"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



Wednesday, May 30, 2012

Wikipedia in Federal Courts - Part 2

A month ago, this blog, like a few others, discussed a report from the Wall Street Journal's Law Blog on federal appeals courts citing to Wikipedia. I thought it might be interesting to examine the federal district courts for citations to Wikipedia, but first a brief update:

The Seventh Circuit Is At It Again!

Since my last blog entry on this topic (dated April 28, 2012), the Seventh Circuit, which already led all circuits in number of decisions citing to Wikipedia (doubling the second place circuit, the Ninth, 34 to 17), has released four more decisions containing citations to Wikipedia!

Two of the decisions were written by Chief Judge Easterbrook (who really needs to learn how to cite to Wikipedia (or have his clerks learn how to); here's an example of his masterful citation style: "The Wikipedia article 'Hip replacement' provides an overview of the components and procedures." Plumbers & Pipefitters Local Union 719 Pension Fund v. Zimmer Holdings, Inc., 2012 U.S. App. LEXIS 10136, at *2, 2012 WL 1813700, at *1 (7th Cir. May 21, 2012)).

Judge Posner joined in two of the decisions, one written by C.J. Easterbrook and the other a per curiam decision. The fourth opinion citing to Wikipedia in the last month was a dissent written by Judge Wood, his fifth Wikipedia-citing opinion.

Now, Let's Examine the Federal District Courts.

As one would expect, there are many more citations to Wikipedia at the federal district court level than at the appellate level. But before I share my results, let me explain the parameters of my study. To be consistent, I decided to stick with the methodology as established by the writers of the original Law Blog study: Only decisions from 2007 on were examined, and the court had to be citing to Wikipedia "for its own purposes, rather than citing it secondarily through a lower court or a party's pleading." Regarding the second criteria, as will be discussed in more detail below, it was sometimes difficult to tell whether the Wikipedia entry was coming from a party's pleading, so I solved this dilemma by excluding only those citations to Wikipedia that were clearly identified as coming from one of the parties. In addition, mere mentions of Wikipedia were also excluded; the court had to be citing to Wikipedia.

My examination found that, as of this writing, Wikipedia has been cited in 436 federal district court opinions; nearly 80% of these decisions are unpublished. The Top 10 states are:

State # of Citing Decisions (since 2007)
California 44
Illinois 38
Pennsylvania 32
Virginia 29
New York 24
Florida 20
Iowa 17
Ohio 17
Michigan 16
Connecticut 15

However, as with all statistics, they can be somewhat misleading. For example, of Illinois' 38 Wikipedia-citing decisions, 32 came from the Northern District of Illinois!! Here are the Top 10 Wikipedia-citing districts:

District # of Citing Decisions (since 2007)
N.D. Ill. 32
W.D. Va. 29
E.D. Cal. 19
N.D. Iowa 17
W.D. Pa. 17
D. Conn. 15
E.D. Mich. 15
S.D.N.Y. 15
N.D. Ohio 15
D.N.J. 12

But what about the individual judges? Here are the Top 12 (due to ties) offenders:

Judge District # of Citing Decisions (since 2007)
Garfinkel* D. Conn. 12
Standish W.D. Pa. 11
Conrad W.D. Va. 11
Browning D.N.M. 9
Armstrong* N.D. Ohio. 9
Hollows* E.D. Cal. 8
Scoles* N.D. Iowa 8
Robinson D. Del. 7
Rosenbaum* S.D. Fla. 6
Nolan* N.D. Ill. 6
Marchant* D.S.C. 6
Kiser W.D. Va. 6
*Magistrate Judges

Magistrate Judges authored 168 of the 436 decisions that cited to Wikipedia; Special Masters authored four.

An Interesting (At Least to Me) Aspect

While compiling the statistics for this entry, I stumbled upon many a disturbing instance. For example, in a recent decision out of the S.D. W. Va., Judge Copenhaver, Jr. described Wikipedia as a "freely available, authoritative source[]". Delgado v. Ballard, 2012 U.S. Dist. LEXIS 16807, at *27, 2012 WL 456937, at *10 (S.D. W. Va. Feb. 10, 2012) (emphasis added). "Authoritative"?! Really?! Maybe that explains the trend of citing to Wikipedia for medical-related information.

