In a few weeks it will be spring, and we’ll have a rush of Supreme Court opinions to look forward to.  The court will marshal a good two centuries of precedent in reaching its decisions, and I’m sure we’ll see references to Marbury and to Erie, from Celotex to Twombly.  But we’ll also see a few references to a more obscure case.

U.S. v. Detroit Timber and Lumber Company, 200 U.S. 321, was decided 106 years ago this coming weekend.  Writing for a majority, Justice Brewer addressed some obscure points of law regarding the right to cut timber on public lands.  However, in rejecting a precedent proffered by one of the parties, he made the statement that would earn Detroit Timber its place in the history books: “[T]he headnote is not the work of the court…It is simply the work of the reporter…and is prepared for the convenience of the profession.”  It is for this proposition that Detroit Timber is cited in almost every decision released by the Supreme Court today:

Outside the court’s standard footnote, headnotes and case syllabi have been mentioned by the court a few other times.

Database: SCT

Search: op(head-note)

Result: 57 Documents

Database: SCT

Search: op(syllabus /s case court)

Result:  86 Documents (the extra search language is necessary to weed out unrelated education cases)

Most of these cases refer to annotations of State Supreme Courts, which, in some States, actually is “the work of the Court,” and does “state its decision.”  This rule in the States is probably what led Solicitor General Hoyt to make his failed argument from the annotations in Detroit Timber (Justice Brewer even recognizes that some States have a different rule).  He probably wasn’t the first to make this mistake, and he almost certainly won’t be the last.

Distinguishing the Court’s legal opinion from research tools can be extremely important.  Background on a particularly infamous invocation of the annotations can be found by running the following search in JLR: corporate /3 personhood /p head-note syllab!.  I saw 5 results, each of which gives a decent introduction to the history of this particular legal concept.

The court reporter who wrote the headnote into the official record of the Santa Clara decision was an adept lawyer who had ties to the railroad industry…Since only the text of judicial opinions is binding precedent, this case should not have been cited since then as the bedrock case supporting corporate personhood.

24 JENVLL 75, fn 122

Our attorney editors may be adept but they don’t have ties to the railroad industry. This 2008 video does a good job outlining how Westlaw adds headnotes. Watch our editors add headnotes at 2:58.

See Mr. Gil Grantmore’s brief history of U.S. v. Detroit Timber and Lumber Company at 5 Greenbag 157.

Detroit Timber clearly does not stand for the proposition that the headnote is irrelevant or inappropriate for citation. On the contrary, after explaining the genesis of the headnote, the Court goes on very carefully to consider its substance. True, the headnote did not carry the imprimatur of the Court. But it nevertheless seems to have been considered at least respectable persuasive authority. The common view today that the syllabus is valueless cannot be supported by Detroit Timber.

As Jill V. mentioned the other day, Hostess, makers of Ding-Dongs, Ho-Hos, and assorted other guilty pleasures, filed for bankruptcy recently.  The case is pending in the Bankruptcy Court for the Southern District of New York, under Docket numbers 7:12-bk-22051 through 22056. Hostess previously declared bankruptcy in 2004, in the Western District of Missouri.  The Docket number for that case was 4:04-bk-45814.

But even that prior bankruptcy wasn’t the first time Hostess made front page legal news.  That distinction goes to the so-called Twinkie Defense.  This is the mildly derogatory term applied to former San Francisco Supervisor Dan White’s defense when tried for the double murder of Mayor George Moscone and Supervisor Harvey Milk (some of the essential facts of the case can be found at 117 Cal. App. 3d 270).   Contrary to popular memory, Mr. White did not argue that eating a Twinkie had caused him to commit murder; he actually argued that he suffered from severe depression, which prevented him forming the requisite mens rea for homicide; his consumption of junk food was introduced merely as a symptom.  See footnote 204 in 36 USFLR 261.

