"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, 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.

Thursday, October 23, 2014

Texas Subsequent History Table Ceases Publication

This week, Thomson Reuters notified subscribers that publication of the Texas Subsequent History Table will be discontinued and no further updates will be produced, due to “insufficient market interest.” Practitioners have been extracting writ (and since 1997, petition) history from the tables since their initial publication in 1917 as The Complete Texas Writs of Error Table. The tables, later published by West, have been used for nearly a century to determine how the Texas Supreme Court or Court of Criminal Appeals disposed of an appeal from an intermediate appellate court. The purpose of adding this notation to citations is to indicate the effect of the Texas Supreme Court’s action on the weight of authority of the Court of Appeals’ opinion.  For example, practitioners may prefer to use as authority a case that the Texas Supreme Court has determined is correct both in result and legal principles applied (petition refused), rather than one that simply presents no error that requires reversal (petition denied).

Though the publication of the Texas Subsequent History Table is ending, petition history is still accessible in some print sources. The Table is supplemented weekly by West’s Texas Cases Advance Sheets, and in the Texas Supreme Court Journal, though neither source provides the user a cumulative table of all Texas actions with a subsequent appellate history.

Subsequent history can also be located online using Westlaw and LexisNexis’ citators. In WestlawNext, petition history may be viewed by clicking on the case’s “History” tab near the top of the page. The direct history will show the petition’s disposition along with the date. In Lexis Advance and Lexis.com, subsequent appellate history may be found by viewing the case’s Shepard’s report. Currently, Bloomberg Law does not provide this information. In addition, the weekly orders from the Texas Supreme Court (1997-present) may be located on the Texas Judicial Branch's newly updated website, www.txcourts.gov. 

For more information about the history of petition and writ review in Texas, see James Hambleton’s Notations for Subsequent Histories in Civil Cases, 65 Tex. B.J. 694 (2002). 

Tuesday, October 21, 2014

Today in Legal History: October 21, 1876

One hundred and thirty-eight years ago today legal research and the way we understand law changed forever. On October 21, 1876 John B. West, founder of West Publishing Company, published his first law reporter, The Syllabi. The eight-page pamphlet was published weekly, delivering to its readers the decisions of the Minnesota Supreme Court. Within a year, the publication enlarged to include the decisions of Minnesota’s federal courts, and notes from Wisconsin cases and other nearby jurisdictions. 

Though other case reports had existed in some states, The Syllabi was the first serial publication issued on a regular basis exclusively devoted to the publication of court decisions. West focused on publishing all of the court’s decisions, unlike American Reports, a popular publication featuring only outstanding decisions. This made his product attractive to practitioners, who were able to buy his reports more quickly and cheaply than certified copies from the court. West made his mission clear in The Syllabi’s first issue:

"The syllabi of the decisions of the Supreme Court of Minnesota have heretofore appeared in the daily papers only as it happened to suit the convenience of a reporter, or when a scarcity of news made them useful in filling up space, sometimes being in one paper, and sometimes in another.

"It has been a matter of much annoyance to the attorneys of our State that these decisions have not been published regularly in some one paper ,immediately after being filed, and well knowing the importance of such a publication to the profession, we purpose issuing the "Syllabi." . . .

"We shall endeavor to make the Syllabi indispensible to Minnesota Attorneys, by making it prompt, interesting, full, and at all times thoroughly reliable, and the better to enable us to do so we respectfully request the cordial support of the members of the Bar."

By 1879, the publication had grown to include the decisions of the supreme courts of states surrounding Minnesota, the Northwestern Reporter. From there, West continued to expand, publishing reports across the nation. This was the beginnings of the National Reporter System, the primary publication route for opinions from the federal courts of appeals, the federal district courts, and state appellate courts. Now that opinions were available in such great number, they needed some system of organization. West created the American Digest System in response, which allowed for cases to be classified by topic and key number. Though most today do not know there was an actual “West” behind Westlaw, what John B. West began 138 years ago today still informs American legal research and has shaped the modern practice of law. 

Friday, October 17, 2014

Resources on the Ebola Outbreak


If you are looking for information about the Ebola outbreak, the Congressional Research Service has released a few helpful publications related to the topic, some of which highlight the legal issues involved.
Other information about the outbreak can be found on the National Library of Medicine website, the World Health Organization website, and the Centers for Disease Control website 

Wednesday, October 15, 2014

Law Library of Congress Offers Free Access to Historical U.S. Legal Materials from HeinOnline

The Law Library of Congress just announced that they will now provide free access to some historical U.S. legal materials through an agreement with William S. Hein & Co.  These materials can be accessed through their Guide to Law Online: U.S. Federal and are pulled directly from the HeinOnline database.  Users can download files up to 20 pages per download. 

The new collection includes four titles:
  • United States Code (1925-1993)
  • United States Reports (1754-2004)
  • Code of Federal Regulations (1938-1995) 
  • Federal Register (1936-1993) 
As a reminder, more recent federal legal materials can be accessed through the Government Printing Office’s FDsys website.  This website has the recent years of the United States Code (1994- ), Code of Federal Regulations (1996- ), and Federal Register (1994- ).  Recent volumes of the United States Reports are posted on the Supreme Court website.  

To access these historical materials, visit the Guide to Law Online: U.S. Federal.  For more information about this collection, see the Law Library of Congress' In Custodia Legis blog.