"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


Wednesday, July 30, 2014

Nationwide Tech Disaster Hits Bar Exams

A technology disaster struck multiple states yesterday as bar examinees found themselves unable to upload their completed examinations by the deadline.  The unhappy affected examinees were forced to try resubmitting their exams repeatedly over the course of the evening, upsetting many plans to rest and prepare for the second day of the test.

ExamSoft, the company that provided the software involved in this incident, has compiled a list of states that have moved back their submission deadlines in response to their examinees' difficulties.

Local examinees taking the Texas Bar Examination were not affected yesterday; the first day of the Texas exam was scheduled to end around lunchtime, and the examinees that experienced problems were testing in states where Tuesday’s exam was supposed to be submitted in the evening.

Monday, July 21, 2014

New Platform for Data on Internet Activity and Content Controls


The Internet Monitor, a project of Harvard University’s Berkman Center for Internet & Society, recently launched its pilot platform at thenetmonitor.org. The platform compiles and presents quantitative data on internet activity and content controls around the world. This should be of interest to anyone following current stories about internet filtering in China, Iran, the United Kingdom, and other countries. The site’s content control data is organized by country, and divided into separate categories such as political filtering, social filtering, and conflict/security filtering.    

Another interesting feature of the platform is its access index, which compiles internet access data by country. The categories of access data are grouped under four main headings: (1) adoption, (2) speed and quality, (3) price, and (4) literacy and gender equality. The adoption data includes the percentage of individuals using the internet and the percentage of households with internet service. Some of the data can be surprising. While it may seem that everyone is online nowadays, only 81 percent of Americans use the internet. Norway rates much higher, with 95 percent of the population online, while in Somalia the number is 1.5 percent.

The Berkman Center for Internet & Society was founded in 1998 as a research center for the study of cyberspace. For more information, click here

Friday, July 18, 2014

Celebrate Mandela Day


Today is Mandela Day (officially Nelson Mandela International Day), an observance designated by the United Nations to honor the legacy of the South African anti-apartheid leader. Since 2010, Mandela Day has been observed every year on July 18, Mandela’s birthday, and this is the first Mandela Day since his death in December of last year. Each year, the South African government calls on its citizens to celebrate Mandela Day by performing 67 minutes of community service, the number having been chosen in recognition of Mandela’s 67 years of social activism. This year’s service campaign is called “Operation Clean-Up for Madiba,” and is focused on picking up litter and cleaning schools and other public places. (Mandela is often affectionately referred to as Madiba, which is his Xhosa clan name.)

In addition to being a crusader for racial justice and his country’s first black president, Mandela was also a lawyer. Along with his partner, Oliver Tambo, Mandela established South Africa’s first black law firm in 1952. Ten years later, when the government charged him with inciting workers to strike and leaving the country without valid documentation, Mandela represented himself in court. In this and other trials, he used his speeches to the court to highlight the plight of black South Africans under apartheid and to promote the cause of the African National Congress.

Anyone interested in learning more about Nelson Mandela should visit the Nelson Mandela Foundation’s website at nelsonmandela.org. The Foundation’s databases and archives contain a wealth of materials related to the anti-apartheid movement and to Mandela specifically. The Mandela trial papers, hosted by the University of the Witwatersrand, will be of particular interest to lawyers and law students. 

Friday, July 11, 2014

Westlaw, LexisNexis, Briefs, and Fair Use

In February of 2013, Judge Jed Rackoff of New York's Southern District dismissed an attorney's copyright infringement case against Westlaw and LexisNexis. The plaintiff alleged that the online research services improperly made use of his copyrighted briefs by uploading the briefs to their systems for use by other subscribers. Judge Rackoff granted the defendants' motion for summary judgement, ending the case, but only this week was the Memorandum & Order explaining the ruling released. You can read the opinion in its entirety here, the case is White v. West Publishing, No. 02-1340 (S.D.N.Y. July 3, 2014).

