I’m suprised to learn the extent to which the federal appeals courts incorporate Wikipedia references into their opinions. In this post from the WSJ’s Law Blog, Joe Palazollo notes that every federal court of appeal except the D.C. Circuit and the Federal Circuit has cited Wikipedia at least once. Here’s an excerpt of Joe’s findings:
The two court of appeals most comfortable with Wikipedia were the Seventh Circuit and the Ninth Circuit, with 36 citations and 17 citations, respectively. The 10th Circuit and Sixth Circuit recorded eight and six citations, respectively. The First, Second, Third, Fourth, Fifth, Eighth and 11th circuits all had five or fewer Wikipedia citations.
The biggest contribution of the Program is GlobaLex, an impressive online directory of research guides from countries as diverse as Armenia, Bhutan, China, and others. Each of the guides gives the legal researcher the necessary background of the country, including history, basic law, links to secondary sources, and listings of NGOs, law school libraries, and legal publishers. These guides are written by foreign law experts. For an example guide, click here.
It’s clear that properly using citators to update research is part of an attorney’s ethical duty to conduct adequate legal research. See, e.g., Idaho State Bar v. Tway, 919 P.2d 323 (Idaho 1996) (failure to properly Shepardize caused counsel to miss statute of limitations resulting in suspension of license); see also Carol M. Bast & Susan W. Harrell, Ethical Obligations: Performing Adequate Legal Research and Writing, 29 Nova L. Rev. 49 (Fall 2004).
Given the importance of properly using citators such as Shepard’s and KeyCite, it comes as no surprise that attorneys are still reticent to use free legal research tools such as Google Scholar to update research.
Exactly how good is Google Scholar at updating research? Is it a plausible alternative to Shepard’s and Keycite?
These questions are part of a larger research project that I’m currently working on. Ultimately, these are questions only the individual attorney can answer after studying the various research tools. However, if my preliminary research is any indication, it seems that Google Scholar is every bit as accurate as commercial citators for updating case law. (For a discussion of this function of Google Scholar, see this previous post.)
Google recently announced that it is now listing cases based upon the extent to which the cited case is discussed, which– as the Law Librarian Blog points out– brings Scholar even closer to KeyCite/Shepard’s functionality. Here’s the text explaining Google’s change, courtesy of the Law Librarian Blog:
Today [March 8], we are changing how we present citations to legal opinions. Now, instead of sorting the citing documents by their prominence, we sort them by the extent of discussion of the cited case. Opinions that discuss the cited case in detail are presented before ones that mention the case briefly. We indicate the extent of discussion visually and indicate opinions that discuss the cited case at length, that discuss it moderately and those that discuss it briefly. Opinions that don’t discuss the cited case are left unmarked.
Given this change, I decided to conduct a simple test of two cases. I selected two state cases, each with a moderate number of citator results (around 40 results). For each case, I compared the KeyCite and Shepard’s results with the Google Scholar “How Cited” Results.
With respect to both cases, every citator result that affected the validity of the cases (negative citing references) appeared in all citators, including Google Scholar, towards the top of the results. All results that discussed the cited cases appeared in all citators, as well. In connection with these two particular cases, the ordering of results were substantially similar in all citators. Importantly, however, Google Scholar does not index most unreported or unpublished cases. So, if you want an accurate depiction of how many times a case is cited, there is no substitute for West or Lexis. But with respect to precedent that might actually affect a case’s viability, I found no substantive differences between the citators.
Of course, there are differences in the way Google Scholar and Lexis/Westlaw present the results. Google doesn’t provide any treatment signals (e.g., red flags, stars, etc.). Nonetheless, one might argue that this might cause attorneys to study the precedent more carefully, rather than rely on the West/Lexis characterization of precedent. I also found the case excerpts in Google Scholar’s How Cited results much more helpful than the excerpts provided by West and Lexis.
Disclaimer: Please keep in mind that this is is merely anecdotal evidence, not empirical research, and this post should not be considered legal advice.
Harvard Law Library has recently added a research guide entitled “Mobile Apps for Legal Research and More.” Particularly useful are the free U.S. Government apps, which I have reproduced below. Of these, my favorite app is OyezToday, which allows you to listen to Supreme Court oral arguments and search through the transcripts.
