Law Librarian Blog

Professional Readings: The Fate of an Institutional Subscription Database for Out-of Print Books Since the Court Rejection of the Google Book Settlement

"One likely victim of the rejection of the proposed Google Book Settlement is its plan to develop an institutional subscription database of out-of-print books," writes Pamela Samelson (Richard M. Sherman Distinguished Professor of Law, Berkeley Law School). "The fate of the ISD envisioned in the GBS settlement is now up in the air because in March 2011 Judge Denny Chin ruled against the proposed agreement. One likely victim of the rejection of the proposed Google Book Settlement is its plan to develop an institutional subscription database of out-of-print books." There are alternatives. See Samuelson's Legislative Alternatives to the Google Book Settlement. Here's the SSRN abstract:

In the aftermath of Judge Chin's rejection of the proposed Google Book settlement, it is time to consider legislative alternatives. This article explores a number of component parts of a legislative package that might accomplish many of the good things that the proposed settlement promised without the downsides that would have attended judicial approval of it. It gives particular attention to the idea of an extended collective licensing regime as a way to make out-of-print but in-copyright books more widely available to the public. But it also considers several other measures, such as one aimed at allowing orphan works to be made available and some new privileges that would allow digitization for preservation purposes and nonconsumptive research uses of a digital library of books from the collections of major research libraries.

The article can also be downloaded from this non-SSRN link. Highly recommended. Ditto for Samuelson's related recent works:

Why the Google Book Settlement Failed - And What Comes Next? (Powerpoint).

More than a year after the Google Book Settlement fairness hearing, Judge Chin ruled that the settlement was not fair and could not be approved. This talk will explain why I think the failure of this settlement was inevitable. It will also discuss the options available after the failure of the settlement and why some of these options are more likely or desirable than others.

The Google Book Settlement as Copyright Reform.

This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

[JH]

Professional Readings: Reclaiming Copyright for Readers, Listeners, and Viewers

Consider this principle:

The purpose of copyright is to encourage reading.

Read that again. Your response, I think, is likely to sit somewhere on the spectrum between skepticism and scorn. Why is that? Is it that you view copyright as a collection of goodies secured for their clients by overzealous lobbyists? Would you be more receptive to this variation:

The purpose of copyright should be to encourage reading.

Still no, right? What you know about copyright (and that might be a little or a lot) persuades you that the purpose of copyright should be to give creative people incentives to do creative work. For some of you, that means that the purpose of copyright should be to confer strong, enforceable, assignable rights on creators and the entities that make investments in their work.1 For others, that means that the purpose should be to encourage creators by giving them rights that are strong enough to enable them to make a living creating works of authorship, but not so strong that they make it difficult for future creators to make their own living doing the same. Does that capture it?

The above is a direct quote from the opening for Jessica Litman's (John F. Nickoll Professor of Law & Professor of Information, University of Michigan) very interesting and remarkable  essay titled, Readers' Copyright, [SSRN] (Journal of the Copyright Society of the USA, Vol. 58, No. 2, 2011). Here's the abstract:

This essay is part of a project intended to help reclaim copyright for readers, listeners, and viewers. A system of copyright protection makes little sense unless it is designed to encourage the use and enjoyment of the works it induces authors to create and publishers to disseminate. I argue that a clear-eyed examination of copyright's history reveals that solicitude for readers and members of the audience is, in fact, deeply encoded in copyright's DNA. Recently, readers' interests have faded in apparent importance in the copyright scheme in ways that have unbalanced the copyright system, and undermined public support for copyright law. In response to growing criticism of copyright, some of copyright law's most ardent supporters have insisted that users have no rights, should have no rights, and have never had rights in the copyright scheme. That approach, I suggest, is making the problem worse, not better. Copyright seems out of whack because it has forgotten its most important constituents. In this essay, I take a series of very small baby steps in the direction of recognizing rights and liberties within the copyright system for readers, listeners, viewers and other members of the copyright audience. 

Highly recommended. [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]

Will Someone Give This Book to Justice Scalia?

What the heck, it only took me the better part of four months to read Madison and Jefferson (Random House, 2010) by Andrew Burstein and Nancy Isenberg, who are the Charles P. Manship Professor of History and professor of history, respectively, at LSU. Well, it is 800-plus pages and is full of footnotes. Plus I have little functional short-term memory and I am easily driven to distraction because I am an aging and decrepit law librarian.

Personally I have found the constitutional interpretation school known as "originalism" and championed by Justice Scalia to be intellectually bankrupt but since I'm not a constitutional scholar, don't sit on SCOTUS, and am not a brainiac like Scalia is, my opinion about schools of constitutional interpretation really don't matter, now does it. Hell, 30-plus years ago all I did was sort out Scalia's mail from the rest of the US Mail delivery on Saturdays when we both worked at the University of Chicago Law School while he was looking over my shoulder, waiting impatiently.

Still, someone should dump Burstein and Isenberg's Madison and Jefferson into his lap (assuming no one has already done so). Could it change his mind about "originalism?" Don't know but it would be interesting to hear what he has to say. As a certified brainiac, someone like Scalia typically is sufficiently intellectually honest to revisit assumptions and long-held opinions.

Based on my reading, I highly recommend Madison and Jefferson to everyone interested in the changing opinions about the US Constitution by our founding fathers over the course of their political careers. Fascinating; subscribers to originalism might want to rethink their assumptions.

Here's the blurb:

In Madison and Jefferson, esteemed historians Andrew Burstein and Nancy Isenberg join forces to reveal the crucial partnership of two extraordinary founders, creating a superb dual biography that is a thrilling and unprecedented account of early America.

The third and fourth presidents have long been considered proper and noble gentlemen, with Thomas Jefferson’s genius overshadowing James Madison’s judgment and common sense. But in this revelatory book, both leaders are seen as men of their times, ruthless and hardboiled operatives in a gritty world of primal politics where they struggled for supremacy for more than fifty years.

