"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, August 28, 2012

Law School Success Guides

As a new academic year begins, some of you may have a number of questions about how to successfully navigate law school.  Whether you are a 1L looking for tips about how to outline, a 2L beginning work on a law journal, or a 3L starting to think about the bar exam, the library has a number of books to help you better prepare for the year ahead and beyond.  With insights from lawyers, law professors, and law students themselves, these resources include: 

1000 Days to the Bar, but the Practice of Law Begins Now by Dennis J. Tonsing - KF272.T66 2010

Coming to Law School: How to Prepare Yourself for the Next Three Years by Ian Gallacher - KF283.G35 2010

Hard-Nosed Advice from a Cranky Law Professor: How to Succeed in Law School by Austen L. Parrish and Cristina C. Knolton - KF283.P37 2010

Law School Confidential: A Complete Guide to the Law School Experience: By students, For Students by Robert H. Miller - KF283.M55 2004 (Reserves)

Law School Labyrinth : A Guide to Making the Most of Your Legal Education by Steven R. Sedberry - KF283.S43 2009

Law School Success in a Nutshell : A Guide to Studying Law and Taking Law School Exams by Ann M. Burkhart and Robert A. Stein - KF283.B871x 2008 (Reference and Reserves)

Law School Survival Manual : From LSAT to Bar Exam by Nancy B. Rapoport and Jeffrey D. Van Niel - KF283.R37 2010

The International Student's Survival Guide to Law School in the United States: Everything You Need to Succeed by Rachel Gader-Shafran - KF283.G33 2003

What the L? : 25 Things We Wish We'd Known Before Going to Law School by Kelsey May, Samantha Roberts, and Elizabeth Shelton - KF283.M388 2010

A Woman's Guide to Law School: Everything You Need to Know to Survive and Succeed in Law School by Linda R. Hirshman - KF283.H57 1999   

If you have any questions about these, and other helpful library resources, please stop by the reference desk and ask a librarian.

Thursday, August 23, 2012

Model Jury Instructions on Social Media Approved

The Tex Parte Blog has recently reported that the Judicial Conference Committee on Court Administration and Case Management has approved model jury instructions aimed at curtailing jurors from posting their opinions regarding a case on social networking sites. The instructions are broad in that they ban jurors from commenting on a case on their "cell phone (s), text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube." The article reports that the model instructions were approved based on a national survey of federal judges originally requested by the committee. I will follow up with any further developments.

Tuesday, August 21, 2012

Bluebook Now Available as a Mobile App

According to a recent press release, the editors of The Bluebook, A Uniform System of Citation, have chosen the Rulebook app, to exclusively publish The Bluebook for mobile devices. The app provides access to The Bluebook as well as current federal and state court rules and users can search all sources by words or phrases, bookmark, highlight or annotate text, and view multiple rules and authorities simultaneously. The app is currently available through the App Store and available for all Apple devices. It is free to download but access to The Bluebook will cost $39.99. The federal court rules and select authorities along with the rules and authorities for specific states including Texas are available on the Rulebook app for an extra fee.

Thursday, August 16, 2012

Some Welcome Additions to Lexis Advance

In its most recent release, Lexis Advance added some new functionality that gets it a little closer to being as good a legal research tool as lexis.com. Two of the least obvious of these welcome additions are the new Snapshot view and the new Recently Viewed icon.


The new Snapshot view is basically an initial overview of results. Each Content Type searched is displayed as a "pod" that can be opened or closed. When opened, the first three documents from that Content Type are displayed. If you would like to examine any of those three documents, you can click on them from here; however, if you want to see any of the other results for that Content Type, you must click on the Content Type's tab. Once they work out the kinks in the Relevancy rankings, this will be a very useful feature.

I really like the Snapshot view, but I wish it also displayed the number of results for each Content Type as well. For example, beside the Content Type's title (e.g., "Cases") in its pod, it would be helpful if it displayed the number of results available through that Content Type's tab, rather than requiring the user to actually click on the Content Type's tab to discover the number of results. Including this information on the Snapshot view would make it much more useful. At a glance, you would be able to tell if your search needs to be tweaked because it is either too broad or too narrow.

