Archive for January, 2012

February Issue of Spectrum is Online

The February issue of AALL Spectrum is now available online in a PDF format. This issue includes:

Also, read responses to this month’s Member to Member question: What is one task or activity at work you wish you could drop?

Paper copies were mailed to members January 24, so expect yours to arrive soon!

Book Review – Lone Star Law: A Legal History of Texas

Lone Star Law: A Legal History of Texas, by Michael Ariens. Texas Tech University Press, 2011, 366 pages. List price $33 hardback on Amazon.com.

Professor Ariens is professor of law and director of faculty scholarship at St. Mary’s University in San Antonio. He has taught in the areas of constitutional law, church and state, American legal history, and evidence.

This title is recommended for those interested in American legal history, the history of Texas, or Texas legal history. It is an appropriate narrative for the nonlegal professional. The author tries to avoid legal jargon, and he does caution that he presents an overview only. He presents a wonderful collection of resources in both the notes and bibliography that are available for further study. Ariens takes an unvarnished, unromanticized look at Texas legal history from the early 1700s to the early 2000s.

As an attorney who attended undergrad in Texas, I was fascinated to learn how Texas culture shaped the law rather than the law shaping culture. I was particularly interested to see the continuing theme of a desire for trial by jury and how that shaped events in Texas history.

The book examines the impact of Spanish and Mexican law on the creation of the Texas legal system … including community property law. Austin’s Colony, organized by Stephen F. Austin as the first legal settlement of North American families in Mexican-owned Texas, is discussed and shown as somewhat contrary to Mexican law (see aforementioned concept of jury trial). Ariens goes on to describe the development of the law of the Republic of Texas, including the Supreme Court, then the transition to statehood, including the law of free persons of color and slavery. He continues to follow the development of the law, the Court, and the Constitution through the Civil War. No Texas legal history would be complete without discussion of the Texas Railroad Commission, Jim Crow laws, women and suffrage, prohibition, and of course, the Texas Rangers. Ariens includes all of these and more.

The natural resources of Texas soon made themselves known, and the law followed close behind. Land distribution became a major concern as cattle ranching flourished, and many of the cattle investment syndicates were foreign owned. Enter Attorney General Jim Hogg and the Alien Land Law. Ariens moves onward, examining the development of mineral rights, oil and gas law, and water law.

With abundant natural resources (including land), corporations and banks were eager to move into Texas, though most early Texans were leery of both. The author covers the development of corporation law in Texas, including the Texas Railroad Commission, The Texas Traffic Association, antitrust law, and the modernization of business law in Texas.

A chapter on family law and cultural change covers the issues of marriage, common-law marriage, community property, bigamy, bastardy, adultery, and how marital status intersected with both criminal law and tort law. Ariens also explains divorce law, the Married Women’s Property Act of 1913, alimony, parent-child law, adoption, and the modern family code, as well as the Equal Rights Amendment and its (slow) effect on family law.

There is also a chapter concerning the legal profession, legal education, and the courts. Ariens reviews the development of ethical standards and lawyer discipline, the creation of bar associations and the development of large law firms in Texas. He talks about Texas women in the practice of law, including the All-Woman Texas Supreme Court of 1925 (appointed by the governor when all three regular members of the court recused themselves from a particular case).

A separate section examines criminal law and civil rights, including such far-flung topics as the “unwritten law” justifying homicide in the case of adultery and the varying laws on sodomy, lynching, and the death penalty. The author covers confessions, sentencing, prisons and prisoners, and the desegregation of Texas juries. The discussion on civil rights examines their impact on voting and education, including the use of affirmative action in higher education.

Before concluding, the author discusses civil procedure, civil remedies, and civil law, including continuing tort reform.

The book’s 366 numbered pages include the text, notes, bibliography, and index.

Wanita Scroggs, JD, MLIS, is international law librarian and adjunct professor at Dolly and Homer Hand Law Library at Stetson University College of Law in Gulfport, Florida.

Book Review – Trademark Surveys: A Litigator’s Guide

Trademark Surveys: A Litigator’s Guide, by James T. Berger and R. Mark Halligan. Oxford University Press, 2012, 304 pages inclusive of appendices. Softcover, $225, ISBN 9780199740635.

Marketing professional and college instructor James T. Berger has amassed 20 years of experience in the field of trademark. Specializing in market surveys with his consulting firm, Berger brings a wealth of knowledge and insight to this book. Berger’s co-author, R. Mark Halligan, is an excellent addition, bringing his own unique knowledge on the topic of trademark surveys from years of being a trial lawyer and an experienced litigator in the areas of patent, copyright, trademark, and trade secrets. Readers like myself, who approach this title without any knowledge whatsoever about the use of trademark surveys, will learn much from the authors and will leave with a greater understanding of the topic.

