Teknoids Blogs

David Moore of Participatory Politics Foundation (PPF) has posted Yes, let’s stride towards an open VCS for legislation (or, GitHub for laws on OC), at the OpenCongress Blog.

David’s post is a response to Abe Voelker’s recent post entitled GitLaw: GitHub for Laws and Legal Documents – a Tourniquet for American Liberty.

Here is David’s description of his new post:

I finally got around to posting a rambling blog post response on OC [OpenCongress]: yes, let’s move towards an open VCS [version-control system] for legislation. My major points :

1. GitLaw is inherently desirable, both for accountability & data-driven lawmaking & mitigating corruption;
2. Powerful hurdles / objections exist, viz. that leg[islative] process is too idiosyncratic for Git to account for; putting aside institutional foot-dragging & lack of transparency culture;
3. But using GitHub or new VCS features in open-source code on OC to draft bills w[ith] public & expert commentary before they’re submitted to legacy Congressional processes is perfectly feasible today; with a focus on specific topics or issue areas where fewest changes would potentially be made to draft legislation once in official channels;
4. PPF seeks non-profit funding support to build GitLaw features in open standards & open-source Rails code on OpenCongress.

… input welcome. Drafting leg[islation] in public before submitting would be a fine & significant step forward for #opengov, it seems to me, towards a two-way continual reciprocal platform for constituent communication & participatory democracy.

David adds:

one main claim [of his post is that] better #UIs [user interfaces] are possible for #GitLaw.

For more information, please see David’s complete post.

Many thanks to David for granting permission to post his summary.

For my earlier response to Voelker, click here.

Filed under: Applications, Others' scholarly or sophisticated blogposts, Technology developments Tagged: Abe Voelker, Citizens' participation in lawmaking, Citizens' participation in legislative drafting, David Moore, eparticipation, GitHub, GitHub and legislation, GitLaw, Legislative information systems, Legislative version control, Open Congress

On May 22 the B.C. Supreme Court issued an interesting ruling in Vilardell v. Dunham, 2012 BCSC 748, an application that arose out of a family law proceeding. The plaintiff had sought to be relieved of hearing fees, or fees for the use of the courtroom. It is important to note the fees in question were as existed under a version of the Supreme Court Rules that was repealed and replaced in 2009; hearing fees continue to exist (at least to the point of yesterday's ruling) but are reduced.

The Courthouse Libraries BC prepared an excellent and short summary.

The reasons are very long and I have had only a cursory look. Much, if not most, of the interesting analysis seems to be a result of interventions advanced by the Canadian Bar Association (BC Branch) and the Trial Lawyers Association in support of the applicant, along with that of the Attorney General of BC in support of constitutionality. The constitutional question at issue raised Charter and non-Charter questions.

The Court found the hearing fees to be unconstitutional on the non-Charter grounds. The essence of the issues and its ruling is laid out toward the end of the reasons:

[424] I summarize the submissions as follows:

(1) The TLABC submitted that the hearing fees wrongly impede access to justice, wrongly sell justice, and wrongly impede access to a superior court in violation of s. 96 of the Constitution Act, 1867 thereby interfering with judicial independence.

(2) The CBABC submitted that the hearing fees infringes the right of access to justice and offends the rule of law and is inconsistent with the Constitution. It also submitted that the hearing fees are in violation of s. 7 of the Charter, and that the hearing fees infringe s. 96 of the Constitution Act, 1867.
…
(4) The AGBC defended on the basis that it submitted that hearing fees were not inconsistent with any constitutionally guaranteed right of access, with s. 96 of the Constitution Act, 1867, or with s. 7 of the Charter.

[425] My conclusions are as follows:

(1) Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU) [British Columbia Government Employees’ Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214], including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference) [Reference re Alberta Statutes, [1938] S.C.R. 100].

(2) The mandate of the province under s. 92(14) is to maintain, that is, to provide adequately for, the courts. It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy. This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government. As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.

(3) Hearing fees are a barrier to access imposed by one branch of government over another. For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy. The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents. [My emphasis.] In this respect, the AGBC’s position that as long as the government does not interfere with the cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place. So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort.” Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek an authoritative determination of a right or legal position according to law. Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law. [My emphasis.]
…
(5) Fees charged by government for services rendered in individual cases, such as filing fees, do not constitute impermissible impediments to access, and as such fall within the legislative ambit of the province under s. 92(14) and its responsibility for the administration of justice…

(6) The question posed by this case was limited to the constitutionality of hearing fees….To the extent Pleau is applicable to the issue in this case, I have accepted that court’s conclusions, and the distinction it recognized between hearing fees and fees for services….

The Charter question raised section 7:

[419] I have considered whether the plaintiff has satisfied the test for a finding of a breach of section 7 of the Charter. The section reads:
Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the provisions of fundamental justice.

[420] The deprivations claimed are of two kinds:

(1) a deprivation of the plaintiff’s freedom to exercise her democratic input to access the courts on a matter of fundamental interest to her;
(2) a deprivation of security of the person by seriously interfering with the plaintiff psychological security and integrity.

[421] I accept the CBABC’s submission that…a custody hearing engages security interests of the highest order. I also accept the plaintiff’s evidence that the imposition of the hearing fees caused her personal anxiety.

The Court ultimately declined to answer the question because of its ruling on the non-Charter aspect, though it did say this about section 7 and Pleau v. Nova Scotia (Supreme Court Prothonotary) 1998 CanLII 12462, 186 N.S.R. (2d) 1, the existence of which case prompted the Court to invite intervenor submissions:

[422] I do not suggest that a case of this kind could not amount to a breach of s. 7 of the Charter. Nor do I specifically follow Pleau, which dismissed a s. 7 claim on the basis that the deprivation was with respect to access to the courts, and not personal liberty.

Professor Stephanie Davidson of the University of Illinois College of Law has posted Open Sesame, on the VoxPopuLII blog, published by the Legal Information Institute at Cornell University Law School.

