"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
In February of last year, the United States Government
Publishing Office (GPO) launched the beta version of govinfo.gov, which will eventually replace
the Federal Digital System (FDSys) as the GPO’s free, searchable repository of
government documents. Last week the GPO announced the addition of several new
features to govinfo. Here are some of the highlights:
New links allow you to click through from
Congressional Records details pages directly to related bills.
now displayed in the search results for applicable documents (which is very
helpful if you are searching for photos).
RSS feeds are now available for bills
and statutes, budget and presidential materials, congressional committee
materials, judicial publications, and several other types of government
To learn more about these and other recently added features, see
the latest release
Carolina Academic Press has recently published, Mastering Negotiation, by Michael R. Fowler. The author discusses choosing the best approach to negotiation including the positional bargaining and interest based negotiations. Pre-negotiation issues such as preparing for the negotiation, organizing preparation, and identifying goals are covered in Chapter 2. This book also looks at matters related to initiating talks such as setting an agenda and an constructive tone for the negotiation. There are other chapters that focus on working with interests, ethical negotiations, problem solving, closing the deal, and analyzing alternatives, leverage, and power, among other topics. This book is now on the law library's new titles shelf (located across from the reference desk) (K2390.F69 2017).
In 2016, the IC3 received 298,728 complaints of internet
crimes, with reported losses of over $1.3 billion.
Non-payment/non-delivery was the most widely reported category
of crime, with 81,029 victims. In this type of crime, a person either fails to
pay for goods received (non-payment) or takes payment for goods that are never
Texas was ranked second in the number of victims
per state (21,441) and fourth in the amount of losses per state ($77,135,765).
California was first in both categories.
The report features sections on “hot
topics” in internet crime, including business email compromises, ransomware,
tech support fraud, and extortion. It also contains an appendix defining the
various types of internet crime. The IC3 was established in May 2000 to receive
complaints of internet crime. While many of these complaints are investigated
by the FBI, the IC3 also makes remote searching of its database available to
all sworn law-enforcement officials. To learn more about the IC3, see the About IC3 page on its
Should some PACER filings be blocked to ensure the safety of witnesses and informants? Possibly, according to a recently published a survey of federal judges, prosecutors, defenders and probation officers by the Federal Judicial Center.
Originally reported in The Wall Street Journal (subscription required/ available via Lexis Advance), recent survey (PDF) of federal judges, prosecutors, defenders and probation offices by the Federal Judicial Center found that nearly 700 witnesses and informants perceived as snitches had been threatened, wounded or killed over a three year period. According to the Wall Street Journal article,
"Federal inmates are restricted from accessing PACER themselves, but it is easy for them to ask people outside the prison to search the online system and report the information back into the prison by phone, according to judges." Inmates are becoming more sophisticated at decoding available criminal findings within the case filings, leading to a substantial threat to these so-called snitches.
In the survey, with nearly 1,000 respondents, "[r]espondents frequently reported court documents or court proceedings as the source for identifying cooperators." Plea agreements and other identifying documents are not considered prison contraband, and may even be posted on cell walls for other inmates to view.
Survey responses encouraged action by the Department of Justice to mitigate this threat to those cooperating with law enforcement, but no specific action has been taken to limit PACER access to the public in criminal cases. Some respondents also encouraged placing more sensitive documents under seal. Both of these possibilities are viewed by some defense attorneys as detrimental to their defendant-clients cases. In addition, any limitation of public access to these filings raise First Amendment concerns about access to government documents.
Bernan Press has recently published the fourth edition of the Clean Water Act Handbook by Duke K. McCall, III. Designed for the practitioner, this source cover the National Pollutant Discharge Elimination System (NPDES) program, which regulates discharges to waters within the United States. The chapter on effluent limitations discusses standards that regulate discharges to waters based on what is economically and technologically achievable in one's industry. Another chapter provides an overview of Whole Effluent Toxicity (WET) standards, which are designed to test the impact of pollution on aquatic life. The author also covers non-point sources such as agricultural runoff, the regulation of dredged or fill materials, storm water discharges, and regulation of sanitation systems, among other topics. Finally, the reader will learn about topics related to enforcement of the Clean Water Act, such as criminal and civil enforcement, defenses, and citizen suits. The full text of the Clean Water Act (CWA) is available in the appendix. This book is now available on the law library's new titles shelf (located across from the reference desk next to the public computer terminals) under call number (KF3790.C545 2017).
