Fastcase sues Casemaker over copyright claim to Georgia State Rules & Regs

In response to a takedown notice issued by Lawriter (dba Casemaker), Fastcase is seeking a declaratory judgement and injunctive relief in US District Court so that it can continue to publish the Georgia Administrative Rules and Regulations for the Company’s 800,000 member subscription base, including, interestingly enough, members of the Georgia state bar. In a nutshell, Fastcase is hoping for a ruling that states that no one can own and publish exclusively public law. Here is the complaint in what may be a landmark case for the Open Law movement. — Joe

AALL is not ready for ALI: Membership rejects association name change proposal by a very wide margin

AALL’s rank-and-file turned out to vote down the Executive Board’s unanimously recommended rebranding of AALL as the Association for Legal Information (ALI). The “I am a law librarian and I work in a law library” argument opposing the initiative apparently resonated with many voters. The vote wasn’t even close:  80% opposed to 20% in favor. By AALL standards, voter turnout was extremely high at almost 60% of the membership, indicative I think of the collective nerve the Executive Board struck with its proposal. Rare indeed it is for the rank-and-file to stand up to be counted in opposition to the Executive Board. This aging and decrepit law librarian cannot remember the last time the membership so forcefully slapped around the Executive Board.

I voted for the name change. It offered the admittedly long-shot chance at presenting additional opportunities for reforming AALL so I wanted to see this recommendation pass. I just wish the Executive Board had brought this issue to the attention of the rank-and-file in a more direct way.

While the Executive Board and HQ staff did a good communications job — emails, enewsletters, videos of Executive Board members, AALL communities, etc., I would have preferred to see the issue also debated at our annual meeting’s members open forum before the Executive Board took any action whatsoever. Had the Executive Board heard the hue and cry calling for adding the word “professionals” to the proposed name, the Association of Legal Information Professionals (ALIP) might have persuaded many of the “I am a law librarian and I work in a law library” voters to accept changing AALL’s name.

I, however,  would have voted against renaming AALL ALIP because this matter should be about what we work with — legal information — and who we work for — private, government and academic sector employers — not about our professional self-identification be that as law librarians or legal information professionals. While I will keep paying my membership dues to Ye Olde AALL, I also would pay membership dues to an Association for Legal Information, if some of the 496 rank-and-file members and Executive Board members who voted for the name change were to take it upon themselves to establish ALI. That, however, seems highly unlikely; I think the carpe diem moment may have passed.  – Joe

NB: AALL has scheduled a virtual town hall for Tuesday, February 23, from 2:00-3:00 p.m. (CST) “to provide time for further discussion and to answer any questions you may have.”

What is the ideal design for a basic legal research program?

In The State of Legal Research Education; A Survey of First Year Legal Research Programs or ‘Why Johnny and Jane Cannot Research’ [SSRN] Washington and Lee’s Caroline Osborne identifies the following four elements in the ideal design for a basic legal research class:

  1. A required research class of a minimum of two credits taught in the spring semester of the first year (1 credit) and the fall semester of the two-L year (1 credit).
  2. A professor with both a JD and an MLS or MIS, preferably admitted to the bar and possessing some experience in the practice of law or an equivalent level of practical experience.
  3. A grading schema equivalent to that of the first year doctrinal courses.
  4. A curriculum that includes research strategy; the fundamental resources of secondary sources, case research, statutory research and the administrative state; problem-solving; and concepts of efficiency and effectiveness.

Here’s the paper’s abstract:

Dissatisfaction with the research skills of the new associate is an oft-repeated refrain. This article explores the state of research education in the law school curriculum. Questions explored include: whether or not legal research is a required first year class; the number of semester of research instruction; the expertise of the professor; number of credits awarded for legal research, scope of the curriculum and observed challenges. Also considered is the impact of a more vigorous writing focus on research skills education. Survey data collected from the two hundred ranked law schools is used to explore these questions and as the basis for reforming research education.

Recommended. — Joe

RIP Westlaw Classic and WestlawNext

Earlier this month Thomson Reuters announced that WestlawNext has been renamed Thomson Reuters Westlaw “in light of Westlaw Classic’s retirement.” Hat tip to LLB readers who called the name change announcement to my attention after reading this post. — Joe

Good old fashioned WEXIS competition

Just in case you haven’t noticed, the tab and sidebar war has returned for our very expensive legal search vendors. Without the branding could you tell which is WestlawNext and which is Lexis Advance? Ok, the key number symbol gives it away.

