Thursday, July 27, 2017

Analysis in Legal Research

Too often, searching for relevant information and the ultimate analysis of facts to law is disjointed. That's because teaching the analysis of the law is often left up to the doctrinal professors or the writing professors.

But analysis is inherent to the legal research process. Using the 4-step legal research process to find relevant information requires that the researcher has the ability to analyze the law to select the material that will aid in their arguments. 

Legal research is inevitably a back-and-forth process. The researcher starts with secondary sources to get a better understanding of the cause of action. The researcher moves onto the codified law to understand what needs to be analyzed in light of the facts of the case. The researcher then continues with binding and persuasive precedent to craft arguments by comparing facts and analogizing or distinguishing from case precedent. 

A researcher cannot begin to know what types of binding and persuasive precedent to find without analysis. And this analysis must be part of the discussion in any legal research course. 

Many legal research courses teach the mechanics of finding certain types of content without focusing on the analysis that works to bridge the "knowledge in action gap." This means that the research becomes disconnected from the analysis while in law school, but it is very much connected in practice. And practicing lawyers are left to bridge this gap themselves when they should be prepared, instead, to hit the ground running. 

The creative analysis that is required during competent legal research also means that legal research will be difficult to automate. Sure, some types of legal research could be automated for efficiency. But when it comes to searching case precedent to make creative legal arguments for clients, a machine is just not capable of that level of deep thinking

As law librarians design courses for AY2017-18, please keep the very important analysis portion in mind. To that end, see a previous post on selecting a case to cite

Thursday, July 20, 2017

Law Librarians Improving the Profession

Image from AALL Twitter
During Bryan Stevenson's keynote at AALL in Austin (login req'd), he noted and expounded on 4 things that will improve justice:
  1. Get proximate to injustice
  2. Change the narratives that sustain injustice
  3. Stay hopeful
  4. Do uncomfortable things
His message is an important one, and law librarians certainly have a role to play in improving access to justice. 

Throughout his keynote, I couldn't help but connect these 4 things to the issues facing law librarianship, in general. Like improving justice, law librarians need to work to improve the state of our profession to ensure that we can continue to assist with access to justice issues, among other things, for years to come. 

In that regard, we can do similar things to improve law librarianship: 

     1. Get proximate to the issues facing law librarianship

There is a myriad of issues facing law librarianship: budgets, staffing, librarian supporttechnology, public perception. We need to face each of these head on and work to create solutions. 

     2. Change the narratives that sustain the misunderstandings re: law librarianship

Lately, it seems that we need a wide array of elevator speeches to explain our importance. It's tough to constantly explain in a clear, meaningful way when our importance seems so obvious to us. But it's necessary. I will forever regret letting a faculty member confidently tell me that the only thing that the law library needs is a subscription to Westlaw & Lexis. Law librarians know that there are pedagogical concerns, licensing issues, and many other things wrong with that statement. On this day, I let the comment pass with no retort because I was exhausted from a long day in the office and didn't feel like engaging in the discussion. But we must engage in these discussions. We must advocate for the profession.

     3. Stay hopeful

After attending AALL and talking with other law librarians about our work, it is clear that we are all very busy. And when we get too busy by being asked to do more with less, coupled with feeling underappreciated, it's easy to lose hope. I love this profession, and I, for one, need to do a better job of remembering the intrinsic value of law libraries

     4. Do uncomfortable things

We can't sit still; we must engage. And that's inherently uncomfortable given our responsibilities. 

One of the best things about AALL is meeting all of the wonderful people in the profession and feeling re-energized about tackling these issues. Let's use the momentum until we meet again next summer in Baltimore (with John Waters!). 

Thursday, July 13, 2017

AALL 2017 Poster Session: Scholarly Research & Writing Programs

AALL in Austin is just around the corner. I'm excited to be surrounded by my favorite cohort of humans and feel inspired by all of the wonderful programs! 

If you're in Austin, please drop by the Austin Convention Center’s Exhibit Hall 4, Poster #29: You Can't Write Without Research: Developing a Scholarly Research Writing Program at Your Law School. 



