World Report rankings?

The GAO also concluded that the ABA accreditation standards have not affected minority enrollment in law school. Minority enrollments have actually increased, although some African American and Hispanic students may have been "negatively affected" by "lower average ... LSAT scores and undergraduate ... GPA ..."

Libraries Protect Intellectual Freedom

2009-10-26T15:01:00.002-04:00

I loved Marie's excellent post last week on Edmund S. Morgan, celebrator of libraries! The wonderful quotes she included made me consider for the first time libraries as storehouses of dangerous ideas, sort of boxes of the ingredients of weapons of mass destruction, just waiting for the right mind to wander in and see how to put it together! (here is the quote!)

[T]here is no more insidious instrument of change than a library in which professors or students or people in general are allowed to read the books.

In fact, in view of what books have done to change the world, it is strange that those who fear change have not succeeded in burning them all long since. The trouble with books is that people will read them. And when they do, they are bound to get new and dangerous ideas. Libraries are the great hothouses of change, where new ideas nursed into being and then turned loose to do their work. And the ideas are not always benign. One thinks at once of Karl Marx, laboring through the musty volumes of the British Museum and emerging with those notions that turned the world upside down. Or the Bibliotheque Nationale in Paris--how much, one wonders, did its volumes contribute to the French Revolution?

As a librarian, I had always considered libraries as full of GOOD ideas, waiting to set people free. And I still think that's most often the truth. The first paper I ever published was about censorship, considering several unorthodox sides of it. Among them, the idea that if you censor information, you only make it spread faster, and make it more desireable. And, the rather more radical thought that censorship might actually be used to level the playing field, deliberately choosing to censor certain messages from majority players in order to disadvantage them in comparison to the minority groups over whom they usually triumph (per Marcuse, Herbert (1969) 'Repressive Tolerance,' in which he argues that tolerance, which is usually viewed as privileging the underdog, actually aids the majority far more.) Wow! That's uncomfortable!

So, here's another uncomfortable thought for all those people happily contemplating the digital libraries of the future. If we are content to digitize all the books and let the control of them fall into the hands of a corporation, even a corporation like Google, with a slogan like "be good, not evil," what kind of fools are we? In 20 years, or 100 years, will Google still be in business? If it has gone into bankruptcy or been through a merger or just has different corporate executives, will it still have the same philosophy guiding its decisions about making the materials freely available? Or what if China makes a coup and controls the country in which the ownership of Google resides? And that national government decides that free access to the books of the world is not in the best interests of the people of the world?

What will happen then if the libraries of the world have decided that, since the digitized copies are all available through Google Books, they don't need to have print copies on the shelves any more?

Multitasking Multitangle

2009-10-26T14:43:00.002-04:00

From the Boston Globe Health Science pages today, an article on how multitasking actually saps our efficiency. Tara Ballenger writes "MultiTangle: As we cram more tasks into less time, frustration grows, quality of work drops, and our brains take a hit." Researchers are finding evidence that switching between tasks actually decreases efficiency by a good deal. Every time the brain is required to change tasks, even between something as apparently "auto-pilot" as texting, and walking, the brain takes time to move between the jobs.

At her job in a busy Boston public relations firm, 25-year-old Lillian Dunlap spends her days tending to the needs of clients. She fields emergency e-mails for one business while writing press releases for another and juggling phone calls from everyone. In today’s corporate culture and competitive job market, the person willing to take on the most gets ahead, she said.

“Every client has 10,000 things they need done, and with all the new technology, we’re expected to always be on call,’’ said Dunlap.

Researchers are discovering, however, that constantly switching tasks may be a lot less effective than it might appear.

“When you’re pushing yourself to perform two or more tasks, especially complicated tasks, it’s not beneficial. It’s extremely inefficient,’’ said David Meyer, a psychologist specializing in cognitive neuroscience at the University of Michigan.

In a 2001 study published in the Journal of Experimental Psychology: Human Perception and Performance, Meyer and his colleagues found that people who toggle between tasks lose valuable time in the transitions. The brain must refocus each time it switches activities, and the more complicated the task, the more time it takes to refocus. The time loss can be as little as tenths of a second per switch, but that can add up over the course of a day in which countless e-mails, texts, instant messages, face-to-face interactions, and any number of hands-on tasks involve such switches.

For the really hard stuff - writing important documents, expressing complex ideas, performing calculations - the time it takes for the brain to refocus stretches much longer, said Meyer.

“If you’re right in the middle of a paragraph and get interrupted, it could take hours to reconstruct what was in your mind and re-create the awareness you had before the interruption,’’ he said. (snip)

The very act of multitasking adds to the drain on the brain’s finite supply of real-time resources. Only a few things - breathing, heart rate regulation - can be done without pressuring working memory, said Vanderberg.

