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Democracy in the Dark?
scubacuda writes "Melissa Bar has written an insightful article on how Westlaw and Lexis Nexis restrict public access to case law databases. She writes, '[T]he 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.' Individually purchasing the documents over credit card is incredibly expensive, making it virtually inaccessible to most library patrons."
IANAL, but among them there is a saying that goes something like this: "A man who represents himself has a fool for an attorney."
Posting as directed.
You can get access to case law from the courts themselves. Westlaw and Lexis provide a service allowing people to get this case law electronically and indexed very well. Don't we support companies value adding services to free information and charging for it? Isn't that the entire basis of the GNU public license. Some courts are putting their decisions online, where you can get it as well. But Westlaw and Lexis employ people to put all of this information together in a database, index it, and write abstracts. What is wrong with them charging for that?
Come play Heroes of Might and Magic Mini online.
There are plently of companies which do this with public data, not just WestLaw, LexisNexis, who are the largest in their field.
The problem is this: The government either outsources the electronic publication of their information, or these companies hired people to go out and scan the public documents.
If it is the latter, then they have every right to charge access to their database- they've complied the data on their dime! However, if the government outsourced the publication, then the database should fall into public domain.
I recall one other database which did title searches on property, which were built completely from public data, and was sold back to the county and state because such a tool did not exisit until then, and to redevelop such a tool wasn't worth the effort (at the time). The data was public domain, but the relationships inside the DB was not.
III.IIVIVIXIIVIVIIIVVIIIIXVIIIXIIIIIIIIVIIIIVVIII
"Why would I as a consumer ever pay for their service if the library had it, therefor they just lost my money, and all the other people that would go to the library use the service and not have ot pay for it."
For the same reason that I buy the vast majority of books from Borders - convenience and time. I don't have time to schlep down to the library to pick up the latest book, even assuming there isn't a long waiting list for it. I buy a resource that is also provided free because my time is worth more to me. Perhaps I also want my own copy as well.
"And since this is a service that is of specific purpose, like reference materials, they could stand to lose a lot of money."
Ah, my heart weeps for Lexis and Westlaw. They could also stand to make some money. Public libraries should be treated like any other potential Westlaw or Lexis client - if they can pay (and there is no indication that they can't) - they should be allowed to buy access to the legal databases - even if it's only one user at a time. The author of the article is saying that Lexis and Westlaw won't even sell access to the public libraries.
Have you ever *read* the procedural rules for your state? The superior court rules for my province run for 652 pages. There are at least five separate rules, each with between ten and 30 sub clauses, that govern how to file and serve a writ to begin an action. The two rules that govern how to schedule and appear on a simple procedural motion run for 13 pages.
These rules weren't put in for fun - they're there because in each case there has been some disagreement in the past about what had to be done when, or how, or who was entitled to what, so they spelled it out in a rule. You need extremely detailed rules in litigation because by definition the parties don't really like or trust one another.
Ever read Lon Fuller? Lawmakers are trying to walk a very fine line between overtechnical impenetrable detail and ambiguous generalities, with lawyers there to help people when they the lawmakers stray too far to one side or the other. If a law is too detailed, no one who is not trained in the area really understands it. If it isn't detailed enough, you need lawyers to explain how the courts have interpreted the ambiguity.
MHO. YMMV. Any resemblance between this post and real persons, or reality in general, was accidental.
Agreed - there isn't a legal obligation for Lexis and Westlaw to allow public libraries to purchase access to these databases.
I think there's a pretty interesting parallel to be drawn to laws that forbid insurance companies and banks from redlining people who live in poor areas of town however. Information about the laws and court decisions that affect how these laws are implemented is information that shouldn't be restricted to people in certain classes (whether of wealth or education). And essentially that's what Lexis and Westlaw have done by refusing to sell access to the public libraries.
And I know, I know. Hard copies of these laws are available. Speaking as someone who works in the legal field though, I can assure you that if you don't run an electronic search for precedent you will seriously disadvantage and undermine your case. And doing such a search manually would exponentially increase the time it takes to look for precedent, essentially putting such a search out of reach of anyone except retirees. Thus not allowing public libaries to buy access to these databases for their users places these individuals at a significant and crippling disadvantage to those who can. And that inequity is something we _should_ be worried about, since we all stand to lose if only the rich or those in certain classes (law students, journalists, legislators) can access the law in this fashion.
Some of us don't want a "comprehensive set of rules." A simple set, boiling down to "play nice and don't touch other peoples toys" covers most situations.
Ok, ok. It does take a bit more than that, but the current situation is a bit cracked; one could probably spend one's entire life (and then some)just reading all of the law, etc. that is supposed to regulate one's actions. Remember, ignorance of the law is no excuse! but knowledge of the law would practically require omniscience.
