HE C A TCHLINE - Washburn University School of Lawarjd.washlaw.edu/ARJD January 2015 Newsletter REVISED.pdf · 2. Welcome by ARJD President Bill Hooks Bill Hooks welcomed the members

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The Catchline January 2015

The CaTChlineBULLETIN OF THE ASSOCIATION OF REPORTERS OF JUDICIAL DECISIONS

January 2015 Volume XXXIV No. 1

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CONTENTS

President’s Fall Message . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Denver Meeting Recap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Education Committee Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Mrs . Clyde Dickens Calliotte Memorial . . . . . . . . . . . . . . . . . . . 20

SCOTUS Honors Wilma Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Supreme Court of California Appoints New Reporter of Decisions . . . . . . . . . . . . . . . . . . . . . . . . 2 1

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Greetings to everyone. For those of you who have en-dured the chaos of all things

expedited preceding the elections, I can only assume that you are as relieved as I am to be on the other side. On a lighter note, kudos to all who were involved in pulling together a successful meeting in Denver. Bill Hooks, of course, was instrumental in bringing it all togeth-er. Leah Walker, Chair of the Educa-tion Committee, procured yet another round of engaging speakers who pre-sented a variety of topics, such as Mar-ijuana Legalization in Colorado, Link Rot, Cognitive Wellness, Post-Release Revision of Judicial Opinions, Typog-raphy for Lawyers, and a History of the Denver Mint. The members of our stel-lar Annual Meeting Committee did a superb job of managing the logistics of the meeting, and Francois Boivin gets a general round of applause for assuming numerous responsibilities to keep us all informed.

I was thrilled to see a group of long-distance travelers: new members Cornelius Luapo, Andrew Halonyere, and Long’et Terer, National Council for Law Reporting, Kenya; new members Michael Stanker and Michael Witry, Northern Mariana Islands, Law Revi-sion Commission; and Gloria J. Duenas Cruz, Supreme Court of Guam. It was also a pleasure to welcome other new members, Kerry Malone and Kurt Jen-sen, Nevada Supreme Court; and Kath-ryn Loomis, Michigan Supreme Court. Kathryn participated in the education segment by discussing what Michigan has done to address the issues of link rot.

The meeting was preceded by the traditional Wednesday night dinner at the Appaloosa Grill. Chief Judge Alan Loeb of the Colorado Court of Appeals addressed the group Thursday morn-

ing to welcome the ARJD to Denver. Bill Hooks, our cordial host, followed with opening remarks and recognition to David Power and Sandra Grosko for their work on the annual meeting com-mittee; Gary and Miriam Spivey for checking out hotels in Denver; François Boivin and Mary Joe Beck for their work as chairs of the communications and external outreach committees, re-spectively; Cliff Allen for maintaining the ARJD directory; Dan Spurling for his work on the communications com-mittee and for sending e-mail blasts; Trevor Gross for helping monitor the OASIS project; and Meg Greene for volunteering for numerous commit-tees and always honoring her commit-ments. On Friday afternoon, we took a guided tour of the Ralph L. Carr Judi-cial Center, which included stops at the engaging judicial learning center, the li-brary and a visit with Chief Judge Loeb in his chambers.

Last, but certainly not least, many thanks to our long-standing support-ing vendors, Leslie Ostrander and Alison Manchester from LexisNexis who arranged for the group to attend a riveting performance of The Sound of Music; David Spencer, Kate Schul-tz, Laurie Oliver, and Lynette Ostrem from Thomson Reuters for great food and a fun evening at the History Col-orado Center, and for generously host-ing the hospitality suite throughout the meeting; and Kathy Hough and Crystal Bryant from Wolters Kluwer who coor-dinated a wonderful dinner-train ride through the Georgetown-Silver Plume National Historic District—the scenery was breathtaking.

Plans for the fall Executive Board Meeting are underway. We have decid-ed to meet in Nashville, Tennessee, on November 21, and we will be staying at the Embassy Suites, which is the se-lected site for the annual meeting to be

held August 5-9, 2015. Save the dates! As we become more familiar with the area and the hotel, we’ll be in a better position to plan, what I hope will be, a fantastic meeting in 2015. Following the Nashville meeting, we will start the process anew for the 2016 selected site: Columbus, Ohio.

Although the fall board meeting will take place before this edition of The Catchline has been issued, I want to remind everyone that all members are invited to attend the Executive Board meetings. If we follow tradition, the spring meeting will probably be held in the first part of April 2015.

In closing, many of you may know the new California Reporter of Deci-sions, Lawrence Striley, formerly with LexisNexis. I contacted him to wish him well and to offer him our assistance as he settles into his new position. Of course, I hope he will consider becom-ing a member of the ARJD.

It was great so see everyone who at-tended the Denver meeting, and I hope to see everyone in Nashville.

—Susan Williams ARJD President

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Denver Meeting RecapThursday, August 7, 2014

1. Welcome by Chief Judge Alan Loeb of the Colorado Court of Appeals

Chief Judge Loeb welcomed the ARJD to Denver. Judge Loeb briefly described the highlights of the new, state-of-the-art Ralph L. Carr Judicial Building, and predicted the group would enjoy its upcoming tour. Judge Loeb who has been on the Court of Appeals since July 2003, mentioned he likes the wide variety of cases he gets to work on, the collegiali-ty of the judges and the staff at the court, and serving the public. Judge Loeb briefly touched on the histo-ry, composition, jurisdiction, work-load, and procedures of the Colorado Court of Appeals. The judges of the Court of Appeals are delighted to have Leah Walker (ARJD’s Commu-nications Committee chairperson) as their new reporter of decisions. Judge Loeb ended his remarks by re-iterating his welcome to the State of Colorado and the City of Denver and wished the group a great conference. He also invited the group to visit his chambers on its upcoming tour.

2. Welcome by ARJD President Bill Hooks

Bill Hooks welcomed the members to this year’s meeting. Bill thanked Leah Walker for arranging Judge Loeb’s visit. Denver is a wonderful city and we have a varied and in-teresting education agenda as well as a full business agenda, including site selection for the 2016 meeting and the election of new officers. Bill pointed out the volunteer form in the registration packet and encouraged members to consider joining a com-mittee. One new item on the business

agenda this year, which was inspired by Richard Ross at last year’s wrap-up meeting, is a “Hot Button Issues” segment.

Bill extended a special welcome to new members and thanked them for attending: Andrew Halonyere, Long’et Terer, and Cornelius Luapo of the Kenya National Council for Law Reporting; Katie Loomis of the Michigan Supreme Court, who will also be presenting during the meet-ing; Kurt Jensen and Kerry Malone of the Supreme Court of Nevada; and Michael Stanker and Michael Witry of the Northern Mariana Islands/Law Revision Commission.

Bill thanked the membership for the opportunity to serve as an offi-cer for the last three years; he dealt with interesting issues and worked and established relationships with great people. Bill extended a special thanks to Leah for putting together a great educational program and an-swering all of his questions regard-ing his duties as president. He also thanked Kevin Loftus for handling the bulk of the registration process, as well as acting as treasurer; his fellow officers Susan Williams and Brandee Mooneyhan for assisting and providing input and support on the annual meeting and the numer-ous issues that arose during the year; David Power and Sandra Grosko for their work on the annual meeting committee; Gary and Miriam Spivey for checking out hotels in Denver; François Boivin and Mary Joe Beck for their work as chairs of the com-munications and external outreach committees, respectively; Cliff Allen for maintaining the ARJD directory (Bill noted a form in the packet to update information and/or opt out of information being publicly avail-able); Dan Spurling for his work on

the communications committee and sending email blasts; Trevor Gross for helping monitor the OASIS proj-ect; and Meg Greene for volunteer-ing for numerous committees and always honoring her commitments.

In addition, Bill thanked the ven-dors for planning thoughtful and fun events for the evenings: Leslie Os-trander and Alison Manchester from LexisNexis; Dave Spencer, Laurie Oli-ver, Kate Schultz, and Lynette Ostrem from Thomson Reuters; and Kathy Hough and Crystal Bryant from Wolt-ers Kluwer.

3. History of the Denver Mint: An Overview of How the Mint Produc-es Money with an Emphasis on the Quality Assurance Programs that Ensure Mistake-Free Coins

Tom Fesing, Public Affairs Spe-cialist at the Denver Mint, began his presentation by handing out samples of blank (planchet) and finished pen-nies (according to Mr. Fesing, “the government’s two cents worth”), and describing special products of-fered by the mint related to the fifti-eth anniversary of the Kennedy half dollar (all available online). Mr. Fes-ing described and showed pictures and videos regarding the history and function of the mint, the design and production process, actual coin pro-duction from start to finish, quality control procedures, transportation and distribution, and the Mint’s use of renewable energy.

