"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, September 26, 2012

International Tax Law, 2nd ed.

Wolters Kluwer Law & Business has recently published the second edition of International Tax Law, edited by Andrea Amatucci, which discusses international tax law from the global perspective. This book, which consists of chapters authored by different legal scholars, begins with a discussion of the application of economic analysis to tax law, then provides an overview of tax law in general and covers administrative provisions and procedures related to tax law. International taxation is mostly based upon bilateral tax treaties that are designed to avoid the threat of double taxation (where a citizen residing in a foreign country is taxed by both that country and the home nation) along with issues related to tax collection procedures and the avoidance of the tax evasion. The chapter on double taxation conventions focuses on these treaties as well as the Vienna Convention on the Law of Treaties and the OECD (Organisation for Economic Cooperation and Development) model tax convention, which is the basis for tax treaty negotiations for most nations today. A separate chapter explores the commentaries to the OECD model tax convention. Other chapters discuss U.S. tax treaties, the need for a tax order in Europe based on the ability to pay, European Union tax law, among other topics. You can find International Tax Law in the law library.

Tuesday, September 25, 2012

Law Library Brown Bag Series

Each semester the law library presents a series of presentations on legal research topics. These presentations are held at 12 noon on Tuesdays and Wednesdays in Room 4 BLB. We will be offering the following sessions during the Fall 2012 semester:

1. Federal Legislative History Research
Tuesday, 9/25, Wednesday, 9/26, 12:00-12:45 P.M.
Katy Stein, Reference and Research Librarian

2. Researching Federal Income Tax Law
Tuesday, 10/2, Wednesday, 10/3, 12:00-12:45 P.M.
Chris Dykes, Reference and Research Librarian

 3. Federal Administrative Law Research
Tuesday, 10/9, Wednesday, 10/10, 12:00-12:45 P.M.
Matt Mantel, Reference and Research Librarian

4. Advanced Databases Search Strategies
Tuesday, 10/16, Wednesday, 10/17, 12:00-12:45 P.M.
Emily Lawson, Reference and Research Librarian

5. Power Searching on Westlaw, Lexis, and Bloomberg Law
Tuesday, 10/23, Wednesday, 10/24, 12:00-12:45 P.M.
Dan Baker, Reference and Research Librarian

Chris Dykes
Chair, Law Library Brown Bag Series Committee

Tuesday, September 18, 2012

On the Different Types of Lexis Sources

A couple of months ago, the good people at Lexis Advance finally added pre-search source selection functionality. And that's a good thing! I would like to applaud them for taking this step toward making Lexis Advance as good a legal research tool as lexis.com. Unfortunately, I don't believe they went far enough with this step, but to understand my criticism, you must first appreciate the different types of sources that LexisNexis has.

Five Types of Sources

Officially, there are only two types of sources available through the LexisNexis legal research systems: Individual Sources and Group Sources, the latter being merely a collection of the former. To prove this point, if you were to go to their Searchable Directory of Online Sources, you would notice that, at the bottom of the search form, it asks whether you want to "Display Individual Sources" or "Display Individual and Group Sources". However, unofficially, there are three other types of sources, and I would like to describe in more detail each type of source.

The Individual Source: In normal parlance, an "Individual Source" is usually thought of as the smallest source available, and in most instances, that is correct. For example, the source named U.S. Supreme Court Cases, Lawyers' Edition is an Individual Source that contains, as its name suggests, only US Supreme Court decisions; there is no smaller source.

Now, let's examine a source such as 9th Circuit - US District Court Cases. At first blush, most would consider this a Group Source, considering it contains the federal district court decisions from nine different states (plus those from two territories). But it is, in actuality, an Individual Source. [If you don't believe me, check it out yourself: Go to the Searchable Directory; select Cases under Publication Types and US Federal District Courts under Regions of Coverage; leave it set to Display Individual Sources; and click Submit. The district-courts-by-circuit sources are at the bottom of the list.] I have no idea who decided this was an Individual Source, but its roots go back to the dark ages of the Library;File system of the old Lexis software. Yet all of this might make you wonder: If district-courts-by-circuit sources are Individual Sources, what are state-specific federal district court sources?

The Partial Source: Sources such as TX Federal District Courts are officially Individual Sources, but they are really Partial Sources. For example, if you run a search in TX Federal District Courts, you're actually running a search in 5th Circuit - US District Court Cases, but the system automatically knows to display only those results from the Texas district courts. From the end-user's point of view, the difference may be irrelevant, but the importance of the distinction between Individual Sources and Partial Sources will become apparent below.

