Legal Research Paradigms

Advanced Legal Research

Neal R. AxtonInformation Resources

Fall, 2013

Today’s Overview

• Introduction to Paradigms

• Research Paradigms

• Introduction to Federal Law

• Research Plans & Research Logs

• Big Data

• Privacy – Conceptually

• Privacy - Legally

What is a paradigm?

Paradigms and Heuristics

Paradigm: A model an individual uses in trying to understand something.

A paradigm has assumptions and beliefs.

Default Paradigms• Vendor Paradigm

– West– Lexis– Fastcase– Versuslaw– Loislaw– Google Scholar– Wikipedia

• Data Silos

Example of Data Silos• Agresso with Student Course Data

• Library Catalog & Sierra

• Institutional Advancement and Raiser’s Edge

• Career Development and Symplicity

• Payroll and Kronos

• IT and Network Credentials, aka Active Directory

Data Silos & Federated Searchhttp://bit.ly/rq

yITU

Access Database

Metadata

Other Research Paradigms• Format Paradigm (e.g. WRAP)

– Primary Law– Legal Commentary

• Encyclopedia• Treatise• Journal• ALR

• Process Paradigm– How Law is Drafted– How Law is Codified– How Law is Enforced– How Law is Researched– How Law is Litigated– How Law is Changed

Legal Data Silos• Provenance

– Creation & Ownership

– Creates Data Silos

Cyclical Nature of Law

Legislation &

Codification

Approval or Veto

Regulation &

EnforcementInterpretation &

Gap Filling

Cyclical Nature of Law

Legislation &

Codification

Approval or Veto

Regulation &

EnforcementInterpretation &

Gap Filling

Codification

• The process of formalizing and numbering a body of law

• Napoleonic Code• Justinian Code• National Fire Code• Uniform Commercial Code• Minnesota’s UCC @ Chapter 336

Terminology

• Slip Laws – text of laws as passed by Congress

• Statutes at Large – slip laws complied at the end of each session

Public & Private Laws

• Public Laws: Chronological Arrangement by Congress and Bill

e.g. Public Law 106-37

• Statutes at Large

e.g. 113 Stat. 185

Codification

• The process of formalizing and numbering a body of law

• Napoleonic Code• Justinian Code• National Fire Code• Uniform Commercial Code• Minnesota’s UCC @ Chapter 336

Statutory Codification

• Federal Statutes– Statutes at Large = Chronological– United States Code = Topical

• State Statutes Chronological

– Session Laws = Laws of Minnesota

– Codified Statutes = Topical• Minnesota Statutes• Minnesota Statutes Annotated

No better…

How to find good information on section 215

of USA PATRIOT Act?

We need a plan!

Advanced Research Concepts– Research Plans– Parallel Processing– Research Logs– Provenance– Backward Chaining– Forward Chaining– Metadata– Symbolic Logic– Boolean Logic– Segmented Searching– Invisible Web

Research Process

• Given Unlimited Resources, how would you conduct research?

Donald Rumsfeld on Epistemology

“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know.”

Paraphrase

• Known• Unknown• Unexpected

If you do not expect the unexpected, you will not find it; for it is hard to be sought out and difficult.

–Heraclitus of Ephesus, 5th century BCE

Creating Research Plans: Parallel Processing

• Need at least minimal background information to create a research plan– Wikipedia– Encyclopedia– Google

• One plan or multiple plans?

• Not all who seek are lost…

• Persistence

Sample Research Plans

• Who said:• Dulce et decorum est, pro patria

more.• Research Plan ONLY

Research Plan Factors• Easy• Quick• Correct• Authoritative

• Satisfactory• Multi-Phasic• Iterative• Redundant

Threshold Question

•Legal(Legal Fictions)

•Factual

Expecting the Unexpected: Creativity in Research

• What are you looking for?• Where should you look for it?

• Choosing the right concept

Research is a Process

• Constructing the Search• Refining the Search• Reviewing Results• Iteration

• Thinking outside the box• Getting help from others

Categories of Research Plan Resources

• The Law Itself – Primary Resources – Statutes, Regulations, Cases

• Agencies and Agents– FEMA, ATF, FBI, CIA, DoD, OMB, Ex-Im Bank

• Private Interest Groups & Lobbyists– ACLU, AARP, NRA, Doctors without Borders

• Secondary Sources or Legal Commentary– Websites & Books– Treatises, ALRs, Encyclopedias, – Practice Guides (nuts and bolts): Causes of

Action, Proof of Facts, Checklists & Forms– Subscription Databases (Invisible Web)

– Financial– Business/Employment

• Competitive Intelligence• Human Resources

– Medical– Hard Science– Architectural/Engineering– Statistical– Social Science– Biographical– Opinion Leaders & Crowd-Sourcing

Factual Research

Research Mantras:Legal Questions

•Legislative•Executive

– Administrative!•Judicial

Research Zen

– Jurisdiction• International & Tribal• Federal & State• Local & Administrative – Police, Fire, EMT, Private

Hospital, DNR, DMV, Highway Patrol – Quasi-Jurisdiction

• Non-Profitse.g. Red Cross, National Center for Missing and Exploited Children, Better Business Bureau, Chamber of Commerce

• Criminal & Semi-Feudal

Research Logs

• Where you start• Where you’ve been• Record

– Search Logic– Terms of Art & Synonyms– Number of “Hits” & Particularly Relevant Results

• Parallel Processing & Going off track– Multiple visits to the well– Revisit same level of hierarchy

