Oregon State Bar Bulletin — JUNE 2003

Oregon Legal Heritage
A lament for libraries

By Randall B. Kester

This might well be subtitled as 'The Last Whine of an Old Fogy.'

The April 2003 issue of the Oregon State Bar Bulletin (Vol. 63, No. 6) contained several somewhat related items that particularly caught my attention. 'The Right Cite,' by Patrick Charles, praised the use of Shepard’s on Lexis and KeyCite on Westlaw, instead of the print edition of Shepard’s; and 'Risks & Rewards,' by Emily Eichenhorn, called attention to some of the hazards of modern technology in the law office. In the same issue the bar’s own advertisement on pages 48-49, announced the advent of Oregon Casemaker, which will be an online research library of Oregon materials.

Without disparaging or disagreeing with any of those items, it seems like an appropriate opportunity to vent some of my own frustrations at the displacement of books in law libraries. In doing so, I feel somewhat like the ancient (perhaps mythical) king who planted his throne on the beach and commanded the tide to stand still. In fact, it has become something of a joke around the office — my preference for books, as opposed to computers, for legal research.

It is true that I have always had a 'thing' about books and libraries. From the time I first learned to read — before starting to school, because mother taught all of us children to read before starting school —I have loved books. In my childhood my parents always gave me a book at Christmas, and one of my enduring memories is getting up early on Christmas morning, ferreting out my annual book from under the tree, and starting to read it before the rest of the family was up. I still have some of those books: The Boys’ King Arthur, Robinson Crusoe, The Deerslayer, etc. And in later years we (because my wife, Rachael, loves books also) have accumulated a house full of books, overflowing available shelves.

As a child I spent a lot of time in the Malheur County library in Ontario, Oregon, and my first regular job was as errand boy for that library. The library sent and received books to and from the Oregon State Library in Salem, and my job after school (for fifty cents a week) was to push a two-wheeled handcart to and from the Post Office carrying the daily load of book packages.

When, in high school, I got a job as printers’ devil on the Ontario Argus weekly newspaper, it was a real thrill to learn something about the printing process and how words found their way from the author’s mind onto a printed page. I have written elsewhere about that experience (Oregon Historical Quarterly, Spring, 1998, Vol. 99, No. 1, p. 62, et seq.).

When I was in college at Willamette University in Salem (1933-37), one of my jobs, for about three years, was working afternoons in the Oregon State Library. My work there was mostly shelving books (which taught me the Dewey decimal system), and later on in the mail room wrapping packages for shipment to the various local libraries (including the Malheur County library, where I had been on the other end of such shipments). One of the techniques that I learned for wrapping packages was later known in the family as the 'state library knot.' As president of the senior class at Willamette in 1937, I was privileged to turn a shovel-full of dirt at the dedication of the new (now the old) library which began an era of new campus buildings.

The state library at that time was in the Supreme Court building, occupying part of the first floor and basement, with little-used material stored in the attic. It was beyond my wildest dreams that some day I would serve as an associate justice in that building.

The Supreme Court building was connected to the Capitol building by underground tunnels for heat, electricity, etc., and when the Capitol building burned in 1935, the water that was poured on, in a vain attempt to extinguish the fire, flowed into the basement of the Supreme Court building. There it soaked and ruined many of the State Library books shelved in the basement. One of my tasks was to retrieve the damaged books and try to dry them out or dispose of the ones that could not be salvaged. Other aspects of the Capitol fire were mentioned in my letter published in the OSB Bulletin for August/Sept. 2002.

When I attended Columbia Law School in New York City (1937-40), one of the jobs I held was in the Columbia University Library, in the Rare Books Department, which was housed in the Low Memorial building. It was a privilege and a delight to see and occasionally handle those literary treasures. In addition to many first editions the collection included some original hand-illuminated manuscripts dating from before moveable type. In my mind’s eye I could see the monks laboring by candlelight to copy those medieval texts.

When I started to practice law in Portland in 1940 with the firm of Maguire, Shields and Morrison, we represented the Union Pacific Railroad. Our firm library was minimal, because we had the use of the library of the Union Pacific Railroad law department which occupied adjoining office space in the Pittock Block. The Union Pacific library was one of the best in the city at that time with practically everything that could be desired for legal research. I spent a great deal of time in the Union Pacific library, and that probably spoiled me for anything less.

