Legal Citation Indexes: They may not be needed in the 21st century because smarter tools will be available

Somewhere in the hazy recollection that is my always faulty memory, I remember reading an account where Joseph Story, SCOTUS justice -- who was hired by Harvard Law School to save the school from closing its doors because HLS was not able to attact students since Litchfield Law School was then the best (think pre-USNWR "top ranked") law school back then -- was sending his analysis of court decisions found during the drafting of his Commentaries to someone {insert name because I have forgotten it] who was compiling a legal citation index of sorts. Now, a 19th century legal researcher might have been comforable with Story's submission to this citator work [See Terry Martin's correction in his comment to this post]. But legal research due dilence still required that one must read the opinion (if it was available way back then) and to the best of my recollection that citator work did not signal "submitted by Justice Story."

Due dilience most definitely requires reading signaled opinions in citators today (where access to the opinions in readily available by our very expensive legal search vendor who just so happen also product the citators). The difference between the 19th century and now is one of editorial expertise. Story's evaluation probably trumped the expertise of current editors of WEXIS citators. While I professionally believe that Shepard's remains the "gold standard" comparied to the other guy's commerical citator, one nagging issue I have had in the context of the Open Law-Open Access movement is who is going to create a free or low cost legal citator to compete with WEXIS.

Smarter Tools. Dah, I'm an idiot! It has finally dawned on me that no one has to replicate this print traditon-bound research tool.Legal citators may become obsolute by advances made in search engine techonology. Why? First because they are not produced by editors, meaning one is not getting second-hand analysis and output. Second, research norms most definitely require legal researchers to read the opinions cited in them. The tyranny of the all too convenient citator signal will be replaced by smarter tools incorporated into search engines.

Ah, I'm not suggesting that the the tyranny of the citator editor be completely replaced by the tyranny of the almighty search engine that is still produced by code created by human beings. However, it may be replaced by SE coding that is poorly constructed. Case in point -- WestlawNext. The way too convenient embedding metadata in West Search that was previously used for navigational purposes in Classic Westlaw and the very questionable crowdsourcing component added to WestlawNext has producted comments like the following to the Legal Research Plus blog post, How widespread is WestlawNext?:

I see other problems besides cost for WestlawNext in law firms. To oversimplify: Google on new steroids represents WestlawNext’s research model. That model shows remarkable detachment from application to real-life research problems in law firms.  The stock examples used in WestlawNext’s demos fit TR’s marketing well enough, but I could not translate them into everyday, online research done in law firms. I also see evidence of algorithmic anomalies – possibly widespread – that have only begun to be explored.

Smarter SE Alternatives to Citators That Are Less Likely to Produce Algorithmic Anomalies.Today's search engines are providing alternative to citators as long as a legal researcher is actually performing his or her due diligence. Search engine enhancements in development for CALI's The Free Law Reporter may be an instance where smart, more sophisticated search engines will replace the need for a citator for an open access legal search service. LAW.GOV's bulk distribution of primary materials is the basis of CALI's new service. But the work of LAW.GOV can stimulate a burst of competitive creativity that also offers the prospect of stable commerical enterprises competing on the basis of research tools in a market currently dominated by WEXIS.

The point of this post is that advances in search engine development may relegate legal citators to also-ran status in the tools of legal research. I will use Factcase as an example (with a note to the FTC that Facecase gave me a free trial to check out this) because it is one of the very few new entrants in commercial marketplace; Fastcase is the only existing commercial provder of legal research tools that negates the need for citation indexing because of the Company's creative solutions.

Fastcase's Authority Check. Quoting from the Company's description which I found to be an accurate one:

Fastcase’s Authority Check identifies later-citing cases. It also includes a timeline view of later-citing cases, a visual map of how the citing cases occur over time. Authority Check also shows citation statistics, showing how many times your cases have been cited at each level of the court system, and how recently it’s been cited. Finally, you can filter Authority Check to see only cases in a particular court that cite your case. It’s a great way to find later-citing cases.

It works! I particularly like the timeline and filtering options.

Fastcase's Data Visualization Tools.

Fastcase maps search results visually, so you can see at a glance which are the most important cases. The patent-pending Interactive Timeline view of search results plots all of the search results on a visual map, showing how results are distributed over time, how relevant each case is based on your query, how often each case has been cited generally in the database (“cited generally”), and how often each case has been cited by the super-relevant set of other search results (“cited within”). Mouse over any case on the map and get the case name, citation, most relevant paragraph, and citation analysis for that case.

I'm probably showing my age because I'm not really into the whole data visualization tool (and we are beginnng to see data visualization appear in "next gen" platforms by very expensive online search providers) but the "cited within" feature is very useful. I am concerned that the trend to add-on data visualization in the industry may not be useful for researchers with sight-disablities. But the tool is another example of subsituting search output for a citator.

Fastcase's Integrated Citation Analysis.

Search results on Fastcase automatically include the number of times each case has been cited – Fastcase is the only service that allows you to find the most cited case in your results with a single click. On traditional services, you could do that only by Shepardizing or KeyCiting every case in the search results. Finding the seminal case is one of the most important tasks in legal research, and Fastcase’s integrated citation analysis tools are by far the most powerful way to find the seminal case in any kind of research.

By far, this is my favorite feature of Fastcase's sophisticated SE output. If for no other reason, Fastcase should be provided free of charge to law students and their legal research instructors. We all know that we can tell law schools that they must delve deeper than merely reliance on WEXIS citation indexes, even with examples of editorial goofs published in them. But that message is not really going to be heard (at least not until they make a mistake in the real world). Facecase's Integrated Citation Analyis will identify opinions that are not the produce of the legal researchers key word usage, clearly identify that output as being so and most important will get law students and practitioners to read the court opinions.

This is Not an Advertisement for Fastcase. It is, however, an illustration that creativity in the making of research tools today may make citators a thing of the past. The origins of legal citation indexes lie in the history of print law reportng. But print is nothing more than a technical accident in legal publishing. Was not the first research tool most law libraries cancelled in print for substitution by way of online access Shepard's? Will this type of research tool be replaced by sophicated search engines. I, for one, think citators will by replaced by sophicated search engines like Fastcase's. Hence my concern about who will produce alternative citators to WEXIS citators as competition enters the market place once stable bulk-distibution of well-formed primary resources is resolved. No one has to do that.

What the hell. On this research tool issue, I was still locked in a 19th-20th century mindset about a research tool and forgot that print is just a technical accident.

Endnote.Bob Ambrogi is reporting that Casemaker, usually the legal search service one compares with Fastcase, is rolling out a major upgade of its interface to subscribers late in May or early in June. Called CasemakerElite Bob writes "this new version takes a cue from WestlawNext, which has an interface that I once described as 'Zen-like in its sparsity — or, I should say, Google-like.'  The folks at Casemaker looked at what West did and said to themselves, 'We can do that.'" For details, see Bob's post, Casemaker Prepares to Roll Out Major Upgrade of its Interface. [JH]