November 28, 2009
What If Marijuana Production Was Legalized: Projected Tax Revenues by State
Has the time finally arrived to decriminalize marijuana and tax the hell out of commercial sales of it for needed state revenue?
The AMA is urging the federal government to remove marijuana from Schedule One of the Controlled Substances Act. A Gallup poll in October found that 44 percent of Americans favor full legalization of marijuana. That's an increase of 13 percentage points since 2000. Gallup said that if public support continues growing at a rate of 1 to 2 percent per year, "the majority of Americans could favor legalization of the drug in as little as four years." See Karl Vick's Washington Post story, Support for legalizing marijuana grows rapidly around U.S. See also On Marijuana Prohibition and Protecting Young People posted by Alex Kreit on Concurring Opinions ("One thing that I think is clear, however, is that prohibition has not been effective at keeping marijuana out of the hands of young people and that there is certainly no reason to think it would be more effective than a well designed tax-and-regulate system.")
Check out Sloshspot's graphic, which illustrates the federal tax dollars spent to keep marijuana illegal, and the possible tax revenues that could be generated if marijuana production were legalized and taxed like any other agricultural product. [JH]
Round-Up of State Practitioner Blogs
Florida Criminal Attorney Blog
Reviews criminal law cases, news and reports in Florida. Published by the Law Offices of Jason M. Melton, PA.
Jacksonville Criminal Defense Lawyer Blog
Analyzes criminal law news, matters and opinions in Florida. Published by the Apple Law Firm, PLLC.
Fort Lauderdale Injury Lawyer Blog
Covers injury law cases, opinions and matters in Florida. Published by The Citron Law Firm, PA.
Alabama Car Accident Lawyer Blog
Provides opinion on auto accident reports, cases and news in Alabama. Published by Martinson & Beason, PC.
Sports Agent and Sports Lawyer Blog
Discusses sports law and management news, opinions and reports in Florida. Published by Wolf Sports Management and Sports Law Firm Koch & Trushin.
Tennessee Employment Lawyer Blog
Provides insight on employment law news, cases and opinions in Tennessee. Published by The Higgins Firm.
New Jersey Criminal Defense Attorney Blog
Examines criminal law cases, reports and news in New Jersey. Published by the Law Office of Anthony J. Vecchio, LLC.
November 27, 2009
Photographs of Vintage Computers and the Stories Behind Them
Time is featuring an annotated slideshow of Mark Richard's stunning photographs of vintage computers. Additional images on the photographer's website. See also Core Memory: A Visual Survey of Vintage Computers, text by John Alderman, photography by Mark Richard. From the book's product description:
Core Memory reveals modern technology's evolution through the world's most renowned computer collection, the Computer History Museum in the Silicon Valley. Vivid photos capture these historically important machines including the Eniac, Crays 1 3, Apple I and II while authoritative text profiles each, telling the stories of their innovations and peculiarities. Thirty-five machines are profiled in over 100 extraordinary color photographs.
While "a picture is worth a thousand words," the images fails to tell the complex story of the early days of coumputing and the computer research pioneers whose contributions have been largely overshadowed in the public mind by IT entrepreneurs. Core Memory, the book, provides some information but there are better resources. Severo Ornstein's Computing in the Middle Ages: A View From the Trenches 1955-1983 (Authorhouse, Nov. 15, 2002) is designed for the lay reader who wishes to understand some of the background of the computer revolution. He provides an account of what took place in computer research between the 1950s and the 1980s. From the book description:
[T]he author was 'in the trenches' where seminal experiments were taking place, first at MIT and later at other universities and research centers. His unassuming story ... a breezy and irreverent memoir enlivened by amusing anecdotes from his professional and personal experience ... gives a human dimension to the otherwise dry and often obscure process of scientific and engineering innovation.
