The Fine Art of Writing Supreme Court Opinions

With so much attention justifiably focused on the Supreme Court this week, it is worth considering how Supreme Court opinions are drafted.  The public assumes that the justices write their opinions themselves, but most lawyers know that what actually happens is very different.  Forrest Wickman's column in Slate sheds some light on the inner workings of the Court, and might be worth sharing with students in Advanced Legal Research courses.   

Wickman speaks in mostly general terms about the opinion-writing process because there is a "code of secrecy" that governs it and most of the other internal workings of the Court.  (We certainly know that the code of secrecy is alive and well based on the fact that there were few or no leaks about how the Court would rule today in the Affordable Care Act case.  The only leak that I heard was that Chief Justice John Roberts would write the opinion, which turned out to be true.  I think most commentators believed the Court would find the Act unconstitutional in whole or in part.)  What we know is that "justices are responsible for the substance of their opinions in each case, [but] their clerks usually do the majority of the writing."  Wickman refers to the Sorcerers' Apprentices, a recent book that

found that about 30 percent of the opinions issued by the Supreme Court are almost entirely the work of law clerks, with clerks responsible for the majority of the court's output.  This is a relatively recent development:  The Supreme Court began to institute clerks only in the 1890s, but by the mid-20th century they were already playing a significant role in drafting opinions. 

Once a case has been argued and an initial vote taken by the Court, one of the justices is selected to be responsible for the opinion, and Wickman discusses how this decision is made.  Justice Scalia sometimes writes decisions himself, but most of the other justices assign one of their four clerks to write the first draft of the opinion.  (Chief Justice Roberts has five clerks by virtue of his office).  The justice will direct the clerk to a greater or lesser extent, and then the clerk will begin the drafting process, which "may involve painstaking research and working nights and weekends."  The clerks arrive at the Supreme Court expecting to work hard and they do; after their clerkships, however, they are much in demand at law schools and law firms and their hard work pays off.  Another intangible benefit must be the opportunity for clerks to have a lot of influence on our legal system so early in their careers.  It must be a very heady experience.

After the clerk submits the first draft, the justice reads it and may request small revisions or wholesale rewriting.  Once it passes the justice's muster, it is transmitted to the other justices, and this may lead to more revisions.  If there are concurrences and/or dissents, they too are circulated.  Eventually each opinion gets one last proofreading from the staff of the Court, citations are checked, and a syllabus is prepared for the majority opinion (also reviewed by the justices and clerks).  The opinion is posted on the Supreme Court's website and printed as a slip opinion.  Further corrections and changes may be caught before the official United States Reports volume is printed.  Some commentators feel that the clerks "have contributed to a decline in the quality of the court's writing," but it's hard to be sure whether that observation is true.

The illustration is a fragment of Chief Justice John Marshall's handwritten opinion in Marbury v. Madison, 5 U.S. 137 (1803).  It comes from the Exploring Constitutional Law website, which is a service of the University of Missouri-Kansas City Law School.

Where to begin? Judges Gone Wild!

There are so many hot stories today:

The Supreme Court just announced its 5-4 decision on the Affordable Care (Health Care) law... ABC News site
and a PDF of the decision)
The firestorm of criticism over Justice Scalia's bitter dissent and announced diatribe following the Arizona Immigration decision... Toobin in The New Yorker is really mild, actually. What was surprising was when Judge Posner came out swinging on Slate!)

But what I figure there will be plenty of time to chew these over & lots of folks chewing... what really want to focus on is:

Judges Searching on the Internet

The Boston Globe ran an interesting story, both on its online Brainiac blog and eventually in its Sunday Ideas print section. The story, by Josh Rothman, is actually distilled from a scholarly law review article by Alison Orr Larsen, "Confronting Supreme Court Fact Finding," forthcoming in the Virginia Law Review. Apparently, Supreme Court justices, and judges at all levels are finding it nearly irresistible to pop onto the Internet to flesh out the information they are given in the briefs and arguments by the parties.

On the one hand, you can look at some of the online research as "taking judicial notice of publicly known facts." It's also fed by the way all law students and lawyers are taught to write. We feel the NEED to provide a citation to back up ALL our statements. So if a judge wants to say the sky is blue, he or she feels nearly compelled to find some authoritative-sounding statement somewhere to support that comment.

But it goes much farther than that. We all know -- especially librarians! -- how seductive it can be to do a little research.

