"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, April 28, 2012

Wikipedia at the Federal Circuit Courts of Appeal

A few days ago, I was alerted to a brief article that was posted to the Law News Now portion of the ABA Journal's website (hat-tip to Mon Yin) regarding a report posted to the Wall Street Journal Law Blog that asked, "Which Federal Appeals Court Cites Wikipedia Most Often?" Since this is a topic near and dear to my heart, I decided to see if I could corroborate their findings. Sorry to get picky, but I did find some small mistakes (although the gist of the posting is still accurate).

The Law Blog posting claims that they "only recorded those instances in which an appeals court used Wikipedia for its own purposes, rather than citing it secondarily through a lower court or a party’s pleading" (emphasis added). But it then charged the Seventh Circuit with "36 citations". In reality, their lexis.com* search retrieved 36 cases, but not all of them were citing to Wikipedia for the court's "own purposes".

[*I'm not 100% sure they used lexis.com, but I can tell they didn't use Westlaw: The search necessary to be exhaustive on Westlaw, wikipedia! en.wikipedia! www.wikipedia! & da(aft 2006), only retrieves 35 cases. See Daniel J. Baker, A Jester's Promenade: Citations to Wikipedia in Law Reviews, 2002-2008, 7 ISJLP 361, 382 n.109 (2012) (explaining why such a convoluted search is necessary). The difference stems from lexis.com's retention of a decision that was withdrawn (see below).]

For example, Salmeron v. Enter. Recovery Sys., 579 F.3d 787 (7th Cir. 2009) mentions Wikipedia (at 791 n.1), but here's the context: The website Wikileaks played an important role in the factual posture of the case, and, in a footnote, the court explains that "Wikileaks styles itself as 'an uncensorable version of Wikipedia for untraceable mass document leaking and analysis.'" The court then correctly cites to the Wikileaks website. Similarly, even if it had not been withdrawn, Bd. of Regents of the Univ. of Wis. Sys. v. Phoenix Int'l Software, Inc., 630 F.3d 570 (7th Cir. 2010) provides the second discrepancy. In this case (at 577), the court mentions that one of the parties offered a Wikipedia entry as evidence to the TTAB, by which the TTAB was apparently not impressed. Clearly, neither of these cases are using Wikipedia "for its own purposes".

But then I thought, "Maybe, when they say '36 citations', they literally mean 36 individual citations." I don't think that's the case, however, because, if it is, then they missed several citations and/or cases. By my count, the 34 cases in the Seventh Circuit that cited to Wikipedia did so a total of 42 times.

Here is my breakdown by Circuit:

Circuit # of Citing Decisions (since 2007)
1st Circuit 2
2nd Circuit 2
3rd Circuit 4
4th Circuit 4
5th Circuit 1
6th Circuit 5
7th Circuit 34
8th Circuit 3
9th Circuit 17*
10th Circuit 7
11th Circuit 2
D.C. Circuit 0
Fed. Circuit 0
*Does not include a superseded decision (579 F.3d 989) that is, for our purposes, identical to the superseding decision(621 F.3d 1162).

In my opinion, there are many other aspects of these decisions that are more interesting. For example, of these 81 decisions, all but 16 were in the lead decision of the court: five were in concurrences and 11 in dissenting opinions (three of which were dissents from denials for rehearing en banc). Of the 65 lead citing decisions, 55 were unanimous decisions.

But the most interesting aspect is not which Circuits have adopted Wikipedia the most, but which judges. As one might expect, the heaviest users are from the Seventh Circuit. Judge Posner has definitely been the greatest Wikipedia champion, citing to Wikipedia in eight decisions and joining another seven Wikipedia-citing decisions, but his colleagues Judge Kanne (five authored, six joined) and Judge Evans (five authored, four joined) are not far behind. [It shouldn't be surprising that Judge Posner is a frequent citer of Wikipedia considering he was quoted in the New York Times article that started the Law Blog survey: Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. Times, Jan. 29, 2007. This article quotes Judge Posner: "Wikipedia is a terrific resource."] Outside of the Seventh Circuit, two Ninth Circuit judges lead the race: Chief Judge Kozinski has cited Wikipedia in five decisions, and Judge Bea has cited Wikipedia in four dissenting opinions.