Earlier this week, the Library of Congress announced
that it was making over 25 million of its catalog records available for free
bulk download. These records will be available at data.gov and on the Library of Congress
website at http://www.loc.gov/cds/products/marcDist.php.
Previously these records were only available individually or by subscription.
This new free service of the LOC will be an invaluable resource for anyone
doing bibliographic research.
The records are in the MARC (Machine Readable
Cataloging Records) format, the international standard for bibliographic data.
To learn more about MARC records, see this tutorial on the LOC website.
A March New York Times articlesounded warning bells for
researchers: the scourge of dark data. Dark data doesn’t refer to anything
secret or illegal, but rather data developed by the government and other
organizations subject to loss. A more complete definition, often used in the
corporate context, is "the information assets organizations collect, process and store during
regular business activities, but generally fail to use for other purposes.” Concern
over the loss of data that could lead to new discoveries has been especially
equated with the loss of scientific data stored by agencies and other
organizations. Much of this data is stored on government servers, with no legal
obligation to remain available. The Trump administration’s proposed cuts to
scientific research and agency funding has only increased the alarm felt by
scientists and other researchers.
An additional problem is that dark data, by
definition, is unknown. It can’t be verified if it can’t be found, even though
we know it’s there. Somewhere. Right now, data.gov
is the central repository for government created databases, but it relies on
agencies to self-report and is, by many researchers’ estimates, only a fraction
of data created by the agencies. The use of proprietary code and data.gov’s practice of linking to data housed
on websites, instead of the databases themselves, makes it even more difficult
While there does not seem to be any federal
legislation prohibiting the destruction or decentralization of these types of
data, several non-profits have formed to save this data from going dark, by identifying
and downloading data viewed as
vulnerable to deletion.
To learn more about dark data, here are some
resources to get you started:
The ABA has recently published Law Firm Cybersecurity by Daniel Garrie and Bill Spernow, which is now in the law library's collection (KF318.G37 2017). This book begins with an overview of cybersecurity and the law firm, discussing issues such as law firm vulnerabilities to cyber breaches, ethical violations that could result, and the potential liability for clients because of the breaches. The second chapter provides "Ten Commandments of Cybersecurity" that law firms should implement immediately to prevent a cyber attack. There is a chapter that provides a detailed overview of cyber threats that exist and another chapter provides advice on password management, encryption, firewalls, and perimeter security control. Cryptography, the International Organization for Standardization 27000 series (which cover cybersecurity standards), and framework for improving critical cybersecurity infrastructure are among the other topics covered.
The U.S. Government Publishing Office (GPO) recently
announced the launch of its beta.gpo.gov website,
which will eventually replace the old GPO website launched in 2009. Among other
things, the new site features a mobile-friendly design, access to GPO social
media platforms, and a directory of Federal Depository Libraries.
This follows closely on the February launch of
the beta website govinfo.gov, which will eventually
replace the Federal Digital System (FDSys) as the GPO’s free, searchable
repository of government documents, including regulations, statutes,
legislative documents, and court opinions. For more information about
govinfo.gov and what is available there, see this Q&A.
Looking for a way to compare the states on various
performance measures?One resource that
can help with this is States Perform.This website, from the Council of State Governments, allows users to
compare all 50 states on various measures related to fiscal and economic issues,
education, transportation, energy and environment, public safety and justice, and
health and human services.For instance
you can compare states on their crime rates, renewable energy generation, or
percentage of children who are immunized.You can also view or compare state trends in the data.If you don’t want to compare, you can select
a particular state to view all of its performance measures.Finally, you can create customizable charts
and maps with the data, which can be printed or downloaded in various file
To explore this data and compare the states, visit the States Perform website.
