Category Archives: Court opinions

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.

Keeping up with the federal courts with CourtListener

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The CourtListener.com

From the website:

The goal of the site is to create a free and competitive real time alert tool for the U.S. judicial system.

At present, the site has daily information regarding all precedential opinions issued by the 13 federal circuit courts and the Supreme Court of the United States. Each day, we also have the non-precedential opinions from all of the Circuit courts except the D.C. Circuit. This means that by 5:10pm PST, the database will be updated with the opinions of the day, with custom alerts going out shortly thereafter.

This [open source] site was created by Michael Lissner as part of a masters thesis at the University of California, Berkeley School of Information.

Introducing and Integrating Free Internet Legal Research into the Classroom

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“Introducing and Integrating Free Internet Legal Research into the Classroom”

University of Miami Legal Studies Research Paper No. 2010-05

JOOTAEK LEE, University of Miami – School of Law

The Global financial crisis has been discouraging legal researchers and practitioners from accessing high-cost databases.Many legal professionals and researchers are under financial pressures mainly because of the increased kinds and cost of subscription databases such as Westlaw and Lexis; thus, many legal professionals and researchers started considering free or less expensive internet resources for their research and classes. On the other hand, the number of these free or less expensive internet resources is increasing every year, and their coverage for legal sources is also expanded. Furthermore, just as the creation of a list of hypertext links to internet resources is not an easy task anymore because of the gigantic number of resources available, so simply providing created list to the law students will likewise irresponsibly confuse and intimidate them.

First, this article attempted to define internet legal research and to show the difficulty of distinguishing internet legal research from other online searches. Next, pros and cons of free or less expensive internet resources were discussed. Lastly, this article attempted to introduce and apply usability to various internet resources, criticizing Lexis and Westlaw by the principle of usability web-design.In conclusion, the necessity and prospective plan to establish evaluation standards for free internet resources including coverage, currency, accuracy, authority, appropriateness, and perspective will be explored

Source:  LSN: University of Miami School of Law Legal Studies Research Paper
Series Vol. 4 No. 2,  04/21/2010

Judiciary Approves PACER Innovations To Enhance Public Access

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http://www.uscourts.gov/Press_Releases/2010/JudicialConferenceMar2010.cfm

NEWS RELEASE

Judiciary Approves PACER Innovations To Enhance Public Access

 
Contact:
 David Sellers, 202-502-2600

 
March 16, 2010 –  The Judicial Conference of the United States today approved key steps to improve public access to federal courts by increasing the availability of court opinions and expanding the services and reducing the costs for many users of the Public Access to Electronic Court Records (PACER) system. At its biannual meeting in Washington, D.C., the Conference voted to:

 
 
� Allow courts, at the discretion of the presiding judge, to make digital audio recordings of court hearings available online to the public through PACER, for $2.40 per audio file.

� Adjust the Electronic Public Access fee schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle, in effect quadrupling the amount of data available without charge. Currently, users are not billed until their accounts total at least $10 in a one-year period.

� Approve a pilot in up to 12 courts to publish federal district and bankruptcy court opinions via the Government Printing Office’s Federal Digital System (FDsys) so members of the public can more easily search across opinions and across courts.

The Conference approved the plan to make digital audio recordings available on PACER after a two-year pilot project showed significant public interest in accessing these files. Prior to the pilot, such access was possible only by obtaining a CD recording from a court clerk�s office for $26. During the pilot, Internet access to the same content cost eight cents, but the $2.40 fee approved today was deemed by the Conference to be reasonable and come closest to recouping, but not exceeding, costs. Digital audio recording is used in most bankruptcy and district courts (where magistrate judges account for most of the usage).

For printed court documents, the $10 fee waiver affects tens of thousands of PACER users. In fiscal year 2009, about 153,000 PACER account holders�nearly half of all active accounts� did not receive a bill. For that 12-month period, a quarterly waiver would have affected an additional 85,000 accounts� resulting in 75 percent of all active accounts not receiving bills. Analysis of fiscal year 2008 billing data showed a similar impact.