In this post, Professor Davidson describes the current status of open access to scholarship in the U.S. — including issues such as mandates, repositories, and legislation respecting open access to federally funded research — and how legal scholars make use of and benefit from open access institutions. Professor Davidson highlights the open access scholarly repository of the Yale Law School Library, and the work of Donovan, Watson, and Bluh on legal institutional repositories.

For more information, please see the complete post.

Filed under: Applications, Others' scholarly or sophisticated blogposts, Policy debates, Policy Materials Tagged: Carol A Watson, James M Donovan, Legal institutional repositories, Legal scholarly repositories, Open access to legal scholarship, Pamela Bluh, Stephanie Davidson, VoxPopuLII, Yale Law School Library

Building off recent momentum behind their cause, a group of public-access advocates has started a petition asking the Obama administration to require that work supported by taxpayer money be accessible online. The petition, from Access2Research, went live on the White House’s We the People public-petition site late Sunday night. Organizers got the word out quickly and broadly via social media (see the Twitter hashtag #OAMonday) and with the help of like-minded groups.

By Wednesday afternoon, close to 13,000 people had signed, more than half the goal of 25,000. According to the site’s rules, if a petition gets 25,000 signatures within 30 days, it goes to the president’s chief of staff and will get a response from the White House.

Only two paragraphs long, the petition gets to the point quickly: “We believe in the power of the Internet to foster innovation, research, and education. Requiring the published results of taxpayer-funded research to be posted on the Internet in human and machine readable form would provide access to patients and caregivers, students and their teachers, researchers, entrepreneurs, and other taxpayers who paid for the research. Expanding access would speed the research process and increase the return on our investment in scientific research.”

The petitioners note that the National Institutes of Health’s public-access policy “proves that this can be done without disrupting the research process,” and they urge the president “to act now to implement open access policies for all federal agencies that fund scientific research.”

John Wilbanks, a senior fellow in entrepreneurship at the Ewing Marion Kauffman Foundation, decided to try a petition after he and other open-access proponents met recently with John Holdren, science adviser to President Obama. “It was a nice meeting, but everyone’s always very noncommittal, and it was sort of the same old same old,” Mr. Wilbanks said. “Something had to change the conversation.”

Three other champions of open access joined Mr. Wilbanks in creating the petition: Michael W. Carroll, a professor of law at American University’s Washington College of Law; Heather Joseph, executive director of the Scholarly Publishing and Academic Resources Coalition, or Sparc; and Mike Rossner, executive director of Rockefeller University Press. Coming out of the meeting with Mr. Holdren, they felt frustrated, Mr. Wilbanks said. “It seemed like nothing was changing,” he said, even though public access has. So Mr. Wilbanks et al. decided that “we might as well see if we can go direct to the public.”

This may be an auspicious time to get the public to weigh in. Mr. Holdren heads the White House Office of Science and Technology Policy, which last fall put out calls for input on public access to scholarly publications and to data. No policies have been issued yet as a result.

Meanwhile, recent debates on three bills–the Stop Online Piracy Act, the Protect Intellectual Property Act, and the Research Works Act–called more attention to the issue of online access to information. Those bills failed to move forward, while one favored by open-access champions, the Federal Research Public Access Act, got a boost when the commercial scholarly publisher Elsevier became the target of a boycott by researchers angry over its journal-pricing and access policies. That boycott petition, the Cost of Knowledge, has attracted almost 12,000 signers.

There’s been a lot of action on the open-access front in Europe, too. The Wellcome Trust, one of Britain’s largest funders of biomedical research, has thrown its weight behind open access. David Willetts, Britain’s minister for universities and science, announced this month that the government wanted to make publicly financed research freely available. And the European Union reportedly plans to put its money behind open-access publishing as well.

“There’s a zeitgeist around this,” Mr. Wilbanks said. “We’ve spent a decade building a movement around open access, and we have technology systems that make it quite easy to get the word out.”

[Animation by Mike McCarthy for Access2Research.]

On May 11 a US District Court issued its long awaited decision in the lawsuit brought by three academic publishers against Georgia State University for its use of copyrighted materials in its "electronic reserves" system. A practice at many universities is to post scans of required classroom readings to secure "student only" websites or course management systems such as Blackboard. The GSU had developed a policy on the use of copyrighted materials that attempted to balance the rights of copyright holders and the University's fair use rights. The GSU policy includes a "fair use checklist" that is based on the four fair use factors in 17 USC § 107.

The Chronicle of Higher Education provides a clear account of the Court's decision. The Chronicle reports that the Court ruled "that only five of 99 alleged copyright infringements did in fact violate the plaintiffs' copyrights".

The text of the 350 page judgement can be found here.

For Canadian commentary on the GSU decision see Professor Ariel Katz's blog. Professor Katz suggests that if this case were decided in Canada that "the result could be 99-0 for the defendants". Professor Michael Geist calls Katz's post a "must-read" for Canadian university administrators. The GSU decision is especially interesting in that it comes at a time when Canadian universities are deciding whether to sign on to Access Copyright's model license that seeks to cover many of the same activities that the GSU case considered.

For some US commentary see the Brief from the Association of Research Libraries and these posts from Duke University's scholarly communications blog here and here. On the publishers/rights-holders side the Association of American Publishers has issued a Statement expressing "disappointment" and the US Copyright Clearance Centre also issued a brief statement along similar lines.

 

 

 

At the Georgia Criminal Appellate Law Blog, Scott Key responds to Andy Mergendahl’s post from last week, Trial Objections: A Lose-Lose Proposition.

Go read it!

More on Trial Objections — and When to Make Them is a post from the law firm marketing blog, Lawyerist.com

When it comes to legal marketing, there are many things that can work, like blogging, teaching CLEs, or using Twitter, but there is only one thing I can think of that definitely works: word of mouth. In other words, building a referral network of people who know who you are and respect the work you do.

My best and strongest source of business has always been word of mouth. I am not a marketing guru, so my approach to earning referrals is simple and straightforward: do good work, share knowledge, and be social.

