I never had a chance to write about the other cases the Supreme Court issued on Monday.  Here are short summaries of the points decided.  The case of Henderson v. United States (13-1487) presented the question as to whether a convicted felon could transfer his guns to a third party as §922(g) prevents a felon from possessing firearms.  Henderson wanted to give his guns to a friend.  The government opposed the idea.  The Supreme Court held that the statute does not prohibit the transfer provided the court below was satisfied that the transfer was not a sham.  Justice Kagan delivered the opinion for a unanimous Court.

Coleman v. Tollefson (13-1333) concerned the ability of prisoners to file lawsuits in forma pauperis.  The relevant statute limits a court to grant the status to a prisoner who has filed three prior actions that were ultimately dismissed as frivolous. , malicious, or fails to state a claim upon which relief may be granted.  Coleman filed three suits that were dismissed as frivolous.  He filed four more suits while the third dismissal was on appeal.  The lower courts denied him in forma pauperis status.  Coleman argued that the case on appeal shouldn’t count.  The Supreme Court disagreed stating essentially that the statute governs the action of a single court rather than as a sequence of events.  Justice Breyer delivered the opinion for a unanimous court.

The case of Comptroller of Treasury of MD v. Wynne (13-485) presented the issue of how states can account for tax credits against taxes paid to other states.  Maryland allowed tax credits for tax payments made to other states against its state income tax but not for a county tax which the state also levied.  The state issued a deficiency notice against Wynne when he claimed credits against both.  The lower Maryland courts held the tax scheme violated the dormant Commerce Clause as it burdened interstate commerce.  The state’s tax scheme did not pass the internal consistency test which assumes that every state has the same tax structure.  If every state adopted Maryland’s structure, interstate commerce would be taxed higher than intrastate commerce.  The words “dormant Commerce Clause” suggest all kinds of internal interpretive disputes in the Court which is reflected in the vote.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Scalia filed a dissenting opinion and was joined by Justice Thomas as to Parts I and II.  Justice Thomas filed a dissenting opinion and was joined by Justice Scalia except as to the first paragraph.  Justice Ginsburg filed a dissenting opinion and was joined by Justices Scalia and Kagan.

The next case is Tibbles v. Edison Int’l (13-550).  This case involves a breach of fiduciary duty claim under ERISA, but the real issue is whether the limitation period for filing a claim (six years) barred the suit.  The claim is that plan trustees added mutual funds to the plan in 1999 and 2002 when there were materially identical plans available at a lower cost.  The case was filed more than six years after the funds were added to the plan.  The Court held that trustees have an ongoing duty to remove imprudent trust investments.  As long as the claim alleges a violation of that ongoing duty, the claim is timely.  Justice Breyer delivered the opinion for a unanimous Court.

The last case from Monday is Harris v. Viegelahn (14-400).  There are two options for filing individual bankruptcy, Chapters 7 and 13.  The difference is that under Chapter 7 a debtor’s assets are transferred to a bankruptcy estate and promptly liquidated for distribution to creditors.  This does not include wages earned after the petition is filed.  Chapter 13 allows a debtor to retain assets and develop a plan to pay off creditors from future wages, among other assets.  Harris owed money to multiple creditors and some $3,700 to Chase Bank as arears on his home mortgage.  Chase filed a Chapter 13 petition.  Harris was obligated under the plan to resume mortgage payments of $530 per month which were withheld from his wages and given to Viegelahn, the bankruptcy trustee.  Harris fell behind and Chase foreclosed.  Viegelahn still received the $530 per month without making any payments to Chase.  Harris converted his Chapter 13 plan to Chapter 7 a year later.  Viegelahn then distributed money to creditors including funds from Harris’ wages.  Harris petitioned to get that money back.  The Fifth Circuit held that Harris was not entitled to a refund.  The Supreme Court reversed, holding that bankruptcy law limits the Chapter 7 estate to property on hand at the time of the initial filing.  Justice Ginsburg delivered the opinion for a unanimous Court.


I came across an interesting feature in the case law portion of Google Scholar.  A non-law student asked me for help in locating three cases that she couldn’t find through LexisNexis Academic.  She explained that she also tried using Google Scholar.  I expanded the information about each by doing a few web searches as well as to verify the accuracy of the case names she gave me.  Two of the three were ultimately available through LNA.  The third was not.

I searched Scholar with the information I had located about the case and found an opinion with the right caption.  I opened the document and noticed that the docket number was a hyperlink.  I clicked on it and discovered that there were actually seven opinions issued in the case, at least at the federal District Court level.  I remember back when Google Scholar added the case law database that the engineers in charge said it would be easy to create a citator but that their contract with the “unnamed large legal publisher” that licensed the text prohibited that feature.  Somehow that didn’t stop Google from adding two features that form a quasi-citator.

