LLTC Trivia Game update

Thank you for making the 2011-2012 edition of the LLTC’s Trivia Game a great success. We had approximately 50 participants and awarded over $400 in cash and prizes.

Congratulations to Darla Grondin, the overall point leader for the 2011-2012 academic school year. She earned over 700 total points and will be awarded a $100 Visa Gift Card as a result of her efforts. Congratulations to Christina Lehm, who finished a close second, and is also the winner of the final trivia period, a feat for which she will receive a $25 Visa Gift Card. Finally, congratulations to Mike Leonard, who was this semester’s overall point leader, a feat for which he will receive a $50 Visa Gift Card.

This year’s five trivia topics were as follows:

1)      Name that Movie

2)      Name that Professor

3)      Name that Library/Legal Resource

4)      Name that Case

5)      Name that Pop Culture (Person/Place/Thing)

Each week (Mon-Fri) 5 clues are released daily, once every 24 hours regarding a particular movie, professor, resource, case or pop culture.

Sample Trivia Series:

Name that Case: Dad is a nonbeliever. #trivia

Name that Case: Dad wanted to force schools to quit long-time practice. #trivia

Name that Case: Mom does not mind the recitation of certain words. #trivia

Name that Case: Dad loses 8-0 in the SCOTUS. #trivia

Name that Case: “[U]nder God” stays; sorry pops. #trivia

Answer: Newdow v. United States Congress, Elk Grove Unified School District, et al., 542 U.S. 1 (2004) (or one of its other procedural incarnations).

Please remember to check the LLTC’s Twitter and Facebook accounts every Monday (during the academic school year) at 8:00 P.M. for the initial clue regarding that week’s trivia series. Clues are posted weekdays and correct responses are worth up to 50 points if submitted to owensw@nsu.law.nova.edu on the day of release; points awarded for correct submissions will decrease by 10 points daily e.g. Monday (from 8:00 P.M. until Tuesday at 7:59:59 P.M.) =50 points, Tuesday (from 8:00 P.M. until Wednesday at 7:59:59 PM)=40 points, etc… No points will be awarded for incorrect responses or for responses submitted after 7:59:59 P.M. on the Saturday following the release of that week’s final clue. All responses MUST be submitted to owensw@nsu.law.nova.edu.

Please DO NOT post your responses to the LLTC’s Twitter or Facebook accounts.

Each period (approximately 5 weeks), a $25 prize (gift certificate) will be awarded to the point leader.  Each semester, a $50 prize (gift certificate) will be awarded to the point leader.  At the end of the school year, the overall point leader will receive a $100 prize (gift certificate).  At all stages of play, tied players will be entered into a drawing to determine the final disposition of the prize.

Once again, thank you for your participation and please be sure to join us for the next installment of the LLTC’s Trivia Game!

Have a great summer!

The Freedom of Information Act: A Postscript

Apropos to my last post, a news story appeared yesterday: “Final volume in CIA’s official history of Bay of Pigs invasion still in dispute,” about how the CIA is still fighting an attempt by the National Security Archive (mentioned in my last blog post) to get the CIA to release the fifth and last volume of its history of the unsuccessful U.S.-sponsored 1961 Bay of Pigs invasion of Cuba. The invasion was intended to depose Fidel Castro. This fifth volume is a rebuttal by the CIA’s chief historian of the report by the CIA’s inspector general, which blamed the CIA itself for the failure of the invasion.

Because of the FOIA (and the National Security Archive), we know much more about the Bay of Pigs invasion than we otherwise would.

The Freedom of Information Act: An Introduction

A friend told me the other day about a post on Wired’s Danger Room blog, “CIA Committed ‘War Crimes,’ Bush Official Says.” The post described a 2006 memo written by State Department counselor Philip Zelikow, released under the federal Freedom of Information Act [FOIA], in which he concluded that interrogation techniques such as “waterboarding, walling, dousing, stress positions, and cramped confinement” were those “least likely to be sustained” under Article 16 of the Convention Against Torture. (Here’s more information about these techniques.) This contrasts with the Department of Justice Office of Legal Counsel “torture memos,” two of which Zelikow cites to.

