Category Archives: Legal Research

Use Trump’s executive orders sourced on White House website with caution

In White House posts wrong versions of Trump’s orders on its website, USA Today reports that the texts of at least five Trump executive orders hosted on the White House website do not match the official text sent to the Federal Register. Quoting from the USA Today article, examples include:

► The controversial travel ban executive order suspended the Visa Interview Waiver Program and required the secretary of State to enforce a section of the Immigration and Naturalization Act requiring an in-person interview for everyone seeking a non-immigrant visa. But the White House version of the order referred to that provision as 8 U.S.C. 1222, which requires a physical and mental examination — not 8 U.S.C. 1202, which requires an interview.

► An executive order on ethical standards for administration appointees, as it appears on the White House website, refers to”section 207 of title 28″ of the U.S. Code. As the nonprofit news site Pro Publica reported last week, that section does not exist. The Federal Register correctly cited section 207 of title 18, which does exist.

— Joe

The Algorithm as a Human Artifact: Implications for Legal {Re}Search

Here’s the abstract for Susan Nevelow Mart’s very interested article The Algorithm as a Human Artifact: Implications for Legal {Re}Search (SSRN):

Abstract: When legal researchers search in online databases for the information they need to solve a legal problem, they need to remember that the algorithms that are returning results to them were designed by humans. The world of legal research is a human-constructed world, and the biases and assumptions the teams of humans that construct the online world bring to the task are imported into the systems we use for research. This article takes a look at what happens when six different teams of humans set out to solve the same problem: how to return results relevant to a searcher’s query in a case database. When comparing the top ten results for the same search entered into the same jurisdictional case database in Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw, the results are a remarkable testament to the variability of human problem solving. There is hardly any overlap in the cases that appear in the top ten results returned by each database. An average of forty percent of the cases were unique to one database, and only about 7% of the cases were returned in search results in all six databases. It is fair to say that each different set of engineers brought very different biases and assumptions to the creation of each search algorithm. One of the most surprising results was the clustering among the databases in terms of the percentage of relevant results. The oldest database providers, Westlaw and Lexis, had the highest percentages of relevant results, at 67% and 57%, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were also clustered together at a lower relevance rate, returning approximately 40% relevant results.

Legal research has always been an endeavor that required redundancy in searching; one resource does not usually provide a full answer, just as one search will not provide every necessary result. The study clearly demonstrates that the need for redundancy in searches and resources has not faded with the rise of the algorithm. From the law professor seeking to set up a corpus of cases to study, the trial lawyer seeking that one elusive case, the legal research professor showing students the limitations of algorithms, researchers who want full results will need to mine multiple resources with multiple searches. And more accountability about the nature of the algorithms being deployed would allow all researchers to craft searches that would be optimally successful.

Recommended. — Joe

Seven major themes about the algorithm era

Pew Internet’s report, Code-Dependent: Pros and Cons of the Algorithm Age, identifies seven major algorithm era themes (listed below). See also NPR’s Will Algorithms Erode Our Decision-Making Skills? — Joe

pi_2017_02_08_algorithms_0-01

AALL announces new product award

Congratulations to Ravel Law for winning AALL’s New Product Award for its legal analytics service. Ravel FAQ here. — Joe

Docket-based research needed to find “submerged precedent”

“[S]ubmerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions—putative precedent and not mere evidence of decision-making—that exist only on dockets,” writes Elizabeth McCuskey (Toledo) in Submerged Precedent, 16 Nevada Law Journal ___ 2016 (forthcoming)[SSRN]. Professor McCuskey adds “[s]ubmerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself, not just trial courts’ administration of it.” Here the abstract for this very interesting article:

This article scrutinizes the intensely individual, yet powerfully public nature of precedent, inquiring which decisions are made available for posterity in the body of precedent and which remain solely with their authors and the instant parties. At its broadest level, this article investigates the intricate relationships among precedent, access, and technology in the federal district courts, examining how technology can operationalize precedent doctrine.

