The Year In Law Libraries

The panel had some good comments on the year's biggest developments. And predictions.... the predictions are available in the chat room transcript, which you can find by clicking here.

I'll post more information about the show later.

Reflections on Conversation with Anurag Acharya, Google Scholar

Reaction to Google Scholar Legal Opinions and Journals (SLOJ) has been largely defined by our experience with extant legal databases. All online legal research tools that we're familiar with at present are databases filled with documents that we search using boolean operators or simple, character-by-character, word-for-word text searching. The main differences between, say, Westlaw and the ordinary "find" command when you search your documents or use Spotlight on your computer, is that Westlaw indexes the documents in ways that we take for granted. Things like proximity connecters, segment searches, etc., are all part of the indexing process and gives us extraordinary power to use the computer to conduct detailed and very precise searches of its database. Other vendors that we're familiar with use similar processes.

Google, on the other hand, as a search engine, is unlike any other in our experience. There is really no full text searching going on. Google's search philosophy is very adequately discussed in James Surowiecki's, "The Wisdom of Crowds." Google does not really search cases or articles for the terms used in your query. Rather, it uses the terms in your query in a variety of ways. It will recognize which are names of parties, which are legal principles, or author's names, article titles, etc. It then uses it's vast network of data which links cases and articles together and returns results based upon frequency of linking and cross-referencing. This is a gross over-simplification, but it suffices to illustrate that the search results are not the objective kind of results that Westlaw, Lexis and others produce. Searching in Google is quite subjective by comparison. Not, of course, in the sense that it is anticipating or evaluating the meaning of the query and returning results accordingly, but in the sense that based on your query, the results returned are based on a document's popularity. The more times a document is cited, the more important the search engine assumes it is.

This approach to searching for law is completely different from other search engines and poses very distinct problems for legal researchers who are tempted to use it as a substitute for "Wexisberg". (Thanks to Greg Lambert for this new portmanteau of Westlaw, Lexis and Bloomberg.) When understood, Google will produce stunning results. The fact is, it does exactly what it says it does. Many criticisms of it as a legal research tool are based upon comparisons of it to Wexisberg, which is something like comparing apples and oranges.

This is not to say that Google SLOJ doesn't need to improve. There are many things that Google can do to make it more palpable to lawyers and legal academics. Clearly defining the content of the databases being searched for one thing. At this point, it all seems very mysterious.

Chat Room Transcript from 4 December 2009 BlogTalkRadio Show

I will be writing later about our conversation with Anurag Acharya, Chief Engineer of Google Scholar. Greg Lambert, Roger Skalbeck, Marcia Dority Baker and I had a wonderful 90-minute conversation with Mr. Acharya, and I think that I speak for us all when I say that the conversation was not only enlightening, but we were all very impressed with Mr. Acharya's charm, his sense of humor and the great delight he has in his work. Like I said, more on that later. For the time being, please feel free to peruse the transcript of the chat room. And, as always, remember that you can download the show on iTunes or from the show's website: http://blogtalkradio.com/thelawlibrarian.

A couple of notes about the show, for anyone interested: we had a record of 301 live listeners and 105 people in the chat room! Over the weekend, there have already been nearly 140 downloads of the show. Thanks everyone who participated. We've a lot of exciting shows planned for 2010. We'll be taking the holidays off, but plan to return on January 15. At that time, we'll begin our new schedule of recording/airing twice a month on the first and third Fridays of the month.

Until then, please, everyone, please have a safe and happy holiday season. And for all the crew at The Law Librarian on BTR, we'd love to hear from you your ideas and thoughts about how we may improve.

Google Scholar LOJ - Where Did Google Get the Cases?!

Uh-oh. It may be nothing at all, but a few searches in Google SLOJ have retrieved cases that have headnote numbers embedded in them. There are no headnotes, of course, nor are there any key numbers, but the headnote numbers themselves are clearly embedded in the text of the cases.

What does this mean? Apparently the cases in Google SLOJ were, at some point, in the Westlaw database. To see what I mean, search for State v Dragoo, 765 N.W.2d 666 (2009), in Westlaw. Now, find the case on Google SLOJ. As you scroll down through the opinion, you'll notice that on page 670, at the beginning of the first paragraph under the heading "Standard of Review," is a number one, in brackets: [1]. The second paragraph of the section has the numbers two and three in brackets: [2][3]. This corresponds to the headnote numbers in the West version of the case.

Oddly, the Google SLOJ version of the case has excluded the court's own Syllabus, which isn't an official part of the opinion, but is written by the court and is contained in the official publication of Nebraska Supreme Court cases, and is included in the Westlaw version as well. This also explains why the Google SLOJ version is missing page 667.

Listen carefully, you might soon be able to make out the sound of a shoe dropping in Mountain View....

Official Google Blog: Finding the laws that govern us

Always humble. Read Google's explanation of what their new service, Scholar Legal Opinions and Journals (SLOJ), is intended to accomplish, you'll see that they see themselves as giants standing on the shoulders of giants. Fascinating.

Official Google Blog: Finding the laws that govern us

Google Scholar - (Almost) Great Free Legal Search

Amazing. Google has made a giant step toward creating a practical search engine of legal materials. Click on the link above the check it out. Google's new Legal Opinion and Journals (LOJ) is not a Wexis, or VHPPLM killer. It is a game changer in the "free law," community.

Here are a few initial comments about it. First, it is still classically a Google product. By this I mean that they spend little time working on user interface. It is what it is. We tend to forgive Google for all it's faults because it simply has little competition and it's so quick, easy to use that the annoyances of the way the search results and options are presented to you are forgiven. It's quick and easy. Forget the clutter.

Second, it's amazingly snappy. Searches on any topic I threw at it, in any combination of databases were returned in the blink of an eye.

Third, the "How Cited," tab is fascinating and provides quick access to raw citation information on the case. Like everything Google, there's little help distinguishing one cite from another, but there is help. And the information provided is good. The speed of the Google engine can make drilling down to particulars very quick - even if it means that you have to wade through hundreds of cases. Clicking from case to "How Cited" tab, to case, one can quickly get lost, but if you keep your wits about you, you can learn some interesting things about the case you're researching.

