852 RARE Bonus Edition: The 25th Anniversary of Cohen v. Cowles Media

June 24, 2016 marks the 25th anniversary of Cohen v. Cowles Media Co., 501 U.S. 663 (1991), in which the U.S. Supreme Court decided that freedom of the press does not exempt journalists from following generally applicable laws. Dan Cohen (HLS ’61), a Republican campaign associate in the 1982 Minnesota governor’s race, gave information about another party’s candidate to reporters at two local newspapers. Though Cohen had received a promise of confidentiality from the reporters, the papers divulged his name. Cohen lost his job and sued the papers in state court, alleging breach of contract. Cohen won at trial and on appeal, but the Minnesota Supreme Court reversed. Cohen appealed to the U.S. Supreme Court. The question before the Court was: Does the First Amendment bar a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper’s breach of a promise of confidentiality? In a close 5-4 decision with two dissents, the Court ruled in favor of Mr. Cohen.

Cohen v. Cowles Media has been the subject of much debate and legal analysis in the past 25 years. It stands with New York Times v. Sullivan and a handful of others as a significant first amendment case involving the press.

Interested in learning more about what went on behind the scenes of this important case? Historical & Special Collections has the case files! Donated by Cohen’s attorney Elliot C. Rothenberg (HLS ’64), the collection consists of materials Mr. Rothenberg compiled and used in Cohen’s defense. HSC has many collections of case files, lawyers’ papers, and judges’ papers. If you are interested in a particular legal case, lawyer, or judge, search HOLLIS+ , the Harvard Library catalog.

HLS Class Marshal Elliot C. Rothenberg ('64). VIA record ID 8000950463

HLS Class Marshal Elliot C. Rothenberg (’64). VIA record ID 8000950463

We’re grateful to Mr. Rothenberg for sharing his collection with us, so we can share it with you. And his generosity does not end there: over the years, he has donated a number of HLS-related papers and artifacts to HSC, including the very baton he wielded as the Law School’s 1964 Class Marshal! Both baton and photo are on view through August 12, 2016 in the “academic regalia” section of the Library’s exhibit, What (Not) to Wear: Fashion and the Law.

Scanning Nuremberg: editing an exhibit and arguments over reprisals

Post by Matt Seccombe, June 2, 2016

Scanning Nuremberg shares the observations and insights of Matt Seccombe, Nuremberg Trials Project Metadata Manager/Document Analyst, as he analyzes documents for digitization as part of the HLS Library’s Nuremberg Trials Project website

During May I worked through the nine document books of Field Marshal List and the entire defense set of General Rendulic, for a total of 226 documents and 1260 pages of material. General Rendulic takes the case out of the Balkans for charges related to the scorched-earth withdrawal from northern Norway, but the issues and events are like those already presented by other defendants. Since List was the highest-ranking defendant, the stakes were higher, the issues more wide-ranging, and his defense material richer and more detailed.

Editing an exhibit: Many of the prosecution documents were extracts from captured German military records, including the notorious “Terror Order” in which Hitler and Keitel ordered that the vast newly conquered territory in the east must be ruled by terrorizing the population into submission. List argued that the prosecution’s extract implied that the order was sent to and applied by his command in the Balkans, and he presented the full text that showed it was directed specifically to the army in the Soviet Union. When this was presented in the trial, the presiding judge noted the discrepancy between the two exhibits drawn from the same document and commented that the misleading prosecution version “does not reflect to the credit” of the (unnamed) prosecution staff member who had prepared it.

Et tu: A major defense argument was that the generals should not be charged for holding hostages and sometimes executing them in reprisal for partisan attacks and sabotage, because the Allied forces had done the same thing. The point was not that two wrongs made a right, but rather that the Allies had recognized the legitimacy of the practice under the laws of war. When an army has defeated an opponent and occupied its territory, the occupier takes responsibility for the survival of the population, the population is obliged to accept the occupation peacefully, and the population is collectively responsible for any violations.  In fact, one French general issued a reprisal order against German residents in Strasbourg in late 1944, stating that he would shoot five Germans for any French soldier killed. General Eisenhower’s staff quickly had the order withdrawn. Eisenhower himself provided an affidavit for the defense stating that the order had been issued and then withdrawn, but he carefully refrained from stating whether he would have approved or cancelled any reprisal order. One newspaper article stated that in December 1944 Eisenhower prohibited the execution of any German POWs in reprisal for guerrilla attacks, since POWs were protected by the laws of war, but that reprisals against German civilians would be permissible. It is not evident what policy Eisenhower actually had on that point.

