October 29, 2011

©2011 jbjd

(UPDATE 10.30.11, AT BOTTOM)

I make mistakes; but if, after several defenses of my work over time, I continue to insist I am right then, you likely waste your time betting against me that I am wrong.  Especially when the person insisting I am wrong is one of the usual ‘suspects.’

I received an email from PJRieke, the contents of which appeared to be a wholesale copy of a lengthy post from the site naturalborncitizen, authored by Leo Donofrio.  The crux of the email and the post was this.  Since 2006, either the on-line publisher, or, as Leo concedes, perhaps a hacker, ostensibly altered versions of the ‘legal’ cases appearing on the web site so as to eliminate all references to Minor v. Happersett, the case Leo (wrongly) insists points to the ‘fact,’ Barack Obama cannot be said to be a NBC.

Here was my email response.

From: jbjd
To: PJR…
Sent: 10/22/2011 7:45:24 P.M. Eastern Daylight Time

PJR, is a commercial web site and not the official publisher of court cases in any state or the federal bench.  Therefore, crying ‘the sky is falling’ even assuming they are intentionally doctoring the text of ‘actual’ court cases by editing out certain references to force their point of view  is like complaining Bayer is intentionally over-simplifying the human digestive system in the rudimentary diagrams featured in its commercials for Alka-Seltzer.

And I have been saying this about Justia, for months… Do a search for “jbjd” and “Justia”..


Well, this prompted an even lengthier email response from PJR, again, imported wholesale from Leo.  But this time, he defended against Leo’s baseless assertion that or the hacker did something wrong, by elevating their alleged manipulation of electronically posted court cases into a criminal act, citing a portion of the U.S. Code relating to false publication. (Please note, I am only leaving in these excerpts from Leo’s blog so as to show to what lengths both PJR and he have gone trying to prove the falsehood they are peddling, is true.  Clearly, I neither support not endorse this ‘research.’)

On Fri, Oct 28, 2011 at 12:39 PM, <> wrote:

Just sayin’…,
and OH, BTW, it appears that “other” (than “most”) folks (that would be the lawyerly types – no offense intended) DO make use of it – also.
As for your comment
“… crying ‘the sky is falling’ even assuming they are intentionally doctoring the text of ‘actual’ court cases by editing out certain references to force their point of view  is like complaining Bayer is intentionally over-simplifying the human digestive system in the rudimentary diagrams featured in its commercials for Alka-Seltzer. “,
it’s considered a crime / felony to conceal, obfuscate or otherwise alter legal renderings…as I’m sure you’re well aware ofTAMPERING WITH OFFICIAL WRITINGS IS A CRIME UNDER 18 U.S.C. 1018.

§1018. Official certificates or writings

Whoever, being a public officer or other person authorized by any law of the United States to make or give a certificate or other writing, knowingly makes and delivers as true such a certificate or writing, containing any statement which he knows to be false, in a case where the punishment thereof is not elsewhere expressly provided by law, shall be fined under this title or imprisoned not more than one year, or both.

The statute covers a “person” authorized by any law of the US to make or give official writings. is authorized – according to the federal Public Domain laws – to re-publish US Supreme Court opinions.

Justia CEO Tim Stanley gave a 21 minute podcast interview to Ken Chan of “Law And Legal Research” in Jan. ’07 after Tim was awarded the Google Enterprise Search Superstar award.  In that interview, Stanley was asked who Justia was created to benefit.  Here is Stanley’s candid reply:

Stanley: The primary users of it tend to be lawyers or attorneys looking for legal information or looking for case-law, or looking for information from some of the legal blogs that are online. And the other sort of major group of users tends to be law students or other students in the college environment or high schools that are looking for information on the US Government and sort of how the court system works.

Chan: The homepage, if you will, mentions the indexing of all of the Supreme Court cases… What would you say is the primary piece of information that somebody is coming to your web site to find, or is there one?  Is it a wide basis of information or is there a particular type of information that somebody is coming to find?

Stanley:  In most cases they’re looking for a variety of types of legal information.There is a large percentage though that are looking for Supreme Court information, and looking at particular Supreme Court cases.  And one of the nice things we’ve done using the Google Mini is we’ve indexed all the Supreme Court cases, and we have a nice sort of inter-linking among the cases, so you can go from one case, you know, quickly link over to a previous case.  And the Google algorithm when it’s indexing the cases does a very good job in terms of prioritizing the cases based on those that sort of have more value to the legal community.

Stanley tells us that the primary users are lawyers, not lay people.  Also, keep in mind that when he gave this interview in ’07, none of the cases had been sabotaged yet.  The cases were in the database with full case names, citations, and no text had been removed.

Here is my response.


I am so glad you sent this email, which affords me the opportunity to 1) clarify the misconception you share with several others over the role of “official” publishers of state and federal court decisions versus commercial re-‘printers’; and 2) remind you about the uselessness of self-authentication.

