Last month the Supreme Court announced it would address the issue of the death penalty and the mentally disabled. The scenario is one that Cornell Professor John Blume has published on frequently throughout his career and he has recently been quoted in media reports detailing the court’s decision to clarify its death penalty jurisprudence by granting cert in Hall v. Florida.

In Hall, the defendant faces the death penalty in Florida and the Court is considering whether his situation mirrors that of the Atkins v. Virginia, 536 U.S. 304 (2002) when the court held that executions of mentally disabled criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment.

The Scholarship@Cornell Law repository is featuring two of Blume’s publications dealing directly with Atkins and the issue of mental disability in death penalty cases.

The first, co-authored with Sheri Lynn Johnson and Christopher Seeds is titled An Empirical Look at Atkins v. Virginia and its Application in Capital Cases, 76 Tenn. L. Rev. 625 (2009). The article looks at data of decisions post-Atkins to examine the implications it has had on factually similar cases. The second, Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J. L. & Pol’y 689 (2009) also co-authored with Johnson and Seeds, examines the cross-jurisdictional similarities and differences of how states’ define mental disability post-Atkins.

For more on the latest scholarly articles from Professor Blume and the rest of the law school faculty visit the repository at Scholarship@Cornell Law.

Despite the government shutdown the Supreme Court began its new term last week. To kickoff the start of the new session we’ve collected a few helpful resources and links for tracking the latest SCOTUS news and developments:

  • SCOTUSblog – considered one the premier destinations for up to date information and analysis.
  • LII Supreme Court Bulletin - Cornell’s Legal Information Institute provides previews of the 2013-2014 term as a whole as well as previews and commentary of upcoming individual cases.
  • PBS does a great job of covering the Court, posting both articles and commentary from the Newshour.
  • For many years, Nina Totenberg has been recognized for her coverage of the Court. Follow her on Twitter at @NinaTotenberg.

The United States is not the only country whose supreme court is the exclusive subject of a blog.  Here’s a rundown of a few blogs about other countries’ high courts:

Today only, the rulebook™ app is offering free downloads of the Federal Rules of Civil Procedure, Criminal Procedure, Evidence, Appellate Procedure and Bankruptcy Procedure and the U.S. Supreme Court Rules for your iPhone or iPad.  Each set of rules normally costs $1.99.  The app itself is free — just install the app and then download the rules.  The app allows searching, highlighting, annotating, and bookmarking, and you can also keep multiple rules open at the same time.

Rulebook™ is also be the only place you can download the Bluebook to your iOS device.  It’s $39.99 via the free app.

If you decide to use rulebook™, be sure to let the library know what you think of its interface and functionality.  Thanks!

The Cornell Law School Library has purchased two additional HeinOnline databases, Congress & the Courts and the History of International Law Collection, for use by the Cornell University community.

Congress & the Courts is a collection focusing on the organization, structure, and legislative history of the federal  courts and judiciary.  It includes William H. Manz’s Congress and the Courts: A Legislative History 1787-2010, covering the U.S. Congress’s approaches since 1789 to the composition and structure of Article III Courts.  It also includes Federal Judicial Center publications and scholarly articles about the federal courts.

The History of International Law Collection includes more than 700 titles going back to 1690.  These titles include classic books by authors such as Hugo Grotius and William Douglas, serials such as Studies in Transnational Legal Policy and Judicial Settlement of International Disputes, scholarly articles, and bibliographies.

You can explore the contents of these databases here.

Electronic filing of court papers with public access to many of the documents is now the standard for federal courts through PACER. And now New York State Courts have an e-Filing System, NYSCEF. NYSCEF permits the filing of legal papers by electronic means with the County Clerk and the courts in certain case types in designated venues, as well as electronic service of papers in those cases. Tompkins County is not yet one of the venues; click here for the list of current counties eligible.

For free public access, any individual can search via the “search as guest” function on the Log In screen; no NYSCEF account is required. However, the judge can order the county clerk to seal particular documents or the entire case. “Sensitive” documents can be viewed by attorneys consented in that particular case and by the public at the county clerk computer.

A demonstration video designed to familiarize filers with its functionality is available here. How to get to the Courthouse is no longer the first problem new lawyers have to deal with. NYSCEF and PACER on the web take you there virtually!

U.S. Supreme CourtWhen members of the legal community think about legal scholarship, what typically comes to mind is the concept of a print law journal (e.g., the Cornell Law Review, the Cornell Journal of Law & Public Policy, the Cornell International Law Journal, etc.).  These works undoubtedly serve a very important function, but I wanted to write a bit about another relevant legal journal sited at Cornell Law School: the LII Supreme Court Bulletin.  I am fairly familiar with this Web site, having served as an LII editor during the 2009-10 academic year (my now-outdated biography is viewable here).  The LII Supreme Court Bulletin (“Liibulletin”) contains previews of cases on the Supreme Court’s (“SCOTUS”) docket.  Because the previews are written with recourse to the relevant parties’ submitted briefs (the full versions of which are usually available here) and are published before the decisions are handed down, the previews generally reflect a balanced view of the legal issues unaffected by the bias of hindsight.