The field marshal away from the front: The most interesting document about any of the defendants was introduced for a mundane reason: to prove that List was not on duty on the days a particular (alleged) crime occurred in 1941. This document was List’s personal diary, recording where he was and what he was doing: In June, at home in Vienna, he enjoyed a bottle of champagne brought from Paris by another officer. Two days later he was in Berlin: “Breakfast with the Fuehrer and a small group” for a two-hour meeting. In July, Vienna again: “everybody well at home! What a blessing, what happiness!” In August, Greece: “Bath [i.e., swimming] in the gulf of Marathon . . . wonderful evening.” After surgery, home again and in a reflective mood: “Wonderful Christmas Eve and friendly gathering. How well off we are; millions at the front in storm and cold and in the middle of battle!!!”

Although the digitization of the remaining trials will also be complete by the end of this year, they will require analysis and tagging work before they can be released to the public.  We hope to complete this work as soon as possible based upon available funding. For more information about this project, please contact Kim Dulin.

Our Soccer/Football Law Research Guide is Back!

After spending some time on the bench recently, the law library’s research guide The Beautiful Game: The Law of Soccer / Football is back on the pitch!

The guide has been updated, streamlined, and declared match-fit, just in time for the Euro 2016 and Copa America 2016 tournaments that are taking place this month.

Check it out at http://guides.library.harvard.edu/football-law.

852 Rare: Preserving Digital Media at HLS: First Steps

Whether you’re familiar with archives or not, unless you work in one all day you might think of them as mysterious locked rooms full of old (dare I say, “dusty”) books with intricate bindings, manuscripts crafted hundreds of years ago in no-longer-spoken tongues and script, and artifacts once owned by famous people. HLS Library’s Historical and Special Collections does contain “treasures” like these but a much larger portion of our collection is made up of manuscripts that tell the stories of the lives of legal scholars, lawyers, and judges, regardless of fame or fortune. These items make long physical journeys from someone’s home or office through archivists’ hands, workspaces, and many other processes before finally being ready for access by our researchers.

But digital media has turned traditional archiving on its head. With formats and technology evolving much faster than the technology of papermaking and bookbinding, how do we preserve today’s records? Over the past 5 years, we have been building a program that will support the imminent inundation of digital records and allow us to be more nimble through new practices such as on-demand collecting. We already house an array of historic digital media, such as floppy disks, computers and laptops containing twenty or thirty-year-old hard drives, zip disks, files on CDs, and much more.

Image collage of media from a recent acquisition.

A few pieces of media from a recent acquisition. Clockwise, starting top left: HP Omnibook, 1997; La Cie external hard drive, 1994; HP OmniBook’s internal hard drive, 1997; Apple internal hard drive and its laptop computer, ca. 1994; IBM ThinkPad and its internal hard drive, 2004.

To preserve these, we use digital forensics techniques (yes, similar to what law enforcement units do in a criminal investigation!) to safely transfer files off of obsolete media and stabilize them on a secure server space managed by HLS ITS. We have an array of equipment to read the media, such as 3.5” floppy controllers and an UltraDock writeblocker that connects to over 10 different types of media such as internal hard drives and SD memory cards. We have a computer equipped with the Linux-based open-source BitCurator environment to extract metadata and perform many other activities on the disks we’ve stabilized. We recently added a Forensic Recovery of Evidence Device Laptop (FRED-L) to our arsenal in anticipation of going out into the field and imaging media straight from donors’ offices or homes, without having to bring obsolete media into the archives at all (yes, I’m sorry to tell you, but that floppy disk is going to be unreadable someday whether you’ve got a working drive for it or not!).

FRED-L and UltraKit

FRED-L and UltraKit

But, all of this actually only solves the FIRST step of archiving – transferring files to the archive. A bit more complicated than going to an office to pick up boxes, but also pretty fun. We are currently working on the rest of the workflow – extracting files from stabilized disk images, migrating them to readable formats (WordPerfect for DOS, anyone?), and making them available through our finding aids in OASIS. I’ll be sharing more about these processes and milestones as we reach them, so come back to Et Seq for more digital preservation 852 Rare posts!

