Law Librarian Blog

New CRS Report on Private Laws: Too late for this year's ALR courses but, hopefully, CRS reports are assigned readings for them

From the summary of Procedural Analysis of Private Laws Enacted: 1986-2013 (RS22450, April 9, 2013):

Between 1986 and 2013 (99th-113th Congresses), 170 private laws were enacted. As of this writing, no private laws have been enacted in the 113th Congress (2013-2014). Most private laws during this period dealt with immigration issues or claims against the government. Of these measures, 65% originated in the House, 9% had cosponsors, and 23% had companion bills. Most were enacted without amendment or need to resolve differences with the other house. This report examines the broad distinctions among these measures in terms of their subject matter, introduction, sponsorship and cosponsorship, referral, method of consideration, amendment, and reconciling of differences between the chambers’ versions of the bill.

Yes, a little late for an ALR course reading assignment this year.  But not next year. Of course, I'm assuming (and hoping) ALR instructors are going beyond the textbook by assigning CRS reports that address executive, legislative and judiciary topics. Another recent example that I believe would be appropriate is The Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress (March 8, 2013; R41933) (Featured on LLB here.) [JH]

Joining the Major Leagues: Institutionalizing BLaw into the Law School Setting

BLaw started making its aggressive push into the academic market last year. Mark wrote in BLaw Makes Its Push Into Law Schools (LLB, April 23, 2012):

The offer to schools is interesting to say the least. Any school that subscribes to the BNA Premier Service will receive a significant discount on their subscription charge and free access to Bloomberg Law. That discount can be in tens of thousands of dollars for an acknowledged high quality legal database.  What Bloomberg asks in return, is parity with the way other electronic legal research services are treated at law schools.

By parity, Bloomberg Law wanted student exposure to and instruction in its online research services similar to the treatment given to WEXIS in law schools. In Bloomberg Law and the Quest for Parity, CRIV Sheet, May 2013, at 3, Lee Sims (Rutgers-Newark Law Library) commented

If we are not adding BLaw, as well as Loislaw, Casemaker, and EDGAR, to whatever we are teaching, we are not providing our students with tools they need to be successful graduates. And this was a point on which everyone I surveyed seemed to agree: to prepare students for the current legal research environment, we have the obligation to expose them to as many resources as possible. If those resources include BLaw, so be it.

[JH]

Friday Fun: Preparing the Final Exam for Legal Research Skills

Getting ready to prepare the final exam for testing legal research skill sets? Typical, atypical, extreme (my favorite) and practical approaches are reviewed in this video. [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

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]

AALL RIPS Issues Call for Book Reviewers

Since the last time the Research Instruction Committee of RIPS issued a call for voluneers to review new legal research textbooks, about 10 new books or editions have been published. If interested, details and contact information in this RIPS Law Librarian Blog post. [JH]

Experimenting with Experiential Learning in Legal Research Instruction

The fundamental legal research skills students need to master have not changed despite recent platform changes and generational shift but the habits of today's connected law school students can be integrated in teaching legal research in a positive way. See Cindy Guyer's (USC Gould School of Law) recently SSRN-post article, Experiential Learning: Context and Connections for Legal Research – A Case Study. Here's the abstract:

The ABA requires that all law students receive “substantial instruction” in legal research. This article discusses a unique legal research program that meets this requirement by focusing on experiential learning. Two components of experiential learning, context and connections, are explained pedagogically and specifically as to legal research curriculum.

Recommended. [JH]

What Do You Think of Congress.gov?

Here's what Matthew Mantel thinks of the beta replacement for Thomas, New is Not Always Better -- It's Just New: Legislative Research edition, on Nota Bene.

