Democracy in the Dark:
Public Access Restrictions from Westlaw and LexisNexis
by Melissa Barr - Legal Resources Specialist - Cuyahoga County Public Library
"Democracies die behind closed doors....When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation." So spoke Judge Damon Keith in Detroit Free Press, et al. v. Ashcroft. Judge Keith was discussing closed immigration hearings in the wake of 9/11. He might have been talking about the public's lack of access to legal information databases, especially case law databases. Although many courts now publish case law on the Internet for free, thousands of older cases are not available to those who cannot pay. Hundreds of public libraries across the country provide online access to their patrons in an attempt to bridge the digital divide, covering all areas of information need. Yet often these public libraries are not allowed to offer access — free or fee — to legal subscription databases maintained by the two largest legal vendors in the U.S. And those same vendors also constitute the largest publishers of legal materials in print. Amidst a growing wealth of free, reliable information on the Internet, there is a poverty of access to the decisions and opinions of the courts that protect our liberties.
Two multinational corporations control print and electronic legal research materials used by courts and law firms in the U.S. Canadian conglomerate Thomson Inc. owns Minnesota-based West Group Inc., developer of the Westlaw legal database. Anglo-Dutch conglomerate Reed Elsevier Inc. owns Ohio-based LexisNexis1 Inc., which owns the electronic database by the same name. For over a decade these companies have been on a buying spree. Thomson and West Group acquired nearly 20 legal publishers in North America, the free FindLaw database, and the online legal directory, Lawoffice.com. Reed Elsevier and LexisNexis acquired nine legal publishers in North America and at least three electronic databases2. Wolters Kluwer, another Dutch corporation, acquired several legal and business publishers in the U.S., but runs a distant third in this publisher's sweepstakes.
Thomson and Reed Elsevier have nearly cornered the market for legal research materials. Then-president of the American Association of Law Libraries, Robert Oakley, expressed concern in an August 2000 Washington Post interview. "You've really got only two publishers to choose from, and you can't go beyond that. Together they exercise almost total control over the marketplace."3 Through their numerous subsidiaries, the two companies publish print versions of federal and state court cases, federal statutes and codes, state statutes and codes, and supplementary legal materials, including dictionaries, encyclopedias, law firm and attorney directories, state and federal handbooks, forms books, and manuals. Many of these publications are recognized by courts as respected, authoritative sources for legal opinions, definitions, and interpretations; some have even become the "official" publications for statutes, codes, and case law.
On October 30, 2002, LexisNexis announced that it had signed a 7-year contract with the State of Virginia4 to maintain the state statute Web site. This is a convenient contract, since LexisNexis owns Michie Company and Michie has published the Code of Virginia for so long that it was nicknamed the Michie Code. LexisNexis has contracts to maintain free statute sites for the states of Delaware, Mississippi, New Mexico, Tennessee, and Vermont. The company also announced its merger with Anderson Publishing Company5, a Cincinnati-based legal publisher that maintains the official, free Web site for the Ohio Revised Code, Ohio Administrative Code, and Ohio Court Rules. Anderson publishes the print versions of the Ohio codes and rules, as well as handbooks and manuals for Ohio and 15 other states.
The contract for the District of Columbia code is currently held by Westlaw. Published by Michie for many years, in 1999 publication of the code was in limbo. LexisNexis acquired the contract when it acquired Michie in 1994. The city put the contract out to bid in 1999. West Group was awarded the contract a month after the old contract expired. Because of the delay, LexisNexis argued to have the contract rebid, but refused to give up the subscriber list for the code. Without the list, West didn't want the contract. LexisNexis offered to publish the code in exchange for temporary copyright access to some materials. City officials were outraged that LexisNexis wanted to "own" the law6. In January 2001 the contract was awarded to West7.