New Title Spotlight: Restorative Justice and Mediation in Penal Matters

It’s been a great month for discovering new titles in our collection that will appeal to comparative law researchers! The latest title that caught my eye provides a survey of criminal justice ADR practice in 36 (36!) European countries:

Restorative Justice and Mediation in Penal Matters: A Stock-Taking of Legal Issues, Implementation Strategies and Outcomes in 36 European Countries
Frieder Dünkel, Joanna Grzywa-Holten, Philip Horsfield (eds.)
Forum Verlag Godesberg, 2015
(2 volumes)

The editors’ goal in compiling this collection was to “know what there is in Europe today in terms of [Restorative Justice] RJ in penal matters, what the driving forces have been for introducing RJ, how it has been implemented in legislation and on the ground, and what role it plays (central or peripheral) in criminal justice practice.” (p. 3)

Each country report includes an in-depth discussion of active and proposed Victim Offender Mediation (VOM) programs for both adult and juvenile offenders.

Highlights include:

Austria’s NEUSTART program includes three options: “VOM, community service, and probation assistance.”  The use of VOM has been studied there for several years and has shown interesting results, including the public prosecutor dismissing criminal charges in 78% of cases in which VOM was used. (pp. 34-35)

The laws of the Czech Republic provide several RJ-oriented options to “the full range of criminal justice stakeholders: the police, public prosecutors, Probation and Mediation Service, offenders, and victims[.]” These include VOM, conciliation (narovnání) hearings, and both “conditional discontinuance” and abandonment of criminal prosecution. (pp. 171-74)

In Finland, “[f]our structures serve the interests of the victim’ restorative needs[,]”:

  • Insurance and civil law compensation schemes
  • The state compensation system
  • Diversion in the form of non-prosecution
  • Mediation

The Finnish government has an extensive network of agencies to oversee and facilitate mediation in criminal cases, including “the Ministry of Social and Welfare Affairs…, the Advisory Board on Mediation in Criminal Cases, the mediation office, and the mediation officer in charge.” The use of mediation in Finnish criminal cases has been extensively researched, and data about mediation participants and their relative satisfaction with the mediation process is included in the report. (pp. 243-62)

Romania’s Law on Mediation and the Mediator Profession (Law No. 192/2006, published in the Official Gazette No. 441 on May 22, 2006) “regulates…the procedure and characteristics of mediation in penal matters.”  This law was amended in 2009 (Law 370/2009), “introduc[ing] the duty of justice officials to inform the parties about the availability of mediation.” The report provides an extensive explanation of the statutory requirements for the mediation process required under this law, and it also discusses the results of 2010 survey of public prosecutors and judges regarding the use and acceptance of VOM in criminal proceedings. (pp. 697-719)

The report from Ukraine features a discussion of the work done to advocate for the use of RJ in criminal proceedings by “civil society organizations,” including the Ukrainian Centre for Common Ground (UCCG). This organization first introduced a pilot program of VOM in criminal cases in Ukraine in 2003. Currently, the UCCG’s work includes providing training for mediators who offer mediation services in the 14 Community Restorative Justice Centres (CRJCs) across the country. (pp. 989-1005)

This resource provides a wealth of information for comparative research of criminal justice, ADR, and European legislation. Each report is highly readable and helpfully annotated with primary and secondary source references.  The national experts who wrote these reports have done us a real service in contributing their knowledge to these volumes. It is definitely worth a look if your interests lie in any of these areas.

New Title Spotlight – Arbitration in Africa: A Review of Key Jurisdictions

The law library recently added an important title to its collection for foreign and international arbitration research:

An Introduction to Arbitration in Africa: A Review of Key Jurisdictions
John Miles, Tunde Fagbohunlu SAN and Kamal Rasiklal Shah
Sweet and Maxwell, 2016
Law Library Lewis/ILS basement stacks, KQC500 .M55 2016

This book provides information about the legal systems and arbitration laws and procedures (including enforcement and appeal of arbitration awards) of many African jurisdictions. It is organized as follows:

Arbitration in Africa: A Review of Key Jurisdictions, by John Miles, Tunde Fagbohunlu SAN and Kamal Rasiklal Shah (2016)

North Africa:

Algeria, Egypt, Morocco, Sudan, Tunisia

The East African Community and Ethiopia:

Ethiopia, Kenya, Rwanda, Tanzania, Uganda

Southern Africa:

Botswana, Malawi, South Africa, Zambia, Zimbabwe

English-Speaking West Africa:

Ghana, Nigeria

African Lusophone Countries:

Angola, Guinea-Bissau, Mozambique

The Islands of Africa:

Cape Verde, Madagascar, Mauritius, Sao Tome and Principe

Arbitration under the OHADA System:

Cameroon, Cote d’Ivoire, Democratic Republic of Congo, Gabon, Guinea (Conakry), Togo

The book also provides a list of African countries that are signatories to the ICSID convention, and lists of the bilateral investment treaties (BITs) into which African countries have entered.

