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Authors

Abstracts

Title of article: Evolution and the Specialist's Dilemma: Legal Information and the Increasing Demand for Foreign, Comparative, and International Legal Research Skills
Author's Name: Kristina J. Alayan
Author's Title and Institution: Foreign & International Law Reference Librarian and Lecturing Fellow, Goodson Law Library, Duke University Law School
Abstract: In both academic and private law libraries, foreign and international legal research skills are in high demand. Indeed, skills ordinarily associated with foreign, comparative, and international law (FCIL) librarians are now appearing in job descriptions for general reference librarians. This response should come as no surprise given the increasingly globalized nature of the legal profession. However, it brings to light some perplexing responses in the law library profession as libraries struggle to find the skills necessary to meet their users' needs. This article considers the challenges libraries face finding law librarians with sufficient skills in this area of legal research, as well as possible solutions that address the need to better integrate reference librarians who are not specialists by training, the evolving role of FCIL specialists, as well as how to cultivate future leaders in the FCIL sphere.
LiiLP Faculty: Michael Chiorazzi
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Title of article: Wag the Data: Building a Better U.S. District Court Database for More Meaningful Empirical Research
Author's Name: Jane Bahnson
Author's Title and Institution: Reference Librarian, Goodson Law Library, Duke University Law School
Abstract: The perception that for a particular claim, plaintiffs "always lose" or "always win" their cases in federal court makes federal court decisions an attractive target for statistical studies. Interest among empirical researchers in studying the opinions of federal trial court judges has been particularly high because they are the front line in implementing new judicial tests or interpreting new statutory mandates, and many researchers like to ground their conclusions on empirical data because it gives any study an extra measure (or at least the semblance) of validity. Courts and legislators have relied on empirical studies for everything from striking down video game restrictions to modifying court rules, so the stakes are high for researchers to get them right. However, statistical conclusions are only as good as the data they rest on, and building a truly representative database of federal trial court opinions has been a long-standing challenge. This study surveys and critiques some of the methods researchers have used to compile federal trial court opinion databases for empirical studies and evaluates the advantages and drawbacks of each. The results of two small pilot studies of the efficacy of using keyword searching of PACER dockets through Bloomberg law's docket search template to assemble federal district court databases are reported. The article concludes with a discussion of the advantages and limitations inherent in compiling federal district court opinion databases and discusses the potential for broader use of docket keyword searching to improve their representativeness.
LiiLP Faculty: Janet Sinder with Guangya [Ya] Liu
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Title of article: The New Path for Law Libraries and Government Information
Author's Name: Catherine M. Dunn
Author's Title and Institution: Head of Reference Services, University of Connecticut School of Law Library
Abstract: Law Libraries have a long history of serving as one of the primary gateways to government information in the United States. Since the advent of the digital age, access to government documents is no longer tied to a physical location, so entities other the libraries may now enter the field of those providing access to such materials. Due to a dramatic increase in "born digital" materials - as of early 2013, 97% of federal government documents originate in a digital format - law libraries simply cannot maintain the traditional print-based structure for distributing, retaining and preserving documents. This article addresses the role law libraries should play as a gateway to government information going forward. It begins with a discussion of the historical role of libraries with regard to government information, and the issues brought by the digital age, before proposing suggestions for how law libraries can remain relevant and add value as access points for government information in the face of these changes.
LiiLP Faculty: Kent Olson
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Title of article: Pop Goes the Legal: Using Pop Culture Content in Legal Instruction
Authors' Name: W. Robert Farmer and Hollie White
Authors' Title and Institution: (White) Digital Initiatives Librarian, Goodson Law Library
Duke University Law School; (Farmer) Acting Director, Jones School of Law Library
Abstract: The perception and use of pop culture in the legal instruction community is a topic that is yet to be addressed. Much of the previous research in this area can be categorized in two ways, as identifying pop culture references that have a legal theme or reporting case study-like success stories about using pop culture as a teaching tool.
In order to fill this gap, a study focusing on popular culture and legal instruction was conducted that examined the benefits and drawbacks of using pop culture as a legal instruction tool. This article begins by exploring the definitions of pop culture both in and outside of the legal community. Next, it reviews ways that fields outside of law have discussed pop culture as a teaching tool. This is followed by a review of pop culture themes within legal literature. The next sections report and analyze results from the 2011 empirical study by focusing on the use of pop culture content for legal instruction. It includes analysis on how frequently pop culture is being used in the classroom; if it is considered a useful teaching tool; and what factors encourage or discourage its use.
