Category Archives: Citation

Long titles of Chinese statutes

Posted on by
Reply

The International Energy Agency book “Cleaner Coal in China” has posted its annexes online. Annex III includes a list of Chinese  statutes related to renewable energy and environmental law. The Annex provides the full title of each statute in English and Chinese, in addition to information on the date of passage, entry into force, and the government organ that issued the law.  Because uniform translations of statutes are uncommon, having the dates and the decree numbers of the government bodies helps locate the full-text in English or Chinese of these laws in databases, such as LexisNexis China Law Database, IsinoLaw, LawInfoChina and Westlaw China. Let’s hope that all publications will provide such complete and useful bibliographic references to Chinese legislation.

Cleaner Coal in China http://www.iea.org/w/bookshop/add.aspx?id=355

Book Annexes: http://www.iea.org/Textbase/nppdf/free/2009/Coal_china2009_annexes.pdf

The Next Generation of Legal Citations Survey, and Authentication and Link Rot Issues

Posted on by
2

Link rot is a pet peeve of mine.  A posting I made on June 11, 2008, “Law School Laptop Bans,” already has a broken link to a news story and the posting isn’t even a year old yet.  And I can’t count the number of times I have found a terrific-sounding right-on-point resource in a law review footnote, only to find its URL leads to the dreaded “404 Not Found.”  But it’s more than a pet peeve issue, as this survey makes clear:

“The Next Generation of Legal Citations: A Survey of Internet Citations in the Opinions of the Washington Supreme Court and Washington Appellate Courts, 1999-2005″

Journal of Appellate Practice and Process, Vol. 9, No. 2, Fall 2007

TINA CHING, Seattle University School of Law

As more legal research is conducted online, it is reasonable to conclude that there will be a corresponding increase in citations to the Internet by judges in their opinions. With the widespread public use of the Internet to access information along with the constant changes and impermanence of websites, citing to the Internet should be an issue of increasing concern to the legal community across the country. This paper surveys the types of Internet sources the Washington state Supreme Court and Appellate Court justices are citing. It discusses the interrelated issues of link rot and the impermanence of web pages, citation format, authentication and preservation of online electronic legal information.

 

Source:  LSN Legal Information & Technology Vol. 1 No. 11,  04/29/2009

Southern Africa Case Citator from SAFLII

Posted on by
2

The Southern African Legal Information Institute (SAFLII) has created a link to the LawCite citator  for case law from Botswana, Kenya, Lesotho, Mauritius, Namibia, South Africa, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe. Search results list subsequent cases that cite your case. For selected cases, a table of authorities is also provided. The citator database is searchable by citation, party name, jurisdiction, and key word.  Access is free.

Hat tip to Karen Shear of the Constitutional Court of South Africa.

Law Cite – SAFLII

http://www.saflii.org/LawCite/

A Statute by Any Other (Non-Acronomial) Name Might Smell Less Like S.P.A.M., or, The Congress of the United States Grows Increasingly D.U.M.B

Posted on by
1

“A Statute by Any Other (Non-Acronomial) Name Might Smell Less Like S.P.A.M., or, The Congress of the United States Grows Increasingly D.U.M.B.”

Cleveland-Marshall Legal Studies Paper No. 08-151

CHRIS SAGERS, Cleveland State University – Cleveland-Marshall College of Law

While the question why we Americans name our statutes is rarely asked and not obvious, it turns out to be extremely interesting and, at least in the case discussed in this essay, illuminating. Namely, it appears to have occurred to someone on Capitol Hill that there is something to be gained by devising statute names that spell out clever acronyms. These things normally aim to be amusing or cute in some sense, and also usually serve some rhetorical purpose. A first surprise about them is their recent and shocking profusion. During the first two hundred years of the Republic there appear to have been perhaps two such statutes. In the twenty years since, there have been at least fifty-three.

But on closer examination the practice turns out to be not actually so amusing after all, and thinking about it is not just some trite diversion. This trend in its detail turns out to have something fairly sobering to say about the way our Congress has operated for some years now. It also has something to say about who our elected representatives are as people, how they see their responsibilities, and just how low their opinions of we their constituents really must be. The ugliest thing about it is that, with we Americans, this sort of thing works; American democracy, like the popular names of several recent statutes, is a joke that isn’t funny.

 

And I love footnote #2 from the article:  “Though librarians are paying attention, God bless ‘em.  See Mary Whisner, What’s in a Statute’s Name?, 97 L. Lib. J. 169 (2005).