Theory and empiricism inform these inquiries. Drawing from a sample of district court decisions on Grable federal question jurisdiction, the study presented here identifies and explores the phenomenon of “submerged precedent” – reasoned opinions hidden on court dockets, and not included in the Westlaw or Lexis databases. The study detailed here found that submergence may obscure as much as 30% of reasoned law on Grable federal questions from the view of conventional research.

This article investigates the structural and institutional forces behind submergence, as well as its doctrinal implications. By effectively insulating some reasoned opinions from future use by judges and practitioners, the phenomenon of submerged precedent threatens to skew substantive law and erode the precedential system’s animating principles of fairness, efficiency, and legitimacy. Most urgently, the existence of submerged precedent suggests that Congress’s mandate for public access to federal precedents in the E-Government Act of 2002 lies unfulfilled in important respects. The application of precedent theory informed by empirical observation suggests a more thoughtful approach to technology and public access to precedent.

— Joe

Is a uniform system of citation an open-source feature of our legal system’s infrastructure?

In The new (and much improved) ‘Bluebook’ caught in the copyright cross-hairs (The Volokh Conspiracy), David Post writes that “[w]ar is brewing over the most boring piece of intellectual property imaginable: the ‘Bluebook… .’” At issue is the alpha release of NYU Law professor Christopher Sprigman and Carl Malamud’s open-source Baby Blue’s Manual of Legal Citation (Public.Resource.Org, January 1, 2016). From Baby Blue’s Preface:

It is important to understand, when we are talking about “The Bluebook, A Uniform System of Citation,” that we are talking about two different things. There is a product, a spiral-bound booklet that sells for $38.50, which is accompanied by a rudimentary web site available to purchasers of the product.

Underlying that product, however, is something much more basic and fundamental, a uniform system of citation. Unpaid volunteers from a dozen law schools, under the stewardship of four nonprofit student-run law reviews, have labored mightily to reach a consensus standard for the citation of legal materials. This open consensus standard was developed, with no compensation to the authors, for the greater benefit of the legal system of the United States. By clearly and precisely referring to primary legal materials, we are able to communicate our legal reasoning to others, including pleading a case in the courts, advocating changes in legal policy in our legislatures or law reviews, or simply communicating the law to our fellow citizens so that we may be better informed.

We do not begrudge the Harvard Law Review Association one penny of the revenue from the sale of their spiral-bound book dressed in blue. However, we must not confuse the book with the system. There can be no proprietary claim over knowledge and facts, and there is no intellectual property right in the system and method of our legal machinery. The infrastructure of our legal system is a public utility, and belongs to all of us.

Kathryn Rubino’s Controversy At Harvard Law Over The Bluebook? (ATL) summarizes recent developments. — Joe

End Note: Download Sprigman et anon. al., Baby Blue’s Manual of Legal Citation (Public.Resource.Org, 2016).

RIP Westlaw Classic and WestlawNext

Earlier this month Thomson Reuters announced that WestlawNext has been renamed Thomson Reuters Westlaw “in light of Westlaw Classic’s retirement.” Hat tip to LLB readers who called the name change announcement to my attention after reading this post. — Joe

Good old fashioned WEXIS competition

Just in case you haven’t noticed, the tab and sidebar war has returned for our very expensive legal search vendors. Without the branding could you tell which is WestlawNext and which is Lexis Advance? Ok, the key number symbol gives it away.

BTW when did Thomson Reuters drop “next?” — Joe

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What The [Bad Word] Is This Supposed Be?

I was helping a cite checker with Pennsylvania Consolidated Statutes when I came across this free site called WestlawNext State Government Sites.  I’m not sure what TR is trying to do with this as FindLaw still exists.  The collection features a small but haphazard collection of primary and quasi-primary materials from what I would describe as all over the place.  The limited number of states represented are far from comprehensive.  The materials presented are just as puzzling.  Each collection has different ways to conduct searches.  Take a look.  Anybody with reactions please let me know.

