Law Librarian Blog

Short but Sweet? CJ Roberts informs Senate Judiciary Committee Chairman that SCOTUS does not intend to adopt the Code of Conduct for US Judges

In a one-paragraph letter dated Feb. 17, 2012, CJ Roberts inform Senate Judiciary Committee Chairman Patrick J. Leahy in no uncertain terms that SCOTUS does not intend to adopt the Code of Conduct for US Judges for the highest court of the land. Roberts indicated that reasons for this decision were stated in his year-end report. See Chief Justice Roberts on SCOTUS Ethics Procedures. Details on this latest message can be viewed at the Washington Post's Chief Justice Roberts rejects request for code of conduct by Robert Barnes. [JH]

Lawyer Copyrights Briefs, Sues West And Lexis for Distributing Them

Two lawyers have opened a can of copyright worms by filing a class action suit against West and Lexis for using briefs in the brief banks sold by their respective companies.  They allege that these documents are copyrighted by attorneys and seek damages, the amounts depending on whether the works are registered or not registered.  I acquired a copy of the complaint via Bloomberg Law, so I’m wondering when they will be joined to the suit.  Aside from the allegations, the attached exhibits are copyright registration certificates that show original works called “Plaintiffs' Requested Voir Dire” among others.  I don’t plan on seeing this on Amazon any time soon.

I don’t question the authorship, though some questions come immediately to mind.  The first is who actually owns the work.  I understand the registration, but lawyers being lawyers and the smell of money enticing, will there be clients intervening claiming the document was a work for hire?  I mean, who writes a requested voir dire for the fun of it?  Clients usually pay for this kind of stuff as part of the representation, and production of the document Is certainly charged against billable hours.  I generalize how this process works, but the client has a plausible argument that the document belongs to him or her. 

My next question is whether the Administrative Office of the Courts can be a defendant.  After all, what’s the price these days to download a document from PACER?  Ten cents per page?  Isn’t that a sale?  And what if another lawyer writes a substantially similar Plaintiffs' Requested Voir Dire?  Would that attorney be liable for copyright infringement?  Your honor, my esteemed colleague copied my work and merely changed a few names.  Where is my money?  And how about all the briefs and other filings that populate Scribd and other document sites?  Copyright infringement doesn’t require financial gain as an element of suit.  Shall we see DMCA takedown notices served to these sites?  How would fair use play into this?

The biggest problem I see with this case is not whether the plaintiffs win, but what happens to the legal profession if the plaintiffs win.  It would be piranhas to a meal.  I’ll be watching this one for the entertainment value if nothing else.  Find the case on your own.  I don’t want to be liable for illegal distribution of a copyrighted work.  The case is Edward White and Kenneth Elan v. West Publishing and Reed Elsevier, Southern District of New York, 12-CV-1340, filed on February 22, 2012.  Here is a report on the case from Thompson Reuters News & Insight. [MG]

Yikes! "Utterly verboten workplace activities" in the courtroom

"Then there are things you cannot do. Period. Things that any competent employee should simply know are unacceptable. Included in this category of utterly verboten workplace activities are watching porn during a rape trial when you’re the on-duty court clerk," writes ATL's Christopher Danzig. See his How to Destroy Your Career As a Court Employee: Watch Porn During a Rape Trial and/or Fall Asleep on the Bench post for details. {JH]

Supreme Court Action Today: GPS Tracking, Sex Offender Registration, Preemption, And Tort Immunity For Police

The United States Supreme Court issued four opinions this morning, one of which is receiving significant press coverage.  That case is United States v. Jones (10-1259).  The Government obtained a search warrant allowing it to install a GPS tracking device on a vehicle used by Jones.  The warrant allowed for the device to be attached within 10 days and in the District of Columbia.  Government agents, however, installed the device on the 11^th day and in a parking lot in Maryland.  Jones was tracked for 28 days and ultimately convicted on drug charges using evidence derived from the tracking.  The Circuit Court of Appeals for the District of Columbia reversed the conviction holding that the evidence obtained by the warrantless use of the GPS tracking device violated the Fourth Amendment.  The Government argued on appeal that a warrant was not necessary and that Jones had no reasonable expectation of privacy on city streets.

The Supreme Court affirmed the Court of Appeals, holding that attaching a GPS device to a vehicle constituted a search under the Fourth Amendment.  The Court said it was beyond dispute that  a car is an “effect” in the words of the Amendment.  The basis for the Court’s holding comes from case law protecting a person’s “reasonable expectation of privacy” rather than strictly location-based monitoring jurisprudence.  Justice Scalia wrote for the majority joined by Chief Justice Roberts, and Justices Kennedy, Thomas, and Sotomayor.  Justice Sotomayor wrote a concurring opinion.  Justice Alito filed an opinion concurring in the judgment, and was joined by Justices Ginsburg, Breyer, and Kagan. 

The case of Reynolds v. United States (10-6549) concerns whether the registration requirements of the federal Sex Offender Registration and Notification Act applied to pre-Act offenders.  The Act requires convicted sex offenders to provide states with current information for names and addresses including circumstances where an offender moves to a different state.  One provision of the Act gives the Attorney General the authority to specify the applicability of the registration requirements to pre-Act offenders.  The Attorney General issued and Interim Rule several months after the Act passed.

