"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



Saturday, August 5, 2017

Drones Across America

The ABA has recently published Drones Across America: Unmanned Aircraft Systems (UAS) Regulation and State Laws (KF2406.N55 2017) by Dr. Sarah Nilsson. This book begins with a discussion of the definition of Unmanned Aircraft Systems (UAS) as well as the different categories. Chapter 2 analyzes regulation at the federal level with a discussion of the FAA Modernization and Reform Act of 2012 (FMRA), proposed legislation, Federal Aviation Administration (FAA) regulatory action and relevant court cases. Chapter 3 explores commercial UAS rules, in particular focusing on relevant FMRA provisions, federal regulations such as 14 CFR Part 107 dealing with small unmanned aircraft, and state laws throughout the country. Rules pertaining to public aircraft operations as well as model aircraft are also covered. This is now available on the law library's new titles shelf (across from the reference desk).

Thursday, July 13, 2017

New Features Added to Govinfo Website


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. 
  • Thumbnails are 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 publications.
To learn more about these and other recently added features, see the latest release notes.

Saturday, July 1, 2017

Mastering Negotiation

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).

Friday, June 23, 2017

FBI Publishes 2016 Internet Crime Report


The FBI’s Internet Crime Complaint Center (IC3) recently published its 2016 Internet Crime Report. Here are a few interesting facts from the document:
  •  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 delivered (non-delivery). 
  •  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 website. 

Wednesday, June 21, 2017

Federal Judiciary to Limit PACER Access?

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.

Friday, May 26, 2017

The Clean Water Act Handbook, 4th ed.

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).

Friday, May 19, 2017

LOC Makes 25 Million Catalog Records Available for Bulk Download


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.    

Thursday, May 11, 2017

The Problem of Dark Data

A March New York Times article sounded 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 for researchers.

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:




Dark Web: Exploring and Data Mining the Dark Side of the Web, Hsinchun Chen

Friday, April 28, 2017

Law Firm Cybersecurity

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. 

Friday, April 21, 2017

New GPO Websites


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.

Sunday, April 9, 2017

States Perform Website


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 formats. 

To explore this data and compare the states, visit the States Perform website. 

Friday, March 31, 2017

Images with Impact: Design and Use of Winning Trial Visuals

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.

Wednesday, March 22, 2017

Legal Research AI Gains Venture Capital


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.
 

Thursday, March 16, 2017

New Database of Registered Foreign Agents


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 government.

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 date range.

For more information on what’s in the database, see the site’s methodology page.

Friday, March 10, 2017

Paywalls Catch Up to Some Perma.cc Records

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.

This 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.

Saturday, February 25, 2017

Hydraulic Fracturing: A Guide to Environmental and Real Property Issues

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).  

Monday, February 20, 2017

IP and Incorporation into Law


The U.S. District Court for the District of Columbia recently granted summary judgment to plaintiffs in a copyright and trademark infringement case involving technical standards that were incorporated by reference into law.  The case, American Society for Testing and Materials, d/b/a ASTM International v. Public.Resource.Org, Inc., is of possible interest to legal researchers given its implications for the accessibility of legal documents.

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.

For further reading, interested parties might be interested in this Government Technology article discussing the case.  For a more general introduction to the topic, researchers may want to consider the law review article cited by the court, Incorporation by Reference in an Open-Government Age by Emily Bremer.

Thursday, February 9, 2017

CRS Reports on the Supreme Court Appointment Process


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:
For more information on finding CRS reports online, see our blog post on the subject.

Friday, February 3, 2017

The Congressional Report on the Executive Authority to Exclude Aliens Released Days Before Immigration Ban


On January 27 President Donald Trump signed an Executive Order, Protecting the Nation from Foreign Terrorist Entry Into the United States. Four days earlier, on January 24, the Congressional Research Service released its own report:  Executive Authority to Exclude Aliens: In Brief.

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.


Sunday, January 29, 2017

CIA Records Search Tool Now Online


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. 

The records include information about topics such as the Berlin Tunnel, Project Stargate, and Secret Writing.  Users can browse the archive or use the website’s advanced search feature to search the records.  To learn more about CREST, visit the CIA website.