"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, February 27, 2013

Arbitration Rules, Yes There’s An App for That Too!


The American Arbitration Association has created an app with helpful information about arbitration and mediation. The app provides users with access to AAA arbitration and mediation rules for a number of practice areas including Commercial, Construction, Real Estate and Environmental, Government and Consumer, International, and Labor and Employment. It also has information about the due process protocols for a variety of topics.

This app is free and available for iOS devices such as iPhone and iPad as well as for Android devices. To download the app, visit the iTunes Store or GooglePlay.

Saturday, February 23, 2013

Copyright in Sherlock Holmes? It's a Mystery!

Here's a treat for those who love Sherlock Holmes (and who doesn't?): Back on Valentine's Day, an expert on Sir Arthur Conan Doyle's famous character filed suit in Illinois federal court seeking a declaratory judgment that all copyrights in the character, his sidekick Mr. Watson, and any other characters or character traits that appeared in any of the works published in the United States before January 1, 1923 have expired and enjoining the Doyle estate from intefering with the upcoming publication of a book of new and original stories based on those characters.

According to an article from the Hollywood Reporter about the lawsuit, Doyle's heirs, under the aegis of a company called Conan Doyle Estate Ltd, are objecting to the new book and insisting that a license agreement be procured under threat of an infringement claim. Apparently, although the copyright to all of Doyle's works expired in the UK in 1980 (see ¶ 18 of the complaint), the estate contends that copyright in the character Sherlock Holmes remains in effect in the US until 2023! That would be some feat for a character first introduced in 1887!

Also working against the estate is a 2004 New York federal court opinion that, in dicta at least, determined that only nine works of Doyle's retained copyright protection under US law.

But wait! The recently-filed complaint concedes that TEN Doyle works (or at least any original aspects of those works) are still protected by US copyright laws! Is it nine? Is it ten? Is it all 60? Considering how unnecessarily convoluted, confusing, and restrictive the current US copyright laws are (thanks a lot, Sonny Bono Copyright Term Extension Act!), I wonder if even Sherlock Holmes could definitively solve this mystery. The game is afoot!

Monday, February 18, 2013

Mississippi Ratifies 13th Amendment! Who Cares?

In the last couple of days, a common fluff piece making the news rounds, just in time for Presidents Day, deals with the fact that the state of Mississippi finally ratified the 13th Amendment to the Constitution of the United States of America. Or, to be accurate, they ratified it back in 1995, but since the appropriate documentation was never submitted to the proper federal authorities, that ratification was not "official".

While some may find it interesting that the movie "Lincoln" inspired a person, a recent immigrant from India no less, to research the 13th Amendment's ratification history only to discover that Mississippi had not yet officially ratified it, that state's ratification itself is, outside of its public relations value, absolutely meaningless.

Per Article V of the US Constitution, a proposed amendment to the Constitution becomes a part of that esteemed document when it has been ratified by three-fourths of the states. In other words, once the final state needed to put the amendment at (or over) three-fourths of the states ratifies the amendment (currently 38 out of 50), it becomes "the supreme Law of the Land". And once it has been adopted, and becomes the supreme law of the land, ALL of the states are subject to its terms, even those states that have not ratified it!

Accordingly, once Georgia became the 27th state to ratify the 13th Amendment (there being, at the time, 36 states), the Amendment was adopted and became a part of the Constitution. Even if the remaining nine states never took the step of officially ratifying the 13th Amendment, they would still be subject to its provisions.

I mean, if this is such big news, where is the outcry regarding the ratification status of the 24th Amendment? The 24th Amendment, the one prohibiting poll taxes in federal elections, has been ratified by no more than 42 states!*

[* According to The U.S. Constitution Online (http://www.usconstitution.net/), only 40 states have ratified it, whereas the Wikipedia entry on the 24th Amendment lists 42 states. The two states in dispute are Alabama and Texas. In the 2009 Regular Session of the Texas Legislature, House Joint Resolution 39 post-ratifying the 24th Amendment was passed by the House on May 4, passed by the Senate on May 22, reported enrolled on May 23, and filed with the Texas Secretary of State on May 26. Similarly, it appears that the Alabama Legislature passed HJR 14 ratifying the 24th Amendment during that legislature's 2002 Regular Session. However, the Proposal and Ratification notes following the text of the Amendment in the 2006 edition of the United States Code does not mention Alabama's ratification, nor are the ratifications of either Alabama or Texas mentioned in any of the Supplements. Therefore, it could be that these resolutions were never officially submitted to the US Archivist, much like Mississippi's forgotten post-ratification of the 13th Amendment.]

