Wednesday, October 7, 2015

Hypnotism and the Law

Students of evidence already know that hypnotism has a long history in our legal system (for example, a 1902 Yale Law Journal article explored "Legal Aspects of Hypnotism"). Hypnotically-refreshed testimony, highly controversial on the subject of its admissibility and reliability, has received the majority of scholarly attention over the years.

But another, even older, twist on hypnotism and the law resurfaced this week – liability for harm to a hypnotist's subject. In an unusual case from Florida, a school board approved a $600,000 settlement agreement with the families of three high school students who died in 2011 after they were hypnotized by the school's former principal. During an investigation after the tragic suicide of the first student, the school discovered that then-Principal George Kenney had hypnotized as many as 75 students and staff members in the school, and also taught students self-hypnosis techniques as a method to improve concentration. (Another student also committed suicide, while the third was involved in a fatal car accident, allegedly after using the self-hypnosis technique.)

As the local newspaper reported, the former principal resigned a year after the students' deaths, and was charged with misdemeanors related to the practice of hypnotism without a license. Florida law prohibits the practice of hypnotism for therapeutic purposes except for "practitioners of the healing arts," as part of its extensive Hypnosis Law. A plea agreement allowed Kenney to receive a year of probation, after which he gave up his Florida teaching license and moved to North Carolina, where he now operates a bed-and-breakfast.

As it turns out, Florida is not the only state to legislate the practice of hypnotism. The National Guild of Hypnotists provides a 50-state survey on State Law and Legal Issues: 2015 Edition. The Guild provides common-sense advice to members about keeping on the right side of the law, including the avoidance of the word "therapy" and guidance on record-keeping and professional ethics. The end of this publication includes a brief listing of the 15 states which have passed some sort of legislative prohibition on the practice of hypnotism (including Florida), and 15 more which have laws that may be interpreted to prohibit some hypnotism practices.

General Techniques of Hypnotism (1957)
by Andre M. Weitzenhoffer.

To learn more about the history and techniques of hypnotism, search the Duke University Libraries Catalog for the subject heading "Hypnotism." You’ll find titles like 2000's Hypnotism: A History as well as classic texts like Andre M. Weitzenhoffer's General Techniques of Hypnotism and 1903's Complete Hypnotism: Mesmerism, Mind-Reading and Spiritualism, available for free via Project Gutenberg. Discussions of hypnotically-refreshed testimony can be found in most general evidence treatises, accessible through the catalog with a subject search for "Evidence (law) – United States." For help locating these or other resources on hypnosis and the law, be sure to Ask a Librarian.

Thursday, October 1, 2015

First Monday in October: Dos and Don'ts

Monday, October 5 marks the start of the U.S. Supreme Court's October Term 2015. Since 1916, the "first Monday in October" has been the official kick-off of Supreme Court arguments for a particular term, as outlined in 28 U.S.C. § 2. Although the last OT2014 opinions were handed down in late June, the Court doesn't exactly kick back for a lengthy summer vacation: justices have been hard at work behind the scenes this summer reviewing new petitions for certiorari.

There are already forty cases on the docket for this term (listed with brief descriptions at SCOTUSblog); the Court continues to add new cases to the term, with thirteen petitions granted just today. The cases already scheduled for oral argument can be viewed at the Supreme Court's Argument Calendars page. First in line this year is OBB Personenverkehr AG v. Sachs, concerning the definitions of "agent" of a "foreign state" under the Foreign Sovereign Immunities Act. The SCOTUSblog case file contains a summary of previous case activity and links to the full text of the petition and briefs.

What does it take for an attorney to appear before the U.S. Supreme Court? SCOTUS maintains a bar admission process for attorneys who wish to argue before it. Although some have derided the $200 resume booster as a "vanity" credential for most attorneys who join, others highlight the perks of admission to this club, such as prime seating for other Supreme Court arguments.

