Not All Free Law is Created Equal

Posted on 21 February 2012 by

Following is a tale that, at the end, contains an embarrassingly basic lesson, but one worth remembering.

I’m taking an employment law course this final semester of law school. In class recently we were discussing some of the changes that the Civil Rights Act of 1991 made to employment discrimination suits, including a change to 42 U.S.C. § 1981, which had been used as a vehicle to challenge discrimination based on race in the making of employment contracts. Before the Civil Rights Act of 1991, Justice Kennedy wrote for the Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 176 (1989) that, regarding the making of employment contracts, § 1981 “extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” Thus, § 1981 offered no protection against the racial harassment that Ms. Patterson, an African American bank teller, suffered on the job.

To change this result, in the Civil Rights Act of 1991, Congress changed the definition of “make and enforce contracts” in § 1981 to include the “making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship” (emphasis mine).

We did not discuss this change in much detail during class, but I wanted to see for myself how the 1991 law changed the text of § 1981. We had a summary document prepared by the EEOC a few years ago that listed some of the changes made, but I wasn’t certain if it had the text of the language superceding the Patterson decision. So I went ahead and just Googled “Civil Rights Act of 1991.” The first result was a Wikipedia link, which I doubted would have the full text. The second and third results were EEOC links that did not have the full text (though I later discovered the third result had a link to the full text). The fourth result? This page, hosted by FindUSlaw.com.

When I got to that page, and saw the headline “Civil Rights Act of 1991 – Pub. L. 102-166,” I thought, “Ok, we’re getting somewhere, this looks like the full text.” I did a Control+F search for “1981″ to quickly find language dealing with § 1981, and discovered Section 12 of the act, which makes the change we discussed in class. In my nerdy excitement, I told a friend on Gchat about my discovery of Section 12. I then went back to see if that matched up with the summary document we were provided before class, and discovered that it didn’t. “Weird,” I thought. I scrolled up on the FindUSlaw site, and saw that the text was still labeled a “bill,” not an “act,” had a bill number of H.R. 1, and that numerous co-sponsors were listed, which public laws do not normally list.

G.H.W. Bush statement on Civil Rights Act of 1991

The end of President George H.W. Bush's statement before signing the Civil Rights Act of 1991 on Nov. 21, 1991. Note that it wasn't H.R. 1 he was signing.

So I took the public law number and headed over to something that has never failed me, THOMAS, the Library of Congress site that archives legislative texts. I typed in the public law number, and found that a different bill than the one on the FindUSlaw site was actually signed into law as the Civil Rights Act of 1991. That would be S. 1745 (102d Congress), to be precise. In the version of S. 1745 that was signed into law, it wasn’t Section 12 that made the statutory change reversing the Court’s Patterson decision, but Section 101, the first provision of that act’s Title I. When I went and looked up H.R. 1, sure enough, it had never been enacted into law.

So what’s the point of reliving my initially confusing but ultimately successful research effort? To remember one of the oldest warnings about the Internet: not everything on it is true or accurate. A corollary: Not all free law on the Internet is created equal. Yes, there are trusted sites that provide consistent access to legal texts, like Thomas, Cornell’s Legal Information Institute, and Google Scholar. But there are also sites like FindUSlaw.com, which is actually run by an employment lawyer in Los Angeles, presumably to attract clients (which is easily discovered when you see the single banner ad at the top along with the byline on the numerous Q&A articles), that might not necessarily have the most up-to-date or accurate information on them. At least in my case, I was just looking something up for my own learning, not to use for a client or in a court filing. If I was, I certainly would verify what I found using more well-known resources. Making a mistake between Section 12 and Section 101 probably is not the end of the world, but I certainly wouldn’t want to screw up such a detail which, if discovered, could give others a reason to doubt the reliability of the rest of my writing or arguments.

Related: allow Meg to tell you how you can find whole new worlds of information when you have a public law number. I might also have borrowed the New Yorker allusion earlier from her, too.

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What I’m Reading — Jan. 8

Posted on 8 January 2012 by

More of a “what I’ve been reading” list, as this is a selection of what I’ve been reading while I was free from law school finals (and actually, the new semester starts tomorrow).

