Practice Advice for Litigation, from Bloomberg Law

If you're facing an externship, a summer clerkship, or your first job after law school, there's a good chance that you'll suddenly realize that you'd like to improve your skills. It's not that you learned nothing in law school—just that there's an awful lot to know, and you haven't been in a setting where you need to do a lot of things. How do you serve papers? How do you manage privileged documents? What's the deal with document review?

Bloomberg Law now offers you a suite of very practical documents to help fill that gap. In the Litigation Intelligence Center, choose the Core Litigation Skills Toolkit.

The documents are divided into Litigation Research, Litigation Writing, Motions Practice, Serving and Filing Documents, Using BLAW Research Tools, Document Review, and Privilege Review. Just from that list, you can imagine how helpful the toolkit can be!

Some of the documents and checklists are by Bloomberg staff. "Perspectives" pieces are by guest authors. For instance, the documents on writing memos and writing persuasive briefs are by a lawyers from from big firms (Baker McKenzie and Goodwin, respectively). 

Maya Swanes

Being a librarian, I'm always eager for students to understand the terrific resources and services that libraries offer. And there's a Perspectives piece on just that: Understanding Law School Library Resources. Hey, look! It's by my colleague, Maya Swanes, who offers tips on making the most of what's available to you. 

These resources are not "all Bloomberg, all the time." In fact, most of them are just about the nuts and bolts of practice, without promoting Bloomberg Law's databases--although Bloomberg does have some material that can be really helpful.

UW Law students, if you've never gotten around to setting up your Bloomberg account, see our page on acccess to restricted databases (you will need to use your UW NetID and password to access this page). We even have videos to help you register: check out our Registering for and Using Legal Databases page on our guide, Gallagher Basics: Welcome to Law School! 

Leisure Reading for You!

Did you stay up late reading when you were a kid? Did you get totally absorbed in terrific books? Do you still? Good books are still out there for you, if you just pick them up.

The Good Reads section of the Gallagher Law Library, just west of
the Student Lounge. Note that this area doesn't include all of our "good reads":
we have thousands of books that might fit your interests.

Kendra Albert, now a 2L at Harvard, tried to recapture her enthusiasm for reading in the months before she started law school. You can hear her describe "The Great Book Project of 2013" at the Boston Quantified Self Meetup here. She discusses books, technology, and more in her blog, Lawspeak for L33t Speakers. (If you aren't enough of a techie to know what L33t speak is, see this Urban Dictionary entry.)

Albert's top nonfiction recommendation from her book project is The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michelle Alexander. I thought it was great too. See this blog post.

Even though the workload in law school precludes reading huge stacks of unassigned books, many people still find it helpful to keep a book or two going—either to offer a break from all the other reading or to complement it. I could go on and on about this. Oh, wait! I already have! See Good Reads in the Law Library?, 93 Law Libr. J. 517 (2003) and Bitten by the Reading Bug, 105 Law Libr. J. 113 (2013).

And our library has a variety of lists to get you started. See, e.g.,

• Suggested Reading List for Prospective & Current Law Students
• Diversity Readings Related to First-Year Courses
• Diversity in the Legal Profession

A few of the books from our Good Reads section:

• Gordon S. Wood, Empire of Liberty: A History of the Early Republic,
  catalog record
• Stephen L. Carter, The Impeachment of Abraham Lincoln: A Novel,
  catalog record
• Bradley Glenn Shreve, Red Power Rising: The National Indian
  Youth Council and the Origins of Native Activism, catalog record
• Bonnie J. Rough, Carrier: Untangling the Danger in My DNA,
  catalog record
• James C. Freund, Smell Test: Stories and Advice on Lawyering,
  catalog record
• Rodney R. Jones & Gerald F. Uelman, Supreme Folly: Hilarious
  Excerpts from Actual Court Cases, catalog record
  

Photo credit: Mary Whisner

When to Stop Researching

Many legal researchers struggle with the question: When can I stop researching?

