Law Librarian Blog

What's the Over-Under Bet? Originalism, Law & Economics, and Intellectual Property

In the "now for something completely irrelevant" category to the dustup between Scalia and Posner about Reading Law (2012) [something relevant here], I like both Scalia and Posner. They are "characters." It is not that I have any sort of personal relationship with either but as a nearly invisible PTE at the University of Chicago Law Library while attending Chicago's Graduate Library School in 1978-1980, I sorted Scalia's mail with him looking over my shoulder on Saturday mornings. I also routinely had to step over the library's books that were spilling out of Posner's office into the library's walkways to get to the stacks to pull something from the shelves.

I accepted the opinion of the professional librarians that Scalia was an up-and-comer. Mention was not made about his "orignialism" at the time but then we law librarians do have a professional bias toward performing legislative history research.

With plenty of time on my hands working weekends at Chicago's Law Library, I spent a fair amount if it reading Posner's classic The Economic Analysis of Law (multiple copies on reserve). It was the first treatise that made me start thinking about "The Law" because what Posner wrote was so foreign to my then naive understanding of what the law is. It was just by chance that reading and scratching my head over Law & Economics was a productive exercise because Posner et al. has proven to be the only "Law & ..." academic-produced school of thought that has had any real impact in the world of statutory and regulatory developments.

In an issue close to the interests of legal information professionals, drums have been beating about rescuing IP legal analysis from the myopia of the Law & Economics school which reduces intellectual property to economic efficiency arguments. The scholarly arguments come from Law & Culture's public policy analysis which attempts to reframe IP as cultural property. See Reclaiming IP Legal Analysis from Law and Economics. Not good enough without proving that the costs associated with IP are inefficent under a Law & Econ analysis.

Toss in an originalist interpretation of the "Copyright Clause"? Limited duration was viewed in the context a person's working life by our Founding Fathers. Applied to books, maps and charts, the Copyright Act of 1790 was for 14 years, with an option to renew for another 14 years. Clearly, this dovetailed into the human life span context. Too bad, however, that the Founding Fathers did not simply state "until the creator dies."

Toss in a more fundamental public policy argument that the current IP regime cannot be effectively enforced in the 21st century because of the inability to police widespread social behavior. See "Hacking" New and Old Prohibitions: From the 18th Amendment to Today's Copyright Laws. Will that resonant with legislators who remember the arguments found in Thoreau's Resistance to Civil Government (Civil Disobedience) (1849)?

What's the over-and-under bet on that happening when legislators' pockets are being filled by corporations whose lawyers are drafting copyright legislation.

Traditionally Congress has relied on copyright lawyers from the major interested companies, to sit down and write copyright legislation, a recipe not designed to protect the public interest. Congress shows little interest in becoming educated in the details of copyright legislation, enacting what the major interested parties agree on. The line at the top of the page [Article I, Section 8, Clause 8] from the U.S. Constitution is the charge given to Congress to "to promote the Progress of Science and useful Arts, by securing for limited Times..." Recent experience, and economic theory suggests that enlarging and encouraging the public domain and "intellectual and innovative commons" may do more to promote the progress of science and useful arts than locking material away as coporate asset. And "limited times" is surely not 95 years.

Michael Webb, Patent, copyright and posterity: Intellectual property and intergenerational rights. [JH]

NY Court of Appeals Formally Adopts Pro Bono Requirement For Bar Admission

I wrote last May about the 50 hour pro bono requirement the New York Court of Appeals planned to put in place for bar applicants in New York State.  The Court announced its formal rule last week and included an explanatory document on the rule.  Some of the relevant details about the rule include that the pro bono requirement will go in effect for anyone seeking admission to the bar after January 1, 2015:

Based on successful passage of the bar examination, any applicant who seeks admission to practice in New York after January 1, 2015 must satisfy the 50-hour requirement.  By way of example, any student commencing legal studies at an ABA-approved law school in the Fall of 2012, or any time after that date, will be required to satisfy the Pro Bono Requirement before admission to the New York bar.  The requirement need not be fulfilled before a law student applies to take the New York bar examination; rather, the 50 hours must be completed before filing an application for admission.

This essentially affects students starting classes this year, assuming they plan on taking the New York Bar exam.  The rule states that the 50 hours could be fulfilled in any of the 50 states and the District of Columbia or even in a foreign country provided the service complies with the rule requirements.  There are additional requirements to explain why the service was performed outside of the United States.  Students will need to be supervised and will be required to fill out a Form Affidavit of Compliance for each separate project.  As the Court made the distinction of the dates between taking the bar exam and admission to the bar, it also noted that the bar exam results are good for three years.  A student or applicant who fails to fulfill the pro bono requirement in that time will not receive a waiver.  That individual will have to retake the exam.

The Court stated what types of projects would qualify:

In general, qualifying pro bono work should be performed in the service of low-income or disadvantaged individuals who cannot afford counsel and whose unmet legal needs prevent their access to justice; involves the use of legal skills for an organization that qualifies as tax-exempt under Internal Revenue Code §501(c)(3); or involves the use of legal skills for the court system or federal, state or local government agencies or legislative bodies.