Many court Web sites provide access to current case law, but sites generally go back only a few years and documents may require downloading onto a hard drive or a disk, something not always possible on public library Internet terminals. I surveyed each state's case law Web site via FindLaw [http://www.findlaw.com/11stategov/] and found that most state databases don't include opinions prior to 1995. The oldest database is Oklahoma, with cases from 1919 on. California starts in 1934, and Hawaii in 1989. Six states include opinions from 1990 to 1994. A seventh state, Ohio, has opinions from 1990 on for the Eighth District Court of Appeals, but most Ohio appellate courts start in 1997. The Ohio Supreme Court site directs users to the FindLaw Web site for older cases, as the court only archives current cases. Although the FindLaw site archives Ohio Supreme Court material back to 1997, for appellate court cases it links to the official appellate court Web site. Cases cannot be viewed on the screen as users must download documents to a disk or a drive. I work at the eighth busiest library in the country, Cuyahoga County Public Library in Ohio. The library doesn't have download capabilities on its public or staff terminals. Cases on the Ohio court Web site are not accessible for anyone using a public terminal. The digital divide is still there.
Numerous gateway sites supply links to state and federal court sites. The once-independent FindLaw site is now owned by West Group. FindLaw has U.S. Supreme Court cases back to 1896. Circuit court of appeals cases vary by circuit, but most include cases from either 1994 or 1995 on. The district court section simply links to each court's site, so coverage varies.
Quite a few universities have excellent legal gateways available free on the Internet, providing links to federal and state constitutions, statutes, codes, and cases. The Cornell University Legal Information Institute site [http://www.law.cornell.edu.] is my personal favorite, in part because I've memorized the URL. A few years ago, I searched every state's statutes for laws on the privacy of patron records. The Cornell Web site was invaluable in locating the state statutes, but each state database had to be searched one at a time, and the information was indexed differently in each state. Some searches took mere seconds, while others required repeated attempts and literally took days. Louisiana and Pennsylvania were the only states without their statutes available in full for free on the Internet. Currently, Louisiana is up and running, but Pennsylvania is still working on it.
No Public Libraries Need Apply
Using one of the legal vendors would have been much faster. Cuyahoga County Public Library had a subscription to Westlaw and several West CD-ROMs at that time. I wasn't willing to spend the library's money at the rate of $14 per minute (plus print costs) for Westlaw, when the information was available free. Our Westlaw subscription was mainly used to pull up business information or cases not available on the Ohio and federal CD-ROMs. Patrons were not allowed to use the Westlaw subscription. We also had a subscription to Ohio forms on LawDesk. The content was great, but patrons found it difficult to use. After much persuasion, West allowed the library to network the Ohio CD-ROM material to public terminals at four of our 24 libraries.
When our contract expired at the end of 2001, we attempted to negotiate a flat-rate Westlaw contract for all of the materials from the CD-ROMs, plus some other databases. We hoped to make legal databases available to the public at all of our branches, although with a limited number of concurrent users. Neither Westlaw nor LexisNexis was ready to offer such a contract to a public library. LexisNexis' Academic Universe product includes a legal database, but it is marketed only to schools and colleges. Public libraries cannot subscribe to Academic Universe. LexisNexis products available to public libraries don't have the legal database. Westlaw does not have any similar products.
Bear in mind that West Group and LexisNexis, the two largest vendors of online legal information in the country, do not offer their online legal products to public libraries for patrons to use. A quick check of the American Library Directory lists 16,598 public libraries in the U.S. There are 416 law libraries listed under "Government Libraries" and 1,045 law libraries listed under "Special Libraries." Some of those government and special libraries and all of the public libraries are open to the public, serving millions of patrons each year. For many Americans, the public library is their only access to the Internet.
LexisNexis has a pay-as-you-use product called LexisNexis Courtlink. Billed as "the online link to our nation's courts," the product describes who needs to access the courts. In the "Who we serve" section of the site, it states:
Law firms, banks, insurance companies, corporations, government agencies, investigative firms, the media and other businesses rely upon court records to make informed decisions and avoid costly mistakes.... Courts who use CourtLink eAccess also benefit through increased operating efficiencies, improved customer service and a better-informed public" [http://www.courtlink.com/who/who.html].
