Thursday, December 10, 2009

Tracking the Congressional Response to Iqbal

Last week's Senate hearings regarding the impact of Iqbal and Twombly (see posts here and here) were in aid of the Notice Pleading Restoration Act of 2009, S. 1504. The pending bill is reproduced here on the GPO website in PDF. The bill is mentioned in Senator Feingold's opening statement.

There are several new ways to track pending bills in Congress. You might be interested in using or Both allow for the free tracking of individual bills. You can see previous posts about these Web 2.0 tools here on LLRX, and here and here. Unfortunately, Thomas, while providing a feed for a daily digest and for Senate and House floor action, is not yet providing feeds for individual bills.

Wednesday, December 9, 2009

Senate Considers Iqbal Impact

Hearings before the Senate Judiciary Committee began last week to determine if legislative action would be appropriate to overturn the USSC rulings in Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly. You can find the relevant Judiciary Committee page here. Look to the right hand column to see links to PDFs of the recently posted prepared testimony before the Committee.

Look here for a post that contains excerpts from the hearings regarding the overall impact of Iqbal and Twombly. One witness went to far as to say that the decisions were "an assault on our democratic principles" (from the prepared testimony of John Payton, NAACP Legal Defense and Educational Fund).

Interestingly, the testimony of Gregory Garre, former Solicitor General, addresses the actual impact of Iqbal on cases pending in federal court. That impact was also discussed here in a previous post.

Garre makes reference to and provides a link to the preliminary report prepared by its Rules Law Clerk for the Civil Rules Committee and the Standing Rules Committee Concerning the “Application of Pleading Standards Post-Ashcroft v. Iqbal.” Unfortunately, the link that Garre give to the report is broken ( Nov30.pdf.). Garre, in his testimony, maintains that it is too early to judge the effect of Iqbal.

Iqbal is apparently of sufficient interest and potential impact, however, that a Committee was established to study its effects...

Tuesday, November 24, 2009

Iqbal Impact Update

Now, a little more than six months after the USSC issued its opinion in Ashcroft v. Iqbal, the impact of the decision is still being felt. Readers of this blog may recall a previous post indicating that Iqbal was arguably the most important case decided last term. That statement was based on the fact that Iqbal promised to have a systemic effect. To date Iqbal has not disappointed. It has been cited frequently by federal courts. A quick check using KeyCite shows -

1. A total of 7032 documents (cases, briefs, treatises, articles, etc.) have cited Iqbal.

2. Headnote 12, the headnote that deals with the new threshold test - to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face - i.e., the new "plausibility" test, has been cited by 2789 federal courts apparently for the purpose of examining plaintiff's case for possible dismissal.

3. Headnote 12 has also been cited by four state courts and one tribal court for the same proposition. States that have rules of civil procedure based on the FRCP may be moving to adoption of Iqbal or at least some consideration of the the viability of the Iqbal plausibility requirement to state procedural analysis.

Of course, Iqbal is a complex case that deals with many issues not the least of which is governmental liability. We can't tell without a close examination of all 2789 federal cases that apply Iqbal if it is being used solely as a means to dismiss cases. More likely, it is being used even-handedly to weed out factually weak cases. Regardless, it seems clear that every future Memorandum in support of a 12(b)(6) motion will have to cite it.

Friday, November 13, 2009

Lexis Apps On Your iPhone

That's right. After Westlaw made Black's Dictionary into an iPhone app, Lexis has decided to do the same with Get a Document and Shepardize. Mixed reviews but it seems to be another step forward.

BTW, the iPhone app for Black's costs $49.99. The iPhone app for Shepard's is FREE as long as you have a valid Lexis ID and password.

Sunday, November 8, 2009

LII Posts a Response to Berring

Last week's post highlighted a WestCast video of Bob Berring talking about how commercial resources will endure while volunteer legal resources, like Cornell LII, will not. Well. Here's LII's measured response posted on YouTube. You might be interested in subscribing to the LII blog, here. There is also a post by Paul Lomio on the Stanford blog Legal Research Plus about his Advanced Legal Research class and the similarities of Bob Berring and Tom Bruce, here.

Sunday, November 1, 2009

Berring on Free Legal Resources

Here's a link to a short video of an interview with Bob Berring about the future of free legal resources. West posted it on YouTube and maintains a link to it from their blog here. If you read through the comments at the end of this post, make sure you get all the way to the end. Apparently, there will be another beer summit in D.C. in the near future.

Free resources are here to stay, voluntary or not. It is impossible to disagree with Berring about the value of the editorial features on both West and Lexis but the use of low cost / no cost resources may be the only way to stay alive in the current market. Watch the video for yourself and see what you think.

West has been making some interesting posts lately including one about how cases and headnotes are edited and published. If you are interested in developments in legal research you might be interested in setting up an RSS feed to their blog, Legal Current.

Friday, October 30, 2009

File Sharing Leads to Disclosure of House Ethics Report

There are several reports out this morning regarding the leak of a preliminary report generated by the House Committee on Standards of Official Conduct, aka the Ethics Committee. See the report on the NPR site here, and on the NYTimes site here.

Although one representative deemed this to be "cyber-hacking" it appears, instead, to be a simple case of a staffer releasing the report via a peer-to-peer file sharing site. Cyber-hacking would mean, of course, that the security of the Committee's electronic files had been breached. The Committee statement about the leak is here.

This is nothing new. There have been government leaks before. What is new is that the speed and ease of the dissemination of the leaked material was facilitated by use of the Internet in ways that Congress could not foresee. If the fired staffer had used a large enough email list he would have had the same effect. We can look for hearings and possible legislation on this issue. The answer is not to put additional restrictions on file sharing or to beef up their network. The answer is for Congress to vet its employees more carefully.

Wednesday, October 28, 2009

Wex - Substitute for Blacks Dictionary?

