Vincent G. Rinn Law Library

Former West Publishing CEO, Dwight Opperman, dies at 89

Dwight Opperman, a Drake University law grad who started out as an editor at West Publishing in 1951 and went on to become the CEO of the company, died this past wednesday at the age of 89. During his tenure at West he championed the development of Westlaw which moved the venerable publisher of legal materials, into the digital age.

A news story about him says that he was a child of the depression who before getting the job at West, played music for hire with his first wife to make ends meet. Later in his career, the success of the company and its subsequent sale to Thomson Reuters,  allowed him "...become an active philanthropist, establishing a number of scholarships at Drake and also endowing Drake’s Dwight D. Opperman Constitutional Law Lecture, an annual lecture delivered by top scholars, often U.S. Supreme Court justices. "At Drake he made  contributions to Opperman Hall and to the law library which was named in his honor.

He had a keen interest in the law and especially the role of the judiciary. He was a major benefactor of American Judicature Society and the United States Supreme Court Historical Society.

U.S. Chief Justice John Roberts paid tribute to Opperman saying, "Dwight has long been a committed friend and supporter not only of the Supreme Court, but of the federal judiciary as a whole,"

Government Datamining Knows No Limits ?

The recent disclosures of decades long data gathering of individualized communications behaviors by the US government intelligence community, have confirmed that the government considers the gathering of massive amounts of personal data, as essential for what they claim to be doing. So motivated are these official actors that many citizens and organizations believe that they have moved beyond the traditional limits that our bill of rights placed on this type of  government behavior.

Is this ever increasing movement toward greater surveillance and information gathering, just the result of willful indifference to our legal safeguards ? Sometimes it is. But  one might also ask whether the very logic of  data mining methods, engenders ever greater data acquisition for its projects ?

"The analytical techniques used in data mining are often well-known mathematical algorithms and techniques. What is new is the application of those techniques to general business problems [ and by government ] made possible by the increased availability of data and inexpensive storage and processing power."  The current data mining approach to intelligence production is based on the need to develop huge digital data warehouses to successfully apply sophisticated computer technology to develop actionable intelligence.

The key aim of data mining is to uncover hidden patterns in large data sets. To detect something new that may not be apparent to experts because it lies outside their experience. This process requires advanced statistical methods and complex software algorithms and expert human input, to be able to surface these hidden patterns that may exist in the data provided.

"Data mining analysis tends to work from the data up and the best techniques are those developed with an orientation towards large volumes of data, making use of as much of the collected data as possible to arrive at reliable conclusions and decisions..."
( CHAPTER 1 ,  Data Mining And Warehousing Concepts )

The greater the volume and diversity of data that can be assembled for this process, the greater the probability for uncovering new connections and patterns that can be turned into actionable knowledge." In the business world, digging through and analyzing enormous sets of data with data mining methods has made it possible to predict behaviors and future trends and answer business questions that traditionally were too time consuming to resolve.   Automated data processing, aided by other discoveries in computer science have made it possible to work with  data sets that have grown in size and complexity."

It should be no surprise that the government would eagerly turn to using these same methods in a post-9/11 world, to enhanced the traditional means of intelligence gathering against the new non-state enemies. "NSA is reported to use its computing capability to analyze "transactional" data that it regularly acquires from other government agencies, which gather it under their own jurisdictional authorities. As part of this effort, NSA now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions and travel and telephone records, according to current and former intelligence officials interviewed by the Wall Street Journal."

A current news story reports on the building of two huge data storage centers that the NSA  "...will need to intercept, copy and mine the metadata from 1.7 billion daily phone calls, texts, emails and other electronic communications the agency reportedly tracks..." The article states that about a quarter of the new space will be dedicated "... to storing numbers that replicate the way people around the world live in human networks. The NSA is looking for networks that connect occasionally to suspected terrorists."

The 4th amendment is about particularizing  government "searches and seizures" against  individuals based on specific "probable cause". It is based on narrowing and controlling in what manner the government could be allowed to gather information from its citizens.

