Trial by Google: Judicial Notice in the Information Age [SSRN] “explores the emerging phenomenon of courts taking judicial notice of facts gleaned from Internet web sites, like Google Maps.  It highlights the inviting and terrifying intersection of venerable judicial notice doctrine and the Internet, and ultimately suggests guidelines for courts applying Federal Rule of Evidence 201 (Judicial Notice) and state analogues to Internet sources,” according to the article’s co-author, Jeffrey Bellin, on EvidenceProf Blog. Here’s the abstract for Bellin and Andrew Guthrie Ferguson’s forthcoming Northwestern University Law Review article:

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.

Very interesting and highly recommended for legal research and writing instruction.  Joe

It’s pretty hard to publish a Scalia post on LLB without also publishing one about Posner. So here we go. A couple of days ago NPR’s Scott Simon conducted a brief interview with Posner about his latest book, Reflections on Judging (Harvard UP, Sept. 16, 2013). [Podcast with transcript] Wait a minute, Posner might have published another book by now.

From the blurb for Reflections on Judging:

In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying how the judiciary has changed since his 1981 appointment, he engages the issues at stake today, suggesting how lawyers should argue cases and judges decide them, how trials can be improved, and, most urgently, how to cope with the dizzying pace of technological advance that makes litigation ever more challenging to judges and lawyers.

For Posner, legal formalism presents one of the main obstacles to tackling these problems. Formalist judges–most notably Justice Antonin Scalia–needlessly complicate the legal process by advocating “canons of constructions” (principles for interpreting statutes and the Constitution) that are confusing and self-contradictory. Posner calls instead for a renewed commitment to legal realism, whereby a good judge gathers facts, carefully considers context, and comes to a sensible conclusion that avoids inflicting collateral damage on other areas of the law. This, Posner believes, was the approach of the jurists he most admires and seeks to emulate: Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, Robert Jackson, and Henry Friendly, and it is an approach that can best resolve our twenty-first-century legal disputes.

The very first thing I spotted when glancing at my copy of Posner’s Reflections on Judging was a footnote to Scalia (& Gardner), Reading Law: The Interpretation of Legal Texts (West, 2012).

Joe

The Supreme Court’s 2013 term begins today with arguments in two cases.  That’s not the news.  New York Magazine has published an in depth interview with Justice Scalia.  Most of the press focuses on his statements about religion and homosexuality.  Salon leads with the headline Scalia: I believe in the Devil.  That part of the conversation isn’t particularly revealing or shocking given that Scalia is a good Catholic.  As he points out in the conversation, even Jesus believed in the Devil.

Slate focuses mostly on Scalia’s attitudes on homosexuality.  Its headline reads Is Scalia in Denial About His Own Homophobia?   Scalia says that he doesn’t hate homosexuality.  He acknowledges that Catholic doctrine teaches that homosexuality is wrong.  The Constitution does not require the people to adopt one view of it or the other.  That is mild compared to the antagonistic statements the Justice has made in other public occasions which are linked in the article.

Here are my favorite parts of the interview:

Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?

I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.

And:

It was recently reported that the justices don’t communicate with one another by e-mail. Do you go online at all? 

Yeah. Sure, I use the Internet.

You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?

I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that ­people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.

And:

How picky are you about which law schools they [law clerks] come from?

Well, some law schools are better than others. You think they’re all the same?

Now, other things being equal, which they usually are not, I would like to select somebody from a lesser law school. And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled. It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.

And for whom does he write opinions:

My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?

Law students.

Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.

We glean other facts.  He admires the new Pope, politics in Washington is a lot more ideological since he came to the bench, and he doesn’t care too much about how history will treat him.  That alter point is the angle in story in The Atlantic.  In other Supreme Court coverage, Slate has an additional story, Elena Kagan Will One Day Control the Supreme Court.  Here’s a sample:

Kagan didn’t just go hunting with Scalia once. She became a hunter. She quipped to the students about shooting a doe after a recent unsuccessful elk-hunting trip in Wyoming—just because there was nothing bigger around to kill. The students went silent. When she was nominated, many Harvard students wanted Kagan to be the Great Liberal Hope who’d do combat with the court’s formidable conservatives. Now she was proclaiming, “I love Justice Scalia!”

Though the Court starts its new term, there is this ominous note at the bottom of the Court’s home page:

The Court will continue to conduct its normal operations through October 11. The Court building will be open to the public during its usual hours, and the Court will hear the scheduled oral arguments.  A further update will be provided in the event the lapse of appropriations continues beyond October 11.

