"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, September 30, 2011

SCOTUS Justice Search Tips for LexisNexis/Westlaw

With the new term of the Supreme Court of the United States just around the corner, here are some search tips for finding decisions authored by a particular justice.

When using lexis.com:

To find all opinions (of any type) authored by a particular justice, use the WRITTENBY segment in the U.S. Supreme Court Cases, Lawyers' Edition (GENFED;USLED) database: e.g., writtenby(scalia). To find all opinions of a particular type authored by a particular justice, use one of the following narrower segments:

• Use OPINIONBY to find "opinion[s] of the Court" (i.e. majority and plurality opinions) authored by a particular justice;

• Use CONCURBY to find concurring opinions (including "in part" or "in the judgment") authored by a particular justice;

• Use DISSENTBY to find dissenting opinions (including "in part") authored by a particular justice.

NOTE: There can be some overlap between the CONCURBY and DISSENTBY segments. In instances where a justice is concurring in part and dissenting in part, their name will appear in both segments. Also, although this post is about searching for opinions of US Supreme Court Justices, these segments can be used in any other caselaw databases to find opinions authored by a particular judge/justice in their relevant jurisdiction.

When using Westlaw:

With Westlaw, it's not as clean and easy. Westlaw's SCOTUS database, All U.S. Supreme Court Cases (SCT), offers similar fields to lexis.com's segments, but Westlaw's fields are actually broader, resulting in more mis-hits. For example, according to the Scope information for the SCT database, the JU field is supposed to contain the "Name of the judge writing the principal opinion." However, a search of ju(scalia) also retrieves some instances where he merely joined in the opinion of the Court. It also includes instances where he authored opinions dissenting from denials of certiorari, and although I can understand West's view that such opinions are the "principal" opinions, I cannot agree with that assessment and prefer LexisNexis's practice of labeling such opinions as dissents; calling a dissent "the principal opinion" is very ambiguous and can be confusing to new legal researchers.

But the problem goes further than that: Westlaw does not provide an easy way to retrieve only dissenting or concurring opinions authored by a particular justice. They do provide a few options that will help narrow down the results list, but they are not very precise. Here are your options:

• The CON field: This field does contain the names of "the judges who wrote the [concurring] opinions", but it also contains the text of those decisions as well. Accordingly, searching for con(scalia) will retrieve the concurring opinions he authored as well as all concurring opinions that merely mention him.

• The DIS field: This field contains the names of "the judges who wrote the [dissenting] opinions", but it also contains the text of those decisions as well. Accordingly, searching for dis(scalia) will retrieve the dissenting opinions he authored as well as all dissenting opinions that mention him.

• The SY field: This field contains the synopsis of the case, which is "[a] summary of the case prepared by West, a Thomson business, another publisher, or the court." Georgetown Law Library's Supreme Court Research Guide suggests using this field to retrieve dissents and/or concurrences from a particular author. For example, the search sy(scalia +s concur! dissent!) means you're searching the synopsis for any instance where the term "scalia" precedes, in the same sentence, either some form of "concur" or some form of "dissent". And this is a very good strategy since, most of the time, the SY field in the decisions retrieved will contain sentences such as "SCALIA , J., filed a concurring opinion." or "Justice Scalia, with whom Justice Thomas joined, filed a dissenting opinion." Unfortunately, it will also retrieve opinions where the particular justice merely joined in the concurring or dissenting opinion written by someone else, just as the JU field will retrieve "principal" opinions joined, but not authored by, the desired justice. This should be evident in the latter example above, where Justice Thomas joined the dissenting opinion of Justice Scalia's: Such an opinion would be retrieved by the search sy(thomas +s dissent!) even though the searcher is interested only in dissenting opinions authored by Justice Thomas.

The New Generation of Westlaw/LexisNexis

If you want to use WestlawNext rather than Westlaw, the same field searches will retrieve the same results if you limit the Jurisdiction to United States Supreme Court. Unfortunately, WestlawNext does not advertise this functionality, so those law students who have been introduced only to WestlawNext (as opposed to Westlaw) will never know such control exists.

As for Lexis Advance for Law Schools (LALS), although I've been assured segment searching will be retained once the product is fully rolled out, the current Beta version available to law schools does not allow any segment searching, nor do the post-search filters currenty allow the researcher to retrieve only opinions authored by a particular justice. In fact, in its current form, the original search cannot be limited to just US Supreme Court opinions; using the pre-search filters, one can limit the initial search to all federal cases, but that's it. Once the initial results are retrieved, the current post-search filters only allow the researcher to then limit the results to the Supreme Court, but not to a particular justice (although I've been assured that will be added) nor to particular types of opinions (majority, concurrence, dissent, etc.).

Have fun searching, and let's look forward to an interesting SCOTUS term.

