Print v. Electronic 576 U.S. 280 (2015)
By Anthony Aycock
The biblical book of Ecclesiastes says, “To every thing there is a season, and a time to every purpose under the heaven.” It proceeds with a series of pairings: “a time to be born, and a time to die”; “a time to kill, and a time to heal.” To this, we might add: a time to use print, and a time for online.
Print versus electronic is the biggest battle every law librarian has to fight. Attorneys, judges, and paralegals will ask constantly why they need all those books when “everything is online.” Good question. You need a good answer, and it’s not just to keep your library from being balkanized and turned into offices, a copier room, or a Starbucks kiosk.
You are a law librarian. Your job is to find the right information for the right person, fast. At your disposal are books, commercial databases, and the internet. What do these resources include? And when should you use which?
Legal materials are divided into two categories: primary sources and secondary sources. Primary sources are what most people mean by “the law.” They are the statutes, cases, and regulations created and enforced by local, state, and federal governmental bodies.
Statutes are legislation enacted by an elected body—i.e., the U.S. Congress or a state legislature. A collection of a governing body’s statutes is called a code. Codes are available in print in annotated or unannotated versions. An annotated code includes more than the statutes. It also includes notes on the development of the statute, cases that interpret the statute, regulations authorized by the statute, and references to journal articles, books, and other sources on the same subject. These notes are invaluable to researchers because they direct them to other relevant material.
Cases, also called opinions or decisions, are written rulings issued by courts on specific disputes. Judges are bound in their rulings by how similar cases in the same jurisdiction were decided in the past; this is called precedent. Cases may be published or unpublished, and if you have watched TV shows such as Law & Order or Criminal Minds (especially scenes in Hotchner’s office—he used to be a federal prosecutor), then you have seen books of published cases, called reporters. They are tan hardcover volumes whose spines have black and red horizontal stripes.
Regulations are passed by state or federal administrative agencies, which are authorized by statutes to oversee day-to-day matters in specific areas of society. These regs, as they are called, are published in collections with titles such as the Code of Federal Regulations. Federal agencies ultimately report to the president, while state agencies report to the governor. These agencies touch nearly everything we do as citizens. For example, as a North Carolina resident, I pay employment taxes to the IRS and the North Carolina Department of Revenue, have money withheld by the Social Security Administration, get my driver’s license from the North Carolina DMV, drive on bridges designed by the U.S. Army Corps of Engineers, vacation in parks whose resources are managed by the North Carolina Wildlife Resources Commission, ride in elevators inspected by the N.C. Department of Labor, fly in planes regulated by the Federal Aviation Administration, send packages through the U.S. Postal Service, and drift to sleep on a mattress bearing a tag required by the Consumer Product Safety Commission.
Secondary sources are materials that discuss, explain, analyze, and critique the law. They are resources about the law, not the law itself. They include journal articles, legal newsletters, treatises (i.e., in-depth, often multivolume works on an area of law), legal encyclopedias, practice guides, and other publications.
Statutes, cases, and regulations all have citations that make them easy enough to look up, either in a print volume or with a commercial database. Often, however, researchers need background information on an area of law or they need help identifying a relevant case or statute to look up. For this, they may turn to secondary sources, which are easier to use in print due to their topical indexes and subject arrangement.
Some treatises and encyclopedias are so familiar to legal work that attorneys often refer to them with abbreviations or just the author’s last name—e.g., Wright and Miller, Bluebook, CJS, Robinson, or WFPD (these are, respectively, Federal Practice and Procedure, whose original authors are Charles Alan Wright and Arthur Miller; The Bluebook: A Uniform System of Citation; Corpus Juris Secundum; Robinson on North Carolina Corporation Law; and West’s Federal Practice Digest).
Using the Internet
You can use the internet to find most primary sources and a lot of secondary ones in full text. As a law librarian, you will use Westlaw or LexisNexis, the two biggest legal databases, for 85% to 90% of your electronic research. Databases, of course, are quicker to use, returning results in seconds with a keyword search. They also have the advantage of including a lot—but not all—of the information needed for a full print library without taking up shelf space. Westlaw and LexisNexis both offer, among other things:
- All U.S. and state case law ever published (and quite a few unpublished cases)
- Current U.S. and state statutes (older statutes go back about 10 years, although this varies by state)
- Select U.S. and state court filings
- Thousands of newspaper, magazine, and law and non-law scholarly articles
- Full-text treatises (titles differ by provider, depending on who publishes the print versions)
- Select case law and statutes from other countries (sources differ by provider)
As with any subject, there are thousands of websites, online research guides, and blogs devoted to law. Some are excellent, and some are execrable, although even the excellent ones are inferior to commercial databases. Essentially, free websites are good for overviews of legal topics, but they are short on primary documents such as cases and statutes. These sites are intended mostly for laypeople, not for practicing attorneys. The following are a few of the excellent ones:
- FindLaw (findlaw.com)—This resource has both a consumer and a professional portal. The professional site is rich in how-to articles on law firm marketing, billing and finance, technology, careers, and other concerns. Case law seems to go back to the mid-1990s except for the U.S. Supreme Court, which starts in 1760. The U.S. Code is there, as are statutes for some of the 50 states.
