D-Brief the Pace Law Library Newsletter

Click here or the picture to the right and join reference librarian Margaret Moreland for a quick seminar in baseball and the law in this month’s newsletter from the Law Library. Margaret also writes about the Law School’s acquisition of the United Nations Environmental Programme (UNEP) archives and the upcoming baseball season.

Pace Environmental Notes -- March 2009

The latest issue is Pace Environmental Notes (PEN) is now available. PEN provides citations to the latest literature on environmental law, energy and land use, including recent library acquisitions, law review articles, legislation, and other scholarly papers.

New Attorney Ethics Standards for N.Y.

The new code of conduct for N.Y. attorneys is effective Wednesday, April 1. This NYLJ article explains the differences between the current and new rules

Differences between the old code and the new rules largely concern the more expansive definitions provided in the new guidelines . . . For instance, the new code declares that conflict waivers must be the product of informed consent confirmed in writing. "Informed consent," "confirmed in writing" and "writing" are all defined in the new rules. . .

Lawyers Taking Court-Appointed Cases Got a Raise

Via Legal Blog Watch, by R. J. Ambrogi in his post titled "Good News for Court-Appointed Lawyers," private lawyers who take court-appointed cases in the federal system just got a pay raise.

Last week, James C. Duff, director of the Administrative Office of the United States Courts, issued a memorandum directing the federal courts to increase the hourly rates and case maximums.

In Gideon v. Wainwright, 372 U.S. 355 (1963), the Supreme Court rendered a decision holding that states have a constitutional obligation to provide court-appointed lawyers for indigent criminal defendants. "In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him," Justice Hugo L. Black wrote for the court.

How Does Law Protect in War?

From the Library of Congress Military Legal Resources website:

This reference work, published by the International Committee of the Red Cross (ICRC), is intended to serve both the university community and law practitioners, and broadly reaches out to students and faculties in law, journalism and political science, as well as members of the judiciary. It was first published in 1999 in English and then in 2003 in a revised French edition. In 2006, incorporating material from the revised French edition, the work was further revised and updated, expanded, and published as a two-volume work divided into three parts. This second edition presents more than 230 cases, eleven possible teaching outlines, and provides a comprehensive outline of International Humanitarian Law (IHL)."

Is a Contract Written In Blood Enforceable?

The (new) legal writer blog has a post, Gratuitous contract not enforceable, even when written in blood. California Appellate Court Fourth Appellate District Division Three in Kim v. Son, No. 06CC02419, 2009 WL 597232 (Cal. App. 4th, 2009) says NO; gratuitous contract is not enforceable even when written in blood.

It seems that Mr. Kim invested $140,000 in companies run by Mr. Son. When the companies went belly-up, Kim and Son met over drinks to discuss the matter. Mr. Son, probably inebriated and apparently feeling bad about Mr. Kim’s loss, pricked his finger with a safety pin and wrote—in blood (and in Korean)—“Sir, forgive me. Because of my deeds, you have suffered financially. I will repay you to the best of my ability.”

Later, Mr. Kim sued to enforce the blood-written promise. A California trial court held the promise unenforceable because it was not supported by consideration. On appeal, Mr. Kim filed a brief arguing that “Blood may be thicker than water, but here it’s far weightier than a peppercorn.” But the appellate court disagreed and and affirmed the trial court.

So the lesson remains the same as before: When writing a contract, forget the bloody dramatics. Write it on a computer and sign it with an ink pen.

Justice Ginsburg: Update

With a little bit of a delay, here is an update regarding the health status and post-surgery plans of Justice Ginsburg. Via Suits & Sentences and via SCOTUSBlog.

On February 5, 2009 I underwent a complete, successful, surgical removal of a pancreatic cancer at Memorial Sloan-Kettering Cancer Center in New York City. In consultation with Dr. Eileen O’Reilly and Dr. Leonard Saltz of MSK, I am scheduled to undergo a precautionary, post-surgery course of chemotherapy at the National Institutes of Health. The treatments, which will commence in late March, are not expected to affect my schedule at the Court. Thereafter, it is anticipated that I will require only routine examinations to assure my continuing good health.

