December 24, 2005
Love Those Pilgrims: 17th Century Christmas Laws Culminated in Criminalization of Christmas!
In 1645, Cromwell's Parliament abolished the observance of Christmas thus banning all civil festivities associated with the celebration of Christmas, including the sending of Christmas cards. The Puritans in Massachusetts bested Parliament by criminalizing Christmas 14 years later. In 1659, the General Court of Massachusetts enacted a law making any observance of December 25 (other than a church service) a penal offense. The "Five-Shilling Anti-Christmas Law" stated:
Whosoever shall be found observing any such day as Christmas, or the like, either by forbearing labor, feasting, or any other way upon such account as aforesaid, every such person so offending shall pay for each offense five shillings as a fine to the country.
The Five-Shilling Anti-Christmas Law were repealed in 1681. Was the Act of Parliament repealed? To the best of my knowledge, no!
December 23, 2005
Patriot Act Extension Is Reduced To a Month
The Washington Post is reporting that the House agreed to extend the Patriot Act to Feb. 3, 2006. The Senate has approved the House action.
On DMCA Exemption Proceedings
Bill D. Herman and Oscar Gandy of the University of Pennsylvania have published "Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings," in volume 24, of the Cardozo Arts & Entertainment Law Journal. It is also available through download from SSRN.
Abstract: 17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.
Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for Section 1201 were laundered through international treaties, obscuring the anticircumvention clause's domestic origins. Further, we conclude that the exemption proceeding is constructed not to protect noninfringing users, but to limit courts' ability to exonerate them via the traditional defenses to copyright infringement.
We then conduct a content analysis of the first two proceedings, conducted in 2000 and 2003. Exemption proponents generally interpret the law's intent in terms of policy goals such as fair use, whereas opponents see jurisdictional, procedural, and definitional obstacles to the granting of exemptions. The Register of Copyrights' interpretation of the law closely resembles that of opponents and, on more than one key point, she refers proponents back to Congress. We conclude that the Register has constructed a venue that is hostile to the interests of noninfringing users; in light of congressional rhetoric to the contrary, this constructs a catch-22 for many who earnestly wish to engage in otherwise legal activities.
Hat tip to Media Law Prof Blog
Accuracy of Wikipedia
Andy Carvin reports that Nature magazine has just published the results of an investigation comparing Wikipedia and Encyclopedia Britannica regarding accuracy of scientific information. The result: almost a tie. Examining 42 scientific topics, Nature's team of experts and editors found an average of four inaccuracies per Wikipedia entry, and three per Britannica entry.
First Issue of Google's Newsletter for Librarians Released
More than two months ago Google said that they would begin publishing a quartely newsletter for librarians. Well, the first issue is now available. Unfortunately, not much there in terms of content except for an intro article by Jodi Healy and an interesting article about how Google works (and most other web engines for that matter) by Matt Cutts.
Click here to check it out.
Ron Jones, Unv Cin Law Lib
December 22, 2005
Strange but True: Stop Sending Me Secret Messages! Judge Grants TRO Against David Letterman
Colleen Nestler, who contends that David Letterman has been using code words to show he wanted to marry her and train her as his co-host, has been granted a TRO against the CBS late-night host by a New Mexico judge. According to a CNN report, Nestler, who lives in Santa Fe, requested that Letterman stay at least 3 yards away and not "think of me, and release me from his mental harassment and hammering."
Will the law librarian who directed Nestler to the pleadings form books please raise his/her hand!
Senate Agrees to a Six-Month Extension of the Patriot Act
The bill's future now rests with the House of Representatives, which comes back into session today. Sampling of media coverage of the Senate's action:
See also our earlier post identifying the 16 major provisions of the Act that were to expire on Dec. 31.
New LLRX Research Guides and Articles
New on LLRX.com for December 17, 2005:
Westlaw Makes New Bankruptcy Forms Available
The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) went into effect on October 17, 2005. The changes under the Act are fundamental and affect thousands of debtors currently petitioning for bankruptcy. Many of the official forms have changed, and now the revised or entirely new official forms are in westlaw.com in the Bankruptcy Official Forms database (FBKR-FORMS). Both the pre- and post-BAPCPA forms are available as PDF files. Read more about it.
See also our legislative history of BAPCPA
Legislative action affecting the Federal Rules
The Administrative Office of the U.S. Courts have issued a report summarizing legislative action affecting the Federal Rules of Practice, Procedure, and Evidence taken during the first session of the 109th Congress. Click here to view the report.