Federal law (U.S. Code) governs that U.S. Reports is the official publisher of decisions issued by the U.S. Supreme Court. State laws which govern the operation of state courts, include language that mandates court decisions will be published. Official publishers of court decisions, such as Lexis/Nexis work under contract with the state. States may also contract with publishers such as West to print digests of cases.  While both Lexis/Nexis and West are commercial concerns, when publishing state court materials under state contracts, each is bound by strict protocols and standards imposed by the state, which may include allowing the state to retain rights to prior consultation and approval.

Remember, appellate decisions have precedential effect. That is, what happened in the past sets the standard for conduct in the future. Thus, in order for both judges and lawyers to determine how to present and rule on subsequent cases, they must be able to research prior cases.  Looking through court records is prohibitive and so, these cases are compiled in official publications intended to streamline the process.  In effect, by contracting with legal publishers, the state is actually providing services to state actors, including not only these judges and lawyers but also state legislators.

It is no exaggeration to say, misrepresenting the content of a case, whether by changing the words in the judge’s ruling or, omitting a comma; may mean the difference between life and death.  Ensuring the accurate reproduction of the original court ruling is, therefore, a solemn responsibility.  Only those publishers officially contracted with the state have been given that responsibility.  It is their work which can be trusted, and their work which, therefore, can be cited in subsequent submissions to the court. is not an official publisher of court cases in any state or issuing from the federal bench.  Therefore, the law you cite related to false publication of official documents, does not apply to them.

The second point I want to make seems to me would have been self-evident.  In the same way we urge people not to look to, say, Barack Obama for self-authentication – after all, he said he was Constitutionally eligible for the job of President but, we don’t just believe him – you are now urging me to believe Justia has some innate value because its owner says, the product his company offers is so good, even lawyers use it (along with high school students).

Again, I want to thank you for this second email insisting I was wrong to fob off hyperbolic charges against raised by you and Leo, among others. Because in the past, I had only supported my dismissal of these ridiculous charges against the company by saying, they are not official publishers of state or federal court decisions and so, can post anything they want.  Now, I have taken the time to explain myself more fully and thereby not only validated my position but also, undoubtedly, educated people as to how our government works.


Imagine, all of this time spent just to prove the fallacy that a legal definition exists as to what is a NBC; while, since 2008, no new state election laws mandating that the state may only print on the ballot the names of those candidates it determines are qualified for the job; or requiring that Electors may only elect a President whose name the state has printed on the ballot.

UPDATE 10.30.11:  Well, it would appear Leo read my post, which establishes that his hyperbolic campaign of moral outrage against Justia is misplaced.  Then, instead of honing his methodology, he sought to discredit my criticism.

I tried to assuage readers ostensibly outraged by the ‘conspiracy’ Leo has been championing involving Justia, namely, that various on-line versions of Justia cases appear to have edited out references or links which he claims support what I insist is his mistaken opinion, under the language of Minor v. Happersett, President Obama cannot be said to be a NBC. I said that, citations to Justia are not even allowed in legal submissions to the court, as Justia is not an “official” publisher of court cases in any state.  Following my post, Leo posted another article on the subject, vainly trying to shore up his baseless argument by artificially inflating Justia’s position within the legal community.  Specifically, in order to ‘prove’ that lawyers really do count on Justia, he cited to a reference he claims appeared on the web site operated by Perkins Coie, Bob Bauer’s firm, which Leo characterizes as first class legal practitioners. (Of course, notwithstanding the lawyers at PC might be bright, this does not mean, they are honest; or that, if Leo is correct, that is, if Justia is rigging its cases so as to benefit Obama, Perkins Coie would never have assisted such subterfuge by touting their services! (See, for example, COUNSEL for DNC SERVICES CORPORATION PERFORMS 3 CARD MONTE* for FEDERAL COURT; and COUNSEL for DNC SERVICES CORPORATION PERFORMS 3 CARD MONTE* for FEDERAL COURT)  It certainly does not mean, anyone from Perkins Coie would cite to a case published in Justia as legal precedent in a document prepared for submission to the court.)

Yes, Leo, lawyers tout whatever legal publication services they want.  Indeed, I have often steered readers to both cases and statutes which appear on the web site maintained by Cornell Law School’s Legal Information Institute. But even cases and laws posted on Cornell’s site may not be cited (as precedent) in legal briefs.  Of course, if Attorney Courtney Minick, Product Manager at Justia has her way, states will one day abandon their rigid filing requirements and allow citations to their on-line product, abandoning the current practice of allowing into court only citations to those cases published officially by companies contracted with the state.

In his recent post, Fastcase CEO Ed Walters called on American states to tear down the copyright paywall for statutes. States that assert copyright over public laws limit their citizens’ access to such laws and impede a free and educated society. Convincing states (and publishers) to surrender these claims, however, is going to take some time.

A parallel problem involves The Bluebook and the courts that endorse it as a citation authority. By requiring parties to cite to an official published version of a statutory code, the courts are effectively restricting participants in the legal research market. Nowhere is this more evident than in those states where the government has delegated the publishing of the official code to a private publisher, as is the situation in more than half of the states.  Thus, even if the state itself or another company, such as Justia, publishes the law online for free, a brief cannot cite to these versions of the code.

See, even Attorney Minick isn’t saying, Justia’s work merits the award of such state contracts!

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