"Nota Bene" means "note this well" or "take particular notice." We at the O'Quinn Law Library will be posting tips on legal research techniques and resources, developments in the world of legal information, happenings at the Law Library, and legal news reports that deserve your particular attention. We look forward to sharing our thoughts and findings and to hearing from you.

N.B: Make a note to visit "Nota Bene" regularly.

-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law

Friday, November 30, 2012

"Don't Panic! It's All Part of the Plan" - Your Friend, The Joker

As I explained at the beginning of my first ever Lexis Advance post, I am a former employee of LexisNexis. However, as I tried to explain at the end of my third post (the conclusion of the initial series), I do not consider myself a "disgruntled former employee" as that phrase is typically used. Indeed, my passion for attacking Lexis Advance stems entirely from my passion for lexis.com. I love lexis.com!! And yet, from the first mention of Lexis Advance, many LexisNexis representatives and employees have explicitly stated that the plan is to "retire" lexis.com once they’ve rolled Lexis Advance out to all segments of the legal market.

"It's All Part of the Plan (Even If the Plan Is Horrifying!)"

That stands repeating and clarifying: Once Lexis Advance has been rolled out to everyone (regardless of whether "everyone" wants it or not, or even whether it actually satisfies the legal research needs of its users), they will pull the plug on lexis.com. Not "Well, we'll keep it out there for those who prefer it." Not even "Well, we'll stop supporting it, but if you really want to keep using it, you can." No; once Lexis Advance has been shoved down everyone's throats, with its predatory pricing structure, its confusing search syntax, and its "but I thought you wanted millions of documents to sift through when you asked for information on eminent domain laws in Illinois," lexis.com will cease to exist. I've literally seen the graveyard in Miamisburg, Ohio, and its symbolic tombstones for all the other LexisNexis products that have been "retired".

Why is LexisNexis working to destroy its flagship product? Because it wants to fleece the legal community for as much as it can! And the only way they can ensure that is to force its customers to stop using lexis.com. You see, LexisNexis thinks they've learned the lesson from the attempts of the US government to switch to a one-dollar coin, but they haven't learned it entirely.

People Hate Change: The Lesson of the $1 Coin

The federal government has made several attempts to replace the one-dollar bill with a one-dollar coin. Many arguments (whether or not valid) have been made in support of such a change, such as coins last longer than paper bills and are easier and cheaper to produce in the long run. And yet, despite these arguments in favor of coins over bills, despite the many attempts to get the public excited about one-dollar coins, they have failed to be accepted by the public at large.

Why? Because people hate change. No, I don't mean "change" in the "change is progress" or "change is inevitable" or "change or die" kind of way; I mean "change" as in "coins". Most people, unless they're numismatists or children dazzled by shiny things, hate to be bothered with coins. That's why the charity boxes or tip jars at fast food restaurants and coffee shops are full of coins. We'd rather dump those annoyances in the nearest receptacle than be bothered with having to lug around a pocket- or purse-full of clanking metal. Even when it's almost a dollar's worth: If we're about to pay $X.01, we pray there's a "take a penny" tray nearby, or that the clerk will eat the one cent and give us a full dollar back, and when we're not that lucky, we find ourselves tempted to just dump that fist-full in the nearest jar. It's no surprise that people willingly dump their jars of coins in Coinstar machines despite being charged almost 10 cents for every dollar!

Here's why the government's attempts to switch to a dollar coin have failed: These introductions of dollar coins have not been accompanied with an immediate cessation of dollar bill printing. As long as the government isn't going to force us to accept the dollar coin by at least ceasing production of the dollar bill, if not an all-out and immediate removal of the dollar bill from circulation, then all of us change-haters will simply refuse to switch. And that's the lesson LexisNexis apparently learned: If you want people to switch, you've got to remove their options.

In addition, to be fair, they have their own experience to back up that concept. When they introduced lexis.com, they didn't immediately phase out the software version of LexisNexis, and many "power users" absolutely refused to switch to lexis.com. The company at first tried to encourage software users to make the switch voluntarily, but, ultimately, they ended up having to strong-arm most of the hold-outs over to the new platform. This time around, they're not giving customers the option. And once lexis.com is out of the picture, they're putting all their money on people switching to Lexis Advance, even if begrudgingly, rather than to a competitor.

Let's not forget: This was the same strategy employed by Coca-Cola when it tried to force all of the Coke drinkers over to New Coke. And how did that work out?

