* Vikki M. Rogers: This article is dedicated to my parents, Danielle and Robert Rogers, for their unrelenting patience during the several months that they had to hear about this article and for their ability to always put things back into perspective. Thank you.
** Albert H. Kritzer is Executive Secretary of the Institute of International Commercial Law of the Pace University School of Law. Vikki M. Rogers is an Associate at Shearman & Sterling, Frankfurt, Germany office and a Fellow of the Institute of International Commercial Law of the Pace University School of Law.
1. The authors gratefully acknowledge Professor Marie S. Newman, Director of the Law Library and Associate Professor of Law at Pace University School of Law for her advice and guidance in the preparation of this article, particularly of the section 'Development of Case Reporters in England and the United States," of which she drafted portions. We would also like to thank Ralph Amissah for information he provided on information technology and the possible applications of a information retrieval thesaurus to computer search engines. Additionally, the authors acknowledge and thank Professor Bella Hass Weinberg, St. John's University, for her review and suggestions to the paper.
2. John O. Honnold, The Sales Convention in Action - Uniform International Words: Uniform Application?, 8 J.L. & Com. 207 (1988); also available at ‹http://www.cisg.law.pace.edu/cisg/biblio/honnold-sales.html› (last modified July 28, 2000). See also for similar sentiment, Roy Goode, Commercial Law 23 (2d ed.1995) ("Those whose business it is to work with words soon acquire an appreciation of the limitations of language.")
3. "How forcible are the right words." Job 6:25.
4. William Shakespeare, Twelfth Night act III, sc. 1.
5. "Words strain; Crack and sometimes break; Under the burden." T.S. Eliot, Four Quartets (1943).
6. Larry A. DiMatteo, The Law of International Contracting 13 (2000).
7. The concept of "international sales law" is intended by the authors to include, inter alia, the UN Convention on Contracts for the International Sale of Goods (CISG), UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles), the Principles of European Contract Law (PECL) and the general principles of international commercial law (lex mercatoria).
8. "[U]niformity does not automatically result from agreeing on the same words for international rules; the objectives of the agreement can be undermined by different national approaches to interpreting and applying the uniform international rules." John O. Honnold, Uniform Words and Uniform Application. The 1980 Sales Convention and International Juridical Practice 115, 116 in Peter Schlechtriem (ed.), Einheitliches Kaufrecht und nationales Obligationenrecht (1987).
9. John O. Honnold, Uniform Laws for International Trade: "Care and Feeding" for Uniform Growth, 1 Int'l Trade & Bus. L.J. 1 (Australia 1995); also available at ‹http://www.cisg.law.pace.edu/cisg/biblio/honnold3.html› (last modified September 24, 1998).
10. Ralph Amissah, The Autonomous Contract: Reflecting the Borderless Electronic-Commercial Environment in Contracting, (visited May 1, 2001) ‹http://www.jus.uio.no/lm/the.autonomous.contract.07.10.1997.amissah/doc.html›.
11. See generally, Robert C. Berring, Collapse and Structure of the Legal Research Universe: The Imperative of Digital Information, 69 Wash. L. Rev. 9, 19 (1994).
12. 12. Id.
13. "Whenever codes have been drafted, or digests and encyclopedias of law compiled, from the time of the Romans to the present, the first problem that presented itself was always that of classification." Charles C. Ulrich, A Proposed Plan of Classification for the Law, 34 Mich. L. Rev. 226 (1935). Although there have been strides to make the information available (without any distinct methodology to its dissemination), the international commercial law community has not collectively engaged itself in discussions on the classification of the CISG, UNIDROIT Principles or Principles of European Contract Law.
14. Information retrieval systems include those published in print and electronic forms, such as the West digest system, WESTLAW and LEXIS.
15. Robert C. Berring, Legal Research and Legal Concepts: Where Form Moulds Substance, 75 Calif. L. Rev. 15, 15 (1997).
16. Berring, supra note 11 at 19.
17. The "blanket system" of case law reporting required the comprehensive reporting of all cases, without making editorial judgments or selective reporting of "significant decisions." Thomas A. Woxland, Forever Associate with the Practice of Law: The Early Years of the West Publishing Company, 5 Legal Reference Services Q., no. 1, at 123 (1985).
18. Berring, supra note 15, at 19 ("No judge could determine a point that did not have a location in the West system; it was complete").
