US Judiciary opts to spend millions on accessing its own records, which are now available on the Web for free

Rogue archivist Carl Malamud sez,

Some days, the U.S. government truly astounds. At Public.Resource.Org, we released 50 years of decisions of the U.S. Courts of Appeals. Knowing that the U.S. Courts have to pay big bucks to West Law and Lexis/Nexis to access their own archives, we though they might be interested in having their very own copy.

So, we asked how we could maybe get a phone call to discuss making a donation of case law. Instead of a phone call, the general counsel of the courts (how's that for a meta position!) sent me a letter saying that while this would be great for the public he saw no benefit to the judiciary and our gift offer was hereby declined.

(Not only does the Judiciary spend big bucks on legal information services, this is the same group that runs the billion-dollar IT boondoggle called PACER, which mandates that the public pay $0.08/page for court documents even though they have $146.6 million in unspent funds in their computer account they can't even figure out what to do with.)

Link (Thanks, Carl!)

• [Joe Important]

  I have to agree with everything that has been said so far. The real value of Lexis and West is their editor prepared headnotes and annotations along with their research taxonomy (e.g., West’s KeyCites). These are necessary tools that drive legal research…..mere access to opinions does not suffice. Not to mention, without some sort of Shepard’s system it would take 20 times as long to determine if a case is still valid law.

  That said, I think Carl’s project has great potential for the general public wishing to track down a specific case, but not for any sort of meaningful legal research. Although, he has to expand it to include all issued cases since 1787 from all of the circuits and of course, the Supreme Court. Otherwise, it will be useless.

• [CarlMalamud]

  @whoknew said:

  | Until then, you really have nothing to
  | offer the government.

  And, sadly, vice versa appears to be true as well!

  In this day and age, a work of the government cannot be said to be public unless you can see it on the Internet.

  Cory’s headline, as usual, is right on the money. This is all about $$. A chief judge has the budget for the deluxe Wexis packages, so they don’t feel the pain. But, there are an amazing number of government lawyers, solo practioners, and public interest lawyers who don’t have access to the databases they need to do their jobs.

  The judiciary has allowed an oligopoly to come into being that lives on top of a public domain resource, keeping prices high and supply low. Limiting supply to public documents just doesn’t make sense from an economic viewpoint and it certainly doesn’t make any sense from a democratic viewpoint.

• [skullduggery]

  Everyone who has commented so far is correct: Westlaw and LexisNexis provide much more than just the courts’ decisions.

  I picked a random case from Public.Resource.Org’s database, United States v. E. De Los Santos Ferrer, 999 F.2d 7 (1993), and compared their entry to the information offered by LexisNexis. Public.Resource.Org offers the the case’s citation, names of attorneys, and the court’s decision. LexisNexis offers all that, plus an incredibly useful case summary (including procedural posture, case overview, and outcome), headnotes (e.g. helps one extract the important rulings of a case), cross-indexing, and more.

  There seem to be two different kind of people in the world: those who enjoy folded laundry neatly organized in a dresser and those who pull a shirt off the floor. Similarly, we’re talking about are two different types of archives. Public.Resource.Org offers a big pile of documents (beautifully styled, but still) while the companies are re-arranging the dress shirts in your closet in by color, or year made, or type of thread used, or style of button, or collar type, etc. (all with the press of a button) while also letting you know that the public has overturned a particular style but that some fashion judgements (match your socks with your dress pants) are still ruling precedents.

• [whoknew]

  I am a solo practitioner, and I don’t need Westlaw or Lexis to access all the law I need. However, I still look forward to the day that I can subscribe to Westlaw, not because it will mean access to the case law, but because it will mean access to West’s advanced search capabilities (which, as far as I have discovered, are not available anywhere else — please correct me if I’m wrong), its “Shepardizing” tools (for determining if cases are still good law), its gloss or anotations on the case law, and its other databases (like magazines, law reviews, legal encyclopedias).

  I really don’t see why it is big news that the government is not (yet) interested in what you have to offer.

  Nevertheless, I agree with you that it is a travesty that the government still relies on West and Lexis to get its official case law online.