The opinion finds that the defendants' use of the briefs was permissible fair use under section 107 of the Copyright Act (17 U.S.C. 107), based on the four factors outlined in the statute section. The court found that three of the four factors weighed in favor of fair use, and the remaining factor was neutral. Here's an overview of the court's findings:


  1. In determining whether or not the use by the research systems was "transformative," the court found that both the purpose (creating an online research tool vs. providing legal services) and the addition of coding, links, and unique indentifiers changed the character of the original document. This court determined this factor weighs in favor of a finding of fair use.
  2. Next, the nature of the work was also found to weigh in favor of fair use. First, the briefs are a combination of law and facts, not fiction. Additionally, the work had been, in a sense, previously published by filing the brief with the court.
  3. The third factor, relating to the quantity of the work used, was weighed as neutral. Though Westlaw and LexisNexis used the entirety of the briefs in creating their transformative works, the court noted that this was necessary to create a searchable text document, and thus no more was used than needed. 
  4. The fourth factor considers whether the new work may impair the market by being used as a substitute for the original. The court reasoned here that the original brief provided legal services for the attorney's client, and that the plaintiff was not impaired from licensing his briefs for sale as "no potential market exists because the transactions costs in licensing attorney works would be prohibitively high."

It is unknown whether this case will be appealed, and while the district court's opinion is not binding on other jurisdictions, it is an interesting analysis of how online legal research service providers "transform" the works of others into their own. 

Wednesday, July 9, 2014

Finding Revisions to Supreme Court Opinions

Earlier this year, many were surprised to learn that Supreme Court opinions can be, and often are revised after the opinion’s initial release. The news articles regarding the practice were inspired by a  forthcoming article in the Harvard Law Review by Professor Richard J. Lazarus where the phenomenon, and its prevalence are examined.

The Supreme Court has noted that its opinions are not final until they are published in the official United States Reports (Morgan Stanley Capital Grp. v. Pub. Util. Dist. No. 1, 554 U.S. 527
(2008)). The time from when the bench opinion is issued to the actual publication of the print United States Reports volumes can extend over five years. After the bench opinion is released at the court upon announcement, a slip opinion is made available soon after. A couple of years later, the softcover preliminary prints of the United States Reports are published, with the notation that the opinions are still subject to revision.

According to Professor Lazarus, legal publishers like West and LexisNexis are given access to the changes to keep databases current, but it is difficult for the researcher to determine when any edits or changes were made. However, HeinOnline's Supreme Court Library maintains copies of not only the United States Reports, but also slip opinions and preliminary prints. To access the different versions of the same opinion, go to HeinOnline and select the Supreme Court Library. Next, click on the search tab and select “advanced search.” Then, enter the case name in the “case title” field (ex. Lawrence v. Texas) and search. The results will pull the three versions of the opinion so they may be compared side-by-side.

For a more passive approach, learn about changes to newer opinions by following @SCOTUS_servo, a Twitter account that alerts followers when the Court edits its decisions. The Twitter account crawls through electronic copies of decisions posted in the Supreme Court’s website. Whenever the program detects a change in a decision’s text, it alerts @SCOTUS_servo followers.

Sunday, July 6, 2014

New Juvenile Justice Reform Tracking Tool


The National Center for Juvenile Justice recently launched a new juvenile justice reform tracking tool.  The Juvenile Justice GPS website provides information about state laws and practices regarding juvenile justice issues as well as state and national statistics on this topic. 

The resource will be rolled out in six sections.  Currently, they have launched their section on jurisdictional boundaries, which provides information about laws regarding the transfer of juveniles to adult criminal court.  Two other sections will launched this summer covering juvenile defense issues as well as the integration of juvenile justice and child protection systems.  Eventually, the resource will also include information regarding racial/ethnic fairness and status offense issues. 

To get more information about this new tool, visit the Juvenile Justice GPS website.

Wednesday, July 2, 2014

Free Fastcase for Texas Bar Members


Last week, the State Bar of Texas announced that it will be providing its members with free access to Fastcase.  This access is being provided in addition to the Casemaker legal research service that the Texas Bar already provides for members.  
  
According to the press release, solo and small firm (less than 11 attorneys) practitioners will have access to Fastcase’s Premium Plan, which includes federal and state cases, statutes, regulations, court rules, and more.  Attorneys from firms of 11 or more will have access to Fastcase’s Texas Plan, which includes Texas cases, U.S. Supreme Court cases, and Fifth Circuit cases as well as the Texas statutes, the U.S. code, and more.  

To access Fastcase, visit the Texas Bar website, click the Fastcase icon in the middle of the page, and then login with your bar number and password.  You can also access Fastcase from the TexasBarCLE website.  If you aren’t a member of the Texas Bar, don’t forget you can still access Fastcase for free on your mobile device with its free app!  The app is available for iOS and Android devices.