November 1, 2008
Colleges Spending Significant Dollars to Address the Issue of Illegal Peer-to Peer Filesharing
According to a new report from the Campus Computing Project, colleges are spending in excess of $150K to curb students from downloading copyrighted music and movies. In Campus Costs of P2P Compliance, "the Higher Education Opportunity Act of 2008 imposes hundreds of new reporting requirements that govern the activities of the nation's 4400 public, private, and for-profit two and four year colleges and universities." In the age of deficits and budget cuts, special hardware and other direct costs represent a significant expenditure of institutional resources.
Where will the money come from? Good question. See also: Fighting Music and Movie Piracy Costs Colleges Considerably, The Chronicle [RJ]
October 31, 2008
Spooky Law Review Articles
According to Amy Burchfield, Access & Faculty Services Librarian, Cleveland-Marshall College of Law, five of the top twenty spookiest law review articles ever written are:
- Caveat Spiritus: A Jurisprudential Reflection Upon the Law of Haunted Houses and Ghosts 28 Val. U.L. Rev. 207 (1993).
- An Infamous Legal Treatise: An Examination of the Malleus Maleficarum and Its Effect on the Prosecution of Witches in Europe 14 Digest 1 (2006).
- Possession, Witchcraft, and the Law in Jacobean England 52 Wash. & Lee L. Rev. 1613 (1996).
- Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World 11 Roger Williams U. L. Rev. 309 (2006).
- Ghosts from the Grave--Inheriting Through the Predeceased under Ohio Law 50 Clev. St. L. Rev. 189 (2002-2003).
See Top Twenty Spookiest Law Review Articles Ever Written, CM Law Library Blog. [JH]
Are Retirement Savings Too Exposed to Market Risk?
According to a new report from the Center for Retirement Research at Boston College, maybe so. In Are Retirement Savings Too Exposed to Market Risk? Alicia Munnell and Dan Muldoon look at the shift from a defined benefit plan to the traditional 401k plan and concluded that many plans are are fare too risky and funds are exposed to a risk that most households cannot afford. [RJ]
Writing Contest: What I Wish Everyone Knew About Librarians
Smart Poodle Publishing is conducting the writing contest which is open only to librarians of public, private and school/university libraries in the United States and who are legal residents of the Unites States.
Grand Prize $500
2nd place Prize $100
3rd Place Prize $50
The deadline is December 1, 2008, 5pm EST. The winner will be notified by December 15, 2008
Official contest rules. [JH]
Friday Fun: The Computers Are Panicking!
By now most of us with TIAA-CREF accounts have reviewed our latest quarterly statement and have calculated how many extra years we will have to work to make up for the losses. CNBC pundits are saying it will take 10-15 years! No problem for our younger colleagues but for some of us who are a wee bit older (read like me), I calculate that our short-term memory will be completely gone by retirement time.
What caused the sharp fall in the Dow? Everyone likes to blame program trading. That's where buy-sell orders are generated when stock prices move a certain amount on a percentage basis and/or hit a programmed price point. (Of course, no one blames program trading for escalating a rally in stock prices.) Program trading increases violatility but isn't the cause of the initial decline (or rise) in the market. Still the topic makes for a great Colbert Report skit.
The Computers Are Panicking or Just Pull the Plug
Hat tip Mark Giangrande (DePaul), Colbert on How Computers Helped Create The Current Economic Crisis on Tech Law Prof Blog. [JH]
CiteGenie for Bluebooking Westlaw
CiteGenie is a new extension for the Firefox web browser that creates Bluebook formatted pinpoint citations from Westlaw. Haven't tried it yet but Marc Hershovitz gave CiteGenie a fairly comprehensive test drive. He reviews CiteGenie and explains how to install the FireFox extension in his LRRX article, Review of CiteGenie - Automatic Bluebook citations when using Westlaw. See also the CiteGenie FAQ. Looks very promising. [JH]
Promoting Women’s Human Rights: A Resources Guide for Litigating International Law in Domestic Courts
"Promoting Women’s Rights: A Resource Guide for Litigating International Law in Domestic Courts was designed as a practical tool to help lawyers and other legal advocates use international law to advance the promotion and protection of women’s human rights in their daily lives. This guide considers how lawyers can integrate international human rights standards into domestic litigation and legal policy advocacy involving women’s rights; seeks to encourage lawyers to undertake such advocacy; and provides practical strategies on how lawyers might go about doing this. Specifically, this guide aims to be a resource for lawyers who are using or wish to use international human rights standards as a part of their litigation strategy to advance the human rights of women."
