About Erika Wayne

Erika V. Wayne is deputy library director and lecturer in law at Stanford Law School. Along with George Wilson, Kate Wilko and Paul Lomio, Erika Wayne has co-taught Advanced Legal Research for 3 years. Erika's interest in Open Access dates back to the 1996 when she helped in the development of the Securities Class Action Clearinghouse -- the first court designated internet site for public posting of securities litigation filings. And, she hates to pay for *anything* that should be free. She has a law degree from Penn and a library degree from Illinois.

Final Incorporation by Reference Rule Implements Recommendation 2011-5

From the ACUS:

Final Incorporation by Reference Rule Implements Recommendation 2011-5:

“Today, the Office of the Federal Register (OFR) published its final rule on incorporation by reference.  See Incorporation by Reference, 79 Fed. Reg. 66,267 (Nov. 7, 2014).  The Freedom of Information Act allows agencies to incorporate by reference into federal regulations extrinsic materials that are “reasonably available to the class of persons affected.”  5 U.S.C. § 552(a)(1). . . .

OFR’s final rule is a significant step towards the implementation of Recommendation 2011-5, Incorporation by Reference.  The rule emphasizes that promulgating agencies have the primary obligation to ensure that incorporated materials are reasonably available to the public. . . .

The final rule also sensibly retains the requirement that material incorporated by reference be technical in nature.  This is consistent with paragraph 15 of Recommendation 2011-5, which provides that agencies should clearly establish regulatory requirements in the text of their proposed and final rules, and use incorporation by reference only to provide technical detail.”

Oral Arguments on CourtListener!

Great news from our friends at CourtListener….

The CourtListener site is now adding oral arguments to the project,
and users can now search for oral
arguments and even get email alerts based on words in a case’s caption.

For more on this, see their exciting press release below from the Free Law Project:

“We’re very excited to announce that CourtListener is currently in the process of rolling out support for Oral Argument audio. This is a feature that we’ve wanted for at least four years — our name is CourtListener, after all — and one that will bring a raft of new features to the project. We already have about 500 oral arguments on the site, and we’ve got many more we’re we’ll be adding over the coming weeks.

For now we are getting oral argument audio in real time from ten federal appellate courts. As we get this audio, we are using it to power a number of features:

  • Oral Argument files become immediately available in our search results.
  • A podcast is automatically available for every jurisdiction we support and for any query that you can dream up. Want a custom podcast containing all of the 9th circuit arguments for a particular litigant? You got it.
  • You can now get alerts for oral arguments so you can be sure that you keep up with the latest coming out of the courts.
  • For developers, there are a number of new endpoints in both our REST API and our bulk data API for audio files.
  • Using the Free Law Seal Rookery, we are enhancing the audio we find on court websites by adding album art and better meta data.

For now, search results and alerts are limited to the data that is provided by court websites, so you cannot (yet) get alerted any time somebody says a certain word in court. Audio is a new area for us though and we’d absolutely love to automatically create transcripts for the courts, enabling such a feature. This would be an incredibly powerful feature, so if you are an expert on audio transcription, we’d love to hear from you and to work together on this.

Beyond all of the great features we’re rolling out today, oral argument data also marks an important turning point for the project because it lays the ground work for adding more types of data to CourtListener. It’s been a large undertaking adding a second type of data to the project, but adding a third will be much easier. Next in our hopper will likely be the content from RECAP so that you can create alerts, have powerful APIs, and do all the other things you expect from CourtListener, except this time, for documents from PACER.

We’re very excited about being able to provide oral argument data today and RECAP data tomorrow. We can’t wait to see what kinds of legal research and innovation these new features bring.”

A New Supplemental Series of Office of Legal Counsel (OLC) Opinions Now Online at the DOJ

From the Department of Justice website:

“The first volume of a new supplemental series of OLC opinions (Op. O.L.C. Supp.) is available in its entirety as a PDF in the electronic reading room. As explained there and in the body of the publication itself, volume 1 of this series contains a number of important opinions written by OLC (or its predecessor entities in the Department of Justice) from 1933 to 1977, when OLC first began publishing its primary series (Op. O.L.C.). The purpose of the supplemental series is to fill in certain gaps in the historical record and to make available to the public additional OLC materials that may not have been appropriate to release publicly when issued to the client but with the passage of time have become publishable.”