In most histories, the elder figure, Jefferson, looms larger. Yet Madison is privileged in this book’s title because, as Burstein and Isenberg reveal, he was the senior partner at key moments in the formation of the two-party system. It was Madison who did the most to initiate George Washington’s presidency while Jefferson was in France in the role of diplomat. So often described as shy, the Madison of this account is quite assertive. Yet he regularly escapes bad press, while Jefferson’s daring pen earns him a nearly constant barrage of partisan attacks.
 
In Madison and Jefferson we see the two as privileged young men in a land marked by tribal identities rather than a united national personality. They were raised to always ask first: “How will this play in Virginia?” Burstein and Isenberg powerfully capture Madison’s secret canny role—he acted in effect as a campaign manager—in Jefferson’s career. In riveting detail, the authors chart the courses of two very different presidencies: Jefferson’s driven by force of personality, Madison’s sustained by a militancy that history has been reluctant to ascribe to him.

The aggressive expansionism of the presidents has long been underplayed, but it’s noteworthy that even after the Louisiana Purchase more than doubled U.S. territory, the pair contrived to purchase Cuba and, for years, looked for ways to conquer Canada. In these and other issues, what they said in private and wrote anonymously was often more influential than what they signed their names to.

Supported by a wealth of original sources—newspapers, letters, diaries, pamphlets—Madison and Jefferson is a stunning new look at a remarkable duo who arguably did more than all the others in their generation to set the course of American political development. It untangles a rich legacy, explaining how history made Jefferson into a national icon, leaving Madison a relative unknown. It tells nasty truths about the conduct of politics when America was young and reintroduces us to colorful personalities, once famous and now obscure, who influenced and were influenced by the two revolutionary actors around whom this story turns. As an intense narrative of high-stakes competition, Madison and Jefferson exposes the beating heart of a rowdy republic in its first fifty years, while giving more than a few clues as to why we are a politically divided nation today.

[JH]

More Shiny Happy People: On Marquis Who's Who Use of Stock Photos

The below stock photo appears with the caption "Marquis Who’s Who believes the men and women around the globe whose achievements influence the people of today are worthy of permanent record, and we are proud to provide their biographical information for public record and for posterity." Really?

Recalling LLB's June 2010 post on the use of stock photos of models used by Lexis, WestlawNext, and AALL's Spectrum, Kent Olson, Director of Reference, Research and Instruction, University of Virginia School of Law Library, called Marquis Who's Who use of stock photos to my attention last week. He wrote

Are these supposed to be 'the men and women around the globe whose achievements influence the people of today'? Or are they 'the people of today' in the process of being influenced?

Damn good question, Kent. I think the models in the photo represent the target age group of the people who are being influenced, just like the use of similar photos by Lexis, TR Legal and even our own professional association. Time for REM's Shiny Happy People video. Do note the wind-up toy monkey drummers at the start of the music video. [JH]

Transitioning from Industrial Production to Social Production of Content: The Failure of Traditional Premises of Copyright Law to Accommodate the Social Web

From the abstract of Niva Elkin-Koren's (University of Haifa Faculty of Law) Tailoring Copyright to Social Production [SSRN]:

The prevalence of social production and the increase in User Generated Content (UGC) destabilize some of the fundamental premises of our current copyright law. Copyright law is primarily designed to regulate the relationships of a single owner with other non-owners and is focused on the sovereignty of the author/owner. Social production, by contrast, requires us to articulate a matrix of relationships between the individual, the facilitating platform and the communities and crowds involved in social production. The transition from industrial production to social production transforms the social relations associated with the production of content and therefore requires adjustment of the institutions that design such relations.

This Article closely examines the social dimension of content production and analyzes the consequences for the governance of content in the social web. The Article proceeds as follows: Part I describes social production and analyzes the implications for the stakeholders involved. I focus on three key features of social production which affect why we create, how we create, and what assets are generated by these social processes involving creation. Part II explains why social production might be incompatible with the current copyright regime. In particular, I argue that copyright law mainly defines rights against strangers and fails to provide a framework for managing the rights and interests within a gigantic group of collaborators.

Hat tip to Media Law Prof Blog. [JH]

Understanding Shifts in Legal Doctrine By Examining Foundational Facts

From the introduction to Vanderbilt Law prof Suzanna Sherry's very interesting forthcoming article, Foundational Facts and Doctrinal Change, [SSRN], 2011 U. Ill. L. Rev. ___ (January 2011):

Shifts in the tectonic plates under the Earth's bedrock cause earthquakes. Shifts in the tacit factual assumptions underlying legal doctrine can produce equally seismic results. This Article suggests that focusing on these hidden foundational facts—the factual assumptions on which doctrine is based—is a vital but neglected approach to understanding legal doctrine. Just as earthquakes were once the only observable sign of movement in the tectonic plates, sudden and seemingly inexplicable changes in doctrine may alert us to changes in underlying assumptions. Indeed, such shifts may sometimes trigger our first awareness that foundational facts were driving the doctrine in the first place. And because foundational facts are invisible, the judges who alter the doctrine differ from modern scientists studying earthquakes. The judges may be unaware of (or unwilling to acknowledge) either the original assumptions or their replacements. This blindness can yield a jarring discontinuity between old doctrine and new doctrine, accompanied by a denial that the doctrine is changing at all.

This Article uses these doctrinal discontinuities to challenge conventional views of legal doctrine. The usual approach to doctrine focuses on identifying and evaluating its underlying purpose and its applications. What is the doctrine designed to do and how does it function? But some—perhaps many—doctrines cannot be adequately understood or evaluated under the conventional model because they contain an additional, but hidden, element. More specifically, some doctrines are built on foundational facts: potentially contested factual assumptions that are embedded in the doctrine itself and on which the doctrine is based. Without an understanding of a doctrine's foundational facts, we have an inadequate understanding of the doctrine and its changes over time.