19. Camilla Baasch Andersen, Reasonable Time in Article 39(1) of the CISG - Is Article 39(1) Truly a Uniform Provision?, in Pace Review of the Convention on Contracts for the International Sale of Goods 72 (1999). Article 7(1) calls for consideration of interpretations of the CISG by courts of other countries, as well as rulings on this Convention in one's own country. The highest authorities of many jurisdictions have stated, as did the US Supreme Court, that "the opinions of our sister signatories [to an international convention] are to be entitled to considerable weight." Air France v. Saks, 470 U.S. 392, 404 (1985) (defining the term "accident" as used in the Warsaw Convention).
20. Article 7(1), "[p]roperly understood . . . requires a process or methodology involving awareness of and respect for, but not necessarily blind obedience to, interpretations of the CISG from outside one's own legal culture - an approach not unlike the treatment U.S. courts accord decisions of other [US] jurisdictions when applying [the US] Uniform Commercial Code." Harry M. Flechtner, Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and Other Challenges to Uniformity Principle in Article 7(1), 17 J.L. & Com. 187 (1998); also available at ‹http://www.cisg.law.pace.edu/cisg/biblio/flecht1.html› (last modified August 11, 1999). Professor Flechtner further indicates that the "intentional flexibility that permits the CISG to accommodate the incredible diversity of circumstances in its subject matter and milieu" should not be lost when strides towards uniform application are made. Id. The authors agree with this conclusion; efforts towards uniform application of a uniform law should not strain the flexibility of that law to account for various scenarios in international transactions.
21. "The Convention, faute de mieux, will often be applied by tribunals (judges or arbitrators) who will be intimately familiar only with their own domestic law. The tribunals, regardless of their merit, will be subject to a natural tendency to read the international rules in light of the legal ideas that have been imbedded at the core of their intellectual formation. The mind sees what the mind has means of seeing." John O. Honnold, Documentary History of the Uniform Law for International Sales Law 1 (1989) (referring to the phenomenon Professor Honnold has labeled the homeward trend).
22. UNCITRAL has taken innovative steps to share knowledge of CISG case law, as have UNILEX and the Pace Institute of International Commercial Law in concert with the Centre for Commercial Law Studies of Queen Mary College, University of London, and others.
- Prominent UNCITRAL initiatives include the appointment of National Correspondents to identify and report CISG cases from their jurisdictions; publication of abstracts of CISG cases - CLOUT [Case Law On UNCITRAL Texts] abstracts that are widely disseminated by UNCITRAL and others - and, most recently, UNCITRAL interpretive analyses of CISG cases. The latter program has commenced with analyses of issues associated with CISG article 6 and CISG article 78. For information on these subjects go to UNCITRAL's web site, ‹http://www.un.or.at/uncitral›. UNILEX, edited by Michael Joachim Bonell, also provides an admirable service to our profession: abstracts and full texts of CISG cases and other materials. UNILEX is a commercial service, available from Transnational Publishers in either printed form or CD-ROM. Many of the case texts reported in UNILEX can also be obtained from UNCITRAL or on the Autonomous Network of CISG texts, see below.
- The Institute of International Commercial Law of the PACE University School of Law, in consortium with the Centre for Commercial Law Studies of Queen Mary College, University of London (QM College), and others has launched related initiatives.
- In concert with learning centers of many countries, Pace has helped foster the creation of an Autonomous Network of CISG Websites ‹http://www.cisg.law.pace.edu/network.html› The CISG online web site of the UNIVERSITY OF FREIBURG, set in place by Peter Schlechtriem ‹http://www.jura.uni-freiburg.de/ipr1/cisg/title.htm›, is a pioneer participant in this network.
- Pace, in concert with QM College, has also helped set in place a Case Translation Programme ‹http://www.cisg.law.pace.edu/cisg/text/queenmary.html›. More than 100 QM translations of CISG cases should be freely available on the Internet prior to year-end.
