The superhero approach to legal research

We haven’t asked our students to buy a textbook in advanced legal research for a long time.  The existing books are just too darn expensive.  But a new book crossed my desk today that looks particularly useful for teaching legal research; it is:  The Law of Superheroes (catalog record copied below).

This book starts with three pages explaining “Legal Sources and Citations” that explain legal citation about as well as anything I’ve seen.  It also points the reader, presumably the lay reader, to sources of free law:  Google Scholar for legal opinions; Cornell’s LII for the United States Code.  Peter Martin is cited on page xiii, so this tells me the authors know their research!

Throughout the book are wonderful footnotes explaining, in the clearest language possible, different aspects of legal research.  For example, footnote #4 on p. 113:

. . . Restatements of law are scholarly works that attempt to set forth the majority position on particular areas of law or recommended changes to the majority position.  They mostly cover subjects that are still primarily common law rather than those based on legislation. The Restatements are not law themselves, but courts often find them persuasive, and many sections of various Restatements have been adopted as law by state courts.

The section on immigration (is Superman a citizen?) offers a great explanation of private laws:

Private Acts of Congress

There’s another way that someone can become a citizen without going through the immigration process: a “private act” of Congress, i.e., a law targeting a specific person and declaring him or her to be a citizen.[fn 9]  Although unusual today, private acts have a long history in the United States.[fn10]  . . . As a matter of fact, in at least one story, Superman is granted citizenship by every country in the world, presumably by their respective versions of a private act of Congress. . . .

9. . . . These bills are not very common, nor are they usually passed, but it happens.

10.  In fact, for decades after the founding of the country, private acts by state legislatures were the only way for a legitimate 9i.e., non-annullable) marriage to be dissolved.  Similarly, prior to the passage of general incorporation statutes, which create the procedures by which corporations may be chartered with state-level secretaries of state, creating a corporate entity required an act of the state legislature.

The sections on international and interplanetary law are really fun, and explain the very basics of “law” itself:

The important thing to remember about international law . . . is that international law is a matter of custom and practice as much as it is anything else.  This is true of domestic law as well, and is really the reason the common law exists: a “law” is, essentially, a custom or tradition that is enforced by a government.  In the case of common law that tradition is built up by the decisions of the courts. . . .

I may have more to add later, as I’m taking this book home with me for the Thanksgiving break.

Here’s its catalog record:

The law of superheroes / James E. Daily and Ryan M. Davidson.

At the Library:
Crown (Law) > Basement > PN56 .L33 D35 2012

Bookmark: http://searchworks.stanford.edu/catalog/9734665

 

Authentication of Primary Legal Materials and Pricing Options

Always worth reading is Intersect Alert, the one published by the SLA San Francisco Bay Region Chapter (and not to be confused with Chuck Bartowski’s Intersect).

This item about a new California Office of Legislative Counsel white paper is from the most recent issue:

Authentication of Primary Legal Materials and Pricing Options
“The recent passage of the Uniform Electronic Legal Material Act (UELMA) has brought to the forefront the issue of costs of authenticating primary legal materials in electronic format. This white paper briefly reviews five methods of electronic authentication. These methods are based on trustworthiness, file types, effort to implement, and volume of electronic documents to be authenticated. Six sample solutions are described and their relative costs are compared. The white paper also frames the legal landscape and background of authentication for primary legal materials in electronic format, and provides context and points to applicable resources. The aim of this collective effort is to promote the understanding of costs related to authentication and invite further discussion on the issue.”
http://www.mnhs.org/preserve/records/legislativerecords/docs_pdfs/CA_Authentication_WhitePaper_Dec2011.pdf

PSSST . . . Wanna Buy a Law?

From the December 5 – December 11, 2011 issue of Bloomberg Businessweek:

Psst . . . Wanna Buy a Law?

“When a company needs a state bill passed, the American Legislative Exchange can get it done” p. 66

How the American Legislative Exchange Council turns a bill into many, many, many laws.

By Brendan Greeley and Alison Fitzgerald.

Illustrations by Luke Best

The American Legislative Exchange Council, a nonprofit based in Washington, brings together state legislators, companies, and advocacy groups to shape “model legislation.” The legislators then take these models back to their own states.  About 1,000 times a year, according to ALEC, a state legislator introduces a bill from its library of more than 800 models.  About 200 times a year, one of them becomes law.  The council, in essence, makes national policy, state by state.

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

California Legislative History – It’s all online, right?

Here’s a very useful article from the January/February 2011 issue of FORUM, the magazine of the Consumer Attorneys of California.  It is useful, in particular, for pointing out that offline research is often needed, even for new laws.

