Category Archives: New Publications

SCOTUS Style Manual available for purchase

In Supreme Court’s Style Manual is Private No More, Tony Mauro reports that the US Supreme Court Style Guide, 2013 ed. can be purchased through Amazon without Court approval because a court aficionado named Jack Metzler is making it available for sale under his own imprint. Metzler reportedly photocopied the 200+ page long manual in the Supreme Court’s law library. The style manual “could be an important resource for brief-writing advocates as well as judges and clerks of other courts seeking to match the sometimes quirky style rules of the nation’s highest court,” writes Mauro. — Joe

The Digital Future of the Oldest Information Profession

Recently, Ray Worthy Campbell (Peking University School of Transnational Law) uploaded to SSRN The Digital Future of the Oldest Information Profession, very interesting. From the essay’s introduction:

This article will look at three ways legal practice is being disrupted by the digital information revolution, and then examine how education for legal service providers might evolve to best serve society in light of those disruptions.

First, from outside legal practice have come and will come changes in how white collar work is performed that affect law practice along with other occupations. For example, the digitization of documents and the development of digitally monitored business process management both arose outside of law practice, but have combined to change how documents get reviewed and processed in major litigation and corporate deals. Digital documents are easy to ship worldwide and susceptible to machine review, and technology enables higher levels of planning and performance tracking than were possible in the era of legal pads. While not limited to law practice, such exogenous business process changes have had and will continue to have a significant impact on how traditional legal businesses operate.

Second, digital products and processes will arise or be modified specifically to solve legal problems without resort to traditional legal practice or analysis. An example of this type of innovation would be LexMachina or IBM’s legal application for its Watson product, ‘Ross’, which apply Big Data techniques to legal issues. Other examples would be rule-based document assembly systems, which assess client needs and deliver appropriate legal documents. Some of these digitized systems will replace lawyers as software-only solutions, while others will assist lawyers. Still others – and perhaps the most economically significant, if regulation allows – will enable non-lawyers to serve as the interface between client needs and digitized expert knowledge, delivering an acceptable level of problem solving without recourse to traditionally trained lawyers.

Third, and not least important, will be changes in the law itself to adapt to a digital environment – that is, the ways in which legal rules and processes will need to evolve to function effectively and justly in a digital world. Many of the new digital technologies rely on massive data sets, and the justice system does not – and perhaps should not – create data in the same way Internet sites or retail supply chains do. Just as businesses and government bureaucracies have had to adjust workflows and information capture to take advantage of digital possibilities, pressure will be brought on legal systems to restructure in order to be digital friendly. As rules become embedded in software code, perhaps even removing the option for choice, legal thinkers will have to address how such embedded directives fit into a system of rules formerly captured only in text.

— Joe

Is a uniform system of citation an open-source feature of our legal system’s infrastructure?

In The new (and much improved) ‘Bluebook’ caught in the copyright cross-hairs (The Volokh Conspiracy), David Post writes that “[w]ar is brewing over the most boring piece of intellectual property imaginable: the ‘Bluebook… .’” At issue is the alpha release of NYU Law professor Christopher Sprigman and Carl Malamud’s open-source Baby Blue’s Manual of Legal Citation (Public.Resource.Org, January 1, 2016). From Baby Blue’s Preface:

It is important to understand, when we are talking about “The Bluebook, A Uniform System of Citation,” that we are talking about two different things. There is a product, a spiral-bound booklet that sells for $38.50, which is accompanied by a rudimentary web site available to purchasers of the product.

Underlying that product, however, is something much more basic and fundamental, a uniform system of citation. Unpaid volunteers from a dozen law schools, under the stewardship of four nonprofit student-run law reviews, have labored mightily to reach a consensus standard for the citation of legal materials. This open consensus standard was developed, with no compensation to the authors, for the greater benefit of the legal system of the United States. By clearly and precisely referring to primary legal materials, we are able to communicate our legal reasoning to others, including pleading a case in the courts, advocating changes in legal policy in our legislatures or law reviews, or simply communicating the law to our fellow citizens so that we may be better informed.

We do not begrudge the Harvard Law Review Association one penny of the revenue from the sale of their spiral-bound book dressed in blue. However, we must not confuse the book with the system. There can be no proprietary claim over knowledge and facts, and there is no intellectual property right in the system and method of our legal machinery. The infrastructure of our legal system is a public utility, and belongs to all of us.

