The Birthing of 21st Century Legal Authority

Mike Whiteman's The Death of Twentieth-Century Authority [SSRN] is one of many articles published in the last few years that ten years from now will be looked upon as capturing the issues presented during a time of substantial change in how legal information is published and used. In a way, this is similar to articles published in the mid-1980s when online legal search no longer was viewed as novel and long-term consequences of using WEXIS were under critical analysis by legal information professionals. (I'm not referring to the published knee-jerk reaction from the 1980s luddite crowd.) Whiteman's article covers no new ground but does an good job of summarizing familiar issues presented elsewhere in piecemeal fashion. As such, it's an excellent article for an assigned reading in legal research courses.

The death of 20th century legal authority is really the story of the birthing of 21st century legal authority: the availability and use of online primary and secondary materials that are not published either online or in print by traditional commercial legal publishers like West and LexisNexis. And, of course, the problems associated: link rot, questionable information value in web resources viewed as reference works and cited as secondary authority, and the authenticity of primary legal sources.

While the issue of authenticated legal information appears to be of essential importance, are these really concerns for judges and attorneys? For most attorneys, free seems to be the guiding force, so accuracy and authenticity fall behind the desire for free legal information. There are few-to-no instances where a lawyer has been faulted for relying on the online version of a primary source, so no one will probably care as to the accuracy and authenticity of the source. “[P]erhaps the first lawyer to get sanctioned in court for using an electronic slip opinion that doesn’t actually reflect the court’s ‘real’ opinion will stop and ponder this question. Until that time, I seriously doubt most lawyers even care. Just as long as it doesn’t cost them anything.” (Quoting Jason Wilson, Screw Authenticity. I Just Want it for Free. (www.jasnwilsn.com/?p=344 July 10, 2009).

That first lawyer will not be sanctioned unless someone else calls attention to the "official" text. Who is really checking that anyone? Whose libraries actually contain the official texts in print anymore? In the 1980s we most certainly did check for differences between online output and printed official texts regularly, and occasionally found discrepancies. Today, I wonder if anyone besides SCOTUS clerks and law review cite checkers are. About the only thing one reads about is the occasional bench slapping when a citator other than Shepard's was used to confirm "good law" that wasn't. Sorry West, CaseMaker, etc., you just don't offer the citation service that still rules the day.

Ten years from now, if not sooner, the current issues surrounding primary source authenticity will be resolved and law librarians will look back at articles like this one, just as they look back at articles from the mid-1980s, as milestones reflecting concerns during the midst of revolutionary change in legal publishing.

The online world has leveled the field so that all players start, by and large, with the same access to the same materials. While it is true that this has the effect of watering down the possible strength of the authority being relied on, at least all sides will be relying on the same authority.  ... Some good has come out of the death of the old legal authority and the birth of the new. While legal authority changes, caution is needed before rushing head long in to the new era, but there is optimism that this new era will be one that provides an increased openness in the way society accesses the legal authority which is so important to the smooth functioning of the judicial system.

While a serious concern, the watering down of authority is a temporary phenomenon, a hallmark of transitioning to a new era. Courts are settling issues presented in the use of web resources like Wikipedia, etc. and once authentication of online primary resources is institutionalized, the dust will settle.

Contemporary (Sloppy) Research Methods That Legal Research Instruction Will Not Fix. What's more disconcerting because there is no evidence of improvements even being on the horizon is the change in research methods. Whiteman writes

There is a whole body of literature that has tracked the idea of how research habits have changed with this shift to online information sources, and how computers have created a generation of researchers who are better at searching for facts than they are at finding legal concepts. There have been studies that have looked at how attorneys have moved away from the venerable West Digest system, how lawyers and judges have relied more and more on non-legal sources, and how this shift to online sources has led to a new way of looking at and analyzing the law.

Studies have found that if different legal researchers are presented with the same legal problem and only perform online research, they are not likely to even agree on what the legal issues are. Why? Because online editorial content is not informing their research decisions.

First and foremost, the display of secondary sources in itty-bitty content slices by most legal publishers has created a generation of legal researchers suffering from an online myopia, one that does not "see" the conceptual interconnectedness provided by the writers and editors of secondary sources and tools. Flattening of this structure by some next gen online services in an effort to be "more like Google" is only making matters worse. This is not a problem that legal research instruction in online use is capable of solving because research instruction is dependent on the resources available.

The Reshaping of American Legal Tradition by WEXIS. This is a problem created by the current delivery of online secondary content by WEXIS; one with significant implications for the rule of law in this country. Yes, the rule of law, not just how it is practiced. We might as well consider replacing our common law tradition with a civil code system.

It is not far-fetched to say that our very expensive legal search service vendors are reshaping American legal traditions to suit their own objectives. It wouldn't be the first time. That's exactly what John B. West did in the late 19th century. One might say that jurisprudence is held captive by the current duopolist structure in the legal publishing market. Not sure there is an antitrust argument here, but this is the legal environment we are living in.

Self-Destructive Behavior by Very Expensive Legal Search Service Vendors. Essentially, WEXIS has been and is destroying the value created in their own secondary titles by how they are currently being delivered online. This may have significant consequences that future legal historians will discuss because, if not usable, secondary sources won't be used. Nor may most continue to be part of WEXIS online licensing agreements unless given away. We will see other vendors, including new ones, who know better than to distroy the value-added in their secondary source offerings take advantage of this situation.

Hopefully ten years from now, this, too, will be looked upon by tomorrow's law librarians as a transitional issue that has been resolved. [JH]