Ineffective Assistance of Library: The Failings and the Future of Prison Law Libraries

By Jonathan Abel, in Volume 101, Issue #5 of The Georgetown Law Journal (June 2013).  Here’s the abstract:

The prison law library has long been a potent symbol of the inmate’s right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research methods, prison libraries face an existential crisis that requires prison officials, courts, scholars, and inmates to reconsider the very purpose of the prison law library. This Article takes up that challenge by providing a novel historical account of the prison law library’s development.

This Article uses original historical research to show how prison law libraries arose, not as a means of accessing the courts, but rather as a means of controlling inmates’ behavior. By placing the origin of the prison law library in the first decades of the twentieth century–half a century earlier than typical accounts–this Article shows how the law library evolved to take on a new purpose in the 1960s and 1970s, when the Supreme Court and other courts first began to fashion a law library doctrine. The central argument of this Article is simple: The courts’ attempts to graft an access-to-courts rationale onto a law library system that had developed for other purposes led to a law library doctrine riddled with contradictions and doomed to failure. This historical account helps explain a prison law library system that never really made sense in terms of providing access to the courts. As prisons look to update their law libraries in light of sweeping technological changes, it is all the more important to understand the history of the law library system so that authorities can plan for its future.

 

 

Selling others’ briefs

Following up on George’s post “A pair of lawyers . . . sue West and LexisNexis for reproducing their court filings,” I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs.  The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.

One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs.  Some states have made various arrangements with vendors; others refuse to do so.  For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.

California and Pennsylvania, of the surveyed jurisdictions, both have quid pro quo arrangements.  For example, in California, the state Supreme Court used to send copies of the briefs to certain public law libraries but stopped the practice when it made a deal with Court Records Service (later acquired by West Publishing) whereby the court receives microfiche copies in return for providing the briefs.

Massachusetts has what seems like an odd arrangement whereby briefs are scanned once at the Clerk’s Office, then sent to Westlaw, where they are scanned again and later returned.

To write the paper the student called librarians, court clerks, reporters of decisions, and the vendors.  None of the surveyed court staff members reported any attorney dissatisfaction with the practice of providing briefs to the vendors.  And in one state, the Reporter of Decisions speculated that attorneys actually liked “the free advertising.”  And many clerks were surprised that this has become an issue at all since the documents are public records.

Yes, they are public records but that doesn’t mean they are in the public domain.  Yet who wins if a court rules that Westlaw and LexisNexis are infringing authors’ copyright?  My student thinks that the attorney authors are really the only winners (if they receive royalties) and most of them have already received substantial compensation for writing these briefs and all other players (the courts, the public) are losers.   I hope that in the spirit of pro bono most attorneys will continue to make their appellate briefs available to all the world and not press ownership claims (with perhaps some sort of opt-out provision for the rare instances when, for privacy or other sensitive concerns, certain briefs should not be published).   It would also be a better world if LexisNexis and Westlaw could also take responsible pro bono actions here, as suggested by Ed Connor and not profit from the work product of those in the private sector.

Here’s the cite to my student’s paper:  Bryan Jarrett, Vending Appellate Briefs: The practice, its future, and implications if found illegal.   Submitted October 30, 2010.

Abstract:

This paper analyzes the collection and sale of appellate briefs.  It presents the findings of a survey of seventeen jurisdictions.  The paper discusses how Westlaw and LexisNexis access the briefs, whether they have structured mutually beneficial agreements with the courts that provide the briefs, whether attorneys commonly object to the sale of their briefs, the likely future of the industry, and the potential policy implications of a successful legal challenge to the industry’s practices.