For those Supreme Court bar members who do actually appear before the Court, the SCOTUS website provides Guides to Counsel with the inside scoop about oral arguments and other Court procedures and etiquette. For example:
  • DON'T walk up the front steps to the Court on argument day: there's a separate entrance for counsel, and arguing counsel can even cut in the line.
  • DO steal the pens: "The quill pens at counsel are gifts to you – a souvenir of your having argued before the highest Court in the land. Take them with you. They are handcrafted and usable as writing quills."
  • DON'T bring a legal pad to the lectern: it won’t fit. The Court recommends a single notebook instead: "Turning pages in a notebook appears more professional than flipping pages of a legal pad."
  • DO look toward the light: the Marshal will alert you to 5 minutes left of your argument time with a white light. A red light means time's up.
  • DON'T get too cute with the justices by cracking jokes: "Attempts at humor usually fall flat."
More detail about the work of a Supreme Court litigator can be found in the seminal treatise Supreme Court Practice, 10th edition (KF9057 .S8 2013 & online in Bloomberg Law: Search & Browse > Books & Treatises > Bloomberg BNA). This guide, it should be noted, doesn't say a word about the quill pen souvenirs (although it does warn about the legal-sized pads).

For more information about the U.S. Supreme Court's upcoming term, check out SCOTUSblog, the Supreme Court website, and the Goodson Law Library's research guide to the U.S. Supreme Court.

Saturday, September 26, 2015

Bringing Tort Law to Life

The average torts casebook contains a fascinating – and sobering – history of negligent acts and liability for injuries, from bringing fireworks onto a crowded train to being hit by a stray baseball and countless other misfortunes in between. But now there's a place where seminal moments in the history of U.S. tort law will really come to life. This weekend, the American Museum of Tort Law had its dedication ceremony in Winsted, Connecticut, and officially opens its doors on Sunday. The new museum is the brainchild of consumer advocate (and Winsted native) Ralph Nader, whose 1965 book Unsafe at Any Speed revolutionized the consumer protection movement and resulted in the passage of federal automobile safety standards.

The New York Times reviewed the museum's development and opening exhibits. These include such well-known examples as the McDonald's "hot coffee" spill, tobacco and asbestos litigation, and the defective automobiles which spurred the publication of Unsafe at Any Speed. The museum's website discusses several of these exhibits in detail online, under the section Cases that Made a Difference. A brief Q&A about tort law basics is also available.

The Goodson Law Library has a number of resources available to help readers learn more about this topic. General tort law overviews and study aids are listed in the library's guide to First-Year Treatises. A number of other works in our collection discuss the history and stories behind seminal torts cases, including Torts Stories and the excellent 2011 documentary Hot Coffee: Is Justice Being Served?, which debunked a number of popular myths about the McDonald's litigation as well as misconceptions about "frivolous lawsuits" in the American legal system. To locate materials in our collection on tort law, search the Duke Libraries Catalog for the subject heading "Torts – United States" or Ask a Librarian.

Wednesday, September 16, 2015

Forms Fitting

Legal forms can be a time-saving template for any attorney, providing suggested language for the drafting of a contract or legal pleading. In some areas of practice, the use of certain forms may be required. The Goodson Law Library has just updated its research guide to Legal Forms, which provides information about locating forms in print and electronic formats. The Goodson Law Library maintains a collection of many major form book sets in print, including American Jurisprudence Legal Forms (a companion to the AmJur encyclopedia), West's Legal Forms, and Douglas' Forms (specific to North Carolina practice). Most of the general form sets can be found in the Practice & Procedure collection on Level 3; Douglas' Forms is located in the North Carolina Alcove on Level 2.

Krusty's Legal Forms, which is sadly not a real publication.
Credit: The Simpsons: The Last Temptation of Krust
(FOX television broadcast Feb. 22, 1998).

As the guide notes, members of the Duke Law community have additional access to form books as well as other form collections through the legal research services Bloomberg Law, Lexis Advance, and WestlawNext. Both WestlawNext and Lexis Advance include "Forms" as a browseable source category; in all three of these services, forms may also be found in the appendices of subject-specific treatises, or included with the text of legislative code or court rule publications. For example, the North Carolina General Statutes include a number of sample or required forms, such as N.C. Gen. Stat. § 1-440.24, providing a template for notice of levy in a garnishment proceeding. The research guide does not attempt to include every topical publication in the library collection which contains forms, but does include instructions for locating potentially relevant subject treatises in the campus libraries' online catalog.

In addition to the library collection and Westlaw/Lexis/Bloomberg, LoislawConnect, available to the Duke University community, includes helpful sub-libraries of "Treatise Forms & Checklists," which cull available forms from the Wolters Kluwer treatise publications available within Loislaw. To view a list of forms in Loislaw on a particular subject, click the Forms & Checklist library sub-folder, then select "Display All Forms." (Forms in Loislaw can also be accessed by viewing the full text of a specific treatise publication, but this method is a handy way to display a list of all available forms within Loislaw on a topic.)

