Dissents from the Bench – More from the New York Times

In today’s New York Times, Adam Liptak writes about dissents from the bench.  “In a Polarized Court, Getting the Last Word,” Liptak  describes a new study that is soon to appear in the Justice System Journal.

The Brooding Spirit of the Law: Supreme Court Justices Reading Dissents from the Bench” by William Blake and Hans Hacker states that dissenting from the bench  “may indicate that bargaining and accommodation have broken down irreparably.”

Liptak writes:

“There are no comprehensive records of oral dissents, and researchers reviewed audio recordings — many available on the indispensable Oyez Web site — newspaper accounts and other resources to track them down. Jill Duffy, a research librarian at the Supreme Court, and Elizabeth Lambert, a staff lawyer with a Federal District Court in New York, seem to have assembled a complete list going back to 1969 in the winter issue of the Law Library Journal.”

[And, blogged about here some time ago.]

Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1

“Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1”

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

Adoption of the Federal Rule of Appellate Procedure 32.1 has had a ripple effect throughout the federal courts of appeals, but it has not brought uniformity on the issue of unpublished opinions. The federal judiciary’s practice of issuing unpublished opinions traditionally ascribed three characteristics to such opinions: unpublished, non-citeable, and non-precedential. However, local rules of the Courts of Appeals are widely varied on these characteristics. The most fundamental jurisprudential question: “what is law?” has varying answers across a supposedly uniform federal system. From the types of cases eligible for unpublication to the limits of citation of unpublished opinions to the precedential status afforded such opinions, uncertainty and ambiguity abounds.

This article, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, examines the federal judiciary’s desire for uniform rules on publication and citation (and its persistent avoidance of the precedent issue) regarding unpublished opinions. It then categorizes and analyzes the circuits’ local rules regarding publication, citation, and precedent in the wake of Federal Rule of Appellate Procedure 32.1. Finding significant discrepancies between circuit local rules in each of these three categories, the article argues for truly uniform publication, citation, and precedent rules – the most direct of which would be to end the experiment with unpublished opinions and recognize the full value of all circuit court opinions.


Source:  LSN Law & Courts Vol. 3 No. 59,  09/07/2009

Dissents from the Bench: A Compilation of Oral Dissents Issued by U.S. Supreme Court Justices

New on SSRN:

Dissents from the Bench: A Compilation of Oral Dissents Issued by U.S. Supreme Court Justices by Jill Duffy (Supreme Court of the United States) and Elizabeth Lambert (United States District Court for the Eastern District of New York)

Oral dissents identify some of the Supreme Court justices’ most deeply held minority opinions. While print dissents are published routinely, oral dissents are not systematically tracked. This article presents the results of our AALL grant-funded project to locate oral dissents issued from October 1969 through today, discusses the methodology used in compiling our list, and describes various aspects of oral dissents that may make some more difficult to find. This project was funded by the American Association of Law Libraries (AALL) Research Fund: An Endowment Established by Lexis-Nexis.

The appendix is quite handy for your reference desk as it contains a list of the oral dissents from the October Term of 1969 to the present. Just in case you were wondering: the authors found 117 oral dissents.

Deep in the Heart of Texas, err, Google

With tweets and blogs, legal research is just so much more interesting. 

After posting yesterday on Practitioners Beware…Research on Westlaw / Lexis is a Necessity in Texas?, a Tweet from a fellow librarian led to an interesting post on the Supreme Court of Texas Blog.

The post,  Researching Unpublished COA Opinions in Texas, offers a free and pretty nifty trick for combating the problem of searching for unpublished COA opinions in Texas.  It involves some handy-dandy Google searching.   (Note: Google indexes all the COAs in Texas except for Dallas.) 

As the blog explains:

Texas has fourteen courts of appeals.  Luckily, the opinions in thirteen of those (all but Dallas) can be quickly searched in Google by including the following operator within your search query:


If you want to focus your results on a particular court, such as the appellate district your case is in, just add that to the operator. For example, “site:3rdcoa.courts.state.tx.us/opinions” restricts the search to opinions coming out of the Austin Court.