Hatip to Legal Research Plus. [RJ]
How Justice Thomas Reads the Constitution
In How to Read the Constitution, the Wall Street Journal published an excerpt of Justice Clarence Thomas's remarks to the Manhattan Institute, including the following:
[T]here are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.
Hat tip to Jeremy Counseller (Baylor), Civil Procedure Prof Blog. [JH]
Legal Aid Programs Facing Huge Budget Cuts
From the National Law Journal: "Legal aid programs throughout the country are facing budget cuts of up to 50%. With the economy likely headed into a recession and coastal areas in Texas and Louisiana still struggling with the aftermath of hurricanes, the need for legal aid programs is stronger than ever. Legal aid funding from state appropriations is also down, because state budgets are facing revenue shortfalls. And law firm contributions could decrease as well, as firms tighten their belts." (sub. req.) [RJ]
Tracking Pre-election Polls for Political Junkies
The Wall Street Journal has an interactive guide for tracking pre-election polls nationwide and in key "battleground" states. Over 25 polls are represented including: Pew; Zogby/Reuters; Times/Bloomberg; Gallup; CNN; and Fox. Tracking began back in June and is updated daily. (sub. req.)
Check out LLB's earlier posts on the election:
- Election Maps for Political Junkies
- Westlaw's New Election Law Feature
- Time for Some Campaignin': Google's 2008 US Election Search Trends Site and Widget
October 30, 2008
Christian Science Monitor To Abandon Daily Print Edition, Shift to 24/7 Web Publication
In April 2009, the Christian Science Monitor will become the first nationally circulated newspaper to replace its daily print edition with its website. The 100 year-old news organization will also offer subscribers weekly print and daily e-mail editions. Details here and here. [JH]
HeinOnline Launches United Nations Law Collection
HeinOnline's United Nations Law Collection presents exact reproductions of major United Nations legal publications, including the complete collection of the United Nations Treaty Series, the Statement of Treaties and International Agreements, International Court of Justice, Reports of Judgments Advisory Opinions and Orders, Reports of International Arbitral Awards and more.
Hat tip to HeinOnline Weblog. [JH]
Open Access to Government Documents
In honor of Open Access Day 2008, Stephen Schultze (fellow at the Berkman Center for Internet & Society at Harvard University) discusses the open access movement with regards to government publications that not even Google can find. Namely, federal court documents. Schultze argues not only for free access to services like PACER but freely available metadata to allow innovators to build interfaces to work on top of the underlying data (i.e., Google Patents). [RJ]
VersusLaw's New Almost Completely Free Legal Research Service
VersusLaw's free legal research service, FindACase is a bit funky. As noted in the below product description, search results do not provide citations or docket numbers. For that information, you have to buy the document but the charge is reasonable, only $2.95 per document.
What you get: Comprehensive archival case law, in addition to the most recent decisions (within twenty-four hours of release); powerful, user-friendly search engine; citation-based searches; date limited searching, and the ability to save or print documents.
Here are the gotchas: There is no charge to use FindACase™, but to provide advertisers with information they need to support the site, you are required to provide your zip code before a search. Likewise, to make sure our content doesn't get pirated to a server in the Ukraine, a CAPTCHA system is in use.
Documents available on FindACase™ are intended for research purposes only. As such, they do not contain certain elements such as the citation or docket number of the displayed case. Internally cited citations and docket numbers ARE available within the text of the document. Moreover, you can FIND a document using a citation or a docket number, but those elements will not be displayed when you pull the document up.
