Law Librarian Blog

Lyons' Recommendations for Free Access to PACER Without Compromising Privacy and Security Interests

In Free PACER: Balancing access and privacy, Susan Lyons (Rutgers University (Newark) Law School Library) presents an excellent analysis of the issues resulting in the Administrative Office of the United States Courts' (AOUSC) abrupt suspension of the PACER pilot program that offered free access to PACER at 17 FDLP libraries. (Reported on LLB here.) Lyons offers four recommendations for how AOUSC can offer free access to PACER without compromising the legitimate privacy interests of litigants:

1. Release all court decisions and briefs in motions and appeals without restriction on the open Internet and make the files available in bulk to anyone requesting them.

2. Give attorneys and litigants free and unlimited access to their own dockets. Under the current system, when a new document is uploaded to the court’s electronic docket, parties receive an e-mail notice that allows them one opportunity to download the document to their own computer without charge.

3. Allow scholars doing empirical research on court records full access to bulk data.

4. Reinstitute the PACER pilot program and expand the pilot to all federal courthouses

For details, see Lyons' AALL Spectrum article. Highly recommended. See also LLB's post, Online Petition Drive Launched to Improve PACER. [JH]

Online Petition Drive Launched to Improve PACER

Erika Wayne (Stanford Law School Library) and others have launched an online petition drive directed at the Administrative Office of the US Courts to improve PACER. The petition reads:

We ask the Administrative Office of the U.S. Courts to improve PACER by enhancing the authenticity, usability and availability of the system.

We the undersigned, urge the Administrative Office of the US Courts (AO) to make the following changes to the PACER system:

For verification and reliability, the AO should digitally sign every document put into PACER using readily available technology.

PACER needs to be much more readily accessible if it is to be usable for research, education, and the practice of law. Improved accessibility includes both lowering the costs for using PACER and enhancing the web interfaces.

Depository libraries should also have free access to PACER.

You can sign the petition here. [JH]

Judge Sotomayor's 50 Most Important Opinions According to the PreCYdent Algorithm

USD Law prof Thomas Smith has used his PreCYdent SE algorithm to compile Judge Sotomayor's 50 most important opinions. [download from his post]. Smith is the driving force behind this sophisticated search engine. For a guide to web resources covering the Sotomayor nomination, see Vicki Szymczak's (Brooklyn) LLB post, Researching Sotomayor. [JH]

U.S. Tax Court Instructional Videos Now Available Online

Hat tip to Jacqueline Laínez (Memphis) for calling attention to the U.S. Tax Court's instructional videos on Clinical Law Prof Blog. The video series covers 1) Understanding the Process; 2) Introduction to the United States Tax Court; 3) Filing the Petition; 4) Pretrial Matters; 5) Calendar Call and Trial; 6) Post Trial Proceedings; plus introductoryand review videos. Each video page display includes links to relevant Tax Court website resources. [JH]

Stefanie Lindquist: Sotomayor Is Not an Activist Judge

Stefanie Lindquist (Texas), co-author of Measuring Judicial Activism (Oxford UP, 2009)(with Frank Cross (Texas)), applied the political science tools and activism classifications used in her book to SCOTUS nominee Sonia Sotomayor's published majority opinions since January 2001. Marcia Coyle reports on her findings in Sotomayor Is No Activist Judge, Says Author (National Law Journal, June 8, 2009). Check out the story for details.

More interesting as we approach the confirmation hearings is Lindquist and Cross' monograph, Measuring Judicial Activism. The authors' work is guided theoretically by the notion that, at its core, the concept of activism involves concerns over the judiciary's institutional aggrandizement at the expense of the elected branches. An important corollary idea is that such efforts are particularly "activist" when they further the justices' own policy or ideological objectives. From these core theoretical ideas, the authors identify specific empirical manifestations that reflect the expansion of judicial power. In particular, the authors evaluate the Court's exercise of judicial review to invalidate legislative and executive action. Lindquist and Cross also analyze the justices' willingness to expand the Court's power by granting litigants increased access to the courts and overruling the Court's own precedents. In these contexts, the book considers the extent to which these actions are consistent with the justices' ideological predilections. [JH]

Researching Sotomayor

As we get closer to the Sotomayor confirmation hearings, many of us are being asked for more information about the first Hispanic nominee to the United States Supreme Court. We should give a shout out to Georgetown University Law School Library’s Libguide on Supreme Court nominations. Not only do they provides background links for Judge Sotomayor, they also give us information about past nomination procedures. It is a very thorough guide that organizes a lot of detail in an easy to use format.