Kathryn Rubino’s Controversy At Harvard Law Over The Bluebook? (ATL) summarizes recent developments. — Joe

End Note: Download Sprigman et anon. al., Baby Blue’s Manual of Legal Citation (Public.Resource.Org, 2016).

How relevant are our current professions in the 21st century?

In The Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford UP, 2016), Richard Susskind and Daniel Susskind predict that our Internet-based society will have little need for teachers, accountants, architects, lawyers, and many other professions (librarians?), who continue to work as they did in the 20th century. The book describes the people and systems that will replace them. From the book’s blurb:

The authors challenge the ‘grand bargain’ — the arrangement that grants various monopolies to today’s professionals. They argue that our current professions are antiquated, opaque and no longer affordable, and that the expertise of their best is enjoyed only by a few. In their place, they propose six new models for producing and distributing expertise in society.

Some food for thought after AALL’s name change debacle. Recommended. — 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

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

New Report on Copyright Litigation Statistics Available

Lex Machina issued a report last Tuesday that analyzes copyright litigation trends over the last five years.  The report is impressive for the level of detail in the statistical analysis and charts presented in the 37 page document.  The report is designed to highlight legal analytics in copyright litigation.  The target audience appears to be plaintiffs with a heavy interest in protecting their media assets, firms that are considering taking on copyright cases, and those with an interest in the mechanics of copyright litigation.  As the report indicates, it is the first survey of its kind.  I’ve followed file sharing and other IP cases which I have reported on in this forum from time to time.  I found the report interesting for its snapshot of how litigation progresses through the courts.

Highlights from the press release include:

  • Top plaintiffs include music (Broadcast Music, Sony/ATV Songs, Songs of Universal, UMG Records, EMI, and more), software (Microsoft), fashion (Coach), and textile patterns (Star Fabrics) industries.
  • Top defendants include retailers (Ross Stores, TJX (TJ Maxx), Amazon, Burlington Coat Factory, Rainbow USA, J.C. Penny, Sears, Forever 21, Wal-mart, and Nordstroms), music labels (Universal Music, Sony Music Entertainment, UMG Recordings), & publishing / education, (Pearson Education and John Wiley and Sons).
  • Doniger Burroughs, a California fashion, art, and entertainment boutique leads among plaintiffs firms with 741 cases, more than double the next firm.
  • Copyright litigation is heavily concentrated in the Central District of California (2,496 cases, 26.2% of all since 2009) and the Southern District of New York (1,061 cases, 11.1%).
  • Fair use is usually decided on summary judgment.
  • The majority of infringement findings happen as a result of default, and almost all default findings are for infringement.
  • Top parties winning damages include companies in movies and entertainment (Disney, Twentieth Century Fox, Columbia Pictures, Warner Brothers, Universal, Paramount Pictures, and more), software (Quantlab, Foundry Networks), and music (UMG Recording).
  • In file sharing cases, about 90% of cases settle. Top plaintiffs include movie production companies. And an erotic website leads the list of Internet file-sharing plaintiffs with 4,238 cases – about 15 times as many cases as the next most litigious plaintiff.

The report registration and download link is here.

Mark

Has the US gotten to big for its Constitution?

That is the question Gary Lawson (Boston Univ. School of Law) attempts to offer an answer in One(?) Nation Over-Extended [SSRN]. Here’s the abstract:

The conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased returns from control over a large territory can swamp the transaction costs of building a winning coalition. The obvious solutions are a decrease in the size of the national government, an increase in the costs of constructing winning factional coalitions, or a breakup of the United States into smaller, more manageable units. The first and second options are unfeasible, and the third (secession) is unconstitutional even if feasible.

Interesting. — Joe

Journal of Open Access to Law publishes first issue

Yesterday, the first issue of the Journal of Open Access to Law was published. The journal is edited by Tom Bruce, Ginevra Peruginelli, Enrico Francesconi, and Pompeu Casanovas. From the JOAL announcement:

This is the first issue of the Journal of Open Access to Law – JOAL, the open-access, peer-reviewed journal for the promotion of the international research on the topic of open access to law. JOAL provides an international forum for academic researchers as well as for practitioners of open legal publishing.

