By: Emilie Menzel, Jane Bahnson

The advent of ChatGPT has left many faculty members uneasy with allowing student access to the internet while taking law exams and many are considering switching back to in-person timed exams. Considering the in-person administration of state bar exams, a switch back to the traditional methods may be a pedagogically sound choice, regardless of the new text writing programs. But what does this mean for open-book exams, and for the many students who have switched, at the urging of publishers, to e-casebooks?

Publishers offer a varying menu of formatting options for purchasing textbooks. Some students will prefer e-books solely for the convenience of transporting them. This is not insignificant, considering the sheer weight of a typical constitutional law, torts, civil procedure, or contracts casebook. Publishers of 1L casebooks such as Aspen Publishing, Foundation Press, and West Academic actively promote e-book editions of their casebooks, although older editions are often not available electronically. Format options can include connected e-book or connected e-book plus print, often with an extra charge for including the print copy.

For those opting to purchase electronic access only, it is important to understand the type of access being purchased. The digital preservation is another question, as this may limit long-term access. For example, Aspen’s Learning Library offers a collection of digital study aids through an institutional subscription, which can be accessed by students through an application of the same name. However, these files will only stay on a device for 120 days.

There are often limitations when it comes to downloading electronic casebooks, due to restrictions imposed by publishers and by copyright laws. Aspen’s Casebook Connect does not allow downloading by students and only 30% of the book can be printed. However, those books published by Aspen that can be purchased through the VitalSource eReader can be downloaded and accessed offline. CasebookPlus, the West Academic and Foundation Press e-book platform, allows titles to be downloaded, and it also comes with a print copy. If you opt out of the print copy, you can print up to 10 pages at a time. However, a “learning library” accompanying a purchase includes study aids that cannot be downloaded, and access expires after 12 months.

So, what should faculty members consider when assigning casebooks? If an open book exam is contemplated, assigning a book available through a platform that allows downloading and use offline will avoid problems for students who purchase e-books. At a minimum, students should be aware of the issue upfront before they purchase their course textbook so they can choose a format that can be used in an open book exam. If assigning an older casebook with electronic versions that have limited downloading options, consider asking colleagues or former students to loan spare print copies for the open book exam. Alternatively, when selecting a textbook, consider some of the free and low-cost casebooks available on a variety of legal topics, and choose ones that can be used offline or printed out for exam use: https://law.duke.edu/lib/faculty/course-materials/.

CRIV Vendor Liaison – Wolters Kluwer Semi-Annual Call

11/29/2022

Attending:       Jenna Ellis, Wolters Kluwer Liaison

                        Vani Ungapen, AALL Executive Director

                        Michelle Hook Dewey, AALL-CRIV Board Liaison

                        Jane Bahnson, AALL CRIV Wolters Kluwer Board Liaison

The meeting commenced at 3:00 pm. Jane has taken over as the new AALL CRIV Wolters Kluwer Board Liaison; all others are continuing on and we are looking forward to a productive year.

Updates from Wolters Kluwer

Jenna Ellis told us of new enhancements to VitalLaw.

One enhancement is the addition of Abortion Restrictions Jurisdictional Compare Smart Chart to the “Smart Chart” tool, which is a multi-jurisdictional comparison survey that includes laws, regulations, executive orders, and seminal cases. This new topic compares abortion rights and restrictions by topic, such as time and  insurance coverage restrictions, and across multiple jurisdictions.  Links provide full access to the underlying documents  and the chart format can be customized. This new smart chart is available to most subscriptions that include the related underlying publications.  

Another enhancement involves the expansion of research features available to everyone for the statutes and regulations database, which includes primary statutory and regulatory law at both the state and federal level. The search template now offers search by “document type” in addition to the jurisdiction, citation, and keyword options. There is also a “curated topic” option that will retrieve cross-jurisdictional results on a specific topic through a pre-designed Boolean search. For example, for the curated topic “cannabis,” there are six pre-designed searches that retrieve relevant laws and regulations on discrete subtopics. One such subtopic, “Medical Marijuana Cultivator Requirements” runs the search “cannabis w/5 medical AND cultivat*” and retrieves 1,021 cross-jurisdictional results.

Another feature, Next Generation Laws and Regulations, alerts users to updates or pending updates in laws and regulations. Researchers can use pre-search filters, curated topics, “show all future versions,” and other functions.  An orange flag identifies those laws under revision, and a redlining toggle in the upper right of the screen allows the reader to see what the changes are. New language is indicated in green type, while deleted language is shown in red type. These changes will remain for a few weeks after the changes take effect. There is no retained archive of older versions of the laws after this period has run.