Volume 1 of the new supplemental series of Office of Legal Counsel Opinions is online at: http://www.justice.gov/olc/docs/op-olc-supp.pdf

The volume includes a very useful and brief history of the OLC and an important note about the contents of this volume:

This volume is subdivided into three sections: one for opinions by Attorneys General; one for opinions by Assistant Solicitors General and OLC (and EAD); and one for other memoranda and correspondence of a less formal nature.  The volume includes at least one opinion by each Senate-confirmed Assistant Solicitor General or Assistant Attorney General of OLC (or EAD) from 1933 to 1977.  Included in the last section
of the volume are materials that would not typically be published in our primary series: for example, an early practices and procedures manual for the Office of the Assistant Solicitor General (remarkable in its detail
and in its areas of commonality with the modern practices and procedures of OLC); a 1962 memorandum of uncertain provenance
in the OLC files, perhaps drafted by the Deputy Legal Adviser for the Department of State, regarding possible responses to the Cuban missile crisis; and some action and file memos that may not qualify as formal opinions of the Office but nevertheless elucidate important legal issues.”


Get the Reading Bug, Not Bugs from Reading….

An article in today’s New York Times, “A Dark and Itchy Night,” describes a new bed bug problem: library books.

“bedbugs have discovered a new way to hitchhike in and out of beds: library books. It turns out that tiny bedbugs and their eggs can hide in the spines of hardcover books. The bugs crawl out at night to feed, find a new home in a headboard, and soon readers are enjoying not only plot twists but post-bite welts.”

I see it already: the new marketing campaign for Kindles and iPads and Nooks (and all other flavors of e-readers) will be about reading without the need for an exterminator…..Or, the only bugs in e-books are created by programmers….

After all members of my household enjoyed reading library books in bed last night (vocational hazard), I have to stop myself from overreacting.  But, I wonder how many law students, studying for exams, will think twice about this the next time they curl up with a library copy of a Chemerinsky on Constitutional Law or Prosser and Keaton?

Florida Democratic Party Lawsuit over Early Voter Wait Times – Case Documents

The Florida Democratic Party has filed a lawsuit in federal court regarding the delays early voter were facing at the polls in Florida.

For more about this litigation, see the New York Times blog post and the Politico posting.

Case information:

Florida Democratic Party v. Ken Detzner

U.S. District Court
Southern District of Florida (Miami)
CIVIL DOCKET FOR CASE #: 1:12-cv-24000-JAL

Complaint for Temporary Restraining Oder and Emergency Injunctive Relief.  [Exhibit 1-A, Exhibit 1-B, Exhibit 1-C] (11/4/2012)

NOTICE by Penelope Townsley of Corrected Suggestion of Mootness as to Miami-Dade County (11/5/2012)

EMERGENCY MOTION for Temporary Restraining Order ( Responses due by 11/23/2012), MOTION for Immediate Injunctive Relief Preliminary Injunction by Florida Democratic Party. (11/5/2012)

MEMORANDUM in Support re MOTION for Temporary Restraining Order MOTION for Preliminary Injunction by Florida Democratic Party (11/5/2012)

NOTICE by Susan Bucher re Complaint,  MOTION for Temporary Restraining Order MOTION for Preliminary Injunction of Suggestion of Mootness as to Palm Beach County (Exhibit #1 Absentee Ballots – Article)  (11/5/2012)




Finding Solicitor General Briefs (for free)


Quite a few of us were trying to unravel a few mysterious (to us, at least) citations in the DOJ  letter “RE: Physician Hospitals of America v. Sebelius, No. 11-40631.”

We know now that they are Solicitor General briefs from the DOJ (and, proper attribution of these cites as briefs would have removed all confusion).

While the DOJ researchers cite to Westlaw references that we do not have access to in academia, it would have been far easier to follow their research trail if they had only cited to the free versions of the briefs posted on the DOJ website.

The DOJ Solicitor General site has online briefs going back to 1982.  This site is easy to use.  You can browse by year, subject matter and client.  And, it is all freely available — many as PDFs.

