Friday, July 22, 2016

Copycatwalks: Fashion & The Law

Earlier this week, Los Angeles-based artist Tuesday Bassen accused international clothing retailer Zara of stealing several of her designs for its clothing and jewelry. Her Instagram post featured side-by-side comparisons of Bassen's art next to Zara's designs, which incorporated suspiciously similar elements. Bassen was incensed by the company's response, which denied any legal wrongdoing and insinuated that Bassen is not well-known enough for the public to confuse Zara's designs for hers. In a follow-up social media post, Bassen noted that she had retained "an aggressive lawyer" and is pursuing litigation.

In fashion, runway "knockoffs" are nothing new – many clothing companies produce low-cost variations on high-end designer duds, usually taking sufficient steps to change the design enough to avoid legal problems. But lesser-known clothing designers and independent artists sometimes find their work emblazoned on an international retailer's latest designs without attribution or payment. As Zara's response indicates, it can be difficult and expensive for unknown designers to fight back against multinational corporations, particularly with no guarantee of success. Bassen lamented on her Instagram post about Zara's dismissive reply that "[just] to have a lawyer get this LETTER has cost me $2k so far."

But litigation is frequent, particularly against repeat offenders like Zara, which the Guardian noted has been the target of similar accusations in the past. (Adam J. Kurtz, another artist who has complained that Zara appropriated his designs, created the website Shop the Stolen Art, which provides links to buy the original designs directly from the affected independent artists.) Forever 21 is another retailer which often comes under fire for appropriating work by other designers and independent artists. Late last year, artist Sam Larson accused the chain of copying his artwork for a very similar t-shirt design; press coverage noted how frequently that chain, too, has been accused of fashion plagiarism.

Fashion law is a fascinating topic of legal research, which includes a number of intellectual property and other issues. For background information, try a search of the Duke Libraries Catalog for the phrase "fashion law" to see available titles, like 2013's The Little Book of Fashion Law or 2014's Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys. Although more general in their coverage, many intellectual property treatises also include some discussion of fashion design; consult our research guide to Intellectual Property for additional resources.

There are also a number of excellent and up-to-date blogs dedicated to fashion law. The Fashion Law was created by Julie Zerbo, who also co-authored a chapter in Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys. Sheppard Mullin maintains The Fashion & Apparel Law Blog. Arent Fox also maintains Fashion Counsel. All three blogs provide regular updates on recent litigation and fashion law news.

For help locating these or other fashion law resources, be sure to Ask a Librarian.

Wednesday, July 13, 2016

Pokemon GO...to Court?

Are you one of the millions of users who downloaded the Pokémon GO app in its first week of release? Or have you spent the last few days confused by your friends' sudden stream of social media references to "PokéStops," "Poké Balls," and "Pidgeys"? For the uninitiated, Pokémon GO is an augmented-reality game, available in the US on iPhone or Android mobile devices, which encourages players to head outdoors in search of computer-generated creatures which pop up on your screen. Users catch the Pokémon by throwing a virtual ball, then engage in competitive battles with other users' Pokémon.

The game was an instant cultural phenomenon, capitalizing on nostalgia for the Pokémon cartoons of the early 2000s and the prevalence of smartphones. Almost immediately, users began to flood public spaces which have been designated as Pokémon "Gyms" (including many churches, parks, and even the White House). Despite safety warnings from municipal police departments and gamemakers, users began to drive around in search of Pokémon (hopefully as passengers). Some enterprising armed robbers used the game's location data to rob victims before being caught by police. A Wyoming teenager even discovered a dead body while collecting creatures near a river.

Many commentators began to remark on potential legal issues related to the game: negligence of players, including those behind the wheel of a car; concerns about game-players innocently engaging in what looks like "suspicious activity" to police; and questions about the collection of data by the game creators and its potential value as a target for hackers. The University of Pittsburgh's Barco Law Library blog highlights today's ABA Journal article on these and other legal issues related to Pokémon GO and other virtual reality games. Certainly, more potential issues, and potential law school exam hypotheticals, will develop as the game continues to grow in popularity.

By the way -- this adorable creature was captured yesterday on Duke Law's official Instagram.