Moreover, citation to Wikipedia by the federal circuit courts seems to ebb and flow. In 2007, there were 16 decisions that cited to Wikipedia, followed in 2008 by 20 such decisions. Reason seemed to take the advantage in 2009, when the number of decisions dropped to six, but then it shot back up to 18 in 2010, before dipping a little to 15 in 2011. So far in 2012, there have been six decisions; considering we're only a third of the way through the year, it looks like we should expect double digit citations once again.

Wednesday, April 25, 2012

Sitting by Designation

Last week, a recent federal appellate case was brought to my attention, not because of the substance of the decision or the underlying topic, but because of the make-up of the circuit panel that heard the case. The proceedings were brought up before a Ninth Circuit Court of Appeals panel that included a district court judge. That's nothing special; literally thousands of cases are heard every year by circuit court panels that contain a district judge "sitting by designation". What got my attention about this one was the district judge sitting by designation on this Ninth Circuit panel was a judge from Maryland!

This got me thinking about the "designation" process: How could a judge from Maryland end up on a Ninth Circuit panel? (Or, in other words, how could an East Coast judge end up on a West Coast panel?) I don't remember this being discussed in any of my Procedure or Federal Courts classes in law school, so I thought I'd check it out.

Turns out, intercircuit designations are not only possible, but relatively common. For example, for the 12-month period ending June 2011, there were over 200 intercircuit assignments.

The starting point is, as usual, the U.S. Code: section 292 of Title 28 to be exact. Section 292(d) states that "The Chief Justice of the United States may designate and assign temporarily a district judge of one circuit for service in another circuit, either in a district court or court of appeals, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises."

That seems straight forward enough. The chief judge of a circuit (or a Supreme Court Justice assigned to the circuit as "circuit justice" (see 28 U.S.C. § 42)) simply needs to present a "Certificate of Necessity" to the Chief Justice, who then makes the decision of whether, and presumably who, to designate. In reality, it's not exactly that straight forward.

According to Nicholle Stahl-Reisdorff's work, The Use of Visiting Judges in the Federal District Courts: A Guide for Judges & Court Personnel (published by the Federal Judicial Center in 2001, updated in 2006), a request for an intercircuit assignment must go through the Judicial Conference Committee on Intercircuit Assignments. "The Committee assists the Chief Justice in processing requests for intercircuit assignments by: (1) coordinating the proper documentation among the lending and borrowing courts’ chief judges, judges, and clerks; (2) recommending whether the Chief Justice should approve an assignment and preparing and forwarding the designation to the Chief Justice for signature; and (3) maintaining the records of and statistics for intercircuit assignments. The Committee further assists the Chief Justice by developing guidelines regarding the use of intercircuit assignments, maintaining rosters of judges willing to take intercircuit assignments, and recruiting judges willing to undertake such assignments." (See "Committee Answers Courts' Calls for Help," The Third Branch, Dec. 2010.)

Although Ms. Stahl-Reisdorff's manual is intended for judges and court personnel, it's a very interesting read that provides a rare yet fascinating glimpse behind the curtain of federal court administration. It should answer most questions one may have about intercircuit (and intracircuit) assignments. The only disappointing aspect of the guide, however, is it provides links to documents available through J-Net (Judiciary Net), which the general public does not have access to. Thankfully, a few of these documents (especially the form for a Certificate of Necessity) are included in the manual's appendices or described in detail.

Friday, April 20, 2012

This Day in Legal History -- Ashford v. Thornton

This day in legal history marked the beginning of the end of a valuable right in England; the right to trial by battle (or more correctly, battel). The famous English case of Ashford v. Thornton (106 E.R. 149) was the death knell for this right of all Englishmen.

