The Truthiness of Thinkable Thoughts versus the Facts of Empirical Research

Joseph A. Custer, University of Kansas School of Law

Abstract

Daniel Dabney coined the phrase, “the universe of thinkable thoughts.” Bob Berring wrote that, “no judge could determine a point that did not have a location in the West system, it was complete.” In Dabney’s 2008 Law Library Journal article of the year, "The Universe of Thinkable Thoughts: Literary Warrant and West’s Key Number System," Dabney states:

If an idea doesn't correspond to something in the Key Number System, it becomes an unthinkable thought. The essence of a classification scheme is to be a closed list of the salient ideas in the literature it serves, and when the system, by omitting an idea, implies that the idea is not sufficiently salient to be included, it can be an obstacle to considering the idea.

Berring stated in a 2000 article that legal commentators have long failed to take a serious look at legal research tools. This is what my article addresses, a serious look at legal research tools. The idea for this article grew from two distinct, but not unrelated events. The first being a general uneasiness with the Dabney article and the second came from several conversations with two long-term mentors, Peter Schanck and Fritz Snyder. Schanck and Snyder, in the same spirit expressed by Bob Berring, posed the challenge of taking a serious look at the subject of legal research tools. This article is the result. It is not an attempt to recognize, comment and organize the literature addressing how legal research tools, or the West Digest specifically, has or has not influenced how lawyers think about the law. Richard Danner does a fine job of this in his recent Law Library Journal article, "Legal Information and the Development of American Law: Writings on the Form and Structure of the Published Law." But rather, this article is written in two parts: the first part addressing the Dabney article and the second part, analyzing the results of an empirical study addressing how lawyers are influenced by legal research tools, specifically the West Digest System.

A revised version of this paper appears in Law Library Journal, Vol. 102, No. 2 (Spring 2010), pp. 251-268 (http://www.aallnet.org/products/pub_llj_v102n02/2010-14.pdf)