However, the congressional vote on the FISA Amendments in late 2012 and subsequent court decisions appear to have interpreted this dragnet type of data gathering and storage to be legal and constitutional. Thus removing the legal restraints on the use of a technological application, that is partially driven by an imperative to continue expanding as a basic feature of it's design.

As the Electronic Frontier Foundation observes, "National and international laws have yet to catch up with the evolving need for privacy that comes with new technology. Several governments have also chosen to use malware to engage in extra-legal spying or system sabotage for dissidents or non-citizens, all in the name of “national security.” "...National governments must put legal checks in place to prevent abuse of state powers, and international bodies need to consider how a changing technological environment shapes security agencies’ best practices."

 

Kansas 2011 Rural Recruitment Law Takes Broader Approach

A recent New York Times article highlighted the passage of a law in South Dakota aimed at recruiting new lawyers to the rural areas of the state. Many states in the West and the South are seeing the retirement or death of their town lawyers with no one in the pipeline to replace them.

The situation in Kansas is not much different. A study by Wichita State University’s Center for Economic Development and Business Research, indicates that "Without migration, Wichita State projected that 37 counties — 22 in the western Kansas — would lose population. The main reason for the decline is a relatively low concentration of women of child-bearing age." "With migration, the study projected that 83 counties, including 51 of the 54 from Reno County west to the Colorado border, would continue to lose population through 2040. "

Kansas passed its own broader rural recruitment legislation back in March 2011. While the South Dakota law deals specifically with recruiting new law grads, the 2012 Kansas law has taken a broader approach to recruiting not only lawyers but also professions like veterinarian, programmer, pharmacist, welder, engineer and many more marketable skills.

The bill creates a state and county partnership with 50 Kansas counties being designated Rural Opportunity Zones. The bill was introduced by the Governor and supported by the Secretary of Revenue and the Secretary of Commerce. Other proponents included the Kansas Dental Association and the Kansas Hospital Association.

Unlike the South Dakota law which is only looking for graduates from law schools. The Kansas law covers a 20% of loans  for attendance at an institution of higher education where such resident individual earned an associate, bachelor or post-graduate degree, up to $15,000.

A five year commitment is required from accepted candidates. The repayment program is available to all individuals regardless of prior residency, Kansas source income, or where they may have received their higher education degrees.

The Kansas law provides tax incentives for those who agree to work in a designated Rural Opportunity Zone (ROZ) for five years. These workers will be "...allowed as a credit against the tax liability of a resident individual taxpayer an amount equal to the resident individual’s income tax liability under the provisions of the Kansas income tax act."

Commentator, Mary Sanchez of The Kansas City Star, puts the aims of such legisaltion in a hopeful perspective, "For now, just view these relatively small population gains this way: If a company expands and hires 10 new workers, all from outside the existing community, they often don’t arrive as a single person. They might bring a spouse, or a child, or marry and start a family, putting down roots to stay."

South Dakota Attorney Rural Recruitment Law Seems Too Circumscribed

A 2012 American Bar Association report on the status of rural law services stated that "The main street attorney in rural America is an endangered species.  The small number of rural lawyers in relation to the unmet need for legal services in rural areas is shocking.  The impact of losing rural lawyers on the economic viability of rural communities and the delivery of justice to residents in these areas is potentially devastating." In South Dakota, 65% of the attorneys are located in only four cities.

In this report the state of South Dakota is identified as taking the initiative to counteract and correct this situation. The  State Bar formed the Project Rural Practice ("PRP"). It is is a collaborative effort involving multiple organizations in  law, government, business and educaction. It was charged with the task of identifying the scope of the decline of main street lawyers in rural South Dakota and assessing its impact and developing recommendations.

This year in March 2013, the efforts of the project have bore fruit in the signing of a state bill to specifically assist in the recruitment of attorneys to the state's rural areas of South Dakota. However, the bill appears to be only a first step in that direction.

The legislation establishes a recruitment assistance pilot program that is initially limited to no more than16 attorneys.  Participants must be licensed to practice in South Dakota. The incentive payment is limited to 90% of the tuition and fees of attending the University of South Dakota Law School. At present this is about $12,000 which seems dwarfed by the 100,000 plus debts that many law grads have today.