Ron Jones, Unv Cin Law Lib
Agenda-setting and Blogs
From the December issue of First Monday:
Agenda-setting, opinion leadership, and the world of Web logs by Aaron Delwiche
The activities of journalistically focused Web log authors give us new ways to understand and measure the agenda-setting process. While previous researchers have explored issue salience by focusing on audience recall and public opinion, Web logs invite us to consider hyperlinks as behavioral indicators of an issue's perceived importance. This paper tracks news stories most often linked to by Web log authors in 2003, comparing the results to stories favored by traditional media. Arguing that Web log authors construct an alternative agenda within the admittedly limited realm of the blogosphere, I note that their focus has shifted from technology to broader political issues. My findings support Chaffee and Metzger's (2001) prediction that "the key problem for agenda-setting theory will change from what issues the media tell people to think about to what issues people tell the media they want to think about.
Also in the December issue of First Monday:
From libraries to 'libratories' by Leo Waaijers
While the eighties of the last century were a time of local automation for libraries and the nineties the decade in which libraries embraced the Internet and the Web, now is the age in which the big search engines and institutional repositories are gaining a firm footing. This heralds a new era in both the evolution of scholarly communication and its agencies themselves, i.e. the libraries.
Until now libraries and publishers have developed a digital variant of existing processes and products,i.e. catalogues posted on the Web, scanned copies of articles, e-mail notification about acquisitions or expired lending periods, or traditional journals in a digital jacket. However, the new OAI repositories and services based upon them have given rise to entirely new processes and products, libraries transforming themselves into partners in setting up virtual learning environments, building an institution's digital showcase, maintaining academics' personal Web sites, designing refereed portals and - further into the future - taking part in organising virtual research environments or collaboratories. Libraries are set to metamorphose into 'libratories', an imaginary word to express their combined functions of library, repository and collaboratory. In such environments scholarly communication will be liberated from its current copyright bridle while its coverage will be both broader - including primary data, audiovisuals and dynamic models - and deeper, with cross-disciplinary analyses of methodologies and applications of instruments. Universities will make it compulsory to store in their institutional repositories the results of research conducted within their walls for purposes of academic reporting, review committees,
and other modes of clarification and explanation. Big search engines will provide access to this profusion of information and organise its mass customization.
Academic home pages: Reconstruction of the self by Lesley Thoms and Mike Thelwall
Previous literature within the postmodern movement typically finds the Internet to be a tool for surveillance and restriction. This is particularly identified in the personal homepages of academics, where the university is considered to marginalise staff through the coercive governing of their identity construction. Using a Foucauldian framework in which to analyse twenty academic homepages, this study looks specifically at identity construction on the Internet via the differences of link inclusion between academics whose homepages have been university-constructed and those whose homepages have been self-constructed, both dependent and independent of the university site. A Foucauldian discourse analysis identifies the marginalisation of academics in all conditions, wherein discursive positions were typically those of disempowerment. A typology of homepages and hence identities of academics is proposed based on the Web sites examined, concluding that whether the homepage is constructed by the academic or by the university, the identities of the individual are ultimately lost to the governmentality of the university.
December 21, 2005
Domestic Surveillance Controversy: Sitting Foreign Intelligence Surveillance Court Judge Quits; Judge Posner Supports Administration's Actions
The Washington Post is reporting that U.S. District Judge James Robertson has resigned from the Foreign Intelligence Surveillance Court because of his deep concern that the domestic surveillance program that Bush authorized was legally questionable and may have tainted the work of the Court. The Foreign Intelligence Surveillance Court oversees government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.
Meanwhile, in Our Domestic Intelligence Crisis (Washington Post) U.S. Court of Appeals for the Seventh Circuit Judge Richard A. Posner expresses his support of these programs.
[Domestic intelligence] programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.
The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.
Domestic Surveillance of Terrorist Groups Extends to PETA, Greenpeace et al.
According to new documents released by the American Civil Liberties Union, the FBI is using counter-terrorism resources to monitor and infiltrate domestic political organizations that criticize business interests and government policies, despite a lack of evidence that the groups are engaging in or supporting violent action.
The ACLU said that the documents released today on Greenpeace, People for the Ethical Treatment of Animals (PETA) and the American-Arab Anti-Discrimination Committee (ADC) show the FBI expanding the definition of “domestic terrorism” to include citizens and groups that participate in lawful protests or civil disobedience. Read the ACLU press release.
Link to digital collection of FBI documents released by the ACLU
Sound like the FBI has dusted off J. Edgar's playbook.
Briefs in Cuno v. DaimlerChrysler Now Available
TaxProf Blog has posted the merits and amici briefs in Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), cert. granted, Nos. 04-1704 & 04-1724, scheduled for oral argument in the Supreme Court on March 1, 2006. The case involves the constitutionality of Ohio's investment tax credit (as well as the procedural question of Respondents' standing).