Foundational facts, as described in this Article, are judges' generalized, but invisible, intuitions about how the world works. They are distinguishable from judicial values because they are, at least in theory, empirically testable. Foundational facts, however, are more generalized than what might be called the decisional facts specific to each case. Whether a particular defendant acted in a particular way out of a particular motive are decisional facts (and doctrine determines what consequences will follow from those decisional facts). But the likelihood of actors in defendant's position acting in a particular way or having a particular motive is a foundational fact, and doctrinal rules—including burdens of proof and standards of review—will be structured differently depending on whether judges assume a high or low likelihood. ... Foundational facts thus drive doctrine, and are internal to it.

These foundational facts come to light only when doctrine shifts, seemingly inexplicably and often without any judicial acknowledgment that anything has changed. When assumptions about foundational facts change, doctrine shifts as well. That doctrinal shift serves as a cue to look for changed foundational assumptions that might be driving the change in doctrine. Identifying those foundational facts, in turn, allows us to better understand and evaluate both the doctrines and the underlying assumptions.

Hat tip to Civil Procedure and Federal Courts Blog. [JH]

Protecting Speech Interests of the Fair User from the Imbalanced Legal Landscape that Favors Copyright Holders

By way of following up on Mark Giangrande's When Is eReserves Like Illegal File Sharing? about the on-going litigation in the Northern District of Georgia, Civil Action No. 1:OB-CV-1425-0DE, where three academic publishers (Cambridge, Oxford, and Sage) are suing Georgia State University for copyright infringement because the University places excerpts of their publications on electronic reserve without paying a fee, Arkansas law prof Ned Snow's Untangling Fair Use as a Matter of Law, [SSRN] may be of interest. Snow writes:

Fair use once existed as an issue of fact for the jury, rarely appropriate for courts to decide as a matter of law. During the 1980s, however, courts started to change this classification. Appellate courts started to review fair-use decisions de novo; trial courts started to decide the issue as a pure matter of law on summary judgment. By the 1990s, this treatment was commonplace.

Snow provides a critical case law analysis of the situation and offers the following conclusion:

As an issue of fact, fair use may be decided as a matter of law—but only where doing so serves its speech-protective function. On appeal, courts should defer to a jury finding that favors the fair user. Everything else courts should review de novo. This double standard of review is necessary to protect speech interests of the fair user from the already imbalanced landscape of the law that favors copyright holders. Adequate speech protection requires that both judge and jury have an opportunity to recognize the fairness of a use. For this reason, trial courts should decide fair use on summary judgment only if the ruling would favor the fair user. The proposed double standard of review and one-sided application of summary judgment are necessary to ensure that fair use protects speech.

Hat tip to Media Law Prof Blog. [JH}

Moving from First to Second Generation Digital Repository Systems

In operation as a production system since 2006, the Stanford Digital Repository has grown to support more than 80 TB of text, manuscripts, images, maps, GIS data, and audio-visual content. It serves as the preservation repository for significant collections from Stanford University and beyond, such as the National Geospatial Digital Archive, the Parker on the Web digital manuscript project, historic recordings from the Monterey Jazz Festival Collection, and Stanford's own digitization efforts. In Designing and Implementing Second Generation Digital Preservation Services: A Scalable Model for the Stanford Digital Repository, Tom Cramer and Katherine Kott (both Stanford University Libraries), describe the Repository and examine the lessons learned as this large scale digital preservation system migrates from its first to second generation design. In their D-Lib Magazine, September/October 2010 article, the authors write

The Stanford Digital Repository has largely achieved its original mission. ... With numerous successful media migrations and significant changes in staffing, the Stanford's preservation system has navigated the first of its ongoing sustainability challenges. That said, the last few years of operational experience and shifts in the environment have shown the need for a revised service model, system architecture and overall preservation strategy.

The article outlines the Repository's second generation design and service framework and reports on the project's status. "Now that the high-level design for SDR 2.0 has been completed, informally reviewed by colleagues at other institutions, and formally reviewed by the Information Security Office at Stanford University, the SDR Team has begun to build prototype services."

Cramer and Kott also offer their observations on the general state of the preservation and repository communities, and the emergence of a new generation of systems and strategies. Highly recommended. [JH]

Why Can't Johnny Research Practice Law? Or, would you hire a law prof to represent you?

"[This article] surveys the history and present practice of bibliographic instruction and offers recommendations for its improvement. [The author] asserts that most first-year legal research courses are of limited success not so much due to misconceived methodologies or inadequate instruction, but to the failure of modern legal education to provide a context wherein research training is relevant." Sounds like a timely, very appropriate article for today's critique of legal research instruction specifically and legal skills training in law schools generally, doesn't it? And it is timely but the use of the phrase "bibliographic instruction" signals to law librarians of my generation a clue as to when it was published. That would be over 20 years ago. The above-quoted abstract comes from an LLJ article that was published in 1989. See Thomas A. Woxland's Why Can't Johnny Research? Or It All Started with Christopher Columbus Langdell, 81 Law Library Journal 451 (1989).

Not much has changed in educating law school students to be prepared to practice a profession in the last 20 years. Even longer than that according to Steve Gibson in his Introduction: The Business Case for a Legal Skills Continuum in The Future of Legal Education: A Skills Continuum (White Paper Prepared by the National Institute for Trial Advocacy, 2009):

While the need for legal educators to improve the way they identify the essential skills of lawyering and how law students and lawyers alike are trained to become proficient in those skills has been studied and discussed for nearly five decades, little has changed.

Even longer than that according to Todd D. Rakoff and Martha Minow in A Case for Another Case Method, 60 Vanderbilt Law Review 597 (2007):

The plain fact is that American legal education, and especially its formative first year, remains remarkably similar to the curriculum invented at the Harvard Law School by Christopher Columbus Langdell over a century and a quarter ago. Invented, that is, not just before the Internet, but before the telephone; not just before man reached the moon, but before he reached the North Pole; not just before Foucault, but before Freud; not just before Brown v. Board of Education, but before Plessy v. Ferguson. There have been modifications, of course; but American legal education has been an astonishingly stable cultural practice.

And the consequence as Brent E. Newton, Deputy Staff Director, United States Sentencing Commission and Adjunct Professor of Law, Georgetown University Law Center and Washington College of Law, American University, writes in Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 South Carolina Law Review __ (Nov. 2010) [SSRN] is:

The academy – both in terms of its preparation of law students to enter the profession and the type of scholarship being produced by the professoriate – has lost its practical moorings.