Liibulletin is a fantastic resource for people who are interested in keeping abreast of SCOTUS cases, but don’t have tons of free time to do so (e.g., law students who have more than enough assigned reading for courses).  But one of the really neat things about LII bulletin is that it is particularly comprehensible and may be utilized by people without legal educations or backgrounds.  In order to ensure that LII previews remain accessible to lay persons, all the previews contain hyperlinks to a free legal dictionary and encyclopedia called Wex.  You will also note, by the way, that this dictionary, although frequently embedded within Liibulletin, is its own free-standing resource.

Each preview contains the following sections:

(1) A few key subject areas and descriptive terms.  These lists of terms are useful since anyone can perform a subject-matter search in Liibulletin across SCOTUS terms.

(2) An executive summary.  This section, which is emailed to all Liibulletin subscribers, succinctly identifies the relevant facts, issues, and arguments of the case.  It also generally addresses the legal (and, if relevant, nonlegal) significance(s) of the case.

(3) Itemized questions presented. These are copied verbatim as provided on the Supreme Court’s case schedule.

(4) Itemized issues.  As I mentioned earlier, Liibulletin is published with the underlying goal of making the law accessible to the public.  In this way, this section can be thought of as a simplification of the questions presented section.

(5) Factual narrative.  Predictably, this section tells a balanced story of the case and discusses facts pertinent to the controversy before the Court.

(6) Discussion.  This is the section that focuses on the greater picture.  It calls into question the consequences of the case from largely a policy perspective.  This section more or less explains the importance of the case.

(7) Analysis.  The analysis section is a detailed and balanced analysis and explanation of the legal issues before the Court.  It typically goes beyond summarizing the parties’ briefs and actually synthesizes the lower courts’ opinions and the briefs submitted by amici curiae.

(8) Conclusion.  The conclusion essentially restates the executive summary by tying everything together.  Once in a while, LII editors will include their own opinions about how the Court should rule.

(9) Additional Sources.  Each preview concludes with a list of additional legal sources that discuss the case.

I absolutely encourage anyone (or better yet, everyone) with an interest in learning about the Supreme Court’s docket to peruse the previews. If you’d like to have the previews sent directly to your email address, you can subscribe to Liibulletin here.

Daniel Shatz, Cornell Law School 3L Student

Photo courtesy of dbking’s Flickr stream.

If you are going to be clerking for a judge or are considering clerking for a judge in any of the federal district courts or courts of appeal, the Almanac of the Federal Judiciary is a great place to learn about federal judges. The Almanac comes in two large binders and is filled with interesting information (it is not available electronically). Volume 1 is organized by circuit and covers all the judges in the district courts. The second volume covers all the circuit courts.

The Almanac gives general information about judges from various sources, but relies heavily on information provided by judges to the Senate Judiciary Committee.  Books and articles written by the judge are listed. Summaries or excerpts of testimony of judicial nominees or witnesses are supplied if of interest. Noteworthy Rulings, summaries of cases reported in the press and some recommended by the judges themselves, are included. In addition to coverage of cases, Media Coverage picks up other stories about the judges.

Of keen interest to students is the Lawyer’s Evaluation of each judge. The evaluations are collective opinions of a cross section of lawyers and former law clerks. The evaluations note where there is a division of opinion. Evaluations note the judges’ demeanor and, for the district court judges, their trial philosophies, settlement activity, and leanings in criminal cases and sentencing. The Evaluations give a useful insight into the judge’s temperament. Some quotes give a taste of what is included:

“He is always courteous and impeccably polite.”

“He micro-manages trials.”

“He is a stickler for evidentiary rules. He likes to get caught up in evidentiary hearings. He might require briefs every night.”

“He will not allow anyone to talk in his courtroom.”

“Her legal ability is very good. She is brilliant.”

“He can be very intimidating. He has been known to shout at lawyers.”

“He has a sense of humor….He does not torment the lawyers.”

“He is pretty active in oral argument”

At oral argument “[h]is demeanor is sphinx-like.”

In addition to evaluations of appellate judges, Volume 2 gives Lawyer’s Comments on the various circuits overall.

The Almanac is updated frequently to include newcomers to the bench. The Almanac also covers bankruptcy judges and magistrates.

This helpful set is on reserve.  Ask for it at the circulation desk, call number KF8775.A6 A44 1984.

