Nonetheless, I’ve found some time to read a few things:

1. Immigration — This is a massive 1983 article by James Fallows in the Atlantic Monthly, that focuses on the evolution of immigration policy, how Southeast Asian immigrants in the 1970s quickly became part of the Southern California economy, with a lengthy digression into the question of whether English should be the sole official language of the U.S.
2. World War 3.0 — A long article in Vanity Fair about the larger struggle about whether national governments will control the Internet in the future, or whether it will continue to develop somewhat organically as it has the past few years.
3. The Great Society Subway: A History of the Washington Metro — I’m about a third of the way through this book, by Zachary Schrag, that addresses the early planning and construction of the Metro rail system in DC. For people generally interested in government and transportation the first third has been a good summary of all the various ideas and bureaucratic struggles that the region’s leaders dealt with in Metro’s early days. As an aside, it mentions the fact that someone proposed building a monorail from DC to Dulles Airport back in the early 1960s, but that clearly never happened — and it’s taken until now for a rail connection to be start being constructed to Dulles.

Cell at Eastern State Penitentiary. Photo by me, available under CC license specified below.

Recently I (finally) took the tour at Eastern State Penitentiary, the now-closed prison near the Philadelphia Museum of Art that was built in 1829. When it opened, it pioneered the concept of solitary confinement, not as punishment, but as an opportunity for those convicted to reflect and become penitent about their crimes (hence, a “penitentiary” as a place where one is confined to be penitent).

The tour hit all the highlights that make it such a compelling, haunting site: the middle tower from where guards in the prison’s early days could see down into many of the cell blocks, the grubby field where inmates played football and baseball, the dank cell blocks where the plaster on the walls (mixed with horse hair as a binding agent) was deteriorating, the 20th century addition of a death row cell block (complete with allegedly suicide-proof toilet bowls), and Al Capone’s cell.

But what made the tour stand out was not the prison’s stark architecture, but the words of our tour guide. During the tour, she spoke about our current understanding of prolonged isolation as extremely negative, about the troubling implications of prison overcrowding (mentioning the Supreme Court’s recent decision in the California prison overcrowding case, Brown v. Plata), and about the state of our criminal justice system in general. It was refreshing to be at a historical site that dealt openly, honestly, and pragmatically with how its own history related to current questions of justice, fairness, and morality. If you’re ever in the Philadelphia area, it’s definitely worth a visit.

Just a few days after my visit, the New York Times featured a Mississippi prison that was turning away from solitary confinement because of both the prohibitive cost of using it, and because of the unintended consequence that solitary confinement can cause those subjected to it to be more violent:

Humanitarian groups have long argued that solitary confinement has devastating psychological effects, but a central driver in the recent shift is economics. Segregation units can be two to three times as costly to build and, because of their extensive staffing requirements, to operate as conventional prisons are. They are an expense that many recession-plagued states can ill afford; Gov. Pat Quinn of Illinois announced plans late last month to close the state’s supermax prison for budgetary reasons.

Some officials have also been persuaded by research suggesting that isolation is vastly overused and that it does little to reduce overall prison violence. Inmates kept in such conditions, most of whom will eventually be released, may be more dangerous when they emerge, studies suggest.

Christopher B. Epps, Mississippi’s commissioner of corrections, said he found his own views changing as he fought an American Civil Liberties Union lawsuit over conditions in the prison, which one former inmate described as “hell, an insane asylum.”

Mr. Epps said he started out believing that difficult inmates should be locked down as tightly as possible, for as long as possible.

“That was the culture, and I was part of it,” he said.

By the end of the process, he saw things differently and ordered the changes.

“If you treat people like animals, that’s exactly the way they’ll behave,” he now says.

Cell block at Eastern State Penitentiary. Photo by me, available under CC license specified below.

The State Penitentiary for the Eastern District of Pennsylvania, Lithograph by P.S: Duval and Co., 1855. Wikimedia.

The two photographs taken by me above are licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 United States License.

Immigration inspection station at JFK International Airport in New York. Photo by U.S. Customs and Border Protection.

Eighth Circuit Judge Kermit Bye recently criticized a revised definition used in some asylum cases, highlighting a circuit split and stating plainly that he thinks the revised definition is arbitrary and capricious. But to understand all of that, first some background about how the definition came to be, and why many people think it’s flawed.

In order to qualify for asylum in the United States, a person must generally meet the legal definition of “refugee,” meaning that the person has to be “outside any country of such person’s nationality […] and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Immigration and Nationality Act § 101 (a)(42)(A).