End note. For those "how a bill becomes a law" lectures, see The Legislative Process mini-webinars hosted on Congress.gov for student assignments. [JH]

Sourcing Records on the US Constitution for Evaluating Original Intent Claims

In the "now for something completely relevant" category to the dustup between Scalia and Posner about Reading Law (2012), Gregory Maggs, Professor of Law and Co-director of the National Security and U.S. Foreign Relations Law Program at George Washington University Law School, has added a third installment in his series on sources of the original meaning of the Constitution. From the abstract of A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution [SSRN], 81 Geo. Wash. L. Rev. (forthcoming 2012):

The article describes the Constitutional Convention and the various kinds of records that were kept of its proceedings. The essay then explains, with examples, how judicial opinions and academic works draw upon the records for evidence of the Constitution’s original meaning, including both the meaning that the Framers may have subjectively intended the document to have and also other possible meanings. The essay next identifies and assesses seven important potential grounds for impeaching assertions about what the records show. Each of these potential grounds has merit in some contexts, but all of them are also subject to significant limitations or counter arguments. The essay, accordingly, recommends that anyone making or evaluating claims about the original meaning of the Constitution should proceed with caution, carefully taking into account both the possible grounds for impeaching claims and the arguments against these grounds. Appendices to this essay include an annotated bibliography and a table of the deputies who participated at the Constitutional Convention.

Earlier articles in Maggs' highly recommended concise guide series:

A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007) [SSRN link] and

A Concise Guide to The Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457 [SSRN link]

Excellent additions to an ALR class reading list. [JH]

How to Find the Law: Another chapter in the publishing tradition of legal research and legal bibliography comes to a close

How to Find the Law in any of its many editions was never my favorite legal research and legal bibliography title. Effective Legal Research was but that pBook has been "history" for many, many years. Now too for what certainly deserves to be acknowledged as one of the standard works in the field, How to Find the Law.

"After much thought, Beth [Edinger] and I are letting Finding the Law go. The world of textbooks in general is in flux, but I do not see a role for a standard textbook on legal research in it. I continue to believe in the value of research instruction, but it will not come via the standard printed textbook. That day is gone." -- Bob Berring.

For much more see Bob Berring's Finding the Law R.I.P. on Slaw.

Is finding the law by way of expert texts also dead? So who is going to be the brave soul to write the first fully enhanced -- not slanted to any one vendor's e-resources by limiting embedded links to in-house services and including stable open law links -- and regularly updated legal research and bibliography eBook? Professionally, I believe there remains a need for one. If interested, don't, however, pitch the idea to the publisher of How to Find the Law. That day is gone for Thomson Reuters' legal education publishing strategy. [JH]

Freeing CRS Reports

Using the recently published CRS report entitled Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff (RL33895 August 31, 2012) as a jump-off, AALL's Washington Blawg issues a reminder to contact your representative because

[t]he House Administration Committee is poised to consider H.Res. 727, the Congressional Research Service Electronic Accessibility Resolution of 2012, which would make CRS reports available online in a free, public database. It’s likely the bill could come to a vote in the lame duck session.

The Washington Blawg post illustrates the differences in information access available through the Congressional Legislative Information System and THOMAS by quoting from Free Government Information's Comparing LIS and Thomas post.

Both FGI's post and the CRS report are recommended for legal research instructional purposes. While the CRS report does reference some non-government resources, I'm still scratching my head over why the very well established OpenCongress is not listed while GovTrack is for federal bill tracking. [JH]

Call for Suggestions for the Fifth Edition of Volokh's Academic Legal Writing

The call was recently issued by the author, UCLA Law prof Eugene Volokh on The Volokh Conspiracy. Volokh's Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review includes legal research advice. Academic law librarians who have a copy of the fourth edition which was published in 2010 might want to give it a look-see for making updating recommendations.

Here's the blurb for the fourth edition:

Designed to help law students write and publish articles, this text provides detailed instructions for every aspect of the law school writing, research, and publication process. Topics covered include law review articles and student notes, seminar term papers, how to shift from research to writing, cite-checking others work, publishing, and publicizing written works. The book helps law students and everyone else involved in academic legal writing: professors save time and effort communicating basic points to students; law schools satisfy the American Bar Association's second- and third-year writing requirements; and law reviews receive better notes from their staff. The Fourth Edition adds examples drawn from successful student notes, coupled with detailed explanations of what makes the examples effective, and how they could have been made still more effective. It also elaborates further on how one can research a topic more comprehensively than many students do, both by finding a broader range of examples and applications, and by investigating the key cases more deeply.