Where Law Books Are Made, Illustrated

“West’s Words, Ho! Law Books by the Million, Plus a Few” 

Green Bag 2d, Vol. 14, No. 3, pp. 301-339, Spring 2011
George Mason Law & Economics Research Paper No. 11-25

ROSS E. DAVIES, George Mason University School of Law, The Green Bag

This essay introduces an interesting but nearly invisible artifact of American law: A promotional pamphlet titled Law Books by the Million: An account of the largest law-book house in the world, the home establishment of The National Reporter System and The American Digest System. It was produced by the West Publishing Company in 1901 and is reprinted in its entirety below at pages 311 to 339 of this issue of the Green Bag. Professor Robert Jarvis has quite rightly bemoaned the meager public information about John West, founder of the West Publishing Company and an important figure in American legal history. A similar, albeit less severe, paucity of information plagues the West Publishing Company itself (now owned by Thomson Reuters). There isn’t much out there about the company’s early years, and what little there is can be strangely difficult to get hold of. For example, the biggest single source of West history – William Marvin’s 1969 book, West Publishing Company: Origin, Growth, Leadership – is out of print, rare, and not available on the Internet. The same goes for The Publications of West Publishing Company and The Romance of Law Reporting: Serving the Bench and Bar, pamphlets published by West in 1901 and 1934 respectively. Law Books by the Million is nearly as hard to find, but at least it is in the library and in the public domain, and therefore susceptible to reproduction here. And it is worth the trouble and expense. Law Books by the Million provides a readable, richly illustrated narrative of the processes West used to create and disseminate its products in the early years (that is, the late 19th and early 20th centuries) of those simultaneously democratizing and costly, mutually reinforcing revolutions in American law: the expansion of the bar and the legal information explosion.

 

Source: LSN Legal Education eJournal Vol. 8 No. 35, 06/13/2011

“Abandoning Law Reports for Official Digital Case Law”

“Abandoning Law Reports for Official Digital Case Law” 

Cornell Legal Studies Research Paper No. 11-01
PETER W. MARTIN, Cornell Law School
In 2009, Arkansas ended publication of the Arkansas Reports. Since 1837 this series of volumes, joined in the late twentieth century by the Arkansas Appellate Reports covering the state’s intermediate court of appeals, had served as the official record of Arkansas’s case law. For all decisions handed down after February 12, 2009, not books but a database of electronic documents “created, authenticated, secured, and maintained by the Reporter of Decisions” constitute the “official report” of all Arkansas appellate decisions.
 
The article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the twentieth century and this new official database from the opinion archives now hosted at the judicial websites of most U.S. appellate courts. It proceeds to explore the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted. Speculation about which other states have the capability and incentive to follow Arkansas’s lead follows. That, in turn, requires a comparison of the full set of measures the Arkansas Supreme Court and its reporter of decisions have implemented with similar, less comprehensive, initiatives that have taken place elsewhere. Finally, the article considers important issues that have confronted those responsible for building Arkansas’s new system of case law dissemination and the degree to which principal components of this one state’s reform can provide a useful template for other jurisdictions.

Legal Publishing in Antebellum America

We just received this very interesting looking book today by law professor M. H. Hoeflich (catalog record below).

From the jacket:

Legal Publishing in Antebellum America presents a history of the law book publishing and distribution industry in the United States.  Part business history, part legal history, part information history, M. H. Hoeflich’s book shows how various developments such as printing and binding, the introduction of railroads, and the expansion of mail service contributed to the growth of the industry from an essentially local one to a national scale.  Furthermore, the book ties the spread of a particular approach to law, that is, the “scientific approach” championed by northeastern jurists, to the growth of law publishing and law bookselling, and shows that the two were critically intertwined.

Here’s a paragraph from the first chapter that helps set the stage for what follows:

In the period from the founding of the new republic to the beginning of the Civil War, American law and the American legal profession underwent profound changes.  This was a period of extensive legal syncretism of American and English law.  English law was neither wholly rejected nor wholly accepted, and every lawyer during this period had to know something of English statutes and cases as well as the great treatise literature that had dominated English legal thought, particularly the works of Coke and Blackstone.  At the same time each of the new American states and the new federal government were developing legal literatures of their own, in courts, in legislatures, and in law offices and law schools.  No antebellum American lawyer could risk not knowing his own state’s and nation’s laws.  Finally, American lawyers of the period were cosmopolitan in their thinking and writing.  If they could not find relevant English or American law they would gladly look to the law of ancient Rome, and of contemporary France or Germany, among others.  The new nation in its formative period offered lawyers unparalled freedom to look widely for their authorities.