For a more technical history of early computing, see The First Computers--History and Architectures (MIT Press, Aug. 7, 2002). The book focuses on the actual architectures of the first machines that made electronic computing a practical reality. [JH]
Top Ten Book Covers of the '00sAs selected by the Ben Pieratt on The Book Cover Archive Blog. Hat tip to LISNews. [JH]
November 26, 2009
Historic Thanksgiving Proclamations
Thanksgiving at Plimmoth
November 25, 2009
CSI: Google Scholar
Whether Google Scholar is going to seriously challenge the wexis's of the world is not my concern here. Nor is its current lack of serious search functionality. It is about what happens when you search Google Scholar because whether we like it or not, if it is Google, "they" will use it. Especially if Google decides to include case opinion results in the general Google search results. So, in order to be prepared, I investigated how the new kid in town might influence or change someone's research results.
My test project: Find cases in N.Y. courses on cosmetic surgery that didn't go so well.
My limits: New York cases
My search terms:
I did what I imagine most law students would do. This means my search was: cosmetic surgery
(Perhaps they might add negligence, but I'll keep it simple for the sake of the blog.)
So what happened?
I retrieved 50 cases from the three levels of court in N.Y. which included published and some unpublished decisions. Not so bad. However, four of the cases were listed twice. First with its reporter citation and then further down in the list a slip opinion. So the numerical result was really 46. Note that one of these cases also had an appellate level opinion listed; however, you would need to know the publication patterns for N.Y. reporters to realize this as Google Scholar does not use their muscle to make the connection for you.
The order that the cases were placed in remains a mystery.
Interestingly, two of the first four cases were fairly famous cases in N.Y., but not for torts centered around cosmetic surgery. They are famous for parents raising religious objections to medical procedures performed on their child. Neither of these cases, In re Siefirth nor Matter of Sampson, mention the phrase "cosmetic surgery." Seifirth was decided in 1955. The term "cosmetic surgery" was not even being used. Sampson dealt with a blood transfusion and had nothing to do with cosmetic or plastic surgery
So why are they in my results list?
- Was Google adding odd metadata like they are doing with the book scanning project?
- Was the search engine just sloppy?
I learned the answer from Andrew Larick-Plumb's now infamous post on the Case Western law library blog. Apparently, Google scholar is not searching the text of the the cases. It is searching the text of the documents listed in the "How Cited" tab that appears next to the case list and analyzes linking patterns to create a results list. Sampson showed up in the hit list because in the literuture it is often linked with Seifirth. Both are early cases that discuss the parents' right to exercise their religious freedom in choosing health care for their children.
Comparing to Wexis:
I did not compare the case results from Google Scholar to other free resources because there are no other free resources that allow you to search across all three levels of NY courts. I reran the same search in appropriate N.Y. cases databases on Lexis and Westlaw and limited my results to cases that were decided after 1949. Of course nither Seifirth nor Sampson were in the results lists from either company because they do not contain the phrase "cosmetic surgery." But neither were 10 other cases.
Westlaw gave me 45 hits and Lexis gave me 44 hits. Between Westlaw and Lexis, there were three unique cases. In Westlaw, three cases showed up that did not show up in Lexis though 2 of the 3 did show up in Google Scholar. In Lexis, there was one case that was not reported in either Westlaw or Google Scholar, and one case that was reported in Google Scholar but was not reported in Westlaw. The two cases on Lexis that were not reported on Westlaw were both reported only in the New York Law Journal which explains why it was not picked up in the case law database I chose on Westlaw (NY-CS). That one case that was unique to Westlaw was an unpublished decision from a lower N.Y. civil court which helps explain why it was not picked up by either Lexis or Google Scholar.
With respect to Google Scholar as compared to wexis, there were a total of 10 cases picked up by Google Scholar that were not reported in either Westlaw or Lexis. Only one of the nine seems to be relevant and I am not sure how to explain why the search in Westlaw and Lexis did not pick up that one case. It was a 2008 slip opinion from the trial level that was about a cosmetic surgery gone bad. None of the other 9 cases that were unique to Google Scholar had the sought-for phrase. Considering the small set of results, this is rather a large subset to sift through. I larger set of results would make it very annoying to work with.
From the other side, there were 12 cases reported on Westlaw and Lexis that should have been picked up by Google Scholar if it indexed its cases instead of creating linking patterns based on citations in literature, and had a full set. In fairness, the missed cases were unpublished decisions that were mentioned only in an Appendix to the reporter or not published at all. We are not going to miss them too much.
