"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, November 19, 2014

Under Pressure, NTIS Provides Free Access to Technical Reports


Recently, the National Technical Information Service (NTIS) announced that it will now provide a free online database of federal science and technology reports.  Previously, this agency charged a fee for electronic copies of these reports, a practice that has caused some controversy in recent years given that these are government reports, many of which are available for free through other agency websites. 

In 2012, the Government Accountability Office released a report recommending that Congress “reassess the appropriateness and viability of the fee-based model under which NTIS currently operates.”  And earlier this year, the “Let Me Google That For You” bill was introduced to abolish the NTIS.  However, NTIS supporters point out that this agency still provides a valuable service.  For instance, some reports are available via Google precisely because NTIS collects and distributes them; the NTIS provides permanent access to reports, which is not guaranteed on other, ever-changing government websites; and some reports held by NTIS are from agencies that no longer exist.  

Now, NTIS has announced that they will provide access to a free searchable database of over 3 million reports through the Public Access National Technical Reports Library.  Currently, the library contains over 800,000 full-text reports that can be downloaded in PDF format.  Reports not available for download (usually published before 1995) can be requested for a fee.  If a report is requested and digitized for one user, the report will be added to the free database.  

To access reports, users must create a free account, which will allow for basic searching and 10 downloads per session.  There is also a subscription version with advanced features.  For more information, visit the National Technical Reports Library website.

Friday, November 14, 2014

Regulations Governing Practice Before the I.R.S.

In addition to being admitted to a state bar, attorneys must be approved to represent clients before the I.R.S. (See Publication 947 for more information). Circular 230, Regulations Governing Practice Before the I.R.S. (which is codified in Title 31 of the Code of Federal Regulations, Subtitle A, Part 10) consists of rules regulating the practice of attorneys, C.P.A.'s, enrolled agents, enrolled retirement agents, and registered tax preparers. Circular 230 consists of five "subparts:" including
  • Subpart A- Authority to Practice before the I.R.S.
  • Subpart B- Duties and Restrictions Related to Practice
  • Subpart C-Sanctions for Violating Regulations
  • Subpart D-Disciplinary Proceedings
  • Subpart E-Official Records
 For more information regarding Circular 230, see the following materials:

Thursday, November 13, 2014

U.S. Court of Appeals for the Ninth Circuit Discharges Tax Debts Despite "Lavish" Spending

Forbes is reporting that the U.S. Court of Appeals for the Ninth Circuit has ruled in favor of a taxpayer seeking to discharge his tax liability through the bankruptcy process. In this case, Hawkins v. Franchise Tax Board, the court reversed the district court's decision that a "chapter 11 debtor's tax debts were excepted from discharge on the basis of his willful attempt to evade or defeat taxes under 11 U.S.C. Section 523 (a)(1)(C)." The debts included $19 million owed to the I.R.S. and $10.4 million to the California Franchise Tax Board based on proof of claims filed with the U.S. Bankruptcy Court. The article by Forbes discusses the potentially broad impact of this decision, which focuses on whether lavish spending itself constitutes "willful" under I.R.C. Section 523(a)(1)(C).

More information can be found regarding the discharge of tax debts through bankruptcy in Bloomberg BNA's Tax Management Portfolio Part VII (Portfolio No. 638-4th) (KF6289.A.1T35 no. 683-4th) by Steven R. Mather and Paul H. Weisman. This is also available using the library's subscription to Bloomberg BNA Tax and Accounting Center (available from the law library's website using the drop-down menu under "Legal Databases") and BloombergLaw.com.

Friday, November 7, 2014

Texas Bar Exam Results Are In


The Texas Board of Law Examiners has released the names of the examinees who passed the July 2014 Texas Bar Examination.  University of Houston Law Center alumni did very well this year, with 86.29% of first-time UHLC exam takers passing while the overall average for all first-time takers was 77.12%.  Additional statistics regarding the results of the most recent Examination may be found here.
Congratulations to all of the new attorneys who are or will soon be admitted to the Texas Bar, and best wishes to everyone planning to take the next examination in February.