The first coins in the area were made by a group of private bankers after a flood of settlers came follow-ing the discovery of gold. The federal government now has four produc-tion facilities in addition to its head-quarters in Washington, D.C.: Phila-delphia, Denver, San Francisco, and West Point, N.Y.

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Coin production starts with the artwork, which is eventually made into a master die. After Denver re-ceives a master, it makes working dies from it. Dies must be replaced every six to eight hours.

The public hoards $1 to $4 mil-lion of change every 24 hours, and collectors take older coins out of circulation. The Mint thus needs to keep making coins. Sixty to seventy percent of its production is pennies. An operator checks batches approx-imately every 15 minutes with a high-powered magnify-ing glass. If there are er-rors, the entire batch is mutilated into “waffles,” which are shipped back to metal vendors to be recycled. The Mint fills orders for the Federal Reserve once a month, and the quantity re-quested may vary.

The Mint does not use tax dollars to operate. Mr. Fesing explained seigniorage, which is the difference between the face value of a coin and the cost to produce it. Production costs include the metal used to make the coin, and the costs of administration, produc-tion, and transportation. The Mint loses money on the penny (it costs approximately 1.8¢ to produce a pen-ny) and the nickel (it costs approxi-mately 9.5¢ to make a nickel). How-ever, there is a profit on other coins: dimes only cost 4¢ to make, and quarters cost 10¢. The Mint made $4 billion on the state quarter program. Half dollars cost 16¢, and dollar coins cost 20¢; however, the Mint does not actively produce the half dollar and dollar for general circulation because people do not use them very much (although the Mint still makes some

for collectors). One advantage dollar coins have over dollar bills is their long life: coins last approximate-ly 60 years. The dollar bill, which is made by the Bureau of Engraving and Printing, also costs 16¢ to make, but generally only lasts about three years and can’t be recycled (because of the petroleum-based ink and vir-gin cotton). Overall, the Mint gener-ates enough revenue to pay all costs. Its net revenue for 2013 was $487 million. Such revenue goes to the general fund to pay down the deficit.

U.S. coins are required to con-tain certain inscriptions: E pluribus unum, “In God We Trust,” the denom-ination, year made, and a mint mark (D=Denver, P=Philadelphia, S=San Francisco, W=West Point). Despite the prevalence of debit and credit cards, 60 percent of transactions are coins and cash. The Mint prevents theft by observing strict security measures. It has its own police force, which is charged with ensuring the safety of visitors, contractors, and employees, and with preventing as-sets from leaving the building in an unauthorized manner. The rule for employees is: no coins in, no coins out. There are FBI background checks on all employees every five years, and metal detectors are even more sensitive than those at the air-

port. Harsh penalties are another de-terrent: five years in federal prison for every coin stolen. The Treasury Department conducts background checks on the commercial trucking firms that transport coins and keep strict track of what is supposed to be delivered. Waffled coins can still be valuable; shipments may be escorted by Mint police.

The Denver Mint is proud that it is the largest consumer of renewable energy in the federal government. It is 100 percent solar- and wind-pow-

ered, and last year, the Mint recycled 7.4 mil-lion pounds of waste.

Mr. Fesing ad-dressed the contro-versy of whether the United States should stop using the pen-ny. Every year, a bill along these lines is introduced and de-bated in the House of Representatives, but

it has not gotten past the House. Mr. Fesing offered his personal opinion that the penny is here to stay, but the dollar bill will be phased out within a decade.

Mr. Fesing also explained the com-position of coins. Nickels are 75% copper and 25% nickel; before 1964, the dime, quarter, and half dollar were mostly silver clad over copper, but are now 8.33% nickel with a core of copper. The outer shell of the dol-lar coin is manganese, and the inner core is copper, zinc, and nickel. Since 1982, pennies are mostly zinc, coat-ed with a thin layer of copper.

The Mint has quality control pro-cedures at each step of production. Incoming metal is checked for qual-ity by a metallurgist, who takes samples from each shipment and

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does wet and dry chemical testing to ensure the proper mix of metals. Blanks, dies, and finished coins are inspected. Mr. Fesing showed exam-ples of defects in coins (i.e., delam-ination, spots caused be humidity, shadows from dust or grease on the die, off-center dies, and “come-to-gethers”). Collectors actually seek defective coins—they are rare and therefore more prized.

The Mint has never been robbed; in fact, there has never even been an attempted rob-bery. However, there have been employee thefts. Mr. Fesing closed his presen-tation with the story of Orville Harrington, an em-ployee who, in 1920, stole 56 gold bars over time by putting one in his jacket pocket every few days. When his theft was discov-ered, the bars were worth $81,400; they would be worth over $6.5 mil-lion today. Although Harrington, who had a wooden leg, simply concealed the bars in his jacket pocket, news-papers sensationalized the story and reported that he concealed them in a hollow he’d carved in his leg, earn-ing him the entertaining but errone-ous nickname of “The Man With the Golden Leg.”

4. History and Current State of Tribal Court Opinion Reporting

Three speakers discussed tribal court reporting: Justice Jill E. Tomp-kins, Laurie Oliver, and Professor Jane Thompson.

4.1 Justice Tompkins

Justice Tompkins is an enrolled member of the Penobscot Indian Na-tion of Maine; has 22 years of tribal court judicial experience garnered

through her service as a Chief Judge with the Mashantucket Pequot and Passamaquoddy Tribal Courts, as an Appellate Justice with the Mashan-tucket Pequot, Passamaquoddy, Penobscot, and Pokagon Band of Potawatomi Courts of Appeal, and as judge pro tempore for the Shakopee Mdewakanton Sioux (Dakota) Com-munity. Justice Tompkins is currently serving as President of the National American Indian Court Judges As-

sociation, and is the first woman to hold this position.

Justice Tompkins had her presen-tation recorded by videotape, as she considered it an historic event. When she started working in tribal courts in 1991, the published law was in a “folder somewhere” that was never to leave the court house, making it difficult to determine precedent and maintain continuity. Justice Tomp-kins has been a huge proponent of tribal court publication.

Justice Tompkins gave a brief over-view of the American Indian and Alas-ka Native tribal justice system. There are 566 federally recognized tribes (more than 45 tribes have histori-cal connections to Colorado), which have a government-to-government relationship with the United States (tribes are sovereign entities). Tribes have always had justice systems—methods for resolving disputes, pun-

ishing offenses, etc. There is often a “hybrid” system: the tribal council or elder council will determine cer-tain issues (such as membership, banishment) and a Western-style adversarial tribal court determines the other issues. Many tribal courts were established by the Bureau of In-dian Affairs (BIA)—a somewhat for-eign body imposed upon tribes—and some of these courts still have credi-bility problems.

Sources of law in-clude tradition and custom. Many tribes have constitutions, in-cluding bylaws; some adopted “cookie cut-ter” constitutions that are a product of the 1940 Indian Reorga-nization Act. Many other tribes have un-written constitutions.

Many tribes have laws, codes, and tribal judicial decisions.

Justice Tompkins asserted that In-dian law is subject to political whims. The United States Supreme Court takes a disproportionately high num-ber of cases involving federal Indian law and tribal jurisdiction. Tribes don’t fare very well, often not truly being treated like another sovereign country but rather like “domestic dependent nations.” Tribes do not have jurisdiction over non-Indians in criminal matters, and there are com-plex rules regarding civil matters and jurisdiction over members of other tribes. Often tribal courts are under tribal council, not on equal footing, and there is not a firm separation of powers in some tribes. These factors affect whether decisions can be pub-lished—it is not always up to court itself; it may be up to tribal council (legislative body).

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Justice Tompkins also described tribal court structures. There are courts with general jurisdiction and some with special jurisdiction (such as Indian gaming, juvenile, healing and wellness (similar to state drug courts)). There is usually some sort of appellate court (intermediate lev-el courts are rare). Many tribes are small, so they sometimes combine and have intertribal courts.