Some disagree with the idea that the FOIA is important in allowing Americans to know what their government is doing. Antonin Scalia, when he was a professor of law at the University of Chicago, and the editor of the journal Regulation, wrote in that journal, in an article called ”The Freedom of Information Act Has No Clothes,” that the FOIA “is the Taj Mahal of the Doctrine of Unintended Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored” (Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, Mar.-Apr. 1982, at 15, reprinted in Robert G. Vaughn, FREEDOM OF INFORMATION (2000)). To be fair, Scalia, in his short article, writes that “They [the Freedom of Information Act of 1966 and its 1974 amendments] were promoted as a boon to the press, the public interest group, the little guy; they have been used most frequently by corporate lawyers” as a tool for retrieving information held by the government about private entities–though he provides no empirical support for this proposition (Id., at 16).

But despite the now-Supreme Court Justice’s view, there are other important, revelatory examples of information uncovered as a result of the FOIA. I spoke with Emily Willard, research associate at the National Security Archive, a nonprofit founded in 1985 as (to quote its “About” page) an “investigative journalism center, research institute on international affairs, library and archive of declassified U.S. documents (“the world’s largest nongovernmental collection” according to the Los Angeles Times), leading non-profit user of the U.S. Freedom of Information Act, public interest law firm defending and expanding public access to government information, global advocate of open government, and indexer and publisher of former secrets.”

Emily’s favorite FOIA tidbit is a revelatory quote from the minutes of a March 10, 1975 meeting between Secretary of State Henry Kissinger and Turkish Foreign Minister Melih Esenbel, who was expressing his displeasure with the arms embargo on Turkey passed by Congress after Turkey invaded Cyprus in 1974. The minutes record that Kissinger said: “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter] But since the Freedom of Information Act, I’m afraid to say things like that.”

Emily went on to talk about the Zelikow memo. “The entire document, except for a few things, was completely released, even though it’s so controversial, and the government, the Bush administration, had tried to destroy all evidence of it.” Emily went on to describe this as a really great example of the use of FOIA and why it’s so important. If not for this system of checks and balances, she said, “how would we have ever known that this memo even exists. We would have heard about it, from the government official who wrote it, but we would never have been able to see actually what was being covered up, written on government letterhead.”

But enough about how interesting FOIA can be–it can also be a very useful–and cost-effective–lawyering skill. As Antonin Scalia also wrote, “The necessary training for any big-time litigating lawyer now includes not only the cross-examination of witnesses, but use of the Freedom of Information Act.” (Scalia, supra, at 16).

And there are many resources on the Web to help with FOIA requests. Two very good sites are:

The Freedom of Information Center, a a reference and research library at the University of Missouri’s School of Journalism. It was founded in 1958, and it and its founders were instrumental in the enactment of the FOIA. Their website has many resources, from a collection of sample FOIA and Privacy Act (the federal law that protects personal information and allows individuals access to their own information–useful in some types of government record requests) letters, to guides to the process, to indexes to their collection of government documents.

The Reporters Committee for Freedom of the Press, whose print publication the Federal Open Government Guide, a treasure trove of information on the care and feeding of the FOIA, is available for free online.

And finally, the National Security Archive itself has a guide that Emily says is aimed at the everyday FOIA requester, Effective FOIA Requesting for Everyone.

That will get you started. For more information, let the Web be your guide… or ask your local librarian.

UPDATED 04/16/2012: Added context about Scalia’s article, and added a link to the National Security Archive’s FOIA guide  Effective FOIA Requesting for Everyone.

The Uniform Electronic Legal Material Act : Essential to 21st Century Democracy

The Uniform Electronic Legal Material Act (UELMA) was promulgated and recommended for enactment by the National Conference of Commissioners on Uniform State Laws in July 2011. The American Association of Law Libraries (AALL) sent a letter of support to the Uniform Law Commission (ULC) in November of that year, and at the American Bar Association midyear meeting in February 2012, the House of Delegates approved the Act.

What is UELMA? AALL’s FAQ on the Act states: “UELMA provides a technology-neutral … approach to ensuring that online state legal material … will be preserved and … permanently available to the public in unaltered form.” The categories of legal material named in the Act are:

1. The state constitution,
2. State session laws,
3. Codified laws, and
4. Agency regulations which have the effect of law.

States may include other types of publications as well.

What does UELMA require? According to the Uniform Law Commission’s summary, official electronic legal material must be:

1. Authenticated, by providing a method to determine that it is unaltered;
2. Preserved, either in electronic or print form; and
3. Accessible, for use by the public on a permanent basis.

