Law in the Internet Society
Duopoly materials

Lexis and WestLaw? do not provide services to public libraries.

53 Vill. L. Rev. 1, 24

A. Lexis and Westlaw

It was only a decade ago that a serious alternative to libraries of print law reports became available to judges, lawyers and others in the United States. 96 Although the two major online services (LexisNexis? and Westlaw) date back to the 1970s, they served as case-finding tools for most of their history. They supplemented but did not substitute for print reports. In their infancy, both were costly proof-of-concept services with serious scope limitations. 97 Launched in 1969, Lexis was, by 1976, offering federal case law reaching back fifty-one years for the Supreme Court, thirty-one years for the U.S. Courts of Appeals and sixteen years for the [*20] District Courts. 98 But its state materials were meager - comprehensive but chronologically thin collections for nine states, plus a selection of Delaware corporate law decisions. 99 At roughly $ 125 per hour, this package drew few subscribers. 100 Westlaw in these early days avoided any risk of displacing West's print publications by offering only headnotes. 101 Its depth was eight years for the states and fifteen years for federal cases. 102

By the mid-1980s, a Lexis threat to add star pagination to its case data, keyed to West's National Reporter System, raised the prospect of researchers working mostly, if not totally, from electronic versions of the print volumes. That provoked a West copyright suit. 103 By the time the parties settled their litigation in 1988 with a cross-licensing agreement - allowing Lexis (at a heavy price) to insert West pagination in its database - Westlaw had itself added pagination. In the meantime, access to both systems had moved from large terminal and printer installations in libraries, first to desktop terminals and then to PCs with modems. 104 The scope of their collections had been expanded; both held reported cases from all fifty states. Limited historic depth, however, still forced researchers to the books for older cases. Lexis reached back at least to 1965 for all states, further for some like New York (1940), California (1945) and its home state of Ohio (1921). 105 Westlaw's retrospective coverage was comparable. 106 By 1989 both Lexis and Westlaw featured online cite-checking. 107 Around the same time, both companies declared their intent to provide full fifty-state statutory coverage. 108

[*21] It was not until the mid-to late 1990s that these systems attained sufficient scope and functionality to become comprehensive research environments - virtual libraries - rather than simply places to begin case research. A series of changes, due largely to external developments and pressures, led to online case reports becoming not only a plausible substitute for the print originals, but a compelling (albeit still costly) alternative. In the early 1990s, competition from CD-ROM-based legal research products spurred several key software improvements. One was the hyperlink reference, standard in early law CD-ROMs, but difficult to transplant onto the character-based, non-scrolling terminal interface with which Lexis and Westlaw users had to cope. Lexis first employed "link markers" set off in brackets adjacent to citations (e.g., <=160>). To follow such a reference, the user had to key in the bracketed formula (e.g., "=160"). 109 Link markers eventually morphed into link tokens to which a user could jump by striking the tab key. 110 Finally, as lawyers and judges migrated (ever so slowly) to a Windows interface, link markers became links operated by means of a mouse.

Links made it far easier to leap from one text to another than had ever been possible in print. Even so, online research systems remained dramatically inferior to print as a reading environment or print source. First, reading an online case on a PC required the reader to page through the case screenful by screenful. Moreover, downloading proceeded in similarly small increments, and generating print copies was both clumsy and often inadequate. By contrast, CD-ROM case law products permitted users to extract cases formatted as word-processor documents.

While Westlaw and Lexis eventually responded, 111 scrolling up or down through the full text of an opinion and saving or printing it in its entirety only became fully possibly in 1998 once both systems moved to the World Wide Web and a standard Web browser (rather than proprietary software) interface. 112 This new WYSIWYG window on decisions required [*22] Internet access at sufficient bandwidth to allow opinions to be delivered in full, rather than screen-sized chunks. Moreover, the shift required major investments in both software and data throughout what by then had become quite large systems. Neither database had been built with the demands or potential of this new environment in mind. 113

B. New Players in This New Environment

At roughly the same time that Westlaw and Lexis were successfully putting case law research on the desktops of lawyers practicing in large firms, new players with new business models were beginning to bring electronic case law within the budgets of small firm lawyers. Here too, CD-ROM technology was an important catalyst. Throughout the early 1990s, Westlaw and Lexis offered more than most small firm lawyers needed, at prices they could not afford. Both companies charged in ways that made their services unattractive to those making repeated use of a single state's cases and statutes. In 1995, Law Office Information Systems (LOIS) began selling state-specific CD-ROMs for a flat price of $ 600 per year. 114

By 2000, a striking array of less costly research options was available to U.S. lawyers. All were specifically designed and priced for attorneys practicing in small firms. LOIS - by then Loislaw - had moved to the Internet and expanded to all fifty states. In some jurisdictions, Loislaw was under-priced by small CD-ROM publishers. VersusLaw? , another online research alternative, offered a national online case law library priced at only $ 83.40 per year for a solo practitioner. 115 Lexis and Westlaw had themselves created fixed rate plans designed and priced specifically for small firms. 116 [*23] By then, public, non-profit and advertising-supported sites had begun providing judicial opinions and other legal documents over the Internet without charge.