Fourth, it is unclear just exactly what you're searching when you use Google Scholar's Legal Opinions and Journals, (GSLOJ). When you click on the Advanced Search link, you get choices of, "Search all legal opinions and journals," or searching only Federal opinions or individual state court opinions. State court opinions can be searched in any combination, just by clicking boxes and selecting the states that you want to search. Trouble is, there is no description of what library of journals is being searched, or what are the years of coverage for case databases. Do the Nebraska cases, for example, go back ten years, twenty, or two. It's hard to say.

Fifth, there are no statutes or regulations to be found in/on LOJ. What's with that?!

Sixth, you can't search only Law Journals. With the growing movement to develop digital commons, and to move law reviews to the web, it would be immensely helpful to be able to mine this vein of secondary material.

Overall, Google Scholar's new LOJ is a welcome entry into the free online legal research community. I don't think that West or Lexis have much to worry about, but LII, Justicia, et al, may have "competition."

What impact this will have on Law.Gov, "Free Law," and kerfuffles? This is certainly a game changer.

For the Official Explanation: http://googleblog.blogspot.com/2009/11/finding-laws

New Concept in Database Search Engines

I have been thinking about this concept for about a year, and I can't get it out of my head. It's time to share it. I hope that Google, CCH or BNA reads it, exploits it and sends me a hefty check....

Why online haven't legal database providers figured out that online databases are a new breed of legal research tool and developed something completely different? To date, all online databases are not much more than online versions of their old-fashioned print tools. There are differences, of course: Online searching allows users to find particular cases and documents quickly, sort rapidly and print more cleanly, but in reality, online tools do no more than allow users to skate around through masses of undifferentiated primary law, using cite-verification tools to sift through the mass of material fairly quickly. But without much help or guidance.

I propose development of a new kind of online search engine. First, let's establish a few assumptions. First, let's presume that cases cited by treatises, law review, blog writers and commentators are cases that are most important than cases that are not cited by these writers. Second, let's presume that cases cited more frequently are more important than less cited cases. Third, it is possible to make assumptions about the relative value of a case based upon the kinds of works a case is cited in, as well as the kind of treatment that a case receives in that work.

Based upon these three assumptions, I think that it is possible to develop a database(s) that is comprised of only cited cases. What's more, meta-data can be created that will note where it was cited, and the level of treatment.

There are at least six great sources from which you can build such databases. West has, perhaps the greatest library from which to build such a database. It's collection of secondary materials is tremendous. Lexis is also well-positioned to accomplish something like this with its Matthew Bender titles. But, perhaps the two companies best equipped to build such a high performance database are CCH and BNA. These companies own some of the very best specialized law treatises. It's nice for these companies to put their newsletters and looseleafs in electronic format, but, to paraphrase early library automation consultants, "an electronic version of a good looseleaf only creates a good electronic looseleaf." In other words, it doesn't make a good thing better; it only makes it electronic. In order to make a good thing great, it must be different. (That should be obvious, but somehow it's not….)

But what if you're not West, Lexis, BNA or CCH? Are you out of luck? I don't think so. There are two resources left. First, Hein Online is now comprised of an unprecedented collection of law reviews. This is a vast gold mine of notable cases. Hein itself could develop a search engine that sifts through the very best cases based on citation frequency among law review writers.

A newly emerging resource that may accomplish roughly the same thing, are digital commons and blogs. Looking forward, a crawler could be designed that will crawl through digital commons, legal blogs and law review websites looking for cited cases. Here, the presumption is that cases that are discussed by more writers are more significant.

Finally, it is possible that such as database could be made simply from cases cited by other cases. It can be presumed that cases that are cited by other cases most frequently are those cases that are more significant legal precedents.

Interview with Carl Malamud; Thoughts on "Free Law," Kerfuffles and Law.Gov

On Friday afternoon, 6 November 2009, we interviewed Carl Malamud, founder of Public.Resource.org. A transcript of the chat room can be found here. You can download the interview from The Law Librarian's BlogTalkRadio web page or find it on iTunes.

Law.Gov was the focus of the interview, and it seems that much of the hoopla (and kerfuffle) about Law.Gov and the "free law" movement is all misguided worry on the part of commercial publishers. The worry on the part of researchers is justified, but, after listening to Malamud's explanation of the Law.Gov movement, not cause for pessimism.

Lexis and Westlaw are the two largest commercial sources of very high priced primary legal material (VHPPLM), as opposed to "free (primary) law," (FPL). The worry on the part of VHPPLM providers is that the free law, or the Open Access movement, will result in loss of market share and lost revenue. The logic of this is really extraordinary. VHPPLM providers get the primary material for free, refine and repackage it with very good (no, excellent) indexing and finding, and then sell it to professionals at a premium.

This is perfectly fair (if over-priced), because the market will get what it can for its services.

The problem with the equation is that the people who deserve the FPL, the people who actually, by right of citizenship, own it, end up in a position that makes it difficult for them to even get access to it. Ordinary citizens must have complete and reliable access to FPL. It is argued by many that unfettered access to it is even critical to our democracy. As our government depository program dries up and disseminates more and more government information via the internet or formats that require mediating technology or services, access to information becomes less available to the general population.

In fact, over the last century governments have, in some cases, abdicated their responsibility to freely disseminate their laws and legal materials to commercial publishers, making VHPPLM the sole source of access to the law. For example, until the late 1970's, when Lexis came on the scene, the opinions federal district and circuit courts were only published by West Publishing. Many states have ceased publication of their own case law in favor of West's Regional Reporters, and, in some cases ceased publication of their statutes in favor of commercial publication of their codes. This left access to the law beyond the reach of most citizens and, even, many public libraries.

If an informed citizenry is critical to a functioning government, what can be done to make sure that the laws are accessible to everyone who wants to read them? Who looks out for the public, who simply wants, indeed by rights needs free access to government information? Well, Open Access advocates do, as do people and movements that work to build free databases that strive to provide reliable access to primary materials. LII is an example of a service that's been around for a long time and that provides as much access to free information as possible. The problem for aggregators like LII is that the information that they provide is only as good as the sources available to them. And governments are just not very good sources of their own information.

