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.”

 

Researching 18th Century Judicial Cases from the Parlement of Paris

The latest issue of French History offers an illuminating  article by the legal historian David Feutry on the difficulties of researching judicial cases from the Parlement of Paris, an important judicial appellate body during the Ancien Régime.  The Parlement’s defense of aristocratic privileges and corruption has influenced French thinking about the the proper role of the judicial branch since the French Revolution.

Feutry explains that the organization of the Parlement’s documents and finding aids and the often labyrinthine procedural histories of the cases make researching the files a daunting task.

“It is a complex business to find a case or judgment in the registers of the Parlement. Not only is the date of a decision required, but the way in which the matter was decided; something brought for a hearing might have been through every stage, from hearing right through to a final decision by one of the chambers of Inquests. In that case different stages of its progress would be recorded separately in all the series of the Parlement’s records.” … “a case is unlikely to be found in a single user friendly archival unit.”

In addition to the complexity of Parlement registers, the author reminds us that fires and deliberative destruction destroyed many valuable records.The article also provides an excellent diagram showing the many different paths a case could take through the chambers of the Parlement of Paris.

The Historian’s Mountain of Paper: the Parlement of Paris and the Analysis of Civil Suits in the Eighteenth Century
David Feutry
translated by Bill Doyle
26 French History 277 (2012)

Finding History in a Drawer

In 1875, a jury committed Mary Todd Lincoln to an insane asylum.  This week, the Chicago Tribune reported that two Illinois State Supreme Court justices discovered her trial papers still on file with the Cook County Clerk!  The Clerk’s Office will be donating them to the Lincoln museum, but we hope the story does not end there.  Like many others, we’ve previously posted about the cultural heritage reflected in state court files.  Some of the stories told in these documents are historically significant, like Mary Todd Lincoln’s commitment, or John Wesley Hardin’s murder trial (see this Texas Task Force report).  Many stories, however, are just minor threads in life’s tapestry: divorces, probates, business disputes.  Whether the story is big or small, the court records that tell it may be irreplaceable.

Each state’s preservation rules differ.  Some place the retention determination in the hands of state libraries or archives, some issue mandatory retention schedules based on the nature of the action, and some afford the clerk of court discretion to dispose of files after prescribed time periods.  Even if a clerk of court wanted to save everything, storage expenses and space constraints make this impossible.  The costs of digitizing every paper record are prohibitive.  As cultural institutions may not be interested in less noteworthy files, many are noticed for destruction.  Provided that a state’s rules allow it, however, law libraries may be uniquely positioned to rescue these files — preserving not just the documents, but also state history.  And if you spend some time digging through them all, you never know just what you might find…

Don’t Mess With Texas State Court Documents

State court case files are rife with personal and community histories that often cannot be found anywhere else.  These documents also reflect developments in the language of the law, and the procedures of our court systems.  Preserving these historical gems is increasingly important as many records face destruction due to court space and budget constraints, and the ill effects of time or the elements.  We hope to provide periodic updates here about states’ efforts to preserve such records and, on that note, want to spread the word about developments today in Texas.

Just shy of two years ago, the Texas Supreme Court established a volunteer task force of attorneys, judges, historians, document preservationists, and county and statewide officials to “develop a report that discusses statewide county preservation needs, the importance of protecting the records, and providing assistance to counties to do that.”  (See this Texas state bar blog.)  After extensive studies, the Task Force issued this report on August 31, 2011.  In addition to containing practical information for other jurisdictions similarly seeking to preserve state court files, the report contains anecdotes that scratch the surface of the kind of information at risk of being lost.

Here is an excerpt from its “Overview”:

In his classic song, Hardin Wouldn’t Run, Johnny Cash sang that outlaw John Wesley Hardin was a steadfast man. Truth is, Hardin was not so firmly fixed. After shooting Deputy Sheriff Charles Webb in Comanche County in 1874, Hardin fled Texas and headed east. Texas Ranger John B. Armstrong pursued Hardin and found him on a train outside Pensacola, Florida several years later. Armstrong overtook Hardin after Hardin got his pistols tangled up in his suspenders when he tried to draw. He was brought back to Comanche County, Texas, and put on trial before a jury of twelve citizens of the county. Bob Dylan, in his Hardin song, sang that “no crime held against him could they prove.” That is also incorrect. Unlike Jesse James and Billy the Kid, who were both gunned down, John Wesley Hardin, who killed many people in multiple states, was convicted of murder in 1878 and sentenced to prison in Huntsville, Texas.  The historical documents that record the true story about the trial and sentencing of Hardin are at risk of being stolen, destroyed, or lost . . .  The Hardin records are not unique. Thousands of other Records are stored in hundreds of Texas district and county clerk archives. Some of these facilities are excellent; some of these Records are preserved, or in the process of being preserved. But many of the oldest Records – especially those that date back to the Republic of Texas, early statehood, or the Civil War – are at risk of being lost forever, unless measures are soon taken to help district and county clerks protect them.