No one answer is appropriate for all situations. Consider:

• Costs. If you're handling a case worth millions of dollars, it is worth spending extra time looking on the off chance that you'll find a crumb of information or an obscure precedent that will help. But if you're trying to collect $20,000 from an insurance carrier for a car accident, you need to keep your costs down.
• Knowledge. If you've been practicing in an area for several years and feel familiar with the field, you can probably stop sooner than a summer associate who is just learning about it.
• Time. If you're working on a tight deadline, you might need to stop researching before you feel you've covered everything thoroughly, in order to allow time to prepared your motion, memo, or other document.
• Resources. No one has access to all the databases, books, or journals that might be useful. Your research will need to stop before you consult the resources you don't have.

Appellate lawyer Jay O'Keeffe offers these guidelines (Legal Research: How Do You Know When Enough Is Enough?, De Novo: A Virginia Appellate Law Blog, July 11, 2014): 

1. What kind of appeal are we handling? It takes more research to find authority for a case urging the court to develop the law rather than correct an error based on well-established law.
2. Have we checked the obvious boxes? Has he (or his associate) followed a research process based on reliable secondary sources, plus keyword searches and citators.
3. Am I bored yet? 
4. Can I answer the tough questions?
5. Can I explain it to my eight-year-old?

For more on when to stop (as well as the research process generally), see

• Penny A. Hazelton, The Process of Legal Research, in Washington Legal Researcher's Deskbook 21 (2007)
• Mary Whisner, How Do You Know When Research Is Good?, 98 Law Libr. J. 721 (2009)
• Amy J. Wright, Bringing Research to a Close (USF law library guide)
• Christina L. Kunz, Terminating Research, 2 Perspectives: Teaching Legal Research & Writing 2 (1993)

Graphic: Mary Whisner

Who Makes Model Laws?

You've heard of the Uniform Commercial Code and the Model Penal Code, but how much do you know about model laws? You could learn more by reading this short article: Mary Whisner, There Oughta Be a Law—a Model Law, 106 Law Libr. J. 125 (2014). Here's an abstract:

Model legislation can be proposed by anyone, from large organizations with layers of process (like the Uniform Law Commission and the American Law Institute) to individuals. Awareness of model laws is important for drafters and also for advocates, as they try to influence legislation or to interpret it once it has been enacted. In this article, I discuss the sources of model laws in both senses of "source" - the drafters and the research tools.

I begin with the Uniform Law Commission, the American Law Institute, and the American Bar Association: organizations that are familiar to many legal researchers. But I also discuss less familiar sources of model laws. For example, I had never heard of the Specialty Equipment Market Association, but twenty-two states have adopted its model law for registration of custom cars and hot rods. That group has only a few model laws in a very narrow field. In contrast, the American Legislative Exchange Council (ALEC), a group of conservative legislators and business leaders, has proposed hundreds of laws - often with success - on dozens of topics. Few people need to know about registration of custom cars and hot rods, but ALEC's work affects so many areas of the law that it deserves more attention from lawyers and other legal researchers.

Funny, Scary, and Ridiculous Statute Names

In this era of statutes tagged with catchy names like the DREAM Act, the CAN-SPAM Act, and of course the USA PATRIOT Act, we have become increasingly desensitized to politicized, over-wrought, and even ridiculous acronomial statute names.  To take some lesser-known examples, Congress has in recent years passed or considered bills with names such as the COATS, FREEDOM, FEAR, FRIENDSHIP, SWEETEST, and CHIMP acts. So what's up with this, anyway?

First off, if not for the many technicalities that would prevent this from happening, some of these statutes would likely violate FTC deceptive practice regulations.  Brian Christopher Jones and Randal M. Shaheen recently published an article in the Seton Hall Legislative Journal showing how this is the case.   