Doing good work

Everybody wants a good lawyer, and everybody wants to refer to good lawyers. Nobody wants a bad lawyer, and nobody wants to refer to bad lawyers.

So be a good lawyer.

This starts with the kinds of matters you take. It pays to focus on one or two areas of law. Clients like knowing you have experience with similar matters, and it is fairly impossible to be competent in more than a few practice areas, anyway. Turn down or refer everything else. If you are straight with a potential client or referral source — even if that means turning them down — you will usually create a referral source for the cases you do handle. Pretty much everyone appreciates honesty.

When you do agree to represent a client, do a really good job. Put in the time necessary, whether you are being paid your full rate, working at a discount, or handling a matter pro bono. Clients like lawyers who do a really good job, even if you lose, and happy clients often make enthusiastic (and talkative) referral sources.

New lawyers, or lawyers working on a new practice area, may need to find a mentor willing to help out. Otherwise, the best you can do is get lucky and waste a lot of time — if you don’t miss anything.

While you are doing a really good job on the legal work, do a really good job keeping in touch with the client. Set yourself a reminder to check in with the client at least every month, even if nothing is happening at the moment. Clients really like lawyers who don’t leave them in the dark, and bad communication seems to be a frequent source of ethics complaints.

In other words, be competent, do a good job, and communicate.

Sharing knowledge

If you are a good lawyer, you are going to gain a lot of really valuable knowledge through experience. Give it away.

This is not intuitive for many people, but giving away your hard-earned knowledge is really important — and good marketing. I’m not talking about the teaser white papers lots of people try to give away as if they were worth something. I am talking about giving away your hard-earned knowledge. For free. Without any explicit quid pro quo.

For example, while I was practicing consumer rights law, I did a fair amount of CLE seminars for other lawyers, some non-lawyers, and even one for a large group of district court judges. I didn’t hold anything back, either. I taught strategies for defending consumers sued by debt collectors, and for suing debt collectors — the same work I did to pay the bills. Some of the lawyers who attended those seminars concluded that learning handle those cases competently themselves was too much work, and just referred potential clients to me. Others went ahead and handled those cases, and when they called with questions, I did my best to answer. Some of these eventually became colleagues I relied on for strategy discussions.

Mentor younger lawyers. Be a resource for colleagues. Publish articles in bar journals and law reviews. Write a blog and fill it with free information. In other words: earn respect for the knowledge you have acquired through your hard work.

Whatever you do, don’t ask for anything in return. That means you have been paid, and the person you helped won’t owe you anything else, including referrals. (It’s okay to accept lunch or coffee or beer, though, if offered.)

Being social

It doesn’t do much good to be a great lawyer if nobody knows who you are. (Then again, if nobody knows who you are, you probably won’t get any clients, which means you won’t get to be a great lawyer.)

So be social. Call it networking, if you like, (only don’t mistake it for Networking). Whatever you call it, find people you like, then get out and do things with them.

I don’t subscribe to the idea that you should approach networking like a transaction, where the only reason to meet people is to find out whether they can do something for you. That is false, and worse, it is boring.

Instead, I just try to get out and meet interesting people. Or just likable people. Which I would do anyway, but it’s nice to be able to justify using the firm credit card. Besides, if you need to rationalize it, interesting and likable people are highly likely to know other people who also find them interesting and likable, which makes them likely to be a source of referrals. Although that sort of thinking just cheapens the whole thing. Stick to the basics: find people you like, then get out and do things with them.

What kind of things? It is hard to go wrong with food and drink. Most of my fondest memories involve food and drink. If you need more motivation to get out and socialize, cultivate a minor obsession with coffee or croissants or tequila and use it as an excuse to invite people along and introduce them to your interest.

If you are a wallflower — as many people are — suck it up and get out. There is nothing about being an introvert that means you can’t also be social. Socially awkward? I’m no psychologist, but it seems to me that the best cure for social awkwardness is practice.

No social media necessary

If you noticed, I barely mentioned social media. That is because you don’t need it. There are plenty of businesses, including many law firms, that generate business solely by word of mouth.

When you subtract the hype about social media, you will find that while social media can be an effective way to market your law practice, there is no guarantee it will work. Besides, even if you focus on social media, you will need to do good work, share your knowledge, and be superficially social. If you can do it offline, you will have a better chance of doing it online.

(photo: http://www.flickr.com/photos/felpa_boy/2098655554/)

Surefire Legal Marketing is a post from the law firm marketing blog, Lawyerist.com

Videos have been posted for many of the presentations given at lawTechCamp 2012: Legal Technology Unconference, held 12 May 2012 in Toronto, Ontario, Canada.

Click here for the conference program.

HT @monicangoyal.

For information about the upcoming LawTechCamp London 2012, to be held 29 June 2012 (with presentation submission deadline of 25 May 2012) (hashtag #LawTechCampLondon), click here.

Filed under: Applications, Conference proceedings, Presentations, Technology developments, Technology tools, Videos Tagged: Centre for Innovation Law and Policy at the University of Toronto Faculty of Law, Law practice technology, lawTechcamp, lawTechCamp 2012, LawTechCamp London, LawTechCamp London 2012, Legal informatics conferences, Legal informatics unconferences, Legal knowledge management, Monica Goyal

Professor Dr. Euripides Loukis, Professor Dr. Yannis Charalabidis, and Alexandros Xenakis, all of the University of the Aegean Department of Information and Telecommunication Systems, presented a paper entitled Policy-Related Knowledge Management in Parliaments Based on an Extension of IBIS Framework, at tGov 2012: Transforming Government Workshop, held 8-9 May 2012, at Brunel University, West London, England, UK. Here is the abstract:

