This was my first commencement ceremony (aside from Kinderfarm). I never graduated from high school, and didn’t attend graduation for my BA. Given that I was therefore counting on the cumulative emotional payoff of all those ceremonies at once, this one was pretty great. Our speakers were excellent, one of my favorite profs “hooded” me, and I did not fall over or pass out. Onward to the bar exam!

• Clinic, where we read books and do work on our computer.
• Got fingerprinted
• Test. Test of death.

Regrettably, Kaplan is treating BARBRI’s potential sale as an opportunity to sow fear, uncertainty and doubt in the minds of law students like you. It’s unfortunate they’ve chosen this sort of marketing tactic, since they know that BARBRI has changed ownership twice before with no change to the BARBRI course.

The only reason I received the email was because I signed up for information about Barbri’s free MPRE prep course last fall. I never received the information (though I did get an email saying I would soon receive the information), probably because I checked the box for an online course and there wasn’t one available? Who knows.

Anyway, I haven’t decided how I’ll be preparing for the bar exam, but this really grown-up message makes me think Kaplan or some other company will be getting my money, not Barbri.

Defamation, or Competitive Fun?

More fun than thinking about barzam prep is considering the question of whether or not Barbri’s statement about Kaplan could be libelous.

First, let’s review the elements of a defamation claim (as taught to me by Professor Nick Johnson):

1. A Statement
2. To which meaning can be ascribed which is
3. False and
4. Can be found to be defamatory
5. Of and concerning the plaintiff
6. Uttered by the defendant
7. Published to third party
8. Causing harm to the plaintiff’s reputation
9. In the plaintiff’s community.

Add on the requirement of “actual malice” (intent to do the harm), and Kaplan just might have a case.

Let’s parse it out: The statement is in the email, which, let’s assume for argument’s sake, has been sent to thousands students who are enrolled or who plan to enroll in bar exam preparation courses. The meaning is clear: Kaplan is trying to upset you, students, even though they know nothing will change in our Barbri course if we’re sold.

Falsity is one touchstone of this issue: first, is Kaplan sowing fear, uncertainty, and doubt in the minds of law students? (I, for one, am not afraid, uncertain, or doubtful as to the effects of Barbri’s sale, and I’ve read what Kaplan’s publicly saying about Barbri.) [UPDATE: thanks to a Twitter friend for directing me to the email Kaplan sent that elicited the questionable response.] Did Kaplan know “that BARBRI has changed ownership twice before with no change to the BARBRI course”? That’s a tougher proof question, but it’s the best basis of a claim, if Kaplan were to go there; the issue of fear seems more opinion-y than factual.

On the remaining elements, it’s pretty straightforward to conclude that these statements could be defamatory (harmful to Kaplan’s reputation), that they were about Kaplan (I didn’t see any other point to the message besides this message about Kaplan), that they were uttered by Barbri (published under the Barbri banner logo and from a barbri.com email address), and that they were published to third parties (law students like me).

The question of harm caused is a big one. What’s the harm? Ultimately it’s lost revenue from law students who would have paid Kaplan for bar exam prep, but for this message from Barbri about Kaplan’s unsavory marketing tactics. But is Kaplan’s reputation actually injured by this email? Perhaps not. As I mentioned, the low-blow tactics of Barbri in sending the message actually improved Kaplan’s reputation, especially relative to Barbri’s, in my mind. The question is if enough other people in Kaplan’s community (which is itself an issue: is this just consumers? Other bar exam preparation companies? Giant educational publishers?) are looking down on Kaplan for all this fear, uncertainty, and doubt it’s sowed.

Finally, actual malice is pretty apparent. I can’t conceive of a reason for sending this email except to inflict harm on Kaplan’s reputation and thereby its ability to collect test prep revenue from students in a (albeit large but) limited market.

My advice to Barbri: suck it up. Things are competitive enough out there. We students don’t need entities like you acting like or responding to playground bullies. We’ve got enough fear, uncertainty, and doubt about our futures to go around.

Posts I’ve written lately, elsewhere:

• Law Students: Make the Most of Your Winter Break Networking on Lawyerist
• Maximize Your Law School GPA on Lawyerist
• Legal Research Year in Review on Spindle Law Blog
• A New Kind of Cheeseburger on Spindle Law Blog
• Bonus! Link post to an article about me in Minnesota Lawyer on Bradley & Guzzetta Blog

I know, you can comment here on all five—that’s why this post is useful to you! Whew.

If you’re looking for Social Media Best Practices…

Law students are notoriously busy. But so are young lawyers. Making a habit of volunteering now will ease the transition to later professional public service. To prepare for dedicated pro bono work, law students should:

• Review current interests and hobbies to see how volunteer legal service could serve charitable causes in those areas.
• Realize that pro bono work can mean taking on individual clients or working on policy-level or organizational improvement.
• Use the resources at your school to find out what you can do to help. (Here are some examples of schools doing it right, from PSLawNet.)
• Make time to volunteer. Now.

