"Nota Bene" means "note this well" or "take particular notice." We at the O'Quinn Law Library will be posting tips on legal research techniques and resources, developments in the world of legal information, happenings at the Law Library, and legal news reports that deserve your particular attention. We look forward to sharing our thoughts and findings and to hearing from you.
N.B: Make a note to visit "Nota Bene" regularly.

-Spencer L. Simons, Director, O'Quinn Law Library and Associate Professor of Law


Thursday, August 28, 2014

Documents Removed from PACER

The Administrative Office of the U.S. Courts has recently updated its online notice regarding removal of documents from the Public Access to Court Electronic Records (PACER) database.  According to the notice, the new PACER system is incompatible with older case documents from several courts; these documents have been removed from the PACER system.  The affected courts are:
  • U.S. Court of Appeals for the 2nd Circuit (cases filed prior to January 1, 2010 have been removed)
  • U.S. Court of Appeals for the 7th Circuit (cases filed prior to January 1, 2008 have been removed)
  • U.S. Court of Appeals for the 11th Circuit (cases filed prior to January 1, 2010 have been removed)
  • U.S. Court of Appeals for the Federal Circuit (cases filed prior to March 1, 2012 have been removed)
  • U.S. Bankruptcy Court for the Central District of California (cases filed prior to May 1, 2001 have been removed)

Legal researchers lacking access to databases other than PACER can still access the removed cases by contacting the individual courts, albeit more slowly and at increased expense.

This move has been controversial as the removed documents include a number of notable civil rights cases.
Training on using the new PACER system is available online.

Sunday, August 24, 2014

The Criminal Justice Act Turns 50


Last Wednesday marked the 50th anniversary of the Criminal Justice Act (CJA), which was signed into law by President Johnson on August 20, 2013. The CJA (codified at 18 U.S.C. §3006A) mandates funding for court-appointed counsel to represent indigent defendants charged with felonies or Class A misdemeanors in federal court. Although the Sixth Amendment to the U.S. Constitution guarantees the right to counsel for the accused, it is silent as to whether the court must provide an attorney for a defendant who cannot afford one. It wasn’t until Johnson v. Zerbst, 304 U.S. 458 (1938), that the Supreme Court established the right to court-appointed counsel in all federal criminal cases.

Even after Johnson, however, no funding was provided for court-appointed lawyers. This often made it impossible for them to hire experts or investigators and to provide an adequate defense. The CJA mandated that court-appointed lawyers receive hourly fees and expenses. Six years later, an amendment to the Act provided for the hiring of full-time government defense lawyers. Today, the federal Defender Services program serves 91 of the 94 federal judicial districts.

Although providing court-appointed counsel for indigent defendants may seem like an unqualified good, the system has its drawbacks. Funding remains a problem. During the 2013 sequestration, for example, federal defenders’ budgets were cut drastically. Furthermore, the severity of mandatory-minimum sentencing means that prosecutors have enormous power to force defendants into plea bargains. This situation has led some to argue that indigent federal defendants are worse off now than they were before the passage of the CJA. For an example of such an argument, see this 2013 article from the Yale Law Journal. For more on the history of the CJA, see this article on the United States Courts website. 
  

Friday, August 22, 2014

Woman Seeks to Clear Her Name With Rarely Granted Writ


On Monday, The American Lawyer posted an article on its website about Miriam Moskowitz, who was convicted in 1950 on a charge of conspiracy in a case involving the theft of U.S. atomic secrets. Moskowitz has always denied that she had any knowledge of the espionage plot between her boss, Abraham Brothman, and his associate Harry Gold. In 2008, evidence uncovered in a judicial review showed that Gold’s testimony at trial conflicted with his earlier statements to the FBI. Moskowitz, now 98 years old, is attempting to use this newly discovered evidence to clear her name.   

The legal process by which she is doing so is known as a petition for a writ of error coram nobis. The Latin phrase coram nobis means “before us,” and refers to errors of fact (not of law) before the court. Coram nobis petitions are sometimes used to challenge the results of cases in which evidence was withheld by prosecutors. The writ is rarely granted in criminal cases, and has been abolished altogether in federal civil cases. (See Rule 60(e) of the Federal Rules of Civil Procedure.) One famous instance of its use occurred in 1983, when a U.S. District Court granted the writ to overturn the conviction of Fred Korematsu, a Japanese American who had been convicted of evading internment during World War II. (The conviction had previously been upheld by the U.S. Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944).)

For more on writs of error coram nobis and the history of their use in U.S. courts, see this 2009 article from the BYU Law Review.