Law.Gov is a movement that is determined to work to raise the quality of government information. They are determined to establish standards for state and local courts, legislatures and agencies to follow in the production and distribution of their own legal materials.

If Law.Gov succeeds in its mission, it will mean that governments and courts will produce better information, in formats that are reliable, accurate and distributed freely to all who need it. And all who need it include both private citizens and providers of VHPPLM. As such, this is good for news for providers of VHPPLM, as well as ordinary consumers of primary legal materials.

As Malamud said in response to a question from the chat room that asked whether he sees Law.Gov as a competitor to Lexis and Westlaw, (paraphrasing) "No, absolutely not! We are simply looking to formulate a system that will assist governments and courts to provide free, reliable access to government information." Lexis and Westlaw, will be the beneficiaries of the movement, as will the public. (Gee, they are members of the public, aren't they?) Nothing in the movement should discourage them from developing their critically important secondary materials.

Law.Gov is entering a phase of self-study and over the next year will be examining how governments and courts can work to systematically and freely publish and distribute government and legal materials. Visit http://public.resource.org/law.gov to learn more about Law.Gov. At the website you can find out about how to donate to the project and support its work, and about a nationwide series of workshops that will be held next year to discuss how its work will be accomplished.

Exciting Times are Coming: Check out Law.gov

It's rare that the buzz in the air is equal to the reality. I think that we're finally approaching a critical mass in activity to bring the movement to preserve, protect and distribute state primary materials to fruition that something may actually come of it. In addition to Carl Malamud's law.gov effort, LIPA, the Chesapeake Project, AALL's Authentication & Preservation of Digital Law Special Committee, and NCCUSL's State Electronic Legal Materials Committee, other initiatives are developing which, if coordinated, can actually help the nations law libraries breath easier, by freeing us of the necessity of having to pay for reliable primary materials.

West, Lexis, BNA, CCH and others should breath easy about these developments, too. What they have is more valuable than the primary law. Secondary materials are the things that help lawyers, researchers and scholars make sense of what the law is, and that's at least as important as having access to the law itself. Law publishers should be prepared for a major shift in their business plans: sale of primary materials is going to begin to shrink, and they're going to have to realize that their income is probably going to shrink some, too. But their sale of secondary materials should remain stable, even grow in importance and value as access to primary materials proliferate. [Note to commercial publishers: focus on the unique things that you bring to the table, scholarship, indexing, commentary, practice aids, etc., and forget about trying to convince people that your work dressing up free materials in fancy bindings is worth as much. It's not. It's nice, but let's face it, the Federal Reporter isn't worth nearly as much to researchers as Wright and Miller or the Key Number system!]

That is, unless the publishers continue their frightening practice of inflating prices of all their materials to such an extent that makes secondary materials virtually unaffordable altogether for libraries to purchase, update and hold. The present practice is for publishers to inflate the prices on print and secondary materials to make up for declining sales. As prices go up and libraries' revenues go down, law libraries can't afford any materials from big publishers; primary or secondary. In that case, we all loose.

Here comes the dawn....

Technical Services in Law Libraries: checking and checking in web pages?

This is just a random thought. But it has occurred to me that if libraries undertake to be good stewards of born digital public information, that our technical services departments will have to establish standard methods and practices for visiting public websites where the information is released, and download it systematically. Is this much different from checking in serials? I think not...

Using Social Media in Law Libraries

This month on "The Law Librarian," on BlogTalkRadio, we discussed using and uses of social media tools in law libraries. We had a lively discussion about the use of "socnets" (social networks) for a variety of purposes: marketing, general information, announcements, etc. But we also eventually got around to discussing the use of these tools for gathering information and, even preserving it. Clearly, we are at the very cusp in the development of these tools, and it appears that they are swiftly becoming a new currency for library services and communication.

Click here for a transcript of the chat room of the show. Click here if you want to take the short survey about uses of "socnets" in law libraries.

Law Firm Librarians Speak Out About the Real World

Last Thursday's BlogTalkRadio show was very informative. Particularly because we had a lively group of law firm librarians who were quite willing to share their ideas about the skills that law students/recent graduates lack. The firm librarians were Liza MacMorris, of Wilson, Sonsini, Mary Staats, of Farella Braun & Martel, Kathy Skinner, of Morrison Foerster, Sara Paul, of Paul Hastings, Camille Reynolds, of Nossaman, and Peg LaFrance of Orrick. (Many, many thanks to them all.) The message was loud and clear:

First, we need to be very focused on teaching students the value of secondary materials. To a person, they were very concerned that students understand that beginning research with an appropriate secondary source can save them not only a great amount of time in conducting their research, but it can save their clients lots of money, too, because it will mean more precise and more efficient online searching later in the research project. The group was also adamant in this regard that it doesn't really matter whether they are beginning their research with a secondary tool that is in print, online or otherwise. The consensus seemed to be that many firms were still keeping the key treatises and practice materials.

Second, we were admonished to spend more time instructing our students about cost-effective online research techniques. Things like strategic use of research trails, tabs, etc. The message here is clear, CALR in law firms is costly! And any techniques that can be used to reduce the costs is something to be strived for. Since we academics have no reason, let alone day to day incentive to utilize such things, we need to make an extra effort to do so. Here's a situation where calling upon our Wexis representatives to conduct specialized training in these issues. I know that I will be attending them, too.

Third, several of the librarians said that new lawyers and summer clerks need to better understand how to use the librarian. Many come in firms unsure what they can ask librarians, and, then fail to do so. Not only are firm librarians willing and able to assist with help on research products, but often they can help locate experts within the firm. For example, if someone is given the task of researching an issue, sometimes a firm librarian can tell the researcher that another attorney in the firm is either an expert in that topic, or has recently conducted similar research. That person may be the best place to start. The bottom line is, new attorneys and summer clerks shouldn't be shy about asking the firm librarian for help and advice.

Finally, there's been a number of requests for a transcript of the chat room discussion that consisted of nearly 80 participants.
Click here for a copy of that transcript.