I was recently faced with a state agency that wanted to conduct a rulemaking to help a small class of underserved people. But the issue was relatively rare and narrow, and the agency has much bigger fires to fight every day. I was told outright that the problem was one of priority, and this issue might never make it to the top of the list. When I asked what I could do to help, I was told, “Intern at our office.” This was said in jest, but it got me thinking. This is just the kind of project that I, as a future lawyer with a moral and professional commitment to volunteer legal work, could probably accomplish in about 50 hours…

Thanks to Kate Bladow for asking me to blog about pro bono this week.

I didn’t take issue with the idea that having a device that lets you check in (and thereby check out) any and everywhere blurs the line between work and non-work. It is really hard not to take just one more minute to respond to the boss, whether to get her off your back or to prove you’re “working” at 2:00 am. What’s missing to me from this argument, though, is the admission that being connected can really make you more efficient. Knowing that I can respond to a quick question or submit an assignment from anywhere is what gives me the luxury to head out on a sunny afternoon with my daughter, or enjoy the longer walk with my dog.

The problem is not the technology, the problem is will power. We’ve always had to decide how much work to leave at work, how many relationships to cordon off for nine to five or weekends only. It’s true that there is some selling out involved in buying a pricey cell phone contract and committing to a proprietary piece of hardware. But once the device is in hand, it’s not inherently evil. It just takes some self discipline to know when not to twitch at every blinking notification light or tiny vibration. At least that’s what I tell myself. And, since my supervisor fessed up to owning a cell phone so I could contact him about important developments in a case, I would guess he would agree.

The truth? Who knows. But Google is smart to determine what it might need to pay to push its content to the top of consumers’ pipes if broadband access remains mostly unregulated. Especially when Verizon is paying the most to bend the ears of those in power.

Confusion arises when people (read: professional journalists) take the rather vague term of “network neutrality,” as is bantered about by lobbyists (read: Google) and embrace the vagueness for the sake of making a story. Today, it’s that Google, one of the world’s biggest internet content providers, is talking with Verizon, a major broadband service provider and Google’s primary handset-based internet access provider, about how Google can ensure its services are delivered to its consumers. Framed that way, the talks make perfect sense. (Remember: Google is now, always has been, and will continue to be, paying someone to get its content from one end of the internet to the other. This is just a question of whether Google can pay more to get better service.)

Wikipedia can tell you what net neutrality is. Net neutrality is not the law. It is a very nice idea that would require a major political commitment by our government to subvert free market principles in broadband access. I’m looking for where Google swore it would never plan for what happens when our government lacks the political will or simply lacks the legal authority to enforce net neutrality for Google’s benefit. I don’t think I’ll find such a promise.

Until Congress gets the courage to enact something to prevent such lawful collusion, or the FCC solidifies its stance with legitimate rules, this is exactly the kind of behavior we should expect from Google and its content and delivery brethren.

Bottom line: this is capitalism at its finest. If you want to protect the internet, you’ve got to be willing to have the government step in. Net neutrality is a socialist idea. I am comfortable with that. The New York Times clearly is not.

What caught my attention earlier today was the discussion from the Economics of Interface: Vendors Respond session. You can get a feel for it through Greg Lambert’s tweets, starting here and Meg Kribble’s starting here. The gist that interested me was that Westlaw (here, in the form of WestlawNext) and LexisNexis representatives were recycling content and information about product upgrades that everyone has heard before. But Fastcase was unveiling new research features and talking researching scholarship. Telling was Sarah Glassmeyer’s characterization of Ed Walters as a third-party candidate in a political debate. (Ed is founder and CEO of Fastcase, which I’ve written about before.) Westlaw and Lexis came off like the big-party candidates with canned non-responses, while Fastcase was there to actually discuss the issues.

My interest has always been piqued by horror stories of legal research pricing. I appreciate that every company must make money to survive, but, as a long-time public servant, I’m put off by anyone who’s willing to capitalize so much on information that’s created with public money (statutes, case law, and much legal scholarship).

So what makes Fastcase different? First, it is very open about pricing, and about what’s included in a given price. Compare that to WestlawNext’s gymnastics to keep pricing out of new product discussions. Second, Fastcase is a small company, with leadership that’s extremely approachable (Ed responds to tweets and phone calls promptly and personally). It also doesn’t hurt that Fastcase had positioned itself well in the eyes of some AALL attendees before the vendor session. Finally, Fastcase is willing to innovate for the sake of better research — and not just by creating a Google-esque interface, which WestlawNext’s primary improvement, from my perspective as a novice researcher. Fastcase’s four dimensional search visualization really is useful, and it’s brand-new Forecite feature will bring together the purposefulness Fastcase’s interface design with the common-sense usability of a Google keyword search. (Though Ed Walters might have overstated Foresite’s gravity just a bit; pretty sure Google beat ‘em to this with “did you mean.” But still awesome.)

Thanks to the AALL tweeters for delivering insightful perspectives on the rapidly-changing landscape of legal research.