“If you can’t do it in your sleep, it is taking up cognitive energy,’’ she said.

For today’s children and young adults growing up in a multitasking world, surrounded by hands-free phones, portable personal computers, and enough Wi-Fi hotspots to stay linked in virtually anywhere, it might seem that young people would be more successful than older adults at multitasking, simply because they’ve had more practice.

In fact, the opposite may be true.

Researchers at Stanford University found that people who regularly juggle various electronic activities - like checking text messages while writing an e-mail and indulging in the latest episode of “Desperate Housewives’’ - actually had the highest deficit in skills that would make them good multitaskers, according to a study published in the August edition of the Proceedings of the National Academy of Sciences.

They couldn’t, for instance, block unimportant information or use short-term memory to switch between two tasks as well as their counterparts who chose to consume one media stream at a time.

Basically, they are distracted.

Ballenger goes on to explain how insidious the distraction becomes; you don't realize it's there. People are so used to multitasking that they don't even realize that their mind is wandering, thinking about something else. When I read this article, I immediately thought of a conversation I just had recently with firm librarians about the life in the firm: everybody is expected to be on call every moment. E-mails are announced with chimes and people are expected to check them as they arrive in case it needs immediate attention.

What are the partners thinking? How inefficiently must these people be working? And then, they are constantly in touch on their Blackberries or I-phones, and being interrupted in this other way. So nobody reads in silence for long periods any more. Nobody is concentrating unless they stay at work after say, 9 PM. Ballenger notes, however, that the multitasking is becoming part of the culture, so that many young people are so saturated in multitasking that they are constantly switching from one thing to another, even when they don't have to. This is not a trend I think will bode well for deep thinking.

Enough already!

2009-10-26T14:37:00.008-04:00

One of my favorite writers is Peggy Orenstein, who contributes regularly to the Sunday New York Times Magazine. Her insights about raising children and issues that affect women always seem to be right on target. Her latest column describes her efforts to stay off the Internet. She refers to these efforts as "self-binding," a reference to Ulysses, who "lashed himself to the ship's mast to avoid succumbing to the Sirens' song." In Orenstein's case, the Sirens' song was coming from the Internet, and she was powerless to resist it. Eventually she found an app called Freedom, which works only for Macs, and "blocks your Internet access for up to eight hours at a stretch. The only way to get back online is to reboot your computer, which ... is cumbersome and humiliating enough to be an effective deterrent." Unfortunately, I don't have a Mac and must regulate my own online behavior; I regularly fail to do this, and sometimes find myself using Wikipedia at two o'clock in the morning to find information I don't need at all. I know better, but I just keep clicking on those links, getting deeper and deeper into the virtual hole I have dug for myself and only dimly aware of the passage of time. As Orenstein says, what I am essentially doing is "reflexively indulg[ing] every passing interest," trying to get "answers to every fleeting question ..." This is, of course, impossible, and means I can't give anything my sustained attention. Orenstein concludes with a warning: "[A]s alluring as we can find the perpetual pursuit of little thoughts, the net result may only be to prevent us from forming the big ones."

Password Security

2009-10-22T15:21:00.005-04:00

Newsweek has published an insightful discussion of passwords, which it calls "the weak link in computer security." The author, Nick Summers, reveals that he created a password a number of years ago and kept using it "as the requirements for passwords evolved ... [he] added extra nines, cobbled on a question mark, and blended it with [his] alternate password." The result of all this tweaking was a password that would access Mr. Summers's laptop, email, bank accounts, blog, work PC, health insurance, Facebook, Skype, Snapfish, Hulu, tax returns, "and at least 39 other sites across the Internet." After making this confession, Mr. Summer is quick to note that he is changing his password.

The point of Mr. Summer's confession is to highlight how vulnerable passwords are and to showcase the CyLab, Carnegie Mellon University's cybersecurity-research department. CyLab doesn't just study the "mathematical theory behind passwords but the way humans actually use them." The CyLab researchers are exploring a number of different approaches to computer security, including biometrics, cryptography, "strong" passwords, security questions, one-time passwords generated by special devices, and image-based passwords. The author feels that for the short term, passwords, flawed though they are, are the most feasiable option for computer security. Unless there is a major security breach, corporations and other institutions are unlikely to invest in innovations that would likely be very expensive.

Competition for Kindle?

2009-10-21T17:43:00.005-04:00

PCWorld has published an article touting Barnes & Noble's new Nook e-reader, which the author, David Coursey, feels will "convince e-book skeptics that this is the time to start moving from Gutenberg to gigabytes." Coursey lists the features he thinks will make the Nook a hit: color multi-touch screen; ease of purchasing e-books from the ubiquitous Barnes & Noble; openness to third-party applications; the ability to "loan" e-books to other Nook users and to users of other electronic devices. Is the price--$259--too high? Coursey thinks so, but believes the price will drop in the coming year. Be sure to check out PCWorld's tour of the Nook. As for me, I'll check it out the next time I'm in Barnes & Noble.

