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Privacy Rules for Online Court Records

March 3, 2011 Leave a comment

Earlier this week, the Court Technology Bulletin posted a blog about the Florida Supreme Court’s frustration over how long it’s been taking to come up with privacy rules for online court records. The court created a Committee on Privacy and Court Records in 2003, but the committee has only “proposed rules for excluding personal information such as social security and credit card numbers from court files if not required to resolve or manage cases.” Criminal and traffic cases would be exempt from these rules because they have their own separate committees working on proposed rules, though neither committees have submitted recommendations as of yet. With still many question before the committee up for debate, Justice Barbara Pariente asked committee members to “get on the stick and get the rest done.”  

Florida’s frustration with the issue made me curious as to what other courts are doing. Montana seems to have their act together. The Montana Supreme Court enacted Court Rules for Privacy and Public Access to Court Records in Montana in 2008 (only three years after a commission was set up). Their rules are governed by the public’s right to know and the individual’s right to privacy, both of which are guaranteed in their constitution. The rules prohibit public access to “sensitive” personal information. Sensitive information includes complete social security numbers, complete financial account numbers, full names of minor children (unless required by state law), and full birth dates of any person. (See Rules Section 4.5 ). Parties can also request that other information not be made available to the public, though there’s little guarantee the court will rule in their favor. (See Rules Section 4.6).  

Litigants are warned that “all information that you file with a court is public information” which anyone can view and share. So they shouldn’t put sensitive personal information not required by law in a court document. It’s up to litigants to protect their privacy. If they put such information on court documents, court officials aren’t going to make sure it’s redacted before making it available to the public. (See warning.) 

On the federal side, in 2007 the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure that implement the E-Government Act of 2002 became effective. It required the same type of sensitive information mentioned in Montana’s rule to be redacted from court documents, with addition of home addresses in criminal cases. (See http://www.privacy.uscourts.gov/.)

With such easy access to information these days, it’s good to know some steps are being taken to protect individual privacy. Let’s hope Florida “gets on the stick” to protect their citizens soon.

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Law Review: Are law students undermining the quality and influence of legal scholarship?

February 24, 2011 Leave a comment

One of the secondary sources I’ve used the most in my law school career has definitely been law reviews and law journals.  All of my searches were done online usually with Westlaw or Lexis; however, some I found through a simple “google” search.  Now that journals are beginning to create websites with access to some of their more recent publications, free online access to these journals will become more readily available, though it might take awhile for all journals to catch on.

I’ve mainly used journals when writing research papers for a class or a Note.  With the vast number of journals publishing multiple issues a year, there are usually many articles written on a given subject that I happen to be researching. The journal articles help me to identify the key primary sources and other useful secondary sources in that area.  They come in less handy, however, when I’m doing internships and clinics, which begs the question of the practical use of journals outside of academia.  Do practitioners and judges even read this stuff?

A little over six years ago, in his article, Against the Law Reviews, Judge Posner expressed his concerns about the system of scholarly publication in law. Unlike other professions, legal scholarly writing is published in journals edited and published by law students usually with little, if any, experience as editors and a limited knowledge of legal subjects.  In contrast, scholarly journals for other academic fields are “edited by seasoned specialists, usually professors, who have had years of experience both as editors and as scholars in the field covered by the journal.”  These articles often go through a “peer review” process, where other professors critique the article and give their opinion on whether it should be published.

While some of Judge Posner’s problems with student editors seem petty, such as his complaint that they want to add too many footnotes and make unnecessary stylistic change, many of his criticisms seem valid.

One such criticism is the trend for journals to focus on another area of expertise outside the law, which he calls “law and . . .” fields (e.g. “Law and Economic”).  Most likely the editors have even less knowledge on these extra-legal areas, making the absence of peer review even worse.  Then, compounded by the fact that the students are not trained or experienced editors, whatever suggestions they do make are unlikely to benefit the author or reader.  According to Posner, “the result of the system of scholarly publication in law is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all.”

