"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

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

Tuesday, November 15, 2011

This Week in Legal History -- Judges

On this day in legal history we celebrate the birth of two titans of the bench; judges whose influence not only on the law, but on society at large, are not in doubt. I am of course referring to Associate Supreme Court Justice Felix Frankfurter and Judge Joseph Wapner who presided over The People’s Court. Who could have imagined that two such influential and esteemed men of the law would also share a birthday?

Justice Felix Frankfurter was born in Vienna, Austria on November 15, 1882 and emigrated to the United States in 1894 when he was twelve years old. Frankfurter was an excellent student who attended City College of New York and Harvard Law School where he excelled becoming editor of the Harvard Law Review. Frankfurter worked for Henry Stimson who became Secretary of War under President Taft. When Stimson moved to Washington DC he took Frankfurter with him. Frankfurter was soon invited to join the faculty at Harvard Law School. During World War I he returned to Washington DC as a Judge Advocate General. During this period of his life Frankfurter came to be known as a radical participating in Zionist politics and helping to create the ACLU. After the war he returned to Harvard where he worked on his theory of judicial restraint. Frankfurter acted as an adviser to FDR even while he was teaching at Harvard. Upon the death of Justice Benjamin Cardozo, FDR nominated Frankfurter to the Supreme Court to fill the “Jewish seat.” Frankfurter was confirmed without dissent, and was the first nominee to appear in person before the Senate Judiciary Committee. Frankfurter’s tenure on the high court is remembered by his championing of the theory of judicial restraint. Under this philosophy great deference is given to the elected branches of government in the decisions they make, and such decisions should only be overturned if they “shock the conscience.” Frankfurter’s judicial philosophy, combined with his penchant for lecturing his colleagues on the court, sapped his influence and isolated him from the other justices. Frankfurter, as a Supreme Court justice, has come to be viewed if not as a failure as a justice then certainly as a disappointment.

No one could view Judge Joseph Wapner as a failure or as a disappointment. Joseph Albert Wapner was born on November 15, 1919 in Los Angeles, California. He attended Hollywood High School, where he dated Lana Turner (before she was Lana Turner) and received his undergraduate and law degrees from the University of Southern California. Between getting his B.A. and his J.D. he served in the U.S. Army during WWII where he was awarded a Bronze Star and the Purple Heart. Joseph Wapner served on the Los Angeles Municipal Court and Governor Pat Brown elevated him to the Los Angeles County Superior Court in 1959 where he presided until his retirement in 1979. Soon after retiring from the bench Judge Wapner’s second career began. In 1981 Judge Wapner was appointed to another court, The People’s Court, where he presided over 2,484 episodes and approximately 7,000 cases; far more than Justice Felix Frankfurter. Judge Wapner stepped down from the The People's Court in 1993 returning in 2009 for one episode in celebration of his 90th birthday. Judge Wapner also appeared on the Animal Planet cable channel show Judge Wapner’s Animal Court from 1998 to 2000 and made some cameo appearances as himself in several television shows.

How do these two men of the bench measure up against each other? After retiring in 1962 Frankfurter received the Presidential Medal of Freedom. Wapner has a star on the Hollywood Walk of Fame. Associate justice Felix Frankfurter wrote 247 opinions, 132 concurring opinions, and 251 dissents. Judge Joseph Wapner appeared in almost 2,500 episodes ruling on some 7,000 disputes, and it would appear he was never overruled. Frankfurter reminds us of hot-dogs; Wapner reminds us of the Oscar winning movie Rain Man. Frankfurter became the flag-bearer of the philosophy of judicial restraint after the retirement of Oliver Wendell Holmes, Jr. Wapner’s People’s Court spawned numerous imitators such as Judge Judy and Judge Joe Brown; shows in which televised judges solve the problems of real people, shows that continue to be a mainstays of day-time television line-ups demonstrating the legal system to the stay-at-home parent, the unemployed, and those needing an advance on their personal injury settlement.

Both of these men dedicated their lives to the law. There is something correct that these two men who wore black robes and dispensed justice to so many should share a birthday.

Sunday, November 13, 2011

New PACER Training Site

The Federal Judiciary recently announced a new training website for the Public Access to Electronic Court Records (PACER) database. The PACER system provides the public with access to federal court docket information and documents at a cost of $.08 per page (which will increase to $.10 per page in 2012). This new training website will allow users to learn how to search for documents and navigate the system free of charge.

However, not all database content is available in the training site. Currently it includes information and documents from real cases filed in the Western District of New York between 1/1/2007 and 7/1/2007. You are not required to register with PACER to gain access to the site. Instead, a training login and password are provided for all visitors to use. For more information about how to use PACER, see the PACER Service Center User Manual.

Wednesday, November 9, 2011

OyezToday App

If you are looking for an easy way to keep up with Supreme Court developments on your mobile device, give the OyezToday App a try. From the Oyez Project at Chicago-Kent College of Law, this app provides information about Supreme Court cases for the current term. It has abstracts of all cases granted review as well as audio of oral arguments with searchable transcripts. Once a case is decided, the app will have a summary and the full-text of the decision along with information about how each of the Justices voted in the case.

The app is available for free on iOS and Android devices. For more information about the app, visit the OyezToday website. You can download the app from the iTunes App Store or the Android Market.

Thursday, November 3, 2011

Are Encryption Keys Exempt from Fifth Amendment Protection?

An article posted on Law Technology News (LTN) by Joshua A. Engel, discusses whether an individual can be required by law enforcement to disclose an encryption key or password to access content on a cellphone or computer. This has obvious Fifth Amendment implications because such disclosure can be viewed as an admission that the individual in question possesses and has access to the documents and information sought by investigators. According to the article, courts have used the "foregone conclusion" doctrine to exempt such encryption keys or passwords from Fifth Amendment protection against self incrimination where the investigators were already aware of the documents. See In re Grand Jury Subpoena to Sebastian Boucher, U.S.D.C., D. Vt. No. 2:06-mj-91 (February 19, 2009). The article points out that the emergence of cloud services where documents can be obtained and shared without downloading files to the device has made the government's ability obtain an encryption key or password more pressing. This is guaranteed to be the subject of much debate over the next several years.