One is the “How cited” link in the upper left corner of the page containing the full text of an opinion.  That gives links to other citing cases with snippets of text from those cases.  There is another option to see all cases that cite the source case.  The second feature is a series of links on the same page under the heading “Related documents.”  This is where links to the same case at a different appellate level may be found.  By hyperlinking the docket numbers, Google can now offer a quasi-history along with its quasi-citator.  The only thing missing and presumably barred by contract are the symbols (emojis?) identifying the quality of the citation.

The main feature of Google Scholar’s case law, of course, is finding cases related to a problem through keyword search.  The results were hit or miss back in 2009 when the database went public.  The case list showed relevant decisions but it seemed as if something was missing.  The trust factor wasn’t there.  I mention this because I tested Scholar last fall when I created scripts for teaching features and strategies available using Lexis Advance, WestlawNext, and Bloomberg Law.

The problem was set in New York State.  Essentially, an individual sued a landowner for injuries sustained while riding an all-terrain vehicle (ATV) on the owner’s property.  The searches were from the perspective of the owner under the theory of assumption of the risk.  I liked the problem because there is a New York statute that specifically exempts liability for injuries sustained in most but not all unauthorized access circumstances.  It gave the opportunity to show research elements such as case results, links to statutes, annotations under statutes, and how to find related headnotes.  All three databases brought up the same leading cases and straightforward navigation to the related research types on each system.

I tested the same keywords in Scholar and sure enough, it gave results featuring all of the same leading cases on the first page of citations as I had found in LA, WN, and BL.  Essentially, Google’s algorithm has improved tremendously since those early days.  Google is hardly a substitute for any of the commercial databases as it does not have the value-added features such as secondary sources and others.  At the same time, anyone searching Scholar’s case law database can do so with a good amount of confidence in my opinion.

Incidentally, anyone wishing to see the scripts I designed should contact me for copies.


It’s getting to that time of the year when the Supreme Court starts to issue opinions in droves.  The Court issued six opinions today.  The opinion that will likely generate the most news is City and County of San Francisco v. Sheehan (13-1412).  That case concerned two questions:  whether the Americans With Disabilities Act (ADA) applied to police arresting an individual suffering from a mental illness, and whether the officers involved in the incident were entitled to qualified immunity under the circumstances.

Here is a summary of the relevant facts.  More detail is in the opinion.  Theresa Sheehan lived in a group home for those with mental illnesses.  Her social worker in the building, Heath Hodge, attempted a well-being check.  He knocked on Sheehan’s door with no response from  her.  He then used his key to enter Sheehan’s room.  Sheehan sprung from her bed and yelled for Hodge to get out and threatening him with a knife.  Hodge left and called police for assistance.  Officers Holder and Reynolds responded.  They knocked on Sheehan’s door and announced themselves as police officers.  They received no response and proceeded to use Hodge’s key to enter the room.  Sheehan announced rather aggressively that she had a knife and threatened to kill both officers.  They retreated and called for backup.

Both officers re-entered the room rather than waiting for backup to arrive.  The Court notes that “they did not pause to consider whether Sheehan’s disability should be accommodated.”  Sheehan again threatened violence.  Officer Reynolds pepper-sprayed Sheehan and that was ineffective.  Officer Reynolds shot Sheehan twice.  A third officer from backup kicked the knife out of Sheehan’s hand.

Sheehan ultimately sued San Francisco under the ADA for not accommodating her disability.  She also sued Holder and Reynolds in their personal capacities for violating her Fourth Amendment rights.  The District Court held that the ADA did not apply to police in these circumstances and that Sheehan’s Fourth Amendment rights were not violated.  The Ninth Circuit vacated in part holding that it was up to a jury to determined whether the police should have accommodated Sheehan.  A jury could have also determined whether officers needlessly provoked Sheehan through the second confrontation.  As the Court stated:

The panel further found that it was clearly established that an officer cannot “forcibly enter the home of an armed, mentally ill subject who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry.”

San Francisco appealed to the Supreme Court.  The Court dismissed the grant of certiorari as to the question of whether the ADA “requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.”  None of the parties actually argued the point with all assuming that the ADA did apply. San Francisco argued instead that Sheehan did not qualify for an accommodation under ADA regulations.  The Court was not happy with the change in strategy compared to the question it certified.