The Group Source: As mentioned above, the Group Source (generally) is simply a collection of Individual Sources, making it easier to search through multiple, yet similar, Individual Sources at one time. For example, the TX State Cases, Combined source is a Group Source containing four Individual Sources: TX Court of Appeals and Court of Civil Appeals Cases from 1892, TX Court of Criminal Appeals Cases from 1879, TX Supreme Court Cases from 1840, and TX Unpublished Cases from 2004. Some Group Sources may combine very few Individual Sources, while others may combine dozens or even hundreds of sources; for example, the TX State Cases, Combined source, as just mentioned, combines four distinct Individual Sources, while the US Law Reviews and Journals, Combined source searches nearly 700 different Individual Sources.

The Special Group Source: Again, officially, a Group Source is a Group Source; there is no official distinction. But there is also no official distinction between Individual Sources and Partial Sources in any LexisNexis documentation that I am aware of. Yet, Partial Sources do exist. What makes a Group Source a Special Group Source is the inclusion of Partial Sources. State-specific federal-and-state-cases sources are good examples of Special Group Sources. For example, the TX Federal & State Cases, Combined source contains the four Individual Sources included in TX State Cases, Combined, plus the U.S. Supreme Court Cases, Lawyers' Edition source and the 5th Circuit - US Court of Appeals Cases source, but it only contains "Selected Documents" from the 5th Circuit - US District Court Cases source, namely those from Texas federal district courts. Again, the relevance of this type of source will become apparent shortly.

The Mega Source: Finally, there are the Group Sources that are best imagined as combining several Group Sources; these are the Mega Sources. For example, Federal & State Cases, Combined is the quintessential Mega Source; its software designation was even MEGA;MEGA! Now, to be fair, these sources technically contain all of the relevant Individual Sources (in this example, for caselaw), and therefore are technically and officially merely Group Sources. But it's much simpler to list the relatively few Group Sources that cover the same territory rather than listing the hundreds of Individual Sources they make up.

Why Is This Important? What Does It Have To Do With Lexis Advance?

As mentioned at the outset, Lexis Advance recently added the ability to choose specific sources to search in rather than searching everything at once. And this is great! If you know you need cases from the 5th Circuit Court of Appeals or articles from the Houston Law Review, why should you search everything and then sift down to your desired source?! But, as I hinted at the beginning of this post, there is a problem: You can only choose Individual Sources to search!

At first glance, this makes complete sense. Why waste the space adding in the Group Sources when they can be recreated by selecting the appropriate Individual Sources or, in some instances, by using the Pre-Search Filters. For example, if you want to search only in Texas state cases, you can either choose the four Individual Sources (if they're all needed; if you don't need criminal cases, you could leave out the Texas Court of Criminal Appeals source) or you could use the Pre-Search Filters to limit your search to Content Type=Cases and Jurisdiction=Texas. They definitely didn't need to waste space by adding in the Mega Sources; that's what the Pre-Search Filters were designed to replicate.

But there is one problem with this: They only included the Individual Sources; they did not include the Partial Sources nor the Special Group Sources. Accordingly, if you want to search TX Federal District Courts or TX Federal & State Cases, Combined, it still cannot be done at this time!

Yes, I work in an academic setting and, therefore, am not the company's main target. But wouldn't practitioners want, indeed need, to focus their search efforts in just the Texas federal district courts? Is it so strange to imagine that practitioners would want to search in all relevant federal and state courts at one time, or has the Erie doctrine suddenly become a nullity?

Granted, once segments are introduced to Lexis Advance, this "problem" will (hopefully) go away. [And I've been guaranteed segment-searching will be added sometime in the future; but then again, when I was promised pre-search source selection would be added to Lexis Advance, I mistakenly assumed that all sources available through lexis.com would be added, so we'll see.] But considering the whole point behind Lexis Advance was to make searching easier, not harder, for practitioners whose time is precious, wouldn't making at least the Partial Sources available, if not all lexis.com files, accomplish that goal?

Thursday, September 13, 2012

A Brief Cartoon Interruption

They say a picture is worth a thousand words, and one lawyer tested that notion last week when he filed a five-page cartoon as his amicus brief in the U.S. District Court for the Southern District of New York.  The amicus brief was written by Bob Kohn, an expert in music licensing law and chairman of RoyaltyShare, Inc. The brief was filed in response to a proposed settlement offer in a lawsuit initiated by the U.S Justice Department, against Apple, Inc. and five additional publishers.  Apple and the other publishers were accused of illegally colluding to set prices for electronic books. Kohn’s brief argues (rather, illustrates) that since Amazon sold e-books below marginal cost, horizontal price fixing here is legal as it countervails Amazon’s predatory pricing, and creates a more efficient market. As Kohn believes the Justice Department’s conclusions are not reasonable, the court cannot hold the settlement to be in the public interest. 

