"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

Friday, July 29, 2011

Anatomy of a Trial: A Handbook for Young Lawyers

The ABA has recently published Anatomy of a Trial: A Handbook for Young Lawyers (KF8915.S24) by Paul Mark Sandler. It examines the major stages of both civil and criminal trials, including the voire dire process, opening statements, witnesses, direct and cross examination, closing statements, and appeals. The author draws on his own experience in analyzing the process and uses excerpts from two of his cases-United States v. Rosen and Mary Jeanne Maffei v. Angela Smedley, M.D. et al, along with hypotheticals and commentary from trial judges. This book is more practice oriented than research-oriented but is very beneficial for those looking for an overview of the trial process. This book is now in the law library's new titles shelf.

Wednesday, July 27, 2011

The Legal Rights of the Convicted, by Barbara Belbot and Craig Hemmens. El Paso: LFB Scholarly Publishing, LLC, 2010.

The Legal Rights of the Convicted thoroughly covers the process and major issues pertaining to corrections law. The authors begin with an introduction discussing the prisoners' civil rights movement in the early part of the twentieth century, as well as expanding on the major sources of U.S. primary law and the concepts of due process relevant to those convicted. There is a chapter dedicated to sentencing issues such as the history and impact of sentencing reform as well as the consequences of a conviction or guilty plea. Other topics include probation, parole, use of force, and the applicability of first amendment protections, fourth amendment prohibition of unreasonable searches and seizures, and eighth amendment cruel and unusual punishment to those convicted, particularly those incarcerated. This title is currently in the library's new titles shelf (KF9731.B45 2010).

Tuesday, July 26, 2011

Parlez-vous Law?

When you get to law school everything is different; even the pads of paper are different. As Professor Kingsfield famously said in The Paper Chase, “You come in here with a skull full of mush and you leave thinking like a lawyer.” No one ever tells you that you are also going to “speak like a lawyer,” which you will. To many non-lawyers, the law is written and spoken in a different language, archaic and impenetrable, a jargon designed to keep the layman confused and off balance, maybe even susceptible to being swindled. In some respects all of this is true. A great many words uttered and written by lawyers are not of the English language at all. The language that lawyers work in, the language that makes them lawyers and separates the lawyers from the non-lawyers, is a foreign language, and the name of that language is Law French.

Newer law students may now be saying to themselves, “we have to learn law and French? If I wanted to learn a foreign language I would have gone to business school.” Not to worry, there will be no French lessons. A history lesson, however, is worthwhile. To learn the history of law French is to understand why lawyers speak the way they do, and why the profession keeps trying to learn to speak English. The premier source for the history of legal language is David Mellinkoff’s book The Language of the Law (K94 .M45). Mellinkoff takes what on its face sounds like a dry subject and infuses it with both well written wit and extensive research and quotations from original sources. Opening up this book to any page is a treat.

In 1066, William the Conqueror earned his name by crossing the English Channel from France and conquering England. One of the things William brought with him was the French language (although regrettably, he did not bring French cooking). Now the people then living in England obviously already had their own language, which today we call Middle English. The conquerors, however, all spoke French. Although English did not die out -- it was still the language of the lower classes -- the upper classes spoke French. And since it was the upper classes who made primary use of the courts (a result of their owning all of the land), and all the lawyers were from upper class families, law French flourished in the English courts.

This blending of tongues, English and French, had a secondary effect on the legal profession-- it made it more exclusive. The law was a profession of the upper class who knew French. Over time, anyone who wanted to become a lawyer would have to learn French (or the bastardized version spoken in the English courts). Thus, the profession of law became the last refuge of a declining French language, which served to insulate the profession. As Mellinkoff puts it,

What better way of preserving a professional monopoly than by locking up your trade secrets in the safe of an unknown tongue? Celtic lawyers had done it before in the British Isles. Comparatively few knew French in mid-thirteenth century England. It was never the language of the people. And as time passed it would become incomprehensible to any but the initiate. Here indeed was a language for the law. Not that it was deliberately planned that way. Most likely inertia took the place of design, which would explain the absence of any record of a law French conspiracy. And the coincidence of self-interest simply reinforced the normal inclination to leave things as French as they were.” Mellinkoff p. 101

And thus began the incomprehensible language (to the layman) of the law. Complaints against the complexity and opaqueness of legal language are as old as legal language itself. Mellinkoff also points out that complaints against legal language were also based on the fact that the language was French. (p. 111).