The second question about qualified immunity was decided in favor of the police, though that decision was not without controversy.  More on that in a moment.  The Court held that the police in this case did not violate a statutory or constitutional right clearly established at the time of the challenged conduct.  The Court agreed with the Ninth Circuit in the two entries did not violate any clearly established right or that the second entry would have violated any constitutional rights had Sheehan not been disabled.  The use of force under the circumstances was also reasonable.  This, however, did not end the issue:

The real question, then, is whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability. Here we come to another problem. San Francisco, whose attorneys represent Reynolds and Holder, devotes scant briefing to this question. Instead, San Francisco argues almost exclusively that even if it is assumed that there was a Fourth Amendment violation, the right was not clearly established. This Court, of course, could decide the constitutional question anyway. See Pearson v. Callahan, 555 U. S. 223, 242 (2009) (recognizing discretion). But because this question has not been adequately briefed, we decline to do so. See id., at 239. Rather, we simply decide whether the officers’ failure to accommodate Sheehan’s illness violated clearly established law. It did not.

The Court analyzed the precedent used by the Ninth Circuit and concluded that it did not justify a remand to a jury on the question of immunity.

Justice Scalia wrote an opinion concurring in part and dissenting in part.  He agreed that the Court was right to dismiss the certiorari on the first question as improvidently granted.  He stated that on that basis the Court should not have addressed the second question.  He stated:

[H]owever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term. Many of them have undoubtedly been decided wrongly, but we are not, and for well over a century have not been, a court of error correction.

Take that for what it is.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, Ginsburg, and Sotomayor.  Justice Scalia filed the aforementioned  opinion concurring in part and dissenting in part and was joined by Justice Kagan.  Justice Breyer did not participate in the case.

I’ll write about the other cases tomorrow, and if time permits, some interesting features I discovered in Google Scholar’s  case law database.


News reports show that the law school enrollment crisis is starting to affect the viability of schools in a big way.  We’ve had the faculty/staff reduction stories for the past two years or so.  The next set of reports identified lower admissions to the schools.  The crisis there, of course, was whether to dilute numbers like LSAT scores and GPAs just to fill seats.  It’s all problematic as dilution tends to affect US News rankings negatively.  This, in turn, reflects on a school’s reputation which can affect application numbers.

Even as the application drop began several years ago pundits were predicting school closings and other dire reactions.  Let’s pause for a moment and take a look at the latest statistics:

As of 4/24/15, there are 317,748 fall 2015 applications submitted by 47,577 applicants. Applicants are down 2.5% and applications are down 4.6% from 2014.

Last year at this time, we had 90% of the preliminary final applicant count.

That’s about 232 applicants per accredited law school on average.  The volume of applications is 1550 per school, on average.  Nonetheless, successful (read qualified) applicants can only attend one law school.  The higher ranked schools get the benefit of those multiple applications.  That drives what happens to the middle and bottom schools.  There are only so many faculty and staff reductions a school can make before more desperate measures come into play.  Here are a few.


Hamline School of Law and the William Mitchell College of Law will become the Mitchell|Hamline School of Law with operations mostly on the Mitchell campus.  William Mitchel was ranked at 142 in a three-way tie and Hamline at 145 in a four-way tie.  The merger may reflect a better expense/revenue figure for the combined schools, but likely not their ranking.  The merger announcement was made in mid-February

The autonomous law schools at Rutgers Camden and Rutgers Newark are merging into a single law school.  Classes will be taught at both locations some 90 miles apart.  Rutgers-Camden was ranked 102 in a three-way tie and Rutgers-Newark was ranked 87 in a seven-way tie.  The merger is not with its own political ramifications as there was a failed (and highly unpopular) attempt to transfer the Camden school to Rowan University in 2010.  The merger announcement was made in mid-April.


The most drastic reaction to the application crisis may hit the Charleston School of Law in South Carolina.  The Post and Courier is reporting on a potential sale of the for-profit school to InfiLaw which is owned by a private equity firm.  Questions remain whether the sale will gather the regulatory approvals that will allow the school to continue operating.  The alternatives are pretty ugly in any event.

And the Next One?

The latest school that’s in financial trouble is the University of Massachusetts School of Law.  The former Southern New England School of Law was absorbed by UMASS at Dartmouth in Dartmouth in 2010.  That move was not without controversy as there was a lot of opposition, most notably from private law schools in the state, over whether taxpayers should support the state in running what would beits only public law school.  The school was projected to be financially viable by 2014 with admissions doubling by 2017.  The figures reported by the Boston Globe [subscription] show that the school has an $3.8 million deficit with its incoming class slashed by a third to 72 students.  Projections show the deficit to widen next year.  The school is provisionally accredited by the ABA.