A photo posted by Duke Law (@dukelaw) on

We're not sure how many Pokémon might be lurking in the Goodson Law Library, but we hope our users will watch their step when walking in augmented reality!

Tuesday, July 5, 2016

In Praise of Microform

During library tours for new law students, there is usually a brief stop in the Microforms Room on level 1. It's not the most attractive space in the library, with its rows of metal cabinets, but it's a good place to pause the tour for some quick commentary before moving into the more-populated quiet study areas of level 1. Tour leaders sometimes ask if any students have ever used microfilm (reels) or its flat cousin, microfiche (cards) in the past. Usually, only one or two hands are raised in response.

Could you get through three years of law school without ever using microforms? Probably, since so many collections which are commonly found on microformats have been digitized, or have moved to entirely electronic publication formats. Your risk factor increases, though, with membership on a student-edited journal, work as a faculty research assistant, or in-depth research on a historical topic. Some individual journal titles, record and brief collections from certain time periods, and other valuable pieces of research interest remain available only in space-saving microformats.

Earlier this summer, the library's Microforms Room reader/printer machine stopped working after many years of service. A new ScanPro scanner has been installed in the Microforms Room to allow users to read, save digital copies, and/or print from our microfilm and microfiche collections. For assistance with using the new scanner, please see the library service desk staff on level 3.

Want to know more about microformats? Last month, Atlas Obscura published "The Strange History of Microfilm, Which Will Be With Us for Centuries." The fascinating (and illustrated) story traces microfilm's invention in the 19th century to its wide adoption as a preservation option in the 1930s, to its various pros and cons. Those cons, including clunky reading machinery and low-quality source material, have led to some prominent detractors of the format. In 2001, novelist Nicholson Baker published Double Fold: Libraries and the Assault on Paper, an impassioned critique of libraries' destruction of historical newspapers and books in favor of microformat, which Baker finds to be an inferior substitute.

But microfilm and microfiche are (by design) here to stay, and you may encounter references to "[Microform]" or "[microfiche serial]" in the Duke Libraries Catalog. For help determining whether a particular microform title has been digitized or if you too need to join the ranks of the microform users, be sure to Ask a Librarian.

Friday, June 24, 2016

Brexit, Stage Right

Yesterday, voters in the United Kingdom narrowly opted to leave the European Union, an unprecedented political move which set world markets on edge and prompted the immediate resignation announcement of Prime Minister David Cameron, who will step down in the fall. The contentious "Brexit" referendum's vote was split 51.9% to 48.1% across the UK, with a record-high 71.8% turnout. The BBC's information page contains interactive maps and breakdowns by geography and age groups.

What happens now? At the moment, the referendum results are not legally binding until the UK invokes Article 50 of the Treaty of Lisbon. As Time notes, the UK Parliament could nullify the referendum if asked, although Cameron has stated that the choice of the voters will be honored. Because citizens of Scotland voted largely in favor of remaining, there is also a possibility that the Scottish independence movement will be revived in an effort to keep Scotland in the EU.

It's estimated that negotiations for the UK's withdrawal from the EU could take nearly two years to complete. NBC News has outlined many of the key steps. EU leaders are expected to work quickly to prevent other potential withdrawal actions, and to determine next steps with the United Kingdom's exit.

The Goodson Law Library has just received a timely new title, Britain Alone! The Implications and Consequences of United Kingdom Exit from the E.U., which explores many of the ramifications related to a withdrawal.

For more information about European Union membership and withdrawal procedures, try a search of the Duke University Libraries catalog for European Union – membership, consult the European Union research guide, or Ask a Librarian.

Monday, June 13, 2016

ICLR Online for UK Legal Research

For more than a century, law students around the world have learned about the Carbolic Smoke Ball Company, a British corporation which advertised its nasal spray as a surefire preventive measure against influenza. The makers of Carbolic Smoke Ball even advertised a £100 reward (approximately $10,000 in today's dollars) to consumers who used it as directed but contracted the flu. When one disappointed user, Louisa Elizabeth Carlill, became ill, she attempted to claim the reward, with assistance from her solicitor husband. In response, the company first accused her of using the product incorrectly, then denied that their advertised reward constituted a "contract" with the user. Mrs. Carlill prevailed at both trial and appeal, and the rest is contract law history.

