"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, former Director, O'Quinn Law Library and Associate Professor of Law

Saturday, December 31, 2011

Nota Bene numbers for 2011

Blogging can be a lonely business, especially when the audience is unknown or undetermined. A blogger tries her or his best to write something meaningful (at least to a certain group of people), yet one may never know how the audience reacts. The bloggers at Nota Bene surely have our moments of uncertainty. But judging from the numbers, 2011 has been a very encouraging year. Below are some figures from Blogger’s statistics:

Total pageviews since the beginning, as of 7 p.m., 12/31/2011: 22,099

Total pageviews of 2011, as of 7 p.m., 12/31/2011: 17,633

Total posts in 2011: 103

Total bloggers in 2011: 8

Top ten viewing countries: U.S., Russia, Germany, France, Ukraine, United Kingdom, Canada, Latvia, Netherlands, and Australia.

As the person starting this blog, I first want to thank my fellow bloggers—reference and research librarians in the University of Houston O’Quinn Law Library. They are great colleagues in many ways. The second entity I should give thanks is Blogger.com, which hosts Nota Bene. But the biggest THANK YOU goes to our viewers (many of them our students). Thank you for viewing our blog. We will do our best to bring you useful information in 2012.

Friday, December 16, 2011

This Day in Legal History -- John Selden

On this day in 1584 noted English jurist and intellectual John Selden was born. In his day-- and for a long time afterward-- Selden was considered by none other than John Milton as “the chief of learned men reputed in this land.” What did John Selden do and why does his name sound vaguely familiar?

Selden, after much education, was called to the bar in 1612. “At bar he enjoyed a high reputation as a giver of opinions, and was called in in cases requiring special learning. But a large legal practice was not the sum of his ambition, nor was contented to be a mere lawyer.” In fact Selden pursued other careers; that of intellectual and as a Member of Parliament. In 1614 he wrote the book Titles of Honor which concerned itself with the history of titles, “. . .the rotes and insignia of appropriate to each, of the ceremonies of investiture, and so on.” He was first elected to the House of Commons in 1621 and served off and on for many years. These were turbulent times; Selden served during the time of the English Civil War and got himself in trouble with the king’s party several times, including his assisting in the drafting of the Petition of Right (which landed him in the Tower) and for writing the book History of Tithes which landed him in trouble with the clergy and for which he was required to recant.

Selden, however, believed most in fairness, and wrote a famous piece that was dedicated to his king. In his Mare Clausum he argued against Grotius famous treatise Mare Liberum. Where Grotius argued for freedom of the seas, Selden argued against it. While Selden is also famous for doing research on Jewish law and custom, he is perhaps best known for his book titled Table Talk. This is an interesting book covering many topics, some in great detail, others in a few sentences.

Now, you may ask, why does the name of this now obscure 17th Century intellectual sound familiar? Selden's name sounds familiar because the Selden Society is named after him. The Selden Society is a “learned society” devoted to “researching the history of everything which is characteristic of our unique English common law and legal system.” The Selden Society was founded in 1887 by Frederic William Maitland a famous English legal historian. The Selden Society publishes original materials that have often never before been printed. They bring together law reports, judges’ records, legal treatises, and compilations of documents never before brought together. Many major libraries are members, but the bulk of the membership consists of individual lawyers and historians who are interested in English legal history. John Selden may be dead, but his name lives on.

Thursday, December 15, 2011

This Day in Legal History -- The Bill of Rights

On this day in legal history the first ten amendments to the United States Constitution, the Bill of Rights, were ratified and made the law of the land. We should consider ourselves lucky that we have a Bill of Rights because the path which these amendments strode was a rocky one.