You should also consult the Library of Congress web site on Judge Sotomayor. At the LOC site, there is an expanded list of free web sites that will be tracking her progress to Souther’s seat. They also have some brief Lexis statistics on her past caseload and instructions on how to access this information for free at the Second Circuit web site by using “sotomayor” as your keyword.

As a librarian, I am quite grateful that our nominee as a fairly unique name to search! However, not everyone knows how to spell it properly. A review of law journals shows that both her first and last name cause problems for writers. Sonia is sometimes misspelled as Sonya, and Sotomayor is sometimes misspelled as Sotomayer. If you are searching the journal databases for articles that mention her, you are advised to use universal characters to replace the ‘I’ in Sonia, and the last ‘O’ in Sotomayor.

Out of the many free web sites covering this nomination, I found SCOUTUSBLOG to be most helpful. They are providing an analysis of her decisions and dissents on a variety of topics. For example, the first posting was on May 15 thand includes a review of her decisions on abortion, civil rights, environmental law, first amendment, second amendment, and international law. Also on this posting, under the heading Privacy and Information, librarians might be interested in reading about her decisions on access to information and FOIA. The analysis continues with supplements on May 18th, May 19th, May 20th, May 21st (dissents), and May 28th(circuit court splits). In addition to the case analysis, SCOUTUSBLOG gives us information about this woman’s legal victories and personal achievements. By following the tag “nominations” you will pull up all the postings so far. An added bonus on SCOUTUSBLOG is the updated Press roll on the judge and the nomination process. This is helpful to follow the controversy that naysayers are causing in this process which include matters of race, judicial activism, and the Judge’s rate of reversal.

While there are many articles and broadcasts criticizing and praising Judge Sotomayor, I found her own words posted on YouTubeto be particularly compelling. It does not reveal a lot about her legal rulings, but tells you about the person. This seems to be a growing concern among anti-Sotomayor interests. Many of the objections raised by the anti-Sotomayor camp can be summarized by reading the blog posts from conservative groups like The Judicial Confirmation Network.

President Obama wants the confirmation process completed before the August 7 th Senate recess. The Legal Affairs page at National Public Radio has an interesting post on how the Senate GOP might successfully stall the hearings, among other articles and podcasts about the Judge. C-Span will undoubtedly broadcast the hearings when they do take place along with many other media outlets. It will be interesting to see how much analysis takes place during those hearings and the sort of indexing librarians undertake with respect to her testimony. [VS]

For related Sotomayor coverage on LLB, see,e.g., Sotomayor: The News Coverage Angle and Sotomayor: "Court of Appeals Is Where Policy Is Made" In Context (and More Important Resources Like SCOTUSblog's Summary of Sotomayor's Opinions).

Editor's Note: Please welcome Vicki Szymczak as an LLB Contributing Editor. Vicki is the  Library Director and Assistant Professor of Law at the Brooklyn Law School where she teaches courses in Advanced Legal Research and International and Foreign Law Research. Vicki's professional interests encompass the role technology plays in information literacy, library services, and legal education. Her research interests include defining output measurements for law libraries and the impact of open source initiatives on law library operations. Vicki is an active AALL member and currently serves as chair of the Association's Computing Services Special Interest Section. Today's post is the first of many I believe LLB readers will find informative and stimulating. Welcome aboard Vicki! -- Joe Hodnicki

Stepping into the Future: Digital Versions of Arkansas Appellate Decisions Declared Official

"[The Arkansas Supreme Court] and the Court of Appeals will soon step into the future: effective July 1, 2009 the electronic version of appellate decisions posted on the Arkansas Judiciary website [link] will be the official reports of those decisions. Arkansas will be the first state in the nation to publish and distribute the official report of its appellate decisions electronically." In re: Arkansas Supreme Court and Court of Appeals Rule 5-2 (May 28, 2009).

