Opell-Sourcing The Law

Iune30,2008
O RD ERING COURTS
TheLaw
Opell-Sourcing
is puttingthe law
A newbreedof onlineservices
F*s*aes'
within the reachof everybodyI &3rffiavrle&
ANDED\MARD
HILIPROSENTI{AL
Walters were young lawyers at
Covington & Burling, a prestigious Washington firm, when
they got an unusual request
from a large corporateclient to start looking up legalcasehistorieson the Internet.
The client was fed up with paying the
firmb stiffbills for legalresearch.
At first they were shocked.Rosenthal
and Walters were used to racking uP
hours on the online researchservices
lawyerssnidely call Wexis,afterWestlaw a
unit of Canada'sThomson Reuters,and
LexisNexis, owned by Anglo-Dutch
publishing conglomerateReedElsevier'
Big law firms pay asmuch as $4 million a
year for accessto Westlawand Lexis.
This wasin 1999.When the fivo larvFers
startedtrolling for caseson the Web, they
noticed courts around the counffy were
beginning to post filings online. Why pay
Westlawand LexisNexisso much for documentsthatwerealreadyinthepublicdomain?
"The courts produce this stuff at
taxpayerexpense,it getsshippedto these
foreign companiesfor free and then they
chargeus to read it," saysRosenthal,a
Caltech-educatedphysicistwho graduated
from Haruard Law School.
"I thought,'This is completelystupid.
I've got half a mind to start the altemative P
to Lexis/Westlaw,"'adds Walters, who I
attended law school at the University =
t
of Chicago and was once a speechwriter
for GeorgeH.W Bush.
Forcenturieslawyershaverankedcasesby how often othercases
citethem, muchthe way GoogleranksWeb sitesearchresults.
Fastcase,
an onlinelegaldatabase,
iscreatingnew toolslikethis "bubble"view.Herearethe resultsof a searchfor caselaw on
"campaignfinancereform"going backto the early1970s.
#
citations in cunent search result:
+
citatiois in entire database
Thetime line on the bottom
showswhen a decisionwas
handeddown.Thecluster
of recent casesbelow are
a visualizationof the legal
jousting over regulations,
includingthe 2002McCainFeingoldCampaignFinance
ReformAct,
i
The vertkal exis representshow relevant each-iaseis
to the searchterm, in this case"campaignfinance reform.'
The big circle below is Buckleyv. Valeo,an oft-cited 1975
U,S,SupremeCourtdecisionthat upheldcampaigncontributionlimits,
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Eight years and $7 million later
Rosenthaland Waltershavetheir alternative, an online legal-researchservicecalled
Fastcase.
It usescomputer algorithmsto
perform all the caseindexing now done by
the thousandsof human editorsat Westlaw and Lexis.Operating out of a slightly
seedyWashingtonoffice building, Fastcase
brings in lessthan $10 million a year in
revenue, hardly a threat to the Wexis
duopoly, which last year roughly split a
combined$1.6billion in pretaxprofit on
salesof $6.5billion.
Disruption is in the air, however.Fastcasesellsbulk membershipsto statebar
associationsfor aslittle as $2 per member
per year,a compellingreasonfor law firms
to at leasttry it out. Justascheappersonal
computers undermined the mainframe
businessin the 1980sand open-source
programslike Linux and MysQr are chalIengingMicrosoft and Oracletoday,outfits
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like Fastcaseare attackingWexis'strangle- dation,Malamud'sPublic.Resource.Org
is
hold on legalresearchfrom the bottom up. filling up a24-terabl,teSun Microsystems
A mix of for-profit and not-for-profit
serverwith caselaw going back to 1754.
firms havemissionssimilar to Fastcase's. (Thatt a lot of bytes,enough to t)?e out
including PreCydent,Public.Resource.org 12 million novels.) Malamud bought
and Collexis Holdings' Casemakerdivi- some data from Fastcasewhile building
sion. They areassemblinga digital version his service,which is availablefor free on
of the collectionsthat fill miles of shelves the Web."If we do it and do it right, there
at law libraries acrossthe country.
are 100 other people who will copy our
What people will do with it is any- data and useit in interestingways,"Malais the mud says.
body's guess.Public.Resource.Org
Bigger law firms will continue to use
brainchjld of Carl Malamud, a data-access
advocatewho in the mid-1990s started Westlawand Lexis for a long time. The
putting filings from the Securities& establishedvendorshavethe most current
ExchangeCommission online for free. and comprehensivedatabases,and, says
The SEClater took up his idea and created Thomas Fleming, lawyers know them
the Edgar online servicefor accessingfil- best. Fleming overseesthe research
ings.Malamud prodded the U.S.Patent& department at l50-attorney feffer Mangels Butler & Marmaro in Los Angeles.
