Rule of Law Index from the World Justice Project

The World Justice Project (WJP) is an international organization whose mission is “to lead a global, multidisciplinary effort to strengthen the rule of law for the development of communities of opportunity and equity.” Its sponsoring organizations include bar associations, associations of educators, human rights groups, chambers of commerce, and public health associations around the world.

The Rule of Law Index is a new tool that measures over 100 variables about the rule of law as portrayed in practice and as it exists “in the books.” As described at the WJP website, these factors are drawn from the Universal Declaration of Human Rights and other international instruments summarized in the following four statements, which constitute the WJP's definition of the rule of law:

1. The government and its officials and agents are accountable under the law.
2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

Version 1.0 of the Index has been field tested in six countries so far. There is now a Version 2.0 and it is anticipated that the Index will be administered in 100 countries in 3 years. In each country, a Rule of Law Index report will detail the findings.

Search (Some) Washington Court Records Free

Now you can search some information in Washington State court records in a database from the Washington Courts.

You can search by name to find cases involving a person in any court in the state. You can also search by individual or business (or agency) name court by court.

This is NOT the official record and is intended only as reference. For some searches, you need to click that you agree to check the official record before acting on information with respect to an individual.

But it is convenient. And free.

Supreme Court Database

How many decisions did Justice Souter author? How many cases considered by the Warren Court (1953-1967) involved the federal habeas corpus act? In how many of those cases was the lower court’s decision affirmed?


If you are curious about Supreme Court statistics, check out the Supreme Court Database. It presently covers terms from 1953-2008 and is updated four times a year. More than two hundred pieces of information is included about each case, such as its origin, why the Court agreed to hear it, the issues involved, how each Justice voted, and the case’s disposition. An easy form lets you select specific parameters for your own analysis.

Arguing Word Usage with Justice Scalia

On Tuesday, 11/3, the US Supreme Court heard oral arguments in Hemi Group, LLC v. City of New York (08-969). The case involves the issue of whether state and local governments have standing under the RICO statute to bring suit for recovery of uncollected taxes (and treble damages).

The Hemi Group sells cigarettes over the Internet, advertising that they are “tax-free.” It ships from low-tax sites, such as tribal lands. New York City imposes hefty taxes on tobacco products sold or used there. Of course, Hemi Group is not responsible for collecting the New York taxes; instead, New York customers are responsible for contacting the City and paying those taxes. Few customers, however, want to take that step. Recognizing the difficulty local governments would have in collecting these taxes, Congress passed the Jenkins Act in 1949. That act requires out-of-state vendors to report purchases to each customer’s state, which Hemi failed to do.

On behalf of Hemi Group, lawyer Randolph Barnhouse argued that New York had lost only an “opportunity” to collect taxes, an “inchoate interest” not amounting to property under RICO. In response to a hypothetical, Barnhouse referred to a “choate” interest in property, leading to this exchange with Justice Scalia (as reported by the online weekly ABA Journal):

“There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.’ "

As Barnhouse tried to move on, Scalia offered an example. “It's like 'gruntled,' " he said.

“But I think I am right on the law, Your Honor,” Barnhouse offered, but Scalia wasn’t done.

"Exactly. 'Disgruntled,' " Scalia said. Some people mistakenly assume the opposite of “disgruntled" is “gruntled,” he explained.

It would certainly be a bit embarrassing to be caught by a Justice using a “non” word. But is Justice Scalia correct? The Oxford English Dictionary (OED), which is available online through the UW Libraries, describes “choate” as an “An erroneous word, framed to mean ‘finished’, ‘complete’, as if the in- of inchoate were the L. negative.” It then gives examples of its use by Oliver Wendell Holmes and Winston Churchill. The OED seems to have less of a problem with “gruntled,” which it simply defines as “Pleased, satisfied, contented.”

