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Metadata Revisited

In 1910, an Englishman by the name of Percy T. Carden [Fn. 1] published an interesting proposal arguing for the creation of loose leaf law reports, which, at the time, generated considerable debate concerning the merits of ditching bound volumes in favor of publishing cases as single-issue slip opinions to be filed away in drawers. See Carden, Loose Leaf Law Reports, 26 L. Q. Rev. 75 (1910); see also Loose Leaf Law Reports, 30 Can. L. Times 244 (1910) (doubting that debris of littered “loose leaves” would ever find their way back to their proper places); Hawley, Law Reports Loose Leaf System, 3 Law Libr. J. 48 (1910-11) (suggesting objections to system outweigh anything to be gained by it, but allowing for possibility that system would work for legal encyclopedias or digests); Singleton, Loose Leaf Law Reports, 26 L. Q. Rev. 158 (1910) (“It is hoped that [Mr. Carden’s idea] will be speedily acted on.”). From one commentator came this quip:

If loose leaf law libraries are convenient, doubtless they will come, and instead of pleasing rows of book-shelves we shall look on piles of drawers, suggestive of drugs or deceased butterflies, but really filled with careful selections of judicial wisdom.

Fredlund, Loose Leaf Law Reports, 3 Law. Libr. J. 44, 46 (1910-11).

If Carden’s proposal had been limited to merely slicing off the bindings of reporters and alphabetizing cases, this would be a much shorter post. But as luck would have it, Carden went a bit further and suggested that the loose-leaf system, to be of much use, needed “cards” attached to the cases, each of which would have looked like this:

Click on image to enlarge.

As Carden explained,

The primary function of the card is to act as a guide to any one seeking the case to which it belongs. This function it performs by bearing the case-name printed on the extension so as to stand up above the general level of the tops of the leaves [cases] in the drawer. The result of this arrangement is that on opening the drawer the names of all the cases contained in it are seen one behind the other in alphabetical order. The eye rapidly picks out from theses the name sought, which done, the card bearing the name, and the case to which it is attached can, if desired, be at once lifted out of the drawer and carried into court or wherever else they may be required… [¶] The primary function of the card as an index being thus fulfilled by the extension carrying the case-name, the rest of the surface of the card remains available for other purposes.

According to Carden, the card itself would contain a tremendous amount of information as first issued:

1. The case name printed in distinctive type.
2. The court information and date the opinion was decided.
3. The “catchwords” to convey the general nature of the case.
4. The “digest note,” which includes a short summary of the case’s history.
5. A “noter up,” which is a listing of cases relevant to a particular point raised in the opinion and a notation of how those cases were treated in the opinion.

But what of future developments? Carden suggested that after the opinion was decided, the card could be returned to the publisher (which he called “collection, noter up, and return”) for the following additional information:

1. The history after decision (i.e., reversal or restoration).
2. Future treatment of the points of principles decided in the opinion in other cases.

Carden believed that the cards were invaluable because they would—

hold upright the leaves of the case to which they were attached. The cards … guide straight to the case; they give, at a glance, the date of its decision and the Court which decided it; where else it is to be found, and what, roughly, it is about; what principle of law it decided, and how the point arose for decision; prior cases on the same point and how they were dealt with in this case; and, finally, the subsequent history of the case and of the decision which was given it.

Now, I want you to take a look at this image:

Click on image to enlarge.

One hundred years later, the essential metadata of a case hasn’t changed all that much. Carden tagged cases by attaching a marked up card stock; CALR vendors like Westlaw tag cases digitally. And although we use different techniques to find cases now (the accuracy of which is always debatable), for each digital slip opinion we’re still focusing on its history, treatment, and citing references. [Fn. 2] The primary difference is the visual digest.

I find that Carden’s proposal raises interesting questions about how we might visualize core metadata. He suggests that it exists on top of the case and not as tabs [Fn. 3]; it is the first thing a user looks at when interacting with a case. And when you’ve been practicing long enough, you already have a running thread of legal propositions and seminal cases in your mind’s eye. So there is, I believe, a certain attractiveness to Carden’s card idea as compared to our current overreliance on snippets (the darling of electronic search), which I find to be largely inadequate to convey meaning (and understanding) because there is no taxonomical context for them. 

Looking at the proposal, Carden’s cards (at-a-glance) attempted to answer fundamental questions such as:

  • Is this a {identify specific type of case, e.g., admiralty} case?
  • What is the case about?
  • Who decided the case and when?
  • What is the procedural posture of the case?
  • Was it appealed and what was the result?
  • Did it affect other cases?
  • Have other opinions cited to it, and what position (e.g., applied, considered, disapproved) did they take?

It is remarkable how young lawyers these days can’t even answer these basic questions (particularly the procedural posture) about opinions they find online. The essential metadata is at their fingertips (and more), but they don’t know it because they can’t see it (looking for that key language from the snippets you know). 

The point of dredging up a hundred-year-old idea is to emphasize two things: (1) the more things change, the more they stay the same, and (2) good ideas can come from anyone, no matter how old they are. CALR vendors should be experimenting more with how we can visualize core metadata quickly (and consequently, understand the relationship of a case or statute to the research question), rather than just stuffing information in tabs and different screens and making us scroll through the results. [Fn. 4] 

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[Fn. 1] I do not know if it is the same Percy Carden who wrote “The Murder of Edwin Drood,” but it would be quite interesting to know if the two were one in the same.

[Fn. 2] Yes, I am aware of certain advancements, such as access to trial court records and appellate briefs, which provide valuable data to understanding a court’s opinion. But in my experience, most lawyers—particularly the youngest—do not refer to these documents for such purposes. Another failing about which I could spend countless hours discussing. Also, access to this data is generally limited to those lawyers who can afford to pay for Westlaw or Lexis.

[Fn. 3] An interesting aside, the original Shepard’s—known as “stickers”—were printed on gummed, perforated sheets, which were designed to be divided and pasted onto the margins of an individual case. Morris, The Future of Shepard’s Citations in Print, 26 The CRIV Sheet 3 (May 2004). The history and treatment of a case was often visible to an attorney before she even read the case. 

[Fn. 4] This is an oversimplification, I know. Each tab on the WestlawNext screencap, for example, actually contains visual cues for understanding the information (e.g., on “Negative Treatment” tab, you would find cases or statutes overruling, reversing, following, criticizing, distinguishing, etc. the case). But the visualizations on these pages haven’t really changed much in decades. 

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Comments

  1. Just as Mr Carden built his notes on the work of others (i.e. judges), he may have built his novel, The Murder of Edwin Drood (if it was his) on Edwin Drood on the original by Charles Dickens, The Mystery of Edwin Drood. Or maybe he was updating Dickens’ unfinished work the way he thought legal publishers should update his cards…