[Correction posted from $8.3 million to the true figure of $3.8 million.  I truly regret the error.]


It’s been quite a week here for me.  It’s warm here in Chicago, for a change.  We’re in the middle of exams here at the College of Law.  The professional librarians takes turns as proctors with my turn yesterday.  The Blackhawks are working their way through the Stanley Cup playoffs (go Hawks!).  And I was off Wednesday as I spent part of the day with a friend, culminating in seeing Crosby Stills Nash at the Chicago Theatre.  It was a great venue to see them.  The seating was comfortable and the acoustics were superb.  I’d seen other shows there, most notable Van Morrison several years ago.  The  first set started with a breezy version of Carry On.  I’ll say up front that for a band (the principles, at least) having been together for 45 years that they still have it vocally and as guitarists.

Stills’ voice was a bit rough at the beginning.  He explained later in the show that he made a mistake with the room thermostat and the resulting cold affected his voice.  No matter.  The harmonies were terrific with his voice getting stronger as the show progressed.  The song selection was a combination of older “hits” and a few new songs yet to be released as recordings.  Graham Nash said it best, that they play old songs but it’s the new songs that keep them from being the Eagles.  They did perform the song Chicago as the second number.  The crowd really got into it, singing along at various times. Some of the highlight songs included Almost Cut My Hair, Wooden Ships, Déjà vu, Our House, and rousing versions of For What It’s Worth and Love The One You’re With.

The band, which Stills called the best band they had ever worked with, was great.  It featured Shane Fontayne (guitar), Steve DiStanislao (drums), Kevin McCormick (bass), James Raymond (keyboards), and Todd Caldwell (organ).  The arrangements were all much updated from what appeared on the recordings and at the same time very familiar.  Stills in particular played blistering lead guitar on most all the songs.  I don’t know how many dates are left on the U.S. tour.  I think they are headed east at this point and ultimately for shows in Europe.  If anyone is a fan and has a chance to see them on the rest of the tour, do it.  You won’t be disappointed.

I hope to be back with more regular content on Monday.


Boy, I haven’t done one of these in quite some time.  Wandering down the Internet news can bring up some mighty unusual items where the law gets involved.  Take, for example, this story in Wonkette about one Sylvia Driskell from Auburn, Nebraska.  She has filed a handwritten complaint in the federal court for the District of Nebraska against all homosexuals on behalf of God and his Son, Jesus Christ.  The complaint alleges “sin.”

I expect the suit will be dismissed for any number of reasons including the inability to provide an address for service much like this earlier case from Nebraska where a state senator sued God to comment on the ability of court access by the public.  There is also the question of jurisdiction, to wit which federal law or rule can the plaintiff invoke that gets the case properly before the Court.

I’ve worked with a lot of public patrons/pro se litigants over the years.  They have ranged from, in my opinion, fairly competent to having no grasp on reality in regard to what is a justiciable issue.  I feel for the librarians, if any, who had to discuss the case with Driskell pre-filing.

In a somewhat related story, the Massachusetts Supreme Judicial Court denied a law license to one Randy Britton for a variety of reasons.  One is that he used a letter of recommendation that was part of a settlement agreement in a civil suit against the lawyer who wrote it.  The lawyer filed a criminal complaint against Britton which was later dismissed.  The letter was part of related civil actions.  The Court also found Britton failed to disclose other cases including one where he sued over a denial of a license for assault weapons.  He also had a “substantial history of initiating pro se legal actions, the majority of which have been unsuccessful, and some of which have resulted in sanctions or an order to pay restitution.”  Read more at the ABA Journal.

Finally, the new Indiana Tech Law School in Fort Wayne, Indiana, has not received accreditation in its second year of operation.  I’ve written before about the school, most of it wondering why it exists in the current academic climate.  If I remember correctly, it had to do with that part of Indiana being an underserved market with potential applicants going off to Michigan and Ohio for an education.  The story in the Fort Wayne News-Sentinel quotes school representatives as saying the school will make improvements to the program once it receives the inspection report.  Well, good luck to that.


Librarians tend to be fond of cats.  As the most recent example, during the break at the MichALL session I attending on April 17th I overheard more than one conversation where cats were discussed.  Years ago a friend of mine who graduated from the library program at the University of Illinois said that she expected to receive a kitten with her diploma.