Before 2000, there were very few published tribal decisions. The Indi-an Law Reporter was in binders, with no cumulative index, and it depend-ed on volunteers to provide content. In 2000, the Native American Indian Rights Fund (AIRF) began a digitiza-tion project. AIRF’s library now has the largest collection of tribal codes. In 2000, the National Indian Judges Association (NIJA) established the National Tribal Justice Resource Cen-ter, which posts information on its website. The Tribal Policy Institute also began to collect decisions, work-ing with VersusLaw. More tribes now have their own websites. The Na-tional Indian Law Library (NILL) has grown its collection and is a great re-source.

Justice Tompkins discussed the pros and cons of tribal court opin-ion publishing. Some of the reasons tribes may want to publish include: making laws available to the com-munity and demystifying tribal court processes, thus promoting economic development (if businesses come in, they will want to know the governing law). Another reason to publish is to maintain continuity/stare decisis. Reasons tribes may not want to pub-lish include: a desire for self-protec-tion as a result of historic trauma; a desire to avoid the erosion of tribal sovereignty and jurisdiction; a de-sire to protect members; a desire to

maintain a traditional forum (strong oral tradition); and a desire to avoid financial exploitation and profiteer-ing (i.e., companies profiting with no return to the tribe). Practical bar-riers include underfunding; the fact proceedings may not be recorded; the lack of human and technical re-sources; the perception that there is no need to publish; and the percep-tion that there is no interest outside of community for such publication.

4.2 Laurie Oliver

Laurie Oliver, Team Coordinator of Judicial, Legal Editorial Operations at Westlaw, spoke about the evolution of tribal judicial opinion reporting. Ms. Oliver explained that the team of attorneys at West who headnote all national reporter system cases treat tribal court opinions like other cases in the national reporters. Tribal ju-dicial opinion reporting at West be-gan with those of the Mashantucket Pequot Tribe. West went all the way back to 2002 opinions—this was the first time West did editorial work on tribal opinions. This experience inspired them to look at other trib-al content, and they reached out to many tribes. The American Tribal Law Reporter began publishing in 2009; eleven tribes were involved at the beginning. Decisions go back to 1997. The first set was four volumes, and is now up to nine or ten volumes. There are now 28 tribes and 51 sepa-rate courts participating. West is also working on collecting and updating tribal codes (there are several online on Westlaw). Content is acquired through separate agreements with each tribe.

Some of the unique aspects of trib-al judicial opinion reporting at West include the fact that it is necessary to: go through documents and deter-

mine what belongs in the collection (i.e., minute orders?); identify court structures and relationships (i.e., who binds who—for KeyCite purpos-es); handle inconsistencies in court names, tribe names; accommodate special characters (i.e., Navajo has its own alphabet); ensure consistent statute citations (Bluebook often does not cover tribal opinions and courts are not necessarily consistent with references); expand “Indians” key number topic (especially with respect to procedure: “Proceedings in tribal courts and agencies”). Tribal opinions are treated like other cases in the national reporter system: syn-opsis, headnotes, key number clas-sification, KeyCite links, and current awareness summaries are prepared. Finally, tribal judicial opinions con-stitute a specialized area of law that is not necessarily analogous with state law.

4.3 Professor Jane Thompson

Professor Jane Thompson, Associ-ate Director of Faculty Services and Research at the University of Colora-do Law School, discussed research-ing tribal court opinions, which can be frustrating and mysterious to the uninitiated. The University of Colo-rado Law School Library has a large Indian law collection. The NILL in Boulder has a large, diverse collec-tion. Also, Mary Whisner at the Uni-versity of Washington Law Library has a large Indian law collection and has developed a great research guide on tribal law, which is available on-line.

There is no single comprehensive source for all tribal courts and many aren’t published at all. Additionally, researchers have to be concerned with currency, citation formats, and whether posted versions are con-

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sidered official by the court. Profes-sor Thompson briefly discussed and showed examples of the following sources. One approach is to check a tribe’s website. NILL has created a tribal law gateway, which links to many tribal websites and has an in-formation page on the collections of major vendors. Another resource is the National Directory of Tribal Justice Systems from the NIJA. The Northwest Intertribal Court Sys-tem in a rich source for tribes in the Northwest. Subscription da-tabases Westlaw, VersusLaw, and LexisNexis have tribal law and of-fer different enhancements. West also prints an American Tribal Law Reporter, which has coverage from 1997 to the present, and is also avail-able electronically. The Indian Law Reporter, published by the American Indian Lawyer Training Program, has published selected opinions since 1983. NILL has compiled a cumula-tive index for the Indian Law Report-er, which is searchable by keyword and subject. Some tribes publish their own reporters; large academic libraries may subscribe.

Ms. Thompson concluded that tribal court opinion publishing has come a very long way, but it is still not a straightforward task, and re-searchers must be careful to verify currency.

5. Typography for Lawyers: Style, Language, and Publication Guid-ance

Matt Butterick is an attorney in Los Angeles, who came to law with a de-gree in art from Harvard focusing on graphic design and typography. He had previously worked as a designer of digital fonts. He combined the two in a website in the Fall of 2008 called “Typography for Lawyers,” and has

published a book of the same name.Mr. Butterick thanked the ARJD for

inviting him and noted that lawyers are often skeptical of his presenta-tion. Appellate lawyers are most in-terested in typography issue; they generally spend more time thinking about these issues, rely more on writ-ten work (as there are sometimes no oral argument at the appellate level), and are, according to Mr. Butterick, the “nerdiest” lawyers. Similarly, in design, people who like typography are the nerdiest.

With over 20 years of background in typography, as Mr. Butterick be-gan studying law, he wondered why documents looked so “terrible.” He concluded that there is no formal reason, such as laws or rules, but rather stems from convention and superstition.

When he began his website, Mr. Butterick did not expect much inter-

est in the topic and was surprised that there was in fact a decent inter-est. Mr. Butterick, inspired by Bryan Garner and his Dictionary of Modern Legal Usage, decided to write a book on the topic of typography. Mr. But-terick also runs another website for nonlawyers called “Practical Typog-raphy” (no book on this topic). All of the information presented today and in his book is available for free on the web.

Mr. Butterick appreciates that re-porters of decisions understand that legal writing is publishing—lawyers in general have been slow to under-stand this. Writing is fundamental to what lawyers do, but the extra wrinkle is that lawyers are publish-ers (unlike, say, novelists, who have others to do the publication part). Typography is the visual compo-nent of the written word; every time you create written word, you are do-

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ing typography (this is distinct from the text itself).

There are three reasons lawyers should care about typography: (1) good typography is part of good lawyering, because so much of law-yering depends on the written word; (2) standards that should apply to legal documents are the standards of professional typography (the two diverged because of the typewriter; lawyers used to have print shops prepare documents, but with the wide availability of typewriters, law-yers started to prepare documents in-house—but the typewriter is limited with respect to typography, and lawyers have perpetuated these problems with computers, even though it’s not necessary); and (3) any lawyer can master the basics of typography—it’s not that hard.

Typography is about more than just how a document looks. Typogra-phy can be used to make documents more effective by supporting, rather than contradicting, the message and maintaining reader attention. One example is the infamous “butterfly ballot” in the 2000 presidential elec-tion—that design was a typographic error and resulted in enormous con-fusion.

Mr. Butterick quoted Justice Rob-ert Jackson: “You will not be stopped from arguing [in court] if you wear a race-track suit or sport a rainbow necktie. You will just create the first impression that you have strayed in at the wrong bar.” More specifical-ly, while there is no dress code in the court rules, dressing sloppily is probably not good for a lawyer’s ar-gument. The same idea applies to ty-pography—it is not more important than substance, but it helps the ar-gument to make the best impression possible.

Mr. Butterick presented several written examples to illustrate his points. One was a case from Mich-igan involving a ballot measure; the court’s discussion made it clear that it did not understand how type is measured yet they were on the verge of changing how point size is measured in printing. Mr. Butterick also had the group very briefly re-view two resumes and decide who to interview based solely on the ap-pearance of the resumes; the ma-jority chose one, and Mr. Butterick contended that choice was based on typography, because the contents of the resumes were identical.

Mr. Butterick stated, “Of course you can judge a book by its cover!” and pointed out that publishers spend a lot of time and money hoping that people do.

Mr. Butterick then moved on to dis-cussing how better typography can be accomplished. He contends that lawyers as a group need to overcome the “dismal legacy” of the typewriter.