Volok's Academic Legal Writing is or should be in every academic law library collection. [JH]

"Partisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court."

The author of the quote used in this post's title (emphasis in the original), UC Irvine law prof Richard Hasen, adds "[i]n its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. For more about the consequences and implications of congressional gridlock, see Hasen's End of the Dialogue? Political Polarization, the Supreme Court, and Congress [SSRN].

Here's the article's abstract:

This Article considers the likely effects of continued political polarization on the relative power of Congress and the Supreme Court. Polarization already is leading to an increase the power of the Court against Congress, whether or not the Justices affirmatively seek that additional power. The governing model of Congressional-Supreme Court relations is that the branches are in dialogue on statutory interpretation: Congress writes federal statutes, the Court interprets them, and Congress has the power to overrule the Court’s interpretations. The Court’s interpretive rules are premised upon this dialogic model, such as the rule that Supreme Court statutory interpretation precedents are subject to “super strong” stare decisis protection because Congress can always correct an errant court interpretation. Legislation scholars also write as though congressional overriding remains common.

In fact, in the last two decades the rate of Congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of 12 overrulings of Supreme Court cases in each two-year Congressional term during the 1975-1990 period to an average of 4.8 overrides for each term from 1991-2000 and to a mere 2.7 average number of overrides for each term from 2001-2012. Although some of the decline seems attributable to the lower volume of Supreme Court statutory interpretation decisions, the decline in overridings greatly outpaces this decline in cases. Instead, partisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court.

In its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. The two recent examples are the Military Commissions Act of 2006, in which Republicans overturned the Court’s statutory interpretation decision in Hamdan v. Rumsfeld on the habeas corpus rights of enemy combatants, and the Lilly Ledbetter Fair Pay Act of 2009, in which Democrats overturned the Court’s statutory interpretation decision in Ledbetter v. Goodyear Tire & Rubber Company on how to measure the statute of limitations period in certain employment discrimination lawsuits. In a highly polarized atmosphere and with Senate rules usually requiring 60 votes to change the status quo, the Court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation.

Although political polarization has benefited the Supreme Court’s power relative to Congress in the short term, the longer term power relations are more uncertain. Aside from the statutory interpretation dialogue, Congress interacts with the Supreme Court in other ways, including through Senate confirmation of Supreme Court judicial nominees. The recent partisan realignment of the Supreme Court makes it more likely that a Supreme Court judicial nominee will be filibustered in the Senate, thanks to the increasing willingness of Senators to oppose nominees on ideological grounds and increased partisan polarization in the Senate. The number of Senators from the opposing party of the nominating president voting against Supreme Court nominees is approaching or exceeding the filibuster level. Depending upon how the politics plays out in a possible filibuster of a Supreme Court judicial nominee, we may see either an erosion of the use of the filibuster in the Senate or a compromise which would weaken the power of the judiciary, such as term limits imposed upon future Supreme Court Justices.

Part I of this Article demonstrates that despite the model of Congress-Court dialogue, and Supreme Court statutory interpretation tools premised on dialogue, congressional overridings of Supreme Court statutory interpretation precedents have become exceedingly rare. The effect of this change is to empower the Court over Congress. Part II argues that the steep decline in overridings over the last two decades appears due in large part to increased polarization in Congress and not simply to a decline in the number of Supreme Court statutory interpretation cases. When Congress does override a Supreme Court case, it is now more likely to be a partisan overriding, pushed through in periods of unified government. Part III is more speculative. It considers how polarization in Congress and the partisan realignment of the Supreme Court — a Court in which all the conservative Justices are Republicans and all the liberal Justices are Democrats — may eventually lead to a major confrontation in Congress over the power of the Senate filibuster. That confrontation may leave the Senate, the Supreme Court, or both, looking very different than they are today. Furthermore, partisan realignment has the potential to harm the Supreme Court’s legitimacy in a way which we have not witnessed in modern times.

