Law Librarian Blog

Judge Aldisert on Opinion Writing and Opinion Readers

Opinion Writing and Opinion Readers (SSRN) was inspired in large part by the work done by Judge Aldisert, United States Court of Appeals for the Third Circuit, and two of his law clerks, Meehan Rasch and Matthew P. Bartlett, in editing and preparing the second edition of Judge Aldisert's classic book Opinion Writing (forthcoming), an updated, comprehensive guide intended to be of wide practical use to members of the judiciary, judicial staff attorneys and law clerks, state and federal administrative judges, hearing officers, commissioners and private arbitrators, law librarians, scholars and students.

The article draws from and complements topics addressed in Opinion Writing, 2d ed., while specifically highlighting the relationship between opinion writing and opinion readers. From the abstract:

In Part I, we survey some of the considerations facing opinion writers as they decide whether to write an opinion at all, examine the decision-making process engaged in by courts prior to writing an opinion, and summarize the various types of written "opinions" that may be produced, such as per curiams, judgment orders, precedential and non-precedential opinions. In Part II, we identify primary and secondary "readership markets" for judicial opinions and discuss how the purpose of writing opinions is affected by the intended audience. In Part III, we dissect the ideal structure of an opinion, offer basic mechanics of draftsmanship and address some of the criticisms of judicial opinions lodged by readers. In Part IV, we briefly touch on opinion writing style and editing. In conclusion, we reaffirm the need for wider understanding of the judicial process and for increased clarity of communication between opinion writers and readers. To this end, we hope this Article will serve as a useful resource for all opinion readers and writers, including scholars, practitioners and judges, students and aspiring law clerks.

Highly recommended. [JH]

Missing Items from US Archive, Found Item in UK Archive

The National Archives reports that dozens of historical documents have gone missing from the national archives.  Larry Margasak from the Associated Press indicates that the the items were stolen by researchers or Archives employees,while others
disappeared without a trace.  Some have been missing for decades, some for a few years.

The Archives' inspector general, Paul Brachfeld, arrived at the Archives nine years ago.  Since his arrival he has instituted a recovery system to retrieve lost items.  There is no mention of his success rate.  According to the Archives web site, there are approximately

• 9 billion pages of textual records
• 7.2 million maps, charts, and architectural drawings
• More than 20 million still photographs
• Billions of machine-readable data sets, and
• More than 365,000 reels of film and 110,000 videotapes.

Only 1 to 3% of the items are deemed important enought to be preserved and kept forever.
Many of the missing items include legal documents like:

• The patent for the Wright Brothers' Flying Machine
• The patent for the Gin Mill
• Presidental pardons

In addition to the documents and other items, Branchfeld is investigating the loss of hard drives containing social security numbers.

Branchfeld might want to check the British Archives, where they recently found a rare Dunlop print of the Declaration of Independence. (VS)

Best Practices for Government Libraries, 2009 Edition

Best Practices for Government Libraries, 2009: Change: Managing It, Surviving It, and Thriving On It, is a LexisNexis-produced 181 page compilation of 60 articles and other submissions provided by more than 50 contributors from librarians in government agencies, courts, and the military, as well as from professional association leaders and LexisNexis Consultants. [JH]

Delegation of Work Assignments by Lawyers to Nonlawyers in Law Firms

In Shadow Lawyering: Nonlawyer Practice within Law Firms, [NELLCO] Paul R Tremblay (Boston College Law School) articulates a framework for assessing choices lawyers make when they delegate some tasks to nonlawyer colleagues. The framework relies on insights about lawyering judgment and risk assessment, client informed consent, and unauthorized practice of law prophylaxis. From the abstract:

Any delegation of work by a lawyer to a nonlawyer involves an exercise of the lawyer’s judgment about an appropriate balance of risk and efficiency, along with an eye toward the client’s informed choice about how to achieve the goals of the representation most efficiently. The prevailing unauthorized practice of law dogma prevents a client from seeking the most economical representation by only retaining a nonlawyer, but that dogma trusts lawyers to protect a client’s interests. With those considerations in place, this Article shows that the profession cannot, and in fact does not, deny the lawyer any categorical options in making delegation choices, except for those involving public court appearances. Aside from sending a nonlawyer to court, a lawyer may responsibly delegate any of her lawyering activities to a nonlawyer associate, subject to the prevailing conceptions of competent representation and subject to the lawyer’s retaining ultimate responsibility for the resulting work product and performance.

