"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 27, 2012

Office of the Comptroller of the Currency (OCC) website

The Office of the Comptroller of the Currency (OCC) website is a great source for news and information relating to the national banking system.  For instance, on July 26, 2012, the OCC announced that it was taking action against Capital One Bank due to that bank’s failure to provide relief to servicemembers from certain credit obligations when military service interferes with civil liabilities, such as a mortgage.  The OCC is an independent bureau of the U.S. Department of the Treasury.  The OCC is charged with chartering, regulating, and supervising all national banks and federal savings associations.  The Comptroller of the Currency is also a director of the Federal Deposit Insurance Corporation (FDIC), which insures each depositor up to $250,000 per insured bank.  In regulating national banks, the OCC has many powers:  The OCC can examine all national banks.  The Examinations” section of the OCC website provides information about the “Bank Supervision Process.”  The OCC can approve or deny applications for new charters, branches, or other changes to banking structure.  The “Licensing” section of the website contains the OCC’s “Licensing Manuals” and other related information.  The OCC can take supervisory actions against national banks that do not comply with laws and regulations.  The “Enforcement Actions” section of the OCC website contains a link to the “Enforcement Actions Search Tool,” a database containing enforcement actions and agreements.  Using this tool, one can locate any of the final actions which were recently announced by the OCC on July 20, 2012.  Additionally, the OCC issues rules and regulations and legal interpretations concerning investments, lending, and other practices.  The “Laws and Regulations” section contains this type of information.  Additional material contained on the OCC website include the “Comptroller’s Handbook” and information regarding “Bank Appeals.”  The “Bank Appeals” section of the website provides a good example of why the OCC website is such an important source of information.  In the past, “Bank Appeals Summaries” were reported in the “Appeals Process” section of the Quarterly Journal (available on HeinOnline).  However, since 2007, “Bank Appeals Summaries” are only available on the OCC website.

Thursday, July 26, 2012

Sources for Roman Law

Recently, a previous blog post on Nota Bene dated November 17, 2011 and entitled “This Week in Legal History – Justinian the Great” has received some discussion among members of the University of Houston Law Center community.  This insightful post introduces the Corpus Iuris Civilis and provides direction for further reading concerning Justinian and his law code.

The term “Roman law” refers to the legal system which developed in ancient Rome between the adoption of the Twelve Tables by the Roman Senate in 449 B.C. and the promulgation of the Corpus Iuris Civilis by Justinian in A.D. 529.  The development of Roman law comprises almost a thousand years of jurisprudence--from the Twelve Tables to the Corpus Iuris Civilis.  Roman law served as a basis for legal practice in some parts of continental Europe until A.D. 1453.

For studies on Roman law in general held by the O’Quinn Law Library, please see:
  • Bever, Thomas. A Discourse on the Study of Jurisprudence and the Civil Law: Being an Introduction to a Course of Lectures. South Hackensack, N.J.: Rothman Reprints, 1964. (K235.B48 1964)
  • Dyck, Andrew R. A Commentary on Cicero, De Legibus. Ann Arbor: University of Michigan Press, 2004. (PA6296.D323 D93 2004)
  • Harries, Jill. Cicero and the Jurists: From Citizen’s Law to the Lawful State. London: Duckworth, 2006. (KJA2147.H37 2006)
  • Hunter, William Alexander. Introduction to Roman Law. 9th ed. rev. London: Sweet & Maxwell, Ltd., 1934. (KJA147.H86 1934)
  • Mancini, Anna. Ancient Roman Solutions to Modern Legal Issues: The Example of Patent Law. New York: Buenos Books America, 2004. (K1505.M35 2004)
  • Nicholas, Barry. An Introduction to Roman Law. Oxford: Clarendon Press, 1962. (KJA147.N52 1962)

Wednesday, July 18, 2012

America Votes! A Guide to Modern Election Law and Voting Rights, 2d ed.

