By Madeline Hebert & Vivica Pierre
May 1, 2003

This is part one of a two-part paper, with the second part continuing to plumb the depths of Louisiana Legal Material & Digital Directories and Databases, and Copyright.

At the onset, we tell you quite confidently that you cannot get “everything” from the Internet, nor will you ever be able to get all information online. The information world simply does not work without major trade-offs. Quality is a major trade-off that one should consider before leaping to an Internet web site for legal research. Authenticity is another trade-off to consider carefully. Currency is important, but weigh carefully whether you need the latest, greatest news stories, or does the research call for reliable historical information? Verification also should be given strong consideration. Should you trade off the ability to verify the accuracy of information displayed on screen presented as evidence or facts, in favor of convenience? Increasingly, statistics and analysis play an important role in research. Where can you get authentic online statistics that you can trust?
All of these questions go into answering another question: are you information literate? Nowadays information literacy in legal research requires not only skills when performing research in using a combination of print and non-print resources, but also when using the Internet and online databases, such as Westlaw and Lexis Nexis. You are information literate if:
Standard 1: You know how to access information efficiently and effectively.
Standard 2: You know how to evaluate information critically and competently.
Standard 3: You know how to use information legally and ethically.
One motivation for publishing this article is to dispel the myth that the Internet is some kind of miracle, or will work miracles for you. According to the ABA’s 2001 Legal Technology Survey, print and proprietary online research tools like Lexis Nexis and Westlaw are still lawyers’ most commonly used resources. The survey deduced that only eight percent of lawyers used the Internet in research when trying to reach a settlement or jury verdict. A full 61 percent surveyed said they relied on books, while 28 percent relied on fee-based Internet services or databases. (ABA Journal, March 2003). In reality, the web has not yet grown in demand enough to displace (or even come close to supplanting) Westlaw and Lexis Nexis, or even print materials, as a primary legal research tool.
We cannot say that lawyers are reluctant to spend their research time online because it can be a waste of time and difficult to explain this expense to clients. Nor can we conclude that many lawyers simply have not had a law librarian guide them through the process of pre-planning search strategies to help increase precision and relevancy of the information retrieved before going online. Morehead, citing from Dr. Paul Resnick, Chairman of the Platform for Internet Content Selection wrote, “The Internet is made of information, and nobody knows more about how to order information than librarians, who have been pondering that problem for thousands of years.”
As in Titanic (the movie), we have seen the iceberg in the water and for those who have not seen it yet, we assure you the iceberg exists. The iceberg we have seen,
of course is online directories, controlled vocabularies and indexes that do not provide access to all legal information and materials available on the Internet, such as directories that fail to provide links from common law to civil law terms.
For example, what if business and economic interests cannot access Louisiana documents, including statutes or administrative regulations, conveniently and expeditiously? Most will try and then give up due to confusion. Many others will choose to avoid Louisiana markets altogether. So, although we aren’t actually talking about real icebergs and ships, the effects of failing to create comprehensive online directories as well as controlled vocabulary, indexes and keywords that hyperlink to Louisiana legal materials could certainly sink business and economic opportunities for the state.
Louisiana has created web sites, but take a look at them. Most are online advertisements about services. If you know what you are looking for, you can find it sooner or later. But most lawyers from outside the state and company administrators do not know that much about Louisiana. Even Louisiana lawyers have difficulties finding certain Louisiana documents.
Consider the Louisiana Administrative Code. It’s not even a code; it’s a nightmare! In print, it’s impossible to use because it’s so scattered, coming in different colors and formats, and glued clunks of paper that supposedly reflect the important and official work of Louisiana administrators at their best. Online, the Administrative Code is incomplete. Lawyers know how difficult it is to use and how it frustrates them. The public tends to get confused about how to access it, and they have a right to access government documents and records. However, there are some good sites out there.
One example of a good site is the Louisiana Services Directory, a consolidated and comprehensive directory of services provided by the state government for citizens and businesses. You can access licenses, permits, certifications, registrations, filings, e-mail, databases, and information resources at http://wwwsrch2.doa.state.la.us/sdsprod/user/ServiceDetail.asp?servID=1327++ (Last visited March 14, 2003). It is linked from the State Library of Louisiana home page: http://www.state.lib.la.us/, and provides an important public service by pointing to other links. But it does not provide Portable Documents Format (PDF) of Louisiana legal documents. And you should not expect it to provide digitized images of legal documents because the State Library services primarily the public user group.