Some commentary and some court opinions suggest a different answer to the questions addressed here, but those authorities do not withstand careful analysis. This Article shows that a more careful reading of the commentary and the court dicta supports the framework and the thesis offered here. Nonlawyers may not independently engage in activity which equates to the practice of law, if by “independently” we mean without supervision and oversight from a lawyer. That important and uncontroversial limitation, however, is the only categorical restriction on a lawyer’s discretion. A supervised nonlawyer may play a much more active and important role in a lawyer’s overall representation of her client than many have claimed. For the client, that is a very good result.

Required reading for newbie law firm librarians and paralegals and, maybe, young associates. [JH]

Deegan & Sutherland's Transferred Illusions: Digital Technology and the Forms of Print

Mats Dahlström (University of Gothenburg) writes "using case studies such as hypertexts, newspapers, critical editions and libraries, Deegan & Sutherland [in Transferred Illusions: Digital Technology and the Forms of Print (Ashgate, April 2009)] elegantly and pedagogically make us aware of recurrent patterns between historical media as well as between theories about those media." Now, I wish I could say that I'm going to read this book because it sounds like something I should but the reality is I'm old, tired and can barely keep my eyes open when I get home from work. (And the book is only 218 pages!). For librarians who have more conscious and productive hours in the day and, yes, more motivation, here's the book description:

This is a study of the forms and institutions of print – newspapers, books, scholarly editions, publishing, libraries – as they relate to and are changed by emergent digital forms and institutions. In the early 1990s hypertext was briefly hailed as a liberating writing tool for non-linear creation. Fast forward no more than a decade, and we are reading old books from screens. It is, however, the newspaper, for around two hundred years print's most powerful mass vehicle, whose economy persuasively shapes its electronic remediation through huge digitization initiatives, dominated by a handful of centralizing service providers, funded and wrapped round by online advertising. The error is to assume a culture of total replacement. The Internet is just another information space, sharing characteristics that have always defined such spaces – wonderfully effective and unstable, loaded with valuable resources and misinformation; that is, both good and bad. This is why it is important that writers, critics, publishers and librarians – in modern parlance, the knowledge providers – be critically engaged in shaping and regulating cyberspace, and not merely the passive instruments or unreflecting users of the digital tools in our hands.

[JH]

New Earmark Disclosure Rules and Statutory Interpretation

Rebecca M. Kysar's (Brooklyn) Listening to Congress: Earmark Rules and Statutory Interpretation, 94 Cornell Law Review 519, [SSRN] reviews the new disclosure regime adopted by the 110th Congress that requires broad disclosure of spending earmarks and tax provisions that benefit special interests. From the abstract:

This Article begins by describing various tactics legislators have used or will likely use to evade the new disclosure regime, as well as deficiencies in the regime's design. The piece then explores the value of enlisting a force external to Congress as a response to the inherent weakness of endogenous, procedural rules. It concludes that although direct judicial review of legislation for compliance with the rules likely raises constitutional difficulties, judicial involvement through statutory interpretation offers a potential solution. Specifically, when interpreting ambiguous legislation that falls within the ambit of the disclosure rules, judges should assume the rules have functioned correctly; in other words, if no special interest beneficiary has been disclosed, judges should assume that none was intended and interpret the ambiguous provisions accordingly. The proposal thus strengthens congressional adherence to the rules by imposing costs upon defecting lawmakers, as well as the special interests they support. It does so, however, without offending the constitutional mandate that lawmakers have purview over such rules. Hence it offers a counterpoint to the entrenched view that Congress cannot truly precommit itself through procedural rules. Furthermore, because this method of statutory interpretation is guided by Congress's own remedy to the problem of special interests, it differs in an important respect from prior scholarly proposals for narrow interpretation of special interest legislation, making it more resilient to the critique that the interpretive mode exceeds the judicial function.

Hat tip to David Hricik (Mercer) on Statutory Construction Blog. [JH]

Why Law Libraries?

Richard Danner (Duke), Blair Kauffman (Yale) and John Palfrey (Harvard) dive into the issue in The Twenty-First Century Law Library 101 LLJ 143 (2009). The article is an edited version of the program, “The 21st Century Law Library: A Conversation,” that was held as part of the Nov. 6, 2008 celebration of the renovated and expanded J. Michael Goodson Law Library at Duke. Interesting to see three prominent academic law library directors approach the topic from their different backgrounds. [JH]

Link Rot in Court Opinions

"Citation format is not a sexy topic," writes Tina Ching (Reference Librarian, Seattle Univ. Law Library) in The Next Generation of Legal Citations: A Survey of Internet Citations in the Opinions of the Washington Supreme Court and Washington Appellate Courts, 1999-2005 [SSRN], 9 J. App. Prac. & Process 387 (2007) but web citations by courts and the long-term accessibility to the cited resources are important topics. Ching writes "the impermanence and ever-changing characteristics of the Internet present alarming issues that demand widespread changes to citation formats and also to the preservation and availability of cited materials."