In Parliaments there are huge amounts of knowledge concerning public policies for addressing social problems and needs, which is however contained in numerous long textual documents (e.g. drafts, laws, justification reports, discussions’ minutes, experts’ reports), and it cannot be exploited to a good extent. Its full exploitation necessitates an appropriate structured representation of it. In this paper, initially we analysed the legislation formulation process of the Greek Parliament and its main documents from a public policy perspective, focusing on the knowledge they contain on social problems and needs, and on public interventions (e.g. regulations, programmes, services provision, infrastructure building) for addressing them. Based on the conclusions drawn from this analysis we developed a methodology for the codification, representation and management of the policy-related knowledge of Parliaments, which is founded on a well established product of CSAV research, the Issue-Based Information Systems (IBIS) framework. A first application of this methodology has been made for the whole set of documents produced for the Law on the ‘Contracts of Voluntary Cohabitation’ passed by the Greek Parliament. It was then evaluated using both quantitative and qualitative techniques based on the ‘Technology Acceptance Model’ (TAM). The evaluation concluded that the above representation/codification includes to a good extent the substantial elements of the policy-related knowledge contained in the Parliamentary documents, and it is understandable by the users. At the same time it revealed weaknesses that lead us to the development of an extension of the IBIS framework in order to achieve a better representation of this knowledge.

Filed under: Articles and papers, Conference papers, Methodology, Research findings Tagged: Alexandros Xenakis, Euripides Loukis, IBIS, Issue-Based Information Systems, Legal text mining, Legislative text mining, Policy knowledge management, Policy modeling, TAM, Technology Acceptance Model, Text mining of legislation, tGov, tGov 2012, Transforming Government Workshop, Transforming Government Workshop 2012, Yannis Charalabidis

Since we're on the topic of Social Networks in a Law Firm...

A good friend recently asked me about my "thoughts on what social means in the context of project management?"  I replied with the following: Social (small s) collaboration is the lifeblood of any project undertaken by human beings.   We have evolved to collaborate with our peers to achieve goals greater than any one of us could possibly achieve on our own.  We naturally band together in groups to distribute work load, to take advantage of individuals strengths and to limit the burden of individual weaknesses.  This is true whether we’re banding together to take down a mastodon with spears, building a barn, or managing a business project.  Whereas, historically, most human teams have formed for a specific purpose at a specific time and place, the modern business project team is often dispersed geographically and chronologically.  We work in different offices, we have different schedules, and we are usually working on multiple projects simultaneously.  There are 3 key elements of group work which are easily lost in the modern environment. These are the elements that Social Collaboration tools attempt to address.  ·         Member Bonding
·         Multi-Party Communication
·         Real-time analysis and reaction                          It’s cheesy, but if we look at these three elements in terms of a prehistoric tribe hunting big game, you can see where our modern environment breaks down.  The group of hunters leave the village together early in the morning with a single goal of bringing home protein for the entire village. They walk for miles together looking for signs of large game.  Along the way, they talk about the task at hand, but they also talk about their families, their concerns, their ideas.  When they find their prey, they kneel in the dirt and draw up their plan of attack, team members ask questions and others share stories of earlier experiences to find solutions.  When they’re ready to enact their plan, they spread out, staying within line of sight and communicating via hand signals and gestures.  If the animal responds unexpectedly, they react immediately and call out to the others to enact an alternate plan, or to improvise based on the new situation.  At the end of the day they return with their kill or they don’t, but either way they have shared experience and knowledge. When they leave the village the next morning, they will be a stronger team than they were the day before.   Managing a legal project team should not be any more difficult than hunting a mammoth.  Unfortunately, we aren’t in the same location at the same time and we have varying degrees of interest and commitment to the task at hand.  We have very little opportunity to get to know the other team members on an extra-project basis.  We spend an inordinate amount of time trying to determine what’s being done by whom, and whether our contribution is comparable to other team members.  If the original circumstances change, we may not even be aware of the change, let alone in a position to react in a timely manner. And when the project is complete, successfully or not, we disperse to our individual careers and go about our business, until the next time we’re pulled into a new team with no experience, comprised of people we hardly know. Social (big s) collaboration tools are a regressive technology, in that they allow us to use our instinctive social toolbox to tackle modern projects in a modern environment, and they allow an exploded project team to work as if they are in the same room at the same time, regardless of their individual locations or schedules.  Social tools will not ensure successful projects, but if used well, they should at the very least ensure efficient failures which build stronger teams to tackle future projects. After several hours with no response, I followed up with my friend.
Me: Did I miss the point of your question? Friend: Yes, but that would be a great blog post.  Moral of the story:  Be careful asking me open ended questions.

For some time, Open Access has been a sort of gnat in my office, bugging me periodically, but always just on the edge of getting my full attention. Perhaps due in large part to the fact that our journals simply cost much less than those in other disciplines, law librarians have been able to stay mostly on the outside of this discussion. The marketing benefits of building institutional repositories are just as strong for law schools as other disciplines, however, and many law schools are now boarding the train — with librarians conducting. If you’re new to the discussion of Open Access in general, I suggest Peter Suber’s Open Access Overview for an excellent introduction. This piece is meant to briefly summarize the goals, progress, and future of OA as it applies (mostly) to legal scholarship.

Background and History
Open Access is not merely the buzzword of the moment: Open Access, or OA, describes work that is free to read, by anyone. Though usually tied to discussions of Institutional or Scholarly Repositories, the two do not necessarily have to be connected. Publications can be made “open” via download from an author’s institutional or personal home page, a disciplinary archive such as SSRN or BePress, or through nearly any other type of digital collection – so long as is it provided for free. For readers, free should mean free of cost and free of restrictions. These are sometimes described as gratis OA and libre OA, respectively. As Peter Suber notes, “Gratis OA is free as in beer. Libre OA is free as in beer and free as in speech.”

In addition to the immediate benefits of OA for researchers and for libraries (who would save a great deal of money spent on collections), strong ethical arguments can be made for OA as a necessary public service, given the enormous public support of research (tax dollars). The argument sharpens when research is explicitly supported by Federal or other grant funds. Paying to access grant-funded work amounts to a second charge to the taxpayer, while private publishers profit.