The Twinkie Defense had a direct impact on California law when the legislature chose to amend Cal. Penal Code § 28 to abolish the Diminished Capacity defense and replace it with the slightly different ‘Diminished actuality’ defense.  The literal impact of this change can be found in the annotations to the current Penal Code § 28.  While Westlaw doesn’t have legislative history from California for 1982, a search for, diminished /3 capacity /p diminished /3 actual!, in the JLR database reveals 17 articles, which do a pretty good job discussing the motivation behind the change.

The Twinkie Defense had a brief return to the spotlight in 2006, when Justice Scalia mentioned it at oral argument in the case of U.S. v. Gonzalez-Lopez, ostensibly as an example of the kind of innovative thinking a good defense lawyer can do.  Less often mentioned was Scalia’s next sentence, “I would not consider the Twinkie defense an invention of a competent lawyer.” The transcript is available at 2006 WL 1134467.

For a sense of what people thought of the Twinkie Defense at the time, you can run the search, twinkie /1 defense & da(bef 1/1/1984) in ALLNEWS (11 results).  For more on Hostess’s ongoing financial troubles, try, hostess /s bankruptcy & da(aft 1/1/2004) in the same place.  And while I wish it had been me, credit for the first Bankruptcy/Twinkie defense connection must go the Editorial Board at the Hartford Courant, as revealed by simply combining the last two searches into HOSTESS /S BANKRUPTCY & TWINKIE /3 DEFENSE.

What would have been a major legislative accomplishment by the incumbent administration is now dead, thanks to the Supreme Court. Some observers are completely shocked, others seem to have sensed it was coming.  Still, it’s a major setback in the attempt to become the last major world economy to enact this type of regulation on the national level.

I’m referring, of course, to the Supreme Court of Canada’s December 22nd advisory opinion, Reference re Securities Act, which ruled that the Canadian Government’s proposal to create a national securities Regulator would be  unconstitutional if enacted.  The opinion can be found on Westlaw at 2011 SCC 66 (note that this is a non-unique cite used for both the English and French language opinions).  Canada is the only industrialized country that does not regulate its securities trade at the national level, and it seems for now, that it’s not going to start in the near future.

For some initial reaction to (and analysis of) the decision, I recommend searching SECURITIES & DA(AFT 12/21/2011 & BEF 12/24/2011) in the GlobeMail database.  This relatively simple search retrieves 21 articles from one of Canada’s leading news publications, nearly all of which are directly on point.  When searching for securities and finance related materials, searching the plural “Securities” can lead to far more accurate results than searching for Security or Securit!.

While the Government’s proposed plan is now off the table, the advocates of a national securities regulator are not finished, especially when the Supreme Court’s opinion is seen as having left the door open for future efforts.  For some ideas about where this debate will go next, I went to the TP-Canada database and did a search for securities /s regulat! /s national federal.  This yielded 195 hits, with 35 coming from the past 3 years.  Those 35 should give you a good sense of the roads-not-taken-but-not-yet-Constitutionally-barred.

Research References

Check out the Canadian Securities Administrators Website:

The 10 provinces and 3 territories in Canada are responsible for securities regulations. Securities regulators from each province and territory have teamed up to form the Canadian Securities Administrators, or CSA for short. The CSA is primarily responsible for developing a harmonized approach to securities regulation across the country.

Canada’s System for Electronic Document Analysis and Retrieval (SEDAR) can be found on Business Law Research’s Securities-Canada tab along with a variety of Canadia-specific securities secondary sources:

Mr. John Hithon of Alabama got an early Christmas present this year, when, on December 16, a 3 judge panel of 11th Circuit Court of Appeals reversed itself and re-instated a jury verdict that had been entered against his former employer in the case of Ash v. Tyson Foods, 2011 WL 6270741.  If this story seems familiar, you probably heard about it in the same place I did, the New York Times front page earlier this week.  If you didn’t see their write-up, it’s available on Westlaw at 2011 WLNR 26636445.

For the Times, and probably for a lot of the general public, this case was of interest because a part of it concerned whether use of the term ‘boy’ was a racial epithet, or merely water-cooler conversation.  When the Court, in 2010, held it to be mere conversation, the Plaintiff lost his discrimination claim; by holding that the racial overtones were a matter for the jury, his claim survived.

