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Things We Take for Granted

By Rob Heverly

It used to be that when you wanted to find a law review article, you looked it up in the Index to Legal Periodicals, and then you went to the shelf, found the volume, and read or photo-copied it. Today, you might first Google it, to see if there is a free version online, and if not, if you have LEXIS/Westlaw/HeinOnline/JSTOR access, you might go and search there. If I don't know what article I want (ie, if I need to search by keyword or title), I'll use Lexis or Westlaw first (as they I find their search interfaces to be more efficient), but then if I find an article I want to assign to my students, I'll link to the JSTOR or HeinOnline version because I like the layout better than the text based versions found in Lexis or Westlaw.

This morning I was looking for an additional piece to assign to my Property Theory class on anticommons theory. I wanted something that not only allowed me to further explore anticommons theory, but that would also introduce a new theoretical construct to the students (in this case, the explicit notion of private ordering). I chose Kieff and Parades, Engineering a Deal: Toward a Private Ordering Solution to the Anticommons Problem. I found it in my search results on Lexis (though I had read it before, it didn't come to mind when I was trying to decide what to add as the final piece of reading for this section).

The Lexis page looked like this (click on it to increase the size):

Citation: 47 B.C. L. Rev. 111, January 2007. I went to HeinOnline and looked up Boston College Law Review volume 47. There was no article that started on page 111. I looked again. The HeinOnline database shows that volume 47 is for years 2005-2006, and that volume 48 is for years 2006-2007. I checked volume 48, and there it was, properly listed for page 111 (click image for larger version):

Citation: 48 B.C.L. Rev. 111 (2007).

So, which is it? What is the "authoritative" way to find the citation? I went to the Boston College Law Review page and found this (click for larger version):

For those who dislike Roman numerals, XLVIII translates to 48. What I would then think of as the definitive source, the publication itself, tells us that 48 is the right number (I was pretty convinced of this from the HeinOnline site, which uses page scans, but wanted to check just to be sure).

If this had been for research and not for class, I might not have used the scanned version from JSTOR or  HeinOnline, especially if I wasn't going to print the piece in question. Format doesn't matter to me as much in that case, I just need quick access to the data. I might have used the wrong citation for this piece, and if the law review where my piece was going to be published also used Lexis to check cites, then it would have gone into print that way. And none of us would have had reason to doubt the citation. That is, until someone called it into question because they couldn't find the publication as listed.

I'm not sure what the upshot of this is; I was surprised more than anything else (not shocked, mind you, just surprised). It's an error, for sure, and a clear one at that, but not one that would have caused any loss of life, so I don't want to dramatize it. Do we just overlook it? Do we now need to use both Lexis and Westlaw, or go to the actual volume of a law review, to check on citations? Thoughts or responses much appreciated.

Full post as published by The Faculty Lounge on September 27, 2009 (boomark / email).