Out of the 436 decisions identified in my study, 172 cite to Wikipedia at least once for some type of medical information, even when the court identifies a more authoritative resource for that information! For example, in Reid v. Astrue, 2009 U.S. Dist. LEXIS 38651, 2009 WL 368656 (S.D. Fla. Jan. 8, 2009), Magistrate Judge Rosenbaum notes that a particular disorder "is a psychiatric category listed in the Diagnostic and Statistical Manual of Mental Disorders where it is described as an on-going pattern of disobedient, hostile, and defiant behavior toward authority figures which goes beyond the bounds of normal childhood behavior." Id. at *10-11 n.14, 2009 WL 368656, at *3 n.14. But then she goes on to cite not to the DSM but to the Wikipedia entry for the disorder!! Id. And that's not the worst: Magistrate Judge Garfinkel from the District of Connecticut has, on multiple occasions, cited to the Wikipedia entry for the DSM itself!!

However, a pattern emerges: Of the 172 decisions citing to Wikipedia for medical-related information, at least 120 involve the Commissioner of the Social Security Administration.

Now, I know what you're thinking: "Clearly, these citations are being supplied by the plaintiffs suing the SSA for denying their claims. Surely, attorneys representing the federal government would not be citing to Wikipedia." That's what I thought too, but I was wrong. In most instances, the citations appear when the court is discussing the SSA's position. Indeed, the smoking gun was found in a decision by Magistrate Judge Boyle from the District of Idaho. In Kole v. Astrue, 2010 U.S. Dist. LEXIS 31245, 2010 WL 1338092 (D. Idaho Mar. 31, 2010), M.J. Boyle provides a verbal smack-down worthy of a standing ovation: "At this point, it must be noted that, in support of his brief, Respondent cites to Wikipedia. . . . While it may support his contention . . . , Respondent is admonished from using Wikipedia as an authority in this District again. Wikipedia is not a reliable source at this level of discourse. . . . As an attorney representing the United States, [the SSA's attorney] should know that citations to such unreliable sources only serve to undermine his reliability as counsel." Id. at *18 n.3, 2010 WL 1338092, at *7 n.3.

Unfortunately, clearly, not all district court judges, whether or not magistrate, stand with Judge Boyle. Although 2008 was the busiest year for Wikipedia citations (with 101 citing decisions), there were 94 such decisions in 2011 and 30 so far in 2012.

Friday, May 25, 2012

Citing to Vernon's Texas Codes Annotated: Finding Accurate Publication Dates (without touching a book)

When citing to a current statute, both the Bluebook (rule 12.3.2) and Greenbook (rule 10.1.1) require a  practitioner to provide the publication date of the bound volume in which the cited code section appears. For example, let's cite to the codified statute section that prohibits Texans from hunting or selling bats, living or dead. Note, however, you may remove or hunt a bat that is inside or on a building occupied by people. The statute is silent as to Batman, who for his own safety, best stay in Gotham City.

This section of the Texas Parks and Wildlife code is 63.101. "Protection of Bats." After checking the pocket part and finding no updates in the supplement, my citation will be:

Tex. Parks & Wild. Code Ann. § 63.101 (West ___ ).
When I look at the statute in my bound volume of the Texas Parks and Wildlife Code, I can clearly see that the volume's publication date is 2002. But, when I find the same citation on Westlaw or LexisNexis, all I can see is that the statute is current through the 2011 Texas legislative session. No mention of the volume date at all, strange, especially since the statutes in print and on Westlaw are produced by the same company.

What's an attorney to do? Happily, the Legislative Reference Library of Texas has produced a site that will allow you to find the current bound volume date, ensuring a correct citation in only a couple of clicks. On the homepage, click on the "Legislation" menu, where you'll find a link to "Statute Publication Dates." From there you'll find a list of all code volumes, the sections covered, and current publication year. Now, I can create an accurate citation, without leaving my desk, or paying a fee.

My citation will be:  Tex. Parks & Wild. Code Ann. § 63.101 (West 2002).