...

The typical twenty-first century law professor has the self-identity of a “university professor” – one of the humanities – rather than as a practitioner-teacher. This identity has slowly developed over time since the beginning of law schools as components of universities in the late 1800s and culminated with the influx of impractical scholars during recent decades; law professors increasingly have felt the need to prove themselves as legitimate academicians in the university lest they be perceived as mere teachers at a trade school.

Moving Beyond Law School Reform Talk. In 1992, the ABA Section on Legal Education & Admissions to the Bar, Legal Education and Professional Development – An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (aka as the “MacCrate Report”) called for curricular and pedagogical reforms that nudged the legal academy toward improving clinical education but not enough for a number of reasons. Since the MacCrate Report, the Carnegie Foundation's Educating Lawyers: Preparation for the Practice of Law (2007) and Roy Stuckey et al., Best Practices for Legal Education: A Vision and a Road Map (Clinical Legal Education Association, 2007) have brought the issue of preparing law school students for practicing a profession by integrating legal skills in legal education back to the forefront of the law school reform debate. Just more talk unlikely to produce results?

Newton calls the legal academy to account for its own deficiencies in Preaching What They Don't Practice. He may have to avoid visiting the faculty lounge:

[M]y thesis is that it will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such “impractical scholars,” because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. Indeed, law school faculties – excluding clinicians, legal research and writing (“LRW”) faculty, and adjunct professors – increasingly resemble graduate school faculties at major research universities, whose primary mission is to produce academic scholarship and whose secondary educational mission is to produce more academic professors.

Newton presents a convincing argument that the biggest obstacle to reforming the legal academy is, well, the law faculty itself.

Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L's, and preferably ones taken at elite "national" law schools.” Some critics contend this homogeneity in law school faculties has resulted in an ethos of perceived intellectual superiority and classism and has made full-time professors, at least those with tenure, jealous of their privileged positions. Other critics contend that many law professors are so absorbed in their scholarly pursuits that they are largely unconcerned with students' needs – academic or otherwise.

(Citations omitted.)

To make his case, Newton examines:

1. The legal academy's current tenure-track hiring preference for new hires with very limited practical experience and this shift from the practical to the theoretical escalating by hiring an ever-increasing percentage of tenure-track faculty in recent years who have Ph.D.s;
2. The dominant law review publication model that provides a relatively easy route to publication-for-tenure compared to other "university professors" while producing articles more often than not that are irrelevant to practitioners without any evidence that this scholarship enhances law professors' teaching prowess; and
3. The anti-"trade school" prejudice in the legal academy where the second-class status of clinicians and LRW instructors and third-class status of adjuncts clearly indicates that most law schools do not make legal skills courses an integral part of the curriculum.

With an entrenched law faculty, who is going to meet the call to reform legal education by integrating legal skills into the legal curriculum? Newton writes:

Because practical skills are an essential component of that skill set and further because such skills are honed by significant practical experience, it is highly unlikely that most tenure-track professors – particularly the new breed of interdisciplinary theoreticians – could effectively teach such a course.

This assertion is perhaps best supported by posing a series of questions about a typical tenure-track, non-clinical law professor hired during recent decades: Could such a professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.

How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty? What message is being communicated to law students by their primary faculty role models?

How indeed? Would you hire a law prof to represent you?

Finding a Middle Ground. Obviously trashing the current legal academy to return to a "trade school" model isn't going to happen, nor is it desirable. But the pendulum must swing back toward law schools producing students with sufficent legal skills to start practicing their chosen profession competently. Towards this end Newton offers two proposals for reform:

The first proposal is for law schools to create two types of tenure-track professorships – “research” professors and “teaching” professors – with equal opportunities in the tenure-track system (although evaluated differently for tenure), equitable voting rights in faculty governance, and equivalent salaries.

The second proposed reform concerns law reviews. The traditional species of law review, the student-edited journal, would publish student works and articles by the teaching professors – along with articles written by members of the bench and bar (who would be brought back into legal academy in greater numbers) – and would focus on practical topics, such as case law and statutory analysis. ... The other species of law review would be peer-reviewed and faculty-edited (by research professors) and would publish theoretical and interdisciplinary articles – although works with relevance to the legal system, such as empirical studies of factual assumptions underlying laws and legal policies using rigorous econometric and statistical tools. Because teaching would assume a larger role in a majority of faculty members' daily existence, the amount of law review articles, and presumably the number of law reviews, likely would decrease over time from their current bloated number.

If implemented, these reforms would not turn law schools into lowly “trade schools” and would not result in an “anti-intellectual” triumph, as some law professors have claimed. Rather, they would become bona fide professional schools that would regain the respect of the legal profession.

(Emphasis added.)

One may say that the structure of the legal academy's front-line tools -- the entire law faculty -- needs to be retooled. While being debated, what's required to make that happen does not yet look promising. About his proposed reforms, Newton writes:

Although my proposals are compatible with current ABA accreditation standards, they stand no realistic chance of succeeding under the current standards. As noted, the current ABA standards permit law schools to relegate clinical and LRW faculty to a separate and unusual status. That second-class status would need to be abolished before such practical faculty would be able to become equal players in law faculties. Although the accreditation standards recently were improved to require the teaching of practical skills in addition to substantive law, they still have not gone far enough to require clinical and other experiential courses. Until such changes in the accreditation standards force law schools to retool their curricula and graduation requirements so as to mandate a substantial number of such experiential courses for all students, law schools will continue primarily hire impractical scholars whose mission is to produce impractical scholarship.

So the prospects for fundamental reform are bleak but Newton closes with this call to do so:

The legal community owes it to the public to reform legal education so as to make law students, rather than law professors, the primary beneficiaries of law schools.