Statement available here.

Twitter via iPhone When on Jury Leads to Mistrial?

Via Citizen Media Law Project, David Artia posted Mistrial by iPhone, New Technologies Present Challenges in the Courtroom.

The New York Times reports that a juror in Arkansas used Twitter to send updates during a civil trial that resulted in a $12.6 million judgment against the defendant, which may be overturned as a result. The Times also reported that on Monday of this week, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent Fumo, demanded that the judge declare a mistrial after a juror posted updates concerning the case on Facebook and via Twitter.

Researching Case Law and Open Source Corpora

Legal Technology Blog features a post, Text-Mining Case Law, by Dr. Adam Zachary Wyner. This post discusses the short history of the currently known what the author calls 'closed sources' of case corpora, Westlaw and Lexis Nexis, the subscription based proprietary services, in contrast to 'open source' case corpora and open source search tools. This article stretches the importance of access while pointing to almost unaffordable services provided by the two giants, Westlaw and Lexis, while it features the first attempts of open source case corpora, such as public.resource.com or the decisions from United States Courts of Appeals available online. Take a moment to read this interesting article and let us know what you think?

Follow the Instructions Given When Taking the Bar

Via ABA Journal, a bar exam test taker is denied a law license after exceeding the time limit when taking the bar exam. The lesson to be learned is to follow the instructions given when taking the bar! The Michigan bar denied the admission of this applicant, even four years later. The individual did pass the New York bar and was admitted in New York. Now, the applicant asked for a renewal of her New York State license but the State of New York Supreme Court, Appellate Division, Third Department issued an opinion and order denying the application. The court further said that the applicant may renew her New York license if she is allowed to obtain her Michigan license.
The full blog post is right here. Legal Profession Blog post is here.
Feel free to share your thoughts and comments!

Prof. B.J. Crawford Is Featured On Legal Theory Blog

Article titled The Third Wave's Break From Feminism by professor Bridget J. Crawford, Professor of Law and Associate Dean for Research and Faculty Development at the Pace University School of Law is featured on the Legal Theory Blog.

Janet Halley proves that third-wave feminism is wrong - wrongly described, that is. Young feminists in the United States tout a "third wave" of feminism that is hip, ironic and playful - the supposed opposite of the dour and strident "second wave" of 1970's feminism. ... "Feminism" is such mighty label that third-wave feminists want to remake it and Janet Halley wants to take a break from it. In spite of their different vocabulary, though, third-wave feminists and Janet Halley share similar goals and methods. Feminism has no use as a label -- a theory, even -- unless it yields to the complex realities of human experience. ... This essay explores the goals that third-wave feminists and Janet Halley share.

Public.Resource.Org

Public.Resource.Org is a project that makes the government information more accessible to the public. Check it out yourself and see how you can find it helpful. It provides agency directory, archived materials, codes, court materials, and materials about copyright, gao, gpo, irs, patent, Smithsonian images, and trademark. It also has a feature to recycle used PACER documents.

FedFlix was a joint venture with the National Technical Information Service (NTIS). Each month they send us government videotapes. We upload them to the Internet Archive and YouTube, then send the government back their videotapes and a digital copy for their files. No cost to them, more data for all of us. Enjoy!

One can also subscribe via RSS feed to government documents such are Congressional hearings, congressional bills, presidential papers, federal register, house journal, and others.

CC Zero: Push Your Work Immediately Into the Public Domain

Via ReadWriteWeb, the Creative Commons Foundation announced the creation of a new tool called CC Zero.

CC Zero isn't another legal license from the group, instead it's a legal tool that lets content creators give up the rights claims they are given by default and instead send their work into the public domain.

CC Zero has three components to it. The first is legal code, developed as all of CC's work is to be applicable with laws in every country around the world. The second component is a "human readable" text explaining how CC Zero works. You can read the CC Zero FAQ on this page. The final component is machine readable code, making CC Zeroed content easily discoverable around the web. The Foundation says this should be particularly valuable in scientific work, but machine readable markup is interesting in all kinds of contexts.

