According to their announcement, here are some of its attributes:

– Instant return of a time-series plot for one or more comma-separated phrases.

– When you access the site, the default search is currently interstate commerce, railroad, deed (with plots for each of the term displayed simultaneously), as displayed below:

– You may test out any phrase of up to four words in length. Examples include: Habeas Corpus, Clear and Present Danger, Custodial Interrogation, Due Process, Economics, Unconstitutional, Property, and Privacy.

– Each of the phrases you search will be highlighted in blue. If you click on these highlighted phrases you will be taken to the full list of U.S. Supreme Court decisions that employ the selected phrase.

– Click to export the list to Excel or click on an individual case and you will be able to access this case for free.

– Advanced features, including normalization (controlling for docket size) and alternative graphing tools.

– There is available a brief slide-based tutorial as well as an academic presentation by its creators explaining the theory and design of this type of database.

As described by its creators, the database is in a “beta pre-release” phase, and they invite your feedback. Eventually they hope to expand coverage to lower courts, such as the U.S. Courts of Appeals.

Thanks to the creators of this new and free resource, which will no doubt be of significant value to legal historians, other scholars, and legal practitioners.

The Westlaw representative told my Appellate Writing and Advocacy class about this new feature, and at least one of my students has tried it out with great success. She reported back to the class that she found it easy to read the research on the Kindle and appreciated the ability to take notes and highlight the material.

LexisNexis is considering adding this enhancement to its new Lexis Advance research platform as well. Stay tuned.

I have also heard that lawyers are using the iPad to do online legal research while waiting for court appearances. This seems like a tremendous use of what would otherwise be potentially wasted time.

What other new strategies for research do our readers have?

In summing up the accomplishments of the Law School during the 1923-1924 academic year—the last in the old Mackie Mansion—the Hilltop (the university yearbook) noted:  “Prof. Willis E. Lang introduced a new course of Legal Research for the students.  It proved a most valuable subject as it teaches where and how to find the law.”

For a number of years prior to 1923, all Marquette Law students had been required to participate in the practice court program, which required them to draft pleadings and legal documents and do a certain amount of legal research.  The Law School also required a one-credit course in Legal Bibliography that focused primarily on the use of proper legal citation in brief writing.  However, Lang’s Legal Research course was apparently the school’s first attempt at systematic instruction in the mechanics of legal research and the entire canon of library resources. 

Willis Lang (pictured above in 1949 or 1950) was a fixture of the Marquette Law School for many years.  Born in Waushara County, Wisconsin in 1892, he earned both his bachelor of letters degree and his law degree from Marquette in 1916.  Although it was fairly common in the early 1900’s for Marquette students to earn both the Bachelor of Science degree and the M.D. degree at the same commencement, Lang appears to be the only person to have simultaneously received a law degree and any type of bachelor’s degree.

Lang  passed the bar in the summer following his graduation and then remained in Milwaukee to practice law.  From October 1916 until September 1921, he was in active practice, most of the time while affiliated with William L. Tibbs, special counsel for Milwaukee County.  He was also a notary.

Lang joined the Marquette law faculty as a full-time faculty member in the fall of 1921, when Marquette decided to add a fourth full-time member to the faculty.  In addition to teaching Corporations, Partnerships, Insurance, Agency, Personal Property, Wills and Administration, and Legal Bibliography, he also taught commercial law in what was then called the School of Economics (i.e., the Marquette business school). 

The 1921 appointment of Lang to the law faculty gave him the distinction of being the first graduate of the Marquette Law School to hold a full-time teaching position at the school.  Previous full-time professors and deans had received law degrees from the University of Wisconsin (Max Schoetz), Harvard (John McDill Fox), and the University of Chicago (Arthur Richter), or else had been admitted to the bar without attending law school (James Jenkins and Augustus Umbreit).

 During his tenure at the Law School, Lang taught a wide variety of courses and held a number of advisory and administrative positions.  He served as Law School secretary (a position that no longer exists, but was similar to the modern post of associate dean) from 1923-1951; as Assistant to the Dean from 1928 to 1951; and as Law School Registrar from 1946 to 1951.  He was also the faculty adviser to the Law Review from 1928 to 1941, and he regularly represented Marquette at the annual meetings of the Association of American Law Schools. 

