It's National Margarita Day!

Today is National Margarita Day, a chance to celebrate the beverage that pairs so well with our beloved Tex-Mex cuisine. It's also the perfect time to “distill” some legal trivia pertaining to margaritas and the law.

•  The frozen margarita machine was invented in 1971 in Dallas by an innovator and restauranteur named Mariano Martinez. Inspired by the Slurpee machine at his local 7-11, Martinez decided to modify a soft serve ice cream maker, converting it to a slushy margarita machine. It was a hit! And Martinez was finally able to meet the demand for the popular drink at his restaurant, Mariano’s Mexican Cuisine. The margarita, according to this ABC News segment, is now the most popular cocktail in the world with Americans consuming 180,000 margaritas every hour. That’s a lot of tequila!

• Speaking of tequila…Just as true champagne must be produced in France, genuine Tequila (with a capital T) must hail from Mexico where it is manufactured in compliance with the laws and specifications of that country. The Code of Federal Regulations stipulates a “standard of identity” for Tequila, defining it as "an alcoholic distillate from a fermented mash derived principally from the Agave Tequiliana Weber." See: 27 CFR Section 5.22(g)

• An authentic margarita must contain four ingredients: salt, lime, triple sec, and, of course, Tequila. However, in order to comply with the law, some establishments adapt this recipe in complete disregard for tradition. In Texas, where "margaritas and daiquiris to go" are a recent trend, Tequila is replaced with wine, much to the horror of margarita purists. On its website, the Texas Alcoholic Beverage Commission addresses the legality of drive-thru margarita stands, explaining that making margaritas with beer or wine  is "the only legal way anyone can sell margaritas or daiquiris for take-out or to go. The drinks cannot be made with tequila or rum or any distilled spirit." Suffice it to say that these drive through beverages are more in keeping with the letter than the "spirit" of the law. 

However you celebrate National Margarita Day, please do so responsibly! Cheers!

Latest & Greatest – The Invention of Legal Research

By Joseph L. Gerken

Published by William S. Hein & Co., Inc.

KF 240 .G47 2016

Have you ever wondered about the evolution of legal research and how the seed for finding the law germinated and bloomed into the system that we now employ to find relevant case law and statutes? Author Joseph L. Gerken did, and the result of his curiosity is The Invention of Legal Research. Noting that no new legal research methods were developed or conceived until computer-assisted research appeared in the 1980s, the author focuses his examination upon what it was about the so-called “golden decades” from 1870 to 1890 that revolutionized the way legal research was performed and the methods by which cases were located. He begins his analysis with a discussion of some of the early pioneers in legal publishing: Francis Hopkinson, the editor of Judgments in the Admiralty of Pennsylvania; Ephraim Kirby, the editor of Reports of Cases Adjudged in the Superior Court of the State of Connecticut; James Kent, author of Commentaries on American Law, and the seven nominative Supreme Court reporters. Of course, no discussion of legal publishing visionaries would be a complete without a mention of John West and his contribution to the formation of legal research with his National Reporter System. Gerken remarks that West’s system rose to prominence and dominated the world of case reporters because he fashioned a true nationally-focused reporter system.

This increase in the number of reporters inevitably led to the creation of the case digest and the legal citator. Digests are almost synonymous with Benjamin Vaughn Abbott and his brother Austin, who developed a system based on the holdings of the cases, rather than the cases themselves, as well as a classification scheme based on legal topics. Frank Shepard is credited with developing his eponymous citator, a work known for its accuracy, reliability, and currency. In a later chapter, the author examines the causal relationship between case reporting and case finding and the advent of the doctrine of stare decisis. Gerken attributes the stress on the precedential value of cases for the shift in the primary purpose of legal research.

Gerken also delves into the history of statutory law in the 19th century and how the notion of codification was at the forefront during this era. Two men of note in this regard are Jeremy Bentham, the inventor of the term “codification” and a staunch advocate for the adoption of an encompassing code for statutes emanating from the federal government and from individual states, and William Sampson, who kept the issue of and need for codification at the center of the legal world. Both of these men (although more so Sampson) are credited with influencing the drive to create the first American legal code, the New York Revised Statutes. The author presents a lengthy discussion of the New York Revised Statutes of 1829, historically significant for its organization of disparate laws into one place. he also speaks of the Field Code and its adoption and the first codification of federal statutes, which eventually were published as the United States Statutes at Large.