If you want the citation or docket number of any case you have retrieved, you may purchase a complete version of the document by selecting the "Buy This Document" button and will be charged $2.95 per document.
The FindACase™ Network consists of 52 web sites: one for each state, Washington D.C., and a FindACase™ Network homepage. Each web site consists of the state and federal case law for that particular state, i.e., the state appellate courts, the Federal Circuit Court, the U.S. District Court cases, and the U.S. Supreme Court back to 1900.
You can navigate between FindACase™ sites by bookmarking www.FindACase.com and then selecting the site of your choice.
Empirical Examination of Agency Rulemaking, 1983-2003
Anne Joseph O'Connell (Berkeley) has deposited Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State in SSRN. The article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. From the abstract:
The empirical results offer new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each presidential administration, but cabinet departments (as a group), finished slightly more actions after the 1994 election changed control of Congress than in President Clinton's last quarter. And although the press highlighted President Clinton's spate of midnight regulatory activity, President George H.W. Bush began nearly 50 percent more notice-and-comment rulemakings in the final quarter of his term than did President Clinton and nearly 40 percent more than President Reagan.
Yahoo's Inquisitor Available for Firefox and Internet Explorer
This nifty little plugin not only autocompletes your searches, but it also directly display the results of your search as you type, which can be a real time saver. The developers claim that Inquisitor tailors the results based on how/what you search, so the more you use it the more effective it becomes. Check it out. [RJ]
October 29, 2008
John McCain: Terrorists and Judges Who Legislate from the Bench Are Threats to Public Safety
With the election just days away, The National Law Journal, has invited the major presidential and vice presidential candidates to write about the legal issues facing the next administration and to offer their views on such topics as the rule of law, the federal court system, judicial appointees and priorities for the U.S. Department of Justice. The senior senator from Arizona and the Republican candidate for president of the United States offers his thoughts in Three Priorities. Here's a snip:
Terrorists are not the only threat to public safety. Lax enforcement policies, judges who legislate from the bench and lack of support for law enforcement personnel all continue to force our innocent citizens behind the barred windows of their homes and allow criminals to roam free.
And now drugs are bringing waves of crime and organized gang activity to rural areas thought to be nearly immune from such problems. The federal government must both support state and local law enforcement and effectively enforce federal laws designed to root out violent crime, organized gangs and other interstate criminal activity.
None of these law enforcement efforts will succeed without a judiciary that understands its proper role and its proper mission. Senator Obama would appoint liberal activist judges and supply them with greater sentencing discretion. I will appoint judges who will strictly interpret our Constitution. Senator Obama's judges would coddle criminals. I will appoint judges who will hold criminals accountable.
Rock the AALL Vote
Ballots must be submitted by 11:59 p.m. Central Time, Monday, December 01, 2008. Here's the AALL Online Election Voter's Login. [JH]
Google Reaches Tentative Settlement of Book Search Copyright Class Action
Google has reached an out-of-court settlement with the Authors Guild and the AAP over Google's Book Search digitalization program. The settlement, if approved, includes a $125 million payment by Google plus the establishment of a new licensing system. [Text of Settlement | Settlement Website]
According to Publisher's Weekly, the agreement would also provide:
- More Access to Out-of-Print Books
- Additional Ways to Purchase Copyrighted Books
- Institutional Subscriptions to Millions of Books Online
- Free Access From U.S. Libraries
- Compensation to Authors and Publishers and Control Over Access to Their Works
Unpublished Opinions in Federal Courts: An Interview with David Cleveland
David Cleveland is an Assistant Professor of Law at Nova Southeastern University, Shepard Broad Law Center. Professor Cleveland has recently written two articles on the history, value, and future of unpublished opinions in the federal courts: Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J.App.Prac. & Process ___ (2009)[SSRN] and Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. ___ (2009)[SSRN]. Recognizing that the topic is one that interests law librarians, Professor Cleveland took time out of his busy schedule for this interview. [JH]
Q: You have two forthcoming articles now on the issue of unpublished opinions in the federal circuit courts, is the issuance of unpublished opinions a common occurrence?