Of course lawyers must work un-der the constraints of court rules, but outside of that, consider these principles. First, the quality of ty-pography is a function of how body text looks—always start with the body text (not the title page, etc.), taking into account these four con-siderations: (1) font (i.e., Times New Roman, Century Schoolbook, etc.); (2) point size of font; (3) line length (the distance from the left side of the page to the right side of the page, i.e., margins); and (4) line spacing (the vertical distance between each line). Mr. Butterick used several examples to illustrate the difference between the characteristic “typewriter” lay-out (default Times New Roman font, 12-point, 1-inch margins, dou-ble-spaced lines) and the same text

with the foregoing considerations applied. Mr. Butterick contends that there are better looking fonts; that the most comfortable point size for reading is 10 (see magazines, news-papers, etc.); that line length/mar-gins should be bigger (the most com-fortable size being 45-90 characters per line, regardless of text size); that as a rule of thumb, there should only be two to three lowercase alphabets per line; and finally, that while dou-ble-spacing is standard because of typewriters, the ideal spacing is 120-145% of the point size

Mr. Butterick went through exam-ples of best and worst typography in court decisions in various juris-dictions. Practices that made the “worst” list included underlining for emphasis (bold or italics is better), the use of justification without hy-phens (justification vs. left-aligned is matter of choice, but if you justify, you should use hyphens), the use of monospaced typefaces (such as Cou-rier). Better practices include bigger margins, closer than double-spaced lines, and fonts from the Century family.

Lawyers often object that court rules constrain them, but Mr. But-terick advises to actually review the rules, which are often flexible enough to allow documents to have good typography.

6. Roundtable on Succession Planning: A Conversation Between New and Retired Reporters

Former and current reporters in Massachusetts, Washington, and Col-orado shared their experiences with making the transition between re-porters.

First, Cliff Allen, the recently re-tired reporter from Massachusetts, spoke and identified three keys to

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succession planning: (1) prepare those within the office who might succeed you (and prepare guidance in case someone outside your office succeeds you); (2) ensure the re-porter’s office survives, so that a suc-cessor is actually necessary; and (3) prepare those who will select your successor.

Cliff believes succession plan-ning begins when you’re appointed. During his time as reporter, Cliff cre-ated a style manual and procedures manual. Cliff involved deputies/as-sistants in maintaining both manuals and in the process of overseeing pub-lishing contracts, as it’s important to cross-train staff and allow them contact with judges. Be prepared for inadequate funding; on the bright side, this can lead to creative solu-tions. The key is to educate judges as to the work of the reporter’s office and to develop good relationships with them. To this end, Cliff made a point to visit new judges and explain what his office does and how it can make their life easier. Remember, law clerks are a conduit to judges (this can be both good or bad).

Brian Redmond, the current re-porter from Massachusetts agreed with Cliff that succession planning starts the moment you begin as the reporter. Brian recommended think-ing of your career in terms of, “I serve as the Reporter of Decisions,” rath-er than “I am the Reporter of Deci-sions,” to keep in perspective that you are the custodian of the position for a certain amount of time. Brian described his experience in taking over as the reporter in Massachu-setts, which was quite hectic: Brian was injured and had to work from home, highly experienced staff mem-bers retired, responsibilities had to be shifted/shuffled, the court was

moving from WordPerfect to Word, and the office moved to a new pub-lisher and also entered the world of e-publishing.

Brian echoed Cliff with respect to the keys of a successful transition: cross-training, repeated debrief-ing (explain what you’re doing and why), excellent procedures manual (which Brian put to the test). Brian also recommended organizing files, both hard copy and electronic, with a view to what will help your successor (which Brian admits is not easy), and to periodically review, augment, and clean out those files. He also pointed out that his research indicated that many states have resources on how to handle succession planning.

Rick Neidhardt, the reporter in Washington, appeared via Skype. Rick shared his experience assum-ing the reporter’s job in Washington after the last two reporters left and there was a time before Rick took over when there was no reporter. The first year was bumpy, but a great learning experience. Rick identified the key to succession planning as continuity. He also noted that the prior reporter left behind excellent, detailed manuals that have helped immensely.

Dan Anselmo shared his expe-riences assuming a reporter’s job both from in-house (such as he did in Michigan) and from outside (as he did in Washington). Dan reiterat-ed the importance of staying on the judges’ radar—they need to know the reporter’s value when they start cutting costs. Dan also agrees that cross-training is key, and made sure that at least two people knew how to do every function in both offices. Dan noted different courts have different levels of receptivity to edits, but all share the same objective: opinions

that will not embarrass judges, and headnotes that are accurate, com-plete, and concise. Dan also compli-mented the manuals in Washington and noted that he and his predeces-sor had one week of overlap, which was incredibly helpful.

Leah Walker, who recently became the reporter in Colorado, shared her experience. Before Leah assumed re-sponsibility, there was no reporter for several months. Leah has received some help from the prior reporter and agreed it is preferable to have some overlap between former and new reporters, or at least minimize the time between the two as much as possible. Leah also echoed the help-fulness of a manual, but warned to be careful as to what is put in it. Leah discussed the pros and cons of hiring someone from out of state. The pros are you can get somebody trained by another court, who can hit the ground running. Cons include a delay required by moving and time to take the bar, if membership is a require-ment, as well as a steeper learning curve with respect to local law and procedures. Leah offered sugges-tions: permit membership in any bar and encourage staff to join the ARJD.

Friday, August 8, 2014

7. Marijuana Legalization in Colo-rado: Policy and Ethical Problems

Mr. Ronald Nemirow, the present-er, is a legal ethics/legal malpractice expert who represents lawyers and insurance companies, and a member of the Ethics Committee of the Colo-rado Bar Association. Mr. Nemirow is also the chair of a subcommittee that drafted two opinions dealing with (1) ethics of lawyers consuming marijuana and (2) ethics of lawyers advising people in the marijuana in-

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dustry in light of marijuana legaliza-tion in Colorado.

Marijuana was not always strictly prohibited. The Controlled Substanc-es Act was passed in 1970 and is of-ten compared to Prohibition. In some ways, the trend towards legalization of marijuana is following the model of the repeal of Prohibition, though marijuana is somewhat different. Use of marijuana was not as wide-spread as the use of alcohol; and the prohibition on marijuana use seems more closely linked to racism, xeno-phobia, and classism associated with non-whites, foreigners, and poor people. The prohibition on marijua-na seems far more deeply ingrained than that on alcohol. Alcohol was prohibited from 1920 to 1933; mar-ijuana was prohibited [in Colorado] from approximately 1930 until 2000 (medical use) or 2012 (recreational use) and that prohibition was more strictly enforced. There is a declared “War on Drugs.” Alcohol is still regu-lated differently between states, and things are moving more slowly with marijuana in comparison to alcohol. In 1987, Douglas Ginsburg, a Reagan nominee to the United State Supreme Court, had to withdraw from consid-eration after it was revealed he had smoked marijuana; in 1992, when confronted with marijuana use, pres-idential nominee Bill Clinton said he “didn’t inhale”; in 2006, presidential nominee Barack Obama admitted that he had smoked marijuana and that he did inhale (“that was the whole point”). There are now more marijuana shops in Denver than cof-fee shops.

Colorado criminalized marijuana use in 1970; in 2000, Coloradans voted to decriminalize marijuana for medicinal use. However, there was still strict enforcement by the

federal authorities. There was a sea of change with the release of the Og-den Memorandum in 2009, in which it was announced that the policy of the Justice Department would be not to prosecute people who use mari-juana in accordance with state med-ical marijuana laws. This, combined with being able legally to grow many plants, resulted in a “flood” on the marijuana market just before it was legalized for recreational use. There were 18,000 people on the medical marijuana license list, and the re-gime was somewhat lax; it was not that big of a leap to recreational le-galization. In fact, there were more votes to legalize the recreational use of marijuana than votes for Presi-dent Obama (who carried the state). There seems to be a widespread con-sensus regardless of party that mar-ijuana should be treated and taxed like alcohol.

In light of legalization, lawyers needed guidance. The Rules of Pro-fessional Conduct (RPC) prohibit lawyers from advising clients to en-gage in or assist in conduct that is criminal, and marijuana use is still against the law federally—thus ad-

vising a client how to comply with state laws may technically run afoul of the RPC. Nevada, Arizona, and Maine have also had to face this is-sue. Mr. Nemirow pointed out that his subcommittee’s opinion on the issue has no legal effect whatsoev-er. But that’s better than having no opinion at all on the matter. The sub-committee broke the issue into two: Can lawyers ethically use marijuana? And can lawyers ethically advise cli-ents on marijuana commerce?

