"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

Monday, October 29, 2012

Primer on the Texas Law of Oil and Gas

The revised fourth edition of Primer on the Texas Law of Oil and Gas by Joseph Shade has been published and is now available on the new titles shelf in the law library. This book, designed for both students and attorneys desiring an overview of Texas oil and gas law, covers ownership issues such as the rule of capture, correlative rights doctrine, oil and gas leases, title and conveyances, conservation, pooling, and contracts among other topics. The author makes a difficult and important subject that encompasses a mixture of contract and property law easy to grasp by providing enough information (arranged in outline format) for one to obtain a basic understanding of Texas oil and gas law while using examples and illustrations to help the reader to follow key concepts.  A glossary of oil and gas terms, a sample oil, gas, and mineral lease  form, and technical supplement are included in the appendices.

Wednesday, October 24, 2012

Some Thoughts About Bloomberg Law

Today, I thought I'd discuss some cool aspects about Bloomberg Law (or BLaw), the latest attempt to compete against the West/LexisNexis duopoly's control of online legal research. Before I begin, however, I should make some clarifications, especially considering my critique of Lexis Advance when it was first released.

First of all, I have not delved too deeply into Bloomberg Law yet; accordingly, these are very superficial comments. Secondly, BLaw is not being rolled out as a replacement for a far superior Bloomberg product and, therefore, I have nothing to compare it to (other than competitor products). Similarly, because Bloomberg doesn't have an older product for me to have developed an appreciation of, I really don't have any attachment that might lead me to examine BLaw more closely and more passionately. In other words, although I am in favor of more competition in the online legal research service market, I am not emotionally invested in BLaw and don't really care whether it succeeds or not.

So don't expect a Lexis Advance type diatribe from me here (at least not yet). Instead, I'd like to point out a few things about BLaw that I think are cool and offer a few suggestions for where they can improve it in later releases.

Connectors on Bloomberg Law

The first thing I really like is how they've incorporated flexibility into the connectors the system recognizes. Of course, BLaw offers it's own version of some of the usual connectors. For example, where you might use /10 or w/10 as a "within 10 words" connector on Westlaw or lexis.com, BLaw's version would be N/10; similarly, BLaw's version of the "within the same sentence" connector (/s, w/s, or w/sent) is S/, and its version of "within the same paragraph" (/p, w/p, or w/para) is P/. However, if you are a Lexis or Westlaw user moving over to BLaw, you can (for the most part) keep using the connectors you're comfortable with, and the BLaw system will recognize it. (I say "for the most part" because some connectors, such as w/seg on lexis.com, are too unique, and BLaw does not seem to recognize the "preceding"-type connectors for sentences and paragraphs, such as pre/s on lexis.com or +p on Westlaw.)

Universal Characters

When searching in legal content on Bloomberg Law, just as in Westlaw or lexis.com, you can use universal characters to help retrieve variations on a word. As with the other two services, the asterisk (*) serves as a wildcard, or single-character placeholder, and the exclamation mark (!) serves as a root expander. However, BLaw explicitly points out that, on that service, you can also use the exclamation mark in the middle of a word as a multiple-character placeholder!

I think this is very cool, but it also requires me to admit some ignorance on my part. I thought this feature was unique to BLaw, but it is not: lexis.com also allows this use of the exclamation mark. And, as a former LexisNexis customer support representative, I am ashamed to admit that I did not know this! Even the lexis.com Help screens hide this use, stating only: "Use an exclamation mark (!) to find a root word plus all the words made by adding letters to the end of it." (As an aside, the asterisk, not the exclamation mark or question mark, serves as a multiple-character placeholder on Lexis Advance.)

But it's not all rosy in BLaw (in this blogger's humble opinion). For some reason, the news sources on BLaw utilize a different set of universal characters: Here, the question mark (?) is the wildcard and the asterisk is the root expander, except that this root expander cannot be used in the middle of a word as a multiple-character placeholder. Why they decided to create two different sets of universal characters is beyond me!

Frequency Commands

Just like Westlaw and Lexis, Bloomberg Law allows searchers to utilize an AT LEAST frequency command (recognizing both ATLx and ATLEASTx). However, unlike the other two services, BLaw also offers an opposite command: The AT MOST command. Whereas the ATLx command helps a researcher find documents that deeply discuss their issue, the ATMx command allows the researcher to find documents where a particular term is used, but where it's not the focus (or not the only focus) of discussion. How useful this is in practice, I don't know, but I think it's cool nonetheless.