Open for research: The Records of the Cambridge Tenants’ Union

Historical & Special Collections is pleased to announce the opening of a new modern manuscript collection for research — the Records of the Cambridge Tenants’ Union.

Flyer, Cambridge Tenants' Union. Records, 1967-1999, Box 10, folder 5

Flyer, Cambridge Tenants’ Union. Records, 1967-1999, Box 10, folder 5

 

The Cambridge Tenant’s Union (CTU) Records cover the entirety of the organization’s period as an active group in Cambridge, Massachusetts from 1986 – 1999. There are also documents from the group’s predecessor, the Cambridge Rent Control Coalition, dating back to 1967. The bulk of this collection is organizational records and materials related to the Cambridge Tenants’ Union’s political and legal activism. Also included are studies and reports, involvement with other groups, and press coverage of relevant issues. The majority of the collection is textual, comprising of correspondence, logs, petitions, flyers, publications, questionnaires, pamphlets, studies, clippings, newspapers, and related printed matter. Other formats present are a small number of items such as buttons, postcards, and cassette tapes.

The Records of the Cambridge Tenants’ Union is open to all researchers. Anyone interested in using the collection should contact Historical & Special Collections to schedule an appointment.

Posted on behalf of Rachel Scavera by Edwin Moloy.

 

Book Series Spotlight: German Law Accessible

IMG_3726

Tax Law in Germany (2nd Edition, 2016)

The law library’s collection includes many English-language materials on German law. One especially helpful resource is the German Law Accessible series of books, published by the German legal publisher C.H. Beck.

Many of the titles in the German Law Accessible series focus on subjects related to commercial/business law. The most recent title in this series is no exception – it is the 2016 2nd edition of Tax Law in Germany (3rd floor of the Law Library’s ILS/Lewis Collection, call number KK7105.8 .H33 2016). Its authors, Florian Haase and Daniela Steierberg, are tax law experts in the Hamburg office of the international financial consulting firm Rödl & Partner.

In the introduction, the authors describe their book as being “written from a practitioner’s perspective…[offering] a succinct description of the law together with lots of examples.”  However, despite its practitioner-oriented focus, this book provides an ideal opportunity for academic researchers who do not read German to learn about taxation in Germany.  Subjects covered in the books include an overview of the German legal tax system, taxation issues related to corporations and partnerships, special tax problems involving cross-border investments, transfer pricing, and much more.

For more information about researching German law at HLS, visit our German Law Research Guide at http://guides.library.harvard.edu/GermanLaw.

New exhibit: What (Not) to Wear: Fashion and the Law

fashion triptych displays 2-hlslHistorical & Special Collections is pleased to announce that the new exhibit, What (Not) to Wear: Fashion and the Law is now on view in the Caspersen Room on the fourth floor of Langdell Hall.

Though law and fashion may not initially seem like overlapping domains, given the central nature of each of these fields to our lives, it is no surprise that they do have an impact on one another. Over the centuries, fashion has been important to decisions about how jurists visually demonstrate their expertise, and law has served to circumscribe how fashion is created, distributed, and consumed.

What Not to Wear: Fashion and the Law, guest curated by research library staff Mindy Kent, Meg Kribble, and Carli Spina (now of Boston College!), is on view in the HLS Library Caspersen Room daily 9am-5pm through August 12, 2016.

Can’t get to Cambridge? Our online exhibit is now available as well!

Congrats to Robert Niles!

We’re happy to announce that a Harvard Law School student was among ten winners of the 2016 Bloomberg Law Write-On Competition. Robert Niles is in his final year of the J.D./M.B.A. program at Harvard Law School and Harvard Business School. His article, Did Reed v. Town of Gilbert Silence Commercial Speech Doctrine? Early Signs Point to No, was recently published in U.S. Law Week. Bloomberg Law subscribers can read it at the link.

Congratulations, Robert!