Friday, August 15, 2014

Executive Orders and Other Presidential Documents

This week the Law Librarians' Society of Washington, D.C. added a new feature to its Legislative Sourcebook: Executive Orders and Other Presidential Documents, Sources and Explanations.  The Legislative Sourcebook is an excellent research tool for research guides and sources related to federal legislation, the work of Congress, and the Executive Branch. The Executive Orders and Other Presidential Documents portion of the site allows users to quickly see where materials like the Code of Federal Regulations, the Federal Register, Executive Orders, Presidential Directives, Proclamations, and Signing Statements are found online. The guide indicates the years of availability of the information and includes the content holdings of both freely available online sources and subscription services.

One feature especially helpful about this guide is the inclusion of explanatory materials. For example, for Executive Orders, in addition to links to orders from 1789, links are also included to a Congressional Research Service report that explains the historical use and effect of such orders by Presidents. Similar works are available for Presidential signing statements and proclamations.

Check out the site for an easy to understand look at where you can find Presidential Documents, the date range covered, and multiple options for free online sources: http://www.llsdc.org/executive-orders-and-other-presidential-documents.

Tuesday, August 12, 2014

Intellectual Property Materials on WestlawNext

This year more and more materials have migrated from Westlaw Classic to their permanent home in WestlawNext, including  intellectual property materials. According to Product Specialist Ryan Kaatz, by the end of the year, all intellectual property materials, including patents will have fully crossed-over to WestlawNext.

IP Tools are now available in WestlawNext and include the claims history of patents (showing all versions of the patent during the prosecution process) and a references cited section that allows users to quickly view all prior art cited in the patent application. Additionally, Asia Pacific and European patent materials have also migrated to WestlawNext.

One thing users should note is the method of accessing WestlawNext patent materials. On the WestlawNext home screen, the All Content tab separates materials included in general search of content through the search bar, and content that must be searched separately. There is a vertical line separating these materials, and Intellectual Property materials link  is on the right side of the line, and this not included in an “all content” search.



This is the link you should select in order to access patents and applications, assignment, cases, Markman orders and more.




Under the “Practice Areas” tab that links to relevant materials for  the subject matter, there is also an Intellectual Property link.


 This link, however, leads to the Intellectual Property Practitioner’s Insight page, designed to provide current awareness materials to IP practitioners. 



For the other practice area, some link to the most used content (e.g. Insurance Law), while others link to a Practitioner’s Insight page (e.g. Employment). Without clarity as to what content the user may expect, substantial confusion and frustration is likely to occur. So remember, in order to use patent and other IP materials on WestlawNext choose the link on the right-hand side of the “All Content” tab, not under the "Practice Areas" tab.  

Sunday, August 10, 2014

Indigenous Law Portal From the Law Library of Congress



The Law Library of Congress recently unveiled a new search tool to help researchers find indigenous law materials.  The Indigenous Law Portal is still being beta tested, but right now it provides links to American Indian constitutions and legal materials from a number of tribes across the U.S.  The portal has split the U.S. into six sections including the Arctic, New Southwest, North Central, Northeast Atlantic, Pacific Northwest, and South, allowing users to access content by region.  They have also organized the content by state as well as alphabetically by tribe.  

Addition of the U.S. materials should be completed in the next few weeks.  Next, they plan to add information about the aboriginal peoples of Canada.  More information about the new project can be found on the Law Library of Congress’ In Custodia Legis blog. 

Thursday, August 7, 2014

Preserving Access to Online Government Information Through the FDLP Web Archive


These days, much of the information produced by U.S. government agencies is provided on agency websites, and this migration to e-government has dramatically increased access to government materials.  However, one problem with disseminating information in this way that has long been recognized is that fact that when agency websites change, some of the information they once provided can disappear without warning.  To help alleviate this problem, the U.S. Government Printing Office (GPO) is now working on archiving agency websites through the Federal Depository Library Program (FDLP) Web Archive.  The government is using Archive-It to save agency websites at various points in time, so that users can see what the websites looked like, and access the content they provided, on the dates they were archived.    
 
GPO started the project by archiving the websites of certain federal commissions, committees, and independent agencies, but now they are expanding to other U.S. agencies as well.  Currently, they have archived the websites of almost 50 federal agencies such as the Consumer Financial Protection Bureau, Federal Communications Commission, Indian Health Service, and Equal Employment Opportunity Commission.  While they started archiving many of the websites in 2014, some websites are archived back to 2012.  To see the entire list of archived sites, visit the FDLP Web Archive page on the Archive-It website.  If you want to learn more about the archive, see the FDLP’s Web Archiving information page.