Wolters Kluwer L&R will be releasing its Cheetah research platform soon. The Company, once a dominate player in the legal specialist market, offered Jean O’Grady a sneak peak. “Will Cheetah be just another hyped up launch of a marginally new product? Will it be a “head scratcher” like IntelliConnect?  Can Cheetah find a home in the wild world of legal research? Can Cheetah outrun the competition? Read on” at Can Wolters Kluwer Legal Get its Grove Back? Can Cheetah Outrun the Market? Jean’s concludes her quick review, highly recommended, with the following:

Can Wolters Kluwer position Cheetah’s high performance platform to actually steal the market share that had been in BloombergBNA’s crosshairs? Can Cheetah lure users from Lexis and Westlaw with a promise of high functionality and relatively low annual cost which can be supported without charging clients for cost recovery? It looks like Cheetah is positioned to give them a  “run for their money.”

— Joe

That’s the title of a recent Fastcase Blog post by Joshua Auriemma. Here’s his open salvo:

I often wonder whether the Googleification of legal research isn’t a terrible thing for the profession (at least in this stage of the technology’s development). In law school, I was a master of Boolean searching. I thought about my research question, figured out which words probably appeared closest to other words, and crafted a narrow and specific search.

Somehow, when I became an appellate attorney and had access to WestlawNext through my firm, all of that training went out the window.

If interested, continue reading the post here. — 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

Quoting from the abstract of Nicholas R. Parrillo’s Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266 (2013).

Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

Sounds like a very interesting read. The data files produced for this article can be downloaded here. — Joe

Colosseum Builders’ John Miano “The Legal Research System of the Future” is a series of videos that present his ideas about how to design a large scale legal search service. He is sharing them “in the hope that someone will build a legal research system that is more than a Google box on top of a legal database.” The below video addresses how online legal content ought to be formatted. Highly recommended

Check Miano’s The Legal Research System of the Future for additional videos in this series. — Joe

LexisNexis prevailed in a case from the Sixth Circuit that was released a few days ago.  The issue concerned whether the arbitration clause in a contract for access to LexisNexis databases allowed for class arbitration.  The ultimate answer to that question was no.  The underlying issue in the case that triggered the lawsuit and appeal had to do with the practice LexisNexis employed in its flat fee access plans to attorneys.  I’ll let the Court explain it:

        LexisNexis (a business division of Reed Elsevier) provides legal-research services, primarily on-line. In 2007, Craig Crockett and his former law firm—Dehart & Crockett, P.C.—subscribed to a LexisNexis Subscription Plan. The Plan allowed subscribers unlimited access to certain legal databases for a flat, monthly fee.  Subscribers could access other databases for an additional fee. According to Crockett, LexisNexis told subscribers that a warning sign—such as a dollar ($) sign—would display if the subscriber was about to use a database outside of the Plan.

Several years after signing up for the Plan, Crockett complained to LexisNexis that his firm was being charged additional fees without any warning that the firm was using a database outside the Plan. LexisNexis allegedly insisted on payment of the additional fees anyway.

Those of us in academics working with our subscriptions to Lexis and Westlaw are very familiar with either premium databases not appearing or alternatively messages stating the desired content is not part of the current subscription.  It makes me wonder, assuming the allegations are true, why Lexis can’t manage flat fee plans.  Of course, we’ll never know since the dispute is heading to arbitration.

Though the Court is not sympathetic to Mr. Crockett’s legal arguments concerning how the arbitration clause in the contract is read (precedent is against him), it does offer this cautionary advice to prospective commercial consumers:

Crockett’s remaining argument is that, if read not to permit classwide arbitration, the arbitration clause is unconscionable. The clause is indeed as one-sided as Crockett says: the clause favors LexisNexis at every turn, and as a practical matter makes it economically unfeasible for Crockett or any other customer to assert the individual claims that Crockett seeks to assert here. The clause provides that any arbitration of any dispute concerning LexisNexis’s charges must occur in Dayton, Ohio, where LexisNexis is headquartered. The customer must pay his own legal fees, even if the arbitrator concludes that LexisNexis’s charges were improper. And unlike many corporations that require arbitration of disputes with their customers, LexisNexis makes its customer split the tab for the arbitrator’s fee.

The idea that the arbitration agreement in this case reflects the intent of anyone but LexisNexis is the purest legal fiction. But all of these things—the one-sided nature of the arbitration clause, and its adhesive nature—were also present in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013). And there the Supreme Court held that, all of those concerns notwithstanding, the absence of a class-action right does not render an arbitration agreement unenforceable. Id. at 2309 (The solution to Crockett’s problem is likely a market solution; as the district court observed, Westlaw’s agreement with its customers lacks any arbitration clause, much less a clause of the sort at issue here.)      Under Italian Colors, therefore, the agreement here is not unconscionable.

The case is Elsevier, Inc. v. Crockett, et al. (6th Cir. 12-3574, November 5, 2013).  Copies of the opinion are here and here.  Hat tip to Michael Ginsborg for the links.  As Paul Harvey would say, now you know the rest of the story.

Mark

In The Problem With Discovery Tools and Law Firm Libraries Slaw’s Susannah Tredwell concludes

As the number of electronic resources increase, there is going to be an increasing need for effective ways to search and manage these resources. The ideal would be a “publisher agnostic” platform on which all content could be mounted, regardless of who supplies it, but the realities of the legal publishing world make that unlikely.