The "other businesses" include information providers:
Legal information providers can offer private label access to federal and civil court cases. Investment services can supply potential investors with access to recent court cases involving any public company. News sites are able to list recently filed cases of interest to their audience — those involving local community issues, local companies, hot topics, and more [http://www.courlink.com/who/providers.html].
The "LexisNexis CourtLink for You" section is subtitled "Because all kinds of people need access to court records" [http://www.courtlink.com/who/index.html]. The section continues: "Attorneys aren't the only ones who need access to the nation's courts. Individuals in all types of professions draw on court records to do their jobs" [http://www.courtlink.com/who/others/others.html]. In a later paragraph, it states:
A traditional search can cost up to $300 and take several hours or even days to complete. With CourtLink eAccess the average search costs less than $25, takes less than 5 minutes, and produces more complete, up-to-date results.... LexisNexis Courtlink is the leading provider of online access to and from the nation's courts, with more than 200 million records in over 4,000 federal, state, and local courts.
Even in its own advertising LexisNexis acknowledges that "all kinds of people need access to court records."
The two main fee-based competitors available to public libraries are Loislaw8 and Versuslaw9. Another competitor, Quicklaw, was acquired by LexisNexis' Canadian counterpart, LexisNexis Butterworths Canada, in July 2002. The subscription services offer one-stop shopping for case opinions, statutes, and administrative regulations, with one search interface, rather than data scattered across dozens of Web sites with sometimes questionable URLs and search engines.
After checking out these vendors, in 2002, we signed a contract with Loislaw [http://www.loislaw.com], as its product proved a good match for our library's needs. According to our sales representative, Travis Stephens, Loislaw was already available at over 50 public libraries across the country. We networked the subscription to all 28 branches of our library system, using IP authentication to eliminate the need for passwords or user IDs. The subscription allows six concurrent users to search the entire Loislaw database, but only Ohio and federal materials are available in full text. Staff and patrons enjoy the easy access and depth of coverage.
Loislaw offers subscriptions to public libraries and anyone else who wishes to buy them. Versuslaw is available to anyone willing to pay from $8.95 per month up to $34.95 per month for a subscription10.
The two giants do let the paying public use their databases. Westlaw and LexisNexis take credit cards on a pay-as-you-go basis, charging flat rates for documents, with search and print charges included. West documents cost $12 each; KeyCite checking costs $4.25 for each result11. You get charged when you click on the link to display the document or KeyCite result. LexisNexis charges only $9 per document, and the charges apply when a document is viewed. An accidental click can result in big credit-card bills.
LexisNexis offers the "free" LexisOne service, intended for small law firms and sole practitioners. It requires users to register to search the database. The U.S. Supreme Court case database goes back to 1790. Only the last 5 years of U.S. Circuit court cases and state court cases are available for free. U.S. District Court cases are not available for free on LexisOne. LexisOne allows users to purchase cases otherwise unavailable (i.e., not free) cases.
The Lonely Litigant: A Case in Point
In 1990, the American Bar Association conducted a study of pro se (self-represented) litigants. Although limited to the Domestic Relations Court in Maricopa County (Phoenix), Arizona, the numbers were significant enough for the bar to take notice. "Research showed that at least one party was self-represented in more than 88 percent of the divorce cases, and in 52 percent of them, both parties were on their own."12 Maricopa County courts are among a handful of courts that have set up self-help programs for pro se litigants or offered attorney training on unbundling legal services, so an attorney can handle one or two aspects of a case for a pro se client. The ABA's Standing Committee on the Delivery of Legal Services offers help on its Web site [http://www.abanet.org/legalservices/delivery/delunbund.html]. Unfortunately, as with many legal research sites, the information is geared for attorneys, not pro se litigants or ordinary citizens. The site has a list of articles, books, court cases, and so on about unbundling legal services and dealing with pro se litigants. Links to four self-service centers are buried at the bottom of the Web page.