During his career, Lang published a number of articles on various aspects of Wisconsin law, and he was a regular reviewer of legal treatises written by others.  Most of his publications appeared in the Marquette Law Review.  He had a longstanding interest in pedagogy, and in the 1930’s, he enrolled as a graduate student in education at Marquette while teaching full-time at the Law School.  He was awarded an M.Ed. degree in 1941, his twentieth year on the faculty. 

Lang remained on the faculty until his untimely death at age 58 on April 29, 1951.  His funeral was held in Gesu Church, and all six of his pallbearers were former students who had become judges.  He was survived by his wife and daughter and by his son, Willis Lang, Jr. (1923-1998), who was then a second-year law student and who went on to a long career as a lawyer in southeastern Wisconsin.  His Marquette colleagues at the time of his death included current Prof. Emeritus Jim Gihardi who joined the law faculty in 1946.  As a law student at Marquette from 1939 to 1942, Prof. Gihardi was also one of Lang’s students.

A quick skin change and some low key accessories later, you teleport out. A few seconds pass, and you find yourself among a group of people in shorts & skirts under the bright sun of Tropical Eden. You realize that the organizers of the contest you came to enter preferred tropical dress, so you popo open your inventory and change outfits, shorten your hair and put on different shoes.

Now that you are ready, you walk to the line that has formed. As you do, you notice the chat around you. “No furries allowed in the contest.” A well dressed wolf curses and disappears and a few tails come off. “Please no biting during the contest.” A lady behind you whispers to a friend, “That is what garlic is for.”

After a short wait, you walk onto the stage and up to the judges. The coordinator thanks you and tells you to whom you should send your application.Each judge asks you a couple of questions. You answer as you can, thank them for your chance to enter the contest.

You leave the stage, tp home, and log out. The next day you log in, look out your window at the snow and change into a winter outfit. A few friends invites you to go skiing with them and you accept. While you are skiing you get an inventory offer, a note card entitled “Congratulations Winners.” You open the note card and read it.

You are the second place winner. You’ve won 10,000 bucks, a photo shoot for advertising through the next month, multiple clothing and accessory prizes from the company sponsors. You are so excited you immediately tell all your friends and send a message to the coordinator to thank him. You don’t get a response, but you aren’t worried. After a bit more fun skiing and some chat at the ski lodge you head home.

At least, you try to head home. Your home is gone, not can’t-find-where-I-parked-my-car gone. Your home is… being returned to you with all the rest of your stuff because the sim that you lived on is an “invalid location.”

You send a message to your neighbor, the nice mermaid who lives in the cove next to your area of the sim. She says that she hasn’t tried to go home recently but has seen a few of her things returned and that she has heard from from a couple of the other six who live on the sim. You are a bit upset but need to go, so you bid her good day and log off.

The next day you log in, but you can’t look out the view at the snow because your home is still gone. You notice, also, that have been ejected from the land group and so will need to speak to the rental office to get back in, otherwise yo will not be able to place your house back on the land. You search for the real estate agent, who is surprisingly not your friend anymore. once you’ve found her name you send her a message. You get a busy response, “We apologize for the inconvenience, but the person you are messaging is a bot and cannot respond. Please send messages directly to the person from whom you purchased your land.”

You are a bit frustrated but remind yourself that you just won a lot of money and some fun stuff. You send a message to the coordinator, but he isn’t online. Slightly frustrated you log early that day.
A week passes. You find a new home on Sunny Paradise the sim that your neighbor moved to; she was a good neighbor before and is a good neighbor now. You find out that the sim on which you were living was repossessed because the owner was not paying the tier (taxes) on the land. Wondering where the 5,000 bucks that you paid the owner to rent your space went, you are glad that you will be getting some money coming in once you receive the contest prize.

Another week passes, and you receive an inventory offer, a note card entitled “Tropical Eden Contest Entry Form.” You accept it and notice that the contest is starting taking entries for the next cycle. Confused, you send a message to the coordinator asking about your prize.