Legal researchers should be aware of potential differences between the print sets available in a library and how they are displayed online. For example, the library's print set of Douglas' Forms includes a 2009 supplement called Transactions in Turbulent Times, containing forms related to transactional law practice topics relevant to the economic difficulties of the late 2000s. When a researcher accesses Douglas' Forms on Lexis Advance, this supplemental volume does not appear in the table of contents browse. However, Transactions in Turbulent Times can be browsed and searched as a separate source in Lexis Advance by entering the title into the main search box or in the Browse Sources search box.

If you encounter issues with accessing legal forms in our research services, or need help identifying legal form publications, be sure to Ask a Librarian.

Friday, September 4, 2015

New Research Guide to Securities Law

When even the author of a leading scholarly treatise calls its subject matter "tricky" and "a puzzle," researchers know they are in for a challenge. That's the reality of securities law, a complex area governing such negotiable instruments as stocks and bonds, as well as their secondary markets. Securities law research can include primary and secondary sources of law, at both the federal and the state levels. It is governed by a massive collection of statutes, regulations, and administrative law materials from the U.S. Securities and Exchange Commission (SEC). In addition, self-regulating organizations (SROs), such as FASB and FINRA, set standards and issue pronouncements which may also need to be reviewed when researching a securities law topic.

These sources are available free on the web in some cases, but may be more conveniently navigated in a subscription research database like Westlaw, Lexis, or Bloomberg Law, which each have customized securities law practice pages. Need help finding your way through this maze? The Goodson Law Library has just added an extensive new research guide to Securities Law, authored by Reference Librarian and Senior Lecturing Fellow Laura Scott. This guide recommends a number of helpful secondary sources to learn essential background or current developments (such as scholarly treatises, casebooks, newsletters, and blogs). Primary law is covered in detail, including:
  • A list of the major federal securities statutes and how to convert their popularly-used session law section numbers into a current U.S. Code citation. Legislative history research is also covered. 
  • Securities and Exchange Commission regulations, filings, releases, staff interpretations, and other agency guidance. 
  • Case law, including judicial court opinions as well as Administrative Law Judge and SEC decisions. 
  • Special resources for researching state securities laws, also known as "Blue Sky" laws. 
Check out this detailed new guide at our Research Guides page, linked under "Research Help" on the library website. It's listed along with nearly 40 other topical guides on legal research, all created and maintained by Duke Law Reference Services staff. There is also a link to's Search All Law Schools custom search engine if you are researching a topic which isn't listed.

Law school library research guides are an excellent starting place for any research topic. If you need additional help researching securities law or locating a guide on a different topic, be sure to Ask a Librarian.

Wednesday, August 26, 2015

Canadian Legal Research Guide Updated

Yesterday, the Supreme Court of Nova Scotia heard a challenge to the Canadian province's anti-cyberbullying law, which was passed in 2013 following the suicide of 17-year-old Rehtaeh Parsons. Parsons, a victim of sexual assault, had been harassed for several months by students at her school after a photo of the attack was circulated online. In response to her tragic death, Nova Scotia lawmakers enacted the Cyber-safety Act, which prohibits "electronic communication […] that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation." Under the Act, victims of cyberbullying may be entitled to civil damage awards from their harassers, or from the parents of minor children who engage in online harassment.

Robert Snell, who was accused of cyberbullying by a former business partner, has challenged a protective order issued against him under this Act. His lawyer argued that the provincial legislation violates the Canadian Charter of Rights and Freedoms (the Canadian equivalent of the U.S. Bill of Rights), and creates civil liability for an unreasonably broad amount of free expression. Lawyers for the province argued that the wide definition of cyberbullying was necessary to prevent the law from becoming obsolete in the face of rapidly changing technology.

Once the Supreme Court of Nova Scotia has issued its judgment in this case, how might a researcher in the U.S. track it down? Our recently-updated guide to Canadian Legal Research has some ideas. It turns out that we have a number of legal research options for our neighbo(u)rs to the North, including WestlawNext (Law School only), LexisNexis Quicklaw (Duke University community), and free websites like CanLII and LexUM. Government websites also provide robust access to legal materials.