LiiLP Faculty: Janet Sinder
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Title of article: Accommodating Conscience in the Library: Codes and Convictions in the Digital Age
Author's Name: Ron Fuller
Author's Title and Institution: Associate Director, Faculty and Instructional Services, Hall Law Library, Washington and Lee University
Abstract: AALL, ALA and other library organizations maintain ethical codes that require a distinction between "our personal convictions and professional duties". This sweeping mandate forces librarians, in some circumstances, to choose between their moral conscience and their professional ethics. While in the past, a librarian's role as guardian and gatekeeper of information may have necessitated such a stance, today's research environment requires a fresh look at the costs and benefits of this position.
This article reviews the information science literature and historical development of these codes both in the United State and abroad. It will also discuss the ethical codes of other professions that deal with similar conflicts and compare their resolution of the issue to the library codes. Also considered are conscience exemptions in the context of current controversies such as abortion and same sex marriage. Relying on these examples I propose a narrowly tailored conscience exception to the broad rule that would work to alleviate most of the conflict librarians may face, without significantly impairing patrons needs.
LiiLP Faculty: Michael Chiorazzi
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Title of article: Copyright Information Queries in the Health Sciences: Trends and Implications from Ohio State University
Authors' Names: Anne T. Gilliland and Pamela Bradigan
Authors' Titles and Institutions: (Gilliland) Scholarly Communications Officer, University Libraries
The University of North Carolina at Chapel Hill; (Bradigan), Director of the Health Sciences Library Ohio State University
Abstract: This paper presents the results of data gathered at an academic health sciences library on copyright questions asked by faculty, students, and staff over a period of almost six years. The data collected was coded at the time the questions were asked and included questioner's status and field, the subjects covered, the types of use the questioners make of material, the mode of questioning, and the length of time it took to answer the questions. The authors analyze the data, present some conclusions about copyright information and education needs in a university health sciences environment, make recommendations and identify areas for future study and action.
LiiLP Faculty: Lolly Gasaway with Guangya [Ya] Liu
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Title of article: Copyright's Standing Balance
Author's Name: David R. Hansen
Author's Title and Institution: Digital Library Fellow, Samuelson Law, Technology & Public Policy Clinic, UC Berkeley School of Law
Abstract: Determining who has access to the courts in a given action is a fundamental task of the judiciary. In copyright litigation, the rules of standing-i.e., the rules that determine whether a party has the right to judicial review-have recently come the forefront in a series of cases regarding the ability of third parties to bring suit on behalf of copyright owners in the context of mass digitization. Though it is an uncontested issue in most copyright cases, this paper argues that the rules of standing can sometimes form an important part of the careful balance of users' and owners' rights that is embodied in the Copyright Act. Unpopular in the literature and a seldom litigated in practice (though this trend is changing), the rules of constitutional, prudential, and statutory standing are relatively unclear in the copyright context. This paper focuses narrowly on the issue of standing and outlines what we do know about doctrine in copyright litigation. The paper argues that there are good reasons to construe these rules should be read narrowly to carefully apportion access to the courts only to those litigants with a real interest in the copyrighted works in question. More specifically, this paper argues that third-party, "associational standing," expands beyond what Congress intended, at least when that standing is presumed by the courts in the absence of an initial showing of proof by associations that their members actually hold copyright interest in the specific works in question.
LiiLP Faculty: Anne Klinefelter
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Title of article: Citation to Unofficial Sources for Legislative Material: Benefits and Pitfalls
Author's Name: Todd T. Ito
Author's Title and Institution: Reference Librarian & Lecturer in Law, D'Angelo Law Library
The University of Chicago
Abstract: A traditional subject of doctrinal legal scholarship is analyzing a new statute or a proposed change to an existing statute. Therefore, scholars must often cite to proposed legislation and other material related to the legislative process. For such material, the Bluebook requires citation to the Congressional Record or to the documents themselves. While these sources should be sufficient for citations to documents such as bills and vote counts, many legal scholars have chosen to instead cite to unofficial, non-governmental sources, such as GovTrack.us (https://www.govtrack.us/). Since its inception in 2004, GovTrack.us has been cited in almost one thousand law journal articles. GovTrack.us is published by a non-profit organization that is unaffiliated with the federal government, so citation to GovTrack.us raises concerns about permanent public access and authenticity, as well as questions about the nature of public access to primary legal information. On the other hand, there is evidence to suggest a movement toward more liberal citation standards, especially for online resources, reflecting the way scholars actually conduct their research. This paper investigates the ways that scholars have cited to GovTrack.us and reviews the potential pitfalls and benefits of citing to such unofficial sources.
LiiLP Faculty: Kent Olson
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Title of article: Locked Collections: Copyright and the Future of Research Support
Author's Name: D. R. Jones
Author's Title and Institution: Assistant Professor of Law, Associate Dean for Information Resources and Law Library Director at The University of Memphis Cecil C. Humphreys School of Law
Abstract: Researchers in institutions of higher education depend on access to the scholarly record for their work. Academic libraries play a critical role in supporting this research, but cannot own all the materials that researchers need. These libraries depend on interlibrary loan to support research. As academic collections shift to primarily electronic format, research support is in jeopardy. Copyright holders have bypassed copyright law through use of licensing and contract to control electronic works. These agreements limit or prohibit interlibrary loan and other means of research support. As predominately digital library collections increase, libraries may find that they have locked collections. They will be unable to lend or to borrow.