- A most recent activity is co-sponsorship by QUEEN MARY and Pace of the Vienna International Sales Convention Advisory Council (CISG-AC). This Council was established on June 2, 2001. The Chair of the Council is: Peter Schlechtriem. Other charter members of this Council are: Eric E. Bergsten, Michael Joachim Bonell, E. Allan Farnsworth, Alejandro M. Garro, Royston M. Goode, Sergei N. Lebedev, Jan Ramberg, Hiroo Sono and Claude Witz. Loukas M. Mistelis is Secretary of the Council. The first two interpretive rulings of the Council are to be on notice of lack of conformity of goods and electronic issues under the CISG. They are being authored by Council members Eric E. Bergsten and Jan Ramberg. The Charter of the Council calls for endorsement of each interpretive opinion by all members of the Council; where that is not feasible, reasoned concurring or dissenting opinions by Council members are written. In this respect, the rulings of this "Conseil des Sages" will be similar to those of national Supreme Courts.
23. An improved ability of States to borrow more freely from one another is precisely that which uniform international sales law needs today. US state courts accord comity to rulings on the Uniform Commercial Code by courts of sister US states. See Flechtner, supra note 20. The "comity of nations" would operate similar to the manner that has been recommended in "The Role of the European Court of Justice (ECJ) in the Interpretation of Uniform Law among the Member States of the European Communities," i.e., with the "integrative force of a judgment [of the court of a sister State] based on the persuasive reasoning which the decisions of the court bring to bear on the problem at hand." Jürgen Schwarze, in International Uniform Law in Practice [Acts and Proceedings of the 3rd Congress on Private Law held by the International Institute for the Unification of Private Law (Rome 7-10 September 1997)] 221 (Oceana New York, 1998).
24. There is much analysis from many jurisdictions. As of July 30, 2001, the cisgw3 web site of the Pace University School of Law at ‹http://www.cisg.law.pace.edu› reports 871 court and arbitral rulings on the CISG and citations to 4,712 law journal articles, monographs and texts containing material related to the CISG, and the texts of approximately 300 of these commentaries. The number of CISG cases will grow as will the number of commentaries on the uniform law.
25. Lord Scarman, 2 ALL E.R. 696, 715 (1980). See also Leif Sevón, Observations in International Uniform Law Practice/Le droit uniform international dans la pratique 135 (1988).
26. See Klaus Peter Berger, Harmonization of European Contract Law: The Influence of Comparative Law, 50 Int'l & Comp. L.Q. 877-900 (2001) = ZeuP 2001, 4-29: "This tendency of converging case law methods in civil and in common law, and the necessity of a European methodology, provide the background for a Europeanization of the doctrine of precedents"
28. John West, Symposium of Legal Publishers, 23 Am. L. Rev. 396 (1889).
29. Richard Delgado & Jean Stefanic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Dilemma, 42 Stan. L. Rev. 207, 214 (1989)."Some scholars note that the inability of lawyers to follow the development of the law either nationally or locally threatened stare decisis because of the 'enormous' and 'unrestrained quantity' of competing reporters, which 'discouraged research and inevitably led to a conflict among authorities." Id. quoting Woxland, supra note 17 at 116.
30. Charles C. Ulrich, A Proposed Plan of Classification for the Law, 34 Mich. L. Rev. 226, 227 (1935).
31. The Century Digest summarizes all United States cases that West could locate, for the period 1658 through 1895.
32. See, e.g., Supermicro Computer v. Digitechnic, 2001 U.S. Dist. Lexis 7620 (N.D. Cal. 30 January 2001) ("the case law interpreting and applying the CISG is sparse"). This statement was made even though an ample amount of CISG case law is available at various sources (with which the court was evidently unfamiliar); including links to presentations on over 850 CISG cases at ‹http://www.cisg.law.pace.edu/cisg/text/casecit.html›.
33. For purposes of this section, a brief overview of legal reporting in the US prior to 1876 is given because heavier reliance is placed on the impact the West Publishing Company had on the development of American jurisprudence after 1876. Excellent coverage of the development of legal reporting is given in the following sources and should not be overlooked: Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 209 (1979); Erwin C. Surrency, History of American Law Publishing 111-127 (1990); Symposium of Legal Publishers, 23 Am. L. Rev. 396 (1889); Berring, supra note 15.
34. Berring, supra note 15 at 18 citing F. Hicks, Materials and Methods of Legal Research with Bibliographic Manual 94 (1923) ("The first report to be printed in succession to the Year Books was Les Comentaires, ou les Reports, of Edmund Plowden, first published in 1571. It was, like the Year Books, written in Law French, but English translations of it were published in 1761, 1779, 1792 and 1816").