Reynolds was a pre-Act offender registered in Missouri.  He later moved to Pennsylvania without updating his Missouri registration or registering in Pennsylvania.  He was indicted for failing to register under the Act.  He defended on the grounds that the Interim Rule violated the non-delegation doctrine and that the Attorney General violated the Administrative Procedure Act by publishing the Rule without notice or comment.  The District Court rejected his arguments on the merits, but the Third Circuit rejected the same claim by holding the Act applied to pre-Act offenders irrespective of the Rule.  The Circuits were split on the applicability of the Act in these circumstances.

The Court held that the Act does not apply to pre-Act offenders until the Attorney General acts.  The Court based its reasoning on the interrelation of the statute’s provision.  As there was a rule in place before Reynolds moved, the questions as to whether he is covered under the rule and Act are remanded for determination.

The third case is National Meat Assn. v. Harris (10-224).  The Federal Meat Inspection Act (FMIA) regulates the operation of slaughterhouses to ensure the safe handling of meat and humane treatment of animals.  California amended its penal code to account for the treatment and use of nonambulatory animals used for human consumption in California.  The terms of the California amendment are different from the FMIA.  The District Court granted an injunction to the National Meat Association on the grounds that the FMIA preempts California law.  The Ninth Circuit reversed, holding that the California law only regulates the kind of animal slaughtered and nothing else.

The Supreme Court reversed, holding that the FMIA preempts the California law.  The FMIA preemption clause has a wide sweep and as the Act covers the treatment of nonambulatory animals, it comes into play here.  Moreover, the FMIA covers the treatment of animals not intended for human consumption, so the California amendment covers the same territory.  Justice Kagan wrote the opinion for a unanimous Court.

The last case from today is a Per Curiam opinion regarding the immunity of police for civil federal tort claims in conducting a warrantless search.  That case is Ryburn v. Ruff (11-208).  Police were investigating a rumor that a student was intending to shoot up his school.  They visited the house of the student and received no answer after announcing their presence.  They called the house and could hear the phone ringing.  They next called the student’s mother’s cell phone and discovered that she was in the house and requested to speak with her in person.  She finally spoke with them in person at the front door.  When the police asked her if there were any guns in the house, she immediately turned around and ran back into the house.  The police followed her and ultimately spoke with the student and both of his parents.  They ultimately concluded that the rumor was false.

The parents brought a §1983 civil right suit claiming that the police had violated their Fourth Amendment rights.  The District Court held for the police, giving them some latitude in a developing situation.  The Ninth Circuit affirmed for some of the police, but not all.  While agreeing with the District Court’s finding of facts, it questioned whether the Police in question had qualified immunity.  That Court held that the belief that police or others were in danger of imminent harm was objectively unreasonable.

The Supreme Court examined the various circumstances such as the reason for the visit, the behavior of the parents and specifically the response to the question about guns and concluded that the police were entitled to qualified immunity.  The Court ordered that judgment be entered for them.  [MG]

Chief Justice Roberts on SCOTUS Ethics Procedures

"Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court. I would like to use my annual report this year to address that issue, as well as some other related issues that have recently drawn public attention. The space constraints of the annual report prevent me from setting out a detailed dissertation on judicial ethics. And my judicial responsibilities preclude me from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals. But I can provide some clarification on how the Justices address ethical issues and dispel some common misconceptions" writes Chief Justice Roberts. For details, see 2011 Year-End Report on the Federal Judiciary. See also CJ Roberts' Year End Report on the Federal Judiciary by Ruthann Robson, CUNY Professor of Law & University Distinguished Professor.

Hat tip to BTL's Tony Mauro, In Annual Report, Roberts Defends Supreme Court Ethics Procedures ("Roberts' discussion of Supreme Court ethics was extraordinary, taking up all but the final two paragraphs of his 12-page report.")

Televising SCOTUS Proceedings: Serious Issues While Tossing in a Cynical 2-Cents Perspective and a Bit of Power Broker History

On Dec. 5, 2011, S. 1945 was tossed in the bill hopper (OK, I'm old school!), quickly read twice, because, well, the text really is brief, and referred to the Committee on the Judiciary. Hearings were held by the Subcommittee on Administrative Oversight and the Courts on the following day. Wow! Perhaps if all congressional bills were required to be one sentence long, our elected representatives would get down to business. (Think income tax reform: "All 'persons," individual human beings and business organizations, earning more than $30,000 will pay X% of their global annual income because all deductions, tax credits, loss carryovers and their kind are "history.")

Was a fire lit under the behinds of members of  the Senate Judiciary Committee because the latest USA TODAY/Gallup Poll found that 72% of the people surveyed think the Supreme Court should allow cameras to televise the 5.5-plus hours of oral arguments to be held during two days in March regarding the health care law being constitutionally challenged  by 26 states and the National Federation of Independent Business? Politics is poll-driven.

However one should note that S. 1945's sponsor is Sen. Durbin. Ah, he is (1) a Democrat and (2) a Senator from Illinois. Anyone remember which party and which state President Obama is from? (Note to readers, I voted for Obama and if I still lived in Illinois, I probably would have voted for Durbin, a relic of Illinois Democratic Party machine politics, if only because he was the brunt of a Karl Rove prank decades ago.)

S. 1945 is politically correct in that it is not focused on televising just the health care act's oral arguments. That would be too obvious. Titled, A bill to permit the televising of Supreme Court proceedings, the text reads:

SECTION 1. AMENDMENT TO TITLE 28.