Very nifty.  So, sure it isn’t perfect, but it is a free option that the bloggers at SCOTXblog claim works pretty darn well.  They also offer some tips for searching the Dallas court and the Texas Supreme Court.

And, if you can’t deal with the search strategy above, you can click on the “Search Opinions and Orders” box at the far left of their blog page.  Cool!


The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age

The latest issue of the New York Law School Law Review just crossed my desk, with many interesting articles,  including this one by William R. Mills, associate librarian and professor of Legal Research:

New York Law School Law Review

Volume 53 2008/09

William R. Mills

The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age

Professor Mills’s conclusion:

The foundation of trust that underpins our system of case law reporting has now been undermined. Cases posted to many mainstream Internet legal research sources, other than Lexis or Westlaw, appear with no strong guarantee of accuracy or authenticity. Scrupulous legal researchers who wish to independently verify the accuracy of the case reports they cite from Internet sources are met with the burden of comparing the electronic reports against print versions, which are the only ones that courts deem to be official. On a large scale, this burden can prove insurmountable. Furthermore, readers of modern legal literature, when encountering citations from the National Reporter System, have good reason to harbor doubt that the authors who wrote those citations actually consulted the editions that they cited. Moreover, if the authors did not actually consult the National Reporter System, or its established electronic counterparts Lexis or Westlaw, then there is no assurance that the sources they did consult were reliably accurate.

In the digital age, the foundation of trust in our case law reporting system, and in legal citation generally, must be rebuilt. Such a rebuilding effort cannot succeed by utilizing the technology of printed books. Today’s legal researchers are increasingly abandoning print sources in favor of their Internet-based counterparts. The rebuilding of trust in the case reporting system must take place in the realm of digital technology. It must focus on implementing digital safeguards within the process of dissemination of case law databases to better ensure the accuracy and security of information found in those databases.

While court systems and other government entities will obviously play major roles in this rebuilding effort, the legal profession would be naive to expect the government alone to accomplish this work. The government, after all, has never succeeded in creating an efficient case reporting system that served the needs of lawyers nationwide.  Rather, the rebuilding of the American case reporting system for the digital age must be an effort undertaken jointly by government, professional groups, and private enterprise.  The corporate proprietors of Westlaw and Lexis, as the inheritors of the West paradigm, ought not to resist this effort, but instead join in to facilitate its speedy success. Cooperation among all parties is essential, and private enterprise would be an ultimate beneficiary. The companies that market databases of case reports to lawyers have nothing to lose and much to gain from an improved system that bolsters the trustworthiness of these products.

Practitioners Beware…Research on Westlaw / Lexis is a Necessity in Texas?

Just happened across the recent St. Mary’s Law Journal (Vol. 40, #3, 2009) and the following article by Andrew T. Solomon caught my attention, “Practitioners Beware: Under Amended TRAP 47, “Unpublished” Memorandum Opinions in Civil Cases are Binding and Research on Westlaw and Lexis is a Necessity.”

Anything that states that using Westlaw and Lexis is a necessity is going grab a law librarian’s attention.

The article discusses the 2003 and 2008 amendments to the Texas Rule of Appellate Procedure (TRAP) 47, which deal with the citation and precedential weight of unpublished and memorandum opinions.  Solomon writes:

“The 2003 amendment was seemingly designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and and authorizing memorandum opinions in place of unpublished opinions.  Despite this intention, the 2003 amendment has failed to make the law in civil cases more readily available because the newly created memorandum opinions are only available electronically via Westlaw, Lexis, and the court websites, even though these opinions are designated for publication.  Also, the 2008 amendment has now made memorandum opinions issued in civil cases since 2003 fully precedential.  As a result, to completely research binding law in civil cases, Texas attorneys must now have access to Westlaw or Lexis because the court websites lack sophisticated search engines necessary to conduct competent legal research.”