For research purposes the answer is probably no. But for 1Ls who don't want to buy Blacks the answer may be yes.

Wex is the online dictionary/encyclopedia available on the Cornell LII website. The dictionary is here; the encyclopedia is here. Most students will find the Wex "all" browse page the easiest to use because you don't need to worry about variant spellings. There is a handy search function you can use if you like.

Why would this work for 1Ls? First, it's free; and free is good. Second, it's simple and simple can be very good when you are starting out.

But for those using the dictionary or the encyclopedia for research the latter reason is exactly why it is not yet suitable for anything but the most simple research tasks. As yet, there is insufficient material to handle any significant research. And, if you did use it how would you cite to it?

Wex works and works well. It does not appear to be the intended to be the ne plus ultra of legal research. As long as you know that, it is a valuable tool to add to your research and 1L study tool belt.

Monday, October 26, 2009

Searching HeinOnline

There were two new posts late last week about more effective searching on HeinOnline. The first is from Shawn Nevers at the HWHLL Blog and a follow up from the HeinOnline Weblog.

It seems likely that the real reason why this mode of searching has become possible is because of Hein's efforts to improve the OCR (Optical Character Recognition) function thereby allowing dependable and reliable word searching.

Although Shawn and Hein are quite correct about the usefulness of the "new" search features the results display (the hit list) may still discourage many researchers. Most students (and faculty!) will continue to use the browse feature to find quality scans of law review articles and other materials that they have found using other search methods.

We are not ready to stop our subscriptions to WilsonWeb (Index to Legal Periodicals) or LegalTrac. Not yet.

Sunday, October 25, 2009

Federal Agency Blogs

Readers of this blog may recall previous posts about practitioner blogs here and here. The original post about the Native American Legal Update blog is here.

The latest niche current awareness service may be the federal government blogs available from an old favorite, The new government blog page is here. Obviously, not every blog is worth following, but for researchers interested in what their favorite regulatory agency is up to, this might turn out to be a new resource.

Are these posts nothing more than press releases? Some are. But the Department of Justice seems to be taking the idea of blogging seriously. Look at the right column for an array of Web 2.0 tools. And, here is a post about the recent memorandum sent to US attorneys about prosecuting medical marijuana cases. The new memorandum containing formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes is set out in full.

Friday, October 9, 2009

Legal Kindle?

West is now offering 29 of its legal publications on Kindle. The list includes such diverse offering as Scalia's book Making Your Case and the Nutshell on bankruptcy. Check out the press release here.

So. Where does the pocket part go?

TOH - TR Halvorson

Wednesday, October 7, 2009

CT Office of Legislative Research

Connecticut's counterpart to the United States Congressional Research Service is the Office of Legislative Research. Like the CRS, the OLR is a non-partisan research service.

The reports on the OLR website are a potential source for Connecticut legislative history. Remember, the Assembly asked the OLR to prepare these reports so it is at least possible that the Assembly read them and had them in mind when enacting legislation. The OLR deals with Reports in distinct ways:

OLR posts recent reports here. Right now, the reports for September are available. These include, inter alia, newly issued reports on Strict Liability, Boater's Liability Insurance and more. Selected past reports are here. Right now, these include reports from August. "Backgrounder" reports are here. These are reports that cover issues of long term interest.

Reports are searchable by topic and there is an archive of past reports and other documents generated by the OLR. Finally, you can search the reports by full-text here.

Next time you are trying to decide what the Connecticut Assembly had in mind when it passed a new law, see if there is an OLR report that can help you.

Law Schools Cutting Part-Time Programs

As Brian Leiter says, this was certainly predictable. As Leiter points out here, at least one law school, dismayed with its recent US News & World Report ranking, has decided to cut back its evening program by limiting admissions. The school is George Washington and their blog post is here. By admitting fewer evening students George Washington apparently hopes to regain its former #20 ranking. Since the new USN&WR rankings (which factored in part-time students separately) were unveiled, George Washington slipped to #28.

Three things to notice:

1. As a group evening students have traditionally had lower GPAs and LSATs than day students. By having higher admissions standards for part-time students it is at least theoretically possible to maintain (or regain) a higher ranking.

2. Having evening students with higher GPAs and LSATs also has the side benefit of maintaining a higher part-time program ranking. Now that USN&WR ranks the part-time programs separately I suppose there will be a race to the top in that catagory.

3. It is somewhat disingenuous for the GW administration to claim that the change in the way the rankings were compiled was "unannounced." USN&WR telegraphed that change long ago for anyone who was willing to pay attention.

Monday, October 5, 2009

Discrimination Against Laid Off Lawyers?

Possibly. Here's an interesting post from today's Above the Law. The article says that some firms that are hiring don't want to interview associates that were laid off because of the recession. In other words, if you got laid off for financial reasons, potential employers still think you were somebody else's problem...

Sunday, October 4, 2009

Keeping Up with the USSC

Today is the first Monday in October and that means it is time to become United States Supreme Court watchers. Not that we don't already do that. But, October is the time when we begin to pay even closer attention than usual.

And how to we begin to pay attention? How do we follow the Court? Staying current is always a problem for lawyers. We can read newspapers, listen to NPR, and watch the news on Fox television. But these generalized sources can be unsatisfactory. They do not give lawyers sufficient detail, analysis, or access to the primary documents to allow us to stay up to date.

If we are interested in one particular case we can, of course, set up an Westlaw or Lexis alert of some kind (and there are several kinds, all very effective). But if we want to follow the trends in the Court, see how the current Term of Court is progressing, or find about about issues that we might not have been aware of, we have to hew to some middle ground between popular media pablum and the laser-like and tunnel vision focus of RSS feeds.

Three ways of staying current with the general workings of the Court are immediately apparent.

First, there is the USSC website itself. Over the years this has been revised on several occasions. In fact, a new redesign appears to be in the works. The Court posts its own decisions its own docket calendar, short summaries of questions presented in pending cases and links to briefs and oral argument transcripts. Free.