More recently, state bar organizations have become major players in the case law dissemination picture, contracting on behalf of their members with a still newer set of commercial providers. The "Casemaker" consortium, established by the Ohio Bar Association and a small electronic publisher, is leading this development. Bar groups joining the consortium provide Casemaker's online service to their members without charge. Currently, Casemaker claims twenty-eight state bar association members. 117 The Kansas State Bar is a recent addition to the group, having introduced this service to its membership in late 2006. 118

Fastcase, another recent entrant, also uses this business model (as well as a search engine that has learned some lessons from Google). 119 In the past three years, Fastcase has signed up ten state bar associations, plus a number of local or specialty bar associations and membership libraries. 120

As the legal information market sped through these rapid changes, networked computers moved to the desktops of nearly all lawyers and judges, providing them with writing spaces, communication channels, and scheduling and management tools. Print publishing itself was transformed. Once courts began producing opinions on computers, companies that published print law reports sought and acquired access to electronic rather than hard copy versions of those opinions. Electronic publishers, including the new entrants, pressed for the same.

The cumulative result of these developments is a fully electronic legal research environment that is quite new. As recently as 1995, lawyers, especially those a decade or more out of law school, relied heavily on printed reports when researching case law. 121 Today, virtually all writing by lawyers [*24] and judges - whether memoranda, briefs or judicial opinions - is composed and revised on a computer. Most case law research is done on a computer as well. Quotations are copied from digital sources, rather than rekeyed. Lawyers, young and old, write briefs without ever pulling a law report volume from the shelf. Libraries pressed for shelf space and funds have ceased acquiring new volumes 122 and even sought to rid themselves of old ones. 123

Political Economy Sources

Free labor, costly journals (Bergstrom 2001)

  • There is a remarkable difference between the prices that commercial publishers charge to libraries for economics journals and the prices charged by professional societies and university presses. This price difference does not reflect a difference in quality. The six most-cited economics journals listed in the Social Science Citation Index are all nonprofit journals, and their library subscription prices average about $180 per year. Only five of the 20 most-cited journals are owned by commercial publishers, and the average price of these five journals is about $1660 per year.

Open Access in a Closed Universe: Lexis, Westlaw, Law Schools, and the Legal Information Market

An Open Model for a Web-Based Semantic Case Law Repository

Legal Information Management in a Global and Digital Age: Revolution and Tradition

The Long Tail of Legal Scholarship

Neutral Citation, Court Web Sites, and Access to Case Law

Forbes, The Law Goes Open Source

WinterSpring? +2003" target="_top"> +2003) (Arguing for the merit of proprietary legal databases. Pg. 152-53) (general info on LexisNexis? business)


Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts

Outing the Judicial Epistemology of Hart v. Massanari


"This article addresses the challenge facing law students to preserve some sense of individual voice and ownership of their writing as they enter a professional discourse community and negotiate its formal structures and idioms."

"The writer must adhere to this format despite having found and read the opinion using Westlaw, Lexis, Casemaker or some other digital source"

"Because many legal materials are increasingly available only online, and because judges are showing a greater willingness to rely on non-legal information available on the web, the Article concludes that a lawyer cannot competently represent a client without going beyond Westlaw and Lexis and conducting research on the internet."

[[]["The open access movement espouses the principle that access to all scholarly communication, including legal scholarship, should be made available to the world at no cost via the Internet. ... Further, this Article examines in detail the effects of applying open access principles to legal scholarship, current options for law schools wishing to establish a repository, and the growing number of law school repositories currently in existence"]]

"I would like to suggest that the law reviews that publish the bluebook have an incentive to engage in excessive innovation. This is not a prediction of a race-to-the-bottom, but a prediction of excessive innocuous change. The inefficiency comes in the need to learn arbitrary new rules, not in the quality of the rules themselves. The bluebook publishers have this perverse incentive because every new edition of the bluebook generates a large one-time demand as lawyers and legal libraries are driven to buy the authoritative source. It is not surprising that the bluebook is now in its fifteenth edition. Of course there may be pressing aesthetic reasons why a certain reference needs to be put in large and small capital letters instead of italics, 47 but along with these aesthetics is the knowledge that each new edition will reap an economic windfall. 48"

"The well-financed efforts of an entrenched interest group to resist open access in most disciplines means that the broad open access movement has a long row to hoe before we can reap the benefits that the Internet promises for scholarly communication. The one discipline where conditions are ripe for more rapid evolution to open access is law in the United States. Scholarly communication in American law also is channeled primarily through the medium of the journal article. But the editorial and economic structure of American legal scholarship is sufficiently different from other disciplines that no group stands to gain from resisting open access other than commercial legal publishers, who lack direct leverage to sabotage the movement for open access law."