Other parts of the document emphasize the use of legal skills as a key component.  Time spent photocopying or other incidental tasks do not qualify as pro bono time.  Some clinical academic work for credit can apply, as well as some limited circumstances where the student receives a stipend.  The rule specifically excludes partisan political activities from applying to the pro bono requirement.  Speaking of partisan political activities, the Court was silent on whether the recipients of the pro bono work should feel “entitled” to this “government program.”  [MG]

More on Justice Scalia

I’ll add a little bit to Joe’s post on Justice Scalia, Is Originalism Hitting Its Sell-By Date? "October 1 may be the first day of the post-Scalia era."  The Hill is reporting on Jeffrey Toobin’s new book, The Oath.  He describes Justice Scalia as “furious” and “enraged” that Chief Justice Roberts changed his vote on the health care decision.  The book describes the ideological struggle on the Court to revise constitutional analysis.  But there is more. 

The recent book by Justice Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, has received criticism by a number of individuals.  One of those critics, Judge Richard Posner, apparently stung Justice Scalia enough to respond.  The Chicago Tribune describes Posner of accusing Justice Scalia as “making flawed arguments based on sloppy research.”  Scalia struck back yesterday by saying "You can get away with it in The New Republic, I suppose, but not to a legal audience."  Oh, I don’t know.  I think anyone can say anything to anyone.  Judge Posner is a known quantity where people take notice of his statements whether on or off the bench. 

Other quotes from the Tribune: 

"We are textualists. We are originalists. We are not nuts," he said. 

Can I get that on a tee shirt?  And on Roe v. Wade: 

What's more, the court's subsequent decisions on abortion are based on the judge-made theory of "substantive due process," which guarantees certain fundamental rights like privacy. It's "utterly idiotic," Scalia said. 

The entire article is worth reading.  [MG]

Is Originalism Hitting Its Sell-By Date? "October 1 may be the first day of the post-Scalia era."

Baltimore Law prof Garrett Epps thinks Justice Scalia may becoming a solid vote on SCOTUS -- "sort of a Clearence Thomas who talks." Solid votes do not influence other justices, something Scalia once did.

At 76, Scalia may have legacy on his mind. That might explain the massive new book he has just published with Bryan Garner, Reading Law: The Interpretation of Legal Texts, which proposes nothing less than a Unified Field Theory of legal interpretation. It might explain the overblown publicity offensive of the summer (Piers Morgan, for heaven's sake? Was Rachael Ray not available?), reprising greatest hits like the ever-popular "Get over it!" It might explain his eagerness to tell the world that he holds no grudge against Roberts for saving the PPACA.

For much more, see Epps' Does Antonin Scalia Still Matter?

Watch for Scalia (and Garner's) Reading Law: The Interpretation of Legal Texts becoming a regular "Deal of the Day" feature on WestMart. After the buzz dies down for this "groundbreaking book" yadda yadda, I'm thinking the marketing pitch will be...

Reading Law is a collectible because it is the last traditional legal treatise published by Thomson Reuters.

[JH]

ScaliaLeaks!

In the latest Scalia-Posner dustup, this one being over Posner's review of Reading Law, Santa Clara Law prof Kyle Graham has ScaliaLeak-ed ... well, check it out for yourself on Concurring Opinions. I'm thinking TR Legal's marketing gurus are going Lady Gaga over all this publicity. See also On Scalia's (and Garner's) Reading Law: The Interpretation of Legal Texts.

Hat tip to Elie Mystal's Sept. 7, 2012 edition of ATL's Non-Sequiturs.

For more on Posner v. Scalia (Law & Economics v. Textual Originalism???), see David Lat's ATL post, The Benchslap Dispatches: Posner v. Scalia — Is It Personal? Hello Bloomberg, what's the chance of getting both former U of Chicago Law profs to agree to a video interview together? [JH]

"Partisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court."

The author of the quote used in this post's title (emphasis in the original), UC Irvine law prof Richard Hasen, adds "[i]n its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. For more about the consequences and implications of congressional gridlock, see Hasen's End of the Dialogue? Political Polarization, the Supreme Court, and Congress [SSRN].

Here's the article's abstract:

This Article considers the likely effects of continued political polarization on the relative power of Congress and the Supreme Court. Polarization already is leading to an increase the power of the Court against Congress, whether or not the Justices affirmatively seek that additional power. The governing model of Congressional-Supreme Court relations is that the branches are in dialogue on statutory interpretation: Congress writes federal statutes, the Court interprets them, and Congress has the power to overrule the Court’s interpretations. The Court’s interpretive rules are premised upon this dialogic model, such as the rule that Supreme Court statutory interpretation precedents are subject to “super strong” stare decisis protection because Congress can always correct an errant court interpretation. Legislation scholars also write as though congressional overriding remains common.

In fact, in the last two decades the rate of Congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of 12 overrulings of Supreme Court cases in each two-year Congressional term during the 1975-1990 period to an average of 4.8 overrides for each term from 1991-2000 and to a mere 2.7 average number of overrides for each term from 2001-2012. Although some of the decline seems attributable to the lower volume of Supreme Court statutory interpretation decisions, the decline in overridings greatly outpaces this decline in cases. Instead, partisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court.

In its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. The two recent examples are the Military Commissions Act of 2006, in which Republicans overturned the Court’s statutory interpretation decision in Hamdan v. Rumsfeld on the habeas corpus rights of enemy combatants, and the Lilly Ledbetter Fair Pay Act of 2009, in which Democrats overturned the Court’s statutory interpretation decision in Ledbetter v. Goodyear Tire & Rubber Company on how to measure the statute of limitations period in certain employment discrimination lawsuits. In a highly polarized atmosphere and with Senate rules usually requiring 60 votes to change the status quo, the Court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation.