In the meantime, I think that the discussion will benefit any librarian who teaches legal research. It can be listened to at the show's website, here, or it can be downloaded from iTunes here. Of course, you can click on the box to the right and listen to it right here, right now.

There's also a discussion begun at the show's Facebook page: http://tinyurl.com/nouem4/. Please feel free to join in.

Gizmodo: Sony Virtual Library eBook Check Out

In an interesting twist, eBooks are now available for virtual check out from libraries. Gizmodo's article says it all:

My favorite part of Sony's Reader announcement was probably Library Finder, powered by OverDrive, which lets you check out eBooks from your local library—and "thousands" have signed up—for free, wirelessly, direct to your reader. But there's a catch.

There aren't an unlimited number of ebooks—each library has an actual "stock" of ebooks (because the library had to pay for each copy). So, if they have a stock of 5 books, and they're all checked out, you have to wait in a queue for somebody else's book to expire when they hit the 21-day mark. When it's available, you get an email, and then you can go check it out.

Today also marks the launch of Sony's Library Finder application. Sony, working with OverDrive (www.overdrive.com), the leading global digital distributor of eBooks and to libraries, will now offer visitors to the eBook Store by Sony easy access to their local library's collection of eBooks. Thousands of libraries in the OverDrive network offer eBooks optimized for the Sony Reader, and visitors can now find these libraries by typing their zip code into the Library Finder. Through the selected library's download website, visitors can check out eBooks with a valid library card, download them to a PC and transfer to their Reader. At the end of the library's lending period, eBooks simply expire, so there are never any late fees.

The Reinvention of Legal Research: The Future Is Now

The Future Isn't Now. Not quite. Just because we can get "free" and easy access to all the primary law in the world, it doesn't mean that we can safely say that we can do "free" and easy legal research.

There's an interesting post on the Huffington Post that's being circulated in the law library blogosphere by Peter Schwartz that's causing some alarm with the declaration that "The Future is Now." I think that Mr. Schwartz is overstating the importance of access to primary materials and fails to understand the real subtlety of legal research.

First off, I agree that the two big publishers, Lexis and West are in big trouble. They have built their empires publishing primary law, and they're making so much money doing so that they've mistakenly come to believe that that's what they are: commercial publishers of primary legal materials.

While it's true that both companies began by publishing primary materials, this isn't the real value that they bring to lawyers, libraries and legal researchers. When West Publishing first began, it brought something to the field that didn't exist before: quick, easy access to cases. That was it's bread and butter. When Lexis entered the scene in the late 1970's, it brought quick access to primary law, too. But over time, West's greatest contributions to the field was it's Key Number System, CJS, and it's great treatises, such as Wright and Miller.

The real trick of legal research (the lawyering part) isn't necessarily finding the law, it is interpreting and understanding it. This isn't done by merely reading a lot of cases, it is done using tools: treatises, classification systems, restatements, journals, etc. Any researcher worth his salt knows, that having every case on the law of insider trading isn't worth a damn toward understanding the law of insider trading; unless you have time to read ten thousand cases!

Today, in the modern legal information economy the useful parts of what West and Lexis are selling us is not the primary law, it's the secondary materials! Lawyers don't actually learn what the law is by reading cases, they learn what it is by reading treatises, handbooks and articles written by scholars and experts who do read the cases.

What West and Lexis under-appreciate with their ridiculous pricing options is that making people pay through the nose for access to primary legal materials - when nearly all of it is available for free in numerous places - is blind. What they both possess that has real value are their secondary materials: key numbers, treatises, etc. This is what they should be selling and promoting. I'm looking for the day when I can cancel all the reporters and access to the primary materials and focus on collecting the secondary. Hopefully, someone will be archiving the primary materials.... just in case.

Peter Schwartz and others correctly point out that lawyers and their libraries may soon simply have to stop subscribing to Lexis and Westlaw because their services are becoming unaffordable. This may soon be true. But if we do, how will we find the law? Without those treatises and classification services, we're hosed. Right?

E-Textbooks come to the Analog World!

The New York Times (and many others) report that textbook sellers and publishers are renting textbooks. The irony is stunning. One of the (many) complaints about e-textbooks has been the fact that you can't really "buy" one. You simply license it. But the paradigm that publishers and booksellers drool over is one where they can license the information without having to sell anything. They would love to sell you the material each time you use it. For years textbook publishers have been complaining about students' resistance to adopting e-textbooks. It appears that they've discovered a way around that obstacle: let students rent the books. They get the real thing, but have to give it back so it can be re-sold.

Watch for the development of special paper that these textbooks will be printed on that can be thoroughly erased when annotated with certain (proprietary?) pens, pencils or highlighters....

I credit Mr. Jerome Rubin, of Lexis fame, with developing the "pay as you go" approach to selling digital information. In my opinion this development is counter-evolutionary, if not downright criminal....

Following the Yellow Brick Road to the Ephemeral City....

The Ephemeral City and Modern (Digital) Libraries

As we move toward an all born-digital information future feel like I’m wandering a yellow brick road that leads inevitably to the Ephemeral City. A city governed by illusion and impermanence. We need to be careful, lest we all end up with libraries filled with copies of 1984 to our suppliers’ Amazon.....

I’m not sure of the exact reasons, but it seems that law, especially legal academia creates more than it’s fair share of ephemera. Much of it developed by the sources of the law itself: courts, agencies and legislatures. Slip laws, slip opinions, advance sheets, letter rulings from nearly every agency, position papers, reports, speeches, lectures, etc., all material that can/may/should/could have very important effect legally or historically.

Over the years, libraries have handled ephmera many different ways: tossed them, added them to a vertical file, bound the items that seemed important, saved them in princeton boxes and waited for enough to accumulate for binding by year, volume or some other cycle. It also depended on whether the material was regularly published or was subject to editing and re-compiling prior to an official compilation/printing/publishing cycle. This is material that is important, but was not published in a format typical of important material: durable bindings, paper, organizational finding aids, etc. It was relatively easy for librarians to collect ephemera, (it often came unsolicited in the mail, from faculty who had attended conferences, or came as part of a larger subscription arrangement such as from the FDLP, or a looseleaf subscription, etc.) but not easy to catalog, organize and preserve.

