Bloomberg Law is moving up

according to the Heard on the Street column in today’s Wall Street Journal, “Data Don’t Add Up for Thomson Reuters.”  From the story:

 a survey of legal-information customers by Claudio Aspesi of Sanford C. Bernstein in January found that 61% of respondents had a subscription to Bloomberg Law, up from 36% the year before. And some respondents said Bloomberg Law was getting closer to offering a breadth of data needed to completely replace a subscription to Westlaw or rival Reed Elsevier’s Lexis-Nexis.

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.

How widespread is WestlawNext?

A student asked me this question.  Since I live and work in the beautiful bubble known as Stanford University,and have no idea how things work in the Real World, I turned to outside help to answer the student’s question.

I first asked our Westlaw representative, who provided this interesting and useful piece of information:

Based on a recent article about Thomson Reuters revenue, “The WestlawNext legal database has been sold to more than 18,500 customers since its launch in February 2010, representing 34 percent of Westlaw’s revenue base.”

http://us.mobile.reuters.com/article/businessNews/idUSTRE73R2OI20110428

 

But I knew that our students would want to know more specific information, so I sent out a quick request on the Northern California Association of Law Libraries (NOCALL) listserv.  I received 21 replies — 6 from Biglaw law firms, 8 from small/midsize firms, 2 from county law libraries, 4 from the courts (U.S. District, United States Court of Appeals and California Appellate), and 1 from a state agency.  Of the 6 Biglaw law firms, 4 have WestlawNext (although one, at present, is only making it available to firm librarians — see comments below) and 2 do not.

Of the 8 small/midsize firms, 5 have WestlawNext and 3 do not.

None of the public sector law libraries have WestlawNext.  The state agency reports that it might be added this summer.  I did find it a little ironic that the court libraries do not have WestlawNext — didn’t West get started by wooing the judiciary and treating judges extra special nice?

The comments I received were also very useful and I read many of them to my students, since they contain some great research tips and insights.

Here are a few of the comments:

I know that when firm librarians first saw the marketing materials, we were worried that the quality of search results would go down due to the one-box searching, but if anything the opposite has happened.  The result ranking is much better than it was previously, and you can see a lot more information before clicking into a document, which is great.

Our firm has a flat rate contract, so even though there is a cost for the original search ($50), the amount billed back to the client is significantly lower.  They shouldn’t be scared to use the resource due to the cost (at our firm anyway).  It’s in line with Lexis and the old version of Westlaw.  But of course, books are still cheaper.
Of course, they should still use good search practices so we’re not charging the client needlessly – searching broadly and then narrowing the focus, thinking before clicking into documents, checking before getting material from outside our pricing plan.  You can refer back to materials saved to a folder for a year, for free.  I’m saving a ton of material to folders.
The “price triggers” that incur costs: initial search, opening a document, clicking on the keycite materials. 
Our firm’s flat-rate contract doesn’t cover the PDF images of reporters – that’s the only place where you’re not warned before getting material outside of our contract.
We did a firm survey last year, and honestly, most of our attorneys start their research process on Google because it’s free.  Once they have useful information (like a case name or a statute or a law review article), they’ll go online and find all the related documents and secondary sources.  WestlawNext does a really good job of that, and the new format for KeyCite makes it easy to trace between material types. 
 
One more caveat: Keycite and Shepards both may say a case is good law when underlying statutes or cases have been invalidated (not always, but sometimes).  They don’t always catch it when a case has been invalidated by new legislation, as well.  Knowing how far to trust citator services is important.

 ————————-
 
Only librarians have been given permission to use WLN.  We will be offering mandatory class(es) on the product before attorneys are given passwords to access it.  We are aware that the law school students have been exposed to WLN & will likely expect to use it upon entering into the firm environment, so our window to get up-to-speed is fast approaching.Caveats:  Not everything has been loaded into WLN, so it could be frustrating to attorneys when prompted to transition in the middle of their research  to go to Westlaw. We’re also not sure if the costs will increase since clicking on any results keeps adding up the total.  I know we librarians have had conference call discussions about some of the quirky searching & results . . . .  Do I like it?  I had a trial ID & have not used it much since our contract went into effect in January.  I’m still “on the fence” about it, but realize it is the wave of the future in this Googlish society.
 
————————-
 
The federal courts do not have WestlawNext at this time, and my understanding is that while the Administrative Office in D.C. has discussed it with Thomson-Reuters, there is no plan to purchase it for the federal judiciary in the near future.
 
———————–
 
We are using it.  The attorneys really like it.  One thing I’ve learned about it is that you should never choose the hourly setting on WestlawNext.  Always use it in transactional mode since the nature of it promotes lots of browsing time.  Most law firms are turning off the hourly feature and forcing transactional mode, but if not it can wreak havoc with your flat-rate contract client allocation.
 