ABA's Section of State and Local Government Law, has recently published the second edition of America Votes!. This book, edited by Benjamin E. Griffith, is comprised of seventeen chapters, each written by a legal expert. The first section covers issues pertaining to redistricting, beginning with a discussion of different methods of defining "population," such as the U.S. Census, American Community Survey, and the Redistricting Data Program (RDP), as well as the constitutional implications with respect to defining "populations." Other matters discussed as a part of redistricting include the impact that non-citizens have on redistricting, recent court challenges to redrawing congressional districts, advice to attorneys, alternatives to redistricting, and citizen involvement. The second section looks at the Voting Rights Act, focusing specifically on protections for language minority voters, the new 2011 guidelines for Section 5 of the 1965 Voting Rights Act, which was amended by the Voting Rights Act Reauthorization and Amendments Act of 2006, among other issues. Finally, the last section contains chapters that focus on matters related to voter registration and ballot access. An index and table of cases are includes along with a helpful chart in the chapter covering voter technology, which illustrates contradictory state laws governing election fraud and integrity. This book is now located in the law library's new titles shelf across from the circulation desk.

Monday, July 16, 2012

FDA to Issue Guidelines for Medical Mobile Apps

According to an article available on the Health Care Finance News website, the Food and Drug Administration (FDA) could release guidelines for regulating mobile medical apps before the end of this year. The FDA, announced  on July 19, 2011, that the agency was seeking input on such oversight as more of these apps become available for Apple, Android, and other devices. A major hurdle was cleared when Congress enacted the Food and Drug Administration Safety and Innovation Act, giving the FDA the power to implement these regulations. The article also reports that the Department of Health and Human Services is in the process of developing a report regarding "appropriate" regulatory framework for "health information technology," which includes regulating medical mobile apps. The draft guidelines are available on the FDA's website.

Saturday, July 14, 2012

Wikipedia in State Courts - Part 3

In the last few months, I have posted about citations to Wikipedia in decisions from the federal courts of appeals and in decisions from federal district courts. Now, to complete the trilogy, I'd like to briefly report some statistics regarding Wikipedia citations in state court decisions.

As of this writing, based upon an examination of search results performed using both lexis.com and Westlaw, there have so far been 214 decisions from the various state courts that cite to Wikipedia. (Decisions that merely mention Wikipedia, usually in the context of addressing a litigant's use of the website, were excluded.) Of those, 175 have been since 2007, the cut-off used in the past postings, which stems from a report that was posted to the Wall Street Journal Law Blog.

Before I go any further, I'd like to point out the limitations of this analysis. Although practically every federal decision since Wikipedia's release in 2002 is available through lexis.com and/or Westlaw, the same can not be said about state court decisions. With a few exceptions, neither service provides access to the multitude of states' trial court decisions. Similarly, there is no guarantee that every unpublished state appellate court decision is acquired by at least one of the services. Accordingly, I have no way of knowing whether or not there is a pandemic of trial court judges citing to Wikipedia. If there is, there is relatively little evidence of it at the state appellate levels.

Having pointed out the limitations to this study, I must admit that I'm surprised at how little Wikipedia is being cited by state appellate courts! If you'll remember, as of my last post on this subject (dated May 30, 2012), Wikipedia had been cited in 436 federal district court opinions since 2007. Although I decided not to take the time to update that statistic for this report, I know that there have been more citings in the last couple of months. Despite the many more state appellate court jurisdictions, judges, and decisions, federal district court judges have produced more than twice as many Wikipedia-citing decisions than state appellate court judges!

Seventeen of the states have had no appellate court judge cite to Wikipedia at all, and another two have not cited to Wikipedia since before 2007. Another nine have only released one decision that cites to Wikipedia. Here are the top eleven Wikipedia-citing states:

State # of Citing Decisions (since 2007)
California 30
New York 23
Connecticut 19
Texas 11
Alaska 8
Indiana 7 (+ 4 before 2007)
Florida 7
Ohio 7
Washington 7
Michigan 6 (+ 4 before 2007)
Louisiana 6

Wednesday, July 11, 2012

The Outer Limits of Copyright. . .Part 3

As we have seen from the previous two entries in this series, copyright laws often have unintended, and at times down right strange, consequences. One of the oddest works that has been impacted by the copyright system is Adolf Hitler’s Mein Kampf (“My Struggle”). 