Although political polarization has benefited the Supreme Court’s power relative to Congress in the short term, the longer term power relations are more uncertain. Aside from the statutory interpretation dialogue, Congress interacts with the Supreme Court in other ways, including through Senate confirmation of Supreme Court judicial nominees. The recent partisan realignment of the Supreme Court makes it more likely that a Supreme Court judicial nominee will be filibustered in the Senate, thanks to the increasing willingness of Senators to oppose nominees on ideological grounds and increased partisan polarization in the Senate. The number of Senators from the opposing party of the nominating president voting against Supreme Court nominees is approaching or exceeding the filibuster level. Depending upon how the politics plays out in a possible filibuster of a Supreme Court judicial nominee, we may see either an erosion of the use of the filibuster in the Senate or a compromise which would weaken the power of the judiciary, such as term limits imposed upon future Supreme Court Justices.

Part I of this Article demonstrates that despite the model of Congress-Court dialogue, and Supreme Court statutory interpretation tools premised on dialogue, congressional overridings of Supreme Court statutory interpretation precedents have become exceedingly rare. The effect of this change is to empower the Court over Congress. Part II argues that the steep decline in overridings over the last two decades appears due in large part to increased polarization in Congress and not simply to a decline in the number of Supreme Court statutory interpretation cases. When Congress does override a Supreme Court case, it is now more likely to be a partisan overriding, pushed through in periods of unified government. Part III is more speculative. It considers how polarization in Congress and the partisan realignment of the Supreme Court — a Court in which all the conservative Justices are Republicans and all the liberal Justices are Democrats — may eventually lead to a major confrontation in Congress over the power of the Senate filibuster. That confrontation may leave the Senate, the Supreme Court, or both, looking very different than they are today. Furthermore, partisan realignment has the potential to harm the Supreme Court’s legitimacy in a way which we have not witnessed in modern times.

Recommended for consideration as a possible reading assignment in an advanced legal research course, particularly if the ALR course is being conducted this presidential election semester. [JH]

Scalia on the Road: “I express myself vividly.”

HOST CHRIS WALLACE: What about… a weapon that can fire a hundred shots in a minute? SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided. WALLACE: How do you decide that if you’re a textualist? SCALIA: Very carefully.

With the SCOTUS term over, the once camera shy Justice Scalia is making the media rounds. See Me? Cantankerous? Scalia Says It Isn’t True, Needles Posner in Defense of Immigration Dissent by Debra Cassens Weiss on ABAJ News. See also, just for an example, the NBC coverage of the same Fox News interview, Justice Scalia steps up criticism of healthcare ruling ("I haven't decided when to retire," Scalia told the "Fox News Sunday" program. "... My wife doesn't want me hanging around the house - I know that.").

Do note that the Fox interview starts off with Scalia pitching explaining his new book, Reading Law: The Interpretation of Legal Texts. Apparently this isn't a topic that is too dull to be televised to the American public. No word on whether Justice Scalia plans to make an appearance on the Colbert Report to promote his new book.

The video of the interview can be found in the Fox News article, Scalia opens door for gun-control legislation, extends slow burning debate. Immigration, healthcare, gun control and originialism all in one interview! [JH]

Shouldn't SCOTUS Records Be Format Neutral? No, Dull Stuff Wouldn't Educate the American People

In a nutshell, that's why Justice Scalia is opposed to televising SCOTUS processings according to an excerpt from the video C-Span interview Mark posted last week. Wearing his Originalist cap, Scalia added that the Constitution does not require televised proceedings. Well, that is certainly true if the Constitution is a fossilized document because multi-media did not exist in the late 1780s.

But is the argument for televised SCOTUS proceedings really about educating the American people about dull stuff only lawyers would understand? I don't think so. I would argue that if multi-media formats and the Internet existed in the 1780s, James Madison would have expected Congress and federal courts to use the format and platform as a way to ensure that government proceedings were open and accessible to all as one among many ways to create and distribute official public records. Imagine the wealth of information Originalists like Justice Scalia would have if the Constitutional Convention was "televised" and curated by C-Span... .

Moving forward some 200-plus years, take the case of the SCOTUS heathcare proceedings as an example. Differing nuances of the the healthcare oral arguments and questions from the bench have been noticed by law profs who opined different opinions based on whether they relied solely on the written transcript or also listened to the audio.

Shouldn't court proceedings (and legislative history, oops, sorry Justice Scalia) in the 21st century be format neutral? It is not a matter of boring the American public to death. It is a matter of providing as complete an offical public record as possible. Imagine practitioners, law profs and law students have access to official transcripts and equally official video recordings available for research and interpretation. That is certainly doable with today's technology and will, in my opinion, undoubtly be incorporated by commercial legal vendors in their enhanced electrontic products even if not deemed official evidence of the record. Citing to and incorporating by providing links to official videos of judicial and legislative proceedings will be common in court pleadings and secondary literature someday just as videos from patrol car cams are already used as evidence in DUI cases. [JH]

C-SPAN Interview With Justice Scalia

In addition to Joe's post today on Justice Scalia, I'll mention that he was interviewed for C-SPAN to be broadcast later on this week where he talks about the health care and immigration decisions.  He comes out against broadcasting the Court's proceedings.  Not exactly Colbert material, but the Court's senior Justice is almost always entertaining, no matter what one's view of him might be.