Throughout this period French was the lawyer’s language. The study of law in the Inns of Court was in French. Practicality ruled the day in the courts. “The suggestion of the statute (and it was little more than a suggestion) that English be used in pleading had to be weighed by the practitioner against the absence of legal learning in English and the ubiquity of French.” Mellinkoff p. 113.

As is clear from the practice of law today, English eventually won out over French. According to Mellinkoff, the reason for this was the change from written to oral pleadings. This change over gave us, in Mellinkoff’s words, “the English stockpile of the formalized piety and lament that has distinguished the language of the law ever since.” Mellinkoff p.116.

While English ultimately prevailed, the victory was not complete. Many of the everyday legal words we take for granted are French in origin. “The earliest recorded uses in England of the French appeal, demand, heir, and indictment were legal uses. They were a part of the law French of their day. They are now sufficiently common in everyday English to render a law French tag superfluous.” (p. 106). The very French sounding voir dire no longer has a French meaning; it is strictly a legal expression. Some other legal words with French origins include slander, obligation, robbery, and plaintiff. Looking at this list of words, it is surprising how much French the average lawyers still speaks today.

The existence of such words is not the only affect the French language has had on the language of the law. Given the multiplicity of languages used in the English courts of the day (Middle English, French, Latin, and perhaps some Celtic), it is not surprising that words would be joined together into strings of synonyms. This doubling of words may have started out as a form of translation, added clarity, or just emphasized a point, but it evolved over time into a style of speaking and writing current practitioners are still trying to overcome. This word doubling is embodied in such familiar phrases as “new and novel”, “cease and desist”, “give, devise, and bequest”, and “aid and comfort”. While it gives off a strong scent of “law,” the word doubling of often redundant synonyms, is often cumbersome and always confusing, thus the “plain language movement” which in one form or another has been with us for as long as some lawyers spoke French and everyone else spoke English.

Studying law is often akin to learning a foreign language. It is a relief to know that learning the law sometimes really is learning a foreign language, a language that has evolved over time, passing through the pens and mouths of numerous of our attorney (French word origin) predecessors.

Thursday, July 21, 2011

Information on the US Federal Debt Limit

With all this debate and concern about the US federal debt limit ceiling (including the constitutionality of it), I'm sure many of you would like to know more about it. Luckily, if you fall into that group, the Congressional Research Service (CRS) has a couple of reports that you may find interesting.

The most recent report is The Debt Limit: History and Recent Increases; the CRS has published several reports with this title in the past, but the most recent one, dated July 1, 2011, is piping-hot fresh. It explains how federal debt was dealt with before the institution of an overall aggregated debt limit, and details the tumultuous political wranglings over the debt limit that have occurred in the last decade. [Hat tip to the Law Librarian Blog.]

The second CRS report on the debt limit, dated April 27, 2011, is entitled Reaching the Debt Limit: Background and Potential Effects on Government Operations. This report details the "extraordinary measures" the Treasury has taken at particular moments in the past to postpone reaching the debt limit, usually to allow Congress to raise the ceiling. It also examines the possible implications reaching, and not raising, the debt limit would have on various government operations as well as potential economic and financial effects. This is a very sobering report.

Wednesday, July 20, 2011

Who Pays the Bills?

What piece of mail (sometimes via email) comes every month and can either make it a good day or a bad day? It’s your bank statement. Did you know the federal government has a bank statement and it’s available every day to view online. This daily bank statement is provided by the Financial Management Service, a bureau located in the Dept. of the Treasury. The job of the Financial Management Service is to “provide central payment services to Federal Program Agencies, to operate the federal government’s collections and deposit systems, to provide government-wide accounting and reporting services and to manage the collection of delinquent debt owed to the government.” This is the department that sends out the checks, makes the deposits, and collects on outstanding debts. At their web site you can see how much money the government has on hand, how much is coming, and how much is going out each day.