This paper examines how increased reliance on e-collections impacts the ability of academic libraries to support research. It explores and assesses various approaches that libraries can pursue to ensure research support. The paper urges that libraries actively pursue agreements that reinforce their mission to support the creation, dissemination and preservation of knowledge. At the same time, libraries must be agents of change, serving as active participants in the transformation of the scholarly communication system.
LiiLP Faculty: Janet Sinder
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Title of article: Signing Away our Right to Know: Environmental Contractors and the Freedom of Information Act
Author's Name: Sarah Lamdan
Author's Title and Institution: Research Librarian and Associate Law Library Professor, CUNY School of Law
Abstract: The international community puts information access at the pinnacle of plans for environmental sustainability. The June, 2012 Rio +20 Conference (a United Nations conference on the Rio Declaration of 1992), themed an Institutional Framework for Sustainable Development, deemed information transparency vital to environmentalism. The conference reaffirmed Principle 10 of the Declaration, which states that information access is necessary for environmental protection.
Even as the international community embraces transparency as a tool for environmental progress, environmental information is becoming less accessible in the United States. While the international transparency plan has its roots in the United States' Freedom of Information Act (FOIA), which requires federal agencies to make information available to the public, the FOIA is being hollowed as contractors take over traditionally regulatory roles. Swaths of information slide away from FOIA's realm into the hidden protected world of contractor practices.
This paper explores the impact of government contractors on environmental information transparency. Part I of this paper explores the effects of government reliance on outsourcing on information transparency, especially in light of potential agency capture, regulatory slippage, and failure to address market failures. Part II of this paper compares environmental law transparency to national security law transparency, which has been widely discussed in legal literature, and can offer solutions to the environmental transparency issues. Part III proposes possible solutions to transparency issues in situations that impact the environment.
LiiLP Faculty: Dick Danner
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Title of article: A View From The Flip Side:" Using the "Inverted Classroom" to Enhance the Legal Research Information Literacy of the International LL.M. Student
Author's Name: Catherine A. Lemmer
Author's Title and Institution: Head of Information Services, Head of Information Services, Ruth Lilly Law Library, Indiana University Robert H. McKinney School of Law
Abstract of Article: International students enrolled in LL.M. programs in U.S. law schools come to the programs with a wide variety of legal experience. As part of their introduction to U.S. law, students take a legal research course to prepare them to competently (i) undertake the research necessary to complete a master's thesis, and (ii) perform legal research in clinics, internships, externships, and U.S. law firms and legal departments.
The "flipped" classroom pedagogical model is a better model to use for developing legal information literacy in international LL.M. students than the traditional classroom model. This article begins with a discussion of the flipped classroom and recent research findings regarding the model's pedagogical effectiveness. Second, it examines the elements to consider when designing a legal research curriculum and provides a discussion of legal information literacy and its primacy in curriculum development. Next, it examines the flipped classroom model's response to pedagogical needs in the legal education context. Last the article presents the author's experiences in implementing the flipped classroom to teach legal research in an international graduate law program and offers guidance to others seeking to use the flipped classroom model to teach legal research.
LiiLP Faculty: Steven Barkan
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Title of article: Examining the Failure of Section 108 and Possibilities for the Future
Author's Name: Kelly Leong
Author's Title and Institution: Reference Librarian and Lecturing Fellow, Goodson Law Library, Duke University Law School
Abstract: Copyright has limited statutory exceptions to the otherwise exclusive rights granted to creators. In recent years, these statutory exceptions, most notably fair use and first sale, have been used by universities and their libraries against lawsuits brought by right holders. The statutory exception created by section 108 for libraries and archives has noticeably been absent from legal arguments. Section 108 never became a well-used defense to copyright infringement claims. This paper will examine section 108, why it has failed to garner use, and whether there is a better method for creating exceptions for libraries and archives. In exploring section 108, this paper will review the statute through legislative history, along with revision attempts, and other statutory copyright exceptions. Beyond the statute itself, the paper will examine section 108's efficacy in the context of changing trends and needs in libraries and cases that have recently been decided in the federal courts.
