University of Louisville Law Faculty Blog
A recent article in the Nebraska Law Review by University of Kentucky Nicole Huberfeld applies Brandeis' classic treatise against interlocking directories in a look at the management of nonprofit healthcare compaines. "Other People's Money" and other aspects of Brandeis' economic philosophy has been getting a lot of bashing from Chicago School economists and legal theorists so it's nice to see that some people still see it's relevance.
Nicole Huberfeld, Tackling the "Evils" of Interlocking Directrories in Healthcare Nonprofits, 85 Nebraska L.J. 681 (2007).
You can download it here:
Other People's Money is also available on the internet:
In my most recent blog entry, I said that digital information is more attractive and user-friendly than traditional media, especially print. Let me clarify. In Legal Research, we teach students that print and electronic sources are both useful, and that sometimes print sources are actually easier to use than electronic. My comment really meant to reflect the perception of many students. We are now teaching a generation of students who have principally performed research online, and seldom, if ever, using print. We often hear students ask if we really expect for them to perform research assignments using books. (Assignments require use of both print and databases.) Because of this, I was surprised when Prof. Barbara Bintliff, law librarian at the University of Colorado, sent a message through the law library directors' listserv that says that as part of a review of their legal writing program, she heard students request more instruction in using print resources. They indicated that their clerking experiences led them to use books much more than they thought they would. This was followed by several messages from other directors who agreed with Prof. Bintliff and said that their students also wanted more instruction in print. Prof. Richard Leiter at the University of Nebraska suggested that libraries that were over-zealous in replacing print sources with electronic would ultimately regret it.
I agree with many of my colleagues that print is still an incredibly efficient way to package and distribute information. There are many instances where it's easier and faster to find information in print, and also easier to place it in context because the hierarchical nature of information is represented in a more apparent fashion in print. That said, who wants to go back to poring over multiple volumes of Sherpard's citators to verify information, or consulting LSAs and Federal Registers to update federal regulations? The real challenge in Legal Research is to somehow convey to students who have grown up with Google that real research takes more than ten minutes to perform, and that much worthwhile information does not flicker on a screen.
The November/December issue of Online Magazine includes an article on the "Top Ten Sites for Researching Music" (vol. 31, no. 6, pp. 15 - 21.) One of the top ten sites is the International Music Score Library Project (IMSLP), which is, or rather I should say was, "a virtual library of public domain music scores" that anyone could contribute to, "with the understanding that scores under copyright cannot be uploaded." As current as this magazine issue is, Prof. Robin Harris of the library staff noticed that the site is already down. I called it up and found online a long open letter. The letter says that the founder and project manager of IMSLP was experiencing two problems. One, he says that he is a college student and he was experiencing difficulties managing the site adequately. This included problems of server maintenance and implementation of new features. Two, he had received two Cease and Desist letters from Universal Edition. I assume that if he is receiving such letters, contributors must have uploaded scores that allegedly are not in the public domain. One problem with wikis of this sort is that the public does not understand public domain. Many people assume that works are in the public domain when in fact they are not. The Project Leader, "Feldmahler," mentions in his letter receiving pro bono assistance from "two outstanding university law teams" and he also thanks a copyright review team, but there is no indication what purpose or function these teams served. Another problem is that this site appeared to require a lot of time and effort, but was apparently run on a shoestring. Feldmahler mentions great efforts on the part of many people, but he emphasizes that he, "a normal college student, has neither the energy nor the money necessary to deal with this issue..." other than to "take down the entire site." "I very unfortunately simply do not have the energy or money necessary to implement the terms in the cease and desist in any other way." Unfortunately, in copyright, many times you get as much justice as you can afford.
This situation illustrates a problem that libraries face every day. If we pay for information in traditional formats, it is not as attractive and user-friendly as it is in digital format. It also takes up a lot of space, and requires effort and money to process and maintain. If we pay for information in electronic form, we don't own and control the media; we're only licensing it. If a company goes out of business, as did IMSLP, or if the information provider decides to change the scope of coverage, then we're out of luck. We can buy the information both in traditional and electronic forms, but if we do that we're using finite resources to duplicate information, which means we aren't providing our patrons with access to the breadth of information that we could.
Brandeis also gets his share of the spotlight in the Dissenters issue of the Journal of Supreme Court History in Jonathan Lurie's article "Chief Justice Taft and Dissents: Down With the Brandeis Briefs!" The article is a preview of Lurie's upcoming biography of Taft and is basically a panegyric to Taft's days as Chief Justice. The article details Taft's efforts to foster unanimity on opinions and the reactions of the other justices--particularly Brandeis-- to those efforts. My favorite part of the article is the picture of Taft and six other justices looking at a model of the new Supreme Court building. The building was Taft's idea and Brandeis was vehemently opposed to it--in fact he never set foot in the office that was created for him. His disgust for the building is pretty evident from the look on his face in the picture.