35. J.H. Baker, Records, Reports, and the Origins of Case-Law in England, in Judicial Records, Law Reports, and the Growth of Case Law 21 (J.H. Baker, ed., 1989).
37. Nomative reports are "named for the person who recorded or edited them." Morris L. Cohen et al., How to Find the Law 16 (1989).
41. J.P. Dawson, The Oracles of Law 65 (1968).
42. Id. at 75.
43. Id. at 77.
44. Berring, supra note 15 at 19. During the colonial period, no American case reports were published. See Lawrence M. Friedman, A History of American Law 323, n. 55 (2d ed. 1985) (Friedman points out that some reports were published many years after the cases were decided. For instance, "Joseph Quincy's Massachusetts Reports (1761-1771) . . . [were] published in 1865."). Practicing lawyers relied on English case reports or gleaned the law from precious English legal treatises. Id. at 323. In part, this was because most judges in the American colonies were not legally trained, and "colonial lawyers considered the Superior Courts of England as the ultimate authority on the common law. . . ." See Erwin C. Surrency, A History of American Law Publishing 24-25 (1990). Some lawyers prepared manuscript volumes of local cases for their personal use and then shared them with their colleagues in the practicing bar.
45. Friedman, supra note 44 at 323.
47. Like the English nomative reports, these early law reports were produced by private entrepreneurs eager to meet the demands of the burgeoning bar; gradually, however, appointed officials supplanted them and the nominative reports began to die out. In some ways, this development was salutary because "[o]fficial reports tended to be fuller and more accurate than unofficial reports, but they were also much more standardized.
50. See generally, Berring, supra note 11 at 20.
51. Friedman, supra note 44 at 325.
52. See generally, Berring, supra note 15 at 19.
53. See generally, Berring, supra note 15 at 21.
54. Friedman, supra note 44 at 409.
55. Woxland, supra note 17 at 117.
56. Woxland, supra note 17 at 116. See also Virginia Huck, The Many Words of Homer P. Clark 113 (1980), quoted in Surrency, supra note 44 at 49.
57. West Publishing Company encountered many strong competitors, but its regional reporters, along with its other reporters gave it comprehensive nation-wide coverage that eventually forced its competitors out of business. Id. Twelve years after the publication of West's "Syllabi" it could describe itself as "one of the largest publishing houses of any kind in the country." Woxland, supra note 17 at 116, quoting Stahl, Giant with a Low Profile, 10 Corp. Rep. 40 (Feb. 1979).
58. The idea of the case law digest was not created by West Publishing Company. See for a detailed history of the origin of the digest, Surrency, supra note 44 at 111-127.
59. Many decisions that judges wrote did not enter the classification system. Each state and federal court had rules for what should and should not be published. Yet, even if a decision was available at the court, it was not considered "published" unless it was published in a West Reporter. See, Robert C. Berring, Chaos, Cyberspace and Tradition: Legal Information Transmogrified, 12 Berkeley Tech L.J. 189, 192 (1997).
60. Review of Lawyer's Reports Annotated, 22 Am. L. Rev., at 922 (1889) in Thomas A. Woxland, supra note 17 at 123.
61. Grant Gilmore, The Ages of American Law 58-59 (1977).
63. "A digest is recognized in legal literature as an index to the points of law found in reported decisions. . . ." See supra note 58.
64. See generally, Berring, supra note 15 at 22.
65. The plan's originator, John A. Mallory, joined West's editorial department when the company acquired a smaller competitor. Mallory developed the American Digest Classification Scheme and the original Key Number Digest. See Delgado & Stefanic, supra note 29 at 215.
66. Berring, supra note 11 at 21.
67. Surrency, supra note 44 at 122 (footnote omitted).
68. Id. at 123.
69. Delgado and Stefanic, supra note 29 at 214. For a detailed history of the development of the American Digest System within the West Publishing Company, see Surrency, supra note 44.
70. Berring, supra note 11 at 22.
73. Id. at 24.
74. Id at 22.
75. Id. There is a presumption that if international materials were organized into a uniform classification scheme, they would become embedded in the law school curriculum through legal research classes, international law classes, moot court competitions and international law reviews. This development would inevitably make the classification system the way to conceptualize the law.
76. "The whole corpus of legal education is constructed around Dean Langdell's theory that the law library, the place where the law student conducts research, is the laboratory of the law, and the process of legal research has been intertwined with the process of legal reasoning that is still the core of legal pedagogy." Id. at 9.