Of course, OA wasn’t an option with print resources; while anyone is “free” to go to a library that subscribes to a journal and read it, physical location itself is a barrier to access. In the networked digital environment, physical location need not be a barrier anymore. For members of the scholarly community who wish to share and discuss work with each other, that might be the end of the story. But while the technology is mature, policies and politics are still developing, and fraught with challenges posed largely by rights holders with significant financial interests in the current publishing system. One vocal segment of that market raises economic objections based on their financial support of the peer review process and other overhead costs related to production and dissemination of scholarly research. Since publishers control the permissions necessary to make OA work most fully, their opposition frustrates the efforts of many OA advocates. Not all publishers are invested in erecting barriers to OA, though; see, e.g., the ROMEO directory of publisher copyright policies and self-archiving. Though some impose embargo periods before posting, many publishers across disciplines allow deposit of the final published version of work.

In the midst of this conflict, many OA proponents acknowledge that production of scholarship is not without costs; Old Faithful didn’t start spouting Fat Bastard Ale one bright morning. Separate from the mechanism for sharing the Open Access version of an article, there are charges associated with its production that must be supported. The OA movement seeks a new model for recuperating these costs, rather than eliminating the costs altogether.

Interoperability
So, the “open” part of Open Access is roughly equivalent to “free” (for the reader), which presents economic challenges that remain to be solved. What about the “access” part?

Access to physical literature was largely a matter of indexing and physical copies; inclusion in the leading index(es) of a field was an honor (and potential economic advantage) to journals. Collection development decisions used to be made based in part on whether a journal was indexed. Access to online literature requires more than simply the digital equivalent in order to sufficiently serve the community, though: both the ability to download the article, and the ability to search across the literature are required for researchers to effectively manage the volume of literature.

As a foundational matter, openness in scholarly communication requires a certain amount of interoperability between the archives that serve up scholarship. The Open Archives Initiative (OAI) develop standards to promote interoperability between archives. Such standards support harvesting and assembling the metadata from multiple OAI-compliant archives to facilitate searching and browsing across collections in an institution, field, or discipline.

Paths to OA
One repeated practical question around Open Access is logistical: Who will build the archive, and how will it be populated on a regular basis? There are several models for implementing Open Access. Disciplinary Archives, Institutional or Unit/Departmental Repositories, and Self Archiving are all paths that can be taken, somewhat separate from publishers’ progress towards OA.

Disciplinary repositories are somewhat common around the academic community: PLoS & PubMedCentral, for example, provide access to a large collection of works in Science and Medicine. Like SSRN/LSN, they provide a persistent, accessible host for scholarship, and searchable collection for new papers in the field. One difference in the legal community is in the primary publishing outlets: for most law faculty, the most prestigious placement is in a top-20 law school-published law journal. These journals vary on their OA friendliness, but many faculty read their agreements in such a way to allow this sort of archiving. SSRN has thus provided a low bar for legal scholars to make their work available openly. SSRN also provides a relatively simple, if not entirely useful, metric for scholarly impact in appointments and in promotion and tenure discussions. As of last checking, SSRN’s abstract database was at 395k+, and their full text collection at 324k.

Institutional or Unit/Departmental Repositories (IRs) are also becoming a popular choice for institutions seeking to promote their brand, and to increase the profile of their faculty. A variety of options are available for creating an IR, from open-source hosting to turnkey or hosted systems like BePress’ Digital Commons. Both avenues tend to offer flexibility in creating communities within the IR for subjects or other series, for handling embargoes and other specialized needs. BePress’ Digital Commons, for example, can serve as an IR and/or a publishing system for the peer-review and editing process. As a path to Open Access, the only barriers to IRs are institutional support for the annual licensing/hosting fee and some commitment of staff for populating the IR with publications (or facilitating, if authors will self-archive).

Self-archiving represents an appeal directly to authors, who are not the tough sell that publishers tend to be. As Suber notes, the scholarly publishing arena lacks the economic disincentives to OA normally present for authors. Scholarly law journal articles, the bread and butter of the legal academy, do not produce royalties, so authors have nothing to lose from making their work available in OA platforms. One route to OA, therefore, is self-archiving by researchers. But while they might support OA in principle, researchers’ own best interests may push them to publish in “barrier-based” journals to protect their tenure and grant prospects, despite the interests of both the public and their own scientific community in no-cost, barrier-free access.

What about mandates as part of the path to OA? Recently, some academic institutions and grant agencies have begun instituting some form of mandate of open access publication. The NIH mandate, for example, implemented in 2008, requires deposit in PubMed Central within twelve months of publication for the results of any of their funded research. Others have followed, including Harvard Law School. As a path to OA, both are useful, though funder mandates alone wouldn’t hit enough of the literature to make a difference in terms of access for researchers. Institutional mandates, however, just might:

“When complemented by funding agency and foundation public-access mandates that capture the work originating with industry and government researchers who may not have faculty status, university mandates will, in time, produce nearly universal access to all the scientific literature.”

– David Shulenberger

ROARMAP tracks these mandates and the directed repositories for each. Though other universities and departments have instituted mandates, the 2008 Harvard Law mandate is notable for having originated with the faculty:

“The Harvard Law School is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the President and Fellows of Harvard College permission to make his or her scholarly articles and to exercise the copyright in those articles. More specifically, each Faculty member grants to the President and Fellows a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles authored or co-authored while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean’s designate will waive application of the policy to a particular article upon written request by a Faculty member explaining the need.”

Federal Input
Two recent bills dealt with open access: FRPAA, which would mandate OA for federally-funded research; and the Research Works Act (RWA), which would have prohibited such mandates. RWA (HR 3699) was withdrawn in late February of 2012, following Elsevier’s withdrawal of support. Its sponsors issued this statement:

“As the costs of publishing continue to be driven down by new technology, we will continue to see a growth in open-access publishers. This new and innovative model appears to be the wave of the future. … The American people deserve to have access to research for which they have paid. This conversation needs to continue, and we have come to the conclusion that the Research Works Act has exhausted the useful role it can play in the debate.”