We also owe it to law students. The enormous amount of tuition paid by law students per year has dramatically outpaced inflation in recent years and has resulted in huge average educational debts by law graduates. As a result of the recent global economic downturn, there has “been a very substantial decrease in employment of lawyers,” and law firms (and their clients) have responded by demanding greater skills from entry-level attorneys.  Furthermore, because fewer firms are hiring new attorneys than in the past – at the very same time that law schools are producing more graduates than ever – many neophyte attorneys will be forced to hang out their shingles and attempt to make it as solo practitioners. For their own financial well-being as well as for the good of the public, such attorneys obviously need to be proficient in practical skills.

And he offers the following words of advice: "Prospective students should eschew law schools that fail to take seriously the paramount educational mission of preparing students to be competent practitioners." (Emphasis added.)

Maintaining the Status Quo. Unfortunately many in the legal academy do not care about regaining the respect of the legal profession. Too many hope to stay the course during this current storm of criticism about legal education without making more than the absolutely minimal number of changes. The composition of the ABA Accreditation Standards Committee and its recent draft "reforms" output clearly indicates the cards are stacked in their favor. However, Newton's Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 South Carolina Law Review __ (Nov. 2010) is one law review article I highly recommend to all law librarians. Yes, it is 70 pages long and contains 202 footnotes. While I quoted from it extensively, this post does not do it justice.

As a regular reader of the current law school reform literature, Preaching What They Don't Practice cites to all the sources I have followed and many more. The author has one foot firmly planted in the legal academy and the other firmly planted in the real world, something quite rare. His perspective on legal education has been informed by having taught 32 law school courses – both doctrinal courses and “practical” courses – as an adjunct professor or lecturer while working as a full-time practitioner (including as a public defender for sixteen years). Newton's critical analysis and proposed reforms are informed by years of experience and professional judgment that one will not find in the typical law review literature because even well meaning law profs and their deans who want to reform legal education are too insulated in the silo that is the legal academy to do so.

Academic Law Libraries and the Status Quo. There is one facet of the legal academy not addressed by Newton, namely what academic law librarians are doing to bridge the divide between the status quo and what needs to be done. And unlike the law faculty, academic law librarians are actually doing something about finding a middle ground between "trade school" and its opposite. One might say academic law libraries are not wasting a perfectly good recession to better address the needs of helping produce law school students with the legal skills they need to start practicing their chosen profession. This will be the topic of the next part in this LLB series on Why Can't Johnny Practice Law? [JH] 

Hey - You - Get Off of My Cloud

Sorry, I couldn't resist the headline.  But if you need to get someone off your cloud, the latest edition of Educause Quarterly will be very helpful when you discuss it with your vendor, managing partner, CIO, dean, etc...

Libraries have varying involvement with cloud computing.  Some Library Directors oversee IT for their schools or firms and, I imagine, must meet with other IT folks on IT matters.  For those who don't, well, if you haven't already, you will probably be putting your catalog in the cloud in the near future.  Even if you don't, it is good to understand Cloud Computing so you can keep an eye on the IT department!

What is so great about Volume 33, No. 2 of EQ?

Specifically, I want to highlight the article by Thomas J. Trappler titled "If It's in the Cloud, Get It on Paper: Cloud Computing Contract Issues."  Trapper sharpened his teeth on cloud computing services at UCLA.  Early on, he briefly goes over the needed negotion skills for securing cloud services.  These, by the way, are similar to negotiating deals with publishing vendors.  He also identifies the three variations of could computing:

• Software as a service (SaaS)
• Infrastructure as a service (IaaS)
• Platform as a service (Paas)

He then escorts you through the important elements of each, offers up a glossary in context, and then brings attention to elements of a cloud computing contract that can cause complications.  Examples of contract clauses are provided on the EDUCAUSE wiki.

For the more geeky readers, you might be interested in the article by Roslyn Metz titled Cloud Computing Explained.  In the article, Metz reviews five characteristics, three service models, and four deployment models for the cloud as defined by industry standards.  She does this using examples and screen captures to accompany her text (think, WOW, wouldn't that be a great way to write a text book?).  For example, one characteristic described is On Demand Self-Service.  In this example, Metz shows us how she used the cloud based service Heroku to deploy a blogging application using Ruby on Rails, Ruby Gems, and Git.  I didn't know what all those things were, but it was cool to watch and I learned important things about cloud computing and some open source tools.

Honestly, I have not gotten through half of the Review yet, and I already feel so much more prepared to negotiate my first cloud contract this month then I ever thought possible.

Cloud computing is for libraries.  You should know about it.  This review was written to help IT directors but don't let it stop there.  These articles are well-written, easy to understand, have plenty of references to learn more, and also have visual aids.  More resources are noted on Joe's June 24, 2010 post: In the Cloud by 2020.  No excuse.  Go learn. (VS)

In the Cloud by 2020

A solid majority of technology experts and stakeholders say they expect they will ‘live mostly in the cloud’ in 2020 and not on the desktop according to Pew Internet's recent survey, The Future of Cloud Computing. While large businesses may be less likely to rely on cloud computing anytime soon because of control and security issues -- watch for private cloud developers to step in -- public cloud computing may help bridge the digital divide: "low-income people in least-developed areas of the world are most likely to use the cloud, accessing it through connection by phone." And one might say, hopefully by the availability of broadband spectrum for low cost PC-based access someday. Main findings from The Future of Cloud Computing displayed below.

Additional Reading Material: See the following articles from the May/June 2010 issue of EDUCAUSE Review:

• Rob Bristow, Ted Dodds, Richard Northam, and Leo Plugge, Cloud Computing and the Power to Choose
• John Leslie King, Clearing the Air on Cloud Computing
• Richard N. Katz, Looking at Clouds from All Sides Now (commentary and discussion with six corporate and higher education leaders)

 See also The Cloud Computing Bill of Rights: 2010 edition. [JH]

A Corrective to Legal Research Performed Through Traditional Means

"Legal research beyond case law ... offers opportunities for judges and lawmakers to better gauge the real impact of the policies they promote" writes Jeremy Patrick, a Ph.D. candidate at Osgoode Hall Law School, in Beyond Case Reporters: Using Newspapers to Supplement the Legal-Historical Record [SSRN].