Posner suggests that law reviews should return their focus to publishing topics that “student editors can handle well,” such as criticisms of judicial decisions and carefully analyzing judicial decisions to discern new directions in the law.  Additionally, more attention should be given to lower court decisions, since according to him, the Supreme Court Justices are less likely to be swayed by scholarly criticism of their opinions.

In all honestly, I still doubt that many lower court judges would pay much attention to criticisms of their decisions by law professors and students.  However, I do think more analysis on the change in jurisprudence of a given area of law would be very practical for practicing lawyers.  The benefit of quickly researching the general trend of how judges are ruling on the area of law you specialized in seems very useful.

With regard to minimizing the damage done by inexperienced student editors, he suggests handing the editor’s position over to law professors, while continuing to allow the students to work and write for the journals under faculty supervision.  Judge Posner doesn’t deny the valuable benefit to law students who work on a journal (something that I strongly doubted during my experience as an associate on a journal, then later realized the benefit during my 2L internship).  Although it might not be as helpful in securing jobs for some of us as it once was, the sourcing, cite-checking, Bluebooking, and everything else we loved to hate about journal did come in handy, I must admit.  Posner suggests these benefits actually are the largest hindrance to reform of the current system.

I feel that students will still be able to get the benefits of learning these skills, while the involvement of a more hands-on faculty supervisor conducting peer review will likely increase the quality and scholarship of the law journals. So what’s the problem?

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A Blog on Blawgs

February 24, 2011 Leave a comment

Although blogging is not new, it is new to me. Before this class, I had never written a blog and only read a few in passing. In fact, I didn’t know the difference between a “blog” and a “blawg” until today (a “blawg” is written by lawyers or focuses on law related topics). So with this very limited knowledge of blawgs, I never considered them a source of legal research.  However, as a result of our last research assignment, I came across a couple of good blawgs for those interested in international human rights law.

Impunity Watch

Impunity Watch is a blawg sponsored by Syracuse University College of Law and written by Syracuse law students. According to the site, “Impunity Watch’s mission is to monitor and address horrific human rights abuses and possible situations of impunity.” They deal with fundamental human rights violations such as discrimination, human trafficking (whether for forced labor or sexual exploitation), the denial of access to food and water, and genocide. The goal is to hold those responsible for such acts accountable and bring them to justice.

What I especially liked about this blawg was its organization and usability. You can browse articles by continents or region. There is a large photo associated with each blog and an abstract.  You can, then, click to “read more” if it interests you. There’s also a tab for featured articles if you don’t have a specific region in mind. They also have “Today’s Top Posts” and “Upcoming Events” available.

IntLawGrrls

Intlawgrrls is a blawg has a little wider scope than Impunity Watch, though also deals with issues of discrimination and human rights. In their own words, Intlawgrrls are “voices on international law, policy, practice.” They “embrace foremothers’ names to encourage crisp commentary, delivered at times with a dash of sass.”  As implied in their name “grrls,” all the authors are women, though their articles don’t necessarily focus on traditional “women issues.” The two primary contributors to the blawg are Diane Marie Amann, a law professor at the University of California-Davis and Beth Van Schaack, a law professor at Santa Clara University.  Beth Van Schaack was a familiar name to me since she is a co-author of my International Criminal Law casebook.

This blawg has interesting articles on a variety of legal topics. They have many, many guest bloggers, so along with the blawg is a biography and picture of the guest author.  The downside to this blawg is the format.  Instead of tabs at the top of the page to search by region or topic, they have a basic word search text box. If you scroll down the page, along the right column you can also search by author and series topics they have done, such as the crime of aggression, disability rights, Guantanamo, and human rights in the United States. They also have connections to other blawgs if you continue down right column. Unfortunately, there are no search boxes on the right column, just a long list of all the authors, series topics, and other blawg links. So there’s some good information if you don’t mind scrolling a little while to find it.

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