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, Planning the Future]; but see James H. Wyman, Freeing the Law: Case Reporter Copyright and the Universal Citation System, 24 FLA. ST. U. L. REV. 217 (1996).

42. Raju Narisetti & Greg Steinmetz, Reed Elsevier Wins Bidding for Lexis/Nexis, WALL ST. J., Oct. 5, 1994, at A3; Richard L. Hudson, Reed Elsevier Enters Big League of On-Line Services, WALL ST. J., Oct. 6, 1994, at B4.

43. See generally LEXIS TWENTIETH ANNIVERSARY, supra note 27.

44. Marcia Berss, Logging Off Lexis, FORBES, Jan. 4, 1993, at 46.

45. Anthony Aarons, Lexis-Nexis Price: $1.5B: Few Immediate Changes Expected from Reed, L.A. DAILY J., Oct. 6, 1994, at 8.

46. See John Oslund, Which Direction for West?, MINN. STAR TRIB. Nov. 13, 1995, at 1D; West Publishing Co.: Outside Advisors Are Hired to Consider Alternatives, WALL ST. J., AUG. 30, 1995, 1995 WL-WSJ 9897894.

47. Steven Lipin et al., Thomson to Purchase West Publishing for $3.43 Billion, WALL ST. J., Feb. 27, 1996, at A3; and Morris, supra note 2, at 74.

48. Frederick Rose, Times Mirror to Swap College Business for McGraw-Hill's Legal-Citation Unit, WALL ST. J., July 5, 1996, at A3.

49. See THE BLUEBOOK, supra note 13, at 68; see also id. at 165 (defining the order of preference in citing to Supreme Court opinions).

50. See id. at 55-71.

51. On a dare, Kent Olson actually reviewed a volume of the Federal Reporter as if it were a book. Kent C. Olson, Book Review of 750 F.2d, 6(3/4) LEGAL REFERENCE SERVICES Q. 199 (1987)

52. Steven Lipin et al., Thomson to Purchase West Publishing for $3.43 Billion, WALL ST. J., Feb. 27, 1996; and Morris, supra note 2.

53. See, e.g., CAL. ST. B.J., Mar. 1997, at 14 (advertisement for AccessLaw's CalDisc).

54. See, e.g., LOIS Homepage (visited May 5, 1997) <http://www.pita.com>.

55. For example, the Boalt Hall Law Library's website provides links to various legal information websites, Internet Resources (visited April 16, 1997) <http:// law164.law.berkeley.edu/library/internet.html>.

56. See Berring, Planning the Future, supra note 41, at 630; Wyman, supra note 41, at 258-64.

57. Wyman, supra note 41, at 262-63.

58. The Judicial Conference of the United States issued a call for comments on the adoption of the vendor neutral citation by the Administrative Office of Federal Courts; 62 Fed. Reg. 8037. This call has generated a number of submissions that set out the advocates arguments strongly which Hyperlaw has posted on their Web site; see Citation Reform (visited April 14, 1997) <http://www.hyperlaw.com/hlreport.htm>.

59. Berring, Planning the Future, supra note 41, at 622-23.

60. See WILSON, supra note 17, at 131-134 (discussing authoritativeness in the professions).

61. KIM ISAAC EISLER, SHARK TANK 116, 206-07 (1990).

62. For example, the UC Berkeley Boalt Hall Law Library has followed this path.

63. One can subscribe to this listserv by sending the following email message to listproc@ucdavis.edu: subscribe law-lib firstname lastname.

64. For instance, LAW-LIB regularly receives postings from law firms and corporate legal departments offering full sets of digests and other printed materials for the cost of shipping. Examples are on file with the author.

65. See AMERICAN ASSOCIATION OF LAW LIBRARIES, AALL DIRECTORY & HANDBOOK: 1995-1996.

66. BARBARA A. CURRAN & CLARA N. CARSON, THE LAWYER STATISTICAL REPORT: THE U.S. LEGAL PROFESSION IN THE 1990S (1994).

67. See FUTURE LIBRARIES (R. Howard Bloch & Carla Hesse eds., 1995). For the changing role of books in our culture see DDALUS, Fall 1996 (Books, Bricks & Bytes). Especially interesting in this issue is Peter Lyman, What is a Digital Library? Technology, Intellectual Property and the Public Interest, id. at 1. For a view of one specialty's view, see TOWARD A RENAISSANCE IN LAW LIBRARIANSHIP: THE REPORT, RECOMMENDATIONS AND MATERIALS OF THE AMERICAN ASSOCIATION OF LAW LIBRARIES SPECIAL COMMITTEE ON THE RENAISSANCE OF LAW LIBRARIANSHIP IN THE INFORMATION AGE (Richard A. Danner ed. 1997).