I am personally fond of cats.  I have five, all rescues.  I jokingly tell people that I hope to buy a ranch in my retirement and raise about a hundred head of cat.  I’m not exactly off the mark in one respect.  I regularly feed strays that show up in my yard.  I even have a couple of large plastic dog houses filled with straw so that strays could have a place out of the cold and inclement weather.  I think of them as my personal public patrons.  This has been going on for the last 15 years or so.

I came home from work late on Tuesday and took a few cans of cat food to my back yard for the evening travelers when I heard a tiny “mew” coming from one of the dog houses.  I peered inside and much to my surprise was a calico mom cat and five kittens.  She obviously had them while I was away.  I’m including a picture so readers can see what I encountered.  It was taken on Wednesday night when they were essentially one day old.  I hope to find homes for them in about 10 weeks.  They should be ready about then.  In the meantime, enjoy the kitten picture.




The Supreme Court issued two opinions this morning.  The first, Williams-Yulee v. Florida Bar (13-1499), decides whether a rule in the Florida Code of Judicial Conduct baring direct solicitation of contributions by a candidate for judicial office violates the First Amendment.  The Court declares it does not.  Williams-Yulee posted an online letter directly soliciting funds for her campaign.  She was disciplined by the Florida Bar for violating the Code and the Florida Supreme Court upheld the disciplinary action.

The Supreme Court affirmed the decision of the Florida Supreme Court noting that it is a compelling state interest to place rules in place that maintain the trust of the people in the judiciary.  Judicial elections are different from legislative or executive elections in that those candidates are essentially politicians who are likely to respond to the preferences of their donors.  Judges, on the other hand, must decide even-handedly the issues before them.  The Court also noted that many of the contributors are likely to be lawyers who may appear before the judge.  Recusals and similar actions in these circumstances are not enough to necessarily maintain public trust in the judiciary.

Chief Justice Roberts delivered the opinion of the Court, except as to Part II.  Justices Breyer, Sotomayor, and Kagan joined the opinion in full.  Justice Ginsburg joined the opinion except as to Part II.  Justice Breyer filed a concurring opinion.  Justice Ginsburg filed an opinion concurring part and concurring in the judgment and was joined by Justice Breyer as to Part II.  These concurrences and exceptions were related to levels of scrutiny applied and not to the application of the First Amendment.  Justice Scalia filed a dissenting opinion and was joined by Justice Thomas.  Justices Kennedy and Alito each filed dissenting opinions.  The dissents would strike down the ban for various reasons in applying First Amendment protections.

The second case was not, in comparison, fractious.  That case is Mach Mining LLC v. EEOC (13-1019).  Title VII gives the EEOC broad discretion in settling claims made against an employer.  The statute specifically provides a requirement that the Commission endeavor to end the “alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  The EEOC may then file a lawsuit if those efforts fail.  However, nothing said or done in those proceedings may be used as evidence subsequently without explicit permission of the persons concerned.

The procedural history of this case is relevant.  The EEOC sent Mach Mining a letter stating it received complaints about employment discrimination and that a representative would begin the informal settlement process.  The Commission sent a second letter about a year later stating that these conciliation efforts failed.  It sued Mach Mining in federal court.  Mach Mining argued that the Commission had not negotiated in good faith.  The EEOC responded that its efforts were not subject to judicial review.  The District Court said it could review the efforts but allowed the Commission to immediately appeal the decision to the Seventh Circuit.  The Appellate Court reversed.

The Supreme Court vacated that decision and remanded.  The effort for conciliation is reviewable but the standard is very narrow based on the language of Title VII.  Mach Mining argued that the actual conciliation be reviewed using the National Labor Relations Act (NLRA) to determine whether the Commission acted in good faith.  The Court rejected that as the NLRA is process-based.  Title VII, on the other hand, is not about process but merely requires the Commission to negotiate before filing suit.  All the Commission has to do is inform the employer about the charged conduct and then negotiate.  A sworn affidavit from the Commission to that effect will meet its statutory obligations to that effect.  The employer can only dispute whether these things have taken place.  The Commission merely needs to carry out these requirements if the reviewing court finds that they have not taken place.

Justice Kagan delivered the opinion for a unanimous Court.  So let it be written, so let it be done.


The bane of my existence is meetings and/or doctors.  I had enough of both last week to prevent me from writing about the lone Supreme Court decision that came out last Wednesday.  That case is United States v. Kwai Fun Wong (13-1074).  The case consolidates two cases with essentially the same issue under the Federal Tort Claims Act.  In each case the respondents missed filing deadlines outlined in the text of the statute.  The question was whether these deadlines were jurisdictional or could they be tolled.

