Hitting the Wall, Technologically Speaking

Note, this is a draft of a column to be published in Legal Information Alert. RL]

Well, ok. It happened. I hit the technology wall.

It didn’t hurt or anything, but it was kind of stunning, and it made me laugh. In the back of my mind, however, there’s now an ache, a melancholy low-keyed, distant panic is now resting there. Waiting. You’re gonna hit it, too. So be prepared.

Here’s the thing. Yesterday I got official word that I had just won a professional award for “distinguished” service to a special interest section (SIS) of the American Association of Law Libraries (AALL). It caught me completely off-guard because, while I’ve been a member for years, the last time I held an office in it was 1989. (It looks like it’s true, if you stick around long enough, eventually people notice....) The special interest section is called, Computer Services SIS. When I was president of the section, it was called the Automation and Scientific Development SIS, and the section’s newsletter, which I also edited, was called The Automatome. The title of the section and the newsletter each provide an interesting perspective of the state of technology back in the day. In fact, at my last meeting as chair of the section, I proposed that the section should no longer exist. My rationale was that since technology was becoming so prevalent in our professional lives, it was analogous to having a special interest section on paper!

The experience got me thinking nostalgically about the ‘old days,’ and I thought that it would be fun to bring copies of the old newsletter to the meeting and share some of the quaint observations it contained. For example, I remember writing a review of a new 20 megabyte hard drive and describing how it would change the world. I know there are other gems contained in those old issues. I’ve never been shy about commenting on technological developments and predicting the future, so I thought that it would be fun to resurrect The Automatome and have a laugh.

And then I hit the wall. I have a few paper copies of The Automatome in a trunk in my basement, but I don’t know if I have a complete set, and I don’t know what is their condition. Not to worry, I have them in electronic format, of course. In 3.5 inch floppy disks! Formatted in who knows what number Mac OS?! It could be system 4 for all I know. And who knows what version of Word for Mac I was using? (These are rhetorical questions, obviously, because, at this point, only I know the answers to these questions. But, simply looking at the discs won’t necessarily tell me how they’re formatted or what software I used. Perhaps I was still using MacWrite....) But in order to actually use the files to do anything, I’d need to boot up my old Mac, which hasn’t been turned on in nearly twenty years and see what happens.

But let’s suppose that I was able to fire up the old Mac Plus, load the software and open the documents; all of which is possible, I should add. Then what am I supposed to do with it? As far as I can remember, in those days, I was using Compuserve for email and haven’t kept up my account; so emailing a copy of the documents to myself wouldn’t work. The computer didn’t (doesn’t) have any USB ports or any way that I could use to transfer the documents from the computer to another kind of present day storage media.

I could try to print the documents. I still have the original Image Writer that I used for years. It was a cool, state of the art dot-matrix, Postscript printer. I’m sure that I don’t have any print cartridges, and I’m not sure where I could get one. I could try to use a new printer, but I am pretty sure HP doesn’t make a printer driver that for an old Mac OS computer.

See what I mean? I hit the wall. The best I can hope for at this point is to fire up the old Mac Plus and take photos of the screen! I suppose I could lug the computer around and fire it up when I wanted to show people the issues of the old newsletter. As a practical matter, many people don’t realize that one of the original accessories for the Mac was a canvas case that actually had a should strap and a pouch for an external disk drive; in short, the original Mac Plus, all 20/25 pounds of it was conceived of as a portable computer. Hauling the Mac around to show my friends and colleagues vintage computer newsletters on a vintage computer, has a certain elegance to it, doesn’t it?

In short, it’s a wall that we’ll all hit more than once, going forward. In fact, I’m sure that it’s happening with many documents, some of them even more important that old copies of Automatome. Is this a sort of personal morality play for law librarians, to be on guard against saving documents in formats that potentially may become obsolete?

Perhaps. In any case, be forewarned that taking any present format for granted may lead you into a narrow alley with no exits....