Monday, September 26, 2011

Happy Anniversary, Justice Scalia

Today, September 26, marks the 25th anniversary of Antonin Scalia being sworn in as an Associate Justice of the Supreme Court of the United States. Justice Scalia is the longest-serving Justice currently sitting on the Supreme Court, but he has a way to go to break the record: Justice William O. Douglas sat on the bench from April 17th, 1939 until November 12, 1975, for a total of 36 years, 7 months, and 8 days.

To celebrate (or lament, depending on your point of view) this momentary occasion, here are some resources by and about Justice Scalia:

__________________________________________

A brief biography of Justice Scalia (and all the current Justices) can be found on the Court's website, and the Federal Judicial Center also provides a summary of his professional career. Additional information about Justice Scalia, including snippets of notable media coverage and a commentary on his prescence on the Court directed at lawyers who may be arguing before him in the future, can be found in Volume 2 of the Almanac of the Federal Judiciary.

A PDF of the Senate hearings on Scalia's nomination is available through the GPO's FDSys: http://www.gpo.gov/fdsys/pkg/GPO-CHRG-SCALIA/pdf/GPO-CHRG-SCALIA.pdf.

__________________________________________

Besides over 800 opinions (including concurrences and dissents) he has authored as a Supreme Court Justice, here are some other notable works by Justice Scalia:

Antonin Scalia et al., A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) [containing an essay on statutory interpretation by Scalia, followed by responses from four leading constitutional law experts]

Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008)

Antonin Scalia, "The Bill of Rights: Confirmation of Extant Freedoms or Invitation to Judicial Creation?," in Litigating Rights: Perspectives from Domestic and International Law (Grant Huscroft & Paul Rishworth eds., 2002)

Antonin Scalia, "God's Justice and Ours: The Morality of Judicial Participation in the Death Penalty," in Religion and the Death Penalty: A Call for Reckoning (Erik C. Owens, John D. Carlson, & Eric P. Elshtain eds., 2004)

Antonin Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 Mich. L. Rev. 867 (1970)

Antonin Scalia, The Disease as Cure: "In Order to Get beyond Racism, We Must First Take Account of Race", 1979 Wash. U. L.Q. 147 (1979)

Antonin Scalia, The Two Faces of Federalism, 6 Harv. J. L. & Pub. Pol'y 19 (1982)

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881 (1983)

Antonin Scalia, The Role of the Judiciary in Deregulation, 55 Antitrust L.J. 191 (1986)

Antonin Scalia, Responsibilities of Regulatory Agencies under Environmental Laws, 24 Hous. L. Rev. 97 (1987)

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)

Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1989)

__________________________________________

Some excellent works about Justice Scalia include:

Richard A. Brisbin, Jr., Justice Antonin Scalia and the Conservative Revival (1997)

Ralph A. Rossum, Antonin Scalia's Jurisprudence: Text and Tradition (2006)

James Brian Staab, The Political Thought of Justice Antonin Scalia: A Hamiltonian on the Supreme Court (2006)

Joseph L Gerken, What Good is Legislative History?: Justice Scalia in the Federal Courts of Appeals (2007)

Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (2009)

Thursday, September 22, 2011

Guide to Law Online

The Law Library of Congress's Public Services Division has compiled an annotated guide of Internet links to legal and government information worldwide. Many of the sources provide the full text of materials, and are intended for both specialist and lay users.

The Guide to Law Online is made up of 5 sections:

International and Multinational contains a list of multinational reference sources, webpages for law reviews and journals, treaty information, as well as links to the Global Legal Information Network's database of official legal and government texts, the website for the Organization of American States, and the United Nations web portal.

Nations of the World provides the constitution, information about its executive, judicial and legal branches, legal guides, and general reference sources for each country listed.

U.S. Federal includes materials from the legislative, executive, and judicial branches of the federal government, along with legal research guides and other sources of data. Similar information can also be found at the state level in the Guide's U.S. States and Territories section.

There is also a hyperlinked Index section listing all countries discussed within the Guide.

Wednesday, September 21, 2011

U.S. Department of Agriculture Statistics

The U.S. Department of Agriculture's website contains a large amount of information concerning numerous aspects of the country's agricultural and food system.

Its Data & Statistics page covers 4 of the USDA's services:

Economic Research Service (ERS) - supplies indicators, analysis, and data relating to a variety of topics, including: agricultural markets and trade, food safety, natural resources, environment, and conservation, and farm income reports.

Foreign Agricultural Service (FAS) - monitors agricultural production and trade patterns worldwide, and has reports detailing U.S. trade, world production of agricultural products, U.S. export sales, and also provides an online database about production, supply, and distribution of major commodities.

National Agricultural Statistics Service (NASS) - gathers and publishes data about marketing and production, including: the Census of Agriculture (every 5 years), historical data, maps, and crop weather.