It is 70 years after the death of an author or 120 years after the year of publication if the death of an author is unknown, before creative work becomes a public domain. It looks like via CC Zero, authors might be able to make their creative work part of public domain immediately at the author's wish.

Any thoughts anyone?

Impact of Law Firm Layoffs on Women

From ABA Journal Law News Now: Roberta Liebenberg, current chair of the ABA Commission on Women in the Profession, comments on recent layoffs in law firms and their disproportionate impact on women. Liebenberg's letter was written in response to a recent article published in Forbes (March 16) discussing the effect of the recent Wall Street layoffs on women.

Liebenberg says that

Firms are laying off their part-time lawyers, 75% of whom are women. Too many layoffs are based on gender-biased evaluations. In this dire downturn, we can't allow the economy to be used as an excuse for gender-bias and roll back the progress we've made.

Connecticut Supreme Court Briefs Online

The Appellate Advocacy Committee of the Connecticut Bar Association has collaborated with the Judicial Branch of the State of Connecticut to provide access to appellate briefs filed via the e-filing system for the Connecticut Supreme Court. (As of March 2009, attorneys are required to e-file court documents.) These briefs are searchable by party name, docket number, attorney name, and court term. The briefs are available once the case status is ready for assignment, and, although coverage begins with March 2009, the sponsors of the website are adding material back to January 2009, and hope to provide more retrospective coverage in the future.

Update: Library Set to Reopen Tomorrow

The water had been pumped out, and a temporary transformer is being installed. The Library is expected to reopen Tuesday morning at 8AM.

Library Closed Due to Water Main Break

The Library is closed today, Monday March 16, due to a water main break that has cut power to the building. The lights are working, but there is no power to anything else. Four feet of water is currently being pumped out of the basement, and we are awaiting the arrival of Con Ed. Check here, our Twitter feed or the Law School website for updates. A slideshow of photos is available to the right.

Obama's Executive Order Regarding Human Stem Cells Research

Via Be Specific, President Obama signed an Executive Order Removing Barriers From a Responsible Scientific Research Involving Human Stem Cells Research on March 9, 2009.

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. Research involving human embryonic stem cells and human non-embryonic stem cells has the potential to lead to better understanding and treatment of many disabling diseases and conditions. Advances over the past decade in this promising scientific field have been encouraging, leading to broad agreement in the scientific community that the research should be supported by Federal funds.

For the past 8 years, the authority of the Department of Health and Human Services, including the National Institutes of Health (NIH), to fund and conduct human embryonic stem cell research has been limited by Presidential actions. The purpose of this order is to remove these limitations on scientific inquiry, to expand NIH support for the exploration of human stem cell research, and in so doing to enhance the contribution of America's scientists to important new discoveries and new therapies for the benefit of humankind.

Climate Savers Computing Initiative

Via Be Specific Blog, Google co-founded the Climate Savers Computing Initiative (CSCI).

Do you leave your fridge door open after grabbing what you need? Do you leave your vacuum cleaner running when you aren't cleaning? Of course not. The idea of doing either of these things sounds silly, yet many people don't think to turn off their computers after using them. By using power management tools on your computer and buying more efficient computers, you can save nearly half a ton of CO2 and more than $60 a year in personal energy costs. Google co-founded the CSCI to promote a smarter, greener computing future. The simple changes above can have a HUGE collective impact; our goal is to reduce carbon dioxide emissions by 54 million tons per year by 2010 — the equivalent of taking 11 million cars off the road."

Any comments?

Goodbye to the LSAT?

An article in the New York Times reports on the work of two professors from UC Berkeley who have developed a test that they say is better than the LSAT in predicting law school success. They interviewed and surveyed lawyers, judges, law professors, and hundred of graduates of Boalt Hall.