Brandeis and Taft had a complicated relationship. Political foes (to put it mildly) while Taft was president, they were able to put aside their differences once they were both on the court and they even reached the point where they enjoyed each others' company. Still they often didn't see eye to eye and would often get frustrated with each other. Lurie cites some quotes by Taft on Brandeis but I wish he had included one of my favorite Brandeis quotes on Taft. In the 20's Felix Frankfurter wrote down some notes from private conversations he had with Brandeis. Those notes were later edited by Melvin Urofsky and published in the 1985 volume of the Supreme Court Review. Here's what Brandeis had to say there about Taft:
"It's astonishing he should have been such a horribly bad President, for he has considerable executive ability. The fact, probably, is that he cared about law all the time and nothing else. He has an excellent memory, makes quick decisions on questions of administration that arise and if a large output were the chief desideratum, he would be very good. He is a first-rate second-rate mind."
I recently read Beth Simone Noveck's article Wikepedia and the Future of Legal Education, 57 J. Legal Educ. 3 (March 2007). In it, she discusses teaching law students how to write wikis. She suggests law students are "ideally suited to contribute their newly developed expertise" to substantive wikis. She also suggests using an internal, class-based wiki so that students can learn from each other.
In the past, I have used wikis only as a reader, so do not profess to have expertise in their use. But I am always interested in ideas for teaching legal writing, and this seems like a good one.
I envision using wikis to teach legal writing in the following manner. First, the student writes a short piece, perhaps an IRREAC exercise or a blurb on a legal topic of interest to the student, and posts the piece to a wiki. Next, the student edits someone else's post to a wiki, perhaps the IRREAC of another student or a publicly available post on a topic of interest to the student. Finally, the student returns to the student's original piece and edits it, using the same editing techniques applied to edit another's post.
Another interesting use of a wiki in a legal writing class is that developed by Peter Friedman. He has used a wiki in his legal writing class to have his class compose a checklist for writing a persuasive brief. You can find out about this exercise at http://www.case.edu/pubs/casemagazine/fall2006/Wiki_feature_edit.pdf , and you can view the checklist at the wiki, http://wiki.case.edu/Brief_writing_checklist .
I also envision using wikis as a component of legal writing across the curriculum. Writing and editing wikis is an opportunity to practice concise legal writing that, as discussed in Noveck's article, fits easily into a substantive law class. If students had experience with writing and editing wikis in their legal writing class, they would make the connection with writing across the curriculum.
Moreover, even if students are not writing or editing wikis for class, their use might provide an excellent opportunity for students to practice legal writing, collaborate with others in the legal community, and provide useful information to the public. From time to time, one hears antidotal stories about a student obtaining an employment opportunity because of a webpage. Certainly, writing and editing a wiki might also lead to opportunities. In the future, when I am counseling and speaking with students about writing opportunities, this is one that I will mention.
I had the opportunity recently to read Leah M. Christensen & Julie A. Oseid, Navigating the Law Review Article Selection Process: An Empirical Study of Those with All the Power - Student Editors, 59 South Carolina Law Review 465 (forthcoming 2008) (available at http://papers.ssrn.com/abstract=1002640). I recommend it to students, practitioners, and scholars interested in publishing in law reviews. As a basic legal skills instructor, I was heartened to learn that student editors value interesting and well-written manuscripts. They care about "technical writing including: grammar, punctuation, spelling, citation form, proofreading, and easy-to-read formats."
The methodology used by the authors was to survey student editors and ask them about the selection process used and the factors that the student editors consider. I would like to see a follow-up inquiry. Perhaps someone can convince student editors to record, via Ipod or other recording device, their contemporaneous thoughts as they sit down to review and select manuscripts. This might provide confirmation of the study results, and it might provide other interesting insights.
As an undergraduate major in sociology, I did research which involved interviewing college students about their parents division of labor in the household. While some (rare) students professed that their father and mother equally divided household labor, inquiry into specific tasks sometimes revealed otherwise. For instance, the tasks of planning, organizing, and making lists were often times performed by wives but not included in a facial assessment of the division of labor. These time-consuming tasks actually rendered the household labor less equal than the college student believed. In a similar manner, an inquiry into the actual contemporaneous thought process used by the student editors might reveal some interesting insights.