 

[MG]

SCOTUSblog at Work on the Supreme Court's Health Care Ruling: On "being first AND accurate at the same time"

Many mainstream media sources got the SCOTUS ACA ruling wrong in their knee-jerk initial reports. That included CNN, Fox News and NPR. Not so with the best source for SCOTUS news and analysis, SCOTUSblog. paidContent's Staci Kramer reports on how the editors of SCOTUSblog strived to be first and accurate at the same time:

[T]he team at SCOTUSblog took three long minutes from getting the ruling to reporting that Chief Justice John Roberts led the 5-4 majority declaring the Obama administration had a mandate, then another two minutes to declare the whole ACA was upheld with the exception of narrow reading on Medicare. Howe almost instantly mentioned the part about the mandate being judged a tax but held off on the rest. The screengrab from the CoveritLive replay below covers that three minutes:

(Emphasis added.)

For Supreme Court watchers, SCOTUSblog has been the web destination to go to for a very long time. Due to the blog's coverage of the Court's end-of-term dump of some very significant decisions last month, it appears that the site is now receiving long-overdue recognition beyond SCOTUSblog's regular audience for its excellent coverage by way of current awareness, source documents and analysis. See Kramer's SCOTUSblog: After a decade, an overnight sensation for more. Reportedly, President Obama initially thought that the Court struck down "Obamacare" based on early mainstream media's inaccurate reporting. Reporting an "existential moment," LLB's co-editor and SCOTUS watcher Mark Giangrande wrote:

What a difference an hour makes.  I checked in with CNN this morning just before I left for the office and saw the headline that the individual mandate was struck down.  I get to downtown Chicago and every news site trumpets that the mandate is upheld.  I guess that’s what happens if one reads the first few paragraphs of the syllabus.

Mark accurately reported the ACA ruling in his June 28, 2012 post, Supreme Court Action Today: The Mandate Is Constitutional, Lying Is Constitutional, And Another Ooops. Without his headcount analysis, I would have had a very difficult time trying to map out who agreed to what:

I’ve tried to summarize, albeit briefly, the net effect of the decision.  Chief Justice Roberts wrote the main opinion, but five justices did not join all of it.  The opinion of the Court is contained in Parts I, II, and III-C where the Chief Justice was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justices Breyer and Kagan joined in Part IV, which is the Medicare section.  Parts III-A, III-B, and III-D are all Chief Justice Roberts.  Justice Ginsburg filed a separate opinion concurring in part, concurring in the judgment in part and dissenting in part in which Justice Sotomayor joined, and also joined by Justices Breyer and Kagan as to Parts I, II, III, and IV.  Justices Scalia, Kennedy, Thomas, and Alito filed a dissenting opinion.  Justice Thomas dissented separately, agreeing with Chief Justice Roberts analysis on the limits of the Commerce Clause power.  Got all that?

Yup, got it. See also Mark's Reactions To The Health Care Decision post.

The White House has all kinds of special assistants to the President and the President receives a daily briefing from the CIA but it looks like there is one huge gaping information hole in the current awareness feed of information to the Office of the President that requires law librarian skills. Either the Chief of Staff has to censor major media coverage that gets to the President so he (or someday she) does not experience an OMG reaction to sloppy major media reporting or hires someone for an official in-house, non-political appointment as the president's law librarian with information literacy skills. What a gig that would be! I doubt that would happen so Obama might want to take the SCOTUSblog RSS feed by the time the Court reconvenes.

Endnote. SCOTUSblog's coverage of the ACA ruling has not ending with just accurately reporting the Court's holding. See Special Feature: Post-decision Health Care Symposium. It features expert guest commentary in a series of published posts. [JH]

Federal Judical Center Publishes Managing Discovery of Electronic Information: A Pocket Guide for Judges

First published in 2007, the Federal Judicial Center has released a new edition of Managing Discovery of Electronic Information: A Pocket Guide for Judges (2012) by Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins.

This second-edition pocket guide helps federal judges manage the discovery of electronically stored information (ESI). It encourages judges to actively manage cases that involve ESI through early intervention and sustained supervision and to use the many tools available to them—case-management conferences and orders, limits on discovery, tiered or phased discovery, sampling, cost shifting, and, if necessary, sanctions—to facilitate cooperation among opposing lawyers and to ensure that discovery is fair, reasonable, and proportional to each case. It covers issues unique to the discovery of ESI, including its scope, the allocation of costs, the form of production, the waiver of privilege and work product protection, and the preservation of data and spoliation.

Hat tip to beSpacific. [JH]

11 Wacky Supreme Court Facts

Including this one:

The most recent appointee to the court is in charge of taking notes, answering phones, opening the door, and pouring coffee for his or her colleagues. Toward the end of Justice Stephen Breyer’s ten-year run as coffee server, he asked Scalia, “I’ve gotten pretty good at this, haven’t I?” Scalia replied, “No, you haven’t.” Yikes. Hopefully Kagan’s pouring skills are better than Breyer’s.

For more, see The Daily Beast's 11 Wacky Supreme Court Facts: Frozen-Yogurt Justice, Scalia and Ginsburg Friendship, & More. [JH]

Web Cites in Supreme Court Opinions

The Supreme Court opinions yesterday generated a lot of news coverage as end-of-term opinions usually do.  That coverage missed a point.  Two of the three opinions contained research citations that appear to be a trend at the Supreme Court.  These are citations with links to web sites and pages that contain information that supports the view of the opinion author (and the Court by extension).  For example, Justice Kagan cites statistics from Human Rights Watch as part of her analysis on state practices giving life without parole to juvenile murderers in Miller v. Alabama.  This is from footnote 10:

According to available data, only about 15% of all juvenile life-without parole sentences come from those 15 jurisdictions, while 85% come from the 29 mandatory ones.  See Tr. of Oral Arg. in No. 10–9646, p. 19; Human Rights Watch, State Distribution of Youth Offenders Serving Juvenile Life Without Parole (JLWOP), Oct. 2, 2009, online at http://www.hrw.org/news/2009/10/02/state-distribution-juvenile-offendersserving-juvenile-life-without-parole (as visited June 21, 2012, and available in Clerk of Court’s case file).  That figure indicates that when given the choice, sentencers impose life without parole on children relatively rarely.  And contrary to THE CHIEF  JUSTICE’s argument, see post, at 5, n. 2, we have held that when judges and juries do not often choose to impose a sentence, it at least should not be mandatory. 