  1. Why Obama Can’t Close Guantanamo — This essay in Foreign Affairs is by Carol Rosenberg, the Miami Herald reporter who has extensively covered Gitmo goings-on.
  2. Smoke Screening — Charles C. Mann goes along with the security expert Bruce Schneier to National Airport outside DC and ponders the quandaries of security theater.
  3. Young Mr. Obama: Chicago and the Making of a Black President — A good, easy/quick-to-read book by the journalist Edward McClelland, it chronicles Barack Obama’s rise from community organizer through his time as a state senator in Illinois.
  4. How the Justices Get What They Want — Robert W. Gordon has this review of two new-ish books on the Supreme Court during FDR’s administration.
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Gingrich comes out for solution that already (kind of) exists: cancellation of removal

Posted on 23 November 2011 by

At last night’s CNN Republican presidential debate focusing on national security, former House Speaker Newt Gingrich said the following while answering a question about immigration:

I believe ultimately you have to find some system — once you’ve put every piece in place, which includes the guest worker program, you need something like a World War II Selective Service Board that, frankly, reviews the people who are here. If you’re here — if you’ve come here recently, you have no ties to this country, you ought to go home. period. If you’ve been here 25 years and you got three kids and two grandkids, you’ve been paying taxes and obeying the law, you belong to a local church, I don’t think we’re going to separate you from your family, uproot you forcefully and kick you out.[emphasis added]

The Creeble Foundation [sic] is [sic] a very good red card program that says you get to be legal, but you don’t get a pass to citizenship. And so there’s a way to ultimately end up with a country where there’s no more illegality, but you haven’t automatically given amnesty to anyone.

In the abstract, such an idea — a government agency that decides whether someone without a valid immigration status gets to stay in the United States — sounds unobjectionable. Except it already exists. The immigration courts in the Justice Department’s Executive Office for Immigration Review already perform this function when someone is put in removal proceedings. The solution Gingrich suggests for if someone has been here 25 years, has three kids and two grandkids, has been paying taxes, obeying the law, and belongs to a local church also (kind of) exists too. How? That person might (emphasis on might) have a plausible case for cancellation of removal, a form of relief that the immigration courts can grant that pretty much does what it’s called: it cancels someone’s removal from the United States. See INA § 240A(b).

If Gingrich’s hypothetical person was put in removal proceedings, he’d have to demonstrate that he had been present in the US for more than ten years, hadn’t been convicted of any crimes, and would also have to demonstrate that his removal would result in what the law calls “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” In practice, this “exceptional and extremely usual hardship” to a U.S. citizen relative standard is a very high — but not impossible — bar to clear.

Why did I say Gingrich’s solution only “kind of” exists? His idea only “kind of” exists because someone can only seek this type of relief if he or she is put into removal proceedings in the first place, i.e., ICE charges the person with being in the U.S. without a valid immigration status. What if you wanted to actively seek out this relief on your own? People have tried, and ICE will not let you turn yourself in to start proceedings, even if you’d be eligible for relief; hence, the “kind of.”

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New ICE Guidance on Prosecutorial Discretion in Immigration Proceedings

Posted on 22 November 2011 by

Last week, the chief legal office in Immigration and Customs Enforcement, the Office of the Principal Legal Advisor, released new guidance on the implementation of the Morton memo on prosecutorial discretion, which was issued in June 2011.

The guidance consists of a memo [PDF] from Peter Vincent, the ICE Principal Legal Advisor, another memo [PDF] reiterating key aspects of the Morton memo, and a “Next Steps” memo from ICE [PDF].

In the Vincent memo, ICE announced that each regional Office of Chief Counsel (i.e. the government agency that essentially acts as the prosecutor in immigration removal proceedings), must immediately review the following three categories of cases for possible exercise of prosecutorial discretion: 1] cases in which a Notice to Appear (the initial charging document that places someone in removal proceedings) has not yet been issued; 2] all cases on the master docket; and 3] all cases where the individual in proceedings has a merits hearing scheduled within seven months of the issuance of the memorandum.