The author, in a Bibliographical Note, explains that he has “established a Web site: www.antebellumlegalpublishing.org. On this site will be found detailed bibliographies of both primary and secondary sources used in this volume, digital reproductions of many of these sources, and comments about these sources including, where useful, location information.”  This site will be kept current as new material is discovered and it will also provide a wiki forum for readers to post comments.

Here’s its catalog record:

Author: Hoeflich, Michael H.

Title: Legal publishing in antebellum America / M.H.
                        Hoeflich.

Related e-resource: Contributor biographical information
http://catdir.loc.gov/catdir/enhancements/fy1005/2009053585-b.html

Electronic version: Table of contents only
http://www.loc.gov/catdir/enhancements/fy1005/2009053585-t.html

Imprint: New York : Cambridge University Press, 2010.

  Physical Description: xiv, 190 p. ; 24 cm.
                      : Machine generated contents note: Introduction; 1. A
                        bookish profession; 2. Birth of the law book trade; 3.
                        Spreading the word: catalogues and cultivation; 4.
                        Bidding for law books; 5. Risk, subscriptions, and
                        status; 6. John Livingston, esq.: law bookseller as
                        cultural entrepreneur; 7. Conclusion: selling the law
                        in antebellum America.
               Summary: “Legal Publishing in Antebellum America presents a
                        history of the law book publishing and distribution
                        industry in the United States. Part business history,
                        part legal history, part history of information
                        diffusion, M. H. Hoeflich shows how various
                        developments in printing and bookbinding, the
                        introduction of railroads, and the expansion of mail
                        service contributed to the growth of the industry from
                        an essentially local industry to a national industry.
                        Furthermore, the book ties the spread of a particular
                        approach to law, that is, the “scientific approach,”
                        championed by Northeastern American jurists to the
                        growth of law publishing and law book selling and
                        shows that the two were critically
                        intertwined”–Provided by publisher.
          Subject (LC): Legal literature–Publishing–United
                        States–History–18th century.
          Subject (LC): Legal literature–Publishing–United
                        States–History–19th century.
                  ISBN: 9780521192064
                  ISBN: 0521192064

The Eggplant That Ate the Spokane County Law Library

 

You’d better watch out for the eggplant that ate Chicago,
For he may eat your city soon.
You’d better watch out for the eggplant that ate Chicago,
If he’s still hungry, the whole country’s doomed.

 

The 3 Geeks and a Law Blog pointed me to a story in the Spokane, Washington newspaper Spokesman-Review.  I won’t rehash what he 3 Geeks blog item “Spokane County Law Library Needs Bailout for Westlaw Bills” opines, but the Spokesman-Review story by reporter John Craig, “Spokane County law library falls behind on bills,”  is disturbing to me on several levels.

The story quotes the librarian as saying that her Westlaw fees “are three times as much as the company was charging Pierce County . . . for the ‘exact same’ service.”  I do not know the details, but I can see how a reader might be led to believe that this poor county law library is being gouged by a huge monopolistic corporation. 

What is also disturbing to me is the report that the library is averaging $ 12,000 a month for Westlaw service, while its annual budget is only $ 220,000.  The library’s total labor costs are reported to be $ 78,236, which means that the county is paying Westlaw roughly twice what it’s paying its staff.   At the Stanford Law Library the total we spend for our staff is roughly twice what we spend for all materials (online and print), and that seems right to me — it’s the staff that is our most valuable resource.

The third disturbing element to the story is the suggestion that perhaps the county law library is a “relic” and should be shuttered for more “cost effective approaches” such as having public libraries (and not specialized law libraries) serve the legal information needs of the public.  To me this is short-sighted on so many levels that I could go on and on for pages about why this is a bad direction.

If this story does not help build a case for Law.gov, I don’t know what would.

