Out-of-the-Box Lawyering

Do you want to see the personalities of Justices Breyer and Scalia? You can see the Justices in a discussion on C-SPAN

Justices Stephen Breyer and Antonin Scalia had a videotaped discussion about whether foreign cases should be cited in opinions that rule on U.S Constitutional law. (The discussion was taped by C-Span and can be seen on the C-Span site, as detailed below.)

The discussion was held at the American University School of Law. The justices, along with moderator N.Y.U. law professor Norman Dorsen, sat in easy chairs. (Dorsen was the founding president of the U.S. Association of Constitutional Law.) It wasn't a debate in which each went to a lectern and stated his position. Instead, Professor Dorsen asked some questions, which the justices took turns answering – sometimes. Sometimes Dorsen's questions and questions from the audience were never answered. As the transcript reflects, for instance, after failing to answer one question, Scalia, to the laughter of the audience, admitted, "[T]hat answers none of your questions, but that's what I wanted to say."

More interesting to me than the topic of the discussion was seeing at least the public persona of the justices. Both of them showed a sense of humor. However, Scalia seemed like a Mr. Spock (remember Star Trek?), but a Spock with a sense of humor. Breyer seemed like a warm-hearted Fred Rogers (remember Mr. Rogers?), but a Mr. Rogers with a knowledge of and a love for the law.

What was also interesting was that Justice Scalia allowed C-SPAN to tape the session. A while back, after reporters recorded one of his speeches, U.S. Marshals required the reporters to erase the recordings. Scalia later apologized, and, even later, the Justice Department, representing the U.S. Marshals Service, said the reporters and their employers were each entitled to $1,000 in damages and reasonable attorneys' fees that had been sought by the plaintiff media organizations.

You can see the C-Span video of the discussion, which lasts a little over ninety minutes. Go to www.c-span.org and click on "Justices Scalia & Breyer Discussion on Foreign Courts' Impact."

As far as the citation issue, Justice Breyer was in favor of allowing foreign case law to be cited, not as authoritative or binding, but for whatever wisdom the foreign cases might have. It would be valuable for "opening your eyes." ("What I see in doing is this is what I call opening your eyes, opening your eyes to things that are going on elsewhere, use it for what it's worth.")

Justice Scalia didn't think foreign cases should be cited unless the cases were from England and preceded the ratification of the Constitution:

"I don't use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase ‘the right to be confronted with witnesses against him' -- what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn't so for every provision of the Constitution."

Scalia did agree, however, that references were pertinent in cases such as those involving the interpretation of treaties or contracts. The cases, except for those English cases, just should not be cited in interpreting the United States Constitution.

The transcript of the discussion:
http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument

You can read about the foreign law issue: http://kennethandersonlawofwar.blogspot.com/2005/01/whats-big-deal-about-foreign-law-in-us_02.html

Thanks to a January 11 entry of Goldstein & Howe, P.C. in its SCOTUSblog:
http://www.goldsteinhowe.com/blog/index.cfm which led me to the Kenneth Anderson blog.

Justice Scalia's apology:
http://www.nylawyer.com/news/04/04/041304l.html

Justice Department settlement:
http://www.washingtonpost.com/wp-dyn/articles/A58394-2004Sep28.html

A detailed article about the U.S. Marshals requiring the erasing of the recordings:
http://www.silha.umn.edu/Spring%2004/ScaliaTapes.pdf

Sex: You never know when it can come up — A federal judge holds that the defense in the Bernie Ebbers trial may cross-examine a key prosecution witness about the witness's alleged marital infidelities

Attorneys for Bernard Ebbers of WorldCom fame (or infamy) are being permitted by U.S. District Judge Barbara S. Jones, according to the Washington Post (free registration may be required) and other sources, to question the prosecution's star witness about his alleged marital infidelities.

Judge Jones ruled, again according to the Post, that "hearing about Sullivan's alleged infidelity would help jurors determine whether he is truthful and that Ebbers's lawyers are ‘entitled to very wide latitude' when cross-examining the chief witness against him."

Washington Post:
http://www.washingtonpost.com/wp-dyn/articles/A19564-2005Jan18.html

Would you like FREE Westlaw searching? You can now, at some law libraries around the country, search Westlaw FOR FREE — This free searching can include federal and states case — and much more!

The Law Library of the Louisiana Supreme Court has recently made free Westlaw searching available for its patrons. And the searches are not limited to just federal and state cases. Much more is available, as you will see in the e-mail which I received from the Library. (Please note, however, that the searching must be done at the library terminals and may not be done remotely.)

I did some Internet searching and found that other libraries also make free Westlaw searching available, although sometimes you may have to be a member of a city or county bar association to use its facilities. I have included a list of what I found. However, the list probably does not include all locations and some of the information may have been changed from what the associations published earlier.

First, here's part of the e-mail which I received that describes what Louisiana provides:

“The Law Library is pleased to announce the addition of Westlaw to our free research databases. Our subscription includes: all of the primary federal and state law (cases, codes and regulations), hundreds of law reviews and journals, American Jurisprudence, ALR, Am Jur Proof of Facts and Trials, Restatements, Couch on Insurance, KeyCite and much more. Louisiana specific material includes the Louisiana Civil Law Treatises, and all the volumes in the Louisiana Practice Series, including Civil Appellate Procedure, Civil Practice Forms, Estate Planning in Louisiana, etc.

“Westlaw is available on two terminals in the library.”

You can find more information about the searching on page 4 of a newsletter in the supreme court's website.