However, it wasn't always like this.  As Chris Sagers of Cleveland-Marshall College of Law, and Gallagher's own Mary Whisner have pointed out in recent research, the act of naming a statute at all is a relatively recent phenomenon in our nation's history.  (Also see the great, comprehensive "How Statutes Are Named" article just published in the Law Library Journal by Renata E.B. Strause, Allyson R. Bennett, Caitlin B. Tully, M. Douglass Bellis, and Eugene R. Fidell.)  Before the New Deal legislation of the 1930s, and not even frequently during that period, laws passed by Congress rarely included the now-ubiquitous clause stating "this statue may be cited as the _____ Act."  It used to be that statutes were known by the names that journalists, librarians, historians or others retroactively attached to them for easy reference.  These were usually descriptive names, or names derived from the laws' sponsors, or both, like the Sherman Antitrust Act.  In fact, the practice of the legislature naming statutes upon their passage may have been first prompted by a 1914 plea from law librarians, who needed an easier way to index and find the nation's federal laws.

Now, just about every statute, it seems, not only has a name, but a catchy, memorable, cute, or funny one at that. In the past twenty years, there have been over fifty statutes with descriptive acronym names.  In the first two centuries of the country's existence, by contrast, there were a grand total of four, at most (if you include the 1970 RICO Act, which may or may not have been a reference to a character in a 1930s gangster movie). 

Moreover, no other country has adopted this strange practice of giving adorable acronomial names to their laws.  The U.S., it seems, likes its statutes sugar-coated and easily remembered.  I would expect the trend to only continue as America's love affair with the acronym rages on, especially with the increasing prevalence of communication by text and social media -- it's only a matter of time until the "LOL OMG" statute.       


         

Online Colloquium About Mothering

The editors of the Harvard Journal of Law and Gender are using an article in their current issue to spark discussion, via an online colloquium and a live conference.

In Unsex Mothering: Toward a New Culture of Parenting, Darren Rosenblum critiques the way society strongly ties aspects of child care to biological sex and he argues for breaking apart those ties. The live conference is next Monday evening, in Cambridge, MA.

Whether or not you can drop by Harvard, you can read the online colloquium, which includes essays by 16 authors responding to Rosenblum's piece. The authors are from around the country, including three from Seattle: Dean Kellye Testy (UW), Prof. Julie Shapiro (Seattle U), and Mary Whisner (UW reference librarian).

If you'd like to read thoughtful blog posts on the themes of family, biology, and culture, be sure to check out Related Matters (by Prof. Shapiro) and Speaking of Women's Rights (by the staff of Legal Voice).

Stat. vs. U.S.C.

We all use the United States Code (U.S.C.) (or the annotated versions, U.S.C.A. and U.S.C.S.) when we're looking for laws on a given topic. It's convenient to have laws grouped together by subject, and it's great to have amendments incorporated into one text. But it's important to remember that the United States Statutes at Large (Stat.) matters, especially if there's a conflict.

When might this make a difference? One example is found in a case the Seventh Circuit decided last week, Gonzalez v. Village of West Milwaukee, No. 10-2356 (7th Cir. Feb. 2, 2012). This came to my attention because it cited an article I wrote about codification, Mary Whisner, The United States Code, Prima Facie Evidence, and Positive Law, 101 Law Libr. J. 545 (2009). (Nice to know that someone read it and found it useful!)

Gonzalez asserted a Privacy Act claim against a municipality. One defense was that that the Privacy Act only applies to federal agencies. Bear with me here: I have to quote several provisions of both Stat. and U.S.C. to show how the two versions clashed.

Section 3 of the Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1896, added a new section to the United States Code: 5 U.S.C. §552a. Since title 5 is one of the titles that has been enacted into positive law, Congress explicitly provided where the new section should be codified.

But that wasn't the only section of the Privacy Act. Section 7 provided:

(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number.

The act didn't say where to codify § 7, so the Office of Law Revision Counsel (the people who codify laws) put it into a note to 5 U.S.C. § 552a. (The Law Revision Counsel couldn't just make up a new section number: everything that has a section number of its own in a title that's been enacted as positive law was put there by Congress.)