He responds, “ty for participating in our contest; we found that you are using copybot sofwtare so have been disqulifie when you have change viewer plz be free to entr again.” Shocked and upset you respond that you have only the viewer downloaded from the website and that you want your prize. You also mention that there was no mention of viewers or anything else in the contest information. You get no response.

Barely holding yourself in check from berating this, obviously misinformed gentleman, you remind him that you paid 50 bucks to enter this contest and that you were declared the winner both in a note card and by general message. You still get no response. Angry and decidedly less inclined to socialize you turn down your friend’s invitation to visit a club that is having a ‘Best in tinies’ contest and log off.

–

Of course, by now, you realize that this scenario is about a ‘game’ or more accurately a virtual world. The entire scenario is fiction, both in the fact that it is virtual and the fact that I made it up, but the things that happened in this scenario do happen to avatars all over the virtual world Second Life® (SL). I hope for their sake that no one person has had to deal with all of these things.

I consider this scenario particularly intriguing, though, not just because of the inherent drama in such happenings but also because of the many hidden legal questions that I am learning to ask about them.

If these, or equivalent, things happened to someone in their real life, they would seek legal assistance, attempt to negotiate, and failing that file suit against both the real estate company and the contest coordinators, but in SL there is no law. Assuming the allegations about copybot software are untrue, everything that happened, including the blatant discrimination against “furries” is legal. Immoral, but legal.

Many of the things that happen on SL are minor in relation to their real world equivalents. For example, in this scenario you have lost 50L$ (L$ is the game money) which is equal to about ~$0.20USD. You have been deprived of 10,000L$ which is equivalent to about ~$40USD, and though you have had to move, you neither lost your home nor any of your personal property.

But those same things can have a major impact when compounded. The rental company made  40,000L$ (or ~$160USD) from you, your mermaid neighbor, and the other renters on the sim. The ‘well dressed wolf’ who was refused the right to enter the contest, suffers the oppression of blatant discrimination.

These are only a few of the many legal issues occur, like in real life, daily for an avatar in SL. This tension between the realities of life and the law and the entire absence of law in the life of an avatar is what changed my mind about the law. It opened my eyes to how greatly we all depend on the law and how important the legal profession is to those who need the kinds of assistance that avatars don’t have available to them.

—

And speaking of avatars and the law, the SL Bar Association, of which my avatar, Tigr Yoshikawa, is a member, will be hosting Bias in the Legal Profession March 17, 2010 at 12:00 noon, PST. Linda Batiste and Beth Loy from the Job Accommodation Network (JAN), West Virginia University will be discussing the professional work environment for lawyers with disabilities.  They will discuss barriers faced by attorneys with disabilities and what employers need to do in order to accommodate lawyers with disabilities.

The seminar will be held at The Sojourner Auditorium at Virtual Ability Island, in SL. Space is limited to 70 avatars. This event is free and has been approved for 1.0 hours of continuing legal education credit by the State Bar of California.  This seminar satisfies the specific requirement in California for one (1) hour in training related to elimination of bias in the legal profession.  (CLE provider is Fitz2  consulting, provider no. 14547)

A more user-friendly search is one of the many ways Google beats out alternative free and pay legal research options. While the search engine is far from perfect, queries can be focused by either state or federal court, and searches can be further refined by “author” and date constraints. This can be a great help when starting a new research project on an unfamiliar topic. For example, if staring research on an ADA question regarding “reasonable accommodation,” a simple query of “ reasonable accommodation” and “Posner” (if you wanted a 7th Circuit decision) in the author field yields useful results. The results are organized by which decisions have been cited most, rather than which decisions are most recent. In contrast to Google, both West and Lexis give search results by the date of the decision, and require further investigation in order to differentiate which cases have significance. Because Google doesn’t make money on content directly, Google has no incentive to locate this information behind an additional pay walls whereas pay sites make money by obfuscating information behind additional clicks—the more one clicks the more they make.

In addition to search functionality, Google also improves online case research by improving readability. Rather than try and reproduce the experience of reading a physical page like Justia, Google makes good use of the online medium. Gone are the bold “***” that denote pagination that clutter Lexis and West cases. Rather than impeded readability with an asterisk, Google puts the pagination on the left margin. Google also improves readability by placing footnotes at the bottom of the decision and denotes the footnote with a hyperlink. By clicking on the hyperlinked footnote, the reader has easy access to the text of the footnote. Once at the note text, the reader can return to reading the decision by clicking the hyperlinked number again. The experience is similar to the behavior of footnotes in MS Word.