Wolters Kluwer representatives can also provide training on the use of its products, including training for law schools in conjunction with upper level courses on topics such as tax and arbitration. Contact links are available on the VitalLaw home page.

Requests for Assistance

No formal requests for assistance were submitted, but one issue of concern was raised to a CRIV member regarding the receipt by individuals of Wolters Kluwer communications they no longer wish to receive. Wolters Kluwer acknowledges some who have opted out of communications may be on different lists and is taking steps to make sure the lists are updated.

Updates from AALL

The 2023 AALL conference will take place from July 15-18 at the Hynes Convention Center in Boston. The topic for the vendor round table has not yet been determined, but all expressed a preference for an in-person meeting if possible. The format will be decided when the date gets closer and will be influenced by health and environmental concerns as they exist at the time of the conference.

The meeting adjourned at 3:30.

Last week, Westlaw invited us to test drive Westlaw Precision a few months before the scheduled January general rollout. We are grateful for the head’s up. No instructor wants to be simultaneously learning how to use a research platform while teaching students how to use it. But it does once again present the problem of how to keep our students abreast of new technology while making sure they understand the role these products play in legal research, and this can be particularly tricky for students struggling with the nuances of jurisdiction and precedent and trying to remember what “F. Supp.” means. Do we take time out of our already material-dense classes to introduce these products to brand new researchers? If so, what materials do we omit?

In the March/April 2021 issue of AALL Spectrum, Mary Ann Neary and Sherry Xin Chen published a terrific article on introducing brief analysis tools to students, offering suggestions for how they might be introduced using exercises that illustrate the limitations inherent in the technology and their potential usefulness. Since that article was published, at least one of these products has disappeared (EVA, an ambitious open access product by now defunct Ross Intelligence), and others we don’t hear about much. By most accounts, these analyzers are most useful as a “self check” after the underlying research has been done and the work product is finished. They do not replace fundamental research tasks, but add a layer of review. This seems right, and if time and money permit, probably helpful. But do these belong in the 1L curriculum, and if so, how much time do we give?

With Westlaw Precision, we have yet another tool, and all signs indicate that when it is rolled out, it will be given center stage. We understand some law firms already have it. Although the topics covered so far don’t include the standard 1L curriculum, they do cover potential 1L appellate brief topics. I took it for a spin using an old topic, and while I have so far been unable to produce helpful search results, it was . . . fun. And now, there is yet another analytical product being rolled out, a Wolters Kluwer Securities Enforcement Analyzer. Many of our students are interested in working in the financial sector. Should this also be part of our instructional menu of analyzers?

As Neary and Chen correctly point out, our students will be subject to the duty of technology competence, and as research instructors we are on the front lines in helping students understand and use these tools. When and how to introduce which tools remain open questions. As research platforms become increasingly complex, we need to be nimble with our curriculum, but doing this without overwhelming our students is an ongoing challenge.

Ever wonder how you can leverage usage statistics to select materials for your collection based on what patrons are actually using? Meet Evidence-Based Acquisitions: here is how it works. You agree with a publisher on a “deposit”- essentially, the dollar amount you commit to the publisher. This amount is a negotiated percentage of the value of the collection as a whole, and there is a floor amount required. This “floor” amount is then adjusted, based on the dollar value of the available titles. After 11 months, you look at the usage statistics, and decide which materials you want to purchase. Unlike demand-driven purchasing, there is no automatic trigger- you aren’t forced to buy books accessed “x” amount of times- it is up to you. The money in the deposit is credited toward the list price of what you decide to keep, and those materials are yours to access, download, and loan. If you want additional materials beyond the value of your deposit, some publishers will offer a discount for those, others won’t.  

Here come the caveats. This system only works well if it is a publisher you will likely buy a lot from, but not everything. If you have a standing order with a publisher, this might be a good deal. Publishers can also decide to exclude some materials- think textbooks and encyclopedias- so it may not be as good as it looks. The “deposit” price is also negotiated annually, and it will increase as new content is added. And, what happens to those books patrons accessed during the trial period that you don’t end up purchasing? Voila- they may reappear during the next trial, and you re-gain temporary access—unless (or until) they are later excluded.

What’s in this for the publishers? They get a guaranteed purchase amount- certainty in this economy is nothing to sniff at- and a chance to create patron-driven demand for materials we may not have thought of buying. What’s in it for us? We get to try out a broad collection and buy what we want, with more information about how popular a title actually is before we commit. Usage statistics can indeed be eye-opening. We are currently using this program with two publishers, and for us, it is a fairly new venture. It takes a lot of time and attention to detail to make it work, so there is a significant degree of librarian effort involved. So far, we like it, but it may not work for every library. We welcome any information on others’ experience with this system. The more we know, the better informed our decisions.  