Do you have a favorite free legal research app? Let’s hear it!
|The Constitution: Never be without a copy of the constitution with this iOS app by West. It provides the full text of the Constitution along with audio, and ratification information.|
|The Congressional Record: The Library of Congress has created a great free app for reading the daily edition of the Congressional Record on an iPad.|
|Congress in Your Pocket: This suite of apps from Cohen Research Group provides frequently updated directories of elected officials and their staff. Apps are available for iOS, Android and Blackberry devices.|
|MyCongress:This free iPad app provides detailed information about Congressional officials.|
|Real Time Congress: Available from the Sunlight Foundation for iPhone and iPad, this app allows users to track real-time information about Congress from their mobile device.|
|OyezToday: This app from the Chicago-Kent College of Law provides access to current U.S. Supreme Court case abstracts, audio recordings and full opinions. It is now available for iOS and Android devices.|
|PocketJustice: Also from Chicago-Kent College of Law, the PocketJustice app is available for iOS and Android devices in both free and paid versions. It provides access to a wealth of U.S. Supreme Court information, including cases, voting information and biographies of Supreme Court Justices.|
|White House: This official White House app provide up-to-the-minute information from the White House including photos, videos, blogs and streaming White House events. It is available from USA.gov for iOS and Android devices and is also available as a mobile website.|
As summer approaches, I feel it’s necessary to emphasize to students the importance of preserving the integrity of their educational passwords to Lexis and Westlaw. However, this year, I think it’s equally important to emphasize the same to legal employers, in light of a recent ethics decision.
Increasingly, students visit my office with a conundrum. It always goes something like this: “My law firm wants me to use my Lexis and Westlaw account to do legal research. I’m pretty sure Westlaw/Lexis doesn’t allow it, but I’m afraid to say no. What should I do?”
User may access and use Westlaw solely for educational purposes directly related to User’s coursework at Law School or for bar preparation purposes (“Educational Purposes”). Any other use, including any use in connection with User’s employment, any internship or externship, is prohibited…. Westlaw Charges incurred through use of the Law Student Password for Educational Purposes are waived during the term of this Agreement. West reserves the right to collect from User all Westlaw Charges incurred through use of the Law Student Password for purposes other than Educational Purposes at the then-current commercial Westlaw rates.
Read that again: “West reserves the right to collect from User all Westlaw Charges incurred.” This means that, in addition to potential termination of free privileges, students found to be using Westlaw for non-educational purposes may be personally billed for each and every minute of use on the job. That could amount to thousands of dollars in usage fees!
For students who find themselves in this situation, the idea of telling their superior the implications of their non-educational use isn’t a pleasant one. This is especially the case when students feel that the only reason they’ve been hired by small firms is because they’re seen as a source of free research. This is why I suggest that students couple their objection with a proposal to use free legal research tools to accomplish the same tasks.
Before approaching the employer, students should use a current or past research problem as an example and work through it using free research tools such as Google Scholar, FindLaw, or other free resources of law mentioned on this blog. Demonstrate to the employer that the same tasks can be accomplished using those free tools. Albeit Shepardizing/KeyCiting may be more difficult, citating can still be accomplished using Google Scholar. (For an explanation on how to Shepardize using Google Scholar, check out my previous post.) By demonstrating that the same tasks can be accomplished without violating Westlaw and Lexis agreements, the student is also demonstrating a positive, problem-solving work ethic and shifting attention away from the employer’s embarrassment.
Students and employers alike need to know that the practice of coercing students to use their Westlaw and Lexis educational passwords is unethical, and most likely, illegal. In fact, bar associations have begun to recognize the problem. To put the issue in perspective, in a recent opinion by the Utah State Bar Ethics Advisory Committee, the committee found the practice of requesting that students use their educational passwords unethical:
When a lawyer hires a law clerk, the lawyer is hiring the clerk for the clerk’s services and not for access to the electronic database. The lawyer has no expectation that the law clerk will breach the contractual obligations for the benefit of the lawyer. Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities….
Misuse of the student’s educational privileges is a theft of services. Utah Code Ann. §76-6-409. The companies have specifically limited the use of their products to non-profit or educational uses. The lawyer hiring a law student has no reasonable expectation that the law student will violate her contractual obligation to refrain from the use of those services in a for-profit situation. A theft of services is a violation of Rule 8.4(b). It is a criminal act, which, depending upon the amount of services wrongfully appropriated, could range anywhere from a Class B Misdemeanor to a Second Degree Felony. Utah Code Ann. §76-6-412.
“I basically did all the library research for this book on Google, and it not only saved me enormous amounts of time but actually gave me a much richer offering of research in a shorter time.” – Thomas Friedman