77. Id. at 23. See also Geoffrey C. Bowker & Susan Leigh Star, Sorting Things Out: Classification and Its Consequences 108 (1999) ("[Informational] infrastructure does more than make work easier, faster or, more efficient; it changes the very nature of what is understood by work. Such changes always span multiple disciples, industries, and lines of work").
78. West has been praised for having "been one of the largest factors in extending throughout all parts of this country the knowledge and use of the decisions of all [of the US's] highest courts, both state and federal, and thereby aiding to bring them all into harmony." Thomas A. Woxland, supra note 17 at 123 quoting Rich, The Debt of the Nation to Law Publishers, 30 Case and Comment, 3.5 (Jan. - Feb. 1924).
79. Daniel D. Dabney, The Curse of Thamus: An Analysis of Full-Text Legal Document Retrieval, 78 Law Libr. J. 5, 12 (1986). In his article, Dabney includes part of Plato's Phaedrus. In Phaedrus, Socrates, in a conversation with Phaedrus, describes the legend of Theuth. Theuth was the Egyptian god who invented many arts (e.g., arithmetic, astronomy). His greatest discovery was writing. The King at the time, Thamus, who usually praised Theuth's inventions, did not approve of writing. He refused to teach it to his people.
"If men learn this, it will implant forgetfulness in their souls; they will cease to exercise memory because they rely on that which is written, calling things to remembrance no longer from within themselves, but by means of external marks. What you have discovered is a recipe not for memory, but for reminder. And it is no true wisdom that you offer your disciples, but only is semblance, for by telling them of many things without teaching them you will make them seem to know much, while for the most part they know nothing ..." Phaedrus 275 a-b.
If the conclusion of this story is correct, and we do not possess knowledge internally, but must seek knowledge from the writings we retrieve, Plato should have continued the conversation between Socrates and Phaedrus to evaluate the systems that should be created to access the knowledge that one is seeking (e.g., for international commercial law: international codes, case law, scholarly commentaries, legislative history). The story should have also analyzed the impact that the research tools used to access the writings would have on the manner that we conceptualize the writings we uncover.
For a more modern view similar to Thamus', see comments by another state leader: "Much reading is an oppression of the mind and extinguishes the natural candle." William Penn quoted in Daniel Akst, On the Contrary: A Corner Office Has Little Room for Books, N.Y.Times, July 1, 2001, Business, at 4.
80. See supra note 22.
82. Delgado & Stefanic, supra note 28 at 214.
83. J.O. Honnold, supra note 2 at 127 as quoted in Ralph Amissah, Revisiting the Autonomous Contract (to be published). See also Lief Sevón, Observations, in International Uniform Law in Practice [Acts and Proceedings of the 3rd Congress on Private Law held by the International Institute for the Unification of Private Law (Rome 7-10 September 1997)] 135 (Oceana: New York, 1998) "To be able to take account of decisions from other countries one has first to be aware of them"; In the same vein: "[p]roper reporting of decisions [is an] essential prerequisite for the proper working [of the rule of precedent]." René David, The Legal Systems of the World, in International Encyclopedia of Comparative Law, Martinus Nijhoff: The Hague 133 (1984).
84. Carol M. Blast & Ransford C. Pyle, Legal Research in the Computer Age: A Paradigm Shift, 93 L. Lib. Journal 285, 291 (2001).
85. J. O. Honnold, Uniform Law for International Sales Law (Kluwer Law International 1999).
86. Peter Schlechtriem (ed.), Kommentar zum Einheitlichen UN-Kaufrecht-CISG [Commentary on the UN Convention on the International Sale of Goods (CISG)] (C.H. Beck 1998).
87. See e.g., Addendum.
89. UNILEX, edited by Professor Bonnell, also includes a traditional print index and a table of cases organized by country.
90. As discussed in A/CN.9/SER.C/GUIDE/1, paras. 18-19, "the Secretariat [of UNCITRAL] [has publish[ed], based on classification schemes ("thesauri") separate indices for the UNCITRAL legal texts covered by CLOUT. The purpose of such indexes is to assist users of CLOUT in identifying cases relevant to a given issue by listing cases under the provision or sub-issue with which they deal." ‹http://www.uncitral.org/english/clout/indices/index1.htm›.