Also, there are some very inflexible terms in the law if there is a default by a participating attorney in carrying out their full 5 year commitment. "If the attorney has received a payment pursuant to this Act and subsequently breeches the agreement, the attorney shall repay all sums received pursuant to this Act under the terms and conditions set by the Unified Judicial System. Failure to make repayment is grounds for discipline..."

The law also seems to significantly limit the possible pool of participating attorneys for the program. "No person may participate in the program established pursuant to the provisions of this Act if the person has previously participated in the program, or any other state or federal scholarship, loan repayment, or tuition reimbursement program that obligates the person to provide attorney services within an underserved area." It is not clear why attorneys who have previously done this type of work would not be considered good candidates for the state's program.

The South Dakota Supreme Court  can promulgate rules necessary to implement the  Act. Hopefully, it will be able to ameliorate these seemingly counter-productive provisions in the law.

 

 

62nd 7th Circuit Bar Association & Judicial Conference Meeting

Speakers to include :
Hon. Frank H. Easterbrook, Chief Judge, United States Court of Appeals, Seventh Circuit

Hon. Elena Kagan, Associate Justice United States Supreme Court

Hon. John G. Roberts, Jr., Chief Justice of the United States

Schedule of Events

Annual Meeting Registration

"Open States" Web Site Has Legistative Information For All States

The idea for the Sunlight Foundation's, Open States Project, began in 2009. From an initial core of volunteers from several states, the project has gathered volunteer contributors from all 50 staes plus Wash. D.C. & Puerto Rico. With additional contributions of computer expertise and a grant to  build the public web site, the Open States web site is now operational.

The interface allows citizens to locate their state representatives by entering an address or clicking on online maps or entering a legislator's name. Short biographical information, plus some news stories are provided. Links to the bills that the legislator has sponsored and recent votes on other legislation are presented. Summary charts of campaign contributions are provided with links to more detailed data from followthemoney.org  and  opensecrets.org  .

Bills for the current and several past legislative sessions can be searched by chamber, sponsor, status, type of bill or resolution, and subject ( free text not an index). The full text of the bill can be called up. Roll call votes are also accessible. There is a tracking tool called Scout from the Sunlight Foundation that alerts you when Congress or your state capitol talks about or takes action on issues you care about.

Open States tutorial

[ Hat Tip to Librarian Maria Willmer on our staff ]

ABA Opens Door to Legal Education Re-Structuring

The news from the American Bar Association , Task Force on the future of Legal Education, regarding recommendation for basic changes in legal education, surprised many observers of the legal market and law schools. The committee is delivering its ground-breaking recommendations a year a head of their two year mandate. The committee along with many members of the the legal profession and the legal academy, believe that the time for incremental change is over and drastic and fundamental changes are needed now.

While the problems of overcapacity in the market for lawyers, had been increasing for years. It wasn't till the worldwide economic crisis forced a basic change in the economic sustainabilty of law firms that changes in the legal profession began to be taken seriously on a wide spread basis.

Of course,  problems in  the law firms did not leave law schools unaffected. With sizable layoffs of associates and even some partners, the potential job market for law school graduates, got even tighter. But it took a few years for the wave in the legal profession to hit the law schools in a significant way.

A few years ago, those of us who work in law schools were asked how these difficulties in the legal marketplace were affecting our law school programs. More and more stories were appearing about the growing number of unemployed or under-employed law grads who could not pay back their huge student loans. Surprisingly, it seems to have taken a few years before the impact  became apparent in the law schools. This was both attributed to law student execeptionalism and "magical thinking " and also, to less than forthright marketing information from the law schools.

Beyond the lack of available positions, in the law firms, the semi-official training and mentoring process that use to actually develop practicing lawyers who could bill for their time,  began to dry up. Under the new economic conditions, clients were no longer willing to be subsidizing these lawyers-in--training by the fees they were being charged.

This highlighted the fact that law schools had not been providing this kind of practice-oriented knowledge and experience, as part of the law school curriculum. However, in the new context, this could provide law schools with an important area for expansion of the curriculum to help fill this gap and also improve the job prospects of students.

