Features - A Defense of Publishing Legal Material on the InternetBy John P. Joergensen, Published on January 15, 1999
John P. Joergensen, Rutgers University Law Library - Camden, NJ
John P. Joergensen is a reference librarian at Rutgers University School of Law Camden. He works on the Rutgers N.J. Courts Publishing Project, which publishes the decisions of the N.J. appellate courts, tax court, administrative law decisions, and the U.S. District Court for N.J. Prior to coming to Rutgers, he practiced law in Philadelphia, PA.
(Archived February 15, 1999)
This article is mainly the product of a posting to the law-lib listserv that I submitted in December, 1998 in response to a posting by Beth Mrkvicka of the results of a survey she conducted of law firm librarians. She sought to ascertain their attitudes on conducting legal research using resources available on the Internet, as compared to using Westlaw or Lexis.
The results of that survey, and Ms. Mrkvickas conclusions, were generally critical of using the Internet for legal research. To be fair, Ms. Mrkvicka was writing in the context of a law firm librarian whose company has access to Lexis and Westlaw, and she addressed the question of whether the Internet is a viable substitute for these systems. As such, her comments are correct: Lexis and Westlaw are both fast and convenient and the Internet is not. Over time, Internet sites will probably add more and more value (in the form of better search engines, cross referencing, cite checking, etc.), but it will be years before the Internet comes close to the tools available from the online services. If ever. As such, it is indeed a bad idea for anyone to consider the Internet as a replacement for Westlaw or Lexis.
Internet Versus Commercial Services for Legal Research
If that is the case, why do we bother to publish on the Internet? We do it for the public, and for the large numbers of lawyers, accountants, and other folks who need access to legal materials and cannot afford the online services. Believe it or not, there are thousands of people who fall into this category. In fact, there are many lawyers who cannot afford Westlaw or Lexis.
I believe most people involved in Internet legal publishing have views similar to those of Joe Acton, C.E.O. of Versuslaw. In a 1997 interview with Gayle OConnor, he stated:
For years, attorneys and legal researchers in large firms have had access to quality online legal research from Westlaw and Lexis. We are not trying to compete with either of these companies. Our focus is on the small law firms and solo practitioners who have not been able to afford the same kind of quality research as their counterparts in the large firms.
"LOIS and Versuslaw: Two Good Products on the Web, Part I", Legal Information Alert, 16:8:1. To this, most non-profits would also add the general public to their target audience.
Having said that, there are reasons why even a lawyer at a firm large enough to have a librarian should consider Internet legal sites useful as an additional source. There are some sites that are in fact more timely than Westlaw or Lexis. Cornell gets its Supreme Court cases up the day they come out. At Rutgers, we usually beat the online services with the NJ supreme court and appellate division cases by about 24 hours. So, if you need a very new decision, there are some sites that are useful to know about.1
Another reason to pay attention to the Internet is that there is still a lot of useful information that Lexis and Westlaw may not have. For example, in October 1997, Barclays Publishers announced that they would cease publication of the New Jersey Administrative Reports. Since that time, Rutgers has been publishing those decisions on the Internet, and for a time was the only source.2 This is something that I am sure is going to be an increasing phenomenon as the large publishers continue to drop specialized material which is not sufficiently profitable.
As to authenticity, it is, or should be, well known that the authenticity of anything on the Internet cannot be taken for granted. This is unlike the commercial services, where authenticity may safely be assumed. For a reasonably intelligent librarian, however, there are lots of sites out there that can provide a good trustworthy secondary source of information. Why not use it?
This does not address, of course, the time it takes to identify the trustworthy sites, and the issue of how lawyers and others clientele will make use of these resources. The answer to this depends on your role in your organization. If it is part of your job to keep up on new resources, then it seems clear that you should become familiar with the Internet. Given a positive answer to the first question, the second is that it is up to the librarian to insure that others are aware of what is out there, both bad and good.
One topic I was surprised to see reflected Ms. Mrkvickas summary was a distrust of the reliability of Internet connections as opposed to connections to Westlaw or Lexis. The surprise was from two sources. First, while the commercial services certainly do their best to assure constant service, busy signals and server failures are by no means unknown. Although there are several Internet service providers who do not do as well in provision of service, there are many who do. Bad Internet service need not be tolerated. Also, for those who have checked out Lexis Xchange and the new Westlaw website, you have seen our future, and it is on the Internet. Both services have established web-based interfaces to their services, and we can be sure that they will be moving quickly away from their costly dial-up access and onto the Internet.
