Race in the Criminal Justice System: Video from 9th Circuit

African Americans and other people of color are overrepresented in our nation's prisons compared with their numbers in the general population. A large number of factors are involved, including police practices, prosecution, and sentencing.

This year's Ninth Circuit Judicial Conference (a meeting of judges and court staff) included a 90-minute panel on the issue (Aug. 15, 2012). The panel, What Color is Justice: Racial Disparities in the Criminal Process, is available on YouTube.



The moderator, who introduces the topic, is former district judge Nancy Gertner, who now teaches at Harvard Law School. The other speakers are:

• Judge Ruben Castillo (D. N. Ill.), who was the first Hispanic judge on the Federal Sentencing Commission
• Prof. Sonja Starr, Univ. of Michigan School of Law, and
• Prof. Bryan Stephenson who teaches at NYU and also serves at the executive director of the Equal Justice Initiative, which he founded.

For more on this topic, see Bryan Stephenson's TED Talk, We Need to Talk About an Injustice (March 2012) and material cited in our guide, Race in the Criminal Justice System.

E-Book Readers and Privacy

The Electronic Frontier Foundation (EFF) has released Who'sTracking Your Reading Habits? An E-Book Buyer's Guide to Privacy, 2012 Edition. EFF looked at the policies of Google Books, Amazon Kindle, Barnes & Noble Nook, Kobo, Sony, Overdrive, Indiebound, Internet Archive, and Adobe Content Server and created a chart with answers to the following questions:

  •Can they keep track of searches for books?

 •Can they monitor what you're reading and how you're reading it after purchase and link that information back to you? Can they do that when the e-book is obtained elsewhere?

 •What compatibility does the device have with books not purchased from an associated eBook store?

 •Do they keep a record of book purchases? Can they track book purchases or acquisitions made from other sources?

 •With whom can they share the information collected in non-aggregated form?

 •Do they have mechanisms for customers to access, correct, or delete the information?

 •Can they share information outside the company without the customer's consent?

Avvo: Crowdsourcing Legal Advice

Avvo.com is an online directory of lawyers (and doctors, but this post will focus on the lawyers) that adds some social media features. For instance, lawyers can claim their profiles and add biographical information; clients can comment on their lawyers; and lawyers can comment on their colleagues. Lawyers may also buy advertising on the site.

Avvo has a forum where people can post legal questions to be answered by lawyers. Users can also search or browse past questions and answers.

Why do lawyers answer these questions? It's probably a mix of marketing and public service. (When I see a trademark lawyer from one state answering an animal law question from another state, I assume that the lawyer is just trying to help out, not build her practice.)

Why do people ask questions on Avvo? Avvo tells them that it's free, it's easy, and it's anonymous—an attractive combination. The fact that so many people ask so many questions* is an indication of ordinary people's great need for help figuring out their legal problems. This online forum is addressing that need, even though it doesn't pretend to be the whole answer (indeed, the lawyers who use Avvo hope that the forum leads at least some of the people to hire someone to help more).

Now Avvo has an iPad and iPhone app to help lawyers keep up with questions posted in their subject areas and jurisdictions. I tried it out because I was curious about the app (not because I have a law practice I want to promote). I signed up for animal law in any jurisdiction, and family law in Washington. (You can choose particular counties within a state, too—for instance, if you just wanted to watch for questions from King County and Snohomish County.) Within a short time, I had list of questions people had posted about dog bites, child custody, and parental rights. Later, I modified my list, changing some topics and jurisdictions. Lawyers who want to increase their visibility on Avvo would find this app useful.

Law students and law professors might find the forum interesting too. If you want to step down from the heights of appellate decisions and see unedited legal issues faced by real people, spend a little time browsing the site. Here is a samping of questions:

• [immigration] On form N-400 do I put "single, never married" if I'm in a civil union partnership?
• [torts, civil procedure] Can a personal injury claim be filed quite a bit later than an incident happened?
• [employment discrimination] How to build a discrimination case? I would appreciate tips from labor attorneys as I am trying to asses if I have a case. [The writer goes on to supply details.]
• [bankruptcy, landlord-tenant] Landlord going into foreclosure? I've heard talk from other tenants in our small apartment complex that the landlord hasn't been paying and is going to be foreclosed on. What can we do?
• [criminal law] Criminal Defense INTENT TO SELL

Reading questions in a subject you're studying can help you with issue spotting. Read the attorneys' responses—would you have answered that way? If several lawyers answered one question, which response do you think is most helpful?