• [Hugh]

  As I read the linked correspondence, the Court is saying, “well, since all the documents are available on your website, I guess we don’t need to keep them on our servers too”.

  Which is debatable, but not as crazy as the post seems to imply. And the point that a blob of text is not a replacement for a search and gloss service is convincing.

  That doesn’t mean the public records aren’t valuable though. They form the necessary foundation for someone to create a free and open search service for what absolutely should be free public information.

• [Takuan]

  I see this article about government waste and disregard for intelligently using freely available information as a logical jumping off point for a diatribe against the legal system. Don’t you?

  For starters; courts should be known as “CourtCasinos” – the understanding being that one pays the exorbitant entrance fee, enters escorted by one’s paid Law-Trade Workers, and has the Master Croupier spin the Wheel of Justice to determine the outcome of the case. Such a system would go along way to redressing the unhappiness so many feel towards the legal and “justice” systems. Indeed, the confusion of the latter two terms in the source of most of this unhappiness.

  Instead of on-line case law services, an expansion of internet poker might be the way to go.

• [Adam Rakunas]

  I just like the title “Rogue Archivist.” Do his business cards have some kind of skull-and-crossbones-Dewey-Decimal mashed up logo?

• [CarlMalamud]

  @adam: No skull-and-crossbones, but we do have the great seal of the seal of approval. :)

  @lawyers: My query to the AO was simply asking them to have a phone call about the issues. While I think they should serve their own data to the public and they should certainly consult their own databases, at the very least I thought the Judiciary might want to simply have a copy of their work product in their archives for safekeeping.

  As to the comments saying that what you get out of the commercial services is wonderful value-add like search technology, annotations, and key classification, I would posit that the tools that lawyers get to use today are totally primitive. If the raw data were available and any grad student or garage entrepreneur could take a shot at building something better, we would all be amazed and democracy would be better served.

  (And, lawyers would probably spend a lot less money paying rent to the Wexis Cartel, but we’re not doing this to save layers money.)

• [Hounskull]

  That’s rather misleading and disengenuious. They’re not just paying to access their own records.

  They’re paying for the engine of Lexis Nexis to effectively catalog and search that data in a user friendly way and with cross platform compatibility and in a standardized manner. Just as Google isn’t the data, it’s the engine. Just as Windows or Linus or OSX isn’t the data, it’s the OS. Lexis/Nexis is actually pretty awesome, and is a widespread standard, which is important.

  One could argue for the government to develop it’s own engine, but that would also have costs, and would be proprietary unless they wanted to commercialize it, which they don’t want to get into.

  A “gift” sounds nice, until you realize it would be incredibly difficult for everyone to switch over, and then they’d be stuck on an open source, unmaintained, proprietary, platform.

  “No thanks” is exactly correct.

• [Hounskull]

  Btw, Lexis Nexis also has an enormous tool base to collate and format data fr various applications. Which is an enormous value to clerks and saves them from having to do so by hand, and that time savings is worth many millions to the Gov, as well as many law firms, journalists, and others who use Lexis/Nexis’ (admittedly expensive) service.

  If this group is serious, they should compete with Lexis/Nexis. But “gifting” a bare bones and unsupported engine is no gift at all.

  btw, I’m all for open source, but some of the enthusiasts are goofy. Open source isn’t a solution for everything.

• [Hounskull]

  < Linux :|

• [Stuart Buck]

  As a practicing lawyer and former judicial clerk, I agree with all the commenters who suggest that the post is way off-base. First, the judiciary didn’t refuse free access to judicial opinions; rather, the letter pointed out that since the opinions are already available for free on the web, there would be no additional benefit from being sent a digital copy.

  Second, no responsible lawyer or judge would EVER view “50 years of court of appeals decisions” as a replacement for Westlaw and Lexis. Westlaw and Lexis are orders of magnitude more comprehensive (covering all federal caselaw from all levels, all state caselaw, all statutory law, law reviews and treatises, legislative history such as congressional reports, and much more). Plus, as noted by many folks above, Westlaw and Lexis will tell you if a case has been narrowed or overruled or cited approvingly by subsequent cases, and that sort of information is simply invaluable.