Each day’s statement, which is only two pages long, makes fascinating reading. Just looking at the July 18th, 2011 statement I see that the government brought in $67 million from “Foreign Deposits, Military Sales,” and paid out $40 million for NASA programs. And if you’re worried about Uncle Sam bouncing a check, don’t. They always keep plenty of cushion in the account—just like you.

If you are an accountant, or just interested in reading balance sheets, you will thoroughly enjoy the Daily Treasury Statement.

(hat tip to this Slate.com article: Your Deadbeat Uncle Sam)

Tuesday, July 19, 2011

The “Trap” of Neutral Citation? A Response to Professor Dippel

In the Spring 2011 issue of Law Library Journal (Vol. 103, No. 2), an article by Horst Dippel, Professor Emeritus of British and American Studies at the University of Kassel in Germany, caught my eye. The Trap of Medium-Neutral Citation, or Why a Historical-Critical Edition of State Constitutions Is Necessary, 2011 Law Libr. J. 14, 103 Law Libr. J. 219, is actually a very fascinating article that discusses the travails of researching historical state constitutions. However, there are two aspects of this article that bothered me.

First was the misleading title: The Trap of Medium-Neutral Citation. Although I'm sure I would have read it eventually, the ominous title was what impelled me to read the article immediately upon receiving my copy. This title clearly implied that a main thesis (if not the main thesis) of the article was to be some kind of argument against medium-neutral citations, most likely emphasizing citations to state constitutions. Indeed, the abstract provided at the beginning of the article reinforced this implication by promising to "discuss[] problems . . . with citing to state constitutions using medium- or format-neutral citations" (abstract, at p. 219).

Unfortunately, Prof. Dippel spends all of one paragraph summarily rejecting neutral citations for constitutions because such a citation "presupposes that the quoted text is always the same, independent of the particular vendor or medium from which it is taken" (¶ 1, at 219). Later in the article, when he briefly mentions neutral citations again (¶ 15, at 224, ¶ 21, at 225, and ¶ 38, at 231), it becomes clear that he is referring specifically to historical versions of state constitutions compiled by less-than-conscientious publishers, not to current, official texts.

This focus on historical documents leads me to my second criticism of Prof. Dippel's article: His apparent animosity towards neutral citations stems from an incomplete reading of the relevant legal citation standards. Right off the bat (¶ 1, at 219), Prof. Dippel establishes that his criticism of neutral citations derives primarily from Peter W. Martin's Introduction to Basic Legal Citation, as Prof. Martin interprets The Bluebook (19th ed. 2010). Prof. Dippel unfairly derides both of these sources for failing "to be aware of the flaw" in citing to state constitutions simply by "articles, sections, clauses, and subsections" (¶ 1, at 219). Neither source is worthy of such disrespect (at least as far as this issue goes).

To begin with, Prof. Martin's work is, as the title clearly states, an Introduction to Basic Legal Citation. There are three components to this explicitly descriptive title. First, it is an "introduction"; it "is not a substitute for a comprehensive reference" (§ 1-100). Similarly, it is "basic" and "aims at building a basic mastery of 'legal citation' as codified in" more comprehensive citation manuals (§ 1-100). Finally, it deals with "legal" citation. As Prof. Martin explains, "legal citation . . . is a standard language that allows one writer to refer to legal authorities with sufficient precision and generality that others can follow the references" (§ 1-200). In addition, Prof. Martin concedes that his guide "is focused on the forms of citation used in professional practice rather than those used in journal publication" (§ 1-100).

