I’m in the middle of creating lesson plans for three introductory legal research classes to be taught to first year students by librarians next month.  That’s one reason why there has been a lack of posts in the last couple of weeks, among others.  The task is, how can I put it, time consuming.  That’s another story.

I thought I’d take a moment this afternoon and wander through Google Scholar to see what literature it contains on the process of legal research.  I did the obvious and searched the phrase “legal research.”  At about two or three pages into the search I noticed an entry for Land Use, Planning, and Zoning Legal Research Guide: Home by Vicky Gannon at Pace University.  The citation came up because the title contains the words “legal research.”  I have to admit that I had not expected a libguide to be one of the results in Google Scholar as I had not seen any prior to today.  I use Scholar a lot.  I mean, a lot.

I decided that I would try and search the word “libguide” all by itself and sure enough there were citations linking to any number of guides mixed in with the scholarly articles about the use of libguides.  Many of them were listed as [citation] which linked to an entry in either Bepress or a university commons page that in turn linked to the actual guide.  I found this all quite interesting.  Scholar apparently can be another vehicle for researchers to get to the intellectual output of a law library staff.  My suggestion is for all of you out there to give it a try.  Create some sample searches and see what happens.  I know I will.  This may be another strategy I can use in teaching or advising at the reference desk.

Mark

Available on SSRN, Michigan Law School prof Michael D. Murray’s The Ethics of Visual Legal Rhetoric is a timely contribution to the legal writing literature. Here’s the abstract:

This Article discusses the application of visual rhetorical techniques in legal writing and the ethical questions that are raised regarding the use of these techniques. It is likely that visual rhetoric will be used in brief writing and general legal communications at an increasing rate because the research and scholarship of a wide range of disciplines — law and popular culture, cognitive studies and brain science, data visualization studies, and modern argument theory in rhetoric — indicate the communicative power of visual techniques. This fact coincides with the development of technology in the production of legal documents, and technology in the reading and reception of legal documents, that allow judges and attorneys to access full-color graphics, imbedded video, and multimedia content, and follow hyperlinks in the normal course of reading legal briefs and memoranda.

The recognition in the literature that visual rhetoric is rapid, efficient, constructive, and persuasive reveals the potential of visual rhetorical devices to serve as topics and tropes in legal discourse to construct meaning and to inform and persuade legal audiences. The visual rhetorical topics and tropes inspire inventive thinking about the law that constructs meaning, for the author and the audience. For many members of the legal writing discourse community — judges, practitioners, government agencies, and academics — the modes of persuasion of visual rhetoric can construct meaning and improve the persuasiveness of legal discourse generally in content, arrangement, and style.

Attorneys should fulfill their professional responsibility to use the best practices to represent the interests of their clients in law practice. However, the cautions of scholars as to the dangerous power of visuals to deceive or to overpower more deliberative forms of rational thought and analysis are not lightly to be dismissed. The speed and power of visuals is seductive. Visual topics and tropes are subject to abuse, and must be used ethically and with careful regard to their propriety as a tool to create meaning and inspire imagination, and not used as a tool of deception or obfuscation within the rhetorical situation at hand. I conclude that visual rhetorical devices are a proper form of legal rhetoric if they are used to construct knowledge and understanding of the meaning and message of the communication and do not mislead or prejudice the audience’s reception or understanding of the communication.

Recommended. — Joe

At least in the Academic version.  I received an email yesterday promoting new features in Westlaw for the coming academic year.  One of them is:

Share Your Uploaded Documents

This exciting new feature will let you share user uploads with professors, students, study groups, research assistants, journals and law reviews, moot court and clinics.

  • Upload your own documents into your WestlawNext® folders.
  • Add citations, hyperlinks, and KeyCite flags to online documents.
  • Annotate (add highlights and notes) to your own content.

Previously one could only designate and share items that were flagged from Westlaw content.  It certainly is an interesting play to get students and faculty to spend more time on Westlaw.  More information is in an audio tutorial here.