Written while incarcerated for attempting to overthrow the German Weimer government, Mein Kampf is part autobiography, part political statement, and part a step-by-step plan for the Nazi party takeover of Germany and the rest of Europe. The book was published in 1925 and sales were steady, although not spectacular. When Hitler became Chancellor of Germany in 1933, however, the book became a bestseller (it was even given to every newly married couple and every soldier fighting at the front). 

The book’s worldwide popularity increased with Hitler’s rising power, which necessitated translations from German into other languages. The first English translation, by Edgar Dugdale, was published in 1931. Interestingly, Dugdale was active in the Zionist movement. Houghton Mifflin purchased the rights in the United States in Dugdale’s translation. Soon others began publishing competing versions of the English translation of Mein Kampf, and Houghton Mifflin was forced to defend their copyright.  The first suit against small publisher, Stackpole & Sons, is notable for its holding: that a stateless person (in this case Hitler) has the same status under U.S. copyright law as any other foreigner.  Another suit involved journalist (and later U.S. Senator from California) Alan Cranston. Cranston believed that the published English translations of Mein Kampf failed to give the real flavor of Hitler’s hate. Believing that those who read Hitler’s own words, as translated by Cranston, would be motivated to do something about Hitler before he was able to put his plan into action, Cranston published his own translation of the work. Houghton Mifflin sued Cranston and won, forcing Cranston to stop publishing his tract. In other words, the copyright laws resulted in Adolf Hitler (through his U.S. publisher) suing a future U.S. Senator and winning!

During World War II, the U.S. government seized the copyright to Mein Kampf under the Trading with the Enemy Act. By 1979, the U.S. government had raked in almost $140,000 in royalties, which were distributed to charities. It was in that year that Houghton Mifflin re-purchased the copyright and again began selling the book. When Houghton Mifflin’s profits from the sale of Mein Kampf were exposed, they reassigned the profits to charity. 

Today, Mein Kamp is published throughout the world, with the notable exception of Germany (it is legal to possess the book and Germans with access to the Internet can find the book online). Bavaria currently owns the German copyright (since Bavaria was Hitler’s last permanent address), but the copyright expires in 2016, as does Germany’s ban on its publication. In an attempt to stem the tide of neo-Nazi publishers distributing copies of the book, the German government is considering producing its own annotated version of the book in an effort to “steal the thunder” of private publishers and make publication of the book a teaching opportunity. “We intend to defuse the book. That way it will lose its symbolic value and become what it really is: a piece of historical evidence—and nothing more,” says Christian Hartmann, one of the academics working on the edition to be unveiled January 1, 2016.

It is safe to say that few other books in human history have inspired as much death and destruction as Mein Kampf. The book is a vile exercise in hate, authored by a man whose name is synonymous with evil. That being said, the publication history of Mein Kampf, the modern bible of evil, is evidence that there are no exceptions to the heavy hand of copyright law.

We now return you to your regularly scheduled programming.

Some Good News for Lexis Advance

Casual readers of this blog may assume that my attacks on Lexis Advance are based on some type of animosity I have against LexisNexis or because I am a West stooge, but regular readers of this blog will know that I am routinely critical of Lexis Advance because of my affinity for lexis.com. If Lexis Advance is going to replace lexis.com, then I am going to do everything in my power to ensure that Lexis Advance is as capable of performing the types of research tasks that lexis.com makes possible. Unlike Barney Stinson, I don't believe that "new is always better", and I intend to fight against inefficient and expensive "change for the sake of change".

So why haven't I attacked WestlawNext as vehemently? Well, there's two reasons for my relative silence regarding that product. First of all, my interest in and experience with lexis.com greatly exceeds my interest in and experience with Westlaw. I am not a fan of Westlaw and only use it when I absolutely have to. Accordingly, although I know Westlaw well enough to be able to help law students navigate its user-unfriendly interface and construct searches using its limited Fields and its frustrating search syntax, I don't know it as well as I know lexis.com. In turn, because I'm not as familiar with the intracacies of Westlaw, I may not be as aware of the less-obvious differences between Westlaw and WestlawNext. Furthermore, since I'm not a fan of Westlaw, I'm not as invested in whether or not it gets replaced by another product, regardless of that product's comparative quality.

