Monthly Archives: May 2010

Legal Publishing in Antebellum America

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We just received this very interesting looking book today by law professor M. H. Hoeflich (catalog record below).

From the jacket:

Legal Publishing in Antebellum America presents a history of the law book publishing and distribution industry in the United States.  Part business history, part legal history, part information history, M. H. Hoeflich’s book shows how various developments such as printing and binding, the introduction of railroads, and the expansion of mail service contributed to the growth of the industry from an essentially local one to a national scale.  Furthermore, the book ties the spread of a particular approach to law, that is, the “scientific approach” championed by northeastern jurists, to the growth of law publishing and law bookselling, and shows that the two were critically intertwined.

Here’s a paragraph from the first chapter that helps set the stage for what follows:

In the period from the founding of the new republic to the beginning of the Civil War, American law and the American legal profession underwent profound changes.  This was a period of extensive legal syncretism of American and English law.  English law was neither wholly rejected nor wholly accepted, and every lawyer during this period had to know something of English statutes and cases as well as the great treatise literature that had dominated English legal thought, particularly the works of Coke and Blackstone.  At the same time each of the new American states and the new federal government were developing legal literatures of their own, in courts, in legislatures, and in law offices and law schools.  No antebellum American lawyer could risk not knowing his own state’s and nation’s laws.  Finally, American lawyers of the period were cosmopolitan in their thinking and writing.  If they could not find relevant English or American law they would gladly look to the law of ancient Rome, and of contemporary France or Germany, among others.  The new nation in its formative period offered lawyers unparalled freedom to look widely for their authorities.

The author, in a Bibliographical Note, explains that he has “established a Web site: www.antebellumlegalpublishing.org. On this site will be found detailed bibliographies of both primary and secondary sources used in this volume, digital reproductions of many of these sources, and comments about these sources including, where useful, location information.”  This site will be kept current as new material is discovered and it will also provide a wiki forum for readers to post comments.

Here’s its catalog record:

Author: Hoeflich, Michael H.

Title: Legal publishing in antebellum America / M.H.
                        Hoeflich.

Related e-resource: Contributor biographical information
http://catdir.loc.gov/catdir/enhancements/fy1005/2009053585-b.html

Electronic version: Table of contents only
http://www.loc.gov/catdir/enhancements/fy1005/2009053585-t.html

Imprint: New York : Cambridge University Press, 2010.

  Physical Description: xiv, 190 p. ; 24 cm.
                      : Machine generated contents note: Introduction; 1. A
                        bookish profession; 2. Birth of the law book trade; 3.
                        Spreading the word: catalogues and cultivation; 4.
                        Bidding for law books; 5. Risk, subscriptions, and
                        status; 6. John Livingston, esq.: law bookseller as
                        cultural entrepreneur; 7. Conclusion: selling the law
                        in antebellum America.
               Summary: “Legal Publishing in Antebellum America presents a
                        history of the law book publishing and distribution
                        industry in the United States. Part business history,
                        part legal history, part history of information
                        diffusion, M. H. Hoeflich shows how various
                        developments in printing and bookbinding, the
                        introduction of railroads, and the expansion of mail
                        service contributed to the growth of the industry from
                        an essentially local industry to a national industry.
                        Furthermore, the book ties the spread of a particular
                        approach to law, that is, the “scientific approach,”
                        championed by Northeastern American jurists to the
                        growth of law publishing and law book selling and
                        shows that the two were critically
                        intertwined”–Provided by publisher.
          Subject (LC): Legal literature–Publishing–United
                        States–History–18th century.
          Subject (LC): Legal literature–Publishing–United
                        States–History–19th century.
                  ISBN: 9780521192064
                  ISBN: 0521192064

Law libraries as innovation centers

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Harvard Law Library director John Palfrey is quoted in this story from today’s Boston Globe:

Boston Globe, Monday, May 24, 2010

Home / News / Education  

Harvard’s paper cuts
School library works to maintain stature in the shift to digitalBy Tracy Jan

The thin, tattered book, an 1899 dissertation on Homer, written in French, is tucked into one of the more than 40 shelves devoted to the epic poet in the stacks of Widener Library. Collecting obscure works like this one has helped Harvard amass the world’s largest university library…”Libraries have to think of themselves as innovation centers, and not just repeat what we have done in the past, “said Harvard Law professor John Palfrey, who is a leading a project to shape the future of the school’s libraries.

. . .

