While discussing with a colleague John B. West's 1909 Article Multiplicity of Reports, he pointed out that John West had a hands on understanding of how courts and judges worked in a wide array of jurisdictions all over the country, and that this understanding informed his efforts to create standards of legal publishing.

The recent stories seem not even to attempt to grapple with the entire universe of caselaw, with the metrics of federal judicial opinions much less those of all US courts and agencies, and the fact that much caselaw never ends up in printed volumes. The stories are also populated with exaggerations and outright misstatement of fact.

Let's face it – no only Cornell, but a lot of other law schools have laboured in case law distribution – Villanova University School of Law, Georgetown University Law Center, Emory University School of Law, Chicago-Kent College of Law, Pace University and Touru Law Center, Washburn University School of Law, and Washington University School of Law. US Supreme Court cases have been available on the Internet for years – from law schools, the Court itself, and even older cases from FLITE. And, interestingly, and never mentioned in the stories is the fact that the last 5 years of federal appellate opinions are available for free on LexisOne and West's FindLaw.

The problem is not that the case law is not on the Internet, but that the presentation and access is not regularized.

I would disagree that the law schools should get any more into this business -it is the responsibility of the courts to provide this access, and many courts, in the US do in fact do an admirable job. On the other hand, other courts warn that their Internet versions are not authoritative.

The federal courts were asked by Congress in the E-Government Act of 2002 to remedy this situation – but, alas, despite progress, the federal courts are not yet there.

The FastCase Federal Reporter cases obtained by Justia and by Carl are an example of a confined set of cases that have been "regularized" by West into something that looks more like the Patent Database. And, posting them on a public ftp site is a service, greater than some might imagine – for the simple reason that Carl used the West Fed. Rep. Cite as the html title metatag.

So, try this – plug in the West cite to 158 F.3d 674 in Google – and, the first or second retrieval will most likely be to Carl's site 158 F.3d. 674. Wow. But, of course, if one is searching for the case by case name and court, things will not be so concise. And, it is too bad that Carl did not include in the html title metatag the case name and date.

But, not so fast – in a way, this is a one time trick for federal appellate cases professionally prepared in a methodical away, and with a defined universe. Actually, it could be emulated for US Supreme Court cases but I am waiting to see how the US District Court cases will be handled, unless someone decides to start scanning in the Federal Supplement and Federal Rules Decisions etc. It is too bad FastCase did not include the West internal pagination in these cases.

And the rub there is this: the case below in 158 F3. 674 is not to be found in any printed West volumes – but is to be found only on Westlaw or Lexis – the citation being No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997). I picked this case 158 F3. 674 for it is the West appeal of the HyperLaw (not Matthew Bender) text decision establishing the ability of FastCase to copy the Federal Reporter.

Alan Sugarman
sugarman@sugarlaw.com
http://www.hyperlaw.com

For PR purposes, one can point to the half-full part of the glass, but if you do that people will think everything is fine and no work needs to be done. That would perpetuate the system where we have two systems of law, a system for the rich who can afford the deluxe services and another half-system for those without those resources. So, I tend to emphasize the half-empty part of the glass as a way of calling attention to the problem.

Ultimately, this becomes a call to the legal profession, particularly the judiciary and the law schools, that they could (should) do more.

$0.02, YMMV. :)

Just to clear something up … at public.resource.org, we work closely with and have the highest respect for the work of Cornell's LII. Peter Martin and Tom Bruce are not only the folks that started this all going, they are (as you point out) the leaders in areas such as how to do citation. We consult with them on a regular basis and they participate in activities with us. Tom Bruce joined us (and a dozen other folks active in this field) in October for a legal free law summit and we're all getting together this August in Chicago.

The cool thing about this movement to put free law on the Internet is how groups like Cornell and AltLaw have joined with commercial legal providers like Justia and Fastcase and Internet nonprofits like CC, Public.Resource, and the Internet Archive … accessible law on the Internet seems like an idea whose time has come.

Best regards,

Carl