But the second, more germane, reason I haven't provided much criticism of WestlawNext is because I don't need to: Everyone else is already doing it! Despite the initial flush of mostly glowing reviews by bloggers after the launch of WestlawNext, the first serious look at the product was provided by Ronald E. Wheeler in his excellent article "Does WestlawNext Really Change Everything? The Implications of WestlawNext on Legal Research", 2011 Law Libr. J. 23, 103 Law Libr. J. 359 (2011). Since then, people have been taking a closer look at WestlawNext and have been more open about expressing their concerns. In fact, two very interesting (and, I believe, important) examinations of WestlawNext came to my attention in just the last few weeks.

Taking Up the Guantlet

The first examination comes from Lee Peoples, the Law Library Director at the Oklahoma City University School of Law. His recent work, "Testing the Limits of WestlawNext", 31 Legal Reference Servs. Q. 125 (2012), available at http://www.tandfonline.com/doi/abs/10.1080/0270319X.2012.682928, is in response to Prof. Wheeler's call for more research on WestlawNext and reports on the results of a study carried out by Prof. Peoples in conjunction with Prof. Wheeler. And the findings are illuminating! [And this is where the good news for Lexis Advance comes in.]

Responsiveness to Customer Input

Prof. Peoples points out that the marketing materials about WestlawNext and its WestSearch search engine are confusing because, although Boolean searching is permitted, it "is not as simple as the marketing materials make it sound" (id. at 131). After explaining the confusing aspects in detail, Prof. Peoples then goes on to state that "[d]espite repeated requests from users for WestlawNext to recognize all basic terms and connectors commands in the basic search field, Thomson Reuters has not taken action" (id. at 132, emphasis added). Hmmm... Now, correct me if I'm wrong, but if I remember correctly, after several people (this blogger included) complained about lexis.com connectors not being available for use in Lexis Advance, LexisNexis responded to that criticism by making lexis.com connectors available in Lexis Advance! Imagine that: A company that actually listens to its customers! [Well, some of the time at least.] It seems like it should be an easy fix for WestlawNext; it apparently was for Lexis Advance!

Pricing Structure

In his article, Prof. Peoples offers several other criticisms of WestlawNext and backs up his contentions with the results from the underlying study. He also offers up some advice for academic law librarian on the role we can play in mitigating the problems inherent in WestlawNext. For all those reasons, it is definitely worth the read.

But I want to focus on one particular problem that he address: The impact the pricing structure of WestlawNext has on the quality of the research. Prof. Peoples correctly points out that, "[b]y charging users additional fees each time they click on a document to read it, WestlawNext discourages researchers from freely opening and reading documents returned in search results" (id. at 135, emphasis added). As a result, WestlawNext's pricing structure "encourages researchers to run fewer searches, to open fewer documents, and to make snap decisions about the relevance of a source after viewing only a citation or brief preview of the source" (id. at 137).

Think he's just being alarmist? This brings us to the second examination of WestlawNext that was recently brought to my attention. Emily Marcum, a Law Librarian with the Alabama firm of Lightfoot, Franklin & White, LLC, posted an interesting abstract to SSRN for a potentially forthcoming piece entitled "The Quest for Client Savings in Online Research: WestlawNext V. Westlaw Classic". The abstract explains that searching on WestlawNext costs anywhere from two to four times as much as comparable searching on "classic" Westlaw! Indeed, the pricing contrast was so shocking that the planned comparison was cut dramatically short! Accordingly, it appears that Prof. Peoples is correct when he states that "[t]he pricing structure of WestlawNext could have a chilling effect on the thoroughness and completeness of research conducted using WestlawNext" (id. at 135).

Of course, Lexis Advance has a similar pricing structure, so it's not all good news for them, but at least WestlawNext is taking some beatings as well! But even here, Lexis Advance can take some solace: According to Prof. Peoples, WestlawNext charges a $60-per-search fee that "applies on top of any existing underlying WestlawNext subscription charges" (id. at 135). Since all searches are supposedly currently part of the Lexis Advance subscription, they've got a leg up on WestlawNext here as well.

As both products improve in quality, I am hopeful that more people will begin addressing these pricing structures. I hope the firms don't roll over and think they have no power to force both companies to change back to the old charge-per-search structure rather than sticking with the current charge-per-view paradigm. That would be a shame.