Legacy of Emperor Justinian in Argentina: Primer Digesto Jurídico Argentino

Taking a cue from the Byzantine Emperor Justinian’s Corpus Juris Civilis, Argentina is in the final stages of creating a compilation of national legislation known as the “Primer Diegsto Jurídico Argentino” This is a project to analyze, systematize and harmonize all national laws since the 1850s. Redundant and obsolete laws will be identified and removed from the statute books.

Over 200 academics, judges, attorneys and legislators have been working on this monumental project since 2005. They have analyzed around 30,000 laws since 1853.

In July, the Argentine executive branch presented an initial draft to the congress. On Thursday and Friday of this week, a major conference will convene in Buenos Aires to discuss how specific areas of law will be impacted by the Digesto Jurídico Argentino.

Information about the national conference, including a list of speakers is available at:
Primer Congreso Nacional del Digesto Jurídico Argentino
September 1 and September 2, 2011
http://www.mpf.gov.ar/ics-wpd/DocumentosWeb/LinksNoticias/Primer_Congreso_Nac_Digesto_Jur_Arg.pdf

Mitra Sharafi’s South Asian Legal History Resources

Professor Sharafi’s Web on South Asian Legal History site includes a list of citation abbreviations of  law reports from the colonial era for Bangladesh, Burma (Myanmar), India, Pakistan and Sri Lanka.  It also includes a useful “Research Guide to the Case Law,”  which explains the role of precedent, details major published and unpublished sources of cases, and describes how cases were cited.

 Mitra Sharafi’s South Asian Legal History Resources

http://hosted.law.wisc.edu/wordpress/sharafi/

 

 

Hip High Hires Hein

Mainly for its debate team – see below.

There are numerous ways to keep up with developments in legal bibliography and legal research.  Blogs bring lots of news about legal research plus more.  Twitter is great for breaking developments and news (some of my favorites here include @aabibliographer, @EJWalters, @glambert, @jasnwilsn, and the amazingly good @lawlib).  Visiting the vendor booths and demonstrations at the conference exhibit hall, while one of my very least-favorite things to do, is also useful for learning the latest and greatest. 

But there’s no substitute for face-to-face meetings with vendor representatives.  Here at Stanford we always look forward to our more-or-less annual visit from Steve Roses, our HeinOnline representative.  Steve is personable, highly intelligent, and shares his passion for his products with us — he’s less a salesperson and more a partner in our research efforts.  And we always learn something new.  During Steve’s last visit  here, while we were chatting about this and that, Steve mentioned that Hein had just acquired its first high school customer, a high school in Texas.  I found that tidbit intriguing and shared it with my class; one of the students later e-mailed me a note, “I have a friend who went to [that high school*].  It’s a very achievement oriented high school!”

*The school wishes to remain anonymous.

I shared that information with Steve and he recently wrote to me that Hein now has its second high school customer:  Loyola High School in Los Angeles.

The school’s library director, April Hannah, reports that the school acquired the database primarily for its debate team and she is delighted that she can provide an affordable legal database to the team and its coaches (they just can’t afford LexisNexis she wrote in an e-mail).

I’m really impressed.  How many times have we reference librarians received a request from a patron who was looking for a certain law review article and threw up their hands saying “I couldn’t find it in Lexis or Westlaw.”  So many students find LexisNexis and Westlaw to be the be-all and end-all for, well, everything.  It’s always a pleasant revelation when we show the students (and faculty) how they can locate secondary sources plus a huge corpus of law review content, read compiled legislative histories, find the Federal Register going back to the beginning of time, plus lots more, and all without worrying, or even thinking about, search charges.

And I just can’t wait until the kids from Loyola High School make their way to law school!

(The high school, by the way, was the subject of a MSNBC segment on community service – you can watch the clip here

http://vimeo.com/13773712 )

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

“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

The (Nearly) Forgotten Early Empirical Legal Research

“The (Nearly) Forgotten Early Empirical Legal Research”

Minnesota Legal Studies Research Paper No. 09-26

HERBERT M. KRITZER, University of Minnesota Law School

The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper considers that earlier work with discussions of what accounts for the burst of such research in the 1920s and 30s, methodological and funding issues confronting that research, why the research seemed to come to an end in the latter part of the 1930s (to begin to reappear in the 1950s), and some of the continuities in findings between that research and more recent empirical research on law.

 

Source:  LSN Litigation & Procedure Vol. 10 No. 53,  07/30/2009