What's Missing?

Bloomberg Law includes most of the staples of quality Terms and Connectors searching, but there are a few tools that I hope they will add in the future. First of all, I would like to see them add case sensitivity commands (such as CAPS, ALLCAPS, and NOCAPS) as well as commands that allow the searcher to control whether singular or plural forms of terms are retrieved. Also, I would like to see them add a "search within results" functionality much like the FOCUS feature in lexis.com or the Locate feature in Westlaw. The ability to narrow a results set with additional terms (as opposed to post-search filters) instead of doing another search is incredibly useful to experienced researchers.

Bloomberg Law is a good start, but I hope they keep adding functionality to the product.

Friday, October 19, 2012

Same-Sex Marriage, DOMA, and the Supreme Court

On Thursday, the Second Court of Appeals in New York found, in a 2-1 ruling, that the federal Defense of Marriage Act (DOMA) is unconstitutional. Windsor v. U.S., 12-2335-CV L, 2012 WL 4937310 (2d Cir. Oct. 18, 2012).

The Court of Appeals not only agreed with the trial court that Defense of Marriage Act violated the Equal Protection Clause for want of rational basis, but went a step further than any court had before. It additionally found that “. . . homosexuals compose a class that is subject to heightened scrutiny,” and applied intermediate scrutiny to its review of the statute. Windsor at 10. The facts of the case center around plaintiff Edith Windsor, whose same-sex spouse (the couple married in Canada) died, leaving her estate to Windsor. Due to section 3 of DOMA, which limits the definitions of marriage and spouse to heterosexual couples, the Internal Revenue Service could not recognize Windsor as a spouse for purposes of federal estate tax law. Defense of Marriage Act, §3, 1 U.S.C. §7 (2006). As a consequence of this, Windsor could not take advantage of the spousal deduction, and thus was required to pay $363,053 in estate taxes. 

Many commenters have suggested that this is the term when the Supreme Court will be forced to take up the question of same-sex marriage. It is likely that this case may provide a demand for certainty, as now there is a split among federal circuits as to the law’s constitutionality.  In fact, the case is already before the Supreme Court, and had been before the Second Circuit’s ruling. This is permissible under sections 1254(1) and 2101(e) of title 28 of the United States Code, allowing petition for certiorari to the Supreme Court before a final judgment or decree is rendered in a case, providing greater flexibility to the Court.
Windsor is not the only case involving same-sex marriage awaiting action from the Supreme Court. In addition to Windsor, three other cases questioning the constitutionality of the Defense of Marriage Act are currently awaiting conference, where justices discuss the cases and vote on new petitions for certiorari.  The other cases, Bipartisan Legal Advisory Group of the United States House of Representatives v. Gill, Department of Health and Human Services v. Massachusetts, and Office of Personnel Management v. Golinski are additionally pending before the court. Two additional cases, Hollingsworth v. Perry (appealing the finding that California’s Proposition 8, banning same-sex marriage in the state, is unconstitutional) and  Brewer v. Diaz (questioning whether Arizona law limiting state employee health care benefits to employee’s spouses and dependents, but not domestic partners in unconstitutional) are also awaiting conference.
You can follow what the Supreme Court will be deciding this term by viewing the Court’s argument calendars on its website. Arguments are already scheduled through December 5, so it is most unlikely the Court will hear any of these cases in advance of the presidential election. To find what cases are scheduled, or still awaiting conference, try using the helpful “Petitions We’re Watching” page at SCOTUS Blog, that lists the “hot topic” cases of term, and when they may be considered.  There is speculation that the Court may consolidate several of the cases involving the constitutionality of DOMA, giving the nation a definite answer about federal law and same-sex marriage.Whatever path the Court takes, the issue is ripe for decision.
To learn more about the Defense of Marriage Act and same-sex marriage in the United States, take a look at these resources available at the O’Quinn Law Library:

  •  Same-Sex Marriage and the Constitution / Evan Gerstmann. KF539.G47 2008

  •  Same Sex, Different States: When Same-Sex Marriages Cross State Lines / Andrew Koppelman. KF539.K67 2006

  • Same-Sex Unions Across the United States / Mark Strasser. KF539.S775 2011 

Suggested Subject Headings:
  • Same-sex marriage -- Law and legislation -- United States.
  • Same-sex marriage -- Law and legislation -- United States -- States.