Safe travels to Austin!

Wednesday, June 21, 2017

Law Library Collections as Palimpsest

According to Dictionary.com, Palimpsest is defined as:
noun
1. a parchment or the like from which writing has been partially or completely erased to make room for another text

In the case of most law libraries, the "other text" is now electronic. As late as 2015, I was still in denial about the transition. Many of my blog posts have centered around the benefits of print (here, here, here, here). I still love print, and I still believe that there is a beauty in the serendipity of exploring the stacks.

But even physically exploring the stacks is less relevant today. For example, our catalog now shows a preview of the books on the shelf near a book that we are interested in. When performing a search for Divergent Paths by Richard Posner, the following virtual browse display shows the books nearby:



Budget constraints coupled with patron preference for electronic access means that our print collections are dwindling. There's no use romanticizing print while denying that we are fully in the Digital Age (and moving toward the Algorithmic Society). Even though the issues surrounding licensing electronic content are still there, the outside pressures have overtaken these licensing concerns. We are decidedly relying on vendors to provide us with stable content without ownership.

As we continue to transition, reliable resource sharing should be our new focus. We don't all have to be everything to everyone. But we do need to create reliable sharing models to have access to material when we need it.

Thursday, June 8, 2017

Law Libraries & University Libraries

As law school budgets continue to shrink, it's not unreasonable to presume that many law libraries are coming under increased scrutiny. Law school administrators cannot touch faculty salaries or law student financial aid. When a dean looks at a law school budget, the biggest expenditure after faculty salaries is the library, and many must now wonder "what are all those people doing with all that money?"

Accordingly, one of the budget-cutting measures may be to consider combining the law library with the university library.

Historically, as the heart of the law school, law school libraries have functioned apart from the greater university library community. In a 1957 study, forty of the forty-one responding law libraries did not want to be considered part of the university library system or be a part of its administrative structure, even if they currently were. This position was codified through section 602(a) of the ABA standards, which requires law schools to “have sufficient administrative autonomy to direct the growth and development of the law library and to control the use of its resources.” Law librarians generally have interpreted this statement as supporting a separation between the university library system and the law school library. Armed with this interpretation, they have resisted efforts to change the status quo, and recent revisions to the ABA standards have not removed the requirement that law schools maintain administrative autonomy.

Professor James G. Milles, in Leaky Boundaries and the Decline of the Autonomous Law School Library, notes that university administrations are now beginning to question assurances that law libraries' independence from the general library necessarily excludes the sharing of utilities, services, staff, and collections .... Administrators are now asking (and, in some cases, demanding) that law libraries cooperate with the main library to free up funds for other uses.

But it has been the view of many law librarians and law school deans over the years that any so-called benefits that are supposed to accrue from the integrated relationship [between the libraries] are more fiction than fact. The unvarnished truth in the great majority of cases would appear to be that any administrative connection with the general library is an unmitigated and chronic pain-in-the-neck, and a condition to be ardently avoided or from which to escape.

Additionally, it has been argued that the greatest single obstacle in the way of improving our [law] libraries and standards for [law] librarians, is the ignorance of our faculties and deans concerning the necessity of a good library in legal education and what is involved in building and maintaining a good library.

To that end, here are a few identified cons of an integrated relationship:
  • The domination of law library functions by the university librarian operates to impair the service of the law library through delays caused by centralized ordering, receipt, and cataloging of law library materials in the general library; the inability of the law librarian to monitor the status of law library funds; and arbitrary and restrictive orders pertaining to the use of materials.
  • Law is unique among disciplines in the way in which its bibliographic sources constitute a separate body of knowledge accessible and generally useful only to those within the law school. Using the sources of legal information requires unique education. 
  • To sever the law library from the law school of which it is an integral part and place it under the general library system is devitalizing to the law school. It should be a requirement that law librarians have a greater role in legal education.
  • Law school faculty members demand and get far better library services than any other faculty members on campus. A major reason that we have autonomous law libraries is so we can provide that type of high-level service.
  • While negotiation of licensing for databases is always for campus-wide access, Lexis and Westlaw, and many other legal database vendors strictly oppose it. This means that law databases must be separately negotiated and maintained. 
It's not to say that there should be no collaboration between the law library and the university library. For example, if the culture of the university encourages interdisciplinary work, then the libraries can work together to create structures to facilitate interdisciplinary work without the need for full integration. But given these valid concerns, full integration is not the best route. 