If you're dreaming of having your own law office one day, think about how you would respond to these questions if you were doing client intake: what would you say to prospective clients who called with these questions? If you were trying to market your practice, would you budget some time every week to respond to questions that had been posted? _____________ * More than a million questions have been posted in the last year, Avvo says. Avvo Unveils iPhone and iPad App for Lawyers, Robert Ambrogi's Law Sites, Nov. 19, 2012.

Affordable Care Act Regulations

The Affordable Care Act is a long, complex statute (898 pages, as amended!), but there's more law to come, as federal and state agencies develop regulations and guidance documents.

Timothy Jost, a law professor at Washington & Lee, wrote a summary of (and linked to) proposed rules and other materials released yesterday: Timothy Jost, Implementing Health Reform: The Dam Bursts, Health Affairs Blog, Nov. 21, 2012.

These proposed regs are so new that they aren't even in the Federal Register yet. Jost links to PDFs on the website of the Office of the Federal Register, but it might be a few days before they are published with Fed. Reg. citations.

The Health Affairs Blog is a good source to watch for current developments in health reform. The blog is an online service of Health Affairs, a journal available in print and online.

Convenient Copies of Federal Statutes

Compilations of many landmark federal statutes are now available on the web. To explain why this will be so handy for researchers, I have to give a little background first.

Federal laws are first published in chronological order in United States Statutes at Large (Stat.). Most of them (those with permanent and continuing effect) are codified in the United States Code (U.S.C.).

Even though most of us use the U.S.C. for research, you often see and hear citations to the original public laws—section 8(a)(a) of the National Labor Relations Act, section 703 of the Civil Rights Act, and so on. Why?

Congress has enacted some titles of the United States Code into positive law; other titles are just "prima facie evidence" of the law. For many laws, the original session law is the official version—and those laws are referred to by the section numbers in the original law. If there is any variance between the U.S.C. and Stat. versions of a law, the Stat. version controls. As a practical matter, you will often use and cite the U.S.C. version, but you need to be aware of the Stat. version.

Some statutes that are cited by their original section numbers have been amended a lot. For instance, the Social Security Act, originally enacted in 1935, has been amended hundreds of times. Here's just the beginning of a list (from the U.S.C.A. Popular Names Table on Westlaw):

It would be a big nuisance to have to sort through all those enactments in Stat. every time you wanted to refer to a given section. That's why the House of Representatives Office of the Legislative Counsel has for many years created compilations of major acts (including the Social Security Act) that merge all the amendments. These compilations are just a convenience—the official source is still Stat.—but who doesn't value a little convenience now and then?

Recently the Office of the Legislative Counsel has posted PDFs of many of the most requested compilations. If you're working in an area of law, you can download the statutes you refer to most often.

The Patient Protection and Affordable Care Act, which was just enacted in 2010, has already been amended five times, so the compilation (which includes the amendments) can save you a lot of time.

The compilations include statutes from many fields, including:

• securities (Securities Act of 1933, Securities Exchange Act of 1934, Sarbanes Oxley, Dodd-Frank)
• employment and labor (Civil Rights Act of 1964, National Labor Relations Act, Americans with Disabilities Act)
• environmental law (Superfund Act (CERCLA), Clearn Air Act, Clean Water Act)
• consumer law (Consumer Credit Protection Act, Consumer Product Safety Act, Fair Credit Reporting Act)

Remember that the compilations are not official, and be sure to note how current they are so you can check for amending statutes passed after that date.

If you want to read more about codification of federal statutes, see Mary Whisner, The United States Code, Prima Facie Evidence, and Positive Law, 101 Law Libr. J. 545 (2009).

