This presentation compares and contrasts different approaches to legal research. This presentation was given to the Advanced Legal Research Class at William Mitchell College of Law in St. Paul, Minnesota on August 23, 2013 by Neal R. Axton, JD, MLIS

1. Legal Research
Paradigms
Advanced Legal Research
Neal R. Axton
Information Resources
Fall, 2013

2. Today’s Overview
• Introduction to Paradigms
• Research Paradigms
• Introduction to Federal Law
• Research Plans & Research Logs
• Big Data
• Privacy – Conceptually
• Privacy - Legally

3. What is a paradigm?

4. Paradigms and Heuristics
Paradigm: A model an individual
uses in trying to understand
something.
A paradigm has assumptions and
beliefs.

5. Default Paradigms
• Vendor Paradigm
–West
–Lexis
–Fastcase
–Versuslaw
–Loislaw
–Google Scholar
–Wikipedia
• Data Silos

6. 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

7. Data Silos & Federated Search
http://bit.ly/rqyITU

8. Access Database

9. Metadata

10. 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

11. Legal Data Silos
• Provenance
– Creation & Ownership
– Creates Data Silos

12. Cyclical Nature of Law
Legislation &
Codification
Approval or Veto
Regulation &
Enforcement
Interpretation &
Gap Filling

13. Cyclical Nature of Law
Legislation &
Codification
Approval or Veto
Regulation &
Enforcement
Interpretation &
Gap Filling

18. 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

19. Terminology
• Slip Laws – text of laws as
passed by Congress
• Statutes at Large – slip laws
complied at the end of each
session

20. 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

21. 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

22. 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

29. No better…

30. How to find good information
on section 215
of USA PATRIOT Act?
We need a plan!

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

32. Research Process
• Given Unlimited Resources, how
would you conduct research?

33. 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.”

34. 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

35. 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

36. Sample Research Plans
• Who said:
• Dulce et decorum est, pro patria
more.
• Research Plan ONLY

37. Research Plan Factors
• Easy
• Quick
• Correct
• Authoritative
• Satisfactory
• Multi-Phasic
• Iterative
• Redundant

38. Threshold Question
•Legal
(Legal Fictions)
•Factual

39. Expecting the Unexpected:
Creativity in Research
• What are you looking for?
• Where should you look for it?
• Choosing the right concept

40. Research is a Process
• Constructing the Search
• Refining the Search
• Reviewing Results
• Iteration
• Thinking outside the box
• Getting help from others

41. 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)

42. – Financial
– Business/Employment
• Competitive Intelligence
• Human Resources
– Medical
– Hard Science
– Architectural/Engineering
– Statistical
– Social Science
– Biographical
– Opinion Leaders & Crowd-Sourcing
Factual Research

43. Research Mantras:
Legal Questions
•Legislative
•Executive
– Administrative!
•Judicial

44. Research Zen
– Jurisdiction
• International & Tribal
• Federal & State
• Local & Administrative – Police, Fire, EMT, Private
Hospital, DNR, DMV, Highway Patrol
– Quasi-Jurisdiction
• Non-Profits
e.g. Red Cross, National Center for Missing and
Exploited Children, Better Business Bureau,
Chamber of Commerce
• Criminal & Semi-Feudal

45. 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

46. Research Tools
Free 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

47. 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

48. Concept: Provenance
• Birth
• Tracing how things came to be what and
where they are
• Tracing causation through a complex
process
• Creation
• Ownership
• Custody
• Authoritativeness

49. Research Concepts:
Provenance
•Who created it?
•Who owns it?
•Who pays for it?
•Who cares about it?

50. 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?

51. Concept: Backward Chaining
• Research 101
• Bibliography
• Why this always disappoints…
The distance between insanity and genius is
measured only by success. – Bruce Fierstein

52. Concept: Forward Chaining
•Future Citation
•Labor Intensive
•Subscription Databases &
Invisible Web
e.g. Keycite, Shepards, Hein, Google Scholar

53. 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

54. Concept: Symbolic Logic
If – Then Statements & the Law
Syllogisms:
Socrates is a man.
All men are mortal.
Therefore, Socrates is mortal.
If A = B
and all B are C
Then A = C

55. Syllogism & Legal Analysis
God is love.
Love is blind.
Therefore, God is blind.
• Minor Premise
• Major Premise
• Conclusion
• Facts
• Law
• How Law Applies to Facts

56. 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…

57. DeMorgan’s Law:
Distributive Properties
not (A or B)=not A and not B
not (A and B)=not A or not B

58. 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

59. Federated Search
• Search across databases
– Segment Searching doesn’t work!
– e.g. Lexis:

63. Common Statutes’ Fields in WLN

64. 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

65. 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

66. 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

67. Known Unknowns
• Subscription Databases
membership 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

68. Research Process – Start to Finish
•Research Plan
•Research Log
•Initial Report
•Final Report for Client

69. 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?

70. 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

71. 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.

72. 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.

73. The Zen of Research
• Knowing when to stop
–Budget
–Time
–Staffing
–Cost-benefit analysis
• Recurrence of Information
• Completed Research Plans
• Living with uncertainty

74. Neal’s Mantra
Everything in life takes
longer and costs more than
you think it will.

75. 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