The legal field is more maze than field with overlapping systems of courts, statutes, codes, regulations, case opinions, and legal citations. Legal jargon — partly in Latin, partly in English, but mostly in legalese — adds to the confusion. Laws are written in language broad enough to be applied to many factual situations, yet specific enough to be applied to a recognizable legal principle or situation. If the law says you must be 18 years of age to vote, then you cannot vote if you are 17 years, 11 months and 29 days old on Election Day. Missing it by that much doesn't cut it. However, many laws are less specific and may be open to interpretation. That's when the courts get busy. If politicians pass a "bad" law — such as one that is vaguely worded or cannot be enforced without violating our civil rights — the courts can overturn the law and in essence tell the politicians to try again. If local governments or law enforcement applies the law incorrectly, the courts can clarify how the law should be enforced.
The courts provide us with case opinions or legal opinions collectively known as case law, or cases. (An ongoing lawsuit may also be called a case.) The opinion describes the facts of the case, the law or laws applied to it, and how the court decided to apply the law(s) to the facts. In the state court system, trial courts are at the bottom of the pyramid, followed by appellate and supreme courts, or their equivalents. Usually, only appellate and supreme courts generate opinions. In the federal court system, case opinions are generated by district courts (the trial courts), circuit courts of appeal, and the U.S. Supreme Court. The opinions are printed in a set of books known as an official "reporter" and become part of American case law. Other courts may use these opinions in deciding new cases with similar facts and laws. Lower-level courts follow decisions made by the courts above them, with the U.S. Supreme Court at the top of the legal pyramid.
Why should ordinary citizens be interested in opinions written by judges decades or even centuries ago? After all, we can read the laws ourselves, since most public libraries buy copies of the local ordinances and may also have state and federal codes. And it's available free on the Internet. Do we really need judicial opinions? Yes, we do, because even century-old case law can still be "good law." A U.S. Supreme Court case from 1888 was instrumental in overturning an Internet copyright case covered in the February 2002 edition of Searcher. Carol Ebbinghouse13 discussed the then-unresolved copyright infringement case involving Peter Veeck, his Web site, and the basic building codes of two small Texas towns.
Mr. Veeck purchased an electronic (CD-ROM) copy of local building codes and copied them onto his free Web site for anyone to use. When the author and purported copyright holder of the codes, Southern Building Code Congress Inc., ordered Mr. Veeck to remove the codes, he sued them, claiming the codes were in the public domain because they had been adopted in full by the local communities as official building codes. Mr. Veeck lost at the district and circuit court levels but appealed to the Fifth Circuit Court of Appeals for a hearing en banc a hearing by all of the judges on the court, rather than the smaller panel of judges that had ruled against him. On June 7, 2002, in an 8 to 6 split, the Court ruled in Mr. Veeck's favor. In the court opinion, Judge Edith Jones quoted from a 115-year-old decision by the U.S. Supreme Court, Banks v. Manchester14, that exempted court opinions from copyright law as a matter of public policy. FindLaw's
[http://www.findlaw.com/casecode/supreme.html] free database of Supreme Court opinions only goes back to 1896, but fortunately Mr. Veeck had posted a copy of the case on his Web site [http://regionalweb.texoma.net/cr/banks.html].
The Banks case is worth a second look. The State of Ohio awarded a contract to publish Ohio Supreme Court opinions and hired E.L. DeWitt to prepare the opinions for printing. Mr. DeWitt copyrighted the opinions on behalf of the State of Ohio. When another publisher reprinted some of the opinions, it was sued for copyright infringement. The Banks court stated that the actual case syllabus, statement, and opinion were the work product of the judges and neither the State, the judges, nor anyone else could copyright the court's work product. "The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute."15
Without access to 19th-century case law, the Fifth Circuit Court might not have found a precedent to overturn its earlier decision in Veeck. In explaining why a particular law can or cannot be applied to a particular case, courts establish a guide for politicians, law enforcement personnel, and ordinary citizens in how to write, enforce, and follow the law. Ignorance of the law is no excuse for not following it. However, figuring out what law is applicable to your situation and finding print or electronic versions of cases to support your position can be costly in both time and money.
Still the People's Law
Westlaw and LexisNexis add copyrighted editorial enhancements to their versions of the court opinions to aid attorneys and judges in interpreting major and minor points of the case and to locate similar cases. Those enhancements are copyrighted, and rightly so, being original work product added to the material. Wherever the two firms couldn't corner the copyrights, they bought the competition.