Now, here are some additional locations:

Alaska

Alaska State Court Library (with various locations listed)
http://www.state.ak.us/courts/lebelec.htm

Minnesota

Minnesota Association of Law Libraries
http://www.aallnet.org/chapter/mall/tclawlib.pdf

Nevada

Nevada Supreme Court Law Library
http://www.nvsupremecourt.us/lib.html

New Jersey

Middlesex County Bar Association, New Brunswick
http://www.mcbalaw.com/downloads/January_2005.pdf

New York

New York City - Association of the Bar of the City of New York
http://www.abcny.org/abc_mem.html

Ohio

See Stark County Bar Association Newsletter
http://www.starklawlibrary.org/newsletter/mayJune2004.pdf

Texas

Dallas County Law Libraries
http://www.dallasbar.com/members/headnotes.asp?item=848

Washington

King County Law Library
http://www.kcba.org/barbulletin/0306/lawlib.html

If you have any comments or any additional locations for free searching, please send them to me at     comments"@"outoftheboxlawyering"."com    , but omit all of the quotation marks. (I'm trying to minimize spam.)

For Louisiana lawyers — You can now search Westlaw FOR FREE at the Louisiana Supreme Court Law Library — This free searching includes federal and state cases – and much more!

Last week I received the following e-mail from the Law Library at the Louisiana Supreme Court:

“The Law Library is pleased to announce the addition of Westlaw to our FREE research databases. Our subscription includes: all of the primary federal and state law (cases, codes and regulations), hundreds of law reviews and journals, American Jurisprudence, ALR, Am Jur Proof of Facts and Trials, Restatements, Couch on Insurance, KeyCite and much more. Louisiana specific material includes the Louisiana Civil Law Treatises, and all the volumes in the Louisiana Practice Series, including Civil Appellate Procedure, Civil Practice Forms, Estate Planning in Louisiana, etc.

“Westlaw is available on two terminals in the library. Stop by and check out this excellent resource. We have also revised our rates for searches performed by librarians. Please ask us if you are interested in this service.”

You can find more information on page 4 of a newsletter in the supreme court's website. (Some of the information is also included in the January 2005 issue of my newsletter, Levy's Cites.)

For even more information, you can contact Catherine Lemann, Associate Director, Law Library of Louisiana, 504-310-2412.

LINK:

Supreme court article: http://www.lasc.org/law_lib&legal_res/DeNovoWinter2004-05.pdf

Consumers Union wants to stop hospitals from keeping secret that 90,000 patients a year die from hospital-acquired infections - - How to reduce the number of medical malpractice cases by reducing the medical malpractice

Consumers Union publishes the highly-regarded Consumer Reports. I just received an email from CU with the following subject heading: "Hospitals' dirty secrets endanger you."

What are the "dirty secrets?" Here's what Consumers Union says: "Every year two million Americans contract a hospital-acquired infection - one in every 20 patients becomes ill and 90,000 of them die."

Here's Consumers Union again:

“Hospitals keep these infections secret from everyone, even though infection rates are on the rise. Healthcare workers wash their hands far less than they should, particularly in critical areas like intensive care, surgery, anesthesia and the emergency room.”

Consumers Union notes that only four states require that hospitals reveal their infection rates. CU then gives a call for people to act to make the infection rates public:

"Making infection rates public will help you find out about the safety record of your local hospital and will give hospitals a strong incentive to more seriously deal with a problem that can add up to $57,000 to your hospital bill."

CU then provides a click-through with a suggested letter for readers to send email to their state legislators.

Once again, as has been reported in this site, it's better to stop the malpractice and the deaths than to punish the victims and their families. As CU notes, “Healthcare workers wash their hands far less than they should, particularly in critical areas like intensive care, surgery, anesthesia and the emergency room.” Instead of trying to prevent patients and their families from filing suits, maybe, just maybe, the Administration should be using its bully pulpit to prevent the malpractice that gives rise annually to the 90,000 deaths.

Consumer Union's site with the information and the suggested email to send is www.stophospitalinfections.org.

For additional postings on this site regarding how to reduce medical malpractice, search on my search bar for “medical” (without the quotation marks.) For instance, one of the latest postings is about how two states require that doctors at least legibly print or type their prescriptions. http://www.outoftheboxlawyering.com/archives/000064.html

Please send comments for posting to comments"@"outoftheboxlawyering.com. (But don't include the quotation marks. I'm just trying to minimize spam.)

The feeling lawyers get when they have found a creative legal solution can be the same “kick” that a scientist or an inventor gets after coming up with a creative solution

I was recently attending a function and had to go to the bathroom. Resting in the bathroom was a National Geographic from 2001 which I picked up and started browsing. (Yogi Berra is quoted as saying “You can observe a lot by just watching.” Well, it's amazing what you can find by just looking around with an open mind.)

The issue had an article entitled “Silicon Valley: inside the dream incubator.” I started skimming it and read about the writer's interview with a biochemist. The biochemist had developed a type of flow cytometer for determining how well a cell was reacting to a certain antibiotic. His meter was about the size of a hatbox and was about one-twentieth the size of his competitors' meters. Not only was his meter significantly smaller than those of his competitors, it was also cheaper.

The writer asked him: “Explain the kick.” His response:

“For me the thrill comes from innovating within a basic design and making something beautifully that performs its purpose.”

Part of the thrust of this blog is that lawyers can be as creative as scientists and other innovators.

Creativity is creativity whether you feel it as a biochemist or as an attorney. Hopefully, some of the postings in this blog will help you have more thrills from successful “out-of-the-box"” problem solving.

Source: National Geographic, December 2001, volume 200, issue 6, page 52.

P.S. You can go to Yogi's “Official Web Site” and see some of his other famous quotes. One of those is his admonition: “Never answer an anonymous letter.” (One of my Yogi favorites is his warning: “Always go to other people's funerals. Otherwise they won't come to yours.”)