As mandated by Congress, electronic access to court information is funded through reasonable user fees, and not through taxes paid by the general public. Last year, PACER received more than 360 million requests for electronic access to information from the over 33 million federal cases that have documents online. The Electronic Public Access fee revenue is used exclusively to fund program expenses and enhancements that increase public access to the courts. As a result, PACER is a very economical service: the charge for accessing filings, other than opinions, is just eight cents per page, with a maximum charge of $2.40 regardless of the length of a document. At federal courthouses, public access terminals provide free PACER access to view filings in that court, as well as economical printouts (priced at ten cents per page). The charge for copies from the paper case file in the clerk’s office was–and remains–50 cents a page.

All court opinions are available through PACER free of charge, and that will not change. The pilot project to make bankruptcy and district court opinions also available through the Government Printing Office’s system will enhance public access to those opinions.

The Judiciary is conducting a comprehensive assessment of its Electronic Public Access Program services to identify potential enhancements to existing services and new public access services that can be provided to litigants, the bar, and the public. All active PACER users were welcomed to participate in at least one of the assessment surveys, focus groups, or interviews. The results of that assessment will be available by July 2010.

The US Party/Case Index is a tool that enables users to locate a case across the federal courts. The application has been running in its current format since September 1999, and currently receives over 200,000 searches daily. A new version of the search tool, which includes additional search capabilities and result formats, has been developed and will be deployed under the new name PACER Case Locator this month.

Judge says: Keep this opinion out of Westlaw and LEXIS

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 Judges make decisions and write opinions.  Some opinions get published and some do not.  Unpublished opinions get unofficially published in West’s Federal Appendix and very often show up online.   And on infrequent occasions some opinions find their way into LexisNexis but not Westlaw; others are found in Westlaw but not LexisNexis.

Here’s a case that caught my eye while doing some docket searching (I drink POM Wonderful, so that’s why it stood out).

On December 21, 2009 Judge A. Howard Matz, of the United States District Court for the Central District of California, issued an 7-page order in the case of POM Wonderful LLC v. Welch Foods, Inc..   This opinion includes, among other things, a discussion of standing under the California Unfair Competition Act and the California False Advertising Act.  At the end of the document, the judge writes:  “This Order is not intended for publication or for inclusion in the databases of Westlaw or LEXIS.” (emphasis mine)

A quick search of Bloomberg Law dockets produces at least a dozen other orders from this same judge with this same language.

So what about Bloomberg Law.com?  Or Google Scholar?  Or Fastcase?  Justia?  May any/all of them include the order?

Or is it just the strength of the Wexis duopoly and the judge really means he does not want the order published online anywhere.

LexisNexis and Westlaw have been the big players for decades.  But Google really could be a game-changer.  As a review article in the March 8, 2010 issue of The Recorder (“Worthy Adversary”) by Oliver Benn of Google Scholar points out:

If Google wants to devote its resources to addressing its current limitations, the future of legal research could become very different.  Many courts accept briefs electronically.  Why not hyperlink cited cases in the brief to the cases’ free Google pages?

And getting back to POM Wonderful, apparently it is available in LexisNexis and Westlaw, despite the judge’s request that it not be (please see comment from Bev Butula).

SSRN: Judgment in the First Case Before the African Court on Human and Peoples’ Rights

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Available on SSRN:

Judgment in the First Case Before the African Court on Human and Peoples’ Rights: A Missed Opportunity or Mockery of International Law in Africa?