A: Extremely common. While issuing unpublished opinions was initially an experimental solution to the problem of increasing case loads, it’s grown to the point where roughly 84% of all federal appeals are decided by unpublished opinion. Because these cases are typically treated as non-precedential and up until recently were unciteable, the law itself is altered. Imagine the First Amendment pared down to 16%. Could you find your way with a map that only showed 16% of the area it covers? This is the essential problem with unpublished opinions.
Q: What specifically are we talking about when we say “unpublished opinions”?
A: “Unpublished opinions” refers to court opinions that the court withholds from formal publication in the official reporter. In the era before official reporters and universal publication of opinions, from about the thirteenth century to the start of the twentieth century, many court opinions went unpublished. These opinions could still be brought to the court’s attention, though, as evidence of the common law and precedent. Then, for much of the twentieth century, commercial publishers endeavored to publish every appellate opinion, which proved expensive, both from the perspective of the judicial time investment in writing opinions and in the storing, indexing, and researching those opinions. So an attempt was made to limit those expenses by creating a class of opinions that would be designated “unpublished.” The federal circuit courts for example enacted rules limiting the citation of these unpublished opinions and (in most circuits) limiting their precedential value.
Q: What was the reasoning behind this rule change?
A: The limited publication plans, and the attending lack of citation and precedent accorded unpublished opinions, is, in my opinion, far greater than a mere rule change. It was an unprecedented occurrence in the history of the common law, if you’ll forgive the pun. Never before had opinions been marked, at the time of decision, as not part of the common law. For the first time in seven centuries of common law, courts were saying, “not only can you not rely upon this decision as precedent, you can’t even tell us that we did it,” which was the meaning of most circuits’ limited publication rules. But in answer to your question, the reasoning was that when the federal circuits’ experiment with unpublished opinions began in the mid-1970s, the goal was to alleviate the workload problem caused by rapidly expanding caseloads. The courts sought to reduce the costs of writing, storing, and researching case law by reducing the number of published opinions. These unpublished opinions would then be non-citable and likely treated as non-precedential. These practices, non-publication, non-citation, and non-precedent formed a sort of three-legged stool on which the practice was based. But the underlying purpose was to minimize publication costs, not to intentionally remove cases from the body of precedent or the courts’ view.
Q: But unpublished opinions aren’t still treated this way are they?
A: No, they aren’t. In fact, the entire system has collapsed; two of the three legs of the stool have been knocked out. Unpublished opinions are now routinely published both commercially and on the courts’ own websites. Increasingly, courts are permitting citation of these decisions because they do have value in showing the court what has been done before (and what an appellate court might do on appeal). Both of these practices occurred because the market for these unpublished opinions remained strong and the legal publishing technology resolved many of the storage and searching issues almost at the same time these rules went into place. Studies of practicing lawyers and judges show that they value courts’ opinions, even when unpublished, for their predictive power about what courts will do in the future. The common law concept of precedent is just so well-ingrained in both the public and legal system that litigants, lawyers, and judges want to know what has been done before. In addition, lawyers report that unpublished cases are now nearly universally reported and tend to be retrievable by the same kinds of searches they typically do.
Q: Isn’t the term “unpublished opinion” a bit of a misnomer, then?
A: Absolutely. Federal court opinions, in particular, are published not only in commercial online resources but even in print, such as West’s Federal Appendix. And they are increasingly published in word searchable format on the courts’ own websites as the courts implement the E-Government Act of 2002. In addition to near universal publication, these decisions are increasingly citeable.
Q: Speaking of citeability, doesn’t the new Federal Rule of Appellate Procedure 32.1 resolve the problem of unpublished opinions’ uncertain status?
A: Unfortunately, no. FRAP 32.1 is a big step in the right direction by making all decisions, whether designated as published or unpublished, freely citeable in the federal circuits. Now the courts’ prior decision can at least be brought to their attention. But like the committee that initially proposed the limited publication rules, the FRAP takes no position on the issue of whether such opinions have any precedential value. So the final, and most critical issue – that is, whether these unpublished decisions are precedent – remains unresolved.