LiiLP Faculty: Lolly Gasaway
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Title of article: Informing the People's Discretion: The First Exemption to FOIA as a Case Study
Author's Name: Susan Nevelow Mart & Tom Ginsburg
Author's Title and Institution: (Mart) Associate Professor and Director of the Law Library, University of Colorado at Boulder; (Ginsburg) Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar and Professor of Political Science, University of Chicago
Abstract: This article examines deference, over-classification, and illusory agency expertise in the context of the national security exemption to the Freedom of Information Act. Over-classification and pseudo-classification result in agency denial of FOIA requests that should in fact be granted. But judges are reluctant to second guess the government, even after a 1974 amendment to FOIA that granted courts the authority to conduct de novo and in camera review of government claims that the information requested was secret and properly classified. The most influential court in FOIA cases, the D.C. circuit, has generally declined to take an active role in oversight of agency assertions that national security classification prevents the agency from providing documents in response to a FOIA request. But not always.
This article suggests that there is overwhelming evidence that agencies do not in fact properly classify documents, instead acting from an agency subculture of secrecy and the bureaucratic fear of embarrassment. And judges hear the same news as the rest of us. So the endless emphasis on living in a state of national emergency subjects judges to the cognitive bias that favors overestimation of risks. This further tilts decision making towards national security secrecy and away from civil liberties and access.
To illuminate how the court has balanced national security and civil liberties, this article includes an empirical investigation into the decision-making of the D.C. Circuit, to determine what, if any, factors favor document release.
LiiLP Faculty: Lolly Gasaway with Guangya [Ya] Liu
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Title of article: Up in the Clouds: Forecasting Legal Educational Privacy Considerations in the Digital World
Author's Name: Kari Mattox & Jennifer Wondracek
Author's Title and Institution: (Mattox) Assistant Dean for Student Affairs at the University of Florida; (Wondracek) is the Head of Research & Faculty Services at the University of Florida
Abstract: Attorneys have long acknowledged a duty of client confidentiality. As technology has rapidly changed in the last ten years, bar rules and legal literature have struggled to keep up. In the last two years, however, a strong trend has arisen to discuss and answer questions that arise about the ethics of using new technologies with client files and other confidential materials to protect the privacy of clients. That same issue has not been discussed in legal education, however, when dealing with confidential student records that are protected by laws such as the Family Educational Rights and Privacy Act (FERPA), as well as state statutes. This paper will look at whether new technologies - such as online storage systems like Dropbox, vendor provided course management systems like TWEN, and email systems that can now be accessed anywhere - which are being used in legal educational settings are FERPA compliant and are safe in protecting the privacy of students. The paper will close with some suggestions on how to balance technology use with safe FERPA and privacy practices.
LiiLP Faculty: Anne Klinefelter
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Title of article: Occupy The Bluebook: The Bluebook's Preference for Print Is Unsustainable
Author's Name: Sara Sampson
Author's Title and Institution: Deputy Director, Kathrine R. Everett Law Library, University of North Carolina
Abstract: The Blubook's devotion (and requirement) to using and citing print resources is no longer sustainable. Although lawyers, law professors, law students and law libraries have adapted to the electronic revolution in legal research at different paces, the revolution has occurred. It is time for the Bluebook and other legal citation manuals to recognize this revolution and encourage legal researchers to cite to the resources that they use online because the costs of its preference far outweigh the benefits. These costs include (1) the cost of libraries purchasing and maintaining print materials that may be used mainly for citation purposes or obtaining copies of such materials from other libraries, (2) time spent finding a print copy of the material by the researcher or by the journal staff so that they can craft a proper citation, (3) time spent translating a citation to a print version to a citation or search that will find the version the reader prefers, usually electronic, (4) costs to academic integrity when writers cite to the version of resources they may never have seen, (5) and lost opportunities.
LiiLP Faculty: Michael Chiorazzi
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Title of article: The Legal Digest in the Open Access Era: A Significant Gap in Freely Available Legal Research Tools
Author's Name: Nina E. Scholtz
Author's Title and Institution: Digital Resources Librarian at Cornell University Law Library
Abstract: Although American case law is freely available online for full-text searching, thorough legal research demands access to subject-based finding tools as well. Leading finding tools, such as the American Digest System originally developed by the West Publishing Company and Lexis's more recently developed rival headnote system, are available online only in expensive subscription databases. Moreover, increasing numbers of public-access law libraries are canceling their subscriptions to print digests. An open access, electronic, subject-based finding tool would fill a significant gap in existing legal research tools, but the likelihood of the stakeholders creating such a tool is low.
LiiLP Faculty: Dick Danner
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Title of article: A New Direction For Preservation: How Should Libraries Maintain State Primary Legal Materials In A Digital World?
Author's Name: Leslie Street
Author's Title and Institution: Assistant Director for Public Services, Kathrine R. Everett Law Library, University of North Carolina
Abstract: This paper explores current efforts being made to ensure preservation of historical primary state legal materials and limitations of these efforts. It addresses whether digital initiatives are sufficient to ensure adequate preservation in the future, and concludes that the best approach forward for preserving our state legal information is for law libraries to engage in collaborative preservation programs.
LiiLP Faculty: Steven Barkan
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