Recommended for consideration as a possible reading assignment in an advanced legal research course, particularly if the ALR course is being conducted this presidential election semester. [JH]

Gunner-Up 1Ls If You Want to Try to Transfer to Yale Law School Next Year

Oftentimes the profs who teach 1L doctrinal courses really like the subject matter. But sometimes they are teaching the course simply because they drew the short straw. Either way, the 1L doctrinal courses at most schools tend to be large lecture hall courses populated with some many students that the prof really doesn't get to know individual students very well (except for the gunners). The one exception in the 1L curriculum is 1L LWR courses when they are taught by legal skills profs (sometimes with the help of academic law librarians) who from my observation like teaching their courses despite being considered "second class" citizens in much of the legal academy.

Unlike 1L doctrinal courses, each year's LWR class prep takes a fair amount of dedication. New assignments crafted each year to avoid 1Ls "borrowing" 2Ls writing output from when they took the course. Class size tends to be much smaller, more typically section by section classes instead of combined sections for Con Law, Torts, Contracts, etc. That often means teaching loads may be higher. Interaction between LRW profs and individual students more frequent and more one-on-one. That often means more scheduled office hours than the typical prof teaching 1L doctrinal courses. Even, like OMG dude, interaction between the LRW profs and reference librarians during the semester to see if students are "getting it."

For students applying to transfer to another law school, a letter of recommendation from a legal skills prof would seem to be a logical choice because their profs tend to know something about the student's academic ability. On the other hand, a 1L doctrinal law prof might not even recognize the student without the memory aid of a seating chart that includes the student's headshot (except, of course, the gunners).

Well, dear 1L, if you are thinking about applying to transfer to Yale School School next year it is best if you go with the illogical choice. In a much talked about official YLS blog post, Yale Associate Dean of Admissions, Asha Rangappa, advises against having a LRW prof submit a letter of recommendation on your behalf unless it is tossed in as a third letter. Frankly, it sounds like that third letter won't be taken into consideration because only two letters are required. My hunch is that if a student tosses in a fourth letter from an academic law librarian who is involved in teaching the research component (and helping with the research assignments) it won't be read.

Dean Rangappa writes:

[One] part of your [transfer] application that is going to carry a significant amount of weight is your law school recommendations (we require two).  We use these references to place your grades in context and also to determine what kind of student you are.  A common mistake on this front is to make one of your two required recommendations from a legal writing instructor -- most students do this because they've usually had much more one-on-one interaction with their legal writing instructor than with their other professors, and so the instructor usually knows them well.  There's nothing wrong with this per se, but the Admissions Committee generally likes to have at least two letters from one of your first year core subject area professors, who can speak to your ability to keep up with the subject material, contribute to class discussion, and think through difficult concepts (a third letter from your legal writing instructor is fine).

Compared to the still prevalent Socratic method of teaching 1L doctrinal courses, one would think that this holy trinity of Yale's criteria -- (1) ability to keep up with the subject material; (2) contribute to class discussion; and (3) think through difficult concepts -- is better assessed by LRW profs. It is pretty damn difficult to teach legal writing and research without also teaching some doctrinal law in some specificity which is typically performed by LRW profs who have graduated from law school (except at Yale where apparently 3Ls teach LRW to 1Ls).

I've always found teaching LRW in the first year to be less than the optimal time for the subject because students come unprepared with little or no understanding of legal terminology, legal reasoning and legal doctrine. LRW profs have to cover this ground in order to teach legal drafting. So, why Isn't, for example, the evidence of "think[ing] through difficult concepts" best demostrated by being able write a well-reasoned analysis of an issue as evaluated by a LRW prof? I would think that is better evidence than spoon-feeding Black Letter law by way Socratic Method class "discussions" and the not atypical use of multi-choice questions found in 1L doctrinal law final exams to test what a 1L has learned.