This issue delivers authoritative thought-leadership in governance of new models of legal publishing, projects in open access to law, technical challenges and economic opportunities created by open access to law as well as trends and changes suggested by the globalization of access.

View the TOC here. Hat tip to Ken Hirsh’s Ipso Facto post. See also Tom Bruce’s post. — Joe

When old habits refuse to die, research instructors try to improve them

Try as research instructors do, one can’t get around the fact that researchers are going to turn to Google Search. One might as well be realistic by providing detailed instruction on how to get the most out of Google Search. Christa Burns and Michael P. Sauers’ new work could be handy for this task. From the ALA Bookstore blurb:

Google Search Secrets
Christa Burns and Michael P. Sauers
Item Number: 978-1-55570-923-5
Publisher: ALA Neal-Schuman
Price: $48.00

Google can be an incredibly powerful tool for research, but the top-of-the-page results are seldom the most beneficial to library users and students, and many of the search engine’s most useful features are hidden behind its famously simple interface. Burns and Sauers reveal the secrets of effective Google searches in this invaluable resource showing how to get the most out of the service, with

  • An overview of all the tool’s search services, including Image, Maps, News, Blogs, Discussions, Scholar, Patents, and Books
  • Ready-to-use instructions on how to go beyond the simple search box and top results to get library users the answers they need, fast
  • Straightforward guidance on using filters to refine search results, with examples of common searches like images with Creative Commons licenses, news searches set for a date range or into an archive, and videos with closed captioning
  • An explanation of the bibliography manager feature of Google Scholar, which allows students and researchers to build bibliographies with ease
  • Tips for configuring Safe Search on workstations in children’s departments and schools
  • Copious screenshots walk readers through each topic step by step, making this a true how-to guide for everyone who uses Google.

— Joe

New international law legal research book

Anne Abramson, the Foreign and International Law Librarian at the Louis L. Biro Law Library of The John Marshall Law School in Chicago, reviews International Law Legal Research by Anthony S. Winer, Mary Anne E. Archer and Lyonette Louis-Jacques (Carolina Academic Press, 2013) on International Law Prof Blog. Here’s the work’s blurb:

This concise yet comprehensive book is designed to be accessible for the beginner as well as useful for those with more experience. For students, the book can serve as enrichment for a doctrinal course in international law or as the basis for a stand-alone course in international law research. To allow for self-evaluation, the book includes frequent review questions to help assure retention. For practitioners new to the international area, each type of search tool and search strategy is covered in detail with explanations to provide background comprehension.

Joe

What role did the Volokh Conspiracy play in the legal debate over Obamacare?

The Volokh Conspiracy played a large enough role to produce what most likely is the first ever published compilation of long-form essays about the influence a law prof blog’s collective postings by multiple legal scholars had on the debate over the merits of a piece of federal legislation which in the case of the Affordable Care Act reached SCOTUS for review. See A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan, Nov. 12, 2013) [Amazon]. Granted the essays are written by VC bloggers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, David Kopel and Illya Somin but this work is recommended for illustrating that law prof blogging can be viewed sometimes as “scholarship in action.”

Here’s the blurb:

The debate over the Affordable Care Act was one of the most important and public examinations of the Constitution in our history. At the forefront of that debate were the legal scholars blogging at the Volokh Conspiracy, who engaged in a spirited, erudite, and accessible discussion of the legal issues involved in the cases – beginning before the law was even passed. Several of the Volokh bloggers played key roles in developing the constitutional arguments against the ACA. Their blog posts and articles about the Act had a significant impact on both the public debate and the legal arguments in the case. It was perhaps the first time that a blog affected arguments submitted to the United States Supreme Court on a major issue. In the process, the bloggers helped legitimize a new type of legal discourse. This book compiles the discussion that unfolded at the Volokh Conspiracy blog into a readable narrative, enhanced with new context and analysis, as the contributors reflect on the Obamacare litigation with the advantage of hindsight. The different bloggers certainly did not always agree with each other, but the back-and-forth debates provide momentum as the reader follows the development of the arguments over time. A Conspiracy Against Obamacare exemplifies an important new form of legal discourse and public intellectualism.

Joe