91. Available at ‹http://www.cisg.law.pace.edu›. This retrieval system will be improved by classifying its materials according to descriptor categories. These categories, derived from the information retrieval thesaurus, the Uniform International Sales Law Thesaurus that is currently being constructed, will provide a framework for the conceptualization of international sales law.
92. Recognizing that the analysis of any CISG Article should combine the actual CISG Articles, case law, legislative history and scholarly commentary, the Pace database provides "Annotated Text Pages" that seek to integrate all of this information for each CISG Article at one source.
93. See Franco Ferrari, Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano (Italy), 12 July 2000, Uniform Law Review, NS-Vol. VI., 203, 206 (Kluwer Law Publishing 2001) ("Resorting to foreign case law undoubtedly promotes the uniform application of the CISG. However, requiring interpreters to consider foreign decisions can create practical difficulties . . . foreign case law is often written in a language unknown to the interpreter").
94. The QM Case Translation Programme was inaugurated on September 27, 2000. As of July 27, 2001, over 150 full texts of CISG cases in English or English translation have been entered on or are being readied to enter on the cisgw3 website. Additional case translations are being processed. The 150+ case translations cited include opinions of the Supreme Courts of Argentina (1 case), Austria (3 cases), France (4 cases), Germany (8 cases), Hungary (1 case), Israel [relevant excerpts only] (1 case), Netherland (1 case), Switzerland (1 case), and of the Supreme Constitutional Court of Colombia (1 case). See supra note 22 for further reference to Pace Law School and Queen Mary CISG Translation Programme that has been designed to coexist with the information retrieval system.
95. Paul Miller, I Say What I Mean, But Do I Mean What I Say? Ariadne Issue 23 (visited June 18, 2001) ‹http://www.ariadne.ac.ukk/issue23/metadata/›. See also J. Milstead, "How Do I Build a Thesaurus" (visited June 4, 2001) ‹http://www.asindexing.org/thesbuild.shtml› (prepared specifically for American Society of Indexers web site) for information on the top-down and bottom-up methodologies for thesaurus construction.
96. See supra note 65.
97. In the alternative, an uncontrolled vocabulary is essentially a list of words and phrases. This list can be drawn from the information that is to be classified. Uncontrolled vocabularies lack structure and do not provide a mechanism to deal with the challenges that exist in the creation of a multilingual, international vocabulary, a vocabulary that must be released from the confines of domestic legal connotations.
98. National Information Standards Organization, Guidelines for the Construction, Format and Management of Monolingual Thesauri, ANSI/NISO Z39.19-1993 at 27.
99. See generally Bowker & Star, supra note 77 at 141, stating that one benefit of the ICD (International Classification of Diseases) is that "it can be used in transnational comparisons, especially where there are radical local differences in belief, practice, and knowledge representation".
100. See supra note 98 at 13.
102. Id. at 15.
103. Id at 16.
105. Id. at 3
106. See supra note 98.
107. Id. at 3.
108. Documentation - Guidelines for the establishment and development of multilingual thesauri, ISO 5964 (1985).
109. See the Addendum to this Article for further comments on thesaurus treatment of "avoidance" and "termination" under the CISG and the UNIDROIT Principles and PECL.
110. Dabney, supra note 79 at fn. 8.
111. Blast & Pyle, supra note 84 at 285.
112. Dabney, supra note 79 at 17 ("In full-text document retrieval, there is no human subject indexing").
113. Robert C. Berring, Full-Text Databases and Legal Research: Backing into the Future, 1 High Tech. L. J. 27,28 (1986).
114. Boolean combinations of descriptors can also exist. Free-text searching can independently function without Boolean operators.
115. See supra note 112.
116. Dabney reports as follows on the current Lexis and Westlaw approach: "Both LEXIS and WESTLAW rely almost exclusively on the ability of the systems to recognize words supplied by the user. The difficulty with this approach is that there is an imperfect correspondence between words and ideas." Op cit. at 17. Because many judges and practitioners are not likely to use exactly the same words to describe concepts or ideas, West Publishing has tried to compensate by creating a "Full-Text Plus" system. "This system refers to the fact that the WESTLAW database contains the full text of cases plus the same text of headnotes and Digest summaries printed in the National Reporter System. West posits that this addition introduces 'normalized' language because the trained editor has again entered the picture. The uniform language in the headnote and syllabus are supposed to compensate for the imprecision of the judicial author. Thus, the searcher can formulate a search strategy knowing that his search phrase will be matched up both with the text of the judicial opinion and with the 'normalized' language introduced by West editors in the headnotes and case synopsis." Id. at fn 68.
