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Why Lexis and Westlaw Should NOT be Like Google

For the first time, I had a student write in my Advanced Legal Research class that they wished that Lexis and Westlaw could be more like Google. I had heard other librarians moan about this but had just not run across it til now. It really gave me pause to have it in hand. And it made me think, it challenged me. Why should this student not get her wish? If I sat down with this young woman and had a conversation, what would I say about why I disagreed? There must be more than just a knee-jerk revulsion against the transformation. What would be my reasoned argument to her?

I. Google flattens the world of information

When Google retrieves things from the Web, it does not distinguish what kind of information it is bringing back or what kind of source it is retrieving it from. For lawyers, this is disastrous. As a lawyer, you must care a great deal whether you are retrieving a statute or a piece of an article or a blog entry, or a case or a headnote. Some of these items are actually primary law (statutes and cases), which carry legal authority, and can be relied on in court. Others are secondary authority and will help you locate and interpret the primary authority (pretty much everything except the blog entry probably, and possibly even that). And some of it is merely commentary, and not reliable enough, probably to do secondary resource job. I am beginning to see occasional students who do not distinguish between these various resources, and now begin to see why. If they simply rely on Google to bring it, and learn not to care what "it" is, what a very dangerous habit for lawyers!

Students already seem to have trouble distinguishing between statutes and regulations on a pretty common basis. They need to have this explained, sometimes, even after taking an Administrative Law class. Perhaps they are merely being sloppy with terminology, but that is rather dangerous in itself. For that carelessness to extend to the whole world of information, bodes very badly indeed! This is not just a fussy librarian speaking. They will lose jobs; they will lose in court; they will lose clients; they will be disgraced.

II. While the goal of Google is to save you work, intellectual work is what lawyering is about, and what distinguishes the lawyer from the paralegal.

Already, searching on Lexis and Westlaw has done some interesting and perhaps deleterious things to legal analysis. I suspect that young lawyers and law students may be often relying on the cases found to do the legal analysis for them, rather than doing their own original thinking, or pre-analyzing the case. There seems to be growing weakness in analysis, and if it is not taught affirmatively in law school or some other part of training a lawyer for practice, many lawyers simply will not know how to do careful and creative analysis.

For instance, my students had not generalized the skills of reasoning by analogy or making policy arguments in cases where they could not find precedent in their jurisdiction. I am sure they had read cases in textbooks for other classes that did both, but they had never thought about doing that themselves! We had to talk through about how they what would they do, if they could not find cases on point in their jurisdiction. They certainly came up with persuasive authority -- bringing in cases from other jurisdictions. But nothing else at all came to mind.

If you are not prepared to do careful, precise thinking, the life of the law is not for you. If your ideal is to have Google or some other AI genie do your thinking, you are not cut out for lawyering. Not now, and not ever. Even if there ever is a true AI, a profession means that the human is taking a higher level of responsibility, and a higher level of expertise. For lawyers, the expertise is THINKING, ANALYSIS. We don't KNOW the law so much as know how to THINK ABOUT the law.

Full post as published by Out of the Jungle on October 30, 2009 (boomark / email).