Democracy in the Dark: Public Access Restrictions from Westlaw and LexisNexis

Article excerpt

"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 LexisNexis (1) 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, Reed Elsevier and LexisNexis acquired nine legal publishers in North America and at least three electronic databases (2). 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 Oaldey, 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 ofVirginia (4) 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 Company (5), 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. …