————————
 
My advice for students:  Know how much the search costs are before you do it.  And always call the research attorneys — they know their tool better than any of us ever will.
 
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We aren’t using it in the [state] Judicial Branch.  It’s way too expensive and we can’t afford it!  And if Westlaw itself becomes too expensive for us we may be forced to use just one service.  Since Lexis has the official reporting contract, we must have access to them.
 
————————
 
We do not have WestlawNext.  We did a trial of it and it has potential, but we are not willing to pay extra for it.
 
———————-
I see other problems besides cost for WestlawNext in law firms.  To oversimplify: Google on new steroids represents WestlawNext’s research model. That model shows remarkable detachment from application to real-life research problems in law firms.  The stock examples used in WestlawNext’s demos fit TR’s marketing well enough, but I could not translate them into everyday, online research done in law firms. I also see evidence of algorithmic anomalies – possibly widespread – that have only begun to be explored.
 
———————–
We have been using WLN for the past year.  We hopped on the band wagon pretty early due to a demo seen here by our litigation partners.  The litigation attorneys like it a lot.  Power users of regular Westlaw have a big learning curve so do not like it quite as much.  It is great, however, for researching an area you may be unfamiliar with since it will give you the most relevant cases up front.  Our attys like this feature.  The attys also like the cost..they can figure out how much their research will cost them before going in since a search runs about $65
and then you can open as many docs as you want until you hit your research budget ($15/doc. or so).  It relieves some the pressure they feel when going in.  I think it is here to stay.  Even [after] I have cancelled Lexis access here, cut my print budget and staffing, the WLN contract was added without blinking an eye. . . .
 
———————–
 
We require everyone to be trained first on regular Westlaw. We will then train them on WestlawNext.  There a cost pitfalls with both.  Searching is cheaper and broader with WestlawNext, but if you want to look at lots of documents, you will run up the costs. Initial searching Westlaw is probably narrower (have to select a database), but then the documents don’t cost additional to view.
 
———————–
 
I would recommend that students avoid WestlawNext like the plague until they have a solid grasp on doing research on their own.  You do not want to be dependant on an algorithm created by a corporation to be able to do an essential part of your job.
 
I think Next can be a valuable tool and time-saver for attorneys who understand what the algorithm is doing and what the resources are it is returning in the results, but I worry if students start learning how to research using Next, they will not be able to do any research when they leave school unless they are using, and paying a steep price for, Next.
 
———————–
 
The two main reasons [we don’t have it] is that Westlaw would require us to have a separate contract for WestlawNext (we see this as paying for Westlaw twice), and WestlawNext does not have all of Westlaw’s content. . . .
 
————————-
 
Though honestly we haven’t embraced it completely and probably won’t until West tells us they are pulling the plug on classic.  I think it is a good product.  I like the $60.00 search and the left-hand screen that guides you to your hits.  The biggest issue is the pricing per document.  Those clicks just add up.  I am planning on asking our summer assoc. class if they are using Classic or NEXT, then based on the response, the rep. will concentrate on one or the other for the orientation. It will be interesting to see where the product stands with this first summer class who have potentially been using it at school.
 
———————–
 
We at the California Appellate Courts are not.  We have Westlaw and Lexis . . . [and] should be rolling out LMO [Lexis for Microsoft Office] soon, but that is as fancy as we are getting.
 
 
 
 
 

Report: Cultural Practices of the French in the Digital Era 2008

Happy Bastille Day!

It is a few year’s old, but the following report provides the results of a 2008 survey on reading and digital media habits in France.

Cultural Practices of the French in the Digital Era

Les practiques culturelles français à l’ère numérique

http://www.pratiquesculturelles.culture.gouv.fr/08resultat.php

The print version of the report authored by Olivier Donant was published in  2009.

Law Librarians: “No more sacred cows”

Law Librarians: “No more sacred cows”

By Alan Cohen
The American Lawyer
September 3, 2009

“Doing more with less” has long been a goal, even a mandate, for law librarians, but now it’s “do much more with far less.” Money is part of the story according to The American Lawyer’s 14th annual survey of law firm library directors. And “Nothing is a sacred cow anymore.”

