Ipso Facto – Musings and more

Nearly lost among the online discussion of the antitrust policy proposal are two other issues before the AALL executive board.  The board will consider passing a resolution instructing the Bylaws and Resolutions Committee to revisit the membership categories provided in that governing document. Specifically, the committee is requested to

• review membership categories of similar associations
• draft proposed bylaws to revise membership categories of the current Bylaws
(Section IV. Membership)
• review the rights of members section of the Bylaws (Section IV. 2. Rights of
Members)
• review the Chapters section of the Bylaws regarding compliance with AALL
Bylaws (Section XI. Chapters) and make a recommendation as to whether this
should be a requirement placed on Chapters.

I hope that incoming committee chair Maryruth Storer will offer ample opportunity for member input as her committee undertakes this task.

The board is also planning to discuss a proposal to create policies on the creation of caucuses, a topic which is only briefly mentioned in the bylaws.  The proposal, first presented in a report from 2007 but not adopted then, would set specific requirements for caucus formation.  The 2007 report is set out in full below:

1. That the AALLNET Caucus Registration Form incorporates the following language:
Because Caucuses exist to benefit AALL members through the use of certain
AALL resources, such as AALLNET, CPE funds, meeting space and other
assets, the Executive Board must approve applications for Caucus status.
“Informal groups” may not use AALL resources without Board approval.
Caucus status likely will be granted to membership groups that share one or
more of the following traits:
1. Shared background of members (e.g., Black Caucus of the
American Association of Law Libraries)
2. Shared work environments (e.g., Federal Law Librarians Caucus)
3. Shared professional interests (e.g., Document Delivery Caucus)
4. Those that arose from the work of an AALL Special Committee (e.g.,
the Publishing Initiatives Caucus)
The proposed Caucus must demonstrate how the group’s objectives will
further the objectives of the Association (e.g., by networking among
colleagues who have the same ethnicity, age, work environment or similar
professional interests, Caucus members will be better able to share
experiences that will assist them in becoming better law librarians). While
there is no set number of members that a group must have in order to be
granted Caucus status, the Board may consider whether the proposed number
of initial members would be sufficient to carry out the Caucus’s objectives.
The final decision regarding the application of Caucus status is at the
discretion of the Board.
To apply for Caucus status, complete the following form to send to the Board
for its next scheduled meeting. A Board Member will notify you following the
meeting.
2. That the SIS Handbook and this page in the SIS section of AALLNET
(http://www.aallnet.org/sis/organization.asp) be modified at the next available
opportunity by the SIS Council Chair to conform to the above-stated principles.
3. That the Board convene a meeting of Caucus Chairs at the next Annual Meeting to
determine the suitability of creating additional accountability requirements for
Caucuses. Discussion should consider the following:
1. The need for annual reporting mechanisms for Board oversight, such as
short annual reports to be archived on AALLNET.
2. The creation of mission or purpose statements for existing Caucuses.
3. The desirability of creating a Board Liaison for Caucus Chairs.
4. The creation of additional training for Caucus Chairs at the Annual
Meeting.
5. The clarification of existing roles, guidelines and responsibilities.

A quick analysis of the eleven extant caucuses shows that four are based on shared demographic characteristics of the members,  two on interest in substantive areas of law (Native Peoples and Animal Law), two  related to type of institution where employed (federal law libraries and library/information schools), one on specific activity common to various occupations (document delivery), and two that don’t neatly fit into the prior categories, Empirical Research Librarians and Publishing Initiatives.

Based on President Joyce Janto’s remarks that the board’s consideration of a caucus policy is rekindled by an application to form a new caucus, some have presumed that the application from a group wanting to form the Consumer Advocacy Caucus is the moving event.  I won’t get into arguing for or against any specific application here (though I will state for the record that I would join such a caucus if it is created), but I will urge the board that if it adopts a policy, any requirement should be very liberal, and that perhaps an expression of interest by prospective members, somewhat akin to the requirements to form a section in AALS, should be more determinative of membership interest than any arbitrary definition of how it is related to advancing the aims of the association.

It would appear that the executive board will have a busy day tomorrow.

Yesterday afternoon, several hours after online discussion of the AALL draft Antitrust Policy became active, organization president Joyce Manna Janto sent out a mass email to membership and posted remarks announcing the consideration of the proposal by the board, and assuring readers that the draft would not be adopted by the board “as written.”  In the message, President Janto goes on to welcome comments on the proposal and thank those who have already commented.  In the meantime, Internet-facilitated discussion of the proposal continues.  This morning at Out of the Jungle, Betsy McKenzie likened her relationship with AALL to one with a longtime love whom she no longer trusts.  Betsy finds that the some of the text of the proposal tracks antitrust language from trade marketing associations, organizations that are quite unlike AALL.  And Greg Lambert points out the simplicity and appropriateness of the language used by the American Library Association, item 13 at http://tinyurl.com/3hrythr.  If these simple guidelines are good enough for the ALA, an organization of more than 62,000 members (about twelve times the size of AALL) with that many more opportunities to influence purchasing behavior, then similar ones ought be good enough for AALL.  Maybe we ought to look into retaining their counsel as well.