Thursday, October 18, 2012

The Amazing, but True, Deportation Story of Carlos Marcello

Earlier this week, the University of Houston Law Center was fortunate to have as its guest Professor Daniel Kanstroom of Boston College of Law. An expert in immigration law, he is the Director of the International Human Rights Program, and he both founded and directs the Boston College Immigration and Asylum Clinic. Speaking as the guest of the Houston Journal of International Law’s annual Fall Lecture Series, Professor Kanstroom discussed issues raised in his new book, Aftermath: Deportation Law and the New American Diaspora. Professor Michael Olivas introduced Professor Kanstroom to the audience, and mentioned the fascinating tale of Carlos Marcello, which Professor Kanstroom wrote about in his chapter “The Long, Complex, and Futile Deportation Saga of Carlos Marcello,” in Immigration Stories, a collection of narratives about leading immigration law cases. My interest piqued, I read and was amazed by Kanstroom’s description of one of the most interesting figures in American legal history.

Carlos Marcello was born in Sicily and came to the New Orleans as an infant with his parents in 1910. After dropping out of school at age 14, Marcello likely became involved with the Mafia, and led a bank robbery in 1929. Marcello was caught, and was sentenced to nine to twelve years in the state penitentiary, but served only four before receiving a pardon from the governor (thanks to his father’s political influence).  After his release, Marcello continued his criminal career, leading to his arrest and sentencing for selling twenty-three pounds of marijuana to an undercover FBI agent in 1938. Undeterred, he was involved in gambling establishments, and continued his criminal enterprises, leading one reporter to call him “the crime czar of New Orleans” in 1950.

After invoking the Fifth Amendment in a hearing before the Senate’s Special Committee to Investigate Organized Crime in Interstate Commerce, he solidified his reputation before the government, and deportation proceedings were initiated against him. But, the government would have to wait more than thirty years before they truly had their man.

Deportation proceedings began in 1952, when Marcello was arrested pursuant to an immigration warrant stemming from his 1938 marijuana conviction. After he was found deportable by INS officers and the Board of Immigration Appeals, Marcello appealed through a habeas corpus petition in the Eastern District of Louisiana. The court found his due process argument lacking, and noted  that “no amount of due process would help him” anyway,  but did allow Marcello’s release on bail. The Fifth Circuit affirmed the District Court’s decision, and Marcello’s case reached the Supreme Court in 1955. 

In Marcello v. Bond, 349 U.S. 302, Marcello’s lawyer, Jack Wasserman, argued that the 1952 Immigration and Nationality Act under which Marcello was to be deported, deviated from the Administrative Procedure Act in its hearing requirements. This deviation was especially significant especially when it came to the separation of functions within an agency and its officers, a key provision of the APA, which would have demanded more separation in the roles of officers in adjudicating Marcello’s deportation hearing. The Supreme Court delivered a 5-3 verdict, affirming the decisions of the lower courts, and finding that Congress, in passing the Immigration and Nationality Act, expressly exempted the Act from the APA’s hearing requirements. A strong dissent followed from Justice Black, who stated “a fair hearing necessarily includes an impartial tribunal.” Outrage from the ABA and other groups followed, and the case helped lead to the reforms Wasserman argued for in new INS regulations promulgated in 1955 and 1956. 

Now, the time had come to deport Marcello. The INS only needed to find a country who would take him.  Marcello designated France as his choice country, only to be rejected. Italy also rejected his request (possibly after a large bribe to an Italian Court Official).  This left the United States with a problem, leading to more delay for Marcello’s deportation, along with Marcello’s continued court actions, further delaying his deportation. 

Marcello appeared again before a Senate committee to investigate labor and corruption in 1959, with Robert F. Kennedy as chief counsel. As he had done years before, Marcello again refused to testify on the grounds of self-incrimination. Two years later, Robert F. Kennedy had become Attorney General, and remembered Marcello. Marcello had obtained, for some reason, a fraudulent Guatemalan birth certificate (again courtesy of a large bribe), finally giving the U.S. a destination for his deportation.  On April 4, 1961, Marcello was arrested and flown, as the sole passenger, to Guatemala. Marcello managed to re-enter the United States shortly thereafter, through Miami, and continued in his ways. 

Once he returned, did Marcello mastermind a Mafia conspiracy to assassinate President Kennedy? Did he have any involvement in the assassination of Martin Luther King, Jr.? And how did he manage to stay in the United States for the remainder of his years, before dying in 1993? Did he ever pay for his crimes? You’ll have to read the rest of this immigration story to find out, but trust it is well worth the read. 