However, the courts and the court's words belong to us. In more ways than one, the American people have already paid for the case law produced by our courts. Commercial vendors must not be allowed to highjack our law or dictate who may have access to it. By refusing to allow public libraries to purchase electronic subscriptions that can serve their patrons, Westlaw and LexisNexis are closing the door on information.
1 In recent year LexisNexis played around with variations on the company name, even shortening it to Lexis, but recently reverted back to LexisNexis without the original hyphen.
2 Based on information reported in the "Legal Publishers List" maintained by the American Association of Law Libraries, Committee on Relations with Information Vendors (CRIV). Data was as of 10/25/02, with the sale of Anderson Publishing Company to LexisNexis pending shareholder approval.
3 Sewell Chan, "District Finds Itself Without a Legal Clue," The Washington Post, 25 August 2000, section B, p. 1. (http://washingtonpost.com/wp-dyn/articles/A21251-2000Aug25.html)
4 LexisNexis news release dated October 30, 2002, "LexisNexis Signs Seven-Year Contract, Named Official Publisher of Virginia Code." http://www.lexisnexis.com/about/releases/0548.asp.
5 LexisNexis news release dated October 9, 2002, "LexisNexis, Anderson Publishing Company to Merge."
6 Chan, "District Finds Itself Without a Legal Clue," section B, p. 1.
7 Chan, "Update: On the News," The Washington Post, 5 February 2001, Section B, p. 2.
8 Loislaw is currently owned by New York based Aspen Publishers, Inc., a subsidiary of Dutch publishing company Wolters Kluwer. Wolters Kluwer is the third largest legal publishing company in the U.S., after Thomson and Reed Elsevier
9 LexisNexis holds a minority interest in Versuslaw, according to the "Legal Publishers List."
10 These rates were per the Versuslaw Web site in October 2002 at http://www.versuslaw.com.
11 All prices are as of October 2002, according to the West Group and LexisNexis Web sites.
12 Terry Carter, "Self-Help Speeds Up," ABA Journal, July 2001, p. 34+.
13 Carol Ebbinghouse, "Not All Laws Are Free: The Importance of the Veeck Case," Searcher: The Magazine for Database Professionals, February 2002, vol. 10, no. 2.
14Banks v. Manchester, 128 U.S. 244 (1888).
15Banks v. Manchester, 128 U.S. 244 (1888), citing Nash v. Lathrop, 142 Mass. 29, 35.
The opinions expressed in this article are those of the author and do not necessarily reflect the opinions of her employer.
Melissa Barr's e-mail address is firstname.lastname@example.org
Response From LexisNexis and West
LexisNexis in the Library Market
Libraries play a vital role in a democratic society, and LexisNexis appreciates the service they provide, along with the librarians who manage and staff them.
Most libraries are struggling more than they have historically to meet the needs of their patrons with a wider array of electronic information technologies in addition to the traditional hard-copy versions of publications. Public libraries are no different. At the same time, the World Wide Web facilitates the direct, free access to more and more information from the courts, legislatures, and university Web sites, raising awareness of the vast amount of information available. This situation is an irony, but certainly not a conspiracy by the online publishing industry, as the author seeks to imply.
Remembering that LexisNexis is a business-to-business enterprise, the company tries hard to accommodate ids customers in the library market with flexible, discounted plans. LexisNexis sales reps discussed several options with the writer, Melissa Barr, although none of the plans would allow her to do what she wanted to do — give unlimited, unmediated access in multiple locations to the LexisNexis legal information service at an unrealistic price.
LexisNexis provides numerous products and services that allow public library patrons access to critical information at a reasonable cost to libraries. The first, of course, is our subscription-based online services for news, business, and legal information. These services are available to public libraries on a mediated basis, that is, a librarian will perform a patron's search for them at no charge to the patron. If service were not mediated, then LexisNexis would have no business left from subscribing attorneys. If the library doesn't have the budget to pay for a subscription, then we offer lexisONE, designed for small-practice attorneys but also useful to non-attorneys. lexisONE combines 5 years of free case law, thousands of free legal forms, and an Internet Legal Guide with links to more than 20,000 law-related Web sites. We only ask that the user register on the site, and it costs nothing to do so.