Open Access Plus

The Fourth Rail of the Digital Revolution in Legal Materials

Much good work is being done to insure that as the internet develops and digital information becomes the norm, it remains freely accessible to all citizens. After all, how can citizens participate in their government if they can't have access to their own laws? Efforts by AALL, PublicResource.org and NCCUSL and others are focused primarily on making sure that all government and primary legal materials are free, reliable and that they are authentic. Again, how can citizens participate in their government if cost limits their access and they can't be assured that what they are accessing is the real thing? Law.gov, NCCUSL and AALL's Washington Affairs Office are working hard on all fronts, known collectively as "access, authentication and preservation."

I want to discuss the all but overlooked aspect of the digital revolution in legal materials: meaningful access to the the law. If we think of access, authentication and preservation as three legs upon which the ideals of "open access" stand, meaningful access as described below would constitute the fourth leg of the equation, without which all the access in the world may not be enough to truly address the needs of American citizens.

We librarians know good and well that the key to efficient, effective legal research is not finding cases and statutes. Rather, a skilled researcher knows which tools lead you to the right statutes and cases, and, preferably, especially if you're new to the subject, tools that also explain what is the 'law' of that subject. In this context, the 'law' is not merely a rule, but, a series of calculations and interpretations about what all the cases and statutes (and politicians and society in general?) say, and standards of practice or behavior that result, about the subject.

The debate, therefore, about free, unfettered access to primary legal materials is, therefore, something of a red herring. Access to the primary law is really secondary if the goal is to give citizens free, unfettered access to the 'law.' In this context, practical knowledge of the law can be described as the ability to predict outcomes of law suits, relational expectations or legal proceedings. This knowledge causes people to live and pursue livelihoods in accordance with legal standards.

As the body of primary legal materials grows and access to it spreads, what will be the result? Will citizens actually be better able to understand the law without access to the scholarship, analysis and the sophisticated objective finding tools of legal research?

In addition to advocating the free, unfettered access to primary laws, perhaps we should also focus our efforts toward using new technology to develop new finding tools and access to secondary materials.

I propose that the internet provides us with the means to create aggregated, federated meta-search engines that could mine legal scholarship and commentary found in emerging web-based resources such as digital commons, blogs, news and RSS feeds, Twitter feeds, podcasts, etc. We librarians are in a unique position to understand the "informatiosphere"; how it's structured, how to evaluate authenticity, authority and the 'new' provenance. There are many ways that search engines and search algorithms may be designed to provide access to new, free materials that make access to the law more useful, and, contrary to the prevailing commercial model, encourages the development of more free materials.

And herein lies the rub. in the coming 'digital age', one of its byproducts is the ability of commercial publishers to closely regulate access to various information sources. Commercial legal publishers' products rarely have value exclusively in the publication of primary legal materials. The value that commercial legal publishers offer lawyers and lay people interested in learning about he law lies in their secondary materials and finding tools. As open free access to primary materials becomes the norm, legal publishers will likely tighten the circle around their proprietary commercial products. As their income declines from the sale of primary materials, which most also publish in addition to secondary resources, these corporations will make up the difference by increasing the prices of finding tools, treatises, form books, looseleaf reporters, etc. As the print versions of these secondary resrouces disappear from library shelves, access to them by lay people will be all but blocked because most cannot afford access to online products produced by the major legal publishers.

When efforts to make access to primary legal materials free succeeds, it is possible that only legal professionals will have access to commercially produced finding tools and secondary materials. As described earlier, these may actually be the most important materials to which people interested in learning the law must have access in order to equip them to make reasoned, legal decisions about their lives and livelihoods.

Should this come to pass, if we fail to provide to ordinary citizens access to some form of secondary materials that help them find and understand the law, our success in providing them with free, unfettered access to primary materials may, in the end be a pyrrhic victory.

Some Issues Answered: West Explains and Raises questions....

3 Geeks and a Law Blog: WestlawNext - Some Issues Answered published an email that Anne Ellis, Senior Director, Librarian Relations, at West, distributed to many AALL listservs this week.

Just beneath the surface of all the hub-bub surrounding the roll-out of WestlawNext (WLN), is an unanswered question regarding the structure and nature of the new search engine. West doesn't seem to be very forthcoming about what it is other than to say that it is more than just a new interface on the same old product. It is, apparently more that simply new window dressing on WIN. It is also more than simply taking searches, analyzing them and then searching through West's vast universe of secondary materials. There is an aspect of the searching process (dare we call it "algorithm"?), apparently, where the users themselves actually contribute to the ranking/value of specific documents in Westlaw's database, be they primary or secondary law.

