†1997 Robert Berring
†Walter Perry Johnson Professor of Law and Law Librarian, Boalt Hall School of Law, University of California, Berkeley. Professor Berring has worked as a consultant for each of the major legal publishers, and several that dissolved as a part of the recent mergers, but the opinions here are solely his own. Thanks to Debby Kearney and Alice Youmans of the Boalt Hall Law Library reference staff for finding some obscure citations.
1. FREDERICK C. HICKS, MEN AND BOOKS FAMOUS IN THE LAW (1921), describes the role of several particular law books in crystallizing American legal thought. His chapter on Blackstone's Commentaries is especially interesting. LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW 621-32 (1985), puts the role of books in wonderful perspective.
2. John E. Morris, How West Was Won, AMERICAN LAWYER, Sept. 1996, at 73, outlines the final stages of the sale. As of February 28, 1997, the Justice Department continues its review of the details of the final deal, but the major points have been cleared and the publishers have consolidated offices. See generally Daniel Wise, $3.4 Billion Merger of Legal Publishers Cleared by U.S. Judge, N.Y. L.J., February 28, 1997, at 1.
3. For a fine summary of work up to this point, see M. ETHAN KATSH, LAW IN A DIGITAL WORLD (1995). Katsh's bibliography at pages 271-289 is especially helpful. Bernard J. Hibbitts, Last Writes? Reassessing the Law Review in the Age of Cyberspace, 71 N.Y.U. L. REV. 615 (1996), is filled with good sources and its footnotes are a veritable mother lode of work in this area.
4. As of March 1, 1997, all of West Publishing Company's senior management has been replaced. Brian Hall is the President of the newly titled West Group. See West Group-Overview (visited April 20, 1997) <http://www.westpub.com/Welcome/wgoverv.htm>. Mr. Hall had been with Thomson Legal Publishing before the merger. Id.
5. For a very good history of West's founding years, see Thomas A. Woxland, "Forever Associated with the Practice of Law": The Early Years of the West Publishing Company, 5(1) LEGAL REFERENCE SERVICES Q. 115 (1985); See also, W. W. MARVIN, WEST PUBLISHING COMPANY: ORIGIN, GROWTH, LEADERSHIP (1969) (an authorized history). For a charming perspective on how West conceptualized itself in its early years, see generally WHERE LAW BOOKS ARE MADE: LAW BOOKS BY THE MILLION (1901).
6. Detailed descriptions of the National Reporter System can be found in any textbook on legal research. See, e.g., ROBERT C. BERRING, FINDING THE LAW (1995).
7. "One effect of the blanket system of reporters, established by the West Publishing Company, has been to present the reports of several [states] in a single series. . . . This must necessarily have the effect of bringing about a more general comparison of the adjudications of the different American jurisdictions upon particular questions, which must in the end result in a unification of the law." The Lawyer's Reports Annotated, 22 AM. L. REV. 921, 922 (1888).
8. The role of the American Digest System as an organizational force in American legal thought is explored in Robert C. Berring, Collapse of the Legal Research Universe: The Imperative of Digital Information, 69 WASH. L. REV. 9 (1994) [hereinafter Berring, Legal Research Universe] and in Richard Delgado and Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Dilemma, 42 STAN. L. REV. 207 (1989).
9. This leaves statutory and administrative materials to the side. Given the stress placed on judicial decisions in the United States construct of the common law, this is not an unfair emphasis. Only in recent years have statutes and administrative codes grown in influence.
10. See generally THE AMERICAN BAR ASSOCIATION, STANDARDS FOR APPROVAL OF LAW SCHOOLS AND INTERPRETATIONS, POLICIES OF THE COUNCIL OF THE SECTION OF LEGAL EDUCATION AND ADMISSION TO THE BAR AND OF THE ACCREDITATION COMMITTEE, Annex II (Nov. 1988) (listing the required collections for law schools, which relies on the National Reporter System and the American Digest System as its core although noting that this standard is currently under reconsideration); Memorandum from James P. White, Consultant on Legal Education to the American Bar Association, to Library Directors of ABA Approved Law Schools, (Feb. 18, 1997) (discussing adjusting questions in the site evaluation process of re-accreditation) (on file with author).
11. See A Symposium of Law Publishers, 23 AM. L. REV. 396, 401 (1889) (containing the only personal statement of John B. West's beliefs on the issue). A representative sentence of West's is: "I believe it to be the principal business of American law publishers, to enable the legal profession to examine the American case law on any given subject, as easily, exhaustively, and economically as possible." Id.
12. See generally Kirt Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Court of Appeals, 85 CAL. L. REV. 541 (1997).
13. See THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 14, 61-62 (16th ed. 1996) [hereinafter THE BLUEBOOK].
14. Id. at 165-228.
15. Some official reports were once idiosyncratic, even including commentary. See Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on the Marshall Court Ascendancy, 83 MICH. L REV. 1291 (1985) which provides rich and interesting background on this issue. In recent years even official reports have tended to follow sterile formats, with only a few exceptions. See KENT C. OLSON AND ROBERT C. BERRING, PRACTICAL APPROACHES TO LEGAL RESEARCH, 111-41, (1984).