LexisNexis by Credit Card [http://web.lexis.com/xchange/ccsubs/cc_prods.asp] is specifically designed for non-subscribing members of the general public who want to search either business or legal information on our flagship products, nexis.com or lexis.com. Case law is available for searching regardless of how long ago the cases were decided. There is no charge to search or review a list of relevant documents found, and charges are as low as $9 per document to view a case, code, or statute, or $75 a week to conduct a research project in the news and business libraries.
LexisNexis currently is trying to launch another program that would address some of Ms. Barr's concerns. We are seeking libraries with up-to-date PC technology to pilot the LexisNexis legal service using an authentication scheme that doesn't require librarian involvement in the searching. To date, libraries have had a security concern with allowing users to directly log onto a PC using the library's subscription ID and password. There has been no way to prevent the user from running up charges on the library's account using a remote terminal. This is a security issue, not a denial-of-access issue.
Lastly, LexisNexis is a tireless supporter of the Special Libraries Association's educational efforts. It also has donated millions of dollars of direct contributions or in-kind services to support pro bono legal aid programs run by local bar and state associations. For instance, LexisNexis and the National Association of Bar Executives (NABE) recently honored outstanding public service programs of five bar associations by presenting each with $25,000 in research credits. Pro bono support offers the highest value for patrons in the greatest need.
Hopefully this brief description of the company's efforts will reassure public librarians that LexisNexis is concerned about and willing to work with them to tailor and integrate our information content and productivity tools into their environments.
West: Unprecedented Access to Legal Information
Access to the nation's laws is critical to the success of our democracy. Thanks to the Web, legal information is readily accessible by more people today than at any other time in history.
Facilitating the flow of information from courts and lawmakers is a vibrant tradition in which we at West are proud to have played a key role. More than 125 years ago, founder and namesake John B. West created the publication and editorial processes that resulted in the National Reporter System. His forethought and insight provided the groundwork for every law firm and county law library in the country to offer dependable, on-time access to these materials.
Today, West's attorney-editors read more than 200,000 judicial opinions annually, working with the courts to make more than 100,000 corrections to these rulings. Our unique editorial process delivers powerful editorial enhancements — synopses, headnotes, and classification to the West Key Number System — that help legal researchers find and analyze on-point information faster and easier. Moreover, this process guarantees the accuracy and integrity of these critical legal information resources.
In addition to using the bound volumes in their local or firm law library, thousands of legal professionals now access the National Reporter System, as well as statutes, regulations, and business news and information via Westlaw.
Services such as Westlaw provide innovative research tools that are specifically designed for use by legal professionals. These professionals balance the cost of using services such as Westlaw with the time they save and the comfort they gain from knowing they are using the most authoritative, current, and accurate information.
West employs over 7,000 full-time legal, software, and business professionals dedicated to providing the information and technology that makes Westlaw possible. Add to that one of the world's largest and most complex technology infrastructures and around-the-clock customer service and research support (including technical and legal specialists), and you begin to understand the resources West commits to meeting the daily needs of the legal professional.
Of course, the Web encourages healthy competition from new businesses as well as from the various governmental organizations. Users are benefiting from a continuing, rapid innovation of services and a broad diversity of offerings.
West is vigorously and creatively responding to the new world enabled by the Web. For example, in January 2001, West acquired FindLaw [www.findlaw.com], the leading legal information portal on the Web. By providing a wealth of legal information, related analyses, and legal data without charge, FindLaw attracts businesses and individuals seeking legal advice and directs them to appropriate legal professionals. Recent statistics indicate that FindLaw traffic is five times that of its nearest competitors as measured by its user base.
West remains dedicated to its long standing-tradition of service to the bench and bar. Through FindLaw, West has expanded this commitment to the larger community.
- Mike Wilens, President, West