In her survey of 14,209 Washington Supreme Court and Appellate Court opinions issued in 1999-2005, Ching found 132 Internet citations [Click on image, left, for types of Internet materials cited]. 64% of the URL citations did not lead to the cited materials. "Availability issues must be addressed so that researchers will be able to readily access government, legislative, and court materials on the Internet," writes Ching. "It is not enough that a clerk or judge keeps cited materials on file." Indeed it isn't. Ching recommends that "libraries should also be given the resources to maintain digital copies of online-only government publications, just as they currently maintain print materials, so that they can allow the public greater access to all materials that are now used to support case law."

Just like in the good old days when certain law libraries were designated as depositories for print copies of state supreme court briefs and records, Ching's research underscores the need for digital depositories to archive and make accessible online court-cited web resources at the state level.

Hat tip to Legal Research Plus for calling attention to Ching's very informative article. [JH]

Debunking Originalism

Fifteen months after first being made available on SSRN in December 2007, Mitchell N. Berman's (Richard Dale Endowed Chair in Law, Univ. of Texas at Austin) "Originalism is Bunk" article has now been published in the April 2009 issue of the New York Law Review [text as published]. Berman argues that constitutional interpretation should not disregard framers’ intentions, ratifiers’ understandings, or original public meanings. "But originalism is a demanding thesis. We can take the original character of the Constitution seriously without treating it as dispositive. That original intents and meanings matter is not enough to render originalism true." [JH]

Separating State from Church: A Research Guide to the Law of the Vatican City State

Stephen Young (Catholic University) and Alison Shea (Fordham) have deposited Separating State from Church: A Research Guide to the Law of the Vatican City State in SSRN.  From the abstract:   

Mr. Young and Ms. Shea discuss the unique situation of the Vatican City State in legal research. They provide an overview of the founding documents and the constitutional structure of the world's smallest sovereign nation, a discussion of the complex nature of the Vatican's international status, and a bibliographic essay covering the materials most likely to be available in law libraries in the United States.

Law Reviews: Do Their 'Paths of Glory Lead But to the Grave'?

John Doyle (Washington and Lee) has published an interesting article on the future of Law Reviews entitled:  Law Reviews: Do Their 'Paths of Glory Lead But to the Grave'?.  From the abstract:

"Academics, who write most of the law review articles, gain prestige from being read and cited by their peers. Even when their works are minimally cited, prestige is gained by publication in prestigious journals. Student editors seek the prestige of law review membership to attain prestigious jobs and clerkships. Law schools seek the prestige of publishing prestigious law reviews. If no law reviews existed, commercial publishers would be happy to expand their journal offerings and publish faculty work, competitive schools would compete on some other basis, and students would find some other means to signal how hardworking and smart they are. How will removing the bricks of prestige from the current law review structure begin? At the moment the wall is solidly reinforced, each constituent with their interlocking benefit, and any rumbling no more than a murmur. This essay discusses a number of problematic issues for law reviews and the possibility of replacing the existing edifice."

One problematic issue for law reviews might be the steady decline in subscriptions. See LLB's earlier post, Twenty-Five Year Decline in Law Review Subscriptions. [RJ]

Google's "Evil Talk:" Hoofnagle on Reforming Google's Privacy Rhetoric

Hoofnagle's analysis of hundreds of news articles shows that Google’s privacy rhetoric generally lacks substance. "It most frequently uses hackneyed messaging that is optimized to affect consumer biases, encouraging them to assume that the company will do the right thing when in fact it has promised only good intentions. Google’s “evil” rhetoric is simplistic and vague, and distracts individuals from important issues involved in using the company’s services. Google heavily relies upon appeals to innovation and technological development, but this rhetoric viewed in the context of its privacy–enhancing technologies is hyperbolic. Several of Google’s privacy interventions are discussed, and in salient cases, the company has chosen solutions that give the user the impression that the core privacy issue has been solved while leaving it unaddressed. While Google sometimes argues that use of its products is a tradeoff borne of free choice, revocation of choice is frustrated because of lock in and shifting company policies."