The Alito Project at Yale Law School Releases Report
Over the last several weeks, a group of students and faculty, known as "The Alito Project at Yale Law School," reviewed all 415 judicial opinions that Judge Samuel Alito wrote while serving as a Circuit Judge. The report was delivered to all one hundred Senators on Monday, December 19, 2006 and also made available to the public. Read the press release.
New Titles from Cambridge UP
Law and Internet Cultures
by Kathy Bowrey
Paperback (ISBN-10: 0521600480 | ISBN-13: 9780521600484)
Published July 2005 | 250 pages | $21.99
Book Description: This book is about the Internet and the technological and cultural baggage that accompanies it and affects its regulation. It considers the ways decisions about Internet technologies are made; ideas behind global trade and innovation; power of engineers and programmers; influence of multinationals; and questions about global marketing and consumer choice. Although the volume draws upon current debates from globalization, communications and socio-legal theory, it will be comprehensible to a general audience interested in issues associated with technology and innovation. Reviewed by Matthew Rimmer, Faculty of Law, Australian National University for First Monday.
The Torture Debate in America
Edited by Karen J. Greenberg
Paperback (ISBN-10: 0521674611 | ISBN-13: 9780521674614)
Published November 2005 | 300 pages | $18.99
Book Description: Widely acclaimed as a publishing milestone, The Torture Papers (Cambridge, 2005) constitutes the definitive book of public record detailing the Bush Administration's policies on torture and political prisoners. In the process of assembling the documents, memoranda, and reports that comprise the material in The Torture Papers, a vital question arose: What was the rationale behind the Bush Administration's decision to condone the use of coercive techniques in the interrogation of detainees suspected of terrorist connections? The use of these techniques at Abu Ghraib and Guantanamo has sparked an intense debate in America. The Torture Debate in America captures the arguments on torture that have been put forth by legislators, human rights activists, and others. It raises the key moral, legal, and historical questions that have led to current considerations on the use of torture. Divided into three sections, the contributions cover all sides of the debate, from absolute prohibition of torture to its use as a viable option in the War on Terror.
Al Qaeda Now: Understanding Today's Terrorists
Edited by Karen J. Greenberg
Hardback (ISBN-10: 0521859115 | ISBN-13: 9780521859110)
Published September 2005 | 300 pages | $60.00
Book Description: This volume of presentations by a group of authorities on international terrorism and Al Qaeda constitute a valuable synopsis of current knowledge on this terrorist group and the policies in place to counter threats of future attacks. The articles contribute to understanding how Al Qaeda has evolved from a movement to an ideology, what influence it has on Middle East stability and what continued threat it is to the United States, Europe, and other areas of the world. The contributors, from academia, research centers, government agencies and the media, represent a cross section of recognized experts on Al Qaeda and international terrorism.
Hardback (ISBN-10: 0521838509 | ISBN-13: 9780521838504)
Published September 2005 | 540 pages | $110.00
Book Description: The acts of lawlessness committed on September 11, 2001 have been followed by a 'war on terror'. This textbook considers the law relevant to assessing how such terrorist acts should be understood in legal terms, which responses to them are permissible and how those responses are to be pursued. It considers some of the actions that have unfolded since 9/11 (military intervention, law enforcement initiatives, human rights restrictions and abuse) prompting questions as to the 'war on terror's lawfulness. The volume clearly designates areas of international law where interest has escalated beyond traditional academic legal circles.
Illegal Beings: Human Clones and the Law
Kerry Lynn Macintosh
Hardback (ISBN-10: 0521853281 | ISBN-13: 9780521853286)
Published August 2005 | 288 pages | $28.00
Book Description: Many people think human reproductive cloning should be a crime-some states have even outlawed it and Congress is working to enact a national ban. However, if reproductive cloning soon becomes a reality, it will be impossible to prevent infertile couples and others from choosing the technology, even if they have to break the law. While most books on cloning cover the advantages and disadvantages of cloning technology, Illegal Beings describes the pros and cons of laws against human reproductive cloning. Kerry Lynn Macintosh, an attorney with expertise in the area of law and technology, argues that the most common objections to cloning are false or exaggerated, inspiring laws that stigmatize human clones as subhuman and unworthy of existence. She applies the same reasoning that was used to invalidate racial segregation to show how anti-cloning laws, by reinforcing negative stereotypes, deprive human clones of their equal protection rights under the law. Her book creates a new topic within constitutional law: existential segregation, or the practice of discriminating by preventing the existence of a disfavored group or class. This comprehensive and novel work looks at how anti-cloning laws will hurt human clones in a fresh perspective on this controversial subject. Kerry Lynn Macintosh is a member of the Law and Technology faculty at Santa Clara University School of Law. She is the author of papers, articles, and book chapters on the law and technology and has contributed to the Harvard Journal of Law and Technology, Boston University Journal of Science and Technology Law, and Berkeley Technology Law Journal.
