BLS Library Blog

An article in the New York Law Journal entitled Court Issues ‘Wake-Up Call’ On Slipshod Search Terms (password required) makes clear that formulating proper keyword searches is not just an academic exercise. This is especially so in a time when attorneys are required to design search terms for electronic discovery of emails and other electronically stored information (ESI). The article cites an opinion and order by U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York in which, the magistrate, weary of deficient keyword searches, recently issued a self-styled “wake-up call” to members of the bar in the Southern District. Magistrate Judge Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation rather than attorneys designing keywords without adequate information “by the seat of their pants”.

The opinion was issued in William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co. a case involving multiple parties and multi-million dollar claims concerning alleged defects and delays in the construction of the Bronx County Hall of Justice. Describing this case as “just the latest example of lawyers designing keyword searches in the dark,” without adequate discussion with those who wrote the e-mails, Magistrate Judge Peck cited to prior warnings about this problem from judges in other courts. In his view, these prior warnings had not gotten through to the bar in the Southern District. The earlier warnings were tailored to the different circumstances of those cases, but Magistrate Judge Peck apparently thought them equally applicable across the spectrum of electronic discovery issues.

Magistrate Judge Peck’s opinion stressed four requirements for the production of ESI.

· There must be cooperation between opposing counsel. Therefore, he strongly endorsed The Sedona Conference Cooperation Proclamation.
· Second, attorneys must carefully design the appropriate keywords.
· Third, these keywords should be selected with the input from the ESI’s custodians.
· Finally, the proposed technique should be validated to ensure it is not substantially over-inclusive or under-inclusive.

In the conclusion of his opinion, Magistrate Judge Peck wrote:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives”. It is time that the Bar – even those lawyers who did not come of age in the computer era – understand the importance of properly crafted electronic searches.

Listen to this episode on BrooklynWorks. 

In this conversation, Prof. Anita Bernstein, Anita and Stuart Subotnick Professor of Law at BLS, discusses her recent article Pitfalls Ahead: A Manifesto for the Training of Lawyers, 94 Cornell L. Rev. 479 (2009). This is a very instructive article for all law students and especially timely for graduating students. The abstract reads:

Many entrants into the legal profession decided to become lawyers after they were inspired by improvements in social conditions achieved by lawyers like Abraham Lincoln and Thurgood Marshall or literary heroes like Atticus Finch. The historical record of achievement recursively invites new generations into this occupation. Once these entrants arrive at law school, however, the sense of inspiration with which they began often fades, and an inchoate pessimism, if not full-blown cynicism or depression, takes its place. Critics of contemporary legal education who lament this descent into malaise tend to see no cure for it. When they do offer a fix, it looks uncannily like an agenda they advocated in another context, repackaged as a tonic

This Essay explores a better source of vigor and occupational skill within legal education. Learning about the perils and defeats that their profession experiences would, paradoxically, increase the strengths of new lawyers. In this context, forewarned really does mean forearmed. Informed judgment about this profession includes knowing how and why lawyers lose their licenses; why a lawyer pays out money for malpractice; what constitutes a breach of fiduciary duty; what level of work performance is incompetent or ineffective under the Sixth Amendment; when to struggle against judges; why a lawyer is disqualified from representing clients; and why lawyers forfeit some of their freedoms of speech and association. A command of pitfalls enables individual lawyers not only to defend themselves against the attacks they might someday face but also to advance what is good for their clients and the public. Only from a base of pitfalls-knowledge can lawyers master their own profession.

The WSJ Law Blog has a interesting post about charges filed against the Somali teenager, Abduwali Abdukhadir Muse, in the US District Court for the Southern District of New York. The 10 page criminal complaint charges Muse with conspiracy to seize a ship by force as well as the rarely invoked charge of piracy under 18 U.S.C. § 1651. The piracy statute states:

“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”

On its face, a charge of piracy may seem fairly straightforward. But, as the Law Blog post suggests, the definition of piracy is not so simple. The statue states that the crime of piracy shall be defined by “the law of nations” not by Congress. This raises the issue of which law of nations federal prosecutors should look to for guidance especially since the last international treaty discussing piracy that the U.S. ratified was the 1958 Law of the Sea treaty. The more recent United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 3 (UNCLOS) concluded on Dec. 10, 1982 was never ratified by the US.