The easier issue is the first, i.e., can lawyers ethically use marijuana? The RPC say it’s professional misconduct to commit a criminal act that re-flects adversely on a lawyer’s hon-esty, trustworthiness, or fitness as a lawyer. The subcommittee’s opinion says that it’s OK to use marijuana, al-though it’s not a great idea. Lawyers should not practice while high or im-paired, whether the impairment is a result of marijuana use or alcohol use.

The second question—whether lawyers can advise others on how to comply with Colorado’s marijuana regulation without being unethical—is more important and much harder

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to answer. The subcommittee issued an opinion and shortly thereafter withdrew it. The subcommittee con-cluded there were no ethical prob-lems with advising clients on past conduct, i.e., defending clients for past conduct. The harder question is advising on future conduct, i.e., tax clients (is fertilizer deductible?) or family lawyers (parenting plans when one parents uses marijuana, etc.). Criminal defense lawyers were familiar with the regulations and sort of morphed into transactional lawyers, but they tend not to have a business background.

Essentially, lawyers are advising clients on conduct that complies with state law but not federal law. There are a few historical parallels: Prohibition, Civil War, Civil Rights movement. Another area this paral-lel might come up: immigration.

Ultimately, the subcommittee de-termined that the answer to wheth-er a lawyer can ethically advise clients regarding marijuana is: “it depends.” It’s OK to tell clients about implications of past con-duct. However, it’s probably not OK to tell them how to classify ex-penses to minimize tax exposure (as that could be seen as though the lawyer conspiring with the client to circumvent federal law). The Colorado Supreme Court was considering changing the rule to make an exception making it OK to advise clients regarding mar-ijuana commerce. However, the Court ended up not changing the rule. Rather, it issued a comment to the rules to the effect that a lawyer may counsel a client re-garding the meaning and scope of constitutional amendments and may counsel a client regarding conduct the lawyer reasonably

believes is permitted by state law. However, the lawyer must also ad-vise regarding federal law and policy. Two justices wouldn’t even approve of this comment (“comment with a dissent”); and the comment applies only to lawyers in state court—The U.S. District Court has not weighed in yet. The upshot: in Colorado, for the time being, a lawyer is unlikely to be disciplined for counseling regarding conduct that is legal under Colorado law.

In late July 2014, the Colorado committee advising judges on eth-ics, appointed by the Colorado Su-preme Court to issue advisory opin-ions, considered whether it is OK for judges to use marijuana. The answer is no. Because it’s a federal crime, a judge’s use for any purpose, even medicinal, violates rules of judicial conduct.

In the employment law context, the same dynamic plays out. Colora-

do has a statute known as the Smok-ers’ Bill of Rights (despite its name, the intent when passed was related to the use of tobacco, not marijuana), the gist of which is that an employer cannot fire employees for off-work conduct that is not illegal. A recent case, Coats v. Dish Network, gives guidance. Coats has a license to use medical marijuana. Dish Network fired him for testing positive for mar-ijuana. Coats, who is quadriplegic and uses marijuana for pain relief, was not impaired at work and mar-ijuana use did not affect his work. After he was fired, Coats sued under the Smokers’ Bill of Rights. The trial court dismissed Coats’s complaint, and the Court of Appeals issued an opinion in 2013 affirming that de-cision. While the statute was meant to keep employers’ proverbial nose out of employees’ legal home life, the statute cannot protect those violat-ing federal law.

So, although a lawyer may not be disciplined for using marijuana, he or she may be fired; and judges can’t use it at all. So saying it’s legal gives the wrong impression; the bar is putting up with it for now, and we’ll see how it goes.

8. Michigan’s Search for a Solution to Link Rot.

Katie Loomis, a Legal Edi-tor at the Michigan Supreme Court, presented this topic. Ms. Loomis prepares opin-ions for publication in the Michigan Reports and Mich-igan Appeals Reports.

The term “link rot” refers to the fact that materials on the Internet are ephemeral: websites change and disap-

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pear. In such cases, the URL no lon-ger works. Instead, the user obtains an error message when trying to ac-cess that URL. “Reference rot” refers to when a URL still works, but the content has changed.

Why does it matter? As reporters/editors, we strive to make sure that all citations are accurate. With link rot, a citation can be perfect when released, but inaccurate five minutes later. The issue with citing to the In-ternet is that, unlike a book in a li-brary, a website remains in the sole custody of whoever distributed it; if the website author deletes a partic-ular document (or the website com-pletely), it cannot be found anymore. To complicate matters, some sources are only available on the Internet.

There are several possibilities for dealing with this phenomenon. One is to keep an internal hard copy, i.e. someone prints off a copy of the cited material and puts it in the case file. The advantage of proceeding this way is that it is easy and provides a permanent archive. It has limitations however. It makes it harder for the public to access the information, and the opinion still contains a dead link, which can lead to unfortunate re-sults. For example, Ms. Loomis pro-vided the example of someone who bought a dead link in a U.S. Supreme Court opinion and now, when users go to that link, it makes fun of the transience of the Internet. It could have been much worse.

Another possibility is to have an internal electronic archive. The court creates a PDF of the material and makes it available to public via a web-site. Or the court can keep the mate-rial internally and provide it when asked. The disadvantage of proceed-ing this way is that it requires a fair amount of court resources.

Yet another ap-proach is an ex-ternal electronic archive. This is where someone other than the court maintains the archive. There are several web archiving services, i.e., Chesapeake Digital Preser-vation, Internet Archive, Archive It, and Perma.cc (Perma).

Of the available services, Perma seems best for courts. They are most directly fo-cused on courts’ needs: preserving online legal mate-rials. Also, it is free. Perma was cre-ated by Harvard Law School Library and is supported by other law li-braries around the country. It allows courts to create permanent citation links. Ms. Loomis briefly explained how it works: you enter the URL you want to cite; Perma will archive the material the URL points to and give you a new, permanent link. The Mich-igan Supreme Court chose Perma be-cause it is simple; Perma citations in opinions released to the public won’t go bad; Perma is easily accessible to anyone with an Internet connec-tion; Perma is operated by libraries, whose mission is to preserve materi-als and make them accessible to the public on demand; Perma is free; and Perma was developed with copyright concerns in mind; and finally, Perma acts as a first line of defense on copy-right issues, thereby saving court re-sources.

That said, there are limitations to Perma: can’t archive videos; some cites don’t archive well (moving parts, lots of flash, etc.); and the con-tent must be freely available on the web to the general public. One thing to consider is permanency. How per-manent is Perma? However, Perma does have a reasonable backup plan.

Michigan went with Perma be-cause it has the best combination of accessibility and ease of use; the benefits outweighed the limitations. Michigan has had a positive experi-ence. Perma is extremely responsive to resolving issues/suggestions, and Michigan is confident enough in Per-ma to rely solely on them (no print-outs in case files).

Michigan treats using Perma as a background process—judges are not necessarily involved. During the ed-iting process, a Perma link is created. The editor will then ask the judge

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to review it (i.e., did we archive the right thing?).

In conclusion, Ms. Loomis ad-dressed things to think about. For example, who will be creating links? (Judges? Law clerks? Reporter’s of-fice?) Perhaps the author will create the link and the reporter will keep the vesting power (links are not per-manent until “vested”). The answers to these questions will depend on the processes in your respective courts. Another consideration is whether to continue to internally archive. Another issue: multiple page arti-c l e s — P e r m a cannot capture multiple pages. Michigan has asked authors to double check if citing to a single page is available and if so, to cite to that single page. Another option would be to create a PDF and upload that to Perma. What technology is available in your court? Does your browser work with Per-ma? (Chrome works, older versions of Internet Explorer don’t work as well.) Think about how to make Per-ma better—Perma is very responsive to feedback. Citation format—how do you cite to Perma? Ms. Loomis gave examples of how Michigan cites Perma links (Michigan chose to in-clude cite to original URL, date ac-cessed, then Perma citation).

9. Perma.cc: The Technical Plat-form and Features to Prevent Link Rot.

This session was presented by Kim Dulin, co-director of Harvard

Library Innovation Lab, and Adam Ziegler, Project Manager for Perma.cc (Perma).

Perma is a project created at Har-vard Law School Library by the Har-vard Library Innovation Lab, which is focused on the intersection of li-braries, technology, and law.

The trend is obvious: links in court opinions in recent years have ex-ploded.