American Heroes

2009-10-21T16:33:00.006-04:00

The legendary Edmund S. Morgan, emeritus professor of history at Yale and authority on Colonial America, has published his eighteenth book, American Heroes: Profiles of Men and Women Who Shaped Early America. The link is to a review of the book in the Washington Post. The book consists of seventeen essays, three previously unpublished and fourteen not previously available in book form. The essay of particular interest to readers of OOTJ appears as Chapter 2, "Dangerous Books" and was written in 1959. Morgan recounts an anecdote about a scholar he encountered at a meeting of book collectors who pointed out a book printed in 1625 that was in nearly pristine collection. The scholar said he hoped the book would remain in that condition, unlike the books at Harvard, where "professors [were allowed] to go [into the library] and read ... any old time they have a mind to.'" This observation got Morgan to thinking; he came to the conclusion that

[T]here is no more insidious instrument of change than a library in which professors or students or people in general are allowed to read the books.

In fact, in view of what books have done to change the world, it is strange that those who fear change have not succeeded in burning them all long since. The trouble with books is that people will read them. And when they do, they are bound to get new and dangerous ideas. Libraries are the great hothouses of change, where new ideas nursed into being and then turned loose to do their work. And the ideas are not always benign. One thinks at once of Karl Marx, laboring through the musty volumes of the British Museum and emerging with those notions that turned the world upside down. Or the Bibliotheque Nationale in Paris--how much, one wonders, did its volumes contribute to the French Revolution?

Morgan goes on to give a concrete example from Colonial America, the Yale Library, which "in the eighteenth century took command of the college, subverted the purposes for which it was founded, and transformed it into something utterly different ..." It is a fascinating story, previously unknown to me, and Morgan tells it well. My favorite portion has to do with Jeremiah Dummer, a Harvard graduate, who arranged "an extraordinary donation" of books to Yale's library in 1714. In 1708, Dummer had moved to England, where he served "as agent for the colonies of Massachusetts and Connecticut." Dummer "recognized that what Yale needed more than anything else was books, and, since England was full of authors and patrons of authors, he ... persuade[d] them to donate some of their favorite works to [Yale]." Around 180 individuals, including Sir Isaac Newton, Edmund Halley, Sir Hans Sloane, and Richard Steele, donated more than 500 books. Morgan paints a vivid portrait of the arrival of the books in New Haven:

The unpacking of the crates must have been a moment of singular excitement and curiosity for students and faculty. Here was an enormous variety of riches ... None of those who first opened the volumes and leafed through them could have recognized the full dimensions of what had happened. A century of English literature, science, philosophy, and theology was spread before them. It was as though a group of men today had studied nothing but the textbooks of a hundred years ago and were suddenly confronted for the first time with Darwin, Marx, Hegel, Freud, and Einstein, all at one blow.

For many, of course, it was simply too much to comprehend. To be handed a years' work to do may not be an altogether pleasing experience. And it was a long time before the full effect of the new books was felt. But New England was never the same after their arrival ...

One of the individuals most affected by the new learning contained in the books was Ezra Stiles, a minister who became president of Yale. "[P]laced in reach of the Yale Library, [Stiles] would soon arrive at a number of heretical ideas," one of which was that the Bible was not the word of God. Having "read himself to the edge of deism," he was able to read himself back and conclude that "the Bible was indeed divinely inspired." Like Jeremiah Dummer before him, Stiles wrote to authors all over the world, "begging copies of their works for the college library." As president of Yale, Stiles "not only let the students read what they wanted but encouraged them to discuss controversial questions in every field of thought." Today, this open discussion of controversial issues is part of the college experience, or should be; however, in Colonial New England, this was a radical and courageous position to take.

Morgan concludes the essay with a stirring defense of libraries:

...[W]hile libraries exist, where students and scholars can go to the original sources and discover the facts for themselves, all efforts at control will be futile. The only way to make a library safe is to lock people out of it. As long as they are allowed to read the books 'any old time they have a mind to,' libraries will remain the nurseries of heresy and independence of thought. They will, in fact, preserve that freedom which is a far more important part of our life than any ideology or orthodoxy, the freedom that dissolves orthodoxies and inspires solutions to the ever-changing challenges of the future. I hope that your library and mine will continue in this way to be dangerous for many years to come.