The American Bar Association has recently published Images with Impact: Design and use of Winning Trial Visuals by Kerri L. Ruttenberg. This title is now available in the law library(KF8915.R88 2017) on the new titles shelf across from the reference desk. This book, ideal for both the trial lawyer and law student, focuses on turning themes into visuals to communicate effectively with the jury. The author begins with a discussion of the importance of visual communication and then covers tools such as charts, maps, diagrams, graphs, tables, outlines, photos, and timelines. Those who are not familiar with the basics of graphic design will also find the chapters in Part III to be very helpful. Tips on spotting misleading visuals, practical tips for creating and using visuals at trial, and an overview of the law on demonstrative evidence are among the other topics addressed.
The legal research company Casetext has announced that it has acquired $12 million in venture capital to expand on its CARA ("Case Analysis Research Assistant") AI software, a virtual research assistant currently capable of scanning a legal brief and retrieving cases relevant to but not cited in the brief.
CARA is not alone in the world of legal AIs. When it was created last year, it joined the ranks of AIs including ROSS, an IBM Watson-based legal research AI, DoNotPay, a website founded in 2015 to automate the preparation of parking ticket appeals, and an amateur AI judge capable of predicting European Court of Human Rights decisions with 79% accuracy.
The Center for Responsive Politics recently launched a new research
tool called Foreign Lobby Watch.
It provides a searchable database of organizations and individuals registered
under the Foreign Agent Registration Act (FARA), a federal law enacted in 1938
in response to German propaganda efforts in the United States. You may have
read about this law in the news recently: President Trump’s former national
security advisor, Michael Flynn, was required to register as a foreign agent
for his consulting firm’s work on behalf of a company with ties to the Turkish
The database is made up of FARA forms filed with the
Department of Justice. The registration forms include information on the
organization serving as a foreign agent, details of the business arrangement,
and political donations made by the organization. The database also contains
short forms (filed by individuals), and supplemental forms, filed every six
months, that provide detailed information on work performed for the client. You
can search the full text of the documents, or search by registrant name, name
of foreign principal, or location. You can also restrict your search to a given
For more information on what’s in the database,
see the site’s methodology
Perma.cc solves the
problem of link rot for law schools, courts, and universities. Link rot occurs when the hyperlinks cited in
scholarly papers and court opinions no longer lead to the webpages they’re
meant to reference. Perma.cc creates a permanent, archived version of a website
and assigns a permanent URL to that version. The archived version of the cited
content will then be permanently available—even if the website modifies, moves,
or deletes the page’s originally cited content.
Perma.cc was developed
by the Harvard Library Innovation Lab, and its founding supporters included
more than sixty law-school libraries, along with the Harvard Berkman Center for
Internet and Society, the Internet Archive, the Legal Information Preservation
Alliance, and the Digital Public Library of America.Here at the University of Houston Law
Center, our law review and journals have been creating Perma links since the
summer of 2016, and all are very satisfied with the user experience and
results. Collectively, the Law Center’s Perma.cc users have preserved more than
1300 webpages in the less than year for readers to reference, even as URLs
change and content disappears.
month the excellent Editor in Chief of the Houston Law Review’s 54th
board, Jennifer Robichaux, came to me with a question about archived pages that
were now marked as “private” and not available for view. In particular, this
affected links from the New York Times and Wall Street Journal. Curious, I
began to check the footnotes of other law review and journal articles that had
Perma links to articles from these sites. The result was the same: many Perma
links to New York Times and the Wall Street Journal, all marked as private.
Here’s what the result image looks like:
It still contains a link to the originally captured
page, allowing for verification of the record, but not complete access unless
you are a subscriber.
How does this happen? The magic is in the page’s source file. According to Perma’s User Guide:
“Some Perma Records become private automatically upon creation, and their status cannot be changed. This applies to pages with a “noarchive” metatag or a Perma-specific exclusion in the site's robots.txt file. Each of these Perma Records is preserved in a dark archive and is accessible only to the individual account, organization and registrar responsible for the Perma Record.”
