Big Changes at Google Scholar | Law Technology Today

From Law Technology Today: “Google is known for constantly working to upgrade and improve its services – and Google Scholar is no exception. Often these improvements are introduced with little or no announcement or documentation. Some of these “improvements” are for the better and some are not.

The first change at Google Scholar that is NOT for the better is that it’s now harder to find because it’s no longer located on the “More” drop-down menu. Instead, to navigate to Google Scholar you’ll need to click the “More” tab and then “Even More” (see Illustration 1).”

Read more here.


Step by Step: Creating a Free Citation Alert in Google Scholar

One of my favorite Westlaw features is the ability to create a KeyCite Alert that sends email updates whenever a new case cites a specific case. This feature is extremely effective at helping practitioners update cases. I’m happy to report (at the risk of sounding like a shill for Google Scholar) that you can now accomplish the same thing — for free — with Google.

The Process

Choose a case. Let’s say you’d like to keep abreast of the latest cases mentioning Marbury v. Madison, 5 U.S. 137 (1803). Here are the five steps required to create an alert for this case:

STEP 1: Simply navigate to the case in Google Scholar.

STEP 2: Once you’ve pulled up the case, locate and click the “How cited” link in the upper-left horizontal menu. You’ve just navigated to Google’s equivalent to Shepard’s. (See my previous post about Shepardizing using Google Scholar’s How Cited feature.)

STEP 3: On the How Cited page, we’ll be focusing on the “Cited by” heading. After a selection of documents listed under “Cited by” click “all [n] citing documents >>”. In the case of Marbury, the link reads “all 22,570 citing documents” (at this writing).

STEP 4: You’ve just navigated to a page listing all database documents citing to the document you’d like to track. On the upper-right-hand of your screen, click the button with the email logo next to “My Citations”.

STEP 5: Enter your email information and select the number of results you’d like to receive. Press “Create Alert and … Voila! You’re one step closer to staying abreast of recent treatment of a particular case.

Now for the disclaimers:  Remember that Google Scholar has its limitations. Keep in mind that there may be some delay between the date of opinion issuance and database integration. Also, be aware that Google Scholar may not index every decision issued. You’re always at the mercy of Google’s bots and algorithms. And, of course, this post should not, under any circumstances, be considered legal advice and is not a substitute for complete updating of cases.


Can You Use Google Scholar to Shepardize?

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. 


If an Employer Asks You to Use Your Westlaw/Lexis Educational Passwords …

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?”

Unless you’re working for a non-profit or other organization for which educational use of passwords is permissible, my advice is this: At this risk of disappointing your employer, you must tell him or her that doing so is likely violation of Westlaw and Lexis’ terms of use. The consequences for violating these terms are potentially severe; here’s what the relevant portion of the Westlaw User Agreement states:

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.

Click here for the complete opinion, and here for additional legal commentary on the subject.


Video Tutorials: Researching Cases Using Google Scholar

Check out these useful tutorials for researching case law using Google Scholar, courtesy of the Wisconsin State Law Library Learning Center’s YouTube channel.


Google Scholar Bootcamp for Attorneys

The newest trend in legal research is the integration of free legal research tools into tried-and-true paid platforms such as Lexis and Westlaw. The most popular of these free tools is Google Scholar, which provides an excellent caselaw search mechanism.

The use of Google Scholar for legal research is exploding in law practice. In a 2010 survey, nearly half of responding attorneys indicated that they used free services such as Google Scholar rather than paying for commercial sources. The increased attention to this free resource is also reflected in the research curricula of legal writing departments nationwide. In a recent survey by the Legal Writing Institute, 59 out of 188 law schools surveyed are now incorporating Google Scholar into their legal research lessons. Besides Westlaw and Lexis, it was the second most popular research source taught behind WestlawNext.

What can I do with Google Scholar?

Currently, the best uses of Google Scholar are: (1) case retrieval (which is faster than Lexis and Westlaw); (2) finding related cases (similar to, but more limited than, Keycite and Shepard’s); (3) testing out keywords and terms/connectors for planning fee-based searches; and (4) locating a wide-array of secondary sources, including topics not traditionally reached by fee-based services (e.g., social science journals).

What can’t I do in Google Scholar?

Before exploring some of these capabilities, it’s important to mention some of Google Scholar’s limitations:

  • Citators. While searching for related cases is relatively easy, Scholar has yet to integrate a true citator function similar to KeyCite or Shepard’s. As of this writing, the only way to truly be sure a case is still good law is to either hit the citator books or log onto a fee-based service. Thus, combining Google Scholar research with fee-based research is essential at this point.
  • Search Results. Google’s algorithm (the formula Google uses to rank search results) remains somewhat of a mystery. Whereas fee-based services allow the user to manipulate the algorithm and rank results in a customized manner, Google’s process is opaque.
  • Content Limitations. Users of Google Scholar must be aware of some significant content limitations. According to the Google Scholar FAQ, Google’s state directories are limited to U.S. state appellate and supreme court cases beginning in 1950. State materials before 1950 are patchy. On the federal level, Google only searches U.S. federal district, appellate, tax, and bankruptcy cases from 1923. Notably, U.S. Supreme Court decisions prior to 1791 are also absent (which is probably fine unless you need to reach farther back than Marbury v. Madison (1803)).
  • Mysterious updating. According to Google’s FAQ, the search engine “normally add[s] new papers several times a week.” Updating existing cases can take several months, depending on the speed of Google’s crawling bots.
  • Retrieval limitations. Once you’ve found materials you’d like to retrieve, the printing, downloading, and emailing options are quite limited.