5 U.S.C. § 552a says:

(a) DEFINITIONS.—For purposes of this section—
(1) the term "agency" means agency as defined in section 552(e) [now 552(f)] of this title;

And 5 U.S.C. § 552(f) says:

(f) For purposes of this section, the term—
(1) ‘"agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency;

In 2005, the Sixth Circuit found that  § 7 didn't apply to a local government because § 7 was codified with § 552 and it didn't fit within § 552's definition of "agency."

The defendant in Gonzalez made that argument, too, but the Seventh Circuit went back to Statutes at Large, where § 7 very clearly does apply to local governments. It doesn't matter that § 7 was codified in a note to § 552. The language "for purposes of this section" meant the section of the original Privacy Act (§ 3), not 5 U.S.C. § 552 and whatever was tucked into a note.

Gonzalez lost his Privacy Act claim on other grounds, but § 7 does apply to local governments. The moral of the story: the text in Statutes at Large is the law.

Positive law codification - U.S. Code

The United States Code (U.S.C.) is a codification of the federal laws in force. Some of the titles (e.g., title 17) have been enacted as positive law by Congress. When Congress amends these, it amends the U.S.C. directly. Other titles (e.g., title 42) are compiled from individual statutes and have not been enacted as a whole. When Congress amends these, it amends the original public law.

The U.S.C. titles that are not positive law are prima facie evidence of the law, but the official real-deal law is the original enactment in United States Statutes at Large. That's why you sometimes see citations to § 202 of the Social Security Act, rather than 42 U.S.C. § 402, where it's codified. Congress currently is working on enacting two more titles as positive law: H.R. 1107 (title 41, Public Contracts) and has H.R. 3237 (title 51, national and commercial space programs) have both passed the House and are pending in the Senate. The Law Revision Counsel -- the official in charge of codification -- explains why this project is important: Peter Lefevre, Positive law codification will modernize U.S. Code, The Hill's Congress Blog, Sept. 28, 2010. For more (if you think the inner workings of codification are as interesting as I do), see my short article: Mary Whisner, The United States Code, Prima Facie Evidence, and Positive Law, 101 Law Libr. J. 545-56 (2009), available at https://ssrn.com/abstract=1517999.

Enact Locally

Often in our mental checklists of research steps, we think about federal and state statutes, cases, and regs, but we overlook city and county ordinances. And yet this source of law can cover many important areas of life, from the building you live in to whether you pick up after your dog. Sometimes it can even have global reach, as when municipalities declare themselves nuclear-free zones.

For a discussion of local legislation and why legal researchers should keep it in mind, see Enact Locally, 102 Law Libr. J. 497 (2010), by reference librarian Mary Whisner.

Librarian Publication: Subject Compilations of State Laws

What would you do if you had to find all the state laws on animal cruelty? Or foreclosure mediation programs? Or sex education in public schools?


You could start looking them up, one by one: Alabama, Alaska, Arizona, . . . But wouldn't it be great if someone else had already done the heavy lifting?

Surveys of state laws can show up in a variety of places: e.g., law review articles, websites of advocacy groups, briefs, treatises. The trick is finding them.

And here's where reference librarian Cheryl Nyberg makes life easier for you (and other legal researchers around the country). She scans thousands of sources, looking for the footnotes and charts that compare state laws on different topics, then she cites them in an organized list so that you can find them and use them.

The latest volume in her series -- which she's been producing since 1984 -- is Subject Compilations of State Laws 2008-2009: An Annotated Bibliography (KF1 .S93 2008-09 at Reference Office).

Cool as this series of books is, it's now even better in an electronic format. All of the entries (going back to articles published in 1960) can now be searched on HeinOnline. And if the law review cited is available on HeinOnline, you can link right to it.

This is a great online tool. And it's a good illustration of how the best electronic tools take advantage of an intelligent person's work, searching for information, evaluating it, annotating it, and organizing it -- all to make your research more efficient.

Graphic credit: National Park Service Public Use Statistics Office