Not only is the case more readable in Google than in other formats, but Google also organizes how other courts have cited the decision in the “how cited” tab. This feature functions as a very rudimentary Headnotes or Keycite that addresses the holding of the case.

I suspect that this is just the beginning for legal research and Google. It wouldn’t surprise me if, in the future, the offerings will improve. Not only will quality improve, but so will the scope of information offered. Take the administration’s announcement that the Federal Register will be published in XML as a sign of what’s to come.

Professor Alison Julien took the lead in organizing this conference, and several participants (including Mark Wojcik at the Legal Writing Prof Blog) remarked upon how well the event was organized and run.  The biggest testament to its success, I think, is that conference participants have encouraged Marquette to serve as the host school again.

The conference featured a diverse range of interesting topics, and though I was unable to attend every session, the six I attended are representative:  Collaboration in Teaching and Scholarship; Update on Interdisciplinary Skills Scholarship (presented by our visiting Boden Professor of Legal Writing, Michael Smith); The Six Things You Can Do in a Contract; Assigning Clients in Persuasive Writing Assignments; Using Literature to Teach Theme Development in Persuasive Writing, and How to Identify and Counter Logical Fallacies (presented by Prof. Melissa Greipp).  The sessions were informative and thought-provoking, and I left the conference thinking of ways I can improve my teaching and engage in scholarship.

Many thanks to everyone who made the event a success, including, especially, Dean Kearney, Prof. Julien, Sharon Hill, Beverly Franklin, Carol Dufek, and many student volunteers.

Since the advent of LexisNexis headnotes and the LexisNexis classification system, the author has wondered about the different ways results are generated in West’s Custom Digest and in LexisNexis’s ‘Search by Topic or Headnote’ and by KeyCite and Shepard’s. There has been some anecdotal discussion about the differences, but no empirical investigation. This paper starts the investigation process: the author took ten pairs of matching headnotes from legally important federal and California cases and reviewed the cases in the results sets generated by each classification and citator system for relevance. The relevance standards for each case are included. The paper first reviews previous full-text database testing, and the benefits and detriments of both human indexing and algorithmic indexing. Then the two very different systems are tested. Ten pairs of headnotes is too small a sample to say absolutely that results generated by system A are and always will be a certain percentage more or less relevant than system B. However, the differences in the results sets for classification systems and for citator systems do raise some interesting issues about the efficiency and comprehensiveness of any one system, and the need to adjust research strategies accordingly.

I did not read the article (yet), but Joe Hodnicki’s post on the Law Librarian blog says that in Mart’s small sample, a search using Westlaw’s human-generated key numbers returned a larger percentage of relevant results than searches using Lexis’s algorithm-generated topic or “more like this” headnote.  More important than that (in my view), the results in the two systems were significantly different, with Lexis’s searches finding a number of relevant cases that were not found in the Westlaw searches.

Though the results are obviously preliminary, the study’s approach and findings are interesting.  I plan to discuss it with my students as some concrete support for my advice that to be very thorough in electronic research, it is best to try a number of different search strategies (e.g., terms-and-connectors, citator, and headnote searches) in both systems.

• All non-billable legal research involving case law, statutes, or regulations at both the state and federal level should first be performed using Loislaw.
• Loislaw should also be used for billable research where appropriate, resulting in a much lower cost to the client.
• If additional research is required on Lexis or Westlaw, that research must be billed to a client/matter.

This post raised two issues for me.  First, it made me think about what sources I should be including in my first-year courses.

To date, my coverage in the first year has largely been limited to print sources, Lexis, Westlaw, and some court websites (though my use of “limited to” is somewhat misleading, since introducing 1Ls to all of those sources is not really a “limited” introduction to research).  I have not generally introduced Loislaw or other free or lower-cost electronic sources, in part because there just isn’t time to teach everything in the first year, but also because, although I do provide some instruction on how to use Lexis and Westlaw, I hope that what students really learn in the first year is less about any particular product than it is about how to conduct efficient legal research, generally.  Finally, I have the luxury of knowing that all MULS students are required to take an Advanced Legal Research course, so their legal research instruction will not begin and end with my course.