Second, there is the BNA service, Supreme Court Today, a feature of US Law Week. BNA's product page is here. It is fair to say that Supreme Court Today is and has been the traditional current awareness service for the USSC; it continues to do a superlative job. Decisions are posted within minutes of filing and there are links to briefs and argument transcripts. There is also extensive analysis and summaries of pending cases. Law Week (into which Supreme Court Today is bundled) covers much more because it takes on the whole national legal environment.

Third, there is the relative newcomer - SCOTUS Blog with its direct links to SCOTUS Wiki. It also has analysis and summaries, full text decisions and briefs, and tracks the current docket. It also covers national law news. But it's free.

So which is better? If you are just interested in keeping track of the USSC which of these three will serve you best? Take a look and decide for yourself. This is a dark time for attorneys and the lure of free materials is strong. You may have to decide if your time is better served keeping current or in working on billable projects.

Saturday, October 3, 2009

WestCast Shows How Headnotes are Generated

Here's a somewhat revealing video posted to YouTube by West. This one describes how the headnotes for District of Columbia v. Heller (the DC gun control case) were generated and then assigned Topics and KeyNumbers.

ThomsonReuters is calling this a WestCast. This is clearly an attempt by West to utilize Web 2.0 to push their products. Despite the fact that the West employees seem like a pretty bland bunch this marketing device could be effective.

In the late 1970's, just when Westlaw was starting up, being chosen to go to Minneapolis to write and classify headnotes was a big deal.

Saturday, September 12, 2009

New Challenge to Military Commissions

Follow this link to a post on the SCOTUSblog about the latest challenge to the ongoing military commission trials taking place at Guantanamo. The new challenge argues that the Congress had no authority to set up the commission system. Regardless, the suit alleges, the commissions system unconstitutionally treats aliens charged with acts of terrorism differently than the way a US citizen would be treated. Four points to be considered outside the merits of the case:

1. Take a look at the Circuit Court's Order. The three judge panel is acting sua sponte to set the stringent time deadlines.

2. Note the time on SCOTUSblog post - 10:23 pm on Friday, September 11th. It appears that there was no story about this filing or the Court's ruling in any major US newspaper this morning. Thus, the informal and instant nature of blogs as news source continues to scoop the major news gathering services. And, this is an important ruling. The government must reply to this new challenge by noon next Tuesday, September 15th. This is a fast moving story and it will be interesting to see how quickly the news services cover it.

3. The blog post is accompanied by scanned copies of the original documents filed in the case. If you are interested in legal news, this is the kind of thing that helps you understand what is going on. Why rely on the analysis from a blog post or news story when you can read the documents actually on file with the court? You can make up your own mind about what's happening.

4. Somebody at the Office of the Convening Authority for the Military Commissions is going to be working overtime this weekend.

Saturday, September 5, 2009

More Congressional Tracking via Web 2.0

Since last week's post about using Web 2.0 to track Congress I've found two other blogs with posts about the same thing.

First, there is an excellent post by Peggy Garvin on LLRX here that reviews the recent changes in and She also reviews various Twitter feeds that focus on what happens to a bill after it leaves Congress. Apparently, the Office of the Law Revision Counsel is tweeting as are others. Even better, she reveals new RSS feeds from Thomas that allow tracking of House floor action, Senate floor action, and the Daily Digest from the Congressional Record.

Second, the RIPS blog has a similar post here. Jason Sowards also details GovTrack and OpenCongress. He includes a new blog, MapLight, a site that tracks who gave what money to which legislator with what result...

Congress comes back from its August ("Townhall Meeting") recess next week, Advanced Legal Research and Specialized Legal Research classes are starting up, and many of these sources have made substantive changes over the summer. No wonder there are a veritable plethora of posts on these new resources. It will be interesting to see which ones last and which ones will continue to evolve.

Friday, September 4, 2009

9th Circuit RSS Feed

So. How do you know when a federal Circuit Court has issued an opinion about a case that you've been following? There are two ways with the 9th Circuit:

First, the Court set up a general RSS feed to help practitioners, scholars, and reporters find out what cases have been decided each day. That feed can be subscribed to here.

Second, if you are following a particularly important and newsworthy case, you can subscribe to the Cases of Interest feed here. The Al-Kidd v. Ashcroft case was posted via this feed.

Unfortunately, there is a slight disconnect. The Al-Kidd case was not reported via the general feed (shouldn't that be every case?). And, the Mohamed v. Jeppeson Dataplan amended opinion (the extraordinary rendition case) was not reported via the Cases of Interest feed (isn't the rendition case considered a case of interest?).

Oh well. The Circuit Courts are just coming to the Web 2.0 world. There will be an adjustment period.

Iqbal Case Distinguished in Al-Kidd

The 9th Circuit has ruled that John Ashcroft, former Attorney General, can be sued for post 9/11 detention abuses. In an opinion issued today, the 9th Circuit said that, unlike the Iqbal case, the plaintiff can show a concrete connection between his detention and Ashcroft's specific statements about the use of the federal material witness statutes. See a previous post about Iqbal here including a link to that USSC decision.

The 9th Circuit said that the claims made in Al-Kidd's complaint "plausibly suggest" that Ashcroft purposely used the material witness statute, 18 USC §3144, to detain suspects whom he wished to investigate and detain preventively. The Iqbal case, of course, set out what must now be considered the "plausibility standard" of review.

It is relatively easy to find recent opinions issued by federal Circuit Courts. All courts now have a website with links to their recent decisions. Here is the 9th Circuit opinions page. In this instance it was also easy to find the relevant code section. It is mentioned specifically in the opinion but can be found in full at the CornellLII US Code Collection page using the browse feature. And, its all free...

Stevens to Retire from USSC?