Mark

UELMA adoption does not correlate to barrier free access says Glassmeyer report

Sarah Glassmeyer has released the results of a survey of state primary law. State Legal Information Census (PDF). Here’s the abstract:

This report presents findings from a survey of state level primary legal information.   Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions).  This survey was done with the goal of reviewing the free and open status of this legal information.

Findings indicate that there exists at least 14 barriers to accessing legal information.  These barriers exist for both the individual user of a resource for personal research as well as a institutional user that would seek to republish or transform the information.   At the time of the census, no state provided barrier-free access to their legal information.

Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources.  Current collections allow for citation retrieval and some basic keyword searching.  No state allows for federated searching of legal information collections.   The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon.   There is also a worrisome lack of archival material maintained by states.  Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.

States were scored and ranked based on the openess of their legal publication practices.  On a scale of 0 – 24, the highest score achieved was 18.  The lowest was 8 and the median was 14.  These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices.

— Joe

LLSDC adds Congressional Record sources to its Legislative Source Book

From the announcement by Rick McKinney (Federal Reserve Board Law Library):

The Legislative Research Special Interest Section of the Law Librarians’ Society of Washington, D.C., Inc. (LLSDC) is pleased to announce a new addition to its Legislative Source Book entitled “Sources for the Congressional Record: Free and Commercial”. The new website contains a list with links to most all online sources for the Congressional Record, free and commercial, with dates of coverage, including the bound Record, the daily edition, the Congressional Record Index, and predecessors to the Congressional Record. Also included are brief notations about search, browse, print, and cite retrieval capabilities of the sources as well information on libraries with paper and microform issues. Finally there are a number of links to aid researchers in understanding the Congressional Record, its history, its volume numbers, and what is or is not included in the pages of the Record.

Visit LLSDC’s Legislative Source Book. — Joe

Internet Archive will host Zimmerman’s Research Guide

Following up on last month’s announcement that Zimmerman’s Research Guide will go dark on the Lexis Info Pro site comes news from Andy that arrangements have been made to host an archived version of the Guide’s final edition. Details here. — Joe

Nebraska Courts To Drop Printed Opinions

From the Press Release:

Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.

Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.

Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.

Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.

Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.

Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access.  Hat Tip to Rich Leiter for the news.

Mark

Beyond the pocket parts of Wright & Miller: Author supplements to pocket parts self-published because of publisher’s editorial decision to be more selective

Prompted by Thomson Reuters Legal’s decision to make Wright & Miller’s Federal Practice and Procedure more selective in describing and analyzing new case developments, Professor Joan Steinman, a co-author of the treatise, has been publishing digital compilations of case descriptions and citations to law review articles that complements the contents of the pocket parts to volumes 14B and C of the Wright & Miller treatise. “The cases described here either are not included at all in the 2015 volume 14B and C Pocket Parts or are cited there for different propositions than are reflected in this electronic publication.” Quoting from the abstract for Removal and Remand — Beyond the Supplements [SSRN, posted July 7, 2015]. See also Removal and Remand — Beyond the Supplements [SSRN, posted March 4, 2014].

This is the first time I’ve noticed something like this happening. Treatise authors confronted by similar WEXIS editorial decisions may want to follow Professor Steinman’s example. Unfortunately, the pocket parts at issue make no mention of Professor Steinman’s digital supplement. A statement could have been placed at the end of the following quotation from the pocket parts’ Preface:

As always, it is essential that the judge or lawyer using the Treatise check the supplementary material in connection with the question in which he or she is interested in order to be fully informed of the current state of the law.

— Joe

Where did the Bluebook originate?

Ask most legal professionals where the Bluebook originated and they will likely say “Harvard Law School.” In The Secret History of the Bluebook (Minnesota Law Review, Vol. 100, No. 4, 2016 Forthcoming) [SSRN], Fred R. Shapiro (Yale) and Julie Graves Krishnaswami (Yale) beg to differ. They trace the origin of the Bluebook to Yale. As proof, the authors point to a 1920 one-page set of citation rules covering court opinions, law reviews, and treatises prepared for the use of the editorial board of the Yale Law Journal by William Murray Field under the direction of Karl Llewellyn, both YLS grads. In 1921, the Yale Law Journal expanded the Llewellyn-Field rules with the publication of “Abbreviations and Form of Citation”. Seven of the tiny 3-1/2″ x 5-1/2″ pages covered citation formats with seven additional pages being a table of abbreviations. (A second version of the “Abbreviations and Form of Citation” pamphlet containing only minor additions was printed in 1924.)