Recently Viewed Icon

Another new feature I really like is the Recently Viewed icon, also known as the Binoculars icon because, well, it looks like a pair of binoculars. If this icon appears to the right of a document in a results list (whether the full results list or just the Snapshot view), it means that you have viewed this particular document at some point in the last 30 days. In addition, if you move your cursor over the icon, it will even display the date you most recently viewed the document.

These are some very helpful, albeit minor, improvements to the Lexis Advance product. I may examine some of the other recent changes in future blog posts, but I hope that the developers will continue to make these types of user-friendly changes in the future.

Wednesday, August 15, 2012

Are You Ready for Some Football?

Can you feel that? I sure can. It’s beginning to feel like football season!  Although the professional football season is just around the corner it now seems like there is football news all year round.  The off-season is more than the draft or what free agent signed with what new team. The NFL football off-season is now full of stuff lawyers love; investigations and law-suits.

The two big legal stories that dominated the professional off-season were the investigation of the New Orleans Saints for putting bounties on opposing players and the ongoing litigation over concussions suffered by former players. 

In the first case the New Orleans Saints have been accused of putting bounties on players from opposing teams. What this means is that Saints defensive players were each putting up a certain amount of money and whoever knocked an opposing player out for a few plays, or for the rest of a game, was awarded the pot of money. This is, however, against NFL rules and the Saints were punished, harshly.  Roger Goodell, the Commissioner of the NFL fined the Saints organization $500,000 and several future draft choices. The team’s head coach and general manager were banned for the season without pay, the defensive coordinator was banned indefinitely, and several players were banned for anywhere from three games to the full season. The one player banned for the season was Saints linebacker and defensive captain Jonathan Vilma.  While everyone else has accepted their punishment Jonathan Vilma has not and has done what every other red-blooded American would do; he is suing Roger Goodell for defamation in US federal district court.  A copy of Vilma’s complaint can be found here.  

The other big law related issue that is affecting the NFL  is the numerous lawsuits filed by former players alleging that the NFL knew that players were suffering from concussions caused by the violence of the game, but did nothing to protect those players.  According to the NFL Concussion Litigation website there are 3,236 former players as plaintiffs in 124 separate lawsuits. While most lawsuits are for negligence, several are for wrongful death alleging that the NFL’s inaction on the concussion issue caused the deaths of former players.  A recent posting on the site noted that the NFL’s insurance company filed a declaratory action stating that they had no duty to defend the NFL against these lawsuits and that they had no duty to indemnify the NFL.  If you are a football fan interested in the concussion issue definitely check out this web site.

Football is played in the fall and early winter, but litigation is a year round endeavor.

Friday, August 10, 2012

Improving Juror Response Rates- By Carrot or Stick

Have you been called to serve jury duty lately? Did you heed your summons and perform your civil duty? In many areas, if your jury summons got lost in the mail, was eaten by the dog, or simply forgotten, there’s a good chance no consequence will come from your lapse. In some Texas counties, however, this is changing. This week, Texas Lawyer reported that Dallas County is changing its tune when it comes to no-show jurors. Dallas County began a Jury Services Court pilot program in response to jury turnout rates as low as 20%. Jurors who don’t respond to their jury summons may be sent a notice summoning them to Jury Services Court, which is presided over by Judge Gena Slaughter of the 191st District Court. Once they appear, the jurors may explain their absence, and reschedule their date for jury service. If jurors do not appear on the rescheduled date, a show cause contempt order is issued, and if not responded to, a warrant may be issued for their arrest and fines may be imposed. Texas Government Code § 62.0141 governs the penalty for failure to answer a jury summons, which punishes both non-compliance with a summons or the provision of false information to be excused from jury service with fines up to $1,000. 

