Welcome to Advanced Legal Research, Spring 2024!
Tuesdays, 11:30-1:30, Room 1-202
Get in touch with Doug, douglas.cox@law.cuny.edu, 718-340-4241, Office 6-118
Final Simulations (TBA)
CLASS 11
In Class 11, we briefly discussed cases published in the New York Law Journal (NYLJ). This can be an additional source of relevant case law and has been especially useful in the Housing Court context. Some opinions published in NYLJ are later published in the normal case databases in Westlaw or Lexis, but not all of them. A collection of NYLJ cases is available in a Lexis database here.
We then introduced and discussed the Final Simulation (link above).
CLASS 10
BRIEF READ
For class 10 we'll be discussing FOIA/FOIL and some research resources for fact development related to people and things. I wanted to send along in advance a couple of NY ethics opinions that highlight how sometimes there might be ethical restrictions on attorneys related to "investigating" people that may not restrict non-lawyers in the same way. One on the issue of using social media to develop evidence and the second on the issue of undisclosed taping of conversations by attorneys. They get into some details, but note that the common theme is the concern that an attorney not engage in deceptive behavior or trickery.
New York City Bar Ethics Opinion 2010-2
New York City Bar Ethics Opinion 2003-2
I also want to highlight this second opinion because of its potential relevance to public interest related practice. In particular it notes that while, in the view of the New York City Bar Association, it is not ethical for attorneys as a matter of routine practice to tape conversations with individuals without their knowledge (even if it is not illegal to do so), it notes that it might be acceptable to do so on a case-by-case basis when it would further "a generally accepted societal good." Two examples it uses for this point are "criminal defense lawyers who may need to secretly record conversations with certain witnesses" and "the investigation of housing discrimination."
CLASS 9
In class 9 we discussed research strategies for International Law and Foreign Law.
IN-CLASS EXERCISE
I would like you to try to locate a copy of all U.S. Declarations, Understandings or Objections to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from the official depositary. As I mentioned, an important element of treaty research is ensuring that you are going to the official source for this information and the official source is the depositary for that treaty, because it will ensure that it is up-to-date. The depositary is identified within the text of the treaty itself. So, for example, if you find a copy of this treaty it will say something like declarations or ratifications will be "deposited with" and identify the relevant entity, which will then have a database online.Email me a full copy of the Declarations, Understanding or Objections that you locate to Douglas.cox@law.cuny.edu
CLASS 8
IN-CLASS EXERCISE
Email from your supervisor who is enroute to office: "We have a client charged in NY court with multiple counts of assault in the second degree. (1) One charge is premised on the theory that he was kicking someone else and his shoes (sneakers, they weren't even boots!) constitute a "dangerous instrument" and (2) another is premised on theory that his fists are themselves a "dangerous instrument." Can you find the relevant statutory sections and find a case or two on these points and see what the law is? Please send me an email and also explain how you got to the answers.
CLASS 7
IN-CLASS EXERCISE
Your angry uncle Sullivan called you at work mad as hell. He got a $100 sanitation ticket for putting out his trash too early - can you believe that? His said your cousin (not a lawyer) went on to Google and found this NYC Sanitation Manual that (at p. 12) seems to indicate that there is such a rule, but then also found this news article that apparently indicates that there is no such law. He is hopeful that you, the one lawyer he knows, will be able to defend him against this grave injustice. Yes, uncle Sullivan is a bit rough and cantankerous, but he has always remembered your birthday, so can you look into this and see if he has an argument here?Helpful hint here: Remember that, as I mentioned, cities have material online (like, say, Sanitation Manuals found via Google) that are not up-to-date.
WATCH
Watch the first 3 minutes of this 1988 hearing, careful to enjoy the retro C-Span theme. (Note a significant portion of the NSDDs from the Reagan Administration referenced are now available publicly here (including the one specifically referenced NSDD 145)).
DO
We're doing research on the law governing the treatment of refugees found at sea who cannot or should not be returned to their country of origin under international law. You've been asked to update a section that discusses the U.S. interpretation of these international obligations and there is a citation to Executive Order 12807 from May 1992. It quotes section 2(c)(3) that states that the Coast Guard shall be directed
"To return the vessel and its passengers to the country from which it came, or to another country, when there is reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist; provided, however, that the Attorney General, in his unreviewable discretion, may decide that a person who is a refugee will not be returned without his consent." (emphasis added)
We're particularly interested in the significance given to this discretionary power given to the Attorney General to not return certain refugees without their consent. Can you double check that this Executive Order is still in force and in particular, is this language up-to-date? Remember regardless of what Westlaw and Lexis might say about it, it is worthwhile checking the relevant Executive Order Disposition Tables referenced and linked in the Presidential Documents page. Email me before next week's class (the 27th), but don't spend more than 30 minutes. Thanks!
CLASS 6
IN-CLASS EXERCISE
After exhausting all appeals a client is now set to serve out the remainder of his 6 year sentence in Federal prison in upstate New York. He's actually a citizen of Germany and almost all of his family is there. Your supervisor recalled that there were some regulations that allow a foreign citizen convicted in the United States to transfer to his home country to serve out his sentence there. Your supervisor seemed to remember from looking at the issue long ago, though, that there may be a limitation in cases where there is a fine in addition to a sentence. Our client had a $50,000 fine imposed and he is destitute.Your supervisor had asked a previous intern to take a quick look on a Friday afternoon and after an hour of research they sent an email saying that a "committed fine" might be a problem under the federal regulation, as the supervisor thought, especially if the issue had not been raised with the trial court and gave the following citation: Bagguley v. Bush, 953 F.2d 660, 662 n.1 (D.C. Cir. 1991), but the supervisor never took a look.
Look up this case and look at the regulation cited in footnote 1, which is from 1991. If you click on the link it says nothing about a committed fine. Can you figure out what the regulation said in 1991 when the court cited to it? [Note: for this you can utilize the historical versions of the CFR on both Westlaw and Lexis].
CLASS 5
ASSIGNMENT
We're trying to find help for a client of ours. He was initially arrested for labor trafficking under the New York Penal Law § 135.35, but we successfully argued to the DA's office that our client was himself coerced and was not only not guilty of labor trafficking, but was himself a victim of labor trafficking. After further investigation, the DA dropped the charges. The client is now in desperate need of help and is being denied certain social services by New York State on the basis that he doesn't qualify.
We have an another person on the team researching the Social Services law, but someone in the office mentioned that when the New York Legislature originally passed the Penal Law provision on labor trafficking it was specifically intending to ensure that victims of such trafficking could receive social services assistance.
Can you follow up on that suggestion, see if you can locate any official indication of that legislative intent and email me some language if possible?
NOTE: The purpose of this exercise is to force you to consult NY legislative history materials, and in particular a bill jacket. So I want you to assume there is no case law discussing this or other easy ways of locating it. Note also the extra emphasis on originally passed above - the legislature amended the relevant Penal Code in the past several years, but the intent you are looking for is earlier when the statute first arose. Try to do it with just the information you've been given in the simulation, but if you get stuck then - on the honor system - here is some hidden guidance. Don't spend more than an hour and email me what you find before next class. Thanks!
READ
This brief page on New York Legislative history. In class next week, we'll start with an in-class exercise doing a legislative history on a NY statute and pulling a bill jacket. What's a bill jacket? Read the page.
CLASS 4
In Class 4 we talked about some of the minutiae of federal statutes and codification (including Positive Law Codification and Editorial Reclassification) and how they can practically and substantively impact statutory research. We also discussed Federal Legislative History research.
Statutory issues discussed in class
1. Editorial Reclassification - a/k/a moving stuff around. This is where sections are reorganized within a Title or when a new Title is created (think everything above Title 50 of the USC) and sections are moved there from elsewhere in the Code - this is what happened in our exercise on 52 USC 30118.
2. Positive Law Codification this is where an entire Title of the US Code is passed as a new Public Law. The intent - which is usually expressly stated - is not to change the law substantively. The trick here from a research perspective is that going forward the "Credits" section following the law will source to the date of the positive law codification, which can conceal a much longer history - to find that history you may need to consult the "Editors and Revisors Notes" or historical versions of the law.
3. Statutory Law being codified in a US Code "Note" - this is what the NY Times article on Section 215 of the Patriot Act is talking about - a portion of the law as passed by Congress that related to when the law sunsets was placed in a Note rather than in the main body of the Text, but is still law. The other example i discussed in class was the Afghan Allies Protection Act of 2009, which lives in a Note following 8 USC § 1101. The law review article I mentioned in class about this phenomenon is called "Shadow Code" and is available here.
QUICK READ // DO * FEDERAL STATUTES
READ
READ (and be slightly confused by) this NY Times piece from Nov. 2014 on the possible significance of a little noticed "note accompanying Section 215" of the Patriot Act. Charlie Savage, "NSA Phone Data Collection Could Go on, Even if a Law Expires," N.Y. Times, Nov. 19, 2014.