The Vincent memo mandates that each Office of Chief Counsel also set up a Standardized Operating Procedure to carry out this review:

Excerpt from Vincent ICE/OPLA memo re: prosecutorial discretion

Excerpt from Vincent ICE/OPLA memo re: standard operating procedure for prosecutorial discretion

Notice the fourth bullet and footnote 2 in the excerpt above. The memo requires that each regional Office of Chief Counsel set up an email box where individuals can send additional documentation related to requests for prosecutorial discretion. If those email boxes are actually used regularly, they could potentially become an important avenue for people in proceedings to bring attention to their requests.

Switching gears somewhat: in a blog post looking at the numbers behind DHS Secretary Napolitano’s promise that even with these reviews, the total number of deportations would not fall below 400,000, the New York Times’ Andrew Rosenthal does some basic calculations:

Homeland Security’s “criminal alien” category is full of air, to put it politely. Of the 216,698 criminal aliens deported in the past year, 1,119 were convicted of homicide and 5,848 of sexual offenses. An additional 35,927 had D.U.I.s, and 44,653 were busted for “crimes involving drugs”—which sounds awfully expansive, likely roping in foreigners busted for smoking a joint on the street (and not necessarily an American street). That adds up to about 87,000 of the more than 216,000 ”criminal” deportees. As for the rest, Homeland Security doesn’t say, and attempts to get them to meet their legal obligations to answer to the public have not had much success. But we know from many news accounts that the criminal alien category also includes low-level misdemeanors, traffic violations and other non-violent offenses that have no bearing on national security. [emphasis added]

This last point, that the drive to deport individuals with criminal convictions often strays from serious criminals, was one of the more powerful points made by last month’s Frontline: Lost in Detention broadcast on PBS. It’s very much worth watching.

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The Wire and Criminal Procedure

Posted on 4 November 2011 by

Earlier today, a friend sent me this article, by Erwin Chemerinsky, looking at the issues in the upcoming search and seizure case, United States v. Jones, that will be heard by the Supreme Court next week. Chemerinsky writes that the issue in the case is “whether it is a search or seizure within the meaning of the Fourth Amendment when the police plant a GPS device on a person’s vehicle and monitor it for 24 hours a day, for 28 days.”

In Jones, police suspected the defendant of drug trafficking, and obtained a warrant to place a GPS tracking device on his wife’s car during a period of ten days, but the device could only be placed within the District of Columbia. In reality, as Chemerinsky summarizes, “police installed it on the 11th day while the car was in Maryland. Both sides agreed that this was a warrantless planting. This could turn out to be very relevant in the Supreme Court’s decision: it shows that the police can easily get warrants for the use of such tracking devices. The police used the device for four weeks. Based on all of the information gained, the police obtained and executed a search warrant; cash and drugs were found.”

This discussion instantly made me think of the HBO series The Wire, which focused on the lives of drug dealers and police officers in Baltimore. In the show, the police often use wiretaps (hence the name of the entire show) to attempt to learn about the operations of the drug trafficking organizations they’re investigating. For a television show that focuses on the police and crime, there is a great deal of discussion of probable cause and the need for warrants to allow the police to investigate the drug trafficking without having evidence excluded later on. With The Wire being such a critically acclaimed series that forces reflection on the structure of the criminal justice system and urban America, there had to be some academic commentary on all of this, right?

Indeed, there is. The Ohio State Journal of Criminal Law this year published a mini-symposium on The Wire. Susan Bandes, a law professor at DePaul University, in her contribution to the symposium, discussed the criminal procedure aspects of the series:

The Wire, as it happens, contains a surprising number of scenes depicting the effectiveness of the exclusionary rule. Police and Assistant State’s Attorney Rhonda Pearlman and Judge Phelan spend substantial time discussing the threshold for probable cause and drafting warrant applications and reviewing arguments for extensions on wiretaps. The warrant process is treated with a fair amount of respect. Cops—notably Herc Hauk—find themselves in serious trouble for doing things like making up informants in warrant affidavits. . . . The exclusionary rule works, but it doesn’t address much of what ails the cop culture or the drug culture. Most of the police work The Wire depicts is beyond the reach of the exclusionary rule. The rule doesn’t reach the endless Terry stops whose point is not to obtain admissible evidence, but to exert control. Nor does it reach the low level misdemeanor arrests whose purpose is to get the suspect to the station for questioning, to create leverage, or to get a weapon off the street. In The Wire’s Baltimore, cases that do get to court (the most serious felony cases) are often derailed not by suppressed evidence but by witness intimidation and murder.