But! This research is in such a different context. When statements and facts are suddenly being introduced, with no ability for parties to examine the source's:

1. Authority or accuracy -- nobody can cross-examine the "witness" when Judge X or Justice Z googles for some info!

2. Fairness -- no lawyer can stand up and object, "Your honor, that is prejudicial to my client, and filled with innuendo!" Just consider that this fact-finding amounts to evidence, and may be hearsay!

3. Impermanent Nature.... The webpage relied upon by Justice Z or Judge X may not look the same or even exist the next day when other justices or the parties want to go and look at it. Librarians and scholars of the Internet call this link-rot. And it is a very poor way to write an opinion, and especially unfair to the parties and to later courts and researchers who may not be able to locate the page at all or in the form that it was used for the decision.

The American Bar Association has actually provided quite an excellent opinion on the matter: Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case? by David H. Tennant and Laurie M. Seal. The opinion goes into considerably more detail than this brief blog post. It also links the reader to the Ethics Rules, The Code of Conduct for United States Judges and the American Bar Association's Model Code of Judicial Conduct. None of these codes specifically mention searching the Internet, but the authors do pull out of the language and commentary some guidance on the matter that seems very helpful. The ABA Model Code of Judicial Conduct, Canon 3, for instance,

("A judge shall perform the duties of judicial office impartially and diligently") The commentary to that canon states, "A judge must not independently investigate facts in a case and must consider only the evidence presented." This comment suggests that judges who obtain information from the Internet and apply the information in resolving factual disputes may be acting inappropriately

The authors also go on to alert the readers very helpfully that

The ABA Joint Commission to Evaluate the Model Code of Judicial Conduct has recently proposed a revision to the Model Code that more specifically restricts judges from accessing the Internet. The Commission's 2004 draft of the Model Code states within its rule 2.09 that "a judge shall not independently investigate facts in a case." The commentary to that rule provides as follows: "The prohibition against a judge investigating the facts of a case independently or through a member of the judge's staff extends to information available in all mediums including electronic access."

Note that I have removed some footnote references from within the text that I am presenting here, in order to make it easier to post to a blog. If you are interested in this topic, I highly recommend following the link to the full report, which is excellent, and not overwhelming.

The illustration of the line of British judges in their new brilliant red robes and wigs marching in what looks suspiciously like a prisoner line is from a story in the Guardian http://www.guardian.co.uk/uk/the-northerner/2012/jan/10/judgebeatricebolton-alsatian

Eric Holder on the hot seat

The Boston Globe Opinion page today, Sunday, June 24, 2012, has an excellent essay by Carol Rose and Matthew Segal both of the ACLU of Massachusetts. (you may need log-in to access; try googling for it on the Internet if this link does not work for you)

U.S. Attorney General Eric Holder is coming to Boston next Tuesday to give a speech at a civil rights symposium. The writers note that he has been recommended to be cited for contempt of Congress, and they call upon him to “do the right thing,” and then explain what they mean by that. They also precede that by praising him for the good things he is doing right already, in their opinion.

Here are their points with links to legal documents which support or illumine the matters:
I. Hooray for Holder:

A. Generally transformed the widely discredited Justice Department into an agency that has been doing good work upholding the rights of ordinary people, viz:

B. Refused to defend the federal Defense of Marriage Act (DOMA)

DOMA text. PL 104-199, 110 Stat. 2419 and 2420, 1 USC Chapter 1 and 28 U.S.C. Chapter 115

1. Massachusetts v. Department of Health and Human Services
for all filings and decision in full text

2. Wikipedia has a nice, clear discussion about the case, but be sure to check the edits history to be sure you are looking at a version that has not been vandalized. In this court case (companion case to Gill v. Office of Personnel Management (OPM), filed by GLAD in the same Federal District Court for Eastern Massachusetts, plaintiff same-sex couples argue that the federal DOMA law prevents them from being treated on an equal basis as other couples legally married in Massachusetts. For instance, under this law, same sex couples may not use the jointly married tax status, which can save couples a good amount of money on income taxes. The surviving spouse may not claim Social Security benefits. And federal employees may not share any of their employment benefits with same sex spouses, such as health insurance coverage. It meant a good deal that the Justice Department, under Attorney General Holder, refused to defend DOMA in these cases.

C. Challenged the Arizona immigrant profiling law: Arizona v. United States for full text of documents, some links to press coverage and transcript and audio of oral arguments; opinions as they become available.