Second, the post confirmed for me the importance of teaching cost-effective research strategies, even in the first year of law school. Several years ago, I began incorporating information about the cost of online research into my spring course.  For their second trial briefs, I require students to keep a time sheet, track their hours, and also track the costs of their online research.  (The Lexis and Westlaw vendors provide me with ballpark pricing for the databases and services students are likely to use.)  Students are often surprised and pleased to learn that if they put some thought into their searches, online research does not have to be prohibitively expensive.  Here are just a few of the lessons my students seem to have learned based on what I saw in their timesheet exercise:

1.  Make good use of the resources available.  If your firm has a librarian, ask the librarian for research leads.  If the firm doesn’t have a librarian, call the MULS reference desk, or call the reference attorneys from Lexis or Westlaw.  Also make sure that if your firm has invested in a print library, you make use of those resources when appropriate rather than going online immediately.

2.  Plan your research before you begin.  Think about relevant sources and potential search terms.  Consider whether certain searches would be more efficient in print or online.

3.  Careful note-taking is essential.  You cannot afford to retrace your steps every time you turn back to a research project.  You need to know what ground you have already covered to save time and money.

4.  Using secondary sources in print can be a helpful first step.  You incur no charges other than your hourly fee to skim some secondary sources to get an overview of an area of law, learn the relevant terminology, and get some research leads into primary materials.

5.  Topic searching (using an index, table of contents, headnote, or key number) in print or online can be a better starting place than term searching (searching for very specific fact patterns online).  And if you begin your topic searching in print, you may learn some terminology or topic and key numbers that give you a head start on your online searches.

6.  Careful database selection can save money.  There is no reason to choose a database that collects the cases from every state if you’re really interested in law from one particular state.  In general, the bigger the database, the higher the cost, both in terms of how much the vendors charge to search that database and in terms of how much time you spend sifting through the results.

Hat tips: Legal Writing Prof Blog and AboveTheLaw Blog.

[T]he 2009 Central States Regional LRW/Lawyering Skills Conference,”Climate Change: Alternative Sources of Energy in Legal Writing,” will be held on October 9-10 at Marquette University Law School in Milwaukee, Wisconsin. Central States is also planning a Scholars’ Forum, which will be held on October 9 in conjunction with the conference.  At the end of the Scholars’ Forum and just before the welcome reception for the conference, conference attendees will be able to participate in an hour-long discussion on getting published and giving effective presentations.

What’s new in the legal research classroom?   As was mentioned in previous posts, there is a new database, Fastcase, available to all Wisconsin bar members.   In the Advanced Legal Research classrooms this past semester students were introduced to Fastcase.  Now that it is available to all members of the Wisconsin bar, we plan to expand training on this cost-effective legal research tool.  The Fastcase database has already been reviewed by Leslie Behroozi and Elana Olson in a joint post.   I’d like to focus my comments on the Interactive Timeline feature of Fastcase.  This new feature will prove useful for spotting trends in the law, not only to practicing lawyers, but also to academics, including those interested in writing papers for publication.   

Below is an example of the Interactive Timeline for a search for “open records” limited to Wisconsin cases.   Each case is represented by a bubble.  The size of the bubble indicates how often other cases in the Fastcase database have cited to that particular case.  The x-axis represents time and the y-axis represents relevancy (you have the option to select relevancy or court level).  This visual format allows the researcher to process more information more rapidly than would be possible by using the traditional list format.  For instance, in the visual format, the researcher is able to “view” all 233 relevant cases on one page, whereas in the traditional list format, the researcher would have to either click “next” page or scroll down. 

More importantly, it allows the researcher to spot trends in the law.  For instance, below, we see an increasing number of cases returned on a search for “open records” since 1979.  Is this due to an increased amount of information available to requesters?  A change in language in the Wisconsin statute?  A move toward transparency and access to public information?   Taking note of any trends we see while researching may provide fodder for law review articles or other scholarly publications.  For the practitioner, it allows a 30,000-foot view of the case law on a particular topic (at least as demonstrated by the Fastcase database algorithm). 