The Future of Legal Research Services on the Internet
So, granted that the Internet of today is not as good for legal research as the big online services, what of the future? It is doubtful that the Internet will ever have all the resources and value-added features of the online services. However, it is interesting to consider whether the time will come when the usefulness and usability of the Internet will be close enough to be a viable alternative for those who cannot afford the expensive services. Just as the major online services improved their offerings over time, Internet providers can be expected to do the same.
In fact, there is evidence that this is happening. For example, both FindLaw and the Cornell site have been making efforts to make the cases available at their site more interactive. Cornell now has included hypertext links to U.S. Reporter, U.S. Code, and U.S. Constitution citations within the text of its cases. Similarly, FindLaw now allows look-up of its Supreme Court Cases by citation as well as by caption and free text search. Right now, there are limitations on both those systems. FindLaw has hypertext links only to other FindLaw U.S. Supreme Court cases. Cornell has links to the codes it publishes and to U.S. Supreme Court cases. With the Supreme Court hyperlinks, however, it cannot link to its own documents, but provides a choice of getting the cited case from Findlaw, U.S.S.C., or from Westdoc. To be fair, since Cornells system of filenames does not correspond to U.S. Reporter cites, it would be very difficult for Cornell to create hypertext links out of the citations in all its cases. It is possible, however, and will hopefully be done sometime in the future.
Perhaps even more significant, however, are the possibilities that arise when one considers the nature of the Internet as a distributed system. In the time of dial-up connections, in which Lexis and Westlaw were developed, a widely distributed system for storing and retrieving cases was not practical. With the advent of the Internet, however, the situation has changed. It is now possible for different locations to store and administer parts of an information collection, and for the end user to still be presented with one common interface that can access the entire collection.
Practically, it is not difficult to program a search engine to index material that is geographically distributed and make it all searchable via the single search engine. Yahoo, AltaVista, etc. have proven that. It is easier to index specific materials located at a relatively small number of locations, such as the institutions that currently make legal material available in the Internet. In fact, Mark Folsombee at Washburn has been experimenting with just such an arrangement. What needs to be done, however, to make such a search engine truly useful, and for the resulting system to have a utility the approaches that of the commercial services, is that all the institutions that are publishing material, both academic and court based, must cooperate to make all their material equally available, and to work on a common set of formats for presentation of material that will allow effective searching of the entire collection by a single search engine. This would probably mean that courts which now publish only in Adobe Acrobat format would have to make available some HTML or XML-based version of their material, which could then be tagged pursuant to a common agreed-upon scheme.
The advantages of a common format and system of metatags in documents would be that not only would a single search engine be able to index and search the entire group of collections, but that several useful search fields may be defined and included for all the documents. These fields, such as date of decision, jurisdiction, etc. would greatly improve the ease and utility of Internet research.
Finally, although many of us never see it, those of us in the educational and public sectors need to realize that it is not an empty claim to state that there is demand by the public for no cost access to basic legal documents. The demand for legal materials on the Internet is demonstrated in the usage statistics that are generated at our site. Since we first made New Jersey appellate decisions available, we have had a steady growth in use. Currently, we have over 600 searches per day of our materials.
The demographics of our users is also significant. Of 679 people who submitted responses to an on-line user survey, about 45% responded that they were attorneys or paralegals, the rest reporting a variety of other occupations. So, although the largest single group of users are in law, the service is being used mostly by people who would certainly not be Westlaw or Lexis subscribers. In addition, there are approximately 5,500 people per month who access our recent opinions page without conducting a search. This page has a summary and links to the most recent two weeks cases. Anecdotally, I have been told by several attorney users that they check the page regularly to monitor current cases.
Considering that New Jersey appellate decisions are a fairly specialized item, and that we do not advertise the site, the usage at Rutgers is sizeable. It can only be imagined how much higher the demand is for things like U.S. Supreme Court opinions. Given this, it seems clear that Internet sources really do address the needs of a market that Lexis and Westlaw do not. Both Lexis and Westlaw are remarkable in the speed and convenience that they have brought to legal research. In doing this, however, they did not do anything to expand the availability of legal information. The Internet is different. For all its difficulties, it is bringing precious basic documents into the hands of a public who has never had such access before.
Again, to be fair, the delays by Westlaw and Lexis are mostly due to the additional processing for the value-added features (such as head notes and multiple search field restriction) that are not part of the Rutgers service. <back to text>
Some months after the Rutgers began publication of the N.J. Administrative Decisions, Lexis also began collecting and making them available in the NJAGEN file. As of January 7, 1999 however, the Scope note for that file still incorrectly states that the file stopped developments as of September 1997. <back to text>