My apologies to everyone who will be ticked off at my copying a message
from the lawlibdir list to here. (It was forwarded to me by a member of
that list.) I think, however, that this topic, and particularly
President Fessenden's response, warrants general distribution and
discussion. Personally, I appreciate Ms. Fessenden's concerns, and
accept the explanation. I also feel that it is far too timid a response
which has resulted in the censorship of the membership.
John
> -----Original Message-----
> Sent: Monday, November 05, 2007 9:52 AM
> To: lawlibdir@lists.washlaw.edu;
> Subject: [Lawlibdir] Ann Fessenden's second message
>
> Dear Law School Directors,
>
> I appreciate hearing from several of you the last few days, and even
> though the Board will be discussing your concerns at its meeting this
> week, I felt that I needed to address one matter with you even before
> the Board meeting. First, I'd like to state, unequivocally, that
> AALL is NOT making decisions on the basis of concern for adverse
> reactions from any vendors.
>
> Some decisions which may have the appearance of being based on
> concern about vendor reaction, have in fact been made on the basis of
> advice from AALL's legal counsel. According to her, as an
> association, AALL is subject to the principles of federal and state
> antitrust law (primarily the Sherman Antitrust Act, which prohibits
> collective action in restraint of trade).
>
> She has advised us that the most significant area of antitrust
> concern for associations is price-fixing. Price-fixing in the
> association context she has indicated is broadly construed to include
> any concerted effort or action that has an effect on prices, terms or
> conditions of trade, or on competition. Accordingly AALL cannot
> sanction programming, publications, or other communications which may
> provide the basis for an inference that members agreed to take any
> action relating to prices, services, production, allocation of
> markets, boycotts, refusals to deal, or any other matter having a
> market effect.
>
> The AALL attorney has also advised that our programs and publications
> are not public forums for purposes of free speech, and that AALL is
> responsible for statements made by speakers at our programs and in
> articles in our publications. Two decisions which have been based on
> this advice included cancellation of an SCCLL-SIS program on legal
> publishing (program description included "boycotts" as a possible
> member response to price increases) and some changes that were made
> in a CRIV Sheet report on New Orleans program A3, "Legal Information:
> Globalization, Conglomerates and Competition: Monopoly or Free Market."
>
> While this concern for antitrust is ironic and frustrating in the
> face of the shrinking competition among legal information vendors,
> our legal counsel has expressed considerable concern about
> AALL-sanctioned activities or articles which might be interpreted to
> encourage boycotting, refusing to sign contracts etc. Therefore some
> decisions have been made on the basis of her advice to avoid such
> activities. While one might argue that the advice goes too far, the
> AALL leadership feels that ignoring the advice of our counsel would
> be irresponsible and would violate our fiduciary duties to the AALL
> membership.
>
> I encourage you to contact me, Executive Director Kate Hagan, or
> members of the Board with any specific questions or concerns you may
> have. This week my response may be delayed, as I'll be traveling and
> involved with Bob Oakley's Memorial in Washington and then Board
> meetings in Chicago, but I will get back to you as soon as
> possible. Thank you very much.
>
> Ann Fessenden, AALL President
>
> ann_fessenden@ca8.uscourts.gov 314 244-2660
>
>
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-- ****************************************** John P. Joergensen Librarian II Rutgers University School of Law - Camden e-mail: jjoerg@camden.rutgers.edu ******************************************
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