(a) In General- Chapter 45 of title 28, United States Code, is amended by inserting at the end the following:

Sec. 678. Televising Supreme Court proceedings

`The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The hearings focused on whether SCOTUS proceedings should be required to be televised by statute (with the due process rights exception) or should by optional as in at the discretion of the Supreme Court. You can view the hearing's webcast here. I wonder if a Supreme Court Justice assigned one of his clerks (oops, my bad) or one of her clerks to watch the webcast.

Time to Get Serious. Federal Evidence Review has published on its website Cameras in the Courtroom Resource Page. It is an extensive collection of materials made available for an informed debate on what really is an important issue -- conducting SCOTUS proceedings in the open in the 21st century. Highly recommended. Also note that Federal Evidence Review has published a summary the Senate Judiciary Subcommittee hearing worth taking the time to read.

With a hat tip to Media Law Prof Blog, one might also be interested in reading Drexel Law prof Lisa McElroy's recent SSRN upload, Cameras at the Supreme Court: A Rhetorical Analysis.

What Would James Madison Do? While televised SCOTUS proceedings will make excellent fodder for the Onion News Network, the Corbert Report, and non-English language audiences for YouTube-ing the equivalent of the popular "Hitler parody videos," I have a hunch that if the framers of the Constitution were drafting the Consitution today, live broadcasts of SCOTUS proceedings would not even be an issue.

While Thomas Jefferson had an assine idea that the Constitution should be rewritten by each generation, I'll defer to the equally assine Originalist school of constitutional law jurisprudience for their opinion. At least one of the two long-time subscribers to that intellectually bankrupt school of thought could become a "rock star" if he sides with the proponents of televising SCOTUS proceedings --- and it ain't Justice Thomas. Besides don't we all want to verify the stats being compiled and published about which Justice is getting the most laughter in the court room?

And Now for Power Broker Gamesmanship. Call me cynical but I'm thinking President Obama et al do not want to queue up for tickets to attend the Supreme Court's oral arguments on health care reform. President Andrew Jackson would have sat in the front row. Perhaps President LBJ, too; more likely he would have called a Justice or two or three to the White House for a meeting. When LBJ really wanted to set the stage, meetings took place in his bedroom (imagine LBJ in his bathrobe ... now try to kill that image!) [JH]

Browsing On A Sunday: Lobbying SCOTUS, The Legal Cloud, And Defending Law Faculty Idealism

The idea that deep pockets can affect congressional action is hardly a new one.  What surprises me, however, is this account in The Hill, describing lobbying attempts to affect the deliberation of the Supreme Court as it considers the constitutionality of the healthcare reform law.  These take the form of media campaigns designed to sway public opinion on the law.  The Supreme Court is mostly immune to these actions, though it’s hard to imagine that the Justices never watch television.  Another new partisan tactic is raising the debate on whether several of the Justices should recuse themselves from the consideration of the case.  Justices Scalia and Thomas, for example, had dinner with challengers to the law.  Justice Kagan was part of the administration when the law was pending.  If history is a guide, all nine Justices will weigh in.  Amicus takes on a whole new meaning in this context.

Somewhere back in February of 2010 the LLB reprinted with permission an article from BNA called Privacy and Data Security Risks in Cloud Computing.  BNA now reports on an Iowa State Bar Association ethics opinion concerning the storage of client data in the cloud.  Iowa says it’s ok, provided a lawyer perform due diligence as to the mechanism and security of the storage.  The concerns raised include whether the lawyer will have unfettered access to the data, including a back-up in case the cloud is down; whether the lawyer has a clear understanding of the reputation of the storage company and the terms of the contract to store data; and what happens to the ownership of the data if the lawyer does not pay the required fees.  Other practical concerns include who at the company has access to the data and passwords, whether third parties can get to it, and whether the lawyer controls the encryption scheme.  Expect to see future ethics opinions (or court cases by aggrieved clients) as reality meets standards.

Noah Feldman defends law professors in light of the article in the New York Times that paints faculty as out of touch with the legal practice class.  He notes in Bloomberg how former and current law professors dominate politics, including Justice Anthony Kennedy, Elizabeth Warren, Cass Sunstein, Bill and Hillary Clinton, and of course, President Barack Obama.  Law professors, he says, tend to compare the ideal with reality and become frustrated with the way reality works out.  Faculty members do not want to accept “messy compromises” that exist in reality.

Because they tend to like logical principles, law professors are also big believers in the power of reason to prevail. If they could just get the public to see things clearly, they tell themselves, results would surely improve.

Well, Professor Feldman, as many of the faculty you cite who are now part of government, they have all had to deal with those messy compromises dictated by politics.  Justice Kennedy, for example, tends to be pragmatic despite being labeled a conservative.  Presidents Clinton and Obama surely understand negotiating deals that are less than ideal but pass into law.  If anything, it seems they have not let their law faculty past affect too much their roles in government.

Law professors consider having an impact on policy to be a plus. One test of the value of a legal scholar’s ideas is whether anyone in the real world bothers to listen to them.

Indeed, though even philosopher-kings had to exercise power at some point.  [MG]

Short Takes On The News: Law Schools and The Supreme Court

Robert V. Ward Jr., Dean of the University Of Massachusetts Dartmouth School Of Law, resigned at the end of last week citing health reasons.  There are some questions hovering over the resignation due to an audit of University credit card accounts that showed a bill of $2,235 for personal travel expenses.  Ward reimbursed that amount to the University after it had been discovered.  Ward said in his statement that the credit card flap had nothing to do with his resignation.  His statement, the statement of the University accepting his resignation, and commentary are in the Boston Herald. 

