Article on Blogging by Chinese Judges

Professor Anne Sy Cheung’s article in the Harvard International Law Journal includes a couple of interesting findings that merit further investigation.

On page 267 of the article, Prof. Sy Cheung writes:
“While Blogging by judges may be an unusual phenomenon in common law countries, it is not unusual in China. In fact, more than half of the bloggers in this study wrote in their real names.”

Table 1 of the article breaks down the content of blog postings by Chinese judges.  Nearly 34% of the blog postings related to legal research.

Appendix IV lists the most common legal research question asked by the judges:

1. Copies of laws, regulations, and rules as well as comments on them.
2. Comments and opinions on draft legislation.
3. Criticizing the Rules of Payment of Court Fees issued by the State Council in December 2006.
4. Researches on a broad range of topics, such as compensations for damages to person happened in schools, the principle of innocence, problems of the Property Law of the PRC, role of the procuratorate, land system and land reform, citizens’ rights and freedom, real estate development and house transactions, labor disputes including payment of wages and salaries, and compensation for damages to accidents at work, and introduction of the spiritual compensation to civil suits collateral to criminal proceedings (some of these researches have been published in journals by the writer, blog owner).
5. Discussions on the tradition of Chinese culture and law.
6. Copies of court decisions that have come to effect.
7. Judicial interpretations issued by the Supreme People’s Court.
8. Routine work of the courts.
9. Introduction of Western legal theory, thought, and practice.
10. Questions and answers for various post-followers.

Exercising Freedom of Speech Behind the Great Firewall : A Study of Judges’ and Lawyers Blogs in China
Harvard International Law Journal
Vol. 52 , April 2011
http://www.harvardilj.org/2011/04/online_52_cheung/

In you are interested in legal research issues in China, don’t forget about the Chinese and American Forum on Legal Information and Law Libraries Conference in Philadelphia in July. Information on program sessions and speakers is available at
http://cafllnet.org/annual-conference/

Business Anti-Corruption Portal

The Global Advice Network and various European ministries of foreign affairs and development have created the Business Anti-Corruption Portal.

http://www.business-anti-corruption.com/

From the portal’s description:

Welcome to the Business Anti-Corruption Portal, a comprehensive and practical tool tailored to meet the corruption risk management needs of small and medium sized companies (SMEs) operating in or considering doing business in emerging markets and developing countries.

The Portal is hosted, maintained and regularly updated by Global Advice Network on behalf of the government ministries and agencies. The Portal’s content is based on publicly available information. Global Advice Network strives to ensure that all content available on this website is accurate.

The purpose of the Business Anti-Corruption Portal (Portal) is to provide a comprehensive and practical business tool, and to offer targeted support to SMEs in order to help them avoid and fight corruption, thereby creating a better business environment. Working actively against corruption will furthermore enable companies to adhere to the UN Global Compact Principle 10 on corruption.

Comprehensive, Practical Business Tools

The Portal contains a variety of instruments and information, which can be used alone or in combination. Some tools are new, while others are well-known procedures and methods adapted to SMEs.

  • About Corruption: Definitions, interpretations and references to international and national legislation and initiatives relevant to companies. Includes business and corruption vocabulary and definitions.
  • 60 Country Profiles: Key business and corruption related information. Overview of level of enforcement of anti-corruption law, public and private anti-corruption initiatives is provided. Detailed information and corruption risk assessment in eight business sectors: 1) Judicial System, 2) Police, 3) Licences, Infrastructure and Public Utilities, 4) Land Administration, 5) Customs Administration, 6) Tax Administration, 7) Public Procurement and Contracting, and 8) Environment, Natural Resources and Extractive Industry.
  • Integrity System: A model Code of Conduct, examples of key procedures, a guidance question list and a model risk assessment tool.
  • Due Diligence Tools: Related to public procurement, seeking and vetting an agent or a consultant, setting up a joint venture, dealing with contractors or subcontractors and implementing a project.
  • Anti-Corruption Initiatives: A presentation of partner countries and other anti-corruption initiatives.
  • Information Networks: Contact information to turn to for local help.
  • Anti-Corruption Tools Inventory: A full list of anti-corruption conventions and treaties, a list of public and private initiatives and initiatives in partner countries, resources on grey area questions, corruption cases, reporting, sector-specific anti-corruption resources, useful links and more.
  • Training: Various business anti-corruption training modules, including e-learning programmes.

International Association for Law, Ethics, and Science

International Association for Law, Ethics, and Science is a Paris based organization. The web site offers book reviews, Power Point presentations, links, and articles in French, English and Spanish.

International Association for Law, Ethics, and Science

http://www.iales.org/

For additional information onFrench and international aspects of bioethics consult the following article (in French):

Bioéthique.

Christian Byk

La Semaine Juridique Edition Générale NO.11. March 15, 2010. pp.557-563.

Global Integrity Report

The Global Integrity Report provides scorecards on anti-corruption and  rule of law  measures for individual countries. The reports include citations to statutes on areas of law such as, taxation, campaign contributions, bribery, and labor law.