Abortion and the Law: From International Comparison to Legal Policy
Albin Eser and Hans-Georg Koch
Translated by Emily Silverman
Hardback (ISBN-10: 9067041971 | ISBN-13: 9789067041973)
Published September 2005 | 450 pages | $95.00
Book Description: This volume presents a compact summary of the results of a world-wide survey on abortion law and practice in a total of 64 countries, carried out by the Max-Planck Institute for Foreign and International Criminal Law in Freiberg, Germany. The work provides a summary of social conditions and historical developments, followed by a detailed comparison of legal regulations, and is supplemented by statistics on the termination of pregnancy. The final chapter contains reflections from a legal policy perspective. Important findings, insights and trends are summarized and guidelines for reform are provided. The book concludes with a proposal for a law to regulate the termination of pregnancy, and although this proposal was intended primarily as a contribution to the legal political debate in Germany, it could also be used as the catalyst for debate on reform in other countries.
Recent CRS Reports on Legal Issues
EXCITED UTTERANCES, "TESTIMONIAL" STATEMENTS, AND THE CONFRONTATION CLAUSE
CRS Publication Date: 12/14/2005
Document No.: RL33195
Author(s): Brian T. Yeh, American Law Division
Abstract: The United States Supreme Court will hear oral argument this term in appeals from two state supreme court cases, Hammon v. Indiana and Davis v. Washington, concerning the admissibility of "excited utterance" statements made by non-testifying witnesses at criminal trials. In the landmark Crawford v. Washington case in 2004, the Court held that the Sixth Amendment's Confrontation Clause forbids hearsay "testimonial" evidence from being introduced against the accused unless the witness is unavailable to testify and the defendant has had a prior opportunity to crossexamine the witness. However, the Crawford Court declined to provide a comprehensive definition of "testimonial," leaving such task "for another day." This omission has caused state and federal courts to struggle over which out-ofcourt statements are "testimonial" for purposes of triggering the Crawford requirements. The confusion has arisen most often in cases involving out-of-court statements made by non-testifying witnesses to investigating police officers at a crime scene or during 911 emergency calls. These "excited utterance" statements have traditionally been admitted into evidence under an exception to the hearsay exclusionary rules followed by courts. However, since Crawford, the lower courts have disagreed over whether spontaneous utterances are considered "testimonial" statements subject to the Sixth Amendment's cross-examination mandate. These two cases offer the Court an opportunity to resolve this uncertainty by more clearly explaining what constitutes "testimonial" statements. The outcome has the potential to impact significantly the strategy and method of prosecuting criminal cases, particularly the use of out-of-court accusations against defendants in domestic violence and gang-related crimes.
U.S. SUPREME COURT NOMINEE SAMUEL A. ALITO AND THE ABORTION OPINIONS OF THE U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT
CRS Publication Date: 12/16/2005
Document No.: RL33198
Author(s): Jon O. Shimabukuro, American Law Division
Abstract: On October 31, 2005, Judge Samuel A. Alito was nominated by President George W. Bush to replace retiring Associate Justice Sandra Day O'Connor. During his tenure with the U.S. Circuit Court of Appeals for the Third Circuit, the court considered a number of abortion cases, including Planned Parenthood of Southeastern Pennsylvania v. Casey, a case that was later heard by the U.S. Supreme Court. This report reviews the Third Circuit's notable abortion opinions during Judge Alito's tenure and examines his concurring and dissenting opinions in some of those cases.
CIVIL RIGHTS OPINIONS OF U.S. SUPREME COURT NOMINEE SAMUEL ALITO: A LEGAL OVERVIEW
CRS Publication Date: 12/12/2005
Document No.: RL33187
Author(s): Charles V. Dale, American Law Division
Abstract: During his 15 years as a federal appellate judge on the Third Circuit, Judge Alito has written for the majority, concurred, or dissented in several cases alleging discrimination based on race, ethnicity, gender, religion, and other prohibited grounds. His legal position in these cases has varied, depending on the facts and law being applied, and defy rigid or facile classification. Nonetheless, some continuity in judicial approach, both substantive and procedural, may arguably be discerned from a review of several of his significant opinions.