The survey produced a list of 26 characteristics, or "effectiveness factors," like the ability to write, manage stress, listen, research the law and solve problems. The professors then collected examples from the Berkeley alumni of specific behavior by lawyers that were considered more or less effective.
Using the examples, Professor Shultz and Professor Zedeck developed a test that could be administered to law school applicants to measure their raw lawyerly talent.
Instead of focusing on analytic ability, the new test includes questions about how to respond to hypothetical situations. For example, it might describe a company with a policy requiring immediate firing of any employee who lied on an application, then ask what a test taker would do upon discovering that a top-performing employee had omitted something on an application.

Professors Shultz and Zedeck plan to expand their research to include law school graduates nationwide.

Bookbag to Briefcase

Join Professor Marie S. Newman (Law Library Director), Rachel Littman (Assistant Dean for Career Development) and Nicole Moncayo (Assistant Director of Recruitment and Operations), Cynthia Pittson (Head of Reference Services and Adjunct Professor), Brian Gozycki (Academic Account Manager—Westlaw) and Mary Beth Drain (Account Executive—LexisNexis) for a fast-paced program on managing the transition from law student to law practice. Bookbag to Briefcase will take place on Tuesday, March 24, from 5:00PM to 6:15PM in the Library Problem Room. Refreshments and prizes will be offered. Sign up here.

Working on Briefs?

Posted on Law is Cool on March 5, 2009. Created by one of the Law is Cool contributors.

Women's History Month

The Library of Congress dedicated a web page to the Women's History Month, providing an overview, legislative and executive branch documents.

Women’s History Month honors and celebrates the struggles and achievements of American women throughout the history of the United States. Women’s History Month had its origins in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as “Women’s History Week". As requested by Congress, President Reagan issued Presidential Proclamation 4903 proclaiming the week beginning on March 7, 1982 as the first "Women’s History Week" and recognizing the vital role of women in American history:

Still Struggling With Bluebooking? Check Out the Bluebook Helpers

State Bar of Wisconsin has a post about bluebooking titled Bluebook Helpers: Tool for creating legal citation. Bonnie Schucha, the head of reference at the University of Wisconsin Law School points out the following Bluebook helpers:

CiteGenie - "Automagically copy text with correct citations from Westlaw, Lexis, and other websites."

CiteGenie is a new add-on for the Firefox web browser that automatically creates Bluebook-formatted pinpoint citations when copying from Westlaw or LexisNexis. Highlight some text from a document, right click, and choose “Copy with CiteGenie.” The text and citation are then placed in your clipboard where you can paste them into your word processor or other application.

Introduction to Basic Legal Citation by Peter W. Martin

This work first appeared in 1993. It was most recently revised in May 2007 to reflect changes appearing in the third edition of the ALWD Citation Manual, published in 2006. It is also keyed to the most recent edition of The Bluebook, published in 2005.

Cardiff Index to Legal Abbreviations

Legal abbreviations can be a puzzle to both new students and experienced professionals. This web-based service allows to search for the meaning of abbreviations for English language legal publications, from the British Isles, the Commonwealth and the United States, including those covering international and comparative law. A wide selection of major foreign language law publications is also included. Publications from over 295 jurisdictions are featured in the Index. The database mainly covers law reports and law periodicals, but some legislative publications and major textbooks are also included. The Index is still under development.

Let us know what you think and which one was your favorite? We'd love to hear your opinions.

Recent Library Acquisitions for issue January 2009

The list of recent library acquisitions is now available. Note the hyperlinks to Google Books descriptions of many titles.

Social Media Best Practice For Law Schools

Via WisBlawg, a post that features Social Media Law Student organization and their launch of a series called Social Media Best Practice for Law Schools, Part I, which "is the first in a series of posts about my adventures in pushing my law school to get real about social media," Laura Bergus says.

Like other law students, I was told not to blog about law school and to be careful what I posted on that evil place called Facebook. About a month into law school I started following lawyers on Twitter and reading law blogs (a.k.a blawgs). As anyone reading this already knows, participating in Twitter and commenting on blawgs is a hugely beneficial way to meet people and learn about the field. I got pretty upset with my school, and blogged about it (against their advice, of course). As with many rants, I ended up feeling guilty for whining but not offering up any solutions to the problem. So, I emailed the Assistant Dean of my school and let him know how I felt.