- HG.org (hg.org)—Similar to FindLaw, this site has lots of news and practical advice for working attorneys. Both are also marketplaces for lawyer support services and professional organizations. Two things distinguish HG.org. One is its research guides, which cover 260 areas of law, some very specialized (e.g., cellphone accidents, equine law, and prostitution law). The other is its international coverage: 195 countries, plus the United Nations, NAFTA, the World Bank, and others.
- WashLaw (washlaw.edu)—Maintained by librarians at the Kansas-based Washburn University School of Law Library, WashLaw has better state coverage than other sites. Clicking on California, for example, serves up statutes and administrative regs, trial and appellate courts, administrative boards and state commissions, executive departments, law libraries, civil and criminal jury instructions, and state and federal court forms.
- Zimmerman’s Research Guide (law.lexisnexis.com/infopro/zimmermans)—A law librarian named Andrew Zimmerman started this site in 1999 and has maintained it ever since. Basically, it is an encyclopedia of legal terms, but from a law librarian perspective. For example, if you click on Attorney General Opinions, you don’t get a definition of this term; you get a list of places where you can find these opinions. The guide is your cheat sheet when attorneys ask for things that are second-nature to them but are a mystery to you.
When to Use Print Sources
You are likely to need a print source for the following situations:
- You are researching an unfamiliar area of law. This is too difficult with keyword searches.
- You are researching complex concepts or legal theories. Print is quicker and cheaper than databases.
- Your research involves commonplace terms, ambiguous words, or words with many synonyms. This is better done with a topical index.
- Your area of law is more commonly known by an informal term—consider “lemon law.” Most people know this term. It means that, if you buy a car from a dealership, and that car falls apart, the dealership has to give you a new one. North Carolina, like many states, has a lemon law statute, but it does not include the phrase “lemon law.” Thus, you won’t find it using a keyword search. The index to the print statutes, however, has an entry for “lemon law” that leads to the correct citation. Indexes are prepared by humans, and a human knows that using the phrase “lemon law” is how other humans are likely to look for that information.
- You need historical materials. This is one of the most glaring shortcomings of commercial databases. I was once asked for a 1924 U.S. Senate report, and I had to get it from a print source because it wasn’t on Westlaw or LexisNexis. Government sources published before 1990 are generally available only in print.
When to Use Databases
I may seem to have a print bias, but I use databases every day as a law librarian. Nothing beats them for speed, availability (if someone else is using the print volume you need, you’re stuck), and precision. I recommend databases in the following situations:
- If you want to retrieve a document by citation—You will have a citation for at least 70% of your requests, and it is easier to plug that into a database than to shuffle to the right section of books, slide out the right volume, paw through it to get to the correct page, lay the book on the copier platen, press the copy button, clear a paper jam, press the button again, reshelve the book, and deliver the copied pages to the attorney, who had made his request sound urgent but takes the pages from you, drops them on his desk with a muttered “Thanks,” and continues playing Spider Solitaire.
- If you need a case that uses an exact phrase—Suppose an attorney has a Nevada case in which the judge writes some specific language into the ruling. She may want to know whether there is a South Carolina case with similar language. This would take hours with a print index because you need more than the same subject; you need the same wording. A few keyword searches, however, will answer the question.
- If you are researching an emerging area of law (e.g., same-sex marriage rights)
- If you need a cross-jurisdictional search—It is easier to search one database of all 50 states’ case law than to look up the same topic in every state’s case reporters.
- If you need an unpublished case—These are cases that are not selected by the clerk of court to appear in that state’s official case reporter. They are not indexed in any way, so having access to a cache of them in print (which are available only at the courthouse in little pamphlets called slip opinions) would be useless. A few keyword searches, however, could pull one right up.
Another consideration in print versus electronic is cost. Print books and journals represent a fixed cost; they are not priced on usage. You buy books, and whether they sit unused for years or are thumbed through every day, you pay the same amount. Most databases don’t work that way. They are priced on estimated usage, and most vendors reserve the right to increase that cost if actual usage greatly exceeds the estimate.
To defray database costs, thereby increasing profit, law firms pass some of them along to their clients (just as they pass along travel, telephone, copier, and other administrative costs). Westlaw and LexisNexis have built-in features to enable this pass-through, and for other products, there are cost recovery programs such as Onelog (onelog.com) or LookUp Precision (lucidea.com/lookup-precision), which sit on top of the databases and prompt a user to enter a client billing number before proceeding. The programs then track the user’s time on that database. They also work with free websites.
The advantage of cost recovery software is clear. When it is time to renew the database, you can renegotiate based on actual usage data, not hypotheticals. You can also show the senior partner who claims, “But I use that database all the time,” that, in fact, she has not used it all year, giving you leverage in cancellation discussions.
Too often, attorneys—and more than a few librarians—approach the question of print versus electronic in absolute terms. Those who favor print think technology peaked with the invention of movable type, while Millennials polemicize on Tumblr about stuck-in-the-past bibliophiles. But it shouldn’t be that way. Each method has strengths and weaknesses. The role of the law librarian is to know which method works best in each circumstance and to communicate that knowledge to library patrons.