Although it is sometimes necessary for an attorney or a judge to cite to historical versions of constitutional provisions, such writers (as well as most legal scholars) usually only need to cite to that text which currently enjoys the status of full legal authority. Accordingly, I think it entirely reasonable for an introduction to basic legal citation to instruct on the "widely used form of citation" for constitutions, which just happens to be "vendor- and medium-neutral" (Dippel, ¶ 1, at 219 (quoting Martin, § 2-300)).

Despite Prof. Dippel's heightened expectations of Prof. Martin's work, there is still a more disturbing problem with his reading of the standards; namely, that he apparently didn't read the standards in their entirety. This is particularly disconcerting for someone arguing for the necessity of historical-critical editing. If one reads the sections Prof. Dippel references all the way through, both Prof. Martin's guide and The Bluebook make it clear that the neutral citation forms they prescribe are meant for current, official texts.

Professor Martin's section on constitutional citations concludes with the guidance that "[n]o date is required unless the citation is to a provision or version of the constitution no longer in effect" (§ 2-310). Indeed, even in the section from which Prof. Dippel explicitly quotes, Prof. Martin warns that constitutions can be changed (albeit not as easily and, hence, frequently as statutes) and that such change "raises a risk . . . that the text . . . to which a writer refers and the text consulted by a reader . . . may be different. . . . Addressing this possibility calls for both writer and reader to pay serious attention to the date of the compilation relied on by the writer. That information must be delivered in some non-ambiguous fashion" (§ 2-300). Although it is absent from Prof. Martin's guidance regarding constitutions (again, because this introductory work is focused primarily on current versions of legal texts), his instructions for statutes, which he makes clear are analogous, include the following admonition: "If an unofficial commercial codification is relied upon, it is customary to use that product's branded abbreviation . . . and to place the publisher's name, brand, or online source (abbreviated) ahead of the currency information in the parentheses" (§ 2-330).

The Bluebook provides similar guidance. After providing the general instruction on citing to current, official constitutional provisions, Rule 11 then explains what alterations are required for citations to constitutional texts that have been repealed, amended, "totally superseded or are otherwise no longer in effect." Although the Rule 11 instruction to "indicate parenthetically the name of the publisher, editor, or compiler" is explicitly intended for "citing a constitution contained in an electronic database," The Bluebook provides additional guidance that allows one to apply this instruction to print works as well. In its Introduction, The Bluebook provides that "when citing material of a type not explicitly discussed in this book, try to locate an analogous type of authority that is discussed and use that citation form as a model" (p. 1). State constitutional materials published in historical compilations certainly fit the bill "of a type not explicitly discussed in" The Bluebook. Alternatively, Rule 1.6(a)(ii) allows bibliographical information for the relevant compilation to be appended to the end of a citation introduced by the explanatory phrase "reprinted in". By adding the particular compiler and date of compilation to any of the constitutional documents Prof. Dippel discusses, either in a parenthetical or in a "reprinted in" clause, one can easily transform the general neutral citation format to a "vendor-specific" one that should alleviate Prof. Dippel's misgivings.

The topic of neutral citation for all primary legal authority was a hot topic back in the 1990s (see, e.g., Am. Ass'n of Law Libraries, AALL Task Force on Citation Formats Report March 1, 1995, 87 Law Libr. J. 582, ¶ 1 (1995)), and it remains an issue of great concern to many in the legal community today. (See e.g., Ian Gallacher, Cite Unseen: How Neutral Citation and America's Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law, 70 Alb. L. Rev. 491 (2007); Peter W. Martin, Neutral Citation, Court Web Sites, and Access to Authoritative Case Law, 2007 Law Libr. J. 19, 99 Law Libr. J. 329; Betsy McKenzie, Vendor Neutral Citation Is Getting Some Traction, Out of the Jungle (Mar. 2, 2011, 1:00 PM); UniversalCitation.org (last visited July 19, 2011). I, for one, hold out hope that, if one good thing is to come from the "technologization" of the library and legal research in particular, it is that an universal system of legal citation based on the ideals of the neutral citation movement is in the offing.

