Law Librarian Blog

Does the President Have Directive Authority Over Agency Regulatory Decisions?

I think I would add Maryland law prot Robert V. Percival's Who's in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions? [SSRN] 79 Fordham Law Review 2487 (2011) to the reading list for an ALR course. Here's the abstract:

After describing three principal views on whether the President has directive authority, this Article discusses the constitutional foundations of this debate. It then reviews the history of presidential oversight of agencies and its implications for the debate over directive authority. The Article concludes by explaining why, even if the President has unfettered removal authority over the heads of non-independent agencies, it matters that this removal power does not imply the power to control decision making entrusted by law to agency heads.

[JH]

SCOTUS Justices on the Language of Law: Advocacy and Legal Writing (and by Implication Legal Research, Too)

On Legal Writing Prof Blog, Judith D. Fischer (Louisville) writes:

The latest issue of the Scribes Journal of Legal Writing (Volume 13) is a gold mine of Supreme Court justices’ observations about brief writing and oral argument. Several years ago, legal writing expert Bryan Garner conducted video interviews with eight justices. Garner graciously posted these videos on line, and many law professors have taken advantage of their availability. ... Now the interviews are in print. Nearly two hundred pages of nuggets about writing grace the current issue of Scribes.

Yes, 200 pages (and I've just started reading) but, so far, the Scribes issue is well worth the time, even if you have watched Garner's videos of the interviews. Since CJ Roberts once lectured law school students about the "copy and paste" mentality that evidenced no real understanding of the legal issues presented in SCOTUS briefs (!), here's a snip from the Roberts (JGR) - Garnder (BAG) interview as published in Scribes:

JGR: Language is the central tool of our trade. You know, when we’re looking at a statute, trying to figure out what it means, we’re relying on the language. When we’re construing the Constitution, we’re looking at words. Those are the building blocks of the law. And so if we’re not fastidious, as you put it, with language, it dilutes the effectiveness and clarity of the law. And so I think it’s vitally important — whether it’s a lawyer arguing a case and trying to explain his position, whether it’s a legislator writing a law, whether it’s a judge trying to construe it. At every stage, the more careful they are with their language, I think, the better job they’re going to do in capturing in those words exactly what they want the law to do; in persuading a judge how to interpret it; and as a judge, in giving a good, clear explanation of what the law is.

BAG: Do you think the profession could do better on that score?

JGR: Yes. I think we all can do better. We read hundreds, thousands, thousands of briefs in the course of a year at the Supreme Court, and some are more effective than others. And it’s just a different experience when you pick up a wellwritten brief: you kind of get a little bit swept along with the argument, and you can deal with it more clearly, rather than trying to hack through . . . it’s almost like hacking through a jungle with a machete to try to get to the point. You expend all your energy trying to figure out what the argument is, as opposed to putting your arms around it and seeing if it works.

Since the result of legal research is supposed to produce effective legal writing and advocacy -- whether in briefs or oral arguments in litigation or legal memoranda or opinion letters advising clients -- I believe many moot court clinicial law profs and LRW and ALR profs can read between the lines to spot appearances of the disconnect between the legal research and effective legal writing and advocacy skills training, at least in the opinions of SCOTUS justices. Recommend reading ahead of the 2011-2012 academic year. [JH]

Brief and Directly to the Point: Advice to Law Students and New Grads on Achieving a Successful Transition to "Real World" Legal Research

While less than two pages long (single-spaced), BYU law librarian Shawn G. Nevers' Observations for Summer Research Success [SSRN] should be handed out to every summer clerk and new first year associate by law librarians who is now working with them. Nevers' Legal Research column for Student Lawyers (Vol. 39, No. 8, pp. 22-23, April 2011) hits the proverbial nail on its head, starting with the following two tips:

Tools. An important part of preparing yourself for research on the job is to understand the research tools available to you. Your employer simply can’t provide you with the wealth of legal resources offered by your law school library. Because of that, your research tools this summer will be limited in some way. Many law students get a bit squeamish when that becomes a reality.

Asking the right questions before you start your job can help you avoid some of that research-related indigestion. Does your employer use LexisNexis? Westlaw? WestlawNext? Something else? What content is covered in their Westlaw/Lexis subscription? Does your employer pay a flat fee for Westlaw/Lexis or will your research be charged by the search or by the minute? How are clients billed for research? What print sources are available? Knowing the answers to these and similar questions can help you prepare for the research tools you’ll be using this summer.

Research interview. Although you’re not really researching yet, a critical part of the research process occurs when you meet with a lawyer to receive a research project. I like to think of these meetings as a research interview of sorts. Don’t be afraid to ask questions and clarify the research task. There’s nothing worse than spending a lot of time researching the wrong issue. Getting things ironed out initially can spare you an additional trip to the lawyer’s office just for clarification.

Depending on the situation, you may also want to ask the lawyer to recommend a good place to start your research. She may be able to refer you right away to a treatise or another lawyer in the office that could save you valuable time.

Hat tip to Deborah Hackerson's Legal Skills Prof Blog post. Her post also offers sound advice for law students heading out to perform legal research in the "real world:"

I would add a plug for checking your law school library website and any research guides that may help point you to free resources you can incorporate into your research strategy.  Research guides prepared by your law librarians can also help you refresh your memory on how to research a particular topic.