FRPAA (HR 4004 and S 2096), on the other hand, is intended “to provide for Federal agencies to develop public access policies relating to research conducted by employees of that agency or from funds administered by that agency.” FRPAA would require any agencies with expenditures over $100 million annually to make manuscripts of the articles published from their funding public within six months of publication – FRPAA puts the burden/freedom on each agency to maintain an archive or draw on an existing archive (e.g., PMC). Each agency is free to develop their own policy as fits their needs (and perhaps their researchers’ needs). The bill also gives the agency a nonexclusive license to disseminate the work, with no other impact on copyright or patent rights. The bill also requires that the agency have a long-term preservation plan for such publications.

Copyright Tangles
How does copyright limit the effectiveness of mandates and other archiving? Less than the average law librarian might imagine. Except where an author’s publishing agreement specifies otherwise, the scholarly community generally agrees that an author holds copyright in his or her submitted manuscript. That copy, referred to as the pre-refereeing preprint, may generally be deposited in an Institutional repository such as the University of Illinois’ IDEALS, posted to an author’s/institution’s SSRN or BePress account, or to their own personal web page.

Ongoing Work
ARL/SPARC encourages universities to voice their approval and support of FRPAA. Researchers around the academy are beginning to show support as well: research has indicated that researchers would self-archive if they were 1) informed about the option, and 2) permitted by their copyright/licensing agreements with publishers to do so. With greater education about the benefits of Open Access for the institution as well as the scholarly community, authors could be encouraged to make better use of institutional and other archives.

In the legal academy, scholarly publishing is somewhat unusual. The preprint distribution culture is strong, and the main publishing outlets are run by the law schools – not by large, publicly-traded U.S. and foreign media corporations. Reprint permission requests are often handled by a member of the law school’s staff – or by a law student – and it’s unclear how much the journals know or care about republication or OA issues in general. But authors and their home institutions aren’t necessarily waiting around for answers; they’re archiving now, and taking down works later if asked. Carol Watson and James Donovan have written extensively about their experience with building and implementing an institutional repository at the University of Georgia, using the Berkeley Electronic Press Digital Commons software. See, e.g., Institutional Repositories: Essential Infrastructure for Scholarship in the Digital Age, Carol A. Watson, James M. Donovan, and Pamela Bluh; White Paper: Behind a Law School’s Decision to Implement an Institutional Repository, James M. Donovan and Carol A. Watson; and Implementing BePress’ Digital Commons Institutional Repository Solution: Two Views from the Trenches, James M. Donovan and Carol A. Watson.

Conclusion The bottom-line is, whether you’re an author or a librarian (or some other type of information/knowledge professional), you should be thinking about current and future access to the results of research — and the logistical/economical/political challenges — whether that research is happening in law or elsewhere in the academy.

Stephanie Davidson is Head of Public Services at the University of Illinois in Champaign. Her research addresses public services in the academic law library, and understanding scholarly research methods and behavior.

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.

The Canadian Bankers Association just released a mobile payments reference model as a voluntary guideline for development of mobile payments at point-of-sale in Canada. In practice this means that your phone will have a mobile wallet that replaces your debit and credit cards. Phones with NFC (near field communications) will be able to use this feature to pay by holding it near a payment terminal similar to how we can now use the paypass feature on our cards. The CBA press release has links to the full guideline, and a summary version.

From the press release:

The voluntary guidelines, technically known as the Mobile Reference Model, will serve as a blueprint for how mobile payment capabilities can be offered in the Canadian market, including guidelines around how information is exchanged among various parties to a transaction including financial institutions, payment card companies, telecommunications companies and merchants. While voluntary, the financial institutions that developed the guidelines are committed to these principles in the mobile market, and these guidelines are intended to create a path to help all market participants move forward in developing mobile payment solutions.

Canadians are looking forward to being able to pay at point-of-sale with their mobile device, and today’s announcement of guidelines for mobile payments in Canada brings this closer to making it a reality. By developing a set of guidelines that all participants in the payments marketplace can work within, the goal is to ensure safety, security and ease of use for merchants and consumers while allowing for innovation and competition among market participants.

It will take some time for the technology to become widely adopted, but expect a lot of competition in this market. Consumers in some other countries are already using this technology. Rogers and the CIBC announced just after the CBA release that they are working on a mobile payments solution.

Image [cc] yuan2003 Let's face it. Social Networks work fine when you're sharing information with your friends, or even with peers within your industry subset. Social Networks at your place of work, however, usually don't work very well at all. There are probably a thousand reasons why this is, but I think one of the biggest reasons is that people don't really want to expose what they are doing at work to their colleagues. I know that on its face, that sounds ridiculous, but it seems to be true. Most likely, they don't want to feel like they have to update their work status because it might come back to bite them later in an employee review. The whole act of covering your backside creates an environment where communications conduits such as work site social networks are viewed as counter-productive, when, quite frankly, these types of communications tools would actually increase productivity. So how do you build an environment that takes advantage of the daily activities of workers in a social network-like structure? HP Labs has one idea… build an automation process that updates their employees' status automatically and create a social network that simply builds itself.

Mashable reported on HP Labs' "Collective Project" this morning, and it made me wonder how, or if, this type of automated social network could work within a law firm. Here's the basic structure of the Collective Project, all of the processes appear to be automatically created and adapted over time base upon the project's internal algorithm and taxonomy structure:

• Personal Profiles are created 
• Preferences and Expertise is automated
• Documents are profiled
• Employees are connected to those files
• Employees with similar interests can be identified
• Document permissions can be customized to prevent unauthorized access

The idea behind this is to identify connections based upon "inferred expertise" according to HP Labs Israel director, Ruth Bergman. Bergman has used the Collective Project to identify co-workers with similar experiences and interests, and seek them out at conferences they are both attending.  There are a lot of firms looking and implementing Enterprise Search tools right now. Could the idea of an "inferred expertise" system like the Collective Project be duplicated in these enterprise search systems? Could a defacto social network be created within a firm? How would attorneys and staff view such a system… Helpful or Big Brother?  There may be a handful of firms out there that have thriving internal social networks, but there aren't very many. Is the idea of having some type of automated social network something that would benefit the law firm environment? Now that I think about it, you'd probably have to call it something more generic like "inferred expertise database" to quell the paranoia that surrounds the "social network" term. There seems to be potential in creating something similar to the Collective Project within an enterprise search resource, but would the culture of the firm accept it? I'd like to say yes, but my gut's saying no.

