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Availability of U.S. Case Law

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A researcher at Stanford compiled a database of U.S. case law. The database can be found at: http://webpolicy.org/category/empirical-law/legal-data/. Here are my comments.

Not so long ago, this collection would have been priceless. 10-15 years ago there was an article in Wired about efforts to obtain access to case law, which was pretty much locked down by West Publishing and Lexis/Nexis. So a few comments:

1) To make this set usable from a practical point of view you have to know when it starts and finishes. “[E]very federal court ruling” is a bold statement. Federal Reporter Third? All 1000 volumes of F2d? What about the original Federal Reporter? F.Supp.? Not all federal district court decisions are published. Since our federal courts have become criminal courts (starting in the 1980’s) most of the written decisions will be at the appellate level. What about “Do Not Publish” opinions? There are thousands of them and they are still useful. Usually only DoJ has copies.

2) Not having everything is not critical to the practical value of the set. In the 1990’s a West salesman would tell you that there was no need to buy anything before 500 F2d if you were trying to put together a small federal library. For most states they would try to sell you everything, except perhaps New York, California and few others. The issue is updating. Florida updates (or used to) its appellate decisions on a monthly basis. You could sign up and they would send you a zip file every month. I don’t know if all states do this. The problem of recency is a major one. A case could have been decided yesterday but you won’t find out about it for a month. You can fix the problem on appeal–theoretically, assuming a client who wants to pay–because judges will not, except in rare cases, revisit older decisions they have made because case law that was not available at the time was dispositive.

3. The issue of citing to a particular page of a decision in addition to the official citation is not a huge problem. In many states, appellate decisions are relatively short and court rules have provided for the use of just the official citation. Cites to new Westlaw and Lexis cases do not have page numbers. When page numbers are unavailable, you can cite them as ( U.S. )(2014) [my Blue Book syntax is probably a little off here). If you cite an unpublished opinion you normally have to provide the judge and your counterparty a copy of the decision.

4. FLITE was the U.S. Air Force’s effort to computerize case law in the 1980’s. Westlaw and Lexis fought ferociously to prevent this database from being released to the public. They were successful. The same is the case with JURIS, a DoJ caselaw database. Now there are several providers (such as Fastcase) which compete with Westlaw and Juris. Access to PACER, the U.S. courts database of case, is limited. Efforts to mass download the database have been frustrated. The courts use PACER as a revenue tool. Also, criminal cases at the district court level are not on PACER (unless this has changed) supposedly to protect informants. So it would be interesting to know how this database was obtained.

5. Putting aside the practical value of this database, once the extent of the content is established, it could have real value for researchers. Could it be used to spot trends in the law? I wonder what might be shown if tools to measure things like historical market performance were used to analyze the database. You could see all sorts of data points for terms like “Dalkon Shield” or “asbestos” occurring within specific time ranges. There is definitely a “me too” aspect to the law. And while judges make law all the time, they have no control (usually) over the cases brought to them. Do cases involving “terrorists” match the pattern of cases involving “communists”? Or, say in the period 1910-1920, “Germans”? On a practical level, what is the statistical incidence of cases involving the Statute of Frauds? The “ancient document” exception to the hearsay rule? Are criminal conversation causes of action really coming back? If historically the incidence of data points A, then B always led to C can an analysis of such points today of any use in predicting future decisions?
Just a few thoughts.

Written by mokane

January 9, 2014 at 4:12 am

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Meanwhile in Saudi Arabia

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meanwhileinsaudi

 

The Kingdom expelled roughly 150,000 illegal workers in November, 2013. “Illegal” in this context means that the worker in question entered the country legally and in many cases, switched jobs after his first employer failed to pay him. The true guilty parties here are Saudis who permitted their names to be used to sponsor foreign workers when they had no jobs for them as well as those employers who had no problem confiscating their employees’ passports while failing to pay their just wages. Keep in mind that the Qu’ran requires an employee to be paid before the sweat on his brow dries.

The Kingdom is also gearing up several major construction projects, including the capital’s first subway. Where the workers will come from for these massive public works is unknown. The book, Saudi Labor Law Outline contains an analysis as well as translations of Saudi labor laws, including the new Domestic Servants Law.