Global Integrity Report http://report.globalintegrity.org/

Description of Global Integrity Report Methodology

The Global Integrity Report is a tool for understanding governance and anti-corruption mechanisms at the national level. Written by local researchers and journalists, the Report is characterized by an innovative, award-winning research methodology; a robust peer review process; and start-to-finish transparency.

Methodology Overview:

Unlike most governance and corruption indicators, the Global Integrity Report mobilizes a highly qualified network of in-country researchers and journalists to generate quantitative data and qualitative reporting on the health of a country’s anti-corruption framework. Each country assessment contained in the Global Integrity Report comprises two core elements: a qualitative Reporter’s Notebook and a quantitative Integrity Indicators scorecard, the data from which is aggregated and used to generate the cross-country Global Integrity Index.

An Integrity Indicators scorecard assesses the existence, effectiveness, and citizen access to key governance and anti-corruption mechanisms through more than 300 actionable indicators. It examines issues such as transparency of the public procurement process, media freedom, asset disclosure requirements, and conflicts of interest regulations. Scorecards take into account both existing legal measures on the books and de facto realities of practical implementation in each country. They are scored by a lead in-country researcher and blindly reviewed by a panel of peer reviewers, a mix of other in-country experts as well as outside experts. Reporter’s Notebooks are reported and written by in-country journalists and blindly reviewed by the same peer review panel.

Lawsuit alleges Chadbourne overcharged for computerized legal research

Everything is negotiable.  Most law firms have flat rate contracts with LexisNexis and/or Westlaw.  The databases also have transactional or hourly (more accurately:  minutely) charging.  For example, according to the March 2006 Westlaw Plan 1 Price Guide, to search the ALLSTATES database costs $ 13.86 a minute.  Some firms charge their clients these per minute rates, even if they are paying for the service under a flat rate contract.  If this is not done with the client’s knowledge, it can lead to a dispute, as this story in the National Law Journal reports:

Lawsuit alleges Chadbourne overcharged for computerized legal research

Tresa Baldas

 

. . .

Consumer protection attorney Patricia Meyer filed a suit against New York’s Chadbourne & Parke on March 2 for allegedly overcharging J. Virgil Waggoner, a Texas businessman, by several thousands of dollars for computerized legal research. His bill was roughly $20,000 for the research, she said, but it should have been closer to $5,000. Waggoner v. Chadbourne & Parke, No. BC408693 (Los Angeles Co., Calif., Super. Ct.).Meyer of San Diego’s Patricia Meyer & Associates said that many similar lawsuits are in the pipeline, noting that she has amassed evidence that shows at least a dozen other law firms are overcharging clients for legal research, but not telling them.

. . .

“This appears to be more widespread than you would think,” Meyer said. “Basically what we’re finding is that certain law firms are using Westlaw and Lexis as profit centers, as compared to simply passing along their actual costs to their client….Quite candidly, what we’re finding is the clients really have no idea that this is going on.”

Call for papers: International Journal of Intelligence Ethics

Opportuinity to publish in the International Journal of Intelligence Ethics, a peer-reviewed journal.

The purpose of the International Journal of Intelligence Ethics (IJIE) is to be a primary source for multidisciplinary information and research on the role of ethics in its application to intelligence activities. The journal will focus, from both a practical and theoretical framework, on the role of ethics in the full spectrum of intelligence activities, including collection, analysis and covert action. Articles may be focused on a particular country, region or political system.  Intelligence activities from both a national security and law enforcement perspective will be covered

Papers for publication should be between 5,000 to 10,000 words, although longer submissions will be considered.  The journal follows the current Chicago Manual of Style.  Submissions should be sent to journal@intelligence-ethics.org. For further information on submission requirements, contact journal@intelligence-ethics.org.

Full details avaiable on the journal Web site: http://www.intelligence-ethics.org/journal/

Hat tip to the National Security Law listserv.

 

The Ethical Conundrums of Unpublished Opinions

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.

Presidential Pick Plagiarised?

Our professor and ethics expert Deborah Rhode is quoted in Adam Liptak’s front-page story in today’s New York Times, “Copying Issue Raises Hurdle For Bush Pick.”  The story includes a graphic where you can compare for yourself.

Several articles by Michael E. O’Neill, nominated by President Bush to be a judge on the Federal District Court in Washington last month, contain passages that appear to have been lifted from other scholars’ works without quotation marks or attributions.

According to the story,

Last year, a peer-reviewed legal journal, the Supreme Court Economic Review, issued a retraction of an article by Mr. O’Neill in 2004.  “Substantial portions” of the article, the editors wrote, were “appropriated without attribution” from a book review by another law professor.

Our professor is noted and quoted thusly:

Deborah L. Rhode, an authority on legal ethics at Stanford, said the retraction by the Supreme Court Economic Review was “extremely unusual” and amounted to “a textbook case of conduct that casts doubt on someone’s fitness for judicial office.”

“That’s a serious form of misconduct in an academic career,” Ms. Rhode said. “I would think it would be viewed equally seriously in a judicial career. In my judgment, that would be disqualifying.”