What are your thoughts? Share your opinions!

The Endangered Species Act (ESA) in the 111th Congress: Conflicting Values and Difficult Choices

This Congressional Research Service Report (R40185) dated Febrauary 25, 2009 finds that The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources.

Under ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered or threatened according to assessments of their risk of extinction. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline. ESA is considered a primary driver of large-scale ecosystem restoration issues. The most common cause of species listing is habitat loss.

The 111th Congress may consider whether to revoke ESA regulations promulgated in the waning days of the Bush Administration that would alter when federal agency consultation is required. In addition, legislation related to global climate change may include provisions that would allocate funds to the U.S. Fish and Wildlife Service’s endangered species program and/or to related funds to assist species adaptation to climate change. Other major issues concerning ESA in recent years have included the role of science in decision-making, critical habitat (CH) designation and procedures, protection by and incentives for property owners, and appropriate protection of listed species, among others.

The authorization for spending under ESA expired on October 1, 1992. The prohibitions and requirements of ESA remain in force, even in the absence of an authorization, and funds have been appropriated to implement the administrative provisions of ESA in each subsequent fiscal year. Proposals to reauthorize and extensively amend ESA were last considered in the 109th Congress, but none was enacted. No legislative proposals were introduced in the 110th Congress
to reauthorize the ESA.

Climate Change: Observations on the Potential Role of Carbon Offsets in Climate Change Legislation

This testimony by John Stephenson, Director Natural Resources & Environment before the Subcommittee on Energy and Environment, Committee on Energy and Commerce, House of Representatives sets forth four challenges to the implementation of Climate Change policies.

The four primary challenges related to the United States voluntary carbon offset market are: First, the concept of a carbon offset is complicated because offsets can involve different activities, definitions, greenhouse gases, and timeframes for measurement. Second, ensuring the credibility of offsets is challenging because there are many ways to determine whether a project is additional to a business-as-usual baseline, and inherent uncertainty exists in measuring emissions reductions relative to such a baseline. Related to this, the use of multiple quality assurance mechanisms with varying requirements may raise questions about whether offsets are fully fungible—interchangeable and of comparable quality. Third, including offsets in regulatory programs to limit greenhouse gas emissions could result in environmental and economic tradeoffs. For example offsets could lower the cost of complying with an emissions reduction policy, but this may delay on-site reductions by regulated entities. Fourth, offsets could compromise the environmental certainty of a regulatory program if offsets used for compliance lack credibility.

Environmental Protection Agency: Major Management Challenges

This GAO Report (GAO-09-434) dated March 2009) to the Subcommittee on Interior,
Environment, and Related Agencies,Committee on Appropriations, House of Representatives titled Environmental Protection Agency: Major Management Challenges found that the EPA faces the following challenges that hinder its ability to implement its programs effectively:
• Improving agencywide management. EPA has launched various initiatives to address crosscutting general management issues, including environmental enforcement and compliance, human capital management, and the development and use of environmental information. However, these initiatives have generally fallen considerably short of their intended results.
• Transforming EPA’s processes for assessing and controlling toxic chemicals. EPA has failed to develop sufficient chemical assessment information to limit public exposure to many chemicals that may pose substantial health risks. In January 2009, GAO added a new issue—the need to transform EPA’s process for assessing and controlling toxic chemicals—to its list of high-risk areas warranting increased attention by Congress and the executive branch.
• Improving implementation of the Clean Air Act. EPA faces many important challenges related to implementation of the Clean Air Act, including those highlighted by GAO regarding its coordination with other federal agencies, analyses of health impacts from air pollution, and delays in regulating mercury and other air toxics. EPA also faces challenges relating to numerous regulatory proposals that have been overturned or remanded by the courts.
• Reducing pollution in the nation’s waters. EPA partners with federal, state, and local agencies and others to reduce pollution in the nation’s waters. Among the most daunting water pollution control problems, the nation’s water utilities face billions of dollars in upgrades to aging and
deteriorating infrastructures that left unaddressed can affect the quality of our water. EPA will receive $6 billion in additional water infrastructure funding from the recently passed stimulus bill.
• Speeding the pace of cleanup at Superfund and other hazardous waste sites. Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act, better known as Superfund, in 1980, giving the federal government the authority to ensure the cleanup of
hazardous waste sites both on private and public lands. Nonetheless, several key management problems have not been resolved since that time. For example, citing competing priorities and lack of funds, EPA has not implemented a 1980 statutory mandate under Superfund to require
businesses handling hazardous substances to provide financial assurances to pay for potential environmental cleanups.
• Addressing emerging climate change issues. In GAO’s view, the federal government’s approach to climate change has been ad hoc and is not well coordinated across government agencies. For example, the federal government lacks a comprehensive approach for targeting federal
research dollars toward the development and deployment of low-carbon technologies.