While the Constitution originally came with limitations on the new federal government, there were framers who felt the document did not go far enough to protect individuals. Delegate George Mason, who had drafted Virginia’s Declaration of Rights desired that “the plan had been prefaced with a bill of rights. . .[It] would give great quiet to the people.” Those who supported ratification of the new constitution downplayed the need for it as Alexander Hamilton did in the Federalist Papers. They felt that since Congress could only exert enumerated powers there was no need for a bill of rights; a bill of rights would only constrain national powers. A majority of states had their own bills of rights and the feeling was that these would protect individuals. While that was true, the States only protected some rights and not others. For instance Virginia did not protect freedom of speech, assembly, petition or habeas corpus. While all states protected religious liberty, some permitted or provided for establishment of religion. Their coverage was spotty at best.

Those opposed to ratification of the Constitution (the Anti-Federalists) argued that the absence of a bill of rights showed that rights were insecure under the proposed Constitution. Some have commented that the proposal for a bill of rights was merely a smokescreen and that the Anti-Federalists opposed ratification and were seeking amendments to the Constitution on the issues of direct taxes, judicial power, and the commerce power (how little things have changed in over 200 years). A compromise was reached where the Constitution would be ratified and then amended later.

Once the first Congress convened Madison began the task a creating a bill of rights. On September 25, 1789 twelve proposed amendments were submitted to Congress by the States. The Anti-Federalists tried to stop Madison by stalling, adding additional amendments, and “depreciated the importance of the very protections of individual liberty that they had formerly demanded.” Two of the original twelve were voted down and the final ten were ratified on December 16, 1791. Connecticut and Georgia later ratified the Bill of Rights-- in 1939 on the sesquicentennial anniversary of the ratification of the Constitution.

How the Bill of Rights came to be is a fascinating story. As one commentator characterized it, “The party that had first opposed a Bill of Rights inadvertently wound up with the responsibility for its framing and ratification, while the party that had first professed to want it discovered too late that it was not only embarrassing but politically disastrous for ulterior party purposes.” This sounds like a description of the individual mandate portion of the health care reform law. The moral of the story is the more things change the more they stay the same.

Friday, December 9, 2011

Google Scholar Citations

A recent announcement on the Google Scholar Blog indicates that the company has now made Google Scholar Citations available for all. Google Scholar Citations is a free tool that allows authors to track citations to their articles and compute citation metrics. It provides overall citation information as well as information about citations in the last five years.

Once you provide your name and affiliation, Google Scholar will search for possible articles authored by you. False hits can be deleted easily from the list, while omitted articles can be added as well. In addition, multiple versions of the same article can be merged into one listing. You can also set up an alert to receive an email when a newly published article cites one of your articles. Initially profiles are private, but you can choose to make your information available to the public. Public profiles can be searched, allowing you to locate information about co-authors and other scholars in your area of expertise. To learn more, visit the Google Scholar Citation information page.

Wednesday, December 7, 2011

Voter ID Laws

As focus on the 2012 election gains momentum, there is also growing attention on the issue of voter identification laws. These laws require people to show ID, or sometimes photo ID, before they are allowed to vote at the polls. There is a great deal of debate about this issue as some argue that these measures are meant to limit the right to vote for particular groups, while others maintain that these laws are necessary to curb voter fraud. In the last few years, voter ID laws have been enacted or introduced in a growing number of states, including Texas. According to the National Conference of State Legislatures website, in 2011 only three states (Oregon, Vermont, and Wyoming) did not have voter ID laws or consider voter ID legislation.

For information about specific requirements in each state, see the map and chart provided by the National Conference of State Legislatures website. The Brennan Center for Justice has also put together a report detailing the large number of voting law changes in 2011. If you are interested in learning more about voting in Texas, visit the VOTEXAS.org website.

Tuesday, November 29, 2011

Texas Bar Legal App

The Texas Bar Journal is reporting that the Texas State Bar now has its own app for attorneys available for both Android and Apple devices including phones and tablets as well as a web app for those using other devices. The App, created by the Computer & Technology section of the Texas State Bar, provides access to dozens of Texas and Federal statutes, codes, and rules as well as free case law from Google Scholar. There are search and e-mail options available to users who can also access materials without an internet connection, unless using the web app. The app is free for members of the Computer & Technology section and currently requires a section username (bar number) and password for access. The app can be downloaded from the Android market and Itunes, and those using the web app only need to login directly from their mobile devices.