Many states have discontinued publishing official state reports and rely upon West instead.  Appendix D of Fundamentals of Legal Research, 9th Edition, by Steven M. Barkan, Roy M. Mersky and Donald J. Dunn, includes a table “States That Have Discontinued Publishing Official State Reports” (excerpted below) showing what states have adopted West’s National Reporter System as the official publisher.

Washington is not one of these states.   It appears that Washington is one of the more progressive states in providing decisional law to the public for free.  The Washington State Court website contains free opinions from the last 90 days, and then links to www.legalWA.org ; the LegalWA site links directly to the Municipal Research Services Center of Washington, a nonprofit dedicated to providing free legal resources for Washington where case law from 1854 forward can be found.

There is definitely a place for expensive LexisNexis and Westlaw bills — in the high stakes world of Biglaw litigation (with clients to bill back) for certain, but in a county public law library?  There has got to be a better way.

Here’s an excerpt from that table I mentioned above:

B. STATES THAT HAVE DISCONTINUED PUBLISHING OFFICIAL STATE REPORTS.

Except for Louisiana, all states have discontinued their official reports have adopted West’s National Reporter System, or an offprint of the National Reporter System, as official.  Alaska has used the Pacific Reporter as its official reporter since it became a state.

[Copied below are the states listed in this table, next to the “Year of Last Case”]

Alabama                            1976

Ala. App.                           1976

Colorado                           1980

Colo. App.                        1980

Delaware                           1966

Florida                               1948

Indiana                              1981

Ind. App.                          1979

Iowa                                   1968

Kentucky                         1951

Louisiana                        1972

Maine                               1965

Minnesota                      1977

Mississippi                    1966

Missouri                        1956

Mo. App.                       1952

North Dakota              1953

Oklahoma                    1953

Okla. Crim.                  1953

Rhode Island             1980

South Dakota             1976

Tennessee                   1971

Tenn. App.                  1972

Tenn. Crim. App.      1970

Texas                            1962

Tex. Crim. App.       1963

Utah 2d                        1974

Wyoming                    1959

John B. West and other non lawyers who have revolutionized legal research

The latest issue of The American Journal of Legal History just landed on my desk.  It includes an article by Robert M. Jarvis, “John B. West:  Founder of the West Publishing Company.”   There are all sorts of fascinating facts about Mr. West in the article, including (and maybe everyone knows this but me) how he called for uniform citation way back in 1908.  From a footnote:

. . . [West] calls attention to the necessary multiplication of citations caused by the different unofficial publication of reports . . . [and] contends that reports of decisions are simply official documents which should be filed in numerical order and cited with reference to their numbers.  Under this system no matter how many decisions or systems of reporting be adopted each case can be readily found and cited by reference to this official number, entirely regardless of the volume and page of the particular publication.

The article details West’s (the man) falling out with West (the company).  “John called for the elimination of unofficial case reporters . . . [and] likewise derided the West digest system . . . ”

In his conclusion to the article, Professor Jarvis remarks:

In thinking about John, two matters particularly stand out.  One is the pure randomness of his life.  If he had not moved to St. Paul and gotten a sales job with D.D. Merrill, he would not have met the lawyers he did and ended up inventing the case reporter and the digest.  It is possible, of course, that someone else might have done these things, but if not, the legal system would have developed along very different lines.

Second, there is the question of how a man who did not go to college, and was untrained in law, was able to devise methods that revolutionized legal research and, by extension, legal practice.  Why was no judge or lawyer able to see what he saw?  Perhaps the answer is that they were not looking, or perhaps it took an outsider to see what the cognoscenti could not.

This question of how a non lawyer can be such a leader in legal research struck me last quarter while we were teaching advanced legal research.  Two of our guest speakers are true revolutionaries in legal research — Carl Malamud from public.resource.org and Tom Bruce from the Cornell Legal Information Institute.   Both men are leading the free law revolution (and if Law.gov takes off, legal research will never be the same), and neither are lawyers.  Or law librarians, for that matter.