I’m very concerned that all material that is “born digital” is, by definition, ephemeral. The recent Amazon/1984 fiasco demonstrated to us that nothing digital is permanent - even if you “bought it” from a reputable dealer. Another example: I was recently referred to Lawrence Lessig’s presentation, “Free Culture,” presented at the 2002 Open Source Conference, as being one of the best presentations, ever. I followed the links to watch the presentation. It’s not available online any more! Not even at Lessig’s own, lessig.org website. I’ve no doubt that this may be a temporary situation and that the presentation can be put back online as easily as it was taken away. The point is, the digital content can be changed - no matter what - with the click of a mouse. No mater what. No matter what! (I’m repeating myself on purpose to challenge those objections in your head.) No matter what....

When I raise the issue of digital information’s archival value, publishers look at me with a look of understanding and empathy, then say, “There are ways to make it permanent. That’s not a problem any more.” I’m sorry, it’s still is a problem. People with links to Lessig’s Free Culture presentation thought that the link they used was permanent. People who bought 1984 from Amazon thought their copy was permanent. Duh. As far as I can tell at this point, the only way to make the material absolutely permanent is to commit it to some format that IS permanent. Etch it in stone, if you like. But a hard disk, e-book reader - even a very expensive one is simply not permanent. No way. No how.

And it’s something that we have to start worrying about or we’re going to be responsible for a catastrophe of remarkable scope. Ask Carl Malamud about going back and “digitizing” Betamax tapes of federal hearings and programs. How easy was it to find betamax players to use to get the material off the tapes? How long will it take before the data on our present servers needs to moved to the next generation of servers. Will we (or whoever the custodians are) move all the data? Or only the data that’s used most often? Most recently? Perhaps only the “good” stuff. The “important” stuff.” Who decides?

If all legal information is “born digital,” a la The Durham Statement, various digital commons, etc., it is my opinion that all of it becomes ephemeral, and this means fluid, quick moving and able to adapt and recombine like a virus. When the law (primary, secondary and everything in between) is published ephemerally like this, how can it possibly be stored, organized and preserved for posterity, scholarship or practice with the level of consistency and authority that users of legal information have taken for granted in the past?

In today’s information economy, when someone wants to see, for example, the first (English) edition of Burlamaqui’s Principles of Natural Law, it’s piece of cake. Once you locate a copy, or a reprint, there it is. The person can hold it, scan it and quickly satisfy him/herself that the copy is authentic. Unless it’s a counterfeit, just holding the book satisfies the user.

What is the equivalent for an article or a book that your find online? Whether it’s in a BePress Digital Commons, a blog, Intelliconnect, Lexis or Westlaw, we’ve not yet developed a technology that can communicate a document’s veracity and authority beyond a doubt.

In my book, it’s all becoming ephemeral....

Getting Impatient

Just a thought: I'm beginning to get frustrated with publishers, now. They seem to be stuck in a rut. All they seem capable of is getting us the same old thing in new packages. You know, "books on database." When it gets down to it, for the most part most publishers are selling us the same thing twice. Once in print and once electronically. And if we all dump the print in favor of the electronic format, all we've really done is accelerate the process of information distribution, electronic newsletters, search engines, hypertext links, etc. Fine. But that isn't what the whole technological revolution is all about. The difficult task of legal research (of lawyers) is making sense of all the information.

There are tools that publishers can use to facilitate that process. Targeted data mining, subject tagging and indexing, doing marvelous things by making secondary sources the center of search engines, and all sorts of things that we can't even imagine yet. But where are they? Lord knows we've got the computing power! Use it for crying out loud!

Publishers should be selling us something new. Something useful. And, in an ideal world, would be free....

This was sent from my iPhone, so I'm sure it's riddled with errors. Please forgive me. I will sit down later with my computer and clean it up.


Richard Leiter

The New Mode of Conference

[Below is a draft of a column that will be coming out shortly in Legal Information Alert. The published version will be well-edited and cleaner. I encourage you all to check that publication out....]