Justice Scalia spoke at the Chicago-Kent College of Law last week.  He expressed his fondness for deep dish pizza, though he said it should be called tomato pie rather than pizza.  He also predicted that the Kelo decision will be overturned.  That case upheld a local government’s taking of private property for redevelopment to further economic development.  The case was controversial as the Kelo property that was the center of the suit was not blighted or in any way distressed.  The irony is that the project that caused the taking could not get financing, causing the city of New London, Connecticut, to turn the area into a dump.  Yeah, that’s bringing in the dollars.  Justice Scalia lumped the Kelo case in the same category with the Dred Scott case and Roe v. Wade.  He calls them mistakes of political judgment on the part of the Court.  More is in the Chicago Sun-Times.

The Thomas M. Cooley Law School filed a motion in federal court to dismiss the claims that it posted misleading jobs data.  I wrote last week in the post The ABA Reacts that the ABA was not part of any suits and suggested that the organization might become a target.  Well, the motion raises exactly that point, saying the school was complying with ABA and NALP standards on statistics.  Blame them:

One thing is clear in Plaintiffs’ Complaint: Although Cooley appears in the caption, Plaintiffs really take aim at the ABA and NALP. Indeed, Plaintiffs have an entire section of the Complaint titled, “Role of the ABA,” and several paragraphs of the Complaint are aimed primarily or entirely at the ABA and NALP—not Cooley. (See Compl. ¶¶ 67-71.) Plaintiffs acknowledge that their underlying claims are not Cooley-specific—Plaintiffs note that “nearly every school” calculates and reports its employment and salary data the same way Cooley does (the way the ABA and NALP direct all ABA-accredited law schools to report the data). (Compl. ¶ 10.) And Plaintiffs allege in the first paragraph of their Complaint that “[t]his action seeks to remedy a systemic” issue relating to reporting that is “ubiquitous in the legal education industry.” (Compl. ¶ 1; emphasis added.) Plaintiffs, in other words, take aim at the rules themselves, not Cooley’s compliance with them.

That ought to endear the school with its regulators.  The ABA Journal has the story, with links to the motion.

And while we are on the subject of the Supreme Court, today marks Justice Thomas’ 20th anniversary of his first day on the Court.  It would be remiss of me not to include a reference to the confirmation hearings that brought us the Anita Hill testimony.  ABC News dwells on it in some details in marking the anniversary.  So does the Daily Show in this 2007 clip, titled “Here Comes The Grudge.”  Warning, the comedy is a bit gross in reviewing Ms. Hill’s allegations from back in 1991, but it wouldn’t be the Daily Show otherwise.  Perhaps this clip from Stephen Colbert might be a bit more palatable to Justice Thomas’ fans.  Maybe not.  Happy anniversary Mr. Justice Thomas.  [MG]

Will the PACER Fee Increase Change Your Research Habits?

Erika Wayne is conducting a quick survey on Legal Research Plus here. [JH]

Time to Use RECAP Instead of PACER?

As a quick follow-up to Mark Giangrande's earlier post about PACER's fee increase, it seems worth noting that under the new fee structure infrequent PACER users get a bit of a break as long as they do not download 150 or more pages from PACER per quarter (and to repeat that government agency users get a temporary reprieve from the increased PACER fees).

That means that PACER revenue from everyone else will be used to "support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary's Case Management/Electronic Case Filing system" because Congress mandated the electronic access program be funded entirely through PACER fees set by the Judicial Conference.

I guess the fee precedent was set by court collection of photocopy charges for court records and briefs that probably included some sort of cost roll-up for their photocopiers, toner and paper supplies. Of course, that assumes court officials paid sufficient attention to monitoring those costs.

 In her Legal Research Plus post about the PACER fee increase, Erica Wayne offers the following suggestion:

Might be a good time to teach your students and attorneys about using RECAP.

Yup. [JH]

PACER Fees Going Up

Public access to federal court docket materials is going up from 8 cents a page to 10 cents a page.  As the Judicial Conference puts it:

In separate action, the Conference responded to inflationary pressures by increasing, effective November 1, certain miscellaneous fees for federal courts. The newly approved court fee schedule, the first inflationary increase in eight years, is expected to result in an estimated $10.5 million in additional fee revenue for fiscal year 2012. Fees in appeals, district, and bankruptcy courts are affected. The income the Judiciary receives through miscellaneous fees allows it to reduce its annual appropriations request to Congress.

The Conference also authorized an increase in the Judiciary's electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system. The increase in the electronic public access (EPA) fee, from $.08 to $.10 per page, is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary's Case Management/Electronic Case Filing system.

The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. Implementation of the two-cent per page increase will take a minimum of six months.

The Conference was mindful of the impact such an increase could have on other public entities and on public users accessing the system to obtain information on a particular case. For this reason, local, state, and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The expanded exemption means that 75 to 80 percent of all users will still pay no fees.