In Beyond Google and evil: How policy makers, journalists and consumers should talk differently about Google and privacy, First Monday (April 2009) Hoofnagle offers four recommendations for reforming Google’s privacy rhetoric and for better understanding the company’s actions:

1. Google should abandon its “You can make money without doing evil” motto.

2. Google should more forcefully explain the beneficial effects of its advertising model, as its potential for solving age–old problems in advertising is not fully appreciated by policy makers and the public.

3. More skepticism must be exercised when Google employs vague privacy rhetoric, as promises lacking in substance lead to practices lacking substance.

4. Google should give voice to “tradeoff talk,” and make it very easy for individuals to delete information and switch away from Google to other services.

Excellent study. [JH]

Why Not Harvest Citation Data Before Papers Are Published?

José H. Canós Cerdá, Eduardo Mena Nieto and Manuel Llavador Campos argue that citation analysis needs a transformation because of such important shortcomings as lack of coverage of publications, low accuracy of the citation data and costly process of harvesting citation data after papers have been published. In What's Wrong with Citation Counts? D-Lib Magazine, March/April 2009, the authors propose a brilliant alternative:acquiring citation data automatically from papers before they are published, storing the data in a Global Citation Registry, and making the Registry's data readily available for bibliometic analysis. From the article:

A look at the internal processes of both commercial and free citation management systems shows that citation harvesting, which uses costly techniques such as optical character recognition, machine learning, and others, start after papers have been published. Notice, however, that in a high number of papers, citation information is generated, and hence can be collected, much earlier. In fact, most scientists prepare their papers using word processing systems that have accompanying bibliography management utilities. BibTeX, for instance, is able to generate bibliography lists in LaTeX documents from metadata stored in the so-called ".bib" files. Microsoft Office Word 2007 has a built-in bibliography manager, and users of earlier versions can manage their bibliographies using third-party applications such as EndNote or RefWorks. All these bibliography managers are aware of the citations included in papers, but such information is systematically discarded when the camera ready copies of the papers are sent for publication. At that time, citation records must be built again from scratch, which results in additional costs, errors and delays. Moreover, different companies maintain different citation databases with highly overlapping content, possibly in different formats that complicate interoperability.

Better management of the citation data throughout the lifecycle of a paper will improve data quality and significantly reduce the cost of citation generation. Instead of viewing scientific publishing as a number of disconnected activities, we claim that a framework should be defined for a global workflow, from document creation to publication, involving different actors who would participate collaboratively. Citation data would be generated only once – at the time of document creation – after which such data could flow from one activity to the next. Consequently, there would no longer be a need to harvest citation data again after a paper's publication. The citation records thus generated should be stored in a Global Citation Registry (GCR), maintained by independent organizations similarly to the way in which Internet domain names or ISBN codes are managed. As envisioned, the GCR would be freely accessible for queries; and updates to it would be made by the entities responsible for the publications of papers, that is, companies or organizations acting as publishers.

[JH]

Ten Major Newspapers That May Fold or Go Digital Only

Time has published a distrubing story about the current state of the US newspaper industry. In it, the article lists 24/7 Wall Street's prediction of the ten major daily papers that will most likely to fold or shut their print operations and only publish online. The properties were chosen based on the financial strength of their parent companies, the amount of direct competition that they face in their markets, and industry information on how much money they are losing. Based on this analysis, it is possible that eight of the fifty largest daily newspapers in the United States could cease publication in the next eighteen months.

1. Philadelphia Daily News

2. The Minneapolis Star Tribune

3. The Miami Herald

4. The Detroit News

5. The Boston Globe

6. The San Francisco Chronicle.

7. The Chicago Sun Times

8. NY Daily News

9. The Fort Worth Star Telegram

10. The Cleveland Plain Dealer

[JH]

The Judge as an Author/The Author as a Judge

Ryan Witte's The Judge as an Author/The Author as a Judge [SSRN} starts with the premise that an appointment to the federal bench is a life-long publishing deal. Recognizing that some judges stay faithful to the rigidous framework of judicial opinion writing, some don't -- some judges summon their inner novelist or poet to add life to the pages of the print and online reporting system. From the abstract:

The use of humor, poetry, and popular culture in judicial opinions is not without its criticism. This paper is divided into two main topics; the first discusses the judge as an author. The section will begin with an examination of the audience of judicial opinions and an outline of the different styles of judicial opinion writing. The section will also examine the advantages and disadvantages of using literary tools to advance the law.

The second section addresses the role of the artist as a judge. This section will study a small segment of judges who, in addition to the law, maintain an outside career as an author or artist. Judges who fit into this group include authors of books, operas, and magazine articles, and their opinions are often written in a manner which reflects their experience. This section will also discuss the advantages (and potential drawbacks) of having these unique judges deciding cases dealing with a wide range of author's issues, including copyright and free speech, both substantively and stylistically.