Wednesday, May 31, 2017

Is It Time For a Legal Research Component on the Bar Exam?

The Wall Street Journal (sub req'd) is reporting on pushback against difficult bar exams (particularly California's bar).

One camp of law-industry watchers blames the drop in passing rates on the declining credentials of incoming classes. Others point to changing study habits of so-called millennials, who grew up with the ability to find information at their fingertips and aren't accustomed to the intensive memorization and writing skills needed to pass a bar exam. 

The article ultimately asks: Does the exam even test what incoming lawyers need to know?

It seems that, based on what a lawyer actually does, the test should be about spotting legal issues, research, and proper legal analysis.
  • A law school education prepares students to spot the multitude of legal issues to
  • Explore those issues using sound (efficient and effective) legal research methods
  • To do a proper legal analysis of the various issues (or the call of the question, as it were) with cites to relevant codified law and case precedent. 
As a very basic example, if the test-taker spots a potential negligence issue, why should the test taker also have to memorize all of the elements (and sub-elements) of negligence? In practice, lawyers research the elements. 

If the test taker was taught to perform effective legal research, the test taker would know how to easily look up the elements of negligence in any database. For example, all that the test taker has to do is set the jurisdiction in Westlaw and type: what are the elements of negligence in the search bar. And the following answer is retrieved: 

“To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” 
Quinto v. Woodward Detroit CVS, LLC
Court of Appeals of Michigan.April 29, 2014305 Mich.App. 73850 N.W.2d 642311213
*Let's ignore, for a moment, that this might not be the "best" case to cite.

The test taker then uses cases retrieved through the legal research process to do a proper legal analysis (IRAC or CREAC). 

While this would require reconceptualizing the bar exam, it would more fully represent what a lawyer actually does in practice. It would also adjust the test to the digital age where the current crop of law students grew up with the ability to find (and USE?) information at their fingertips. 

Monday, May 15, 2017

Rombauer Method of Legal Research

Instead of getting bogged down trying to instruct on the nuts-and-bolts of each database, it is more important to emphasize a research process that works in any database.

To that end, I've always taught a version of the Rombauer Method of legal research.
  • Preliminary Analysis – developing search strings and searching secondary sources for an overview of the topic
  • Codified Law – searching constitutions, codes, court rules, and regulations
  • Binding Precedent – searching case law that the court must follow from a particular jurisdiction
  • Persuasive Precedent – searching case law that the court may follow from other jurisdictions
The beauty of this research process is that it can be geared toward any database. As long as the user can maneuver the database to find relevant secondary sources, he or she will be able to fulfill the first step of the research process and so on.

If students use this research process to keep their research strategic and organized, they should feel comfortable using any database. And it is important for students to feel comfortable while researching because they will generally only research in a way that is comfortable to them.

This was observed by Alison Head and Michael Eisenberg among undergraduate students at the University of Washington. The students showed little variation in their research strategies and defaulted to resources like Google and Wikipedia for introductory research, with little regard for efficiency or effectiveness. As Head and Eisenberg observed, the students may be aware of the range of resources needed to carry out their research effectively, but they fall back on strategies as similar and repetitive as possible.

Instead of focusing on the various platforms, we should make the students comfortable with a process that works in any database — a process that will become familiar and repetitive to the students and one that they might actually use.

Wednesday, May 10, 2017

Law School Rankings & Law Libraries

The Wall Street Journal is reporting that business schools are taking a stand against academic rankings. Business-school deans and research faculty at more than 20 universities are taking a stand against the academic rankings published by media outlets such as Bloomberg Businessweek, Nikkei Inc.’s Financial Times and the Economist Group. Rather than “acquiesce to methods of comparison we know to be fundamentally misleading,” the administrators are urging their peers at other schools to stop participating in a process they say rates programs on an overly narrow set of criteria.