Two weeks ago I attended the 19th annual CALI conference in (beautiful/splendid/amazing) Boulder, Colorado. As conferences go, this one was remarkable for several reasons.
First of all, the venue was fantastic. If you haven’t been to Boulder, add it to your bucket list and move it into the top ten. And if you go to Boulder, even if you have no interest in visiting just for the fun of it academic law libraries, be sure to visit the law school at the University of Colorado.
But more pertinent to this column, there were many surprises. I have been attending CALI conferences for years. When I began attending CALI in about 1992 or 1993, I initially found it to be a disturbing experience. The general topic of the conferences was fairly routine for the early 90’s: books were dead and the world was going paperless. IT attendees tended to look upon librarians with pity, and librarian attendees fell into two camps, either they were revolutionaries who agreed with the prevailing prevailing point of view that libraries were dead, or they were left in the uncomfortable position of having to defend themselves, knowing all the while that their mere attendance at the conference was a tacit admission that things were, at least, changing in mysterious or threatening ways.
As an Associate Dean of library and Information Technology, I attended regularly every year for a few years. But after a while, I grew tired of the rhetoric and attended every other year, and, lately every three years. There were other ways to keep current with technological developments in computer hardware and administrative systems, and none of the rhetoric convinced me that simply by “putting everything on computer” would necessarily make researching or running a law school any better. It always seemed to me that technology should be adapted to appropriate purposes, thereby creating new tools for administration and research, that sometimes, but not necessarily always presumptively replaced old tools. Some tools were destined for complete metamorphosis, or death: print versions of Shepard’s, various indexes, directories, paper filing, bluebook test-taking and admissions tracking to name a few. I remember one member lamenting the near-unanimous of rejection of e-textbooks by 1L’s in a poll after they were part of an experimental class which was given no print casebooks for the entire first year, “Until someone can invent an e-book that has the look and feel of print, students will never accept them!” The fact that the person thought that simply mimicking the look and feel of paper would somehow make the experience better somehow, simply rang hollow. Computerization for it’s own benefit just simply made an existing thing faster. And there were some things that just didn’t need to be done at light-speed.
In those early days, I was also one of the few Mac users. (People accuse me all the time of being a Mac fanboy. Well, I suppose there’s some truth to that. I sure do like Macs.) When I would warn of the impending rise of the Mac, I would usually be dismissed with a sniff.
This year, however, I was very surprised at what I found. First off, the content of the program had generally shifted from the general rhetoric of “death of books,” to “here are some cool things that we can do on a computer.” It was inspiring. The focus was on new products, new capacities and capabilities, completely new tools that do things in ways that we never dreamed of. It was cool. In all fairness, new products and services were always being revealed and talked about at previous conferences, but, in general, the rhetoric and the quality of products tended to focus on their ability to displace old things with new, better ones, simply because they were “automated,” “digital,” or “online.” I only heard a soft-beat of the death of the book drum at the keynote, and, even that one was somewhat apologetic. This changed tenor of the conference for me by allowing me to focus on the neat, new things we can do with technology.
The concept of e-books is no longer how to simply digitize casebooks, but how to use technology to enhance teaching and the learning experience. We learned about fantastic new cloud based products and services like DropBox and Buzzword, we learned about using technology in teaching, about new tools to help build better websites, like Aquila Drupal and about how to build electronic course supplement packages. We also learned about new online products coming from CCH, Westlaw, BNA and Hein that, potentially will make a difference in how we research.
Not only was the tenor of the meeting splendid as a result, there was an amazing new dimensioned that none of us could have dreamed of even a year ago: Twitter. During the whole meeting, there were at least a couple dozen people that were tweeting about every program and activity and nearly every conversation! When you were in a program, you could simultaneously monitor what was happening in every other program. All you needed to do was follow tweets with the hashtag #calicon09, and you found a play by play of the entire program. One time, a speaker got way off the mark with some bizarre ideas about changing law school pedagogy and, during the talk, a debate raged about them. I had left early because my blood had begun to boil and went to a program on cloud computing that was very informative and enjoyable. The tweets confirmed my opinion of the other program.
And then there were the Macs. Roughly thirty percent of the attendees had Mac. Astonishing. The people that didn’t were the ones with new netbooks or ancient albatrosses that nearly looked antique. In an amazing irony, one of the pioneers of use of technology in legal education proudly showed me his new Dell Mini (I think it was), on which he had installed OSX! There were lots of iPhones, too, and lots of talking about and sharing of apps. (MouthOff and Bump, to name two.) The fanboy in me rejoiced!
I felt for the first time that the technological issues that we must face in the future are not a question of “us versus them,” or “brace yourself, you are about to become unemployed,” to, here are some tools and techniques that can really make us better educators, administrators and librarians.
Much information about this year’s program and various CALI resources as well as information about next year’s twentieth CALI annual meeting are available at http://cali.org. I encourage you to check it out.

The Durham Statement

The "Durham Statement" has become a meme. And I can't imagine why. I understand the desire of law faculties to want their scholarship widely disseminated - even freely disseminated - but I can't understand why some have determined that this means that law reviews and law journals should cease being printed altogether.

Law journals and law reviews have long histories in legal academe. The quality of scholarship isn't what it once was, nor is the scholarship as important, but it's still the primary place for law professors and scholars to share their ideas and hash out new understandings of the law and our legal system. I think that the quality and importance has suffered partly because of the proliferation of law journals. Many schools have multiple journals with special interests and this has diluted the importance of scholarship. It's rare today for an article to be rejected altogether for publication. This has lead to a situation in which finding legal scholarship has become somewhat like finding cases: there are just too damn many of them to be of much use.

In the end, ceasing to publish in print the-already-too-many-journals is only going to dilute their importance further for two reasons: First, an online-only journal, no matter how you dress it up, will remain an online-only journal with all the cachet of a blog; and, Second, a trend toward online-only journals will most certainly facilitate the creation of new journals, diluting scholarship further.

The bottom line is this: Part of the value of articles published in these journals is that they are a record of a scholar's ideas and thoughts about a legal issue. The ideas may be inspirational, challenging, enlightening, wrong, controversial, revolutionary, evolutionary, or all of the above and more. But, part of the process of scholarship is committing them to "paper", or some medium in which the author can be held accountable and called to defend them. It doesn't necessarily have to be paper. But it must be in a format that is permanent. To date, nothing in any computer format can even begin to approach anything resembling the permanence of a printed book. Until then, an article published in electronic format only will only ever have the status of a blog or a wiki, neither of which, with all due respect, do not yet command the same respect of the printed word.

What's More I'm Need of Preservation, Primary or Secodary Legal Materials?

I'm inclined to think that secondary materials are in greater danger of disappearing from the Public's access than are primary materials - if only because they are being distributed in ways that keep them out of reach: restrictive licensing agreements; great cost in obtaining access; and, pragmatic obstacles, such as lack of bandwidth or lack of adequate equipment. Since secondary materials are the true keys to unlocking the meaning of primary law, might not the consequences be dire?


-- Richard Leiter

The 200-Title Law Library?

As I was signing invoices the other day, it ocurred to me that if all titles from the Big Three (or four) law publishers end up costing $3000 per year, we won't be able to afford much more than a 200-title law library!

But of course, I'm not sure what is a title anymore....


-- Posted From My iPhone

Getting to the REAL Issues Regarding U Presses Going Digital

On March 25, Inside Higher Education ran an editorial by Scott McLemee titled, "A Change is Gonna Come." McLemee is obviously a bright guy and correctly parses the issues surrounding digital scholarship. He also presents a very balanced discussion of the pros and cons. I encourage everyone in the academy and in libraries to read the piece carefully.

I think that there IS a danger of University Presses becoming blogs. And my fears aren't related to my "luddite" orientation as a library and book-hugger. I am worried about scholars and researchers' ability to conduct research effectively and consistently with reliable authority.

The million dollar question is, Will future (near and far) readers of scholarly works be able to find the materials cited in them?

But the "nearer" term question is will monographs and articles published digitally be vetted as thoroughly as those published in traditional formats? McLemee points out that there is no logical reason that this can't be so. Obviously, modern scholarly journals and books can be subjected to at least as much editorial scrutiny as print versions of the same, and I think that the skeptics, instead of being "luddites" are simply looking for assurances that they will be subject to the same level of scrutiny. So far, those assurances haven't been forthcoming.