What about legal dictionaries? Black’s Law Dictionary, checked on Westlaw, includes these definitions of “choate:”

1. Complete in and of itself. 2. Having ripened or become perfected.

That also is the general sense of the more complete discussion of the word in A Dictionary of Modern Legal Usage found on LexisNexis, though there it is referred to as an “invented” positive form of “inchoate.” Both dictionaries point to “choate” as a term used for a type of lien. Here is part of that discussion from A Dictionary of Modern Legal Usage:

The word has become more or less standard in the phrase choate lien, corresponding to inchoate lien . . . . Although the word is the product of incorrect etymology, is ugly and illogical, it would be futile to call for its obliteration from the legal vocabulary. It has supplied a name for a fairly arcane legal doctrine, which is unlikely to be renamed. Choate is recognized in legal literature as "an illegitimate back formation" (Plumb, Federal Liens and Priorities, 77 Yale L.J. 228, 230 [1967]), but it is used even by those who deprecate its origins.

Neither Black’s nor the legal dictionaries in LexisNexis included “gruntled.”

By the way, if you would like more details about the issues in the Hemi Group case, check out this preview from the SCOTUSblog.

State Tort Trials Statistics

The Department of Justice Bureau of Justice Statistics has released a 2005 snapshot of state court tort trials: Tort Bench and Jury Trials in State Courts, 2005. Here is a description from the website:

Discusses tort cases concluded by a bench or jury trial in a national sample of jurisdictions in 2005. Topics include the types of tort cases that proceed to trial, the differences between tort cases adjudicated by judges and juries, and
the types of plaintiffs and defendants represented in tort trials. The report also covers plaintiff win rates, punitive damages, and the final award amounts generated in tort trial litigation. Lastly, trends are examined in tort trial litigation in the nation’s 75 most populous counties, based on comparable data in 1996, 2001, and 2005.

Highlights include the following:

• Together, bench and jury trials accounted for an estimated 4% of all tort dispositions in 2005.
• Punitive damages were sought in 9% of tort trials with plaintiff winners. The median punitive damage award was $55,000.
• In the nation’s 75 most populous counties, the number of tort trials declined by about a third between 1996 and 2005.

King County Community Health Indicators

The Seattle & King County Public Health recently released a new web page with statistics on King County Community Health Indicators. Click on any of the indicators (e.g., prenatal care, suicide, smoking) and you get another page with detailed statistics by age, race or ethnicity, sex, and income level.

Consider smoking. Would you have guessed that the poorest people are three times as likely to smoke as those with incomes over $75,000? But the highest percentage of excessive drinking is in the highest income bracket. Being overweight, on the other hand, is less sensitive to income -- but it's much more common among women than among men.

There's often a link to comparison data. For example, you can compare King County's rate of adults who are physically inactive (14.9%) with Hennepin County (Minneapolis) (14.1%) and Clark County (Las Vegas) (26.6%).


Speaking of public health: Another online service is a database of restaurant health inspection records. Use it to look up your favorite (or not so favorite) hangouts. (I'm proud of my local Taco del Mar for its perfect scores -- when I get dinner there, it's not only tasty and convenient, but safe!)

Gallagher Law Library in the Spotlight

The Gallagher Law Library has been selected as the Spotlight federal depository library for November by the US Government Printing Office. Gallagher is the first law library to be recognized in this way.

Selected for "its strong support of public access to Federal depository legal and other information resources," the Law Library became a depository for federal government publications in 1969. But its commitment to serving the legal and government information needs of the public has been strong for more than a century.

The federal depository library program provides free government publications and materials to nearly 1,250 libraries around the country, including academic, court, public, and special libraries. In exchange, these libraries guarantee public access to government information to all users.

Many staff members contribute to the Library's successful participation in the depository program. They manage the receipt of publications, creating and maintaining library catalog records, subscribing to commercial products that facilitate use and identification of government publications, printing archival copies of electronic documents, and answering questions about and directing users to government information sources.

We appreciate GPO's recognition of our service.

To learn more about government publications in the Gallagher Law Library, visit our United States Government Publications page.

Five Monsters You Meet In Law School | BITTER LAWYER

For some of us, law school was a horrifying place, filled with terror and dread. Fortunately, there’s Halloween—a time when we can collectively put our fears out in the open and (hopefully) conquer them. So, in honor of Halloween, Bitter Lawyer is revealing the spooky truth about real law school monsters.

Five Monsters You Meet In Law School | BITTER LAWYER, Oct. 29, 2009.