Google Books in the News

European Union to scrutinize Google Books settlement; Congress may hold hearing

“The European Union said today that it would scrutinize Google’s settlement with authors and publishers and hold a hearing Sept. 7 to determine whether there would be any adverse impact on the European book market. “What’s currently planned is a fact-finding exercise by the [European] Commission — not an investigation — and we’re looking forward to taking part,” said Jennie Johnson, a Google spokeswoman. Under scrutiny will be Google’s agreement, reached last year with the Authors Guild and the American Association of Publishers, to make out-of-print books searchable online.”

http://latimesblogs.latimes.com/technology/2009/07/european-union-to-scrutinize-google-books-settlement.html

 

University of Wisconsin-Madison and University of Texas expand Google Books agreements

“In May, the University of Michigan announced an expanded agreement with Google that will take advantage of our settlement agreement to make millions of works from its library collection accessible to readers, researchers, and book lovers across the United States. Today, two more longstanding library partners–the University of Wisconsin-Madison and the University of Texas–have also expanded their partnerships with Google. That means that if the agreement is approved by the court, anyone in the US will be able to find, preview and buy online access to books from these two libraries as well.”

http://booksearch.blogspot.com/2009/07/university-of-wisconsin-madison-and.html

 

Google Library Project Settlement: What It Means for Publishers

SPONSORED BY: Google, The Association of American Publishers, and Publishers Weekly 

EVENT DATE: Wednesday, July 29, 2 pm ET Time — 60 minutes 

“In a webinar first, the leaders involved with the crafting of the Google Library Project Settlement will share with the publishing industry the benefits of the agreement for publishers and authors. If approved by the Court in October, the agreement will create one of the most far-reaching intellectual, cultural, and commercial platforms for access to digital books for the reading public, while granting publishers unprecedented opportunities and protections. Presented in collaboration with Google, The Association of American Publishers, and Publishers Weekly, the web session is a must-attend event for publishers everywhere.”

https://event.on24.com/eventRegistration/EventLobbyServlet?target=registration.jsp&eventid=156420&sessionid=1&key=7EF08275BD027B4FA08C48D022C8087D&sourcepage=register

 

Copyfraud: Poisoning the public domain

“The public domain is the greatest resource in human history: eventually all knowledge will become part of it. Its riches serve all mankind, but it faces a new threat. Vast libraries of public domain works are being plundered by claims of “copyright”. It’s called copyfraud – and we’ll discover how large corporations like Google, Yahoo, and Amazon have structured their businesses to assist it and profit from it.”

http://www.theregister.co.uk/2009/06/26/copyfraud/

 

Give Your Input On the Google Book Search Settlement

“Publishers Weekly would like your input on the Google Book Search Settlement (from PW) and they are conducting a survey designed to gather a broad view of how the Settlement is being viewed.. . . . If you’re interested, take a few minutes to answer this brief, targeted questionnaire to help gauge industry opinion on whether the settlement should be approved, modified or rejected. Note that you do not have to have standing in the suit to participate in the survey. Please click on this link when you are ready to take the survey.”

http://lisnews.org/give_your_input_google_book_search_settlement

 


 
Source:  The always excellent Intersect Alert.
The Intersect Alert is a newsletter of the Government Relations Committee, San Francisco Bay Region Chapter, Special Libraries Association

http://units.sla.org/chapter/csfo/csfo.html

Going Behind the Scenes of Empirical Legal Research

A new book crossed my desk today, Conducting Law and Society Research: Reflections on Methods and Practices, and here’s its description from the publisher’s website (Cambridge University Press):

Conducting Law and Society Research: Reflections on Methods and Practices

Series: Cambridge Studies in Law and Society

Simon Halliday
University of Strathclyde

Patrick Schmidt
MacAlester College, Minnesota

Through interviews with many of the most noteworthy authors in law and society, Conducting Law and Society Research takes students and scholars behind the scenes of empirical scholarship, showing the messy reality of research methods. The challenges and the uncertainties, so often missing from research methods textbooks, are revealed in candid detail. These accessible and revealing conversations about the lived reality of classic projects will be a source of encouragement and inspiration to those embarking on empirical research, ranging across the full array of disciplines that contribute to law and society. For all of the ambiguities and challenges to the social “scientific” study of law, the reflections found in this book — collectively capturing a portrait of the field through the window of the research efforts — individually remind readers that “good research” displays not an absence of problems, but the care taken in negotiating them.

A very candid look at research methods from the leading scholars in the field – Approachable conversations appropriate for all levels, from students to scholars – Topics range very broadly across the leading approaches and speciality subjects in law and society

Contents
1. Beyond methods: law & society in action; 2. Stewart Macaulay and Non-Contractual Relations and Business (1963); 3. Robert Kagan and Regulatory Justice (1978); 4. Malcolm Feeley and The Process Is the Punishment (1979); 5. Lawrence Friedman and The Roots of Justice (1981); 6. John Heinz and Edward Laumann and Chicago Lawyers (1982); 7. Alan Paterson and The Law Lords (1982); 8. David Engel and The Oven Bird’s Song (1984); 9. Keith Hawkins and Environment and Enforcement (1984); 10. Carol Greenhouse and Praying for Justice (1986); 11. John Conley and William O’Barr and Rules versus Relationships (1990); 12. Sally Engle Merry and Getting Justice and Getting Even (1990); 13. Tom Tyler and Why People Obey the Law (1990); 14. Doreen McBarnet and Whiter than White Collar Crime (1991); 15. Gerald Rosenberg and The Hollow Hope (1991); 16. Michael McCann and Rights at Work (1994); 17. Austin Sarat & William Felstiner and Divorce Lawyers and Their Clients (1995); 18. Yves Dezalay and Bryant Garth and Dealing in Virtue (1996); 19. Patricia Ewick and Susan Silbey and The Common Place of Law (1998); 20. Hazel Genn and Paths to Justice (1999); 21. John Braithwaite and Peter Drahos and Global Business Regulation (2000); 22. John Hagan and Justice in the Balkans (2003); 23. Conclusion: “Research is a Messy Business” — An Archeology of the Craft of Socio-Legal Research – Herbert Kritzer.

