Research instruction is marginalized and splintered at most law schools as it is. If law librarians -- the most qualified research instructors within any law school -- are part of a required 1L research curriculum, the length of that instruction is often brief. At Loyola Law School, for example, we have five weeks in the fall semester to cover the basics. At other schools, librarians might play no role. Instead, a legal writing program might rely on second-year students to teach the material. At the far end of the spectrum, some schools have no required research curriculum, offering only advanced research electives. Regardless of these requirements, electronic research instruction is often farmed out to vendor representatives, with Westlaw reps teaching Westlaw and Lexis reps teaching Lexis. The reliability of rep training varies, and a common complaint among librarians is that these reps emphasize full-text searching of primary law at the expense of secondary sources and other analytical materials. This leads to a somewhat disjointed program of instruction, even without the ground shifting beneath us.
When using the current versions of Westlaw and Lexis, a researcher needs to know exactly where relevant information is located before running a search. Therefore, when searching for primary law, she has to already know if she's looking for cases or statutes or regulations or some other type of document. In a familiar area of law, that's not a big hurdle, but when researching a new topic, the first task in research is often figuring out what type of law governs. Only then can the researcher move on to primary materials.
Using WestlawNext, however, a researcher no longer needs to select a source database before running a search. Instead, searches are most often limited only by jurisdiction, using a pop-up page overlay (NOT a pop-up browser window/tab) that allows precise selection of both state and federal jurisdictions. Then, upon running a search, the system provides results from all types of sources -- primary and secondary -- in that jurisdiction: cases, statutes, regulations, secondary sources, briefs, etc. The overview page shows just the first one or two results in each category, but the left sidebar of the page lists all the types of documents available with a count of the number of results in each of these facets. To see complete results for a particular type of resource, a researcher need only click the link for that category. When viewing these faceted results, more limiting options appear in the sidebar, such as jurisdiction, date, topic, and publication name depending on the type of materials being viewed.
Generally speaking, WestlawNext eliminates the need for researchers to know where to look for legal documents before running their searches. Don't know whether your clients' issue involves statutory or regulatory law? Just run the search and find out from the results.
To be fair, the current version of Westlaw already allows researchers to search multiple databases simultaneously, but the implementation is poor. Selecting the databases you want is a tedious process, the results display in one lump-sum list of results with no limiting facets, and basic functionality like tables of contents are nowhere to be found when viewing documents from your results. These problems are all dealbreakers, and they are corrected in WestlawNext.
While the relevant sources of law can be gleaned more easily from search results, it presents a challenge to legal research instructors. As legal professionals who have used the old systems (and print resources) for years, we already understand what the various sources of law are and how they work together. To even use Westlaw and Lexis, law students needed to learn this foundation. With WestlawNext (and most likely "New Lexis") providing Google-esque search with faceted results, students can and will run searches without an understanding of legal sources and yet not feel confused by the results. Well, not at first.
Given this likelihood, research instructors will have to provide a solid overview of the sources of law to their students. Hopefully, we already do this. But until now we could rely on Westlaw's database selection requirement to force students into learning at least a little bit about these sources before running a search that provided meaningful results. Not anymore. A student need not understand anything about sources in order to retrieve a wide swath of relevant material, and many will have the illusory feeling that the research process has been simplified enough to eliminate any need for foundational training. After all, if the fact pattern mentions "unlawful sexual intercourse" and "California" (yes, I used a Roman Polanski hypothetical in my class), a student can search those terms and retrieve a California case that seems to be on point and perhaps believe they've performed due diligence. Of course, the governing law might actually be statutory. Or there might be an split among appellate courts in California on the specific issue. Or a higher court may have decided an issue a little closer to the one in the fact pattern, making the case in hand irrelevant.
This isn't a criticism of WestlawNext. Assuming one understands sources of law, the search experience in WLN is more efficient and more likely to provide relevant materials in results. From a single search a researcher can pull in a wide array of materials and browse them easily using the provided facets. A lawyer unfamiliar with California real estate law need not know of the existence of "Miller & Starr California Real Estate" ahead of time in order to easily find that source's information in WestlawNext.
Foundational source issues are already covered in legal research instruction. The problem isn't that we don't teach them. The problem is that students might be less likely to listen once research begins to seem deceptively easy. This makes it all the more important for us to spend substantial time on instruction and assignments that cover the sources of law, independent of the specific research tools and mechanics. The good news is that if the WestlawNext interface is the future of legal research, we'll be able to spend less time in the classroom teaching Westlaw and Lexis navigation, providing extra time for foundational information.