Why should states adopt UELMA? The Uniform Law Commission has enumerated several reasons, the first of which states:

•  The availability of government information online facilitates transparency and accountability, provides widespread access to essential information, and encourages citizen participation.

Another important incentive highlighted by the ULC is the limited nature of the Act:

•  The UELMA does not affect any relationships between an official state publisher and a commercial publisher, leaving those relationships to contract law. Copyright laws are unaffected by the act. The act does not affect the rules of evidence; judges will continue to be able to make decisions about the admissibility of electronic evidence in their courtrooms.

Are states adopting UELMA? As of March 21, 2012, versions of the Act have been introduced in six states: California, Colorado, Connecticut, Minnesota, Rhode Island, and Tennessee. You can track the progress of the legislation on the ULC’s Legislative Fact Sheet. If you support the principles that UELMA represents, contact your state representatives and urge them to sponsor the legislation. Not sure how to contact your representatives? Find them here.

SAME-SEX DIVORCE: UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                     

SAME-SEX DIVORCE:  UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                Gay rights are advancing at an increasingly rapid pace.  Recently, the United States Ninth Circuit Federal Court of Appeal declared Proposition 8 (which banned gay marriage in California) to be unconstitutional (click here for article).  Even more recently, Maryland passed legislation enabling same-sex couples to marry (click here for article).  On a larger level, Countries around the world are  recognizing the rights of same-sex couples to marry.  Gay marriage is now legal in ten countries (Canada, Argentina, Belgium, Iceland, The Netherlands, Norway, Portugal, Spain, South Africa and Sweden).  While there is a long way to go towards equality for same-sex couples, in general, an atmosphere of hope, optimism, and excitement grows stronger every day.

Enthusiasm may be partly to blame for the problems that occur when same-sex couples wish to divorce.  Many same-sex couples, overjoyed at the prospect of being able to get married after constantly being told that their relationships would not be legally recognized, jumped at the opportunity to be wed.  Such couples now face significant barriers if their marriages break down and they wish to file for divorce.  NPR featured a very informative broadcast available here which provides great background information.

Attorneys who work with same-couples are increasingly advising their gay and lesbian clients not to get married because of the difficulty involved in getting divorced (click here for article).  Equality in terms of same-sex marriage has come a long way, but in terms of divorce lags far behind.  Same-sex couples, while they may wish to marry for all of the same reasons as opposite-sex couples, are often stopped from doing so by the practicalities posed by laws which make access to divorce difficult if not impossible.  For instance, how do married same-sex couples divide their property if their marriage breaks down?  How can they seek alimony or custody rights?

The gay divorce issue poses problems not only for jurisdictions which recognize gay marriage, but also for those that do not.  Recently, in Canada, a “firestorm of outrage” arose after government attorneys challenged the validity of a same-sex marriage performed in Canada on the grounds that it was not legal in their current places of residence (U.K. and Florida) (click here for article).  The Prime Minister, Stephen Harper, was quick to react stating that he has no plans on re-opening the same-sex marriage issue.  Comments suggesting otherwise seem to be largely based on misinformation by those who are quick to attack the Conservative government (click here for article).  In fact, since this story broke in January, the Justice Minister, Rob Nicholson, released a statement confirming the validity of same-sex marriages saying:  “I want to make it clear that, in my government’s view, those marriages should be valid” (click here for article).

Last week, the Federal government proposed new legislation that would declare same-sex marriages “valid for the purposes of Canadian law” and provides rules for same-sex divorce of non-residents (click here for the full text of the Bill).  In short, the bill provides rules for non-resident same-sex couples to obtain a divorce in Canada if they were married in Canada.  What the bill does not provide these couples with is a forum to deal with all of the attending issues that accompany a divorce (ie: alimony, child support, custody, property division) (click here for article).  The government simply cannot pass a law that would deal with all of these issues because it would both overwhelm the judicial system and also involve the courts stepping outside of the purview of their jurisdiction.  In short, divorce granted by this legislation is a symbolic act at best and does nothing to address the more practical concerns associated with divorce for non-residents.