Note though, that this list does not include pocket part updates to the volumes. If your statute has been amended since the publication of the original volume, the correct citation will refer to the pocket part that supplements the volume. For example, section 31.108 of the Texas Parks and Wildlife Code, regarding the Boater Education Program, is found in the same 2002 volume. But, it was amended in 2011, so I must refer also to the most recent pocket part that has the updated version of the statute. The correct citation for this section will be:

Tex. Parks & Wild. Code Ann. § 31.108 (West 2002 & Supp. 2011). 

One way to find out if you need to take this extra step is to look at the statute's credits at the end of the code section you are looking at online. If it shows an amendment or other action the year the volume was published or after, you'll need to take a look at the pocket part before citing.

Happy citing, and Happy Memorial Day, everyone!

Thursday, May 24, 2012

This Day in Legal History--United States v. Shipp, 214 U.S. 386 (1909)

On May 24, 1909, the U.S. Supreme Court announced a verdict in its first and only criminal trial, U.S. v. Shipp, 103 years ago today. The resulting trial and decision provide what many acknowledge as the foundation for federal habaes corpus actions in state criminal cases.

The facts leading to this unusual proceeding commenced on January 23 1906, in Chattanooga, Tennessee, when Nevada Taylor, a young white woman, was raped by an unknown man. Within days of the attack, pressure mounted to find the assailant, and  a reward of $375 was issued and reported in the Chattanooga News. The next day, a white man, Will Hixon, came forward and placed Johnson near the scene of the crime near the time of its occurrence. Arrested on January 26, Johnson was secretly moved to Nashville pending trial by order of the state criminal court judge, for fear he would be lynched before the proceedings could begin. That very night, a large mob attacked the jail at Chattanooga, believing Johnson was still detained there.

Johnson continually proclaimed his innocence, and provided names of a dozen men who could account for his whereabouts. Despite this, on February 9, Johnson was convicted by a jury of twelve white men in the criminal court of Hamilton County, and sentenced to death by hanging, to take place on March 13.

With the assistance of Noah W. Parden and Styles L. Hutchins, the leading black attorneys in Chattanooga, a motion for new trial was filed and summarily rejected, as Johnson's previously appointed attorneys missed the 72 hour filing deadline required under the local  rules.

Johnson and his new attorneys next filed a petition in the in the U.S. District Court in Knoxville, Tennessee, under the 1867 Habeas Corpus Act (alleging deprivation of his constitutional rights) on March 3. On March 10, the petition was dismissed and writ denied, with Johnson remanded to the custody of the Sheriff Shipp of Hamilton County, with execution stayed for 10 days to allow for appeal. On March 17, the emergency appeal was made to Justice John Marshall Harlan, who was assigned to hear emergency appeals from within the 6th Circuit. Justice Harlan, already known for his scathing dissent in Plessy v. Fergueson in 1896, granted the appeal to the U.S. Supreme Court.

With Johnson's execution stayed, the Chattanooga News headline on March 19 read, "An Appeal is Allowed. Ed Johnson Will Not Hang To-morrow," (214 U.S. at 412). That evening, a number of men entered the county jail in Chattanooga without apparent resistance, and with a sledge and ax, broke the bolts to the corridor door leading to Johnson's cell. By this time an estimated crowd of 150 had gathered, and continued to the bridge over the Tennessee River, where Johnson was lynched. His last words were reported to be: "God bless you all, I am innocent."

After learning about the lynching, U.S. Attorney General William Moody sent Secret Service agents to investigate the lynching, and concluded a conspiracy among the sheriff, deputies, and mob members had formed to kill Johnson. Upon his findings, Sheriff Shipp, six deputies, and 19 members of the mob were charged with contempt of court.

The trial began on February 12, 1907 in the Supreme Court, after witnesses were presented and cross-examined by the lawyers in the Chattanooga federal courthouse, where the justices were not present. At the Supreme Court, each side was given one day to summarize its case. On May 24, 1909, Chief Justice Fuller found Shipp, one deputy, and four mob members guilty of contempt. Justice Fuller explained that ". . . if the life of anyone in the custody of the law is at the mercy of a mob, the administration of justice becomes a mockery. . . [a]nd when its mandate issued for his protection was defied, punishment of those guilty of such must be awarded." (214 U.S. at 425).