Carbolic Smoke Ball advertisement, circa 1892.

Outside of contract law casebooks, where can you read the full text of Carlill v. Carbolic Smoke Ball Co., [1893] 1 QB 256? As it turns out, the list of answers is in the process of shrinking. The Incorporated Council of Law Reporting for England and Wales (ICLR) is beginning to remove its official case law publications from international licensees. By January 2017, its Law Reports and Weekly Law Reports will disappear from Westlaw (UK case law reports were removed from Lexis in October 2015). Its own ICLR Online database will be the main subscription-based source for UK case law.

In preparation for the removal of UK materials from Westlaw, the Goodson Law Library has recently subscribed to ICLR Online. This database includes case law from the Superior and Appellate Courts in England and Wales, as well as case summaries, a citator service, access to legislation, and individual profiles in order to manage complex research. Members of the Duke University community may access ICLR Online remotely with a NetID and password; visitors may also use the database on-site at any of the campus libraries.

Keep in mind that other options for UK case law research still exist – most notably BAILII, a free source for British and Irish legal material which includes HTML and PDF versions of UK case law, including Carlill v. Carbolic Smoke Ball Co. (PDF). Individual courts, such as the UK Supreme Court, also include direct access to decisions and judgments, although generally only back to the early 2000s.

The Goodson Law Library's research guide to English Law will soon be updated to reflect this new database, as well as the removal of UK case law from Lexis Advance and the future removal from Westlaw. In the meantime, ICLR Online can be accessed via the Legal Databases & Links page or the online catalog. For help with accessing British legal materials, be sure to Ask a Librarian.

Monday, June 6, 2016

Judges' Working Papers: Research Behind the Closed Door

In this guest post, Reference Librarian and Senior Lecturing Fellow Marguerite Most explores a new option for researching judges' working papers, and discusses the legal issues surrounding personal archives.

Judicial working papers are materials written as a case is decided and may include internal draft memos, conference notes and correspondence, and vote sheets. The official record in a case could include briefs, motions, transcripts of hearings, and the final opinion in a case. The Presidential Records Act of 1978 shifted presidential records from private to public ownership. However, chamber papers and other records of federal judges are considered the personal property of the judge who created them, and have never been subject to a defined policy of collection and preservation, unlike official court records.

In 1964, U.S. Supreme Court Justice Felix Frankfurter announced his intent to law professor Alexander M. Bickel that "all my private papers pertaining to my work as an Associate Justice are eventually to go into your keeping for ultimate permanent deposit in the Harvard Law School." Frankfurter's papers became the nucleus of the Harvard Law School Library's Modern Manuscripts Collection and more recently, the nucleus of ProQuest's "Law and Society since the Civil War: American Legal Manuscripts from the Harvard Law School Library" module in the ProQuest History Vault database. Goodson Law Library recently added the "Law and Society" module to the campus-wide History Vault database, which is available to the Duke University community with a NetID and password. The collection includes working papers and other primary materials of three U.S. Supreme Court justices: Felix Frankfurter, Louis Brandeis, and Oliver Wendell Holmes, Jr., as well as selected papers of other federal judges and law professors associated with Harvard Law School.

The Frankfurter collection covers the Court's terms from 1938 through 1961; the Brandeis collection includes papers from 1916 until his retirement in 1939; and the Holmes collection, which dates from 1861-1935, includes a few court papers and many more personal papers: letters and diaries Holmes wrote during the Civil War, his friendships, and his intellectual life. Other collections in the "Law and Society" module include papers of William Henry Hastie, Jr., the first African-American to serve as Governor of the United States Virgin Island and a federal appellate judge on the Third Circuit, as well as a collection of his papers concerned with civil rights, racial discrimination and segregation; and papers of Albert Levitt, a long-time law professor at Washington and Lee and a US District Court judge

The History Vault database allows searching across modules for multiple perspectives on a subject. For example, a researcher can search the papers of Judge Hastie in the "Law and Society" module for his correspondence on civil rights and school integration, and simultaneously search the "Federal Government: Records of the Department of Justice's Civil Rights Division" module for the files of assistant attorney general W. Wilson White for his reports on desegregation.