Here's the difference: Not only is a one-dollar coin equal to a one-dollar bill in value, it arguably is better! Coins last longer than bills; they don't get torn or otherwise rendered useless. If you accidentally leave a coin in your pocket when you throw that item of clothing in the laundry, it is not harmed and can still be used.

Similarly, lexis.com was, at its core, no different than the software and arguably better. You could still access all the same sources and perform the same functions on lexis.com as you could on the software, but you were no longer restricted to computers that had the software downloaded to them. You could use LexisNexis on any computer that had access to the internet!

So here's the important question (at least in my mind): Is Lexis Advance at least equal to lexis.com? At this point in time, I cannot answer that question in the affirmative, just as no one will ever be able to convince me that New Coke was at least as good as Coke. And that's why I rail against Lexis Advance: I can't stand idly by while one product I love is destroyed and a far inferior product is foisted upon us.

But, to be fair, the same is true of WestlawNext: Once it has caught on, Westlaw will be retired as well.

A True(?) Paradigm Shift

What I continue to find frustrating is the legal community’s reaction to both Lexis Advance and WestlawNext regarding their new pricing paradigm. Even if either product was as good as its predecessor, I would still be opposed to its adoption due to the change in philosophy required by the new pricing scheme.

In business circles, the phrase "paradigm shift" gets tossed around so much that it has become, at best, meaningless, and at worst, a laughable insipidity. But if anything in the business (or legal) world would qualify as a paradigm shift, it is this new pricing scheme, independently but, coincidentally, simultaneously created by the duopoly.

As I explained a year and a half ago, both Westlaw and lexis.com charge by the search, and once you have a results set, you can take your time examining the results or running narrower searches within that set. In fact, customers were actively encouraged, by both companies, to run broad searches and then rely on the features and functionality of those tools to manipulate the results sets without incurring additional charges. It was a search strategy that both companies encouraged for decades, so much so, that it became ingrained into every legal researcher's bag of tricks and, subsequently, ingrained into every law school's legal research program. But WestlawNext and Lexis Advance invert this pricing scheme: Now, you can search for free, but doing anything with a particular document retrieved by the search, even just looking at it, results in a charge! This is a foundational change that can only have negative consequences on the quality of legal research and, in turn, the legal community as a whole.

The reason for this stems from the difference between Search and Research. As I explained in my first ever post to this blog, Search is an act while Research is a process, namely, a process that involves taking the results of a Search and doing something intellectual with them. Westlaw and lexis.com are Search tools: You input some terms and they retrieve documents for you. WestlawNext and Lexis Advance are Search tools as well; they do the same thing as far as that goes. But there is a difference: Westlaw and lexis.com, with their pricing structure, give the researcher the time and freedom (and functionality) to do cost effective Research using the results retrieved via the Searches. WestlawNext and Lexis Advance do not. On the legacy platforms, the researcher can take those results and read as many as needed, to compare them, to contrast them, to compile them, to synthesize them, to extract meaningful information and meaningful relationship from them, without worrying about breaking the bank. WestlawNext and Lexis Advance, with their pricing scheme, actively discourage such a process to unfold the way it should, the way both companies have told us it should be done for decades.

I find that unacceptable, and that is why I am not a fan of either WestlawNext or Lexis Advance. And considering the current state of financial affairs, I am shocked more members of the legal community do not feel the same way.

Tuesday, November 27, 2012

Lexis Advance: It’s What All the Kids Want, Right?

I have a bit of good news for the good people at Lexis Advance: This will be my penultimate post on Lexis Advance. Good or bad, right or wrong, after my posts this week, I will refuse to write blog posts regarding this currently unsatisfactory, inadequate, and unacceptable excuse for a legal search tool. I can't guarantee that one or more of my co-workers won't pick up the mantle and write future posts regarding Lexis Advance, but I will not.

In fact, I had hoped that my last post on Lexis Advance would have been my last, but another librarian has offered yet another glowing, albeit superficial, review of Lexis Advance that demands a response.

"We Should Encourage Citations to Wikipedia! And While We're at It, Let's Ignore the Bluebook, Too!"

I don’t know about you, but that heading sounds absolutely crazy to me! And yet, that is the gist of every one of the positive reviews of Lexis Advance (and, to some degree, WestlawNext as well). As the latest Lexis Advance parrot points out, "One of the factors influencing the development of [Lexis Advance] was a recognition that today's information seekers are accustomed" to certain characteristics, functions, and displays of results because of their familiarity with using Google and similar online tools to fill their usually simplistic, easily-satisfied "information needs".