Newspapers are an excellent supplement to the narrow range of legal materials found in case reporters. They offer several advantages over traditional legal research: (1) Details about the specific parties and events involved in a legal dispute that, for one reason or another, were not included by the judge writing a particular opinion;17 (2) Information about the social context in which the case took place, including the moral presuppositions held by the actors involved (victim, accuser, judge, jurors, and more); (3) Descriptions of cases never recorded in traditional reporters, allowing the researcher to better gauge the real prevalence of certain types of disputes while also gaining insight into legal decision-making that diverged from mainstream legal doctrine.

Patrick argues that newspapers are a valuable supplement and corrective to legal research performed through traditional means because they provide insights in the history of how legal concepts work in practice. One would hope Patrick will follow up this research with a study of how the legal blogosphere also supplements the legal-historical record.

Hat tip to Legal History Blog by way of Legal Informatics Blog. [JH]

Drafting the Next New Media Contract: Do's and Don'ts and Gotchas

Following up on LLB's earlier post, Time for Casebook Writers to Unite: Rethinking Author Contracts Because the eBook is Coming and for readers interested in the subject generally, Copyright Clearance Center's Chris Kenneally led a panel discussion about the do’s and don’ts and gotchas for new media contracts at the recent Digital Hollywood conference. Panelists included Cindy Charles, Senior Vice President and General Counsel, MediaNet; Alan Friel, Partner,Wildman, Harrold, Allen & Dixon LLP; John M. Gatti, Partner, Stroock & Stroock & Lavan LLP; and Virginie L. Parant, partner, Artist Law Group. Podcast here, Transcript here. [JH] 

First Look at "New Lexis:" Just Wait to Compare WestlawNext with "New Lexis" Because When a Company is in Second Place, It Tends to Try Harder

And it sounds like LexisNexis has learned a thing or two from TR Legal's WestlawNext marketing fiasco. Check out Toby Brown's Lexis Strikes Back: The New Lexis post for his brief review. Two snips about "New Lexis" from his post: 

This product will come out in a phased roll-out starting in the Fall. The product will be rolled out by market segment and each iteration will be slightly different to meet the needs of that market segment. This obviously recognizes the fact that a 30 year old solo practitioner will have different practice needs than a BigLaw partner. Score one for Lexis.

The BIG question is always pricing. Although they couldn't give me numbers yet (understandable) they did say 'predictability' will be the theme. The team actual read Greg's Open Letter [to "New Lexis.com" - Learn from WestlawNext Mistakes] posted here on 3 Geeks. Just like law firm clients, lawyers don't like surprises when it comes to a bill. So their service will be priced on a subscription basis instead of per search.

Emphasis added.

No Need to Rush: Just Wait to Compare WestlawNext and "New Lexis." When you only have one-third of the very expensive online legal search market, a vendor tends to be more responsive to online legal information buyers and consumers needs. Obviously, it is too soon to say how much more responsive but we are moving beyond "tabs and sidebars" competition in world of WEXIS online. Taking into consideration LexisNexis' print pricing moderation during the current economy vis a vis TR Legal's bleed your print budget dry approach and WestlawNext's pricing for a service not fully ready for prime time yet (see, e.g., Harrington's review and TR Legal Vice President, WestlawNext Product Development, Mike Dahn's comment), it is well worth holding off on a WestlawNext license until institutional buyers can chck out "New Lexis" and evaluate both online search services at the same time. [JH]

The Global Development of Free Access to Legal Information

The Global Development of Free Access to Legal Information by Graham Greenleaf, Professor of Law at the University of New South Wales and Co-Director of the Australasian Legal Information Institute, was recently published in the first issue of volume 1 of the European Journal of Law and Technology. From the abstract:

Since the mid-1990s the Internet's Worldwide Web has provided the necessary technical platform to enable free access to computerised legal information. Prior to the web there were many online legal information systems and numerous legal information products distributed on CD-ROM, but there was no significant provision of free access to legal information anywhere in the world. Both government and private sector online legal publishers charged for access. The web provided the key element required for free public access - a low cost distribution mechanism. For publishers it was close to a 'no cost' distribution mechanism if they were not required to pay for outgoing bandwidth. The ease of use of graphical browsers from around 1994, and the web's use of hypertext as its principal access mechanism (at that time) meant that, the web provided a simple and relatively consistent means by which legal information could be both provided and accessed. This was an attractive alternative to the proprietary, expensive and training intensive search engines on which commercial online services largely relied. The development of free access Internet law services was based on these factors.

See also Greenleaf's Legal Information Institutes and the Free Access to Law Movement (February 2008) on GlobaLex. Hat tip to Cocky Law Blawg for the link to Greenleaf's recent article. [JH]

Palfrey: "Libraries must perceive our primary function as serving communities rather than building collections."

"Our information environment, now and in the foreseeable future, is best described as a world of 'digital-plus,'" a hybrid era of print and digital legal materials, writes Harvard's John Palfrey in Cornerstones of Law Libraries for an Era of Digital-Plus (LLJ, forthcoming) [SSRN]. More:

The central idea is that new works are, and will continue to be, created and stored in digital formats as a default. The dominant mode of information creation and access will continue its shift from analog to digital. Students and faculty will access almost all legal information, at least as a starting point, through digital means.

But print and other analog formats will not disappear. Some users will continue to print out materials (whether on a personal printer or through a more elaborate print-on-demand system) to read them, to carry them around, and to mark them up by hand. Others will use printed copies of books in the practice of law as a starting point to begin their research, as they have in the past. Others will want to access rare and unique materials found in special collections—to touch the paper, to smell the must, to examine the handwriting in the margins, and more. The paper-based format can facilitate access to legal information in ways that remain critical.

