Another Reason I Teach Legal Research

A while ago, I wrote here about why I teach legal research and citation. My reasons for teaching research were: 1) legal research is the foundation of legal practice; 2) legal resources are unique; 3) being able to find the law empowers you to solve problems; 4) legal research is intellectually challenging and interesting; and 5) researchers change law. But as I am working today on an exercise for my students about research ethics, I realize I forgot one– attorneys have an ethical duty to not just research, but to research well.

The Montana Rules of Professional Conduct start with Rule 1.1, a lawyer’s duty of competence: knowledge, skill, thoroughness, and preparation.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 3.1 states that a lawyer

shall not bring or defend a proceeding, or assert of controvert an issue therein 1) without first having determined through diligent investigation that there is a bona fide basis in law and fact for the position to be advocated . . .  [or] 3) to extend, modify or reverse existing law unless a bona fide bases in law and fact exists for advocating doing so.

What I didn’t say in my earlier post is that legal research isn’t just foundational to legal practice because it’s a skill lawyers will use throughout their careers– it’s foundational because it’s a basic ethical duty that underlies our our relationship with our clients and how we represent our clients. And it’s not just that researchers change law, but that you have to research if you want to change law. Sometimes zealous advocacy requires arguing for a change in the law, but a lawyer can’t do that until he or she has researched and can support the argument that there is a reasonable basis for doing so.

Ethics don’t just require that in general lawyers are competent researchers but that they conduct the necessary research in every case. Rule 11 of the Rules of Civil Procedure state that

by presenting to the court a pleading, written motion, or other paper . . . an attorney . . . certifies to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . (2) the claims, defense, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law . . .

Some cases will take more research than others. Likely, those cases where the lawyer is arguing for “extending, modifying, or reversing existing law or for establishing new law” will take a lot of research. But it will be interesting and important research, and if that’s what it takes to represent the client, that’s what the lawyer needs to do. And to take it back to my original post, I teach legal research because I don’t just expect that my students will be able to look up the laws; I expect that my students will be ethical lawyers and exceptional researchers who will contribute to the development of law because they know how.

---

The Jameson Law Library blog will be taking a break next week for Thanksgiving.

Enjoy the holiday!

What’s So Great About Primo? : A Primo Primer

Primo is the future. You may not know what it is today, but eventually you will gravitate towards Primo the same way we all gravitated towards Google. It will just be there being the best way to find what you’re looking for.

Primo is an example of a discovery layer which is software that both contains its own vast full-text and citation resources (the Central Index), and ingests other electronic resources like library catalogs, standalone databases, and internet based resources. All of these layers of information are then accessed (discovered) through a single search interface (Primo).

Sounds a little like Google doesn’t it? The big difference between Google and a discovery layer like Primo is that where Google scours the internet for free information, Primo scours layers of electronic information, some of which is free, but much of which is licensed by a library for use by a select group of users: the library patrons.   Licensing for use usually means that a library pays an annual fee which allows internet access to a specific database or electronic resource from a particular area like a building or a campus.

Today libraries subscribe to thousands of electronic resources. The more licensed resources that a library can access through Primo, the better because it allows a single search as opposed to preforming the same search over and over again in different databases. It takes the tedium out and provides better, quicker search results that can be sorted, divided, expanded, jumped from, added to, and manipulated in other ways. Preforming the same search on Google and again in Primo will yield quite different results because Google can only return free information and Primo returns free information and licensed information. Primo seeks to be to library collections what Google is to the internet.

Sounds great, right? Can’t wait to try it? Like any new software it takes a little getting used to. Visit the Mansfield Library home page to start learning how to navigate Primo.

Montana’s Haunted Legal Places

The logic of the law doesn’t make it immune to strange goings on and perhaps even hauntings. The stories of Montana’s reportedly haunted places are interesting. Here are a few with legal ties.

The Meade Hotel in Bannack was built in 1875 as the Beaverhead County Courthouse. When the county seat was moved to Dillon only a few years later, the courthouse sat empty until it became a hotel and, for a while, a hospital. It is said to be haunted by the ghost of Dorothy Dunn, who drowned nearby when she was a teenager. She now appears wearing a blue dress, mostly to children. She isn’t the hotels only ghostly resident though and an older woman has been seen looking out a second floor window. The ghost town of Bannack, now a state part, is said to be haunted by a gang of outlaws, all of whom were executed there.

The Butte-Silverbow County Courthouse is said to be haunted by the ghost of Miles Fuller, who was executed in 1906 for killing a prospector. An odd happening with his casket left some believing he was innocent, the reason his restless spirit now wanders the grounds behind the courthouse where the gallows he was hanged on were erected. The old courthouse was torn down, but the current courthouse sits adjacent to the old grounds, still haunted by Fuller’s ghost. For more stories of haunted courthouses, see this photo gallery from the ABA Journal and this story from the Texas Bar Journal.

