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.

Vendor Colloquium Day Two Part Two

The next portion of the day focused on the value that law librarians bring to the flow of legal information and the challenges that they face from content creators and users. Then the group brainstormed a list of shared principles and expectations of outcomes going forward.

What is the value that librarians bring to the flow of legal information?

  • Marketing to customers without a profit motive, thus being objective in their assessments and evaluations of the tools for use by potential customers
  • Exposing end users to editorial expertise
  • Being a conduit to help vendors improve their products with feedback from users
  • Authoring content and helping publishers find authors
  • Providing curated collections that support their institutions in accomplishing their goals; librarians accomplish this through cataloging, preservation, building and expanding or contracting the collection to meet users information needs, providing reference service and instruction and training in using all the resources in the library
  • Generating revenue for law firms
  • Providing insight for new product development
  • Making patrons successful
  • Being the watchdogs over the legal information industry, pointing out when they are inaccurate
  • Incredibly strong networkers
  • Protectors of privacy
  • Dutiful stewards of resources.

What are the challenges librarians face from content creators and content users?

  • Increasing demands with decreasing budgets; providing broad and comprehensive collections with finite funds while maintaining staff morale. In short, librarians are asked to do more, better, faster and with less.
  • Marketing themselves, proving and/or articulating the value of the library and librarians in the face of misperceptions of customers (library users) and of C-level, procurement officers or other decisions makers of the nature of legal information and what librarians and libraries are about
  • Balancing access with licensing and copyright restrictions
  • Contract negotiations
  • Invoicing inaccuracies
  • Disintermediation; convincing users that they need education and training for most effective use of resources
  • Law school librarians face expanded responsibilities outside of traditional roles; are being forced out of their comfort zones
  • Determining what “authority” is and adapting collection development policies to rapidly changing user needs, ensuring long-term availability of information for the users
  • Maintaining competencies and depth and breadth of knowledge for collection assessment; generally keeping up with new stuff
  • Responding to the information needs of a much more diverse customer base: from pro se patrons to experienced attorneys and faculty and students around the world, plus interdisciplinary research forcing academia to collect non-legal resources and an increased focus on empirical research
  • Frequently changing models for dealing with legal information vendors; feels like vendors are constantly changing who to talk to and what the options are; difficult to build a relationship
  • Coping with the changed structure of and offerings of the legal vendors and how that impacts the parent institution
  • Increased amount of time it takes to acquire material, especially with contract negotiations
  • End users wanting to buy more themselves
  • Finding the true base line price or “most favored nation”
  • Challenge to engage in civil discourse amongst librarians when they disagree
  • Vitriolic communication styles impede civil discourse and may create negative perceptions of librarians by the outside community
  • How to get out in front of flame wars; learning how to communicate in this new mode of social media. What is the most appropriate way to respond? Rapid vs responsible, reasonable.
  • Creating a new culture of new forms of communications; the complexity of the business means that it can take time to investigate and respond

Round table of librarians and publishers

This discussion was a brainstorming session to begin identifying potential shared principles. The resulting draft list will be handed over to a working group (to be formed from Colloquium attendees), which will refine the principles and turn them into a document that will be shared with the AALL membership. The attendees also discussed what they expect to come out of the Colloquium and what would make it a successful event.

Some of the responses included:

  • Make the action plan executable and implemented, with measurable outcomes
  • Memorialize the conversations
  • Tangible collaboration on preservation, authentication, and digital rights management
  • A mechanism for ongoing dialogue at an organizational level and a means for AALL membership and other content providers to have a voice in that ongoing conversation
  • Assurances that the vendors will take the message back and that it will be heard within their organizations
  • Improving process for procurement, invoicing, etc.

Moving forward

The attendees agreed that AALL President Joyce Janto would send a message out to the AALL membership by the end of the week describing the event and next steps. They also requested a memorialization of the discussion and flip-charts, which will be shared with AALL members and beyond within a short time-frame. They also took volunteers for a working group, which will refine the shared principles, create and implement an action plan, and establish a plan for communication among the AALL membership and vendors.

The attendees also participated in a quick evaluation of the Colloquium, listing positives and negatives of the experience, to be used for future events like this one.