Following Yale’s lead in what we would call today, the uniform citation movement, Harvard Law School produced its own guide for the Harvard Law Review editioral staff in 1922, “Instructions for Editorial Work.” Many have pointed to the Harvard document as being the precusor to the first edition of the Bluebook which was published in 1926. The authors argue that the claim is unjustified because the Bluebook’s first edition only contains one sentence from HLS’ “Instructions for Editorial Work” while approximately 30 sentences from YLS’ “Abbreviations and Form of Citation” are found in the Bluebook’s first edition. Other similarities between Yale’s “Abbreviations and Form of Citation” and the Bluebook exist, e.g., the size and design and layout of the covers of the early editions of The Bluebook mimic Yale’s 1921 and 1924 pamphlet editions of “Abbreviations and Form of Citation.” There is much more historial detail in this highly recommended article that cannot be covered in this brief post. The article, for example, details workloads, copyright ownership and revenue sharing of the proceeds of the various editions of the Bluebook.

With the recent publication of the latest edition of The Bluebook, we can expect numerious articles by Bluebookologists for Bluebookologists about our current edition of the Bluebook as has happened when prior editions were first released. This time around, Shapiro and Krishnaswami set the record straight about where and how this work began. Highly recommended for Bluebookologists and anyone else interested in the adoption and use of standardized citation practices and advances in legal bibliography. — Joe

RIP Zimmerman’s Research Guide, 1999-2015

Andy Zimmerman, Manager of Library Services for the D.C. office of Morgan Lewis & Bockius, has decided to retire his go-to guide, Zimmerman’s Research Guide, after 16 years in existence. This valuable resource, hosted by LexisNexis the last 12 years, will go offline after December 31, 2015 according to this announcement. — Joe

Legal Analytics, A Legal Writing Conference, and Bats Turn Into Turkeys

Yes, it’s been a while.  Between the ever present health issues and building and teaching a set of lesson plans on legal research to our first year students, it’s been tough to get back to the blog.  Well, the teaching part is essentially over until the first week of classes in January.  Let me catch up with a few things, a couple of business and one essentially fun.

The first business item is the announcement I received recently noting that Lexis has purchased Lex Machina:

Today LexisNexis announced that it has acquired Silicon Valley-based Lex Machina, creators of the award-winning Legal Analytics platform that helps law firms and companies excel in the business and practice of law.

A look into the near future. The integration of Lex Machina Legal Analytics with the deep collection of LexisNexis content and technology will unleash the creation of new, innovative solutions to help predict the results of legal strategies for all areas of the law.

With its acquisition, Lex Machina becomes part of the ongoing LexisNexis commitment to offer modern, next-generation solutions that help legal professionals work more efficiently, make better-informed decisions and drive success for their clients, practice and business.

The acquisition is described as a “prominent and fresh example of how a major player in legal technology and publishing is investing in analytics capabilities.”  I can understand that.  As we grew up with Lexis and Westlaw we were taught (or taught) the utility of field searching.  The available information in a document allowed us to search particular judges or attorneys to do our own analysis of their involvement with topics and issues.  We have the ability today to make more detailed analyses.

Expert witness reports are where Lexis and Westlaw mostly provide background information and the track record of particular witnesses.  Both companies offer comprehensive details because there is quite a market for experts in litigation.  Lex Machina is identified with analytics associated with copyright and a few other forms of intellectual property.  I can imagine Lexis and Westlaw expanding analytics for other litigation prone subjects such as medical malpractice and products liability.  I can see this as a new area of competition between the major research databases.

The second business item is a one day conference at Ohio State University:

OSU reference librarian Ingrid Mattson is co-chairing a great one-day conference for the Legal Writing Institute.  I’m sharing the announcement just in case you’d like to attend.  There are several presentations by ORALL members.