Canadian national flag
The National Flag of Canada, celebrating its 50th anniversary in 2015.

The research guide also has suggestions for finding helpful treatises and periodical articles for background research. The encyclopedias Halsbury's Laws of Canada (on Quicklaw) and Canadian Encyclopedic Digest (on WestlawNext) also provide good overviews of Canadian legal topics. Additionally, print and electronic research guides (such as the aptly-named Best Guide to Canadian Legal Research) are included for those conducting more in-depth Canadian legal research.

For help with locating Canadian legal materials, either online or in the library's print collection, be sure to Ask a Librarian, eh?

Wednesday, August 19, 2015

Bluebook on Display

[This is a guest post by Reference Librarian and Senior Lecturing Fellow Marguerite Most.]

Whether you're returning to Duke after a summer away, or you're new to Duke Law School and just beginning your legal career, you'll soon learn that a new 20th edition of The Bluebook has arrived. The Bluebook: A Uniform System of Citation is the legal citation manual followed by journals at Duke Law School, taught in the LARW course required of all 1L students, and used at most law schools nationwide. Print copies of the 20th edition are available on reserve at the Circulation/Reserve desk and the new electronic (subscription) version is available for purchase online.

For a practical introduction to the 2015 edition of The Bluebook, see the Goodson Blogson post of June 5 which announced this new 20th edition, highlighted several significant rule changes and linked to a list of differences between the 19th and 20th editions. A change that will surely please law review editors and cite-checkers is revised Rule 16(f), which allows citation to Internet and online newspapers in place of print newspapers. Rule 15.9(c) introduces a citation format for e-books and for citing e-book locations if page numbers are not available. Updates to existing rules include added guidance in Rule 18 on citing to archived Internet sources by using, a tool designed to combat "link rot" (broken URLs) by providing a permanent archival source for websites.

The history of The Bluebook is generally dated to 1926, when then-2L Harvard law student Erwin N. Griswold took home the Harvard Law Review citation pamphlet for a printer in Cleveland to make copies. Griswold went on to serve as dean of Harvard Law School as well as Solicitor General of the United States. In 1991, following the publication of the 15th edition, Alan L. Dworsky, a former editor of the Harvard Law Review, published a User's Guide to the Bluebook – at 54 pages, the Guide was more than twice the length of the first Bluebook. Dworsky noted in his User's Guide for the 19th edition, that the dominant authority legal citation form is still The Bluebook. Unfortunately, this Bluebook edition – like its predecessors – is "complicated, picky, and long." The new 20th edition is over 560 pages.

Other citation systems do exist. The ALWD Citation Manual is a publication of the Association of Legal Writing Directors and is used in some law schools across the United States. The Maroonbook: The University of Chicago Manual of Legal Citation was first published in 1989 and has its fans, including Judge Richard A. Posner of the Seventh Circuit. (Posner is no fan of the Bluebook; he has explained his preference for the Maroonbook in several articles posted on Chicago Unbound, the digital repository for the law school's faculty.) In the United Kingdom, lawyers and scholars look to the Oxford Standard for Citation of Legal Authorities (OSCOLA). In Canada they look to the Canadian Guide to Uniform Legal Citation.

Early Bluebooks, practice manuals designed to teach citation style to law students, and rival citation manuals are now on display in the Riddick Room cabinet, visible from the Reading Room on level 3. For anyone who prefers to examine early editions of the Bluebook online, links to PDFs of old editions from the 1st - 15th edition are posted on the Harvard Law School Library Blog.

For anyone with a serious interest in early legal citation styles, the Riddick Room display also includes several volumes illustrating early English citations from the Library's special collections. For a history of legal citation style in common law countries with citations to treatises and journal articles, begin with Anglo-American Legal Citation: Historical Development  by Byron D. Cooper, 75 Law Libr. J. 3 (1982). For anyone with only a passing interest in legal citations, suffice it to say, the author sets the stage in 1066 when William of Normandy crossed the English Channel and joined the history of England with the history of Europe – thus tracing citations back to Justinian’s Institute and Code a thousand years earlier.

Follow Citing Legally, a blog that covers "current issues of citation practice" for more fascinating news on legal citation style. For more help with finding or using a particular citation manual, be sure to Ask a Librarian.

-- Marguerite Most, Reference Librarian and Senior Lecturing Fellow