Kohn conceived of this unusual brief after he was given permission to file an amicus brief with the court by U.S. District Judge Denise Cote, who limited him to five pages, instead of the usual twenty-five page limit allowed by local rules. The brief includes a coversheet and table of authorities, with citations made in the margins of the cartoon’s panels- no Bluebook formatting, though.  You can read the entirety of the brief here, note the proper use of 1” margins and 12-point font; Kohn took pains to ensure his cartoonish brief complied with court rules. No word yet on whether the the court was persuaded by Kohn's artistic interpretation of the law.

If you’re interested in finding out if Kohn’s more traditional forms of legal writing are as clear and engaging as his brief, check out his book, Kohn on Music Licensing, available at the O’Quinn Law Library (KF 3035.K64 2010).

Tuesday, September 11, 2012

Shoes and the Second Circuit

Law and high fashion met last week when the United States Court of Appeals for the Second Circuit held that the French show designer Christian Louboutin has an enforceable trademark for the use of red outsoles when the shoe’s upper is a contrasting color. 

For those unfamiliar with Louboutin’s creations, they have become the “it” shoe among celebrities from Sarah Jessica Parker (whose Carrie Bradshaw character made the shoes a household name on “Sex and the City”), to Jennifer Lopez, who released a single named after the designer shoes,“Louboutins,” in 2009. First popularized by Princess Caroline in Monaco in 1991, the shoes currently retail for between 500 to 6,000 dollars a pair.

Louboutin is far from the first to popularize red heels and soles for high end shoes.  According to Phillip Mansel’s Dressed to Rule (available at the M.D. Anderson library, GT1754 .M36 2005), Louis XIV favored the color as well, even passing an edict forbidding all but the noble-born from wearing red heels. As a painted sole will wear and scuff easily should it interact with dirt or pavement, its fragility makes it an enduring symbol of wealth and luxury.  

In the case before the Second Circuit, Christian Louboutin first sought to enjoin Yves Saint Laurent from selling its monochrome line of heels in red (also available in purple, green, and yellow). The red Yves Saint Laurent shoes were accused of infringing on Louboutin’s mark, which protects “a lacquered red sole on footwear” according to its trademark filed with the U.S. Patent and Trademark Office. The district court denied the injunction on finding that color was protectable only when it “acts as a symbol that distinguishes a firm’s goods and identifies their source, without serving any function.” In fashion, the court explained “single color marks are inherently ‘functional’ and that any such registered trademark would likely be held invalid.” Christian Louboutin S.A. v. Yves Saint Laurent Holding, Inc., No. 11-3303-cv, 2012 WL 3832285, at *3 (2d Cir. Sept. 5, 2012). 

The Second Circuit reversed the District Court’s decision.  In its analysis, the court examined (1) whether or not the mark is distinctive; and (2) if distinctive, does the defendant’ use of a similar mark cause confusion? While the color red is not inherently distinctive, when used in the context of a shoe’s outsole, it came to identify the source of the product rather than the product itself. The court found that Louboutin’s mark was distinctive, as it had acquired a secondary meaning “as a distinctive symbol that identifies the Louboutin brand.” Christian Louboutin, at *12. But, the court further found that the mark only extends to uses where the red sole is used on a non-red shoe. The distinctiveness of Louboutin’s mark is dependent on the “pop” of color that comes from the contrast between the sole and the upper.  Since the Yves Saint Laurent shoes in question were completely monochromatic, red from upper to sole, they did not infringe on the Louboutin mark, so the issue of potential confusion was not reached.

Of course, a distinctive mark that identifies a luxury brand will often be copied by counterfeiters, and the simplicity of Louboutin’s mark is easy to copy. Just in August, U.S. Customs and Border Protection confiscated 20,457 pairs of counterfeit Christian Louboutin shoes at the Los Angeles/Long Beach seaport. And at least one company offers a way for less well-heeled customers to “Louboutinize” their heels, with red adhesive stickers that you can fit to your shoes for that signature trademark look. 

For more about trademark law, here a just a few of the resources available at the O’Quinn Law Library:

Gilson on trademarks / Anne Gilson Lalonde ; Karin Green; Jerome Gilson. KF3180.G542  

Intellectual property : patents, trademarks, and copyright in a nutshell / by Arthur R. Miller, Michael H. Davis.