Much of the discussion this week has focused not merely on the substance of the proposal, but on what at least some perceive as an opaque process for drafting and considering it.  For example, although the proposal appears in the agenda for Thursday’s executive board meeting, no special publicity was provided, even after the much-discussed AALL Vendor Colloquium earlier this year.  Many members criticized the non-public format of that event.  Whether or not one agrees with the rationale for restricting real-time access to the colloquium, the situation gave plenty of ammunition to critics of the board.  In the case of the proposal, the timing seems very unfortunate, in that the board will consider it at its regularly scheduled meeting two days before most AALL members attending the annual meeting arrive in Philadelphia, and four days before the initial meeting of a group trying to form an AALL Consumer Advocacy Caucus.  Whether or not true, it is not unreasonable for one aware of this scheduling to wonder whether the board scheduled its consideration at this time in order to have a strong policy in place as the caucus attempts to get started.

Let me state flat-out that I have not lost hope for the association or its current leadership, as I infer that some others have.  However, our current executive board and its successors need to give serious thought to the negative perceptions that are being cast about, whether wittingly or unwittingly.  And all members of AALL, not merely the board,  need to offer an answer to this question: How can the board of an association, duly elected and charged with managing the operation of that organization, go about that business while offering the membership the opportunity and means to offer timely informed comment on issues of wide concern?

Reader beware:  I have never been an antitrust attorney, and I have not been a member of the bar since 1996.  Hence my trepidation in opining on this subject.  The Internet is abuzz this morning about proposed AALL antitrust policies to be considered by the Executive Board this week, before most members attending the annual meeting will have arrived.  The board’s meeting agenda and proposed policies are here. For good background on the topic, see Sarah Glassmeyer’s post, The Librarian as Consumer Advocate, and one by Michael Ginsborg, who is a principle organizer of a nascent consumer advocacy group (AALL caucus?)  who asks, Can AALL Members Organize For Consumer Advocacy If AALL’s Executive Board Adopts A Proposed Antitrust Compliance Policy On July 21st?  Joe Hodnicki has addressed the subject of vendor relations and the AALL vendor colloquium repeatedly at Law Library Blog.  So far this morning there has been a smattering of discussion on the academic law library director listserv.

The policy and its proposed guidelines, if adopted, will effectively create a gag order not only on the executive board, which is the entity charged with governance of the association, but its members and affiliates.  This would extend to chapters, which are generally separate corporations that are recognized as affiliates by AALL.  Most of the commenters thus far, including me, wonder whether the board’s counsel has adopted an overly conservative position with regard to the potential for the association to be suspected of violating the Sherman Antitrust Act.  Since we are not experts in this area, thus far we are confined to wondering, without really resolving the question.  A major premise of the draft is that because the association is organized by members, who are themselves affiliated with other organizations, the need for the court to find the existence of a “combination” within the meaning of that term is made very much easier than it otherwise would be. The guidelines purport to put the kibosh on all discussions by its members in any setting on any topic that could perhaps be thought of as affecting pricing or vendor relations.  In effect, by adopting the proposal, the association will present its members with a Hobson’s choice:  if you care about these issues, don’t belong to AALL.  Then a complaining party will have the burden of proving the existence of an unlawful combination.

It seems to me that this is the first time I have ever heard of a voluntary association going out of its way to persuade its membership to leave!  AALL Executive Board, what in blazes are you thinking, and why would you consider adopting such a policy BEFORE the membership can collectively voice its opinion to you?

Update: A few more questions

Counsel: In yesterday’s article about libraries abandoning Big Deal vendor contracts for databases in the Chronic of Higher Education, the author reports

The library joined forces with Oregon State University and eventually with Portland State University to analyze usage and talk about how to collaborate on collection development. Then, armed with spreadsheets, “we went to Elsevier and said, ‘Hey, we want a deal,’” Mr. Fowler said.

At the Bargaining Table

The publisher did not exactly welcome the libraries’ request for a renegotiation of terms, he said. “Although I can’t imagine they would have been surprised, given the general economic situation in library-land, they were a little skittish at first.”

According to Mr. Fowler, Elsevier asked for separate meetings with the three institutions. They declined, seeing it as a divide-and-conquer strategy. Once at the negotiating table, however, “Elsevier played pretty fair,” he said. “I would say that they were at least moderately surprised that we were so well prepared with our facts and figures, but it was a good thing for us.”

Was there not a risk of antitrust action there, counsel?

AALL is governed by its executive board, not by its members, save to elect board members and vote in extraordinary situations.  Why are the discussions of its members, outside of a formal meeting, imputed to other members or to the association itself?