That means that at least eight states, including Mississippi, have not ratified the 24th Amendment! Why aren't we freaking out about that? Because their ratifications would be meaningless, except as PR stunts. Just because they haven't ratified the 24th Amendment, that doesn't mean they are somehow allowed to prevent citizens from voting in federal elections for failure to pay a poll tax. Because the requisite 38 states ratified it back in the 1960s, the remaining states are subject to its terms as well, making any "post-ratifications" superfluous at best.

Friday, February 15, 2013

History of Modern Same-Sex Marriage Litigation

On March 26 and March 27, the United States Supreme Court will hear oral arguments in two cases involving same-sex marriage. The first, Hollingsworth v. Perry, addresses California’s Proposition 8, and will ask the question of whether or not the 14th Amendment prohibits the State of California from defining marriage as the union of a man and a woman. The second, U.S. v. Windsor, will address whether or not the federal Defense of Marriage Act violates the equal protection guarantees in the Fifth Amendment’s due process clause, as applied to same-sex couples legally married in the laws of their own state. The resulting opinions of the Court in both cases will likely have long lasting effects on Constitutional law in the United States as well as the rights of same-sex couples throughout the nation. A new book in the law library's collection, From the Closet to the Altar: Courts, Backlash, and the struggle for Same-Sex Marriage, by Michael J. Klarman (KF 539 .K58 2013) provides the history of  both the events and litigation that have lead to our nation's current outlook on same-sex marriage.

Klarman begins with the 1950s and 1960s, when every state criminalized private, consensual sex between same-sex partners, and moves to the birth of the gay rights movement, the Stonewall Rebellion in 1969. From there, he continues to the 1990s, when the Hawaii Supreme Court in Baehr v. Lewin declared that a law restricting marriage to a man and a woman constitutes an impermissible sex classification, and the state and federal "defense of marriage acts" that followed. As Klarman continues in this style, presenting court victories for same-sex partners, only to be followed by political backlash, he provides tremendous detail and color, giving the reader a historical perceptive and framework for considering how the nation's opinion on this once taboo issue has changed. His consideration of triumphs and setbacks also give the reader an insiders knowledge of the litigation and political efforts, and the strategies behind them. For anyone interested in a well-researched, thoughtful look at the recent history of what is sure to become one of the most remembered constitutional law issues of this century, and the most anticipated Supreme Court rulings, From the Closet to the Altar is highly recommended.

Thursday, February 7, 2013

“These Go to Eleven”



On February 7, 1795 the required three-fourths of the states ratified what would become the Eleventh Amendment to the Constitution (although it wasn’t declared part of the Constitution until January 8, 1798). The Eleventh amendment to the Constitution is obviously the first amendment added to the Constitution after the ratification of the Bill of Rights, and began the true amending of the Constitution. From this point forward the Constitution would be amended to cure oversights and problems unanticipated by the Constitution’s drafters. The history of this amendment shows that the new nation was slowly maturing. 

The Eleventh Amendment was conceived as a response to the Supreme Court decision in the case of Chisholm v. Georgia (2 U.S. 419 (1793)). After the Revolutionary War Alexander Chisholm, representing the estate of Robert Farquhar, filed a lawsuit against the state of Georgia for unpaid debts incurred for supplies purchased during the recently ended war. Many other states owed money for war debts and they were nervous if Chisholm won his case in federal court.  The question of whether Chisholm could sue in federal court went to the Supreme Court. Georgia was so upset at being hauled into court that they didn’t even send a lawyer to represent them. The court held for Chisholm, allowing him to sue, and a landslide of lawsuits were filed against a variety of states. 

Congress realized this result could potentially bankrupt the states and took action. The Chisholm case was decided on February 18, 1793; on March 4, 1794 Congress sent an amendment to the states for ratification. The final state voted for ratification on February 7, 1795. 

