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104 A.B.A. J. 26 (2018)
Booking the Dumpster

handle is hein.journals/abaj104 and id is 332 raw text is: 


Booking the Dumpster

The   tragedy   of'deaccessioning' books from university libraries

By  Bryan  A. Garner

  Scenario No. 1: An ambitious pre-
law student working on a senior thesis
about Shakespeare's Love's Labour's
Lost goes to the library and discovers,
much  to his surprise, two long aisles of
books about Shakespeare-some  6,500
books on just that subject. He spends
hour after hour combing through the
many  tomes, checking the indexes and
then reading the relevant passages.
Many  scholars, he finds, have written
about Shakespeare's curious foppery
of language (Walter Pater [1889]) in
the play, which is truly a comedy on the
state of the English language in 1588
(William Mathews  [1964]). One scholar
(Friedrich Landmann), in an obscure
monograph  from the early 1880s, defined the four types
of linguistic abuse found in the play: excessive allitera-
tion, Petrarchan love-sonneting, euphuism (fancy syntax
and word choice) and perversely extreme Latinity. Nearly
a century later, an American critic called the play a
sustained inquiry into the nature and status of words;
and the characters in it embody, define and implicitly
criticize certain concepts of words (Ralph Berry [1969]).
  Our prelaw student is off to a fruitful start for his
senior thesis. His professor has suggested that a true
scholar must research enough to know what predeces-
sors have done. Gleaning these quotations, and many
others as well, has taken our budding scholar some
100 hours of effort. Along the way, he has learned much
about Shakespearean criticism, the means of traditional
book research, the methods of literary analysis, and the
sheer vastness of scholarly work in the field.
  Meanwhile, his faculty adviser insists that the thesis
center on the student's own close reading of the play-not
on that of earlier scholars. Along the way, he can mention
what others have said either to dispute their conclusions
or endorse them. The quotations must be incidental
to his own analysis; they can't substitute for it. But he
shouldn't try to write in ignorance of his precursors.

  Scenario No. 2: A legal scholar working on an essay
about the doctrine of precedent means to steep herself
in the literature on the subject. She goes to the jurispru-
dence section of her copiously stocked law library and
spends days collecting snippets from Francis Lieber (in
a posthumous edition of a book dated 1883), Timothy
Walker (1895), Clarence Morris (1938), John Salmond
(1947), W.J.V. Windeyer (1949), Burke Shartel (1951),
W.W. Buckland (1952), A.W.B. Simpson (1961), Max

                Radin (1963) and Rupert Cross (1991).
                She's surprised because none of the
                law review articles she's read in the
                last several years cite any of these
                authorities. She traces back some
                aspects of the doctrine to William
                Blackstone (1765), James Kent (1826)
                and Joseph Story (1858).
                  That recitation of authorities
               just skims the surface of what she's
               uncovering. She's surveying the field
               so she can trace the development of
               precedent in common-law systems
               before embarking on her bold new
               theory. This time-consuming research
               will tell her how novel her theory is.
               She'll need a thorough grounding.
  Many  of her discoveries are serendipitous. Working
from her library carrel, she browses stacks of books
to find relevant essays in unlikely places. She hadn't
expected to find pertinent information in a 1935 book
by Henri Levy-Ullmann or in a 1914 book by Frederic
R. Coudert. Those writers' penetrating insights help
refine her thesis. She's delighted with the copiousness
of her university library's holdings.

  Scenario No. 3: A Texas practitioner is briefing an
appeal for a woman claiming to be the common-law
wife of a man who has died in an industrial accident.
Of course, the three elements of common-law marriage
are well-known in the 10 jurisdictions that recognize
it: an agreement to be married, cohabitation for some
period, and a holding out as spouses to the community
at large. The first two are easily established here, so
everything hinges on the holding-out element. Hence
our practitioner wants to know what Texas courts have
held on the subject.
  Westlaw searches mostly produce cases that merely
iterate the three elements of a common-law marriage.
  A colleague tells our practitioner friend he ought to
look at Joseph W. McKnight's annual surveys of family
law. Dubious, the practitioner finds a law library that
holds print copies of the SMU Law Review to discover
that each year from 1970 to 2016, McKnight authorita-
tively analyzed the appellate decisions in Texas relating
to family law. Starting with 2016, our friend goes back
year by year in the bound volumes, soon discovering that
McKnight  began each yearly update with discussions of
important holdings relating to common-law marriages.
  Much  to the practitioner's surprise, McKnight calls
them informal marriages because common-law

26  11ABA JOURNAL MAY 2018

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