Remember this is all in fun. Don't go driving a stake through a classmate's heart or anything. They aren't really ghosts, vampires, and werewolves!

GAO Report on Law School Costs & Diversity

The US Government Accountability Office (GAO) released a 40-page report on Issues Related to Law School Cost and Access. The report consists of slides from a presentation given to the staff of Congressional committees on education.

In this report, in response to a mandate in the Higher Education Opportunity Act,3 we examine the following questions: (1) How do law schools compare with similar professional schools in terms of cost and minority enrollment? (2) What factors, including accreditation, may affect the cost of law school? (3) What factors, including accreditation, may affect minority access to law school?

Three primary findings are reported:

• Since 1994, tuition and fees at dental, law, and medical schools have increased, and trends in minority enrollment have been comparable across types of schools.
• The main factors driving the cost of law school are the move to a more hands-on, resource-intensive approach to legal education and competition among schools for higher rankings.
• Lower average LSAT scores and undergraduate GPAs may have negatively affected some African Americans and Hispanics.

The graph illustrates the increasing level of debt owed by medical and law school students at private (dashed lines) and public (solid lines) universities.

Equality and Justice - Writing Competition

Do you have anything to say about equality and justice?

The Southeast/Southwest People of Color Legal Scholarship Conference is holding a writing competition for law students.

TOPIC: A cutting-edge legal/law and society issue related to the conference theme:
Equality and Justice in the Obama Era. Students may either write about equality or
justice as separate legal issues or their intersectionality.

First prize is $1000 plus an all-expense-paid trip to the conference in March. The submission deadline is Jan. 15, 2009.

Faculty Publication on the Federal Sentencing Guidelines & Tax Crimes

Scott A. Schumacher, Tomko and Sentencing Guidelines After Booker, 125 Tax Notes 149 (2009).

The federal sentencing guidelines attempt to prevent disparities among sentences imposed for the same crime and apply to tax crimes just as they apply to other federal crimes. Professor Schumacher’s recent article discusses several U.S. Supreme Court and Court of Appeals decisions dealing with interpretation of the guidelines and how the lower courts have attempted to apply those interpretations to specific cases.

The recent flurry of sentencing appeals started after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). The Court held that the sentencing guidelines were only advisory. For tax cases, this meant that the former rather rote sentencing, which, under the guidelines, had been based primarily on the amount of tax loss or tax evaded, was opened up to the other considerations outlined in Booker.

Schumacher describes the Third Circuit’s decision in United States v. Tomko, 562 F.3d 558 (3d Cir. 2009), as a struggle “to apply the principles set out by the Supreme Court in determining whether the sentencing judge abused his discretion in imposing a sentence with no term of imprisonment in a tax evasion case.” Had the sentencing guidelines been followed, Tomko’s tax deficiency of $228,557 would have resulted in prison time of 12-18 months. Check out this article to find what the court decided, why, and what this decision might mean for prosecutors and defense lawyers alike.

If you want an even more detailed discussion about how the guidelines impact the tax arena, check out this book co-authored by Professor Schumacher: John A. Townsend et al., Tax Crimes 301-08 (2008). KF6334 .T39 2008 at Classified Stacks

For a copy of the present guidelines, policy statements, and official commentary, all of which are contained in the United States Sentencing Commission Guidelines Manual, visit the United States Sentencing Commission website. That website also links to the proposed amendments the Commission has sent to Congress. You can find the current Manual as well as prior editions in the Gallagher Law Library. KF9685.A15 U55 at Classified Stacks

Faculty Publication on the Role of Hospitals in Credentialing Doctors

Sallie Thieme Sanford, Candor after Kadlec: Why, Despite the Fifth Circuit’s Decision, Hospitals Should Anticipate an Expanded Obligation to Disclose Risky Physician Behavior, 1 Drexel L. Rev. 383 (2009).

As Professor Sanford explains, hospital references play a significant part in the process of approving doctors for hospital privileges. But what happens when these references include partial rather than full information?