"The Great Paper Caper," a 2014 article in The New Yorker, recalls the discovery in 1972 of the theft of working papers of Supreme Court Justice Frankfurter from the Library of Congress Manuscript Division, "including Frankfurter's correspondence with Lyndon B. Johnson, Charles Evans Hughes, McGeorge Bundy, and Hugo Black, and seven years' worth of Frankfurter's diaries." The case was never solved. The article addresses why working papers are still considered proprietary and some of the in-court squabbles by some past and present members to keep them that way.

Because judicial ownership of working papers is private, judges decide what happens to their papers: What is available? When it is available? Available to whom? The answers vary considerably and have resulted in tremendous inconsistency. Some justices have donated their papers to several entities. Although some of Justice Brandeis' papers at Harvard are included in the "Law and Society" module, Brandeis also donated papers to Brandeis University in Waltham, Massachusetts, the Louis D. Brandeis School of Law in Louisville, Kentucky, and several other repositories.

Donors can and do restrict access for specified lengths of time. The papers of Justice Warren Burger at the College of William & Mary are closed to researchers until 2026. The papers of Justice David H. Souter, which he donated to the New Hampshire Historical Society, are closed for 50 years. Justice Sandra Day O'Connor's papers at the Library of Congress are to open upon her death, but individual case files will remain closed "during the service of any justice who participated in the case." Justice Thurgood Marshall provided for public access two years after he donated his collection to the Library of Congress.

The papers of many Supreme Court justices and some federal judges at the appellate and district court levels can be found in repositories including the Library of Congress, academic libraries and historical associations nationwide. (For example, the Goodson Law Library collection includes a multi-volume print set The Papers of John Marshall, which collects his correspondence, papers and legal documents. An author search for a judge's name will identify other paper sets in our collection.) Some papers have disappeared over the years, some have been deliberately destroyed, and some may be stored in a relative's attic and yet to be discovered. Not many have been digitized. Examining judicial working papers can mean a visit to the holding archive or library and a search through file boxes, sometimes with the help of a finding aid, other times slowly one piece at a time.

Researchers interested in studying a judge's working papers often must begin by identify holding archives and libraries. The Federal Judicial Center Directory of Manuscript Collections Related to Federal Judges, 1789-1997 lists archival materials in court historical societies and repositories, as well as the National Archives and Records Administration, and the Manuscript Division of Library of Congress. Repositories singled out as holding extensive collections include Harvard Law School, the University of Virginia School of Law and Tarlton Law Library at the University of Texas. The Center's Biographical Directory of Federal Judges updates the earlier directory as well as providing brief biographical information about sitting, retired and deceased federal judges. For example, a search of the Judicial Center's directory identifies Harvard Law Library as the major repository for the papers of Henry Jacob Friendly, Second Circuit Court of Appeals Judge from 1959 – 1986. The current directory also links to collections researchers might otherwise fail to consider. For example, Samuel J. Ervin, III was a North Carolina senator known for his role as chair of the Select Committee on Presidential Campaign Activities in the Watergate scandal. Ervin was later appointed to the Fourth Circuit. A 1993 "Interview with Sam J. Ervin III" is available in the Southern Oral History Program at the University of North Carolina.

Presidential Libraries can be another source of materials related to judges appointed by the President. Some collections can be identified by searching records in other divisions of the government – records of the Department of State contain materials related to the appointment and service of judges from 1789-1888; records of the Department of Justice include materials related to judicial appointments. Accessing the Papers of Supreme Court Justices: Online & Other Resources, SCOTUSblog (Aug. 22, 2013) is a post by Ronald Collins in which he identified online papers of these Supreme Court Justices: Harry Blackmun, Warren Burger, Tom Clark, John Jay, Lewis Powell, Joseph Story and Earl Warren; online finding aids to printed materials in many other collections; and some collections with no online access. Collins also cited several articles and books in which the work of the Court is discussed, including The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions. Del Dickson, the editor of The Supreme Court in Conference, combed through handwritten conference notes from working papers of eight justices and in some instances referred to multiple sources for the cases in his book. Dickson aimed not only to explore inside the Court, but also to combine what he found in these justices' notes with the historical setting in which the cases were decided.