But Bandes notes also that constitutional protections have little relationship with how a lot of the work of the police actually gets done:

The Wire captures the irrelevance of standard Fourth Amendment remedies in another way as well. In standard cop shows, the crime is a given—it appears, unbidden, at the beginning of the episode. The Wire shows a world in which police are inundated with cases and information. The question is not how the police will solve “the case,” but how caseload priorities will be determined. . . . Questions of which cases get prioritized, deep sixed, or sidelined are well outside the ambit of constitutional criminal procedure. But The Wire illustrates the point: a jurisprudence that attempts to address police incentives mainly through excluding evidence at trial is in danger of being sidelined or marginalized.

For those who’ve seen The Wire, the whole collection of articles will be worth reading:

Commentary Symposium: The HBO Series The Wire

Bennett Capers, Introduction: The HBO Series The Wire, 8 Ohio St. J. Crim. L. 431 (2011).

Susan A. Bandes, And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System, 8 Ohio St. J. Crim. L. 435 (2011).

Alafair S. Burke, I Got the Shotgun: Reflections on The Wire, Prosecutors, and Omar Little, 8 Ohio St. J. Crim. L. 447 (2011).

Bennett Capers, Crime, Legitimacy, Our Criminal Network, and The Wire, 8 Ohio St. J. Crim. L. 459 (2011).

David Alan Sklansky, Confined, Crammed, and Inextricable: What The Wire Gets Right, 8 Ohio St. J. Crim. L. 473 (2011).

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Initial Thoughts on the Lexis Advance User Experience

Posted on 2 November 2011 by

I’ve been tinkering some with Lexis Advance, the updated version of the Lexis legal database, once it was released to law students, and thought I’d offer some initial thoughts on the user experience.

Two things I should state upfront:

  • When I started law school, I was very much in the Lexis camp, rather than Westlaw. I had used LexisNexis Academic and LexisNexis Congressional as an undergraduate and in jobs before law school, and was comfortable with the vaguely similar interface. I also definitely preferred Shepard’s over Westlaw’s KeyCite feature, which I found unnecessarily unwieldy.
  • When WestlawNext came out last year, I started to use that much more often, because it was a significant improvement over Lexis and so-called Classic Westlaw. I’ve since grown to like it very much, but am mindful that in real life, i.e. for non-law students, the price of using WestlawNext is very high ($60 for a search, and $15 for each document opened from a search, according to an article by Professor Ronald E. Wheeler, Jr., Director of the University of San Francisco Law Library – h/t Law Librarian Blog), so I’m trying to not get too used to it!

So far, I’ve used Lexis Advance to do some basic research and test out how it compares to regular Lexis. For the sake of illustrating some of my points below, I conducted an intentionally very broad search for “modified categorical approach immigration 3d Circuit.”** This was an attempt to get relevant results about how the Third Circuit has applied this (admittedly, hard-to-explain-succinctly) doctrine to examine whether a criminal conviction fits within a potential removability ground in the Immigration and Nationality Act, if the statute under which the person was convicted is phrased in alternative elements and only some — not all — of those elements could constitute removable offenses.  Here are some initial thoughts about what I’ve found:

Starting Your Search
Just like Google, Bing, or even WestlawNext, you can start your search by typing it into a single search box. If you want to immediately narrow your search at this point, there are numerous options for restricting by practice area, jurisdiction, and source type, along with advanced options for constructing more of a Boolean-type search. I do not really have a strong reaction to this part, considering it’s a standard feature on many other websites and academic databases, but compared to what I’ll call “regular Lexis,” it does save the step of having to select databases up front that you wish to search.

The new Lexis Advance search box

Narrowing Down Your Search
I like two of the new changes designed to more quickly get you to the types of sources one would want: the date range slider, and the choice of source tabs at the top. The slider makes it easy to restrict your search by a specific date range:

Lexis Advance date slider for cases

After you’ve received search results, having the ability to quickly change the type of results you want to look at depending on what type of source you need — for example, to switch from cases to analytical materials or other secondary sources — without having to select new databases to search, is also helpful:

Different tabs at the top for different types of documents after search results are returned.