In 2002, Kimberly Jones, a healthy thirty-one-year-old, had a routine operation at Kadlec Medical Center in Richland, Washington. During the surgery she suffered massive brain damage, leaving her in a vegetative state. Later, the anesthesiologist, Dr. Berry, admitted to having been drug-impaired during the surgery.

Jones’ family sued Berry and Kadlec for malpractice. Dr. Berry was not an employee of the hospital, but was credentialed to practice there. The trial court ruled that even though he was an independent contractor, he acted as an apparent agent of the hospital and thus Kadlec could be vicariously liable for his actions. Shortly thereafter, the parties settled: the doctor paying $1 million and Kadlec paying $7.5 million.

Kadlec and its insurer then endeavored to recoup their losses. In granting Dr. Berry hospital privileges, Kadlec had relied in part on two strong letters of recommendation from members of his former anesthesia practice group and a short letter from Lakeview Regional Medical Center, his prior hospital, both in Louisiana. The hospital’s letter stated merely that the doctor had been an active member of its staff with anesthesia privileges for the past four years. In reality, Berry had been terminated from the practice group because of concerns about his drug use, which in turn had meant that he could not exercise his hospital privileges.

The trial court held the two doctors liable for their misleading letters and also found Lakeview to be liable for its neutral letter because of the importance of proper credentialing to patient safety. In Kadlec Med. Ctr. v. Lakeview Anesthesia Assocs., 527 F.3d 412 (5th Cir. 2008), cert. denied 129 S. Ct. 631 (2008), the Fifth Circuit disagreed that there was reason to depart from normal employment law analyses as far as the hospital was concerned. It held that the hospital’s letter was not misleading and that Lakeview, under Louisiana law, had no duty to disclose negative information to Kadlec.

After reviewing in detail the facts of this case and the trial court and Fifth Circuit decisions, Professor Sanford looks at the history and present trends in hospital credentialing of physicians. She points out that hospitals are increasingly viewed as having a duty to their patients to monitor those practicing there, whether or not the doctors are hospital employees. She argues that there is a “patient-centered framework” in health law “that views the central purpose of health law as the improvement of patients’ lives, and assumes that automatic application of doctrines from other areas of law is not necessarily appropriate given certain essential features of medicine and treatment relationships.” Thus, she deduces that in the future hospitals will be required to provide more complete information for credentialing, despite the Kadlec decision. The article concludes with Sanford’s suggestions about how hospitals can balance a duty to provide expanded disclosure with fair physician review.

Internet Archive Launches Ebook "Library"

The Internet Archive, home of the Wayback Machine, has launched BookServer, which

allows a wide network of publishers, booksellers, libraries, and even authors to make their catalogs of books available directly to readers through their laptops, phones, netbooks, or dedicated reading devices. BookServer facilitates pay transactions, borrowing books from libraries, and downloading free, publicly accessible books.

Texts are formatted in open book formats for read on a wide range of devices, from Kindles to laptops, game consoles to smartphones.

The keyword search engine retrieves items by author, title, word, or phrase. A search for "law" returned 34,282 hits.

Simply Washington

Curious about our state? Take a look at the Secretary of State's new online book, Simply Washington. It includes basic information about state government, tourist notes (with beautiful photographs), and an assortment of trivia (did you know that Adam West, who played Batman on TV, was from Washington?).

Faculty Publication on Information & Communication Standards

Jane K. Winn, Globalization and Standards: The Logic of Two-Level Games, 5 I/S: J. L. & Pol'y for Info. Soc'y 185 (2009).

Professor Winn’s article addresses the interaction of national and international organizations as they attempt to set technical standards for information and communication technology (ICT). Using Robert Putnam’s “two-level game’ analysis (from his article Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int'l Org. 427, 436 (1988)), she suggests ways that international bodies (Level I) can adopt ICT standards that will satisfy sometimes very different national (Level II) regulatory processes and priorities.

The emergence of global information products and services has led to “regulatory competition" between the United States and the European Union. Winn explains that the two are leaders in establishing ICT standards, but their approaches are based on very different regulatory cultures.

The European Union is a “coordinated market economy,” in which formal processes for developing standards is deemed legitimate. On the other hand, the United States, with its liberal market economy, perceives as legitimate both formal and informal standard-setting groups (such as private consortia that have been active and successful in developing ICT standards in recent decades).