117. Barbara Bintliff, From Creativity to Computerese: Thinking Like a Lawyer in the Computer Age, 88 Law Library Journal 338, 346 (1996).
"LEXIS and WESTLAW have begun to develop concept-based systems and have introduced 'natural language' search interfaces as a step in this direction. We now have Freestyle and WIN, respectively. Natural language moves towards a conceptual search system, with a list of thousands of commonly used legal phrases indexed in addition to words. But natural language requires a complex search interface, which substitutes a series of mechanical judgments for our decision-making process. The computer program 'identifies' the 'concepts,' which are basically nouns or legal phrases, in the search request, and matches them against its inventory of words and legal phrases. The program identifies other documents with the same concepts and ranks its findings by statistical relevance - primarily by the number of times the concept occurs and how close to the beginning of the document it first occurs.
Like other computer searches, sometimes the results of natural-language searches are extraordinary, and sometimes they are worthless; usually they are somewhere in between. In any event, your ability to think in computerese and the underlying logic of the computer program determines the outcome of your research. This isn't the bias-free, untouched-by-human-hands results we expect of a computer, for many decisions are made for you by the computer program. Furthermore, many programmers are convinced that a better search, even for conceptual information, can be crafted using the Boolean techniques. One developer of CD-ROM-based legal materials stated that natural-language searching compared to Boolean searching is like using an automatic transmission versus a stick shift. 'You don't need to know anything about transmissions to drive an automatic, but all the race cars have stick shifts.'" Russ Armstrong, CD-ROM v. Law Books, Law-Lib Discussion List (Jan. 8, 1996) email at ‹firstname.lastname@example.org› Blintiff at 347.
118. WESTLAW does now provide its users with an option to check a thesaurus of "Related Terms" when a researcher is conducting a search. It therefore permits its users to search with broader terminology, increasing chances of success for the retrieval of relevant information. Although Westlaw does not currently account specifically for the domain, i.e., terminology, of international sales law, it is the sort of technology into which the International Sales Law Thesaurus could easily be incorporated.
119. This confidence is probably unjustified. "Several extensive studies have clearly documented a false sense of security on the part of computer researchers. One study commented that users felt that 'because the source is 'technological,' they are finding everything or, at the very least, finding the best materials. ...We have suspended our sense of disbelief when it comes to computers." Bintliff, supra note 116, at 349, quoting F.W. Lancaster et al., Searching Databases on CD-ROM: Comparison of the Results of End-User Searching with Results from Two Modes of Searching by Skilled Intermediaries, 33 RQ 370, 382 (1994).
120. As Professor Germain puts the problem and a solution: ". . . Search engines are essentially of two kinds, human-mediated 'intellectual' indexes and 'robot' or automated indexes. In the intellectual indexes, individual web sites are classified by hand according to various classification schemes . . . 'Robot' or automated indexes use programs that download every page ... so that every word on every page can be indexed by a ... search engine ... An April 1998 study by the journal Science concludes that search engines are not thorough in finding relevant documents, because they each only index a fraction of the total documents available ... The lesson is not to rely on just one engine . . ." Claire M. Germain, Content and Quality of Legal Information and Data on the Internet with a Special Focus on the United States, 27 Int'l J. of Legal Info. 296 (1999) [citations omitted]. For more on difficulties associated with "intellectual" indexes and "robot" or automated indexes, see Section 6 of Graham Greenleaf et al., Moving Access to Law into the 21st Century (visited June 18, 2000) ‹http://www2.austlii.edu.au/~graham/AALS/Restatement-A.html›.
121. See, e.g., supra note 92.
122. Dabney, supra note 69 at 34 ("The addition of good human indexing to CALR data bases is a promising approach to the problem of improving retrieval performance in such systems . . .").
123. See Legal XML Standards Development Project at ‹http://www.legalxml.org›.
124. Recall is the percentage of the total number of relevant documents in a database that are retrieved by the search being studied. See supra 69 at 15.
125. Relevance is the relationship between a question and a document that makes the document important to the person researching the question. Id. Dabney points out that as recall goes up, relevance goes down, and vice versa. This is a problem inherent in most CALR systems. Id. at 16.