Under 17 U.S.C.A. Section 105, copyright is unavailable for works of the U.S.  government or its employees. Jill’s excellent post last week highlighted the fact that state agencies and the states themselves don’t necessarily share the policy.  Instead state ” [l]egislatures may also be tempted to impose statutory restrictions on information in order to raise revenues from new sources or to accomplish other purposes,” notes Robert Gellman in a 1995 Syracuse Law Review. 45 SYRLR 999.

Could it be enough to defray the cost of the Diamond Jubilee? Hard to say.

Copyright for government works in the the UK and in several  members of her Commowealth, vests in Her Majesty the Queen under what’s called,  Crown Copyright.  See, for example,  R.S.C. 1985, c. C-42, s. 12 and McKeown: Fox on Canadian Law of Copyright and Industrial Designs (FoxCopyright 18).

This 2005 article from the International Journal of Law and Technology by Dr. Stephen Saxby cites to a 1995 Green Paper (pdf) which calculated 95-96 revenue came to £199,318,500.  The Telegraph estimates much more than that for the Jubilee.

This is also interesting because the United States is a signatory to the Berne Convention.  Signatories must extend the same protection to foreign material that they would extend had the same work been created domestically (this summary elides a great deal of detail and nuance).  This raises the specter that a country which extends copyright protection to its own government works would have to similarly extend protection to American government works, even though the U.S. government extends no protection domestically.  For a discussion of that scenario, see footnote 49 in 48 STJIL 185.

Other Research References

To see the British law on Crown Copyrights, try the search crown /2 copyright in UK-ST. I found 32 results.

The Berne Convention on Westlaw.  The relevant database is IEL (International Economic Law Documents) and the relevant search is ti(“berne convention”), and the results show both the original agreement and subsequent amendments.

Finally, 2002 SYLTJ 1 gives a brief description how easy it would be to register an American government document with the Canadian Copyright office.

One of my clearest memories from the week of on-campus interviews at the beginning of my 2L-year was a question many students were asking;  “what does it mean that Dewey Ballantine is merging with LeBoeuf & Lamb? “  Both firms distributed documents to dispel rumors.  In essence, they read,   “don’t worry, we’re still hiring the same number of Summer Associates.” I’ve been thinking about this as I read that Dewey & LeBoeuf has negotiated an extension on its current debt, giving it time to get its house in order.

The Economist covered Dewey’s troubles last week (article also available at 2012 WLNR 8835899).  That article discusses why it can be difficult for professional partnership businesses (such as law firms) to escape downward debt spiral, because the firm can’t meet obligations by liquidating assets (a professional corporation’s only real assets are the professionals), and can’t resort to the market for funding, as a public company would.

The comparison of law firms and public companies is a fascinating one, especially this year.  In January, a public company, Quindell Portfolio, filed for a license to purchase British personal injury firm Silverbeck Rymer.  This moment has been anticipated for some time, after Britain’s Legal Services Act of 2007, which, among a series of other reforms, allowed law firms to be owned in part by non-lawyers.  See UK ST 2007 c. 29 Pt 5 s. 71 et seq (Research Note: run the bolded portion of this citation as a find to deliver the document on Westlaw.  The “Arrangement of Act” link delivers the Act’s table of contents.).    Approval of the sale by the relevant regulatory agencies is still pending.

In the United States, only the District of Columbia allows any profits from the practice of law to flow to non-lawyers (see D.C. Rule of Professional Conduct 5.4(b)).  In recent years, though, there has been increasing discussion of changing the rules to allow for greater non-lawyer participation in firm ownership and governance, including in the halls of the American Bar Association.  See 22 No. 1 Experience 5.  For more material on these debates, try the following search from the Secondary Sources page on WestlawNext:

Search: alternative /3 law legal /3 practice firm business /3 structure organization

Result: 45 Documents

Filters: You can use the filters on the left to look specificially at law review articles or CLE materials (i.e. ALI-ABA and PLI).

Almost half of the results are from the past 5 years, which suggests increased interest in a change from the partnership model.  One day, Dewey & LeBoeuf may be remembered as one of the last firms to face down a debt crisis without the ability to look to the public for aid.

The Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, is a piece of legislation that many of us have had to deal with.  It is codified beginning at 29 USCA 1181, with important regulations starting at 45 CFR 106.101 and continuing through much of the rest of that title.  It raises a lot of questions for medical providers (and a few questions for entities seemingly disconnected from the medical trade), but one of the most fascinating questions for me has always been: why do some people abbreviate it with two Ps?