The nimbleness of these private consortia in enacting national standards has repeatedly resulted in their ending up as de facto international standards in the marketplace. But these informal groups concern the European Union because, for instance, their processes are often not transparent nor open to all interested stakeholders. Other regulatory concerns, such as privacy, may also not be specifically addressed. Winn’s article proposes some alternatives that would preserve the agility of the informal processes while ensuring that regulatory concerns are met.

How Important Are Correct Citations Anyway?

Linda Espitia and Gordan Fouche were engaged to be married. Focusing on their transportation needs, the two bought a Harley-Davidson motorcycle together. But the path of love is difficult, so when the two broke up, they entered into a Dissasociation Agreement and Promissary Note. When Fouche defaulted, Espitia sued. Disatisfied with the amount awarded by the trial court, Espitia appealed to the Court of Appeals.

Fouche, who proceeded pro se, did not file a brief. In support of Espitia's argument about her liquidated damages claim, her counsel cited "Buellesbach v. Roob 2005 AP 160 (Ct.App.Dist.I)." However, as the court explains in a lengthy footnote, this Buellesbach decision had nothing to do with liquidated damages. Moreover, the citation, and even the listed court (District I), was incorrect. Here is the Court's response, after it recounted the steps it took to locate the correct decision:

It is a violation of Wis. Stat. Rule 809.19(1)(e) to provide citations which do not conform to the Uniform System of Citation and of Wis. Stat. Rule 809.23(3) to cite to unpublished opinions. One reason may be that they can be time-consuming to locate. A $100 penalty is imposed against Espitia's counsel.

Espitia v. Fouche, 314 Wis.2d 507, 758 N.W.2d 224 (2008). By the way, the lower court's decision was affirmed, so Espitia lost her appeal.

Check out Legal Blog Watch for its discussion of this lawyer's sloppiness.

Washington Legal Research

Planning a research project involving Washington law? The second, 2009 edition of Washington Legal Research, co-authored by Professors Tom Cobb, Mary Hotchkiss, and Julie Heintz-Cho (former Seattle University professor who wrote the first edition), is a good place to start for information about the state’s legal resources.

This paperback book is concise and easy to use. It is designed for first-year law students and covers general research techniques and strategies. There are a number of helpful tables (e.g., a list of common citator phrases with their explanations) and figures (e.g., a case excerpt with the parts of the decision delineated). An appendix covers general legal citation conventions and Washington-specific citation rules.

Professors Cobb and Hotchkiss have rearranged the first edition to follow the research process taught by most law schools, beginning with secondary resources and moving on to primary law sources (statutes, cases, and administrative materials). Each chapter on primary Washington law includes additional information on federal legal research. Citators, legislative history, and digests are also covered. Readers are pointed to both print and online tools.

Whether you are in your first year of law school or just doing your first research project involving Washington law, consider consulting a state legal research guide. This book will get you quickly to the basic resources you will need. It is part of a series that now covers about nineteen states.

Other publishers also produce state guides. The Gallagher Law Library owns most of them and the most recent editions are located in the Reference Area. To locate a particular state legal research guide, run a subject search in the Law Library catalog like this one for a California guide: legal research California.

Selected West Publications on Kindle

According to an Oct. 8th press release, Thomson West is making selected titles available to Kindle users. Among the titles:

• Contracts in a Nutshell, 6th ed.
  
• Guerilla Tactics for Getting the Legal Job of Your Dreams, 2d ed.
  
• International Taxation in a Nutshell, 8th ed.
  
• Law School Without Fear: Strategies for Success, 3d ed.
  
• Making Your Case: The Art of Persuading Judges
  
• Writing a Legal Memo
  

Search Amazon for these and other titles. Then download your purchases to your Kindle or the Kindle app on your iPhone or iPod Touch.

Art and Climate Change

The photos in the Galleria on the law school's first floor dramatically illustrate effects of climate change. The photos were originally mounted for the Three Degrees Conference last spring.

If you're out and about exploring Seattle, you might want to check out a new installation at the Seattle Art Museum's Olympic Sculpture Park: Sculpture park to host UW display on sea level and climate change, University Week, Oct. 8, 2009. Details here.

