Category Archives: Statutes & Regs

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

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

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

Georgia Sues Public.Resource.org Over Copyright In Published Annotations to the Georgia Code

The State of Georgia is suing Public.Resources .Org, Inc. and Carl Malamud in federal court for posting copies of the Official George Code Annotated on the Public.Resources.Org.  Georgia contracts with Lexis to create annotated copies of the Code where Lexis fills in the annotated material in what appears to be a work for hire as Georgia claims copyright in the annotations and value-added materials.  In some respects, it explains why Lexis wasn’t a co-plaintiff.  The State does not claim copyright in the text of the Code itself.  The complaint is seeking injunctive relief and requesting that all scanned copies be removed and destroyed, and yes, attorney fees.

I think it would have been much easier for the State of Georgia if copyright remained with Lexis.  The ownership would have been clearer.  It’s a murky situation otherwise.  I guess the question the Court is whether the State can actually claim a copyright in this case.  The United States government, as an example, disclaims copyright in most cases, but there are exceptions.  Two of these indicated at USA.gov are:

  • Works prepared for the U.S. government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the U.S. government.
  • The U.S. government work designation does not apply to works of U.S. state and local governments. Works of state and local governments may be protected by copyright.

The complaint his available through a link with a story at The Register, which is a U.K. based technology news site.  I’m a big fan of the site due to the somewhat snarky attitude the site takes at tech news.  The story in the Register about this case notes that Georgia effectively calls Malamud a “terrorist.”  Here are the excerpts from the complaint where Georgia makes that claim:

20.  On information and belief, Defendant is employing a deliberate strategy of copying and posting large document archives such as the O.C.G.A. (including the Copyrighted Annotations) in order to force the State of Georgia to provide the O.C.G.A., in an electronic format acceptable to Defendant. Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.

21.  Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3. Defendant also announced on the https://yeswescan.org website that it has targeted the States of Mississippi, Georgia, and Idaho and the District of Columbia for its continued, deliberate and willful copying of copyrighted portions of the annotated codes of those jurisdictions. Defendant has further posted on the https://yeswescan.org website, and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its deliberate and willful copying and distribution of Plaintiff’s Copyrighted Annotations would be “greatly expanded” in 2014. Defendant has further instituted public funding campaigns on a website http://www.indiegogo.com to support its continued copying and distribution of Plaintiff’s Copyrighted Annotations. Defendant has raised thousands of dollars to assist Defendant in infringing the O.C.G.A. Copyrighted Annotations.

Terrorism, seriously?  Someone explain to me how this adds to the substance of the complaint.  It’s not as if black helicopters will be circling Atlanta at the end of the trial, not over annotations at least.

Mark

Print Isn’t Dying, It’s Just Shrinking

There is an interesting discussion going on at my library.  As others may be doing, we are considering the proper mix between print and online resources.  ABA law school accreditation Standard 606 now allows for “a core collection of essential materials through ownership or reliable access.”  It’s that last part, “reliable access,” that triggers deep soul searching of what to buy in print or what to buy as an electronic subscription.  Tempering the rule are other qualifications that state the core collection should support faculty scholarship and the curriculum, and that a collection that consists of a single format may violate Standard 606.

In this context I’ve recommended that we drop the National Reporter System, ALRs, CJS, multiple state codes, and selected treatises that are online.  This may sound radical to some.  I know that law schools and libraries are experiencing budget cuts due to lower enrollment.  That drives part of the analysis.  Another factor that bears thought is what we teach these days.  The legal writing program at DePaul started teaching all electronic research.  We experienced a drop in library visits as a consequence.  No more treasure hunts, no answering the same questions over and over at the reference desk.

I can remember how far we’ve come in electronic access.  We used to teach print resources because that’s what the legal market had out there.  Now electronic access to case law and other primary sources is ubiquitous.  At one time it was viable to teach print because the databases were based on print.  Understand the organization of print and the online version would make more sense.  That’s not so true anymore.  Online database providers no longer think in terms of echoing print other than citation and star paging.  Certainly there was a time when case law on Westlaw was organized by reporter.  Not anymore.  It’s all jurisdictional, and that seems natural now compared to looking for a database containing the Northeastern Reporter.

Look at how citators have changed.  There was a time when Shepards online would be no more current than the latest print update.  Even the CD-ROM product mirrored print.  Now everything is dynamic.  I can’t imagine why anyone would want to subscribe to the print edition at this point.  We cancelled our print copies years ago. If anything was made easier by online access, Shepards, KeyCite, and citators in general are it.  They are more complete, can be filtered, and everything is spelled out instead of interpreting symbols attached to citations.

Then there are law reviews.  I have to say how much I like Hein Online when it comes to law reviews.  Everything back to day one is there in PDF format more or less.  We still get paper copies of law reviews but discard them once they appear on Hein.  No more binding these books for the collection.  Google Scholar works as a handy index to Hein content as well as other scholarly databases.

So now the next question is what is the proper mix for print and online?  I know that some libraries have already dropped major primary resources such as reporters.  In one sense, we are behind the curve on making that set of decisions.  Never in my career had I thought I would be part of this kind of decision.  Times change.  I find that I’m not very sentimental about physical materials that no one uses at my library.