Palfrey has added engineers, statisticians, and graphic designers to the law school library staff. His team is working on a Web application that browses a virtual bookshelf with works stacked against one another to re-create the experience of wandering through musty stacks and serendipitously stumbling upon titles.

The library is also planning to build a virtual reference desk, where students who rarely seek the help of librarians can solicit research advice without having to set foot in a library. Librarians would assist students through e-mail, instant messaging, text messaging, and Skype.

. . .

And Harvard Law School is in discussions with other law schools about having each school collect in specialized areas.

. . .

The Eggplant That Ate the Spokane County Law Library

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You’d better watch out for the eggplant that ate Chicago,
For he may eat your city soon.
You’d better watch out for the eggplant that ate Chicago,
If he’s still hungry, the whole country’s doomed.

 

The 3 Geeks and a Law Blog pointed me to a story in the Spokane, Washington newspaper Spokesman-Review.  I won’t rehash what he 3 Geeks blog item “Spokane County Law Library Needs Bailout for Westlaw Bills” opines, but the Spokesman-Review story by reporter John Craig, “Spokane County law library falls behind on bills,”  is disturbing to me on several levels.

The story quotes the librarian as saying that her Westlaw fees “are three times as much as the company was charging Pierce County . . . for the ‘exact same’ service.”  I do not know the details, but I can see how a reader might be led to believe that this poor county law library is being gouged by a huge monopolistic corporation. 

What is also disturbing to me is the report that the library is averaging $ 12,000 a month for Westlaw service, while its annual budget is only $ 220,000.  The library’s total labor costs are reported to be $ 78,236, which means that the county is paying Westlaw roughly twice what it’s paying its staff.   At the Stanford Law Library the total we spend for our staff is roughly twice what we spend for all materials (online and print), and that seems right to me — it’s the staff that is our most valuable resource.

The third disturbing element to the story is the suggestion that perhaps the county law library is a “relic” and should be shuttered for more “cost effective approaches” such as having public libraries (and not specialized law libraries) serve the legal information needs of the public.  To me this is short-sighted on so many levels that I could go on and on for pages about why this is a bad direction.

If this story does not help build a case for Law.gov, I don’t know what would.

Many states have discontinued publishing official state reports and rely upon West instead.  Appendix D of Fundamentals of Legal Research, 9th Edition, by Steven M. Barkan, Roy M. Mersky and Donald J. Dunn, includes a table “States That Have Discontinued Publishing Official State Reports” (excerpted below) showing what states have adopted West’s National Reporter System as the official publisher.

Washington is not one of these states.   It appears that Washington is one of the more progressive states in providing decisional law to the public for free.  The Washington State Court website contains free opinions from the last 90 days, and then links to www.legalWA.org ; the LegalWA site links directly to the Municipal Research Services Center of Washington, a nonprofit dedicated to providing free legal resources for Washington where case law from 1854 forward can be found.

There is definitely a place for expensive LexisNexis and Westlaw bills — in the high stakes world of Biglaw litigation (with clients to bill back) for certain, but in a county public law library?  There has got to be a better way.

Here’s an excerpt from that table I mentioned above:

B. STATES THAT HAVE DISCONTINUED PUBLISHING OFFICIAL STATE REPORTS.

Except for Louisiana, all states have discontinued their official reports have adopted West’s National Reporter System, or an offprint of the National Reporter System, as official.  Alaska has used the Pacific Reporter as its official reporter since it became a state.

[Copied below are the states listed in this table, next to the "Year of Last Case"]

Alabama                            1976

Ala. App.                           1976

Colorado                           1980

Colo. App.                        1980

Delaware                           1966

Florida                               1948

Indiana                              1981

Ind. App.                          1979

Iowa                                   1968

Kentucky                         1951

Louisiana                        1972

Maine                               1965

Minnesota                      1977

Mississippi                    1966

Missouri                        1956

Mo. App.                       1952

North Dakota              1953

Oklahoma                    1953

Okla. Crim.                  1953

Rhode Island             1980

South Dakota             1976

Tennessee                   1971

Tenn. App.                  1972

Tenn. Crim. App.      1970

Texas                            1962

Tex. Crim. App.       1963

Utah 2d                        1974

Wyoming                    1959

LOST LAWS: WHAT WE CAN’T FIND IN THE U.S. CODE

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LOST LAWS: WHAT WE CAN’T FIND IN THE U.S. CODE

by Will Tress

Golden Gate University Law Review, Vol. 40, Issue #2, Winter 2010, p. 129

Conclusion (p. 164)