The court record, although potentially expensive to reproduce, can be a lawyer’s best friend. This is especially true in criminal cases, where clients can later assert an attorney’s ineffectiveness. The court record is an objective transcript of what actually happened. That means it is even better than your own notes when fighting claims for malpractice or ineffectiveness. Beyond its use as a defense against future litigation, a well-preserved court record can also prevent waiver and assist appellate courts in understanding the trial.

Protect Yourself

Recent Supreme Court decisions make it clear that ineffective recommendations at the plea bargaining stage could be grounds for a new trial. The defense attorney can and should use the record to explain her recommendation and reasoning related to the plea offer.

But there is a line between protecting yourself and throwing your client under the bus. Just because you think it is a great offer and your client should take it does not mean your client has to take it. All the attorney can do is advise. It is the client’s life at stake. I have seen attorneys practically beat their client into a plea on the record, in the guise of protecting themselves.

Leslie Ridge, a public defender in Washington County, agrees. “It’s important to tell clients what their options are and what they could be facing at sentencing, but at the end of the day it’s your recommendation and their decision. One of the things I explain to clients is that they’re the ones who have to serve the sentence, not me. But it’s also important to actually make some kind of recommendation. Clients want that from their lawyer.”

Help the Appellate Courts

I have reviewed trial transcripts in every legal job I’ve had. It’s not a fun task. But what makes it difficult is when attorneys don’t explain things for the record. Using pronouns, especially third-person neuter pronouns, such as “that” and “it,” make understanding the proceedings nearly impossible. Take, for example, this exchange:

Q: I just handed you an exhibit. Is that an accurate representation of the scene as it appeared at the time?
A: Yes.
Q: I’m going to ask you to step down and use this enlargement to show the members of the jury. Can you please indicate where the victim was standing?
A: Right here.
Q: Thank you. Now, where were you standing when he was shot?
A: I was right over here.

As you can see, an appellate court would have no idea what happened in this exchange. In some situations the details will have been fleshed out with other witnesses. But I have read many transcripts where an exchange like this is the only evidence of important information. At trial, the jury was able to convict based on the information, but an appellate court will have a hard time making a decision on the sufficiency of the evidence.

To prevent this kind of issue, just be clear. Clarify things that a witness does. For instance, you can say “Ms. Smith, you’re pointing to the sidewalk about five feet from where you said the victim was standing?” This also gives you the opportunity to repeat what the witness has said without actually repeating it.

Avoid Waiver

Trial objections are a tough issue. You have to know how to make them, but then there is debate about when to make objections. Andy makes the argument that jurors don’t like objections, so you should only use them when “absolutely necessary to keep crucial inadmissible evidence out.”

I agree that jurors don’t like objections. But at the same time, you have to be mindful of your client’s potential appellate issues. Sometimes things come up during trial that you weren’t expecting. Even when you do your best to handle evidentiary issues ahead of time, there will be surprises. When something comes up that you think the jury shouldn’t hear, object.

No matter how often you choose to make objections, you always have to place them properly on the record. The Federal Rules of Evidence dictate that the objecting party must state the specific grounds for the objection, unless it is apparent from the context. But the context during the heat of trial is completely different from a cold trial transcript. To err on the side of caution, always quickly state your grounds for objection. For example, you can just say, “Objection your honor, hearsay.” Short, sweet, and to the point. And most importantly, your client’s appellate rights are protected.

(photo: http://www.flickr.com/photos/crunchyfootsteps/4322493690/)

Defense Attorneys: The Record is Your Friend is a post from the law firm marketing blog, Lawyerist.com

One of my closest friends is a senior litigation partner at one of the largest law firms in Australia. She has always worked part-time through an arrangement with her firm where she works more than full-time during hectic trial periods and then will take a few weeks or a month off during the various school holidays. I have always admired her tenacity in making this work despite some pushback from her partners when she first started this arrangement eighteen years ago.

Recently, she remarked to me that flexible work arrangements were now common at the large national and international firms in Sydney. I was very surprised as such arrangements are still uncommon in Canada. In fact many, if not most partners here believe that law (and especially litigation) is not at all suited to part-time work arrangements.

In a survey published in the Australian national newspaper The Australian on November 4, 2011, thirteen of the largest firms reported that 9.4% of their lawyers work some form of flexible work arrangements – either reduced hours or working from home on a regular basis. While this number is still small, the trend over the past five years shows a steady increase. Norton Rose (Australia) now has 40% of its female partners on some form of flexible work arrangement. Norton Rose has also been pursuing a strategy to increase their number of female partners. In 2005 only 9% of their partners were female. They set a target of 20% by 2011 and exceeded it by reaching 22% last year. They have now set a higher target.

The statistics out of Australia amongst senior female associates working part-time are even more remarkable. The firms average 28.6% (down from 31.5% in 2009) though Minter Ellison tops the list at 54.6% of their female senior associates working part-time. As these senior associates become partners, it is certain that they will not be giving up their part-time arrangements as a condition of becoming a partner. It is anticipated that the number of part-time partners will grow rapidly over the next few years.

So why has Australia – a country which some Canadians smugly think is more chauvinistic than here – moved so far ahead of us in adopting more flexible work arrangements? The answer is competition for the best and brightest law graduates. Law school graduating classes in Australia have been 70% female for the past many years. In Canada, our law school graduates are fairly evenly balanced between men and women with women sometimes graduating in slightly higher numbers.