One of the Problems – Residency Requirements

Most countries and states that allow same-sex marriages do not easily allow couples to divorce.  This problem arises due to residency requirements.  A residency requirement essentially requires an individual who seeks divorce to be a resident of that jurisdiction for a certain period (typically 6 months to a year).  Residency requirements for divorce make divorce a lengthy battle for heterosexual couples and same-sex couples alike.  To seek a divorce, one spouse must be a resident of the state in which they seek divorce for a minimum of 6 months in general, but often longer.  The problem is compounded for same-sex couples who marry in a jurisdiction that recognizes gay marriage and subsequently move to one that does not.

Another Problem – D.O.M.A. (Defense of Marriage Act)

On the federal level, The Defense of Marriage Act, 28 U.S.C. § 1738C, came into effect in 1996 and defines marriage as between a husband and a wife while ensuring that states do not have to recognize the validity of same-sex marriages performed in other jurisdictions.   On the state level, states either:  recognize gay marriage (as in Massachusetts); neither allow nor forbid it; or specifically forbid it through legislation or constitutional amendments to their respective state constitutions.  Courts (in states which do not recognize same-sex marriage) claim to lack jurisdiction to hear a divorce case because to do so would effectively mean that they would have to recognize gay marriage.  (For an excellent and current article describing the various constitutional principles involved, see Elisabeth Oppenheimer, No Exit:  The Problem of Same Sex Divorce, 90 N.C. L. Rev.73).  Oppenheimer notes the inherent contradiction in these non-recognizing states stating “it certainly is bizarre for gay marriage opponents to argue that a gay couple must remain married” (Oppenheimer 81).

Several late night talk show hosts have been quick to pick up on this issue and have featured reports which do a good job at exposing the confounding nature of this argument.  The Daily Show, with John Stewart, recently featured this special report in which correspondent Jason Jones interviews a religious figure who is completely against the idea of same-sex marriage.  It simply makes no sense for someone who is so vehemently opposed to same-sex marriage to want to keep such a couple together should their marriage break down.  Not to be outdone, The Colbert Report also featured a segment on same-sex divorce highlighting the same lack of coherence (see this clip @ time 3:25-4:40).

Potential Solutions – There Is No “Quick Fix”

After thoroughly researching the issue of same-sex divorce, Oppenheimer (infra) proposes several solutions but notes that “there are no obvious solutions” (73).  Judges are limited in what types of cases they can hear both by constitutional and statutory rules.  I agree with Oppenheimer when she concludes that any meaningful change is going to have to come from the legislature.  Until then, same-sex couples face a tough decision.  They will need to decide if the idea of marriage – something they have long struggled for – is worth the hassle considering the legal and logistical nightmares that could result if their relationships fall apart.  Those who advocate against same-sex marriage will continue to do so, but they should bear in mind that by refusing to provide a same-sex couple, who was validly married in another jurisdiction, with the option of divorce and everything that goes with that (ie: property division, custody orders, etc.), they are implicitly condoning gay marriage by keeping the couple together.

Photo 1:   found here on February 28, 2012.

Photo 2 found here on February 28, 2012.

Resource of the Day: Locating the Law (5th Edition, Rev.)

The Southern California Association of American Law Libraries (SCALL) has released the revised fifth edition of Locating the Law: A Handbook for Non-Law Librarians.  initially published in 1986, this nifty handbook is an excellent resource for non-lawyers, providing basic information about California and federal legal materials along with a straightforward overview of what they are, how they are organized, and how to utilize them in the legal research process.

Thanks to SCALL’s Public Access to Legal Information (PALI) Committee, the revised edition now boasts updated links and improved navigational features as well as a new title for Chapter 10 (i.e. Bibliography of Self-Help Resources).  The original section of List of Common Abbreviations in the Law from the end of Chapter 2 has expanded substantially, morphing into a completely new Appendix B dubbed How to Read a Legal Citation.  And an extra round of snaps goes to the authors for including a superb chapter designed to help guide law librarians when working with pro se patrons (Chapter 9: Assisting Self-Represented Litigants).  Well written and concise, this pithy piece should be required reading for all law librarians.

Only available online, the full text can be freely downloaded via the SCALL website.  Individuals and libraries are encouraged to download or print as many copies as necessary in accordance with the work’s Creative Commons license.  (Adobe Acrobat required)

The “Car Parts” Theory of Legal Research

A Theory

For a while now, I’ve been working on a theory about how legal research works. Using legal research tools is a hard paradigm to share with new law students, even ones who have experience with undergraduate research. It may be, as Anne Elk, A. Elk [Miss], put it, “My theory, that I have, that is to say, which is mine, is mine,” (Cough. Cough, cough), but I’d be thrilled if you steal, uh, borrow it, use it—and tell me what you think.