For anyone not sure what to do about the boxes of Great-Aunt Mildred's judicial working papers stored in the attic, the Federal Judicial Center provides a "Guide to Preservation of Judges' Papers." If you are interested in how conservators care for their collections, a recent post on the Law Library of Congress blog In Custodia Legis includes photographs of the repair of a manuscript of handwritten notes by signer of the Declaration of Independence and Associate Supreme Court Justice Samuel Chase.
For Further Reading
--Marguerite Most, Reference Librarian and Senior Lecturing Fellow

Tuesday, May 31, 2016

A Field Guide to Hater Judges

Over the holiday weekend, Republican presidential candidate Donald Trump spent 12 minutes of an hour-long speech in San Diego criticizing a sitting federal judge. Gonzalo Curiel (biography) of the Southern District of California is presiding over a fraud lawsuit against the candidate's now-defunct Trump University, filed in 2010 and scheduled for trial in late November. The Wall Street Journal published excerpts of Trump's speech, which is also available at C-SPAN in video and full transcript:
"I have a judge who is a hater of Donald Trump, a hater. He's a hater. His name is Gonzalo Curiel […] He is not doing the right thing. [...] The judge was appointed by Barack Obama, federal judge. Frankly, he should recuse himself because he's given us ruling after ruling after ruling, negative, negative, negative. […] I'm telling you, this court system, judges in this court system, federal court, they ought to look into Judge Curiel. Because what Judge Curiel is doing is a total disgrace, OK?"
Trump also remarked upon Curiel's ethnicity: "the judge, who happens to be, we believe, Mexican, which is great. I think that's fine." In his appearance on a Sunday news program, he unpacked that comment further, connecting Curiel's alleged distaste for Trump to the candidate's campaign pledges about border security and immigration: "I think it has to do with perhaps the fact that I'm very, very strong on the border […] Now he is Hispanic, I believe. He is a very hostile judge to me."

Hours later, Judge Curiel issued an order to unseal selected exhibits in the Trump University suit, including Trump University "playbooks" which the defendants claimed contain trade secrets. The order noted that Donald Trump "has placed the integrity of these court proceedings at issue," referencing several published interviews. (A staff member at the court told the Wall Street Journal that the judge could not respond directly to the speech's allegations, citing the Judicial Code of Conduct.)

Should Trump's legal team wish to file a bias complaint against Curiel, they might have a tough road ahead. Judicial discipline at the federal level is outlined in the U.S. Code and complaints are handled at the level of the appropriate U.S. Court of Appeals. (For more details, see the 2011 Congressional Research Service report Judicial Discipline Process: An Overview.) The Ninth Circuit, which includes California federal courts, offers an information page for judicial misconduct, but notes that "Congress has created a procedure that permits any person to file a complaint in the courts about the behavior of federal judges—but not about the decisions federal judges make in deciding cases. […] Almost all complaints in recent years have been dismissed because they do not follow the law about such complaints."

Trump's allegations of bias seem out of step with Curiel's evaluations in the Almanac of the Federal Judiciary (AFJ) (Duke NetID required for link), a long-running directory of sitting federal judges which includes comments from lawyers who have appeared before that judge. The anonymous comments in AFJ can occasionally be blistering, but Curiel garnered praise across the board for his fairness ("he listens to both sides and tries to judge fairly"), his courteous courtroom demeanor ("I have nothing negative to say about him"), and his lack of apparent leanings ("He's not naturally inclined towards plaintiffs but he doesn't have leanings"). Members of the Duke University community may access the AFJ in Intelliconnect; current Law School community members can also access AFJ within Westlaw.

To locate other sources of information about judges, check out the Goodson Law Library Directories of Courts & Judges research guide. To track the Low v. Trump University lawsuit developments, try the research guide to Court Records & Briefs. For other legal research questions, be sure to Ask a Librarian.