Hackerson notes that "[s]ometimes I’ll even ask a 2L to come back and talk to my next group of 1Ls about his/her summer clerkship experience and how it relates to legal research." Great idea! [JH]

 

CRS Issues Legislative History Research Guide

From the summary of Legislative History Research: A Basic Guide (June 15, 2011):

This report provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources.

Hat tip to INFOdocket. [JH]

Following Successful Law School Student Indoctrination Practices: Time for Non-WEXIS Publishers to Seize the Moment Because the ROI May Be Substantial Now that Editorial Quality Matters

Editorial content quality now matters in the Shed West era of widespread cancellations. Thank you economic downturn and its resulting budget cuts for changing the traditional status quo inertia in collection development wherein we continued inherited collection development decisions made years and years, decades and decades, ago. Some institutions didn't question what, if any, value there was to renewing subscriptions or maintaining standing orders. This has been pervasive across all law library sectors but in the context of academic law library collection development policies and practices, bang for limited budget bucks has been trans-formative by way off collection re-balancing.

Will Vendors Other Than WEXIS See the 2011-2012 Academic Year as an Opportunity Just Waiting to Be Maximized? If premium legal vendors like BNA and CCH (hell, perhaps even Bloomberg Law) don't see this as an opportunity to follow law school indoctrination strategies that have been widely successful by WEXIS, they are missing one hellva a chance. They ought not assume that after the economy improves and law school budgets increase, academic law librarians will automatically re-subscribe to WEXIS print and online services even at discounted pricing. Word is that few law school students (and law faculty) are complaining all that much since cutbacks in traditional titles have been made. Out of sight, out of mind.

In Sight, in Mind. Times they have already changed. There are opportunities available now in the legal academy for legal publishers who have a long track record of publishing high quality content to "sell" their products and services to law students. Those vendors certainly include the likes of BNA and CCH but also include smaller legal publishers. It's one thing to provide cost breaks for the entire catalog of print and online products and services to law students. But that is not enough. In fact it is wasteful if vendors don't do what WEXIS has done for decades to expose and indoctrinate law school students namely, boots must be on the ground at law schools.

While optional ALR courses may feature some of these non-WEXIS titles in print and online services in the legal academy's courses, it has not yet been a focus of required 1L LRW courses and, worse, it is not reinforced by having student reps on hand and company instructors regularly available. A marketing strategy following such a course of action can convince law students that these once also-rans in law student indoctrination are now important because of the collection re-balancing that has taken place in academic law libraries and because these non-WEXIS products and services are what many law school students may find once they graduate.

Hopefully, the introduction to quality produces and services offered by non-WEXIS publishers will be institutionalized in the legal academy before law school grads face the realities of the "real world." It will require "boots on the ground" by these premium content vendors who so far haven't executed regular on-site representative programs designed to introduce (read addict law student). Why? It's damn expensive but the return on investment is worth it because quality now matters.

Boots on the Ground -- How? Perhaps this can be accomplished collectively -- think a rep and student rep regularly on site with the mission of introducing and educating law school students to "alternatives to WEXIS for legal research." I'm thinking something along the lines of independent manufactoring reps who pitch for multiple companies and typically get a 5-to-10% commission on sales. While the sales commission component is irrelevant for strategic law school indoctrination purposes, hiring and, of course, compensating some laid-off or retired professional law librarians as independent contractors to make regular visits to law schools and to offer training sessions to students for "points" like WEXIS law school reps is something non-WEXIS legal publishers collectively or individually ought to give serious consideration. This is not a sales rep function but it certain may increase sales in those instances where law grads introduced to such resources find them not available were they work but consider them essential to practicing law.

This is all about stimulating demand by investing corporate resources to call law school students attention to supply. Simply making products and services available in the legal academy at discounted costs is not enough. It has to be reinforced by having "boots on the ground" to educate law school students. Offering the occasional workshop hasn't and isn't going to product those results. Time for non-WEXIS legal vendors to seize the moment because WEXIS is vulnerable. [JH]

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]

The World of Actionable Actions, Part II: Addressing Vendor Inefficiencies Because Format and Quality Matters

I mentioned in January 2011 that I liked, in principle, what ALM was doing in the Company's systematic transformation from a traditional print-based publisher to a "digital-first" media and information provider in because I thought Law Journal Press Online was an interesting twist on law eBooks. It certainly is more innovative than current law eBook offerings from our major vendors. Since then, however, invoice-paying law librarians have spent a fair amount of time addessing format options for LJP titles. By fair amount I mean way too much time being spent because of LJP's inefficiencies.

Law library institutional buyers have been grappling with LJP's original marketing of their once print-only titles because the Company was initally providing only two options at renewal time for their updated treatises: (1) online only or (2) online and print only. The Company did respond to CRIV chair Rob Myers' communications that it would address and accomodate law librarians wanting print-only titles. At least LJP didn't respond to Myers like TR Legal did with its copyrighted response to format switcheroos:

We are comfortable that we capture enough customer, author, and editor feedback before any title undergoes a format change and are confident that this feedback effectively reflects customer preferences.

By way of LJP's response, Rob provided contact information for one LJP staffer tasked with this via AALL listservs. Doesn't help non-institutional LJP consumers dealing with this but that's SOP for AALL. Poor soul. The phone must have been ringing constantly from calls by invoice-paying law librarians; I tried several times and gave up after always getting a busy signal. I imagine this staffer's email in-box was filled to the max but I decided not to go that route. In the world of actionable actions, I started cancelling LJP titles as their individual renewal invoices appeared in my in-box. Appears than many others also did the same because I got a call from a LJP representative soon after my cancellations were communicated to the Company. I'm thinking LJP  may not have expected such a large number of negative reactions (read substantial numbers of institutional buyer cancellations) and decided to addess this by staffing up in response to that.