UW Law Professor Peter Nicolas Writes First Legal Textbook on the Constitutional Law of Sexual Orientation

UW’s own Jeffrey & Susan Brotman Endowed Professor of Law, Peter Nicolas, has just published Sexual Orientation, Gender Identity and the Constitution, the first law school textbook of its kind.  The book, which blends cases, problems, textual narrative, and explanatory notes, fills a surprising gap in legal scholarship, considering the increasing importance of LGBTQ rights as a political and legal issue in recent years.

Before now, no constitutional law textbook had dealt solely with sexual orientation and gender identity.  General constitutional law textbooks often omit or heavily edit important cases in this area, especially those from lower federal courts and state courts.  (The constitutional law in this area goes far beyond Lawrence v. Texas.)  Meanwhile, books on sexual orientation, gender identity, and the law have not been written solely with regard to constitutional law, and therefore have not addressed constitutional issues with the depth of Professor Nicolas’ text. 

In addition, Sexual Orientation, Gender Identity and the Constitution stands alone among either type of book in addressing at length the many procedural obstacles that confront litigators wishing for a court to consider constitutional arguments in a given case involving discrimination against LGBTQ individuals. 

This latter aspect of the book may prove especially beneficial to law students.  As a general matter, courts will only consider the constitutionality of a given law or state action if the case cannot be decided on any other ground.  Yet, the instruction of constitutional law often does not focus on the common procedural problems that prevent courts from considering important constitutional questions.  Professor Nicolas spends nearly 80 pages of the text addressing these procedural issues, which include standing, mootness, abstention, and jurisdiction stripping.

Sexual Orientation, Gender Identity and the Constitution will be available soon at Gallagher.  You can check on its availability here. 

DOJ & SEC publish guide to the Foreign Corrupt Practices Act (FCPA)

The Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have finally published what has been touted by many as "a much-anticipated memo that clarifies the scope of enforcement of the U.S. Foreign Corrupt Practices Act".  This 120 page document is an attempt to finally provide a thorough and comprehensive explanation of how and why the government enforces this Act.

For a more basic overview of the FCPA, click here and for information regarding the history of the Act and its various amendments, see a Congressional Research Report updated this year on the topic.

This announcement is particularly timely given the recent news coverage concerning Walmart's potential violations of this Act at its operations in Brazil, India and China, not to mention ongoing investigations by the U.S. Department of Justice and the SEC regarding Walmart and bribery allegations in Mexico. 

Hat tip to the BLT: Blog of Legal Times for bringing this to our attention.

Copyright Developments

The past few weeks have been busy in the world of copyright law. Because it’s not every week that copyright enters the public domain (a bad joke that copyright term extension has made a sobering reality), I thought I’d run through a few of the highlights for you.

First, the Supreme Court heard oral arguments in a case, Kirtsaeng v. John Wiley & Sons, Inc.,  involving the first sale doctrine and foreign works. Essentially, the question is whether U.S. copyright holders can prevent the importation of foreign-made products into the domestic marketplace. The answer will have widespread implications across the publishing world that could affect even libraries. You can follow the case at SCOTUSblog.

Next, the Register of Copyrights and the Librarian of Congress recently announced five new exemptions to § 1201 of the Copyright Act, which prohibits circumvention of Digital Rights Management (DRM) technologies. The exemptions (explained at 77 Fed. Reg. 65260) include using software to “jailbreak” cell phones -- but not tablets -- under certain conditions, using audio reading software on ebooks for sight-impaired individuals, and breaking DRM for criticism of movies and other educational purposes.

Finally, litigation involving the HathiTrust, a partnership of libraries that has teamed with Google to create a searchable digital library of scanned books that are accessible to the blind, came to an end in the Southern District of New York. The court ruled in favor of HathiTrust, stating that the group’s use of the copyrighted works was fair. The copyright holders have already filed an appeal to the Second Circuit.

For more information on performing research in copyright law, check out the Law Library’s “Research in Copyright Law” guide.

As we near the Thanksgiving holiday, I’d like to give thanks for that copyright issues are getting some major publicity these days. This kind of exposure is always a fair use of news to me.

Louie, Louie (Brandeis, that is)

Today is the birthday of Louis Brandeis (1856-1941), lawyer, reformer, Zionist, and Supreme Court Justice.