Mark

There is an interesting discussion going on at my library.  As others may be doing, we are considering the proper mix between print and online resources.  ABA law school accreditation Standard 606 now allows for “a core collection of essential materials through ownership or reliable access.”  It’s that last part, “reliable access,” that triggers deep soul searching of what to buy in print or what to buy as an electronic subscription.  Tempering the rule are other qualifications that state the core collection should support faculty scholarship and the curriculum, and that a collection that consists of a single format may violate Standard 606.

In this context I’ve recommended that we drop the National Reporter System, ALRs, CJS, multiple state codes, and selected treatises that are online.  This may sound radical to some.  I know that law schools and libraries are experiencing budget cuts due to lower enrollment.  That drives part of the analysis.  Another factor that bears thought is what we teach these days.  The legal writing program at DePaul started teaching all electronic research.  We experienced a drop in library visits as a consequence.  No more treasure hunts, no answering the same questions over and over at the reference desk.

I can remember how far we’ve come in electronic access.  We used to teach print resources because that’s what the legal market had out there.  Now electronic access to case law and other primary sources is ubiquitous.  At one time it was viable to teach print because the databases were based on print.  Understand the organization of print and the online version would make more sense.  That’s not so true anymore.  Online database providers no longer think in terms of echoing print other than citation and star paging.  Certainly there was a time when case law on Westlaw was organized by reporter.  Not anymore.  It’s all jurisdictional, and that seems natural now compared to looking for a database containing the Northeastern Reporter.

Look at how citators have changed.  There was a time when Shepards online would be no more current than the latest print update.  Even the CD-ROM product mirrored print.  Now everything is dynamic.  I can’t imagine why anyone would want to subscribe to the print edition at this point.  We cancelled our print copies years ago. If anything was made easier by online access, Shepards, KeyCite, and citators in general are it.  They are more complete, can be filtered, and everything is spelled out instead of interpreting symbols attached to citations.

Then there are law reviews.  I have to say how much I like Hein Online when it comes to law reviews.  Everything back to day one is there in PDF format more or less.  We still get paper copies of law reviews but discard them once they appear on Hein.  No more binding these books for the collection.  Google Scholar works as a handy index to Hein content as well as other scholarly databases.

So now the next question is what is the proper mix for print and online?  I know that some libraries have already dropped major primary resources such as reporters.  In one sense, we are behind the curve on making that set of decisions.  Never in my career had I thought I would be part of this kind of decision.  Times change.  I find that I’m not very sentimental about physical materials that no one uses at my library.

Mark

I found another Lexis video published today promoting LexisAdvance.  It’s available hereTry freeze-framing it around 1.46 or so.  You’ll see something like this image which I provide by way of screen capture.  All I can say is I didn’t know the United States Supreme Court published its opinions in the 4th Series of California Reports.   I wonder how long this is going to stay up?Screen Shot 2014-05-06 at 3 21 08 PM  I’ve got a bad feeling about this. — Mark

 

There is a longer video from Lexis on the new LexisAdvance interface which reveals more detail about the interface.  There are obvious improvements compared to what currently exists.  I’m not convinced until trying it out.  My uncertainty has more to do with whether the functionality is conducive to work flow.  Lexis seems to think it is.  We’ll see.  As of this writing there are 423 views and no comments for the six minute video. The video is on YouTube here.  While we’re on the subject of videos, some may want to view this video concerning the LexisNexis Digital Library for Law Schools.  –Mark

If readers haven’t seen the essay on legal writing by Bryan A. Garner published in the February issue of the ABA Journal, here’s a link to it on the Journal’s web site.  It’s hard to argue with the essay that begins with these words:

Legal writing is notoriously dull, slow, cumbersome, obtuse, roundabout and pedantic. There are many reasons: (1) unnecessary jargon, (2) overreliance on abstract nouns, (3) overlong sentences, (4) overlong paragraphs, and (5) the failure to differentiate between useful and useless details.

One of the main arguments is to place citation in footnotes rather than in the text.  The result will be a clearer writing style that communicates appreciably better.  Naturally, there is pushback in the comments.  I have to admit that reading cases, memoranda, and other legal documents when I was in law school pretty much killed most any desire on my part to read long form.  Putting it another way, I don’t read for fun at this point.  I suspect I’m not alone, which may explain why cat videos are so popular on the Internet.  I still have dreams featuring never-ending Civil Procedure I lecture where I’m trying to fathom in rem and in personam jurisdiction.