I have found LJP reps to be very helpful. After requesting and not receiving a list of current LJP subs to see if we and the Company were "on the same page" from "someone" at LJP customer services, I received a phone call and email for someone who was not 1-800-Nameless. Don't know if he is my personal account rep now or is one of many LJP customer service reps assigned to address law librarian issues but he has become my "go-to" during this transformation. He provided a list of my current subs and recent cancelations and  is forwarding my decisions to the the invoice-generating folks. Works for me because one title I was really going to regret cancelling if I had to renew for print-online is the best title on the subject, namely Hindert, Dehner & Hindert's Structured Settlements and Periodic Payment Judgments. I would have killed that title and other LJP title if my options excluded print-only because those other format alternatives just won't work in my little county law library. Quality matters.

Quality of Editorial Content and Format Options Matter Now. Killing off some LJP titles would have been regrettable but neccessary. In the Shed West Era for print, editorial quality really matters now. I will pay for that if I can buy the publications in the format I want. In addition to some LJP titles which provide damn good editional quality I can depend on (at least for now) some other publishers still driven by quality such as BNA, WK's Apsen and CCH, and PLI. However, I can't and probably will never be able to justify LJP titles as online-only or online-print combinations at our little county law library. Format matters.

But in the "New Normal," law librarians are taking a more closer look at titles offered by the likes of LJP because the Company have a long-established reputation for editional quality, something some of our major vendors no longer have. I believe we will pay for that quality by subsituting or relying solely on their titles. I certainly have. We cancelled some WEXIS print titles in this Shed West Era because of this. We focus on cost-savings but we also look for the "best bang for our buck." We elevate such titles to pride-of-place status of "best available" in editorial quality in the world of actionable actions. We use some of the cost savings generating from cancelling titles produced by "traditional" legal publishers who have neglected to maintain content quality standards by acquiring titles from other publishers who have a track record of consistently meeting editorial quality standards because they do not treat content as a commodity.

Ways and Means for LJP Titles. For recent renewal cancellations, the Company is offering a 20% discount off invoiced renewal costs if you want print-only and a 15% disount off of current renewal costs for live subscriptions if you only want print-only distibution. I, for one, reactivied one subscription as print-only at the 20% discount for a title I killed after having received its renewal invoice for the print-online combo. I insisted that the reactivation was continguent of receiving a new base volume at no additional cost because it had already been recycled and the Company compiled. I also listed which titles I would continue to take at the print-only 15% discount and which titles I still intended to cancel.

Most invoice-paying law librarians do not like how this has to be accomplished because it is so damn time-consuming. Apparently some, if not most but not all institutional buyers must apply for the discounting on a invoice-by-invoice basis where one receives a renewal invoice for the print-online combo because renewals are triggered on a title-by-title basis when each individual title comes up for renewal.

The procedue is you get the renewal notice for the print-online title and then you have to email it back to get an adjusted invoice for the discounted print-only cost. That certainly can be very time-consuming for subscribers of a lot of the LJP catalog of titles. Our little county law library executed "Shed West Era" print cancellations for LPJ titles even before LJP's implementation of ALM's transformation from a traditional print-based publisher to a "digital first provider. So the workload isn't great but I certainly understand the law library community's very justifiable complaints. Efficiency matters.

Each execution has to be based on an making an affirmation decision title by title as indicated above. There could be a much more time-saving method for buyers who subscribe to many more LJP titles than our little county law library does. I think this has more to do with a smaller vendor making adjustments in the context of a recently implemented invoice generating system that was not brought online with an eye toward responding to buyers who would cancel if they could not acquire titles in the format they deemed best for their collection.

Due note, a library's LJP customer account number has also changed but the customer service reps can cross reference old to new account numbers. Also note, even after one receives the discounted invoice print-only, the invoice will not explicitly state that the renewal is for print-only. I'm not particularly concerned about this right now as long as the invoice pricing reflects the discount. However, I have yet to receive one of the adjusted invoices and I've sent backy three invoices for print-only pricing already. 

Will the current print-only discounting become institutionalized at LJP for 2012 renewals and thereafter? I have no idea. However, LJP ran a quickie two day sale for acquiring new titles last week but the sale discount was not offered for acquiring print-only. It appears to have been based on subscribing to new titles by way of pint-online or online only format options. That's not a particular good signal. Guess we will just have to wait and see.

Shifting Vendor Generated Inefficiences Back to the Publisher. The inefficiences LJP has generated is just an illustration of the world of actionable actions in the context of institutional buyers needing to start taking "vendor sourcing" actions. Cancellations prompted LJP to staff-up but the procedure the publisher created to respond to subscribers wanting print-only titles because format matters is incredibly inefficent.

DLA Piper's Jean O'Grady defines vendor sourcing as "a process by which we shift the cost of vendor generated inefficiencies or the inefficient processes themselves, back to the publishers."

Let's face it; we have for too long made our administrative processes subservient to the idiosyncrasies of individual publishers.

See O'Grady's Dewey B Strategic post, "Vendor Sourcing" : Thinking the unthinkable as a strategic alternative to outsourcing for much more.