Saturday, November 19, 2011

Oh, How I Love Irony: Citing to Wikipedia

On the Supreme Court of Texas Blog, Don Cruse, inspired by a presentation by Robert Dubose given at the Austin Bar Civil Appellate Lunch on the topic "Can I Cite Wikipedia? The Ethics of Citing Online Information on Appeal", recently wrote a posting entitled "How to Cite to Wikipedia in Appellate Briefs".

One thing I especially liked about this posting was that Mr. Cruse correctly encourages his readers to use the Permalink that Wikipedia provides for each version of an article so the reader can link directly to the exact version of the article the author relied upon rather than the most current version one receives when using the generic article URL, if they're going to cite to Wikipedia. Unfortunately, he doesn't discourage his readers from actually citing to Wikipedia in briefs or discuss when citing to Wikipedia in briefs might be appropriate, nor does he actually explain where Mr. Dubose stands on this issue. But that's not exactly why I'm writing about his post today.

In his posting, Mr. Cruse briefly acknowledges that there is a difference, especially in legal writing, between accuracy and authority, and he comes to the conclusion that "a crowdsourced reference [such as Wikipedia] can be extremely valuable as a place to start deeper research or for information more generally known" (emphasis added). Later, in support of his argument for using the Permalink to a specific version of an article, he takes the Beaumont Court of Appeals to task for using the generic article URL for a Wikipedia article because the court quoted from the article but the pertinent language has since changed.

I would argue that the court should not have cited to Wikipedia at all for a couple of reasons. First, the court was citing to Wikipedia for a description of what MySpace is instead of citing to MySpace itself (the decision was handed down in 2009, a time when MySpace was still a very popular website) or to a more authoritative (or at least stable) print resource (by 2009, I know that MySpace had been written about, and presumably described, in various books and articles). Second, what MySpace is/was is completely irrelevant for the purposes of the decision. Not only does it's description have no impact on the holding, but it has no real relevancy to the factual background as well; the court could have simply described it as a personal website.

[As an aside, one could argue that the court was trying to be as clear as possible for future readers. But this particular opinion is an unpublished opinion, and the court's concern for clarity evidently doesn't extend to all the facts; in an act of self-censorship, the court stated that one of the parties "had a message on his answering machine that stated '[i]f you don't want to leave a message, stick it up your b***.'" (despite the fact that the censored word is a common word that only the most Victorian would deem worthy of censorship, and despite the fact that published court opinions routinely contain expletives of the most not-for-TV variety). In re K.E.L., No. 09-08-00014-CV, slip op. at 6, 2009 Tex. App. LEXIS 1382, at *7, 2008 WL 5671873, at *3 (Tex. App. — Beaumont Feb. 26, 2009), available at http://www.9thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=9877.]

However, Mr. Cruse goes further and attacks the Bluebook because "The emphasis seems to be on what the researcher did (i.e., 'last visited' or 'downloaded from') rather than how the next researcher can quickly get to the right resource." He proudly cites and quotes from his critique of the new edition of the Bluebook because of "how it treats URLs as if they were the names of volumes of books rather than pinpoints to specific pages."

Although I believe there are many reasons why one should not cite to Wikipedia, the lack of quality control, even of a "crowdsourced reference", ranks pretty high for me. I believe that all authors, whether of scholarly works, of appellate briefs, or even of blogs, owe their audiences a duty to make sure, to the best of their abilities, that the information they are disseminating is accurate. If the facts they pass on are accurate, then, ultimately, I really don't care where the authors got their information (although knowing the source can either alleviate or elevate my anxiety about relying on an author's assertion). It should be obvious that going to the original source for verification (or as close to the original source as one can get) should be the best practice.

Which brings us back to Mr. Cruse and his two blog postings. His most recent post on citing to Wikipedia, an inherently unreliable resource, cites with approval his earlier post critical of the new Bluebook. However, when one reads that earlier post, one discovers that his criticism of the Bluebook's "awful" and "baffl[ing]" lack of respect for URLs stems from his reading of someone else's blog post about the new Bluebook. Based on one example of how to cite to podcasts provided by this other post, Mr. Cruse excoriates the new Bluebook for not requiring a specific URL to help the reader find the exact podcast relied on by the hypothetical author. He even laments that he "will open to the internet-related section of the new Bluebook with some apprehension, when it arrives."