It is important to market Louisiana and its many valuable services, but how does anyone access its legal documents, particularly in PDF? A PDF file will look the same on the screen and in print regardless of what kind of computer you are using or which software package it was created from. A large document can be compressed small enough to download quickly, and displays text and pictures as if you were looking at the original book or brochure. Any computer can view a PDF file using Acrobat Reader, which is a free download.
By contrast, you would expect to get a PDF of the Civil Code articles and/or Revised Statutes from the Louisiana Legislature web site at: http://www.legis.state.la.us/tsrs/search.htm. This appears to be a directory, but what if the searcher is a lawyer from a common law state and is unfamiliar with our classification scheme and terminology. Then, the directory has little value. It does not provide cross-references from common law to civil law and back; there are no links and no dictionary of terms.
For example, click on: Art. 944. Prescription.
The text says: “An action to declare a successor unworthy is subject to a liberative prescription of five years from the death of the decedent as to intestate successors and five years from the probate of the will as to testate successors.”
But is it authentic? Is it accurate? Is it current?
It says: “Acts 1997, No. 1421,§ 1, eff. July 1, 1999.”
Should you print it? No, instead you should find the Civil Code and read article 944 for yourself. You will find that the online version does not give cross-references or revision comments, and it does not define “liberative prescription.”
Now let’s look for a PDF of the Louisiana Constitution on the same official web site for the Louisiana Legislature at: http://www.legis.state.la.us/tsrs/search.htm.
You won’t be able to find a digitized copy of the constitution because it’s not there. Not only is the Louisiana constitution of 1974 not digitized and accessible, there is no mention that there are earlier versions: 1812; 1845; 1852; 1861; 1864; 1868; 1879; 1898; 1913; 1921. No Scope Notes are provided to the Louisiana Constitutional Convention Records of 1974, and no cross-references are given.
Click now on the Louisiana Supreme Court site at: http://www.lasc.org/law_lib&legal_res/index.asp. The Law Library of Louisiana is lined from it. Suppose, you want Louisiana Attorney General slip opinions or Fifth Circuit slip opinions or links to court records from any one of Louisiana’s courts? What if you don’t have time to read the full-text opinion, but need an excellent summary of the points of law from the most recent appellate decisions in the state? Where could you find Frank Maraist’s Newsletter, “Louisiana Civil Law and Procedure,” in PDF, or a link to it? You can’t find these in digitized formats yet, but you can find suggestions to linking to other courts in Louisiana. Click on: http://www.lasc.org/Links/index.asp. (Last visited March 7, 2003).
Many of Louisiana’s historical legal materials are in French and Spanish. These materials can be decisive for lawyers researching legislative history and can seriously adversely affect business or economic concerns. They can have a chilling impact on non-Louisiana businesses contemplating doing business in Louisiana because they don’t know that these materials exist. But they do exist and can dispose of a close question in judicial review.
Is this mere conjecture? In 1984, Bhishma K. Agnihotri and Donald J. Tate of Southern University Law Center saw the iceberg. They published a book, Louisiana Law Primer, An Introduction To Basic Terms And Principles In Major Subject Matter Areas For Laymen And Beginners. They were thinking as Louisiana lawyers using a classification of subjects found in Louisiana law school curricula following the order of presentation found in the Civil Code—Persons, Things, and the Mode by which the Ownership of Things is Acquired by Persons. Had they been thinking as librarians, they would have understood the importance of classifying and organizing information in alphabetical order, so that people can easily retrieve the information that they need and want. Like Agnihotri and Tate, whoever is responsible for developing web sites for Louisiana, in particular the Louisiana Legislature and its portal, appears to be following the same Civil Code classification scheme. This will make it very difficult for those outside Louisiana to use them.
Ten years after that, in 1994, N. Stephan Kinsella wrote the article “A Civil Law to Common Law Dictionary.” Kinsella is a scholar, LL.M. in International Business Law, J.D. from, Paul M. Hebert Law Center, but in his 154 footnotes he fails to mention researchers who came before him who had thought about and published in the same area and on the same topic. Precisely, Kinsella’s article does not provide a citation to the book by Agnihotri and Tate. Agnihotri and Tate said that the classification scheme that needs to be followed in Louisiana is the one found in the Civil Code; Kinsella pretty much said the same thing. But Kinsella proposed a dictionary of civil law to common law terms, meaning he suggested a concordance of keywords. To date nearly 20 years after Agnihotri and Tate’s book and 10 years after Kinsella’s article, nothing has been done to make Louisiana’s legal collection more transparent, more accessible or easier to use.
West’s Civil Law Terms in Common Law Equivalents with Scope-Notes was reprinted in 1907. But even back then, many of Louisiana’s civil law terms were not included in the book, and West’s online directories and databases are still incomplete. Kinsella’s article does not cite this book either. This is significant because there is an in-print index of civil law terms, with their common law equivalents, “prepared in order to aid the Bar of Louisiana in using those publications in which differences in nomenclature have perhaps made ready reference difficult.” But the index does not appear to have been updated since that time, which is significant because the index does not include terms adopted into Louisiana law such as “redhibition” or “matrimonial regime.”