McFly777
- - -
"What do people mean when they say the computer went down on them?" -Marilyn Pittman
This is a huge problem with today's Legal system. From the 40's to the 70's there was a gradual realization that the law should cover everyone, not just the enfranchised (rich). Unfortunately the baroque styling of our legal system have not changed with the times. Witness the huge backlog of civil and criminal cases currently in the courts, the funny costumes that the judges wear, the monstrous courthouses, and the obscure language used by the lawyers who have years of expensive schooling behind them.
What the lawyers hope to do is have the courts and politicians (who are generally older moneyed lawyers) protect this inefficient setup, even though it hurts those who end up spending more in lawyers fees than they would have in penalties. By not allowing public access to public documents Westlaw and Lexis-Nexus are part and parcel to this protection scheme. If they are unwilling to provide these documents to the poor, the government should step in and provide public access to all.
It is clear that a system of binding arbitration combined self "lawyerin'" would be more efficient and less costly for new poorer class of litigants that are filing our courtrooms... The lawyers and documents Westlaw and Lexis-Nexus, however, are happy to keep the rest of us in the dark, and to charge us for the privilege!
I reject your implied necessity that laws without specialized practioners to intrepret them would, or must, be so vague so as to preclude justice or general applicability.
I think you underestimate the ability of the average citizen to understand their rights, obligations and duties, in general, as citizens of the United States.
I believe that most American citizens are, generally, decent, kind and law-abiding.
I believe that, for every crime committed by one person, there are tens, hundreds, thousands, millions that did not commit that same crime.
I believe that the law in the US has become not the practice of protecting citizens, but seeks out the minority that commits crimes, and holds that minority up as examples as why we should submit to greater restrictions on our liberties under the auspices of law, ostensibly to prevent those crimes that the vast majority of Americans would not commit in the first place.
In short, I believe in the citizenry, and think that most people in the US are kind and decent people.
And, I think that the practice of law in the US, now, generally, undermines us - litigation has become the rule, rather than the exception.
Ultimately, that serves only the practitioners of law, it creates an antagonistic environment that creates conflict that would not be necessary otherwise.
Just my opinion.
dj
laborious OCR scanning
Actually, it's probably not OCR'd. Most places hire people, in triplicate, to TYPE it. I've heard the term triple-keyed used to describe it.
It is supposed to greatly improve accuracy. But it is also very, very, costly to have done.
why isn't there an affordable public database of this material
There will be - eventually, because state's state houses are constantly moving everything to be digital. In the future, court records won't be on paper. And there's your public DB.
Where the states will have a hard time is the prior history of records that are on paper. There's many many years worth, for each state. And *that* is where the private companies will continue to thrive.
http://slashdot.org/~tf23/journal
Technically, we both know that the majority of American citizens break the law twenty times a day without a second thought. Very rare is the citizen who always signals before changing lanes, never drives over the speed limit, has never downloaded mp3s or copied software, never partakes of any illegal substance or never partakes of a legal substance somewhere where they're not supposed to.
IMHO, the litigation craze in the US is mainly attributable to two things - no cap on non-pecuniary damages and insane punitive damages awards, on the one hand, and the lack of a two way costs system on the other.
In Canada, if you sue and win you get ~35% of your legal costs back from the other side. If you sue and lose, you pay ~35% of their legal costs. If the suit was frivolous or malicious, in some cases you will be ordered to pay their entire legal bill. This is a disincentive to frivolous litigation, obviously. Also, in Canada the damages for pain and suffering are capped at common law - any judgment for more than a certain number in respect of pain and suffering is automatically unreasonable and reduced on appeal. Punitive damages are very hard to get. The result is that Canada isn't as litigious a society.
MHO. YMMV. Any resemblance between this post and real persons, or reality in general, was accidental.
"Almost by definition laws attempt to restrain that element of society which is not prepared to respect other members of society without the threat of some penalty."
Huh? Laws don't *do* anything, by definition: They define what can happen when they are transgressed, and the transgressor is caught so transgressing.
Their effect, and punishment, is always after being caught.
What was your point?
Procedural history is not as difficult to impliment as you think. Multi-dimensional databases far more complex than Westlaw or Lexis track this sort of information all the time.
And remember, one really only has to care about the courts in their jurisdiction. Its not hard to search for the citation itself. So it won't be as nice as a little pretty flag, but it won't take long to figure out if the case published in the state supreme court overturned the case, affirmed it, or just commented on it.
That is with a simple keyword search like you state. More sophisticated algoritms will take care of all that. I mean, do you really think Westlaw has people compiling their entire database? Especially of administrative code rulings? There is a high degree of automation, and it will only get better with time.
Google is just the beginning.
I don't read or respond to AC posts