The Dallas County program is modeled after El Paso County’s Jury Duty Court that began operations in 2005. During the 2010 fiscal year, the El Paso County District Clerk collected more than $300,000 in jury contempt fees and fines, largely due to professionals like doctors and lawyers who choose to pay the maximum fine to avoid jury duty, according to a Dallas Morning News report. The El Paso program has led to a jury yield of 80%, according to Dallas County Jury Services Manager, M. Anne Brabham.

Despite these enforcement mechanisms, a primary reason that potential jurors do not respond to summonses is the financial sacrifice jury service can entail. Texas law does not require employers to pay employees taking off work to perform jury duty, and a study in 2000 provided evidence that poor compensation is a significant factor in non-participation in jury service (See, Ted M. Eades, Revisiting the Jury System in Texas: A Study of the Jury Pool in Dallas County, 54 SMU L. Rev. 1813, 1826 (2001)). The study found that financial reasons for non-participation had a disparate impact on racial minorities, especially Hispanic Americans. Though some counties, like Dallas, have raised jury pay to $40 per day, most Texas counties have not.
The effect of non-participation can have more than personal consequences; in the aggregate it contributes to the erosion of one of our most valuable freedoms as citizens. The Sixth Amendment requires jury venires to reflect representative cross sections of the community and a 20% participation rate is unlikely to provide such representation. Continued low public participation rates may lead to constitutional challenges, even without evidence of intentional discrimination.  As Alexander Hamilton wrote in the Federalist Papers, the right to a jury trial is a “valuable safeguard to liberty,” and essential to a free and democratic society. Whether jury participation is increased by stronger enforcement mechanisms, increased compensation, or more efforts to educate about the importance of juries, it is essential that Texas courts continue to work towards improving participation rates.

Thursday, August 9, 2012

The American Bar Association & Dangerous Dog Laws

On Monday, August 6, the ABA House of Delegates approved Resolution 100, which calls for laws regarding dangerous dogs to be “breed neutral.” The resolution states that “the American Bar Association urges all state, territorial, and local legislative bodies and government agencies to adopt breed-neutral dangerous dog/reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership, and focus on the behavior of both dog owners and dogs, and to repeal any breed discriminatory or breed specific legislation." This Resolution brings up two distinct, but interesting questions. Are dogs and their owners denied due process through state and local laws that are not breed neutral? And if so, what impact does an ABA Resolution have in changing the laws that govern these owners and their pets?

First, the due process rights of pets and their owners. Though a recent case filed against Sea World in San Diego by animal-rights group PETA (People for the Ethical Treatment of Animals, Inc.) argued that five orca whales were being held in violation of the Thirteenth amendment’s prohibition against slavery, the United States District Court for the Southern District of California dismissed the case on the finding that non-human animals lacked standing to sue.  Specifically, the court stated that “[t]he only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas. Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks & Entm't, Inc., 842 F. Supp. 2d 1259, 1263 (S.D. Cal. 2012). Thus, as the harm alleged by PETA on behalf of the orcas could not be redressed by the Thirteenth Amendment, there was no standing to sue and the case was dismissed. Using the same reasoning, it follows that pets are not protected by the due process provisions of the Fifth and Fourteenth amendments, as the language indicates that the amendments apply to persons, not dogs.

The owners of the pets on the other hand, do have due process rights that may be violated. In cases where the issue of breed specific (or breed discriminatory) laws are challenged, arguments focus on (1) overly vague laws that do not give proper notice to the public, or leave too much discretion to enforcing officers, and (2) even when breeds are specifically defined, it is very difficult to determine the breed of dog simply based on appearance. In most cases, these void for vagueness challenges fail, but have been strong enough for courts where the legislation refers not only to specific breeds, but to also dogs with a pitbull-like appearance. See, e.g., Am. Dog Owners Ass'n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa 1991). Substantive due process challenges to breed-specific legislation argue that the breed-based regulation or ban is not rationally related to a legitimate government interest in the protection and safety of the public. See, e.g., Garcia v. Vill. of Tijeras, 767 P.2d 355, 358 (N.M. Ct. App. 1988).  In most cases, however, courts have not had trouble finding that the breed-specific legislation is rationally related to the legitimate government goal of protecting public safety

Many states are now attempting to avoid what is called “panic policymaking,” where states enact legislation specific to certain breeds of dogs, often in response to a tragic dog bite instance. Texas is among twelve states that have enacted statutes allowing a country or municipality to place additional requirements or restrictions on dangerous dogs, but only if those requirements or restrictions “are not specific to one breed or several breeds of dogs,” and instead focus on behavioral, or other non-breed specific criteria. Tex. Health & Safety Code Ann. § 822.047 (West 2010). 

