Law Librarian Blog

Out of Ordering Lunch: No Consensus Needed When SCOTUS Justices Place Their Lunch Orders

Retired Supreme Court Associate Justice Sandra Day O'Connor appeared in the March 5, 2013 broadcast of The Daily Show. Here's the video links to Part One and Part Two. No doubt she was invited to promote her new book, Out of Order: Stories from the History of the Supreme Court (Random House, 2013) [Amazon link]. In Looking for SCOTUS controversy? Case revelations? O’Connor book sticks to facts of court history, Debra Cassens Weiss recaps reviews published in the New York Times and Christian Science Monitor. [JH]

Friday Fun: Beware Getting Hooked on Black Market Legal Research

One would think a fine midwestern city like Bloomington, Indiana wouldn't have much trouble with back alley purveyors of legal research results. Apparently that is not the case. Here's Indiana University Maurer School of Law Library's public service announcement for therapeutic law librarianship. [JH]

Automation and Its Discontents: A Review of The Case for Curation: The Relevance of Digest and Citator Results in Westlaw and Lexis

Susan Nevelow Mart has recently completed a seminal study, “The Case for Curation: The Relevance of Digest and Citator Results in Westlaw and Lexis.” [forthcoming publication in Legal Reference Services Quarterly] She found that curation, or human indexing, makes Key Numbers  (KN) significantly more precise than the largely automated, “Lexis Topics” (LT), and significantly more precise than an entirely automated Lexis application, “More Like This Headnote” (MLTH)  She also found that Shepard’s outperforms KeyCite when the user applies either to identify cases citing a targeted case for the same point of law.

Susan’s evidence represents a milestone achievement, not least by establishing a rigorous empirical standard. Her study involved review of “over 450 [landmark] cases to find 90 suitable cases, in addition to the ten cases from [her] previous study.” Students reviewed the Westlaw and Lexis versions of each of these cases for a Westlaw-Lexis pair of comparable headnotes. They used the KN and LT assigned to paired headnotes to find other cases classified under the same KN or LT. The students also applied MLTH to Lexis headnotes in the 90 cases. Finally, the students limited KeyCite and Shepard’s results to just those cases citing each of the 90 cases with respect to the designated headnote pair. The students followed an instruction on relevance that the headnotes supported, together with jurisdictional and other restrictions. They reviewed over 4000 cases for relevance. An additional statistical review ensured that their judgments of relevance were reliable.

62% of cases found through KN were judged relevant, while about 63% found through LT – and 52% found through MLTH – were judged not relevant. Susan concludes that editorial indexing in KN gives that system a decided advantage over LT and MLTH in precision, or the percentage of total cases retrieved that are relevant. MLTH and LT each showed a third or less of unique and relevant cases when compared to KN. These findings suggest to me that users of a digest would do to better to start with KN than with LT or MLTH, if they have a choice and have limited time.

KeyCite’s and Shepard’s respective algorithms assign citing cases to headnotes. Susan identifies a winner in this “battle of the algorithms”:  Shepard’s had “the edge” by about 15% in helping the student researchers identify relevant cases. But at precision rates of about 43% and 28%, respectively, neither Shepard’s nor KeyCite appear to work at all well for the application at issue. Moreover, Susan found that Shepard’s yielded “twice as many unique relevant results as KeyCite.” These findings suggest to me that users of either, if pressed for time, should start with Shepard’s, but otherwise use both.

No law librarian has undertaken a study of this scale. Her sample size and statistical review provide evidence that appears generalizable. So we now have good reason to believe that automation has far from superseded the human indexing that distinguishes KN from LT and MLTH. And where automation has taken over, the evidence on Shepard’s and KeyCite hardly encourages enthusiasm about its effectiveness, even if Shepard’s has an “edge” for results limited to headnotes. Susan’s groundbreaking study should inform instruction everywhere in the use of these services.

Michael Ginsborg

March 10-16: Gearing Up for Sunshine Week 2013?

I think we law librarians know what Sunshine Week is. Promoting open government and freedom of information by way of this annual week-long series of events is one way to advocate for the public's right to know. AALL will again co-sponsor a Sunshine Week webcast with OpentheGovernment.org. It will to be held on the morning of Friday, March 15. For details, see Save the Date! Sunshine Week 2013 (Washington Blawg) and/or the March issue of Washington E-Bulletin.

In addition to AALL, the co-sponsors of OpentheGovernment's March 15th event include the American Library Association, American Society of News Editors, Association of Research Libraries, Center for Effective Government, League of Women Voters, National Freedom of Information Coalition, Project on Government Oversight, Reporters Committee for Freedom of the Press, the Special Libraries Association, and Sunlight Foundation. For more information, see Register Now: OpenTheGovernment.org’s Sunshine Week Event on March 15. Here's the event's agenda.