D. In other civil rights areas, Holder deserves credit:

1. Voting rights – In March, 2012, for instance, Holder used his powers under the Voting Rights Act of 1965 to block enforcement of a new law in Texas that would require voters to show identification at the polls. Critics considered it would disproportionately deny Hispanics and other marginalized populations the right to vote. According to the article in Ms. Magazine, “[L]ast year, 34 state legislatures, mostly GOP-led, introduced strict ID laws, and seven states–Alabama, Kansas, Rhode Island, South Carolina, Tennessee, Texas and Wisconsin–enacted them.” Here is a link listing all the consent decrees and settlements the Justice Department details under its work under Voting Rights at its website. There are no cases listed since 2009.

2. Police practices

a. Maricopa Sheriff’s office where discriminatory practices against Latino citizens and prisoners were a problem, and then retaliatory actions against critics became a problem. May, 2012.

b. New Orleans, LA, prison system, prisoner safety, health, well-being, including rape, prisoner-on-prisoner violence and officer misconduct. 2011 – 2012.

c. Berkeley county Sheriff’s Office and Berkeley County Detention Center Charleston, S.C., consent decree to provide access to prisoners to receive Prison Legal News and religious publications. April, 2012.

d. Sharpe v. Baltimore City Police Department, statements and correspondence regarding case over whether individuals have a First Amendment right to record police in the completion of their duties. (Jan. and May 2012)

3. Racial justice

a. (see Maricopa Sheriff case above – racial profiling)

b. Justice warns Los Angeles Police Department on racial profiling, November, 2010

c. Agreement with University of San Diego to protect African American students from harassment on campus (together with Dept. of Education) April, 2012.

4. Fair sentencing – under the new Fair Sentencing Act, P.L. 111-220, 124 Stat. 2372, Justice Department lawyers ultimately argued to the Supreme Court for a less strict reading of the timing of the new law, allowing judges sentencing crack cocaine defendants to use the new guidelines earlier. This also should be credited under “racial justice.”

II. BUT the authors of this essay criticize Attorney General Holder, and the Justice Department. He made a vow during his confirmation hearing . Critics thought that since he was already a Justice Department official, he would be too ready to cater to the Obama administration’s desires. In his confirmation hearings, Holder, promised to “do the right thing,” rather than the easy thing, by giving in to the administration. He promised to he would make decisions as Attorney General regardless of “…the impact that it’s going to have on the administration that you serve…” because the attorney general must keep some distance from the other executive branch officials, “even from the president that the attorney general serves.”

The authors give Holder credit for trying to keep that promise in the early days as Attorney General. But say that he quickly changes his methods. Here is a list of FAILS:

FAIL 1: Close Guantanamo – Both Holder and Obama backed off in the face of Congressional opposition.

FAIL 2: Release top-level Bush-era torture documents – abandoned promise after Congressional opposition.

FAIL 3: Try torture suspects in civilian courts instead of military tribunals – Holder abandoned this, as well.

The authors now note that Holder has moved so far into the Obama administration’s pocket that he is now arguing to expand presidential powers:

Pocket 1: Suggest that a presidential signing statement excused President Obama signing the National Defense Authorization Act of 2012, P.L. 112-81

Signing statement text.

Litigation to block the bill: Hedges et al., v. Obama et al., (S.D. NY)

8 page memorandum decision from Judge Forrest.

a few articles: N.Y. Times, L.A. Times.


Pocket 2: Endorse presidential prerogative to target and assassinate civilians

Pocket 3: Justice Department under Holder has overseen an expansion of domestic surveillance

Pocket 4: Increasing militarization of law enforcement

Pocket 5: Justice has aggressively pursued government whistleblowers, “Particularly those who expose illegal or wasteful homeland security schemes.” (quoting Boston Globe essay).

. Pocket 6: Justice Department has expanded state secrets doctrine to prevent courts from reviewing warrantless wiretapping or official acts of torture. and a more recent article here.


And now, the “Fast and Furious” scandal for which Holder has been recommended to be held in contempt of Congress.