Endnote. For the first post in this series, see The World of Actionable Actions: Institutional Buyers, Individual Consumers and the Legal Publishing Industry. [JH]

 

O'Grady's Three Mythbusting Axioms on Cost Effective Legal Research Training

Jeffrey Brandt, editor of PinHawk Law Technology Daily Digest calls attention to a post published in my newest favorite law librarian blog, DLA Piper's Jean O'Grady's Dewey B Stragegic.  O'Grady calls it like she sees it in each and every post she publishes. Take the damn RSS feed -- take it even if you are an academic law librarian because academic law libraries don't move the marketplace -- the private sector does. Take it if you are a public sector law librarian because we have much more in common with the private sector than the academic law library sector even if we don't have BigLaw's purchasing power.

Quoting Brandt's PinHawk Law Technology Daily Digest e-newsletter summary, which also covered other recent interesting developments:

Jean O'Grady has a great post at Dewey B Strategic. So good I will just quote her three axioms. "1) Cost effective research training is a hopeless exercise." "2) Cost effective legal research training is counter-productive." "3) Subscribing to the myth of cost effective research training keeps the focus off the true culprits and keeps us from demanding real solutions." Read more here and demand a solution: The Myth and the Madness of Cost Effective Lexis and Westlaw Research Training.

I couldn't resist adding Rees Morrison's quick post on the subject of worthless reports. He comes at it from the corporate law department perspective, but law firms have them too. In one of my old firms they were called 'Monday reports.' They justified their own high end printer in the accounting department. Hundreds of trees were killed to produce them. Hours of staff time to burst, staple and deliver them to the lawyers. And the majority went straight into the trash can. Read more here: Have you stopped sending reports that people have stopped reading?

We all have too many passwords, PINs and more to manage. Some people cope by using the same password everywhere. Others prefer the Post-It Note approach. Still others use password vault software (my approach), or use a cloud service. But what do you do if your cloud service gets compromised? According to The New York Times, LassPass, a cloud service for managing passwords thinks they got hacked. Read more here: Bits: Password Service Warns of Possible Hacking Attack

(Emphasis added.)

Thanks PinHawk. I did read more because I am way behind in reading my RSS feeds.

I agree with O'Grady's teaching cost-effective online search analysis with one caveat and completely agree with O'Grady's criticism of WEXIS pricing. Two snips:

Since most law firms have a unique menu of “included” content, unique pricing plans and unique billing policies for the identical content – academic librarians are faced with the impossible challenge of training students for a universe in which there is likely 100% inconsistency in the pricing and billing policies across the firms where they will be summer associates.

...

When Lexis and Westlaw deliver simplified and rational billing systems we could actually develop cost effective legal research methods and classes that  could prepare associates to perform cost effective research  while remaining focused on the real goal: delivering the best result to their client.

It is, as O'Grady writes "an impossible challege to instruct law schools on pricing and billing where there is 100% inconsistency." It is not, however, an impossible challenge to wean law students from suckling on the WEXIS nipple provided to them in the legal academy.

Teaching Cost Efficient WEXIS Training in the Legal Academy by Illustrations. While WEXIS reps could provide boilerplate licensing agreements to law students to study, does anyone expect that to happen?

Instead, grab a couple of well-redacted, even out-of-date, different private sector licensing agreements if you can obtain them for a class assignment in 1L LRW and ALR courses about the costs of "real world" online WEXIS research. The assignment:

1. Perform an online search, where a research assignment requiring the use of primary and secondary sources is assigned;
2. Instruct students to take step-by-steps notes of their research trail; and
3. Then require the students to apply the cost structures under the terms of the provided Ks in writing.

Hopefully one can obtain WEXIS Ks that are structured to include pricing for access to out-of-plan databases. If academic law libraians can't obtain private sector WEXIS Ks because, well you know why, public sector WEXIS licences are available by federal FOIA and state open records act requests.

While I suggest that O'Grady's first axiom may need to be qualifed by the above so as to state "'Cost effective research training is a hopeless exercise but teaching students to analyze WEXIS Ks in law schools may be a teachable moment in very expensive online legal search." I completely agree with O'Grady's other two axioms:

Cost effective legal research training is counter-productive.

Subscribing to the myth of cost effective research training keeps the focus off the true culprits and keeps us from demanding real solutions.

For details, see The Myth and the Madness of Cost Effective Lexis and Westlaw Research Training.

Two CYAs. I don't republish an entire article or e-newsletter alert summary (etc.), since that may violate copyright in a commerical blog network like the Law Professor Blogs Network. So I hope my you-know-what is covered by mentioning that I've watched PinHawk since its launch several years ago, thinking it was a crap-shoot if it survived because selling ads was required. It has succeeded in garnering ads and expanding its daily e-mail alert topical offerings business model. Love the wacky Einstein-inspired law prof banner ads from Lexis! 

Note to FTC, yes I receive free email alerts because LLB is and has been featured in relevant e-newsletters since the launch of Pinhawk. I find Pinhawk email alerts to be very useful. Am I grandfathered in because this was agreed upon long before the FTC blogger requirement? If not, a second CYA. [JH]

Learning and Teaching Legal Research: A Bibliographic Survey of the Learning Enterprise

In the conclusion of his article, "Learning" Research and Legal Education: A Brief Overview and Selected Bibliographical Survey, 40 Southwestern L. Rev. 449 (2011) [SSRN] Chapman law professor Donald Kochan writes:

Legal education and the subject of learning as it relates to it are intriguing and stimulating topics and the literature is filled with a rich and diverse exploration into those fields. The teacher seeking to improve his or her task should acquaint him or herself with the wisdom within this literature. The scholar whose research is directly aimed to expand on or discuss the subject of learning by necessity must engage with it. The librarian seeking to assist students and professors must be aware of this literature. And really, all those with endeavors that even indirectly relate to the legal educative enterprise cannot help but be affected by it. This overview and bibliographical survey should serve as one tool for each person finding themselves in one of those positions.