The problem is that pages get de-leted, move to a different address, and are often altered. A study of Supreme Court opinions and law

reviews showed that 50 percent of links in Supreme Court opinions and 70 percent of links in journals, in-cluding Harvard Law Review, expe-rienced rot. A survey of the opinions of six federal circuit courts rendered in 2013 showed that, of the opinions with links, 11 percent had already experienced rot within a year.

Perma’s approach is (1) totally web-based; (2) user-directed; (3) library-powered (consortium of 60 libraries across the country acting as registrars); (4) open source (the code is nonproprietary, freely available, and shared, which can elicit contri-butions and improvements from in-terested community); (5) free (Per-

ma is committed to ensuring that the service remains free for courts, aca-demic institutions, and journals).

Mr. Ziegler demonstrated a user’s experience: enter a URLPerma assigns a new, unique URLPerma archives the pageuser reviews archiveif OK, user vests Perma linkpeople can now access Perma link.

Not every user has vesting privi-leges. These privileges are reserved for libraries, journals, and courts at this point. Some law firms, etc., use Perma, but cannot vest. Unvested

links expire in two years, but can still be useful in briefs, etc. Users can tell if a link has been vested.

With respect to citation, Perma recom-mends citing both the orig-inal URL and the Perma link (like Michigan

does). Bluebook is looking at the is-sue, and a new rule may address this situation.

Currently, Perma has about 2,300 users, mostly libraries and journals. There is a growing community of court users (such as Michigan and the Virgin Islands), and, as discussed above, some law firms (who do not yet have vesting power).

Registrars in Perma—i.e., libraries, reporters of decisions, etc.—have the power to authorize users, give vest-ing privileges, etc. Vesting is a form of gatekeeping so as to ensure that Per-ma is used only for links appearing in published opinions.

To address copyright concerns,

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there is a dark archive. Perma wants to reconcile the rights of content owners with those of the public to access such information. The dark archive contains Perma links not accessible to the public through the website. They are still preserved, and they are still available albeit through more manual mechanisms. Perma will place a document in the dark ar-chive in three instances: at the user’s direction, at the site owner’s direc-tion, and in the case of valid DMCA takedown notices. If information is dark archived, when a user clicks on the link, they get a notice to contact the librarian to obtain a copy of the document.

Perma’s strategy for permanence is “mirroring.” The archive resides on servers at Harvard Law School Li-brary. While still in prototype stage, mirroring entails distributing parts of the archive to different partici-pating libraries, to ensure sufficient, redundant copies. While Perma’s intent is to be around forever, they also have a contingency plan, which includes: (1) redundant third-party services; (2) a two-year phase-out plan if Perma is forced to shut down (which includes giving files back to creators); and (3) a ten-year phase-out plan. Essentially, Perma would back things up for ten years after be-ing forced to shut down. More infor-mation on the foregoing can be found on Perma’s webpage (perma.cc).

Saturday, August 9, 2014

10. Cognitive Wellness: The Im-pact of Stress on the Brain, Ways to Mitigate It, and Development of Individual Cognitive Wellness Plans.

This session was presented by Debra Austin, J.D., Ph.D., who teach-es lawyering process and advanced

legal research. Dr. Austin studies neu-roscience and how technology can im-prove teaching. She thanked Richard Ross for recom-mending her to the group.

Dr. Austin be-came interested in and began studying neuroscience about five years ago, when she learned that a person’s IQ drops 30 points when angry. She eventually wrote an article on which this presentation is based. The article is available for free at http://papers.ssrn.com/sol3/pa-pers.cfm?abstract_id=2227155. The focus is on what legal professionals can do to keep their primary work tool, the brain, as healthy as possible.

The American Bar Association (ABA) has a rule of professional conduct that lawyers should be competent. We can improve effec-tiveness and performance by im-proving our cognitive wellness. Just as there is IQ and more recently EQ (emotional intelligence) and BQ (body intelligence), there is NQ— neurointelligence.

The Brain

The brain is approximately three pounds, and roughly the size of a co-conut. Despite its relatively small size, it uses a lot of the body’s resources: 25% of calories, 20% of oxygen, and 25% of total blood flow. Its consis-tency is somewhat like Jell-O or tofu. The brain has three functional sec-tions: (1) the primitive brain (which controls basic automatic functions, such as breathing, digestion, heart-

beat); (2) above the primitive brain, the part that looks like a walnut, is the emotional brain (which controls limbic system, circadian rhythm, hunger, addiction, emotions), includ-ing the amygdala and hippocampus, which are engaged when we have an emotional response, and are where learning, memory formation take place (hippocampus is the brain’s memory processor; the amygdala is the brain’s “pain button”); and (3) the thinking brain, which is where reasoning, logic, higher order think-ing occur.

The brain has four major lobes: the frontal lobe (language/reasoning); the occipital lobe (vision); the tem-poral lobe (hearing); and the parietal lobe (temperature, taste, and touch).

Information flows one way through the brain, via electrical impulse; neurotransmitters help information move through brain (electricalchemicalelectrical). There are over 100 neurotransmit-ters; some important ones are do-pamine (motivation, pleasure), en-dorphins (reduce pain), serotonin (mood), oxytocin (bonding), acetyl-choline (attentiveness), glutamate (learning), GABA (slows system

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down, produces feeling of calm), and norepinephrine (mood, attention, perception). We each have a network of neurons, which make up the con-nectome. It is a combination of genes and experience, thus each person’s connectome is unique.

There are three interesting/opti-mistic concepts in neuroscience: (1) neuroplasticity (our neural network is constantly changing, neurons that fire together wire together); (2) neu-rogenesis (until about 10 years ago, scientists thought you were born with a set number of brain cells, but in fact we grow new brain cells our entire life, and there are ways to en-hance growth); and (3) epigenetics (our experience, environments, ac-tions, and thoughts can change our gene expressions).

Neurobiology of Learning

“Cognition” means faculty of knowing. There are three basic parts. The first is to perceive stimuli, when we extract information we already have in memory in order to make decisions and take action. There are two types of memory: nondeclara-tive, which can’t be experienced in our conscious awareness (such as riding a bike or skiing), and includes fear memories (which are stored in the amygdala and include flash-

backs, phobias, PTSD); and declara-tive, which takes effortful processing for us to recall. Declarative memo-ry is further broken into two types: episodic and semantic (education, learning new areas of law, learned knowledge, facts, concepts, words).

The learning brain is made up of dual processing of the thinking and emotional brain. The first step in re-membering is encoding information, i.e., taking information in through our senses. This information goes straight to the emotional brain (first, quickly to the amygdala, then to the hippocampus). The next step is a memory consolidation loop, when information gets consolidated into long-term memory. This takes place largely during sleep (it takes two to ten years to fully consolidate our memories). Once memories are fully consolidated, they are stored in the connectome. The brain doesn’t real-ly work like computer, it works like a network of computers.

Your Brain on Emotion—The Impact of Stress on Cognition

We tend to use the word “emotion” incorrectly. An emotion is an uncon-scious and automatic response to emotional stimuli. There are six pri-mary emotions: fear, anger, sadness, disgust, surprise, and joy. Feelings are how we experience our emotions (this is what we usually refer to when we talk about our emotions).

The “stressed” brain refers to ac-tion in the hippocampus/amygdala. There are two kinds of stress: acute (short-lived, meant to help us mar-shal resources for challenges) and chronic (long-lasting). We don’t want our amygdala lighting up constantly for chronic stress. The Autonomic Nervous System (ANS) can be broken down into two parts: sympathetic

(fight or flight) and parasympathet-ic (rest and digest). When the sym-pathetic nervous system (SNS) is lit up, stress hormones (adrenaline and glucocorticoids like cortisol) rush through the body and the brain, caus-ing heart rate and blood pressure to increase, but digestion and immune system to slow down. If you spend too much time in fight-or-flight over-drive, the following occurs: impaired immune response; increased appe-tite, food cravings, body fat, and PMS symptoms; and decreased muscle mass, bone density, and libido; and emotionally, mood swings, irritabili-ty anxiety, and depression.

When the brain is bathed in stress hormones, the hippocampus sup-presses neurogenesis (growth of new brain cells), and there is shrinkage and death of brain cells; increased susceptibility to stress hormones (starts releasing additional gluco-cortisteroids); and memory, abili-ty to concentrate, problem solving, math, language processing, curiosity, creativity, and motivation decrease. Studies on people with depression, PTSD, and repeated jet lag show that hippocampi shrink in size.Dr. Austin is concerned because studies show that law students enter law school with better-than-average mental health, and leave with worse mental health than the general population. Dr. Austin will be study-ing the effect of law school on the hippocampus.