Perhaps Yale's advice about recommended sources for letters of recommendations says something about the quality of the LRW program at YLS. Can it also be expressive of an institutional myopia about how 1L doctrinal courses are taught at law schools that admit more 1Ls than Yale does?

Luckily, Dean Rangappa's advice was published at the beginning of this academic year. So 1Ls, if you are thinking about trying to transfer to Yale, better gunner-up now. Oh, BTW, it doesn't hurt your prospects if one (or both) of your letters of recommendations is authored by a YLS grad "who as you probably know are ubiquitous in the legal academy" unless the YLS grad teaches legal writing and research. [JH]

For more about the YLS kerfuffle, see the following samples from the law prof blogosphere:

• YLS Admissions Blog: Unapologetically Elitist
• In Defense of Legal Writing Teachers
• Legal Writing Professors' Letter to Yale Law School Administration

A Reference Desk Perspective on the Quality of Content Farm Information

From the abstract of R. Lee Sims and Roberta Munoz's The Long Tail of Legal Information: Legal Reference Service in the Age of the Content Farm, 104 LLJ 411 (2012):

The authors discuss the implications for legal reference service of a new feature of the legal information universe: the content farm. This article describes the content farm, its workings, what makes it profitable, and the market and informational forces that drive content farm creation. It also discusses how reference interactions may be altered if a patron has consulted content farm information before coming to the reference desk.

Recommended. [JH]

Another day behind the yellow curtain.

Let's face it, legal researchers tend to be neurotic. To the less experienced researcher, there is always a legal answer which exists, and that answer can be found; it can be found by looking into the past, answered in case law. (My supposition is that the casebook method employed in law school belies a large part of the problem. After all, in a law school class, the answers tend to be found within the readings or extrapolated from the readings.) Often there is the inception of a sometimes debilitating idea that if a court in one jurisdiction has held something, a court in my jurisdiction must have held the very same -"the issue must have been raised here if it was raised there. It must exist. It has to!"

Every summer, a law student emails or calls me asking me to work my wizardly ways, i.e., find something that does not exist. The request usually comes in one of two forms. The first form of the inquiry usually looks something like this:  "I'm looking for the legislative history of a state statute and I can't find anything." On its face, there is nothing really wrong with this request. In fact, I am often pleased to see that a former student remembered that resorting to legislative history is often a valid method to search for legislative intent. More often, however, the student forgets that in certain states (like Tennessee) it is extremely unlikely that any meaningful legislative history exists. (In Tennessee, apart from the bill, the only pieces of legislative history that tends to exist are the actual recordings of floor debates, and this is more often a rare case. And the only way to acquire the statements on the floor is to have a librarian at the Statehouse determine whether any legislative history exists and if so have her send copies of the recordings themselves - never transcripts of the recordings.) I explain this fact to the student every time. The response is often, "But it must exist. Isn't it somewhere on Westlaw?" I sigh.

The second form of the request to conjure law from the dust is more unnerving, but the frustration is exacerbated when I failed to conduct a proper reference interview. The form of this request usually begins with, "I need to find a case that says. . . " Again, on its face, there is nothing really problematic about the question. The problem is that what the student means is, "I have searched far and wide to find a case that holds X. I cannot find it but it must exist; otherwise I wouldn' be looking for it." The frustration is exacerabated by the failed reference interview when I later learn what the student means is, "I have searched far and wide to find a case that holds X. I have found numerous cases that have held the opposite of X (perhaps one even decided by the relevant court of last resort in the last couple years) but I need one to say X. It must exist. I know it exists because I need it." Sometimes there is a variation on the situation where the student explains, "The lawyer I am working for says that he knows that holding X exists."(Well, it must exist then. For as soon as one is admitted to practice, one can never err, right?) The termination of many of these conversations often ends in the sound of a defeated law student when they have looked behind the yellow curtain and realized that I am not, in fact, a wizard.

There was a time that I tried to teach the lesson that legal researchers are not wizards by giving them a research exercise where the answer does not exist in the way one would expect. It is the Jailbird question, where, in the end, the answer is, "zero." I will create one right here:

Between 1803 to 1813, how many lower court decisions were upheld by the State of California's court of last resort?