Be sure not to miss Professor Michael Olivas’s chapter  as well, “Plyer v. Doe, the Education of Undocumented Children, and the Polity,” about the case that tested whether Texas could enact laws denying undocumented children access to public schools.  Both these two stories, and the others in the book, bring the “exceptional” character of immigration law to life, and paint a picture of how our nation’s immigration laws have affected the lives of so many who have sought the American Dream. 

David A. Martin & Peter H. Schuck, eds., Immigration Stories, KF 4819 .A2 I564 2005.

Friday, October 12, 2012

New is Not Always Better -- It's Just New: Legislative Research edition

It would appear that the federal government no longer loves Thomas Jefferson. That is the only conclusion I can make as a result of the roll-out of the beta version of Congress.gov, the legislative web site created to replace Thomas.loc.gov, the Library of Congress’ legislative web site. 

As with everything new, Congress.gov bills itself as an improvement over Thomas.loc.gov, but not for the right reasons.  The first reason is that the new platform allows, “Simultaneously search all content across all available years.” Searching across all content for all years is a recipe for bringing back too many results and confusing the researcher. The preferred strategy is to search as narrowly as possible and expand out from there. The other improvement is that the new design will improve searching on mobile devices. I see two problems here; 1)Is this a real selling point? And 2) Why are you searching legislation on a mobile device? I can imagine you would do it if you worked on Capital Hill, and maybe if you are a lobbyist, but do normal people do this? I also notice a focus on Congressional member profiles.  While this is nice, the emphasis of the site should be on the work of Congress, not the Congress-critters themselves. I can go to several other sources, including, dare I say, Wikipedia, if I want to learn more about a current or former member of Congress, and get more complete coverage (the current site has partial coverage back to 1947).

I wouldn’t be doing my job if I didn’t comment on the site itself. The lay-out has improved with tabs replacing the plain links on Thomas.  A greater emphasis seems to be placed on how Congress works and explaining the legislative process to the regular citizen since a link is devoted to the legislative process with a video, but sad to say, but neither Morgan Freeman nor James Earl Jones narrate.  

This celebratory blog post from the Washington Post is quick to mock the old Thomas site, but doesn’t say why the new site is better, aside from its availability on mobile devices and the fact that  “the Congressional leadership has seen the site and has “been very supportive” of its development.” So if members of Congress are supportive it must be good?  The endorsement of members of Congress will not make me switch to the new site, that is, until Thomas.loc.gov is taken down.

Monday, October 8, 2012

TV News

"I’m just second hand news"
                                --Fleetwood Mac

In scholarly legal writing, as much as in legal practice itself, there is the law and there are the facts, the difference being that in practice the facts come along as part of the case, whereas in legal writing facts are often pieced together later. We are familiar with articles citing to newspapers, but why do we not see more citations to television news stories?  If this was a problem in the past it isn’t any more. If you are looking for a television news broadcast, it’s out there. 

The leader in this area is the Vanderbilt Television NewsArchive. The Television News Archive (TNA) has been around for some time and prides itself on its extensive coverage. The TNA contains recordings of the news broadcasts of national networks starting on August 5, 1968. The networks covered include ABC, CBS, NBC, CNN, and Fox News. The archive currently holds 1,014,055 records. The archive is searchable (both basic and advanced) and browsable by date. The news broadcasts are accessible through a lending program. After finding what you want you inform them of your selections which can either be a duplication of a particular broadcast or a more expensive compilation of several broadcasts. The completed video is then mailed in DVD format. Orders generally take a week to process and mail, and there is a fee involved which must be paid before an order is completed. 

If you can’t wait around for a DVD then the folks behind the Internet Archive have a solution. The have created a database of approximately 365,000 broadcasts from a wide variety of news outlets, not just national news broadcasts. Coverage includes Al Jazeera, BBC, C-SPAN, Univision, and many more. They only go back to 2009, but much of what they have is available in streaming format and also have DVDs available to borrow. 

My impression is that the Vanderbilt Television News Archive is the superior service, especially for historical studies. However, the value of the Internet Archive is its variety of sources and ability to stream video. If you are looking for something from a particular program from the last few years go with the Internet Archive. If you are looking for something more in-depth, or how a particular topic was treated over time go with the Television News Archive.