Here’s the cite to the article:

Robert M. Jarvis, “John B. West: Founder of the West Publishing Company,” The American Journal of Legal History, Volume L, Number 1, pages 1-22, January 2008-2010 (2010)

New article on West Publishing

From the November 2009 issue of Twin Cities Business:  “Thomson Reuters’ Brain,” by Dave Beal

The Eagan business that was once West Publishing now supplies its parent company with the intellectual firepower to outmaneuver Bloomberg and LexisNexis in the financial and legal content wars.

Lede:

There may be no more concise way to sum up the changed nature or ambitions of the former West Publishing Company than what Roger Martin says:  “We are sort of the next generation of Google — without the garbage — for professionals.”

The article discusses how successful the legal division is for the company:

Legal . . . is just one of seven primary business units . . . , but it’s a big contributor to the bottom line.  In 2008, it accounted for 27 percent of Thomson Reuter’s $ 13.4 billion in revenue and 39 percent of its operating income. . . .   In the first quarter of 2009, the legal unit had an operating margin of 32.1 percent versus 20.7 percent for the entire company. . . .

The article goes on to discuss the work of the company’s many “information technologists” and quotes chief scientist Peter Jackson on “the right balance of natural and artificial intelligence is a product-development key.”

One such product is ResultsPlus, which I have found extremely useful at time.  Acccording to the article,

ResultsPlus is built on machine learning and natural language processing, . . . but also central to its effectiveness is that it uses the primary search results — those guided by the user — to shape the secondary search. (The “metadata” fed into the secondary search also include “West key numbers,” . . . ).

Other sections of the article include:

Thomson Sells Reuters and Vice Versa

An Edge on LEXISNEXIS?

Westlaw’s war with LexisNexis has shifted back and forth for a generation, since a version of LexisNexis launched in 1973, two years ahead of Westlaw.  Lately, the clash is tilting in Westlaw’s favor.

Battling BLOOMBERG: Terminals, News, and Datafeeds

The article concludes:

Given potential growth in emerging markets and more opportunities being generated by Jackson’s R&D group, [Peter] Warwick [CEO of Thomson Reuters Legal] puts the annual revenue potential of the legal division alone at $ 14.3 billion — four times Thomson’s Reuters Legal’s revenues in 2008.

But growth will depend on how adept the company is at continuing to add value to its massive collections of data.  Google searches, after all, are free; Thomson Reuters is a Google for professionals who are willing to ante up for it.  As the company . . . has discovered, information itself is merely a commodity in the information age.  Information as a service — infinitely searchable, sortable, and customizable — is what’s in demand.

E-books going mainstream? Getting “Napsterized?” and “Advantage Google”

Really eye-opening (to me, anyway) article in the Sunday Business section of today’s New York Times:

DIGITAL DOMAIN
Will Books Be Napsterized?
By RANDALL STROSS
As the hardware for electronic books moves closer to the
mainstream, publishers wonder whether their industry can be
spared the potential problems of piracy.
http://www.nytimes.com/2009/10/04/business/04digi.html?th&emc=th

From the story:

Free file-sharing of e-books will most likely come to be associated with RapidShare, a file-hosting company based in Switzerland. It says its customers have uploaded onto its servers more than 10 petabytes of files — that’s more than 10 million gigabytes — and can handle up to three million users simultaneously. Anyone can upload, and anyone can download; for light users, the service is free. RapidShare does not list the files — a user must know the impossible-to-guess U.R.L. in order to download one.

This has significance, according to Mr. Stross, because e-books are going mainstream:

. . . E-book hardware is on the verge of going mainstream. More dedicated e-readers are coming, with ever larger screens. So, too, are computer tablets that can serve as giant e-readers, and hardware that will not be very hard at all: a thin display flexible enough to roll up into a tube.

And be sure to read Harvard Berkman Center for Internet and Society fellow Lewis Hyde’s essay in the New York Times Book Review today, “Advantage Google.”

Nothing in the history of copyright permits the treatment of ‘orphan’ works spelled out in the proposed settlement.