This unusual case contributed to our understanding of what it means to have the right to a fair trial, one free from violence, and that this right is a federal right of state criminal defendants, protected under the Constitution.  The first and only criminal trial in the U.S. Supreme Court is historic not only in its rarity, but for its continuing impact on the constitutional guarantee of due process and the rule of law in the United States.

Tuesday, May 22, 2012

O'Quinn Law Library Free CLE Workshop

On April 15 we reported on Nota Bene about the Library free CLE Workshop to be held at April 28.   I am glad to report that the workshop went well.  Titled "Essential Legal Information & Technology for Texas Lawyers", it included three sessions. Library Director Spencer Simons talked about Texas bill tracking, legislative history, and administrative agency research. Associate Director Mon Yin Lung discussed free and low cost online resources for lawyers. Reference & Research Librarians Chris Dykes and Emily Lawson's presentation introduced attendees to special mobile device applications for lawyers. The free program, approved for three hours of CLE credit, was targeted at recent graduates and solo and small firm practitioners. It was much appreciated by the twenty-eight attendees.




Thursday, May 17, 2012

This Day in Legal History --Brown vs. Board of Education, 347 U.S. 483 (1954)


There are two kinds of “big” Supreme Court cases. The second kind of big case is the kind known mostly to students, practitioners, and academics. A good example of this is INS v. Chadha, 462 U.S. 919 (1983) which seems to stand for half-a-dozen propositions. The first kind of big case is the kind that changes the way we live. Brown v. Board of Education is just about the biggest “big” case there has ever been.

Prior to the Brown decision states had the right to segregate schools based on the case of Plessy v. Ferguson which held that segregated public facilities could be equal. Brown ended that. Public facilities would now be open to all. The Brown decision ushered in the Civil Rights era and changed the face of the United States. 

The case is not without its critics who snipe at it around the edges, but they are a minority. The case has been analyzed every which way; I am especially fond of the book What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision (KF228 .B76 W48 2001) in which a group of liberal scholars argue about how they would have written the opinion. 

There is really nothing I can add to the analysis of this decision. It has all been said and said better than I could ever hope to say. What is worthwhile remembering about the Brown decision that often gets overlooked is that sometimes the powers that be do the right thing; they come to the right decision because it is the right decision. Brown is an example of this phenomenon.

Tuesday, May 15, 2012

This Day in Legal History -- Standard Oil of New Jersey v. United States, 221 U.S 1 (1911)


Houston (perhaps) rightly considers itself the home of the oil industry, but the most famous legal case involves a company headquartered in New Jersey. On this date the U.S. Supreme Court handed down its decision in the case of Standard Oil of New Jersey v. United States, 221 U.S. 1 (1911). 

Standard Oil dominated the oil market in the United States and its path to such a lofty place was not without controversy. Ida Tarbell’s scathing investigation of the “Oil Trust” opened many people’s eyes to its tactics and control of the market. It also brought interest from the federal government and its antitrust powers embodied in the Sherman Antitrust Act.  States had tried to reign in Standard Oil, but had failed. New President Theodore Roosevelt felt he could do better, and he succeeded. 

At the time the case was brought the parties believed the case to be one of the most important cases heard by the Supreme Court. US Attorney General George W. Wickersham said of the case, “ never in the history of this country have there been presented to any tribunal controversies in which the issues were more momentous than those in the case against the American Tobacco Company and in the case at bar.” It seemed the fate of capitalism itself was being decided.

Standard Oil lost and its largest stockholder, John D. Rockefeller, became richer than ever. The case is famous for breaking up Standard Oil into a variety of regional oil companies (Amoco, Chevron, Exxon, and Mobil to name the most famous) and giving Rockefeller stock in each. The case spurred the creation of the Federal Trade Commission. Its legal legacy is the adoption of the “rule of reason” (unreasonable restraint of trade was actionable) as a foundation for future antitrust actions and “helped to establish the rules and character of market capitalism in modern America.” The case of Standard Oil of New Jersey vs. United States remains a “powerful and enduring. . .symbol of big business and the extent of its public accountability.”

Monday, May 14, 2012

Today in Legal History – The Constitutional Convention


Today is a special day in U.S. history. On this date in 1787 the Constitutional Convention convened in Philadelphia, PA. Originally called to fix problems in the existing Articles of Confederation, the convention eventually came up with a new document; the document we are all familiar with today, the United States Constitution. 