Unlikely indeed. Tredwell’s post and the three below listed references which formed the basis for her post are highly recommended. — Joe

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

Hat tip to Legal Informatics Blog for calling attention to D’Aspremont and Van den Herik’s The Digitalization of the Assembly Line of Knowledge About Law: A Reinvention of the Confrontational Nature of Legal Scholarship? [SSRN]. Here’s the abstract:

This paper reflects upon the rise of new tools of production and dissemination of knowledge about law as well as their impact on the dynamics and the nature of the profession of legal scholar. Taking the contemporary international legal scholarship as a case-study, it discusses the potentially dramatic changes brought about by the new media of communication, not only with respect to the configuration of the assembly line of knowledge about law in the 21st century but also regarding the profession of legal academic as a whole.

This paper starts by distinguishing modes of law-making and modes of knowledge-production with a view to showing that these two modes of production of authoritative statements share are not always following radically different dynamics. It then recalls that the production of knowledge about law has always been estranged from the State and rested on a competitive social process between professionals. The paper subsequently makes the point that knowledge-producing processes in international legal scholarship have been dramatically altered in the cyber-age. Knowledge about international law is now created, selected and disseminated through previously unknown channels that cannot be influenced by the State. These mutations have required legal scholars to change how they envisage and construe their contribution to the production of knowledge and thus how they see their own profession. The paper finally formulates some concluding remarks about what it means for the discipline as a whole.

— Joe

Hat tip to Peter Martin for calling my attention to Citing Legally: Occasional observations about the citation of legal authorities by lawyers and judges. The blog is a byproduct of this year’s revision of Introduction to Basic Legal Citation (online edition hosted by LII) and the forthcoming revision of The Bluebook. Launched yesterday, Citing Legally’s first post is titled Statutes – Citation norms that reinforce copyright claims. Highly recommended. — Joe

Help Us Improve The Bluebook !

The editors of The Bluebook: A Uniform System of Citation are about to embark on the exciting task of making revisions for the forthcoming Twentieth Edition, and we need your help.  We rely on user input to guide our revisions to The Bluebook. This survey is an opportunity for you to share your ideas with us as we update The Bluebook so that we can target our revisions to best serve your needs.

Please take a few minutes to fill out our survey at  www.legalbluebook.com/survey.  Surveys must be received by November 8, 2013, in order to be considered for the Twentieth Edition. Comments and suggestions are also welcome through e-mail to editor@legalbluebook.com.

Bonus Prize:

As an added incentive for the completion of our survey, we will select five participants at random to receive a Kindle Paperwhite e-reader. An additional twenty participants will be randomly selected to receive a free copy of the Twentieth Edition as well as a two-year subscription to The Bluebook Online (www.legalbluebook.com). Winners will be notified by December 8, 2013.

Source: law-lib announcement (republished with permission). — Joe

Raymond Blijd, Project Manager, Online Innovation, Wolters Kluwer Legal & Regulatory, admits that designing a legal research interface for the small screen remains a challenge but he predicts the era of desktop-based legal research is coming to a close. His prediction is based on desktop usage studies and consumer purchasing trends for IT equipment. Once document creation moves to the small screen, so will legal research according to Blijd in his Intelligent Solutions Blog post The Death of Legal Research on Desktop.

Joe

In Link Rot within SCOTUS Opinions and Law Reviews [SSRN], Jonathan Zittrain and Kendra Albert found that 49% of URLs in surveyed SCOTUS opinions no long send the reader to the cited web source. Raizel Liebler and June Liebert’s recently published article, Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010), 15 YALE J.L. & TECH. 273 (2013), reports a SCOTUS link rot rate of 29%. Obviously there’s a problem. But it is not with the difference in survey findings. Clearly SCOTUS must get its act together by linking to a self-hosted openly accessible archive of the web content that was cited and currently only stored in the Court’s files. How about naming the archive “Last Visited On”?

Zittrain and Albert’s article is recommended but I found Liebler and Lieber’s much more informative. Here’s the abstract for Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010):

Citations are the cornerstone upon which judicial opinions and law review articles stand. Within this context, citations provide for both authorial verification of the original source material at the moment they are used and the needed information for later readers to find the cited source. The ability to check citations and verify that citations to the original sources are accurate is integral to ensuring accurate characterizations of sources and determining where a researcher received information. However, accurate citations do not always mean that a future researcher will be able to find the exact same information as the original researcher. Citations to disappearing websites cause serious problems for future legal researchers. Our present mode of citing websites in judicial cases, including within U.S. Supreme Court cases, allows such citations to disappear, becoming inaccessible to future scholars. Without significant change, the information in citations within judicial opinions will be known solely from those citations. Citations to the U.S. Supreme Court are especially important of the Court’s position at the top of federal court hierarchy, determining the law of the land, and even influencing the law in international jurisdictions. Unfortunately and disturbingly, the Supreme Court appears to have a vast problem with link rot, the condition of internet links no longer working. We found that number of websites that are no longer working cited to by Supreme Court opinions is alarmingly high, almost one-third (29%). Our research in Supreme Court cases also found that the rate of disappearance is not affected by the type of online document (pdf, html, etc) or the sources of links (government or non-government) in terms of what links are now dead. We cannot predict what links will rot, even within Supreme Court cases.

Hat tip to Adam Liptak’s In Supreme Court Opinions, Web Links to Nowhere (NYT, Sept. 23, 2013).

Joe