Justice Kennedy has 5 citations to web sources in the Arizona v. United States opinion, though all of them are to government web sites such as the Department of Homeland Security or that of Immigration and Customs Enforcement (ICE).

There is a paper on SSRN called Confronting Supreme Court Fact Finding by Alli Or Larsen that examines this trend of citing outside research in detail.  Here’s the abstract: 

Supreme Court justices routinely answer factual questions about the world – such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that these findings are informed through the adversary system: by reviewing evidence on the record and briefs on appeal. Routinely, however, the justices also engage in what I call “in house” fact-finding. They independently look beyond the briefs and record to answer general questions of fact, and they rely on their discoveries as authorities. To be sure, judges have always done this, and the Federal Rules of Evidence contain no rule restricting it. But times have changed. The world has recently undergone a massive revolution in the way it receives and evaluates information. No longer do justices need to trek to the library to look up factual questions. Instead they can access virtually infinite amounts of factual information at the click of a mouse. 

This article discusses how that change in technology has and will affect the Court’s fact-finding practice. It collects over 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record. These are not insignificant rarities: almost 60% of the most important Court opinions in the last ten years rely on in house research at least once. The article then examines the potential dangers of in house fact finding in the digital age – specifically the possibility of mistake, the systematic introduction of bias, and notice/legitimacy concerns. It concludes that these concerns require an update to our approach to Supreme Court fact finding. It then offers two independent and contrasting solutions: new procedural rules that restrict reliance on factual authorities found in house, or alterations to the adversary method to allow for more public participation.

One of Larsen’s major concerns is that the research conducted by Justices or staff is outside the record of the case.   As a reference librarian, I find the concept of a Justice relying on the web for opinion fodder (if I can call it that) interesting.  Law schools tend to teach concepts of authority and precedent.  When it comes to the web, we have to add site reputation, permanence of the information, the methodology used to collect the information, and other factors that affect the reliability of the web-sourced material.  I don’t mean to criticize Human Rights Watch or Justice Kagan for citing the organization’s web site, but it seems implicit that she accepts that information to the point where she is willing to rely on it to support a position.  Should we simply accept the information because it is there in the opinion? 

When a Justice cites a case or transcript, we know the significance of that citation independent of its use in the case.  When it comes to generic information from web sites, we’re not clear on its legal significance until it is used in the context of the opinion.  Then again, does the non-legal information help shape the context or vice versa?  As thinking about that makes my head hurt, I’ll leave that to someone else to sort out. 

Larsen suggests ways in which the practice of web citations could be curtailed, by rule or other methods.  I think there is another possible outcome, and that is for counsel to cite information from the web in briefs and arguments.  Supreme Court Rule 24.3 states: 

3.  A brief on the merits may not exceed the word limitations specified in Rule 33.1(g).  An appendix to a brief may include only relevant material, and counsel are cautioned not to include in an appendix arguments or citations that properly belong in the body of the brief. 

Relevant material isn’t defined, though I wonder, if a Justice can find a web site useful, why not counsel?  It’s all in the strategy, I suppose.  Let’s see if law schools teach the web as a source for arguments.  [MG] 

Browsing On A Sunday: The Wisconsin Supreme Court is an Unhappy Place, Trading Google for Bing, and the Downfall of Big Law

Things are getting ugly at the Wisconsin Supreme Court.  The Wisconsin Judicial Commission found probable cause awhile back that Justice David T. Prosser violated sections of the Judicial Code of Conduct and recommended a hearing on the matter.  Bloomberg Business Week is reporting that the Court declined to reappoint John R. Dawson, the head of the Commission, to a new term.  Such reappointments have been routine in the past. 

The Court’s administrative decision did not come without a bit of public sniping by its members.  Gannett’s The Northwestern goes into a bit more detail, describing “threats” from Justice Shirley Abrahamson to make conservatives justices pay if they didn’t reappoint Dawson.  She disclosed a letter she sent to Dawson, signed by two other justices, which said the decision was over their objections.  She further stated "The court's long-standing practice has been to retain appointees for the entire period for which they are eligible if they have served the public well.  In your case, the court is deviating from its practice." Ouch.

The nominating committee for the Commission had asked that Dawson be reappointed.  Justice Prosser is quoted in the Milwaukee Journal-Sentinel as saying the nominating committee "tended to be very receptive to more liberal appointees."  I’m sure Justice Prosser would tell you that decisions by the Court are based on the law rather than driven by a political interpretation of the law.  I’m sure anyone listening would believe him as well, especially after reading the rest of his comments on the “lefty bias” of the nominating committee in the Journal-Sentinel report.  I’m sure. 

Farhad Manjoo describes his week with Bing in a Slate article.  Manjoo is a self-proclaimed Googler who thought he’d try out the competition.  He likes Bing for the simpler look on the results page, sort of like how Google appeared before integrating Google+ items into its results.  Oh yeah?  Just wait until Bing throws up everything Facebook has to offer and see how clean the display will look.  His bottom line is that he’s switching back because Google found relevant results that Bing missed.  More pointedly, by switching to Bing he realized how dependent he was on Gmail, YouTube, Scholar, and other Google services.  To each their own. 

