In “The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age,” William Mills (of New York Law School) “chronicles the twilight” of West Publishing’s National Reporter and Key Number Systems. Mills surveys the history of West’s influence on case law research and the way lawyers think about the law, through print reporters to the adoption of computer assisted legal research (CALR) and ultimately web-based research. At 18 pages long, the article is a good read for anyone interested in getting a snapshot of the history behind West and Lexis’ efforts to move case law from print to electronic media, and the indicia of authenticity that came with it.
But the history lesson is merely the backdrop to the primary argument, namely, the move to CALR has obliterated West’s research system, and with the rise of other sources of primary source material (loislaw.com, VersusLaw.com, fastcase.com, Casemaker, PreCydent.com, justia.com, plol.org, and Carl Malamud’s efforts over at Public.Resource.org), the “guarantee of trustworthiness” once offered to us as practitioners and researchers is vanishing rapidly. But even in the face of this development, Mills notes that given the implicit trust that lawyers have placed in Westlaw and Lexis in the past, it unlikely those lawyers who retrieve case reports from Internet sources will verify the fidelity of those documents to the print versions before citing them. Whether this means lawyers assume cases they are pulling from other sources are authentic or just don’t care if they are, I don’t know. Mills ends the article by calling on governments, professional groups, and private enterprise (including West and Lexis) to lead the way in creating new standards for digital authentication of case law.
From my perspective, Mills’ concern over the problem of authenticity is just another byproduct of “free.” Chris Anderson’s (author of The Long Tail: Why the Future of Business Is Selling Less of More) latest book “Free,” which you can read for free on Google Books here, makes the argument that digital technology has made things so cheap that businesses can make money by giving away things for free. Case law is one of those things. Lawyers, librarians, researchers, etc. have been arguing for years that case law (and other secondary sources) should be freed from the tight fist of West and Lexis (why should I have to pay $18 per search?), and now they are getting their wish. For example, I can access case law from all 50 states for free through my bar website (although, I’m paying for it through my bar dues). Lexis recognized the inevitable years ago when they launched LexisOne.com and started giving away 5 years of recent case law for free, which has since been expanded to 10 years. The slow march will continue, and over the next decade I suspect that all case law will be free. Whether it’s accurate is another story altogether because to ensure accuracy means you need to spend money on silly things like editors and triple-keying. With each additional cost, we begin to move away from free, putting new startups in the unenviable position of having to justify to lawyers why they should pay to access case law.
Honestly, I don’t know that many lawyers who have given the problem of authentication much thought. In most conversations about case law access, the issues I have discussed are scope of coverage and whether the site’s UI and search tools are both easy to use and robust enough to keep you from wasting too much time looking for authority. But perhaps the first lawyer to get sanctioned in court for using an electronic slip opinion that doesn’t actually reflect the court’s “real” opinion will stop and ponder the question. Until that time, I seriously doubt most lawyers even care. Just as long as it doesn’t cost them anything.