Weren't the courts making excess money from PACER?  What gives?  [MG]

Providing Routine Legal Services to the "Masses" in the 21st Century, Part Two: A Prescription for Allowing Main Street-Based Services Provided by Licensed Legal Assistance Practitioners

"The county's public law library can help you because ... ." Usually the sentence ends with "court forms" when spoken by local court employee or "information" when spoken by a legal services staffer whose office cannot provide the services requested. And yes, we do have court forms and "information." We have local court forms and court rules (which may or may not be current even when provided from the local court's website), our state's annotated code, regs, case law, state-practitioner focused deskbooks and loose-leaf services plus self-help books, etc. But the operative word is "help." For the self-representative litigant who visits our little county law library, the matter at hand is usually pretty route. The help they are seeking, however, is how-to answers. Our response must be restricted to directional reference assistance to our resources. It's up to them to read, understand, interpret and decide what is relevant and needed.

Of course, many, if not most ask, "is this relevant, is this form I need, do I need something else, how do I proceed in court?" Of course, we can't answer those questions with the specificity they want. That does not stop members of the general public repeating the same question. We take advantage of our little county law library's layout which provides line-of-sight so all staffers can see what is going on at the public services desk because sometimes the public patron will not accept "sorry, but..." until he or she hears it from a second staff member.  

We take a strict and, in my opinion, appropriate interpretation that providing this sort of "help" is an unauthorized practice of law. Hell, we even have a sign posted behind the public services desk with offical citation to the source for why we are not allowed to do so. However, even the questions sounding in the most routine court-related legal formalities can be difficult for many members of the general public. Our final words of "advice" is to suggest to our public patrons that they seek legal counsel and that our local bar association offers a referral service to help them find one. Of course, we never recommend a specific attorney, even when one who could help them is working in our county law library at the time. Most, however, simply cannot afford to hire an attorney. The self-representative litigant is on his/her own.

Let's add that I personally believe most judges have to and do work harder to accommodate the typical self-representative litigant we see in our library when he or she appears in court. No doubt many members of the bench would prefer that the pro se had obtained some sort of legal assistance for routine matters to expedite court proceedding.

Resources for the Self-Represented Litigant. I question the efficacy of the well-intended attempts to provide resources to members of the general public. See, e.g., "2011 Report: Resources to Assist Self-Represented Litigants: A Fifty-State Review of the 'State of the Art'” (Michigan State Bar Foundation, June 2011). No matter how much the "state of the art" improves, many self-represented litigants will simply not comprehend what is required. It's not that they are incapable of eventually understanding what is required. But, more often than not, they simply do not sufficient time to do so.

The equally well-intented "plain-English" movement that started some quarter of a century ago is problematic at best. While the "law" is written in English and can be understood by individuals who did not go to law school, there is a learning curve, one that remains even when "plain-English" documentation of forms and legal procedures are officially recognized. There will always be, in my opinion, a to-understand and to-do gap because the "law" is a formalized process that requires some measure of professional expertise, even for routine legal matters in court or for uncontested transactional documentation.

Comparing the Status Quo to Tax Prep and Healthcare Licensing Requirements. While there may be no solution to the self-represented litigant who has absolutely no funds, there may be a solution to providing legal assistance for routine civil matters that are affordable for many. If states and the federal government can define "tax preparer" to include tax lawyers, accountants, and nation-wide storefront chains which train staff to make decisions on how to input numbers into a software application for personal income tax prep by interpreting income tax requirements, then why not allow the same sort of licensing distinction between attorneys and state-mandated qualified legal assistants. If states can license and regulate the professional distinction between optometrists and ophthalmologists based on educational qualifications for providing eye care services to the masses, between license MDs and once not-accepted but now accepted by insurance providers chiropractors in the healthcare industry, then why not institutionalize the same sort of licensing distinction between attorneys admitted to the bar and certified legal assistants?

Let's start with the medical profession which also protects its industry in cartel-fashion like the legal profession does. When I visit my personal doctor, I always request to see her certified nurse practitioner. While the medical profession requires that they be employed by, work under the supervision of a licensed MD, and cannot prescribe medication on their own initative, but are covered by the doctor's medical malpractice insurance, there is no need for my doctor to spend her valuable time attending to my routine medical needs, even for a person like me who is not "aging well."  If certified nurse pratitioners could practice without being affliated to an MD on "Main Street" under a state licensing regime I would go to one for routine medical matters.

There is certainly an analogy here to the provision of legal services for the masses for routine civil matters. Unless a "client" knows something about the law at issue, he or she is dependant on an attorney's attention to detail. Oftentimes, much of that depends on the attorney relying on a paralegal. Why not allow certified legal assistance practitioners work independently on routine legal matters on "Main Street" under a state licensing regime, something short of appearing in court. They could provide the sort of assistance needed for most routine civil matters, like non-contested divorces, child suport matters (oftentimes form-driven with fill-in the blank state-specific software provided by vendors), probate court filling formalities for uncontested estates, as well as common transactional documentation like basic wills, etc.

Providing Qualified Legal Assistance. Of course that would also break the attorney-centric authorized legal practice cartel, one that is already happening in an unregulated manner. See As Nonlawyer Vendors, Would-Be Clients Take on More Legal Tasks, How Can Practitioners Get Ahead? This ABAJ story reviews “The Once and Future Firm: Fact v. Fiction,” ABA Law Practice Management Section panel session at the ABA Annual Meeting:

Increased competition from nonlawyer entities and blurred distinctions between legal and nonlegal work are just two of the major impactors redefining modern law firms, regardless of their size.