It’s a bit scary to be in the law school alone at night but it would be even scarier to be alone in the original law school building. The law school was originally housed in Jeannette Rankin Hall, one of the oldest buildings on the UM campus. With it’s seemingly floating floors, it is not hard to believe Rankin Hall is haunted. It is said to be haunted by a whole class of students attending a old lecture on one of the upper floors. There is no indication it is a law lecture, but maybe it was. Rankin Hall may also still be home to a professor who loved his job so much he didn’t want to retire. Closer to the current law school building, the basement of Brantly Hall is also said to be haunted by the ghost of a student who committed suicide there when her family lost their ranch in the 1929 stock market crash (it was a dormitory at the time).

Perhaps the most haunted of all is the Montana Territorial Prison in Deer Lodge. Both the prison and many of its inmates were notorious and the prison, now a museum (a really creepy one), has seen all sorts of paranormal activity. Two violent events may underlie some of the reported hauntings. In 1908, two prisoners attempted to escape. During the failed attempt, a deputy warden was killed and the warden was severely injured when he was stabbed in the back. Both prisoners were hanged in the prison. In 1959, another attempted escape, this time of about a dozen men, sparked a violent three-day riot. Again, the deputy warden was killed. The warden and others were held hostage while the riot raged. The riot was finally quelled by the National Guard but as the Guard moved in the two ringleaders died in a murder-suicide. Only possible prison ghost died not in a violent event, but of natural causes. “Turkey Pete” Eitner died in his cell at the age of 89 while serving a life sentence for murder. Turkey Pete was well-liked by the prison staff. His cell, (Cell #1) still contains photos of him, along with a few of his belongings– and perhaps his spirit.

Boo!

 

The Onion King and the Law of Onions

Cornering or capturing a market is not an easy thing to do. It’s when you gain control over enough of a resource or commodity to totally control the market and set the price at whatever you want. Usually, people try it with things like diamonds, gold, silver, rare heavy metals, etc. However, once there was an onion king, and he became so powerful that laws had to be passed to stop him.

Vince Kosuga, son of Russian immigrants, was a somewhat colorful guy. He stood about 5’4″ and carried a .38 revolver and a billy club with him at all times. He was a licensed pilot and survived a serious plane crash when his plane ran out of fuel. He was also an onion farmer, and had a 5,000 acre onion farm in Orange County, New York. Oh, one more thing, he liked to dabble in agricultural futures commodities trading. His dabbling in wheat futures brought him to the verge of bankruptcy and his wife made him quit futures trading.

Except, he didn’t. His farm business necessitated constant traveling between New York and Chicago, and while he was in Chicago he still liked playing the Agricultural futures market. In 1955, he and his friend Sam Siegel (another onion trader) decided that maybe the way to play the commodities future game was to actually corner the market, so they developed a plan to do just that. Kosuga and Sam began buying up all the onions and onion futures contracts that they could. Through futures contracts, they controlled 98% of all the onions in Chicago, which is the major hub of all agricultural futures trading. Millions of pounds of onions began being shipped to Chicago to fulfill the contracts Vince and Sam had purchased, and they soon had 30 million pounds of onions stored in Chicago. Then, they forced onion growers to buy their inventory by threatening to flood the market if they didn’t. They promised to keep a major portion of the inventory stored in order to support prices. Even though everybody had to buy onions from Vince Kosuga, prices remained high so that was ok. Except that while Kosuga controlled the onion market and everyone was buying from him, he was also buying short-sell onion futures as fast as he could, meaning that if the price dropped in the future sales of onions, he could still profit substantially.

The onions that they still had stored in Chicago in order to keep prices up had begun to rot, so Vince and Sam had all the onions shipped out of Chicago to be reconditioned (the bad parts removed), cleaned, repackaged, and shipped back to Chicago. Traders, thinking that these were even more new onions coming in, began expecting a flooded market and onion prices dropped like a rock. Vince and Sam released their entire inventory on the market and prices dropped even further, which was ok with Vince since the greater the price drop the more he profited. However, it was not ok with everyone else. The price of onions dropped so low that a 50 pound bag of onions that sold for $2.75 the year before was now selling for 10 cents. The net bag that held the onions cost 20 cents by itself.

Vince and Sam, by playing both ends of this game, made millions. The outrage in the agricultural community was huge and the sudden price swings caught the eye of the Commodity Exchange Authority which started an investigation that was continued by the House and Senate Agriculture Committees. When Vince Kosuga was called to testify before Congress, he argued that he had done nothing illegal, that it was the perishable nature of the commodity that causes such things to happen, and  “If it’s against the law to make money… then I’m guilty”.

Still incensed by what he saw as “unprincipled gambling,” then congressman Gerald Ford sponsored a bill known as the Onion Futures Act, which would ban onions from agricultural commodities future trading. The Onion Futures Act was signed into law by President Eisenhower in August 1958. Onions are the only agricultural product in the country to be banned from futures trading. So that is how the Onion King cornered the onion market and became responsible for the creation of the law of onions.

But, you may ask, whatever happened to the Onion King? Vince Kosuga stayed in New York and continued running his onion farm as a simple local farm. He opened a restaurant called “The Jolly Onion Inn’ where he was the full time chef. He became well known for philanthropy, giving large amounts of money to the church, but cynics might say this was because he had acquired the nickname of “the most evil businessman in history.” Because of his philanthropy, he was named citizen of the year by the Pine Island Chamber of Commerce in 1987. After his death in 2001, his wife Polly continued his philanthropy using the fortune he had amassed by becoming the Onion King.