Covering 12 chapters, Trademark Surveys is an easy-to-read and easy-to-understand guide for those not steeped in the lingo of the topic. Chapter three, Types of Surveys and Protocols, is perhaps the most informative chapter of the book. The chapter is an excellent example of the manner in which the authors adequately present the material with great descriptions and with great anecdotes and examples of past cases in which they participated. Berger and Halligan in great detail describe the process of creating numerous types of consumer surveys and the considerations to take into account when implementing those surveys. Litigators desiring to use trademark surveys should first go through the process of defining the actual problem that is being faced. By first defining the problem, litigators may then pursue the necessary research materials and data sampling techniques in order to address all hypothetical situations.

Deciding which type of survey to utilize is an important decision, and the authors do a great job explaining the pros and cons of the most used types of surveys in the field. Though popular in the past, direct mail surveys have lost favor due to their costly nature and being seen as junk mail by most individuals. Telephone surveys provide a simpler mechanism for litigators as pre-made lists of individual phone numbers may be easily purchased. Mall intercept surveys, whereby individuals are approached in a public setting, can prove costly as visuals are needed to put before the individuals being surveyed. Internet surveys, while growing in popularity due to their convenience and instant tabulation, still pose problems as it is difficult to truly know who takes the surveys.

Seven appendices covering 27 pages along with a table of cases complete this book. Each of the seven appendices provides an example of a prepared survey ready to be distributed and filled out. The example surveys include a script to follow for both telephone and face-to-face surveys along with directions to the individual conducting the survey.

As one who knows little to nothing about trademark surveys, I found Berger and Halligan’s work to be easily readable and understandable. Trademark Surveys: A Litigator’s Guide would be an excellent resource for those who desire in-depth introductory material along with helpful examples of surveys at their disposal. Its price may give law school libraries pause. It may be better suited for purchase by law libraries in firms with extensive practice in the trademark field.

Stephen Parks, J.D., is the research, instructional services, and circulation librarian of Mississippi College School of Law Library in Jackson.

Learn How to Use Stories to Teach Legal Research

Storytelling has the potential to transform the way law librarians convey legal research techniques and legal information to law library patrons. In preliterate times, storytelling was the primary way of disseminating culturally relevant information and educating members of a society. Today, storytelling still serves as an effective communication technique in trial practice, business administration, and library science.

Join the comprehensive webinar, Developing and Using Stories to Teach Legal Research, on February 22 at 11 a.m. CST, for an introduction to educational storytelling. The program will include a demonstration of a legal education story, as well as methods for collecting, developing, and evaluating potential stories.

Cost: $30 for AALL members; $60 for nonmembers.

Register by February 16.

This webinar is sponsored by the AALL/BNA Continuing Education Grants Program.

Book Review – Copyright: Critical Concepts in Intellectual Property Law

Copyright: Critical Concepts in Intellectual Property Law, edited by Christopher S. Yoo. Edward Elgar Publishing, 2011, 1,344 pages. Hardcover, 2 volumes, $720, ISBN 9781848447790.

Copyright: Critical Concepts in Intellectual Property Law is a collection of 21 copyright essays published between 1982-2009. Most were originally published as law journal articles, four from Yale Law Journal and individual articles from Harvard Law Review, New York University Law Review, Duke Law Journal, and other publications. Copyright contains no original material other than a short introduction and unfortunately has no index. The purchase price of this compilation is $720. For reasons of both content and price, this publication cannot be recommended.

In his excellent introduction, editor Christopher S. Yoo gives brief synopses of each selection and compares their themes. He has made interesting and thoughtful choices. Two of note are “Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors,” 82 Colum. L. Rev. 1600 (cited in Harper & Row v. Nation Enterprises, 105S. Ct. 2218) and “Copyright, Compromise, and Legislative History,” 72 Cornell L. Rev. 857, an examination of the legislative history of the 1976 Copyright Act. Yoo also deliberately includes articles that have not received the attention he believes they deserve. He lists three pages of references for further study.

Volume I contains 10 articles and is divided into three sections. Part I discusses “The History of Copyright.” Part II consists of three articles discussing “Philosophical Foundations.” Part III contains two articles on “Democratic Theories.” Volume II consists of 11 articles, again divided into three sections. Part I is titled “Public Good Economics, Monopoly and Price Discrimination.” (In this section, the editor includes two articles he authored.) Part II is “Transaction Costs and the New Institutional Economics.” Part III focuses on “The Political Economy of Copyright.” 

As a law librarian, I am accustomed to exorbitant costs for research materials, but I am at a loss to understand how what is essentially repackaged and recycled content is worth $720. All except six articles were found for free by simply performing a Google search. Those remaining six articles could all be purchased electronically for a nominal charge. Of course, it is worth a certain price to have an editor make and introduce the selections in an anthology, but this set seems quite overpriced. Any law library with even a bare bones electronic subscription would likely already have access to a voluminous number of excellent articles about copyright. Unless you have an extravagant and unlimited library budget, your dollars would be better spent elsewhere.

Donna M. Fisher (dfisher@senniger.com) is law librarian at Senniger Powers LLP in St. Louis.



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