Indeed. This is essentially how Google has built it's search engine hegemony. Essentially, users "vote" for results with their clicks. (Of course Google makes money by selling votes to businesses that want to be top of any search list. The ramifications for law makes one think of a Grisham novel....) Is this really what WLN is all about? Is crowd-sourcing the law really good for the law? For researchers?

I wonder.

The 21st Century Law Library Conundrum: Free Law and Paying to Understand It

For years people have been predicting the death of books and the general demise libraries. The people who have been most passionate about them are those who stand to gain financially by their own predictions. And that’s not to say that we haven’t all benefited from digital developments in the world of legal bibliography. But in this past decade has seen some extraordinary technological developments. It looks like world of law libraries may finally be at the cusp of a fundamental change in how we collect, organize and distribute legal materials.

Primary Legal Materials
For the entire history of our Western legal system, the publication of primary legal materials (cases, statutes and regulations) was intimately tied up with tools that help lawyers understand the law. The nineteenth century saw the rise of the industrialization of case reporting when John B West created the National Reporter System, a reporting service that systematically and promptly reported every published case that came from the United States judicial system. The process for collecting and publishing them was strictly objective and so efficient that the volume of reported cases made research virtually impossible without an elaborate indexing system, or some sort of key to finding needed cases. West’s Key Number System, that purported to index every legal issue decided by the courts and was accessible through the encyclopedic digest system served two purposes: reporting cases quickly and authoritatively, as well as providing subject access to the courts’ rulings specific issues.

Over time, West Publishing was so successful at its business that it became the reporter of record for many jurisdictions. Even when a state published its own cases, the West reporter versions were preferred because of their widespread distribution, reliability and speed with which they were published, none of which the official reporters could compete.

West also eventually tackled publication of state and federal codes with the same zeal. Although they were considered “unofficial” versions, their annotated codes became well regarded and authoritative, and, in some cases were adopted as official versions.

Since for most practicing lawyers, West was the best possible source for case law, the company assumed a business model that relied heavily on sales of primary legal materials. This left us in the peculiar situation in which most primary legal materials, that are, in fact, free to everyone, were only available from a single (very expensive) commercial source. West Publishing found itself in the awkward position of being a virtual monopolist of a great deal of free, public legal materials, through no fault of its own. Since ours is a nation of laws, it is difficult to understand how states and federal courts and legislatures could not have made it a priority to publish its laws and cases, but it is a fact that the federal government’s official US Code is so slow to be published as to be virtually unusable; the same with the publication of the official reports of the United States Supreme Court. It is equally difficult to understand how or why the federal courts have never even attempted to publish cases from any other federal courts.

Of course, West also publishes a prodigious amount of important secondary legal materials such as encyclopedias, treatises, textbooks, practice materials and form books. It’s unknown what portion of West’s revenue came from secondary materials, but it is likely that it was a significant percentage, perhaps as much as fifty percent. In any case, publication and sales of primary legal materials constituted a significant source of revenue. The company also integrated many features of both enterprises into an environment in which lawyers could easily move between primary and secondary materials. West’s slogan, “Forever associated with the practice of law,” was descriptive; not merely aspirational.

The “Open Access” Movement
Regardless of the nature of their intentions, by the 1980’s there was a significant amount of activism against West’s de facto monopoly on the publication of primary legal materials. Also known as the “free law” movement, activists in the last two decades have been working to make all primary legal materials freely accessible and free to everyone. They reason that since case law, statutes and regulatory materials are the primary sources of the law that governs them, all citizens should have free, easy access to the materials. The fact is, much of the best sources of this material is published by the West Publishing company, which, as described above, was the source of substantial corporate profit. As calls came for governments and courts to freely release their cases and codes, many were unable to do so because they weren’t the publishers of their own materials!

In the early 1990’s the situation heated up intensely, and open access advocates eventually brought the matter to the attention of the Justice Department, alleging that West Publishing was in violation of a number of anti-trust laws and moral principles for refusing to freely turn over their editions of federal case law to the courts or to emerging publishers who wished to scan the contents of the National Reporter System and distribute it on CD-ROMs, microfilm or their own databases.