Idle speculation or fact? Here's a post from SCOTUS Blog that links to others about the possibility of Justice Steven's retirement.

Read this news with a grain of salt. Is the number of clerks hired a real indicia of Steven's intent to retire? Or, are we just reading tea leaves?

LOISLaw Gains Ground

It should come as no surprise that LOISLaw, a Wolters-Kluwer online legal search engine, is gaining favor among financially stressed law firms. Check out this ATL article that ran in February. One major firm, Locke, Lord, Bissel & Liddle (sounds like a small, philosophical yet religious vacuum cleaner) issued a memo to its attorneys requiring the use of LOIS before using Westlaw or Lexis in non-billable situations.

You might also take a look at this post by Julie Jones on the official blog of the UConn Law Library. Not only does she link to the ATL article but to a recent article on that addresses how firms are saving money by gathering metrics on DB use.

Better still, take a look at this survey compiled in 2008 by Paul Lomio and Erika Wayne from the Stanford Law School library. You will find that a substantial number of responding law firms (about 30%) wanted LOISLaw taught as part of a legal research curriculum.

And now for the caveat - LOIS is really a database for primary law research. There are some secondary source materials available on LOIS but not enough for most thorough researchers. Should this deter a researcher from starting with LOIS? No. Here's a quote from the LLB&L memo:
It [LOIS] is not viewed as a substitute for Lexis or Westlaw, but as a tool to be used to familiarize yourself with precedent related to new cases or issues or simply to find cases, statutes or regulations.
Looks like good advice from a managing attorney with two goals: saving money and providing good client research service.

Tuesday, September 1, 2009

Web 2.0 Goes to Work Tracking Congress

In the next few days, this blog will discuss a series of new Web 2.0 tools that can be used to track Congressional activity. We are all familiar with Thomas, the website developed by the Library of Congress. These are new kids on the block, many have been developed in the last year, some in the last few weeks.

For today, consider setting up an RSS feed to some of the tracking available through This is another official site from our government. And, they freely admit to using material from Thomas. But, makes use of a veritable plethora of Web 2.0 tools to allow tracking bills, resolutions, the activities of members of Congress, voting records, actions by Congressional committees.

You can set up RSS fees and add widgets to your own webpage. That last feature is of particular interest to practitioners. Many firms that with a niche practice set up a webpage to keep their clients informed about recent developments in their practice area. This new feature from allows you to put a widget on your site to channel relevant information to your clients.

And, if you and your clients are into social networking, there is nothing stopping you from putting that widget on your Facebook page. Web 2.0 feeds off of Web 2.0...

It's a whole new world out there.

Monday, August 31, 2009

Most Important Case of Last USSC Term - Iqbal

It now appears that the most important case decided by the USSC last term will be Ashcroft v. Iqbal. This case clearly resets the standard for filing a complaint in federal court. You can see it on the USSC site or at 129 S.Ct. 1937.

Under the terms of FRCP 8 the only requirement for a complaint is that it contain a "short and plain statement of the claim." This has been the standard since the FRCPs first came into existence in 1938. Under Iqbal, however, the complaint must now contain a "plausible claim for relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950. To make that determination requires the federal District Court ''to draw on its judicial experience and common sense.'' This is carte blanche for any District Court to dismiss a case that does not plead specific concrete facts.

A quick review of KeyCite or Shepard's will show that Iqbal has been cited by 1388 times, primarily to support the dismissal of a complaint in federal court. So far, only three courts have declined to extend the case or have distinguished it.

This seems to be a case that was determined by the Court on the basis of its political underpinnings. According to Justice Kennedy, all that the Iqbal complaint plausibly showed ''is that the nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.'' Ashcroft v. Iqbal, 129 S.Ct. 1937, 1952.

Although the USSC is a political body, it seems to have carried this political ruling too far into the realm of practical law.

Saturday, August 29, 2009

Proliferation of Practitioner Blogs Continues

Readers of this blog will recall previous posts here and here about the trend toward current awareness through niche practice blogs. Here's another one to consider - California Securities Fraud Lawyer Blog. This one is from the Acala Law Firm.

If you were practicing in this niche area wouldn't you want to know about posts to this blog? Practitioner blogs may never fully replace other more formalized current awareness mechanisms. Still, this is exactly the kind of blog that should make BNA think about what they are producing and how much they are charging for it. Look for more niche blogs like this...

Meanwhile, Joe Hodnicki at the Law Librarian Blog continues to post links to practitioner blogs. Using one blog to find others. Is that a Web 2.0 idea or what?

Friday, August 28, 2009

Latest Westlaw v. Librarian Tempest

Here's the latest spat between Westlaw and the Law Librarian community. ATL has posted an article about the Westlaw advertisement sent to thousands of lawyers.

In what must be the most bone-headed decision since the Dred Scott case Westlaw decides that attorneys who consult their firm librarians are wasting their time. Everyone knows that West delivers everything you need to do legal research right to your desktop. Right? They don't mention the material available only on Lexis. They don't mention all of the free online research resources. Oh, and why did we buy all those books for the law firm library?

Considering yesterday's post you might be right in thinking that Westlaw is getting a little desperate.

Thursday, August 27, 2009

Stanford Law Library Cutting West Publications

It should come as no surprise. West is pricing themselves out of the market. Paul Lomio, Director of the Stanford Law Library explains his rational here.

If this develops into a trend will Lexis see a resurgence of its fortunes? Hmmm. Don't forget that they have all of the Matthew Bender secondary material - a very powerful research tool.

BTW, Lomio's blog, Legal Research Plus, does an excellent job of tracking the fortunes (and misfortunes) of the legal research world.

You Know Its Real When...

Well. You know the market for new associates is tough when it becomes national news. Take a look at this article from the first page of the NYTimes Business section.

But, read closely before falling into despair. The downturn in hiring affects large firms, i.e., the ones paying those mega-salaries. Now is the time to consider exploring other options - a smaller firm, a judicial clerkship, an in-house position.