If you'd like to learn a great deal about Brandeis, see Melvin I. Urofsky, Louis D. Brandeis: A Life (KF8745.B67 U749 2009 at Good Reads; catalog record; publisher's page). At 976 pages, this impressive biography takes a while. (I've been reading it for a few weeks and have just gotten to the part about his role in Muller v. Oregon, 208 U.S. 412 (1908).)


If you'd like something a little shorter (for now), see profiles on Biography.com, the Supreme Court Historical Society website, Brandeis University's site for its Legacy Fund for Social Justice, and the Oyez Project. The Brandeis University profile includes a sidebar with inspiring quotations, e.g.:

"We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both."

and

“The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.”

By the way, there was a campaign to make "Louie Louie" the state song of Washington. The State Department of Transportation lists it as the "State Rock Song (unofficial)." While interpretations of the lyrics vary, it's pretty clear that they have nothing to do with Justice Brandeis.

Library Hours for Thanksgiving Holiday

The Law Library hours of operation during the week of November 19 will be adjusted in light of the Thanksgiving holiday.

Nov. 21, Wednesday
Library open 8am - 12noon
Reference Office open 9am - 12noon

Nov. 22 - 24, Thursday - Saturday
Library & Reference Office closed

Nov. 25, Sunday
Library & Reference Office regular hours resume.

As President Obama noted in his 2011 Proclamation on Thanksgiving Day:

As we come together with friends, family, and neighbors to celebrate,

 let us set aside our daily concerns

 and give thanks for the providence bestowed upon us.

[Image credit: Microsoft Images.]

Library Hours for Nov. 12

Monday, Nov. 12, the University of Washington observes Veterans Day as a holiday.

Thanks to the men and women who have served and are serving their nation in the armed forces.

The Law Library will be open from 8am - 5pm and the Reference Office will be open from 1 - 4pm.

Regular hours resume on Tuesday, Nov. 13.

Climate Change and the Law

The Congressional Research Service recently published a report on Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future (34 pages).

Here is the table of contents:

Remember, Remember Today

On this day 407 years ago, Guy Fawkes attempted a plot against King James I and the English Parliament but was unsuccessful and paid for his actions with his life. Although this country barely bats an eye at the treasonous Gunpowder Plot, England treats the day as an unofficial holiday, replete with fireworks, revelry, and burning effigies of Mr. Fawkes. Even though the old rhyme admonishes listeners to "remember, remember, the 5th of November," I've had so much trouble remembering the date myself over the years -- I even forgot it when I was in England on the actual date -- that I made it a point this year to write about it.

In an attempt to learn more about the legal aspects of The Gunpowder Plot, I came across a post from Lawfare, a blog on national security issues, that describes the commemoration as “one of the few–if not the only–holidays that mark the failure of non-state actors to bring down the symbols of state regimes.” The Gunpowder Plot raises all sorts of issues relating to national security today, from terrorism to torture, and it’s no wonder that the incident formed left such a lasting impression on the British conscience. Even Shakespeare took notice!

Pressing further, I located two books relating to Guy Fawkes in the Gallagher collection. The first, Trial of Guy Fawkes and Others (The Gunpowder Plot), focuses exclusively on the infamous incident, while the other work, The Anatomy of Villainy, devotes merely a single chapter to Mr. Fawkes as only one in a series of historical ne’er-do-wells. 

http://goo.gl/C4CFO

You may remember that Guy Fawkes received some attention on this side of the pond around this time last year, when Occupy Wall Street protesters used Guy Fawkes masks from V for Vendetta to symbolize resistance to oppression. Although Guy Fawkes Day is celebrated an ocean away, the incident remains relevant today and raises many questions for governments to consider with respect to the relationship between states and their citizens.

New Display: Remembering Judge Betty Binns Fletcher

Next time you are walking into the library, take a few moments to look at Gallagher's newest display remembering the life of Judge Betty Binns Fletcher. Judge Fletcher, a Ninth Circuit judge and University of Washington School of Law graduate, passed away in October.

Over the years, Gallagher Law Library has collected news clippings, photographs, and other memorabilia about Judge Fletcher. The display contains a number of these items, including the program from her investiture ceremony in 1979.

Interested in learning more about Judge Fletcher? The library's Judge Betty Binns Fletcher page contains links to articles by and about her.