World Agricultural Outlook Board (WAOB) - focuses on economic intelligence, and publishes the World Agricultural Supply and Demand Estimates report each month.

Wednesday, September 14, 2011

Thinking Like A Lawyer

“[Y]ou teach yourselves the law. I train your minds. You come in here with a skull full of mush, and if you survive, you’ll leave thinking like a lawyer.”
--Professor Kingsfield from the Paper Chase

Although law students certainly learn legal doctrine – the so-called “black-letter law” -- many law professors like to think that they are in the business of teaching legal analysis. As the mythical Professor Kingsfield states, black-letter law is something students teach themselves. Professor Josef Redlich similarly once wrote that “[t]he real purpose of a scientific instruction in law is not to impart the content of the law, not to teach the law, but rather to arouse, to strengthen, to carry to the highest possible pitch of perfection, a specifically legal manner of thinking,” In other words, the purpose of attending law school is not to learn the law, but to learn to “think like a lawyer.”

What exactly does it mean to “think like a lawyer” and why is that important? The answer to the second question should be obvious -- if you are going to be a lawyer, is it not important to think like one? The first question is more difficult to answer.

For some, the answer to what it means to “think like a lawyer” is quite simple. “It means employing logic to construct arguments.” Other commentators, however, believe that “[t]hinking like a lawyer means, to a large extent, thinking rhetorically within a problem-solving context.” And still others take a more thoughtful approach-- “The phrase “to think like a lawyer” encapsulates a way of thinking that is characterized by both the goal pursued and the method used.” The method used, “essentially requires beginning with a factual situation and, through some process, arriving at a conclusion about the rights and duties of the persons or entities involved in the situation.” Learning to “think like a lawyer,” then, is a somewhat nebulous and ill-defined concept. Nevertheless, if knowing how to conduct legal analysis is an essential skill of successful lawyers, then students would be wise to focus not only on learning the relevant legal doctrine, but also on learning how to think like a lawyer.

Unfortunately, “students are often well into their education before they understand the operation of the legal method. Indeed, a law school graduate’s first job is frequently reduced to an apprenticeship in the use of this method.” In order to help students better understand what it means to think like a lawyer, I provide below a short bibliography of sources that discuss legal reasoning. Reading one of these books may help students not only teach themselves the law, but also how to think about the law. No claim is made that this list is exhaustive (or will help students earn better grades in law school), but all these sources provide a good introduction and explanation of legal reasoning. In addition, there are many law review articles on this subject, but they tend to take a more nuanced approach and may confuse as much as they enlighten the novice.

Bibliography:
Steven J. Burton, An Introduction to Law and Legal Reasoning, 2nd ed. (1995)
KF8775 .B87 1995

Wilson Huhn, The Five Types of Legal Argument (2002)
KF380 .H84 2002

Patrick M. McFadden, A Student’s Guide to Legal Analysis: Thinking Like a Lawyer (2001)
KF283 .M396 2001

Elizabeth Mertz, The Language of Law School: Learning to “Think Like a Lawyer (2007)
KF279 .M47 2007

David S. Romantz and Kathleen Elliot Vinson, Legal Analysis: The Fundamental Skill, 2nd ed. (2009)
KF240 .R636 2009

Elias E. Savellos with Richard F. Galvin, Reasoning and the Law: The Elements (2001)
K213 .S28 2001

Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009)
K212 .S325 2009

Peter T. Wendel, Deconstructing Legal Analysis: A 1L Primer (2009)
KF283 .W46 2009

Kenneth J. Vandevelde, Thinking Like a Lawyer: An Introduction to Legal Reasoning, 2nd (2011)
K212 .V36 2011

Monday, September 12, 2011

The Butler Did It! Rice University and the Law

Houston’s Rice University is rightfully famous as a small school that provides a superior education for the money. Rice is well known as an engineering school and is now equally famous for its humanities and business programs. For all its fame as an institution of higher learning, Rice first became famous for its connection to the law.

The William Marsh Rice Institute was founded by a bequest from William Marsh Rice, a businessman who came to Houston in 1837 to find his fortune. Rice made his money in cotton, shipping, real estate, and railroads, and by 1860 was the second richest man in Texas. Rice fled Texas during the Civil War, first moving to Matamoros, Mexico and later to Dunellen, New Jersey. In 1891, while living in New Jersey, Rice came up with the idea for the William Marsh Rice Institute for the Advancement of Literature, Science, and Art. The Institute was to be endowed from his estate when he died. In 1896 he was worth approximately $3 million.

On September 23, 1900 William Marsh Rice was found dead by his valet. It was assumed that he had died in his sleep. Or did he? Soon after Rice’s death a bank teller noticed a very large check made out to Rice’s New York lawyer, Albert T. Patrick, on which the lawyer’s name was misspelled. An investigation by New York police uncovered a plot. Patrick, along with Rice’s valet Charles F. Jones conspired to murder Rice and present a forged will leaving Rice’s estate, not to his proposed institute, but to Patrick. Jones, at the direction of Patrick, had administered the chloroform to Rice which killed him. This was a rare case; the butler did it!