In 1817 the body of Mary Ashford was found dead in a water filled pit. The last person to see her was Abraham Thornton who had walked home with her after a dance. Some physical evidence pointed to Thornton as the murderer, but several witnesses who testified at the murder trial provided Thornton with an alibi. After a one day trial, and a six minute jury deliberation, Thornton was found not guilty. William Ashford, the deceased's brother, brought a private appeal against Thornton. Thornton was arrested and when the appeal was brought he stated that his plea was “Not guilty; and I am ready to defend the same with my life,” and he literally through down a gauntlet. Ashford did not pick it up, but his lawyers argued that Thornton shouldn’t be allowed to compound the murder of the sister with the murder of the brother. The judge cautioned Ashford’s attorneys not to call it “murder” since trial by battle was a legal right.

The trial by battle was available in murder trials when the next-of-kin of the deceased brought a private prosecution. The defendant was allowed to request a trial by battle with the two parties to meet and let the outcome “be ordained by God.” Elaborate rules governed how the battle was to be fought, but understandably as England became more civilized the practice became disfavored. The last known trial by battle in England occurred in 1446 when a servant accused his master of treason. The servant won.

Rather than duke it out in the courtroom, the parties filed affidavits to the court; Ashford pleading that the evidence against Thornton was overwhelming thus negating his right to battle and Thornton pleading the opposite. The justices ruled that Thornton did have a right to battle and that “We are delivering the law as it is, and not as we wish it to be.” Their disgust in the ruling is evident.

The court went on to offer Ashford an escape from potential injury or death; he could ask the court to allow Thornton to be released. On April 20, 1818 Ashford agreed to Thornton’s discharge.

In June of 1819 a bill was introduced in Parliament to abolish private appeals and trial by battle. The act passed the House of Lords in one night. Abraham Thornton soon after immigrated to the United States and died in Baltimore in 1860.

Trial by Battle was tried by in the 1980’s by a couple of armed robbers who believed the law did not apply to Scotland. In 2002 a man challenged the Driver and Vehicle Licensing Agency to Trial by Battle over a traffic violation. The magistrates were not happy and he was slapped with a heavy fine and court costs.

Ashford v. Thornton was in a small way a landmark case. It provided the impetus to do away with a legal procedure that came over with the Norman conquerors. The case also cemented the power of the bar because, after all, if Trial by Battle were allowed, what would the lawyers do?

Tuesday, April 17, 2012

Regulation Tracking: Part 1: Federal Sites

The internet is filled with websites that track Congressional activities. What about tracking agency activities? Tracking regulations used to consist of reading the Federal Register each day-- as you would a newspaper-- to find out what new rule was affecting you and your clients.

Now the process, like everything else, is online and available for free. We no longer need to read the Federal Register each day. Since the federal government has released Federal Register material in XML format private sites have also began publishing the information. This is not to say that the government sites are inferior. Since both public and private sites have their pluses and minuses it is worthwhile examining what a sampling of these sites provide.

Federalregister.gov

This is the home to the Federal Register and it is very attractive. The site is nice to look at, unlike many government sites of the past. It breaks down the current Federal Register into Notices, Proposed Rules, Rules, and Presidential Documents (at least it did on the day I looked at it). The site also breaks down the Federal REgister by categories like Money, Environment, World, Science & Technology, Business & Industry, and Health & Public Welfare. There is also search and browse functions. The web sites 21st Century pedigree is evident that there is a blog with instructional videos and the ability to subscribe via RSS feed.

Regulations.gov

Regulations.gov tends to focus on the process of rulemaking rather than the final product. Regulations.gov posts new regulations, but it also posts public comments on proposed rules and encourages visitors to post comments. This is an excellent source for researching the “regulatory history” of a particular rule. The site provides search and browse functions including browse by category and by topic. The site provides the docket folder for a regulation which contains all the comments and other supporting documentation. Regulations.gov provides email alerts for regulations of interest.

Reginfo.gov

This website, sponsored by the General Services Administration (GSA) and the Office of Information and Regulatory Affairs which is part of the Office of Management and Budget (OMB) is a little different from the two preceding sites. This site provides information on regulations that are undergoing review by OMB which occurs outside the Federal Register publication process. The rules reviewed by OMB have significant financial impact. The site also provides a copy of the Unified Agenda, which is a bi-annual compilation of all regulatory actions federal agencies are considering. The value provided by this site it allows a researcher to see what is coming down the pike in regard to important regulations by seeing what OMB is reviewing and what agencies are considering.