Gerken rounds out his book with a discussion of law reviews and how they influenced the law. From the earliest law journals written by lawyers and other legal professionals to the modern-day law reviews edited and published by students, Gerken examines how these periodicals “contributed to the development of legal doctrine” and defines how these journals fit into the grand scheme of legal research.

Lastly, Gerken explores the parallels between law and librarianship in the late 19th century and how both developed into sciences.

For the legal researcher, the law librarian, the legal scholar, or anyone who has in interest in the development of the methods by which legal research is carried out, The Invention of Legal Research provides a glimpse into those “Golden Decades” from 1870 to 1890 when modern-day legal research had its heyday and became “the way” of finding the law.

Introducing govinfo

In 2009, the Government Publishing Office (then called the Government Printing Office) migrated all of its Federal Government resources from GPO Access to FDsys.gov. Providing access to federal statutes, regulations, and executive branch documents, FDsys was a government information goldmine. However, opinions about the site were mixed. While one reviewer described it as, "...well organized, with good symmetry, plain layout, and design," others found it unattractive and difficult to navigate. In any case, the GPO is migrating once again to a new and improved, next generation website. It's called govInfo, and it debuted in beta mode just two years ago. It features all the content and coverage offered by FDsys but the layout and design are much improved. Best of all, the new site is built for responsive design and optimized for display on mobile devices.

govinfo is the new front door to accessing the same content that's been available on FDsys for the last 7 years, with a focus on "implementing feedback from users and improving overall search and access to electronic Federal Government information."  FDsys will retire and will be completely replaced by govinfo by the end of 2018. During the transition period, be sure to update your bookmarks and links to govinfo.gov.

If you'd like to find the same documents on govinfo that you used to access on FDsys, look for the comparison chart that's available on the govinfo About page. Video tutorials are also provided along with a Help guide that links to information about what kind of content is available on govinfo and how to find it.

Part 2: Mardi Gras Day

Part 2 of 2. In honor of Mardi Gras, this blog post replaces our regularly scheduled Tech Tuesday installment.

Flambeaux provide traditional-style lighting for Carnival Parades.

The New Orleans Code of Ordinances, Chapter 34, is simply titled “Carnival, Mardi Gras.” It begins with a list of defined terms familiar to New Orleanians, such as “Flambeaux” and “Tandem Float,” and distinguishes between a “Truck Parade” and a “Float Parade.” Most of the code lays out basic guidelines for safety and spectacle, including rules for parade permitting, float safety, the minimum number of marching bands per parade (7), and so on. However, controversy has erupted this year over Carnival Code Article V, which bans Mardi Gras participants from distributing any “doubloon, trinket or other throw which . . . displays, conveys or communicates any . . . political . . . message.”

"Quick come see, there goes Robert E. Lee"

New Orleans has so many parades, the city has posted permanent signs.

To understand why this is suddenly causing such a stir, know that roughly nine months ago, the city of New Orleans removed high profile Confederate and Reconstruction era monuments from public display. The most famous of these was an iconic statue of General Robert E. Lee, which stood since 1884 atop a massive column in the center of Lee Circle, a key part of the route most Mardi Gras parades must follow. This Carnival season, local vendors have reported selling at least 6,000 strands of beads displaying the words “Forever Lee Circle” with a depiction of the statue. Some New Orleanians believe that Article V’s restriction on political throws is an impermissible suppression of free political speech on public streets, as guaranteed by the First Amendment to the U.S. Constitution. The city appears prepared to argue that Article V meets the high bar of being a valid time, place, and manner restriction under established jurisprudence, which has hinted in the past that blanket, content-neutral suppression of political speech on public streets might be permissible under certain circumstances (See Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)). If this issue were to be heard in court, it might prove a fascinating extension of existing First Amendment case law, and potentially a star turn for Mardi Gras in the hallowed halls of the Supreme Court.

Krewe of Bacchus rolls down Saint Charles Avenue the Sunday night before Mardi Gras.

Intricate, hand beading is a hallmark of Mardi Gras Indian suits.

A Mardi Gras Indian displays the fruits of his labor.