The answer in this case is they can be tolled.  The facts are pretty straightforward.  Wong missed a deadline to file her case in court within 6 months of an agency denial of her claim.  In the other case, Marlene June failed to present her case to an administrative agency within a two year time limit.  Both claimed extenuating circumstances for the delay.  The Court held that deadlines are jurisdictional when Congress explicitly says they are.  The Court analyzed the statute at hand and said that was not the case here.

Justice Kagan delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts and Justices Scalia and Thomas.


Earlier in April there was a report about a faculty member at Drexel University having sent a link to porn by mistake to her students when she intended to send a link to an article about brief writing.  I wrote about it here.  Professor Lisa T. McElroy has responded with an op-ed in the Washington Post.  She writes about dignity and how those who spread the news seemed more interested in tearing her down:

No one publicly questioned the dignity of the so-called journalists who wrote salacious stories, broadcast them, waited outside my office to interview my students, called my unpublished cellphone number. And no one questioned the dignity of the intended audience. Tabloid journalists ran with this story because they knew they would get page views. How would they know that? Because they know their readers and viewers — and they know that scandal, sex and shame are irresistible to those who devour their posts.

I can appreciate what she says.  In some contexts it is page views that drive the story onward because it is unusual for these kind of things to happen.  That’s the world we live in, where stuff like this sells ads and eyeballs (though not here).  Drexel has conducted a short investigation and found nothing that would result in any action.  Good for Drexel and good for her.

I still have one question that remains from my original post:  what was the article on brief writing she liked enough to want to send out?


The Supreme Court issued two opinions today.  The first, ONEOK, Inc. v. Learjet, Inc. (13-271),   concerned the preemption of state antitrust laws in the context of natural gas regulation by the Federal Energy Regulatory Commission (FERC) under the Natural Gas Act.  The petitioners in this case, ONEOK, Inc. et al., are pipeline companies that supply gas through interstate pipelines to resellers as well as to direct customers that include the respondents, Learjet et al.  The pipeline companies were sued for reporting false information to indices that are used to set wholesale natural gas prices.  These reports ultimately affected retail price contracts.  The cases were removed to federal court and consolidated in one proceeding in Nevada.  The Ninth Circuit ultimately held that the respondent’s state antitrust claims were not preempted by the Natural Gas Act.  The Supreme Court affirmed.

It held that the Act was carefully drawn to not preempt state concerns such as the fairness of retail pricing even though FERC had authority to regulate wholesale pricing.  While the two are connected, that connection does not deprive state claims for price manipulation at the retail level, at least under the facts and arguments presented in this case.

Justice Breyer delivered the opinion of the Court and was joined by Justice Kennedy, Ginsburg, Alito, Sotomayor, and Kagan.  Justice Thomas joined the opinion as to all but Part I-A, presumably because it contained the dreaded words “legislative history.”  Justice Scalia filed a dissenting opinion that Chief Justice Roberts joined.

The second case is Rodriguez v. United States (13-9972).  Justice Ginsburg sets up the question and outcome in the very first paragraph of the opinion:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407. The Court so recognized in Caballes, and we adhere to the line drawn in that decision.

The facts of the case are pretty straightforward.  Officer Struble stopped Rodriguez after seeing his vehicle drive briefly on the highway shoulder and then swerve back onto the highway proper.  Rodriguez explained that he was avoiding a pothole.  Officer Struble asked Rodriguez and his passenger for identification and an explanation of their business.  Both complied.  Struble asked Rodriguez to accompany him to the squad car.  Rodriguez asked if this was required.  Struble said no and Rodriguez declined the request.  Struble then issued a warning ticket for driving on the shoulder.  Struble then asked Rodriguez if he could walk his dog around the vehicle.  Rodriguez said no.  Struble then instructed Rodriguez to turn off the ignition and exit the vehicle.  A second officer arrived seven or eight minutes later and walked a dog around the vehicle twice.  The dog indicated that drugs were present.  The officers then search the car and found a large bag of methamphetamine.

Rodriguez moved at trial to suppress the evidence at trial.  The Court denied the motion and he was convicted.  The Eight Circuit said the intrusion on his rights was de minimus and affirmed the conviction.  The Court held that keeping Rodriguez for the search well after concluding the reason for stopping him violated his Fourth Amendment rights.

Justice Ginsburg delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Scalia, Breyer, Sotomayor, and Kagan.  Justice Kennedy filed a dissenting opinion.  Justice Thomas filed a dissenting opinion and was joined by Justice Alito and Justice Kennedy except for Part III.  Justice Alito filed a dissenting opinion as well.