Make Sure You State a Cause of Action

Via WisBlawg, a post titled Pittsburgh Couple Loses Privacy Case Against Google Maps Street View is an excellent example of how failure to state a cause of action will get your case dismissed. Magistrate Judge Amy Reynolds Hay, the United States District Court for the Western District of Pennsylvania, did exactly that, saying "the Borings failed to state a claim under any count" and dismissed the case.

Mentoring Law Students On a Decline?

Legal Blog Watch has a post titled Will a Down Economy Mean the End of Mentoring? It is Carolyn Elefant's reaction to an article in the 9th issue of the Complete Lawyer. It has been common for law firms to offer summer associates positions to 2L and 3L students that potentially led to a full time employment. Students had the opportunity to be taught and mentored by practicing attorneys directly. Firms took upon a role of shaping the almost-graduates into successful attorneys. With fewer jobs and less opportunities for law students to be summer associates, what will happen to the mentoring role firms have assumed over the years? That leads to another question; how important the mentoring really is? Can older and experienced lawyers (sometimes set in their old ways) provide the sufficient guidance in the quickly changing technology based times?

So we ask you. How important this guidance really is? What are your thoughts about the existence, need, and effect of mentorship? Would you like to see such guidance as a part of the school curriculum? Or is it better to just learn on the job? Feel free to share your opinions.

OMB Launches Redesigned Website and Blog

The Office of Management and Budget launched a new blog in the light of the new transparency era. Peter Orszag, the Director, writes:

Welcome to my first blog post at the Office of Management and Budget. In this blog, I want to open up OMB even more to the public and share with you what we’re doing to address the many challenges that we face as a nation. I know that, for many people, blogs are the easiest way of receiving information – so this blog may prove to be useful even if it simply provides a convenient way of keeping up with information from OMB that is already available in other formats. President Obama is committed to ensuring a direct link between citizens and our federal government. Especially in light of our difficult economic times, I am committed to ensuring that OMB’s work is accessible. Although OMB is extensively discussed in the media and elsewhere, the blog will allow me to communicate and explain our work directly. Today, we’re releasing the overview of the President’s Fiscal Year 2010 Budget.

Further Readings of Interest
Budget of the United States Government Fiscal Year 2010
Budget Fact Sheets, Fiscal Year 2010
Budget of the United States Government, Fiscal Years 1996 - 2009

DOJ Releases Anti-Terror Memos and Opinions from the Office of Legal Counsel

From the DOJ website:

The Department of Justice today released two previously undisclosed Office of Legal Counsel (OLC) memoranda and seven previously undisclosed opinions. "Americans deserve a government that operates with transparency and openness," said Attorney General Eric Holder. "It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making."
The two memoranda memorialized that certain legal propositions in ten OLC opinions issued between 2001 and 2003 no longer reflected the views of OLC and "should not be treated as authoritative for any purpose." They further explained that some of the underlying opinions had been withdrawn or superseded and that "caution should be exercised" by the executive branch "before relying in other respects" on the other opinions that had not been superseded or withdrawn.
The opinions and memoranda are available at http://www.usdoj.gov/opa/documents/olc-memos.htm.