Archive for March, 2011

Book Review: The Executive Unbound: After the Madisonian Republic by Eric A. Posner & Adrian Vermeule.

Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic. (Oxford University Press 2010) (249 pages); $29.95 hardcover.

The Executive Unbound is the kind of provocative and timely book that keeps you thinking long after you’re finished reading.  I found myself relating all national news to the authors’ thesis that the executive branch is restrained by politics, not law.  Whether they agree or disagree with the authors’ conclusions, law professors and upper level law students will want to read this engaging book.  Academic law libraries should certainly have it.

The authors, Eric A. Posner and Adrian Vermeule, have written for years that the executive branch is and should be the dominant governing body in the modern administrative state.  This book works well as an extension of the authors’ previous articles.

Posner and Vermeule present their idea of executive dominance as a challenge to James Madison’s checks and balances and liberal legalism’s belief that legislatures govern by passing laws, and the executive merely carries out those laws.

The first three chapters argue that the law does not constrain the executive.  Posner and Vermeule, citing Carl Schmitt, a Weimar and Nazi jurist, conclude that the executive’s unique ability to handle a crisis shows why the executive is also the primary governing actor during normal times.  They also argue that supposedly constrictive statutes like the Administrative Procedure Act do not bind the executive because they contain a series of “black holes” and “grey holes.”  The black holes exist where the executive is exempt or there is no judicial review.  Grey holes exist where constraints on the executive are so flimsy that it is, in effect, a black hole.  The authors argue that these escape hatches exist and are necessary because, as Schmitt famously wrote, the “sovereign is he who decides on the exception.”

In the fourth chapter, the book shifts to discussing what does constrain the executive.  The authors argue that presidents cannot accomplish their goals without convincing the public that they are well-motivated.  Posner and Vermeule then describe how the president can signal his good intentions by taking actions that would be “more costly for ill-motivated actors than for well-motivated ones.”  For example, the president might appoint members the other party, showing that he cares more about the good of the nation than politics.  The authors conclude that credibility-building mechanisms emerged as a substitute for the separation of powers.

The last two chapters expand on the authors’ conclusion.  First, having refuted liberal legalism in the United States the authors attempt to refute global liberal legalism.  However, Posner and Vermeule do not defend their ideas very vigorously in this chapter and are careful to couch their conclusions with disclaimers about their lack of “space or expertise to test [a] hypothesis in a rigorous fashion. . .”  As a result, those scholars focused on foreign and international law will likely find this chapter lacking.

In the final chapter, the authors argue that Americans need not fear the unbound executive.  They state that “tyrannophobia” arises from the fallacy that a legally unconstrained executive is an entirely unconstrained executive.

Throughout the book, the authors use recent examples which makes the book more accessible and persuasive.  For example, the first chapter draws conclusions from the executive’s treatment of two recent crises, September 11, 2001 and the 2008 economic crisis.  On the other hand, Posner and Vermeule are equally effective at using examples from throughout United States history to show that the executive became more powerful over time.

As a whole, the authors’ arguments are tightly organized and well-supported.  Each chapter helps support the others but can stand alone as its own argument.  The book itself is also very well-organized.  The chapter titles are meaningful and the index is especially thorough.  There are also ample end notes, making this book a great starting point for research.

I highly recommend this book.  Just don’t be surprised if you start thinking about it while you watch the news.

Reviewed by Clare Gaynor Willis, Reference Librarian at the Albert E. Jenner Jr. Memorial Law Library, University of Illinois College of Law.

Copyright Issues in Distance Education and Training

Join Tomas Lipinski, professor and executive associate dean at the Indiana University School of Library and Information Science at Indiana University-Purdue University, on May 5, 11 a.m.-12 p.m. CST, for Copyright Issues in Distance Education and Training as he answers common copyright questions that arise in virtual classes and training sessions. Issues covered during this webinar will include handouts, video usage, participant comments, and post-virtual session issues.

Due to the expansion of distance learning to both the academic and commercial realms, the webinar will look at situations that arise in nonprofit academic institutions as well as law firm online trainings and online professional development sessions.

Learning objectives:

  • Discuss how to determine which aspects of U.S. copyright law apply to your institution
  • Learn types and amounts of materials that can be circulated to virtual session attendees
  • Learn permission requirements and limitations for continued use of recorded online sessions

Register by April 28.

Learn to Collaborate and Find Common Ground with Your IT Department

Law firm library and information technology professionals share similar goals and struggle with many of the same issues. As we are all asked to do more with less, the skills that both of these groups bring to the table can be leveraged to increase value and produce results that are not only more effective but also more efficient.