Overall, I really enjoyed Prof. Dippel's article. It was very interesting, and I believe he made his case for the necessity of a historical-critical compilation of state constitutional texts. I commend him on his achievement and encourage everyone to read it. However, his piece would have been clearer and more powerful if he had stuck to that topic and stripped away the crutch of an ill-conceived neutral citation bogeyman.

Monday, July 18, 2011

Research Tips: The Department of Energy's Office of Scientific and Technical Information

The Office of Scientific and Technical Information (OSTI), a Department of Energy program, was initially created in 1947, and its mission is to provide free, universal access to federal research and development information. In addition to information generated within the Department of Energy, its website also contains materials from other federal government agencies and links to international scientific sources.

Several areas of its website pertain to energy-related research. The "Find Key DOE Resources and More" section leads to a wide variety of options, including: the Information Bridge (which currently contains over 279,000 documents and citations to energy research reports), DOE Green Energy (citations, reports, and patents for renewable energy sources), Energy Citations Database (nearly 2.5 million citations to energy research documents), and EnergyFiles (links to other online research resources that the Department considers useful).

Thursday, July 14, 2011

Coastal Zone Information Center documents now available on FDSys

FDSys is providing digital access to documents relating to coastal management that the National Oceanic and Atmospheric Administration (NOAA) Central Library sent to the Government Printing Office. The collection currently spans from 1951-1999, and contains approximately 5,000 documents in PDF. Items range from reports, inventories and management plans to project catalogs and preservation programs.

Part of NOAA's overall mission is to protect coastal resources from environmental damage and encourage sustainable development, and these documents help to provide further insight into how NOAA accomplishes these goals.

Friday, July 8, 2011

Public Opinion Surveys

Public opinion surveys are conducted on a wide variety of topics such as the environment, education, health, and international affairs. If your research requires information about public opinion, there are a number of resources you can use to find this type of data.

Many different types of organizations collect polling data. For instance, some news organizations such as ABC News, NPR, and the New York Times conduct polls and place the data on their websites. There are also polling organizations that make their survey results available to the public. The Harris Vault website provides data from The Harris Poll back to 1963 and the Pew Research Center website supplies data from their People & the Press surveys back to 1997.

However, the library also offers access to subscription databases that pull together public opinion datasets from a number of different sources, some of which are discussed above. The first is the iPOLL Databank from the Roper Center for Public Opinion Research. This database contains over 17,000 datasets from the U.S. and other nations back to the 1930s. The library also has access to ProQuest Statistical Insight. While this database offers access to a variety of statistical information, it also contains public opinion survey data from commercial publishers, research organizations, and universities.

Thursday, July 7, 2011

Columbia International Affairs Online (CIAO)

One of the legal databases that can be accesses through the O’Quinn Law Library website is Columbia InternationalAffairs Online (CIAO).

The CIAO website is updated on a monthly basis and offers access to a vast collection of materials in the area of international affairs. These range from working papers from academic institutions around the globe and NGO’s, findings of research projects, conference proceedings, journals, books, and policy briefs to specially created course packs covering subject areas like free trade and NAFTA.

Furthermore, an interactive atlas created by the Economist Intelligence Unit, providing global intelligence as well as analysis, can be accessed. In addition a constantly updated collection of videos on news topics like Japan’s nuclear crisis, the consequences of Bin Laden’s death and the tapings of the highly acclaimed Columbia University World Leaders Forum series are available.

Wednesday, July 6, 2011

iTunes U and YouTubeEDU

Many people may not know that two websites often thought of as places to turn for entertainment, iTunes and YouTube, also provide access to educational content. iTunes U allows educational institutions to distribute content such as lectures, language lessons, and tours to students, and the general public, for free. Currently more than 800 universities, including the University of Houston, participate, with about half allowing public access to their content. More information about the University of Houston’s iTunes U website can be found here.

YouTubeEDU is a section of the popular video site that contains educational videos from colleges and universities. You can search for videos by keyword or you can browse videos by educational institutions such as Harvard and Stanford or by subjects such as Law, Health & Medicine, or Business. The University of Houston YouTube site can be accessed here.