• Break it down into steps; esp. if multiple jurisdictions

• Nothing worth doing is easy

Research ToolsFree Web vs. Invisible Web Tools

• MitchCat & WorldCat• Westlaw & Lexis - OCR• Hein Online, Online Archives & PDF• Academic OneFile & Controlled Vocabulary

• Search Engines– Google Scholar & Google Books– FDsys & eCFR & Regulations.Gov– USA.Gov & MN.Gov– Search Engine Scripts

• Define: Hydrology• Image Searches

• Wikipedia, Wex & Judicial Notice

Research Log

• Efficiency vs. Accountability• Cost-Benefit Analysis• CYA• Useful items to document:

– Terms of Art Discovered– Databases Consulted– Document Dead Ends– Summarize Documents & Websites– Document Impressions & Conclusions

Concept: Provenance• Birth• Tracing how things came to be what and

where they are• Tracing causation through a complex

process• Creation• Ownership• Custody• Authoritativeness

Research Concepts: Provenance

• Who created it?• Who owns it?• Who pays for it?• Who cares about it?

Caring and Sharing

• 3M contractor wants to know how patent holders are compensated for inventions discovered in the course of work– Patent Law? – Contract Law? – Labor Law?– Other?

Concept: Backward Chaining

• Research 101• Bibliography• Why this always disappoints…

The distance between insanity and genius is measured only by success. – Bruce Fierstein

Concept: Forward Chaining

•Future Citation•Labor Intensive•Subscription Databases & Invisible Web

e.g. Keycite, Shepards, Hein, Google Scholar

Concept: Metadata• Data About Data

• Industrial Strength Metadata

• Legal Metadata– Docket Number – Public Law Number (P.L. 83-280)

– West Headnotes & Key Numbers• Ontology vs Controlled Vocabulary

Cf. Searchable full text

Concept: Symbolic Logic

If – Then Statements & the Law

Syllogisms:

Socrates is a man. All men are mortal. Therefore, Socrates is mortal.

If A = Band all B are CThen A = C

Syllogism & Legal AnalysisGod is love.Love is blind.

Therefore, God is blind.

• Minor Premise• Major Premise• Conclusion

• Facts• Law• How Law Applies to Facts

Concept: Boolean Logic

• AND• AND NOT• AND/OR• IF AND ONLY IF (IFF)• NEAR, W/ 5 (Proximity)• AT LEAST • OR• OR NOT

– Hot or Not?– Whether or Not…

DeMorgan’s Law: Distributive Properties

not (A or B)=not A and not B

not (A and B)=not A or not B

Concept: Segmented Searching• Metadata and Symbolic Logic!• Segments (or fields) are standard pieces of database

content• Find opinion on proximate cause in Atlantic Reporter

not written by Judge Smythe

• Search: sy(proximate +2 cause) and ci(A.2d) but not ju(Smy!)

– but not = and not

• Search Operators vary b/w vendors and even the same vendor’s different databases

• Logical operators control what you can search– May control what you may know

Federated Search • Search across databases

– Segment Searching doesn’t work!– e.g. Lexis:

Common Statutes’ Fields in WLN

Statutes Data Fields

•Prelim•Caption•Prelim/Caption•Citation•Annotations•Credit•Statutory Text•Historical Notes•Words & Phrases

Secondary Sources

Data Fields

•Title•Citation•Author•Preliminary•Text

Compare Data Fields in WestLaw

Segmenting the Internet

• Bluebook prefers official primary sources

• Only government documents• Only patent filings• Only items written by attorneys• Only items relevant to North Dakota• Only if a Peer Reviewed Journals

– Most Law Reviews are not peer reviewed

Common Research Considerations• Free or inexpensive only

e.g. pro bono or family requests• Bar Journals & CLEs for practice tips• Professionally indexed databases and

catalogs offer SEE ALSO headings– Academic OneFile, EBSCO Megafile &

Worldcat• Treatises and Restatements for narrow

questions of law• Blawgs for cutting edge issues

Known Unknowns

• Subscription Databasesmembership has its benefits

–Draft Reports–Classified Information–Archival Resource / Firm form bank–Proprietary Information

e.g. market research, names of clients & business partners, juvenile offenders’ names, victims’ addresses

Research Process – Start to Finish

•Research Plan•Research Log

• Initial Report •Final Report for Client

Working with Others• Always a challenge…• But a challenge worth taking!• How do we communicate our effort and

our conclusions to others?• Complex questions typically have

complex answers.• How do we educate our audience?• How do we structure our answer and

supporting information?

Review of Research Plans• Plan Your Approach• Research Plan becomes Research Log• Prioritize Sources (you may run out of time)• Different Inquires = Different Plans

• Common Specialized Legal Research Plans– Legislative History

• Cf. Statutory History (law at given moment)– Administrative Hearings– Regulatory Guidance (e.g. tax law)– Case Research & Updating

• Judge Made Law

The (Controversial)Whorfian Hypothesis

• Language (or linguistic patterns) determine the perception of reality.

• Since language varies widely, thoughts (thus the perception of reality) vary among people, resulting in different constructions of reality and necessarily incompatible world views.

Neal’s Corollary

When you master the terms of art, you master the topic.

Some topics are more dense than others.

Knowing when to seek assistance is research zen.

The Zen of Research• Knowing when to stop

– Budget– Time– Staffing– Cost-benefit analysis

• Recurrence of Information• Completed Research Plans

• Living with uncertainty

Neal’s Mantra

Everything in life takes longer and costs more than you think it will.

Time Management• Start Early• Iteration is useful IF AND ONLY IF you track

newly discovered terms of art• Ask for help ASAP

– Work the ground– Plant seeds

• Avoid multi-tasking• Don’t hop from one research plan to another