It May Be Just One Letter But … When West Refuses to Correct Scopes v. Tennessee Because of “Cost,” I Think We Have a Problem

After reading LLB’s recent 1-800-FIX-THIS: Thorn v. Blanchard in Westlaw, Corrected Now?, Lawrence D. MacLachlan, Director of Research & Instructional Services, University of Missouri Kansas City School of Law, emailed me because it reminded him of an error he discovered in a West reporter.

Many years ago I was preparing a bibliography of the Scopes v. Tennessee Creationism/“Monkey Trial” for Prof. Doug Linder’s Famous Trials website

Reading the opinion at 289 SW 363, in the concurring opinion at 368 is the following statement:

“…the story taught in the Bible as interpreted by those liberalists who hold to the instantaneous creation view.”

It didn’t make sense to label the instantaneous creation view as “liberalists” so I went to 154 Tenn. 105 and the exact same passage at 124 is “…the story taught in the Bible as interpreted by those literalists who hold to the instantaneous creation view.”

The difference between liberalists and literalists and the juxtaposition of the letter “b” for “t” makes it diametrically opposite in meaning based on one letter in one of the most famous court cases in American history. I thought that was sort of significant.

So….I called our friends in Minnesota and a very exasperated rep asked me if I had any idea how many copies of that volume of SW was “out there” and what it would cost to recall them all or send an errata to fix just one letter.

Now, I agree, replacing bound volumes of SW is expensive but refusing to make a correction by shipping an errata page, something that is pretty damn cheap, is simply ridiculous. Cost should never trump accuracy. Remember we’re talking about the written opinion for Scopes, 1 Smith (TN) 105, 154 Tenn. 105, 289 S.W. 363 (1927). The official reporter got it right. (Image right, click to enlarge). Imagine if it had been a West off-print.

MacLachlan informed West of the error in 1997. So I got a little curious to see how the text of the concurring opinion appeared in Westlaw. Yup, still wrong. Download Scopes from Westlaw Lexis version? Yup, correct. Download Scopes from Lexis

So here’s the moral of the story. When one of our very expensive legal search vendors ignores submitted and verifiable corrections, they are simply not doing their job of providing reliable resources. There is no doubt in my mind that West strives for accuracy, particular for current primary resources, but regardless of date, when a correction needs to be made the cost associated with that correction is nominal compared to the injury to the vendor’s reputation as a legal publisher by refusing to make it. Ah well, maybe when TR Legal's profit margin is 23% instead of 32% the Company will pay a little more attention to details.

The above-referenced LLB post cites to UCLA law prof Eugene Volokh's experience with trying to submit a correction to West. See his original blog post. He has since published a follow-up post, Westlaw Makes Clear That Its Policy Is to Correct Transcription Errors, Even for Old Cases, that quotes the following message from David Spencer, Vice President, Legal Editorial Operations, Thomson Reuters, Legal in response to his initial post:

Thank you for bringing the error in the Thorn decision to our attention. While West processes are designed to ensure the accuracy of opinions in its collections, Thorn reminds me that there is no substitute for an extra set of eyes (or many extra sets of eyes, as provided by your readers), in reviewing legal documents. We appreciate that you, and your readers, provided input: whenever a researcher calls an issue to our attention, we look to the source data. For older materials (and for new materials that have been modified), this can be problematic as there may be discrepancies in source data. This is particularly true with respect to older text published in variant reporters.

Once a cover page from the print reporter was submitted, the courtline issue for the 1809 Thorn decision should have been reviewed and the decision promptly corrected by West. It has now been modified on Westlaw. Again, thank you for bringing this to our attention....

West continues to strive for 100% accuracy (every year our editors work with the courts to make more than 100,000 corrections to cases), so I take it personally when an error slips through. We truly appreciate that legal professionals care enough to bring these things to our attention.

Perhaps Volokh feels assured that West is dedicated to ensuring the accuracy of the opinions it publishes – don’t know, didn’t ask him, think he is smart enough to know better – but at least one comment to his follow-up post hits the nail on the head:

So, Westlaw’s policy is to correct old cases when they are called out on it by prominent legal bloggers, but not when they think the person notifying them of the mistake is of little significance.

I don’t intend to be mean, but their response provides no explanation as to why they initially refused to fix the error and little reason to think that they’ve implemented any policies to ensure that this won’t happen again.

We law librarians have heard too many of these self-serving policy statements expressed publicly by the folks from the land of 10,000 invoices to take any of them seriously. Why? Because what’s missing from Spencer’s final paragraph is the following commitment to quality:

To expedite user-submitted corrections, we have established a routing system that directs them to our editorial staff. Just send us an email at ... with the information we would need to investigate and make the correction and we will reply back once the matter has been resolved.

MacLachlan submitted his correction 13 years ago. In this Shed West Era, many institutional buyers have tossed SW print volumes into the recycle bin – perhaps, errata page be damn -- but it is even less expensive than publishing an errata page to make the correction to the Westlaw version of the Scopes v. Tennessee text. Might be time to do so…

It's About the Text. OK, I left my undergrad studies in 1974 four credit hours short of a double major in Theology to go along with a major in Philosophy but I still remember enough to know that from the perspective of biblical hermeneutics a literalist interpretation of Scripture is substantially different from a liberalist interpretation. Remember, in the context of biblical exegesis, hermeneutics considers what language says, supposes, doesn't say, and implies. The process consists of several steps for best attaining the Scriptural author's intended meaning(s) starting with an accurate text. If primary legal sources are the law of the land, then in the context of legal hermeneutics, TR Legal better make damn sure it gets the text right.

There is nothing wrong with admitting that mistakes are made in the production process but there is one helluva lot wrong with not correcting them because of "cost." If illustrations like the one publicized by Gene Volokh and this one do not help build a case for LAW.GOV, I don’t know what will. We have absolutely no idea how many submitted corrections are ignored; we have no concrete evidence that after upload, any auditing of databases for comprehensiveness and accuracy is performed at all, let alone routinely. In a civil society governed by the rule of law, the legal text is the basis for interpretation; let's not leave it to the private sector. [JH]