Please join Scott Preston, CIO with Fulbright & Jaworski, and Sarah Clark Kavanagh, CEO of Cable & Clark, for Technology and the Law Firm Library: Finding Common Ground, on April 28, from 11 a.m.-12 p.m. CST.

This webinar will discuss:

  • Perceptions of the law firm technology (from the firm’s library point of view)
  • Perceptions of the law firm library (from technology’s point of view)
  • Discussion of barriers between groups, common goals, and needs
  • Discuss methods of effective collaboration

Register by April 21.

An SCCLL Librarian’s Notes from the Vendor Colloquium

Greg Lambert’s excellent coverage of Roberta Schaffer’s talk and Mark Estes’ reporting here on the group deliberation left me wondering what I might be able to contribute to the body of information about the AALL Vendor Colloquium.   I have 26 handwritten pages of notes; surely, some of that would be of interest to my colleagues.  Since my perspective is primarily that of a librarian at a public and subscription law library, I will start by offering my own notes from Ann Fessenden’s presentation (a statement of the challenges facing state, court, and county law libraries (SCCLL) and questions for the publishers) and from the discussion that followed.   Then I will identify the attendees’ shared principles that seem to speak to these concerns.

The SCCLL Environment
• SCCLL typically serve the public trust whether or not they are open directly to the public.  We report to a wide range of governing organizations.  Some are funded wholly by public funds.  Other SCCLL’s budgets are supplemented with, or solely funded by, private revenue.
• Government entities are desperately cutting budgets.  This has had a major impact on SCCLL, resulting in significant cuts to collections, staffing, and services even while the cost of materials rises.
• SCCLL librarians meet users’ real and personal legal issues, often supporting the needs of self-represented litigants.  We are need legal information resources and training materials designed with the end user in mind.
• Print remains very important in the SCCLL environment.
• SCCLL are concerned about issues related to official, authentic primary law as we support litigators, judges, and public patrons.
• We are challenged by licensing issues that limit our ability to offer remote access to our users.
• SCCLL librarians often negotiate licenses on behalf of other government offices.
• We often require billing and payment flexibility, given revenue cycles and local law and procedures.
• Many SCCLL have nontraditional functions, like outreach, self-help, and speaker series.
• SCCLL are dedicated to promoting rule of law and access to justice.

SCCLL Questions for the Vendors
Given these factors, SCCLL librarians need to know:
• Will vendors offer accessible print and online self-help materials, including those written in languages other than English?
• What are vendors doing to ensure preservation and authentication of, and permanent access to, primary materials?
• What might vendors do to offer affordable, accessible resources for the public and for government entities?  How can the vendors’ need to be profitable be balanced with the libraries’ shrinking financial resources?
• What is the vendors’ commitment to the affordable print materials for the foreseeable future?
• Are vendors willing to commit to provision of usage data so that SCCLL librarians can make decisions based on resources’ value?
• Can vendors work with SCCLL librarians on flexible, customizable terms in licensing agreements?
• What is the impact of the self-publishing and open access trends on commercial publishers?

Shared Principles
Day 2 of the Vendor Colloquium included the identification of shared principles, those common commitments around which one might reasonably hope some tangible action and mutual benefits might emerge.  From my vantage point as a SCCLL librarian at the Vendor Colloquium, these are the values and beliefs (as I jotted them down) that seem to address these questions and concerns, though I’m sure they will resonate with librarians at other library types as well.  This is not a complete list.
• A passion for legal information and its wide and effective dissemination
• Recognition that publishers and librarians are partners in serving the justice system
• An interest in improved trust and a commitment to quality in customer service
• The information proficiency of end users
• A commitment to metrics to demonstrate return on investment
• A shared interest in preservation and authenticity
• A mutual acknowledgment of end users’ changing habits and expectations
• A commitment to streamline the procurement and payment process
• Recognition of the inherent tension in the customer/supplier, for-profit, non-profit relationships

What’s Next?
As announced by Joyce Manna Janto, a Working Group, on which I will serve, is “charged with refining these shared principles and developing an action plan”.  I used to work with someone who would say, cynically, “…rubber meets the road…” at least twice a day, and always when leaving a meeting with the administration.  As a Colloquium attendee, a member of CRIV, and a professional colleague, I appreciate the concern of those who have that same thought.  I expect that legal information vendors and law librarians will be engaged in ongoing dialogue and action as a result of the Colloquium.  The question now is how exactly to institutionalize this by incorporating the dialogue and commitments into the everyday life of our association.