[JH]

Open Access to State Laws

In Towards an Open Source Legal Operating System [SSRN], Katie Fortney analyzes state copyright claims in their laws and access to them. The article urges broader access, analyzes the implications and legal arguments for and against copyright in the law, and considers strategies for access advocacy.

Hat tip to LibraryLaw Blog. [JH]

New Article on Legal Scholarship in the Digital Age

Stephanie L. Plotin, Reference & Williams Institute Librarian, UCLA School of Law, Hugh & Hazel Darling Law Library, has just published Legal Scholarship, Electronic Publishing, and Open Access: Transformation or Steadfast Stagnation?, 101 Law Libr. J. 31 (2009). Here's the abstract:

This article uses a social shaping of technology perspective, which studies the complex interactions between technology and the culture of a discipline, to investigate the evolution of legal scholarship in the digital age, and to determine how the open access movement has influenced various forms of legal scholarship, particularly law reviews, their online companions, and legal blogs.

[Robert Richards]

Interface Design Matters

Julie Jones (Cornell and LLB Contributing Editor) wasn't around when LexisNexis and Westlaw made their collective presence felt in legal research but I and my gray hair colleagues who read this blog were. Both services were great at databasing discrete short objects for research purposes like a court opinion, slip act, rule or reg, law review article, etc. They also made print citation indexes a thing of the past because each citation could be treated as a discrete object. As a means to updating print-based research using looseleaf services and the like LexisNexis and Westlaw were wonderful new tools in the early 1980s.

Both services, however, have run into trouble by cramming treatises and mult-volume works from their massive print catalogs through this code structure. It just doesn't work. It's why legal research can't be completely digital yet. The editorial structure and finding aids that are essential elements of the works get lost or are substantially less effective than the print versions because the interface, which has remained largely unchanged for 30-some years, doesn't accommodate them. Julie does a great job analyzing the issues in her recently published LLJ article, Not Just Key Numbers and Keywords Anymore: How User Interface Design Affects Legal Research. Highly recommended for ALR instructors.

Julie sticks to LexisNexis and Westlaw. I would only add that if one wants to see how the interface for multi-volume secondary works should be designed for online use, one need only look at the interfaces created by BNA for the web-based versions of their print titles. In my opinion, BNA "gets it." LexisNexis and Westlaw do not, simply do not want to change, or have systems that are too large to accommodate the changes needed for this form of legal literature. [JH]

Spring 2009 Issue of the ALL-SIS Newsletter

The Spring 2009 issue of the ALL-SIS Newsletter is now available.  In this issue, we introduce two new columns:  Law Librarian in the Dark and Survey Roundup. We also have an article about the new SSRN eJournal, Legal Information & Technology, a report about a people to people trip to China by a group of law librarians, and information on several grants, a scholarship, calls for nominations for awards, and activities at the AALL Annual Meeting in Washington, D.C. Hope you enjoy!

Leah Sandwell-Weiss
Editor, ALL-SIS Newsletter
Reference Librarian & Adj. Asst. Prof. of Legal Research
The University of Arizona
Daniel F. Cracchiolo Law Library, James E. Rogers College of Law
P.O. Box 210176
Tucson AZ 85721-0176
(520) 621-3140
leah.sandwell-weiss@law.arizona.edu

Professional Reading: Facebook and the Social Dynamics of Privacy

James Grimmelmann (New York Law School) has posted in SSRN an excellent article on privacy issues and social networks entitled Facebook and the Social Dynamics of Privacy.  From the abstract:

"This Article provides the first comprehensive analysis of the law and policy of privacy on social network sites, using Facebook as its principal example. It explains how Facebook users socialize on the site, why they misunderstand the risks involved, and how their privacy suffers as a result. Facebook offers a socially compelling platform that also facilitates peer-to-peer privacy violations: users harming each others' privacy interests. These two facts are inextricably linked; people use Facebook with the goal of sharing some information about themselves. Policymakers cannot make Facebook completely safe, but they can help people use it safely.

The Article makes this case by presenting a rich, factually grounded description of the social dynamics of privacy on Facebook. It then uses that description to evaluate a dozen possible policy interventions. Unhelpful interventions - such as mandatory data portability and bans on underage use - fail because they also fail to engage with key aspects of how and why people use social network sites. The potentially helpful interventions, on the other hand - such as a strengthened public-disclosure tort and a right to opt out completely - succeed because they do engage with these social dynamics."  [RJ]