Three features that detract from the U.S. Code as the comprehensive and authoritative source for federal statutes are rooted in the Code’s historical development.  The prima facie titles of the Code lack sufficient notice that the authoritative language of the statutes codified there resides in the Statutes at Large.  Better signposting for those titles is suggested.  Amendments to the positive law titles that are not drafted in the proper “direct amendment” format are relegated to footnotes, where they can be overlooked by the uninformed reader.  Annual corrective bills would ameliorate this problem.  General laws that are considered temporary, such as those included in appropriations acts, are left out of the Code entirely.  Pointers to these uncodified laws might be incorporated into an unofficial electronic version of the U.S. Code as part of the search results by sidebar references.  Such an electronic Code could easily provide the signposts to the session laws for prima facie titles and even insert draft versions of amendments into positive law titles pending official correction legislation.  The Congressional Offices of Code Revision and Legislative Counsel should collaborate with the Government Printing Office to use new information technology to fix old problems with the U.S. Code.

This article is going to be required reading for our class next year.  Its discussion of “the prima facie code” and the positive law titles, a topic that always throws the class for a bit of a loop, is the best I’ve seen on the subject, with excellent examples (and potential homework questions) in the footnotes.

What we don’t know….RECAP/Pacer Survey

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At the NOCALL Spring Institute in March, I demonstrated the RECAP plug-in.  After the presentation, one attendee stopped by and suggested that not enough librarians are using the plug-in because they just don’t know about it.  I must admit that the comment surprised me — so, I decided to do a quick survey.

With the blessing of the folks at RECAP (CITP at Princeton), I created a super simple survey trying to see  if we (librarians) know about RECAP and if we do, do we use it and teach about it.  I created a survey on Zoomerang and sent the link to the following e-mail lists: LAW-LIB, NOCALL, and All-SIS, and also spread the word on Twitter.

As of May 15th, here is what the we saw from the survey:

There were 261 completed surveys.  Law firm librarians represented 18% percent of the respondents; academic law librarians represented 70%, and state/county/federal librarians represented 6% of the replies.

Ninety percent of the respondents said that they use PACER.

However, 42.4% of the 257 folks who answered the question “Have you ever heard of RECAP?” said “no”.   The academic law librarians comprised nearly 78 percent of the “no” votes (and 63% of the “yes” votes).   Seventy-three percent of the 45 law firm librarians who responded to this question had heard of RECAP.

Seventy-two percent of the respondents said that they didn’t have RECAP installed on any computers in their library.  And, of that group, 12% don’t use the plug-in because they use IE or Chrome for their browser (plug-in not compatible with those browsers);  15% don’t have the plug-in installed because their employers don’t allow it; and the largest part, 58%, don’t have it installed because they are unfamiliar with the plug-in.

And, the last question asked if respondents provided training on RECAP or taught RECAP in advanced legal research courses.  Only 6% of the respondents said “yes” to this question.  Ninety-four percent are not providing any training or instruction on RECAP.  (Note: We have been showing our students how to use RECAP and we find that our clinic students are often most receptive to this type of training.)

I hope that after reading this survey, more librarians might want to learn more about RECAP and try to use it at work and with their patrons.  Given the new look and feel of the PACER website (launched this weekend), it is good to know that the RECAP plug-in still works just fine.  What a good time to install RECAP.

A Draft 50 State Survey of Copyright Claims in State Codes and Court Opinions

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In preparation for the Law.gov event held at Stanford Law School in January of this year, I started to put together a list of how each state treats its legal publications for copyright purposes.  Specifically, I looked at the web versions of state codes to locate any claims in copyright over the code text.  This led to searching in the print editions held in our library to see what copyright was claimed in these series.  Finally I searched the codes themselves (aided by the indexes provided on Westlaw) to find any claim that had been codified.  Along the way, the search expanded to how states treat any copyright claims in their court opinions (either online or in their code) as well.

My  method was not scientific.  I looked for clear statements on each website directly related to the code or opinions themselves.  Small copyright notices at the bottom of pages that seem to claim copyright in the pages themselves were not considered claims over the code text or opinions.  I understand that an argument can be made that those symbols of copyright could extend to the entirety of the material posted by that entity.

A very rough draft of the results is posted here.  I obviously have a lot of work left to do, including cleaning up some of the questions marks that have been left unanswered.  Official print versions for the state codes and reporters will also need to be consulted to fill out these charts.  And administrative law is just a glint in my eye at the moment.