Palfrey proceeds with a series of observations about the transformation underway in the dissemination and use of legal resources as a lead-in to identifying six cornerstones for the role libraries perform in this "digital-plus" era. If I have any nit-pick with this, it is that cornerstones are laid on a foundation and the first cornerstone Palfrey identifies is foundational, namely, law libraries must perceive their primary function as "serving communities rather than building collections." Coming from the head of one of the largest (and fairly well-funded) academic law libraries in the country (read I've worked in law schools whose entire budgets were less than the HLS library budget), this may seem like a controversial statement. But times have changed.

In this "digital-plus" era, the view that the largest academic law libraries have a responsibility to build and maintain a print collection to serve the "greater good," meaning the entire law library community that once viewed the nation's great academic law libraries as libraries of last resort is an antiquated notion because electronic resources has leveled the playing field somewhat. As the Harvard Law School Library's recently revised Collection Development Policy states:

The primary mission of the Harvard Law School Library is to support the research and curricular needs of its current faculty and students. The Library also supports the greater Harvard community and, to a lesser extent, the community of scholars and researchers around the world who are interested in subjects of or related to the law.

"To a lesser extent" has always been the case but it is now underscored because of the rising cost of print egal materials and current state of library economics, changes in collection development format preferences and  end user research habits. This does not mean that larger academic law libraries don't have a role to play in this "digital-plus" era for the benefit of the larger community. They certainly do, for example, in developing electronic collections by digitizing legal resources in a more coordinated way to maximize the efforts being made, as identified by Palfrey as one of his six cornerstones. Here they are:

The first cornerstone is alignment with the goals of the institutions we are part of, whether schools, firms, or agencies. Libraries must perceive our primary function as serving communities rather than building collections.

A second cornerstone of our libraries needs to be a system for understanding the changing ways in which users are learning—accessing information, performing research, creating new information, and remixing old information.

A third cornerstone is a system to coordinate the digitization of legal materials.

A fourth cornerstone is to agree to put our collection policies in writing and to share them with others publicly.

A fifth cornerstone involves making our own systems more efficient using back-office technology improvements.

A sixth cornerstone must be our process of developing our human resources. Librarians need to be change agents who listen and respond, all the while having a backbone.

If we start with the proposition that libraries must perceive their primary purpose as serving communities rather than building collections, then, as Palfrey observes "each law library is laying cornerstones for its own future." Like it or not, the "digital-plus" era is one where the law library, regardless of type, more narrowly focuses on its more immediate user population. Those law libraries with the sufficient resources available -- financial, technological and staff -- still contribute to the larger community but in substantially different ways now.

Palfrey's six cornerstones are "meant as suggestions, as provocations, as part of a process of articulating a full series of building blocks." His forthcoming LLJ article is best read in the context of Harvard Law School Library's revised collection development policy and it's likely impact on academic law libraries generally. See Digital-Only: The Shed West Era Has Been Officially Institutionalized in the Legal Academy.

Cornerstones of Law Libraries for an Era of Digital-Plus is not the sort of think piece just any old academic law library director might see published in LLJ, if submitted. But Palfrey inherits the mantle of academic law library leadership by virtue of the postion he holds at HLS. It's interesting to watch him grow into his position and apply his expertise to the field of academic law librarianship. 

As stated in a July 2008 post, I doubt Palfrey would meet the requirements of ABA Accredition Standard 603 (c) for law library directors ("A director of a law library should have a law degree and a degree in library or information science and shall have a sound knowledge of and experience in library administration.") but the ABA will not even take notice. It's HLS, after all. See A Standard is a Standard is a Standard Unless It's Not Enforced By the ABA ("As for John's appointment, I don't think our profession is so devoid of talented academic law librarians that HLS couldn't have found and hired one, but I think most academic law librarians would approve his appointment if given an opportunity to review it in [the context of making an appointment under "extraordinary circumstances" like the qualification issues presented in John's appointment]")

As previously stated in Digital-Only: The Shed West Era Has Been Officially Institutionalized in the Legal Academy, Harvard's revised collection development policy is not innovative but it is attention-getting. (Hell, even West stood up and took notice according to private communications I have had with folks in the land of 10,000 invoices.) Several other very innovative academic law librarians have promoted the cause of format neutrality in collection development for years, long before Palfrey's appointment, and many academic law libraries took the digital-only option in this "digit-plus" era in recent years, long before HLS Library's recently revised collection development policy made it "official." Like Harvard's revised collection development policy, Palfrey's forthcoming LLJ article, Cornerstones of Law Libraries for an Era of Digital-Plus {SSRN] is one for the "history books" and is well worth the time to read and think about. [JH]

Jones McClure Publishing Launches Experiment in Crowdsourcing a Print Title

Jones McClure Publishing has reached near final draft stage of "O’Connor’s California Civil Pretrial Handbook." Jason Wilson is opening the print title to crowdsourcing as an experiment in print publishing. If you are a California practitioner or law librarian and would be interested in participating, let Jason know by commenting to this blog post.

Most of the Jones McClure sales catalog focus on Texas and California state law. (I wish the Company offered some Ohio titles.) If these jurisdictions aren't your library's "cup of time," you still might want to check out the Company's federal law titles. They are, in my humble opinion, at least as good if not better in terms of editorial quality (read this Company pays attention to detail) and most definitely are less expensive than similar titles West offers. Plus you don't have to deal with West's "brand of customer service" and annual price inflation.

I'm not suggesting law libraries should buy from small legal publishers to help keep them alive; buy from them because they are more likely to do a better job at offering excellent publications that are reasonably priced. [JH]

Filling in Huge Gaping Information Holes? WestlawNext Webinars Schedule

Because most law librarians don't waste their valuable time reading TR Legal's marketing blog, Legal Current, as a LLB PSA, TR Legal is offering four live 30-minute webinar "training sessions to present information about WestlawNext." 