Just because one can search an entire jurisdiction's worth of material doesn't mean that Thomson-Reuters Legal has eliminated the ability to browse and search more specific information. The currently buried Westlaw Directory once again moves front and center in WestlawNext (albeit in a redesigned form). Rather than running a search from the front page, a researcher can browse via simplified tabs on the front page (which thankfully contain no search boxes or checkboxes). From the "State Materials" tab, if a researcher selects California, a clean list of California materials displays, and the search box at the top of the page now limits itself to just a search of California materials. Clicking "All California Secondary Sources" displays a list of state-specific secondary sources and a search box that now searches only these resources. Selecting a specific source, say "California Jurisprudence," displays the table of contents for that source and allows searching of only that title.
It's been said elsewhere, but it bears repeating: Boolean search still functions. Given that many doubters have yet to acknowledge any of my colleagues' statements on this topic, let me repeat that: Boolean search still functions. There may still be some glitches here and there in that functionality, but Thomson-Reuters Legal has made it clear they intend for those operators to work as expected in WestlawNext.
WestlawNext is not without its problems, however, and the biggest concern I have is a big one for legal research instruction: secondary sources. No matter how many times instructors tell students to begin research with a secondary source, many students will still insist on running full-text searches of cases and statutory codes. (I was one of them.) Part of the blame lies at the feet of database reps who consistently overemphasize full-text searching of primary law in their training sessions, but anytime you ask students to find a case, the logical inclination is to, well, search cases.
I won't quibble with the order of the search facets in WestlawNext. Cases, statutes and other primary materials do belong at the top of the food chain because that's what lawyers and law students should be citing as precedent. The problem is how the results within the secondary sources facet display. In these results, very little specific information about each source displays. Most of the time what a researcher sees is the title of the specific section, the title of the source, and a couple of text snippets in which the search terms are highlighted. Little to no information about where within that source the section appears shows in these results. For example, when a section of Witkin and Epstein's California Criminal Law title simply "Generally" appears, that's the extent of the citation information displayed. The precise article within Witkin & Epstein in which this section appears is nowhere to be found, so researchers won't know until viewing the document itself whether it's from an article about sex crimes, robbery or murder. The threaded information available in search results for statutory sections (Title, Chapter, Subpart, etc.) needs to be included in secondary sources as well, or else the results are confusing at best and unusable at worst.
The search algorithms for secondary sources are also problematic. When I select California as my jurisdiction, if there are California-specific resources available on my topic, those need to show up first in my results. Period. When I ran a search for the term "rape," the first 12 results were from "National" sources such as Am.Jur. Trials, Am.Jur. Proof of Facts, and several law reviews. More alarming, none of these were general overviews of rape law, but instead provided information on specific aspects of rape law in various jurisdictions. I discussed this problem with Mike Dahn, vice president of new product development at Thomson Reuters Legal, he assured me that this was not by design and that they were working to make sure jurisdiction-specific resources for a user's selected jurisdiction float to the top of search results, but as of now this isn't working correctly.
Apart from these concerns, I'm still excited by the overall direction of WestlawNext. This really is a significant step forward in electronic research. I hesitate to call WestlawNext a "game-changer" because I think the game changed for all online search providers awhile back. Westlaw and Lexis are simply catching up, finally pushing legal search into the 21st century.
One final thing to note about the progress made here by Thomson Reuters (and presumably by LexisNexis later this year) is that it furthers the gap between the haves and have-nots in legal information. Once these new products are pushed out to law students, the more comfortable they become searching jurisdictions instead of sources, the harder it will be for them to use source-oriented tools (especially print materials). Again, this presents a challenge for those of us who teach legal research to make sure we provide them the foundation necessary to perform research on any platform.
I'm hardly the only person writing about WestlawNext this week. Here's a list of the reviews already in circulation:
Robert Ambrogi, A First Look at WestlawNext
David Bilinski, Dave’s Top 10 List about WestlawNext
Laura Bergus, WestlawNext: It’s About Time
Simon Chester, The Future of WestLaw – A First Glimpse
Jason Eiseman, 5 random thoughts about WestlawNext
Carolyn Elefant, My Trip Out [to] West: A Preview of WestlawNext
Greg Lambert, WestlawNext - A Study in Applying Knowledge Management & Crowdsourcing
Betsy McKenzie, Westlaw Next
Lisa Solomon, WestlawNext Preview: Product and Pricing
Jason Wilson, WestlawNext Review: Ending the tyranny of the keyword?
And of course, be sure to check out Jason Eiseman's video roundtable with Greg Lambert, Jason Wilson and me:
Video: discussion of WestlawNext