Chacha Bhoke Murungu

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1526539

Full-text of the court’s decision can be found at the Minnesota Human Rights Library: In the Matter of Michelot Yogogombaye v. Republic of Senegal.

http://www1.umn.edu/humanrts/africa/comcases/1-2008.pdf

http://www1.umn.edu/humanrts/africa/comcases/1-2008b.pdf

 

Article Abstract:     
On 15 December 2009 the African Court on Human and Peoples’ Rights (‘the African Human Rights Court, or ‘the court’) sitting in Arusha, Tanzania delivered its first ever judgment. The purpose of this article is to reflect and comment on several issues and principles found in this first ever case to be filed before the court. In the course of discussion, the article will present the conclusion reached by the court and the Separate Opinion of Judge Fatsah Ouguergouz. At first, a discussion is on the arguments raised by the applicant, Mr Michelot Yogogombaye against Senegal in respect of the on-going legal proceedings instituted in Senegal against Hissene Habre, former President of Chad, charging him with crimes against humanity, particularly torture committed in Chad between 1982 and December 1990. Then, a discussion is on Senegal’s preliminary objections to the application touching on the lack of jurisdiction by the court on the basis that Senegal has not made a declaration under article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol) allowing individuals to institute cases against it before the court.

Although the judgment of the court did not go into the merits of the case, this article discusses the implications that the judgment would have had on the developments of international law in Africa, had it gone into merits and substance of the case. It examines several key issues that had been raised by the applicant before the court. These include ‘functional immunity’ of former heads of state in relation to serious human rights violations as alluded to by the applicant; the principle of ‘universal jurisdiction’; retroactivity of penal laws; status of a political asylee under the law on refugees; issues of access to the court by individuals under the concept of personal jurisdiction (jurisdiction ratione personae) as reflected in article 5(3) of the Protocol, and whether the court may ‘receive’ applications from individuals against a state which has not made an express declaration under article 34(6) of the Protocol. In this connection, the article follows the interpretation of the words ‘receive’ and shall’ as found in articles 5(3) and 34(6) of the Protocol, and offers its own interpretation of ‘individuals’ as used in the same provisions of the Protocol. Further, it examines the possibility of the court’s judgment to suspend the decision of the Assembly of the African Union (AU) mandating Senegal to try Hissene Habre. The article further examines whether the court had been seized with an opportunity to develop its own jurisprudence on international law in Africa, in line with the provisions of the Protocol.

In addition to the questions raised, the article also examines whether the applicant in the case had indeed understood some of the principles he contended that Senegal has violated in prosecuting Hissene Habre or his arguments are simply a mockery of international law and obligations of states in the prosecution and punishment of individuals who commit human rights violations.

To understand the context of the judgment of the court, it is necessary that the application and preliminary objections as well as statement of defense filed before the court be discussed as a whole. But, before attempting to discuss the judgment of the court, it is necessary to consider the pre-existing legal proceedings against Mr Hissene Habre and Senegal before different legal and judicial institutions in the world. These proceedings will inform the readers about the context within which the present judgment of the court came into being. For brevity reasons, it suffices to highlight here that Hissene Habre sits at the centre of various legal proceedings before national and international judicial bodies. The prior legal proceedings that had been instituted against Mr Hissene Habre in Senegal and Belgium, as well as against Senegal before the United Nations Committee against Torture (CAT) and the International Court of Justice (ICJ) are the ones that also have an impact on the first case before the African Human Rights Court. What follows below is now a discussion on the judgment in the first case before the African Human Rights Court and its

Law.gov video presentation now online!

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In a January 2, 2010 op-ed in the New York Times entitled “A Nation of Do-It-Yourself Lawyers,” California Chief Justice Ronald George and New Hampshire Chief Justice John T. Broderick Jr. asked “how can we help those who are left to represent themselves in court?”

One thing we can do is make the law of the nation freely available.  Today much of the law remains behind a pay wall, often a very expensive pay wall.

There have been efforts to liberate the law — five guys at Cornell (Cornell’s Legal Information Institute), three guys at Google (Google Scholar legal opinions), and others.  The federal government has made strides too, eCFR remains a model of free, updated legal content, but as the first paragraph explains on the eCFR website disclaims, “It is not an official legal edition of the CFR.”  State government efforts are as varied as the 50 states and District of Columbia.