Top 4 Things You Need to Know about WestlawNext

- Friday, Feb. 26 – 2 p.m. CST

- Tuesday, March 2 – 10 a.m. CST

- Wednesday, March 3 – Noon CST

-Thursday, March 4 – 2 p.m. CST

WestSearch: The New Technology behind WestlawNext

- Tuesday, March 2 – Noon CST

Learn How to Analyze and Organize Efficiently with WestlawNext

- Wednesday, March 3 – 10 a.m. CST

- Thursday, March 4 – Noon CST

Transitioning from Westlaw to WestlawNext

- Thursday, March 4 at 10 a.m. Central

A couple of the webinars were offered earlier, but I, too, rarely click on my RSS feed subcription for Legal Current so, I just caught the announcement. My bad. No guarantee that anything enlightening or useful will be presented but when huge gaping information holes exist ... well, you can always leave the webinar.

Links to the above webinars (registration required) available from this Legal Current post. [JH]

The Birthing of 21st Century Legal Authority

Mike Whiteman's The Death of Twentieth-Century Authority [SSRN] is one of many articles published in the last few years that ten years from now will be looked upon as capturing the issues presented during a time of substantial change in how legal information is published and used. In a way, this is similar to articles published in the mid-1980s when online legal search no longer was viewed as novel and long-term consequences of using WEXIS were under critical analysis by legal information professionals. (I'm not referring to the published knee-jerk reaction from the 1980s luddite crowd.) Whiteman's article covers no new ground but does an good job of summarizing familiar issues presented elsewhere in piecemeal fashion. As such, it's an excellent article for an assigned reading in legal research courses.

The death of 20th century legal authority is really the story of the birthing of 21st century legal authority: the availability and use of online primary and secondary materials that are not published either online or in print by traditional commercial legal publishers like West and LexisNexis. And, of course, the problems associated: link rot, questionable information value in web resources viewed as reference works and cited as secondary authority, and the authenticity of primary legal sources.

While the issue of authenticated legal information appears to be of essential importance, are these really concerns for judges and attorneys? For most attorneys, free seems to be the guiding force, so accuracy and authenticity fall behind the desire for free legal information. There are few-to-no instances where a lawyer has been faulted for relying on the online version of a primary source, so no one will probably care as to the accuracy and authenticity of the source. “[P]erhaps the first lawyer to get sanctioned in court for using an electronic slip opinion that doesn’t actually reflect the court’s ‘real’ opinion will stop and ponder this question. Until that time, I seriously doubt most lawyers even care. Just as long as it doesn’t cost them anything.” (Quoting Jason Wilson, Screw Authenticity. I Just Want it for Free. (www.jasnwilsn.com/?p=344 July 10, 2009).

That first lawyer will not be sanctioned unless someone else calls attention to the "official" text. Who is really checking that anyone? Whose libraries actually contain the official texts in print anymore? In the 1980s we most certainly did check for differences between online output and printed official texts regularly, and occasionally found discrepancies. Today, I wonder if anyone besides SCOTUS clerks and law review cite checkers are. About the only thing one reads about is the occasional bench slapping when a citator other than Shepard's was used to confirm "good law" that wasn't. Sorry West, CaseMaker, etc., you just don't offer the citation service that still rules the day.

Ten years from now, if not sooner, the current issues surrounding primary source authenticity will be resolved and law librarians will look back at articles like this one, just as they look back at articles from the mid-1980s, as milestones reflecting concerns during the midst of revolutionary change in legal publishing.

The online world has leveled the field so that all players start, by and large, with the same access to the same materials. While it is true that this has the effect of watering down the possible strength of the authority being relied on, at least all sides will be relying on the same authority.  ... Some good has come out of the death of the old legal authority and the birth of the new. While legal authority changes, caution is needed before rushing head long in to the new era, but there is optimism that this new era will be one that provides an increased openness in the way society accesses the legal authority which is so important to the smooth functioning of the judicial system.

While a serious concern, the watering down of authority is a temporary phenomenon, a hallmark of transitioning to a new era. Courts are settling issues presented in the use of web resources like Wikipedia, etc. and once authentication of online primary resources is institutionalized, the dust will settle.

Contemporary (Sloppy) Research Methods That Legal Research Instruction Will Not Fix. What's more disconcerting because there is no evidence of improvements even being on the horizon is the change in research methods. Whiteman writes

There is a whole body of literature that has tracked the idea of how research habits have changed with this shift to online information sources, and how computers have created a generation of researchers who are better at searching for facts than they are at finding legal concepts. There have been studies that have looked at how attorneys have moved away from the venerable West Digest system, how lawyers and judges have relied more and more on non-legal sources, and how this shift to online sources has led to a new way of looking at and analyzing the law.

Studies have found that if different legal researchers are presented with the same legal problem and only perform online research, they are not likely to even agree on what the legal issues are. Why? Because online editorial content is not informing their research decisions.

First and foremost, the display of secondary sources in itty-bitty content slices by most legal publishers has created a generation of legal researchers suffering from an online myopia, one that does not "see" the conceptual interconnectedness provided by the writers and editors of secondary sources and tools. Flattening of this structure by some next gen online services in an effort to be "more like Google" is only making matters worse. This is not a problem that legal research instruction in online use is capable of solving because research instruction is dependent on the resources available.

The Reshaping of American Legal Tradition by WEXIS. This is a problem created by the current delivery of online secondary content by WEXIS; one with significant implications for the rule of law in this country. Yes, the rule of law, not just how it is practiced. We might as well consider replacing our common law tradition with a civil code system.

It is not far-fetched to say that our very expensive legal search service vendors are reshaping American legal traditions to suit their own objectives. It wouldn't be the first time. That's exactly what John B. West did in the late 19th century. One might say that jurisprudence is held captive by the current duopolist structure in the legal publishing market. Not sure there is an antitrust argument here, but this is the legal environment we are living in.

Self-Destructive Behavior by Very Expensive Legal Search Service Vendors. Essentially, WEXIS has been and is destroying the value created in their own secondary titles by how they are currently being delivered online. This may have significant consequences that future legal historians will discuss because, if not usable, secondary sources won't be used. Nor may most continue to be part of WEXIS online licensing agreements unless given away. We will see other vendors, including new ones, who know better than to distroy the value-added in their secondary source offerings take advantage of this situation.

Hopefully ten years from now, this, too, will be looked upon by tomorrow's law librarians as a transitional issue that has been resolved. [JH]