Mark

Are there any FAA rules regulating the use of commercial drones in US airspace?

By now most people has heard about Amazon’s plans to delivery 5-pound or less packages to a customer’s doorstep within a half hour of placing an order by way of unmanned drones. (If not, here’s the link to Charlie Rose’s 60 Minutes story). But what does the FAA has to say about it? According to Jacob Gersham’s WSJ Law Blog post, the FAA issued a policy notice back in 2007 but has never issued a formal regulation banning the commercial use of drones. Details at What the Law Says About Amazon’s ‘Prime Air’ Drones.

After getting over the wow factor, the first thought that popped into my head after viewing the 60 Minutes segment was, “oh boy, its going to be year-round hunting season if/when Amazon implements this, hopefully with paintball guns, not shotguns”. — Joe

What role should the legislative drafting process play in statutory interpretation?

In his recent Download of the Week post, Solum wrote “this is important research, combined with deeply interesting theorizing.” He was referring to Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II, Stanford Law Review, forthcoming, by Abbe R. Gluck and Lisa Schultz Bressman. Part I was published earlier this year. Here are the abstracts for both.

Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I [SSRN], 65 Stanford Law Review 901 (2013):

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II [SSRN]:

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents’ knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than do judicial rules of interpretation. These factors range from the fragmentation caused by the committee system; to the centrality of nonpartisan professional staff in the drafting of statutory text; to the use of increasingly unorthodox legislative procedures – each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider.

Most of the structural, personnel and process-related influences that our respondents emphasized have not been recognized by courts or scholars, but understanding them calls into question almost every presumption of statutory interpretation in current deployment. These findings have significance for textualism, purposivism and beyond. They undermine the claims of proponents of each theory that theirs is the most democracy-enhancing, because none makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism’s operating assumption that text is the best evidence of the legislative bargain and suggest more relevant – but still-formalist – structural features that might do better. They reveal that although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of factors on which they focus are not the same ones that Congress utilizes. With respect to delegation, for both types of theorists, Chevron now seems too text- and court-centric, in the light of our findings, to actually capture congressional intent to delegate, which has been its asserted purpose.

In the end, our findings raise the question whether the kind of “faithful agent” approach to interpretation that most judges currently employ – one aimed effectuating legislative deals and often focused on granular textual details – can ever be successful. We thus look to different paradigms less dependent on how Congress works, including rule-of-law and pragmatic approaches to interpretation. These alternatives respond to the problem of the sausage factory, but pose different challenges in light of the modern judicial sensibility’s pronounced concern with legislative supremacy.

See also the authors’ Methods Appendix for their two-part series. — Joe

Read-only, user-monitored portal to ANSI’s IBR standards launched

Last week, ANSI launched its Incorporation by Reference (IBR) Portal. The website “provides a one-stop mechanism for access to standards that have been incorporated by reference in the U.S. Code of Federal Regulations (CFR). These standards incorporated by the U.S. government in rulemakings are offered at no cost in ‘read only’ format and are presented for online reading. There are no print or download options.”

OK, it’s a “one-stop mechanism” to do one thing, namely read online. Apparently the sky will fall if ANSI offered free print and download options. Quoting from the Oct. 28, 2013 press release:

“In all of our discussions about the IBR issue, the question we are trying to answer is simple. Why aren’t standards free? In the context of IBR, it’s a valid point to raise,” said S. Joe Bhatia, ANSI president and CEO. “A standard that has been incorporated by reference does have the force of law, and it should be available. But the blanket statement that all IBR standards should be free misses a few important considerations.”

As coordinator of the U.S. standardization system, ANSI has taken a lead role in informing the public about the reality of free standards, the economics of standards setting, and how altering this infrastructure will undermine U.S. competitiveness. Specifically, the loss of revenue from the sale of standards could negatively impact the business model supporting many SDOs – potentially disrupting the larger U.S. and international standardization system, a major driver of innovation and economic growth worldwide. In response to concerns raised by ANSI members and partner organizations, government officials, and other stakeholders, ANSI began to develop its IBR Portal, with the goal of providing a single solution to this significant issue that also provides SDOs with the flexibility they require to safeguard their ability to develop standards.

IBR standards hosted on the portal are available exclusively as read-only files. In order to protect the intellectual property rights of the groups holding these standards’ copyrights, the portal has built in security features that prevent users from printing, downloading, or transferring any of the posted standards; in addition, screenshots will be disabled and the standards will contain an identifying watermark.

Do note the following registration requirements:

You must register to view READ-ONLY documents posted on this site.

Please note that registration is for a single browsing session. Users who return to the site in another session or on another day will need to fill out the registration form again.

Smells like tracking usage of online IBR standards that have the force of law by specific users to me. Perhaps the SDO business model should be changed. — Joe

District of Columbia launches Cranch Project for UELMA-compliant, open-source DC Code

The Cranch Project is “the [District of Columbia] Council’s effort to create the nation’s first UELMA-compliant, open-source, state-level Code of Laws.” View a prototype here. For more, see Legal Informatics Blog’s Tauberer and DC Council: Implementing UELMA for DC, and prototype of XML for the DC Code. — Joe