So what to do?

Law.gov is a campaign to identify what a national law registry should include, and to make recommendations to the policy makers on how to structure a repository of all primary legal materials (and maybe more) at all levels of government.

The Stanford Law Library hosted a Law.gov kickoff event on January 12, 2010 and the day’s events included a terrific panel discussion with Carl Malamud, Anurag Acharya (Google Scholar lead engineer) and law professor Jonathan Zittrain, moderated by Stanford Law School lecturer Roberta Morris.  We now have a streaming video link from this discussion and it’s definitely worth viewing:

http://www.law.stanford.edu/calendar/details/3717/#related_media

Gettin’ Googly with the law

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Over at 3 Geeks and a Law Blog there’s a terrific discussion of Google Scholar Legal and Online Journals (SLOJ) versus Bloomberg Law, LexisNexis, and Westlaw (“Wexisberg” being Greg Lambert’s clever amalgamation of the two big CALR vendors plus upstart Bloomberg ).

One of Greg’s observations is that:

Google Scholar has three people. Not just on the legal portion of Google Scholar, there are three people total on the entire project.

And one of these three people is less than a full self.  That’s Google’s Rick Klau who recently gave a fascinating guest lecture to our advanced legal research class.  Rick told us that he became involved with the legal project by using his “20% time.”  

[Update and correction:  Rick is not one of the 3 who make up the core team - he explains it best himself, in the comment to this post.]

Rick explained to us that Google is not investing a lot of people-time in the project and the case analysis will be accomplished by what Google does best — automated searching and links. Most certainly Google is not about to hire thousands of editors (like Wexisberg have all done) to carefully craft case summaries and headnotes.   As Rick said, “Google is being Googly” with its underlying search and PageRank tools.

Who was SLOJ designed for?  Rick said he had his mom in mind — as a member of the public who does not have access to Wexisberg.

And the public has found its way to the site.  Before Rick’s talk we gave our class an assignment and one question was to find a certain case on a free website.  We gave this assignment after SLOJ launched and made the press (including a round of discussion on the law school’s internal “law-talk” listserv) — and every student turned to  Google Scholar to answer this question!

Following Rick’s talk, and despite all the disclaimers and comments that Google is not competing with Wexisberg, one student sent us this comment about SLOJ:

First, thank you so much for arranging this talk!  I was hoping it was someone from google.  It seems that they have a very specific market to target and they are trying to stick to it.  As skeptical as he seemed about attorneys using it, though, I think it will be exceedingly helpful.  At the very least, it will be a good, free starting point which can then be used in West/Lexis.

I think she’s right!  Google is impressive and what just a very few engineers have done is amazing.  And they aren’t done either; I am sure of that.

Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate

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“Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate”

HANNAH B. MURRAY, affiliation not provided to SSRN

JASON C. MILLER, Government of the United States of America – United States Court of Appeals for the Sixth Circuit

Practitioners and courts are relying more and more on Wikipedia, a free online encyclopedia that anyone can edit. Hundreds of court opinions, including at least one from every federal circuit court, and thousands of law review articles cite Wikipedia. Some opinions have relied on Wikipedia for technical information, although others only turned to the consensus website for background information on minor points.

This practice has generated controversy, with newspapers, professors, practitioners, and judges weighing in. Wikipedia in Court examines the controversy and the history of Wikipedia in court opinions before proposing a framework to determine when it is appropriate and inappropriate to rely on Wikipedia for authority in legal writing. Given the inconsistency in the legal community’s use of Wikipedia, courts and practitioners will benefit from this framework.