Notwithstanding the foregoing limitations of Scholar, this engine, when combined with fee-based resources, is a cost-effective way of conducting legal research. Below is a list of tips for optimizing your search experience.

1. Setting Your Homepage to Automatically Search a Specific Jurisdiction.

To set your browser’s homepage to automatically search a specific directory, go to http://scholar.google.com and click “Advanced Scholar Search” next to the search box. Under “Collections,” click “Select specific courts to search.” This maximizes a comprehensive list of state and federal courts, including specialized federal courts such as the Court of Claims, Court of Customs and Patent Appeals, Court of International Trade, Customs Court, and the tax courts. Select the directory or directories you’d like to automatically search upon opening your browser. No need to enter additional information, unless you’d like to add keywords or date restrictions to the automatic search. Then, at the bottom of the page, click “Search Scholar.” This leads to a Google Scholar search page. Either bookmark the link or add the link to your browser’s home page preferences. From this page, your search will be automatically limited to the directory of your choice.

2. Finding a known case and creating an alert.

If you know a case by party name or citation in either the official or the unofficial reporter, retrieving the case using Google Scholar is far more cost-effective than retrieving and/or printing it using Lexis, Westlaw, or some other fee-based service. It’s also much faster– try .19 seconds. Once you search for a case name or citation, you can follow the case by creating an email alert for the case– the same function as Westlaw’s KeyCite Alerts. From the results page, click “Create Email Alert” on the upper menu bar and enter your email address. Every time a new case mentions the case you’re following, you will receive an email alert.

3. Searching for a case.

You will have the most control over your search if you limit your search to specific jurisdictions before entering any keywords into the search box. As mentioned above, to choose a specific directory to search, click “Advanced Scholar Search” next to the initial search box. Scroll down to “Legal opinions and journals.” Here, there are options to search all opinions or limit your search to specific jurisdictions. For even more options, click “Select specific courts to search,” which provides an extensive checklist of options. Once you have made your choice, this takes you back to the original search screen. Now you’re ready to compose your search string.

In Google-speak, search connectors are called “operators.” Below is a list of common Google operators from Google’s Advanced Scholar Search Tips:

  • the “author:” operator returns results from a specific author; there should be no spaces between the operator and the author’s name, as in [author:flowers];
  • the “+” operator makes sure your results include common words, letters or numbers that Google’s search technology generally ignores, as in [+de knuth];
  • the “-” operator excludes all results that include this search term, as in [flowers -author:flowers];
  • phrase search only returns results that include this exact phrase, as in [“as you like it”];
  • the “OR” operator returns results that include either of your search terms, as in [stock call OR put];
  • the “intitle:” operator as in [intitle:mars] only returns results that include your search term in the document’s title.

Note that the operator only affects the search term directly following it, so if you want the operator to apply to a phrase, put the phrase in quotations.

If you’re trying to search for an opinion written by a particular judge or justice, you can try the “author:[judge]” operator. Note, however, that this isn’t always accurate. For example, the first search result of “author:Scalia” was United States v. Booker, which was actually authored by Justice Stevens. For more accurate results, try searching using the phrase: “Scalia delivered”. Using the foregoing operators, you can construct a more intelligent search.

4. Viewing a case

One of the most notable features of the case view in Google Scholar is the formatting of footnotes — as endnotes. If you’re married to in-text footnotes, Google Scholar isn’t for you.

Also be aware that Scholar provides less internal citations than Lexis or Westlaw, particularly with respect to authority published before 1950. Another important omission in Google Scholar’s case-view are links to statutes, regulations, etc. So if you’re primarily searching for codified law, Google Scholar probably isn’t the place to find it. However, simply cutting and pasting a statutory citation into a Google search should link you to the text.

5. Using the “How Cited” Function

One of Scholar’s most useful features is the “How Cited” tab at the top of a case. Once you’ve located a relevant case, clicking “How Cited” can lead you to a wealth of related authority, in very much the same way as a KeyCite or Shepard’s check would. The only notable difference is that Google doesn’t provide treatment symbols/categories next to related cases. For an example of a How Cited page, click here. How Cited provides three (3) distinct features.

The first aspect of the How Cited tab is the “How this document has been cited” function. Essentially, this provides a list of cases that actually discuss the main case in some way. Clicking on the case links will take you directly to the passage relating to the main case. This allows the user to actually read the case and decide on the treatment.

The second aspect of the How Cited tab is the “Cited by” function. This provides complete search results within the Google directories for citations to the main case. This is the closest Google Scholar gets to KeyCiting/Shepardizing. Simply peruse decisions rendered after the date of decision in the main case to learn subsequent treatment. Be aware, however, of Scholar’s limitations; it’s unclear how quickly new cases are posted.

The final aspect of the How Cited tab is the “Related documents” feature. These search results provide an expanded listing of journal articles, books, and other secondary authority, as well as related cases. This is yet another way to find related authority and helpful background on the law.

UPDATE: Google has 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.


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