From the article's abstract:

At its core, education is about learning. Every educator, legal or otherwise, must at the same time be both a teacher and a student in the learning enterprise. Luckily, there is a wide literature to help us in these roles and it is growing every day. It should be a goal of every legal educator to appreciate this area of scholarship, understand its breadth and importance, and engage with it in our teaching and writing. This research overview aims to aid the legal educator seeking to learn about learning and access tools for self-improvement. It also provides some preliminary assistance to those researchers beginning to traverse the field on the subject of "learning" and legal education, and it equally serves as a warning of the daunting task that awaits the researcher on that multifaceted subject. This overview and selected bibliography compiles selected sources collected through various searches on legal databases, library collections, and other available sources. The text serves as a guide along the way with some explanatory material to describe the fields. The compilation of these sources will serve independently as a valuable survey, bibliographic collection, and research tool for others (including educators, academic scholars, librarians, students, and lawyers).

[JH]

The Law through the Lens of Superheroes and Supervillains

I must have had a deprived childhood because I wasn't into comic books. Not that my parents wouldn't let me read them. I just wasn't into all that supperhero-supervillain stuff.

Could it have been because as a kid in the 1950s we practiced "duck and cover" drills in case of a nuclear attack in grade school? If you see the flash, no superhero is going to save you. You are dead, you just don't know that at the moment.

I was, however, a big fan of the 1950s Godzilla movies while being utterly clueless back then that Godzilla was a metaphor for nuclear war. But I digress... .

Now, I'm gaining a new appreciation for comics because of the blog, Law and the Multiverse: Superheroes, supervillains, and the law, by James Daily and Ryan Davidison. About their blog, they write:

If there’s one thing comic book nerds like doing it’s over-thinking the smallest details. Here we turn our attention to the hypothetical legal ramifications of comic book tropes, characters, and powers.  Just a few examples: Are mutants a protected class? Who foots the bill when a hero damages property while fighting a villain? What happens legally when a character comes back from the dead?

On Administrative Law Prof Blog, Ted McClure writes

They examine the legal implications of comic book characters and situations, and sometimes similar movie characters and situations. Often I forward them to my faculty members as potential discussion or exam questions.

Ted, you might want to forward some of your findings to I’ve Got a Hit!, a new wiki which collects examples of legal research concepts found in movies, TV shows, songs and print. I'm thinking research assignments based on the law seen through the lens of superheroes and supervillains just might keep law school students' attention. See Illustrating Legal Research Concepts Using Examples from Pop Culture: There's a Wiki for That! Contributions are welcome.

Endnote. Wouldn't you know someone has recently published an annotated topical bibliography called 50 Best Books for the Comic Book Crowd. [JH]

RIPS Teach-In Kit Now Available: Remember National Library Week is April 10-16, 2011

Each year in conjunction with National Library Week, April 10-16, 2011, AALL's Research Instruction and Patron Services Special Interest Section publishes via its website a Teach-In Kit containing fresh materials for use in institutional, promotional and instructional activities submitted by voluntary member contributions.

For National Library Week 2011, RIPS recently published its 19th Annual National Legal Research Teach-In Kit. This year's Teach-In Kit includes PowerPoint presentations, research assignments, lesson plans, syllabi, and more on a variety of topics including health law, animal law, and Google Scholar. Contibutions include but are not limited to:

• Advanced Environmental Legal Research-Course Syllabus, Christine Ryan, Vermont Law School Library
• Legal Research and Writing for Scholarly Publication, Vicenç Feliú, Director of the Law Library & Assistant Professor of Law, University of the District of Columbia and Helen Frazer, Associate Director & Head of Public Services, Charles N. & Hilda H. M. Mason Law Library, University of the District of Columbia.
• A Quide Guide to Special Education, Brittany Kolonay, Emerging Technologies Librarian, Charles N. & Hilda H. M. Mason Law Library, University of the District of Columbia
• A Guide to Using Citation Tools, Michelle Cosby, Faculty Services Librarian, North Carolina Central University School of Law Library.
• Using Google Scholar to Find Law Review Articles, Kasia Solon, Access & Student Services Coordinator, Tarlton Law Library, Jamail Center for Legal Research, The University of Texas School of Law,
• Research Exercise: Judicial Assistant Handout - Legal Abbreviation Sheets, Amy Hale-Janeke,Head of Reference Services, 5th Circuit Court of Appeals Library.
• Research Exercisse: Secondary Sources-Criminal, Michelle Cosby, Faculty Services Librarian, North Carolina Central University School of Law Library.
• Research Excecise: Getting to Know Secondary Sources Activity, Jennifer Duperon, Legal Information Librarian, Boston University School of Law.

Kudos to the RIPS Teach-In Committee members who, no doubt, spent a fair amount of time on this project. This year's RIPS Teach-In Kit was compiled and edited by Laura J. Ax-Fultz and David E. Lehma. Kudos also to the many contributors to this year's RIPS Teach-In Kit.