The complexities of charging the crime of piracy is the subject of an article Protections Afforded to Captured Pirates under the Law of War and International Law, 33 Tulane Maritime Law Journal 1 (2008) by Michael Passman, BLS Class of 2008. Passman was a member of the Executive Board of the Brooklyn Journal of Corporate, Financial and Commercial Law and the Symposium Editor when he attended BLS.

This detailed article states that, while pirates may be captured on the high seas or outside the territory of any state under international law, they are to be tried and punished under the criminal law of the state holding them in local courts, not under international law in an international tribunal. The article argues that pirates are unique in that they are arguably a hybrid between criminal and combatant, neither true civilians nor true belligerents. For that reason, it is not clear whether they are protected by international humanitarian law, such as the Geneva Convention, or even by country-specific protections for the criminally accused, such as the US Bill of Rights. Passman’s article focuses on whether international humanitarian law, specifically the Third and Fourth Geneva Convention and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, apply to pirates.

The BLS Library catalog, SARA, links to an internet site Information Resources on Piracy and Armed Robbery at Sea (Call #VK203 .I63 2009) for more resources on the subject.

The Brooklyn Law Review will publish in its forthcoming edition an article by Western New England College School of Law Assistant Professor of Law Sudha Setty entitled Litigating Secrets: Comparative Perspectives on the State Secrets Privilege. The article is very timely given the litigation now pending in the Northern District of California in the cases of Al-Haramain v. Bush and Jewel v. National Security Agency. In both cases, the Obama administration has adopted the Bush administration’s position that courts cannot judge the legality of the National Security Agency’s (NSA’s) warrantless wiretapping program. The government filed a motion to dismiss Jewel v. NSA earlier this month. In the Al-Haramain case, a civil suit brought by an Islamic charity allegedly subjected to illegal NSA surveillance, Judge Vaughn Walker has just issued a protective order requiring the government to come up with a way to safeguard the classified information it plans to present in the NSA’s defense by May 8. Walker crafted the order narrowly to prevent the government from appealing it immediately to the Ninth Circuit. Whether the administration presents a plan for safeguarding classified information or re-asserts the state secrets privilege remains to be seen.

The abstract of the article on SSRN reads:

The Article considers the history and use of the state secrets privilege in the United States and the ongoing congressional efforts to reform the use of the privilege. Although numerous articles have addressed the application of the state secrets privilege in the United States, this Article breaks new ground by examining the history and use of the privilege in other nations which confront serious national security threats. This Article considers the modern application the privilege in Scotland, England, Israel and India – an analysis which contextualizes both the current use of the U.S. privilege and the efforts at legislative reform. Such comparative analysis is necessary to fully understand the transnational implications of the U.S. application of the state secrets privilege, which have recently come to light in litigation involving both the United States and England.

This Article concludes that domestic reform efforts continue to be necessary to achieve an appropriate application of the privilege which balances national security with the need to preserve the rule of law, individual rights, liberty interests and government accountability. The Article further suggests that reforms should explicitly account for alleged human rights abuses by the government in determining whether a claim of privilege should be upheld.

For additional reading from the BLS Library collection on the subject of state secrets, see SARA, the online catalog for Presidential Secrecy and the Law by Robert M. Pallitto and William G. Weaver (Call # JK468.S4 P35 2007) and Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments (Call # KF4570 R66 2007) a Congressional Research Service Report by Morton Rosenberg.