This new tool, the Interactive Timeline, is worth your while to explore.   It is probable that we’ll see increased use of visual display of query results in legal research.

To the extent that I can, I avoid the “hunt and find” type research problems for which there is one right answer hidden somewhere.  The legal issues the students have to research sometimes, but do not always, have a straightforward answer. 

In the “real world,” legal research and legal writing go hand in hand.  Thus, in addition to their research plan and research log, the students must then submit a written product such as a letter or a memo summarizing their research results for a supervising attorney, a judge, a client, etc.  

This past semester I added a more detailed cost-effective research component than I had in the past.  In some of their research assignments students only had limited Lexis/Westlaw packages (like Westlaw PRO).  In order to completely and accurately respond to the research problem, the students had to come up with a cost-effective research strategy that involved using only a subsection of their current academic Lexis or Westlaw subscription in conjunction with the print materials in the library and the freely available online legal resources like PreCYdent, GPO Access, Thomas and the Cornell Legal Information Institute that we discussed in class.  The student response to my focus on the free legal research options has been largely positive.

This coming semester I plan to deliver research assignments in the variety of different formats students will encounter in practice.  This includes the delivery of research assignments through a larger case file, brief email messages that require further questions for clarification, longer written memos, and spoken conversations.  I look forward to the feedback I will get from my students after next semester.

I have experimented with collaboration in the classroom in a number of different ways, for a number of reasons.  Most importantly, it seems to me that human beings think better in collaboration.  That’s the case for me, anyway. I am able to think more carefully and critically when I bounce my thoughts off of someone else, preferably more than one person.  Additionally, lawyers collaborate in practice, and students need practice working in those collaborative contexts. (Especially some students.  Come to think of it, so do some lawyers.)

So, anyway, Cobb and Kaltsounis’s article was extremely interesting to me.  I have to agree with their observation at the outset, that despite our best efforts, 

something about the form of collaboration we typically adopt [in the legal writing classroom] has always produced the sense that collaborative learning has failed to achieve some of its most ambitious goals. Part of the problem is that collaboration is often not as engaging as it promises to be. For all it has to offer, the act of splitting into groups and working together in a room with other people who are working in small groups can seem contrived. Small-group work often seems to supplement rather than complement the learning process. When perceived as a contrivance, it can hinder full engagement with a complex legal problem — making the group’s legal analysis seem more like a classroom exercise than a method for learning sophisticated analytical and rhetorical techniques, or for engaging in jurisprudence. Such artificiality is intensified when small-group work is paired, as it ordinarily is in legal writing classes, with a task like memo writing, which is rarely approached in small groups in legal practice. 

To overcome this artificiality, Cobb and Kaltsounis devised a project that engaged students in a realistic collaborative context–pretending to be judges drafting an opinion.  My own experience of collaboration among judges, during my year clerking at the Wisconsin Supreme Court, was very similar to the collaboration the article describes in the Oregon Supreme Court and the Ninth Circuit.  Pre-argument conferences and bench memos; post-argument conferences; circulation of drafts; comments on drafts; re-circulation and re-comments; circulation of concurrences and dissents; etc.  

As they describe in the article, Cobb and Kaltsounis, through a combination of wise choices and good luck, created a challenging but interesting statutory interpretation problem for students to work on, relating to the Washington Department of Corrections’ right to deduct money from inmate trust accounts.  Students did some individual work, coming to understand the facts and issues, and considering various statutory interpretation approaches.  ”Forcing students to commit early to an interpretation primed them for vigorous debate in the next stage of our project, which involved having students draft a collaborative judicial opinion or opinion set.”

I imagine so!  Having just completed an interesting statutory interpretation project with my own fall semester students, I enjoyed reading about how the students’ analysis was challenged and deepened through the collaborative context Cobb and Kaltsounis created.  Read the article; it’s inspiring.