"The Science Commons approach also provides for attribution of first publication by the law review, something that is not mentioned in any of the standard accounts of open access. ... The move to peer refereeing tends to carry with it a move to commercial publishing, and in so doing destroys the open access opportunity that student-edited law reviews generate.


" scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations)." (Solum)

"While the Internet provides access to many free sources of legal information, they are likely to be substantially less useful and efficient than fee-based legal resource providers."

The Future of the Casebook: An Argument for the Open-Source Approach (see pg. 10 on Wexis)

"An open access approach would mean new pools of course materials for professors to draw on, new means of interaction and collaboration between professors and students, and new possibilities for restructuring the law school curriculum."

[[]["For other academic disciplines, commercial publishing has the significant drawback of making it really expensive for scholars to get access to what's happening in their fields. Open access reduces the cost of access dramatically, whether or not it encourages scholars to read the work. In law, scholars already have ready access to their colleagues' work. And they still don't read it. What's the point of making the work ... free?]] ... Once LexisNexis? and Westlaw started putting full texts of law reviews on their databases, the authority of print started to recede, leaving the authority of the publisher and, to a lesser extent, the authority of limited access. A lot of law professors these days never actually handle original physical copies of law review articles...

Survey of librarians about online legal research

Law as property

Who owns the law?, NYTimes

Elsevier info (Elsevier spend $13 million over 8 years in lobbying US government) ($US790,000 In Q.1 08 Lobbying US Federal Government) (Elsevier lobbying history) (Elsevier axed story under IBM pressure - published in Nature!) (Elsevier removes articles from sciencedirect without explanation)

  • The most notorious expunging of a scientific journal involves Elsevier's removal of an article published in September 2001 in Human Immunology. The paper, about the genetic origins of Palestinians, generated a political firestorm because it labeled Jews living in the Gaza Strip as "colonists" and said some Palestinians were living in "concentration camps" (The Chronicle, November 23, 2001). (LexisNexis? v Beer -- LN sued Beer after he stole proprietary information)

  • Before he began working at Dow Jones, Beer copied the LEXIS-NEXIS ACT database onto a high-capacity Iomega Zip disk.

10 Lewis & Clark L. Rev. 901, 917

The commercial database model obviously can't match that aura step-for-step, since the databases include so much non-scholarly legal literature. Westlaw's JLR database includes PLI and ALI-ABA course materials as well as the Yale Law Journal. But the relative exclusivity of the databases does have that effect. Pricing models differentiate between practitioners, on the one hand, and law schools and judges' chambers, on the other. Practitioners often pay metered rates for access to the database; law schools pay a flat rate. Unlike practicing lawyers, law professors can search and use the databases at no marginal cost. It feels free. We're inside the scholarly system again, and the rest of the world is outside.

Heller, The Gridlock Economy

Stake, "The Property Instinct"

Legal Search sites


It would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators, compiled by the executive, and debugged by the courts. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process.

When law is proprietized, an obvious concern would be manipulation of the law by its private owners for their personal benefit. It would be rational, supposing low probability of the infraction being publicized, for Elsevier/Thomson to tamper with case law concerning company litigation. In a competitive legal-information marketplace, objectivity would be an overriding concern, because competitors would publicize infractions and keep each database honest. But here, we have duopoly, and that invites collusion. There has been little, if any, investigation into whether Thomson and Elsevier have attempted such manipulation. An investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties are characterized by statistical differences in the database's meta-information is in order. What we do know, in the meantime, is that Elsevier has, at least once, manipulated a scientific medical publication for economic reasons.

The problems with Lexis and Westlaw are representative of the more general problems associated with the proprietization of functional knowledge. Bergstrom (2001) showed that nonprofit economics journals were generally superior to commercial economics journals, despite the fact that similar commercial journals charged almost ten times as much for subscriptions to their journals.

Law journals should be the first organizations to sign onto the free-law effort. Since they are locked in libraries and . On the one hand, this circumstance protects them from being widely read and thereby condemned for incompetence. But, as demonstrated in Chris Anderson's The Long Tail, there is demand, however small, for a virtually infinite range of creative and functional content (pg. ). By unlocking the storage and meta-connection of law journal articles, the free-law effort would facilitate the synthesis of wider blocks of information and argument.

Another objection to the free platform is that private actors would manipulate the meta-information to sabotage opposing legal actions. Wikipedia, again, is a testament to the growth of internal safeguards against abuses.

-- ElliottAsh - 08 Nov 2008

The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin.

-- ElliottAsh - 08 Nov 2008



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