This work, mounted by SAM and the UW's College of the Environment and Program on Climate Change, illustrates the effects of a one-meter rise in sea level. It will be on view until Oct. 24, the International Day of Climate Action.

Photo: SAM Pocket Beach, from UW Program on Climate Change.

The Nobel Peace Prize 2009

The Nobel Committee has awarded President Barack Obama the Peace Prize "for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples."

Other sitting and former U.S. Presidents that have received the award:

2002 - Jimmy Carter -- former
1919 - Woodrow Wilson -- sitting
1906 - Theodore Roosevelt – sitting

A list of all Nobel peace laureates is here:
http://nobelprize.org/nobel_prizes/peace/laureates/

See also: Coverage by the NY Times, President Obama's full remarks

-- Patrick Flanagan

Campus Rides and Walking Partners

The days are growing shorter, so we've had more questions about campus services to help you get around safely.

• If you want someone to walk with you, call 685-WALK (685-9255).
• NightRide "is a shuttle service that provides a safe and easy way for students, faculty and staff to get home at night. Starting September 30, 2009, shuttles will run every 20 minutes picking up passengers from 6 locations around campus before dropping passengers off at requested destinations within one of two zones."
• The schedule is here.
• The map is here.
• Dial-a-Ride "is a free shuttle service available to University of Washington students, faculty, staff, and University-sponsored conference attendees with permanent or temporary disabilities that limit mobility. Transportation is only available between designated locations at University facilities located on campus and in the University District."
  
  

First Monday in October . . . in London

Britain's Supreme Court heard its first case Monday - an appeal by five terrorism suspects who say the British government has overstepped its power by freezing their assets without a conviction.

For hundreds of years, Britain's highest court of appeal had been the Law Lords, a group of justices who were part of the House of Lords in Parliament. The decision to create a Supreme Court was meant to emphasize the separation of governmental powers, even if the change is largely in name and location only.

The 12 justices are no longer part of the House of Lords but are still Britain's most powerful judges. Shedding their past image, they wore no wigs, no robes and sat in a new courtroom equipped with cameras and microphones for their first hearing.

A bit of trivia – the official emblem incorporates 4 plants, representing the jurisdictions within the UK: the English rose, Welsh leek, Scottish thistle, and Northern Irish flax. Click here for more on the emblem, and to read a commemorative poem and some of the quotes engraved in the Law Library.

“Law is order and good law is good order” - Aristotle

President Declares Information Literacy Awareness Month

On Oct. 1st, President Barack Obama issued a proclamation declaring October
National Information Literacy Awareness Month.

The President states:

This month, we dedicate ourselves to increasing information literacy awareness so that all citizens understand its vital importance. An informed and educated citizenry is essential to the functioning of our modern democratic society, and I encourage educational and community institutions across the country to help Americans find and evaluate the information they seek, in all its forms.

"Rather than merely possessing data, we must also learn the skills necessary to acquire, collate, and evaluate information for any situation."

And who has the skills to help you acquire and evaluate information? I can think of one honorable profession, practiced by the helpful team of people who reside in the foundation of the School of Law: Librarians!

Thanks for the indirect shout-out, Mr. President!

CIA Center on Climate Change and National Security

According to a 9/25/09 press release, the Central Intelligence Agency is launching a Center on Climate Change and National Security. “Its charter is not the science of climate change, but the national security impact of phenomena such as desertification, rising sea levels, population shifts, and heightened competition for natural resources. The Center will provide support to American policymakers as they negotiate, implement, and verify international agreements on environmental issues.”

Returning Course Reserves

Items you check out from Course Reserve, the Reference Area, and the Reference Office are on short-term loan, usually 4 hours. This limited loan period is necessary because of the high demand for material from these locations.

Please return these items to the Circulation Desk or the book drop outside the Library entrance on Floor L1.

Circulation staff retrieve materials from the outside book drops only a couple of times a day. If you return short-term loan items to an outside book drop, they may not be picked up for several hours, resulting in overdue fines.

Questions? Talk with a full-time member of the Circulation staff. Thanks.