Federal Law has also come to impact the lives and work of the Mardi Gras Indians. An indispensable part of New Orleans folk life, the roots of the Mardi Gras Indians stem all the way back to the 1700s. The first formal “tribe,” the Creole Wild West, was founded in 1885. Today, Mardi Gras Indians are best known for their elaborate, intricately handcrafted suits. These suits cost thousands of dollars to construct, and are typically worn only a few times after twelve months of design and effort before work begins on the next year’s ensemble. As the new millennium dawned, Mardi Gras Indians were increasingly frustrated that as they spent their personal money, time, and talent to fuel and continually develop this staple tradition, unaffiliated photographers were making money snapping pics and selling prints of the suits. Hoping to protect their intellectual property from this type of unauthorized derivative work, Mardi Gras Indians have started registering their suits as works of sculpture with the United States Copyright Office. It is unclear whether a court would honor these copyrights because of limitations in American jurisprudence for the protection of intellectual property in fashion, yet these registrations and a campaign of public awareness have discouraged photographers from profiting off the work of Mardi Gras Indians without first obtaining permission and sometimes a licensing agreement. New Orleans, land of dreams, where John Locke’s Sweat of the Brow doctrine meets “Iko Iko.”

Further reading...

• Watch live Mardi Gras coverage all day on WDSU
• House of Dance & Feathers for great information and photos
• The ELLA Project pairs New Orleans culture creators with intellectual property and entertainment attorneys.
• A relatively fresh look at John Locke’s Sweat of the Brow doctrine in American legal history.

Part 1: Countdown to Mardi Gras

Today's blog post is part 1 of 2. Tune in tomorrow for more of Mardi Gras and the law.

A law librarian hopes for a throw from an Endymion float.

Around the world, it goes by many names: Fettisdagen, Masopust, Pancake Day. If you’re in the United States, you probably know it as Mardi Gras. Literally “Fat Tuesday,” it is a Christian holiday that falls every year on the 47th day before Easter, with ancient roots as it marks the latest stored meats and animal fats could safely be consumed until the spring harvest. Carnival, or its culmination, is defined by different cultures to encompass different days, and is celebrated on every continent (the first recorded celebration in Antarctica took place in 1908) in endlessly creative ways (from Sambadrome dance spectaculars to epic food fights).

A weekend day parade.

In the United States, approximately 1.4 million people descend on New Orleans for Carnival festivities, which launch on the Twelfth Night of Christmas, January 6, building in a gradual crescendo through Fat Tuesday. The annual celebrations pump an estimated $1 billion into the south Louisiana economy. Where people and money meet, lawyers and politicians will follow, so that even the gratuitous excess of this pre-Lenten revelry is shaped by a web of local ordinances, Louisiana state law, and even the United States Constitution.

Spectators eagerly await the Mystic Krewe of Barkus, New Orleans' premiere all-dog krewe.

The most obvious legal issues are criminal. New Orleans Police Department has its hands full between inspecting floats, escorting parades, and containing the masses. While that inevitably means some less-than-legal behaviors might go unchecked, testing the patience of the police can easily land you in Orleans Parish Prison, as the cops focus on stopping problems before they start. Unlucky arrestees will languish in O.P.P. until the overburdened courts can process them back out, sometimes only after the bells of Saint Louis Cathedral solemnly herald Ash Wednesday. Popular ways to get arrested include fighting, public urination, and drinking until you fall asleep on the sidewalk.

Interior of a Nyx float about to roll.

Liability is also a major concern. Chapter 34 of the New Orleans Code of Ordinances, “Carnival, Mardi Gras,” requires krewes to carry liability insurance for issues relating to their floats and other aspects of the parade before a permit will be issued. But who is liable for the conduct of the individuals riding on the floats, drunkenly hurling trinkets at the roaring crowd? The largest parade, staged by the Super-Krewe of Endymion, has over 3,000 riders, which can make behavior difficult to police even with vigilant Float Captains empowered to enforce rules of conduct on the route. It is, then, no surprise that through the Revised Statutes, the Louisiana legislature has limited krewe liability beyond “deliberate and wanton act or gross negligence of the krewe or organization.” Unlimited liability would render such massive parades financially impossible. In the same statute, the state asserts that parade attendees assume “the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed, or hurled by members of the krewe.” Which is to say, if you are watching a parade and get hit hard in the face with a bag of beads, forget about litigating and instead shout “Laissez les bon temps rouler!”

Further reading on Mardi Gras in New Orleans:

• The Backstreet Cultural Museum
• Arthur Hardy's Mardi Gras Guide: History
• Mardi Gras Fast Facts from CNN.com