The resolution approved by the ABA House of Delegates, and its accompanying report urge states, territories, and local governments to consider such breed neutral legislation.  Though the resolution does not have any enforcement powers, its report does recommend types of legislation that focus on the negligent behavior of dog owners, rather than the dogs themselves. For example, in St. Paul, Minnesota, after an owner has a dog removed from his or her care two or more times within 5 years due to dangerous behavior, they are no longer eligible for the dog license required to keep a dog in the city. St. Paul, Minn. Code of Ordinances § 200.02 (2009).  While the reach of the ABA resolution may be limited, it can serve as a support for changing laws in states that still allow for breed-specific legislation, and provide examples of how best to draft more neutral laws that protect the public while providing clear guidelines for dog owners. 

For more information about dangerous dog laws, try consulting these resources, available at the O’Quinn Law Library:

A lawyer's guide to dangerous dog issues (Joan Schaffner, ed., 2009) KF 390.5 D6L39 2009

David Farvre, Animal Law: Welfare, Interests, and Rights (2008) KF390.5.A5 F382 2008

Mary Randolph, Every Dog’s Legal Guide (2007) KF 390.5 D6R362007

Friday, August 3, 2012

Regulation Tracking: Part 2: Private Sites

In Part 1 of Regulation Tracking we looked at three free federal regulation trackers sponsored by the U.S. government.  In Part 2 we will take a look at some regulations trackers sponsored by private groups and see how they stack up against the ones sponsored by the government.

Openregs.com (www.openregs.com) is a project of the Mercatus Center at George Mason University.   The site is tabbed across the top with tabs for “Today”, “Agencies “, “Learn”, and “Regulatory Report Card”. The “Today” tab lists rules that have their comment period closing today, rules recently opened for comment, recently published final regulations, and recently proposed “economically significant” regulations.  On previous days I noted that they also list proposed and final rules. Along the side is section for “Popular on OpenRegs.com” and “Regulations in the News.”  The front page is very helpful, boiling down important matters that appear in the Federal Register to manageable categories and providing links to the actual regulation.  What I did not see is a link to that days Federal Register if you were interested in seeing the other material that appears, but is not listed on the web site. 

The site is directed at the citizen unsophisticated in the ways of the administrative state; this is evidenced by the tab which provides an introduction to what regulations are, who makes them, how they are made, and why they are important.  All of this is very helpful, but it must also be taken with a grain of salt because this site is not without an agenda.  The site’s sponsor, the Mercatus Center bills itself as “the world’s premier university source for market-oriented ideas.”  Translated this means that the Mercatus Center has a politically libertarian bent and thus views any type of government intrusion into the market as either wrong or down right illegitimate. Their view of government regulations is obvious from their choice of “Regulations in the News.” Out of five stories presented, four are critical of government regulations. Headlines like “Federal Regulation Strangles Chemical Security” and “Regulations are chocking small business engine of growth” are pretty obvious of a right/libertarian slant. There is also a “Regulatory Report Card” tab. This tab provides regulations that have a Mercatus.org Report Card. I have a feeling that very few regulations receive passing grades. The political slant of this site should be kept in mind when reading any of the commentary provided by the site’s sponsor. 

Openregs.com is useful as a short-cut to finding out what is going on in the world of federal regulations on a particular day, but be aware that added content may come with a particular world view.