Digital Libraries: Indexing
and Precoordination/Postcoordination
When catalogers have taken the trouble to create linked strings, it is known as “precoordination” of terms. When the terms appear only as separate elements on the record, and have to be combined afterward by computer manipulations, it is known as “postcoordination.” Precoordinated strings of subdivisions under a heading offer a major advantage to searchers that cannot be matched by a postcoordinate system. A precoordinate system enables the searcher to recognize many important search options that simply would not occur to you to specify in advance.
Unfortunately, researchers need to be aware that major problems exist in our legal literature. Because there is still no common-law-to-civil-law dictionary, mistakes such as failing to cross-reference common law with civil law terms and concepts are made.
Researchers simply have to guess. Another disadvantage is that catalogs usually list only common law terms without cross-referencing them.
The world of information has changed dramatically since the first edition of West’s Civil Law Terms in Common Law Equivalents was written. At the time when the word “Bastard” was defined by West as “persons of illegitimate status.” It was merely a legal term and not in general use as a derogatory slang expression as it is at present. But, in the legal literature, there are indeed opinions and values that sometimes clash. For example, in Louisiana law, illegitimate children are legitimated by the subsequent marriage of their father and mother, whenever the latter have formally or informally acknowledged them as their children, either before or after the marriage. (Civil Code Article 198). “Children legitimated by a subsequent marriage are legitimate.” (Article 199). By contrast, some common law jurisdictions value all children the same, whether they have been born during or outside of marriage, they have rights of inheritance without proving evidence of “legitimation.” These details are not discussed, nor linked to journals that discuss these issues online.
If you refer to “Wills” in West’s Civil Law Terms in Common Law Equivalents, and you don’t know what the civil law term is, you would not be given a cross-reference from “holographic will” to “olographic testament.” So if you are a common law lawyer who doesn’t know the civil law term, you won’t find it using West’s Civil Law Terms in Common Law Equivalents; it’s not there.
Catalogers are librarians, but most are not lawyers. Catalogers, whether compiling a print or online catalog, are limited by the depth of their knowledge. We should not expect them to be lawyers, nor to make fine distinctions that lawyers have been taught to make. We are not suggesting that catalogers need to go to law school. On the contrary, we are saying that lawyers and librarians need work more closely on the accuracy of this matter.
Having said all of this, it brings the researcher right back to the library, and to the librarians who can help them find short-cuts to the information that they need in their research.

Searching for Really Old Cases
What if you need to find the earliest citation in the Louisiana Reports to the seminal case giving the United States Supreme Court power of judicial review? This was a question actually posed recently by a law professor researching the bicentennial of Marbury v. Madison, decided in 1803.

Suggested Search Strategy: A quick look at Shepard’s indicated the earliest case citing Marbury in Louisiana was in 1842. But should your search stop there, how confident are you that this information is true? In order to verify the information, you might start by turning to Westlaw and performing a Boolean search. You would discover an 1831 case in the Louisiana cases. Thus, the earliest cited case would be 1831, so far. However, if you use KeyCite©™ on Westlaw, you will find an 1830 case, one year prior to the case found by Boolean searching. By contrast, Lexis Nexis did not pull up the 1830 case, either by Boolean searching or Shepardizing.

Law Reviews, Law and Bar Journals, and Books
Searching for journal articles in Westlaw or Lexis Nexis prior to the 1980s can be difficult because those journal articles are not archived in full-text. Archives begin only in 1980s. If the article was published before 1980, start in the journals online. What if you are searching for articles by Frederick Bernays Weiner?