Tuesday, August 25, 2009

Legal Profession Responds to Technology (at last)

Nicole Black, in a short article on LLRX, analyzes the slow acceptance of technology by lawfirms. According to her the big firms are the big losers right now - the small boutique firms are reaping the benefits of embracing emerging technology. How will it all end? She has some interesting predictions.

If you are interesting in technology and the law you should take a close look at and subscribe to their RSS feed. Their tag line is - "Law and technology resources for legal professionals." Law truly is a profession that is driven by information.

Saturday, July 18, 2009

Practictioner Blogs - the Future is Now

As the very nature of legal information changes it seems obvious that outliers or fringe reporters will proliferate - particularly in the area of current awareness. From Joe Hodnicki's Law Librarian Blog follow the links to two good examples of what is possible: the San Diego Criminal Attorney's Blog and the Florida Mortgage Modification Lawyer Blog. Both are excellent non-traditional current awareness tools.

Readers of this blog may remember the post about the Native American Legal Update Blog made back on January 17th. Niche blogging appears to be the future of current awareness.

This is how ATL and SCOTUSBlog got started. From small beginnings come great things.

Tuesday, July 14, 2009

NPR - Best Sotomayor Daily Wrap?

NPR provides a truly comprehensive summary of each day's activities at the Sotomayor confirmation hearings. Check out the wrap from today. You'll find analysis, photographs, links to related stories, and audio links to the day's testimony.

Audio of hearings is also available on the Judiciary Committee's Webcasts Archive here. Since coverage is gavel to gavel, the official webcasts are the full record. NPR's coverage divides the audio into discrete organized sections, e.g., Senator Leahy Defends Sotomayor Against Allegations of Bias - a 1 minute 40 second speech. You need to decide if you want sound bites or the full meal deal...

Saturday, July 11, 2009

Sotomayor Hearings Witness List

Senator Leahy's office has issued a witness list for Monday's hearings. You can find it here on Leahy's site. You can also find it here on the Judiciary Committee's site. Note that Frank Ricci is listed as a minority witness. Is that ironic or what?

Thursday, July 9, 2009

Three Websites to Watch During Sotomayor Hearings

This is certainly not an exhaustive list. These three sites seem, instead, to be dedicated to coverage of the entire process. Their reportage seems to be unbiased, relevant and timely.

Blog of LegalTimes. They are doing reporting like this: Law Professors Line Up Behind Sotomayor and this: ABA Committee Sotomayor Top Rating.

SCOTUSBlog. Of course. They are posting like this: Over 1000 law professors join letter endorsing Sotomayor. Take a look in the right hand column for links to other stories.

The National Law Journal. 12 Things to Watch at Sotomayor's Hearing.

High quality current legal information continues to move inexorably, relentlessly online

Wednesday, July 8, 2009

Even More Documents on Sotomayor

Our good friends at the SCOTUSBlog have posted a compendium of documents related to Sonia Sotomayor. Of particular interest are the posts by the Volokh Conspiracy and the link to a CRS report. Readers of this blog will recall previous posts about the usefulness of CRS reports, for example here.

Alberto Gonzalez Gets a Job

Readers of this blog will recall a post from March in which it was revealed that former Attorney General of the United States, Alberto Gonzalez, couldn't find a job. Well. His prospects are looking up. As revealed by BLT here and CBS Court Watch here, Gonzalez has now been hired to teach a political science course at academic power house Texas Tech. He's been given a one year contract to teach an undergraduate special topics course - Contemporary Issues in the Executive Branch.

Sotomayor Documents

Right now there are a number of documents posted for view on the Senate Judiciary Committee Website. These include (1) portions of the questionnaire Judge Sotomayor answered complete with supporting documents and (2) letters from persons or groups supporting or opposing her appointment.

And, for those interested in listening to the hearings there is a promise of a Webcast (see the right hand column).

Supreme Court confirmation hearings have come a long way since the days when Anita Hill testified in the Thomas hearings.

Tuesday, July 7, 2009

Sotomayor Hearings Begin July 13th

There are, of course, many sources for this but probably the easiest to find is on the Senate's own website calendar. The Senate's Daily Digest Committee Meetings/Hearings Schedule is located on the Senate site. Just scroll down to find the hearing set for next Monday before the Judiciary Committee. The XML link at the top of the page means that you can get an RSS feed for the Daily Digest if you want to automatically keep up with Senate happenings.

Friday, June 19, 2009

About that Motto on the Law Library Portal

With the removal of (most of) the scaffolding from the front of the UConn Law Library the Latin motto over the front portico is revealed at last...

Salus populi suprema lex esto - Let the safety of the people be the supreme law.

This can be found (in a slightly different form) in Cicero's treatise de Legibus (a kind thanks to our friends at the Latin Library). Cicero, as you may know, was the Roman Senator, orator and (of course) lawyer.

Considering the recent construction activity this seems a most appropriate motto. And, since none of us had a stone dropped on our heads during construction it appears to have been followed to the letter (so far).

For researchers this "motto" or "maxim" can be found in Appendix B to Black's Law Dictionary. Appendix B is a compendium of legal maxims used in the law throughout the centuries. Many legal maxims are now obsolete or superseded by case law or statutory law but they sometimes take on a life of their own. More on legal maxims in a future post.

Friday, June 12, 2009

Encarta Succumbs to Wikipedia

This is somewhat old news (April 1st) but still important, especially to legal researchers. Microsoft confirms that it is ceasing publication of Encarta. Here's the link to the Microsoft FAQ page that details their reasoning. Wikipedia, of course, is not mentioned by name.