Cars

Every make of car—Honda, Toyota, Chevy, Ford—has parts that do the same things: alternators, starters, fuel injectors, fuel pumps, for instance. But parts from a Toyota won’t work in a Chevy, and so on. That’s because the parts do the same things, with different shapes and sizes and connectors. And remember: All those parts are supposed to connect: fuel injector, fuel pump, gas tank. But if you want your car to work right, all the parts have to connect together properly.

Research tools

There are a lot of different projects you might be doing legal research for. You might be working on a memo for LSV; a pleading or brief for an employer, moot court, or mock trial; or a seminar or law review paper or research for a professor. Like cars, all of the projects are similar, and go forward in similar ways. But, also like cars, they look different (trucks, economy cars, sports cars, SUVs) and have different uses.

And you will find a lot of different “things” (sources of law, or just “sources”) when you do legal research: constitutions, cases, statutes, regulations (kind of “junior statutes”), and lots of different types of secondary sources, like law review articles, legal encyclopedia articles, digest summaries, and case annotations.

These “things” are found in different research tools, in books and online: annotated statutes, case reporters, journals, legal encyclopedias, digests, and American Law Reports.

All of these research tools have the same parts. The books have tables of contents, indexes, and tables of cases. The Web resources have basic and advanced search functions, tables of issues and articles. But the parts don’t work exactly the same way… because just like an alternator from a Chevy and a fuel pump from a Honda, neither the resources nor the parts themselves are interchangeable.

But—and this is important—just like a working Honda’s fuel pump and gas tank, the parts are also connected, forward and backward, by the references and citations.

Connections

Use connections. The alternator connects to the battery. The connection runs both ways—and won’t work either way unless there is a connection.

Citations aren’t just something you have to use the Bluebook to figure out how to format. Look at the citations in the “things”—sources—you have, and use them to find other sources. Looking at citations in your sources, and the different sources they cite to, lets you figure out what all the sources you have to say about each other. Sources are written by people (obvious, I know). People disagree. Some disagreements get resolved—when a higher judge disagrees with a lower one. But some don’t—when two judges at exactly the same level, or in different states, disagree.

Reverse Engineering

Oh, about the Bluebook. Think of it as being the shop manual for your car. One use for a shop manual is to figure out how to put a new fuel injector in your car. But you can also use the shop manual to take the car apart, or find a part number for the new cylinder-head gasket or fuel-tank float you need.

You’ve been taught, or learned, to use the Bluebook to look up how to format a Georgia Supreme Court citation, for example. But if you have a citation that you can’t completely figure out, but you’re pretty sure is from Michigan (because it has “MI” or “Mich.” in it) or Colombia (“Colom.”, ditto), use the Bluebook’s tables to look up the citation format. (There’s a general rule of thumb here: As a favorite writer of mine put it, “[W]hen faced with a problem you do not understand, do any part of it you do understand, then look at it again.”)

Other Places to Look

There are different shop manuals for different cars, right? Some jurisdictions have their own “shop manuals.” Florida, for instance, has two: An official one, Fla. R. App. P. 9.800, “Uniform Citation System,” and a semi-official one, the Florida Style Manual, that Fla. R. App. P. 9.800(n) tells you to use if Fla. R. App. P. 9.800 doesn’t have the citation style you need.

Postscript

I really like this “theory” (an extended metaphor, really), for its usefulness and concision. I also think it’s very pedagogically interesting. I plan to do some research on that aspect for a follow-up blog post. Anyway, that’s my theory. Please let me know what you think—post a comment, or email me at silvermanmi@nsu.law.nova.edu.

Office of the Law Revision Counsel wants YOU!

The Office of the Law Revision Counsel is seeking comments on the new beta version of its website for the U.S. Code. The Office is looking for feedback from law librarians and members of the public about the site’s features, content, and ease of use.

The beta site is located at http://uscodebeta.house.gov and the current site is located at http://uscode.house.gov/. Your comments will help the Office make changes to the website to better meet user needs. Please send your comments to uscode@mail.house.gov.

