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.

Thursday, May 26, 2016

Oh Yay: Oyez Stays!

Earlier this spring, it seemed like last call for Oyez (pronounced oh-yay), the repository of U.S. Supreme Court oral argument transcripts and audio recordings, currently hosted by the Chicago-Kent School of Law. As creator Jerry Goldman neared retirement after a long career as a law professor, he announced that the site would be shuttered at the end of this month unless a buyer was willing to commit to both the six-figure annual operating costs and a buyout for Goldman's two decades of helming the site.

Fortunately for Supreme Court researchers, Oyez has just announced its new home, at Cornell Law School's Legal Information Institute. As reported late yesterday in the National Law Journal and on Bob Ambrogi's Law Sites, the shift to Oyez's new host is expected to be in place by the beginning of the Court's next October term. Free Law partner website Justia will provide additional support.

Since its debut in 1996, Oyez has grown to a massive archive of U.S. Supreme Court case information and audio recordings. Audio is available back to 1955, and selected case summaries back to 1793. Audio recordings breathe new life into landmark Supreme Court cases, such as the emotional appeal during oral argument for 1967's Loving v. Virginia, after which the Court unanimously struck down anti-miscegenation laws: "No matter how we articulate this, no matter which theory of the due process clause or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, 'Mr. Cohen, tell the Court I love my wife and it is just unfair that I can't live with her in Virginia.'"

Additional research resources for accessing U.S. Supreme Court oral argument transcripts, opinions, and case summaries are listed in the Goodson Law Library research guide. These include SCOTUSblog, with case materials back to 2007, and the American Bar Association Supreme Court Preview, which archives merits and amicus briefs back to 2003. For help locating other U.S. Supreme Court materials, be sure to Ask a Librarian.

Wednesday, May 25, 2016

Finding Federal Law Materials

Statutes and regulations and case law, oh my! There are so many places to find federal legal sources that it can feel overwhelming at the start of a research project. If you've been relying on Law School-only tools like Westlaw, Lexis, and Bloomberg Law, you might not know where to begin when you no longer have access to your favorite research service. Fortunately, the Goodson Law Library can help with our Federal Law Links list, which provides alternative (and often free) web access to the current and historical U.S. Code, federal legislative history documents, federal court opinions, and agency/executive resources.

For items published after the mid-1990s, the U.S. Government Publishing Office's govinfo, currently in beta, is a great place to start. This site will eventually replace FDsys as the federal government’s official online repository; note that both sites currently offer the same content, but govinfo does not yet include browsing capability for certain collections. Govinfo's A-Z collection browse and Frequently Asked Questions should clarify any coverage concerns.

The Federal Law Links list also covers some other sources for federal material, particularly through the Library of Congress's partnership with the subscription database HeinOnline. The LOC/Hein partnership provides free public access to historical PDF backfiles of the U.S. Code, Code of Federal Regulations, Federal Register, and U.S. Reports – all pre-dating what is available in govinfo/FDsys. (Researchers with a current affiliation to Duke University may also access these titles directly in HeinOnline, by authenticating with a NetID through a link on a Duke Libraries site.)

Remember that the Goodson Law Library Legal Databases & Links page as well as its Research Guides are great places to begin forming your research strategy. For further assistance with locating federal legal materials, be sure to Ask a Librarian.

Friday, May 13, 2016

Expanded Legislative History Access

The Goodson Law Library has added a few new legislative history search options to its collection of electronic resources.

ProQuest Congressional now contains the library of Digital U.S. Bills and Resolutions, 1789-2013. This module includes the full text of all federal bills and resolutions since the 1st Congress, including PDF images of handwritten early bills (see example below).

An Act Making an Alteration in the Flag of the United States (1789). Senate bill from 1st Congress; accessed in ProQuest Congressional.

Use the "Bills & Laws" search option, or choose "Legislative & Executive Publications > Search by number" to retrieve known citations. Results include a "Bill profile" which compiles information about the bill's progress within Congress and subsequent or variant versions. This resource will be particularly valuable for researchers working with bills related to unenacted laws, since many full-text legislative history resources focus only on enacted statutes.

Also within ProQuest Congressional, access to the full-text committee reports in the U.S. Serial Set has expanded up to 1989. Congressional committee reports are considered the most persuasive evidence of legislative intent. Duke University researchers also have electronic access to committee reports within the U.S. Serial Set Digital Collection (1817-1994) and ProQuest Legislative Insight (1897-present, reports related to enacted laws only), with additional coverage within Law School legal research databases like Westlaw. However, additional access to committee reports through the ProQuest interface will be convenient for researchers.

Finally, the ProQuest Legislative Insight database coverage has been extended up to 2016. This database provides compiled legislative histories for nearly 30,000 enacted federal laws, dating from 1897-present.

For more guidance on researching federal legislative history, visit our newly-updated research guide or Ask a Librarian.