Finally, the Washington Post has a short analysis on the downfall of big law, epitomized by the collapse of firms Howrey and Dewey & Le Boeuf.  The fact that both firms went on massive expansions was not the cause alone.  It was that they expanded so fast without regard to the sustainability of that expansion in light of the recession where legal work dried up.  According to the article, employees have been told that the firm will shut down imminently.  I wonder how many of the affected attorneys still have outstanding student loans?  [MG]

NY Court of Appeals To Require 50 Hours of Pro Bono Service For Bar Takers

The New York Courts are about to do something that will affect how law schools prepare their students for practice.  Starting with next year’s graduating class, bar takers in New York will have to provide 50 hours of pro bono services before getting a license to practice.  The news came in New York Court of Appeals Chief Judge Jonathan Lippman’s Law Day 2012 address.  The goal is to provide legal services to the poor and near-poor:

By assisting a family facing eviction or foreclosure, by working with an attorney to draft a contract for a fledgling not-for-profit, by helping a victim of domestic violence obtain a divorce, or by using their legal talents to help state and local government entities in a time of economic stress, law students can access the real-world lessons that are so important to succeeding in legal practice and hopefully also experience the intrinsic reward that comes from helping others through pro bono service.

The new rules place the burden on the bar-taker to seek pro bono opportunities and not the law school to provide them, though I think there will be competitive pressure on law schools to provide some form of help for compliance.  That may shift the balance between teaching scholarship and teaching practice skills for some schools.  I’ll wait for the law schools to react.  I’m sure the new rules will generate a lot of faculty discussion.  There might even be some need for academic law libraries to add practitioner materials to the collection.  I'll add that the American Bar Association has never placed anything remotely like this on a law school’s curriculum content or graduation requirements.  I wonder if the Association knew this was coming.

I would think an alternative to incorporating this new requirement into the curriculum likely would be for New York firms to allow their new hires to perform pro bono work under firm supervision.  It’s all a bit unclear how this will work in practice.  Judge Lippman explains:

How will this new admission requirement work in New York?   First, it will not be solely the responsibility of law schools to provide pro bono opportunities, although there are law schools that already require some pro bono service to graduate, and most law schools today have an impressive array of clinical programs to offer their students.  These students also may want to look outside the campus walls to legal service providers in their area and explore internships, or work with local bar associations to find pro bono possibilities.  And while most applicants to the bar will want to complete their pro bono service during the law school years or over the summers, they will also have the option to do so after graduation, or even after taking the bar exam or after beginning a paid legal position in a law firm or elsewhere.

Still, the devil will be in the details as to what qualifies as pro bono service.  Could someone volunteer for, say, Wells Fargo to prosecute a mortgage foreclosure?  I don’t think that is what the Court has in mind, but who knows at this point.  There might even be a backlash in that some students are not attracted to clinical work or public service.  Some might even feel this is another burden that affects the speed of paying off student loans. 

Judge Lippman indicated that aside from being the first Court to put this requirement in place, he hoped others would join.  I don’t know if this will be a trend.  I suspect other states will jump on this bandwagon but it’s too early to say how popular this idea will be.  [MG]

This Doesn't Happen Every Day: "The power of the courts to review the constitutionality of legislation is beyond dispute."

On April 3, 2012, Fifth Circuit judges asked the US Attorney General for the DOJ's position on the authority of courts to review Acts of Congress and to do so by April 5, 2012. The request came after President Obama stated his opinion that the Affordable Care Act should be upheld by SCOTUS. Well, of course, AG Holder did not argue that Marbury v. Madison and its progeny was just plain goofy. But in defense of his boss, the AG did remind the Fifth Circuit judges that Supreme Court precedent holds that Acts of Congress are "'presumptively constitutional,'" and added that President Obama's remarks were "fully consistent" with those principles. Text of AG Holder's prompt response.

Let's not get into the whole President Obama is some sort of conlaw expert like the talking heads do. See Obama’s Law Prof Says He Misspoke on Supreme Court ("Tribe, a constitutional scholar, said his former student 'obviously misspoke' when Obama said Monday that the Supreme Court would be taking an “unprecedented, extraordinary step” if it struck down the Affordable Care Act.") When teaching constitutional law at the University of Chicago, he was, after all, nothing more than an adjunct, instructor, whatever. At Chicago Law, that's a notch or two below Bigelow Teaching Fellows. Hell, even this guy had more conlaw teaching experience. [JH]

"Extraordinary public interest" in the Patient Protection and Affordable Care Act oral argument is still not a good enough reason for SCOTUS to allow proceedings to be televised

In response to news organizations requests, SCOTUS announced on March 16, 2012 that it will post the audio recordings and unofficial transcripts of the oral argument for the March 26, 27, and 28, 2012 proceedings in the Patient Protection and Affordable Care Act consolidated cases on an expedited basis through the Court's website. "The audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m."

The Court's statement did not mention media requests to televise the proceeds. The omission makes it clear that SCOTUS is maintaining its long-standing ban on doing so. C-SPAN annouced that it will broadcast the tapes on C-SPAN 3, C-SPAN Radio and C-SPAN.org “as soon as they are released.” For more details, see Lyle Denniston's Prompt release of health care audiotapes on SCOTUSblog.

