Legal Research in the Computer Age: A Paradigm Shift? (Carol M. Bast and Ransford C. Pyle) PARADIGM SHIFT?

Technology has an impact on legal research o Ex. more research being done through computers, researchers can formulate own searches instead of relying on digests predetermined indexing, full -text retrieval can locate information omitted in print digests Computer assisted legal research (CALR) has an impact on legal thinking

THE LANGDELLIAN ERA A few basic top-level categories and principles formed a conceptually ordered system above a large number of bottom-level rules. The rules themselves were, ideally, the holdings of established precedents, which upon analysis could be seen to be derivable from the principles. Example: First-year courses at Harvard Law follow the major digest classifications: property, contracts, torts, and crimes.

DIGESTS "Digest classification scheme is learned by generations of law school students; it underlies their approach to the law; many are stuck, unable to see an alternate organizational pattern Such a scheme also encourages the continued use of traditional legal principles and concepts, discourages innovation Such innovation will be greater as CALR gradually displaces digests

THE WEST KEY NUMBER SYSTEM Westlaw staff attorneys are trained to e Advantages: in the U.S setting, all cases (whether state or federal, trial or appellate) are indexed using the same key number system; same key number system is used in almost all Westlaw publications; editors maintain consistency in headnote categorization Disadvantages: Digest summaries may be inaccurate (may cover dictum rather than holding of the case, may take a different meaning in the context of the entire case); classification of a summary under a particular digest topic & number is publishers unofficial decision; important points of law in a case may be overlooked by publisher; other details that researcher is looking for may be overlooked; usage of system is time-consuming (researcher looking for a case must first locate correct topic, and then follow through all the layers in the outline before locating the case

THE DIFFERENCE BETWEEN PRINT INDEXING AND CALR INDEXING PRINT INDEXING o Index - allows the researcher to locate relevant information in a collection of Tend to be document-oriented rather than request-oriented because of the process used to generate the index. Basically are oriented to the content of the documents o Thesaurus master list containing all the possible subject entries in the index (please see Section 23 of the article) The number of subject entries in thesaurus keeps the index at a manageable size

Digests - subject indexes that index legal principles rather than whole cases, subjects, pages, paragraphs, or words. CALR INDEXING o One major difference from print indexing is that it is constructed by the researcher, not the publisher Recall percentage number of relevant documents retrieved compared to total number of relevant documents in database Precision percentage number of relevant documents retrieved compared to total number of documents in database Fallout percentage number of irrelevant documents retrieved compared to total number of irrelevant documents in database o It is easy to measure precision, but not recall; hence, researchers can feel satisfied with search results when precision is high even though recall is low (false confidence syndrome)

COMPUTER ASSISTED LEGAL RESEARCH USAGE OF CALR o A CALR search is literal: relevant document must exactly match or it will not be retrieved o Search query might also contain unanticipated, ambiguous usage of search terms o Example: A metaphorical, figurative, or implicit reference to a key legal concept, especially if the concept is abstract, is virtually impossible to locate using full-text retrieval o Query formulation is difficult if keywords have many synonyms, can be stated in many different ways, or can express several different ideas LEXIS AND WESTLAW o Uses Boolean logic to retrieve documents (sorry guys, dont know what the F this means) o Can search-query using particular terms such as name of parties in a case, judge authoring the opinion, attorneys participating, historical references, etc. NATURAL LANGUAGE o An alternative to Boolean logic: Relevancy of documents is based on how many time s a search term appears in said document INTERNET SEARCH ENGINES o Employs automated programs to gather info from web pages, and then constructs an index; process employed is similar to that of natural language o Less sophisticated than Lexis and Westlaw: search engines capabilities vary

COMPARISON OF PRINT AND FULL-TEXT CALR RESEARCH In using print sources, the researcher follows this procedure: o Analyzes facts in the legal research problem o Evaluates what legal concepts may be relevant o Researches concepts in secondary sources o Finds primary sources concerning relevant concepts o Synthesizes the principle contained in the primary sources o Applies the principle to the legal research problem In using CALR, however o Analyzes facts in the legal research problem o Identifies keywords o Locates applicable primary sources o Synthesizes the principle contained in the primary sources

May analyze how the cases fit (or do not fit) into relevant legal theories and public policy arguments o Applies the principle to the legal research problem Problem with CALR: A search that discovers factually similar cases does not also offer a theory of law as its natural result The CALR researcher who remains focused on facts may neglect broader issues and legal concepts, and may be oblivious to the general perspective. When using digests, however, the location of the relevant case summary within the digest system has meaning in and of itself and helps the researcher see the context of the case. With CALR there is no immediate context for a releva nt case The attorney may remain at the factual level, failing to consider legal concepts or public policy arguments . The expert legal researcher is creative and uses good legal analysis. Whether researching in print sources or using CALR, the most successful researchers go beyond established legal theories to create new legal concepts. CALR presents a new challenge to the legal researcher. CALR will differentiate between the mediocre researcher and the expert researcher. The expert researcher is willing to think outside the box.

PARADIGM SHIFT TO THE CODE Code refers to software coding The more sophisticated the software, the greater distance between the researcher and data : the researcher less understands the process of retrieval, and is less capable of directing the search Computer codes, according to Lessing, will assume a role similar to that of traditional legal sources in the old system The codes can channel the research process by facilitating certain actions, and make other actions impossible West and Lexis can change legal researchers behavior by changing their software; such changes will be mostly determined by questions of profit The large legal publishers will remain powerful, but the power will shift from the print digests to research software.

CONCLUSION There will be increasing reliance on CALR at the expense of the old system Three danger areas: intellectual property, privacy, and free speech According to Lessig, The computer has its own rules that inevitably become our own law (See Section 64) As legal research depends more and more on computer searches, the law becomes more and more a product of the code and less a product of human judgment It is very democratic because it is chaotic An individual may use different words at different times to express the same idea. Different individuals use different words to express the same idea. Yet CALR treats legal materials as one vast sea of undifferentiated data, distinguishable by the character strings floating in that sea.