The Court’s term may be affected by the “partial government shut down.”

Mark

The title of this post is taken from the sign-up page of LexisNexis’s promotional offer for its Firm Manager practice management platform. The link to the promo was provided in one of Bob Ambrogi’s LawSites posts (Oct. 3, 2013; updated twice on Oct. 4, 2013). Why the updates? I think because someone at the ABA needs to get a life.

If a vendor offers a promo to members of an ABA section in conjunction with the section’s national conference does that imply the ABA endorses the vendor’s product? Of course not. Certainly Bob didn’t think so until he received a take down notice from the ABA’s general counsel’s office. For details, see Bob’s twice updated LexisNexis is Giving $250,000 in Free ‘Firm Manager’ Subscriptions to Small Firms.

Joe

I alluded earlier in the week that I would comment from time to time on media, and that included Scooby-Doo.  Since it’s a Friday, I’m going to take that opportunity.  I’m a big fan of animation.  There are a lot of quirky shows on these days (Regular Show, Adventure Time among others).  One of the more amazing shows is Scooby-Doo Mystery Incorporated.  The show uses the Scooby-Doo gang and the mystery solving meme that’s existed since the late sixties.

This version of Scooby-Doo, though, goes well beyond the-monster-is-really-a-guy-in-a-rubber-mask.  The 52 episodes contain numerous subtle and not so subtle references to pop culture that makes one do a double-take at times.  Consider the casting.  One recurring character, Mister E (get it?) is voiced by comedic icon Lewis Black.  Science fiction author Harlan Ellison played himself in an episode that focused on the world of H.P. Lovecraft in extreme detail.  Udo Kier voiced the character of Professor Pericles, a super intelligent but evil parrot.  Kier has worked with many important directors and appeared in Andy Warhol’s Frankenstein among other films.  Sheriff Stone is voiced by Patrick Warburton who may be best known for playing Joe on Family Guy.

The pop culture references built into the show are both diverse and amazing.  One episode, The Battle of the Humungonauts, is an homage to the Toho Studios film The War of the Gargantuas.  Toho is the studio that brought us Godzilla and other Japanese monsters.  It even features the song “Stuck In My Throat” from that film.  Devo incorporated the song as a closer to their live act in the late 70s.  Another episode, Art Of Darkness, features artist Randy Warsaw, a parody of Andy Warhol, and a band called Sunday Around Noonish.  The song the band performs is a spot-on parody of the Velvet Underground’s All Tomorrow’s Parties.  It’s played twice, in fact, with Scooby-Doo replacing the Nico character when she is indisposed by a piece of animated artwork.  Sample lyric:  “And what would you do if you met a caribou?”  The Lou Reed character was the villain.  It turns out he only wanted to play Polka music.  One episode takes place in the red room from Twin Peaks.  A significant character is the dancing man who is voiced by the same actor from that show.  I can’t list everything, so I would suggest checking the Wikipedia page that details each of the episodes and references.

The story arc tells the tale of Mystery Incorporated seeking a lost treasure supposedly buried underneath their town of Crystal Cove.  In reality, the treasure is a crystal sarcophagus containing a trapped alien, identified as one of the Anunnaki, and an evil one at that.  He has manipulated mystery solving groups for the last 500 years in order to free himself at the imminent coming of Nibiru.  Velma references Zecharia Sitchin at several points in the series to explain this plot point.  Anyone who is familiar with late-night radio dealing with paranormal subjects (I’m looking at you, George Noory) will be comfortably aware of this story element.

Scooby and the gang collect artifacts throughout the episodes that lead to the ultimate confrontation with the evil alien.  Along the way we are treated to emotional relationships between members of Mystery Incorporated, underwater Nazi bases, violent ends for major characters at times, and even a little bit of parallel universe theory.  And Harlan Ellison makes another appearance at the end that neatly ties up all of the loose ends.  My reaction to this show is that one has to be at least 50 to get all of the references, and at an elevated level within the blogosphere to appreciate them.  This is definitely not your standard Scooby-Doo.

Ok, what does this have to do with libraries?  Library and archival holdings are significant plot points that move the story along.  One episode’s villain turns out to be the town librarian.  So there.  The show is out on several DVDs.  It stands up to repeat viewing.

Mark

Casey Berman (University of California, Hastings ’99) is the founder of the Leave Law Behind blog. Recently he contributed a post to ATL. See From the Career Files: How You Can Manage Your Time Well Enough In Order To Leave The Law.