A. “Fast and Furious” was a sting operation run out of Phoenix, Arizona between 2009 and 2011, with the approval of the U.S. Attorney in Phoenix. Alcohol, Tobacco and Firearms agents purposely did not intercept more than 2,000 weapons they knew were being purchased at gunshops by illegal buyers. They intended to trace the weapons, but lost track of them. Many have since surfaced at crime scenes in Mexico and the United States. But the crime scene that turned the problem in to a firestorm was the murder of border patrol agent Brian Terry

B. The contempt citation is over an unwillingness to turn over material to Congress. There are allegations that some members of Congress are making personal attacks against Holder and using the issue as an election year bludgeon against the President. The vote marks only the third time in 30 years that an Attorney General has been held in contempt of Congress.

3. Joint House Report on Fast and Furious

Libraries of Dublin

The image above is of the cages for readers at Archbishop Marsh’s Library, still looking much as they did in 1701.  The skull adds a nice touch, don't you think?

Our recent trip to Ireland turned out to be something of a busman’s holiday for my librarian husband and me.  In Dublin, we made the obligatory trip to Trinity College to see the Book of Kells, but we also visited the National Library of Ireland, Archbishop Marsh’s Library, and the Chester Beatty Library; these three libraries, also in Dublin, are not a typical tourist destination (i.e., we saw no tour buses parked outside), but are well worth a visit even if you're not a librarian.  

The National Library of Ireland is housed in a stunning nineteenth-century building, one of the good things the English did for Ireland, as a guard told me.  The reading room is very handsome, but the collection is very much out of date, and the whole facility is in need of updating and sprucing up.  Not surprisingly, there are many sources, both print and online, for genealogical research.  In the ground-floor gallery, there was a major, comprehensive exhibit devoted to William Butler Yeats, one of Ireland’s greatest poets.  I wish I had had more time to devote to it. 

To be honest, I was a bit disappointed with Trinity College.  We waited in line about twenty minutes to buy tickets so that we could see the Book of Kells, which I hear is not bad compared to the waiting time in high season.  There is an exhibit in the space leading up to the case where the Book of Kells is displayed, but it was so crowded that it was difficult to see, let alone read, the signage.  The display case itself isn’t particularly well designed to facilitate traffic, and there was a huge cluster of people leaning over the Book of Kells; between the crowds and the (appropriately) low lighting, it was hard to see much.  Nor could I linger as long as I would have liked.  It was, however, a thrill to see the actual physical volume which embodies so much history. 

We then proceeded upstairs to the Long Room of the Trinity College Library, and were treated to a special exhibit on the history of the Old Library, which was founded in 1592 by charter of Queen Elizabeth.  Rare books and manuscripts that are significant to the development of the collection of the Old Library are on display, as are artifacts relating to the construction of the Library.  Most of the visitors didn’t linger over the display cases, so we had a chance to look around and talk to the very friendly guards, who were proud of the beautiful facility where they worked and happy to answer our questions.  For instance, we learned that starting in 1845, all of the Library’s porters (i.e., shelvers) had to take an oath before a magistrate that they would safeguard the collection.  The porters started out as cleaners in 1708, but in 1732, when the Library moved into its new building, the porters assumed new duties pulling books for readers, reshelving, and supervising readers who had to sit in certain designated areas in the Long Room.  At first, readers sat in bays between the windows, but eventually, large tables were installed in the middle of the Long Room, and this is where readers had to sit.  According to a regulation promulgated in 1842, only the porters were allowed to retrieve books for readers.  All of the readers had to be registered, and they too had to take an oath that they would handle the materials with care.   

Trinity College Library began to experience space issues fairly early in its history, and the problem was exacerbated when it became a legal depository library in 1801, a status it retains today; Trinity College receives a copy of every book printed in Ireland and the United Kingdom and it has the largest collection of any library in Ireland.  To deal with the space constraints, James Henthorn Todd (1805-1869), the visionary library director and respected scholar, devised what I think might be the earliest version of compact shelving of at least the earliest of which I am aware.  Todd removed the tables between the window bays in the Long Room and installed bookcases in the space; these bookcases were hinged and swung out on metal tracks, allowing storage of twice the books in the same space.  Some are still operational and in use today.  Another way space was conserved was shelving books by size, oversize books at the bottom, smallest books on top, just as is done today in mass book storage facilities.  Todd is known for several other accomplishments in addition to his ingenious shelving innovation.  It was he who turned Trinity College into a major research library and expanded readership beyond the College itself.  He appointed catalogers and asked foreign scholars to assist the catalogers in their work.  In fact, Todd considered his greatest achievement to be the printed catalog of the collection.  Librarians who visit Trinity College Library should be sure to visit the gift shop, which is full of library-related merchandise and has a robust online presence.