Unfortunately, it appears he never did (or, perhaps, he's still waiting for his new Bluebook to arrive). Because if he had, he wouldn't have glowingly cited his Bluebook-bashing post, or, at the least, he would have added a correction to it. The rule that drew his ire, R. 18.7.3, clearly states:

"If the audio recording was accessed online, a parallel citation to its location [i.e., a specific URL] is suggested per rule 18.2.3. If the recording is only available online, it should be cited using the principles of rule 18.2.2 [which generally require a specific URL]. If there is no stable URL available to facilitate access to the source, an explanatory parenthetical should be added explaining how the source should be accessed."

The rule then provides two examples. The second example was the one reprinted in the blog posting that set Mr. Cruse off. The first example, however, clearly demonstrates that a specific URL should be included. If Mr. Cruse had gone to the original source instead of relying on someone else's summary, he would have discovered that his objections were unfounded.

Personally, I find all of this ironic. [My apologies to Mr. Cruse for using him as an example, but I do not mean to disparage him. I am merely trying to draw attention to an all-too-common mistake, one that anyone who cites to Wikipedia is potentially heading toward.]

Thursday, November 17, 2011

This Week in Legal History -- Justinian the Great

This week in legal history was a big one for the Byzantine Emperor Justinian I, aka Justinian the Great. On November 16,534 he published his Codex Justinianus, a landmark legal codification and on November 14, 565 he died after a reign of 38 years.

Justinian I was the emperor of the Byzantine Empire from 527 to 565. While we think of it as the Byzantine Empire, Justinian thought of it as the Roman Empire since Constantinople had been the capital of the Eastern Roman Empire at the time that the Western Roman Empire was over-thrown by the Visigoths in 410. In fact, Justinian was the last emperor who spoke Latin. After Justinian, the empire spoke Greek. Justinian is rightly known as Justinian the Great. He was the emperor who re-conquered the lost provinces in the West-- regaining North Africa and Italy-- that had fallen under the control of Visigoths and Ostrogoths. After rioting destroyed the Hagia Sophia, Justinian rebuilt it bigger than it had been before and making it the center of Orthodox Christianity until the city fell to the Ottoman Turks in 1543. But Justinian is probably most famous as a lawgiver, or rather, a law reviser.

In an effort to bring order to the laws that governed so large an empire, Justinian appointed Tribonian to revise and organize all of Rome’s laws. The result of this effort came to be known as the Corpus Juris Civilis, The Body of Civil Law or the Code of Justinian. The code was composed of three parts; The Codex, The Digest, and the Institutes. The Codex is a compilation of imperial enactments dating back to the time of the emperor Hadrian. The Digest is a compilation of the pronouncements of Roman jurists. Finally, the Institutes is a textbook for law students and is, in essence a hornbook of Roman law. On the first page the Institutes indicates that it is intended for, “the youth desirous of studying the law.” The influence of this work cannot be underestimated. It is the basis of the law in all civil jurisdictions. Justinian’s Code is also the basis of the Roman Catholic Church’s Canon law. The Codex has also influenced many public international law concepts. The Institutes “has always been the best and clearest introduction to Roman law, and time and again it gives relief from the more difficult books that try to explain it.” This week let us celebrate Justinian the Great and his accomplishments in the field of law.

If you are interested in these materials, they can be found translated into English in the O'Quinn Law Library stacks.

The Civil Law, translated by S.P. Scott, KJA195 .C5813 1932

The Digest of Justinian, ed. by Alan Watson (2 volumes) KJA1112.2 1998

The Institutes of Justinian, translated by J.B. Moyle, KJA1088 .E5 2002

A Companion to Justinian’s Institutes, ed. by Ernest Metzger, KJA1089 .C66 1998