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  Tuesday, July 02, 2002

VIA Ernie the Attorney

Dan Gillmor at Harvard, Listening to Larry Lessig and Blogging about it. Check it out.  I wish I were there.  Oh, and Donna Wentworth is blogging it too.

These are references to two writers attending the The Berkman Center for Internet and Society at Harvard's Internet Law Program this week.  The blogs are fascinating.  Dan Gilmore writes eJournal, a blog at http://www.siliconvalley.com/mld/siliconvalley/business/columnists/dan_gillmor/ejournal/; Donna Wentworth's blog is at http://www.corante.com/copyfight/.

2:53:15 PM comment []   

RSS Tutorial [via The Shifted Librarian].

Publish and Syndicate Your News to the Web

"In this workshop you'll learn how to create, validate, syndicate, and view your own RSS news channel. The emphasis will be the practical application of RSS XML/RDF metadata for dynamically publishing...." [via Serious Instructional Technology]

Now this is an excellent resource! Put up by the Government Information Locator Service (GILS) folks in Utah, this one-page tutorial gives a brief overview of RSS, what it looks like, aggregators (they call them "viewers"), how to locate feeds, how to create your own feeds, how to validate your RSS, and more.

This looks pretty good, although it doesn't appear to mention Radio. Check it out for some basic information.

1:52:36 PM comment []   

Great Article on Copyright laws affecting library digitization projects

Library Digitization Projects and Copyright via [LLRX.com]

It is a well-written, comprehensive article.  Even if you aren't interested in the library side of things, the explanation of copyright law is engaging a clear. [Ernie the Attorney]

Haven't had a chance to read this yet, but it's getting great reviews.

12:44:59 PM comment []   

Via Bag and Baggage:

It may surprise you to learn that most opinions deciding cases on appeal in the U.S. are unpublished, and in general only published decisions have legal weight as citeable precedent in future cases. This practice allows appellate courts to publish (and thus make law) when this would aid the law's development, while resolving more routine cases in unpublished opinons that help prevent an exponential increase in the number of published opinions, and encourage consistency.

Apparently this was news to Congress, and specifically the House Subcommittee on Courts, the Internet and Intellectual Property, which lists "Nonpublication of federal opinions" as an "Oversight Plan" item for the 107th Congress:

During an oversight hearing in the 106th Congress regarding the size and operations of the 9th Circuit, the Subcommittee learned that some opinions in that Circuit are not published. The Circuit’s defense is that it is attempting to implement creative administrative practices that will generate resource savings, and involves only "easy-to-decide" cases for which there is clear and ample precedential authority. Still, the notion of not providing an explanation as to why an affected litigant actually lost a Federal case may not square with fundamental notions of due process. This issue needs to be considered in all judicial circuits.

. . . . . . . . . .

 I think the due process concerns cited in the Oversight Plan are overstated, given that litigants in cases resolved with an unpublished opinion also learn why the court ruled as it did; the opinion simply does not become part of the body of citeable case law. (If Congress wants litigants to have access to judicial reasoning, it should be more concerned about per curiam decisions that simply dictate an outcome without further elaboration.)

. . . . . . . . . .

As Judge Kozinski pointed out to the Subcommittee, use of the term "unpublished" today is anachronistic, and dates back to a time when the only way to access a judicial opinion was through a bound book. Now, both published and unpublished opinions are more widely available, and the terms "published" and "unpublished" may translate more precisely to "precedential" and "nonprecedential," but opinions differ here as well. In many jurisdictions, including California and the Ninth Circuit, unpublished decisions may not be cited to a court in connection with its decision-making process. At the other end of the spectrum, e.g. the D.C. Circuit, some courts permit citation of unpublished opinions "as precedent."

Via How Appealing:

Congress looks at non-precedential federal appellate opinions. CONGRESS LOOKS AT NON-PRECEDENTIAL FEDERAL APPELLATE OPINIONS: The House Judiciary Committee last Thursday held a hearing on the use, and abuse, of non-precedential federal appellate opinions. (Link courtesy of Bag and Baggage.) While I question Congress's ability to regulate the manner in which the Judiciary decides appeals, I too have repeatedly criticized the use of non-precedential appellate opinions.

While it's somewhat bizarre that Congress didn't know that courts don't publish (and never did) all their opinions, what's really bizarre is the new West Federal Appendix.  According to their promotional material on their website, "[y]ou can have access to U.S. Court of Appeals unpublished opinions, complete with West Group editorial enhancements, including case synopses, headnotes and Key Numbers in the West® Key Number System®, in this print series, a part of the National Reporter System®."  This series began Jan. 1, 2001, and already consists of 31 volumes, at a current price for the set of "$1,092." And there's more every month. 

Attorneys here can't cite it in either state or federal court.  From the discussions on law-lib, it appears that no law firms are buying this because the cases are on Westlaw or Lexis; law school libraries are in somewhat of a quandary because while faculty might find it useful to compare published v. unpublished cases on a topic, students can't cite to the cases.

But what happens if Congress should decide all or more of the cases should be published.  Will Congress provide more money to the federal courts for increased administrative and personnel costs? Will libraries get subsidies to purchase the extra volumes? (Ha!) And more money for space for the new volumes? (Double Ha!)

Yet there are legitimate concerns about how the courts decide which opinions have precedential value and which don't.  There was a presentation on this subject last year at the AALL Convention, which was a bit of an eye opener on the number of cases and the different rates of published v. unpublished cases between the circuits.  Should there be uniform guidelines between the circuits? What is Congress' role in this?   

11:14:24 AM comment []   

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