It seems like a somewhat daunting question until you realize that there couldn't be any dispositions affirming lower court decisions in the State of California during that period as California was not yet a state. I stopped asking any such questions as some colleagues though them to be cruel. However, they are not cruel; they merely require critical thinking.

And critical thinking must be fostered in law schools. Law students must learn that an answer cannot always be found within the volume of a reporter. And instead of a law student sounding defeated after peering behind the yellow curtain, there should be joy in his voice as the lack of precedent provides for the opportunity to - wait for it - make an original argument. And if no legitimate original argument can be made, then the logical consequences must follow.

I hope to one day see the names of these students listed as the attorneys in the cases contained in future reporter volumes, to see them as a part of the great chain of change that is American law. In the meantime, I am more than willing to let them peer behind the yellow curtain to see that I am not the conjuror that they can be.

 

Now You See It, Now You Don't, Part II: The Coming Vaporization of Classic WEXIS

In Part I of this series, I mentioned that in the commercial space for caselaw research Fastcase's SE is competitive. A very strong case can be made that under the New Normal, Fastcase is the "smarter alternative." The argument, however, would not be based on the algorithm. It is a smarter alternative because the Company provides sufficient information for professional legal researchers (ah, that would be us) to understand how the SE works in the context of the Fastcase platform so we can assist our institutional user populations.

Fastcase does that by a number of means but the means I like best are video tutorials created by professional legal researchers (you know, us) who are not employees of Fastcase. See Fresh Batch of Fastcase Video Tutorials Courtesy of the Jenkins Law Library (Fastcase blog post, Oct. 2011(?)). From Creating Video Tutorials of Today's Online Search Services: The example of Fastcase endorsing best practice videos authored by law librarians (Nov. 7, 2011):

I'm thinking the folks at WestlawNext, Lexis Advance, Bloomberg Law and IntelliConnect might learn something about providing law librarian created video tutorials of their very expensive online legal search services that are not tainted by their marketing departments. My hunch is there are law librarians "out there" willing to do this for free (except for waiver of any search charges) to help fill in the huge gaping hole in reliable instructional materials for those new search services.

The vaporization of Classic WEXIS is coming. We all know that. So far, I have not seen one shred of evidence from either vendor that they realize when it comes to their new SEs the only competitive advantage lies in whichever vendor is the first to provide detailed information about how their SE really works because search engines do not sell online legal search service. Selling the "sizzle" has produced less than stellar adoption rates for WLN's premium priced butt steak. Butt steaks can be a tender piece of meat if cooked properly. That, however, may require more imagination than practitioners of Six Sigma culinary arts have.

To date, all print and video instructional materials I have seen produced by New WEXIS are providing a less than fulfilling UserX training experience. (I initially wrote "are crap;" not a bad food-for-the-mind metaphor.) The consequence --

From the "UserX: Then & Now, The New Normal of WEXIS Online Legal Search" introduction I will be giving at our Lexis Advance training session to my Lexis users by my Lexis account rep later this week. At least I gave my account rep a heads-up by providing the complete stack to her a week in advance.

No WLN training session on the horizon unless all my Classic Westlaw account holders get WLN free for the duration of our current license like right now, just like Lexis provides for Lexis Advance. No level playing field if Thomson Reuters doesn't do this; advantage goes to Lexis Advance. The alternative, perhaps I can obtain free access to Lexis Advance for my Classic Westlaw users soon.

"Free" is a very good business tactic when rolling out a New Normal research platform if a vendor wants to retain current and extend user populations to move beyond the 1:1 ratio. It is no coincidence that my WEXIS licenses come up for renewal right about the same time. While I don't know when either WEXIS vendor intends to vaporize their classic services, I doubt I will have the opportunity to renew (read renegotiate) more than one more multi-year license before hearing Old WEXIS has been vaporized.