“The amendment is flawed because it makes memorandum opinions precedential even though those opinions are only readily available on Westlaw and Lexis.  This has occurred in an era when only 60% of attorneys use fee-based online research services (i.e., Westlaw or Lexis) for state case law research.”

Solomon makes a number of recommendations, including “making all opinions readily available on a sophisticated, widely available, and unified website for the Texas courts of appeals.”

As it goes in the state song of Texas, “boldest and grandest, withstanding ev’ry test,” so an accessible, complete website for the courts in Texas seems only right.

Unpublished opinions

A Slate piece, “Sotomayor’s Manly Man Ruling – Her bold ruling in favor of a man who claimed sex discrimination,” by Emily Bazelon, includes this paragraph on unpublished opinions:

Sotomayor agreed to issue an unsigned and unpublished opinion. The term “unpublished opinion” is a bit of a misnomer. These rulings appear in the Lexis and Westlaw databases, where lawyers do legal research. And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status. They’re shorter and often still carry less weight–they’re persuasive rather than binding precedent, in lawyer’s terms. They are not supposed to be the way judges dispose of difficult cases that raise substantive or novel legal issues. But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it’s hard to control. And in the 2nd Circuit, I’m told, there’s a premium on unanimity and consensus, so a 3-0 unpublished opinion might trump a 2-1 published one, in some cases and in some judges’ eyes.

Westlaw rises to legal publishing fame by selling free information

From the Minneapolis City PagesWestlaw rises to legal publishing fame by selling free information,” by Erin Carlyle.

West makes its money by selling free, public information — specifically, court documents — to lawyers. On this simple model, the company raked in $3.5 billion in revenue last year, placing it on a par, sales-wise, with retail giant Abercrombie and Fitch. But its operating profit margin really impresses: At a whopping 32.1 percent, West outpaces that of tech giants like Google (19.4 percent), Amazon (3.4 percent), and eBay (20.8 percent). Westlaw excels at one simple task: saving lawyers time by making legal information more readily accessible. The company charges a firm of six to ten lawyers as much as $30,000 a year to access its state and federal databases. But since attorneys’ time is worth a lot of money, the service pays for itself. After all, the more work they can do, the more money they can make.

How did it do this?  According to the story, by following these eight rules:

Rule 1: Find a niche with growth potential

Rule 2: Organize information to make it useful

Rule 3: The internet is a distribution channel — not a product

Rule 4: Turn words into math

Rule 5: Separate the signal from the noise

Rule 6: Computers can’t do everything

Rule 7: Treat content like patented material

Rule 8: Print’s not dead, it just needs online help

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

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

Monopolizing the Law

From a fascinating, must-read brand new book by noted antitrust lawyer Gary Reback, Free the Market: Why Only Government Can Keep the Marketplace Competitive.

Free the Market: Why Only Government Can Keep the Marketplace Competitive
By Gary L. Reback
Portfolio Books, 2009
Chapters 14, “Storytelling for Lawyers.” and 15, “Monopolizing the Law,” clearly explain how LexisNexis and Westlaw became the market forces that they are today.
From chapter 15:
. . . The West-Thomson merger had precisely the effect that everyone, other than Thomson, the Justice Department, and the judge predicted it would.  Prices for print publications soared.  Thomson started putting fewer pages into each West volume of court cases and charging more for the books.  Price increases for West publications following the takeover exceeded both the rate of inflation and the rate of increases for prices in legal publishing more generally.  One study documented a price increase of over 70 percent for “value added” legal publications (books with supplements) in the four years following the merger.
Prices for online research also climbed astronomically.  Thomson raises rates to private firms each year.  In each of the recent years, Thomson’s charges for online legal research in the West databases have increased roughly 7 percent.  To search the comprehensive West database for state and federal decisions now costs more than $17 per minute.  The federal minimum wage, by constrast, is about $7 an hour.  In addition both Thomson and LexisNexis started charging law schools for online legal research, orginally provided free of charge.  Last year the annual rate increase to law school librarians was roughly 7%, breaking the budget of many university law libraries.