Features - Open Access to the Law: Internet Legal Publishing Changing the Face of the Legal SystemBy Kumar Percy, Published on March 19, 2001
Kumar Percy is the Head of Reserve and Media Services for the University of Texas Tarlton Law Library. He is a member of the State Bar of California with a law degree from Tulane Law School and a MLIS from San Jose State University.
Finding the law is the bread and butter of every lawyer in America. Gillian Hadfield of the University of Toronto recently explained in the New York Times that society places a market value on lawyers based upon how much more that they know about the law than the average consumer. People are beginning to rethink that value, as they are able to locate more legal information online for a less cost than ever before. These changes are not only influencing consumer confidence; it is forcing the legal community to evaluate basic principles, such as the meaning of the rule of precedent. This article discusses the way that Internet legal publishing is transforming the legal system.
Governmental Internet Publishers
Computer technology has enabled courts, legislatures, and agencies to publish their own materials directly and without charging for access on the Internet. For example, statutes are now regularly available online for free as soon as they are passed. Congress releases all statutes on its website, Thomas (http://thomas.loc.gov/). It also publishes bills, reports, hearings and the Congressional Record online. These items are cross-indexed and easier to use than existing print resources. State legislatures are similarly making their activities and laws available through electronic means.
In the administrative arena, the Code of Federal Regulations and the Federal Register are available through the Government Printing Office’s GPO Access website (http://www.access.gpo.gov/). The regulations are also republished in several places such as Findlaw, an online legal index (http://guide.lp.findlaw.com/casecode/cfr.html).
Agencies are also publishing both formal and informal rulemaking on their own websites. Many of these items are hard to find in print. For examples, FAA regulations are available at http://www.faa.gov/. The Federal Trade Commission publishes antitrust advisory opinions online at http://www.ftc.gov/. The EEOC releases its Compliance Manual through http://www.eeoc.gov/. Official FDA forms are on the FDA site, http://www.fda.gov/. At the state and local level this list would include many administrative items that were traditionally unavailable in print.
The availability of case law is increasing on the net. The U.S. Supreme Court publishes its opinions on the Court’s own website, http://www.supremecourtus.gov/. A growing number of courts are also publishing opinions through Internet sources. The Texas Supreme Court publishes its decisions on the court’s website (http://www.supreme.courts.state.tx.us/). Other courts have used publishers who do not charge for access. As part of an agreement between New Jersey Administrative Office of Courts and Rutgers University School of Law – Camden, the law school publishes New Jersey state court opinions. The opinions of many courts are available on services like Findlaw and Cornell’s Legal Information Institute. Among their many services, both websites republish selected government information.
Because the opinions are available on the web, third party publishers can index several sites on a single website. Although each of the 13 Federal Circuit courts has its own Internet publishing source, Findlaw has created a standardized search engine to find cases on each of the systems (http://guide.lp.findlaw.com/casecode/).
Finding Governmental Websites
It is relatively easy to find legal information online, as there are several indexes of government websites. However, no single index is definitive. Federal websites are indexed through the LSU Federal Government Agency Directory (http://www.lib.lsu.edu/gov/fedgov.html). Piper Resources Index of State and Local Governments on the Web provides users with access to most state and local websites (http://www.piperinfo.com/state/index.cfm). Lastly, Findlaw is an index of legal information on the web. If all of these fail to produce a desired website users can try a general index such as Yahoo (http://www.yahoo.com) or a reliable search engine such as Google (http://www.google.com/).
Pros and Cons of Government Internet Publishing
Internet publishing has unique benefits and shortcomings. One advantage is that even unmarketable information will be published. John Joergensen explained in the online journal LLRX.com that for a time Rutgers - Camden's website was the only source for the New Jersey Administrative Reports. No other publisher was interested in the item. Agency rulemaking has traditionally been difficult to locate because it has a small niche market. State regulations were often unavailable in print.
Governmental Internet publishers can deliver information much faster than paper companies. Federal statutes are available on Thomas soon after they are passed into law, and the U.S. Supreme Court makes opinions available on the web almost immediately after they are released. During the recent Florida election recount, the Supreme Court website published briefs and opinions before any commercial source, including Westlaw and Lexis. However, the commercial publishers usually take longer to release cases because they spend time inserting value added features, such as headnotes or citation indexing.
One significant problem with Internet publishing is a lack of standardization. Because each organization designs its own unique website, it is not possible to develop a single strategy for using Internet published sources of law. The sites can change dramatically overnight. Just as a website becomes familiar a revision can force a researcher to relearn how to use the tool. Additionally, some Internet sources are difficult to navigate, burying valuable documents within the website.
Updating a citation is difficult with government websites. The US Code is available online through GPO Access (http://www.access.gpo.gov/congress/cong013.html), but GPO does not include case law annotations. Additionally, the code is only as current as the latest official print version. On December 1, 2000, titles 1-17 of the Code were current through January 23, 2000. The rest had not been updated since January 5, 1999. The website has no suggestions about how to update the code sections. Only experienced researchers will think to look for more recent statutes on Thomas, the website from Congress.