I've been in the business of full-text legal database researching since 1980. I've seen my share of WEXIS changes but I have never in my career seen WEXIS make as huge a collective goof as this one. Classic WEXIS users typically were averse to changing from one service to the other in no small part because they knew how to use their familiar platform -- from the interface generally to knowing how to find their databases before performing a search and how to modify their searches when poor results were produced. There was enough of a difference between services that users did not want to remove their protective snuggy.

The gain-loss ratio for licenses approaches 1:1 for Classic WEXIS; lose one client, acquire a new client. Because "customers wanted it" (meaning because WEXIS wanted to improve the 1:1 ratio to their own advantage), both vendors crafted the Google-inspired "search first, then filter by displayed options" for the now normal New WEXIS platform. But what did this collective WEXIS mindset really produce? My presentation's last slide:

By "and tools matters," I do not mean search engines but I do include instructional materials. "Editorial" means produced by intelligent human beings with demonstrated expertise in the law. It also means demonstrated expertise in legal research that extends well beyond the myopic world of the vendor's product line. [JH]

Berring on BLaw: The transfer of research skills acquired in law school based on WEXIS next gen current gen's platforms to the BLaw platform at law firms will be easy.

Just a quick snip from Bob Berring's recent post on Slaw:

Bloomberg is going for the law firms, not the law students. Its search engine is snazzy. Now that WESTLAW and LEXIS have created interfaces that resemble Google, everyone might meet on the same ground in appealing to the new law student who begins to research. Skills imparted by the LEXIS and WESTLAW reps will transfer easily. The reality of the bottom line in law firms may mean that students will be asked to port the skills learned on the other systems to the newly christened BLAW.

Bloomberg is big enough, with smart enough management, to pull this off. If they do, it may spell the end for one of the old systems. Large law firms may stick with one of the old standbys and add in Bloomberg, or maybe, after enough credibility has been built up, maybe just Bloomberg.

For much more, see Bloomberg Law: The Wheel Turns.

The New Normal of the Very Similar User Experience. While there are some very substantial differences in the mystical ways WEXIS' new SEs work, once Classic Westlaw and Classic Lexis are killed, students will only be exposed to the coming status quo of WEXIS platforms that produce very similar user experiences. Berring may have a point that one unintended consequence is that WEXIS research skills training in law school (and elsewhere) will be readily transferable to BLaw in the real world.

Oops. Well, search engines do not sell online legal search services. Content does. Are we about to see some content-driven competiton in online legal search? If so, high quality editorial content will trump low quality editorial content if priced right.

I don't know if BLaw intends to put boots on the grounds of the law school campus for student training indoctrination purposes. Perhaps, the Company will let WEXIS school reps do that for them. [JH]

BLaw Makes Its Push Into Law Schools

Bloomberg Law is making an aggressive push into the academic market.  The offer to schools is interesting to say the least.  Any school that subscribes to the BNA Premier Service will receive a significant discount on their subscription charge and free access to Bloomberg Law.  That discount can be in tens of thousands of dollars for an acknowledged high quality legal database.  What Bloomberg asks in return, is parity with the way other electronic legal research services are treated at law schools.  This general statement is from the promotional literature provided by Bloomberg Law lays out what it wants from law schools:

• Provide Bloomberg Law with information necessary to register each eligible individual user.
• Incorporate Bloomberg Law into the first-year legal research and writing curriculum.
• Assist Bloomberg Law in providing ongoing training opportunities consistent with other full-service online legal research services.
• Market and advertise Bloomberg Law and training opportunities and resources to market Bloomberg Law consistent with other full-service online research providers.
• Permit Bloomberg Law to recruit student representatives.

Requirements listed above to be provided in a manner that is no less favorable to Bloomberg than the manner provided to other full-service online legal research services.  The reduced pricing on your Bloomberg BNA contract is contingent upon maintaining this agreement with Bloomberg Law.