As a result, lawyers need to embrace an entrepreneurial spirit more than ever. Indeed, they should distinguish themselves by providing value, beyond their knowledge of the law and being able to craft documents, panelists said.

See also Mark Giangrande's The Grey Area of Unathorized Legal Practice.

A move like suggested might require a substantial improvement in the quality of paralegal education, perhaps even a one-yeare post-graduate program. And it could produce some sleepless nights for law school administrators who may worry about how to convince prospective students interested in the field of law to go to law school (read load-up on student debt) instead of studying to be a paralegal by way of, for instance, enrolling in a paralegal program (read less student debt). What the heck, it would create the opportunity for a new insurance niche, stand-alone paralegal malpractice insurance. I could even imagine one of our major professional legal services vendors opening a national chain of storefront operations like H&R Block has for tax preparation services. Think John & Jenny Westlaw offices across this great land of ours.

Likely to Happen? I think it is a pipe dream (unless TR Legal gets involved!). While the availability of self-help materials is substantially more widely available by way of the Internet from local courts with respect to their rules and forms and commerical sources by way of state-specific forms of questionable value and self-help guides, most national, some state-specific but all also of questionable value, nothing is going to trump face-to-face meetings between a pro se and someone qualified to explain the ways and means of routine legal matters. I am not, however, arguing that this work should be performed by public sector law librarians. Our contribution should not change. However, to the extent some county law libraries provide services to menbers of the bar beyond services provided to members of the general public, those additional services could be provided to licensed legal assistance practitoiners who work indendently. [JH] 

For the first part in this LLB series, see Internet-Based Legal Document Prep Services.

If the Bench Finds Law Journal Articles Irrelevant, What About Law Prof Amicus Briefs?

According to Tun-Jen Chiang's PrawfsBlog post, Amicus Briefs and the Academic-Judge Divide, law prof amicus briefs are just as, if not more, irrelevant then their scholarly law journal output. "In discussions about the supposed uselessness of legal scholarship to judges, I often ask: 'should law professors file more amicus briefs?'  Responses are mixed, but my general impression is that judges see law professor amicus briefs as just about equally, if not more, useless than their articles," writes Tun-Jen Chiang.

This, to me, is a pretty illuminating attitude.  The usual complaints about law review articles—that they are too abstract and don’t grapple with legal materials like case precedent in a serious way—really can’t be said about law professor amicus briefs, which usually do make legal arguments in a lawyerly way.  If what judges are really seeking from law professors was help in legal analysis from a group of reasonably intelligent individuals with expertise in an area and time to conduct research, then an amicus brief should answer all of those requirements.

But help in legal analysis and decision-making is not what judges are really looking for.  A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy.  The contribution that a law professor can provide on top of this is minimal.  What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself.  An amicus brief provides less of the appearance of authority and objectivity than a law review article does.  Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.

Perhaps there was a time when amicus briefs authored by law profs were valuable but Tun-Jen Chiang correctly observes:

A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy. The contribution that a law professor can provide on top of this is minimal.

What judges want is something akin to citing and quoting blackletter statements of law produced by authoritative doctrinal analysis that once were but is no longer be as readily available from recognized authorities because those titles are now spit out by "Publisher's Staff" without the expertise required to produce new authorative black-letter statements.

Filling the legal treatise vacuum created by vendor commodization. Law journal literature has not filled the gap in editorial analysis produced by our vendors traditional updated sources. Hell, take for example contract law. Do our vendors even stay true to the different schools of thought that originally resulted in competing intellectual perspective produce by Williston and Corbin. I'm thinking the kids employed straight out of law school as editorial staff probably don't even know what I am referring to.

I also thing there is no reason for court libraries to continue acquiring these qualited-deluded titles in print or online. In the "new normal" editorial quality matters and if traditional named author-branded titles fail to meet current expections, contrary to past expections, it is time kill them and look for alternatives that the Bench can use. Some of our very expensive legal information providers apparently believe that branded titles are beyond critical evaluation because users will always want to rely on them -- they even rely of the reluctance of librarians of a certain age to elminate old standbys from the collection. No longer the case in the Shed West Era. They are ignoring generational shifts in conducting legal research, shifts promoted by those vendors who minimize the importance of using of secondary legal sources. But I digress... .

Tun-Jun Chiang writes

What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself.  An amicus brief provides less of the appearance of authority and objectivity than a law review article does.  Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.

Well, that's hardly an earth-shattering revelation. Just legal formalism? Let's toss in legal realism. Absent some sort of "unified theory" for interpretation of the Big Bang of access to primary legal materials that is and has existed for several decades, law profs have plenty of fodder for churning out amicus briefs as well as law journal articles based on micro-interpretative schools of thought which don't offer any intellectual assistance to the Bench.

Hat tip to the Legal Skills Prof Blog postby Villanova's Louis Siricos, Jr. [JH] 

Law Prof Miffed at CJ Roberts' Characterization of Legal Scholarship as Being Irrelevant

Quoting from the Concurring Opinions post, Sherrilyn Ifill on What the Chief Justice Should Read on Summer Vacation:

[M]ore often than not, published law review articles offer muscular critiques on contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom.

Now, perhaps Maryland law prof Sherrilyn Ifill can explain why courts aren't sufficient persuaded by such deeply concerned academic muscularity to cite law review articles in court opinions.