PROPOSALS IN THE 109TH CONGRESS TO SPLIT THE NINTH CIRCUIT COURT OF APPEALS
CRS Publication Date: 12/14/2005
Document No.: RL33189
Author(s): R. Sam Garrett, Government and Finance Division
Abstract: This report compares relevant provisions of the House version of the Deficit Reduction Act with Senate proposals introduced during the 109th Congress which propose to split the circuit. Despite differences, these House and Senate proposals are largely similar. The report also provides background information on the debate concerning splitting the Ninth Circuit and analyzes the outlook for doing so. The current debate echoes themes present in the past. Disagreement generally focuses on three areas: (1) geography and population; (2) efficiency; and (3) the circuit's rulings. Although the House version of the budget reconciliation bill potentially increases the likelihood of dividing the circuit, the measure could also face substantial obstacles. Further, history suggests that should Congress not adopt the provision splitting the Ninth Circuit, the issue will continue to be active.
THE SUPREME COURT'S OVERRULING OF CONSTITUTIONAL PRECEDENT: AN OVERVIEW
CRS Publication Date: 11/29/2005
Document No.: RL33172
Author(s): George Costello, American Law Division
Abstract: As a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare decisis ("to stand by a decision"). The general rule of stare decisis is not an absolute rule, however, and the Court recognizes the need on occasion to correct what are perceived as erroneous decisions or to adapt decisions to changed circumstances. In deciding whether to overrule precedent the Court takes a variety of approaches and applies a number of different standards, many of them quite general and flexible in application. As a result, the law of stare decisis in constitutional decision making can be considered amorphous and manipulable, and it is difficult to predict when the Court will rely on stare decisis and when it will depart from it. This report cites instances in which the Court has overruled precedent as well as instances in which it has declined to do so, and sets forth the rationales that the Court has employed.
SAME-SEX MARRIAGES: LEGAL ISSUES
CRS Publication Date: 12/05/2005
Document No.: RL31994
Author(s): Alison M. Smith, American Law Division
Abstract: Massachusetts became the first state to legalize marriage between same-sex couples on May 17, 2004, as a result of a November 2003 decision by the state's highest court that denying gay and lesbian couples the right to marry violated the state's constitution. Currently, federal law does not recognize same-sex marriages. This report discusses the Defense of Marriage Act (DOMA), P.L. 104-199, which prohibits federal recognition of same-sex marriages and allows individual states to refuse to recognize such marriages performed in other states, and discusses the potential legal challenges to DOMA. Moreover, this report summarizes the legal principles applied in determining the validity of a marriage contracted in another state, surveys the various approaches employed by states to prevent same-sex marriage, and examines the recent House and Senate Resolutions introduced in the 109th Congress proposing a constitutional amendment (H.J.Res. 39, S.J.Res. 1, and S.J.Res. 13) and limiting Federal courts' jurisdiction to hear or determine any question pertaining to the interpretation of DOMA (H.R. 1100).
GUANTANAMO DETAINEES: HABEAS CORPUS CHALLENGES IN FEDERAL COURT
CRS Publication Date: 12/07/2005
Document No.: RL33180
Author(s): Jennifer K. Elsea and Kenneth Thomas, American Law Division
Abstract: This report provides background, including an overview of the Rasul decision and of the CSRT procedures established to comply with it, summarizes court cases related to the detentions and the use of military commissions, and summarizes the Graham Amendment and analyzes how it might affect detainee-related litigation in federal courts.
CRS reports listed above are available from GalleyWatch.com
Ron Jones, University of Cincinnati Law Library
UNPAN Releases Its Annual Global E-govenment Readiness Report
The UN Global E-Government Readiness Report 2005: From E-government to E-Inclusion, exploring the interlinkages between e-government and development, presents an assessment of the countries according to their state of e-government readiness and the extent of e-participation worldwide. In Part I of Report, The UN Global E-government Survey 2005, like its predecessors, ranks the 191 Member States of the UN according to a quantitative composite index of e-readiness based on website assessment, telecommunication infrastructure and human resource endowment. Underscoring the importance of technological advancements, the role of the government and human development, it presents a vision of the future with technology led access-for-all. Expanding the concept of 'real access' to ICT into e-inclusion, Part II: From E-government to E-inclusion presents the Socially Inclusive Governance Framework, which is a multi- pronged approach to ICT-led real access, with a special focus on the need to promote technology access and inclusion to the disadvantaged groups in society.
See UNPAN's website for previous annual reports.
December 20, 2005
Kitzmiller et al. v. Dover Area School District: Court Rules Against Intelligent Design
US District Judge John E. Jones III ruled today that the Dover Area School District violated the Constitution when it decided that biology curriculum must include anti-evolutionary intelligent design theory.
Hat tip to JURIST.