BTW when did Thomson Reuters drop “next?” — Joe

westlaw

lexis advance

Commercializing AI: TR’s Watson Initiative to launch global financial regulation product by year’s end

Among several other product announcements, Thomson Reuters Legal recently disclosed that it will release in beta the first legal product using Watson’s cognitive computing technologies by year’s end. On Dewey B Strategic, Jean O’Grady writes

Ever since TR announced their collaboration with IBM Watson last October, the legal community has been impatient to learn how this alliance will manifest in a legal product. We still don’t know but TR did promise that they will be the first company for built a legal product using Watson technology. The alliance will combine IBM’s cognitive computing with TR’s deep domain expertise. A panel of executives from TR and Watson revealed that there will be a beta product available by the end of 2016. Their first collaboration will focus on taming the complexities of global financial regulation.

Bob Ambrogi adds “The product will help users untangle the sometimes-confusing web of global legal and regulatory requirements and will be targeted at customers in corporate legal, corporate compliance and law firms. Initially, it will focus on financial services, [Erik Laughlin, managing director, Legal Managed Services and Corporate Segment, and head of the Watson Initiative] suggested, but will also address other domains important to corporations.”

Very interesting. Wouldn’t it be something if TR was prepared to demonstrate how this product will work at AALL ALI AALL in Chicago this year? — Joe

Eighth Annual Morris L. Cohen Student Essay Competition Opportunity

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Cengage Learning, announces the Eighth Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses to attend the AALL Annual Meeting.

The entry form and instructions are available at the LH&RB website: http://www.aallnet.org/sections/lhrb/awards Entries must be submitted by 11:59 p.m.,April 18, 2016 (EST).

AALL via Mark.

What The [Bad Word] Is This Supposed Be?

I was helping a cite checker with Pennsylvania Consolidated Statutes when I came across this free site called WestlawNext State Government Sites.  I’m not sure what TR is trying to do with this as FindLaw still exists.  The collection features a small but haphazard collection of primary and quasi-primary materials from what I would describe as all over the place.  The limited number of states represented are far from comprehensive.  The materials presented are just as puzzling.  Each collection has different ways to conduct searches.  Take a look.  Anybody with reactions please let me know.

Mark

UELMA adoption does not correlate to barrier free access says Glassmeyer report

Sarah Glassmeyer has released the results of a survey of state primary law. State Legal Information Census (PDF). Here’s the abstract:

This report presents findings from a survey of state level primary legal information.   Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions).  This survey was done with the goal of reviewing the free and open status of this legal information.

Findings indicate that there exists at least 14 barriers to accessing legal information.  These barriers exist for both the individual user of a resource for personal research as well as a institutional user that would seek to republish or transform the information.   At the time of the census, no state provided barrier-free access to their legal information.

Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources.  Current collections allow for citation retrieval and some basic keyword searching.  No state allows for federated searching of legal information collections.   The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon.   There is also a worrisome lack of archival material maintained by states.  Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.

States were scored and ranked based on the openess of their legal publication practices.  On a scale of 0 – 24, the highest score achieved was 18.  The lowest was 8 and the median was 14.  These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices.

— Joe

Posner on the relationship between the academy and the judiciary

Yes, Judge Richard Posner has written another book, Divergent Paths: The Academy and the Judiciary (Harvard UP, Janurary 2016). Here’s the blurb:

Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges―at the risk of intellectual stagnation―to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.

The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.

Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.

— Joe

Mission minded or mission impossible: Is AALL ready for ALI?

It’s almost time to vote on the Executive Board’s unanimous recommendation that our association change its name to the Association for Legal Information (or “ally,” not “A”, “L”, “I”). But it is going to take more than mere rebranding (with its $185,000 price tag) to transform AALL into a vital organization for legal information consumers today and into the future. I wonder if we are up to the task of creating a new normal for providing leadership in the field of legal information and information policy.

Will we see a membership drive that reaches out to legal information professionals who work outside of the law library if the name change proposal is accepted by the rank-and-file? Of course, it is hard for many law librarians to justify paying AALL dues. Will non-law librarians working in the legal information field find the cost worth it to join under the big tent to be known as ALI? Non-traditional legal information professionals have been able to join AALL with full membership privileges for a couple of years now with no perceptible growth in membership rolls. While AALL doesn’t need money from new dues-paying members, our association does need to grow a non-traditional legal information membership base to change the negative connotations associated with “libraries” and “librarians.” If we change our name without also expanding our membership base, we will not be able to promote the value of all legal information professionals in any substantive way.

Will we see the rationale for this name change begin being realized with something other than the same old programming typical of most of our previous annual meetings? Hell if I know if AALL is prepared to “make it new.” I doubt an annual meeting programming initiative will happen without an influx of new, non-traditional members who, like the rest of us, are tasked with the professional mission of putting content in context. If we change our name without acquiring experts in the fields of knowledge management, competitive intelligence, legal analytics, search engine engineering and artificial intelligence as ALI members, we will have lost an opportunity to foster the development of the legal information profession.