In State v. Flores, an unpublished decision by the Texas Court of Appeals for the 14th District dated October 23, 2008, the court refused the appellant’s request to take judicial notice of a Wikipedia entry describing the “John Reid interrogation technique.”  The court reasoned in footnote 3 that Wikipedia entries are inherently unreliable because they can be written and edited anonymously by anyone.  The court relied on a recent article from the Wall Street Journal entitled Wikipedians Leave Cyberspace, Meet in Egypt, noting that the egalitarian nature of Wikipedia is both “its greatest strength and its greatest weakness.”

The Flores decision is also available on Westlaw and Lexis at, respectively, 2008 WL 4683960 (Tex.App.-Hous (14th Dist.)) and 2008 Tex. App. LEXIS 8010.

Which reminded me of another recent Wikipedia-related entry on that blog, a note about Lee Peoples’ article, “The Citation of Wikipedia in American Judicial Opinions.”

I haven’t read Peoples’ article yet, but I should, because this issue of the reliability of Wikipedia and its citation by courts has been bubbling up lately.  It think this Texas court was exactly right: “Wikipedia entries are inherently unreliable because they can be written and edited anonymously by anyone.”  I will admit that I sometimes read a Wikipedia entry if I want background information about a topic.  I do not think, though, that I would cite an entry as proof of anything in court.  What do you think?

A post at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em:  A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN.  Amy Sloan is an Associate Professor of Law and Co-Director of the Legal Skills program at University of Baltimore School of Law.  She is well known to legal writing professors, and to many law students, as the author of a popular legal research textbook, Basic Legal Research: Tools and Strategies.

Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.”  She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond[] to their position within the traditional hierarchy of federal decisional law.”  

As Sloan discusses, there are good questions about whether such a change should (or even could) be implemented by rule change.  But setting that procedural issue aside, the changes she recommends have some appeal, to me.  Currently, Federal Rule of Appellate Procedure 32.1 prohibits the circuits from prohibiting citation of non-precedential opinions, but does not specify what weight can or should be accorded any such opinions that are issued.  As Sloan details in her article, under this regime the circuits have developed different, somewhat inconsistent approaches regarding the issuance of and importance of non-precedential opinions.  Uniformity seems preferable.  

Also, assigning the opinions the sort of intermediate weight Sloan advocates is intuitively appealing, if only because it seems a rough approximation of the way that courts will respond to such opinions.  I.e., even if non-precedential opinions are designated as merely “persuasive,” once an on-point non-precedential opinion is presented to a court, the court probably will feel the need to respond to its reasoning in some way or another, either adopting it as good reasoning, or disapproving it.

Sloan’s article also reminded me of a question that Wisconsin Court of Appeals Judge Joan Kessler raised a couple of weeks ago, when I was on a CLE panel sponsored by the Association of Women Lawyers, along with Judge Kessler and Court of Appeals Judge Kitty Brennan.    During discussion of the recent decision to amend Wisconsin Statute 809.23(3), Judge Kessler asked whether Cook v. Cook, the Wisconsin Supreme Court case that prohibits the Wisconsin Court of Appeals from overruling its own opinions, would also apply to non-precedential opinions, when they  become “persuasive” authority after the new rule takes effect in July 2009. 

Judge Kessler seemed to presume, correctly I think, that Cook v. Cook would not limit the court’s ability to overrule or modify such decisions.  The precise holding of Cook v. Cook,  “that the constitution and statutes [of Wisconsin] must be read to provide that only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals,” does not reach non-precedential opinions.  

Nonetheless, Judge Kessler’s question, like Sloan’s questions in this new article, lead me to believe that questions about the proper “value” of non-precedential opinions in legal arguments will persist, despite (and maybe because of) the trend toward allowing citation of these opinions.

The earlier preview of Fastcase focused on case law, but mentioned that additional Wisconsin primary law material would be offered soon. Recently, expanded Wisconsin content became a reality when Fastcase added searchable databases of Statutes, Acts (beginning in 1989), Administrative Regulations, Attorney General Opinions (beginning in 1982), the Constitution, and Supreme Court Rules. Search features are similar to those in the case law database, but includes the additional option to browse an outline view, much like the Table of Contents feature in other databases.

