Joseph A. Custer of the University of Kansas School of Law Library has published The Universe of Thinkable Thoughts Versus the Facts of Empirical Research, 102 Law Library Journal No. 2, pages 251-268 (2010). Here is a summary:
In this paper, the author questions assertions about the West Key Number System and the West Digest System made in Daniel Dabney, The Universe of Thinkable Thoughts: Literary Warrant and West’s Key Number System, 99 Law Libr. J. 229, 2007 Law Libr. J. 14., and particularly the claims that “[t]he languages we use to describe the law, including the Key Number System, matter to the law itself. They come to be infused with the law, telling us what ideas are important ideas and what questions are important to ask,” and that the West Key Number System influences lawyers by “bringing certain questions to the fore by including them in the scheme’s classification logic” and by “determining what basic ideas [lawyers] can ask questions about.”
Custer conducts a test of assertions made about the West Key Number System and the West Digest System in Peter C. Schanck, Taking Up Barkan’s Challenge: Looking at the Judicial Process and Legal Research, 82 Law Libr. J. 1 (1990).
Using a survey of lawyers in one county in the state of Kansas, USA, Custer tests the following assertions made in Schanck’s article:
1. “[W]hen conducting their research, attorneys tend to use more than one system, and often several . . . . expos[ing] the researcher to a variety of nondigest classifications.”
2. A “number of lawyers . . . claim never to use digests.”
3. “[L]awyers tend to concentrate more on the facts . . . than on abstract doctrines. In so doing, they prefer searching descriptive word indexes over topical analyses, and they search the indexes as much for factual terms as for legal concepts.”
4. Even if lawyers use the West Digest exclusively they “tend to scan all or most of the cases under several key numbers and, in the process, pay little attention to the designations assigned to the categories. . . . By this final stage, the West structure is long forgotten and its effects negligible.” [footnotes omitted]
After analyzing the survey results, Custer draws the following conclusions:
The results tallied in my survey supported Schanck’s contentions and challenged Dabney’s assertions. The data suggests that lawyers are not dependent on intellectual indexing, using a “variety of nondigest classifications” to perform their research. In addition, the results implied that the West Digest System is not infused in the law, as a majority of lawyers don’t even use the digest in their research. Regarding Schanck’s third contention, the survey results suggest that lawyers are more likely to search in the [Descriptive Word Index, a component of each West Digest] for terms such as “dogs” rather than use topical analysis. In relation to the fourth Schanck assertion, the survey results imply that the West digest structure is not being used by attorneys to discover what law is important or what are the important questions to ask, since most lawyers don’t appear to be paying any attention to the structure when scanning most or all of the cases under several key numbers when researching.
My research suggests that neither does the Key Number System influence the law nor does the law influence the Key Number System. In the end, the digest is a minor player in a legal culture where lawyers will go everywhere to find the law. Free-text searching brings the flexibility that lawyers need to effectively research in today’s legal culture. Lawyers will look at the localities, practices, languages, symbols, and images surrounding legal society to find and gain an understanding of the law…. [footnotes omitted]