The Times noted that it is fairly rare for a Court of Appeals to reverse itself outside of the scenario of an en banc reconsideration.  I put together the following search:

sy(prior previous earlier /s opinion /s vacat! & motion moved petition! /3 re-hear!) % sy(“en banc”)

In our Court of Appeals content on WestlawNext (or CTA on Westlaw) this search finds 44 results, with Ash v. Tyson being the most recent (without the excluding the words “en banc,” the search returns 59 cases).  In the KeyCite history, these cases are noted with a straightforward ‘vacated on rehearing’ or ‘vacated on reconsideration.’   Searches like this one – within the synopsis field -  are great for users who want cases with a particular procedural posture.   Note that many cases also include Holding (HG) and Background (BG) field data. But, these fields are included in SY.  And, I actually found that searching in the Synopsis returned better results than searching the Holding field.

Field outlines for various document types can be found on WestlawNext from the Advanced Search link.  For example, see the Fields for Cases (pdf) document we pulled from the advanced search link at the cases page.

My election law professor once suggested that an entire voting rights class could be taught using only cases from North Carolina and Texas.  This past week was an excellent example of why. 

The bigger story comes from Texas.  Under the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that must get the Department of Justice to approve any change in its election laws, to ensure that the changes do not have the effect of disenfranchising voters on the basis of race (the approval process is called ‘preclearance.’) Changes to where district lines are drawn are one of the many election related functions requiring preclearance.  Most jurisdictions requiring preclearance are in the South, but the list includes states as far north as Alaska (a full list can be found at 28 C.F.R. Pt. 51, App.)

This year, Texas did not receive preclearance from the Department of Justice for its newly adopted map, so it filed suit in the District of the District of Columbia seeking declaratory judgment that the new map did not abridge voting rights on the basis of race.  On Tuesday, a three judge panel denied Texas’s Motion for Summary Judgment, and noted that a second panel, in the Western District of Texas, will have to draw new maps for use next year.  The docket for the D.C. case can be found on WestlawNext at Docket Number 1:11-cv-01303; the order denying summary judgment can be found at Docket Entry No. 106. It’s not clear how long it will take to draw new maps, but when they are available, I expect them to be available on WestlawNext in W.D. Tex. Docket 5:11-cv-00360. 

Meanwhile, in North Carolina, a set of maps that had already been pre-cleared had to be redrawn.  Apparently, a small mistake in a computer program used to aid the state’s redistricting efforts left half a million North Carolinians living outside of any legislative district.  For more on this, try the following search in North Carolina News in WestlawNext:

 advanced:(re-district! & 500,000 (half /3 million) glitch error) & DA(after 11-01-2011). 

I retrieved 23 stories but that number is likely to go up over time. 

While the North Carolina Legislature instituted a fix that ensures everyone in the state has representation, which should in theory be the end of this embarrassing episode, some opponents say that the change runs afoul of a North Carolina requirements that districts be drawn only once every ten years.  A search in the North Carolina Statutes for “Apportion! /s unalter!” returns the two provisions at issue. 

A quick WestlawNext search across all dockets for “advanced:KNOS(110.50) & DA(after 01-01-2011)” reveals 148 voting rights cases filed since the beginning of this year, and more are likely to be filed in the coming weeks.  There’s no way of knowing which will end with a bang, and which with a whimper, but in every decade since the Voting Rights Act passed, at least one state’s maps have been debated in the U.S. Supreme Court.

Today marks the 40th Anniversary of the beginning of the riots at Attica State Prison in New York.  40 years ago, an organized group of prisoners took control of a wing of Attica state prison, taking more than 30 hostages and holding them until security guards in concert with the military retook the prison on September 13, with casualties in the dozens.  (The sad and grisly details of this event are more fully recounted in Inmates of Attica v. Rockefeller, 453 F.2d 12).