The issue settled before it was fully heard in the courts, and resulted in West being able to sell their collections of primary materials for licensing fees. Little is known about the specific terms of the settlement, but it is known that publishers pay West to use the volume and page numbers for cases. But the most significant result of the controversy was the sale of West Publishing to Thomson, a Canadian newspaper publisher. The 60 shareholders of West were fed up with the controversy surrounding their publishing of primary legal materials, they simply wanted to get out while the going was good. The company sold for more than 3.5 billion dollars. And the new company, The West Group, a division of Thomson Reuters, still publishes primary legal materials.

But the world is changing and West, as well as the other main publisher of primary legal materials, Lexis, are struggling to keep up. As the government and courts make increased use of the internet and various other online digital technologies to publish and distribute primary legal materials, it is becoming less necessary for researchers to buy them from West or Lexis. As legal researchers, we are not yet in a position a position to abandon altogether the outstanding primary law products from Lexis and West, which are enhanced with elaborate indexing, digesting and case-verification tools, but it is clear that individuals and organizations are working to develop new programming tools to make web-based legal materials affordable and useful. Two examples are Govtrack.us, and Google Scholar’s Legal Opinions and Journals. Govtrack.us is an example of an outstanding free service that gives researchers superior access to pending federal legislation. It has substantially outdone West and Lexis’ offerings for tracking federal law making. Google’s SLOJ, is brand new and, though clearly an inferior means of researching US case law, Google is clearly committed to continuing to improve it, in terms of it’s content and usefulness. With the resources that Google can through into the process, it’s potential is nearly limitless.

This move to free access to primary legal materials appears to be inevitable. The major problems with digital access to primary legal materials are reliability and permanence. At present, there are no standards that can guarantee that any particular document retrieved from the internet at any point in time is the authoritative version of the underlying law or case. Neither is there a standard for for collecting, compiling and preserving electronic versions of this kind of material. These are huge obstacles, but many groups are presently working on developing such standards, including, among many others, the National Conference of Commissioners of Uniform State Laws and the American Association of Law Libraries, and there is every reason to think that some meaningful standards will be forthcoming. In the end, everyone with an internet connection and a web browser will be able to have instant access to all primary legal materials from every jurisdiction, court and legislative body in the land.

“Not Free” Law
That means that law libraries and law books will simply disappear in a digital mist, right? Not quite. Every lawyer knows that having access to all needed primary materials doesn’t always help you solve a research question. What’s more helpful is a work that interprets the cases and describes the procedures and rules that come from them, or a system that provides you access to only the most important, instructive cases. Books that not only describe, discuss and criticize the laws, but provide practical information about how they are applied, plus forms and examples of practical documents, are the most valuable resources that publishers publish, and that libraries collect.

In the old, analog world, libraries could purchase a copy of a book and maintain, and make it available to all patrons and unlimited amount of time. In this environment, secondary materials, the most valuable materials to legal researchers, were distributed extremely broadly. A public library could purchase the materials it could afford and make them available to anyone. A law firm library could purchase a single copy of a treatise and not only make it available to all attorneys in the firm, but the could loan it to other firms, too.

The great revolution in legal research and publishing came not simply because online gave quick access to materials, it allowed publishers the ability to sell access to the materials based on a new paradigm: the volume of time the materials were used. This changed the landscape in fundamental ways by making publishers see the sale of online access to legal materials as the real way to increase profits. Essentially, the sale of online legal materials represents a second sale where libraries purchase online subscriptions to materials they already owned in print. And the sale of secondary materials is really a lease. Westaw and Lexis, as publishers sell two things: primary and secondary legal materials. Under this new paradigm in the present economic climate with shrinking budgets for legal materials, there is increased incentive for discontinuing paying for access to primary materials.

What all this means for today’s lawyers and libraries is that at some point we will be able to gradually discontinue our reliance on commercial publishers as sources for primary legal materials. Logically, this means that we’ll have to purchase less materials from Lexis and West. Sadly, while it may be the case that we won’t have to subscribe to as many titles as before, we will continue to pay them more, for less content.