Endnotes in PDF Versions of Lexis Advance Documents
When you either email yourself a PDF of a document, or download a PDF version of a document, the endnotes in that document are not clickable, i.e. you cannot click a endnote and be taken to the end of the document to read the note. In longer law review articles or treatise sections, this is highly inconvenient. I have — many times — sought out a document on Westlaw or WestlawNext specifically because they provide this function, which makes navigation far simpler within the document. In LexisAdvance, if I want to read the endnote, I have to scroll to the end, find the right note, then scroll back up to continue reading — quite disruptive to the overall reading process. Granted, this is also a problem in regular Lexis.

Copy and Cite
In LexisAdvance, when you highlight text and choose “Copy Clip to Clipboard,” the resulting citation is missing a pinpoint citation, compared with regular Lexis that supplied the pincite. Instead it just has the generic full citation without the specific page reference to where your highlighted text appears. I would hope this type of functionality arrives soon.

The Tabs
They’re kind of interesting, and are one of the most noticeable changes in how a user actually uses the service compared to regular Lexis. They seem useful for managing different documents at once, especially when it prevents you from leaving a document when you click another citation/link. But I must confess to finding them distracting because the entire page has to reload in order for the new document to be displayed in a new Lexis Advance tab. On some level I’d prefer to just open an entirely new browser tab, rather than have multiple documents open in Lexis Advance tabs within the same browser tab. But it seems that it’s difficult to even do that — when I press Control and click a link, which should theoretically open a new browser tab in Chrome, instead a new Lexis Advance tab opens in the same Lexis Advance tab. This might be my own somewhat neurotic web browsing preference, but I suspect there are others who deal better with one document per browser tab. On the other hand, Kyle Courtney, a law librarian at Harvard Law School, praises [PDF] the numerous document tabs within a single browser tab/screen, saying they make it “easy to toggle to different steps in the research trail path without opening 34 windows and losing track.” Reasonable minds can differ!

What I like: separate Chrome browser tabs for separate documents, even if there are a lot of them.

What I’m not so impressed with: multiple documents within the same browser screen/tab.

Conclusions
I know I have not engaged in a rigorous examination of Lexis Advance’s search capabilities compared to Lexis Advance or other databases, but Dan Baker at the University of Houston Law Library has more developed thoughts in this area, and his two posts are worth reading, especially his second.

At this point, I expect that I will continue to try to use Lexis Advance and get used to it; but I’m hard-pressed to say why I’d use it over regular Lexis for basic legal research. Someone doing more intense and sustained research over a longer period of time may feel differently. The single search box is nice, but if I have to select specific databases, that’s not the end of the world for me. Otherwise, the changes, while appreciated, do not seem major enough to the user experience to entice someone away from regular Lexis.

** I realize, in retrospect, that including “3d Circuit” in my search terms might have been an imprecise attempt to force a focus on Third Circuit cases, mostly by hoping for hits on “3d Cir.” or other such permutations in the citations of cases. Unfortunately it appears that in the jurisdictions tab on the single search box in Lexis Advance, one can only choose “U.S. Federal,” not individual federal circuits, along with specific states.

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What I’m Reading — Oct. 25

Posted on 25 October 2011 by

It’s been a busy few weeks; here’s a little bit of what I’ve been able to read:

  1. Justice Scalia to lawyers: Read more, write better — Justice Scalia recently gave a speech to the Bar Association of the City of Richmond, Virginia, in which he made the under-appreciated but blindingly obvious point:

    He prompted a big round of laughter when he asked, “Why are lawyers such lousy writers? The answer is: What you read from the time you entered law school is mainly judicial opinions. …

    “If that’s your only diet of literature, you’re going to be a terrible writer.”

    Scalia suggested that lawyers writing briefs should read good novels or good magazine stories. “As you read, so will you write,” he said.

  2. Alabama Immigration HB56: Additional Provisions Stayed by the Eleventh Circuit — Ruthann Robinson at Con. Law Prof. Blog highlights the two sections of the Alabama immigration law that were recently enjoined on a temporary basis by the U.S. Court of Appeals for the 11th Circuit:

    Section 10(a) creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.

    Section 28 requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.

  3. “Thank Heavens for No Judicial Elections” — A post from Pennsylvanians for Modern Courts on how Connecticut is thankful it does not have to deal with the folly of judicial elections.
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