The higher female graduates in Australia is a result of law being a first degree where you enter right out of high school. As anyone who has ever attended a high school graduation ceremony in Canada knows, it is overwhelming girls walking across the stage to pick up most of the academic prizes and scholarships. Fortunately, for Canadian boys, they have four years at university to improve their grades and enter law school now only slightly behind in numbers to the girls.

This dramatic “feminization” of the legal graduates in Australia has forced the firms to look for ways to attract and retain the best and the brightest grads who are now primarily female. Not surprisingly, more and more male lawyers want similar work arrangements as their female colleagues. While the great majority of part-time lawyers at the largest firms are female (87.4%) more male lawyers are also moving to part-time. Norton Rose has 15% of their male lawyers working part-time while Allens Arthur Robinson tops the list with 20% of their of their male lawyers choosing part-time work.

This is a trend that is not going away. With both parents in the workforce and working at equally demanding jobs such as law, medicine or accounting, more Canadian lawyers both male and female are looking for ways to manage their family responsibilities. The days of the at-home wife supporting the busy law firm partner are quickly fading if they haven’t already disappeared. The Australian study shows that it is not just lawyers with children who are looking for reduced hours or reduced stress from commuting. All lawyers are seeking ways to manage the stress of higher billing targets, higher housing costs, increased global competition, faster turn-around times and clients demanding lower fees.

Flexible work arrangements whether it is part-time work or simply less face-time in the office to reduce weekly commutes, is fast becoming the single most important recruitment and retention tool for law firms. If our Australian colleagues can make it work both financially and for their clients, then Canadian law firms can do the same. There’s a lot we can learn by looking Down Under.

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• #CALIcon12 Session of the Day: DMR: Digital Media … Revolution http://t.co/9fpJInYa @caliorg #teknoids #
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Washington — The nation’s archives contain multitudes of documents that detail the lives and experiences of individuals, families, and groups. Archivists don’t lack for material to manage. What they could use is a consistent, broadly used standard for so-called authority control—a way to reliably, thoroughly describe archival holdings and contexts so that they’re discoverable by anyone who might want to use them.

A fairly new archival-authority standard, released in 2010, could change that. It has the less-than-euphonious name of Encoded Archival Context-Corporate Bodies, Persons, and Families, or EAC-CPF. And it’s helped inspire a push to create a cooperative national infrastructure to regularize and connect archival records.

A group of archivists and other interested parties gathered at the National Archives here on Monday and Tuesday to talk about what a National Archival Authorities Cooperative, or NAAC, would look like, and how to get there from here.

Representatives from the Archives, the Library of Congress, the Smithsonian Institution, the National Library of Medicine, the National Agricultural Library, and other federal entities sat in. So did archivists from state and regional archives and from individual universities, including Brandeis, Fordham, Harvard, Nebraska, and Yale.

A Small-Scale Model

They tackled three big issues: the business, governance, and technical requirements of such an enterprise. And they left with apparent consensus that they were onto a good idea and that they had the enthusiasm to come up with a plan, even if the details weren’t yet clear.

People “will have to be convinced not with hyperbole but with a good sound plan about how to move forward,” said Daniel V. Pitti, associate director of the Institute for Advanced Technology in the Humanities, or IATH, at the University of Virginia. Mr. Pitti convened the meeting. The Institute of Museum and Library Services is providing financial support for the planning stage.

To get the discussion going, Mr. Pitti and some of his collaborators gave attendees a close look at an archival-authorities experiment in progress, the Social Networks and Archival Context Project, or SNAC. It’s a joint venture that includes researchers and developers at IATH, the California Digital Library, and the University of California at Berkeley’s School of Information.

The idea is to bring together archival records in standardized form so that users can navigate among them and see the biographical and cultural contexts that disparate collections document. Mr. Pitti told the audience that SNAC shows how “archival authority, as we have been able to dig it out of traditional archival finding aids, is full of interesting treasures.”

Drawing on records from the Library of Congress, the Northwest Digital Archives, the Online Archive of California, and Virginia Heritage, the SNAC team created about 175,000 records using the EAC-CPF standard. Imagine doing that on a much bigger scale, Mr. Pitti suggested. “We think we can start it. We can get it going,” he said. “But ultimately it’s going to need the community if it’s going to become a sustainable, ongoing resource for users.”

‘Table Your Inner Eeyores’

After the discussion of SNAC, attendees broke up into three working groups to discuss essential questions. Who would host a national cooperative? Who would be able to contribute records? How would it be sustained and maintained? Would its target audience or users be archivists, scholars, the public, or all of the above? As one attendee asked later, at a session pulling together the various threads, “Are we building this for us, or are we building it for them?”

At times the meeting threatened to bog down in technical and best-practices debates, but Mr. Pitti and Clifford Lynch of the Coalition for Networked Information, in the role of interested interlocutor, kept things moving along. Mr. Pitti urged the group to “table your inner Eeyores for just a little while” and to dream big.

Mr. Lynch described a fast-changing landscape with “outbreaks of authority control” everywhere, involving many institutions and different kinds of collections. “This is really one piece, and a very well-timed piece, in a whole series of activities that are happening right now,” he said. Archivists might be the primary users of a national cooperative, he said, but scholars are another important community to include.

“We’ve got a lot of knowledge that’s created, codified, and then goes away,” he said, “because there’s no place to put it.”

Mr. Pitti concluded by observing that an essential, early step will be to find a home for NAAC—perhaps the National Archives, which seemed to be a consensus first choice. (The Archives has shown some interest in that idea but has not made a formal commitment.)

The conference’s organizers will now pull together the ideas discussed here, write them up, and circulate them, aiming to refine and publish them as a white paper in the fall of 2013. In the meantime, a couple of smaller meetings and a number of regional workshops will bring archivists up to speed on EAC-CPF.

As one attendee said, “This is a chance to lead with a new standard.”

["Maddie Defines Big," featuring the exterior of the National Archives building in Washington, D.C. Creative Commons-licensed photo by Flickr user cometstarmoon.]