Oh boy. Today was my first legal research class. Pretty much what it sounds like- teach you how to do research, specifically in law. While I’m sure I’ll learn completely invaluable skills in the class, I may well spend a lot of time screaming about this class, because it will involve interaction with lots of things that offend my sense of taste, and my sense of right and wrong.
- Wexis, the duopoly: Westlaw and Lexis-Nexis, sometimes known as Wexis, are a defacto duopoly. They charge appropriately criminal rates to use them, and use appropriately ensnaring tactics: the best journals (and I’ve heard some courts!) are paid not to publish on the web, making Google and Google Scholar less useful; like any other drug, the first hit is free (students don’t have to pay); they sue startup competitors; they lobby for increased copyright protection; etc.
- Wexis, the software: both Westlaw and Lexis-Nexis operate gigantic web presences (subscriber-only) that, well, suck. The usability of both are about what you’d have expected of a library search interface, c. 1985. The design is crowded, complex, and confusing. Neither, as far as I can tell, have discovered that they have massive measures of relevance- huge networks of links, aka citations- that they can use to determine what is most likely to be useful to me when I’m searching.
- Law journals: unlike journals in every serious science, law journals are not peer reviewed. Some fairly serious scholars have argued for more than 70 years that they aren’t useful for anything except getting tenure. Thankfully, open access publication, law blogs, and potentially the rise of peer-reviewed law journals is making this problem a little less painful.
- Citation: citation of cases and journals in legal papers is completely, incredibly baroque. Unlike some of the other problems I’m going to hate about this class, there was once upon a time a sane reason for these standards- if you needed to find something in an old-fashioned legal library, specificity and precision in citation was incredibly important. With all the technological tools we have now, this should no longer be a problem. But yet it still is.
Thankfully, all of these are known problems- aside from the duopoly problem, it seems likely that many of them will grow less painful with time. (And I hold out hope for google solving the duopoly problem, since things like court decisions and journals are clearly within their ‘index all knowledge’ remit.) But anyway… I needed to rant :)
(I hope to find time to read this really good looking paper on the Wexis duopoly soon, too…)
That paper is interesting. Google (or someone) may provide primary case law for free but, as one of the sources quoted in it notes, “secondary sources are the principle locus of the cost problem.” Google won’t change that.
One significant difference between the web and academic legal writing is state by the paper but not commented upon: the density of linking (or, in context, citation) in academic legal writing is much lower than on the web. This makes using that citation information much less of a win than on the web.
Lastly, the paper is suspect: it gets the copyright status of West’s pagination wrong. (N.b. I’m _definitely_ speaking for myself and not for my employer here.) See:
Matthew Bender & Co., Inc. v. West Pub. Co.
240 F.3d 116
C.A.2 (N.Y.),2001.
Thanks for commenting, Thomas. [His employer is one of the companies mentioned in the post; that isn’t publicly visible but I thought I’d clear up the ‘not for my employer’ comment.]
I would think (having read the paper today myself) that the tertiary sources are the real locus of the long-term cost problem- most of the secondary sources have external, non-pecuniary incentives to get assembled (i.e., journals have ~free labor and are only printed on paper for vanity reasons), or are now easily/cheaply automable (Shephard’s, for example, should require basically no manual labor anymore). The problem is the secondary/tertiary sources that aren’t automable and which aren’t produced by cheap or academically-oriented labor- summaries, for example. That needs some sort of revenue source, obviously- I don’t think google ads would cut it, since I can’t imagine what you’d advertise on such a thing, but maybe there is more of a market for intra-legal advertising than my poor 1L mind can picture right now.
Legal writing is the most densely cited writing I’ve ever read, and the citations are obsessively regularized, so I’d think (if anything) that legal writing would be more amenable to link analysis than most scholarly text. Isn’t one of the primary complaints of most legal academics that journals reject things with too few footnotes? :)
The paper as a whole definitely felt sloppy and meandering to me; I’m not surprised that there is a mistake in the legal analysis. Thanks for pointing that out. Still, it had some interesting pointers, so I’m glad I read it.