Will we see a major revision of AALL’s bylaws? To give this rebranding effort teeth to take a bite out of negative, limiting, narrow perceptions about “libraries” and “librarians,” constitutional reform of AALL is needed. That reform, in my opinion, ought not to be put off. A case can be made that the Executive Board’s rebranding initiative should have been postponed until substantive bylaw reforms are made and voted on by the membership. If we change our name without restructuring our association, we will be in no better position to serve a leadership role than we were during the Great Recession; our association needs more than a name change to respond to the forces of change being thrust upon legal information professionals and their employers in the 21st century.

What we do see so far is that AALL has done a good communications job. There are plenty of resources available to members to read more about the proposed name change, including:

End Note: I have no illusions about membership drives, annual meeting programming and bylaw revisions but I will be voting in favor of the name change because of the opportunities it presents. I have not seen an argument opposed to the name change written in the blogosphere but an excellent post in favor can be found here. Voting opens Tuesday, January 12th, and results will be announced on February 11th. – Joe

LLSDC adds Congressional Record sources to its Legislative Source Book

From the announcement by Rick McKinney (Federal Reserve Board Law Library):

The Legislative Research Special Interest Section of the Law Librarians’ Society of Washington, D.C., Inc. (LLSDC) is pleased to announce a new addition to its Legislative Source Book entitled “Sources for the Congressional Record: Free and Commercial”. The new website contains a list with links to most all online sources for the Congressional Record, free and commercial, with dates of coverage, including the bound Record, the daily edition, the Congressional Record Index, and predecessors to the Congressional Record. Also included are brief notations about search, browse, print, and cite retrieval capabilities of the sources as well information on libraries with paper and microform issues. Finally there are a number of links to aid researchers in understanding the Congressional Record, its history, its volume numbers, and what is or is not included in the pages of the Record.

Visit LLSDC’s Legislative Source Book. — Joe

Some Thoughts on Thinking Like A Lawyer

What does it mean to “think like a lawyer?”  For all the years I’ve worked in legal education (about 40) I admit I haven’t thought about the phrase much.  I have cups from Lexis with the phrase embossed on them.  But the phrase keeps coming home to me from time to time beyond promotional materials.  I encountered it when I had some unfortunate experience with my home plumbing during the Christmas break.  My kitchen sink backed up on Christmas morning.  That led to a series of events that started with drain cleaner and ended with cracked pipes and water leaking into my basement.  Ugh.

The clog was still intact on the Tuesday after Christmas when two plumbers arrived to remedy the situation. I had bailed the sink more than a few times between Christmas and then.  We put a little water in the sink and it started to pool in the drain.  One of the plumbers asked me what chemicals were in the water.  I said there shouldn’t be in there by now.  He replied that the boiling had to be caused by something.  There was almost imperceptible bubbling in the drain water.  I explained that early on in this adventure a friend of mine and I used drain cleaner at first.  I said almost automatically that I needed to “disclose” that to him.  We then had a short conversation about legal duty, though he wasn’t concerned about that.  I continued that law school does that to people.  I could not think of the condition of the sink without considering the legalities.  I told him at this point it was hard not to because of the perspective legal training creates.

I remember talking to a student last semester.  He had been working at a firm specializing in family relations, particularly those that are strained.  He was only half way through the curriculum and started to view the relationships in his family through a legal perspective.  I told him not to fight it.  That’s what law school does.  That’s thinking like a lawyer.  It’s not that his relatives would be potential clients as much as legal training puts that overlay on life.  It’s either sad or it means law school did what it was supposed to, or both.  I admit, sometimes I watch Tom and Jerry cartoons and count up the civil causes of action both have against each other.  Sad, I know.

Anyway, that’s it.  You know you think like a lawyer when legal rules play a part, not necessarily the only part, of everyday perspective.  In my plumber’s situation, it’s duty to warn or make safe.  Since I couldn’t make the chemicals in the water safe, I had to warn.  I don’t want a lawsuit after all.

 

Mark

Internet Archive will host Zimmerman’s Research Guide

Following up on last month’s announcement that Zimmerman’s Research Guide will go dark on the Lexis Info Pro site comes news from Andy that arrangements have been made to host an archived version of the Guide’s final edition. Details here. — Joe

Nebraska Courts To Drop Printed Opinions

From the Press Release:

Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.

Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.

Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.

Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.

Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.

Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access.  Hat Tip to Rich Leiter for the news.