The Parasympathetic Nervous Sys-tem (PNS) is designed to help us at-tain equilibrium. It conserves energy, promotes digestion and the absorp-tion of nutrients, lowers heart rate and blood pressure, slows the re-lease of stress hormones, and results in feelings of calm and contentment. The goal is to increase PNS and de-

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crease SNS. The recommendations below are geared towards this goal. Because of neuroplasticity, we can improve our cognitive functioning and wellness.

Recommendations

The prescription is to strengthen the hippocampus (primary way is aerobic exercise, and walks count); enhance memory consolidation (through adequate and healthful sleep); achieve equilibrium between SNS and PNS (through restorative/contemplative practices, namely, mindfulness, meditation, yoga, and gratitude).

Exercise

Exercise does three important things to help the hippocampus: it enhances blood and oxygen flow (blood transports in all the good nu-trients and removes all the waste); it increases and rebalances key neu-rotransmitters by stimulating brain derived neurotropic factor (BDNF) (“Miracle Gro for hippocampus”); and increases and fine tunes the bal-ance of dopamine, serotonin, norepi-nephrine (and somewhat GABA), the three primary neurotransmitters im-plicated in depression.

BDNF creates new neurons, pro-tects existing neurons, and encour-ages synapse formation. The pri-mary way to increase it is through exercise; others ways include calorie reduction, intellectual stimulation, curcumin (active ingredient in tur-meric), and the omega-3 fat DHA.

Dr. Austin shared the results of re-search in Naperville, Illinois. In the 1990s, the director of physical ed-ucation (PE) shifted from a sports-based PE program to a fitness-based program. In 1999, on an internation-al exam for science and math, 97%

percent of Naperville eighth graders scored first in science, sixth in math (other American eighth graders in the US that year scored 18th in sci-ence, 19th in math).

Sleep

Seven to eight hours per night is recommended. It takes 90 to 120 minutes to get into the first REM cycle (seven hours of sleep equals about four REM cycles). REM is im-portant: the amygdala and hippo-campus are especially active during REM; the genes for memory consoli-dation are activated during REM and the connectome is more active than during waking hours, pointing to the fact that there is a lot going on with learning/memory consolidation during REM cycle. Cutting back on sleep to study is counterproductive because it results in fewer REM cy-cles. Such damage is not permanent. Adopting good sleep practices can remedy such damage. When trying to get more done, shortchanging your sleep is not the answer. Sleep depri-vation diminishes attention, working memory, executive function, logical reasoning, mood, and motor skills; it increases the aging process; and it impairs ability to use food appro-priately (effects on obesity, develop-ment of diabetes).

Circadian rhythm is controlled by the emotional brain, which gov-erns the arousal system and sleep drive. Ten percent of people are larks (wake up and sleep early), twenty percent are owls (productive later in the day), and seventy percent are hummingbirds (in the middle). The arousal system and sleep drive flat line in the afternoon (it’s not lunch that makes you want to fall asleep in the afternoon). Naps help cogni-tion and improve performance. They

don’t get you to REM, but they do im-prove the above (attention, etc.).

Restorat i ve/Contemplat ive Practices

MindfulnessMindfulness means being in the

present moment, not worrying about the past or thinking about the future, and doing so without judgment. A recommended book on the topic is Search Inside Yourself by Chade-Men Tan. Tan describes mindfulness as “Just drive,” (i.e., rather than raging at other drivers or similar, engage senses in the experience of driving). This concept should be expanded to all areas of life.

Meditation

There are two styles. Mindfulness meditation is focused on improving attention and focus. There are two ways to do mindfulness meditation: the easy way and the easier way. The easy way is to focus on your breath, with gentle and consistent attention, for two minutes; notice any thoughts but don’t follow them—the point is to bring attention back to the breath-ing. There is no such thing as “bad” meditation practice. The easier way is to sit for two minutes without an agenda—shift from doing to being.

The other type of meditation is loving-kindness meditation, which is focused on empathy and compas-sion. Dr. Austin shared two mantras: one from the Metta institute and one from Jack Kornfield. Begin by think-ing about yourself (“May I be happy, may I be well, may I be safe, may I be peaceful, may I be at ease”); them move to thinking the same about a loved one (“May he be happy, may he be well,” etc.); then think about a more difficult person (“May he be happy, may he be well,” etc.); then all

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persons or all beings. The two types of meditation are like the wings of a bird.

Research on mindfulness shows that it improves information process-ing and decision making, increas-es gray matter, improves immune function, and decreases distraction. Meditation has been shown to en-hance productivity, learning, health, and gray matter; strengthen the im-mune system; improve attention, mood, and compassion; decrease stress hormones; and improve med-ical conditions such cardiovascular problems, asthma, diabetes, PMS, chronic pain, insomnia, and anxiety.

Yoga

Yoga increases GABA. One study has also shown an increased metabolic rate.

Gratitude practice

This can consist of journaling (writing down three things you are thankful for) or simply reflec-tion (thinking of three things you’re proud of, three things you’re thank-ful for). Consistent gratitude rewires your brain, increases dopamine, and takes almost no time. It shifts your outlook from negative to positive. People with such practices are more positive, accomplish more goals, sleep better, feel more enthusias-tic alert, and energetic, have better blood pressure, and live on average seven to nine years longer than those who do not practice gratitude.

Anxiety and depression

People in the legal profession are more susceptible than the general population. This results from height-ened activity in the amygdala. Com-mon treatments, SSRIs, increase neu-

rogenesis. Combining exercise with SSRIs is a very powerful treatment. People at risk can use exercise and yoga preventively.

Suggested reading:

Buddha’s Brain and Just One Thing by Rick Hansen; Search Inside Your-self; The Four Agreements (if you can-not let go of things, this book is for you); Spark: The Revolutionary New Science of Exercise and the Brain and The Science of Yoga. The following are not strictly related to brain sci-ence but are also recommended by Dr. Austin as great books: The Engine 2 Diet and My Beef with Meat and Mayim’s Vegan Table (explains the-benefits of reducing consumption of animal protein).

11. Post-Release Revisions of Judicial Opinions: A Range of Cur-rent Practices with Suggestions

This session was presented by Professor Peter Martin, who writes, speaks, and consults on the impact of technology on law and legal institu-tions, and who co-founded the Legal Information Institute.

Professor Peter Martin began by noting that he originally planned this presentation to include suggestions, but after speaking with several mem-bers, “suggestions” have morphed into observations. Mr. Martin ap-peared at the ARJD’s annual meeting in Pittsburgh and is happy to be back. Eighteen members of the ARJD pro-vided information that he is using in this presentation, and he is grateful.

Reporters occupy stressful posi-tions, lying between judges/courts and an expanding universe of ser-vices that are depended upon for ac-cess to primary case law. Professor Martin’s research has revealed there is a wide range of resources, settings,

and practices among reporters. It is this wide range that prompted the change from suggestions to observa-tions; he realized most reporters are doing what they can in the parame-ters they work in—even if a report-er agrees with his suggestions, he or she may not be able to implement them, and it may take a lot of time even if they can.

Professor Martin discussed the phenomenon of post-release revi-sion of judicial decisions. He cited a very recent example from the Cali-fornia Court of Appeal. The decision promptly appeared on many elec-tronic sources, not just Westlaw and Lexis. The decision, like many others, does not reflect the post-release en-hancement, editing, and correction that official reports typically do.

In jurisdictions that use a print-cen-tric system of distribution, each ju-dicial decision goes through at least three stages: slip, preliminary print (advance sheet), and bound volume. Along this path, most revision/cor-rection occurs before the advance sheet; most acquire summary, head-notes, clean-up of citations, parallel cite, quality assurance, formatting, corrections, revisions, etc. Professor Martin showed an example of chang-es between a slip opinion and an ad-vance sheet in the same case. While reporters know that such changes oc-cur, the public—including lawyers—is generally unfamiliar with the pro-cess, and finding out that significant changes can occur sometimes causes disquiet. One high-profile example was a recent dissent by Justice Scalia that was fixed within two days and garnered widespread press atten-tion. The judiciary’s practice in this regard is anomalous—other bodies that create law do not generally do this—if they make mistakes, they

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must formally amend the law to fix them (for example, the United States Code and Federal Register are filled with typos and outdated cross-ref-erences). While courts sometimes make formal amendments, i.e., such as when granting a rehearing, they often don’t. This presentation is fo-cused on these informal, behind-the-scenes editorial adjustments.