Here are a few of technology developments that I thought were kind of interesting.  One is that Google will now allow a user to download all of his or her search history for all time, or at least all tracked time.  Then again, isn’t “all time” and “all tracked time” synonymous?  The instructions and links to the relevant screens are available in this article from CNBC.  I don’t really have a problem with Google tracking anything.  I do as much or more searching based on my work as a reference librarian.  That leads to some interesting ads, such as books from Thomson Reuters or Lexis Publishing available on Amazon.  I know other people don’t have the same attitude I have about Google and other search engines.  At the same time, I’m probably one of the most boring people around when it comes to targeted ads.

Another story from CNBC also mentions a change in the Google search algorithm that will favor mobile sites in search rankings when the search comes from a mobile source.  The story notes that nearly half of Google traffic between June and November 2014 came from a mobile device.  The change goes into effect tomorrow.

Here’s a short note about the Internet of Things.  Mashable and other sites are reporting that Wink Hubs, controllers for things like door locks and lights, among other connected devices stopped working because of a software update that broke the connection between the device and its servers.  The device is so secure that a remote software update isn’t possible.  Owners have to send the device back to the company to get fixed.  I guess turning keys in locks and flicking light switches is sooooo 2000.  Kids these days!  They have it easy.  Why I remember when Alta Vista was the best search engine around.  And when we used Yahoo, we didn’t search, we looked through lists of links!  Those were the days.

Speaking of Yahoo, the company is reworking its deal with Microsoft on using Bing as the engine that powers Yahoo search.  Some of the results will now come through Yahoo’s own engine which will also supply Yahoo’s own ads.  The story is here.


We all know the constant year to year declines in law school applications.  The latest figures from the Law School Admission Council show it:

As of 4/03/15, there are 308,871 fall 2015 applications submitted by 45,978 applicants. Applicants are down 2.8% and applications are down 5.0% from 2014.

Last year at this time, we had 87% of the preliminary final applicant count.

What’s not in these figures is contained in a story on Bloomberg Business which states that there are about 50% fewer applicants from LSAT takers who scored 165 or above.  Law applicants with lower scores are taking slots that these individuals would normally fill.  That is disturbing on any number of levels.  Lower average LSAT scores affect rankings and, I think, quality of graduates.  Somehow, Senator Roman Hruska’s statement on failed Supreme Court nominee G. Harold Carswell comes to mind:

Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”

They just may get it, Senator.



It’s that time of year in academics where law students start to sweat it for their spring exams.  I remember how I would do almost anything to avoid studying.  I guess I had the cleanest apartments ever during exams.  Cleaning was my “go to” way to procrastinate.

There is an infographic at the Stop Procrastinating web site included with the post Exam Stress:  Students Reveal Their Top Tips For How To Cope With Exam Anxiety that shows the results of a survey of 2000 college students on anxiety and coping mechanisms.  45% of students used social media and Internet browsing as a way to avoid studying for example.  Room tidying was the lowest at 7%.  To each their own.  Some of the coping mechanisms include exercise, listening to uplifting music, blocking the  Internet (horrors!), and others.

I would never suggest that college exams are similar to law exams, though my experience and observation show that law students get just as wired when exams are about to hit.  The graphic may be useful for ideas on how to get through exam preparation.

As a side note, I will be back on the Blog on Monday after I return from the MichAll meeting.



I get asked every now and then about the future of librarians.  I work in an academic environment.  I get questions from students, faculty members, the general public, other librarians, you name ‘em.  The type of questions I get are contrasted, to some extent, with statements that with everything on the Internet we will be obsolete.  I’m sure many librarians, not just law librarians hear that.  Those with that attitude tend to think that because they never use a librarian’s services that no one else would need that assistance either.

All of you should know, for example, that Google offers free case law that extends back to approximately 50 years for state cases and 80 years for federal cases.  I have found unreported cases and slip opinions in the archive.  My point is that Google is hardly a secret to the Internet-going world.  At the same time, I get calls from non-law libraries about case law and the librarian or patron at the other end seems to have no idea that this archive exists.  They are delighted to know that exists once they find out about it.  Public patrons in particular seem happy to know that they don’t have to trudge to downtown Chicago to find accurate case law that isn’t behind a paywall.

I encounter students almost every day who seem not to have a clue as to how to read a result in a catalog search result.  They’ll flash their phone or tablet screens at me and ask me what to do to get a copy.  Sometimes the answer is as simple as pointing out the location on a paper map.  Other times it can be pointing out that there is a link on the record that can give instant access as an e-book.