Mark

Supreme Court Action: Habeas Corpus and Apply the Federal Arbitration Act to State Proceedings

The Supreme Court issued two opinions this morning.  The first is a habeas corpus case where the underlying issue is where a juror was struck for cause due to ambiguous statements made about applying the death penalty during the voir dire.  That case is White v. Wheeler (14-1372).  Wheeler was convicted of two murders and sentenced to death in Kentucky.  One juror, identified as Juror 638, responded to questions about his ability to impose the death as a sentencing option with answers that went back and forth.  The opinion describes these statements:

In response to the judge’s questions about his personal beliefs on the death penalty, Juror 638 said, “I’m not sure that I have formed an opinion one way or the other. I believe there are arguments on both sides of the—of it.” App. to Pet. for Cert. 126a. When asked by the prosecution about his ability to consider all available penalties, Juror 638 noted he had “never been confronted with that situation in a, in a real-life sense of having to make that kind of determination.” Id., at 131a. “So it’s difficult for me,” he explained, “to judge how I would I guess act, uh.” Ibid. The prosecution sought to clarify Juror 638’s answer, asking if the juror meant he was “not absolutely certain whether [he] could realistically consider” the death penalty. Id., at 132a. Juror 638 replied, “I think that would be the most accurate way I could answer your question.” Ibid. During defense counsel’s examination, Juror 638 described himself as “a bit more contemplative on the issue of taking a life and, uh, whether or not we have the right to take that life.” Id., at 133a. Later, however, he expressed his belief that he could consider all the penalty options. Id., at 134a.

The judge considered the prosecution’s motion to strike and, after reviewing the juror’s statements, granted the motion.  The Kentucky Supreme Court upheld Wheeler’s conviction and sentence on direct appeal.  Wheeler filed a habeas corpus petition in federal court.  The District Court dismissed but the Sixth Circuit reversed and granted the petition.

The Supreme Court reversed.  It emphasized the deferential approach to state courts required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unless the decision was contrary to federal law as decided by the Supreme Court.  The Court reviewed its precedents and concluded that under the deference requirement the Sixth Circuit erred in granting the petition.  The Court issued the opinion per curiam.  There were no dissents.

The second case involved the application of the Federal Arbitration Act (FAA) as controlling over state law.  Readers may remember that the Court enforced an arbitration clause in AT&T Mobility LLC v. Concepcion, 563 U. S. 333, awhile back.  That case came out of federal court where the Ninth Circuit enforced precedent (the Discover Bank case) that made waivers of class action suits unenforceable. The Court instead said the FAA preempted state law to the contrary and enforced the arbitration clause.

The present case, DIRECTV, INC. v.  Imburgia (14-462), concerns a variation of the Concepcion holding.  DIRECTV was sued in state court by individuals believing early termination fees violated California law.  The arbitration clause included in DIRECTV contracts limited dispute resolution to arbitration with a provision that waived class arbitration.  There was another provision stating that if “law of your state” makes the class arbitration waiver unenforceable then the entire arbitration clause was void.  The California trial court denied a request to send the matter to binding arbitration.  The California Court of Appeals agreed citing Discover Bank.

The Supreme Court essentially ruled that “law of your state” did not include state law that was invalid under federal law.  The Court cited multiple reasons for this conclusion, reasoning that in other circumstances courts would not rely on invalid state law in making decisions.   The “law” in this case includes the ruling in Concepcion which nullified the application of Discover Bank.  The Court made it pretty clear that there was no way of getting around the Concepcion ruling.  Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan.  Justice Thomas filed a dissenting opinion.  Justice Ginsburg filed a dissenting opinion and was joined by Justice Sotomayor.  Justice Thomas believes that the FAA does not apply to proceedings in state court.  Justice Ginsburg would read the entire contract as benefitting the consumer rather than corporate drafters.  He expresses similar views as to Justice Thomas but with a little more depth.

Mark

Beyond the pocket parts of Wright & Miller: Author supplements to pocket parts self-published because of publisher’s editorial decision to be more selective

Prompted by Thomson Reuters Legal’s decision to make Wright & Miller’s Federal Practice and Procedure more selective in describing and analyzing new case developments, Professor Joan Steinman, a co-author of the treatise, has been publishing digital compilations of case descriptions and citations to law review articles that complements the contents of the pocket parts to volumes 14B and C of the Wright & Miller treatise. “The cases described here either are not included at all in the 2015 volume 14B and C Pocket Parts or are cited there for different propositions than are reflected in this electronic publication.” Quoting from the abstract for Removal and Remand — Beyond the Supplements [SSRN, posted July 7, 2015]. See also Removal and Remand — Beyond the Supplements [SSRN, posted March 4, 2014].