According to Sunshine Week's About page, Bloomberg LP and the John S. and James L. Knight Foundation are providing financial support for Sunshine Week 2013. Did someone forget to ask Thomson Reuters? The American Society of News Editors FOI co-chairs Andrew Alexander and Tim Franklin discuss Sunshine Week 2013 in the below video. [JH]

Google Gets A Break In German Copyright Legislation

One of the stories buzzing in the electronic press concerns Google’s copyright disputes with German publishers.  The country was considering legislation that would formalize copyright fee payments for the use of story snippets in news aggregators such as Google News.  A compromise was forged at close to the last minute that allowed the use of snippets without a fee, but use of the entire work would still require a charge.  German publishers declared victory, though I don’t know why.  I would assume that basic copyright law in Europe would have prevented use of the entire work (without a fee, of course) in any event.

The dilemma for publishers, and not merely those in Germany, is how to make money from web content.  Advertising revenues on site alone do not cut it as many content providers have discovered.  This is one reason why there are these attempts to legislative a revenue stream.  I don’t believe that Google threatened to delete links to German news stories from Google News.  That certainly was one of its options if push came to shove.

Limiting access to content to those who pay for it may have its drawbacks.  Consider this story from paidContent.  It describes the pay-walled publication “The Magazine” available for iPad owners.  Authors are allowed to repost their contributions on their own sites after 30 days.  One author did and most of the response and discussion of that piece cited the author’s site rather than The Magazine.  The management is reconsidering how its pay wall works as it would have preferred that it got the benefit of the social sharing and discussion.  The realization is that people share what is easily available and ignore or minimize what is not.

Many commenters have pointed out that it’s hard to find a balance between free and paid to the point where one makes money.  I agree, though I think the threat of legislation mandating payment by aggregators will drive them to minimize their costs by limiting some sources in their listings – the push comes to shove option.  Google, Bing, Yahoo and others are not forced to link to anything.  Legislation of this type is not going to create that balance.  News is global, including items that would only get local coverage in another era.  There’s another story in paidContent that posits the idea there is almost an infinite supply of free content out there.  Google has the leverage here.

More coverage on these developments is in Spiegel Online (found through Google News) and Bloomberg Law.  The latter story indicates that the European Union intends to investigate if the legislation violates trade rules.  There’s a joke in there somewhere.  [MG]

From Ambulance Chasing Plaintiffs Lawyer to Former State Chief Justice, Saint Louis University Appoints New (and Not Interim) Law Dean

From the March 5, 2013 press release:

Following a national search, the Honorable Michael Wolff has been selected as the new dean for Saint Louis University School of Law, effective immediately. A current SLU LAW faculty member, Wolff brings an established record of leadership to his new role, having served 13 years on the Missouri Supreme Court and as its Chief Justice from 2005-2007.

(Emphasis added.)

And presumably less "politically incorrect" than the self-admitted "plain-spoken, ambulance chasing plaintiffs lawyer" interim dean who resigned on March 4th. See Interim SLU law dean says he resigned because of his big mouth; new dean is named by Debra Cassens Weiss (ABAJ News).

Are former interim deans eligible to serve on ABA accreditation site inspection teams? [JH]

The Boulder Conference Releases The COACh Template for Legal Research Instruction

Building on the foundation of the 2009 Boulder Statement on Legal Research Education and 2010 Boulder Statement on Legal Research Education: Signature Pedagogy Statement, the participants at the 2011 and 2012 Boulder Conferences on Legal Information have produced the COACh template to serve as a framework for legal research activity/lesson planning.

Using the theoretical foundations of the signature pedagogy, [Conference participants] constructed the template with the understanding that having a clear vision of objectives and outcomes will result in more freedom in teaching. ... The COACh template divides each activity/lesson plan into three areas for consideration: Context and Objectives; Activity; and Checklists for teacher notes and reflections. These areas for consideration are meant to provide guidelines and suggestions and aid teachers in changing their instructional approaches based on the signature pedagogy.

Download The COACh Template for details. The document includes four classroom teaching exemplars using the COACh template as a guide. Highly recommended. [JH]

ABA Proposes Revised Standards For Academic Law Libraries

A major snowstorm and a school early closing give me the opportunity to consider the proposed ABA standards revisions regarding academic law libraries.  There are at least two items that stand out.  One concerns the relative autonomy law school libraries have enjoyed in a university library system.  The common model has the library budget coming from the law school and the director reporting to the law school dean. 

The proposed revision still supports autonomy for the library:

Standard 602. ADMINISTRATION

(a) A law school shall have sufficient administrative autonomy to direct the growth and development of the law library and to control the use of its resources.