The doomed request to televise the oral argument. In a letter dated Nov. 15, 2011, Brian Lamb, the chairman of C-Span, wrote to CJ Roberts requesting that SCOTUS allow cameras in the court for the oral argument the day after the Court decided to hear the consolidated cases: "We believe the public interest is best served by live television coverage of this particular oral argument." On Nov. 18, 2011, The Reporters Committee for Freedom of the Press, a coalition of media organizations that included the likes of Wolf Blitzer (CNN), Andrea Mitchell (NBC News) Bob Schieffer (CBS News) Eric Schmitt (The New York Times), Judy Woodruff (PBS/The NewsHouse) on its Steering Committee supported Lamb's request, stating

In his similar request to the Court, C-SPAN chairman and chief executive officer Brian Lamb writes that audio-only coverage of a 5 ½-hour event in which all the justices and various counsel will participate would not sufficiently serve the public interest in closely monitoring and understanding the proceedings. We agree with him.

On Nov. 28, 2011, Adam Liptak wrote in his New York Times Sidebar column, Supreme Court TV? Nice Idea, but Still Not Likely, that the request to televise the argument in Patient Protection and Affordable Care Act cases was "of course, doomed. Yet it is hard to say why."

The Supreme Courts of Canada and the United Kingdom allow cameras. What the public sees in those countries, and what it would see here, is something not always prominent in the elected branches of our government: able public servants with a complete mastery of difficult materials grappling seriously with matters of surpassing consequence. It probably inspires confidence. It certainly dispels ignorance.

Liptak added

The arguments against cameras are mostly rooted in paternalism or self-interest. Some justices say the public cannot be trusted to understand what goes on at oral arguments and how the arguments figure in the work of the court. Others worry that additional public scrutiny would alter the behavior of lawyers and justices for the worse. Still others say they fear harm to their personal privacy or to the court’s prestige.

In an interview, Mr. Lamb said he had heard one main objection from the justices. “It’s the sound bite,” he said. “They don’t like, in the modern age, that people can sound bite them.”

See also C-SPAN's Cameras in the Court for each Justice's view on the issue of opening the Court to cameras, based on their individual public statements

So SCOTUS is worried about media coverage about what they might say from the bench. You might as well ban reporters from the courtroom. Hell, you might as well ban ordinary citizens from the courtroom and conduct all SCOTUS official courtroom proceedings sub rosa.

In this instance, we are talking about televising a not insignificant proceeding -- the constitutional challenge to President Barack Obama's health care reform law. The media will still extract "sound bites" from the expedited audio and unoffical transcripts in televised, print and web communications. The "ordinary citizen" who might be lucky enough to sit in SCOTUS' courtroom may tweet during or at least afterwards "sound bites." Duh!

With respect to the Patient Protection and Affordable Care Act cases it borders on the incredulous to take the Supreme Court's denial of requests to allow cameras in the courtroom because of its traditional ban seriously. This branch of government simply does not like the other branches of the federal government "suggesting" what SCOTUS should do. See, for example, Televising SCOTUS Proceedings: Serious Issues While Tossing in a Cynical 2-Cents Perspective and a Bit of Power Broker History and Short but Sweet? CJ Roberts informs Senate Judiciary Committee Chairman that SCOTUS does not intend to adopt the Code of Conduct for US Judges.

There is another important issue here. For the constitutional-challenged, by which I mean the subscribers to the originalist school of thought, my hunch is James Madison is probably turning over in his grave because of the ban on cameras in all federal courts. I'm thinking James Madison would want open access by way of all publication mediums including TV if it existed in the 1780s. TV has been around for 60-plus years now so this isn't some bleeding edge communications medium. Not only can televised proceeding inspire confidence and dispel ignorance, the audio-visual medium has become an archival medium, one that can educate the public at large by preserving an official audio-visual record for all in the 21st century.

More narrowly focused, an archive of televised official congressional proceedings will become part of legislative history research. An archive of official televised federal court proceedsing also should become part of the official court record. While our major legal vendors have responded to the "Google Generation" in the next-gen current-gen search systems, there is no doubt in my mind that they will eventually also respond to the "YouTube" generation by enhancing their databased and eBook resouces with both official audio and videos in addition to text transcripts and add videos that provide commentary and analysis as part of "secondary source literature". Do note, I have failed to find one of our major legal information vendors who joined the call to televise either this specific SCOTUS proceeding or to call for the removal of the ban on federal courts to do so. Perhaps my research in this regard is faulty; perhaps some of our major legal vendors aren't prepared for the "YouTube" generation yet. At least with respond to "secondary source" video content, Bloomberg Law is not one of those vendors.

So while major media outlets' call on SCOTUS to televise this one proceeding has been rejected, that rejection can be viewed as a "plus" in the larger context of the Open Government movement. Eventually SCOTUS and our entire federal court justice system cannot ignore modern communications.

"Being There", in person or 'virtually". Thanks to retired Supreme Court Librarian, Judith Gaskell, I once attended a SCOTUS oral argument during a trip to Washington DC; the trip was, well to put it frankly, one of those attempts academic law librarians something do in an effort to reinforce an alumni-donor interest in continuing to support his law school. Because I was not well-versed issues involved until afterwards, let's close this post with a comment by someone who was far, far, better qualified than I was when she attended a SCOTUS session in person.

“Everybody was so prepared, so smart, so obviously deeply concerned about getting to the right answer,” she said at the Aspen Institute in August. “I thought if everybody could see this, it would make people feel so good about this branch of government and how it’s operating. And I thought it’s such a shame actually that only 200 people a day can get to see it.”

Quoting from Liptak's Supreme Court TV? Nice Idea, but Still Not Likely.