Q: And you believe that they are?
A: I believe that they are and always have been precedential on the same terms as any other court opinion. The time has come that we again recognize them as such. The precedential value of an opinion to a later case is for the court in the later case to decide. Scholars have been questioning the Constitutionality, propriety, and practicality of denying some decisions precedential value since the early days of the federal courts’ unpublication practice. It’s a practice that flies in the face of how common law works and causes inequities of Constitutional dimension. My forthcoming article, Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J.App.Prac. & Process ___ (2009)[SSRN], examines the history of publication and precedent as related concepts and sets forth the many problems with denying some decisions precedential status. These problems include Constitutional issues such as the question of whether U.S. courts have the authority to issue non-precedential opinions and whether issuing those opinions violates due process and equal protection. They also include legal and lay concepts of precedent and justice, which place an inherent value on prior decisions. What I find most troubling is that the federal courts began, and have continued, this unpublication practice without ever examining or justifying the practice of declaring some decisions non-precedential. The 1973 committee that first proposed limited citation rules considered whether decisions could be declared non-precedential. Rather than examine the issue more closely or take a position on the issue, they declared it a “morass of jurisprudence” and assumed that if the decisions were not published and not citeable, they would naturally be treated as not precedent. The federal courts took that a step further and most actual wrote provisions in the rules that denied these unpublished opinions precedential value. And now, the rest of the system has fallen apart, but the uncertain status of these opinions in the body of common law remains.
Q: Do you believe that this issue will be resolved?
A: It has to be. A one-legged stool doesn’t stand for long – and the denial of precedent was the weakest leg of the three to begin with. The opinions technically designated “unpublished,” now published and citeable, will be sought after, cited, and relied upon. Practice alone should undermine the precedent restriction. How can a court look at a prior decision it made and say straight-faced to a litigant, “we decided this identical case last month, but we’re going to decide yours the opposite way”? The goals of the limited publication scheme have largely been accomplished by improved technology and further savings can be realized by the issuance of short opinions – even shorter and more direct than the present unpublished opinions, which often span several pages.
Q: It’s in the hands of practicing lawyers then to urge these unpublished opinions upon courts and on courts to write shorter opinions?
A: Not entirely. Practitioners will urge that these decisions be followed and short form opinions in truly unremarkable cases would help. But the practice of denying some opinions precedential value is fundamentally flawed and constitutionally infirm. These issues have never been addressed by the rule makers though they have been discussed by scholars and litigants over the years.
Q: What about the idea that some cases make law and should be published, and other cases, which only apply law, need not be published?
A: That notion is plainly mistaken. Every case, even one exactly the same as a prior case adds to the body of precedent. It tells the reader that the rule announced is a current one, a robust one, and one that was not the product of an errant judge or panel. It is these “piles” of cases, as Karl Llewellyn called them, that make up the common law. But most cases differ from other cases in at least some small way, and it is the decision as to whether these differences change the outcome that tells us the contours of the law. It is this process of repeated application of the law that Lord Coke viewed as giving weight and ever greater precision to the law. All decisions have some precedential value in establishing the state of the law. In addition, the idea that a court can determine at the time of decision (or under the present system at the time of filing) whether a case would be of precedential value in a future case makes no sense. The value of court’s decision as precedent is a question for a later court considering whether to apply, distinguish, or overrule the precedent. And on top of these jurisprudential problems, there is a practical problem that this ex ante determination hasn’t worked very well in practice. Courts frequently issue unpublished opinions in cases that are not the easy cases, involving the mere application of the law cases. Many such opinions contain concurrences or dissents, are heard by en banc panels, and are reversed on appeal or upheld by opinions that are dissented from. All of which suggests that these are far from the easy cases and that these are decisions that expand or contract the law and ought to be precedent.
Q: You also identify some significant constitutional implications, right?