Suggested Search Strategy: Start with Journals and Law Review (JLR), or ALLREV, which is the Lexis Nexis equivalent. If you already have part of the title, type in those words, using w/ 10 (for within 10 words). This is a terms/connectors search using Boolean searching. You will get citations to articles by Weiner prior to the 1980s. This is a handy search strategy. Most people assume you would begin your search by going to the Index to Legal Periodicals (ILP), which lists citations to articles and books. But ILP’s scope goes back only to the 1980s.
The researcher finding such limitations of online searching most likely would go to the ILP in print, which would go back to the early 1900s. By using JLR, you won’t get the old article in full-text, but you will get articles that cite to the older article. You will get the citation you need. You can then (1) go to the Law Library and look at the articles in print, or (2) while you are in the library, you can use the Hein-On-Line service.

What is Hein-On-Line?
Hein-On-Line is a collaborative project of the William S. Hein Co., Inc. and Cornell University (Cornell’s Information Technologies and Law Library). You get access to about 80,000 full-text law reviews, most of which are not available electronically elsewhere.
In terms of retrospective and older law reviews, Hein-On-Line goes back much further than either Lexis Nexis or Westlaw. And Hein-On-Line is unique in that, unlike Lexis Nexis and Westlaw, an exact image of the original article is presented to the user.
Most administrators and directors are concerned about space management. Serial publications, e.g., case reporters and law reviews, consume a lot of shelf space. We have seen a tremendous increase in supply/demand for electronic databases and specialized digital libraries.
The Hein-On-Line is an electronic database service providing a very good opportunity to solve a part of your space problem. Hein-On-Line begins with volume one, number one and moves forward. They scan the full text, cover to cover. Though Hein-On-Line was originally developed as an archive of older issues not available electronically elsewhere, most law schools are working with having the whole run of the school’s law review online, up to current issues.
The articles are provided as a PDF of the original law review article. It may be used as IP recognition instead of passwords. The interface is very clean, and easy for the user to print from.
The cost of a yearly subscription may be a barrier for some solo practitioners or small law firms. We think that solo practitioners, newer attorneys who have not really had an opportunity to build up their clientele yet, and lawyers in small to medium-sized law firms should investigate the idea of consortia and networks for negotiating licensing agreements and cost-sharing of electronic databases.
Still, there will be those who simply prefer the “real thing” rather than a printout.

American Law Reports (A.L.R.)
Suggested Search Strategy: American Law Reports (ALR) is recommended when you have a specific fact situation to research. ALR has excellent indexing, and the annotations (articles) survey all of the states and the federal system. ALR indexing is different from the Digest System because it is not rooted in an aged Topical System, but is intuitive and grows with the law as it changes. When you find an article of interest, turn to the jurisdiction table and look for Louisiana cases. The table will send you directly to the section where the Louisiana cases are discussed. ALR is available in paper or online in Westlaw and Lexis Nexis.

Plumbing the Depths of the LSAs

Suggested Search Strategy: Statutes can be difficult to interpret for various reasons, including language differences, changes in circumstances, and poor drafting. What if you need to see an article from the Constitution of 1845? Would you call a law library and ask to speak to the rare books room librarian, or would you think to look in Volume 3 of the West’s LSA Constitution, which contains Treaties and Organic Laws and earlier constitutions:
· Cession of Louisiana-Treaty of 1803
· Payment to French Government-Treaty of 1803
· Taking Possession of Louisiana-1803
· Territories of Louisiana and Orleans
· Territorial Government of Orleans-1805
· Territory of Louisiana Proclamation-Taking Possession of Part of Louisiana
· The Enabling Act
“Act of Congress, Feb. 20, 1811, to enable the people of the Territory of Orleans, to form a constitution and state government, and for the admission of such state into the Union, on an equal footing with the original states, and for other Purpose”
· Admission of the State of Louisiana
· Limits of Louisiana-Enlargement

You don’t have to go to the rare books room. What most lawyers don’t know is that these historical Louisiana documents are found on book shelves in their own office.
In addition, you can find the earlier constitutions from 1812, 1845, 1852, 1861, 1864, 1868, 1879, 1898, 1913 and 1921, as well as the Constitution of the United States in Volume 3 of the LSA. Even the Declaration of Independence is there. Could you get all of this information online? We’re not sure, but even so, it probably would not be pulled together so neatly.
Notably, Volume 3 also comes with a pocket part and disposition tables. The disposition table is the cross-reference from the constitution of 1921 to the Constitution of 1974. This is extremely important information, because if you are looking for the sources of, and changes in, the 1974 Constitution, the disposition table points you to that part of the Revised Statutes and the Constitution of 1974 affected.
Someone will inevitably ask why anyone wants to know the historical underpinnings of constitutions and statutes. You need this information to show original intent, which might ultimately be important in statutory interpretation.
If you need older editions of the Civil Code, you can pull Volumes 16 and 17 of the Louisiana Civil Code, 1972 Compiled Edition, edited by Joseph Dainow. Now quickly take a look at Volume 17: Appendices, Tables, and Indexes. There is a wonderful selected bibliography to these compiled editions in Appendix 2, Bibliography A and B. If you need to perform historical research on old Spanish and Roman laws, Bibliography B takes you to the cases that discuss these laws.

