From the Free Law Trenches

Volume 40 Number 4

By

About the Author

Nicholas Gaffney, a lawyer and former journalist, directs the San Francisco office of Infinite Public Relations. 

Law Practice Magazine | July/August 2014 | The Annual Big Ideas Issue

In a conversation with Nicholas Gaffney, a member of the Law Practice Editorial Board, Justia CEO Tim Stanley talks about the current state of free public access to U.S. court opinions, how we got to this place, how he started two companies—FindLaw and Justia, dedicated to making law more accessible—and what he thinks about the latest generation of legal-related companies.

Law Practice (LP): What is the Free Law Movement and how did you get involved?

Tim Stanley (TS): The Free Law Movement is an informal collection of academic institutions, nonprofits, companies and individuals who want the law to be freely accessible. We focus on technical methods, policy/political advocacy and, in some cases, litigation as a means to open up the law.

I got involved in the movement after attending the Computers, Freedom and Privacy Conference in 1995 with Martin Roscheisen. Jamie Love, who worked for the Taxpayer Assets Project, spoke on a panel about West Publishing’s claim of copyright on the official citations of case law. Jamie opposed the copyright claim, and his arguments were very influential. After that conference, we started looking at how we could aggregate and share the law, following in the footsteps of Tom Bruce and Peter Martin, who had started the Legal Information Institute (LII) at Cornell Law School a few years earlier. My wife, Stacy Stern, Roscheisen and I co-founded FindLaw later that year.

LP: How is Free Law going now?

TS: On the government side, some state courts have taken significant steps toward free and unlimited access to court opinions. For example, Oklahoma recently took over the official publication of its court decisions, with public domain citations and free access to all. Other states, like California, only publish slip opinions or stripped-down official opinions without official internal pagination or paragraph citations, rendering these versions practically unusable in any official document. (In California’s case, access to older opinions also requires agreeing to LexisNexis’ restrictive terms of service.)

Peter Martin, former dean of Cornell Law School and co-founder of LII, and Courtney Minick, attorney and author at Justia, are studying how these contracts are bid out and put together.

For state codes, we have seen a disturbing trend of states increasingly contracting with private companies to publish their codes online. Access, use and distribution of these codes are often encumbered with copyright or licensing restrictions. Public.Resource.org will likely be testing the enforceability of these restrictions in the courts.

LP: What have been the major wins for free case law the last few years?

TS: LII has put up a great version of the Code of Federal Regulations, which nicely ties into the related U.S. Code sections. This has been a great example of what can be done when the law is set free.

Then there is Google Scholar, which has a fantastic free archive of federal and state case law. This has really been the biggest win on the case law front during my years in working on free law. Google offers the best free case law resource out there and, in many ways, its product is superior to paid subscription services. Some of the functionality that Google has put in place, like how cases are cited, make this a must-use resource for all litigators, even if they have access to Westlaw, Lexis or Fastcase.

The other major win has been the increase in freely available case law archives. One archive was the federal case law that Fastcase provided to Carl Malamud at Public.Resource.org. This included all of the U.S. Supreme Court opinions and all of the Federal Circuit Court opinions since the first volume of the Federal Reporter, Second Series (i.e., 1 F.2d 1). Google helped support this endeavor with a significant financial contribution to Public.Resource.org. The second is an archive that LawBox made available to UC Berkeley professor Brian Carver and Michael Lissner. This archive consists of all of the federal court opinions since the first volume of the Federal Reporter, Second Series, and all state court opinions since 1950.

These archives are available for bulk download at Public.Resource.org and freelawproject.org. I expect both to become major sources of data for academic institutions, companies and individuals who want a large dataset of U.S. case law.

On the multimedia front, Jerry Goldman continues to set the standard with the Oyez Project, which provides for free all audio recorded in the U.S. Supreme Court since the installation of a recording system in October 1955 and is run with the help of the Chicago–Kent College of Law. He has added a number of new features in recent years.

LP: Where do official court opinions come from?

TS: Currently, most courts and judges are just focused on the cases at hand. They do not see putting up the final official opinion as part of their responsibility to the court system as a whole. Instead they prefer to allow private publishers, in particular Thomson Reuters (Westlaw), to copyedit and publish the decisions, which end up being the official versions that must be cited in later cases.

The courts really should be the ones publishing the final official version of the opinions. The judges have already done the hard work, writing the opinions themselves. Much of the copy editing just requires a spelling and grammar check, as well as adding official top-level and page-level citations. Even if lawyers have access to these materials through a subscription, the public at large has a greater demand to read these decisions, and they do not have access.

Of course, West claimed copyright on the citations and corrections they made to the official opinions. It took Alan Sugarman of Hyperlaw with his attorney Cart Hartmann to sue West in the 1990s to defeat this claimed copyright protection. This was a really big deal for the Free Law Movement. Nearly every free U.S. law site out there, including Google Scholar, owes a part of its existence to Alan Sugarman’s willingness to take on West.

LP: What other developments are there in free law?

TS: On the U.S. side, Justia has been focused on developing secondary materials. We are writing same-day summaries of U.S. Supreme Court opinions, all of the U.S. Courts of Appeals and all of the highest state courts (in most cases, the state supreme court) and emailing and sharing them on social media for free. We also share them with other folks, like Fastcase. With the LII and Oyez, we have recently developed an annotation system for the case law to allow lawyer and law student participation.

LP: The Free Law Movement helped start a number of companies in the past. What interesting companies do you see in the legal space today, and where are they coming from?

TS: A number of new companies and sites focused on free law are coming online. Robb Shecter has started WebLaws.org. His first state was Oregon, and he has done a great job with the user interface and look and feel of the site. Think Computer Corp.’s PlainSite.org has done a great job of cross-linking different databases of legal information, including case law and legal filings. Ravel Law and Casetext are two new companies focused on case law. Ravel Law has some nice visual tools, as well as some higher-end functionality, including the ability to analyze particular judges. Casetext has been focused on annotations of case law. Judicata, which includes some former Google Scholar folks, is another company that will be bringing forward a new law project soon. On the academic side, Harvard Law School is working to free up case law as part of its H2O casebook project. And Elmer Masters and John Mayer at Cali.org have also been working on some free law projects that are tied into law school education.

LP: What is the bottom line for free law?

TS: My overall take is that the real key to the Free Law Movement is to get courts, legislatures and executive branches to take over the official publication of the laws and opinions—and to make these available in some sort of easy-to-use format.

This will likely require more political pressure for the financial resources to produce these materials, tied in with a requirement of free access.

I believe we need a nonprofit that understands both the technology and policy issues involved to lead this fight. I would recommend that the LII and Public.Resource.org lead the effort, as they have both the technology and policy experience to make it work.

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