Join us in Columbus, Ohio, on December 11 for our one-day workshop, “Collaboration In and Out of the Legal Writing Classroom.” Topics include collaborating with legal writing colleagues for successful scholarship; students working together in the classroom; librarians and legal writing faculty joining forces for more effective research instruction; and connecting with casebook and clinical faculty, the community outside the law school, and university offices to provide meaningful, resource-conscious instruction.

Our workshop website, which includes program details and hotel information, can be found here. Workshop registration can be found here.

Columbus offers a number of unique experiences year round and particularly during the holiday season. Consider staying through the weekend to enjoy a dessertcoffee, or beer tour of a city with a dynamic food scene. Those who are more literary-minded will enjoy a Dickens of a Christmas and a Dickens Dinner at the historical Ohio Village. If you have an interest in politics, history, or architecture, touring the Ohio Statehouse is fun and free. A short walk from the workshop site you can explore the Billy Ireland Cartoon Library and Museum. Finally, for anyone visiting with children or who fondly remembers Jack Hannah and the Columbus Zoo on David Letterman, check out the zoo’s extraordinary holiday light tradition, Wildlights. For more information on the exciting goings-on in Columbus, visit Experience Columbus.

Columbus truly is the heart of it all. We are driving distance from places like Indianapolis, Pittsburgh, Lexington, Chicago, Charleston; and a non-stop flight away from pretty much everywhere else.
We hope to see you in December! For more information about the conference, please feel free to contact us at Kelly.864@osu.edu or Mattson.30@osu.edu.

The conference cost is a very reasonable $45 aside from any lodgings.  I’m not expecting to sample the charms of Columbus while I’m there.  I was interested in going to a Blue Jackets game but it turned out the team is on the road in Winnipeg on December 10th.  The Islanders come in to Nationwide Arena on the 12th but unfortunately I can’t stay over.

And now the fun part.  As part of the Halloween picture extravaganza, I shared costumes and decorations from a number of libraries.  One of those picture sets from Wayne State included periodicals turned into bat decorations.  Well, it seems the bats have turned into turkeys for the coming holiday.  See the pictures below.

Thanksgiving 2 Thanksgiving 3 Thanksgiving 1

Well, I hope to publish more frequently now that my major semester project is effectively over.

Mark

“Free The Law:” Ravel and Harvard Law Team Up To Do Just That

There is so much to catch up on.  The recent news is that Ravel Law is teaming up with Harvard to scan significant portions of the primary law collection with the ultimate goal of placing the bulk online for use by the public.  The story in the New York Times mentions the fact that the librarians are cutting the books apart so the pages could go through high speed scanners.  The implication here is that there is no turning back for the project. Here is another story from the Harvard Law School News.

The interesting part for me aside from having as much primary law on the web is that this is the first major scanning project announced since the Google Book decision from October 16th.  Most primary law is in the public domain so there shouldn’t be any question about the legality of scanning.  Nonetheless, that decision should comfort the project managers.  I wonder if the decision will be giving impetus to any other large scale digitizing projects.

Mark

Up-to-date list of online sources to US court opinions available

Rick McKinney, Assistant Law Librarian, Federal Reserve Board Law Library, posted the following announcement on various AALL lists:

The Federal Law Librarians Special Interest Section of the Law Librarians Society of Washington, D.C., Inc. is pleased to announce the availability on its website of a new online resource entitled Quick Links and Sources to U.S. Court Opinions. The new website presents quick links to all major sources for U.S. Court opinions including sites for recent years, sites for recent and historical years, and subscription sites. It also presents direct links to court opinion sites of specific U.S. courts such as the U.S. courts of appeals as well links to opinion sites to those courts before the 1990’s.  Each specific’s court’s abbreviation and city location can also be found and there is an example of how new slip opinions can be cited. The new website is also linked on LLSDC’s Legislative Source Book.

Bookmark it. — Joe

Libguides Are Appearing in Google Scholar Results

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