Internet domain names, trademarks and free speech / Jacqueline Lipton. K564.C6L57 2010

McCarthy on trademarks and unfair competition / J. Thomas McCarthy. KF3180.M29 1996

New practitioner's guide to intellectual property / David R. Gerk, John M. Fleming.  KF2979.G47 2012

Understanding trademark law / Mary LaFrance. KF3180.L34 2009

Cinnamon buns, marching ducks and cherry-scented racecar exhaust: protecting nontraditional trademarks / by Jerome Gilson, Anne Gilson LaLonde. KF3180.G529 2005

Monday, September 10, 2012

Reading the Law

As a new school year begins I would like to wish everyone a happy belated Siyum HaShas, a very important, if obscure, law related holiday. What is this holiday you may ask? It is the celebration of the end of the seven year cycle of the Daf Yomi which occurred on August 1, 2012. Still not ringing a bell? This is the celebration to mark the end of the cycle of studying one page of Talmud* every day for seven years. That is 2,711 pages of Babylonian Talmud. That’s a lot of law!

The Talmud is the so called “oral law” (as opposed to the written law, i.e. the first five books of the Hebrew Bible). The Talmud covers everyday subjects as well as ethics, philosophy, customs, and history. The text itself is written as discussions and arguments amongst a variety of learned rabbis who sometimes arrive at a solution, and sometimes do not. One page of Talmud is called a “daf”, but a page of Talmud is more than just rabbinical arguments. Each page also contains multiple commentaries (or glosses) on the main text, the most famous of these was written by the rabbi known as “Rashi” (like Brazilian soccer players, great rabbis only need one name).  The main text and the commentaries are read each day until all 2,711 pages are completed. 

The seven year cycle began in 1923 as a way of unifying the Jewish people. It must have worked because one celebration of the completion of the cycle took place at a packed house at MetLife Stadium in New Jersey (capacity: 100,000. It was a sell-out).  With the coming of the internet participation is very easy, assuming you want to read a page of Talmud every day for seven years. There are a variety of English Talmud translations available online. TheDaf Yomi Advancement Forum has the pages and a variety of study aids in English which makes it like Examples and Explanations: Talmud. Swdaf.com provides downloadable daily pages in a variety of formats. 

If reading a legal code every day for seven years sounds like a great idea perhaps we can start a movement to read all 13,458 pages of the tax codehttp://www.lessgovsd.com/?p=311. At one page a day it would only take around 36 years. Who is with me on this?

*This refers only to the Babylonian Talmud, not the Jerusalem Talmud.

Tuesday, September 4, 2012

You Look’in for Something?

The Cornell Law Library is a unique place; did you know it is part of Cornell’s main library? It is. It is also home to the Legal Research Institute which provides full text of the U.S. Code, the Code of Federal Regulations, and other sources of primary law.  They also provide something that I just discovered and is now the newest tool in my research tool-box:  the Legal Research Engine.  

The Legal Research Engine is a simple page with four search boxes; 1) Find Legal Research Guides, 2) Search the Legal Internet, 3) Search Academic Blawgs, and 4) I Want it All!. This is really an elegant lay- out by virtue of the search engine focusing the search before it has even commenced. The searches contemplated in the boxes for Legal Research Guides and Academic Blawgs are obvious, but they make interesting choices (my one caveat is that the Academic Blawgs do not include our own Nota Bene). If you are looking for a guide to researching a particular area of law, or are looking for comments on a breaking legal news story these are excellent resources and they solve problems that crop up quite often.  The box for Search the Legal Internet is really a search of InSITE, a current awareness service developed by Cornell law librarians who select and evaluate legal web sites. I made a brief examination of InSITE and it is interesting. Cornell’s law librarians have searched the internet for law related web postings and have abstracted them and then categorized the postings by practice area. InSITE is definitely worth a future blog post of its own.  I find the final search box, “I Want it All!” a little out of place.  While the other search boxes are all law related (of course) they are really gateways to very specific information. While being able to search across these disparate areas is nice, it lacks the focus that the other three search boxes possess.

Saturday, September 1, 2012

Supreme Court Pronunciation Guide

Compagnie Générale Transatlantique v. Elting, 298 U.S. 217 (1936)?  Kawaauhau v. Geiger, 523 U.S. 57 (1998)?  Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506 (1938)?  Some Supreme Court cases are just difficult to pronounce.  To help, Yale Law School recently created the Pronouncing Dictionary of the Supreme Court of the United States.  This resource provides information about how to pronounce foreign and other difficult party names from hundreds of Supreme Court cases.  For each case, the dictionary has an Americanized pronunciation based on the Garner Pronunciation Guide from Black’s Law Dictionary as well as a pronunciation using the International Phonetic Alphabet.  Audio of each pronunciation is provided as well.  

For more information about this resource, including the pronunciation notes, visit the dictionary’s website.