 

And the book makes a good case for why PACER data should be free or at least less expensive for law schools:

From chapter 23, Conclusion: “Research is a Messy Business” — An Archeology of the Craft of Socio-Legal Research:

THE MESSIEST MESS IS THE RESEARCH PROCESS: COLLECTING ORIGINAL DATA

. . . Imagine that you want to study something about trials in federal court.  You could turn to the statistical reports published by the Administrative Office (AO) of the U.S. Courts and extract information from the Reports’ well-digested tables.  Or, you could obtain from the Interuniversity Consortium for Political and Social Research (ICPSR) the case-level data reported to the AO and deposited with the ICPSR (these data form the basis for the published tables); you could then process these data to create whatever summaries you need.  Or, if you have adequate resources, you could access raw case files through the federal court’s Public Access to Court Electronic Records (PACER) system; you would then extract and code the information you want from raw case file data. . . .

The Laptop-Free Zone

 

“The Laptop-Free Zone”

Valparaiso University Law Review, Vol. 43, 2009

JANA R. MCCREARY, Florida Coastal School of Law

This new article, “The Laptop-Free Zone,” addresses the hotly debated issue of laptops in law school classroom; those debates are ongoing on countless blogs, on NPR, in national newspapers, and across law school campuses. This article reports and analyzes the data collected through an IRB-approved survey of almost 450 law school students at three different law schools regarding the students’ views of laptops and reported distractions caused by laptops. To provide context, the article also addresses the current arguments against laptops, negating those points as being outweighed by the proper and beneficial use of laptops. Additionally, the article provides information to be considered in teaching adults and to different learning styles, namely, global and analytic learners, and how those concerns are matters to consider in the laptop debate.

According to the survey results, students who do not use a laptop are overwhelmingly more likely to be distracted by others’ laptops than students who are using their own laptops. In other words, yes, laptops cause distractions, but that primarily affects students who are not using a laptop. Accordingly, based on the learning style information and my survey results, I suggest that laptops not be banned from law school classrooms. Instead, I argue that professors must do their best to teach to all students – to those who feel they learn best by using a laptop as an aid and to those who complain of the distractions caused. I do this by implementing a laptop-free zone, restricting the first or first few rows in my classrooms to no laptops. This creates an area where students who are distracted by neighboring screens and nearby typing are free (as possible without an all-out ban) from those distractions. Further, doing so still respects those students who have learned to use a laptop as an educational tool.

As a surprise to me, the survey also showed that many students make the decision to give up their laptop after experiencing attending a class without one, noting they would not have been willing to go through such an experience by their own decision. However, once they experience not using a laptop in the law school classroom environment, they often change their method of taking notes and report improved learning and classroom experiences. Accordingly, I also suggest that instead of banning laptops, we provide beginning students with only a week or two of a laptop ban at some time during the first semester of school. This compromise will serve the interest of the most students most effectively, respecting them as adults while providing supportive guidance to their own decisions about their learning environment.

 

 Source: LSN Educator: Courses, Materials & Teaching Vol. 4 No. 23, 10/24/2008

Macs gaining ground, in Stanford ALR at least

We had our first Advanced Legal Research class on Tuesday.  I was really surprised to see so many Apple computers in the audience.  In one row, of nine students, all but one had a laptop cover with a glowing Apple logo.  And then I read our alum Matt Asay’s post on his Open Source blog, “The Vista from here is terrible as Mac attracts more converts.”  So in Thursday’s class, our next session, I conducted an in-class survey and found that among our 45 students:

     25 have PCs

     20 have Macs

Learning one CALR system only

In addition to our LexisNexis versus Westlaw survey, written about here and here, Erika and I have a little article in the Members’ Briefing section of the July issue of AALL Spectrum, an article inspired by one of our students who made the conscious decision to only learn one computer-assisted legal research system while in law school, perhaps smartly budgeting her time.  The article, “The $ 50,000 (or so) Question:  Lexis and Westlaw, Lexis or Westlaw, Lexis but not Westlaw, or Westlaw but not Lexis,” can be found here (please see p. 3).