The Law of Superheroes

The Law Library has all kinds of books. There are useful books, topical books, necessary books, highly technical books, but it’s true that there aren’t many books that are entertaining to just sit and read for a few hours. “The Law of Superheroes” by James Daily and Ryan Davidson is a pleasant exception. The authors take solid, real world legal concepts and apply them theoretically to the world of comic book superheroes. This makes for a very entertaining and more memorable approach to legal theory than usual.

In the book, we get to investigate and think about such questions as can Spiderman testify in court without revealing his identity, are the Avengers acting as a legal corporation, what is Hulk’s liability for the property damage he causes, do mutants have rights, is Batman acting as an agent of the state, and does Superman have to pay taxes on all those diamonds he creates by cruching up coal in his hands?

The number of areas covered in the book is pretty broad, including constitutional law, criminal law, evidence, criminal procedure, tort law, contracts, business law, administrative law, intellectual property, immigration, and international law. Obviously, there is not going to be a lot of analytical depth in any one particular area, but there is a good foundation laid down for each and interesting situations to chew on to get you really thinking about the implications.

Though the target audience for this book is most likely the general public, I think this would be most enjoyable for someone with some legal background looking for a different approach to educational material or some reinforcement of concepts already learned.

I think this book is a welcome addition to the world of legal information and education and would highly recommend it.

The New Librarian of Congress.

There have only been thirteen Librarians of Congress since the position was established in 1802. Every one of them was appointed by a President but only one of them was a professional librarian (Herbert Putnam, serving from 1899 to 1939).

In January 2016 President Obama will appoint a new Librarian of Congress to replace the retiring James H. Billington who has held the position since 1987. Billington  has served for 28 years yet he retires amid a controversy about, of all things, librarianship. Or rather, some critical aspects of librarianship.

The next 28 years are very likely to be just as technologically intensive for librarians as the last 28 years have been. Our country will need the Library of Congress to take on a leadership role and be directed by someone with clear concepts about the importance of libraries, and information technologies. We will need someone who understands the past, can merge it with the present, and create a vision for the future. They must avoid becoming mired in the present and at the same time be able to communicate their vision of the future. A professional librarian is uniquely qualified to do this. Many are calling for the President to appoint a professional librarian to lead the library of Congress into the future. The American Library Association and as many as 21 other state library organizations have already sent letters encouraging the President to select a professional librarian for the position.

I will not take sides on the criticisms aimed at Dr. Billington’s performance as the Librarian of Congress over the past 28 years. The rapid development of library technologies and their implementations over the last 20 years will leave few library directors immune to some criticism or another. Instead I will urge you all to ask the president to select a professional librarian as our next Director of the Library of Congress. You may write to the White House at this address:

The President
The White House
1600 Pennsylvania Avenue,
N.W.Washington, DC 2050

Or you can email the white House at: https://www.whitehouse.gov/contact

Call me old fashioned but I want my surgeon general to be a doctor, my secretary of state to be a politician, and my librarian of Congress to be a librarian.

October 1

As of October 1, “[t]he soil series known as Scobey, of the taxonomic class fine, smectitic, frigid Aridic Argiustolls, is the official Montana state soil.” Also as of yesterday, Montana’s new hard-won bullying statute finally took effect. However, if you don’t have your own print copy of the Montana Code Annotated or have access to a library with a print copy, you may not know that because even though most laws passed by the 2015 Montana Legislature went into effect yesterday, yesterday there were no available electronic versions of the 2015 Montana Code Annotated (MCA). Today, Lexis and Bloomberg Law have the updated code. Westlaw and Fastcase still have the previous code, but they at least link to the updates– a good interim step between the end of the legislative session in April and the publication of the new code in October, though it’s not ideal and hopefully won’t be the status quo for long. Inexplicably, Montana Legislative Services, the publisher of the MCA, still has the 2014 MCA without even an indication that statutes may be out of date. The print versions of the 2015 MCA have been sitting on shelves for a couple weeks. The online version is usually published simultaneous to, if not before, the print version so it is a surprise that is has not yet been posted– a disappointing surprise.

Given that there is free print access to the MCA and at least some electronic access, this post may seem unnecessarily grouchy. But Lexis, Westlaw, Bloomberg Law and Fastcase all require that researchers have a subscription. They are excellent research services, but most Montanans cannot access them. Although the Montana Legislative Services online version is not an official version of the MCA, it is a reliable version and is virtually the only access many Montana citizens have to the laws that govern them. There is no requirement that the Code Commissioner publish the online version, but there is a  policy argument to be made that without the online version, Montanans constitutional right to participate and right to now are not given full effect.

The legislature doesn’t just pass laws for the sake of passing them, nor does Legislative Services publish them just because the legislature passed them. Laws affect people’s lives. The MCA is published because people really do need access to the laws. Publication of the MCA should not be the goal; providing access to the MCA to the citizens of Montana should be the goal.