Is Wikipedia ready to take the place of Encarta as ready reference in the courtroom? Here is the classic argument against Wikipedia set out by the US Court of Claims in Campbell ex rel. Campbell v. Secretary of Health and Human Services, 69 Fed. Cl. 775 (2006).
A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a heavily unbalanced viewpoint.” at 781-782.
Since 2005 the Court of Claims has mentioned Wikipedia in five other cases but it still views Wikipedia with distrust. In Zoltek Corp. v. U.S., 85 Fed. Cl. 409 (2009), when a party submitted a Wikipedia article as evidence of the fact that Lockheed manufactures F22 aircraft in Georgia the Court said (get ready for it) "...the reliability and probative value of such an exhibit is extraordinarily low..." at 414 (FN 6).

Hmmm. So, without Wikipedia and with Encarta giving up, is there any online encyclopedia the Court of Claims will be willing to accept?

Monday, May 25, 2009

Potential Moot Court Tool - SCOTUS Blog

Two of the best resources for monitoring the USSC are the SCOTUS Blog and SCOTUS Wiki. The blog is great for keeping you up to date: use the RSS feed or your iGoogle feed application. The wiki links to the original documents filed in the case. The two are joined at the hip: the blog generally links to the wiki page where the documents are maintained.

Here's an example to consider. Just this last semester one of the LP sections had an assignment that involved an issue about impeachment evidence that was illegally obtained. That issue was eventually resolved when the USSC heard the case of Kansas v. Ventris and entered its decision. Not only was the progress of the case through the USSC tracked by blog posts, all of the relevant documents were posted on the wiki along with a recap and analysis of the oral argument and the decision.

Sunday, May 24, 2009

Dressing for Moot Court - Sort Of

How should you dress for oral argument? The 7th Circuit (the same people that brought you the 7th Circuit Meltdown) have some suggestions about what is not appropriate. And, here to make their usual cynical observations about the 7th Circuit judges is an Above the Law posting.

Judge McCuskey's observations make interesting reading.

New Article on Oral Advocacy for Moot Court

Check out the new article on moot court written by James Dimitri as part of the Stetson Law School Center for Excellence in Advocacy Symposium: Stepping Up to the Podium with Confidence: A Primer for Law Students on Preparing and Delivering an Appellate Oral Argument, 38 Stetson Law Review 75 (2008). You can find it on Westlaw at 38 STETLR 75 or on Lexis at 38 Stetson L. Rev. 75. The original working paper is available on SSRN. The abstract is here. Just follow the links to the full paper.

This article is a true primer; quite useful for making sure you've covered the basics. Take a good look at the "brainstorming" section. This is a step that many students skip.

A note of explanation: Symposia issue are often published long after the fact. This symposium was held in 2008. The article is just now being published. This can often be a key factor when trying to find an article specifically written for a symposium.

Saturday, May 16, 2009

7th Circuit Oral Argument Meltdown

Here's an example of what can happen when you completely misjudge your case, your audience, yourself... Follow this link to the 7th Circuit oral argument page for the case of U.S. v. Johnson. Then follow the hyperlink "Oral Argument" to the audio file to see just how bad things can get.

After counsel's attempt at oral argument, the case went on to be decided; the full opinion appears at 123 Fed.Appx. 240, 2005 WL 589976 (2005).

Friday, May 1, 2009

Souter to Leave USSC

This became news late last night. Here is a sampler from some of the sources this blog follows:

The NYTimes - Souter Retiring Leaving Obama a Choice.

The SCOTUS Blog - Justice Souter's Retirement and Where We Go from Here.

Above The Law - ATL Poll: Who Should Replace SCOTUS Justice David Souter? The usual snarky comment ATL is known for? Check it out right here...
That the next Supreme Court justice will lack a Y chromosome is a virtual certainty, but we've thrown a few token males into the poll anyway. Who strikes your fancy?
But, here's the best from a surprising source - GAWKER - Rush Limbaugh Saw Obama's Top SCOTUS Candidate Coming Years Ago. Wow! What prescience from the Big Guy...

Tip of the hat to Roberta on the Gawker story...

Thursday, April 30, 2009

Ventris v. Kansas Opinion Issued

It's right here courtesy of a link from the SCOTUS Blog Orders and Opinions page.

The SCOTUS Blog continues to be one of the best sources for keeping track of what's happening at the USSC. The entire case of Ventris v. Kansas can be viewed here on the wiki page. Virtually every document filed with the court is available as is insightful analysis. Access to the information is free.

For years the "gold standard" in keeping up with events at the USSC has been BNA's U.S. Law Week. You have to wonder about the continued viability of that business model in the face of SCOTUS Blog.

Thursday, April 9, 2009

West Changes Keys, Topics

According to the latest West elert Newsletter, the Key Number system has been changed yet again. There has been a reclassification of over 300,000 headnotes, two new topics added (Privileged Communications and Protection of Endangered Persons), a total revision of four more topics (Convicts, Prisons, Disorderly Conduct, and Products Liability), and one topic has been removed (Breach of the Peace is now subsumed by Disorderly Conduct).

Researchers still complain about the antiquated headings for the Key Number system but it seems obvious that West is sincere in their attempts to stay current.

Wednesday, April 8, 2009

Who Is To Blame In Stevens Case?

Apparently, there is plenty of blame to go around. The NYTimes story from this morning mentions several possibilities. Prosecutorial misconduct knows many fathers. First, there are the attorneys themselves. Did they forget about Brady v. Maryland? Did they take Criminal Procedure in law school?

Next, there are the supervising attorneys, the top attorney-managers of the Public Integrity Division of the DOJ. By letting their subordinates act without supervision, they compounded the problem

Finally, there is the AG himself, Michael Mukasey. Ultimately everything your employees do comes back to the head of the organization. In this case, of course, it looks like Mukasey didn't bother to answer inquiries from head defense counsel, Brendan Sullivan. This was a real mistake. Anyone with a sense of history will remember Sullivan at the Oliver North hearings where he lost his temper and made the now famous "I am not a potted plant" statement. It can be dangerous not to respond to attorneys like Sullivan.