Archbishop Marsh’s Library was built in 1701 and was Ireland’s first public library.  Because the Library was founded by a clergyman, it is not surprising that its collection (about 25,000 books, most from the 16^th, 17^th, and 18^th centuries, and about 300 manuscripts) is very strong in religious works.  However, it also includes books on medicine, law, science, travel, navigation, mathematics, music, surveying, and classical literature, some printed by the earliest English printers.  During our visit, digitization projects were under way in a public area, and we also saw conservation work being done on the premises.  What was particularly fascinating was the Library’s appearance—it has barely changed in over 300 years.  To quote the Library’s brochure,

The interior of the Library, with its beautiful dark oak bookcases each with carved and lettered gables, topped by a mitre, and the three elegant wired alcoves or “cages” where the readers were locked with rare books, remains unchanged since it was built three hundred years ago.  It is a magnificent example of a seventeenth century scholars’ library.  Originally many of the books were chained.  Each book had a small metal clasp attached to a chain on the end of which was a ring, which ran on a wooden rod attached to each shelf. 

We were the only visitors and this meant we could take our time, linger over the nicely displayed special exhibit (Marvels of Science), and enjoy the peaceful surroundings.  Archbishop Marsh’s Library is near St. Patrick’s Cathedral and was used by Jonathan Swift when he was Dean of St. Patrick’s; he also served as governor of the Library.  Marsh’s Library has a small exhibit devoted to Swift, which features his death mask and other memorabilia, as well as first editions of A Tale of a Tub and Gulliver’s Travels, and complements what is on display at St. Patrick’s.

Finally, we visited the Chester Beatty Library, which is part of the Dublin Castle complex and housed in a renovated eighteenth-century building.  Beatty (1875-1968) was a wealthy American industrialist who moved to England and later settled in Ireland.  Beatty collected widely, including manuscripts, early printed books, icons, miniature paintings, stamps, and snuff bottles as well as other objets d’art.  Like J.P. Morgan, Beatty wanted to buy only the best, and had the money to do it.  I was particularly interested in the first-floor gallery devoted to the Art of the Book, which includes a large collection of Korans, Chinese jade books, which are extremely rare, Japanese scrolls, illuminated manuscripts ,and early printed books, as well as superlative Old Master prints.  The second-floor gallery is devoted to Sacred Traditions, and the focus is on religious books and manuscripts from most of the world’s major belief systems.   Everything was impeccably presented, with helpful labels in English and Gaelic that provide context and history for each object.  There is an attractive gift shop and a café that seemed very popular.  Visitors have money to spend because admission to the Chester Beatty Library is free.

For two librarians, Dublin provided a wealth of riches, much more than we had anticipated.  It also offered great theatre, good food, and stunning Georgia architecture to admire on our rambles.   

More Bad News for New Graduates

Recently released data confirm the perception that the Class of 2011 fared badly in the employment market.  An article in the ABA Journal states, "Only slightly more than half of 2011 law grads were able to snag full-time, long-term legal jobs, according to an analysis of new ABA data by Law School Transparency."  Specifically, Law School Transparency found that only 55.2%  of graduates had full-time jobs that required a J.D., with 26.2% still underemployed. 

In light of these disappointing (but not unexpected) numbers, two recent stories caught my eye.  The first appeared  in The Wall Street Journal, June 18, 2012, p. B1 (subscription required), and was entitled "Why Hire a Lawyer?  Computers are Cheaper."  The author, Joe Palazzolo, describes the litigation that ensued after the "roofs of three jet hangers [sic] collapsed under heavy snow and crushed 14 private jets in 2010."  The defendant, Landow Aviation, preserved approximately 8,000 gigabytes of information relevant to the suit, and eventually narrowed the field to approximately 2,000,000 electronic documents that would need to be reviewed for evidence of possible liability in the collapse of the roof.  In the past, an army of lawyers would have read each document.  Some of these lawyers may have been temporary hires paid at a low hourly rate specifically for document review, or they may have been new associates assigned to the task.  However, in this case, "the company asked a judge to allow a computer program to do much of the initial work" using "'predictive coding,' a term that refers to computer programs that use algorithms to determine whether documents are relevant to a case."  The article describes how the coding is done and the advantages--it's cheaper and more accurate--and points out that attorneys will still need to review the documents that the coding has identified as being relevant, perhaps 10% of the total.  If the cost savings of predictive coding are significant and the results are more accurate, clients may well be unwilling to pay for traditional document review by attorneys in the future.