Certainly, this method of case discovery has some interesting benefits. It will, of course, pick up cases that are note worthy enough to deserve merit by an author. From an academic perspective, this might be a way to jump start a note topic or seminar paper. It isn't the best way to do so, but if we are looking for ways to use this new tools, this could be a good way.
Will I teach students about it? Yes, of course. And I will go through this same exercise with them so that they understand the process of the tool and where it fits in their tool bag. I think once they run into snafus like what I found with Seifirth and Sampson, they may be more discriminatory about relying on it. (VS)
Friday Fun on Wednesday: A Little Thanksgiving Music Festival
Happy Thanksgiving! [JH]
Would Yesterday's Law Librarian Recognize Today's Law Librarian? Will Today's Law Librarian Recognize Tomorrow's Law Librarian?
Theodora Belniak's The Law Librarian of the Twentieth and Twenty-First Centuries: A Figuration in Flux appears in the currrent issue of LLJ. It's a revised version of a winning entry in the student division of the 2009 AALL/LexisNexis Call for Papers Competition [2010 call for papers] and clearly worthy of the award. Reviewing the professional literature, Belniak outlines how the archetypal law librarian has changed over the last one hundred years. This is the sort of article law librarians "of a certain age" read as they reflect upon their careers. From the article's conclusion:
The skills and knowledge of the archetypal law librarian have changed drastically over the course of the century. From local to national to international, legal sources have increased exponentially. From mail by post to e-mail, and from printed matter to electronic databases, technology has transformed the methods of information classification and dissemination. Self-education and collaborative learning have been replaced by accredited M.L.S. and J.D. degree programs. In short, everything has changed.
Despite this, the figuration of the law librarian retains some constants. In each exposition of this figure, from the early 1900s to today, the most important element in determining professional success was and is the ability to anticipate changes in the sources and methods of communication and to integrate unanticipated changes to better serve patrons. The law librarian is a figuration in and of flux, evolving in response to environmental changes and incorporating new information and technologies. The librarian is always a little uncomfortable and is never settled; the discovery of new legal landscapes ensures that complacency cannot be a characteristic of the figure in any time period. And, regardless of the particular knowledge or skills expected of the law librarian, it is this dynamic interaction with the legal and library environment that defines law librarianship as a profession.
There is nothing to suggest an end to the growth of legal information and sources, or an end to the creation of various classification or communication technologies. Whether working from an office in a law library or working remotely from home, the law librarian of the future will seem nothing like the librarian of present when comparing qualifications, skill sets, experience, and knowledge. However, when evaluating the future law librarian’s ability to adapt to change and to embrace unanticipated outcomes, it will be oddly similar to that of the twentieth century’s and today’s figurations.
Tarlton Law Library Launches BlogUT's Tarlton Law Library has launched its first blog, Tarlton Library News. [JH]
Keep an Eye Out for Lee Peoples' The Citation of Blogs in Judicial Opinions
The Citation of Blogs in Judicial Opinions [SSRN] by Lee Peoples (Oklahoma City University School of Law) reports the results of an exhaustive study examining the citation of blogs in judicial opinions. From the abstract of what appears to be a very interesting article. Unfortunately it is not yet available for downloading from SSRN:
The article begins with an exploration of opinions citing blogs for their discussion of substantive legal issues. The unique status enjoyed by several boutique blogs is examined including the importance of Douglas Berman’s Sentencing Law and Policy blog in the wake of the Supreme Court’s Blakely and Booker decisions. The citation of blogs for factual information is discussed and the impact of these citations on litigants’ constitutional and procedural rights, the law of evidence, judicial ethics, and the judicial role in the common law adversarial system are explored.