Those in the business of rankings say that the rankings help students make an informed decision about what is likely among the most expensive purchases these students will make in their lives. 

The administrators opposed to the rankings methodologies are of the opinion that if the goal is to help inform [students] about how to make the best decision about business schools, let’s give them the raw information, and not take numbers—which may or may not be relevant to the student—and bungle them together into a ranked list. 

The debate over business school rankings is interesting to law schools because many of the same arguments for and against rankings in the former professional school can be made for the latter professional school. Currently, law schools are ranked by less-than-transparent methodologies, particularly by U.S. News.

After reading the full-length article, On Academic Rankings, Unacceptable Methods, and the Social Obligations of Business Schools, my astute colleague, Professor Eric Chiappinelli, noted that it was interesting to see [the authors'] emphasis on relative scores rather than absolute rank. E.g., in USN, Cornell would be touted as “81” and Texas as “75” rather than “13” and “14” as they are now. In USN-world, that shift would only highlight how bunched all the schools are, especially below the top 50 or so.

With schools being so bunched, should they really be ranked? Or should they be considered for their other qualities, such as proximity to a particular legal market or the substantial offerings from the law library, for example. Changing the rankings would be beneficial for a variety of reasons. Currently, with the intense focus on rankings, many administrative and budget decisions come down to those that will raise rankings, and law libraries are often left out.

It's a shame because law libraries provide an important function. Law libraries support the curricular needs of the law school, which helps with bar passage rates and employment. Law libraries also heavily support faculty scholarship, which helps to raise the peer-review ranking when faculty publish in top-ranked journals, etc.... These are just a couple of examples of the many supportive roles of the law library.

Yet, when administrators consider programs that directly affect rankings, law libraries are often left out of the equation. Rankings need to change. The perception of a law library's affect on rankings also needs to change.

Wednesday, April 26, 2017

PlumX for Altmetrics on Scholarly Impact

Previously, I discussed the problem with impact factor in law and the seemingly insurmountable task of creating a meaningful impact factor.

But as any good law librarian would do, we always try to "make it happen." To that end, I recently ran across PlumX as a platform to aggregate various metric sources.


As noted on Texas Tech University's LibGuide on point, besides traditional citation counts, there are many ways of tracking research impacts. They try to capture the presence in new scholarly venues, presence and impact in social media and other forms of online engagement, such as views, downloads, bookmarks etc. Collectively, we refer to these as altmetrics, as opposed to traditional citation measurement using Web of Science, Scopus and other citation enhanced databases.

PlumX is a subscription-based platform for tracking research impact. PlumX gathers and brings together appropriate metrics for all types of scholarly research output. They categorize metrics into 5 separate types: Usage, Captures, Mentions, Social Media, and Citations.
Examples of each type are:
Metrics_Icons_Usage Usage – clicks, downloads, views, library holdings, video plays
Metrics_Icons_Captures  Captures – bookmarks, code forks, favorites, readers, watchers
 Mentions – blog posts, comments, reviews, Wikipedia links
Metrics_Icons_SocialMedia Social media – +1s, likes, shares, tweets
Metrics_Icons_Citations Citations – citation indexes, patent citations, clinical citations

Many libraries, including a few law libraries, are now integrating PlumX directly into institutional repositories to capture these altmetrics.

As Karen Shephard from Pitt Law Library recently commented in an AALL discussion on faculty services:
With the University's support, we have been creating PLUMX profiles for our faculty members. They are connected with our University's digital repository, D-Scholarship, and bring together an amazing amount of publication usage data, from downloads (via SCOPUS publications, EPrints, SSRN and more) - including related citations - to social media mentions (FB, blogs, etc.), captures (i.e. Mendeley) and more.

While the traditional sources still hold the most weight, our Law School is using the altmetircs available through PLUMX to supplement information concerning faculty impact. It's "really cool" being able to see when someone across the globe is talking about a faculty member's recent work!