Let me state categorically that I do not think these circumstances or the people asking them are dumb.  They obviously either do not have the knowledge that resources exist or have thought about how get the information on their own.  That is where we come in.  The public Internet has been around for at least 25 years if not longer.  There is so much out there and so many strategies for locating information that may or may not be behind a paywall.  There are scams to avoid.  I remember a phone call where an individual called and said she was contacted by phone from the IRS demanding a tax payment.  I looked up the IRS page and read the statement detailing how the Service contacts individuals.  It noted that the Service never contacts people by phone demanding money.  For those pondering the “unauthorized practice of law” angle, I read the text verbatim and let her draw her own conclusions.

Information is power.  We know how to find it and put it in context.  I would never claim to know everything there is to know about content online.  At the same time, there are no shortage of people who draw upon that experience and that of my colleagues.  For those who claim they don’t need us, fine.  But don’t assume that no one needs us.  Librarians will be here for a long time to come if my experience is accurate.


First of all, there is this from Washington University in St. Louis:

Conducting Empirical Legal Scholarship Workshop 2015

The 14th annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from June 15-June 17 at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data.

Participants need no background or knowledge of statistics to enroll in the workshop. Registration is here. For more information, please contact Lee Epstein.

As a side note, I won’t be posting this Thursday or Friday as I will be attending the MichALL Spring Conference titled “Technology in Law Libraries: Where We’re At and Where We’re Going.” The event will be held on Friday, April 17, 2015, in the Wayne State Univ. School of Law’s Damon J. Keith Center for Civil Rights lecture hall. The program flier is here:


Electronic registration is at http://goo.gl/tT89ar.  The conference fee is a very reasonable $20.


There are reports from the ABA Journal online and the National Law Journal (the link is in the ABA story) of a plaintiff who sued a law blogger, Professor Shaun Martin of the University of San Diego, for defamation resulting from statements about her case on his blog.  Professor Martin opined on some of the details in the case(s) of Melanie Welch in her actions against the school where she worked and the  California State Teachers’ Retirement System.  I’m not going to go into detail here about those cases.  The information is in the stories online and in the appellate opinion that affirmed the dismissal of her defamation suit on anti-SLAPP grounds.

The gist, if I read the opinion correctly, is that Professor Martin offered opinions about the evidence presented in the case, the technical correctness of the ultimate decisions, and suggested to his readers to determine for themselves whether the results were justice:

[M]aybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view.” Op. at p 7.

That was one of the statements alleged to be defamatory.  The Court found that opinion is not actionable under defamation law and the plaintiff was unable to carry her burden under the anti-SLAPP burden-shifting framework.  Readers may be wondering why I’m not putting in more detail on the facts of the case.  I’ll just say that readers should read the article links and opinion and draw their own conclusions.  I’ll just say as someone who writes regularly writes about cases and their outcomes, I believe the result to be a correct one.  The text of the document is linked in the ABA Journal article above, and for convenience, here.  We’ll see if the California Supreme Court takes up the case if presented to it.


I get kind of busy sometimes with email and other online stuff, doing two or three things at the same time.  I have copied links to place in an email, and then something else to put in a document, and then I get distracted and sometimes put the wrong thing in the wrong document.  I’ve been lucky in that I haven’t inadvertently sent the wrong message with the wrong content to the wrong person.  That doesn’t happen to all of us.  Take, for example, the email sent by Drexel University faculty member Lisa McElroy to her students with a link to a great article about brief writing.  Turns out the link went to content on PornHub instead.  Woopsie.

I have sympathy for Professor McElroy in that this embarrassment was probably not deliberate.  Drexel is investigating.  Here are two links to the story, one from the Drexel University Herald and one from  WPVI-TV Philadelphia.  The latter has a screen shot of the email with the link blocked out.  I liked the Westlaw logo at the top of the message.  What I’d really like to know is not how or why this happened, or even the porn link.  What was the article on brief writing?  That’s what happens when you get to be my age.


I think those are the words Bender uses whenever Futurama rises from the dead.  That’s its current state unless one counted the cross-over episode with The Simpsons from the current season.  So, yep, I’ll be posting again, though not necessarily every day.  Keep those press releases coming.  I have a nine month backlog I’ll be going through to see if there is anything both interesting and still relevant to post.

The legal news today is that a judge allowed a woman to serve divorce papers to her husband via Facebook.  It’s a last resort, of course, when the other party avoids service.  But just think what this could mean for future litigation.  Interesting.  Here’s the story in Time Magazine.  Here’s a version of the same story from the New York Daily News, a paper with it’s own unique “character.”