The other article, also from the ABA Journal, highlighted a new rule by the Washington Supreme Court that will allow "'licensed legal technicians' to help civil litigants navigate the court system."  The range of activities that the legal technicians will be allowed to perform is very narrow.  According to the press release,

The type of assistance the legal technician will be able to provide include, but are not limited to:
· Selecting and completing court forms;
· Informing clients of applicable procedures and timelines;
· Reviewing and explaining pleadings and;
· Identifying additional documents that may be needed in a court proceeding.

Under the rule, limited license legal technicians will not be able to represent clients in court, or contact and negotiate with opposing parties on a client’s behalf.
       
The purpose of the rule is to help meet the legal needs of people with lower incomes.  The court "acknowledged concerns that the plan poses a threat" to the practicing bar, but feels that there will be no appreciable effect because the legal technicians will not be able to negotiate.  The article doesn't mention any possible negative impact on the market for new attorneys, but it's reasonable to assume that there will be one if current practitioners get less business. 

Reveal Day at ICANN - New Internet Suffixes?

ICANN is opening up new Internet suffixes today, June 13, 2012. They call it "Reveal Day." At their website, they had a video of the press conference in London, but they did not record it, oddly. They still have materials, though, for the public and the media.

There are about 2,000 proposed suffixes that include hobbies, corporate brand names, language and ethnic groups and more. In 2000 and 2004, ICANN offered two "beta test" groups of suffixes which included .travel, .info, .biz and more. These have not been notably popular with the public, who found very quickly that .travel became populated with scam artists and virus-carrying sham-websites. The public has since shown a marked preference for the original 3 suffixes: .com, .org and .edu, or they use a web browser to locate what they want if they do not know the URL.

Petitioners to purchase a new suffix, also known as a top level domain name, face a lengthy process. They must be carefully vetted by ICANN. They answer 50 questions covering their plans for the suffix, their financial health, the support they have for "owning" the name, and more. Petitioners had until May 30 to submit a proposal, which costs $185,000. On June 13, ICANN listed all the received proposals.

There will be months, possibly years of reviews and possibly challenges before proposals are accepted and suffixes are handed out, and available to be used on the Internet. The public will now have 60 days to comment on the proposal. For instance, someone may claim a trademark violation, or that the suffix is offensive.

ICANN has so many proposals (which surprises me, frankly!), that it will review them in groups of about 500. There is a lottery sort of system to decide which proposals are considered first. It could take several years to get to the final group. Besides looking at the financial health of the petitioning company or organization, ICANN will also perform crimimal background checks. They don't want an owner of a top level domain name to become insolvent, or in the unlikely situation that it does, ICANN wants there to be well-thought-out contingency plans. A complete review is expected to take nine months. If there are challenges, a review could take up to 20 months, according to ICANN's estimates.

If multiple bidders seek the same domain name, ICANN encourages the bidders to seek agreement. Once a suffix is approved, the owner of the domain name may sell and register sub-domain names and control their use. They are in charge of procedures to register the servers and track them. So, the winning petitioner may make some money, but they also have to pay ICANN $25,000 more annually to keep the suffix registered. This is a very expensive proposition!

The Washington Post reports that Internet-based companies from Apple,to Zappos applied for these domain names. But also, bricks-and-mortar companies such as Macy's, Wal-Mart and Tiffany's each ponied up $185,000 to apply for consideration. 87 large corporations filed a protest. A few of the protesters, such as Samsung, went ahead and filed for a suffix. Others, such as Coca-Cola and Kelloggs, abstained from filing for domain names (see BBC story here).

You can follow ICANN on Twitter where it appears as ICANN (not surprisingly). Here is a link to the full list of new Top Level Domain names in potentio. The BBC pointed out that more than half the list consists of U.S. corporations. But from a U.S.-centric point of view, that means that nearly half the new Top Level Domains will be non-U.S., 17 of which were from Africa. ICANN is working on making the Internet more international and more welcoming to the world. At the same time, ICANN itself is firmly based in the United States, through an agreement with the United States government, for at least a good while into the future. While the Internet was built in the United States at the beginning, as ARPANet, it has become a truly international utility of great value. This will a very interesting thing to watch develop.