As the Open Courts Act of 2021 progresses along its hopeful path to passage, promising the end of exorbitant PACER fees, many of us in academia are wondering what this will mean for the docket access we currently purchase (or wish we could purchase) through vendors such as Bloomberg, Lexis, Westlaw, and/or Fastcase.  It’s worth it at this point to take a look back at where we’ve been, and forward to where we may be headed, and we are optimistic at the prospects.

PACER fees have been a long-standing headache for academics. The money generated in accessing electronic public court records provides the judiciary with a substantial revenue stream, with predicted PACER revenue for both fiscal years 2021 and 2022 of about 142 million, yet PACER itself lacks the enhancements commercial providers offer, like alerts. For academic institutions, the financial burden incurred by clinics and researchers who need to follow cases can be substantial and often prohibitive. When Bloomberg Law entered the legal research market in 2010, law school libraries breathed a sigh of relief as this new service provided unlimited access to PACER for academic accounts. Unfortunately, years later and in the face of mounting costs, this was walked back with dollar limits, returning many institutions to the dreaded “before” days of limited PACER access and looking for alternatives. Other platforms offer some forms of docket access, but not to the extent Bloomberg once provided, and academia is often charged large additional fees, if our academic accounts have docket access at all.

PACER fees have been the target of both creative solutions and lawsuits, with limited or yet-to be-seen success. Recap offers free access to PACER documents uploaded by users in a crowdsourced database, but access is limited to those documents others have sourced and included. The 2016 lawsuit filed by the National Consumer Law Center and the National Veterans Legal Services accusing the US Government of overcharging and misusing PACER fees achieved preliminary success in the DC Circuit but still churns on, although the end may be in sight. While this action has very recently (and tentatively) settled, we don’t yet know the terms, or what relief may be included for academic institutions. A status report is scheduled for January 20. We’ll see.

In the meantime, Congress is working hard on a legislative fix. In the 116^th Congress, the Open Courts Act of 2020 passed the House, and was sent to the Senate where it died in the Judiciary Committee, but not without garnering substantial support. That bill had only two sponsors, and it would have still allowed the charging of fees for “power users,” with the caveat that these fees “may not impair access to justice and the public right of access to court records,” nor “restrain innovation” or “inhibit not for profit research of the business of the Federal courts.” 

So, is relief finally coming? The current Open Courts Act of 2021 was introduced last August in the Senate by Republican Rob Portman with the bi-partisan support of 14 co-sponsors. This version would still allow fees against users who spend more than $25,000 a quarter, along with federal agencies, which will help fund a new case management system.  Although it has been reported favorably out of the Judiciary Committee, and an identical bill was re-introduced in the House last November, GovTrack only gives it a 13% chance of passage, and Lexis+ bill tracking also predicts the chance of passage as low. Perhaps these algorithms don’t read press releases or don’t factor in the bi-partisan support, the lack of any vocal opponents, or the ongoing legal disputes it would resolve, but plenty of us put the odds of passage much greater as this issue has gained wide traction.

Which leads us to ask our vendors, what will you do once PACER fees become free to the public? Will you allow academic institutions to subscribe to all of your docket alert and tracking services? Will the large added fees for docket access be waived, allowing our students to gain practice in researching dockets and thereby draw more customers to your product? Or, will this allow for the development of new and even more user-friendly docket search platforms?  As Bloomberg discovered, docket access can be a great magnet drawing users to your platforms. Once PACER fees are contained, or perhaps in anticipation thereof, we are anxiously awaiting the enhanced docket access the new year may bring.

We recently got an inadvertent peek behind the curtain of the process for evolving legal research database interfaces. Early this fall, working on research exercises for our incoming 1L students, we found ourselves cross-editing each other’s’ instructions for how to run a simple Lexis+ search. Why tell students to click on “content” when the label says “categories”? And why not just tell students the icon for editing looks like a pencil? Thanks to the screen sharing function on Zoom, we discovered we were simultaneously looking at different versions of the same interface, and after polling our colleagues, about half of us were on “team content” and the other on “team categories.” It turns out, we were unknowingly part of an “A/B” interface test:

This kind of testing is a common way for developers to compare two versions of a design and see how these variations change user behavior. Some companies use A/B testing quietly to see if subtle changes in font size, color, position or wording increase visits, clicks, or purchases. We reached out to Lexis, and learned from the product development team that this is standard practice, intended to test variables and improve user experience:

LexisNexis uses online experimentation or A/B testing to improve our products by evaluating potential changes before rolling those changes out to the entire user population.  For Law Schools we take steps to avoid disruptive testing during times of peak usage during the school year to minimize any challenge to your preparation and teaching of legal research with our products.