BTW Library week is sponsored by ALA. This year's Honorary Chair is John Grisham. [JH}

WestlawNext Redux

Professor Ronald E. Wheeler, Jr., Director of the University of San Francisco Law Library, has a recent paper posted on SSRN titled Does WestlawNext Really Change Everything:  The Implications of WestlawNext on Legal Research.  He raises some interesting questions, including how it will affect teaching legal research to law students and how its mechanisms can affect future legal precedent. 

Anyone who has used WestlawNext or had more than cursory contact with publicity materials know that it is a game-changer in conducting electronic legal research.  I was with a group of faculty the first time it was formally demonstrated at DePaul.  The faculty were salivating over it, to say the least.  It's been a year now since WestlawNext made its debut and the buzz has abated to some extent.  It's really worth asking the question, now that it's here, what exactly are we getting ourselves into?  Professor Wheeler's paper is a good start in formulating an answer.

He initially compares some of the searches in Westlaw Classic to those in WestlawNext.  Though he praises WestlawNext's ability to find conceptual results against a wide variety of sources, his examples show something I've encountered myself.  That is how WestlawNext tends to fall somewhat short when searching for a document one knows to exist but when only partial information for constructing a search is available.  That result comes from the heavy emphasis WestlawNext places on searching legal concepts which is leveraged against its indexes, key numbers, and other metadata rather than specific terms.  Add to that mix the crowdsourcing or ranking of results within groups using factors such as how many other researchers used these materials.  It's no wonder a specifically sought item can get buried. 

One of Wheeler's examples is where he searched for a specific law review article and it showed up much later in the search results than the initial first page.  I think this is significant, not because one has to browse to find that specific result as much as the attention span of students (or anyone for that matter) conditioned to scanning a Google results page does not lend itself to deep browsing.  The relevancy of later results tends to drop off quickly in Google despite the fact there may be millions of hits.  The reality is no one will browse past the first few pages.  That can have negative consequences in a legal research setting. 

Another significant point raised in the paper is how WestlawNext could conceivably shape the law as use of the database becomes more prevalent.  Wheeler again uses examples where the number of cases or other types of documents returned by WestlawNext are less compared to traditional electronic legal research.  The plus of this, of course, is that these are the best or most cited materials available in relation to the query.  The negative is that it is not everything.  Legal research is one of those areas where the truly paranoid thrive.  Some lawyers litigate that way and want the comfort of knowing about every angle in the precedent.  WestlawNext may not be for that mindset. 

The real concern, though, is that by not providing every case on point, that the law will coalesce around the most popular precedent available.  I can appreciate that concern.  I've worked with enough lawyers and faculty to know that sometimes it's not enough to find a case that holds in favor of one's position.  Sometimes it is the distinct language of that holding that is more favorable to the specific facts at issue.  A turn of phrase or a more detailed statement of the law conveys context when presented to a judge that is more nuanced in stating a client's position.  While it is too soon to tell, I'm not sure WestlawNext may be up to that level of creative research.  Result ranking is no substitute for analysis in any legal research setting.  As I tell students, they still have to read the cases.  Sometimes, though, the first case is not the best case.  The WestlawNext system may imply that, however.

As we in academics teach the techniques and interpretation of WestlawNext search results, we will find that it is really good at some things and not so good at others.  We've had traditional electronic research systems for some thirty-plus years now and there is a comfort level with them certainly.  While WestlawNext is a research game-changer, it's still not the only game in town.  Anyone who strives for efficient and cost-effective research will want to know when to use WestlawNext and when to use something else to get results.

The last part of the paper touches on this.  Cost.  We in academics tend to be blissfully unaware of the commercial costs associated with Westlaw and Lexis.  There are components in teaching that try to give students some idea of the cost of commercial legal research.  Nonetheless, the teaching focus is mainly on content and technique.  The drug dealer analogy is still accurate, if not a bit tired.  The first one's free, as in get addicted to electronic research in law school, and after that you pay. 

WestlawNext's pricing structure is quite different from Classic Westlaw.  Every click seems to generate a charge once the initial search is conducted.  West counters this by noting the costs are higher, but the savings are in the efficiency of the system to get the materials in front of the researcher.  I'm not convinced, but I guess I could be if I could see some real numbers based on real research alternatives.  I'm not sure if it would or wouldn't be less expensive to gather citations and use other vetted online sources for content.  WestlawNext seems to be priced for the largest firms and the most sophisticated researchers.  Casual searching may result in sticker shock once the bill comes due.  The actual charges are cited in the paper.

As Wheeler suggests, we are still figuring out this thing.  The total research perspective suggests it is good for some types of research and not good for others.  Researchers will want to know all of the tools they have available to them and which ones to use in specific situations.  WestlawNext is a good tool, but marketing aside, it doesn't necessarily replace any of the others.  The paper covers more details and issues than I have raised here.  I would suggest anyone seeking more information to read it.  The link in the earlier paragraph should lead to a copy.  [MG]

No Surprise: Online Research Beats Manual Research

There is a study called A Day Without A Search Engine: An Experimental Study Of Online and Offline Search, and it's getting some press.  It basically compares online and manual research as conducted in a library and highlights the differences in the time involved to arrive at results and the quality of the results.  The study, from the University of Michigan, is focused on general research and not legal research.