Tuesday, November 4, 2014

Election Law Resources


Today is Election Day.  Texas elections have been the focus of national attention following the Supreme Court’s recent decision not to enjoin Texas’ voter identification law while it waits to hear the case on its merits.  Here are some resources that may be of interest to anyone interested in the legal history behind this case, or interested in election law generally as it will affect Houston today:
The law in question, Tex. S.B. 14, 82nd Leg., R.S. (2011), which amends the Texas Election Code to establish voter identification requirements, was challenged by the Department of Justice in Texas v. Holder.  The Supreme Court declined to block the new law before hearing the case, leaving the new identification requirement in effect for today’s voting.  This case follows last year’s Supreme Court decision in Shelby County v. Holder, where the Court held Section 4 of the Voting Rights Act unconstitutional, and is only the latest development in the nearly 50-year history of the Voting Rights Act.
Following these developments, the Department of Justice has announced that it will be monitoring polling places around the country today; Harris County, Texas is one of the locations that will be monitored.  Information about federal observers and election monitoring is available here.
Harris County residents wishing to exercise their right to vote today may find information on ballots, polling places and additional voting resources on an informational website provided by the Harris County Clerk.

Thursday, October 30, 2014

Halloween and the Establishment Clause


What comes to mind when you think of Halloween? Ghosts? Goblins? First Amendment jurisprudence?

If that last one sounds like a non sequitur, then you’ve probably never heard of Guyer v. School Board of Alachua County.* The case originated in Alachua County, Florida, where public elementary schools had put up decorations depicting witches, cauldrons, and brooms, and teachers had dressed up in costumes—some of them as witches in black dresses and pointy hats—in celebration of Halloween. A parent named Robert Guyer sued to enjoin the schools from using these decorations and costumes in future celebrations. In his supporting affidavit, Guyer argued that witches, cauldrons, and brooms were significant to followers of the Wiccan religion, and that the schools’ use of these symbols therefore violated the establishment clauses of the Florida and U.S. constitutions.† The Circuit Court granted summary judgment in favor of the school board, and Guyer appealed to the First District Court of Appeal of Florida.

In its written opinion, the Court of Appeal relied on the three-part test established by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). According to this test, in deciding whether the government has violated the establishment clause, the court must determine “whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion.” The court found that there was no excessive entanglement, and that the celebrations had a clear secular purpose: they were fun for the students and fostered a sense of community. Thus the case boiled down to whether the celebration’s principle or primary effect was to advance religion. The court found that although the witches, cauldrons, and brooms may have had religious significance to some people, this was clearly not their primary significance in the context of a secular Halloween celebration. The decision of the lower court was affirmed.   

* Guyer v. Sch. Bd. of Alachua County, 634 So.2d 806 (Dist. Ct. of App. Fla., 1994).
† The First Amendment of the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion.” The Florida Constitution contains nearly identical language. 

Wednesday, October 29, 2014

FTC Sues AT&T Over Data Plans


The Federal Trade Commission (FTC) announced yesterday that it has filed a federal court complaint against AT&T Mobility, LLC, for what it alleges are deceptive practices related to the company’s unlimited data plan for smartphones. At issue is AT&T’s practice of “throttling,” or reducing data speeds after customers reach a monthly data limit. In many cases, speeds were reduced by 80 to 90 percent, making functions like audio and video streaming virtually impossible. The complaint charges that AT&T failed to adequately disclose this practice, which effectively imposes a limitation on the company’s “unlimited” data plan. The FTC is seeking “permanent injunctive relief, rescission or reformation of contracts, restitution, the refund of monies paid, disgorgement of ill-gotten monies, and other equitable relief” for practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a).

Although the FTC was created in 1914 to address widespread concerns about trusts and anticompetitive business practices, it also serves as a consumer protection agency, frequently targeting deceptive practices in advertising. Section 5(a) of the FTC Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” One famous instance of its use was in a 2004 case involving advertisements for KFC that touted the putative health benefits of the company’s chicken. That case ended in a consent order prohibiting KFC from making any representation that eating its fried chicken “is better for a consumer’s health than eating a Burger King Whopper,” or that it is “compatible with ‘low carbohydrate’ weight loss programs.” Another famous case involved the Airborne Health company, which sold an effervescent tablet that it claimed would reduce the risk of colds and other illnesses. The result was a settlement for $30 million to provide refunds to Airborne’s customers.

To learn more about the FTC, see this brief history, or visit the agency’s website at http://www.ftc.gov.