Patrick was convicted of the murder based on the forgery and Jones’ testimony. Jones had earlier tried to commit suicide with a knife he claimed had been provided to him by Patrick. In addition, Rice’s Houston attorney, James A. Baker, Sr. had also testified as to Rice’s intentions. This James A. Baker was the grandfather of Secretary of State James A. Baker and a founder of the Houston law firm Baker Botts, LLP. Patrick was later released on appeal due to problems with the forensic evidence.

While this case is fascinating (the butler did it!) Rice University was not yet done with legal controversy. William Marsh Rice did a great thing; he established a university and made it free for both men and women; a co-educational institution being very rare at the time. But Rice was also a man of his time and the charter for Rice University stated that the purpose of the institute was, “the instruction of the white inhabitants of the City of Houston, and State of Texas. . . .” While that may have made sense in the Jim Crow south of 1900 (in fact, Rice had been a slave-holder prior to the Civil War), it would not fly in the 1960’s. Something had to be done. The trustees of William Marsh Rice University filed a suit to amend the trust documents to allow them to begin admitting students of color and charging students tuition. A group of alumni contested these actions. The trustees won and won again on appeal (Coffee v. William Marsh Rice University ,et al., 408 S.W. 2d 269). The court found that “instruction of the white in habitants. . .” wasn’t the primary purpose of the trust and that the trustees had the power to change the trust. The court stated that “The courts will direct or permit a deviation from the terms of the trust where compliance is impossible or illegal, or where owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust (408 S.W. 2d 269 at 285). The court further declared that, “it is impossible or impracticable under present conditions to carry out said intent.” (408 S.W. 2d 269 at 283).

Whether it is the Rice Institute, the William Marsh Rice University, or just Rice University, one of Houston’s local institutions has had very noteworthy interactions with the law.

Sunday, September 11, 2011

September 11: Ten Years Later

Today as we pause to remember the events of September 11, 2001, many of you may be wondering where to turn besides the news to read more about that day and the impact it has had on our country. The Library of Congress has several collections about 9/11, including the September 11, 2011 Documentary Project, which “captures the heartfelt reactions, eyewitness accounts, and diverse opinions of Americans and others in the months that followed the terrorist attacks on the World Trade Center, the Pentagon, and United Airlines Flight 93.” The Library of Congress has also partnered with the American Social History Project at the City University of New York Graduate Center and the Center for History and New Media at George Mason University to preserve a digital record of 9/11 through the September 11 Digital Archive.

The Government Printing Office has also released the 9/11 Tenth Anniversary Collection including materials such as the 9/11 Commission Report and Pentagon 9/11, a book detailing the attack on the Pentagon. If you are interested in learning more about the legal response to September 11th, the THOMAS website has compiled a list of legislation from the 107th Congress related to terrorism. In addition, this week the Government Accountability Office released the report: Department of Homeland Security: Progress Made and Work Remaining in Implementing Homeland Security Missions 10 Years after 9/11. This report also contains a listing of related GAO Reports.

In the last ten years, much has been written about the events and impact of September 11th. If you are interested in finding books and government documents available in the library on this topic, you can search the library catalog using subjects such as “September 11 Terrorist Attacks, 2001,” “War on Terrorism,” and “Terrorism – Government Policy – United States.”

Thursday, September 8, 2011

Department of Labor Enforcement Database

If you are interested in labor law and looking for enforcement data, you should check out the Department of Labor’s Enforcement Database. This recently updated resource provides the public with access to enforcement data collected by the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), the Employee Benefits Security Administration (EBSA), the Wage and Hour Division (WHD), and the Office of Federal Contract Compliance (OFCCP).

Depending on the agency you select, the database will allow you to search by state or zip code, company name, violation, penalty amount, industry code, or year. However, coverage for each agency varies by year. For instance, OSHA inspection data can be searched back to 1972, but Wage and Hour Division compliance data is included back to 2007. Once you have your results, the data can be exported in Excel or PDF formats. The website has also added a map feature that allows you to view inspection and violation data from OSHA and MSHA.

Friday, September 2, 2011

CBO'S Long-Term Budget Outlook

The Congressional Budget Office (CBO) reports its projections related to federal spending in the Long-Term Budget Outlook and is available in print in the law library and online through the agency's website. The report in particular discusses the long term outlook on spending and revenue in general and with regard to Health Care, Social Security, and Defense and Non-defense spending. A summary provides a quick overview of the report and numerous table, figures, and a topical index are included. The CBO website also has the full text of the Congressional testimony on long-term budget outlook before the House Budget Committee on June 23, 2011.