Thursday, April 2, 2009

Law Shucks Layoff Tracker

Interested in the current legal employment situation? Of course you are. Although depressing reading the Law Shucks Blog seems to be right on top of the recent trends. Check out the Layoff Tracker here.

One of the worrisome trends is the ratio of staff layoffs to attorney layoffs. A good rule of thumb is two staff employees (e.g., paralegal, secretarial, accounting) to one attorney. Attorneys can always prepare their own pleadings and correspondence; but, it takes talented staff to support the practice of law.

Wednesday, April 1, 2009

Prosecutorial Hubris

See it all unravel here.

Local Firm Downsizes

No kidding. It may be April 1st but this is no joke. Hartford firm Robinson & Cole has laid off 11 counsel and associate attorneys and 19 support staff. These layoffs will occur among the firm's seven Northeast offices. Read all about it here. Fortunately, the summer intern and freshman associate jobs are still intact. Whew!

Former Dean Newton Moves to Notre Dame

Nell Newton is leaving Hastings for Notre Dame. Read all about it here. Dean Newton was previously Dean at UConn Law...

Sunday, March 29, 2009

CRS Report - HR 1586 Bill of Attainder?

Followers of this blog may recall a brief discussion about whether any of the seven bills pending in the House designed to tax bonuses for private companies that have taken bailout money, if signed into law, could become an ex post facto law. The issue of whether the bill could be considered a "Bill of Attainder," also improper under the Constitution, was left for another day.

Now, the Congressional Research Service has issued a report that deals with many of the potential challenges to HR 1586 and S.651 if they became law. Blog maestro Paul Caron posts his analysis here and the CRS Report itself here.

After rejecting claims that the bills could be a denial of 5th Amendment due process rights, equal protection rights, or the takings clause, the Report deals summarily with the possibility that either bill could result in an ex post facto law. More interesting is the discussion that begins on p. 8 of the Report about the provision against a Bill of Attainder. Depending on how Congess acts from this point forward it appears that either bill could result in a Bill of Attainder. Interestingly, p. 16 of the Report deals with the issue of legislative history. How Congress decides what they will do and how they go about doing it may be a clear indication of whether the resulting law will be affirmed or if it could be struck down as unconstitutional.

Yoo Is In The News Again

Tenured Professor John Yoo of Boalt Hall in Berkeley, California, is being investigated by a Spanish judge on allegations of providing the legal framework necessary to support the torture of inmates at Guantanamo. Read the NYTimes story here.

Before you decide that such a case is inconsequential consider the prosecution of Chuckie Taylor, the Liberian dictator's son, by US prosecutors in Miami for acts of torture committed in Liberia. Taylor was convicted and sentenced to prison for 97 years.

Will conviction in a foreign court (which, of course, has yet to happen) affect Yoo's tenure? We may find out. How hot will it have to get at Berkeley before he leaves? That could be why he's teaching at Chapman (a 3rd tier school) as a visiting professor this year. For a thorough discussion of academic freedom and John Yoo, see Brian Leiter's post here.

Friday, March 27, 2009

Connecticut Supreme Court Briefs Now Online

Take a look at the Connecticut Supreme Court Briefs Online blog. Subject to some restrictions (read all about it on the main blog page) the briefs for pending cases will appear on this blog. Briefs will be archived. There will be access to a backfile including "historic" briefs. This could become the Connecticut version of the SCOTUS Blog.

Hat tip to Mark Dubois a tireless advocate for truth, justice, and the American Way.

Monday, March 23, 2009

Leiter on the Demise of Westlaw and Lexis

Oh my!

Richard Leiter, in an apparent response to a comment to his post of March 11th, has more fully explained his reasoning (to Anonymous) about why Westlaw and Lexis are going broke. His reasoning, set out in full here, cannot be faulted. WL and LN, in fact, seem to have forgotten all about the Golden Rule of legal research: It's the Secondary Sources, Dummy. As we move closer to free, full digital access to all government publications (state, local, federal) of all kinds (cases, statutes, regulations) the only remaining market will be in secondary sources. We will need a way to tie all that free and low cost digital information together. Leiter is right. The future is now. If they aren't already Westlaw and Lexis will soon be Zombie Publishers.

Saturday, March 21, 2009

Leiter Posts Results on Top 20 Law Journals

Remember the previous post about this survey? Hmmm. The results may surprise you. Or not. See Leiter's posting here. You might want to consider this list when deciding where to submit your next article. Or not.

Thursday, March 19, 2009

Is AIG Bonus Tax An Ex Post Facto Law?

As you can see from Thomas, several bills and regulations that propose to tax the AIG (or other) bonuses are working their way through Congress. Just put HR 1527, HR 1586, or HR 1598 in the search box to check out the progress of the bills. HR 1586 is the Rangel bill that passed the House today 328 - 93 as reported in a story in the NYTimes

But, if such a bill were enacted, would it be an ex post facto law? Such a law is prohibited by the United States Constitution - see Article I, Section 9, paragraph 3 which provides that - "No bill of attainder or ex post facto law shall be passed." What is an ex post facto law anyway? Can a law be retrospective without being ex post facto?

By way of a partial answer, take a look at Statler v. U.S. Savings & Trust Co. of Conemaugh, 192 A. 250 (Penn. 1937). A statute can be retrospective in nature and not be an ex post facto law where the statute in question does not impose a criminal penalty.

The court in Quinteros v. Hernandez, 419 F. Supp. 2d 1209 (C.D. Calif. 2006) may have summed up the overall state of the law best -
"Article I of the United States Constitution provides that neither Congress nor any state shall pass an ex post facto law. U.S. Const. Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. “Although the Latin phrase ‘ex post facto’ literally encompasses any law passed ‘after the fact,’ it has long been recognized ... that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990). The ex post facto clause is “aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” California Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995) (citations omitted). Thus, an ex post facto law “punishes as a crime an act previously committed, which was innocent when done[,] which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed....” Collins, 497 U.S. at 42, 110 S.Ct. at 2719 (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925)); Stogner v. California, 539 U.S. 607, 612, 123 S.Ct. 2446, 2450, 156 L.Ed.2d 544 (2003).
Do the bills pending in Congress impose criminal liability? No, only a new tax liability. Thus, the ex post facto clause does not pertain.