The red curtain decorating this blog post is courtesy of https://www.marketingexperiments.com/blog/marketing-insights/ecommerce-carts-pricing.html

Even Playing Fields

The American Association of Law Libraries (AALL) published its Guide to Fair Business Practices for Publishers (2nd edition, 2008). They are now in the process of making what are really rather minor revisions to the document. The wonderful Committee on Relations with Information Vendors (CRIV) has a new blog where you can go to link to the proposed changes, and read about how to submit your comments.

The AALL Consumer Advocacy Caucus has looked over the changes and is submitting comments, but the more members who comment, the better. Publishers and consumers alike have an interest in fair business practices. When one or a few publishers engage in unfair practices, the other publishers or vendors who try to conduct their business along fair guidelines are put at a disadvantage. When everybody maintains fair business practices, there is an even playing field, which improves competition, benefiting the marketplace and consumers as well.

I was initially surprised when there were some publishers interested in joining the Consumer Advocacy Caucus, but after listening to a presentation or two from some of the more vocal, I understand better their point of view. It is not just a matter of large publishers against small publishers.... they are concerned about unfair business practices crushing innovation and competition in the marketplace. And consumers have the very same concerns. Speaking up and asking question about problematic business practices benefits everyone in the long run, including the publishers who think they are getting away with something!

Mutabilis mutandi

It looks like some over-zealous programmer for Barnes and Noble set up the Nook e-reader to replace every appearance of the word "Kindle" with "Nook." That works OK when "Kindle" is a proper noun referring to their competition from Amazon. But the results look hilarious, sad, pitiable, ridiculous and outrageous, depending on your mood, when the word is a verb. Philip Howard, who blogs at Okracoke Island Journal, on May 22, 2012, noted that he was reading Leo Tolstoy's War and Peace on his Nook.

As I was reading, I came across this sentence: "It was as if a light had been Nookd in a carved and painted lantern...." Thinking this was simply a glitch in the software, I ignored the intrusive word and continued reading. Some pages later I encountered the rogue word again. With my third encounter I decided to retrieve my hard cover book and find the original (well, the translated) text.

For the sentence above I discovered this genuine translation: "It was as if a light had been kindled in a carved and painted lantern...."

Someone at Barnes and Noble (a twenty year old employee? or maybe the CEO?) had substituted every incidence of "kindled" with "Nookd!"

This discovery is roaring through the blogosphere: Ars Technica tested it and found 8 instances. They include a nice screen shot highlighting an example where "Nook" in inserted for "kindle" in the text. The story also appears on Dvice.com and I originally was told it was covered on MSNBC. The Atlantic has a story on it (they couldn't resist the pun! (Tolstoy gets nookered), and The Baltimore Sun covers it, too. There are many more repeats of the story, but these are the higher profile commentators.

Probably the most insightful comments come from Kendra Albert at Jonathan Zittrain's blog The Future of the Internet and How to Stop it. First Ms. Albert recalls the classic story of the day Amazon panicked that they had not gotten proper copyright clearance for George Orwell's 1984, and yanked it from all e-readers without notice. Even people reading it had it disappear, notes and highlights and all, quite suddenly. Amazon gave back the 99 cents everybody had paid, but it did not diminish the sense of outrage, or the sense of irony, because of the text.

Then, playing off that experience with the extreme mutability of e-texts, Albert continues to examine the Kindle to Nook event. She comments that the change probably happened when the company that formatted the text, Superior Formatting, a contractor for Barnes and Noble, ported the text. They probably do the same work for Amazon, and may insert ads for the Kindle in work that they do for that company. So they probably did a search and replace to find and replace all the ads for the Kindle e-reader over the ads for the Nook. It just wasn't well-thought-out, and now, they look pretty stupid. Or, Barnes and Noble look stupid, which is worse!

The unwitting hilarity of a publisher doing a “find and replace” and accidentally changing the text of a canonical work of Western thought is alarming. Many versions of e-books are from similar outfits, that distribute public domain works formatted for Kindle or Nook at the lowest possible prices. The great democratizing factor of the ebook formats – that anyone can easily distribute – can also mean that readers can never be quite sure that they are viewing the texts as the author intended.

Interestingly enough, we seem to have come a full circle. The earliest job of the great scholars and librarians was to recognize the correct copies of the classics, and weed out the incorrect copies. When everything was copied by hand, it was very easy for errors and changes to creep into those scrolls and manuscripts.