Publication of the Arkansas Reports and Arkansas Appellate Reportswill end with volume 375 Ark./104 Ark. App. Hat tip to Coleen Barger (UALR Bowen School of Law), Legal Writing Prof Blog.

Digital Audio Recordings of Chrysler and GM Bankruptcy Proceedings on PACER

The United States Bankruptcy Court for the Southern District of New York is making digital audio recordings of court proceedings relating to Chrysler LLC, 09-50002, and General Motors Corporation, 09-50026, publicly available online on PACER. [JH]

The Process of Selecting Judge Sotomayor

From background memos to telling special interest groups to support the choice or get out of the way, to the President reading candidates writings and calling every member of the Judiciary, "something few if any presidents have done," Sotomayor Pick a Product of Lessons From Past Battles (New York Times) describes how Judge Sotomayor was picked as the Obama Administration's first SCOTUS nominee. [JH]

Judge Sotomayor, Legal Realist?

In 1996, Judge Sonia Sotomayor delivered a speech to law students about professional morality. She then turned it into a law review article, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U.L. Rev. 35 (1996)(with Nicole A. Gordon). The article gave Wall Street Journal Supreme Court reporter Jess Bravin sufficient fodder to declare Sotomayor a legal realist because she opened the article with a discussion of Jerome Frank's classic Law and the Modern Mind (1930). See Legal Realism Informs Judge's Views. Quoting Frank, of course, is the "stuff" speakers routinely do to lead into a discussion of the public's distrust of lawyers and the legal process before an audience of law students. As Chicago Law Prof Brian Leiter writes, Bravin's Sotomayor's article is "thin." See Leiter's Law School Reports blog post for more. [JH]

Sotomayor: The News Coverage Angle

Joe posted some wonderful links to resources for the nomination of Sonia Sotomayor to the Supreme Court.  I'd like to augment them with a few of my own.  Many of the news outlets have their own take on the nomination, and speculation runs rampant as to the "meaning" of the nomination and the story behind it.  Here is a roundup of some of the reporting.

CNN has its own page devoted to the nomination with statements from political leaders and noted commentators, some of whom have negative feelings towards the nominee.  There is a large collection of short videos (around 2  minutes each) that track Judge Sotomayor's personal story, her work on the Second Circuit, and the reaction of various interest groups to her nomination.

The Washington Post is all over the nomination in its general news coverage.  However, the Post has its Opening Arguments blog that tracks all things related to the nomination.  The blog tracks the political aspects of the nomination, as well as links to documents that are relevant to the discussion. 

One of the most fun political blogs is FiveThirtyEght, written mostly by Nate Silver.  This was a great resource for the last election cycle as its strength is forecasting results based on statistical tracking and analysis.  The site accurately predicted the electoral margin of victory for Obama, as well as most House and Senate races (compared to other political sites).  In one current post, the site notes that current senators voted 36-11 to confirm Sotomayor in 1998. 

This story from the Chicago Tribune notes comments from various individuals.  One of the best quotes in it comes from former Yale Dean and current Judge Guido Calabresi of the Second Circuit:  "We have some judges on the left end of the spectrum. Sonia's well in the middle.  That's one of the things I have been pointing out to people. . . . Activism has a meaning -- judges who reach out to decide things that aren't before them. Sonia simply doesn't do that."

The New York Times has its own "Choosing the Next Justice" page with a roundup of all of its coverage.

In case anyone is wondering, foreign newspapers hardly have any coverage on Judge Sotomayor's nomination beyond single news stories about it.  The news frenzy is purely American.  [MG]

Sotomayor: "Court of Appeals Is Where Policy Is Made" In Context (and More Important Resources Like SCOTUSblog's Summary of Sotomayor's Opinions)

The question asked during a panel discussion at Duke Law School in 2005: Where should a law school student clerk? District Court ("doing justice to the individual case" by examining the facts) or Court of Appeals ("always thinking about the ramifications of the ruling"). SCOTUS nominee Judge Sonia Sotomayor's response in context in the below video clip.

SCOTUSblog is summarizing Judge Sotomayor's opinions in a multi-part series. First installment, Judge Sotomayor’s Appellate Opinions in Civil Cases, to be followed by a summary of additional civil cases, as well as Judge Sotomayor’s leading criminal law opinions.