Library Cats

Hmmm. Here's documentation of the proliferation of "library cats" around the US. So. Will there be an increase in the number of "law library cats?" Or, is that just too specialized?

Hat tip to Andrea Joseph (a cat person and librarian).

Wednesday, March 18, 2009

Legal Job Losses To Hit Mainstream Media?

Those of you who follow the blog Above the Law will know that many recent posts have covered the loss of jobs in the legal market. This is especially true of job uncertainty for recent graduates. See this post for an example. Until now it would be fair to say that these employment problems have not been the focus of nationwide attention. That may be changing. Consider this recent post on Planet Money, the NPR blog and podcast. Planet Money is only one step away from "real" NPR reportage. And we can all agree that NPR is mainstream.

Tuesday, March 17, 2009

What 1Ls Should Learn in Legal Research Class

Both the Law Librarian Blog and the Cleveland-Marshall Law Library Blog report on Nancy Johnson's new article that appears on SSRN. Johnson's article makes great reading for teachers and librarians because it confirms and validates much of what we already know. It's also a good read for 1Ls (and other law students) because it tells you just how much farther you need to go to start to become competent researchers.

Friday, March 13, 2009

Westlaw and Lexis Losing Money?

Well. Check out Richard Leiter's blog entry here. If stock price is any indication of profit he may be right...

Yet Another Leiter Poll - Highest Quality Journals

Here's the link to yet another poll from Brian Leiter. This time he is interested in determining the highest quality law journals. Considering how the poll is being taken maybe we should start wondering about the validity of the results. As he points out himself, there really any legal academic who thinks the quality of articles in, say, the Harvard Law Review is really higher than the quality of articles in Journal of Legal Studies or Oxford Journal of Legal Studies or almost any of the faculty-edited journals?

Thursday, March 12, 2009

Online Legal Language Training By Cambridge, BU

As announced in this press release, Cambridge University Press, Boston University and TransLegal have launched online English language training course for the international legal community. The training is called the Program for Legal English Academic Development, i.e., PLEAD. Catchy or what? Check out the slick promotional video that includes a plummy English voice-over in the video below. The actual course is located on the TransLegal site.

The New Look In Presidential Signing Statements

President Obama has issued a memo limiting the use of presidential signing statements by the government. See the NYTimes for a complete story. The memo itself makes good reading. In regard to existing Bush signing statements, it says -
... executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.
Thus, every signing statement issued by Bush that calls for an agency to ignore or disregard the provisions of any law is now subject to scrutiny.

Consider the report issued in 2007 by the GAO about the practical effect of the Bush signing statements. The broad strokes of this detailed report (in the form of a 43 page letter to Senator Byrd and Representative Conyers) is that on occasion, agencies have declined to enforce laws in compliance with the terms of Bush's signing statements.

Wednesday, March 11, 2009

New Open Congress Wiki Now Available

This new wiki from Open Congress might actually become a useful resource. For now, check out the link to members of Congress who Twitter. Do you think that John McCain and Chris Dodd do their own twittering?

Which Law Schools Are Overrated?

Brian Leiter has been taking a vote to determine which law schools in the US News "Top 25" are the most overrated. You should check it out on his blog right here. The link to the electronic voting booth is near the bottom of the page.

This is your big chance to help reposition the undeserving.

Monday, March 9, 2009

Law Librarians Support Free Access to PACER

Readers of this blog may recall a post made in mid-February about PACER and the public's right to free access to federal court filings. The American Association of Law Libraries has also made its position clear in support of that idea. See their blog post about the follow up by Connecticut Senator Joe Lieberman to the E-Government Act of 2002. The AALL position is spelled out more fully on p. 3 of the Statement to the Obama-Biden Transition Team: Public Policy Position of the American Association of Law Libraries available in PDF here.

Yoo and Others in Trouble?

Readers of this blog may recall a post regarding Ackerman's call for the impeachment of Jay Bybee, John Yoo's boss. A Sunday NYTimes article recounts the problems that some of the Bush Administration's legal team are experiencing. Alberto Gonzales and David Addington still can't find work. Yoo went back to his tenured position at UC Berkeley and Bybee was appointed to the 9th Circuit before some of these issues were raised (who says the 9th Circuit is hopelessly liberal?).

What's next? There is a pending investigation about whether Yoo and Bybee violated ethical rules. You can read about it here. Could they be disciplined? Stay tuned...

Sunday, February 15, 2009

Federal District Court Briefs Online - For Free

As noted in yesterday's post, there is a movement afoot to allow more public access to federal district court civil case filings. This trend is of real benefit to legal researchers. One of the best sources and one of the least utilized sources of organized legal information are the briefs being filed in various courts. True, many briefs are available through Westlaw and Lexis but these have a price tag for access. And, access through PACER, the federal court database, can be costly and all too clunky.

How to access for free? Consider using They are compiling federal district court dockets and associated documents in many recent civil cases. Here is their portal to federal district court filings.

How to utilize this resource? Two ways come immediately to mind:
1. allows the researcher to browse by type of case and to limit the field of cases to a particular jurisdiction, even a particular judge. If you want Social Security disability insurance cases for the Southern District of New York its easy to do - just click on the categories to limit your search.

2. Find a recent case (the Justia database only goes back a few years) you think applies to your case. Determine the case name or docket number and then search to find the filings in that case.
You will have to be a little inventive. There is no full text searching for these filings using either PACER or Yet.