Some key features of the new website are:

• A new search engine for Code data
• An expanding "Table of Contents" style browse of the Code
• A simple search facility for quickly accessing specific Code sections or performing simple word or phrase searches
• An advanced search facility for sophisticated searching of Code content using delimiters such as field or Code hierarchy restrictions, Boolean logic, and case sensitive searches
• An improved display of search results and Code documents
• Cite Checker, a new tool that enables quick checking of specific Code sections for recent amendments
• Easy access to USCprelim, an advance posting of the next online version of the Code
• New explanatory material about the Code and the functions of the Office

Prospective features include:

• Ability to search previous versions of the Code
• Ability to search USCprelim
• Enhanced internal and external links

Hat tip to Emily Feldman, Advocacy Communications Assistant at the American Association of Law Libraries for sharing this exciting news with us!

Is Teaching Cost-Effective Legal Research (Im)Possible?

An interesting blog post appeared on the Dewey B Strategic blog (the blog subhead: “Risk, value, strategy, libraries, knowledge and the legal profession”), posted by attorney and DLA Piper Director of Research Services and Libraries Jean P. O'Grady, on May 5, 2011: “The Myth and the Madness of Cost Effective Lexis and Westlaw Research Training.” It may be impossible to teach cost-effective legal research using Westlaw and LexisNexis in the manner the author describes. That said, I think the problem Ms. O’Grady is addressing is as much an result of her approach as it is a reflection of reality.

I think that there are (at least) three problems with Ms. O’Grady’s blog post. First, the tone of Ms. O’Grady’s blog post is rather negative: It criticizes, but suggests no better approaches. There may be a straw-person problem here as well: I don’t really recognize or understand the extremely detail-oriented model of cost-effective legal research instruction she discusses. She mentions that her solutions to the problems she diagnoses will be in a subsequent post, so I hope she describes her model further then. Second, her post is oriented toward large law firm research, and takes a trees-for-the-forest approach. And third, Ms. O’Grady seems never to have worked outside of BigLaw firms (that is, firms ranked in the American Lawyer 100, or of similar size), where the vast majority of lawyers do (see some numbers on firm size, below). Her approach to legal research and to cost-effective legal research teaching, reflects this: if more information, be it legal research or cost effective rules, is good, then more is better. BigLaw litigation tends to be massive, with massive discovery, trial–and legal research–budgets.

Law Practice and Overly-Expensive Memos

According to our Westlaw educational representative, there are some frightening numbers associated with computerized legal research. BigLaw firms spend approximately $150,000 a month on their Westlaw accounts. By comparison, if it were even possible to buy the equivalent of law-student Westlaw access, that sort of account alone would cost about $100,000 a month.

Such huge legal-research budgets presents a false picture of legal research in the real world of lawyering. As one of the commenters on Ms. O’Grady’s post, Chicago-Kent Law professor and Director of the Legal Research and Writing Program Mary Rose Strubbe (who practiced for four years with a small law firm doing complex federal litigation), wrote, “you imply that all or most lawyers are working at large firms, with librarians. In Illinois, for example, far fewer than 20% of the licensed lawyers work at private firms having more than 25 lawyers.”

These numbers are close to Florida’s. According to the Florida Bar’s 2010 Economics Survey, 65% of Florida attorneys work in firms of 1-5 attorneys, and 77% work in firms of ten attorneys or fewer. (DLA Piper, according to their website, has “4,200 lawyers located in 30 countries and 76 offices.”)

Given the costs of computerized legal research, it is extremely unlikely that small-firm lawyers have access to resources even approaching those available at BigLaw firms–unless they go to a library with free (limited) Westlaw or LexisNexis access.

At the run-of-the-mill small law firm, unlike BigLaw firms (which almost certainly pay a flat rate for their legal research), when a lawyer does legal research using Westlaw or LexisNexis, the meter is running. This can have frightening results. The $1,300 to $6,000 memo is real. A student of University of Arizona Law reference librarian and adjunct assistant professor Sarah Gotschall ran up about a $6,000 legal-research bill (but at least got an iPad for the $800 he eventually had to pay out of pocket). A friend of mine did it to the tune of $2,000. Even I spent $1,300 doing some in-house research, unaccustomed as I am to having to account for the cost of Westlaw access.

