Carl Malamud believes in the power of data. The maverick author, publisher and public domain advocate believes no one should have to pay to access the documents that make up "the operating system of our society." In the past decade, he's been the mastermind behind bringing the SEC's EDGAR database online, publishing the entire Code of Federal Regulations on the Internet and creating a bulk repository of patents.
Now, Malamud is setting his sights on the law. All of it. His company, Public.Resource.Org, wants to create an Internet-based resource called Law.gov--a repository of all primary legal documents in the U.S., including case law, state and federal statutes and regulations, grants and other materials from the executive branch.
"Just as more people read financial information and medical information, there is a tremendous unmet need to furnish people with the details about the rules that govern our daily lives," Malamud says.
With powerful advocates such as Google in his corner, Malamud's dream of bringing the raw materials of our government online may soon become a reality.
And Malamud isn't the only innovator who's focused his efforts on demolishing barriers to access to legal materials. In recent months, numerous free resources for legal information have been springing up on the Internet. Such resources may soon challenge the research oligopoly of LexisNexis and Westlaw and change the way litigators do their jobs.
Free For All
Right now, most attorneys conduct their legal research through subscription-based Web sites such as Westlaw. While the raw materials on Westlaw are public domain, users pay for the advanced search functionality and the value-adds such as head notes, case histories, and links to related cases and secondary resources.
Currently, unannotated versions of most federal court documents are available for 8 cents per page from the Public Access to Court Electronic Records (PACER) system. Anyone with Internet access can create a PACER account and access practically any document filed in federal court.
But some think that fee is too high, and many attorneys are dissatisfied with how PACER archives and organizes documents. A team of researchers at the Center for Information Technology Policy at Princeton University recently created RECAP, a plug-in that works with the Firefox Web browser. Once a PACER user installs RECAP, it automatically uploads any document he accesses via his PACER account to a public archive, which is accessible for free. If a PACER document is already available in the free database, RECAP directs the user to the free version, saving PACER users money and building a robust free database.
Likewise, the Web site Dockets.Justia.com obtains every document from each federal district court's Electronic Case Filing system on a daily basis and uploads it to a free repository. Law.gov, Justia and RECAP are all focused on bringing a critical mass of legal data online.
"Everything we get, we give to the RECAP archive," says Tim Stanley, CEO of Justia. "The free resources are getting better and better because there's a lot of coordination and sharing of raw materials."
However, none of these sites provides--or plans to provide--a searchable database similar to Lexis or Westlaw that would enable an attorney to conduct sophisticated legal research. That's where other entities step in.
One poised to tap into that data is Google. In November 2009, Google announced that it was rolling out a legal research function within Google Scholar. While other Web sites provide some legal research functions (see "Other Clicks"), Google Scholar is the most robust free resource yet.
Google Scholar's legal database incorporates Google's typical functions, such as searching by word or exact phrase. The "advanced scholar" function allows a user to narrow down his search by state, or to just federal documents. Right now, Google's database has federal cases stretching back about 80 years, and more than 50 years of state cases. Unlike many online resources, cases on Google contain internal page numbers, which are needed for proper citations.
As RECAP users upload more documents, Google will integrate that data. Still, there are shortcomings to Google Scholar that may make it risky to use as a primary research tool.
"Google Scholar is fast and free, which is great if you already know what you're looking for," says Catherine Monte, chief knowledge officer at Fox Rothschild. "It's also useful for defined tasks such as doing research on an expert. But it doesn't have the bells and whistles."
Currently, none of the free Web-based legal research tools has a citator service similar to Lexis' Shepherds, which instantly tells a user whether a given case is still good law. Nor do the free resources provide links to subsequent and prior case history, or an easy way to find decisions that discuss, distinguish or analyze a particular case. Google Scholar also lacks the analytical tools, such as head notes, which enable a user to quickly get an overview of what an unfamiliar case is about.
Another shortcoming is that documents on Google Scholar do not contain internal hyperlinks to other materials the document discusses or cites, such as other cases, statutes or regulations, a key feature of Lexis' and Westlaw's systems. This could make research cumbersome, as a user would need to pull each document separately.
"With Westlaw and Lexis everything is integrated," Monte says. "There are potential malpractice issues with relying on Google Scholar--are we getting everything and exhausting our research possibilities?"
There are also concerns about the dataset on Google Scholar. Google uploads new cases frequently, but is not as up-to-the-minute as the subscription-based Web sites.
Still, for lawyers who can afford only limited subscriptions to Westlaw or Lexis, or for the many in-house law departments without unlimited access to subscription services, Google Scholar could be a godsend.
"Lots of lawyers don't have access to the services they need because of costs," Malamud says. "That includes solo practitioners, corporate GCs, non-profit lawyers and, believe it or not, lots of government lawyers."
So even if Google and other public domain resources aren't a replacement, they may cause Westlaw and Lexis to rethink their pricing.
"There will always be a market for what Westlaw and Lexis do within large law firms doing high-end litigation," says Tom Bruce, director of the Legal Information Institute at Cornell University. "But that sector is shrinking. There is a tremendous need among business people for legal information that doesn't fall into the realm of traditional legal research. That's where the public domain comes in."
While free legal research has a way to go before it supplants the dominant providers, many corporate counsel are already tapping into the public domain for competitive analysis and risk management. For example, Justia provides a no-fee function similar to Lexis' Courtlink, allowing a company to monitor federal court filings to know instantly when it is named as a defendant in a lawsuit. Likewise, companies can use the system to notify them when their competitors or others in their industry are sued, and use that intelligence to manage risk.
Still, the push to bring more legal resources into the public domain is not without its opponents. The state of California has threatened to sue Malamud and Public.Resource.Org for publishing California laws and administrative codes online for free. The state claims its laws and regulations are copyrighted and it has the right to sell them for a profit.
Users too face some risks. The advent of RECAP has increased the federal courts' focus on Federal Rule of Civil Procedure 5.2, which requires redaction of certain personal information from documents filed with the courts. With increasing public accessibility to documents, there is a greatly increased risk of identity theft if personal information such as Social Security numbers and financial account information is left unredacted.
Users not paying heed could be in for stiff penalties. In October, U.S. District Court Chief Judge Michael Davis ordered Minneapolis attorney Vincent Moccio to pay $5,000 after he uploaded a document to PACER that contained the names, birth dates and full Social Security numbers of 179 people.