Serious questions about the preservation of blogs cited in judicial opinions have yet to be answered. They way that blogs are cited in judicial opinions varies widely. Some judges do not provide enough information to accurately retrieve the blog post viewed by the court. Blog entries frequently change after they are posted. Some blog entries and entire blogs disappear without warning. There is currently no uniform approach to archiving or preserving blogs. Detailed statistics on the completeness and accuracy of citations to blogs in judicial opinions are provided. A set of best practices detailing when and how blogs should be cited is proposed. The Judicial Conference’s recently released Guidelines on Citing To, Capturing, and Maintaining Internet Resources in Judicial Opinions are discussed and critiqued. Solutions explored at the Future of Today’s Legal Scholarship Symposium held at the Georgetown Law Center in July of 2009 are evaluated. The article concludes with a discussion of the impact of blogs on the future of the law.
See also The Citation of Wikipedia in Judicial Opinions by Lee Peoples, which can be downloaded from SSRN. [JH]
November 24, 2009
Facebook photos cause woman to lose health benefits
Last week, we blogged about what is perhaps the first case in which a Facebook update served as an alibi for a suspect accused of armed robbery. Now comes the flip side of that story from Siliconvalley.com: A Canadian woman who took sick leave due to depression but then lost her benefit payments when the insurance company saw photos on her Facebook living it up at a Chippendale's show.
Nathalie Blanchard said Monday she was diagnosed with major depression and was receiving monthly sick-leave benefits until payments dried up this fall.
When Blanchard called her insurance provider, Manulife, to find out why, she says she was told the Facebook photos showed she was able to work.
"If you have insurance, be careful. This is a major battle and it's not going to be easy," Blanchard, 29, said in a telephone interview from her home in Bromont, Quebec.
She said her insurance agent described several pictures Blanchard posted on Facebook, including ones showing her having a good time at a Chippendale's bar show, at her birthday party and on a sun holiday.
Blanchard said Manulife told her it was evidence she is no longer depressed.
You can read the rest here.
Hat tip to BNA Internet Law News.
PACER Survey for Everyone: Online User Satisfaction Survey Now Underway
The Administrative Office of the U.S. Courts is in the midst of an assessment of PACER. This PACER User Satisfaction Survey will only take a few minutes. We plan to submit the responses we receive below to the A.O. for their analysis and improvement of PACER.
Great idea. See also AO's PACER User Survey Underway. [JH]
Call for Suggestions for Crowdsourcing Google Scholar Legal Opinions & JournalGreg Lambert and Toby Brown are looking for ideas for a Google Scholar Legal Opinions & Journal crowdsourcing project. Got one? Comment to their post on 3 Geeks and a Law Blog. Great idea for a collaborative test drive! [JH]
ABA's Best Practices in Employing Lawyers with Disabilities Report
The Second National Conference on the Employment of Lawyers with Disabilities: A Report from the American Bar Association to the Legal Profession (2009) provides guidance on the best practices for employment of lawyers with disabilities as well as mentoring, retaining and promoting lawyers with disabilities. Additionally, there is guidance and insight as to how lawyers and law students with disabilities can attain employment. Topics covered in the Report include:
- The status of lawyers and law students with disabilities, including statistics and surveys, and why we need lawyers with disabilities in the profession
- How to make the transition from law school to the workplace with a disability
- How and why you should recruit, hire, retain, and promote lawyers with disabilities
- Personal stories and anecdotes from lawyers with disabilities, including the first blind U.S. Supreme Court clerk, an associate General Counsel, and an official from President Obama's White House staff
- Why it is important for legal employers to pledge their commitment to disability diversity with the Pledge for Change
- Practical tips on how to make your place of employment both welcoming and legally compliant for those with disabilities
- A one-stop source for disability information in the legal profession, such as: ABA programs and policies for lawyers and law students with disabilities, state and local bar programs for lawyers with disabilities, national disability law organizations, and scholarship information for law students with disabilities.
The Report also urges people to sign the Commission’s Disability Diversity in the Legal Profession: A Pledge for Change which encourages legal employers to implement and promote disability diversity in the legal profession. [JH]
New Book Portrays Supreme Court Justices as Political Operators
“In this beautifully written and extensively researched study, Barry Friedman explodes the common myth that the Supreme Court regularly thwarts the will of national majorities. The next time you hear a politician or pundit blather on about an out-of-control judiciary, tell them to stop pontificating until they have read this remarkable book.” Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School. The book Balkin is reviewing is NYU law prof Barry Friedman's The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux, Sept. 29, 2009). From the book description:
Friedman’s pathbreaking account of the relationship between popular opinion and the Supreme Court—from the Declaration of Independence to the end of the Rehnquist court in 2005—details how the American people came to accept their most controversial institution and shaped the meaning of the Constitution.