You can view CJ Roberts presentation at the Annual Fourth Circuit Court of Appeals Conference on C-Span. [JH]

“If you asked me when was the last time I read a law review article, I’d have to think long and hard": Paraphrasing Chief Justice Roberts' Remarks on the Relevance of the Legal Academy's Scholarly Output

In his recent Legal Skills Prof Blog post titled Chief Justice Roberts Criticizes Law Profs, Louis J. Sirico, Jr., Professor of Law and Director of Legal Writing at Villanova wrote

"[the Chief Justice] politely criticized legal academics for scholarship that he intimated was relevant only to academics [during his presentation at Annual Fourth Circuit Court of Appeals Conference in June]. I paraphrase: “If you asked me when was the last time I read a law review article, I’d have to think long and hard.”

OMG, that is shocking news! To view CJ Robert's speech at this year's Fourth Circuit Court of Appeals Conference, go to this C-SPAN link. [JH]

Chief Justice Roberts Announces Retirement of Supreme Court Librarian Judy Gaskell

On the last day of the SCOTUS term Chief Justice Roberts announced yesterday:

”The Court also notes today that the Court’s Librarian, Judith Gaskell, has announced her retirement. She will be leaving us before we reconvene in the fall. Ms. Gaskell has served as the Court’s Librarian since 2003. In the earliest years, the Court did not have its own Library. Members of the Court used their own personal collections or borrowed books from the Library of Congress or other sources. Today, the Librarian manages the Court’s splendid collection of more than 500,000 volumes, directs a staff of 28, and provides irreplaceable research in support of our work. The Court thanks you, Ms. Gaskell, for your dedicated service, and we wish you well in your retirement.”

The LLB Connection to Judy Gaskell's Long and Distinquished Career. I first met Judy in 1978 when she was a reference librarian at the University of Chicago Law School Library and I was a newbie library school student with a part-time gig in the Law Library's cataloging department. In 1979, you might say I worked for Judy because I added a second part-time job there as a reference intern. Judy was a big influence on my decision to become a law librarian specializing in legal reference and research. Jeez, that was over 30 years ago.

LLB's co-editor Mark Giangrande also worked for Judy. As director of the DePaul University Law Library, Judy hired Mark to work reference. I can still remember when Mark told me Judy had accepted the appoinment as Supreme Court Librarian. It's hard to imagine that was back in 2003. Time passes by so quickly.

Mark and I are indebted to Judy and we both wish her well in her retirement. [JH]

I would like to add to Joe's message that I had known Judy for some time before she hired me at DePaul.  I remember her tenure here as a Director with a light touch.   Judy directed the Library by handling the academic work and keeping any law school politics away from our day to day operations and services.  In her approximately 20 year career at DePaul she allowed library staff to do the work they were hired to do without a lot of micromanaging. I can't say that for some of the other Directors with whom I have worked.  It may surprise a reader to know that the DePaul College of Law Library has a low staff turnover.  Many of us hired by Judy are still here, some with tenures as long or longer than hers.  When Judy left for the Supreme Court we showed our appreciation for her work with us by hanging her portrait in the Library reference stacks.  Thanks for everything through the years.  Enjoy your retirement.  [MG]

Official Illinois Reports Published by West Not Yet West-Mart's "Deal of the Day"

But, hey, Illinois Office Supreme Court Reports, 2d and Illinois Official Appellate Reports, 3d are both on sale today at West-Mart (both pages last visited on June 3, 2011) and you can buy them with an "assured pricing plan."

Due not that "Semimonthly Advance Sheets keep you updated with latest official text of [Illinois] state supreme and appellate courts." Quoting from West-Mart's Illinois Official Supreme Reports blurb. Well, not after July 31, 2011 and not needed after opinions filed after July 1, 2011 because Illinois has changed its citation rules to a public-domain case designator number with internal paragraph numbers pinpoint cites for all opinions filed after July 1, 2011.

Official opinions will be accessible at Illlinois Supreme Court’s website. Quoting from the Illinois Supreme Court's press release:

In another bow to the digital age, those bulky law books containing officially reported Illinois court opinions soon will be going the way of 8-track tapes and boom boxes.

See Mark Giangrande's LLP post Illinois Reports 1831 - 2011 RIP. See also Greg Lambert's very interesting critique of the new citation format (and PDF format for e-delivery) at Illinois Supreme Court Adopts New Official Citation System - “Oh, So Close!!" and note the context (read first-hand experience) he is coming from.

I'm more concerned that the format for Illinois official opinions is PDF/A so they will to accessible to all. The PDFs can be made searchable because they are text-based PDF versions (at least the couple of opinions I checked) and the text can be scrapped from them for quotation purposes (ditto, at least the couple I checked). Don't know, as in didn't see in my quickie sample, that they were digitally authenticated but that too could be executed easily (and better be). Did not, however, see that bulk distribution is an available option (could have missed that). If not, making bulk distribution an option is the most important issue at hand. But I digress... .

West-Mart Advertising. Well, it has only been a couple of days since the Illinois Supreme Court's May 31, 2011 press release -- I'm thinking West was informed a wee bit earlier, you? -- so West can still try to sell advance sheets until the current contract expires on July 31, 2011. We wouldn't or shouldn't expect the folks who sell "trusted legal resources from Thomson Reuters" to give potential buyers a heads-up about there not being official Illinois advance sheets soon, right?

Assuming, rightly so I think, West can continue to try the sell its soon to be dead series of hardbound copies of Illinois Official Supreme Court, 2d and Illinois Official Appellate Reports, 3d until hell freezes over, one has wonder when the advance sheet language will be deleted from this blurb.