Learning this I went to the New York Times and checked the source code for an article published today. Sure enough a quick search found this: <meta name="robots" content="noarchive" />. Mystery solved.
Archival services like Perma.cc weren’t created to subvert copyright, but to preserve the record. Since the actual creating organization may still view the archived page, it remains useful for the organization’s source files. But adding the Perma link to footnotes in these situations is of little help to the reader.
Journals, law reviews, and others who publish Perma links to give readers access to online materials should be aware of this practice, and check what their Perma links display before publication and adjust citations accordingly. Librarians managing Perma accounts for their institution can assist by noting this in their communications with incoming editorial boards this spring and summer.
The ABA has recently published Hydraulic Fracturing: A Guide to Environmental and Real Property Issues (KF1849.H35 2017) by Keith B. Hall and Hannah J. Wiseman. The first chapter provides a background on hydraulic fracturing or fracking and covers the different types. The property rights of lessors and lessees versus the owners originating from common law are also discussed. Environmental issues such as water quality, air and climate, and federal, state, and local regulation and exemptions are covered. Information regarding the composition of fracking fluids and data on groundwater quality, matters related to subsurface trespass, and induced earthquakes are among the other issues explored by the authors. This source is now available on the law library's new titles shelf (across from the reference desk).
In this case, the defendant was a website dedicated to providing the public with access to free copies of federal, state and local government codes. Some of the federal codes hosted by the defendant incorporated voluntary industry standards and best practices into federal law by reference, as is permitted under 5 U.S.C. § 552(a)(1)(E). The defendant hosted free copies of these standards on its website along with the federal codes, and was sued by the organizations that drafted and published the standards. The district court granted summary judgment to the plaintiffs, holding that copyrighted material does not lose its protection when incorporated by reference into law.
This case does not result in the complete unavailability of free legal materials, as the plaintiffs in this case also provide their respective standards to the public online, and at no charge. However, the free versions of these materials lack the search functionality of the paid versions, and the precedent of preserving intellectual property rights in materials incorporated into law may become a concern in the future.
President Trump recently nominated Judge Neil Gorsuch to the
U.S. Supreme Court to fill the vacancy created by the death of Justice Antonin
Scalia. For those interested in learning more about the appointment process,
the Congressional Research Service (CRS) has published a new report, Supreme Court Appointment
Process: President’s Selection of a Nominee. It includes information on the
criteria for selecting a nominee, the advice and consent role of the Senate, the
political aspects of the process, and the use of recess appointments to
temporarily bypass Senate confirmation. For a more detailed account of the
Senate’s role, the following CRS reports may also be of interest:
To those unfamiliar, the Congressional Research
Service (CRS) is a federal legislative branch agency, housed inside the Library
of Congress, charged with providing the United States Congress non-partisan
advice on issues that may come before Congress, including immigration.
Included in the report are in-depth discussions on the
operation of sections of the Immigration and Nationality Act (INA) in the context of the executive power . Discussions
of sections 212(f), 214(a)(1) and 215(a)(1)
report on how the sections have been used by Presidents, along with relevant
case law and precedents. Most interesting is the list of executive orders
excluding some groups of aliens during past presidencies; the table allows
readers to compare and contrast the limits of previous orders.
The report notes the large breadth of power the
president holds in denying entry to aliens, “if [the president] finds that
their entry would be detrimental to the interests of the United States, for
such period as he shall deem necessary.” It also identifies potential
challenges that could be made to such an order including: inconsistency with
congressional intent, and the violation of international treaties or the First
Amendment if the exclusion is based on religion.
Anyone interested in learning
the legal underpinnings of the recent immigration ban or is writing on the
topic will find the report most useful.
The CIA recently announced that its CREST tool is now available
online.CREST is an electronic database
of records that have been declassified under the CIA's 25 year program.While the CREST tool only contains a subset
of the declassified records, previously researchers were required to visit the
National Archives in Maryland to search the database, so the online tool
greatly increases the availability of these records.