Also on ATL, David Lat, Elie Mystal, and Joe Patrice discuss whether going to business school is a better financial decision than going to law school. Here’s the link to the post and their podcast.

Joe

It’s not too late 1Ls.  – Joe

Produced by Bloomberg Law:

Large tuition bills, huge debt loads and lousy job prospects — with all that facing today’s law students, who could blame them for considering dropping out of school? For some students, that’s the first step on a path to finding their true calling, as it was for the famous law school dropouts featured in this video.

Kudos to ABAJ for finally recognizing CALI’s John Mayer as a member of ABA Journal’s class of 2013 Legal Rebels. It’s about time IMHO. This is the fifth annual Legal Rebels installment and John has been doing his CALI thing since 1994. No doubt John was happy to accept the recognition on behalf of CALI’s staff, past and present, and the Center’s institutional supporters. In the below ABAJ video he promotes one of CALI’s most important projects, A2J.

John’s CALI gig almost lasted no longer than a concert performance by the other John Mayer.  According to the ABAJ’s profile (located under the heading “Freeing the Law” here), “Shortly after starting, center leaders told him the organization might shut down.” I wonder what bar on the west side of the Loop John went to after hearing that!

Oh, BTW, John is a member of the inaugural class of the Fastcase 50. The 2011 Fastcase 50 profile does a far better job at capturing the essence of this rebel with a damn good cause. For example, “John Mayer is a visionary and a connector (as well as a leading purveyor of flying stuffed animals at conferences).”

Joe

Serving as editors, Sue Polanka and Mirela Roncevic have issued a call for article proposals for ALA’s new eContent Quarterly. From the No Shelf Required post:

eContent Quarterly is now accepting proposals for contributions to its Spring 2014 issue. Librarians, publishers, vendors, and other information science professionals interested in writing an article about how their institution is braving an e-content challenge, or if they are in the midst of developing or releasing a product librarians and information professionals should know about, may send their proposal to the editors (sue.polanka@wright.edu; mirela@mirelaroncevic.com), including a detailed description of the topic and information about affiliation and credentials.

Topics of interest include but are not limited to:

  • Effect of digital content on learning and literacy
  • Discoverability and marketing of digital content
  • Business model experimentation
  • Ebook platform technologies
  • Locally-hosted digital content
  • Library as Publisher
  • Self-publishing and libraries
  • Budgeting for digital content
  • Impact of one-to-one device adoption
  • Open access ebooks
  • Digital textbook adoption

For the latest information, see eContent Quarterly ready for launch; contributors for future issues wanted. To subscribe to eContent Quarterly visit this page.

Joe

Due to the temporary shutdown of the federal government,  the Library of Congress is closed to the public and researchers beginning October 1, 2013 until further notice.

All public events are cancelled and web sites are inaccessible  except the legislative information sites THOMAS.gov and beta.congress.gov

Source: Library of Congress Shutdown Message

See beSpacific’s Government Websites that are offline – the list will be expanded.  Joe

Connie Crosby asks an interesting question on the SLAW blog:  Where Are the MOOCs for Law Librarians?  She’s really channeling Katie Thomas in posing the question.  Thomas identifies programs for librarians, though these are aimed broadly at information science.  There really aren’t any that mix law and librarianship as related concepts.  I can think of a couple of reasons why there aren’t any specific MOOC offerings for law librarians.

One is that there is a lot of background technical work that goes into making a MOOC work successfully.  Universities that offer MOOC’s will partner with entities such as Coursera rather than building the necessary infrastructure from scratch.  Another is that LIS programs tend not to offer more than one or two courses that focus directly on law librarianship.  I would think that any MOOCs they present would reflect that limited specialization within their courses.

That leaves the professional organizations as a possible sponsor of MOOCs aimed at law librarians.  There is certainly no lack of educational opportunities at the AALL annual meeting.  The regional chapters put on educational programs at least once per year.  Could they possibly present these as a MOOC?  I don’t know.  I think the professional organizations are the most likely organizers of content aimed at law librarians.

AALL offers webinars from time to time.  The next one is The Law of E-books scheduled for October 24th.  The description notes “This program is sponsored by AALL/Bloomberg Continuing Education Grants Program.”  Maybe it’s time to explore partnerships with vendors to underwrite a law librarian MOOC.  I’ll say from the outset that I’m not addressing the politics of vendor partnerships.  There is a model and a precedent, however, for the idea that a vendor can help underwrite a CLE program.  Why not in the form of a MOOC?  I would hope that AALL and the regional chapters consider the idea.  Maybe then we’ll see an answer to Connie and Katie’s question.  Hat tip to Judy Gaskell for the link to SLAW.