16. One of the original justifications for the advance sheet was the desire to get opinions into the hands of attorneys every two weeks.
17. In the Walt Disney animated feature "Peter Pan," Tinkerbell was a fairy. She only existed if children believed in her existence. This character, viewed by the author at an impressionable age, stands for the classic bootstrapping of authoritativeness. For example, if everyone believes that the New York Times is the national newspaper of record, it is. Users seldom have time or ability to critically evaluate what they use. Instead, they rely on reputation. See PATRICK WILSON, SECOND-HAND KNOWLEDGE: AN INQUIRY INTO COGNITIVE AUTHORITY 131-134 (1983).
18. An example of this corporate self-image was the controversy over the publication of U.S. v. Kilpatrick, 575 F.Supp. 325 (D. Colo. 1983). Prosecutors and the I.R.S. attempted to suppress publication of the case, but the judge wanted it published. The case appeared in advance sheets, was withdrawn, and was re-issued. The controversy was finally resolved in Blondin v. Winner, 822 F.2d 969 (10th Cir. 1987). West went through a strained minuet trying to figure out who to listen to. The power of whether or not to publish is seldom clearer. See John Riley, Tenth Circuit Vacates No-Publication Order, NAT'L L.J., Feb. 6, 1984, at 3 and W. John Moore, Judges' Berating of Prosecutors Could Force Grand Jury Change, LEGAL TIMES, Feb. 6, 1984, at 1.
19. When West figured out that this was a valuable asset, they began bringing groups of law librarians to St. Paul just to meet with West's people.
20. See generally Woxland, supra note 5.
21. The histories of West Publishing and of LEXIS have yet to be written. The author relies on his own recollection and his conversations with West and LEXIS employees.
22. Cf. John J. Oslund, Debate Rages over Who Owns the Law: Tens of Millions of Dollars are Riding on the Outcome, MINNEAPOLIS STAR TRIB., March 6, 1995, at 8A.
23. For detailed discussion of these issues, see Oasis v. West, 924 F. Supp. 918 (Minn. 1996), and United States v. Thomson Corp., 949 F. Supp. 907 (D.C. 1996).
24. See Oslund, supra note 22.
25. See, e.g., Rosenstiel v. Rosenstiel, 251 N.Y.S.2d 565, 578-579 (1964) (noting that "[t]he court was astounded to find that case relied on by defendant's counsel" had been reversed, and the reversal had in turn been upheld).
26. E.g., Cimino v. Yale University, 638 F. Supp. 952, 959 n.7 (D. Conn. 1986) ("diligent research, which includes Shepardizing cases, is a professional responsibility."); Fletcher v. Florida, 858 F. Supp. 169, 172 (M.D. Florida 1994) (noting plaintiffs' "neglect to Shepardize," and stating that they "should guard against future research failures").
27. The LEXIS Service Started With A Handful of Clients, in LEXIS TWENTIETH ANNIVERSARY 12 (1993) (history of the development of the system as seen by those who developed it) [hereinafter LEXIS TWENTIETH ANNIVERSARY].
28. Id. at 12-17.
29. Id. See generally William G. Harrington, A Brief History of Computer-Assisted Research, 77 L. LIBR. J. 543 (1985).
30. See Scott F. Burson, Report from the Electronic Trenches: An Update on Computer-Assisted Legal Research, 4 LEGAL REFERENCE SERVICES Q. 3 (1984) and Harrington, supra note 29.
31. Id. at 16. "Mead Data Central's first great marketing breakthrough came with the 1975 decision to offer LEXIS usage free to law schools, a move that insured future generations of attorneys would embrace the new service."
32. Burson, supra note 30, at 11-12.
33. See Berring, Legal Research Universe, supra note 8.
34. LEXIS TWENTIETH ANNIVERSARY, supra note 27, at 9.
35. Id. at 13.
36. See comments, supra note 21.
37. Skaddenomics, AM. LAW., Sept. 1991, at 3 (describing large law firm billing practices at its apogee, or the "ludicrous world of law firm billing;" Skadden, Arps, Slate Meagher & Flom added 25% to the cost of all online research charges in clients' bills); Skadden May Forfeit $1.5 Million in Fees, MANHATTAN LAW., Feb. 23-28, 1988 at 6, (includes a detailing of a charge of $27,000 for LEXIS research as a part of a bill).
38. Skaddenomics, supra note 37.
39. See MARK CYGNET, DISCOVERING WESTLAW: THE ESSENTIAL GUIDE, (6th ed. 1996); STEVEN L. EMANUEL, LEXIS-NEXIS FOR LAW STUDENTS (2nd ed. 1995).
40. Burson, supra note 30, at 5.
41. Robert C. Berring, On Not Throwing Out the Baby: Planning the Future of Legal Information, 83 CAL. L. REV. 615, 617-18 (1995) [hereinafter Berring,