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

Monday, August 10, 2015

Trial by Combat: Making a Comeback

Last week, a county court filing by Staten Island attorney Richard A. Luthmann became an unexpected media sensation. Luthmann is being sued by creditors of a former client, who allege that the attorney advised their debtor to liquidate assets in order to avoid a judgment collection. It’s not the sort of case which usually garners such widespread publicity, but Luthmann also isn't a typical defendant. In a July 24 reply affirmation, he derided the plaintiffs' "moronic" legal argument and "thug tactics," called opposing counsel's visualization of the case timeline "a glorified comic book piled on top of pure and adulterated extortion," and ended with a formal demand for a Trial By Combat.

What's a trial by combat, some may ask? You'd be forgiven for not knowing, since a recorded example has not occurred in centuries. Also known as "judicial combat" or "the wager of battle," a trial by combat allowed the outcome of a judicial dispute to be determined by a duel. The long history and development of this fascinating medieval practice is detailed in Carpenter's Foundations of Modern Jurisprudence (1958), available in the library and in HeinOnline; as well as in George Neilson's 1890 treatise Trial by Combat, available online.

Illustration of a marital judicial duel, 15th century Germany
Illustration of a "marital duel" from Hans Talhoffer's
15th-century Fechtbuch (Fight Book). Men were given
the physical handicap of a waist-deep pit to balance
their size advantage against a woman.
Text available at the Internet Archive.

Luthmann, an admitted fan of the book and television series Game of Thrones (set in a land where this medieval European legal right can also be invoked), details the history of trial by combat in the last ten pages of his filing with citations to the Neilson treatise and other legal history materials. He asserts that no U.S. jurisdiction has outlawed the practice, which remained legal (albeit archaic) in Britain at the time of America's founding, "and thus trial by combat remains a right reserved to the people and a valid alternative to civil action." As he told the local news media, "They want to be absurd about what they're trying to do, then I'll give them back ridiculousness in kind."

Will Luthmann prevail in the lawsuit against him, whether it's in the courtroom or a fighting pit? Interested readers can track the outcome at the New York eCourts WebCivil Supreme service, with a search for the Index Number 150175/2014. From there, researchers can access a case calendar and view e-filed documents, like the July 24 reply affirmation. The next scheduled appearance in this case should take place on Friday, August 28.

For additional tips on accessing court filings, check out the library's research guide to Court Records and Briefs. To learn more about the history of trials by combat, search the Duke Libraries Catalog for the subject heading "Wager of Battle" to view available print and electronic titles like the Neilson treatise and James P. Gilchrist's A Brief Display of the Origin and History of Ordeals (1821). For help accessing these or other resources, be sure to Ask a Librarian.

Friday, August 7, 2015

New Title: Transgender Persons and the Law

Over the last few months, Caitlyn Jenner has shared details of her life as a transgender woman in media interviews and her reality television program I Am Cait. Jenner was well-known around the world as the 1970s star Olympic athlete Bruce Jenner, and gained new fame in the late 2000s as a part of the E! television series Keeping Up With the Kardashians, which followed the lives of Jenner's family with now ex-wife Kris Jenner. In April, Jenner disclosed her identity as a transgender woman during an ABC News interview, and revealed her new first name and physical transformation on the July cover of Vanity Fair.

Caitlyn Jenner's story has increased the visibility of transgender persons in America. Surveys have estimated that about 0.5% of Americans identify as transgender, and a poll conducted by the advocacy group GLAAD indicated that only 8% of Americans personally know a transgender individual. Jenner (and other high-profile transgender celebrities, like Emmy-nominated Orange is the New Black actress Laverne Cox) may help lead to a greater public understanding of the challenges faced by individuals whose assigned sex at birth does not match their gender identity. The transgender community often encounters a lack of legal protection against discrimination in employment and housing; transgender people may also be at increased risk of violent hate crimes, and face unique challenges in the areas of family law, immigration, and the criminal justice system.

cover of Transgender Persons and the Law
The American Bar Association has recently published a new edition of its groundbreaking treatise, Transgender Persons and the Law, 2d ed., available in the library at the call number KF4754.5 .H69 2015. This text provides an overview of the legal issues faced by transgender persons, including summaries of case law and statutes on the subjects of identity documents, discrimination protections, family law, and personal safety. The complete table of contents, a foreword by Phyllis Randolph Frye (the first openly transgender judge in the U.S.), and a sample chapter can be viewed on the ABA website.

Additional information on the legal issues faced by transgender persons can be found on the websites of several organizations. The American Civil Liberties Union includes a Transgender Rights section on its website, which contains research reports on topics like health care and the military. GLAAD recently published the report Understanding Issues Facing Transgender Americans, an overview of legal concerns and available protections. Lambda Legal's Transgender section outlines legal rights of transgender individuals for a variety of issues, and the Transgender Law Center provides helpful links and policy pages for a number of topics.

For help locating additional materials on transgender persons and the law, be sure to Ask a Librarian.