In other news, the Kansas City Star reports on the tuition war going on between the UMKC School of Law and the University Of Kansas School Of Law.  The border position of both schools between Missouri and Kansas offer options for in-state tuition rates for potential students from either state.  Yes, it’s come to this.  While we’re at it, here is the latest application statistics from the LSAC:

As of 2/7/14, there are 227,912 fall 2014 applications submitted by 32,532 applicants. Applicants are down 11.1% and applications are down 12.2% from 2013.

Last year at this time, we had 62% of the preliminary final applicant count.

Last year at this time, we had 67% of the preliminary final application count.

Not good.

Finally, the National Center for Education Statistics released its annual report on academic libraries called Academic Libraries: 2012 First LookInside Higher Ed has short commentary on the report.  – Mark

From the announcement:

Do you have a great lesson plan or assignment that you’d be willing to share?  How about handouts or PowerPoint slides?  If so, then we need your help!

The RIPS Teach-In Kit Committee is currently accepting submissions for the 2014 Teach-In Kit.  The Teach-In Kit is a resource where law librarians can share materials and ideas to help improve legal research instruction.  We hope you’ll consider helping out your colleagues by submitting your materials to this year’s Kit.  We invite you to send contributions as email attachments to Shawn Nevers at neverss@law.byu.edu.

Prior contributions have included course syllabi, lesson plans, research guides, assignments, lecture notes, handouts, examinations, quizzes, PowerPoint slides, tutorials and games.  Examples of past submissions can be found in kits from previous years.

The deadline for contributions is Friday, January 24, 2014. Thanks in advance for your contributions!

— Joe

In his recent Download of the Week post, Solum wrote “this is important research, combined with deeply interesting theorizing.” He was referring to Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II, Stanford Law Review, forthcoming, by Abbe R. Gluck and Lisa Schultz Bressman. Part I was published earlier this year. Here are the abstracts for both.

Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I [SSRN], 65 Stanford Law Review 901 (2013):

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II [SSRN]:

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents’ knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than do judicial rules of interpretation. These factors range from the fragmentation caused by the committee system; to the centrality of nonpartisan professional staff in the drafting of statutory text; to the use of increasingly unorthodox legislative procedures – each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider.

Most of the structural, personnel and process-related influences that our respondents emphasized have not been recognized by courts or scholars, but understanding them calls into question almost every presumption of statutory interpretation in current deployment. These findings have significance for textualism, purposivism and beyond. They undermine the claims of proponents of each theory that theirs is the most democracy-enhancing, because none makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism’s operating assumption that text is the best evidence of the legislative bargain and suggest more relevant – but still-formalist – structural features that might do better. They reveal that although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of factors on which they focus are not the same ones that Congress utilizes. With respect to delegation, for both types of theorists, Chevron now seems too text- and court-centric, in the light of our findings, to actually capture congressional intent to delegate, which has been its asserted purpose.

In the end, our findings raise the question whether the kind of “faithful agent” approach to interpretation that most judges currently employ – one aimed effectuating legislative deals and often focused on granular textual details – can ever be successful. We thus look to different paradigms less dependent on how Congress works, including rule-of-law and pragmatic approaches to interpretation. These alternatives respond to the problem of the sausage factory, but pose different challenges in light of the modern judicial sensibility’s pronounced concern with legislative supremacy.

See also the authors’ Methods Appendix for their two-part series. — Joe

Try as research instructors do, one can’t get around the fact that researchers are going to turn to Google Search. One might as well be realistic by providing detailed instruction on how to get the most out of Google Search. Christa Burns and Michael P. Sauers’ new work could be handy for this task. From the ALA Bookstore blurb:

Google Search Secrets
Christa Burns and Michael P. Sauers
Item Number: 978-1-55570-923-5
Publisher: ALA Neal-Schuman
Price: $48.00

Google can be an incredibly powerful tool for research, but the top-of-the-page results are seldom the most beneficial to library users and students, and many of the search engine’s most useful features are hidden behind its famously simple interface. Burns and Sauers reveal the secrets of effective Google searches in this invaluable resource showing how to get the most out of the service, with