The “membership in a particular social group” ground is the subject of a great deal of controversy, particularly because in recent years the Board of Immigration Appeals, the administrative body in the Justice Department that hears appeals of immigration court decisions, has added additional requirements to the social group ground. The BIA now generally requires that a person’s claimed social group must have sufficient “social visibility” and “particularity,” as described in its Matter of C-A- decision from 2006.

Besides serious criticism by scholars and other commentators, the social visibility requirement came in for some serious criticism by Judge Richard Posner of the Seventh Circuit in a 2009 decision, Gatimi v. Holder, where he wrote that “it makes no sense.” He pointed out that “If you are a member of a group that has been targeted for assassination or torture or some other mode of persecution, you will take pains to avoid being socially visible[.]” In a case later in 2009, Benitez Ramos v. Holder, he criticized the requirement again, saying an asylum seeker can prevail on a social group claim “only if a complete stranger could identify you as a member [of a particular social group] if he encountered you in the street, because of your appearance, gait, speech pattern, behavior or other discernible characteristic.”

The Third Circuit also recently rejected the social visibility and particularity requirements. In Valdiviezo-Galdamez v. Holder, 663 F.3d 582 (3d Cir. 2011), the Third Circuit held that these two requirements grafted onto the social group definition by the BIA were not entitled to Chevron deference. A group of immigration judges and attorneys recently published an article [PDF] in the March 2012 edition of Federal Lawyer that analyzes the Valdiviezo-Galdamez decision in depth.

Even though the Third and Seventh Circuits have turned against these requirements, many circuits still use them in analyzing social group asylum claims. The Eighth Circuit is one of them. In a March 1, 2012 decision, Gaitan v. Holder, an Eighth Circuit panel relied on its own recent precedents in applying the requirements. Concurring only in the result, due to those precedents, Circuit Judge Kermit Bye signaled that he disagreed with “our circuit’s as-a-matter-of-course adoption of “social visibility” and “particularity” as requirements for establishing “membership in a particular social group.” Discussing the Eighth Circuit’s recent adoption of the social visibility and particularity requirements, he wrote:

While both Constanza and Ortiz-Puentes grafted the requirements of “social visibility” and “particularity” to petitioners’ social groups claims, neither panel offered any explanation as to why the addition of these new requirements—which are very clearly inconsistent with the BIA’s prior decisions—should not be deemed arbitrary and capricious. Neither panel inquired as to whether the BIA had provided a good reason, or any reason at all, for departing from established precedent. Neither asked if the BIA’s new approach to defining “particular social group” amounted to an arbitrary and capricious change from agency practice. Instead, we simply adopted the new approach, as a matter of course, offering no substantial reason ourselves for this shift in direction. As a result, I fear we have chosen the wrong direction.

[...]

I agree with the circuits which hold the BIA’s addition of the “social visibility” and “particularity” requirements to the definition of “particular social group” is arbitrary and capricious. First, as discussed above, these newly added requirements are inconsistent with prior BIA decisions. Specifically, they are in direct conflict with the definition of “particular social group” announced in Acosta. By stating this, I am in no way suggesting the BIA must continue to adhere to the Acosta definition. I am of course cognizant the BIA may “add new requirements to, or even change, its definition of `particular social group’” over time. [...] The BIA, however, must explain its choice for doing so because an unexplained departure from established precedent is generally “a reason for holding [the departure] to be an arbitrary and capricious change from agency practice[.]” [citations omitted]

As the Federal Lawyer article makes clear, there is now “a sharp split among the circuits and could increase the viability of any new certiorari petitions before the U.S. Supreme Court, where the issue may ultimately have to be decided.” The interaction between the federal appeals courts and the BIA leads to different applications of immigration law depending on where you are in the U.S., but the difference discussed above is a stark one, so it wouldn’t be surprising if this was eventually settled by the Supreme Court.

Relevant to this blog, however, was a short passage on pp. 77-78, when McCommons is riding the Lake Shore Limited from Chicago to New York:

In Erie, we were just twelve minutes behind schedule until two border patrol agents with automatic pistols and radios got on board and spent a half hour walking through the coaches asking for IDs from Asian and brown-skinned folks. If it wasn’t ethnic profiling, it sure looked like it. What seemed more outrageous was the decision to hold up the entire train. Decades ago, when a train schedule was sacrosanct, you needed a good reason, but this search looked awfully routine.