Although the Eleventh Amendment’s immediate purpose was overturning Chisholm, it also acted to clarify federal court jurisdiction as laid out in Article III of the Constitution and in a way ratified the sovereign immunity of the States.  Citizens of one state can’t use the federal court system to sue the government of another state. Foreign citizen can’t use federal courts to sue a state government. A state government can’t be forced into federal court against its will; being a sovereign it can only be sued if it consents to the lawsuit. 

While the Eleventh Amendment may seem obscure, and not as sexy as those that make up the Bill of Rights of the Civil War amendments, its implications are far reaching in the areas of federalism and federal jurisdiction. Take some time today to celebrate the Eleventh Amendment, because after all, it’s bigger than ten.

Monday, February 4, 2013

(Supreme) Mistakes Were Made



What do Constitutional law professors do when the Supreme Court is not in session?  This past year it seems they talked about mistakes the court has made in the past. This past year two different law reviews held symposiums on, depending how they titled the issue, “Supreme Mistakes” (volume 39, no. 1 Pepperdine Law Review) or “The Worst Supreme Court Case Ever(?)” (volume 12, no. 3 Nevada Law Journal).  If one wanted to go a little further back you could include Prof. Jamal Greene’s article “The Anticanon” (125 Harv. L. Rev. 379 (2011) as also covering the same territory.


As you would expect the articles spend a great deal of effort explaining exactly what makes a bad Supreme Court opinion and why the opinion that particular author chose is the worst. The Pepperdine symposium is novel in that it has an author lay out the reason why an opinion is bad and then another author defends the opinion in question. Pepperdine’s parade of horribles is made up of the usual suspects: Dred Scott, Plessy, Buck v. Bell, Korematsu, and surprisingly, Erie v. Tompkins(!) Professor Greene’s list is similar with the exception that Buck and Erie are left out and Lochner is included.  None of the cases discussed at the Pepperdine symposium are startling for being on the list. The articles defending each one become rather redundant; except for Korematsu the best reason these cases are not so bad is that they all result from the particular historic moment which birthed them. Korematsu has that defense as well as the historic deference the court has been willing to extend to the President in his role as Commander-in-Chief and the pass the President receives during war-time.  In the closing essay of this issue Professor G. Edward White tells us that the defense of historic context is not good enough.  A truly terrible case cannot only be horrible historically, it must have been considered bad at the time it was handed down. 
 

The Nevada Law Journal’s symposium is a little more open-ended. None of the usual suspects appear; in fact few well-known cases are listed. The familiar ones include Bush v. Gore, Ashcroft v. Iqbal, and Hustler v. Fallwell.  To my mind the fact that these article focus on more obscure cases and the reasoning (or lack thereof) behind them make many of their choices as the worst Supreme Court case more convincing. The stories and rationales are more personal to each of the authors. The reasons provided for why each case is the worst varies as much as the cases themselves. Some are considered to be the worst due to the result, some for reasoning, and still others for just how the court handled the case.  Personally my favorite is Carnival Cruise Lines v. Shute (the only case selected by two authors) in which the court upheld a choice-of-law forum printed on the cruise passenger’s ticket. I like it because it involves three subjects I did well in; Civil Procedure, Contracts, and Constitutional law, and I like cruises. 

There is no doubt that criticizing and critiquing the Supreme Court is a constitutional scholar’s greatest joy; the equivalent of a sports fan second-guessing his favorite team’s manager.
 

Friday, February 1, 2013

Mastering Partnership Taxation

Partnership taxation is perhaps the most challenging area of tax law to learn but the law library has some materials that will help those trying to become proficient in the concepts of this difficult subject.  Mastering Partnership Taxation (KF6452.L39 2012), recently published by Carolina Academic Press and authored by Professor Stuart Lazar, provides a thorough overview and is ideal for graduate tax students.  This source begins with an overview of the Internal Revenue Code's Subchapter K (26 U.S.C. §§ 701-771)  that has the provisions that deal with partnership taxation, then the author follows the life of the partnership from formation until liquidation, covering the tax issues involved. Chapter 9 contains a practical master checklist that summarizes the main points from all the chapters and there are tables of relevant authorities and an index. This book is now available on the new titles shelf in the library across from the circulation desk.

There  are a number of other sources that the law library has that focus on partnership taxation: