From Queen Padmé Amidala To Ruth Bader Ginsburg . . .
Every now and then we get the irresistible urge to blog about something that has nothing whatsoever to do with mediation and arbitration. Today, the “off topic” item comes from Amy Howe’s Monday round up on SCOTUSblog, reporting Natalie Portman is about to take on the role of another powerful woman:
“Perhaps the biggest Court-related news at the end of last week was that actress Natalie Portman will play Justice Ruth Bader Ginsburg in a movie about Ginsburg’s career as an advocate for women’s rights. Coverage comes from Lily Karlin and Sam Levine in The Huffington Post, from Andrea Towers for Entertainment Weekly, and from Deadline Hollywood.”
Jill Lepore, Professor of American History at Harvard, has written a fascinating article in the January 26, 2015 edition of the The New Yorker. Her subject, which interests and plagues every blogger, is archiving the Internet before the information vanishes into cyberspace.
If you have been reading this blog, or the other blog to which I contribute with my colleague Mike Hensley, California Attorney’s Fees, or any other blog, you are familiar with the problem. All the hyperlinks degrade over time and become useless. You click on a hyperlink, and you get an annoying message: “Page Not Found” (“link rot”). Or the page has been overwritten. Or the page has moved, and something else appears in its place (“content shift”). These are examples of “reference rot.”
This problem should be of particular concern to attorneys, because an astounding number of legal footnotes relying on web addresses now rely on invalid addresses, a problem that includes footnote references in SCOTUS opinions.
The sheer petabyte volume of Internet information makes the archiving problem a Sisyphean task. There are, however, some constructive efforts to ameliorate the problem.
There is, of course, the famous internet archive “Wayback Machine,” a valuable Internet resource for people searching for old information on the Internet. “Wayback Machine” alludes to Mr. Peabody and Sherman’s fictional “WABAC Machine”, allowing time travel through Peabody’s Improbable History, a feature of the Rocky and Bullwinkle show.
There is also a nifty patch, currently in Beta development phase, for the legal footnote problem. Perma.cc has been developed by the Harvard Library Innovation Lab as a way to create a permanent link (“permalink”) for legal footnotes. Perma.cc is powered by various libraries, and now used by the Michigan Supreme Court, as well as the Harvard Law Review. A Perma.cc account allows you to “create links to archived versions of web pages cited in your work.” Cool!
Even Perma.cc won’t guarantee that the permalink it creates to reference a source will last as long as a diamond. However, Perma.cc does claim that a permalink will last for two years, with the possibility of renewal, and that it may last longer for a person, such as a legal librarian, who is given “vesting rights.”
I note that most of the links on my blog are to newly filed California appellate opinions. Those links become stale after a few months. However, if the case is of lasting interest, you should be able to find it on LexisNexis, on Westlaw, or on Google Scholar with the case information provided in my post.
HAT TIP to Deborah Tint, librarian, artist, and Wonder Woman fan, who pointed me to Jill Lepore’s article. Professor Lepore is also the author of the wonderful new book, The Secret History of Wonder Woman.
The Article Is About Two Extraordinary Cases In Which Judges Exercised The Summary Contempt Power.
Thanks to the generous permission of California Litigation, The Journal of The Litigation Section, State Bar of California, “Summary Contempt and Due Process: England, 1631, California, 1888” is now available on my website by clicking here.
An abbreviated version of this article appeared earlier as an August 6, 2014 post on California Attorney’s Fees, a blawg to which I co-contribute.
I know, I know, this has nothing whatsoever to do with the subject of my blawg. And yet I couldn’t resist passing on this tidbit to you from one of yesterday’s unpublished cases decided by our local Court of Appeal:
“There is one matter that requires minor modification of the judgment. The judgment includes an order that, literally, imposes a lien on a human being. In this case, the trial judge put a constructive trust lien on Tran’s father, Tom Tran. We can find no authority for a lien on a human being so we hereby strike from the judgment the provision putting a constructive trust lien on Tom Tran personally.”
Vu v. Tran, Case No. G04587 (4th Dist. Div. 3 May 29, 2014) (Bedsworth, Rylaarsdam, Moore) (unpublished).
The California State Bar offers a useful collection of “Arbitration Advisories” that I wanted to share with my readers. These advisories come with the following disclaimer:
“Points of view or opinions expressed in this document are those of the Committee on Mandatory Fee Arbitration. They have not been adopted or endorsed by the State Bar’s Board of Trustees and do not constitute the official position or policy of the State Bar of California.”
2012-03 Handling Legal Malpractice Claims and Ethical Issues During Arbitration
Agreement Providing To Mediate Did Not Satisfy Burden of Showing Clear Intent of Tribe to Waive Immunity
Our next case, involving tribal sovereign immunity, does not fit into one of our convenient sidebar categories. Miller v. Wright, Case No. 11-35850 (9th Cir. Nov. 13, 2012) (Rawlinson, J.) (published). In Miller, a panel of the Ninth Circuit held that the Puyallup Tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures or by ceding its authority to Washington State when entering into a cigarette tax contract (CTC). The opinion describes the case as “the latest iteration of cigarette vendors’ challenge to taxes imposed by virtue of the authority vested in the tribe.”
A waiver of tribal immunity must be clear. C&L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418-419 (2001). In C&L, waiver of tribal immunity was clear, where a clause stated that contractual disputes should be resolved according to AAA Rules, the arbitrator’s award was to be enforced in accordance with applicable law in any court having jurisdiction, and the contract provided for Oklahoma choice of law. In contrast to C&L, no waiver occurred in Demontiney v. U.S. ex rel. Dep’t of Interior, Bureau of Indian Affairs, 255 F.3d 801 (9th Cir. 2001). In Demontiney, the dispute resolution clause “did not ‘reference or incorporate procedures that provide for non-tribal jurisdiction for enforcement . . . ‘”.
The panel in Miller concluded that the facts were “more akin to those in Demontiney than to the facts in C&L.” Critically, the dispute resolution provision in Miller called for “mediation”, not “arbitration”, and mediation “generally is not binding and does not reflect an intent to submit to adjudication by a non-tribal entity.”
BLAWG BONUS: Objections to a tobacco tax are nothing new. See the print below, dating from 1790, and the explanatory note.
“A British satire on efforts by William Pitt, George Rose, and some members of Parliament to impose new "Excise" duties on tobacco (cf. Tobacco Excise Bill). The additional tax burden on British citizens is implied by the image of a bull, muzzled and blindfolded, with legs chained to a stump, being harassed by dogs (depicted with heads of members of Parliament). Edward Thurlow, also shown as a dog, registers his opposition to these "New Excise Fetters for John Bull" by urinating on tobacco leaves. Among the members of Parliament depicted are: William Wyndam Grenville, Henry Dundas, Charles Lennox Richmond, Charles Jenkinson, Richard Pepper Arden, Sir Charles Pratt Camden, and possibly Francis Osborne Carmarthen.” James Gillray. 1790. Library of Congress.