Case law is even more problematic. Cases older than 1990 are generally not available through free Internet sources, with the exception of U.S. Supreme Court cases. Additionally, cases on free websites lack editorial enhancements such as headnotes and links to items cited within each document. Also, these sites do not have an updating system that is as easy or accurate as commercial citation checking services, such as Shepard’s or Keycite.
Legal Commercial Web Site Publishers
For those willing to pay a small fee, there are several commercial publishers that use the Internet to compete with Westlaw and Lexis. Loislaw (www.loislaw.com)1, Versuslaw (www.versuslaw.com),2 the National Law Library (http://www.itislaw.com/),3 and Quicklaw (http://www.quicklawamerica.com/)4 are several commercial databases of legal information. As of this writing, each of these systems is much cheaper than the two major competitors. Versuslaw offers a flat rate of $6.95 a month for unlimited access. Quicklaw offers a flat $5.00 a search charge, or a flat rate of $70 a month. National Law Library has a flat fee of $49 a month. Loislaw offers a single jurisdiction for $59 a month or $139 for the entire database. Some of them offer special discounts for law schools.
Additionally, commercial services offer enhanced features not available through free Internet sites. These companies provide a consistent and well-documented search system. They all have telephone assistance to help users access the databases. Their databases often have more depth than free sites. For example, most of the commercial website have cases that are much older than the government websites. Quicklaw offers an annotated United States Code. The National Law Library offers a brief bank and a legislative tracking service. Loislaw offers its own citation checking system called GlobalCite,5 which both updates cases and annotates statutes. Quicklaw is working on its own Quickcite product.
These companies provide a professional option to augment government web publications. In a recent article, Carolyn Elefant, a D.C. attorney, reported that by using free web publications and Versuslaw she was able to write briefs that were as well researched as her opposing counsel’s, which were probably created with much more expensive research tools.
Internet publishing is even affecting the larger commercial publishers. Lexis offers free case law through their lexisONE service (http://www.lexisone.com/).6 It provides access to thousands of free forms, U.S. Supreme Court cases since 1790, and selected federal and state cases decided since January 1, 1996. Researchers can use standard Lexis search strategies. The product does not have the value-added features like access to Shepard’s or Lexis core notes, but it does allow anyone to find recent case law for free.
Some online publishers are packaging legal information directly for the consumers. The best example is the growth of legal forms online. Forms give people a framework to evaluate their legal rights. Publishers market them by suggesting that consumers can customize a form and have a lawyer check it for mistakes. The hope is that a lawyer will charge less to review a form than to draft one from scratch.
LexisOne has thousands of free forms, including some found in Mathew Bender publications. LawVantage charges $100 to $500 for subscription access to forms that have been created for lawyers. MyLawyer.com charges a flat fee for access to forms. They can cost less than $20 each. For those with more complicated legal problems, MyLawyer offers access to a telephone lawyer for less than $40 per call.
Other more advanced forms are also available. Nolo press maintains Nolo.Com (http://www.nolo.com), where it sells legal forms, legal books, and software to help create legal forms. Findlaw includes court forms from most state and federal courts, tax forms, and thousand of sample contracts.
There are other publishers with legal specialization. Immigration forms are available from VisaLaw.com, a service of Siskind, Susser, Haas & Devine. The site also includes information about consulting with Immigration lawyers in the firm. Divorce forms are organized by state in DivorceCentral.com. This site also includes links to state family law information.
Consumer Awareness of the Law
Internet publishing is inexpensive and easy to use, and it is giving the lay public a greater access to the law. Rutgers tracks usage of its legal databases by asking researchers to complete a survey. In 1999, it was attracting 600 questions a day. It also reported that 45% of those who answered the questionnaire were lawyers or paralegals.The other 55% were not members of the legal community and would not have a subscription to Westlaw or Lexis. This consumer information trend could change the legal profession the way that it is disrupting the medical community.
The Pew Internet & American Life Project recently found that 70% of Internet users with health problems are researching their ailments online. Medline and other online health services are providing access to recent and credible medical information. These services include consumer enhancements not yet available in law related websites, such as an online medical dictionary available on Medline Plus (http://www.nlm.nih.gov/medlineplus/). Dr. Tom Ferguson, a senior associate at Boston's Center for Clinical Computing, a medical computing think-tank at the Harvard School of Medicine, believes that this phenomenon is undermining physician’s traditional authoritarian relationships with patients. Doctors are no longer a patient’s sole source of information. It may be that Internet legal publishing will allow clients to take a similar interactive role in their legal problems
Another impact of computer technology is that lawyers are regularly citing opinions that are not published in print reporters, even though most courts have rules against using “unpublished” cases. Traditionally judges have designated which cases to publish, picking those opinions that have significant discussions of legal issues. These become part of American common law, the others are supposed to be forgotten by everyone except the parties to the litigation. Until recently, if a case was not published in print it was unavailable to the public. In a recent Texas Lawyer article, Justice Hecht of the Texas Supreme Court explained that citation rules were originally designed to insure that those who had the resources to find unpublished cases did not have an unfair advantage over those without the resources. Others argue that the judges have used the publication rule to hide cases that are decided without the care given to a published opinion. The critics fear that judges are less accountable for unpublished cases and these cases have become an area of law which is distinct from the more reasoned arena of the common law.