This is how it will work. Even if we cancel the entire National Reporter System and all the annotated codes published by West, we will still need the indexes, digests and Key Numbers that they publish. Without West’s indexing system and catalog of secondary materials, legal researchers are lost. (Imagine sitting down at your computer and launching a service that has access to all cases ever published and inputing a query designed to retrieve all relevant cases on the subject of when a minor can commit to a binding contract. Would you really want every single case ever decided on the subject, or just the ones that are most influential?) As West and Lexis see their revenue decline from sales to primary materials, they will (and are) increasing their prices for access to their secondary materials to make up the difference.

The Revolution
Will increased access to free primary materials make libraries disappear, or become cheaper? It is unlikely that as demand for premiere versions of primary law, such as that available from Westlaw and Lexis declines, the cost for the enhanced, secondary materials will increase in order to account for the anticipated loss of revenue. Of course, part of the irony is that West has had decades to develop and enhance their primary offerings with annotations and cross references to encyclopedias, form books and treatises, such that it’s nearly unthinkable that someone can practice law with only access to free law resources.

For the last fifteen years, prices of materials have increased at rates steadily ahead of inflation or reason. The digital revolution, that once upon a time promised free access to legal materials, will deliver on that promise; it’s just that the free materials it will deliver, even if it comprises the sum total of all primary law in the the country at every level and jurisdiction, will amount to only a minor portion of the materials that lawyers need in order to practice law, and the public needs in order to understand it.

Why I'm Signing the Durham Statement

[I wrote this the day after hosting a podcast with Professors Richard Danner and John Palfrey, authors and architects of the Durham Statement. The podcast can be found on iTunes, here. The transcript of the chat room can be found here. RL]

[In a curious irony, when I logged onto the website to "sign" the statement, I got a 404 error.... Uh, I guess the gods do have a sense of humor! RL]

OK, I'm convinced. I'm going to sign the Durham Statement. But with an asterisk. Here's why.

I fully support all the goals and objectives of 'the open access' movement. I believe that it is critical that as more legal materials are born digital, librarians should be working with content creators (governments, authors, academics, publishers, bloggers, etc.) to be sure that digital information is produced and preserved in systematic, efficient and stable formats. There's a need for that format to be simple, objective and thorough so that software and hardware developers can easily develop applications and search engines that make the material not just accessible, but usable, useful. And, perhaps most important, the formats must be open so that they can be used by developers (of search engines, readers, aggregators, or who knows what kind of tool) for any platform, while at the same time remaining strictly controlled and loyal to established standards. Standards must take into account not only the data itself but its metadata and as well as format.

The desire for an end of print materials is not what's driving the growth in the availability of digital legal information. What's driving its growth are technological developments. Better html, java and Ajax web development tools have made web pages more hospitable for users and developers, and, as a result, more useful for finding, accessing and using information and documents retrieved. Better processing power, bandwidth and storage capacities have made the development and distribution of databases practical, both on the server and user sides. Looking back at history, consumers of legal information have never simply stopped using one format to await the arrival of the next. Any new format must prove itself before it will become the new standard. The same will occur as legal materials transition from print to digital formats. (The question of whether this transition will be total or partial, or somewhere in between - my choice - is beyond the scope of this essay.)

There's also a practical reason for my reservation about the "end of print" declaration in the Statement. By declaring 'the end of print' as an end in itself, I am afraid that it gives too much encouragement to publishers and information creators to put the cart before the horse, and cease printing material before reliable online alternative formats are fully developed. This could lead to disaster in two ways. First, they may move too quickly and develop online tools using new, unproven technologies that may end up making access to the material more difficult than before without refinements and upgrades. And then there's the danger that all early adopters risk: adopting formats that don't survive in the marketplace and may be lost forever.

This is why I object to the language in the Durham Statement that calls for "an end of print publication" of law reviews. In my mind the call is unnecessary, even vacuous. If the printing of law reviews is doomed, it will happen only when there are acceptable substitutes. And not a second sooner.

I'm signing the Statement with the above reservations, and whole-heartedly support it's underlying goals and objectives, (I support AALL, NCCUSL, LIPA and Law.gov, too), the call for the development of rigorous standards for materials that are born digital. I also like the idea that legal scholarship be included in the open access movement. There's great potential to create a fascinating, organic living encyclopedia of legal scholarship.

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....