The revised interpretation, however, opens the door for the library for more accountability to the general university library system than under the current standard. Here are the changes to the Interpretation:

Interpretation 602-1

This Standard recognizes that substantial operating autonomy rests with the dean, the director of the law library and the faculty of a law school with regard to the operation of the law school library. The Standards require that decisions that materially affect the law library be enlightened by the needs of the law school’s educational program. This envisions law library participation in university library decisions that may affect the law library. While the preferred structure for administration of a law school library is one of law school administration, it is preferred that the law school administer the law library, a law school library may be administered as part of a general university library system if the dean, the director of the law library, and faculty of the law school are responsible for the determination of basic law library policies, priorities and funding levels requests.

I understand that a small number of law schools have integrated the administration of the law library as part of the larger university library system.  I can imagine some issues in this context.  One is whether a university acquisitions policy overrides that of a law school.  Faculty members at a law school never expect that a book request may need to be approved by another administrator who is not part of the law library, which is a possibility under this kind of arrangement.  Anyone who works in an academic law library knows how the law school administration tends to take money from the library accounts near the end of a budget cycle.  Now add a university library system to that equation.  One would think that part (d) of the proposed standard would protect the law library budget:

(d) The budget for the law library shall should be determined as part of, and administered in the same manner as, the law school budget.

I’m not sure how this would work as a sufficient safeguard in practical application.

The second major change concerns the collection.  Standard 606(a) recognizes that a library collection can consist in part with purely electronic access to core (primary) materials:

Standard 606. COLLECTION

(a)    The law library shall provide a core collection of essential materials accessible in the law library through ownership in the law library or reliable access. The choice of format and of ownership in the library or a particular means of reliable access for any type of material in the collection, including the core collection, shall effectively support the law school’s curricular, scholarly, and service programs and objectives, and the role of the library in preparing students for effective, ethical, and responsible participation in the legal profession.

I’m assuming that reliable access includes sources such as Lexis, Westlaw, Hein Online, BNA, and others.  It’s not to say that libraries haven’t transitioned to electronic access to some items, but there is an awful lot of redundant print that eats at a library budget.  I can easily see print versions of law reviews disappearing with or without this revised standard in place.  Joe writes a lot about the “Shed West” era in law libraries.  I think he’ll see a major acceleration if “reliable access” means Westlaw via text and PDF copies of reported cases and other materials.  Shall we start dumping very expensive reporters?  That would likely affect legal writing programs.  At the same time, what skills are we teaching that require such an extensive and expensive collection of redundant print?  Think of the shelf space savings in addition to the cash. 

One of the major resource fights between libraries and legal writing programs concerns citators.  Legal writing programs like print to teach how Shepard’s Citations work.  The new proposed standard 606(b)(8) changes the necessity to keep Shepard’s print volumes:

(b) Interpretation 606-5 A law library core collection shall include the following:

*    *    *    *

(8) those tools, such as citators and periodical indexes, necessary to identify primary and secondary legal information and update primary legal information.

Goodbye Shepard’s in print.  Goodbye Current Law Index.  Hello LegalTrac, Shepard’s online, KeyCite, Bloomberg Citator and others.  Even Google Scholar’s limited free citator has some value.  Whenever I’ve taught advanced legal research I’ve cautioned my students to avoid Shepard’s in print if at all possible.  I’ll ask again, what skills are we teaching?  I think in these days of BYOD (bring your own device) where students  more or less have access to law school subsidized subscriptions it would be a welcome change to emphasize the electronic versions of some of these resources over print when they are functionally better.  The fact that law schools can offer some on site database access to alums (Lexis Academic includes Shepard’s, for example) doesn’t mean access to these services has to end at graduation.  Law schools love staying in contact with alums.  Making the library and its online resources available is one way to do that.

The full set of proposed changes (so far) to chapters 6 and 7 of the standards is here.  More explanatory material is here.  [MG]

An Update on the Curious Case of Edwin Mellen Press

Yesterday The Chronicle 's Wired Campus blog reported that Edwin Mellen Press was dropping its libel lawsuit against Dale Askey. [LLB coverage and commentary]. From the Chronicle's post:

“The financial pressure of the social-media campaign and pressure on authors is severe,” Edwin Mellen Press said in a news release issued on Monday. “EMP is a small company. Therefore must choose to focus its resources on its business and serving its authors.”

In her Out of the Jungle post, Edwin Mellen Press Drops Suit Against Librarian Blogger, about this development Betsy McKenzie observed

The Edwin Mellen Press had come under a great deal of negative press and criticism from bloggers and academic organizations and authors for this lawsuit. It had been pointed out that this was a second time the press had engaged in a similar lawsuit apparently designed to silence criticism. #freedaleaskey is the Twitter hashtag for commentary on the lawsuit, and a good search to look for criticism, though simply searching "Edwin Mellen Press" will also turn up a lot.