Granularity and “Easing In”

A major problem with Ms. O’Grady’s approach to cost-effective legal research training is this: She thinks that the solution to trainee lawyers learning cost-effectiveness is to give them a lot of detail. So much so, in fact, that she cites the number of databases that Westlaw and LexisNexis have between them, about 100,000–and implies that new legal researchers should ideally have some idea about the pricing of all these available modes of research.

How can newly minted legal researchers be expected to do this? They don’t understand some of the resources they are accessing, and certainly not their importance. New lawyers have all heard about the importance of running their cases through a citation index, but what percentage have internalized the importance of making sure all the cases they rely upon are good law? (It may take a courtroom loss for that to sink in.) Given that, how can a new lawyer figure out whether the importance of a resource justifies its cost? Law students and new lawyers should be “scared straight” slowly, and, to begin with, given a framework for understanding the costs of Westlaw and LexisNexis legal research. But that framework shouldn’t be more complicated than “This is expensive—BOO!”, with the “BOO,” of course, being the $6,000-memo story and its equivalent.

Citation Indexing

The most important example of the importance of a resource justifying its cost is, of course, citation indexing. And unfortunately, this is one area where there is no way around the Westlaw and LexisNexis duopoly. Their databases are the only ones set up for making sure that a case is still good law. Fortunately, the cash prices for this per case are not too excessive: $15.00 to Shepardize a case–cheap compared to losing a case through incomplete research. (KeyCite pricing varies by type of material.) Fastcase apparently gets asked about this a lot, and has talked about it internally. And, to speculate, doing so would let them put a big wedge into the duopoly. But that kind of database analysis, perforce done at least in part by hand, is obviously a huge undertaking. Access to ALR or forms or even headnotes is nice. But if a case is not good law, then much of the research that involves it is worthless.

BigLaw–Part of the Problem

Ms. O’Grady several times suggests that there are two sides to this dispute: The terrible information vendors, who are the true culprits in the spiraling, pathological cost of computerized legal research, and us, the virtuous law firms bearing the brunt. She even says so in a bold-faced statement: “Subscribing to the myth of cost effective research training keeps the focus off the true culprits and keeps us from demanding a real solutions [sic].” But how can BigLaw be expected to help solve the cost-effective legal research problem–boycott Westlaw and LexisNexis? The BigLaw machine would stop–obsessively over-researching issues, and the attendant huge amounts of time for which their model allows client billing, encourages Westlaw and LexisNexis, not discourages. BigLaw is part of the problem, not of the solution—for the moment, not even potentially.

Market forces may solve or help solve this–but only when the full-fee model that BigLaw firms hew to are replaced by different practice models and more sensitive billing models, as the economy changes. (The Economist ran an excellent article recently about how law firms are becoming more nimble and international, changing focus more rapidly, and retrenching, on May 5, “A Less Gilded Future.”)

A Conclusion and Some Solutions

Ms. O’Grady’s analysis is interesting and relevant. Nonetheless, she does have issues: a rather contrary tone, an over-detailed approach to cost-effective legal research instruction, and an overwhelmingly BigLaw background, far from the much more common small-firm law practice environment. Any one of those issues would be worrisome. Given all three factors, I think her perspective is somewhat unrealistic.

I do have some student-tested solutions of my own:

• a more general approach relying on a general cost-benefit comparison, perhaps;
• running some Westlaw and LexisNexis numbers with law students, clerks, and new lawyers;
• explaining, with examples and numbers, that Westlaw and LexisNexis are all but prohibitively expensive for small-firm use;
• teaching free and low-cost resources (where possible, except for citation indexing)
• the new flat-rate subscription plans Westlaw and LexisNexis are offering to solo and small-firm lawyers
• not to mention a realistic view of the contribution of BigLaw firms to the exorbitant, increasing price of computerized legal research and the lack of any responsiveness from the Westlaw and LexisNexis duopoly.

But I will go into more detail about these ideas, and examine some other possibilities later, especially after I can examine Ms. O’Grady’s proposed solutions.

