"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, 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.