See Askey's Feb. 21, 2013 Thank you for the support post for the identity of associations and others who were speaking out against the legal action taken by Edwin Mellen Press. For example, over 2,000 people signed this petition that stated in part:

[I]t is time for professors and others who are concerned about the free exchange of ideas about the quality of academic presses to petition Edwin Mellen to drop the lawsuit. The press can only further harm its reputation by playing the bully in this matter. A far better response to a critical assessment of the quality of its publications would be for the Edwin Mellen Press to step up its efforts to build a solid reputation in academic circles.

The Wired Campus post also reported that last Friday the Canadian Association of University Teachers announced McMaster University, Askey's current employer, was going to pay his legal expenses. Before that decision Askey was covering his own legal expenses.

NB: According to The Chronicle's report It is unclear whether the publishing house's founder, Herbert W. Richardson, will drop his lawsuit against Askey for remarks published in comments to posts published on Askey's blog, The Bibliobrary. [JH]

The Latest From The LSAC on Law School Applications

Still not good, not that anyone was expecting a major improvement over past weeks:

As of 02/22/13, there are 288,718 Fall 2013 applications submitted by 41,010 applicants. Applicants are down 18.4% and applications are down 21.8% from 2012.

Last year at this time, we had 74% of the preliminary final applicant count.  Last year at this time, we had 79% of the preliminary final application count.

See the charts here. [MG]

Supreme Court Action: Interpreting The Federal Tort Claims Act

The Supreme Court issued one opinion this morning.  That case is Levin v. United States (11-1351).  It concerns provisions of the Federal Tort Claims Act (FTCA) and how they interact with other statutes to determine whether the United States could be subject to suit for medical malpractice by a military doctor.  Levin sued the United States for battery (among other counts) as a result of a bad outcome for cataract surgery performed by a Navy doctor.  Levin orally withdrew his consent to perform the surgery just before the operation took place, though it was performed anyway.  The FTCA waives government immunity to suite but includes a series of exceptions for intentional torts, one of which is for battery.  The exceptions did not immunize federal employees from lawsuits or personal liability.

Congress passed subsequent statutes that clarified the law including the Gonzalez Act which precluded personal liability and made the United States the object of any remedies sought.  The Gonzalez Act as codified at §1089(e) states that the FTCA intentional tort exceptions do not apply “to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions.”  Congress later enacted the Federal Employees Liability Reform Act to provide for comprehensive protection from suit against federal employees regardless of agency.

The District Court substituted the United States as the sole defendant in Levin’s battery suit against the military doctor.  The Government moved to dismiss the suit based on the FTCA’s intentional torts exception.  The District Court granted the motion and the Ninth Circuit affirmed holding that the language of the Gonzalez Act merely affirmed the immunity provided to government agents and did not abrogate the FTCA exceptions.

The Supreme Court reversed, holding that the words of the statute are clear.  The Court examined the statute as a whole and found language indeed applies to the FTCA exceptions.  The Government had argued that the Liability Reform Act displaced the Gonzalez Act.  However, this was the opposite of arguments made to and accepted by the Court in an earlier case.  The Court ordered the suit returned to the lower courts.  Justice Ginsburg delivered the opinion for a unanimous Court with Justice Scalia declining to join footnotes 6 and 7.  They referred to documents that are parts of legislative history.  [MG]

Open States: A non-profit, non-partisan public resource for monitoring state legislative activity

"If you're interested in your state lawmaker, you'll be able to get notifications for their actions, a map of their district, voting records, committee assignments, campaign finance records from Influence Explorer, local news articles and contact information. If you're curious about a particular piece of legislation, Open States allows you to check on its status, find the sponsors, break down votes, view bill text and all supporting documents. Our powerful search capabilities allow you to find similar topics across states and view overview pages for each state, chamber and committee." --- Nicko Margolies, Open States: Find and Follow Your State Capitol (Sunlight Foundation Blog, Feb. 14, 2013)

In February of 2009, the Sunlight Foundation announced that its next big goal was "The Fifty State Project." The objective was to provide the same sort of access to legislative data and related information OpenCongress did but for all 50 states from one website. Not an easy task but the Foundation stayed the course. Last month the Sunlight Foundation announced the launch of the full Open States site.

After more than four years of work from volunteers and a full-time team here at Sunlight we're immensely proud to launch the full Open States site with searchable legislative data for all 50 states, D.C. and Puerto Rico. Open States is the only comprehensive database of activities from all state capitols that makes it easy to find your state lawmaker, review their votes, search for legislation, track bills and much more.

Let's add that Open States data is available for bulk downloading.

Give Open States a test drive. Some may want to toss it into an ALR lecture on researching state legislation. Others may want to add the resource as an alternative to very expensive research offerings for monitoring state legislation. And some may even want to experiment with repurposing the data made available by bulk downloads. For an introductory tutorial, see Exploring State Legislative Data.

Just as OpenCongress has evolved since 2009, my hunch is Open States also will. [JH]