68. Jane C. Ginsburg, Copyright Without Walls?: Speculations on Literary Property in the Library of the Future, in FUTURE LIBRARIES (R. Howard Bloch & Carla Hesse eds., 1995).

69. See Wendy Gordon, Fair Use as Market Failure: a Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600 (1982); Robert P. Merges, The End of Friction? Property Rights and Contract in the 'Newtonian' World of On-line Commerce, 12 BERKELEY TECH. L.J. 115 (1997).

70. For example, the payment records for UC Berkeley's Boalt Hall Law Library show that Congressional Information Service's index and abstracts costs $43,000 initially, and updates cost an additional $2,925 per year. An annual subscription for LegalTrac costs $6,356 in 1996/97.

71. The real irony is that the most valuable sets of books, the ones that were most popular, had to be given special "protection" lest they disappear. This was an element of their physicality.

72. See, e.g., James C. Billington, Libraries, the Library of Congress, and the Information Age, DDALUS, Fall 1996 (Books, Bricks & Bytes), 35, 36-37.

73. I believe that this idea of parity of access to information should bridge to the discussion of fair use. See also Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of Contract, 12 BERKELEY TECH. L.J. 93, 100-101 (1997) (discussing accessibility of works).

74. Kolender v. Lawson, 461 U.S. 352 (1983), was popularly known as the "Walking Man" case. It was filed and briefed in pro per by Mr. Lawson, using the Boalt Hall Law Library as his source. He won. Note that the Supreme Court would not allow Mr. Lawson to argue his case. Kolender v. Lawson, 459 U.S. 964 (1982).

75. Bounds v. Smith, 430 U.S. 817, 828 (1977).

76. The Depository Library Act is codified at 44 U.S.C. 1901-1916 (West 1991 & Supp. 1997). For a discussion of the Federal Depository Library Program and other factors affecting public access to government information, see JOE MOREHEAD, INTRODUCTION TO UNITED STATES GOVERNMENT INFORMATION (5th ed. 1996). Changes in the depository system were proposed in late 1996; for current information on the status of these proposals, see Resources of Use to Government Documents Librarians (visited April 24, 1997) <http://library.berkeley.edu/GODORT>.

77. See comments, supra note 21.

78. The University of Pennsylvania convened a conference on May 16, 1996, to commemorate the 50th Anniversary of the ENIAC "thinking" machine [hereinafter 50th Anniversary of ENIAC Conference]. The Conference was entitled "Workshop on Problems in Information Retrieval." No transcript of the Conference was produced. All references to it are from the memory of the author. See generally PENN PRINTOUT, March, 1997 (multiple articles devoted to the anniversary).

79. 50th Anniversary of ENIAC Conference , supra note 78.

80. Id.

81. See, e.g., Daniel P. Dabney, The Curse of Thamus: An Analysis of Full Text Legal Document Retrieval, 78 L. LIBR. J. 5 (1986).

82. FRANK SHEPARD CO., LEGAL BIBLIOGRAPHY: SHEPARD'S CITATIONS 9-10, 40-41 (1923).

83. See Berring, Legal Research Universe, supra note 8.

84. There is rich literature on this topic. Donald J. Dunn, Why Legal Research Skills Declined, or When Two Rights Make a Wrong, 85 L. LIBR. J. 49 (1993) is a good summary. The fiery exchange found in Christopher G. Wren & Jill Robinson Wren, The Teaching of Legal Research, 80 L. LIBR. J. 7 (1988) and Robert C. Berring & Kathleen Vanden Heuvel, Legal Research: Should Students Learn It or Wing It? 81 L. LIBR. J. 431 (1989) contains an extended discussion of the failures of research training from two very different perspectives.

85. Berring, Legal Research Universe, supra note 8.

86. See, e.g., LOIS Homepage, supra note 54.

87. Morris, supra note 2, at 73-74.

88. Twice in the past three years the AALS has conducted workshops on these questions as a part of its annual meeting. But the decentralized nature of its operations means that fast action of any sort is impossible.