If all law libraries start measuring impact with a service such as PlumX, we may just have the metrics that we need to compare meaningful scholarly impact.

Wednesday, April 19, 2017

Law Librarians Who (Know) Code

At a recent talk, it was recommended that law librarians learn enough about coding to understand how coding intersects with the organization and retrieval of information. To ensure that our systems function properly, we should all, at minimum, know what a programming language is, how to talk about it, and what coding can and cannot do.

We must understand what coding is, how it relates to libraries, what can reasonably be asked of code, and the threshold concepts that are required to work alongside those who actually write the code.

Law librarians understand how the end user interacts with the various retrieval systems. We understand the intersectionality of cases, statutes, and regulations, etc.... As well as best practices for accessibility and the practical search skills of our prospective or practicing lawyers. For a retrieval system to work well, it must be coded with all of these considerations in mind. A programmer, working alone, may not have this wholistic view.

Now that we are fully in the digital era, with many law libraries going effectively print free, we need to understand this skill more than ever. It's a law librarian's expertise, coupled with a programmer's understanding of code, that will allow us to create systems that transform information retrieval.

To that end, law librarians might consider attending a coding camp to learn this necessary skill.


Switchup recently released a list of the top 31 coding schools along with rankings and reviews. A friend of mine who attended a coding camp and is now a successful programmer recommended Bloc for a self-paced experience.

Another option is to find a Coursera coding course (or other available MOOC).

Wednesday, April 12, 2017

"Excuse Me, Can I Have a Turn?" Female SCOTUS Justices Heavily Interrupted

The Harvard Business Review recently released the results of an enlightening new study about the speech patterns during SCOTUS oral arguments.

According to the article, a new empirical study shows that the male justices interrupt the female justices approximately three times as often as they interrupt each other during oral arguments. 

HBR examined the transcripts of 15 years of Supreme Court oral arguments, finding that women do not have an equal opportunity to be heard on the highest court in the land. In fact, as more women join the court, the reaction of the male justices has been to increase their interruptions of the female justices. Many male justices are now interrupting female justices at double-digit rates per term, but the reverse is almost never true. In the last 12 years, during which women made up, on average, 24% of the bench, 32% of interruptions were of the female justices, but only 4% were by the female justices.

And there is a consistently gendered pattern: In 1990, with one woman on the bench (former Justice Sandra Day O’Connor), 35.7% of interruptions were directed at her; in 2002, 45.3% were directed at the two female justices (O’Connor and Ruth Bader Ginsburg); in 2015, 65.9% of all interruptions on the court were directed at the three female justices on the bench (Ginsburg, Sonia Sotomayor, and Elena Kagan). With more women on the court, the situation only seems to be getting worse.

Not only do the fellow male justices interrupt the female justices, so too do the male advocates on the other side of the bench. Despite strict rules mandating that advocates stop talking immediately when a justice begins speaking, interruptions by male advocates account for approximately 10% of all interruptions that occur in court. In contrast, interruptions by female advocates account for approximately 0%. 

While the female justices are being interrupted at far higher rates, at least they are learning to stop using polite prefatory words. Early in their tenure, female justices tend to frame questions politely, using prefatory words such as “May I ask,” “Can I ask,” “Excuse me,” or the advocate’s name. 

HBR ultimately found that women gradually learn to set aside such politeness. All four of the female justices have reduced their tendency to use this polite phrasing. Justice Sotomayor adjusted within just a few months. Justices O’Connor and Ginsburg gradually became less and less polite over decades on the court, eventually using the polite phrases approximately one-third as much as they did initially. Justice Kagan is still learning: She uses polite language more than twice as often as the average man, although half as often as she did in 2010.

Not surprisingly, HBR did not see a similar trend with the men, because male justices rarely use these polite speech patterns, even when they first enter the court. It is the women who adapt their speech patterns to match those of the men.
If it's this bad for arguably some of the most powerful women in the world, imagine what it's like for other women in the legal profession. We need to do better.