A Q&A with the author appears in Danielle Citron's Concurring Opinions blog post. [JH]
Bluebook Questions: There's not an iPhone app for that, but there is Blue Tips
The editors of The Bluebook have compiled Blue Tips, a compilation of brief answers to questions received on Bluebook format in the following categories:
Hat tip to Amy Burchfield, Access & Faculty Services Librarian, Cleveland-Marshall College of Law, for her CM Law Library Blog post. [JH]
November 23, 2009
On "Tabs and Sidebars War" and the Prospect for Improved WEXIS Usability in a Duopoly
In Duopolies, web usability, and legal research instruction, Tom Boone, reference librarian and adjunct professor at Loyola Law School in Los Angeles, highlights the consequences of the current structure of the WEXIS-dominated legal database search market. "The West/Lexis duopoly doesn’t provide consumers with the expected advantages of a free market economy. Neither vendor uses price as a marketing strategy, and both negotiate electronic database contracts with customers rather than charge a flat rate," writes Boone. Instead both companies rely on content and features including "an abundance of subject-specific organization" to market their online search services. However, neither company is addressing the existing problems in the web interfaces for them. "No one is redesigning the engine, so to speak. These are simply variations of the now traditional roll-out of new features and functionality on top of existing ones that still have the same significant issues." Boone observes
The wide availability of secondary resources, annotated codes, and numerous other value-added content provides a clear advantage for Lexis and Westlaw over free and mid-level legal information services, and that’s why everyone continues to pay their steep prices. But so long as the systems themselves don’t provide usable access, each still suffers from filter failure.
Why no improvement in WEXIS usability? From Boone's excellent analysis of the situation:
This is the problem with a duopoly. There aren’t enough producers in the economy to assert significant pressure on either to improve usability. Consumer power is also limited because multi-year contracts prevent easy product substitution, and there’s only one true product substitute available. The producers dictate the competition, and thus far they have dictated a content competition (”The Tabs and Sidebars War”), rather than a usability one — or even a price one.
If the market is going to change, it won’t be because Lexis and Westlaw spontaneously decide to improve products that generate significant profits already. Until then, legal researchers need to be better educated on the limitations of these systems so that their work product isn’t compromised by over-reliance on a duopoly disguised as a free market.
Is change coming? "It’s far too early to know if [the addition of legal opinions and journals on Google Scholar] will become a true player in legal information, but Google always has the potential to be a game changer with anything it does," writes Boone. See his Duopolies, web usability, and legal research instruction post on VoxPopuLII. Highly recommended. [JH]
Amended Google Book Settlement Agreement Moves Forward
US District Court Judge Denny Chin granted preliminary approval to the Amended Google Book Settlement Agreement on Nov. 19th [text of order] and set the following schedule for proceeding forward:
Dec. 14, 2009: Supplemental Notices sent about the Amended Settlement Agreement
Jan. 28, 2010: Deadline for filing objections; Opt-out deadline for affected class members
Feb. 18, 2010: Final settlement/fairness hearing
James Grimmelmann is reporting that Amazon filed a motion on Nov. 20th asking Judge Chin to reconsider his ruling preliminarily approving the amended settlement. "It’s a full-on attack on the settlement," writes Grimmelman. "Amazon’s theory is that the future-claims issue is such a fundamental flaw in the settlement that there is no way Judge Chin could ultimately approve it." See GBS: The Game Is Afoot for details.
