November 5, 2009
Some Thoughts on the Bob Berring Video Comments
Bob Berring’s statement about Lexis and Westlaw being a better alternative to legal research than volunteer Internet sites is pretty accurate. Both databases offer depth of resources, organization, precise search language and tools that simply can’t be matched by the Internet in its current form. I also agree with Berring that the work performed by volunteer sites is admirable. Nonetheless, they do not come close to the rich research experience available to Lexis and Westlaw subscribers. If nothing else, West (and Westlaw) has a 100+ year start on gathering and organizing Anglo-American law and providing the metadata to make that law accessible. Lexis started in 1975 but it was then and is now well capitalized to compete with West at the same level and with comparable editorial standards. Who else is out there who can match these efforts (read through to the bottom for the answer to this question)?
One fact worth exploring here is who constitutes the target audiences for commercial and free resources. Law students get subsidized access to Lexis and Westlaw for three to four years before they go into their legal careers. The analogy to drugs is apt. The first one is free, then (addicted) you pay. That indoctrination is abetted by promotions and some form of customer service. Lexis and Westlaw are squarely aimed at the legal professionals who have enough cash to pay for the convenience of comprehensive legal research. The Internet target is anyone, and that includes legal professionals, paralegals, pro se plaintiffs, and anyone else who needs to find law. The Internet is a great place to find law, but not a great place to research the law. And that is essentially the problem.
Primary law is all over the place. States place their laws online. Illinois does that. Note this statement from the General Assembly’s web site:
Disclaimer: This site contains provisions of the Illinois Compiled Statutes from databases that were created for the use of the members and staff of the Illinois General Assembly. The provisions have NOT been edited for publication, and are NOT in any sense the "official" text of the Illinois Compiled Statutes as enacted into law. The accuracy of any specific provision originating from this site cannot be assured, and you are urged to consult the official documents or contact legal counsel of your choice. This site should not be cited as an official or authoritative source. Court decisions may affect the interpretation and constitutionality of statutes.
This comes from the government, and the government says not to cite it. The U.S. Supreme Court does the same thing with its PDF copies of U.S. Reports on its site. If there is an conflict between the online version and the printed version, the printed version controls. This is one reason why Berring questions the value of governments fronting primary law on the web to the citizenry. How authoritative, then, are third party sites? In one sense, the courts will rely on unofficial texts in paper and online from West and Lexis, and not from the source that created and hosts those texts. The irony is palpable.
I remember in my days at Texas sitting in on a meeting with West representatives who displayed several mock-ups of pages of Wisconsin cases as they might appear in the Northwestern Reporter. This was in the days before a hearing by the Wisconsin Supreme Court regarding the adoption of an open citation format to published Wisconsin cases. The case was promoted as a way to open the law beyond the control of West, West citations, and even the book. Wisconsin did adopt a form of open citation, West added the elements to its presentation in the Northwestern Reporter, and nothing for all intents and purposes changed. The law became open (hooray) and West continued to profitably sell NW2d volumes to firms in the Badger state.
I remember sitting in on another meeting five years later where an independent author lectured about the book he was writing. One of his themes was that West and Lexis were dinosaurs in the Internet age, what with the explosion of free legal resources on the web. He made the case that closed systems such as Westlaw and Lexis couldn’t compete with free. Needless to say West and Lexis competed quite well with value added materials. Do not underestimate the power of the West Key Number system as a way to cross reference law. Lexis finally agreed when it created something like it for its database, albeit without the numbers. It’s hard to beat “more like this” when it’s precision driven. Then there are the scholarly secondary sources that are cross referenced to the cases and each other.
Legal commentary available via the web is represented by recent law review articles, law firm newsletters, blogs (shameless plug: see our other fine offerings on substantive legal topics at Law Prof Blogs) and wikis, none of which compare to published treatises in scope and coverage of legal topics. Citators in any useful form are nonexistent. Why is this? Because copyright keeps the good stuff locked away behind a pay wall and there is no editorial consistency across free sites. I make the point again that the Internet is a great place to find law, but not to conduct research on a legal topic.
A practitioner can get single opinions from court web sites and save a buck or two instead of getting it from Lexis and Westlaw. Research capability on the web is not conducive to becoming aware of that opinion unless it is a case significant to generate news or commentary about it. Even then it can take effort to locate enough information to make that opinion findable. If there is one aspect of legal research that the professional on down is aware of, time is rarely on anyone’s side. Google is of little help here, except possibly for Google Scholar, as search results have an awful lot of chaff for the wheat that is available.
Now, back to our earlier question, who can compete with the efforts of Lexis and Westlaw and still make primary law available in a free, organized, and searchable form? Google. It’s obvious they have no plans to create a legal database, at least as of now. But if their mission is to organize all of the world’s knowledge in an easily findable form, then it’s a natural for them to take on a project such as this. Moreover, they are probably the only company who has the capital and the mindset to upset the status quo for organizing legal literature online. If Google gave us Boolean search (something it does not have now) and organization (something it can do) it can give Westlaw and Lexis a run for their money. That may make them even better. [MG]
I don't think Google has the appropriate interest in making legal information accessible and, even if it did, it is not a matter of slapping a search engine onto the content and solving the problem.
The alternatives to Westlaw and Lexisnexis on primary law have, so far, have been of two types. One includes the lawyer-funded efforts like CanLII in Canada, or Casemaker which began as a consortium of bar associations whose members funded development. The other are funded in other ways but essentially fall into the two same categories, LIIs and mid-tier products like Fastcase, Loislaw, Versuslaw. Free government documents have not tended to be wrangled into a comprehensive enough resource to make them good alternatives.
Lawyers do not solely become aware of cases through their research tools and then have a "Eureka" moment. If they are pulling a case, they'll have seen it in the local bar news, heard about it from a colleague, or learned about it during a CLE seminar. They might as well pull that case from a freely accessible resource as a fee-based system. Unless lawyers are engaged in detailed research, more and more they can rely on resources other than Westlaw and Lexisnexis for the "good enough" research they require.
To your point on commentary, they are better off purchasing a few softbound books, and then finding the best online resource for their primary law research. It won't necessarily always be of one type, and the strength of freely available primary law means that a subscription to a single resource for a decreasing amount of research may not make sense.
Posted by: David | Nov 6, 2009 6:38:29 AM