In 1957 I was appointed to fill a vacancy on the Oregon Supreme Court and had the privilege of using the Supreme Court Library on the second floor of the building where I had once worked as a student. An appellate judge necessarily lives with books, as much of the work involves researching legal precedents. In 1958 I resigned from the court in order to accept appointment as general solicitor in charge of the Union Pacific Law Department for the Northwest; and I again lived with the U.P. library.

In 1980 I retired from the company and returned to law practice with my old firm, still in the Pittock Block in Portland. In 1983 we moved to the 1515 Building, when the Union Pacific moved its administrative offices there, and the firm ended up on a different floor from the U.P. Law Department. The use of their library was no longer as convenient, but we still used it extensively.

About that time the use of photocopying machines was becoming commonplace, and since we had the use of the Union Pacific copier, it was easy to make copies of the needed decisions and take the copies to our own office without removing the books from the U.P. library.

When the Union Pacific closed its Portland Law Department about 1985, our firm was given the opportunity to take over part of the U.P. law library, which we did. However we did not have room for all of it, so we did not take everything.

After about 1985, we also handled litigation for the Burlington Northern Railroad while it was reducing and finally closing its Portland law department. When it did close its office in about 1987, we acquired part of its library too. So, as a result of the U.P. and B.N. acquisitions, we had a fairly complete library of our own.

It had always been my desire that some day the firm would have a complete working library of its own, so that it would not be necessary to go to the courthouse to use the Multnomah County Law Library except on rare occasions. So it was a source of gratification when we moved to the Bank of America building in 1987 with a fairly complete library. With a full floor available, we had the opportunity to design our own floor plan, and we achieved a fairly efficient working library, with adequate shelf and desk space.

But the growing avalanche of reported decisions, particularly from the federal courts, made the maintenance of a library of books extremely expensive — both the cost of the books and of shelf space. That, coupled with the advent of computerized legal research, spelled the doom of libraries as we had known them.

When we moved into the Bank of America building we acquired Lexis service, with just one computer unit located in the library. Subsequently we converted to Westlaw and gradually acquired enough sets for everyone. Our entry into the world of computers was somewhat tentative, as none of us at first was truly 'computer literate.' The advantages of word-processing over typewriting were many and undeniable — and the miracles of e-mail and the Internet are still astounding.

But for legal research it was another story. New lawyers just coming out of law school were well acquainted with both Lexis and Westlaw, because in law school they learned to use them and perhaps depend on them. But older lawyers (such as myself) who had grown up with books as the essential tools of the trade, found it difficult to adapt.

It was not difficult to find a reported case if one knew its name or citation; but for basic legal research it never felt comfortable to search for keywords instead of concepts. Reading a case or a text by scrolling down a screen was inherently not as efficient as flipping the pages of a book, when one could tell at a glance whether or not the item was pertinent. And many times it would be necessary to print out a case, in which event the accumulated printouts began to take on the dimensions of a book. Browsing in a book frequently yields ideas or references that lead to new or different theories, which for me at least, are not as easily forthcoming from a computer screen. But all this is nothing compared to the disaster that awaits a careless or unintentional keystroke or an unexpected freezing of the machine. At least a book doesn’t suddenly disappear before one’s eyes.

Like Bill Gates, the Microsoft wizard, quoted in The Oregonian March 30, 1998, when he made a massive donation to libraries around the country, I felt that computers would never completely replace books.

So it was a wrenching shock when remodeling of our offices made it necessary to junk a large part of our accumulated library, put some of it in off-site storage, and rely on computers for day-to-day research The process was accentuated when, in 2003, we moved to the new Fox Tower and faced the paradox of more space but less room.

While we have adjusted to the new regime, and the adjustment has of course been easier for some than for others, I still mourn the loss of books. In some ways it seems almost sacrilegious, and I can’t help comparing it with the destruction of the great Alexandria library in the fifth century.

The author is senior partner in the Portland firm of Cosgrave Vergeer Kester. He is a former associate justice of the Oregon Supreme Court (1957-58) and former general solicitor and senior counsel for the Union Pacific Railroad in the Northwest (1958-1981).

© 2003 Randall B. Kester

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