The User’s Guide, tutorials and other help tools on Fastcase offer a wide range of information about the database. To provide additional help for bar members as they begin to use Fastcase, the State Bar and Fastcase are hosting several Webinars during the next three months.

The Law Library’s subscription for Fastcase will be activated in a few days so that law students and other members of the law school community may access the service.

Beth Hanan, managing member of Gass Weber Mullins and Vice Chair of the Wisconsin Judicial Council, kindly offered the following summary of the hearing and the court’s decision to amend the rule.  (Please note that these are Beth’s own, individual comments and are not the comments or thoughts of the Judicial Council.)

Taking a cautious step into a national trend, yesterday the Wisconsin Supreme Court voted 6:1 to permit citation of unpublished authored appellate decisions, with several limitations.  Amended Wis. Stat. (Rule) s. 809.23(3), like Fed. R. App. P. 32.1, will be prospective only.  This means that parties and courts will be able to cite those unpublished authored opinions which are released on or after the planned effective date of the amended rule, July 1, 2009.  When parties cite such opinions, they will have to file and serve copies of the opinions.  The rule specifically will  provide that parties are not required to cite unpublished opinions.  Finally, the supreme court has ordered that a committee be formed to plan the roll out of the rule and devise a means of tracking its effectiveness or particular difficulties it may create.  Those statistics will be used by the court to review the rule three years after its adoption.

The Wisconsin Judicial Council had petitioned for a broad rule change, but the version approved by all but Justice Ann Walsh Bradley bears little resemblance to the Council’s proposal.  Nonetheless, on this fourth consideration of the topic, the court saw value in permitting citation of some unpublished opinions as persuasive authority.  Especially compelling was the testimony of Judge Richard Brown, chief judge of the Wisconsin Court of Appeals.  Judge Brown, speaking on his own behalf, described the pride of authorship taken by court of appeals judges who write authored opinions, whether in one-judge cases or three judge panels.  Several other practitioners and citizens spoke at the hearing, some in favor, some opposed.

Particularly because the rule is prospective only, observers expect it will be quite some time before the effect of the rule change can be quantified.  Limiting citability to authored opinions released after July 1, 2009 means that unpublished opinions from the first 30 years of the court of appeals will remain off-limits for most citation purposes.  Statistics kept by the court system may reveal whether court of appeals judges will change their approach to deciding which unpublished opinions will be authored.  Overall, it appears the court struck a careful balance by permitting expanded citation but with a measured start.

–Beth E. Hanan

 

Though not as comprehensive as the more well-known legal research databases, Fastcase is user-friendly and offers many of the case searching features on which users rely, including keyword (Boolean) and natural language searching. Users can limit by date or jurisdiction, perhaps taking advantage of the option to build searches across multiple jurisdictions with a few quick clicks of the mouse. Authority Check, the Fastcase citator, is a convenient source for identifying later-citing cases, though it has limitations and is by no means a substitute for KeyCite or Shepard’s. It does, however, offer a graphical interactive timeline feature that visually depicts later-citing cases based on relevance. Dual column printing, a preference for many, is one of the easy-to-select printing and downloading options available on Fastcase. Tutorials and help features such as live chat support during the daytime make Authority Check and the rest of the database even easier to use.

Coverage of federal case law is strong, but comprehensive coverage of Wisconsin cases extends only to 1950, with some scattered earlier cases included as Fastcase adds to the database. Primary law other than case law is merely “framed” for most jurisdictions, meaning that the database offers fast access to other collections of primary law, but has neither hosted content nor the ability to search using the Fastcase interface. Welcome, however, is the news that this is likely to change in the near future. According to Fastcase, Wisconsin statutes, regulations, and court rules with Fastcase search functionality are in beta testing and slated for release in the coming weeks along with similar databases for several other states. Questions on these developments may be directed to Tim Bagley at tbagley@fastcase.dot.com. At this time, there are no included secondary source libraries within Fastcase.

Through the Law Library’s subscription, students will gain the Fastcase exposure necessary to become effective users of the database as future Wisconsin State Bar members. Current State Bar members or others interested in Fastcase may take advantage of a free 24 hour trial period offered by Fastcase, so there is no need to wait for November to test the database for yourself.

Written by Leslie Behroozi and Elana Olson