Selling Others’ Briefs, Illustrated

To better illustrate some of the points made by Paul in his posting Selling others’ Briefs, Bryan L. Jarrett (our former student and now an associate at Jones Day) has given us permission to post two of the charts he created for his paper “Vending Appellate Briefs.”  (To recap, Bryan’s paper surveyed the practices of sixteen state jurisdictions and DC — the ten largest ABA jurisdictions (by membership size) and seven jurisdictions that did not supply copies of appellate briefs to commercial vendors.  The data was gathered in 2010.)

The first table (“Table I: The Ten Largest Jurisdictions”) displays five questions (for the jurisdictions of NY, CA, TX, FL, IL, DC, MA, OH, PA and NJ): do these jurisdictions provide appellate briefs online; do they have an arrangement with a vendor (Westlaw, Lexis) for the distribution of briefs; do these jurisdictions send appellate briefs directly to vendors; is the exchange of briefs quid pro quo; and have any attorneys objected.

The second table (“Table II: Jurisdictions that Do Not Supply Their Briefs to Vendors”) focuses on seven jurisdictions (NV, NH, NM, OK, VT, UT, and WY) and addresses the same questions as in Table I.

Google Fresh

Announced today on the Official Google Blog: Google is bringing you ‘fresher’ search results.

Based on changes in their ranking algorithm, approximately 35 percent of searches will be impacted (or made ‘fresher’).  The motivation behind this change is to give searchers more recent results for current and regularly occurring events.

According to the post, the changes will impact searches for:

  • “Recent events or hot topics. For recent events or hot topics that begin trending on the web, you want to find the latest information immediately. Now when you search for current events like [occupy oakland protest], or for the latest news about the [nba lockout], you’ll see more high-quality pages that might only be minutes old.”
  • “Regularly recurring events. Some events take place on a regularly recurring basis, such as annual conferences like [ICALP] or an event like the [presidential election]. Without specifying with your keywords, it’s implied that you expect to see the most recent event, and not one from 50 years ago. There are also things that recur more frequently, so now when you’re searching for the latest [NFL scores], [dancing with the stars] results or [exxon earnings], you’ll see the latest information.”
  • “Frequent updates. There are also searches for information that changes often, but isn’t really a hot topic or a recurring event. For example, if you’re researching the [best slr cameras], or you’re in the market for a new car and want [subaru impreza reviews], you probably want the most up to date information. “
Google recently eliminated (or ‘subtracted’) the power search “Plus” operator.   With all of these changes, it might be time for a bit of a re’fresher’ for some of us…..

“We don’t know what it is that they’re not putting online”

According to a new report from the Reynolds Journalism Institute, reporters regularly turn to government (Federal, State and Local) websites for data needed in their stories.

David Herzog writes on the RJI site, “The findings from the survey, conducted as part of my fellowship at RJI, show that government data – whether it’s a spreadsheet or database file – has become a key ingredient of U.S. daily newspaper reporting.”

Of those surveyed, many reporters noted deficiencies in government websites.  According to one reporter, “We don’t know what it is that they’re not putting online.”

Herzog shares a few of the notable complaints from reporters using government websites:
“They just don’t put enough of it there”
“I end up going to Google”
“Getting current records is often difficult”





FOIA Court Challenges Up 27% in FY 2011

The FOIA Project has just announced that FOIA court challenges were up 27% over last year.

The release states:

“The recently completed 2011 fiscal year saw 378 court challenges to the withholding of information by the federal government, up 27% from the previous fiscal year, according to district court information compiled as part of the FOIA Project.”

The FOIA Project contains information on 949 cases either filed or closed since October 2009.  The site has also has new features and charts, including:

“Closed cases: All FOIA cases filed in district courts and closed since FY 2010 (October 1, 2009) are now listed on the site….”
“New charts: Two new graphics have been added to the foiaproject.org website: a chart showing counts for closed cases and a map detailing the geographical distribution of closed cases.”
“New searches: You can now search the court documents database by the date in which a FOIA case was closed. In addition, you can also now search by the name of the judge who presided over the case.”