In a fashion similar to the legal market, it seems that the long-looming problems with law schools, have not been responded to in an adequate fashion, until the recent sharp drop in law school applications. criticisms  of the existitng system and recommendations for changes and many isolated innovative experiments, had been ongoing for years. But it has taken a serious economic threat to law school  viability that has forced the legal education establishment to begin implementing basic changes.

The ABA seems to be both a surprising initiator in this process, and an indispensable actor in it. The new recommendations actually undo part of what the ABA has put in place through its formal accreditation authority. Loosening requirement on matters such as minimum credits, the use of non-full time faculty, law classes for non-law students, having fewer tenured faculty, indicates that the old structure that the ABA sanctioned, needs to altered to deal with an urgent situation and that they are the ones to begin the process. While the state judicial authorities and Bar examiners will have to be involved in accepting these changes. The iniatives from the ABA, begin the tangible process that other actors can react to and follow.

So far the ABA sections recommendations include :

• Shortening law school to two years instead of three.
• Making greater use of non-tenured faculty to teach more practice courses.
• Possibly hiring fewer tenured faculty with a heavy focus on research.
• Including continuing education for faculty in pedagogy.
• Offering more non-traditional and innovative teaching methods.
• Having students take relevant non-law courses, such as business courses.
• Allowing students from other disciplines to take law courses relevant to their career plans.
• Fostering closer ties with practicing lawyers to provide instruction and mentoring.
• And in an area that really questions how legal services are provided - creating new legal practitioners with a limited legal license to provide a limited range of legal services.

These new recognized categories of legal workers, will actually change the meaning of what has been considered "the un-autharized practice of law" and "maintaining the legal monopoly" by others. Online businesses like as Legal Zoom, are already testing this type of market. Recognition of new types of legal workers, will legitimize these practices and help make basic legal services by properly trained personnel available to ordinary people at costs they can afford. An unexpected but welcome potential outcome arising from the present upheaval in the legal arena.

"Sea Changes & Burning the Ships" - Report On State of Legal Market

Thomson Reuters and the Georgetown Law Center for the Study of the Legal profession have released an insightful report, "2013 Report on the State of the Legal Market", that examines the basic changes that have been underway for some time that promise to reshape the practice of law.

The report points out that it is not only the effect of  the worldwide economic downturn that is responsible for the difficulties in the legal marketplace.  But several interrelated changes and trends that have been emerging, that have been accelerated by the effects of the economic crisis.

Some of the key factors the report identifies include :

Emerging technologies and new  workflows that simplify tasks and allow a more competitive playing field and the entry of new non-traditional actors into the market.

A commoditization of legal services that enable a division of legal services into tasks that can be accomplished routinely for less cost, either within the firm of by new non-traditional providers. Corporate client are also dis-aggregating matters. Parcelling out parts of matters to different firms which can provide the most cost effectiveness.

A fundamental change in the power of clients to bargain with their hired law firms. Because of the economic environment, clients are no longer willing to accept rising fees for legal work that they had little influence over. Clients want and now get alternative fee arrangement, input into legal strategies and continuing accountability for work being done.

There has been an overcapacity of new lawyers even before the economic downturn. Prior to 2008, "productivity growth in the legal market was essentially flat". The declining economy has exacerbated this overcapacity with firms laying off staff and associates and even partners to reduce costs. The report relates that legal consultant, Bruce MacEwen, states that"for the next ten years it is likely that American law schools will be graduating over twice as many new lawyers as will be needed to fill the jobs available".

Law firms will need to be even more competitive to survive.  Internal use of business re-engineering methods and project management will be needed, to achieve the efficiencies and prices demanded by clients. Firm will also need to  play to their own strengths to differentiate themselves among competitors.

In the area of the globalization of legal services, big firms have actually been very actively moving into international markets. The report says that "2012 was a banner year for global expansion of U.S. and international law firms." This appears to be the one area where firms are showing strategic judgement.

The report does not have high expections that current management in U.S. law firms takes these changes and their implications for the legal profession, seriously. They cite a"2012 law Firms in Transition Survey" by Altman Weil, that while 90% of managing partners recognized these trend as permanent. Many partners at firms "...have shown only a low level of seriousness about changing.