The debate about the use of laptops in class by students has been going on for some time now. Earlier this year, the National Law Journal had an article Survey Favors Clickety-Clack of Laptops in Class reporting on a national study from Indiana University that found that law school students who used their laptops in class were highly engaged in classroom activities. Despite this, many law professors remain skeptical about the benefits of laptops in the classroom. Last month, the Chronicle of Higher Education posted an article Students Stop Surfing After Being Shown How In-Class Laptop Use Lowers Test Scores. So the debate goes on without any clear resolution.

Putting aside who is right and who is wrong in this debate, CALI has now posted a video describing two online tools (CALI Instapoll and Google Moderator) that instructors can use to help engage those in the classroom that are using laptops.

The video runs about 26 minutes and has some useful suggestions for instructors.

The Library of Congress Blog reports in today’s post, YouTube, and Now We Do Too that the Library of Congress has been working for several months on a project to post some of its collection of audiovisual materials (some 6 million films, broadcasts and sound recordings) on its own YouTube channel. The now public project has begun with 74 videos arranged in a series of playlists that are accessible on LC’s YouTube Channel.

This is just the beginning of a project where LC will keep uploading additional content. Besides posting on YouTube, LC will make all of the videos available at LOC.gov and on the American Memory Motion Picture & Television Reading Room.

As an example of one of the videos posted on YouTube, the LC Blog featured a 37 second video entitled Boxing Cats which was filmed around July 1894, in Edison’s Black Maria studio. It may not help with legal research but it is something completely different.

As part of its education program, the US Government Printing Office (GPO) now uses YouTube to further its mission of Keeping America Informed on the three branches of the Federal Government. For nearly 200 years, GPO has worked with libraries throughout the country to provide free, open and permanent access to the documents of our democracy through the Federal Depository Library Program. The public can visit any of the 1,250 Federal depository libraries throughout the country and access information on virtually any topic. 

This five minute video “U.S. Government Printing Office: Working with Libraries” is one that GPO has posted on YouTube along with ten others. See the full list at GPO Printer’s Videos

The Law Librarian Blog reports that UCLA has just released a new Beyond LexisNexis & Westlaw guide which describes a wide range of online legal research resources and covers primary law, government resources, research guides, reference sources, forms, and legal news. The LibGuides platform is so well organized and helpful that the BLS Library has implemented LibGuides to feature research by our librarians. Among the most popular of the BLS guides are: 
 

• Treaty Research Guide by Jean Davis
• Administrative Law Research by Jean Davis
• Researching Statutes by Kathleen Darvil
• New York Civil Practice: Selected Resources by Kathleen Darvil
• New Jersey Legal Resources by Harold O’Grady
• Restatements of the Law: A How to Guide by Kathleen Darvil
• Guide to Pro Bono Projects by Jean Davis
• Resources for Teaching Law School Seminars by Jean Davis

Listen to this episode on BrooklynWorks. 

This podcast is of a conversation with Professor Ben Trachtenberg, Visiting Assistant Professor of Law at BLS for the current academic year. The conversation is about his recent article, The Exception Swallowing the Hearsay Rule: Coconspirators, ‘Coventurers’, and the Confrontation Clause where he discusses his research into the history of the hearsay rule and the exception for statements of co-conspirators. In the article, Professor Trachtenberg argues against a revisionist view of the exception by some prosecutors who disclaim the need to show any wrongful goal whatsoever and argue that when proving the existence of a “conspiracy” to justify admission of evidence under the exception, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not an illegal purpose. This Article contends that such a reading of the Exception is mistaken and undesirable.

In the fall, Prof. Trachtenberg taught Criminal Law and is teaching Environmental Law this spring. He joins BLS from Covington & Burling LLP, where he was a litigation associate. Prior to that, he clerked at the United States Court of Appeals for the Second Circuit with the Hon. Jose A. Cabranes. He served as an articles editor of the Columbia Law Review and is the author of “State Sentencing Policy and New Prison Admissions,” 38 U. Mich. J.L. Reform 479 (2005).