Tip of the OOTJ hat to my colleague Spencer Simons at University of Houston. The illustration of Tolstoy came from the Atlantic article, and is credited to the Wikimedia Commons, which credits it to Nikolai Gei, translated in English as Leo Tolstoy at His Desk, painted around 1870.

Judges and Politics

One of our law students was telling me he recently attended a reception where former Chief Justice of the Massachusetts Supreme Judicial Court Margaret Marshall spoke about the increasing mix of judges with politics. She says, it's a problem, not surprisingly. And I don't think that she is drawing any partisan line about this, though I did not hear her speech. Here is a link to the event at which she spoke where she received a medal from Radcliffe. Here is a report of Chief Justice Marshall's speech. She used as an example of the ways in which the First Amendment of the federal Constitution is being used to "undermine the notion of impartial justice" a 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White.

A summary of the facts of the case and the main issue provided by the Oyez project:

Minnesota's Constitution provides for the selection of all state judges by popular election. The announcement clause of the Minnesota Supreme Court's canon of judicial conduct prohibits a candidate from announcing his or her views on disputed legal or political issues. While running for associate justice of the Minnesota Supreme Court, Gregory Wersal filed suit, seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. The District Court found that the announcement clause did not violate the First Amendment. The Court of Appeals affirmed.

Question

Does the First Amendment permit the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues?

In a 5 - 4 decision, the Court ruled that the Minnesota rule prohibiting judges from announcing views on disputed legal or political issues was an unconstitutional burden on the judicial candidates' freedom of speech. Chief Justice Marshall finds the decision very disturbing for several reasons, according to the report in the Harvard Magazine. Most disturbing seemed to be the “short shrift given by the Court to the very notion that judges must be, or even can be, impartial.”

The White decision, Marshall said, opened “a Pandora’s box of noxious influences on the principle, and the reality, of fair, impartial justice in our state courts.” The ruling opened the door, Marshall noted, for judges in other jurisdictions to “strike down other rules of judicial ethics aimed at ensuring the integrity of our courts,” including rules prohibiting “judges and judicial candidates from promising in advance to decide certain cases a certain way,” or from personally soliciting campaign donations.

Margaret Marshall was notably even-handed in her speech, quoting both Newt Gingrich and Sandra Day O'Connor in making her points. But if one adds other straws in the journalistic wind to this speech, there is a very disturbing picture that seems to be growing of the current state of the federal judiciary at least. I have seen very little discussion of the article that appeared in the New Yorker magazine, May 21, 2012 by Jeffrey Toobin, "Money Unlimited: How Chief Justice John Roberts Orchestrated the Citizens United Decision."

See also, this brief article from the Brennan Center for Justice at New York University School of Law, "Judges and Politics Don't Mix."
by Adam Skaggs, dated 2/12/10. Here is a N.Y. Times article about the Minnesota case.

1st Circuit Court of Appeals Rules DOMA Unconstitutional

The First Circuit Court of Appeals in Boston ruled yesterday in two cases, Gill v. Office of Personnel Management which decision incorporates a ruling on the companion case brought by the Massachusetts Attorney General, Massachusetts v. DHHS. In Gill, seven same-sex couples and three surviving spouses of same-sex marriages, all from Massachusetts, where such marriages are legal, brought suit because under the federal Defense of Marriage Act (DOMA), they are denied many federal benefits available to heterosexual couples in the same state. These include Social Security survivor benefits and the ability to file tax returns jointly, for instance.

The Massachusetts v. DHHS case was brought by the Massachusetts Attorney General because the Commonwealth is being forced to discriminate against some of its citizens and treat them differently because of the federal DOMA. For instance, Medicare benefits are not available to same-sex spouses, but are available to heterosexual spouses. And a same-sex survivor spouse of a veteran may not be buried at a federal military cemetery in Massachusetts, while a heterosexual widow or widower may. And these differences are enforced even though, under Massachusetts law, the two individuals are viewed exactly the same.

The GLAD organization represented the plaintiffs in Gill, and provide many links to news stories around the nation, as well as a complete selection of the pleadings in that case and all the cases they have been involved with. Here is their page. The Boston Globe link that GLAD offers leads to a different article than the more in-depth one that appeared in the print Globe. Here is the print article from the Boston Globe, and a more recent article from the Globe, about Judge Michael Boudin, who wrote the opinion.