I can't wait to hear the discussions in Boston at AALL!

Thursday, July 5, 2012

Finding Facts with the U.S. Census Bureau

The first United States Census was undertaken in 1790, in order to carry out Article I, Section II of the Constitution. That section calls for an enumeration of persons for the purposes of correctly apportioning both taxes and representatives. In 1850, the census began to include the names of all free persons in a household, and their occupations in 1860. By 1890, the amount of data gathered in the decennial census took another ten years to tabulate, leading to census bureau Herman Hollerith's invention of the Hollerith tabulation system of punch cards. This system would lead to the formation of the Tabulating Machine Company, that would later become IBM. Technology used by the Census Bureau has improved over each decade, and now you can find specific, up to date data about a state or the nation with only a few clicks.

One resource of note is the Bureau's Facts for Features, which tabulates data of interest for Americans. For example, a recent fact sheet was released to coincide with the beginning of hurricane season. One of the surprising facts was that the coastal portion of states from North Carolina to Texas, the area most vulnerable to Atlantic hurricanes, is home to 37.3 million Americans, 12% of the U.S. population. In 1960, the same area was home to only 8% of the population. A festive Fourth of July fact sheet lets us know that most of the potatoes in our potato salads originate in Idaho, the beef for your burger likely came from Texas, and your hotdog is a product of Iowa.

You can also use Census Bureau resources to find statistics relevant to your own research or interests. One great tool is the County Business and Demographics Interactive Map. You can use either the interactive map or interactive text feature to find statistics of interest about one state, and compare them to another. Or, you can look at specific industries and economic indicators to find out what areas are leading the nation. Harris County has the fourth largest number of full-service restaurants of all U.S. counties, and the second largest number of gas stations. But, despite Texas' notoriety for"big hair," the state comes in 6th for number of beauty shops and barbers. Beyond this, the census bureau site provides up to date economic indicators by industry, a population finder based on the 2010 census, and the American Fact Finder, which allows you to explore all the data from the most recent census. Did you know that the median age of Texans was 33.6 in 2010? Try exploring all the census bureau tools to enhance your research and learn about America!

Tuesday, July 3, 2012

ALI & ABA End CLE Partnership After 65 Years

Beginning in 1947, the American Bar Association and the American Law Institute partnered as ALI-ABA Continuing Professional Education to provide continuing legal education to American attorneys. The American Law Institute Council and the American Bar Association Board of Governors both voted to dissolve the longstanding partnership this spring. Both groups will continue to provide CLE programming, but as individual entities. The ALI-ABA.org website now announces its new name as ALI CLE, and ABA CLE programs can be found at http://www.americanbar.org/groups/cle.html.

The two entities making up this long-standing purveyor of continuing legal education are both much older than their recently-ended partnership. The American Bar Association was founded on August 21, 1878, by 100 lawyers from 21 states. The American Law Institute was established in 1922, after a study found that uncertainty and complexity were the two major problems of existing American law. The ALI was incorporated in 1923, formed by prominent lawyers, judges, and law professors with the mission of improving the law and its administration.

The two groups came together in 1946, when the ABA asked the ALI to collaborate in the formation of a continuing legal education program for practicing attorneys. At this time, young lawyers were returning home from service in World War II and needed refresher courses in the law. In addition, the regulations begun with the New Deal only expanded in the war years, giving an additional impetus for providing continued legal education for all attorneys, veterans or not. In 1947 the two organizations created a "Committee on Continuing Education of the Bar of the American Law Institute Collaborating with the American Bar Association" and began work with the help of  a $250,000 grant from the Carnegie Corporation. By 1958, ALI-ABA was able to deliver CLE programs to 44 states, a venture that progressed with the advent of new technologies.

In the 65 years of the partnership, ALI-ABI has produced programs of study, published books and periodicals, and implemented satellite and internet methods of CLE delivery. Now with the partnership dissolved, ALI CLE has absorbed most of the intellectual content and technology of ALI-ABA, and the ABA will produce independent CLE materials and programming. With both entities poised to provide excellent continuing legal education services, American attorneys will have increased opportunity and resources for staying up to date and enhancing their professional development.