Closing remarks

AALL President Joyce Janto expressed appreciation to the attendees for working so hard. The group had engaged in a good conversation that should lead to many positive results. She expressed thanks to participants, planners, staff, and facilitator for their efforts.

Vendor Colloquium Day Two Part One

Facilitator Maureen Sullivan opened the second day’s morning session by announcing a slight change in the agenda and format. Based on observing the group yesterday, she felt more work could be accomplished by discussing the value added by vendors and librarians to the flow of legal information and the challenges each face as group of the whole rather than small groups. After those discussions, the group would begin to develop possible action plans and soliciting volunteers to draft shared principles.

“What’s the value vendors bring to the flow of legal information?”

The discussion answers included:

  • By providing secondary sources and finding tools
  • Maintaining a trusted source for gathering and authenticating legal information and providing editorial quality control in an efficient and timely manner, thus contributing to “authority”
  • Experimenting generally, investing in new technologies and new authors
  • Entrepreneurial, they see and seek to make the law and complementary materials available to niche markets
  • Serving as a point of contact for sources of legal information; thus saving the time of information professionals and enabling them to add value to their clients/customers/users
  • Providing a source of information about user behaviors, i.e., Ehich databases, files are searched
  • Making containers, i.e, text containers/books that have an inherent preservation aspect
  • Monetizing the sharing of intellectual output across national lines
  • Creating standards and share them with librarians sometimes
  • Facilitating the flow of legal information from insight to analysis
  • Supporting librarians by sponsoring librarian meetings and providing groups to work specifically with law librarians
  • Providing relevant customer service for the dissemination and usage of information
  • Expanding beyond the traditional core of legal information to mashups and ancillary products/services to make lawyers and law firms more profitable and improving the quality of legal services delivered to clients

What are the challenges vendors face from content creators, content customers, and content users?


  • Explaining how suppliers, who are also competitors, sometimes place restrictions on the use and re-use of information
  • Innovating while customers experience shrinking budgets
  • Meeting the disparate needs of shareholders and customers
  • Keeping print, even when not profitable
  • Customer support – when the company has so many different products that knowing the full line is impossible
  • Customers expect legal news and analysis simultaneously; wanting more and to pay less for it
  • Createing a more efficient marketplace to find information, which is slowed by diverse needs of users segments
  • Greater segmentation and disparity between the segments of customers who have a perceived need to know more faster and who have shorter attention spans
  • Trust – skepticism among segments of AALL membership regarding the true motives of publishers because of legal publishing consolidation and expansion into new service areas
  • Complaints about pricing in different formats and format changes
  • Competition from new sources, such as Google, Bloombergand self-publishing, with a shrinking market of writers/authors of analytical content
  • Increasing need for specialized information and specialized analysis responding to changes about how law is produced and used – are indexes and cross-reference tables still useful/needed for the end-user?
  • Preserving electronic data with versioning control
  • Many different models in contract negotiations
  • Ever-changing and increasing possible delivery modes to reading devices, e.g. users want mobile access; how to invest in innovation while keeping the cost under control and to find the best way to educate trainers with the ever changing set of tools and content
  • Hard to share with competitors
  • Communicating “no,” or an answer the customer doesn’t want to hear; explaining the evolution and roll-out of new products (the risk of bloggers and tweeters misrepresenting or sharing information out of context)
  • Building relationships based on trust and civil discourse when librarians feel pressured by their bosses and skeptical of publisher’s motives
  • Globalization of business lines
  • Blending of business and consumer expectations changes the customer expectation for how legal information is delivered
  • Explaining the value of legal information to a non-consumer of legal information, i.e. CFO, administrator

Posted by Mark Estes.

Vendor Colloquium: Closing remarks of day one

Facilitator Maureen Sullivan summarized the day, observing that there’s strong evidence of opportunities to work together. Namely:

  • Address preservation questions
  • Different service models
  • Increasing transparency about pricing structures
  • Partnering for training of end users in order to maximize the end-user experience
  • Learning about each other to clarify similarities and differences

Then she laid out the format of the next day:

  • A discussion around the value that legal publishers and law librarians add to the flow of legal information and the challenges each group faces
  • In the afternoon the group will begin to engage in developing shared principles and action steps

March 2011

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