 

Source:  LSN Legal Writing Vol. 4 No. 32,  12/02/2009

Another big day for Free Law – ABA launches site summarizing federal court opinions and upcoming cases

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Here’s a new site is designed mainly for the press but access is free to all. Cases are summarized by professors with support from law students.  For the Ninth Circuit, for example, the content contributors are:

University of San Diego School of Law  and
University of Arizona James E. Rogers College of Law

 Here’s the site: http://new.abanet.org/SCFJI/Pages/MediaAlertsOnFederalCircuitCourts.aspx

 

Here’s the press release:

 

Release: Immediate

Contact: Dave Jaffe

Phone: 312-988-6139

E-Mail: jaffed@staff.abanet.org)

Online: http://www.abanews.org

or

Contact: Tina Vagenas

Phone: 312-988-5105

E-Mail: vagenask@staff.abanet.org

 

NEW ABA WEB SITE TO HIGHLIGHT RULINGS BY FEDERAL APPELLATE COURTS

 

CHICAGO, Nov. 18, 2009 – The American Bar Association today launched a new Web site intended to inform the media and public of important cases in the nation’s federal appellate courts. The site was officially unveiled at the Newseum in Washington, D.C., where judges and journalists were gathered for a conference hosted by the First Amendment Center. 

Media Alerts on Federal Courts of Appeals, as the site will be known, is sponsored by the ABA’s Standing Committee on Federal Judicial Improvements. It represents a collaborative effort to broadly disseminate timely, accurate and unbiased information about noteworthy and legally significant cases in the federal courts of appeals. The site will be updated daily with postings on key decisions and alerts on upcoming cases.

Circuit Judge M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit, a founder of the project and immediate past chair of the Standing Committee on Federal Judicial Improvements, said the site targets the media, but also will serve as a resource for lawyers, educators and the public.

“The case information not only serves a practical need, it also promotes transparency and public access, which go hand in hand with judicial accountability and judicial independence,” McKeown said. “Greater access to and understanding of the judicial process fosters public confidence in our judicial system.”

“There is nothing more important to our democracy and freedom than a well informed press and public,” said U.S. District Judge Nancy Atlas of the Southern District of Texas, chair of the standing committee. “The Media Alerts on Federal Courts of Appeals site should enhance the media’s ability to help us achieve this goal.” 

Federal courts of appeals, which are at the level just below the United States Supreme Court, hear direct appeals from both federal trial courts and federal administrative agencies. Of the 11 geographically drawn circuits, the new Web site initially will highlight decisions from the Third, Fifth, and Ninth Circuits, then eventually expand to include the rest of the circuits. 

In conjunction with the ABA, cases are selected and summarized by a panel of distinguished law professors, supported by their students. The ABA is working in conjunction with professors at the law schools of Temple University (Craig Green and David Sonenshein), the University of Texas (Stephanie Lindquist and Dean Leslie Oster), the University of San Diego (Shaun Martin), and the University of Arizona (David Marcus). The academic teams will be choosing from the more than 25,000 cases filed annually in the three courts of appeals. The project aims to select a manageable number of cases so that the site will be of practical use to reporters. 

The project grew out of a shared concern between journalists and the judiciary that reporting about federal courts has been declining. The concern is due in part to new trends in media coverage, including the steadily shrinking pool of news staff in traditional media and the rise of Internet-based news sites, blogs, and other media outlets. 

“For the past decade federal judges and journalists around the country have shared their perspectives and concerns through a series of meetings sponsored by the First Amendment Center,” said U.S. District Judge D. Brock Hornby of the District of Maine, chair of the Judicial Branch Committee of the Judicial Conference of the United States, which has cosponsored the programs. “This Web site is a real and tangible outgrowth of our meetings, and one that I think will bring greater public access and understanding to the work of the U.S. Courts of Appeals.” 

Following launch of the Web site, the standing committee will continue to explore opportunities for the exchange of views among judges and journalists. In 2010, the committee plans to sponsor a forum on media and the courts in conjunction with the William H. Rehnquist Center at the University of Arizona James E. Rogers College of Law. 

 The Media Alerts Web site is at http://new.abanet.org/SCFJI/Pages/MediaAlertsOnFederalCircuitCourts.aspx

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.