Where Do We Go From Here?
We suggest that Louisiana needs a Quality Team comprised of lawyers, librarians and information specialists all working together on this matter. First, someone needs to look at the problem of controlled vocabulary and precoordination / postcoordination in legal information systems.1 At the same time, someone needs to give the “o.k.” to digitized, faster Louisiana legal documents, to create a directory of Louisiana databases, to provide an online dictionary of Louisiana terms, and to find out what other civil law jurisdictions, such as Quebec, Spain, France and Germany, are doing about classifying online legal information. There are several international associations looking at standardization, such as Z39.50 standard for online information.
Louisiana has a unique opportunity to offer to the world of information, and not only because of its four law schools. Although Louisiana is essentially a civil law jurisdiction, the principles, doctrines, and jurisprudence of the common law tradition are strongly integrated into the curricula. LSU Law Center is in the forefront of bi-jural tradition and education. One reason is because, quoting from its web site: LSU has put in place a mechanism for studying “200 Years of bi-jural tradition where the civil law and the Anglo-American common law come together.” There already exist a Center for Civil Law Studies (Dr. Saul Litvinoff, Director), and there is a comparative law program (JD/LL.M.). Also, the LSU School of Library and Information Science is ideally situated, being the only accredited Library School and Information Science program in the only civil law jurisdiction in the United States. Southern University Law Center, with its new Chancellor, promises to bring to the table the development of legal information systems and practitioners who are information literate.



Thanks to Kevin Gray, Associate Librarian and Coordinator of Media and Instructional Services, LSU Law Library, George Jacobsen, Library Associate as well as Dr. Alma Dawson and Dr. Barry, LSU School of Library and Information Science. And thanks to James S. McLean and John K. Pierre.


Bibliography – Challenges in Louisiana Legal Research

Agnihotri, Bhishma K. and Tate, Donald J. Louisiana Law Primer: An Introduction to Basic Terms and Principles in Major Subject Matter Areas for Laymen and Beginners. Student ed. Baton Rouge, La.: Claitor’s Publishing Division, 1984.

Chiang, Win-Shin S. Louisiana Legal Research.1st ed. Austin, Tex., Butterworth Legal Publishers, 1985.

Chiang, Win-Shin S. Louisiana Legal Research. 2nd ed. Austin, Tex. Butterworth Legal Publishers, 1990.

Hebert, Madeline. Louisiana Legal Documents and Related Publications. Chicago, Ill.: American Association of Law Libraries, 1990.

Kinsella, N. Stephan. A Civil Law to Common Law Dictionary. 54 La. L. Rev. 1265 (1994).

Wallach, Kate. Bibliographical History of Louisiana Civil Law Sources: Roman, French, and Spanish, with an Added Section on Modern French Research Materials. Baton Rouge, Louisiana State Law Institute, 1955.

Wallach, Kate. Research in Louisiana Law. Baton Rouge, La.: Louisiana State University Press, 1958. See Chapter 2, “The Judicial System and Court Reports of Louisiana,” pp. 71-86 for a complete history of the court reports in Louisiana.

Wallach, Kate. Louisiana Legal Research Manual. Baton Rouge, Lousiana State University, Law School, Institute of Continuing Education, 1972.


1The obstacle, of course, is copyright law. The interpretation of copyright law for online information is murky. For example, the Digital Millennium Copyright Act and Fair Use Issues would be involved unless the materials that we are linking to are in the public domain such as (a) works published prior to 1923, (b) works that are produced by government employees while working in their official capacity are generally not protected by copyright and are in the public domain, (c) Fair Use and (d) Works that are not copyrightable such as facts and words. (Source: Eldred v. Ashcroft.) So, the Quality Team could also serve as a Copyright Clearance Center for Louisiana legal materials that are linked.