• [DavidNYC]

  Carl, I think you are misapprehending the value-add of services like Lexis and Westlaw. Many of the “tools” (which you deem “primitive”) offered by the commercial services simply cannot be replicated through computing (barring the invention of artificial intelligence).

  I’m speaking of the headnotes, case summaries, procedural postures, and probably a lot of the shepardizing as well – for instance, how could a computer know whether a case has been “question” or “criticized” by another?

  These have all taken millions of man-hours to compile and may well be the most valuable features Lexis has to offer. Most searches yield a lot of chaff; without the case summaries, for instance, you’d have to read a hell of a lot more text to separate out that chaff.

  Don’t get me wrong – I’d love to see what clever entrepreneurs could do with raw access to US caselaw. But without all the human-produced value-add, I think any such project would necessarily lag Lexis & WestLaw in almost insurmountable ways.

  (I also think that many of the commenters here were reacting to Cory’s headline, which I don’t think makes a supportable claim.)

• [tmoore1081]

  Agreed, Hounskull, completely. As a law student, I would be asking for academic suicide if I used something other than Lexis or Westlaw. These services allow you to zero in on specific legal points that appear only once or twice in very long opinions; conduct broad searches across jurisdictions, administrative records, secondary sources, etc.; and, perhaps more importantly, use indexing features to “browse” for answers, rather than search. The entire value of Lexis or Westlaw is simply not the primary material itself.

  I agree with the sentiment: it’s very off-putting when private companies have such strangle-holds on public information. But, like Hounskull says, it’s not the information per se but how the services digest and organize that is valuable. Without these services, practicing and studying law would be far more inefficient, if not impossible.

• [whoknew]

  Cory, that headline is WAY sensationalist — or were you trying for controversy? :)

  Don’t forget that every federal judicial office has all its own caselaw in book form. They really just need a good reliable search engine. West and Lexis provide that and SO much more (as other posters have noted).

  Carl: once you have a complete database and a search engine that is as advanced as those of West or Lexis, then you can start arguing that we should all switch to neutral citations. Once we switch to neutral citations (which will happen one day) then you will be on better footing. Until then, you really have nothing to offer the government.

• [Troy]

  As a lawyer I second (or is it “third”? Hounskull.

  I would also not be surprised if the bureaucratic hassles of accepting a gift in lieu of the bidding process and other government-contracting regulations make keeping the existing contracts in place easier.

• [jlmink]

  This post has two questionable premises:

  (1) Westlaw and Lexis are just expensive versions of something available for free; and
  (2) The U.S. Government is paying millions to access Westlaw and Lexis.

  Many posters have addressed (1), but what about (2)?

  I searched the government reports in the linked scribd site (including the Judiciary Information Technology Fund Annual Report), but couldn’t find any line item for the cost to the courts (and by extension, us) for the use of either service. This didn’t surprise me, because I believe they don’t pay for them at all. When I externed for a federal judge, I was told I could use either service as often as I wanted, because they both donated their services to the courts. Now maybe there’s some other objection to Lexis and Westlaw giving their services to courts (and to law students) for free (e.g., it’s antitrust dumping & prevents entry into the market by competitors), but unless someone can point to an actual cost to the government of using these services, it looks like premise (2) above is faulty, which means, according to the points raised above, that the courts are currently receiving *for free* a service with a lot of added value, making it not at all surprising that they wouldn’t need a new free service that lacks the added value.

• [yesno]

  Yep. With WestLaw and Lexis, you’re paying for the annotations. Their search and other purely computerized offerings are pretty shitty, although their printed cased reporters are near perfectly done.

  I’m all in favor of public domain annotations and so forth. But even the best case syllabus prepared by a court pales when compared with the annotations offered by any of the commercial services.

• [Jeff]

  I have access to data bases like these, and they are wonderful. And lawyers and judges protect their own culture, so I wouldn’t expect much to change.

• [dystopias]

  Also, westlaw and nexis/lexus contain a lot more than just “50 years of decisions of the U.S. Courts of Appeals” – and i could see the US wanting everything, not just those.

• [Bill Higgins– Beam Jockey]

  There’s a recent interview with Carl Malamud on Jon Udell’s podcast. I recommend it.