Between 1950 and 2008, about one out of every 23 opinions of the U.S. circuit courts of appeals cited at least one article from a law review or law journal.

That is one of the findings of a new article posted on SSRN entitled The Use of Legal Scholarship By the Federal Courts of Appeals: An Empirical Study by David L. Schwartz, a professor at Chicago-Kent College of Law, and Lee Petherbridge, a professor at Loyola Law School Los Angeles.

Surprised by that number?  Not only that, but the rate at which U.S. appellate courts cite law journals has been increasing over the past 59 years, from a rate of 3.4% of opinions during 1950-1970 to a rate of 6.21% of opinions during 1999-2008.  This finding challenges the conventional wisdom that courts have been paying less attention to legal scholarship lately (challenges–but doesn’t disprove).

Is the conventional wisdom just plain wrong?  Was it caused by several earlier empirical studies that found a decrease in citations (those studies were done on a much smaller scale)?  The authors of this new study found that about 14% of judges are responsible for about 50% of the citations but do not break this statistic out over time.  Could it be that the percentage of judges citing to legal scholarship is decreasing, and there are few judges now who cite to legal scholarship albeit citing more often?  Does the conventional view stem from negative statements about legal scholarship made by Justice Roberts, Judge Posner, and other prominent jurists?  Is it the result of some combination of these, or is something else going on?

The article makes several suggestions for future research, such as, how do judges really use legal scholarship?  As the authors point out, the methodology of the study isn’t adequate to making fine-tuned observations.  Then there is the even more difficult question: how should legal scholarship be used by the judicial system?  Knowing the answers to these questions will help lawyers and academics be more effective in 1) citing legal scholarship in pleadings submitted to the court; and 2) producing legal scholarship.

As a side note, I was really impressed with the search query the authors used to search for opinions that cite law review and journal articles in Westlaw:

da(YYYY) & ((“l.j.” “l. rev.” “l.rev.” “j.l.” “law review”) /10 (20** 19** 18**)) % ((j.l. /4 v.) ti((j. /2 l.) lj jl j.l. l.j.) (at(lj jl l.j. j.l.)) (“nat! l.j.” “national law journal”))

 The first part of the query looks for opinions published during a year period that cite law reviews or journals, the second part after % (BUT NOT) limits the query from retrieving cases where L and J are cited as someone’s initials and citations to the National Law Journal (not an academic publication). The query is not perfect, but it is about as close as you can reasonably get.

Hat tip to Legal Informatics Blog for the SSRN posting.

PACER is an online database for downloading copies of federal court filings: complaints, answers, motions, etc.  Trouble is, it costs 8 cents per page to download a document.  8 cents may not seem like a lot, but it adds up quickly.  PACER also charges 8 cents to look at a page of search results.  PACER isn’t the most user-friendly database–you can’t search the full text of documents.  You can pretty much only search by party name, court, and docket number, so you have to know what you are looking for.  Critics of PACER think the government is overcharging for the service because it makes a sizable profit off documents that are public record (one of the rare government services that actually makes money).

A team of talented people at the Center for Information Technology Policy at Princeton developed RECAP (PACER spelled backwards) to help researchers get federal filings for free.  RECAP is a Firefox extension (a bit of code that adds functionality to an Internet browser) that automatically archives PACER documents when people who have RECAP download them.  Then, if you have RECAP, you can search PACER to see which documents have already been downloaded and are available for free.

Now it is even easier to find free federal case filings because the stand-alone RECAP Archive is available–no PACER account or RECAP add-on needed.  Pulling up the docket for a case lets you see which documents are available to download for free and which must be purchased through PACER.  The Archive is easy to use.  Let the RECAP team know if you encounter a bug or have an idea to improve the site. Note that you still can’t search the full text of the filings, only the docket (Hat tip to Erika Wayne at Stanford for posting the clarification).

The Archive has some interesting features, like the ability to add tags to dockets and link related cases together.  The tags didn’t seem very helpful because I could not limit my search to specific tags.  I’m not sure that people will add enough tags to make tags useful for finding cases.

An important problem to consider when using court filings from PACER is the availability of personal information like bank accounts and social security numbers in some documents.  Sensitive information should be redacted before documents are uploaded into the system but often isn’t due to the huge volume of documents handled by the courts.  RECAP’s servers scan documents for social security numbers, but other sensitive information is difficult to identify through automated processes (e.g., names of minor children).  RECAP asks that documents with sensitive information be brought to their attention.  Ultimately this problem is best fixed by the courts, possibly by limiting the inclusion of sensitive information to one designated filing type for all cases and keeping those documents in a separate, secure system.  Courts should also consider abandoning entirely the use of paper documents for sensitive information in favor of an electronic database.

If you download documents from PACER, consider installing the RECAP add-on so you can contribute to the open access of information.

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