There is another issue that McLemee doesn't raise that gives me, as a librarian, the most pause about diving into this revolution with both feet: that is preservation. What guarantees are in place, or that can be put in place that will assure users that the material will remain the same as it was when published? One feature of print materials is that once it is printed and distributed, it is very difficult to change without issuing new editions of the work. (It's annoying enough when publishers make corrections from printing to printing....) When a work is published digitally today, how will a reader in ten years know that it is the same work? (I'm not even raising the question of whether the future reader will even be able to find and read the work born digital today.) I've heard all the arguments that print's no better. It can burn up, get soaked, be mislaid, etc. But so what? We do our best with whatever format we're working with. Digital formats can't give us any better assurances that it will remain more accessible or consistent than print. It's just in a "cooler", "hipper" format. And we have much less experience with digital than we have with print. We know how to care for print, and we know that it we take care of it properly it will last for hundred and hundred of years.

Skeptics aren't luddites, or obstacles to progress at all. We're cautious. We're careful. And I think that there's a chance that early adopters and technophiles will some day thank us.

U of Michigan Biting the Dust (?), Poised to Turn into Blog....?

The Great Lakes IT Report reports that the U of Michigan Press is following the trends and will revamp their publishing operation and expand into "3D animation and video", as well as publish it's scholarship in digital format so it can provide hot links and graphics. The announcement says that it "will be "restructured" to focus primarily on digital monographs, not the printed version."

It seems to me that ceasing publication is quitting publishing, and selling scholarship as pdf's and web pages won't enhance it's prestige, but will dilute it. It also seems odd to brush off concerns about customers who want to "hold something" can simply print them off on their own. Most scholars that I know would rather publish with a publisher who can actually capture the scholarship and sell it as an item. Blogs and hot links still don't have the cache of a printed book.

That's not to say that blogs don't have their place, or that bloggers aren't thinkers. It's just that their material is inherently different. It's a new format that's gaining respect and notoriety all it's own. Witness, Obama has even called on Politico correspondents in his first two press conferences. If that act alone hasn't given bloggers credibility, then nothing has. But does this mean that blogs are equivalent to University Presses?

UM's announcement, I think, is short-sighted. If anything, they should go slow, and start a blog, perhaps, and use it to promote it's catalog.

Fortunately, the announcement doesn't say that it is going to completely cease it's print publishing, but, spokes-people quoted in the article seem to indicate that it is going in that direction. I predict that ten years from now, it will largely be the same as it is now. But with the addition of a digital division; it will have higher overhead and will probably be selling more books.

Finally, I'd like to know how many libraries, or customers, for that matter, actually buy digital books. When I see adverts for e-books, I usually pass them up. What's a library to do with e-books, any way? To me, it seems that delivery of e-books is too personal for libraries to be involved with. I can provide links to the material, or direct patrons to useful titles, but I can't be responsible for how they actually obtain use, or fuss with setting up their equipment or software to guarantee their ability to use it.

If a patron has a Kindle (or the new e-book reader/web-book from Apple that's coming in the summer) how can a library lend it out? There's a missing link in this business model.

I wish the U of Michigan Press well, and hope that they are able to complete their misguided experiment before too many others go down the same road.

OK, a final thought: If a publisher publishes a title in a format that no one can read, have they still published a title? The thing that's neat and tidy about publishing a book is that the end user needs only two things to read it: light and the ability to read. (OK, knit-pickers, they do need access, but that's theoretical....) But look what's required to read an e-book: power, equipment of a particular variety, connection to the internet, software and the ability to make it all work together - plus the ability to read.

What's the Future of Legal Publishing? (To Anonymous)

Ok. Anonymous, here's an attempt to clear up my earlier post on Westlaw and Lexis. I grant you that stock price isn't necessarily an indicator of profitability. But for a company with a virtual monopoly on a very important (critical?) product, with an ever-expanding market, it seems to me that they should be doing better than they are. (Ie., Not raising prices at double the rate of inflation, not complaining about declining sales, etc.)

Let me try to explain my cynicism about their business models:

Here's a couple of facts that I observe about the state of legal bibliography:

1) the director's email listserv is buzzing with talk of canceling print subscriptions to reporters, looseleafs and costly, large treatises;
2) prices of legal materials are rising at about 10% per year, and more;
3) cost for access to the very titles being cancelled in favor of academic subscriptions to online services is substantially less;
4) each company has become publicly held in the past fifteen years;
5) stock has remained virtually unchanged in value since Yahoo! Finance charts report - shouldn't it have been going up?;
6) the quality and quantity of free government and court information are both increasing; and,
7) publishers complain/comment ceaselessly on declining sales of print materials. (They seem to be blind to the fact that their pricing policies on these materials is making them unaffordable. This is probably the biggest reason sales are declining. But that’s another topic....)

Taken altogether, it seems clear that both companies’ present business models are threatened. Their positions with respect to LMA’s and public access contracts are ruthless and even seem desperate.

What is most puzzling to me is that the Big Two/Three legal publishers just can’t seem to adapt to the current climate. Instead of enhancing their valuable assets - secondary materials - they appear to be focusing on primary material (at extravagant prices) as their primary business. Primary material is free information that is in the public domain. All that the publishers can really do to make a product that is more valuable that mere access to primary material is add their intellectual property: digests, case-verification tools, treatises, handbooks, encyclopedias, etc. These tools provide the intellectual structure that overlays the whole field of primary sources and helps practitioners and citizens make sense of it all. But as they see their subscription base decline, they appear to be simply raising the prices to make up for falling revenue.

The BT/Th should be innovating. Offering users something that’s new and useful and that exploits the fantastic catalog of secondary materials that they’ve built over the years. They should be building mobile device/iPhone apps and 2.0-sites that serve up indexes to all their material: Digests, KeyCite and the whole catalog of secondary materials.