While nothing monumental happened on this day, nothing at all really happened as only a small number of delegates had assembled, the gathering itself was what was important. The work that occurred between this date and the day the convention closed on September 17th laid the groundwork for birth of democracy not only in the United States, but also throughout the world.

While our political class appears divided and the interpretation of the Constitution is still an ongoing dispute, most citizens agree that our governing document has on the whole worked out pretty well, even though it has required a few tweeks here and there. 

For more information on the Constitutional Convention I would suggest the following:

The Constitutional Convention and the Formation of the Union by Winton U. Solberg. KF4510.C66 1990 (Academic study of the debates)

The Records of the Federal Convention of 1787 ed. by Max Farrand  KF4510 .U547 1966 (Multi-volume work providing Madison’s notes on the Constitutional Convention)

Plain, Honest Men: The Making of the American Constitution by Richard Beeman

The Summer of 1787: The Men Who Invented the Constitution by David O. Stewart

Miracle at Philadelphia: The Story of the Constitutional Convention May – September 1787 by Catherine Drinker Bowman

Friday, May 11, 2012

Same-Sex Marriage Laws


Since President Obama’s recent announcement regarding same-sex marriage, there has been quite a bit of media attention surrounding the issue.  If you would like to learn a little bit more about same-sex marriage laws, a newly released Congressional Research Service Report, Same-Sex Marriages: The Legal Issues, provides a good overview of where the law currently stands on this issue.  The report provides information about the Defense of Marriage Act (DOMA), including an overview of constitutional challenges to DOMA.  It also covers information about same-sex marriage in the states including state litigation and civil union laws as well as a summary of state constitutional amendments limiting marriage to a man and a women and state statutes defining marriage. 

To learn more about CRS reports, see our previous blog post on the topic. 

Tuesday, May 8, 2012

New Online Edition of the Code of Federal Regulations

Yesterday the Cornell Legal Information Institute, along with the Government Printing Office and the Cornell Law Library, announced a new project providing online access to the Code of Federal Regulations. This new edition allows users to easily browse or search the CFR. In addition, it provides links to relevant statutory authority in the United States Code as well as links to pending regulations that may impact the particular parts of the code that you are interested in. This edition is updated concurrently with the version available on FDsys, but it also has links to the e-CFR edition for recent updates.

The project plans to add additional features in the future. For more information about this edition, see the full announcement.

Monday, May 7, 2012

Lexis Advance Initial Release Review Meeting

Here's how I imagine the first meeting of LexisNexis developers went after the initial release of Lexis Advance:

Dilbert Comic Strip for May 7, 2012.

Thursday, May 3, 2012

The Foreign Corrupt Practices Act Handbook by Robert W. Tarun

The ABA has recently published the second edition of the The Foreign Corrupt Practices Act Handbook by Robert W. Tarun. This title explores the FCPA, enacted in 1977 and amended in 1998, to target bribery of foreign officials and establish reporting requirements and internal controls for companies in order to combat corruption. All aspects of the FCPA are reviewed  including the accounting and anti-bribery components as well as the broad jurisdiction of the act itself and related conventions, potential defenses to the act, and the impact of the recently enacted Dodd-Frank Act. Other issues addressed include 15 major risks for violating the FCPA as well as potential problems that could arise from foreign charitable and political donations,  travel, entertainment, lodging, and gifts. The United Kingdom Bribery Act of 2010 is discussed thoroughly and there is a chapter that provides an overview of major foreign bribery cases. This book is now available on the new titles shelf across from the circulation desk in the law library.

Tuesday, May 1, 2012

SSRN App

The Social Science Research Network (SSRN) has a free app (available for the iPod Touch, iPhone, and iPad) that allows you to search by subject, author, abstract, or keyword  for over 260,000 working documents from scholars in the social sciences (including legal scholars) and the humanities. SSRN allows scholars to be "published" by enabling them to post their articles while they await acceptance by a scholarly journal. SSRN also helps scholars avoid having their research preempted by enabling them to locate working articles that pertain to their research before publication in a print journal. While articles can only be posted on the desktop version, the app will allow the user to view and e-mail documents.