A search in Allcases for H.I.P.A.A. (the periods are rarely used, but you would miss a few cases if you didn’t include them) finds 1773 results.  But a similar search for H.I.P.P.A. finds 599 results, despite the fact that there is only a single P in the name of the act.  Perhaps some of these are mere typos, but if you run H.I.P.P.A. % H.I.P.A.A., there are still 393 cases using only the mistaken acronym, with no mention of the original (some of these, it bears mentioning, are older, pre-HIPAA cases with a party name that appears similar, but a quick look at the result list shows that not all of the errors are of that sort).  I even tracked down 98 cases that use different acronyms within a paragraph of one another (H.I.P.A.A. /p H.I.P.P.A.).*

The earliest** case using the second P is Wright v. Combined Ins. Co. of America, 959 F.Supp. 356, from February 3, 1997.  Note, however, that WestlawNext seems to know what we’re looking for.  The following query pulled from Wright higlights “HIPPA” as well as “HIPAA.”

In HIPPA, the undersigned cannot find any “manifest congressional intent” to create a new federal cause of action which is removable to federal court….delivers the following results

There is at least one earlier misspelling, from a 1996 article in the Health Lawyer (available at 9 No. 3. Health Law. 16).

The mistaken acronym is sometimes even expanded into a full mistaken name for the act with the different “Ps” standing for some mix of ‘privacy,’ ‘protection’ and ‘portability.’  A locate within the earlier H.I.P.P.A. results for “health /s information /s privacy portability /s protection” yields 26 results.  Of those, one, the opinion in Boese v. Slaughter, 2007 WL 1071924, bears mention, as it goes out of its way to tell the reader HIPPA is, to quote Magistrate Judge Strong, an ‘inaccurate acronym.’

*A few cases even refer to H.I.P.P.A.A.

**This is easily determined by running H.I.P.P.A. with a shifting date restrictor, which just means using a date restrictor and moving the relevant date a few years at a time until you get a manageable result list. H.I.P.P.A. finds 596 in allcases, but adding da(bef 2000) finds only 34, and changing it to 1998 takes that down to 31, most of which are pre-HIPAA references to someone with the last name ‘Hipp.’

The Patient Protection and Affordable Care Act, more formally known as Pub. L. 111-148 and less formally known as Obamacare, had its day in court this week.  Actually, it was 3 days. The following search on Westlaw.com will retrieve all of this week’s oral arguments concerning the health care law:

Search – da(aft 3/25/2012) & COURT (4 Docs) in SCT-ORALARG

Day 1 – 2012 WL 993811

Day 2 – 2012 WL 1017220

Day 3 -2012 WL 1031485

Day 3 – 2012 WL 1031484

There is a great deal to be said about the legislation and the litigation, and I’m sure some of my colleagues will say a great deal about it.  Personally, I was fascinated by the arguments of Robert Long on the Anti-Injunction Act during the Monday session.  Not the part where Mr. Long actually discussed the anti-injunction act, but the fact that an attorney was allowed to put forth an argument that none of the parties was making.

A little over a year ago, the New York Times ran an article on the court’s practice of appointing counsel to take up ‘orphan arguments,’ legal positions that could be argued but which none of the parties is willing to support.  The article can be found at 2010 WLNR 24688454. Not long after that article, a Note in the Stanford Law Review addressed this same topic, it can be found at 63 Stan. L. Rev. 907.

If you want to see some of the cases where counsel has been appointed to make an argument for the amici, try the following search in the SCT-ORALARG database:

court /3 appoint! /s amic!

I found 14 results, but after Wednesday’s oral arguments are loaded there will be more; Bartow Farr, III spent Wednesday morning arguing the issue of severability in the PPACA litigation.  He is the second court-appointed counsel in that case.

It’s Leap Day, that special holiday that only comes once every four years and isn’t really a holiday.  I wanted to see if anything of legal interest took place on leap days past.  Westlaw doesn’t allow a date restrictor with a month and day, but no year; it’s not too difficult to work around this, though:

pr(filed released decided published +s feb. february +s 29) (729 Docs)ALLCASES

Of course, if you want to find leap day cases from a particular year, you can just use the normal date restrictor.  For example:

Court & da(02/29/1900) (0 Docs) ALLCASES

That doesn’t seem right.  1900 was a year divisible by 4, there must have been some cases published on leap day that year.  Oh wait, that’s right, leap day occurs in years divisible by 4, but not in years divisible by 100.  A few cases have mentioned and discussed this.

leap +2 day year /p 1900 (3 Docs)ALLCASES

In more practical considerations, an extra day can affect computation of time for anything measured in months or years.  A few prisoners have argued that their prison terms were excessive, as they included extra days from multiple leap years, and a some individuals have tried to argue that Statutes of Limitations ran a day earlier than expected.

378k4 & leap +2 year day (42 Docs)ALLCASES

378k4 is the Key number for Time>Years.  Most jurisdictions seem to have adopted a rule that a ‘year’ is a calendar year, consisting of 366 days in leap years.  For an alternative view, see Sain v. City of Bend, 309 F.3d 1134 (9th Cir. 2002).

See also Jeremy Byellin’s post at WestlawInsider.

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.