April 2008 – LII News

Toddling Title 6 now sports three chapters!

You might wonder why we feel it’s important to announce the appearance of new material in the US Code — after all, it happens all the time. But the birth of a whole new Title is a special event — and the short title of still-toddling Title 6 is “Domestic Security”. Thus the announcement: in the annual cycle of US Code updates, Title 6–DOMESTIC SECURITY was refreshed February 27, and it went up to three chapters from its original one.

That’s right — Domestic Security started its life in the US Code as a single chapter. This is very unusual. US Code titles “always” have at least three chapters (see, e.g.. the tiny, nearly invisible Title 9). But with Title 6, we are witnessing the start of a new title, complete with a single-chapter phase. The process started, in this case, with Public Law 107-296, the “Homeland Security Act of 2002“. The first codified version was distributed in January of 2004.

This isn’t the first Title 6 we’ve ever had. A prior Title 6, Surety Bonds, was enacted July 30, 1947, and was repealed Sept. 13, 1982. It had fifteen sections, whose content was either repealed or reclassified to other parts of the code. You may read the details of this in an often neglected part of the US Code, the notes:
http://www.law.cornell.edu/uscode/html/uscode06/usc_sup_01_6notes.html

notes button One reason the notes are neglected is that they can become necessarily bulky and intimidating over the years, as they faithfully record many and complex changes. But with the new Title 6, we have a chance to see each transition happening for the first time, including the notes when they are fresh and still simple!

Next friend:definition of the day

Someone who appears in court in place of another who is not competent to do so, usually because they are a minor or are considered incompetent. Often the role is filled by a parent or other relative; it can be any legally-competent person whose interests do not run counter to those of the person on whose behalf they are acting . The “next friend” is not a party to the proceeding, nor are they a formally-appointed guardian. Instead, they are considered an agent of the court whose role is to protect the rights of the incompetent person. See also guardian ad litem.

Our favorite quotes: William Blackstone

So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.

Sir William Blackstone (1723–1780): Commentaries on the Laws of England, 9th ed., book 1, chapter 1, section 3, p. 139 (1783, reprinted 1978).

Gerrymander:defintion of the day

When districts are divided using irregular delineation in order to give one political group an advantage over another. Frequently referred to as “political gerrymandering” or “jurisdictional gerrymandering.” see, e.g. United States v. Hays, 515 US 737 (1995) and Miller v. Johnson, 515 US 900 (1995).

Coming in for a landing

In the specialized language of Google Analytics, a “landing page” is one where users enter your web site directly — that is, either from a bookmark or a link from another site, rather than by referral from another page on your site. They’re interesting to us because they give us a good feel for what our audience feels is worth looking at or recommending to others. From that vantage point, the top 5 Supreme Court cases at the LII are:

Readings in legal information, pt 4

Daniel Poulin’s First Monday article makes a persuasive case for open access to law in developing countries. Daniel, the founder and director of CanLII, has wide experience in bringing open access to Francophone Africa, and it shows. Highly recommended.

Our favorite quotes: Carl Sagan

Extraordinary claims require extraordinary evidence.

Carl Sagan, Astronomer and science writer (1934-1996)

LIIBULLETIN: US Supreme Court arguments this week

April 22 Davis v. Federal Election Commission: Over the years, Congress and the judiciary have made significant changes to the campaign finance system in an attempt to make it more evenhanded and to root out corruption. The case at hand is another test of Congress’s latest attempt to create sustainable election financing laws through the so-called “Millionaire’s Amendment”.

Giles v. California: Defendants have a right to confront witnesses by subjecting them to cross-examination under the Sixth Amendment’s Confrontation Clause, but may waive this right by making a witness unavailable through wrongdoing. The Court’s decision in this case will determine the scope of a defendant’s right to cross-examine witnesses and how broadly courts may apply the forfeiture doctrine.

April 23 Meacham v. Knolls Atomic Power Laboratory: Since 1963, the Age Discrimination in Employment Act (“ADEA”) has provided both a means to ferret out insidious age discrimination and an effective defense for the business community to justify its actions through the “reasonable factors other than age”defense. In this case, the Court will determine whether the burden of proving the “reasonableness” of the challenged practice falls upon the employer or the employee — a decision worth almost $6 million dollars in this case.

Metlife V. Glenn: The Employee Retirement Income Security Act of 1974 (“ERISA”) provides a private cause of action for employees challenging wrongful denials of benefits under an employee benefits plan. In this case, the Court will determine whether and to what extent a plan administrator that both authorizes the payment of benefits and is responsible for the payment of those benefits has a conflict of interest that must be considered on judicial review.

Martin article on court records and privacy; more from colleagues

LII co-founder and Co-Director Emeritus Peter Martin has written an interesting paper on court records and privacy — certainly an issue that is much on our minds here. The tension between openness in court proceedings (on the one hand) and the legitimate privacy interests of participants in the legal system (on the other) are very difficult ones, compounded by many, many private agendas.

We’ve touched on these issues here before, and no doubt will again. If you’re interested, you might take a look at the presentation from Peter Winn that we jointly sponsored with Cornell Information Science in January — and if you’re not interested, you might want to take a look at WhosARat.com. Thirty seconds of thought about what it means to criminal prosecution will get you interested, in a hurry.

Here’s the abstract:

For over a decade the public has had remote access to federal court records held in electronic format, including documents filed by litigants and judicial rulings. First available via dial-up connections, access migrated to the Web in 1998. That and a succession of other improvements to the federal “Public Access to Court Electronic Records” system or PACER prompted the Administrative Office of the United States Courts to proclaim in 2001 that “the advancement of technology has brought the citizen ever closer to the courthouse.” Unquestionably, what the Administrative Office of the U.S. Courts and Judicial Conference of the United States have built offers citizens, businesses, journalists, and scholars unprecedented access to the details of individual court proceedings. But to hold PACER in that frame is to miss much of its impact. Moreover, some of the gains one might hope or expect to flow from enhanced judicial transparency remain largely untouched by this system. The article explores PACER’s evolution, larger impact, and unrealized possibilities. It then proceeds to examine why state courts are, in general, approaching online access to court records so differently.

Also this month: new articles from Greg Alexander and Bob Hockett.

Assault: definition of the day

Attempt to inflict physical harm on another individual, whether successful or not, of which the intended victim is aware. Assault can be both a criminal and civil wrong, redressed by either criminal punishment or damages.