Early Reactions. See Room for Debate Blog's Sotomayor: Does Biography Matter? (New York Times) for comments by Cristina M. Rodríguez, Richard A. Epstein, Lani Guinier, Eugene Volokh,  Glenn Greenwald and others. Nareissa Smith (Florida Coastal) is reviewing initial reaction to the nomination on Constitutional Law Prof Blog: Part I and Part II: On the Issues.  

Predictions. On Brookings, Richard Wheeler says there is no doubt that U.S. Appeals Court Judge Sonia Sotomayor will be confirmed to replace retiring Justice David Souter in Will Judge Sonia Sotomayor be Confirmed as a Supreme Court Justice? (video clip) See also the ABA Journal's The Four Likely Lines of Attack Against Sonia Sotomayor according to SCOTUSblog contributor Thomas Goldstein. [JH]

Obama Picks Sotomayor for Supreme Court

President Obama has nominated Judge Sonia Sotomayor to replace Justice Souter on the Supreme Court.  Judge Sotomayor was on the short list of candidates assembled by pundits and the press.  She was appointed to the Second Circuit in 1997 by President Clinton.  Her prior appointment to the United States District Court for the Southern District of New York came in 1992 by the first President Bush.  Judge Sotomayor graduated from Princeton University in 1976 with a bachelor of arts in history and from Yale in 1979 with a law degree.  She was editor of the Yale Law Journal as well.

Judge Sotomayor's most recent notable case is Ricci et al. v. DeStefano, which upheld New Haven's right to throw out promotional exams for firefighters when no black firefighters passed the test.  That case is before the Supreme Court awaiting a decision.

Coverage on the nomination is developing.  Here are stories in the Washington Post, the Los Angeles Times, the Washington Times and the New York Times.  The consensus in the news seems to be that democrats are pleased with the pick, and republicans are guarded.  There is some instant analysis in the Washington Post by political writer Chris Cillizza on how this nomination will draw Hispanic voters to the democrats.  More news on the nomination as it develops.  [MG]

Playing Musical Chairs Because SCOTUS Life Tenure is Just Too Damn Long

How can we regain the benefits of judicial independence and regular rotation on SCOTUS? In Supreme Court Justices Have It Too Good, Jack Balkin (Knight Professor of Constitutional Law and the First Amendment, Yale LS) suggests "a good rule of thumb would be that a president should be able to appoint a new justice every two years." Two snips:

[The] regular rotation of justices in office serves [a] valuable purpose: it gives presidents the opportunity to staff the courts with jurists who reflect the constitutional values of a changing political world. The supreme court thus reflects – and should reflect – a diversity of views from jurists appointed at different points in time.

In an earlier era of shorter life expectancies, and a less powerful institution, we had the best of both worlds: justices enjoyed life tenure and presidents had fairly regular opportunities to pick new justices. This has changed dramatically in recent years.

According to Balkin, a constitutional amendment would not be necessary -- one wonders what justices Scalia and Thomas would have to say about that -- and plenty of work would be available to keep senior justices busy. [JH]

Ohio Supreme Court Justices Promote the Court's Website

According to The Salem News, Ohio Supreme Court justices pitched the Supreme Court's website recently while visiting the Columbiana County Bar Association. The site, tweeked in design with new content added, includes streaming video of oral arguments, with all oral argument sessions since March 2004 archived and viewable, court opinions and court news pages with RSS feeds.

The Court has also developed the Ohio Courts Network as a centralized warehouse of case-related data, enabling courts and justice system partners to share information and to support functions such as criminal history reviews, warrant and protection order searches, pre-sentencing investigations, background checks, handgun pre-purchase reviews and pre-custody reviews. Sixteen local courts are participating in the Ohio Courts Network. More local courts are expected to join. [Press Release] [JH]

Current Odds on Obama's Supreme Court Nominee

Judge Sonia Sotomayor is the current front runner for President Obama's nomination to the Supreme Court according to the Irish gambling website, Paddy Power. Here's the line for the top five:

Sonia Sotomayor  13/8
Diane Pamela Wood  9/4
Elena Kagan  4/1
Kim McLane Wardlaw  9/2
Kathleen Sullivan  8/1

Other notables: Cass Sunstein  16/1, Janet Napolitano  50/1, Hillary Clinton  100/1 and Michelle Obama  500/1 (federal anti-nepotism laws make the First Lady a very long shot). Place your bets here. To make "informed" bets, check out National Journal Online's The Ninth Justice Blog for "news and analysis on the search to fill the bench."