Yes, yes! As law librarians, that's exactly what we should do: We should abdicate our responsibilities to our patrons, our profession, and the legal community as a whole and instead encourage the adoption of practices based solely on what your average, 21st-century teenager expects when searching the Internet for the lyrics to the latest Flo Rida song. This isn't just putting the cart before the horse; this is keeping the horse before the cart, but then dropping the reins, thereby letting the horse dictate where the cart goes, and then declaring that such an approach is the best way to get to market.

[Here's a hint: Whenever you hear or see anyone referencing "today's information seekers", they are (whether knowingly and intentionally or not) specifically talking about the behaviors of people who are not even old enough to attend law school, let alone understand the nuances of actually doing legitimate legal research, not the people who actually do legal research as part of their current jobs.]

So using that logic, shouldn't law librarians be encouraging students to rely on citations to Wikipedia entries rather than wasting the time to discover actual authority? I mean, most of the important cases and all of the primary legal concepts and theories have Wikipedia entries; since it's what the kids are going to do anyway, why not allow them to rely on Wikipedia? Similarly, shouldn't we be encouraging courts and law review editors to accept almost anything that might lead back to a resource, any resource, as an appropriate citation? In fact, why even require citation at all?!

Or are we, as law librarians, supposed to be taking the lead in shaping how law students and new associates perform adequate and efficient legal research? Oh wait . . . That would require us, as a profession, to take a stand and tell LexisNexis and Westlaw what they can do with their new, shiny, "customized 'out of the box' search engine[s]", and that is something we are, apparently, incapable of doing.

Next (and Last) Time

As an aside, in this latest Lexis Advance love-fest, the blogger reveals that MarkLogic is the company behind the creation of this monstrosity. Interestingly, when you view the company's What is MarkLogic page, you see the company's tagline: "Next generation Big Data needs a next generation database. MarkLogic is the ideal platform for Big Data applications designed to drive revenue, streamline operations, manage risk, and make the world safer." [Emphasis added.] In other words, Lexis Advance was NOT designed as "a response to our customers' research needs" nor to "drive better outcomes for [our customers]", as the early Lexis Advance literature claimed. Just as I thought was obvious from the start, Lexis Advance is merely an attempt to gouge the legal community with a completely unreasonable and predatory pricing scheme. (WestlawNext utilizes this pricing scheme as well, but WestlawNext is not "merely" such a ploy; it actually contains improvements over regular Westlaw and is, all in all, a mostly useful product.) This will be the focus of my next, and last, post involving Lexis Advance. Stay tuned!

Sunday, November 25, 2012

U.S. Patent & Trademark Office Director's Blog

The website of the U.S. Patent and Trademark Office has gone through quite some changes since David Kappos became its Director in 2009.  One of the changes is the addition of the Director's Forum: David Kappos' Public Blog.  While blog posts have not been added frequently (e.g. four in August, five in September, three in October, and insofar one in November), almost all of them are on meaningful developments and readable even to general public.  For example: on August 2, 2012 the blog introduced the Global Dossier Initiative and the idea was explained in plain English.  On September 14, 2012 there was the announcement on the former Board of Patent Appeals and Interferences becoming the Patent Trial and Appeal Board (PTAB) two days later.  No doubt that we can find all these changes in the Federal Register, but who would not want to hear the word from the horse's mouth, links included?  Besides opinion posts such as PTAB and Patentability Challenges are must-read and may not be found any place else.

So is there any problem with this blog?  Yes, and it can be a big problem: while the blog started sometime in the Fall of 2009, one can only find posts not older than six months (July 24, 2012 as of today) on the current blog site.  Wouldn't it be wonderful for researchers to be able to find easily the forty-right comments on Mr. Kappos' November 10, 2009 post Putting the USPTO to Work for Independent Inventors three years later?  (How did I get to it?  I was able to access this historical post by clicking the first link provided in the November 1, 2012 post A Day Like Any Other..., then kept clicking the links to the last posts listed beneath the date of each post until there was not more to click.  I may not be that lucky next time.)

November 30, 2012 Update:
Regretably, the next day after I posted the above message Wall Street Journal reported that Mr. Kappos will step down from the position of US PTO Diretcor in January.  Let's hope that the next director will still utilize this blog as a communication tool.

Monday, November 19, 2012

Texas Supreme Court Approves Pro Se Divorce Forms

Last week, the Texas Supreme Court approved for the first time an official set of forms that may be used for individuals filing for divoerce in Texas without requiring the assistance of a lawyer. Once Texas has formally adopted the forms, it will join 48 other states that already have some standardized family law forms in place. The forms, intended for pro se couples with no minor children or real property are specifically aimed at indigent couples who do not have the resources to obtain legal assistance in their divorce matter. With this ruling the Texas Suprme Court recognizes the extent to which low-income Texans are underserved by the legal community, noting that even if every member of the state bar's family law section were to take on one of these family cases pro bono, tens of thousands would remain unserved.