Another View of the Google Book Settlement

2009-10-21T15:40:00.005-04:00

By now, reams have been written about the proposed Google Book Settlement. One of the most readable and lucid commentaries, especially on the subject of orphan works (works still in copyright whose copyright owner cannot be determined or located), was published in the New York Times Book Review on October 4. Written by Lewis Hyde, a fellow of the Berkman Center for Internet and Society at Harvard University, the essay lays out the history and purposes of copyright law. Hyde feels that the proposed treatment of orphan works by the Settlement is not in keeping with the history of copyright, and would effectively give Google "unlimited dominion over electronic books." This would amount to a "lasting monopoly in this newest of book trades."

...James Madison explained that copyright is best viewed as 'a compensation for a benefit actually gained to the community.' There were good reasons, he wrote, to give authors a 'temporary monopoly' over their work, 'but it ought to be temporary' because the long-term goal is to enrich public knowledge, not private persons.

Madison honors the same beneficiaries found in the Statute of Anne [enacted in 1709, the first copyright act], the writer and the rest of us. In no case are third parties meant to profit, as the Google settlement would allow. To let them do so would be like letting an executor drain an estate whose rightful heirs cannot be found.

Hyde speaks approvingly of a recent proposal by the Department of Justice that would vest the authority to deal with orphan works in the court, just as we do with actual orphans.

...such a guardian would have to be charged with service to both the rights holders and the public good. He would have to try to find lost owners and pay them their due; should no oweners be found, he would have to devise a way to release these works to the public domain. (He could simply require that users who've been charged for orphans get their money back, or that the fees Google charges libraries be lowered in proportion to revenue collected in error.

Such an approach would ensure that orphan works "enrich public knowledge."

Law.Gov and PublicResource.org: Alternative Gov Docs?

2009-10-19T15:07:00.002-04:00

Carl Malamud is posting at PublicResource.org/Law.gov, what he calls "America's Operating System, Open Source." He hopes to garner support, both legislative and monetary, for authenticating and hosting a centralized registry and repository for all primary legal materials. He makes it clear that he is aiming for judicial, legislative and executive branch materials that constitute primary law. He is aiming for the federal level first, and to provide the "open source software building blocks that will allow states and municipalities to make their materials available as well." He specifically compares his vision to the new, federally produced data.gov,

providing bulk data and feeds to commercial, non-commercial, and governmental organizations wishing to build web sites, operate legal information services, or otherwise use the raw materials of our democracy.

Anybody who cares to submit concurring opinions, dissenting opinions, appendices, specifications, or others materials to this report will be invited to do so. It is understood that on a subject as complex as the functioning of our system of justice and our system of legal education there will be many views, and our hope in this process is to stimulate a robust discussion and dialogue on how to move our legal system forward.

Can an effort of workshops, a report, and briefings spur real change in Washington, D.C.? We won't know if we don't try.

This is an opportunity for citizens to help change the way we distribute America's Operating System.

Co-conveners will assist by hosting workshops, symposiums, and other activities during Q1/2010 that will be used as input to the report process. Confirmed co-conveners presently include:

* Professor Pamela Samuelson, Berkeley Law, University of California
* John Podesta, Center for American Progress
* Professor Tim Wu, Columbia Law School
* The Legal Information Institute, Cornell Law School
* Professors James Boyle and Jennifer Jenkins, Duke Law
* Professors Lawrence Lessig and Jonathan Zittrain, Harvard Law School
* Professor Jessica Litman, University of Michigan Law School
* The Oyez Project, Northwestern University
* Tim O'Reilly, O'Reilly Media
* Professor Edward W. Felten, Princeton University
* Robert Crown Law Library, Stanford Law School
* Professor Terry Martin, University of Texas Law School
* Professor Jack M. Balkin, Yale Law School

They specifically reference the AALL "ground-breaking report and AALL National Summit on Authentic Legal Information in the Digital Age...." on the need for authentication of legal information online. Malamud proposes using law students to systematically compare the online versions to print materials for authentication purposes, during the start-up phase. Apparently the students would be unpaid, since Malamud states that the students would gain "reputation points in the registry to demonstrate their public service" when they apply for clerkships or jobs. Malamud has a strict timetable and goals:

It is our goal to deliver, by mid-2010, a detailed report to policy makers in Washington, D.C., including at a minimum:

* Detailed technical specifications for markup, authentication, bulk access, and other aspects of a distributed registry.
* A bill of lading defining which materials should be made available on the system.
* A detailed business plan and budget for the organization in the government running the new system.
* Sample enabling legislation.
* An economic impact statement detailing the effect on federal spending and economic activity.
* Procedures for auditing materials on the system to ensure authenticity.

The original site has links to interesting documents and materials dating from September. More recently, our colleague, Rich Leiter, has taken up the cause in a post at his blog, Life of Books, and Malamud's post at the blog O'Reilly Radar.