The report opened with reference to what Hernando Cortez told his soldiers to  do, to insure that they would not be able to go back on confronting  the indigenous population - "burn the ships".  In other words, removing the safety net and fundamentally changing your options, may be required to deal with a new reality.

It still appears that many in the legal profession are still just bailing water with no vision to fundamentally re-structure what they are doing on their "ships".

Trusting Online Law - UELMA Has A Way To GO

In a recent posting on the blog of the Canadian legal news web site, Slaw, Judith Gaskell, former Director of the Law Library of Congress and former Director of the DePaul Rinn Law library, wrote about the present status of UELMA ( Unifrom Elecronic Materials Act ) .

UELMA was drafted in response to a request from the American Association of Law Libraries (AALL), following the AALL’s 2007 National Summit on Authentication of Digital Legal Information. She reports on it's introduction into the legislatures of several states and it's adpotion by two of these. She also briefly descibes the basic requirements under the act.

Working through the National Conference of Commissioners on Uniform State laws ( Uniform Law Commission ), advocates develop uniform state laws that can eventually be introduced to states for their adoption. Much work and discussion goes into the creation of such an act. And much publicizing and lobbying is required to gain adoption. UELMA is only five  pages long. But the fact that the Commission has dedignated UELMA as  a "uniform law", attests to the importance it attaches to the issue.

“The Uniform Electronic Legal Material Act establishes an outcomes-based, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in a law book.” The Act itself covers three critical areas: authentication, preservation and public access."

Sections 5 and 6 of the Act cover authentication. Section 5 requires the state to insure that  the record received by the user is unaltered from the official published record . Section 6 ceates a presumption that the authenticated record is accurate and can only be challenged by a preponderance of the evidence. Section 8 deals with public access.

The need for legislation like UELMA became clear as more and more states began publishing legal information electronically and also beginning to discontinue their print publications containing this information. For the purposes of public information and for use in litigation, questions arose regarding the staus of such electronically-published materials. Could they be relied upon as accurate and official versions of the former hard copy sources ?

The application of UELMA in several states, that have introduced it, covers several main sources of legal information : the state constitution, statutes & codes, session laws, agency rules. But intermediate documents in the law-making process, such as bills, amendments and proposed rules are not included. Judicial opinions may also not be included , usually in defrence to the judicial branch, on separation of powers considerations.

Section 8 of the uniform act provides for permanent public access. However, given some of the language of this section there is room for  discretion in implementation by the states. The standards state that legal materials should be " reasonably available" and  would allow for the removal of such material under "reasonable conditions".

Under these standards the format and interface used to distribute the information online, could actually impede public access. Materials that are suppose to be retained permanently, could still be removed. Even fees for public access could be implimented under this wording.

There is another aspect of "public access" that was not meant to be part of UELMA but that is worth mentioning since it may become of increasing importance in the future. The federal government has been providing freely accessible data sets from many of its agencies for use by non-profit and for-profit entities, to use to create new applications and information products for the public and the marketplace.

UELMA was not written to address this secondary form of "public access" in the context of the states. Advocates of greater public access would hope that the  state agency or official named as the “official publisher”, according to the law, would be aware of and amenable to providing access to this type of data for reuse, as well as the traditional versions of the text of laws and regulations.

If You Missed Justice Sotomayor at HWLC Last Night

Justice Sotomayor spoke last night at Harold Washington Library Center (HWLC) as part the book tour for her biography, "My Beloved World" .  She is the first Hispanic and third woman appointed to the United States Supreme Court. Her  book tells the story of her rise from a tenement to her entry into service as a federal judge in 1992.  Chicago Mayor  Emanuel introduced her to a sold-out crowd in the Winter Garden of the HWLC.

If you were unable to attend her presentation, the Chicago Public Library will probably make the audio of her remarks available online soon. But until then, there is an hour plus interview with Justice Sotomayor from Tuesday Jan. 29, available online for listening and /or downloading from the public radio web site of KPCC in Los Angeles. The interview was conducted by Patt Morrison who is a longtime reporter and columnist for the Los Angeles Times and  a regular commentator on National Public Radio's "Morning Edition".

Link to the interview webpage with links to listen or download the audio of the interview.