A: Yes, for years now, scholars, and even one federal circuit court, have been expressed concerns about the constitutionality of the limited publication rules, especially their denial of precedent to some opinions. The single federal circuit court to rule the practice unconstitutional did so on the ground that denying some opinions precedent exceeded the federal courts “judicial power” as granted by Article III of the Constitution. This conclusion was based on the idea that the Framers, both Federalist and Anti-Federalist, understood the concept of precedent to be at the heart of judicial power. While the opinion was vacated on technical grounds (the dispute had become moot), the core question of whether the circuit courts have exceeded their judicial power by removing precedent by rule remains. Other challenges, based on Due Process and Equal Protection, note that removal of precedent from certain cases removes a protection fundamental in the common law by allowing for the disparate treatment of similarly situated parties. In a system where unpublished opinions are not precedent, a court could decide a case differently today than yesterday without distinguishing or overruling the prior case. My article, Overturning the Last Stone, notes several cases where this has happened. In one instance, the Ninth Circuit decided twenty cases involved the identical issue of law by unpublished opinion and various panels of the circuit were split on how to apply the law. Eleven panels favored a certain application, six panels held the opposite, and three panels remanded to the district court. Clearly, these were not easy applications of settled law, and the Ninth Circuit only discovered the issue when it ordered counsel in the twenty-first case to violate its non-citation rule and brief the court on the unpublished opinions on the issue. Many more such disparate treatment situations likely exist. Hopefully, now that the citation ban has been lifted, they will be brought to light.
Q: Has the Supreme Court addressed this issue in any way?
A: The Court granted certiorari in a single case, shortly after the publication plans went into effect in the mid-1970s, but it did not reach the issue in its decision. Over the intervening thirty years, it has denied cert on the issue over thirty times. While the Court has not directly taken on the constitutional question, it has dealt with unpublished opinions tangentially. First, it has cited to unpublished opinions freely and taken cert in cases where the decision below was unpublished. Second, the court has granted cert in cases based on a split in the circuits where a published opinion was in conflict with an unpublished opinion. Because the Court does not take cases for mere error correction but to resolve inconsistencies in the governing law of the various circuits, taking these cases indicates that in the Court’s view, unpublished opinions are law. Finally, there is a single case, in which the full Court speaks directly to the unpublished opinion issue. In a case called Commissioner v. McCoy, the Court reviews and reverses the circuit court’s opinion below, “regardless of any assumed lack of precedential effect of a ruling that is unpublished.” The Supreme Court has never expressly reviewed the propriety of limited publication and precedent rules, but neither has it ever accepted the proposition that these unpublished decisions may be denied precedential value. My second article, Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev.___ (2009)[SSRN], examines the Court’s actions in this regard and the substance of the many petitions for review of the unpublication system. The issue of whether unpublished opinions can properly be denied precedential value is a fundamental question that should not be left to eventual rule change or practical erosion of the denial of precedent. The Supreme Court should step in and resolve this.
Q: Given the numerous denials, is Supreme Court review likely?
A: It’s difficult to say. There are so many cases vying for the Court’s attention each term and so few cases the Court can actually hear. But in Draining the Morass, I identify a number of promising statements by current members of the Court. For example, Justice Stevens has long been a critic of the limited publication and precedent rules; he spoke out against the practice as early as 1976 and as recently as 2006 expressed concern that unpublished opinions were being used to make decisions that would otherwise be difficult to justify. Justices Scalia and Thomas have espoused the same historical view of precedent relied upon by the judicial power discussion noted above. And, Chief Justice Roberts and Justice Alito both served on the committee that created and approved FRAP 32.1, so whatever they might hold on the issue, they are at least aware that it is a concern and one that FRAP 32.1 did not address. These and the other Justices have commented on the problem of volume in the federal courts and the problems inherent in the unpublication solution. That’s certainly no guarantee that cert will be granted. Nonetheless, the Justices are certainly aware that this is an important issue.
Q: Until the Court decides to review the issue, what is the present status of these unpublished cases and what does that mean for the law librarian and other legal researchers?