Bloomberg law also uses beta testing of its interface:

Bloomberg Law occasionally might engage in beta testing where we enlist specific firm/school accounts. We won’t do it with just random individual users, however. Users who participate in beta testing are enlisted by a Client Service Partner or someone from our Bloomberg Law team. Random users are not selected to participate in our testing.

We reached out to Westlaw, but we received no statement about interface testing by the time of this posting.

As a practical matter, the variations we saw were subtle and unlikely to cause confusion, and as of this afternoon, we are all on “team content.” We were never actually asked which term we preferred, so we can assume website metrics showed “content” must have gotten more clicks than “categories.” Legal researchers are constantly watching for and adjusting to changes in research database interfaces, as each new academic year our vendors seem to roll out yet another new menu of changes. Some changes are significant re-developments, while others, like the ones we discovered, are much more nuanced. A word to the wise for all legal instructors for the spring: even if you are not alerted to a major interface change, be sure to double check your screenshots.

Is there a place for document analytics products in the law school legal research curriculum?

Document analytics platforms have a big footprint on the legal tech landscape, and at least one is nudging its way into academia. Newcomer Kira https://kirasystems.com/  is offering a “Kira for Education” initiative to some in the academic community. Kira provides a machine-learning platform that identifies, extracts, and analyzes language in documents the user can drag and drop into a template. Kira also offers a customizable search tool that allows users to highlight sample document language and create their own custom platform. Kira can search documents written in other Latin-based languages, including English, French, and Spanish.   Contract analytics products have been on the market for years, although these products don’t typically target law schools.  LawGeex, LinkSquares, Contract Wrangler, Affinitext, IntelAgree, and Docusign are just a few of the many contract analytic products currently available.

Some academic research platforms currently provide access to programs that can assist with contract drafting. Lexis Practical Guidance offers “Smart Forms” that include sample customizable forms for various industries and in numerous jurisdictions. These forms contain drafting note advice that alert the user to specific legal issues when incorporating certain language. Bloomberg Law’s Draft Analyzer allows the user to upload a contract and will compare clauses in that contract to other similar contract language within its database.  Bloomberg is currently beta testing an analyzer for merger agreements.  Westlaw offers “Contract Express,” but this product is not included in academic accounts.

Even with an already crowded legal research curriculum, it may be time to consider the best way to expose our students to these increasingly popular products. It would also be great to hear from our colleagues in law firms about which of these products seem to be getting the most traction, so that we can better prepare our students for practice.

A recent survey from the ABA shows that law firms remain slow to adopt AI products. https://tinyurl.com/ABATechSurveyArticle  In fact, just 7% of respondents reported they use AI tech tools, with questions about accuracy and the cost offered as the primary reasons for the slow uptake. Since the survey was conducted in the initial months of the pandemic, this might come as a surprise. As we all spend our days on Zoom, technology adoption has been at the forefront of efforts to increase productivity while decreasing the need for personal interaction. However, the fundamental problem with many of the newer AI legal research tools is that they do not yet replace any necessary steps in the legal research process. Why incur the cost of these programs and invest in learning them without any consistent benefit, particularly at a time when firms are looking to cut costs?

AI products leave us in a conundrum in the research teaching community. As a group of early adopters when it comes to legal tech, we have been disappointed at the lack of transparency when it comes to understanding the search algorithms or the opportunity to experiment with some of these products. There is also often aggressive marketing directly to our students, who don’t understand these products either and come to us for guidance. We want to keep our students abreast of the latest technology that can help them in their legal careers. However, it is hard to teach students about a product we don’t understand.

Legal analytics products (for example, those products that correlate rulings and motion success rates), on the other hand, seem to be getting better law firm traction. However, even analytics products can give uneven results. A recent ABA article highlighted a study by law librarians at two large firms comparing search results between analytics platforms, and discovered wide variations in response to simple research commands. https://tinyurl.com/yyffw7jv . The authors’ takeaway was a familiar one: vendors must provide transparency, training and guidance on the use of their products.

Simplicity may be the key to longevity for all of these products, an idea underscored by a recent story in Legaltech news from Law.com, which describes law firm reluctance to give up Excel for more complicated management products https://tinyurl.com/y562hsvv .  Products marketed with transparency in their database content and search algorithms may ultimately win the day. Such products are easier to teach and inspire confidence in their results.  In this time of Covid-19, when we are all starting to feel tech fatigue, there may be a message here for our vendors. Remember the well-worn acronym, KISS (keep it simple, silly).