The experiment was designed around random web queries within the United States on a single day.  They were filtered so that they could be answered manually or online.  One criticism of taking questions from an online source is that they may be biased towards the web as a source.  There is no suggestion in the report that the designers looked at the results before selecting the questions for the study.  As I'm fond of telling students, and as much as I love using the web myself, not everything is online.  More on that in a bit.

The experiment results showed four things.  Using 305 questions, 99.7% were answered via the web and 90.2% were answered in the non-web treatment.  Online searches take one-third the time of an offline search.  Web searchers used more sources than those who used the library.  70% of the non-web users consulted a reference librarian.  Finally, quality of web and non-web sources were not significantly different.

Google, one can imagine, is just ecstatic with the results.  Hal Varian, Google's Chief Economist, was quoted in a short interview in The Economist about the productivity gains from web research.  His numbers were about 22 minutes using the library compared to 7 minutes using a Google search.  He sees this as the democratization of data, enabling users with an Internet connection in remote location.
This study focused on general research, with the answers limited to facts in some cases, and others with conceptual responses that are fleshed out.  I'm intrigued as to whether similar results would be obtained with legal research.  I think a knowledgeable researcher can pull a cited case online, whether from a commercial service or a free resource such as the Google Scholar case database.  It's the conceptual searching I'm wondering about.  Lexis and Westlaw certainly have their share of topical commentary.  Natural language searching is pretty sophisticated, especially in its WestlawNext incarnation.

Still, with all of this, I'd be curious of the time and the efficiency savings compared to cost of commercial services, the free web, and print.  Price wasn't a factor much in the Michigan study though participants weren't limited to Google.  They were allowed to use pretty much any electronic resource to which they had access.  I have to assume that some of Michigan's commercial subscriptions were part of the mix.  The free web has delivered more or less on the promise of unedited primary law, though real library-like organization is lacking.  Searching legal concepts is one of those areas where it falls completely short, in my opinion.  Given all of this, I wonder if there are recent numbers out there that really measure the efficiencies in online and manual legal research.  [MG]

How Not to Learn Legal Writing

Two examples:

Omitting the Ellipsis. A lawyer who submitted a brief in his first-ever appeal got publicly reprimanded for failing to use an ellipsis in his brief's presentation of the trial judge's statement of facts. For details, see Mike Frisch's Legal Profession Blog post, First Appellate Brief Deemed "As Brazen A Piece Of Misrepresentation As We Have Ever Seen." 

Ellipsis -- from the Ancient Greek: ἔλλειψις, élleipsis, "omission".

Exceeding Word Count. ABAJ's Martha Neil reports in 7th Circuit Zaps Lawyer for Exceeding 14K Word Limit in Brief, Summarily OKs Lower Court Decision:

In a blistering opinion (PDF) ..., a federal appeals court not only stated or implied that a lawyer had been untruthful in his certification that a brief met the 14,000-word limit but criticized his "rambling" writing.

Then, saying that any further effort by appellant attorney John Caudill to file a brief that complied with the Chicago-based 7th U.S. Circuit Court of Appeals rules would be pointless, a three-judge panel summarily affirmed the district court decision in the case.

Writing for the court in one of the less intellectually challenging matters he has addressed since being appointed to the 7th Circuit in 1981, Circuit Judge Posner states:

The response to the order to show cause, signed by lawyer Caudill, concedes that the brief exceeds the word limit (it exceeds it by more than 4,000 words), and states by way of explanation that he had “inadvertently considered only the words included in the argument section of the brief as part of the Rule 32(a)(7)(B)(iii) requirement (the word count also did not factor in citations made within parentheticals).” It is difficult to see how these errors could be “inadvertent.” Rule 32(a)(7)(B)(iii) states: “Headings, footnotes, and quotations count toward the word and line limitations. The corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, any addendum containing statutes, rules or regulations, and any certificates of counsel do not count toward the limitation.” There is no ambiguity, hence no room for misinterpreting the rule as confining the required word count to the argument portion of the brief (which would, for example, allow for an endless statement of facts), or as omitting citations in parentheses.

(Emphasis added.)

14,001, 14,002, 14, 003... . Lawyer Caudill might want to join the the Word Count Journal, "a new blog format where you write one word your first day, two words the second, three words the third, etc. By the end of a non-leap year you'll have written a total of 66,795 words, more words than most novels." [JH]

Illustrating Legal Research Concepts Using Examples from Pop Culture: There's a Wiki for That!

I’ve Got a Hit! is a new wiki which collects examples of legal research concepts found in movies, TV shows, songs and print. Entries give detailed information about where to find the example, which research concept it demonstrates, how it can be used in class and more. From the wiki:

When preparing for class, we've all occasionally found ourselves wanting to throw in a little something which illustrates that lecture's core concept -- a brief example that will stick in the students' minds or relieve the monotony of a 75-minute lecture. But trying to find the right one isn't always easy. Then again, our own law professors did it; our colleagues do it from time to time too. Why not harness the hive mind and ask everyone to contribute ideas?

So, here we are. I've Got a Hit! is a place to collect all these examples together. If you're looking for a good illustration, visit the wiki, read through the descriptions given and voila! You've got a song to play or a clip or comic to show in class. This wiki was started by a law librarian, so the main focus here is pieces illustrating general or legal research techniques, but feel free to add scenes showing other legal concepts as well.

The wiki creators are looking for new contributors and listings. Deborah Schander, Reference/Student Services Librarian, Georgia State University College of Law Library, writes

If we’ve missed that classic example you use in class - or if you run across a new one the next time you’re watching TV - feel free to add it. Editing access is available for law librarians, professors and others interested in expanding this area.