Due to the horrific nature of the events, and the national awareness of them at the time, I wanted to see if there was an appreciable rise in prison litigation in the years following the uprising.  Westlaw has a Topic Number for “Prisons” and related litigation, and because the Prisons heading was fairly inclusive or prisoner’s rights issues, I felt it would be a workable proxy for reported cases on prisoner’s rights.  Running this for the period 1962-1971, then 1972-1981, we see a significant increase in reported prisoner’s rights cases:

310k! & DA(aft 9-13-1961 & bef 9-12-1971): 961 Documents in ALLCASES

310k! & DA(aft 9-13-1971 & bef 9-12-1981): 2795 Documents in ALLCASES

The riots raised awareness about the prison itself.  Just adding the word ‘Attica’ to the above searches reveals this.  in the first search, there were 18 cases that mentioned it, all of them in New York (cases that actually arose from a plaintiff’s stay in Attica).  In the second decade, there were 95 cases, some arising from a range of states, with one reference as far away as Hawaii.  The first case outside New York to mention Attica was published 4 days after the riots ended.  See U.S. ex. Rel Miller v. Twomey, 333 F.Supp. 1352 (N.D. Ill.).

310k! & attica & DA(aft 12-31-1961 & bef 01-01-1972): 18 Documents in Allcases (same as searching New York State and Federal Cases)

310k! & Attica & DA(aft 9-13-1971 & bef 9-12-1981): 95 Documents in Allcases (only 59 when searching New York State and Federal Cases)

While Attica may not have been the initial cause of increased prisoner litigation in the 1970s and beyond, it is certainly one of the most remembered incidents.*

CLE: If you’re interested in learning more about the field of prisoner rights litigation, and some of the hurdles that inmates face even today, there is a CLE Seminar entitled “Representing Plaintiffs in Jail and Prison Litigation” available in the West LegalEdCenter.  It’s accredited for CLE purposes in, among other jurisdictions, New York.

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As you might already know, Wisconsin is holding a series of elections this summer on the subject of recalling 9 Wisconsin State Senators (if you don’t know the background, Reuters wrote a preview last week that really brings you up to speed on it).  The recalls were initiated in response to a controversial bill amending Wisconsin Civil Service rules. 

While the Wisconsin recalls are probably getting the most press, this year has also seen an attempt to recall the Mayor of Omaha in January.  The Mayor of Miami-Dade County was successfully recalled in March. 

As all this has been going on, I’ve been interested to know whether recalls have been featured more prominently in the news recently, or if it just seems that way.  To test this, I ran a quick advanced search in News in WestlawNext.  I searched Recall and Election in opening paragraphs, with a date range of 7/15/10 to 7/16/11 (the one year period before I wrote this).  I came back with 2926 results. 

Advanced: DA(aft 07-15-2010 & bef 07-16-2011) & HLD(recall & election)

2925 Documents in Content: News.

Running the same search, but a year earlier, returns 2095 results in news.  That means there was a significant increase this past year compared to a year earlier.

Advanced: DA(aft 07-15-2009 & bef 07-16-2010 & HLD(recall & election)

2095 Documents in Content: News

This is probably not a fair comparison because the elected officials we would expect to be recalled were at a very different point in the electoral cycle in the 2009-2010 year than they were during the 2010-2011 year.

I ran the same search again in the same July to July time frame with regard to the last midterm election, to get results from a comparable period in the election cycle.

Advanced: DA(aft 07-15-2006 & bef 07-16-2007 & HLD(recall & election)

2060 Documents in Content: News

So there has been a clear increase in recall discussion, even when making the comparison against the last midterm elections.  In fact, the only similar period in which I could find more articles was 2003-2004, which was the year when California Governor Gray Davis was recalled and replaced by Governor Arnold Schwarzenegger. 

I’m left fairly convinced that there has been a distinct increase in the discussion of recalling public officials in the past year, though as the voting is just starting in Wisconsin, I imagine I’ll see even more in the weeks to come. 

See also Nathan A. Persily, The Peculiar Geography of Direct Democracy: why the Initiative, Referendum and Recall Developed in the American West, 2 Mich. L. & Pol’y Rev. 11 (1997).

The renewed use of the tools of direct democracy in the 1990s portends even more frequent clashes between the ultra-democracy of direct legislation and ultimate anti-democracy of an unelected and, at the federal level, virtually unremovable judiciary…