Sunday, March 08, 2009

Harvard Journal of Law & Technology publishes article with obvious mistake about electronic access to military justice appellate opinions

The Harvard Journal of Law & Technology, which likes to go by the jaunty nickname JOLT, recently published this article. Katrina Fischer Kuh, Electronically Manufactured Law, 22 Harv. J.L. & Tech. 223 (2008). The article's thesis is that cognitive psychology principles suggest that conducting legal research electronically (i.e., using WESTLAW or LEXIS) will produce greater diversity in issue framing than will print-based legal research (i.e., principally using West's Digests) and that lawyers using electronic-based legal research media will unwittingly advance more meritless claims than will lawyers using print-based legal research media. Professor Kuh ably makes the case for these two conclusions and wins bonus points for quoting a metaphor based on Raiders of the Lost Ark. Id. at 266.

But the article starts out with an extraneous observation that includes an embarrassing error. Professor Kuh writes:

The recent furor following Kennedy v. Louisiana over the Supreme Court's failure to discover that the Uniform Code of Military Justice authorizes the death penalty for child rape underscores law's entanglement with the electronic medium. This oversight by litigants and the Court alike suggests a pitfall of electronic research. Researchers may have become dependent on the seemingly-inclusive "All Federal Cases" database; however, military cases do not appear in this database.
Id. at 224 (internal footnotes omitted).

"All Federal Cases" is, of course, a WESTLAW database abbreviated as ALLFEDS which DOES include military appellate cases. In fact, if you were to do a search for "Kennedy v. Louisiana" in the ALLFEDS database, one of the cases you would find is United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 209). And if you were to click on the information button next to the ALLFEDS database identifier, you would see that it includes cases from both West's Military Justice Reporter and the Lawyer Co-op's Court-Martial Reports. LEXIS's counterpart database, "Federal Cases, Combined," also includes military justice appellate opinions.

Aside from the obvious factual error that would have been discovered during the most basic fact-check, it isn't clear to me why the article is even talking about ALLFEDS when what the Supreme Court overlooked was a federal statute, not a military justice opinion. While there are a handful of military justice appellate opinions that mention the National Defense Authorization Act for Fiscal Year 2006, I would think that a search of a federal statutory database would be more relevant for present purposes than is a search of a federal case law database. And, of course, the federal statutory databases include the laws establishing and governing the military justice system.

So an article about electronic research includes an obvious error about the contents of a WESTLAW database in the first page of its text. Not a good start.

Which raises the question, what were the JOLT editors doing? Law is one of the few disciplines where the bulk of its journals are edited by students. In most other academic disciplines, the norm is peer-reviewed journals. The law's reliance on student edited journals is controversial. Among the critics of the student-edited journal is no less a legal luminary than Judge Posner (writing in a student-edited law review, of course). Richard A. Posner, The Future of the Student-Edited-Edited Law Review, 47 Stan. L. Rev. 1131, 1136 (1995). Two of the principal arguments advanced for letting students rather than, say, law professors serve as the gatekeepers of academic publications about the law are that journals serve an important educational function for those who serve on them and that published articles are more accurate a a result of the effort expended by a huge workforce of volunteer student labor dedicated to ensuring that every utterance in a student-edited law journal is correct. What happened here?


Anonymous said...

1. Everyone makes mistakes.

2. The fact is that darn few military opinions are listed in either lexis or westlaw.

3. With the exception of a few old time profs about to retire, law schools pride themselves on having nothing to do with the evil baby killing military. Part of having nothing to do with the mil is not knowing anything about it (other than that the US military is the world's foremost baby killing/rape/murder/evil/gay-bashing...)

4. Not only would having profs edit the journals not improve military accuracy, but things would be even more biased against the .mil

Cloudesley Shovell said...

Notwithstanding the glaring factual error, I'll wager that every citation and footnote is in absolute strict conformity with the Bluebook!

Anonymous said...

One thing electronic research hasn't changed: what Yale-qualified professors write in Harvard Law Journals is the truth for purposes of our profession and will be cited many more times than any "factually accurate" rebuke.

Bridget Wilson said...

Since most of you have free access to the military opinions, the issue may have not hit your radar before. I get plenty of military law on Lexis, I just have to pay a substantial sum every month.

Phil Cave said...

$174.00 per months is a substantial amount?
Check back with Lexis on their military "module," if you are paying more than that. And yes, I realize everything is relative. You also get DOHA and MSPB and EEOC cases in that module.