Budget-Minded Research: California Legislative History

By Carolina Rose

. . . unfortunately, some researchers make the mistake of thinking that if the legislative history is not available on the free website or from Westlaw or LexisNexis, that the records simply do not exist.  Nothing could be further from the truth.  There are many other records that are not included in these databases that can be obtained from other offline sources and that the courts routinely rely on.  For example, in one case . . . the court relied on two records to support its plain meaning of the statute: 1) An unpublished letter from Pacific Gas and Electric Company dated March 8, 1974, found in Assemblyman Charles Warren’s author’s bill file, and 2) a subsequent bill version apparently incorporating the amendment that had been pro[posed and explained in the letter.”

Citing 2 Cal. App. 4th 206, 222-23

. . .

and:

In short, free online California legislative history research from 1993 to current can be a boon to the budget-minded researcher, but it can also give a false sense of security. . . . the absence of valuable legislative history materials from the free online website or the costly, subscription-based online services does not mean that they do  not exist. . . .

The author of the article is co-founder and president of Legislative Research Inc. (LRI) (and a SLS alumna); in the article she summarizes the steps involved in compiling a legislative history and explains the added research a company such as hers can accomplish with feet on the ground — offline — in Sacramento.   You’ll want to know about such offline documents  so as, as she puts it, to not be “blind-sided by opposing counsel’s use of them.”

Legal Research Guide to Canadian Statutes

Legal Research Guide to Statutes

Eric B. Appleby

Maritime Law Book, 2007

http://www.mlb.nb.ca/site/ffiles/statute.pdf

From the introduction:

This legal research guide is meant to provide instruction on how to find cases that are relevant to an issue in the law of statutes and statutory interpretation. This guide does not provide instruction on how to find statutes or regulations.

Table of Contents

1. The language of statutes – common terms defined

2. Operation and effect of statutes

3. Operation and effect, on earlier statutes

4. Interpretation of Statutes

5. Remedial Statutes

6. Penal Statutes

Hat tip: Ted Tjaden.  One of many nuggets in his excellent book “Legal Research and Writing,” 3rd Edition.

Un-Legislative History

Wikipedia is often a boon for quick legal research about well-publicized matters.  It’s a great way to find where a statute is codified, or the background of a famous case.  When it comes to legislative history, though, sometimes Wikipedia’s a bust.  For anyone looking for a good example of why one must follow up with proper research into legislative history, please see Wikipedia’s entry on the Dodd-Frank Wall Street Reform and Consumer Protection Act, which passed in July 2010.  As of Nov. 16, 2010, Wikipedia has the following to say about the changes implemented by Title XI of Dodd-Frank:

“The Federal Reserve Act is amended to change the New York Federal Reserve President to a Presidential appointment, with the advice and consent of the Senate.”

In support of this assertion, Wikipedia cites and links to the Enrolled Final Version of HR 4173, available on the LOC’s Thomas page.  Unfortunately, Wikipedia gets it wrong:  The version of the bill that passed Congress removed that language (which had been proposed by the Senate but rejected by the House).  The Senate’s proposal in this regard was snipped on June 17, 2010, weeks before the final bill passed.  Legislative history research–including review of committee meeting transcripts–coupled with news and secondary source coverage bore out the truth.

We always offer cautions when it comes to Wikipedia, and now there’s a handy example to which we can refer.

UPDATE:  Thanks to our helpful reader, Wikipedia has been policed. . .while its lesson remains!

A Draft 50 State Survey of Copyright Claims in State Codes and Court Opinions

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.

European Parliament Video: Legislative Amendment Process

Europarl TV has produced a short 2 minute and 30 second video on the legislative amendment process in the European Parliament. 

The Art of the Amendment

http://www.europarl.europa.eu/news/public/story_page/008-72110-096-04-15-901-20100406STO72099-2010-06-04-2010/default_en.htm

“Statutory Interpretation in the Age of Grammatical Permissiveness: An Object Lesson for Teaching Why Grammar Matters”

“Statutory Interpretation in the Age of Grammatical Permissiveness: An Object Lesson for Teaching Why Grammar Matters”

Perspectives, Vol. 18, No. 2, Winter 2010
University of Maryland Legal Studies Research Paper No. 2009-52

SUSAN J. HANKIN, University of Maryland – School of Law

This article uses an unpublished case interpreting New York’s animal cruelty law as an object lesson to teach why grammar matters. In People v. Walsh, 2008 WL 724724 (N.Y. Crim. Ct. Jan. 3, 2008), the court’s interpretation of the statute turned, in part, on the serial comma rule (sometimes called the “Oxford comma” rule). The court followed a mandatory approach to interpret the statute’s meaning, even though most contemporary grammar and style books make such use of a comma optional. One of the many benefits of using a case example to teach why grammar matters is that it focuses students on the expectations of an important legal reader: the judge who may be using her own understanding of grammar rules to interpret language in a statute. The article explores what can happen when the legislators drafting statutes and the courts interpreting them may be operating on different sets of rules —  in this case, rules of grammar. It then uses this exploration to recommend ways of using the case and statute as a teaching tool to impress upon students, among other lessons, the importance of avoiding ambiguity in legal writing.

 

Source:  LSN Law & Rhetoric Vol. 3 No. 1,  01/04/2010