Hat tip to Fox News (of course). Note Paddy Power's early line on the 2012 US Presidential Election here. [JH]

Should SCOTUS Prohibit Ex Parte Blogging?

In Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy in an Internet Era, 61 Stan. L. Rev. 1535 (2009), Rachel Lee (Stanford Law School (2009), Prospective Law Clerk to the Honorable Susan P. Graber, United States Court of Appeals for the Ninth Circuit, 2009-2010), is sufficiently concerned about bloggers impacting the outcome of pending litigation to recommend that the Supreme Court should regulate ex parte blogging "despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues" and I might add, bring to daylight the discovery of errors.

Lee's Note is well worth reading. It is probably the first systematic analysis of the ethical implications of ex parte blogging and what its effects might be on different groups appearing before the Supreme Court. The Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications and concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Lee writes

Ideally, the members of the Court and their staff would refrain from reading any blog post relating to a pending case, whether written by attorneys involved in the case or not. If attorneys could rely on the Justices’ self-restraint, it would allow the profession to have the best of both worlds. Lawyers could speak out as they saw fit, enriching the public dialogue without danger of tainting the judicial process. Alternatively, if attorney conduct were regulated to prevent lawyers from engaging in ex parte blogging, while the Court also avoided the material, judicial self-regulation would provide another layer of protection for the impartiality of the Court’s decision-making process. However, the legal community is not in a position to bring about either scenario—the Court alone has the power to regulate itself.

Carolyn Elefant thinks any such SCOTUS rule is unnecessary. "I see no reason for regulation. Current ethics rules prohibit lawyers from trying to influence the judicial process so lawyers should not be blogging about ongoing cases for that reason. Moreover, because blogging is public, opponents have an opportunity to file comments in response." Quoting from Do We Need Ethics Rules on Ex Parte Blogging? on Legal Blog Watch.

OT: Remember crowdsourcing Kennedy v. Louisiana? [JH]

The Case Against a Fee-Based PACER

On Ars Technica, Timothy Lee presents an excellent review of recent criticisms of PACER leveled by open access advocates. [JH]

Do We Need a More Gender-Balanced SCOTUS?

Do we need another woman justice sitting on the bench for SCOTUS to have "social legitimacy"? Or is there something more fundamental that women bring to the bench—something about the way they decide cases—that makes the need more urgent? In The Fairer Sex: What do we mean when we say we need more female justices? [Slate] Dahlia Lithwick outlines possible differences in the way men and women think about and rule on cases to make the argument that more women should be appointed to the Supreme Court.

Perhaps the issue isn't that we just need more women on the Court ... the issue may be that the Supreme Court needs less members who are wealthy white men. [JH]

Federal Court Workload Outpaces Judges Pay Raises

Workload of the Federal Courts Grew in Fiscal Year 2008. From the Third Branch:  "The work of the federal courts grew in all key caseload areas during fiscal year 2008. Appeals, civil, criminal and bankruptcy filings all increased when compared to FY 2007. The number of persons under post-conviction supervision and the number of defendants in the pretrial services system also grew. Caseload statistics for FY 2008 are available in the Judicial Business of the United States Courts 2008, on-line at www.uscourts.gov/judbususc/judbus.html." 

COLA Pay Raises for Federal Judges. Justices and judges of the United States are authorized to receive a 2.8 percent cost-of-living adjustment for 2009, retroactive to January 1, 2009.

Supreme Court:

• Chief Justice- $ 223,500
• Associate Justices- $ 213,900

U.S. Court of Appeals

• Judges- $ 184,500

U.S. District Courts

• Judges- $ 174,000

U.S. Court of International Trade

• Judges- $ 174,000

U.S. Court of Federal Claims 

• Judges- $ 174,000

U.S. Bankruptcy Judges

• Judges-$ 160,080

U.S. Magistrate Judges (Full-Time)

• Judges- $ 160,080

[RJ]