–Posted by Mary Jenkins, Law Librarian & Director, Hamilton County Law Library

Microfiche Poll

When a respected scholar expressed severe reservations about using microfiche for research, I was motivated to poll Facebook friends about the value of microforms.  Facebook is not regarded as a prime research tool; so, I decided to satisfy these two points of curiosity.  My Facebook friends gave me almost as much feedback as I received from email queries.  With Facebook, it is easy to miss a relevant message because of the volume of posting.  A dedicated Facebook page for this topic might have helped, but I am not convinced it would have been more useful than posting on my page.

The cleverest response I received was a wish for an iPhone app that would allow the user to read microforms.  At least one microform title has appeared online, but I cannot wrap my mind around the use of an iPhone to read microfiche.  It would be wonderful to see happen.

There is enormous hostility to microforms, but microforms have their good qualities.  They are inexpensive and they save space.  Librarians have observed better use when microforms are explained and promoted.  Some topics are best found, maybe only available, on microforms:  state session laws, state documents, legislative history, government documents in some cases (although much is digital), genealogy, eighteenth century information including musicology, rare art history images, to give examples.  Microforms are more stable than digital forms and provide excellent archival storage, especially because of their long lifespan.  One highly respected law library considers microforms a thing of the past.  In more than one response, I read that a serious researchers will use microforms.  The unfriendliness of use can be alleviated by a scanner.  Three responses praised Scanpro 2000 by e-image data ( )

Users more probably think of the downside of microforms: hard to use, rarely used, avoided at all costs, hated format, easily misfiled if fiche, unknown to young users, sometimes illegible.

An old article from Micrographics and Hybrid Imaging Systems Newsletter of July 2000 assessed the value of microforms.  Despite the age of this article, I believe the central point was well-made.  Microforms and digital works do well to cooperate.  Microforms provide the archival copy.  The digital copy, which would change with hardware models, would provide the access to the content.  Microforms do archival preservation better than digital copies do.  Digital works clearly provide better subject access.  The talents of the two formats remain what they were in 2000.

Microforms may not be popular, but they have their place and their strong points.  I believe they will stay around and even be used by researchers for awhile yet.

-Sally Wambold, University of Richmond Law Library

March issue of Spectrum online

Also, readers respond to this month’s Member to Member question: “Who is your favorite patron and why?”

Paper copies mailed out to members on March 1 so look for them in your mailboxes soon.

Vendor Colloquium: The reporter’s role – and other reporting

Discussions about the possibility of reporting the Colloquium by blogging began in early January, because the publication lead-time for AALL Spectrum meant that a feature-length article would not appear until after the AALL Annual Meeting in July.

As the designated report, my responsibility was to observe and report, without including my comments, observations, or opinions, and not to participate in the discussion.

The reporting of the blog was fairly exhaustive and complete with little left out. It’s not a verbatim transcript of course, and that’s why I’ve suggested that attendees email me privately about any errors or omissions so that I can expand the reporting to provide a more complete, nuanced contextual understanding of the two days. Note well: I will not attribute any comments to an individual other than the facilitator, Maureen Sullivan and Roberta Shaffer’s remarks during her keynote presentation.

If you have questions about the completeness of any post, please consider commenting here rather than just posting on your own blog.

The reporting process: During the Colloquium, I took notes in MindNode Pro, organized them, exported to RTF, edited, revised in Word, posted the draft to WordPress where Julia O’Donnell, AALL communications director, edited for style, grammar, and punctuation.

Again, the reporting did not include my comments or observations; that will come over the next few days.

Yesterday one of the participants, Greg Lambert, shared his notes as 3 XtraNormal video presentations to the PLL lists, writing:

For those of you interested, I took my notes and memories of the keynote speech that Roberta Shaffer (Law Librarian of Congress) gave at the AALL Vendor Colloquium on Monday and put it into three XtraNormal video presentations.

Part One: Rule of Law as a Coral Reef ( <> )
Part Two: Trends in Law and Law Practice ( <> )
Part Three: The Changing Roles Today ( <> )

I have to admit that the videos are surprisingly helpful in digesting the information being discussed.

Now, one thing to remember is that I went off of my notes and memories here, and the actual discussion was in the hour and a half range… whereas the videos total less than 30 minutes. So, there are probably things I left out, and things that I might have interpreted from the keynote that may not be exactly as Roberta said them. So, if it sounds great… then that’s probably all due to Roberta. If it sounds odd or wrong… then blame me and my notes.


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