I'm not sure this Star Trek clip fits the bill for discussing the relative merits of print vs. online but I know if I ever have to do another one of those traditional "how a bill becomes a law" lectures, I'll start off with this clip. [JH]

More information about this great idea, I’ve Got a Hit!, is available at the wiki itself, or you can email the wiki administrator Deborah Schander (dschander(at)gsu.edu) directly with any questions. [JH]

Legal Research Textbook Reviewers Wanted

The Research Instruction Committee of the RIPS-SIS is looking for persons interested in reviewing legal research texts. Details in the RIPS Law Librarian post. [JH]

49 Conn.Supp. 613: Accurate Case Law on Westlaw?

In case you missed Chris Graesser's late yesterday afternoon heads-up on law-lib, here it is:

FYI, Westlaw changed the text of this Conn. Case [49 Conn.Supp. 613] even though the official reporter has not. Someone petitioned to have their name excised from the case. The court administrator denied the petition, but Westlaw went ahead and changed it. Just an illustration of how we can't necessarily assume that Westlaw, Lexis or any other online reporter are providing the authentic version of case law.

It's also an illustration of Nick Holmes' point that we need free access to good law data. See his Accessible Law post on VoxPopuLII. [JH]

New Edition of Legal Research Methods in a Modern World

Legal Research Methods in a Modern World: A Coursebook, 3d ed., by J. Paul Lomio, Henrik Spang-Hanssen and George D. Wilson (DJØF Publishing, Feb. 2011) has been published. This coursebook is the first legal research guide that addresses the internationalization and globalization of both the new curriculum for law schools (especially in the U.S.) and the changing practice of law. From the book's companion website:

Legal Research Methods in a Modern World: A Coursebook is a revised and expanded edition of "Legal Research Methods in the U.S. and Europe", 2nd edition. With the inclusion of chapters on China, Russia, England, and on researching foreign law generally, the title has been changed to reflect the broader scope. It is intended to be used as a coursebook for several alternative courses on legal research.

As for American legal research, it explains the impacts and effects of the major changes and developments that have occurred very recently, including the introduction of Bloomberg Law, WestlawNext and the revolutionary Law.gov movement.

You can check out the Table of Contents here. Copies will soon be available from Amazon and International Specialized Book Services.

In announcing the publication of this new edition, Paul Lomio notes in his Legal Research Plus post that "[n]ew to this edition, in addition to other updates, is the inclusion of research exercises that we have found most useful from [our advanced legal research class]. I did not include the answers — because I hope to continue to use these exercises — but I would be very happy to share the answers and my thoughts on approaches with other instructors of legal research." [JH]

Teaching Alternatives to WEXIS in the Legal Academy

In what could be characterized as a culture shock when a law firm librarian transitions into the legal academy, Laura Justiss, Collection Development Librarian, SMU Dedman School of Law writes,

I was naively surprised to learn that most law students had little, if any, awareness of the electronic services other than Lexis and Westlaw routinely used by practicing attorneys. Of the alternative research databases I had used in my former life as a law firm librarian, only PACER was available in the law school in 2000. There were no court docket services for state courts, such as CourtLink or CourtExpresss; no financial or busiess research databases, such as Live EDGAR or Dun & Bradsteet; no public record databases (other than those available on Lexis or Westlaw); and no intellectual property, engineering or technology research databases such as Dialog. Thus students seldom had the opportunity to learn the existence of such alternatives, let alone why or how a lawyer might use them in practice.

One might say, well I will say, welcome to the huge divide between research instruction in the legal academy and law firm legal research. If the legal academy is going to take legal skills training seriously, instructors in legal research, including academic law librarians, have to extend their expertise. It is one thing to indoctrinate law students in WEXIS. It is quite another thing for academic law librarians to allow this to happen without providing instruction on alternatives to WEXIS.

In A Survey of Electronic Research Alernatives to Lexis and Westlaw in Law Firms, Laura Justiss reports on the findings of responses from PLL-SIS members for primary source alternatives to WEXIS, court docket and case information services, secondary sources for topical legal research, financial, business and news information, public records and more. The list of resources can be viewed as a To-Do list of what needs to be covered to prepare law students to prepare them for leaving the legal academy. In her conclusion, Justiss writes

For law librarians attempting to extract as much value as possible from increasingly limited budgets, I believe these results are, at least preliminarily, good news. While the warp spped advances in reseach technology can tax even the most progressive and cutting-edge among us, the democratization and flattening of the online legal research market, highlighted by these results, promise to yield a better value to the legal profession than the de facto market control of Lexis and Westlaw that has been in place for decades.

Justiss' article identifies many of the electronic resources academic law librarians who teach legal research should focus on. My hunch is vendors will be happy to cooperate by providing access to their services for ALR courses. [JH]

Updated Research Guides from GlobaLex

And they are:

• European Union Legal Materials: An Infrequent User's Guide by Duncan E. Alford
• Comparative Civil Procedure: A Guide to Primary and Secondary Sources by Radu D. Popa & Mirela Roznovschi
• Burkina Faso Legal Information and Research by Kounkinè Augustin Somé
• A Guide to Legal Research in Israel by Michal Tamir; 2011 update by Esther Mann Snyder
• Guide to Legal Research in Norway by Pål A. Bertnes

For new and regularly updated foreign, international and comparative law research guides, visit GlobaLex. [JH]