However, computer publishers are releasing cases that were not certified for publishing. Lawyers are finding the "unpublished" cases and arguing that they should be followed. In fact, major publishing companies like Lexis and West Group make millions of cases available that were not marked for publication. A search of Westlaw found over 10,000 "unpublished" opinions from 1999 alone. Although the Federal Reporter grows by ten volumes a year, the number of published cases remains low. The Administrative Office of the United States Courts reported that 20,769 or 78.1% of Circuit Court opinions were not published in the year ending on September 30, 1999. With state cases the percentages of published cases vary. Westlaw contains over 3,000 unpublished state cases from 1999.
The issue became the talk of the legal community after an Eighth Circuit panel held that it was unconstitutional for court rules to forbid citing "unpublished" opinions. The court in Anastasoff v. U.S., 223 F.3d 898 -Opinion Vacated as Moot on Rehearing En Banc by 235 F.3d 1054 (8th Cir., 2000) concluded that the Founding Fathers established the federal judiciary with the understanding that judges would use the rule of precedent. Therefore, rules that limit the precedent are unconstitutional. The court was clear that a judge is still free to refuse to follow poorly decided cases, but must first distinguish or overrule it. State supreme courts, including Pennsylvania and Texas, are currently reevaluating their own rules against citing "unpublished" opinions.
Conclusion: Entering a New Age of the Law
Grant Gilmore wrote that the advent of modern legal publishing in the 19th century fundamentally changed the legal system. It allowed lawyers to see more cases and for the first time analyze each one. This made the law more consistent. The Restatements and Uniform Laws came out of that period. Gilmore believed that this transformed the US from a country of men to a country of laws. Internet publishing is beginning to have an equally great effect on the legal system. The law is becoming more available to the lay public as well as more open to public scrutiny.
A nagging problem for the bar has been how to help the “working poor” gain legal representation, those who cannot afford a lawyer, but are not poor enough for legal aid. As legal research costs decrease, legal representation fees may as well. More immediately, legal assistance programs are now creating classes to teach the public how to use the Internet for legal research. With this skill they can more effectively represent themselves. Citizens are able to look up new cases and legislation from the comfort of their own home, and at any hour of the day. Even people with legal representation can better handle their legal affairs by researching laws online.
Since the O.J. Simpson case, the media has questioned if the legal system needed a fundamental reform. The public will now be able to critique the system more effectively. Thousands of people downloaded and read their first U.S. Supreme Court opinions during the recent presidential election cases. Based upon their own research, the lay public was able to evaluate the validity of the decision for themselves. With the Internet, all of government is more open to the public.
Government groups are responding to this heightened scrutiny. Reconsidering the rules about unpublished cases indicates that courts know that all of their opinions will be scrutinized, not just the published ones. In light of this closer examination, all judges may now invest the same degree of care in writing every decision. Additionally, as more unpublished cases become legally binding the law will grow more internally consistent. As more agency rulemaking and legislative actions are open to public scrutiny online, they too will become more consistent with other laws. Legal publishing made the law stronger a hundred years ago. Today, the Internet is able to continue the process.
Late Breaking News
On January 26, 2001, West Group announced that it had purchased Findlaw. Although Findlaw is expected to remain an independent subsidiary of West Group, it is too early to determine how this development will effect legal publishing on the Internet. (See Sabrina I. Pacifici's February 15, 2001 article, A Perspective on the West Group Acquisition of FindLaw).
- 1 The LOIS Law Library: A View through the Southern California Online Users Group Rating Scale Lenses," by T. R. Halvorson, Published March 1, 1999. <back to text>
- 2 VersusLaw's V.: A View through the Southern California Online Users Group Rating Scale Lenses, by T.R. Halvorson, Published March 15, 1999. <back to text>
- 3 National Law Library: A View Through the Southern California Online Users Group Rating Scale Lenses, by T.R. Halvorson, Published May 1, 2000. <back to text>
- 4 Quicklaw America: A View Through the Southern California Online Users Group Rating Scale Lenses, by T.R. Halvorson, Published October 1, 2000. <back to text>
- 5 GlobalCite: Is it a Third Citator? by Tobe Leibert, Published March 1, 2001. <back to text>
- 6 lexisONE: The New Internet Resource for Small Firm Attorneys and Solos, by Sabrina I. Pacifici, Published July 6, 2000. <back to text>