Not all of the Texas Supreme Court Justices agreed, with two justices dissenting (another two dissenting in part) out of fear that these forms will inadvertently create more pro se litigation between parties. The court will be accepting comments on the proposed forms until February 1, 2013, and the form may be changed in response to those comments. You can read the court's order approving the uniform forms, and take a look at the new set of forms here.

Thursday, November 15, 2012

Superheroes and the Law

Is Batman a state actor for constitutional law purposes? Can the IRS tax Superman for squeezing coal into diamonds and not paying taxes? Can Ben Grimm sue Reed Richards for turning him into The Thing?  Important legal questions like these are addressed in one of the library’s newest books The Law of Superheroes by James Daily and Ryan Davidson. 

The Law of Superheroes takes a large chunk of the law, including Constitutional Law, Criminal Law, Evidence, Tort, and Administrative Law and applies it to the “facts” of the world of comic book superheroes and supervillains with interesting results. Super-characters have all sorts of adventures and applying legal analysis to those adventures makes for not only interesting context but is also instructive in teaching how the law works. I ask you, isn’t analyzing Superman’s immigration status (he’s an alien!) more interesting than reading some dry old Supreme Court case on immigration? While this volume is not a marriage of case book and comic book it does make for stimulating, yet light, legal reading. 

To answer the questions posed above:  Batman: Yes, see Edmonson v. LeesvilleConcrete Co., Inc. 500 US 614 (1991), Superman:  In the comic a senior IRS agent argues that since Superman had saved the world he could declare everyone as a deduction (doubtful), The Thing: No, Ben Grimm assumed the risk knowing that space exploration was dangerous.

The Law of Superheroes by James Daily and Ryan Davidson. K487 .L38 D35 2012

Monday, November 12, 2012

In Search of Prior Art

What is “prior art” and why am I looking for it?  To be granted a patent the invention in question must be “novel”, that is it must be new. Prior art is, at its most basic, any description of the invention published prior to applying for a patent. The revelation of prior art would defeat the application for a patent or render a patent invalid.  Searching for prior art, or patent searching, is not an easy thing to do; the patent classification system is not intuitive and it must be remembered that the kinds of things you are searching for are often described in highly technical language and the search may require going beyond previously filed patents.  

As I said, patent searching is hard and searchers don’t always discover the existence of prior art. Add to this the fact that in patent litigation there is a lot of money at stake so the discovery of prior art is a very valuable thing. In an attempt to overcome the difficulty of searching a company named Article One Partners has a unique method of searching for prior art. Rather than hiring a traditional patent search firm, Article One Partners, relying on the wisdom of crowds, invites amateurs to search for prior art and rewards successful searchers with money. This Slate article discusses the company and how one of their most successful searchers has earned over $75,000 working from home searching for prior art. 

The entire process of patent searching is about to undergo a tremendous change. The US Patent and Trademark Office (USPTO) has joined with the European Patent Office (EPO) to create a unified patent classification system called the Cooperative Patent Classification (CPC) system.  The new merged system, set to take effect on January 1, 2013 and is based on the International Patent Classification (IPC) system.  It is interesting to note that the US system has not been kept up to date, but with this harmonization plan, the joint system will be not only up to date, but will allow accessibility to US patent records back to 1920.

Friday, November 9, 2012

New Presidential Documents App


The U.S. Government Printing Office and the Office of the Federal Register recently launched the Presidential Documents App.  It provides mobile access to materials from the Daily Compilation of Presidential Documents including executive orders, speeches, statements, White House press releases, and more.

Users can search for documents by date, category, subject, or location.  This mobile web app is compatible with most mobile device platforms such as iOS and Android.  For more information and to access the app, visit the Apps.USA.gov page for the app.

Tuesday, November 6, 2012

Election Predictions

Today is Election Day!  After months and months of campaigning, it is almost over.  Candidates and political commentators are making their predictions and running scenarios based on the latest polling data, but there are some other more unique ways to predict who will win the presidential election tonight.  The Houston Chronicle has compiled a list of 10 (less scientific) methods such as the Redskins Rule, the 7-Eleven cup election, and the Baskin-Robbins ice cream race that may be able to give you a little more insight into what might happen tonight. 

 Check out the list to see which candidate is going to win, and if you need last minute information about voting, see the VoteTexas.gov website.