Mark

Since DLA Piper and Jones Day, we haven’t seen any announcements about BLaw signing up entire BigLaw firm staffs in the news. Perhaps I missed them. However, I’m sure there are plenty of BigLaw firms licensing BLaw under limited seat agreements. No doubt BLaw is putting the squeeze on WEXIS. So is Fastcase.

The New York State Bar Association, the largest voluntary state bar association in the country, is now offering Fastcase to its 76,000 members. Quoting from the Sept. 25, 2013 press release:

This is the new normal, when New York firms are absorbing their legal research costs as overhead, and firms of all sizes are looking to add a nonbillable ‘house account’ for legal research,” said Fastcase President Phil Rosenthal. “This partnership makes the NYSBA and Fastcase a better value than ever for New York firms, because they can reduce the costs of legal research and they can do so with the world’s smartest legal research tools.”

The Fastcase-NYSBA agreement pushes Fastcase’s user population over the 600,000 mark. Unlike Casemaker, Fastcase’s adoption rate extends well beyond the state bar association market.

Joe

A seven-month investigation by KrebsOnSecurity revealed that more than 1,300 customers of SSNDOB, an ID theft service, spent hundreds of thousands of dollars looking up SSNs, birthdates, and driver license records and unauthorized credit and background reports obtained by hacking into LexisNexis, D&B and other major data brokers. The finding is based on a copy of the SSNDOB database that became available after the ID theft service was itself hacked.

According to the SSNDOB’s online dashboard, the hackers had access to LN’s internal networks as far back as April 10, 2013 and D&B’s at least as far back as March 27, 2013. For details, see KrebsOnSecurity’s Data Broker Giants Hacked by ID Theft Service. See also Dan Goodin’s How LexisNexis and others may have unwittingly aided identity thieves (Ars Technica).

Joe

It’s nice to be back after what I will call a “vacation” from the blog.  As a way of getting back in the swing of things, let’s see what developments have taken place in the down time.  These are the kinds of things I covered at our former blog.

The Apple e-book trial ended in early summer with a finding of liability for attempting to fix e-book prices.  Apple continues to deny the finding by Judge Denise Cote and plans to appeal.  The Court issued an injunction specifying remedies on September 6th.  These include forbidding Apple from entering into publisher contracts containing MFN clauses for five years; retailers having the right to discount e-books for two years; staggered windows for negotiations with the settling publishers, in settlement order; and requiring an external compliance monitor who would make sure Apple complies with the terms of the Court’s order.  The one remedy denied to the Justice Department was its request to allow in-app purchases on iDevices without having vendors pay the standard 30% commission to Apple.  The Justice Department would further expand that requirement to other media besides books.  The Judge declined the request stating essentially that she did not want to regulate Apple’s overall business model.  More details, including a copy of the Court’s order, are at paidContent.

The ABA Taskforce on the Future of Legal Education issued its latest draft report on September 20th.  The key conclusions include the fact that a student with lower LSAT scores and GPA will not get a greater return on investment as they are less likely eligible for student aid.  The better students will get aid regardless of need.  “These practices are in need of serious re-engineering.”  I can hear a dean somewhere asking “but what about the rankings?”

The twin components of accreditation and innovation are addressed by noting how current accreditation standards are worthy of the profession up to now.  The problem is that they standardize much of legal education in a way that stifles innovation.  Regulation should allow for flexibility and experimentation in constructing a law program that prepares a student to deliver legal services.  “The Task Force thus recommends that a number of the Standards be repealed or dramatically liberalized.”  Here’s another conclusion that will not be popular with the faculty:  “The balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further toward developing the competencies required by people who will deliver services to clients.”  Legal Writing programs just became a little more important.

The Report additionally calls for expanding the number of people who can deliver common legal services through training and certification that is short of the full J.D. program.  The cost of legal services to the general public is skyrocketing because of the cost of training lawyers.  Something along these lines would make legal services more affordable.  The ABA Journal has additional details.