A Region in Crisis: Research in the Middle East

(Previously posted by me @ RIPS Law Librarian Blog)

With the ongoing events in the Middle East and the Ka Nefer Nefer case going on, we’ve received several questions on how to locate Middle Eastern law.  I thought that perhaps some of you might also be interested in the resources I’ve been putting together for our students. Slate has put together a great infographic about what’s going on in the Middle East, complete with links to news stories and a moving timeline. Several libraries have already put together some great guides to law in the Middle East. LLRX has also put together a guide on finding Islamic law. The Pitt Jurist and the Law Library of Congress are also great sources for links to legislatures, executives, bodies of law, and other information.  Where a Law Library of Congress page exists, it tends to link to the most primary sources and be the most comprehensive, but I’ve included several other sources as well because, depending on the research project and the languages the research speaks, different sites will be more helpful.  Of course, not every country is mentioned in every source.  The CIA World Factbook has great information on government and legal structure for countries without a lot written about them.  While they’re a great source, and I’ve linked them in each spot, I believe that the other sources are more comprehensive and helpful from a legal research angle most of the time.   For the main countries involved:

Algeria

• Law Library of Congress: Algeria
• GlobaLex: Algeria
• LLRX: Algeria
• Algerian Law Firms
• Algerian Law Schools
• CIA World Factbook: Algeria

Bahrain

• Law Library of Congress: Bahrain
• Pitt Jurist: Bahrain
• Washlaw: Bahrain
• Bahrain Law Firms
• CIA World Factbook: Bahrain

Djibouti

• Law Library of Congress: Djibouti
• CIA World Factbook: Djibouti

Egypt

• Law Library of Congress: Egypt
• Pitt Jurist: Egyptian Law
• Egyptian Law Schools
• NGO Law Monitor: Egypt
• Egyptian Law Firms
• Internet Law Library: Egypt (includes copies of constitution in English and Spanish)
• CIA World Factbook: Egypt

Iran

• Law Library of Congress: Iran
• Pitt Jurist: Iran
• Pars Times: Iran Law
• GlobaLex: Iran
• Iranian Law Firm
• CIA World Factbook: Iran

Iraq

• Law Library of Congress: Iraq
• Pitt Jurist: Iraq
• NGO Monitor: Iraq
• CIA World Factbook: Iraq

Israel

• Law Library of Congress: Israel
• Pitt Jurist: Israel
• Israeli Law Schools
• LLRX: Israeli Law Guide
• Israeli Law Review
• Israeli Law Firms
• CIA World Factbook: Israel

Ivory Coast

• Law Library of Congress: Cote d’Ivoire
• Pitt Jurist: Cote d’ Ivoire
• CIA World Factbook: Cote d’Iviore

Jordan

• Law Library of Congress: Jordan
• Pitt Jurist: Jordan
• Jordanian Law Schools
• CIA World Factbook: Jordan

Kuwait

• Law Library of Congress: Kuwait
• Pitt Jurist: Kuwait
• CIA World Factbook: Kuwait

Lebanon

• Law Library of Congress: Lebanon
• Pitt Jurist: Lebanon
• Lebanese Laws
• Lebanese Patent Law
• CIA World Factbook: Lebanon

Libya

• Law Library of Congress: Libya
• Pitt Jurist: Libya
• Law of Libya
• CIA World Factbook: Libya

Mauritania

• Law Library of Congress: Mauritania
• CIA World Factbook: Mauritania

Morocco

• Law Library of Congress: Morocco
• Pitt Jurist: Morocco
• LLRX: Morocco
• CIA World Factbook: Morocco

Oman

• Law Library of Congress: Oman
• Pitt Jurist: Oman
• Oman Studies Center: Oman Law Network
• CIA World Factbook: Oman

Palestine

• Law Library of Congress: Occupied Territories
• Pitt Jurist: Palestinian Authority
• Birzeit University Institute of Law
• Palestinian Basic Law

Saudi Arabia

• Law Library of Congress: Saudi Arabia
• Pitt Jurist: Saudi Arabia
• CIA World Factbook: Saudi Arabia

Sudan

• Law Library of Congress: Sudan
• Pitt Jurist: Sudan
• CIA World Factbook: Sudan

Syria

• Law Library of Congress: Syria
• Pitt Jurist: Syria
• CIA World Factbook: Syria

Tunisia

• Law Library of Congress: Tunisia
• Pitt Jurist: Tunisia
• LLRX: Guide to the Tunisian Legal System
• CIA World Factbook: Tunisia

Western Sahara

• CIA World Factbook: Western Sahara
• Internet Law Library: Western Sahara

Yemen

• Law Library of Congress: Yemen
• Pitt Jurist: Yemen
• WashLaw: Yemen
• Yemen Law Schools
• CIA World Factbook: Yemen