READ (and be even more confused by) this thoughtful post questioning what actually happened when the same law was subsequently amended: Megan Graham, "What Did the USA Freedom Act Actually Amend?," Just Security, June 4, 2015.
DO
We are filing an amicus brief in a lawsuit challenging certain actions by a Super PAC. You are tasked with making sure the laws we are citing are still valid. The brief makes several references to 52 U.S.C. § 30118 and you want to double check whether this statute is good law. Please pull it up on Lexis and you will see that it only has a yellow flag for pending legislation and a caution flag. Do you see any indication there, though, that this statute was actually found to be, in part, unconstitutional by the Supreme Court in 2010? Now pull it up on Westlaw and see whether you can find a reference to a 2010 Supreme Court case finding it, in part, unconstitutional? Any idea why there is no red flag on this statute?
Don't spend more than 30 minutes on this, but if you find the 2010 Supreme Court case, send me the name and citation, but if not then "Doug I spend a half an hour looking at this and didn't find the case and don't see what is going on here" is a perfectly acceptable answer. Due date is no later than class time next week, but get to it whenever you can. We'll discuss in class. Thanks!
CLASS 3
How many times, roughly, have Second Circuit cases citing INA § 101 used the word "conscription"?
When was the date of the last amendment to INA § 101?
Email me at Douglas.cox@law.cuny.edu
Random Research Tips Links
50 state survey research? Doug says try to avoid this project if you can. If you can't or they are particularly helpful, know in advance that they are labor intensive and difficult. Some things to do to try to help out. Check out 50 State Surveys on Westlaw in case there is one on your topic, or a related topic, check out American Law Reports to see if there are any on your (or a related topic), search law review articles to see if there is an article on the issue that might compare state laws (even if just in a footnote), check out National Conference of State Legislatures to see whether they have relevant resources or reports, and also look for (and Google) to see whether there are any organization working in this area that might be tracking such laws across all states (for example, see this page on death penalty laws from the Death Penalty Information Center.
Do we have access to a specific journal? Do we have access to a specific newspaper? For these types of questions check Electronic Journal Finder
No assignment for Class 3, please check though to make sure you can access Lexis Advanced and also check on Lexis whether you have access to "Public Records." Thanks!
CLASS 2
IN-CLASS EXERCISE
We're representing an individual who has filed a § 1983 claim. The government has filed a motion for summary judgment, which cites the following unpublished case:
Can you get me a copy of the Cross Motion for Judgment as a Matter of Law filed by the defendants in July 2010 in that case that led to that decision? I want to compare the arguments in that case to ours. Please pull it off of PACER using this link (just the main filing not the exhibits) and send it to me by email. Thanks!
READ // WATCH // DO * DOCKETS
Please Read-Watch-Do the following as part of our first unit on dockets and litigation resources. If you have questions or problems, feel free to email me.
READ
First, take a quick read though this Dockets page
WATCH
The video below is one of many that demonstrate how you can use PACER, which is the system for accessing federal court dockets. Unfortunately, PACER charges you by the page for such access.
Bloomberg Dockets
Bloomberg has its own interface but draws docket material from PACER for federal courts. While you're in law school you should use Bloomberg (instead of PACER) in order to access docket material Bloomberg has a page about searching using there docket search here: https://www.bloomberglaw.com/help/dockets. But here is a brief online video (one of many) that briefly illustrates pulling down a docket on Bloomberg:
DO
Before next class I need you to do 3 things. Let's put the deadline as end of day Monday, Jan. 22.
1. If you have never signed up for Bloomberg Law before you can do that here. You do not need an activation code, you just need to use your CUNY Law email address when you sign up. If you have any problems let me know. If you did sign up before you can sign in here. If you have trouble getting in, you might need to reset your password.
2. Please try to pull down a copy of the Complaint in Dimitracopoulos v. City of New York, Docket No. 14-cv-674 a federal case filed in the Eastern District of New York - USE Bloomberg Law (NOT PACER). Most direct way to do that in Docket Search is to select the right court and then use that docket number to search. In advance of the next class email me a copy of the complaint to me. If you're having trouble take another look at the video immediately above. f you spend more than an hour and are unable to locate it, no worries, just briefly describe what you tried. The top of the filing will look like this:
3. Finally, in that same email, please tell me a little about your legal interests - any legal topics in particular you are interested in and/or problems/issues you've had with legal research? With this size of class I cannot customize class very much, but it is great to know what people are interested in to take it into consideration. Thanks!
CLASS 1