Some of these requirements as stated above are getting some buzz in the academic law library community.  The first requirement has raised concerns about schools complying with the Family Educational Rights and Privacy Act (FERPA).  I’ll just mention in passing that we sign up students to Lexis and Westlaw without any FERPA problems.  Bloomberg has indicated that it would be flexible enough to deal with students and schools so that FERPA compliance is not an issue.

Incorporating Bloomberg Law into the first-year legal research and writing curriculum raises initial questions.  This comes from the fact that schools vary greatly in how they position electronic legal research in the first year curriculum, or in law school generally.  Bloomberg understands this.  Company representatives came to my school last Thursday and clarified that the statement means a school should provide equal treatment to Bloomberg in the curriculum compared to Lexis and Westlaw.  The qualifying statement immediately following the bullet points above sort of says that.  I’d be more interested in seeing the actual contract for service as it will contain the real terms and obligations of the parties.  In the meantime, anyone with doubts to the meaning of integration within the curriculum should ask a Bloomberg representative to fully explain this language.

A few other points came out at the meeting.  Unlike Lexis and Westlaw, Bloomberg is not providing free printing options for students and faculty, at least as of now.  I’m not sure this is much of a problem.  There are opportunities for students to save on the system and share with other Bloomberg Law users.  My own personal feeling is that some students print excessively on Lexis and Westlaw simply because they can.  There may be grumbling at a lack of this option, but I see the upside as less paper waste. 

On the other hand, the students get something valuable that Lexis and Westlaw regularly deny them, and that is the ability to use their Bloomberg Law IDs for outside work without violating ethical rules.  I had to stop the Bloomberg representative from continuing because I couldn’t believe what I was hearing.  To clarify, a student possessing a Bloomberg ID can use that ID for research if he or she is clerking for an outside firm or as a summer associate.  I think this is a shrewd move on the part of Bloomberg.  It promotes the use of the service for students in real life research situations and it gets the service some visibility in law offices that may be potential customers in the future.  The ability to use the ID may make students more attractive as hires for outside work.

I’ve been using Bloomberg Law for almost two years.  Personally, I like it a lot.  It’s a different kind of research service.  All the primary stuff is there, but the initial focus is on the news and current awareness.  That probably comes from the experience on the business side.  As a self-professed news junkie, it gives me a reason to log into Bloomberg Law regularly.  I can’t say that the current Lexis and Westlaw interfaces encourage that.  I like the fact that Bloomberg articles tend to include relevant documents as attachments when they are available.  The business research materials are an added bonus in this age of information convergence.    

The docket feature is a real alternative to PACER.  We regularly retrieve documents from PACER for law review members and research assistants.  Here’s an opportunity for self-help.  The fact that Bloomberg is developing their own version of a state-based PACER system is attractive for some research situations.  Other features include an electronic citator and a growing body of secondary sources.  Bloomberg may not have the list of publications available on Lexis or Westlaw, but the purchase and integration of BNA shows the company is aggressive about competing in the electronic legal research market.  I can only wonder what’s next.

Let me theorize for a moment.  Everyone is going social.  I’m surprised Lexis or Westlaw hasn’t developed the West Legal Directory or Martindale Hubbell into social sites where lawyers and students can hang out.  Bloomberg could easily extend its current awareness emphasis to crowd-sourced interactive sharing.  Either that or it could buy LinkedIn and integrate it into the service.  As much as I decline to actively participate in social networking services online, I could easily see this evolving to give students and lawyers a reason to log into a research service beyond getting documents.

If any of this seems a bit too effusive, I’m drawn to the deal Bloomberg is offering compared to the benefits for students and the less expensive access to BNA.  The substance is certainly there as a viable research service.  Bloomberg is definitely is a change from Lexis and Westlaw.  I hope the two competitors react to this.  Neither company has leveraged their secondary publications side in deals as aggressively as Bloomberg has with BNA.  There was a time when Lexis and Westlaw competed heavily with each other in the law school market.  Now it’s just tee shirts and cups, if that, and I'm sure we all have plenty by now.  I don’t know if Bloomberg is going to succeed in law schools.  It sure will make the competition interesting.  [MG]