Written by mokane

December 5, 2013 at 1:09 pm

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What a Judge

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whatajudge

 

At common law a lawyer was not considered as essential for the defendant in a criminal trial because it was the judge’s job to insure that the defendant was afforded due process. Things have changed, of course, and now the sooner a person lawyers up the better.

Sometimes the old ways are the better ways. In the United Arab Emirates, Judge Maher Salama Al-Mahdi makes sure that the defendants who appear before him are in fact guilty. With his investigative powers he seeks out evidence of innocence. This he says, is the norm in Dubai.

When was the last time you heard of an American judge who sought to prove the innocence of a criminal defendant?

Written by mokane

December 5, 2013 at 1:08 pm

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All-Savers Certificates and Obamacare

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bozo

 

During the Ford Administration, the government was desperate to halt inflation. When Carter was president, interest rates reached 18%. One of the solutions was the “All Savers” Certificate. The idea was that if more people would save, the banks would have more capital to lend and since the supply of money for lending would increase interest rates would go down. The program didn’t work. Why? Because almost no one signed up.

Thirty years later we have the Affordable Care Act, otherwise known as “Obamacare.” Sign-up for the program was to start in November, 2013, but due to well-publicized technical issues, a mere 15,000 were able to sign up. Now that the technical problems are fixed, another 50,000 have signed up. And this in a country of over 350 million people. I heard one of the senators from Kentucky who helped draft the legislation explain that the senators “assumed” that every State would have an insurance exchange, sort of an online flea market where people could buy insurance. Unfortunately, just as with All-Savers, the assumption was wrong. Half of the States didn’t buy in. Now it comes out that the only way, the only way that the program can work is if droves of healthy young people sign up. The program is counting on them to pay for care for the older uninsureds. People believe that the only issue with the program is a mysterious web problem. It’s not. The whole program is based on false assumptions, not on a glitchy web page. Young people aren’t signing up. With three weeks left in the year, less than 100,000 people have signed up nationwide. More people bought All-Savers.

The sad thing is that the U.S. already has institutions which could address these issues. Expanding Medicaid is the obvious choice. “Oh but you can’t do that,” they say. Why not leave the design of the horse to a committee and hope we don’t get a camel?

Written by mokane

December 5, 2013 at 1:07 pm

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Solving the Medical Malpractice Crisis

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One of the reasons why health insurance is so expensive in the United States is because of the lack of tort reform. The lawsuit lottery is alive and well and the cost of playing it raises everyone’s costs. I would like to make the modest assertion that I can fix the problem in one day. Fact is, half a day is all I would really need. And I wouldn’t need a single new institution to accomplish these feat. And trial lawyers would be accommodated, would have a role to play in the process and could have no principled basis on which to complain.

Before the 1920’s, a workman injured on the job could not recover compensation from his employer unless he proved his employer was negligent. A great advance of the U.S. legal system was to remove fault from the equation. An injured workman need only show that he was injured on the job. He would receive medical care and compensation for permanent injury. This system is successfully operating in every single U.S. state.

The solution to the medical malpractice crisis is simple. Take fault out of the equation. Better still, roll over the injured into the workman’s compensation system. In order to recover compensation for his injuries, a patient need only show that he was treated by a physician. There would no longer be any need to prove fault. Compensation would be guaranteed, but would be no more and no less than that compensation afforded to the injured at the workplace. There are already administrative tribunals in place to handle the cases—and lawyers have a role to play at these tribunals. So no med mal lawyer can claim that the adoption of this proposal would take his livelihood away. He can still represent the injured.

The advantage of the system is that wild jury awards and recoveries would disappear. Insurers costs would be fixed. The beauty of this proposal is that it is already working and working well. In every state. On every single day. Should someone who is injured on the job receive more than someone who is injured by a doctor? Why?

We have much to gain by making patients compensation a part of workers compensation.

Written by mokane

December 5, 2013 at 1:07 pm

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War on Drugs/Terror

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two_wars

 

Of course they are completely different.

Written by mokane

December 5, 2013 at 1:06 pm

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Tourism is Safer in the UK

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UKtourism

 

Of course it is.

Written by mokane

December 5, 2013 at 1:06 pm

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