Here’s an example of such a stop, captured on video:

Roughly a year later, the New York Times brought far greater attention to the practice of Border Patrol agents conducting immigration enforcement actions on trains and buses near the U.S. border with Canada, confirming McCommons’ suspicion that the practice was quite routine, indeed. After Families for Freedom successfully sued for access to Homeland Security records about such arrests on transportation near the northern border it released a report in November, along with the NYCLU and the NYU Law School Immigrant Rights Clinic, called Justice Derailed [PDF].

From the data obtained from DHS, the Justice Derailed report notes that the “transportation raids” overwhelmingly targeted people in upstate New York who had already been present in the United States for longer than a year, rather than recent border crossers (“76 percent of those arrested on transportation raids in Rochester had been in the United States for more than a year, and 12 percent of these individuals had been present for more than 10 years.”). While federal law and regulations allow Border Patrol agents to work within 100 miles of the U.S. border, the report argues that such actions on trains and buses are roving patrols and therefore subject to Fourth Amendment standards, relying on United States v. Brignoni-Ponce, 422 U.S. 873 (1975) and other cases. The report states on pg. 21: “In these situations, CBP [U.S. Customs and Border Protection] argues, they do not need to have reasonable suspicion about an individual rider to ask a question because the encounter is consensual, and riders are free to ignore or not respond to the questioning.” But as the report points out, on pg. 21, in practice very few people would actually refuse to answer:

What Border Patrol fails to recognize is that when an armed agent questions passengers on a train or bus, sometimes in the middle of the night with a flashlight glaring at the rider’s face, few individuals would feel that they have the right to refuse to answer the agent’s questions. These encounters, which CBP describes as consensual in order to circumvent constitutional protections, all too often feel more like coerced consents as the setting for the questioning would make few passengers believe that they have the ability to refuse to answer questions. Indeed, passengers and community leaders have echoed this sentiment that the Border Patrol agents’ questioning is coercive in nature and refusing to answer is not a realistic option.

The report then cites to the Supreme Court’s decision in Florida v. Bostick, 501 U.S. 429, 438 (1991), which stated that “‘Consent’ that is the product of official intimidation or harassment is not consent at all.”

You can see the Border Patrol in action in the following video. Note that the agents move right along when someone responds that they are a U.S. citizen, and also move along with the person recording the video refuses to answer. The person making the video then asks one of the agents later on what would constitute “reasonable suspicion,” and he responds: “Accent… dress… you know, different customs… suspicious shaking, nervous… a lot of things.” When asked what happens when the officer has suspicion but the person won’t answer, the officer replies “Then I can keep asking.” When asked if the officer could take someone off the train because of that suspicion, the officer replies, “Yes.” As the conversation winds down, the officer even asks the video-recorder to state her name, which she declines to do.

Another video produced as part of a student project at Syracuse University reveals how Border Patrol agents essentially treat the encounters as non-voluntary, starting around the 0:55 mark of the video. You can see how the agent doesn’t go to any great lengths to imply that a response to his question is voluntary.

A rough transcript of the exchange starting around 0:55:
Border Patrol Agent: How’re you doin’, sir, I’m with the United States Border Patrol. Can you please state your citizenship?
Passenger: What do I look like?
Border Patrol Agent: Well, you know what, what does an American look like?
Passenger: That’s a shame… do I look…
Border Patrol Agent: We are a true…
Passenger: … like I’m from Zimbabwe?
Border Patrol Agent: … we are a true melting pot, sir. We come in all shapes and colors, and this is not about ethnicity…
Passenger: I was born in Los Angeles.
Border Patrol Agent: … or race. It’s all about nationality. Thank you, sir, that makes you a United States citizen.

Among other things, the Families for Freedom report also shows that most people arrested during such checks are detained, and that most arrestees are people of color not from Canada. Similar to McCommons’ suspicion in Waiting on a Train, the report notes that “accounts of [Customs and Border Protection] operations raise serious concerns that Border Patrol agents resort to racial and ethnic profiling techniques to determine who to stop, question or arrest” (pg. 26 of the report).

The whole report is worth reading, not only for the look at the data DHS provided on these arrests, but also these concluding thoughts:

Moreover, there is the underlying question of whether Border Patrol officers should be engaged in enforcement actions on domestic trains and buses in the first place. Do we want to live in a country where armed officers approach Americans engaged in no wrongdoing and ask them to produce papers to prove that they are indeed Americans? Since New York City falls entirely within 100 miles of the border, should armed Border Patrol agents ride the subway asking passengers questions about their citizenship and detaining individuals who cannot prove their status? Customs and Border Protection claims this authority, yet most Americans would find it objectionable.

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.

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.

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.

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.”

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: 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.

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).

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.