Some resources for the Patient Protection and Affordable Care Act issues presented to SCOTUS:

• SCOTUS Docket
• On-going expert commentary and analysis on SCOTUSblog.

{JH}

Vending Appellate Briefs: A 2010 selective survey of jurisdictions on providing briefs to commercial vendors

Like Mark Giangrande's recent posts, listed below, I find lawyer claims that court pleadings acquired for some sort of cost-plus or commercial gain violates copyright laws are questionable at best. Who really is the "owner" of work product? The firm, the billing partner, the associate who actually drafted the pleading under a partner's direction, the client who paid for legal representaion?

My hunch is that the matter will be resolved eventually. At issue may be the extent to which a public record is in the public domain. Will, for example, courts be required to go through the Copyright Clearing House when an individual requests a copy of a pleading in person? Will court records centers, PACER and commercial vendors have to obtain permissions and possibly paid whomever the "author" is fees? Where will "fair use" come into play? Will courts end up requiring a waiver of copyright for accepting pleadings?

Hell if I know. But as a footnote to Mark's recent posts recent posts, listed below, a former Standford Law student, Bryan L. Jarrett, wrote a directed research paper for Paul Lomio a couple of years ago. About Jarrett's Vending Appellate Briefs paper, Lomio wrote:

I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs.  The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.

One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs. Some states have made various arrangements with vendors; others refuse to do so.  For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.

Jarrett's paper "surveyed the largest ABA jurisdictions (by membership size) and seven jurisdictions that did not supply copies of appellate briefs to commercial vendors. The data was gathered in 2010" according to Erica Wayne's follow-up Legal Research Plus post. In Selling Others’ Briefs, Illustrated, "[t]o better illustrate some of the points made by Paul in his posting Selling others’ Briefs," writes Wayne, "Bryan L. Jarrett (our former student and now an associate at Jones Day) has given us permission to post two of the charts he created for his paper 'Vending Appellate Briefs.'” [JH]

For additional LLB posts on the issue, see:

• Lawyer Copyrights Briefs, Sues West And Lexis for Distributing Them
• Copyrighted Legal Briefs Continued
• Copyrighted Legal Briefs Continued: Are The Downloaders Just As Liable?

Browsing On A Sunday: Do Courts Cite Internet Legal Resources?

I’m doing a lecture on Internet legal research soon and I was wondering how valid are some of the sites I teach to the courts.  I find Google Scholar very useful in my day job.  Has anyone ever mentioned it in an appellate opinion?  Yes, it seems, once, and only very recently.  The California Supreme Court issued an opinion on January 27^th called Vandermost v. Bowen, --- P.3d ----, 53 Cal.4th 421, 2012 WL 246627 (Cal.), 12 Cal. Daily Op. Serv. 1119, 2012 Daily Journal D.A.R. 1110 (citations and search results generated from Westlaw) with this reference:

By contrast, academic observers have concluded that the Commission's maps, including the certified state Senate map, “represent[ ] an important improvement on the legislature-led redistricting of 2001. The new district boundaries kept more communities together and created more compact districts while at the same time increasing opportunities for minority representation.... [T]hese maps ... have the potential to modestly increase competition in California elections and the responsiveness of the legislative branch to changing voter preferences.” (Kogan & McGhee, Redistricting California: An Evaluation of the Citizens Commission Final Plans, supra, 4 Cal. Journal of Politics and Policy ____ (forthcoming Jan. 2012; available via Google Scholar at <http:// polisci2.ucsd.edu/vkogan/research/redistricting.pdf>, pp. 32–33 [as of Jan. 27, 2012] ).)

I think the Court should be citing the University of California San Diego, which is the actual source of the cited document at the end of the quote.  Interestingly enough, the Court tipped its research strategy in finding the document, a forthcoming publication no less.

The Cornell Legal Information Institute gets one state hit in American Home Assur. Co., Inc. v. Unauthorized Practice of Law Committee, 121 S.W.3d 831, 2 A.L.R.6th 783, Tex.App.-Eastland, November 06, 2003 (NO. 11-02-00212-CV), and seven in the federal courts.  The Oyez Project gets a reference in a federal case quoting Chief Justice Roberts’ reaction to a particular statute.  The reference is to an oral argument.  The citing case is Evans & Green, LLP v. Meadoworks, LLC, Slip Copy, 2012 WL 137885, W.D.Mo., January 17, 2012.

FindLaw gets a whopping 23 references, though some of those are involved around litigation involving FindLaw, and a few more relate to accessible resources by prisoners as part of access to a prison law library.  The news feed at Leagle.com gets at least one mention in a 2010 Michigan case.  The name “Leagle” shows up either as a personal name or as a misspelling.  Justia gets five hits, though a few are in reference to litigation involving the site.  As for government citation, GPO Access gets two citations, while the more current FDsys.gov has nothing yet.  Regulations.gov gets five hits.

The point for me is these sites have enough respectability to be cited by the courts, meaning they have enough respectability to be used and cited by others.  We teach students to use the original source, and court rules tend to enforce that concept.  But with courts starting to go to legal content on the free Internet, we can’t discount some of these Internet legal sites, at least as a matter of reputation.  [MG] 

Federal Judicial Center’s Guide to Research in Federal Judicial History

The Federal Judicial Center reports that its Guide to Research in Federal Judicial History (2010), edited by Jonathan White, has been awarded the 2012 Thomas Jefferson Prize from the Society for History in the Federal Government. The prize is awarded for the best reference work related to federal history. The Guide describes the records of the federal courts, Congress, and the executive branch that are relevant to researching federal judicial history. [JH]