Justia Regulations Tracker (http://regulations.justia.com) is part of the Justia family of web sites.  While Openregs.com focuses more on current awareness; Justia focuses more on searching the Federal Register. Justia allows searching back to 2005 across all agencies and allows narrowing of search by type of notice, ie Rules, Proposed Rules, Administrative Orders, Executive Orders, Notices, and Proclamations.  Justia also allows browsing by year and by individual agency. Another feature that Justia Regulations Tracker provides is the ability to set up an RSS feed allowing researchers to easily follow the Federal Register via Justia.  What I also noticed that Justia provides something that Openregs.com lacks; links to the “Reader Aids”. 
It is obvious that these sites fulfill two different missions. The Openreg.com site is excellent for finding out what happened today. Justia Regulations Tracker is better for reviewing the Federal Register past and present.  

I went back and reviewed the sites I mentioned in Part 1 of this series and I noticed how each of those sites tended to each do something  a little bit different, but together they give the researcher a complete picture of past, present, and future regulations. I think the two sites I have reviewed here fit into that picture, both add a little bit to the overall view of the Federal Register.  While it may be too much to recommend using all of these sites it wouldn’t be too much to say use Regulations.gov to check on comments, use Openregs.com to see what is happening today and use Reginfo.gov to see what is happening tomorrow, and use Justia Regulation Tracker to see what happened in the past. It’s nice when the public and private sectors can work together to get things done, isn’t it?

Wednesday, August 1, 2012

Lawyers Famous Not for Being Lawyers

There are many famous lawyers, and then there are people who went to law school and became famous for something besides practicing law. The names Howard Cosell and Bert Sugar come to mind (with the Olympics going on I must be fixated on sports). One of the most famous of the lawyers who became famous for something else besides law was born on this day in 1779. That person was Francis Scott Key, famous lawyer and author of the lyrics to the Star Spangled Banner. 

Key attended St. John’s College in Annapolis, MD and apprenticed in his uncle’s law office. During the War of 1812 Key found himself on a British ship attempting to obtain the release of Dr. William Beane who was a British prisoner. Key was forced to stay on the ship during the attack on Baltimore because he had become familiar with the disposition of the British forces. Key witnessed the bombardment of Ft. McHenry located in Baltimore Harbor and composed the poem “Defense of Ft. McHenry” the next day. The poem was published on September 20, 1814 and later became the national anthem by act of Congress in 1931. This is what we generally know about Francis Scott Key today. However, in his lifetime, Key was more famous as a lawyer than as a poet.

Key practiced law in the District of Columbia for many years before being appointed the United States District Attorney for the District of Columbia. Key argued many important cases, while in private practice and later as the D.C. District Attorney.  Some of his more famous cases involved  the construction of a bridge over the Potomac River and he was involved in a libel case that went all the way to the U.S. Supreme Court (White v. Nicholls, 44 U.S. 266). Key also participated in a case in which a Spanish slave ship was seized off the coast of Florida and the fate of the slaves was to be determined. The United States, asserting that the slave trade was illegal according to U.S. law sought the release of the slaves. The representatives of Spain and Portugal challenged this position asserting the slaves were the property of their citizens. In the Supreme Court Chief Justice John Marshall ruled against the United States, but in his opinion praised the advocacy of the attorneys representing the United States, including Francis Scott Key (The Antelope, 23 U.S. 66). Key was appointed District Attorney for the District of Columbia in 1833 in which he handled several high-profile cases and showed himself to be an outstanding public servant. As district attorney Key prosecuted the suspect in an attempted assassination of President Jackson. He was also sent, as a special representative of President Jackson, to negotiate a dispute between the State of Alabama and the federal government over land claimed by Alabama, but by treaty was to be given to the Creek Indians. 

His eulogy was delivered by Supreme Court Justice Thompson (because Key’s brother-in-law Chief Justice Roger Taney was unavailable) in which he praised Francis Scott Key thusly: 

Mr. Key’s talents were of a very high order. His mind was stored with legal learning, and his literary taste and attainments were highly distinguished, and added to these was a private character which holds out to the Bar a bright example for imitation. The loss of such a man cannot but be sincerely deplored.
In his own time Francis Scott Key was recognized as a poet, but as a lawyer he was famous.