Stay tuned for Part 2: Private Sites


Monday, April 16, 2012

O'Quinn Law Library Free CLE Workshop

To help recently graduated alumni to meet the needs of a demanding legal environment, the University of Houston O'Quinn Law Library will hold a free workshop offering special training in legal research and the application of the latest information technology: two hours of intensive training in advanced Texas legal research and free or low cost online resources for lawyers, and one hour on special mobile device applications for attorneys. This workshop carries three Texas CLE credits. For details please click here.

Friday, April 13, 2012

Happy National Humor Month

Since April is National Humor Month, I wanted to celebrate by offering up a few websites and blogs where you can go to enjoy the lighter side of the law:

Lawhaha.com – Play “Spot the Tort,” browse strange and amusing judicial opinions, or read tales about law school on categories such as “Interview Faux Pas” and “Socratic Mishaps.”

Say What?! – Provides “real life Texas courtroom humor” from U.S. District Court Judge Jerry Buchmeyer’s Texas Bar Journal columns from 1990 to 2008.

Big Legal Brain – Satirical blog offering practical law office management tips such as “Keys to Building a Lebowski-Driven Practice” and how to “Boost Your Web Site with Cheesy Stock Images.”

Legally Drawn – Website featuring cartoons about life in the law.

That’s What She Said – Blog that dissects each episode of the television show “The Office” to estimate what the company would have to pay to defend itself in a real lawsuit.

This is just a sampling of the legal humor sites out there. For more examples, see the ABA’s list of Legal Humor Blogs, but try not to waste too much time!

Wednesday, April 11, 2012

English Translations of Foreign Law

If you need to find English translations of foreign laws, you should check out the new guide from the Law Library of Congress: Translation of National Legislation into English. As reported by the Law Library of Congress blog, this new guide has information regarding where you can find translated legal materials for 13 countries: Afghanistan, Argentina, Brazil, China, France, Germany, Greece, Israel, Italy, Japan, Lebanon, Mexico, and the Russian Federation. The guide includes information about official as well as unofficial translations. It also provides links to those translations that are available online.

The law library also provides access to the Foreign Law Guide, a subscription database containing information about laws from over 170 jurisdictions. This database can be accessed through the Legal Databases drop-down menu on the library website.

Friday, April 6, 2012

Update on E-filing in Texas Courts

E-filing has now become the norm in most Texas state appellate courts as well as with many county and district courts. According to an article available on the the Texas Lawyer Blog this week, the Texas Office of Court Administration (OCA) director, Casey Kennedy has stated, based on the Texas Judiciary's 2011 annual report, that seven of Texas's 14 appellate jurisdictions and 78 district and county clerks in 51 counties now use e-filing. The Texas Supreme Court has made e-filing mandatory since March of 2011. The blog also reports that since the current vender that manages the e-filing system in Texas will not renew its contract, OCA is now soliciting proposals from venders for an e-filing system that will have similar retrieval tools for the public as PACER. This is especially an interesting development that could allow public access to trial level decisions and filed documents, that would otherwise require a trip to the court clerk's office.

Tuesday, April 3, 2012

Google Launches its New Google Account Activity Tool

Google has launched, "Account Activity," a new tool designed to keep you apprised of certain activity and the Google services that you have used (see the blog posting from Google for more information). Those who sign up will receive a report each month that will provide data pertaining to usage of Google services such as g-mail activity, the country from where the user has logged in, the number of searches conducted on Google, and number of times Youtube videos have been viewed. The Law Librarian Blog in a posting on Friday, March 30, 2012, mentioned that this tool appears to track usage even if the user is not signed in to a Google account (although this may be attributable to the person using "Chrome"). While I'm not sure if I want to sign up for this service (I already have a Google account), it appears that this tool simply allows the user to see what information Google already keeps track of.