 

Source:  LSN Law & Rhetoric Vol. 2 No. 9,  02/03/2009

The Ethical Conundrums of Unpublished Opinions

Posted on by
Reply

Here’s a new, all-you-ever-wanted-to-know plus more article about unpublished/depublished/non precedential/etc. decisions:

“The Ethical Conundrums of Unpublished Opinions”

Shenoa L. Payne

44 Willamette Law Review 723-760 (2008 )

INTRODUCTION

I. BACKGROUND AND HISTORY OF UNPUBLISHED OPINIONS

   A. The Emergence of Unpublished Opinions

   B. The Original Justifications for No-Citation Rules

   C. The Electronic Availability of Unpublished Opinions

   D. The Debate over No-Citation Rules: The Loud Roar from the Eight Circuit

   E. The Treatment of Unpublished Opinions by State Courts and Federal Circuits

II. DEPUBLISHED OPINIONS: WHEN DECISIONS MOVE FROM PRECEDENT TO SECRET

   A. The Depublication Process in the California Courts

   B.  The Changing the Message Behind Depublicaton

   C.  The Criticisms of Depublication

   D.  The Counterarguments

   E.  The Alternatives to Depublication

   F.  The Responsibilities of Lawyers Regarding Depublication and Precedent

III. FEDERAL RULE OF APPELLATE PROCEDURE 32.1: A REAL CHANGE?

   A.  Background

      1. The Value of Unpublished Opinions

      2. The Necessity of Unpublished Opinions for Busy Courts

      3. The Increased Costs of Legal Representation

   B. The Text of Federal Rule of Appellate Procedure 32.1

   C. Is Federal Rule of Appellate Procedure 32.1 a Real Change?

IV. COURTS SHOULD BE REQUIRED TO GIVE UNPUBLISHED OPINIONS THE RESPECT THEY ARE OWED.

   A. Skidmore v. Swift & Co.

   B.  Considerations that Give an Unpublished Opinion “Power to Persude,” if not “Power to Control”

      1. Factually Indistinguishable Cases

      2. Issued by the Same or a Controlling Court

      3. Concerns a Unique Question of Law or Fact

      4. Possesses Other Factors that Give it Power to Persuade, if not Power to Control

   C. The Goal of Uniformity

   D. Guidance for Attorneys

   E. Judicial Accountability and Judicial Efficiency Concerns: A Good Balance

V. SOME PRACTICAL IMPLICATIONS

   A. Why Do Attorneys Want to Use Unpublished Opinions?

   B. Can Attorneys Provide Competent Representation Under No-Citation Rules?

   C. Are Attorneys Able to Provide Diligent Representation in the Face of No-Citation Rules?

   D. Can an Attorney Argue Points Based on Unpublished Opinions Without Bringing a Frivolous Claim?

   E. Does an Attorney Ethically Have to Cite an Unpublished Opinion Contrary to His or Her Position in   Jurisdictions Where No-Citation Rules are Banned?

   F. Is Ignoring Unpublished Opinions in Criminal Cases a Violation of the Constitution?

CONCLUSION

With the availability of unpublished opinions, the original reasons for no-citation rules no longer justify their continued existence. In the face of a long and heated debate, FRAP 32.1 is a step  toward appropriately addressing the problems associated with unpublished opinions. Citation to unpublished opinions is extremely important. However, FRAP 32.1 is extremely limited and allows unpublished opinions only to reach the very bottom tier of precedent, which does not require courts to give unpublished opinions any particular weight.

Courts should employ a uniform rule requiring a Skidmore type deference that gives unpublished opinions respect when due based on four factors: (1) if the facts are indistinguishable; (2) if the unpublished opinion is issued in the same or a controlling court; (3) if the opinion addresses a unique question of law or fact not addressed in published opinions; and (4) all those other factors which give it power to persuade, if lacking power to control. Such a rule would bring uniformity to the treatment of unpublished opinions across federal circuits, give strong guidance to attorneys in assessing their cases, and balance the concerns of judicial efficiency and judicial accountability.

Attorneys face real ethical conundrums even though FRAP 32.1 has prohibited no-citation rules in federal circuits. Attorneys are still bound to (1) local federal rules for unpublished opinions issued prior to January 1, 2007 and (2) the rules of the state courts in which they practice. This means that attorneys must carefully consider their ethical duties of competence, diligence, candor toward the tribunal, the appearance of frivolous claims, and also consider whether they are violating their duties of effective assistance of counsel owed to criminal defendants. Until a uniform rule is in place, such as requiring a Skidmore type deference, attorneys will continue to face challenging ethical conundrums in relation to unpublished opinions.

Authority in law

Posted on by
Reply

“Authority and Authorities“

Virginia Law Review, Forthcoming

FREDERICK SCHAUER, Harvard University – John F. Kennedy School of Government

Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities – cases, statutes, constitutions, regulations, articles, and books, primarily – are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.

 

Source:  LSN Jurisprudence & Legal Philosophy APS Vol. 9 No. 29,  08/15/2008