I hope this document can be expanded and that it may prove useful in the current discussion on access to state and federal primary sources of law.

Between a Rock and a Free Site

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We are big fans of free and low-cost legal research alternatives here at LRP.  And, we share our enthusiasm with our students in Advanced Legal Research.

But what do you do when there are apparent discrepancies in the free sites that you steer your students to time and time again?

Here is the story:

A professor stopped by the library one day and started off by saying how great Cornell’s LII site is but was wondering about a potential error on their site.

What was the error?

In the Federal Rules of Appellate Practice, Rule 4: Appeal as of Right — When Taken, there is a section dealing with appeals in criminal cases.

In 2009, that rule was modified: defendant’s notice of appeal needs to be filed within 14 days of certain events.  The prior version of the rule required that this notice needed to be filed within 10 days.

The big change: 14 days now; before, 10 days.

As of May 13th, the version of FRAP Rule 4 on LII’s site still shows the text of the old rule.  The top of that page states that it is current through 2007.  (And, not 2009.)

I decided to look around at other important research sites and see what was online.

The Office of the Law Revision Counsel prepares and publishes the United States Code, and on their site (uscode.house.gov) they have the text of the code and the rules.  They also have the wrong version of FRAP Rule 4.  The LII folks work off of the House site, so it isn’t that surprising.  This House version has a currency date as of 1/2009 — the rule was changed in March, taking effect in December 2009.

However, another site at the US House of Representatives has it right.  On the House Judiciary Committee site, they have the correct version of the rule posted on their Procedural Documents page.

The Administrative Office of the U.S. Courts has the correct version posted on their Rules page.   I also checked a number of Federal Court websites and all had the current version.

The GPO Access site directs you to the most recent printed, official version of the US Code (2006), so this is out of date.  And, worth noting: “The information contained in the U.S. Code on GPO Access has been provided to GPO by the Office of the Law Revision Counsel of the U.S. House of Representatives.”   But, of course.   Also, FDSys has such a great interface and so much useful information, but it is only current through the last official supplement — missing the current version of this rule.

As to various commercial versions: Westlaw and Lexis have the correct version.  And, FastCase and CaseMaker also have the current version.

However, newcomer on the block, Bloomberg’s BLAW has a 1998 version — very out of date (and still with the 10 days instead of 14 days mistake, among others).

So, what is the right thing to say to your class?  Do we feed the research paranoia, as Bob Berring describes it, where students feel the need to double or triple check everything online on multiple sources?  Or do we frustrate the students with the caveat that sometimes even the best resources aren’t going to do the trick?

This is truly a teachable moment, but not the type of lesson I had in mind.

Practitioner’s Guide to International Law

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The Young Lawyers Section of the Law Society of New South Wales (Australia) has posted online the full-text of their  ”Practitioner’s Guide to International Law.” The book includes chapters on the United Nations, WTO & Trade, international environmental law, protection of cultural property, conflict of laws, and international litigation before Australian courts.

Practitioner’s Guide to International Law

http://www.lawsociety.com.au/idc/groups/public/documents/internetyounglawyers/065481.pdf

Report on the Long-Term future of the European Union

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The European Union recently released the following report:

Project Europe 2030: Challenges and Opportunities. A report to the European Council by the Reflection Group on the Future of the EU 2030.

http://www.reflectiongroup.eu/wp-content/uploads/2010/05/reflection_en_web.pdf

Report Chapters:

RENEWING EUROPE’S ECONOMIC AND SOCIAL MODEL

GROWTH THROUGH KNOWLEDGE: EMPOWERING THE INDIVIDUAL…

THE CHALLENGE OF DEMOGRAPHY: AGEING, MIGRATION AND INTEGRATION

ENERGY SECURITY AND CLIMATE CHANGE: A NEW INDUSTRIAL REVOLUTION

INTERNAL AND EXTERNAL SECURITY: THE ETERNAL CHALLENGE

EUROPE IN THE WORLD: BECOMING AN ASSERTIVE PLAYER

THE EU AND ITS CITIZENS

BUILDING ON THE EU’S STRENGTHS

Members of the Reflection Group and authors of the report:

Felipe González Márquez, Chairman

Vaira Vīķe-Freiberga, Vice-Chair

Jorma Ollila, Vice-Chair

Lykke Friis (until November 2009)

Rem Koolhaas

Richard Lambert

Mario Monti

Rainer Münz

Kalypso Nicolaïdis

Nicole Notat

Wolfgang Schuster

Lech Wałęsa