Regular readers of our old site know that I covered Supreme Court cases for the last several years.  I intend to continue that practice as the new term begins next Monday.  I’ll continue to add significant cases from the lower courts.  You may remember a case out of Virginia last year where a federal judge found that a Facebook “like” was not protected speech.  The Fourth Circuit recently decided otherwise.  I’ll also be covering significant technology developments.  The public update to Windows 8/8.1 is just a few short weeks away, and there’s the Surface 2 as well.  Yahoo has a new logo, and Google is still in trouble with the European Union and member states.  There will be commentary on educational technology as always. There will also be book reviews of new Oxford University Press items and other publishers.  Everyone take note that I am a slow reader when it comes to long form.  Law school (reading too many doctrinal cases lo those many years ago) lowered my desire to pick up a book, and if that desire ever re-awakened, well the pace of the Internet turned it into consumption of zombie short form.  Lots of it.

And I just may review the occasional media item.  I just picked up Simon Schama’s History of Britain (BBC Special Edition DVD set).  I highly recommend it.  If you’re interested in Scooby-Doo, well I’ve got something to say.  Beyond that, welcome to the new Law Librarian blog.  Thank you for reading.

Mark

OASIS members are discussing the feasibility of designing an open standard data model and markup model for legal citations that can be used in electronic texts.The importance of addressing this issue should be obvious to legal information professionals. See Draft Proposal for a New OASIS Technical Committee (Legalcite) which is accompanied by a backgrounder.

Quoting from an email by Chet Ensign, Director of Standards Development and TC Administration, OASIS Open:

A standard model for tagging citations could simplify software development and become the foundation for new innovations in legal authoring, linking, annotating, searching, and citation analysis, all without requiring that the display text on the page be changed in any way.

If this is of interest to you, your organization, or any of your colleagues, we would be pleased to hear from you. Feedback — supportive, skeptical or critical — is key to launching an effort with the right scope to deliver an open standard that the legal field can use. If you are interested in learning more about how you can participate in the effort, we would like to hear from you as well.

See Chet’s web profile to contact him directly. Thanks for the heads-up.

Joe

In Link Rot within SCOTUS Opinions and Law Reviews [SSRN], Jonathan Zittrain and Kendra Albert found that 49% of URLs in surveyed SCOTUS opinions no long send the reader to the cited web source. Raizel Liebler and June Liebert’s recently published article, Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010), 15 YALE J.L. & TECH. 273 (2013), reports a SCOTUS link rot rate of 29%. Obviously there’s a problem. But it is not with the difference in survey findings. Clearly SCOTUS must get its act together by linking to a self-hosted openly accessible archive of the web content that was cited and currently only stored in the Court’s files. How about naming the archive “Last Visited On”?

Zittrain and Albert’s article is recommended but I found Liebler and Lieber’s much more informative. Here’s the abstract for Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010):

Citations are the cornerstone upon which judicial opinions and law review articles stand. Within this context, citations provide for both authorial verification of the original source material at the moment they are used and the needed information for later readers to find the cited source. The ability to check citations and verify that citations to the original sources are accurate is integral to ensuring accurate characterizations of sources and determining where a researcher received information. However, accurate citations do not always mean that a future researcher will be able to find the exact same information as the original researcher. Citations to disappearing websites cause serious problems for future legal researchers. Our present mode of citing websites in judicial cases, including within U.S. Supreme Court cases, allows such citations to disappear, becoming inaccessible to future scholars. Without significant change, the information in citations within judicial opinions will be known solely from those citations. Citations to the U.S. Supreme Court are especially important of the Court’s position at the top of federal court hierarchy, determining the law of the land, and even influencing the law in international jurisdictions. Unfortunately and disturbingly, the Supreme Court appears to have a vast problem with link rot, the condition of internet links no longer working. We found that number of websites that are no longer working cited to by Supreme Court opinions is alarmingly high, almost one-third (29%). Our research in Supreme Court cases also found that the rate of disappearance is not affected by the type of online document (pdf, html, etc) or the sources of links (government or non-government) in terms of what links are now dead. We cannot predict what links will rot, even within Supreme Court cases.

Hat tip to Adam Liptak’s In Supreme Court Opinions, Web Links to Nowhere (NYT, Sept. 23, 2013).

Joe

Welcome to Law Librarians (thinking out loud in the Blogosphere) or LLB for short. If that sounds familiar it’s because Mark Giangrande and I have moved our blogging activities from old LLB to here. We will be writing on the same topics we did since old LLB was launched in 2005. Nothing has changed except the URL.

To all our friends who emailed us after noticing that we hadn’t been publishing, the answer to your question — “is everything OK?” — is yes. Thanks for your concern. We’re alive and kicking. Hope you stop by to read our posts here. LLB’s syndication widgets are located in the right sidebar.

Joe