Case in Point. Sometime after LLB's April 18, 2011 post, the ad copy gurus got around to changing the blurb for Smolla's Federal Civil Rights Acts 3d to reflect its March 16, 2011 print format switcheroo. Alas that blurb is still displaying the now defunct loose-leaf format image in the West-Mart's ad. Compare April 17, 2011 screen capture here with the June 3, 2011 screen capture below.

Deceptively simple to remove that image with either an image-not-available image (see right) or an image of the publication in it's current pamphlet format. [JH]

Redaction Failures in PACER

Princeton Center for Information Technology Policy's Timothy B. Lee states that "it's safe to say there are thousands, and probably tens of thousands, of documents in PACER whose authors made unsuccessful attempts to conceal information" for technical reasons relating to the use of PDFs. See his Freedom to Tinker blog post, Studying the Frequency of Redaction Failures in PACER, for details and for the software Lee created and used to identify the problem. [JH]

Illinois Reports 1831 - 2011 RIP

The Illinois Supreme Court has adopted the public-domain electronic citation system for appellate opinions and discontinues publication of the official Illinois Reports and Illinois Appellate Reports.  The contract for the official Illinois publications, currently held by West, expires July 31, 2011.  The new electronic publication rule goes into effect on July 1, 2011.  The Court states in yesterday's press release that the move will save taxpayers money by not having to buy volumes for court libraries throughout the state.  That's no small consideration.  The Illinois Legislative Reference Bureau, for example, could not mail out interim copies of the Legislative Synopsis and Digest, which tracks action on legislation, because it could not pay the postage for the bulk mailing.  The final edition for the last general assembly was recently sent to libraries.

The press release points out that Illinois opinions are everywhere on the Internet, from the Court's own website to Westlaw, Lexis, and other online sources.  Chief Justice Kilbride is quoted as saying “Today an attorney can search the name of a case on a computer and read that opinion in a matter of seconds, even from a smartphone, e-reader or epad.  A lack of printed law reports is no longer a hindrance to legal research.”  The irony in this statement, of course, is that while opinions are everywhere, court rules required citation to official reports despite that availability.  The changes to the court's rules fix that problem, at least prospectively.

Illinois Suprme Court Rule 6 still requires citation to official reports for Illinois cases filed prior to July 1, 2011, but any case issued after that with a public-domain citation can be cited on its own.  Parallel citation to the Northeastern Reporter or Illinois Decisions may be added but are not required.  Rule 23 lays out the citation format for Supreme Court opinions and those from the five appellate districts in the state.  Rule 23 still retains the designation for unpublished opinions, even though the text is available electronically.

While several other states use the public-domain citation system, Illinois becomes only the second state to abandon printed official reporters in favor of electronic distribution of case law.  The first state was Arkansas.  Rule 5-2 of that state made the changes in 2009.  Unlike Arkansas, however, Illinois does not address the issue of authentication of the opinion text.  Whether this will cause any problems remains to be seen.  I would guess problems would be unlikely, as the text, in theory, would always be available from servers at the Illinois Supreme Court.  Justice Kilbride states in the press release “The official body of Illinois court opinions will now reside on the website of the Illinois Supreme Court, readily available to lawyers, judges and law clerks for official citation and to any member of the public who wishes to read them.”

Law review cite checkers, please take note that you will no longer be able to annoy your law librarian with requests for official printed copies of Illinois appellate opinions issued after July 1, 2011.  You will just have to live with the PDF of the slip opinion, like everyone else.  Just hope link-rot doesn't seep in.  [MG]

Wrong-Sizing the New York State Judicial System

Back in the 1980s when mass layoffs and plant closing in the country's industrial sector were commonplace, someone can up with a sugar-coated buzz word for "downsizing." It was "rightsizing." The New York Lawyer's Joel Stashenko is reporting that New York state court administrators are notifying 367 nonjudicial employees that their jobs will be eliminated. Downsizing, yes. Rightsizing, no. Considering the consequences, "wrong-sizing" is an appropriate characterization. It's not like the court system's workload is going to decrease any. Certainly this "wrong-sizing" is going to produce delays.

Starting June 1, that number of clerk, court officer, court reporter, attorney, support and other positions will be vacated. And the jobs will remain empty as the Judiciary grapples with a $170 million cut in its proposed $2.7 billion budget.

Of the cuts being announced today, 343 are in the state's numerous trial courts and 24 in the appellate courts. They are in addition to the loss two weeks ago of 74 jobs at the Office of Court Administration.

The new layoffs represent 2.4 percent of the courts' 15,326 employees. But 1,928 law clerks, confidential secretaries and other personnel who work directly for the system's individual judges are exempt from the cuts, meaning that 2.7 percent of the remaining workers are losing their jobs.

Stashenko adds:

With state finances in disarray, a quick reversal in this year's cuts is unlikely. In fact, they may force fundamental changes in the way the courts do business.

For details, see Stashenko's Layoff Announced Today for Hundreds of NY Court Attorneys, Staffers (May 18, 2011) ("The impact will be all the greater because the courts are still digesting the departure last November of some 1,550 employees in an early retirement incentive program. Administrators had planned to fill more than half those vacancies, but froze hiring earlier this year before the process was complete as the budget outlook darkened in Albany.") [JH]