This is the first time I’ve noticed something like this happening. Treatise authors confronted by similar WEXIS editorial decisions may want to follow Professor Steinman’s example. Unfortunately, the pocket parts at issue make no mention of Professor Steinman’s digital supplement. A statement could have been placed at the end of the following quotation from the pocket parts’ Preface:

As always, it is essential that the judge or lawyer using the Treatise check the supplementary material in connection with the question in which he or she is interested in order to be fully informed of the current state of the law.

— Joe

Where did the Bluebook originate?

Ask most legal professionals where the Bluebook originated and they will likely say “Harvard Law School.” In The Secret History of the Bluebook (Minnesota Law Review, Vol. 100, No. 4, 2016 Forthcoming) [SSRN], Fred R. Shapiro (Yale) and Julie Graves Krishnaswami (Yale) beg to differ. They trace the origin of the Bluebook to Yale. As proof, the authors point to a 1920 one-page set of citation rules covering court opinions, law reviews, and treatises prepared for the use of the editorial board of the Yale Law Journal by William Murray Field under the direction of Karl Llewellyn, both YLS grads. In 1921, the Yale Law Journal expanded the Llewellyn-Field rules with the publication of “Abbreviations and Form of Citation”. Seven of the tiny 3-1/2″ x 5-1/2″ pages covered citation formats with seven additional pages being a table of abbreviations. (A second version of the “Abbreviations and Form of Citation” pamphlet containing only minor additions was printed in 1924.)

Following Yale’s lead in what we would call today, the uniform citation movement, Harvard Law School produced its own guide for the Harvard Law Review editioral staff in 1922, “Instructions for Editorial Work.” Many have pointed to the Harvard document as being the precusor to the first edition of the Bluebook which was published in 1926. The authors argue that the claim is unjustified because the Bluebook’s first edition only contains one sentence from HLS’ “Instructions for Editorial Work” while approximately 30 sentences from YLS’ “Abbreviations and Form of Citation” are found in the Bluebook’s first edition. Other similarities between Yale’s “Abbreviations and Form of Citation” and the Bluebook exist, e.g., the size and design and layout of the covers of the early editions of The Bluebook mimic Yale’s 1921 and 1924 pamphlet editions of “Abbreviations and Form of Citation.” There is much more historial detail in this highly recommended article that cannot be covered in this brief post. The article, for example, details workloads, copyright ownership and revenue sharing of the proceeds of the various editions of the Bluebook.

With the recent publication of the latest edition of The Bluebook, we can expect numerious articles by Bluebookologists for Bluebookologists about our current edition of the Bluebook as has happened when prior editions were first released. This time around, Shapiro and Krishnaswami set the record straight about where and how this work began. Highly recommended for Bluebookologists and anyone else interested in the adoption and use of standardized citation practices and advances in legal bibliography. — Joe

RIP Zimmerman’s Research Guide, 1999-2015

Andy Zimmerman, Manager of Library Services for the D.C. office of Morgan Lewis & Bockius, has decided to retire his go-to guide, Zimmerman’s Research Guide, after 16 years in existence. This valuable resource, hosted by LexisNexis the last 12 years, will go offline after December 31, 2015 according to this announcement. — Joe

Supreme Court Action: Convening Three-Judge Panels in Gerrymandering Cases

The Supreme Court issued one opinion this morning.  The case is Shapiro v. McManus (14-990).  Petitioners in this case challenged the constitutionality of Maryland’s congressional apportionment map under First Amendment/Freedom of Associations grounds.  They gave the District Judge a petition to convene a three-judge court to hear the matter.  28 U.S.C. §2284(a) states that when this type of lawsuit is filed and the judge is presented with a petition a three-judge court to hear the matter, the judge shall notify the chief judge of the Circuit who shall designate two other judges to serve on the panel.

The statute contains one qualification: “unless he determines that three judges are not required.”  The District Judge in this case decided that three judges were not required as he did not believe any relief was available to the petitioners in that they were free to join with others to express a political opinion.  Rather than notifying the Chief Judge, he dismissed the case.  The Fourth Circuit affirmed in an unpublished opinion.

The Supreme Court reversed.  The Court stated that the statute is written in mandatory terms.  The only discretion the Judge has when presented with a petition for a three-judge panel is analyzing whether the parties properly belong in federal court, not whether the plaintiff’s case has any merit.  The petitioner’s claims clears the bar for jurisdiction.  The petitioner’s claims may or may not have merit, but they are entitled to a hearing before a three-judge court under the statute.  Justice Scalia delivered the opinion for a unanimous Court.

Mark

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