  • An overview of all the tool’s search services, including Image, Maps, News, Blogs, Discussions, Scholar, Patents, and Books
  • Ready-to-use instructions on how to go beyond the simple search box and top results to get library users the answers they need, fast
  • Straightforward guidance on using filters to refine search results, with examples of common searches like images with Creative Commons licenses, news searches set for a date range or into an archive, and videos with closed captioning
  • An explanation of the bibliography manager feature of Google Scholar, which allows students and researchers to build bibliographies with ease
  • Tips for configuring Safe Search on workstations in children’s departments and schools
  • Copious screenshots walk readers through each topic step by step, making this a true how-to guide for everyone who uses Google.

— Joe

Angel Sancho Ferrer, Research & Development Director in Content & Online Services (COLS),  Wolters Kluwer, South Europe, asks “how to measure search quality?” in a recent Intelligent Solutions Blog post. From a vendor’s perspective, he writes in his lead-up to answering the question:

To measure search quality helps us to improve our market position as it let us know (a) what are we able to do or not, (b) what are our competitors able to do or not, and (c) how should we act accordingly. By identifying pain points and proof points we can compare better our quality and communicate it better.

Ferrer discusses the issue in qualitative, one may say subjective, terms (see below) without going into metrics. That being said, How to Measure Search Quality? is still recommended reading. The post can, for example, be used as an introduction to teaching legal research in both print and electronic formats.

Do note that “searching for a particular document” probably refers to a look-up search for a known document, not TR Legal’s early marketing nonsense about how WLN’s West Search was great for finding that mythical one document which addresses all issues (and hopefully in the client of the researcher’s favor). — Joe

Level_of_subjectivity_in_the_evaluation_on_search_quality2-570x286

Patrick M. Ellis, a 3L who is an associate editor of the Michigan State Law Review, decided to find out. Here’s the abstract for his working draft of 140 Characters or Less: An Experiment in Legal Research [SSRN]:

In 1995, Robert Ambrogi, former columnist for Legal Technology News, wrote about the Internet’s potential to revolutionize the accessibility and delivery of legal information. Almost 20 years later, Ambrogi now describes his initial optimism as a “pipe dream.” Perhaps one of the greatest problems facing the legal industry today is the sheer inaccessibility of legal information. Not only does this inaccessibility prevent millions of Americans from obtaining reliable legal information, but it also prevents many attorneys from adequately providing legal services to their clients. Whether locked behind government paywalls or corporate cash registers, legal information is simply not efficiently and affordably attainable through traditional means.

There may, however, be an answer. Although the legal industry appears to just be warming up to social media for marketing purposes, social media platforms, like Twitter, may have the untapped potential to help solve the accessibility problem. This Note attempts to prove that assertion by showing an iteration of social media’s potential alternative use, as an effective and free information sharing mechanism for legal professionals and the communities and clients they serve.

Generally speaking, law review editors and other academicians demand that authors support every claim with a citation, or, at the very least, require extensive research to support claims or theses. This Note seeks to fulfill this requirement, with a variation on conventional legal scholarship. Almost all of the sources in this Note were obtained via Twitter. Thus, this somewhat experimental piece should demonstrate social media’s potential as an emerging and legitimate source of legal information. By perceiving and using social media as something more than a marketing tool, lawyers, law schools, and, most importantly, clients, may be able to tap into a more diverse and more accessible well of information. This redistribution of information accessibility may not only solve some of the problems facing the legal industry, but also has the capability to improve society at large.

Hat tip to Bob Ambrogi’s LawSites post. — Joe

Trial by Google: Judicial Notice in the Information Age [SSRN] “explores the emerging phenomenon of courts taking judicial notice of facts gleaned from Internet web sites, like Google Maps.  It highlights the inviting and terrifying intersection of venerable judicial notice doctrine and the Internet, and ultimately suggests guidelines for courts applying Federal Rule of Evidence 201 (Judicial Notice) and state analogues to Internet sources,” according to the article’s co-author, Jeffrey Bellin, on EvidenceProf Blog. Here’s the abstract for Bellin and Andrew Guthrie Ferguson’s forthcoming Northwestern University Law Review article:

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.

Very interesting and highly recommended for legal research and writing instruction.  Joe