Copyright Clearance Center Podcast. Copyright law expert Lois Wasoff highlights the most noteworthy changes and their potential impact on rightsholders and their works in the amended settlement agreement in a podcast commissioned by Copyright Clearance Center. Some of her main points include:
- the underlying structure of the agreement and many of the economic terms of the agreement have not changed
- the revised proposal makes it more difficult for Google to simply decide a work is not commercially available and start to use it for display uses
- procedurally, the parties really have taken a step back by asking the court for preliminary approval of the settlement and of the class, which is something that they had gotten for the prior version a year ago. However, coupled with that request is a proposal for a fairly aggressive timeline moving forward, keeping this agreement review and approval process moving.
See also Fred von Lohmann's EFF blog posts on evaluating access and competition in the amended settlement agreement, Berkeley law prof Pamela Samuelson's New Google Settlement Aims Only to Placate Governments and Peter Hirtle's GBS: A Legislative Solution?
Impact on Libraries. On the impact of the amended settlement agreement on libraries, Columbia University Libraries' Kenneth Crews writes:
GBS 2.0 is a double whammy for libraries. First, the ISD’s scope is slashed. No longer “worldwide,” the settlement is now only about books registered with the U.S. Copyright Office (which will be dominantly U.S. books), and books originating from the United Kingdom, Canada, and Australia. Gone are all other books from Europe, Asia, Africa, South America, and other regions. Because the settlement is now tightly limited, so will be the ISD. The big and (probably) expensive database is no longer so exciting. Many of the books under GSB 2.0 are likely already available to many libraries.
The second whammy is legal. Because the settlement does not cover all books, liabilities surrounding some large portion of the books already shipped by libraries and scanned by Google are not released. Copyright owners from France, Argentina, New Zealand, and China retain the right to commence yet another lawsuit against Google, conceivably drawing libraries into the melee. Why the libraries? Rightsholders could claim that libraries are “contributory infringers” by making the books available. Moreover, many libraries and Hathi Trust, continue to hold book scans received from Google that are now outside the settlement.
LLB's resources post for the Amended Google Book Settlement Agreement (Nov. 14, 2009). [JH]
SCOTUS Has Never Seen the Likes of Associate Justice Antonin Scalia: First Full-Scale Biography Published
From the book description of Joan Biskupic's American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (Farrar, Straus and Giroux, Nov. 10, 2009):
If the U.S. Supreme Court teaches us anything, it is that almost everything is open to interpretation. Almost. But what’s inarguable is that, while the Court has witnessed a succession of larger-than-life jurists in its two-hundred-year-plus history, it has never seen the likes of Supreme Court Justice Antonin Scalia.
Combative yet captivating, infuriating yet charming, the outspoken jurist remains a source of curiosity to observers across the political spectrum and on both sides of the ideological divide. And after nearly a quarter century on the bench, Scalia may be at the apex of his power. Agree with him or not, Scalia is “the justice who has had the most important impact over the years on how we think and talk about the law,” as the Harvard law dean Elena Kagan, now U.S. Solicitor General, once put it.
Scalia electrifies audiences: to hear him speak is to remember him; to read his writing is to find his phrases permanently affixed in one’s mind. But for all his public grandstanding, Scalia has managed to elude biographers—until now. In American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, the veteran Washington journalist Joan Biskupic presents for the first time a detailed portrait of this complicated figure and provides a comprehensive narrative that will engage Scalia’s adherents and critics alike. Drawing on her long tenure covering the Court, and on unprecedented access to the justice, Biskupic delves into the circumstances of his rise and the formation of his rigorous approach to the bench. Beginning with the influence of Scalia’s childhood in a first-generation Italian American home, American Original takes us through his formative years, his role in the Nixon-Ford administrations, and his trajectory through the Reagan revolution. Biskupic’s careful reporting culminates with the tumult of the contemporary Supreme Court—where it was and where it’s going, with Scalia helping to lead the charge.
Even as Democrats control the current executive and legislative branches, the judicial branch remains rooted in conservatism. President Obama will likely appoint several new justices to the Court—but it could be years before those appointees change the tenor of the law. With his keen mind, authoritarian bent, and contentious rhetorical style, Scalia is a distinct and persuasive presence, and his tenure is far from over. This new book shows us the man in power: his world, his journey, and the far-reaching consequences of the transformed legal landscape.