The process is not new, but the environment is. Twenty years ago, most lawyers would be working from the books; Westlaw and Lexis were research tools that led to books, but were not the primary source of legal research. Today, lawyers and judges rely more heavily on elec-tronic sources, often from start to finish. Demand for print law reports has plummeted, but there has been a proliferation of electronic legal re-search services.

The ultimate aim is to ensure there is a current, accurate, complete col-lection of a jurisdiction’s precedent available to its lawyers, judges, oth-er public officials, and the public, as well as to those outside the jurisdic-tion. To achieve this, there should be a single, authenticated version from which others (print and electron-ic) can be drawn and against which they can be compared, to maintain visibility and accountability and the historical record. Books used to be an effective way to accomplish this, but no longer; the proliferation of electronic legal research services has made these aims more difficult.

Reporters should care about the sources these services draw on, in the interest of the ultimate users, and might be dismayed if they look deeper into the process. Some ser-vices rely on the slips forever, never going to the final official version and updating their sources; others may

be meticulous about updating the official version, but not in includ-ing current headnotes, summaries, etc. In the current environment, not many read the headnotes report-ers spend so much time and effort on—many services don’t even in-clude them. Professor Martin posed a “soft question:” why are reporters still writing headnotes if they are not used by their target audience—they take time and resources reporters don’t have.

Mr. Martin’s observations in light of his research:

1. If decisions regularly pass through a set of successive versions, limiting their digital release to just the first poses risk and imposes costs. It is tempting for online services to only load the first version because of the cost of re-digitizing material locked up in print form. Professor Martin pointed out that the United States Supreme Court puts up PDFs of successive versions of opinions, which allows services to ensure they have the latest version; the Nevada Supreme Court does something simi-lar and also includes a list of changes that have been made.

2. If making revisions, it is im-portant for digital distributions to be clear which is which, i.e. to make clear what’s the slip opinion, when a version has acquired enhancements; newer version supplanting older ver-sion (see New Mexico and Illinois). This makes it easier for harvesters to keep up with the latest version.

3. Making stealth or covert revi-sions is especially problematic. Even after substitutions, users may quote the supplanted version. It is import-ant to make it clear that a version has been altered in a significant way. Such substitutions are often missed

because they are not flagged.4. Making revisions in the form of

change notices (i.e., “make this re-vision,” “insert this footnote”) pre-sumes an editorial process and staff that many legal information provid-ers do not employ (software does most of the work). Replacement files are better.

5. Best practice: if making ad hoc revisions, issue a modified decision, clearly labeled as such, with the date of revision indicated and the sub-stance of the changes explained.

6. Jurisdictions that minimize post-release revisions minimize the risk of having inaccurate and incon-sistent versions.One way to accom-plish this is to move as much editorial review as possible to the pre-release period; another is to stop inserting parallel citations. These are unnec-essary in the current environment. Another is to do away with having a final bound volume. The final bound volume is a print-centric approach.

7. Minimizing the period for post-release revisions minimizes the ripple effect of reliance on interim versions.

Complicating factors to all sugges-tions/observations: Judges—they sign opinions, feel embarrassed over superficial and serious imper-fections—they want to fix mistakes; often equate their legacy with the bound volumes, do not want to move away from print. Also, limit-ed resources: budgets, limited staff supporting reporters’ function (this sometimes leads to a profound dependency on commercial pub-lishers, which can impede the flow of information to others in the legal community).

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Education Committee Report

We have begun work on the edu-cational component of the Nashville meeting. I have received a suggest-ed topic from Susan Williams on the subject of inappropriate language in appellate-level sexual assault cases. I will get in touch with the Judicial Language Project to gauge their in-terest and availability in speaking with the ARJD. Anyone interested in more information on the group can go to their website: http://www.nesl.edu/centers/clsr_jlp.cfm.

As I understand it, the Attorney General of Tennessee serves as the Reporter of Decisions for the Tennes-see appellate courts. I hope to have someone speak to us on this fascinat-ing combination of judicial and exec-utive branch responsibilities.

If you have any ideas or sugges-tions please get in touch. I’m trying to focus on Nashville-area speakers, so if you know of anyone that will be in Nashville next August do let me know. As always, I would love sug-gestions on speakers, topics of dis-cussion, and general ideas from each and every one of you on what you’d like to learn about. I think every ARJD member should consider themselves a member of the Education Commit-tee and look forward to hearing your thoughts and suggestions.

—Leah Walker

Mrs. Clyde Dickens Calliotte Memorial

Former Arkansas Reporter of De-cisions, Mrs. Clyde Dickens Calliotte, died on June 9, 2014, in Winchester Massachusetts. Not only did Mrs. Cal-liotte serve as Reporter of Decisions for several years, she also served as Assistant Attorney General, as a law clerk for several Arkansas Supreme court justices, and a law clerk with the Eighth Circuit Court of Appeals. Mrs. Calliotte was considered a true pioneer in an era where women rarely pursued professional careers, especially in a small community like Magnolia, Arkansas. She was often heard to say that it was her destiny to pursue a legal career. The Associ-ation of Reporters of Judicial Deci-sions sends its condolences to her friends and family members. We know she will be greatly missed.

The link to her obituary is h t t p : / / g l h r . t r i b u t e s . c o m / d i g n i t y m e m o r i a l / o b i t u a r y / Clyde-D.-Calliotte-101433527.

SCOTUS Honors Wilma Grant

As many of you know, Wilma Grant recently retired from the Supreme Court of the United States after 34 years of service. The Supreme Court honored Wilma with an honorary Su-preme Court bar membership. The Supreme Court Law Clerk of the Year Award, which Wilma started back in the early 1980’s, was also named after her. Congratulations Wilma!

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Supreme Court of California Appoints

New Reporter of Decisions

Following a national search, the Supreme Court of California an-nounced, on September 30, 2014, the appointment of Mr. Lawrence W. Striley as the 25th Reporter of Deci-sions of the Supreme Court and the Courts of Appeal. Mr. Striley, who has over 18 years of experience in the le-gal profession, including 12 years in legal publishing, was set to begin his new role with the court on October 1, 2014. For more information, please read the appointment press release at http://www.courts.ca.gov/27330.htm.

Special Thanks...The wonderful photos we have

in this editon of The Catchline were provided to us by François Boivin, Leah Walker, Mary Joe Beck and Dan Anselmo. Thank you for your lovely contributions!

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2014-2015 OfficersPresident: Susan P. Williams, Arkansas Supreme Court and Arkansas Court of AppealsVice President: Brandee Mooneyhan, Nevada Supreme CourtTreasurer: Kevin J. Loftus (Ret.), Supreme Court of ConnecticutSecretary: Brian Redmond, Massachusetts Supreme Judicial Court and Appeals CourtPast President: Willam J. Hooks, New York State Law Reporting Bureau

2014-2015 Committee Chairpersons

Annual Meeting Chairperson:Susan P. Williams, Arkansas Supreme Court and Arkansas Court of AppealsCommunications:François Boivin, Office of the Commissioner for Federal Judicial Affairs CanadaEducation:Leah A. Walker, Colorado Court of AppealsExternal Outreach:Mary Joe Beck, Supreme Court of Ohio

The CatchlineEditor: François Boivin, Office of the Commissioner for Federal Judicial Affairs CanadaAssistant Editor:Charles Nezan, Office of the Commissioner for Federal Judicial Affairs CanadaNewsletter Publisher/Layout & Design:April Patterson, Composition Specialist, Supreme Court of NevadaDistribution:Daniel Spurling, Massachusetts Supreme Judicial Court and Appeals Courts

Volume XXXIV, No. 1 January 2015

ARJD Contact InformationARJD Web site:http://arjd.washlaw.edu/The Catchline (suggestions, comments, and questions):[email protected] Members’ Facebook page:http:/www.facebook.com/groups/members.arjd/E-mail (to send communications directly to all ARJD Facebook group members via Facebook Wall):[email protected]

E-mail Address Changes and Corrections?Please alert us by sending an e-mail to: [email protected].

Documents

HE C A TCHLINE - Washburn University School of Lawarjd.washlaw.edu/ARJD January 2015 Newsletter REVISED.pdf · 2. Welcome by ARJD President Bill Hooks Bill Hooks welcomed the members