In the end, they could easily cease publication of many books and provide cleaner and more useful access to these valuable tools of research. For instance, why do they publish the Digests at all? A mobile/web app can provide better access to digest information than can a print volume. Likewise, a mobile device can provide better indexing to all their materials than can their print indexes.

As their profits temporarily rise, primarily because they are selling less and less at higher and higher prices, they have to adapt or end up in a curious conundrum: they own the most valuable and important assets to legal scholarship and research, but won’t be able to sell them to anyone anymore because their won't be able to afford them.

Then what?

OK, I Give Up, Newspapers ARE Toast - But Important, They Are

It appears that the industry just isn't adapting to the times. First, they failed to compete with Craig's List and lost classified revenue; Second, in response, they laid off staff and let the quality of their product slide; and, Third, many have failed to develop an online format that will connect with their users. The future of the news looks like it will be a combination of Twitter feeds, email notifications, RSS, 2.0-style websites, and mobile-optimized websites. The biggies, have made most of the switches, of course, but clearly the time has come for local rags to develop local online content.

This all can't be that difficult to do, either. And, as Prof Glasser, rightly puts it, the importance of these enterprises are critical to an informed citizenry and a functioning democracy, so I am optimistic that news papers will keep pace and adapt. Just check out news organization iPhone Apps from USA Today and the BBC if you want to see part of the future. The Google News reader for iPhone is another app that is well-executed to feed users news, national, international AND local.

From USA Today: Newspapers as important as libraries!

Here's a delightful quote from Professor Theodore Glasser. The article is about the demise of newspapers:

"We need to view journalism in the same way that we view libraries and public schools, as absolutely essential to any prospering community," says Theodore Glasser, professor of communications at Stanford University.

Prof. Glasser has just become one of my personal heroes. (I've never met the man, but I hope he's up to the task....)

Lexis and West are Losing Money? Oh My!

Weird. I just looked up Reed Elsevier’s and Thomson Reuters’ stock quotes for the recent past. In the case of Thomson, Yahoo! Finance’s charts only go back a couple of years, and in the case of Reed Elsivier they go back much further. If stock is any indication of anything at all, it’s the company’s profitability. And over the long haul, both companies are not doing well at all. The charts show a general decline. In the case of Reed Elsevier, it's about at the same place it was ten or fifteen years ago. Surprising? I think so. How in the world can companies with such great, vital products be loosing money?

Lack of foresight. They failed to create the next generation of information product when they had the means. They’ve stayed loyal to what they know: sell what you’ve got, and keep it that way! Instead of innovating and using the tools at their disposal and distributing their product with the greatest of ease, they have priced themselves and their products out of existence.

As Carl Malmud and others advocate for thorough and free distribution of all public information, and as technology and technologists rise to meet the challenge with elegance and facility, the Big Two (three, if you count Volters Kluwer) are marketing themselves out of existence despite a veritable intellectual gold mine in hand, the main things that make their products special: secondary titles, digests and indexes and compilations of all sorts.

The free public information movement will surely supplant the Big Two/Three’s ability to publish primary materials. But they can’t supplant their ability to publish the secondary materials that help us make sense of it all.

If the Big Two/Three go out of business because of poor business practices, bad judgement and lack of vision, God help us. I’m serious. If scholarship fails, (which is what secondary materials are, after all) then culture fails. When culture fails, so do civilizations.

Not to put too fine a point on it, but I think that our legal system is mighty important for maintaining order, and even if I think that it can stand with a tweak or two here of there; it’s worth saving and maintaining.

Somehow, the news that Lexis and West (and CCH) were loosing money sent a chill up my spine....

Is Twitter Killing Newspapers?

John C Dvorak keeps marveling at the reactions of newspapers to declining readership: they lay off writers and reporters! It does seem like a weird response to a marketing problem. If people are not reading newspapers as much as they were, making the product better would seem to be the best response.

Here's a thought: I think that people are relying on more immediate services like RSS feeds, Twitter and radio and television for news. Newspapers are useless for this purpose. If newspapers want more readers, they need to provide more than news, and more than Twitter can give them: local perspectives and meaningful content. Publishing more fiction, perhaps, or more practical news about local issues. Newspapers should have opinions and should entertain, inform and be forums for local discussion. Heck, they should even have their own Twitter and Momentile feeds.

The Beginning of the Middle

It occurs to me that reality has finally come to Emerald City. (The here and now.) I think that Lexis and Westlaw have actually finally become the extensions of treatises. Think about it: The Great Treatises, Wright & Miller, Wigmore, Thompson on Property, etc., are no longer affordable case-finding tools. Which actually was their original purpose, by the way. The treatises themselves represent the intellectual output of the author while the supplements are dated and outrageously expensive. The user is well-served by relying on Wexis for updating, not pocket parts!

Law books aren't dead: at least for now, their supplementation is!

Welcome Back to the Real World

It occurs to me that the future is finally here. At last week's AALS meeting, there was nary a word about "the future of libraries"! All library programs, meetings and discussions were actually about managing libraries, studying legal information and striving to improve services and collections. It was inspiring. I just hope that we librarians have gotten over our infatuation with speculating about how technology will impact us (which is nonsense, because no amount of speculation will change it's impact - it's a train going forward and we simply need to adopt it, adapt it and use it, as we've always done).

It's time to get back to business and work on developing theories and practices that help us cope with shrinking resources. The expectation is that we will continue to improve collection growth and development with less money. This means we have to be clever and knowledgeable about what it is we are collecting. I think that in many ways, we've wasted a lot of time in the last twenty years trying to predict a future, instead of studying the present.

As a result we've fallen behind the curve and are not well-equipped to deal with the future that none of us predicted: Publishers who no longer consider us partners in providing legal information to lawyers, students and the public, but who see us as consumers. Legal publishers are not trying to please users of legal information by providing quality access to material, they are trying to please share-holders. That means that the only thing worth producing is what will generate the greatest profit. This has fundamentally shifted the paradigm. Books, databases, reporters, online services, etc., are now all widgets.

The encouraging thing is that no matter what legal publishers do, legal information will still exist. What we law librarians now need to focus on is to find ways to continue to provide it to our patrons - without the help of publishers, if they choose to price those materials out of our libraries.