Case Law Just Wants to be Free
An Accelerating Trend
by Robert J. Ambrogi
Legal.Online column in May 2008 Oregon State Bar Bulletin
An excellent, must-read summary of the past, present and future of open access to court cases.
“. . . in the information age in which we now live, private control over the distribution of public case law seems anachronistic.”
It’s a variation on our class theme of “secondary first!” But a Wall Street Journal Law Blog posting, “Advice from the Corner Office: Use Google; Avoid Grammar Gaffes,” offers some key tips from law firm partner Drew Barry and includes this good research advice:
Get Yourself Smart on a Subject, Fast: When they get assignments, he says, self starters “contextualize” the issue by “Googling stuff for fifteen minutes.” Lexis and Westlaw, he says, are fine for focusing on a point of law. But the peripheral vision provided by a Web search is also invaluable. It can yield relevant law journal articles, blog posts, plaintiffs’ lawyers sites, law-firm newsletters and the like.
In a way, he says, see-what-I’ll-find Internet research is akin to the old hard-cover legal research methods which, he says, are more than powerful electronic search engines “give a feel for the evolution of the common law.”
A popular legal research book here at Stanford is Just Research by Laurel Currie Oates and Anne Enquist; it includes many tips on ways to find good legal overviews using Google.
I am serving in the middle of a three-year term as a member of the West Academic Advisory Board. We had our annual meeting last week in Minnesota. Two jam-packed days of discussions and meals (the good people at West are incredibly gracious and thoughtful hosts).
There were 7 of us library directors in attendance, plus a whole host of people from West.
It’s a fun meeting, and we get a sneak peak at some new lines, products , services and service enhancements under development by West. Oops, I mean Thomson West. Oops, I mean Thomson Reuters! And some of this new stuff might never see the light of day, either. I can’t wait to show our students some of the new Westlaw features. Our main agenda topics were “Law School Libraries – Today and Tomorrow” and “New Products and Ideas for Libraries and Professors.” As related products do get rolled out, we will comment upon them at this blog.
I can’t write about what we did talk about (we all sign confidentiality agreements), but one topic that did not come up was the open access movement.
I thoroughly enjoyed my two days in Minnesota and look forward to next year, my last year of service on the board (each year new members rotate in and old ones rotate out). There’s e-mail and newsletters and Wimba and blogs!, but there is still no substitute for in-person conversation, and never will be.
Journal of Appellate Practice and Process, Vol. 9, No. 1, p. 17, Spring 2007
SARAH E. RICKS, Rutgers School of Law – Camden
Federal appellate courts are overworked. To handle their overloaded dockets, appellate judges have adopted a wide variety of measures intended to promote efficiency, including deciding approximately eighty percent of appeals in nonprecedential opinions.Courts and litigants currently are adapting to new Federal Rule of Appellate Procedure 32.1, which prohibits courts from restricting the citation of non-precedential opinions. Whether it is constitutional for federal appellate courts to issue non-precedential opinions is outside the scope of this essay. Putting the constitutional question aside, as a practical matter, at least for now non-precedential opinions should not be eliminated in favor of universal publication of opinions as precedent. That would be a dramatic break from several decades of federal appellate court practice. Moreover, universal publication as precedent would risk repetitive rulings and increased need for en banc overruling of inconsistent circuit precedent.
However, as an interim measure, and without ruling out future structural reforms, this essay proposes that federal appellate courts modify their internal operating procedures or local rules. Circuit courts should expressly confer persuasive value on non-precedential opinions, provide specific criteria to guide the publication decision, and permit anyone-not just parties-to move the court to reissue a non-precedential opinion as a precedential opinion. The proposed modifications would help to better ensure that non-precedential opinions are consistent with precedential opinions from the same circuit, that like cases are treated alike, that issues resolved at the appellate level need not be relitigated before district courts, and that nonprecedential opinions truly are limited to repetitive applications of settled law.
Source: LSN Litigation & Procedure Vol. 9 No. 52, 05/30/2008