Trademark Office to do the same with
patentsin 1998.
His firm usesFastcasefor quick searches
With the help of influential backers and to cross-checkcitations,but he saysit
like Ebayfounder Pierre Omidyark foun- has a "phenomenalniche" serving smaller
firms that carlt afford Wens.
Thosewho would unseatWexishave
the arduous task aheadof digitizing all of
the court recordsstill in books. Optical
scanning systems
.
i
have a 98o/oacctt'
''
:.
racv rate. which
court decisionsto find argumentsthat will
help their cause.Then they rank those
casesaccording to a well-established
hierarchy.Decisions that have been cited
frequently by other judges are considered
more reliablethan onesthat nobody cites.
Appeals courts rank higher than trial
4:E
courts.Recentdecisionstrump old, stale
ceptable40 errors ones. Google'sserversuse similar logic,
per page.So Fast- ranking Web sitesaccordingto how many
caseand others are other siteslink to them and how lofty the
payingIndian data- referring sitesare in the ranking.
The similarity struck Thomas Smith, a
entry firms 40 to 60
cents per 1,000 professor at the University of San Diego
-# characters
to Schoolof Law,a fewyearsago.Thomasgot
"triple-key" the LexisNexisto sharedataon millions of court
books into digital citations, and with the help of
g.
#'
,
form, with three mathematician Antonio Tomarchio. he
typists entering the showed that citations displuy a highly
text and a com- skeweddistribution, similar to that of linlcs
3nu
puter picking the amongWeb sitesor the likelihood that top
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agreeupon. Mala- Out of 4 million caseshe studied,400,000
mud estimates it werent cited at all, and 773,000were cited
only once.Only 0.3%had beencited more
will cost $6 million
to
digitize
all
10,000
than
500 times.
2008
Smith and Tomarchio used this
inlii:la.:;.:-.,:a'i--ilii;,:.1:rii,:iF-i-..ii;iir;,;.iF;Fi;,:::r'-.*:=;;
books covering the
entire history of knowledgeto developa free searchengine
district, appellate,SupremeCourt and called PreCydent.In recent tests Smith
bankruptrylaw The Indian typists haveto
leaveout the editors' notes in the Westlaw
or risk copyright infringement.
Another tricky task will be training
computers to determine whether a holding in a casehasbeenoverruled or altered
by a subsequentdecision.The army of
lawyersand editors at Westlaw and Lexis
do this now, coding caseswith helpful
symbolslike red flagsto warn lawyersthat and others have shown that PreCydent
a particular section of a caseis no longer turns up those caseslegal experts convalid. "In the free-caseworld, it's all prob- sider the most authoritative more reliably
ably there,but is there a way to relate one than any of the existing legal-research
caseto another?"asksRichard King, chief services.
"Theselittle guys [Fastcase
and PreCryoperating officer of Thomson Reuters'
dent] are throwing a lot of Internet techWestdivision.
is nology at the problem, and they may be
Working in the open-sourcers'favor
the fact that what lawyersdo for a living is getting closeto replicating human analyquite similar to what Google'ssoftware sis,"saysDavid Curle, an analyst at Outalgorithms do with Web sites.Lawyers sell,a market researchfirm that tracks the
prepare casesby looking through old legalinformation business.
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Fastcase,
with sevenfull-time programmers,is working on new ways to
displaydata,including a four-dimensional
chart that sorts casesby relevanceand
tirne (seechart,p.72). Typein "abortiori'
and "privary," for example,and Fastcase
displaysa field of circles,with the largest
at 1973:Roe v. Wade,the U.S. Supreme
Court decision that legalizedabortion.
Click on the circle and the caseis displayed,with hypertext links to other cases
cited within it.
Thisis a firndamentalbreakfrom theway
legalresearchhasbeenperformedsincethe
mid-1700s,when Sir William Blackstone
revolutionizedthe practiceof lawby putting
Englishcommon-law casesinto categories.
A centurylaterWestlawfounder Iohn West
begancollectingU.S.court decisionsasthey
wereissuedand compilingthem involumes
he called"reporters,"so lawyerscould keep
track of the law asit evolved.Many courts
still requirelawyersto usetheWestvolume
and pagenumbersin their citations.
The Ohio Bar Association built the
first large-scalecomputer legal research
systemin the late 1960s,using technology developedfor the U.S.Air Force.
That systemlater becameLexisNexis.
"These
littleguysarethrowinga lot of
lnternettechnology
at theproblem,
andtheymaybegettingcloseto
human
replicating
analysis."
Both Westlaw and LexisNexis still index
casesaccording to preset legal topics,
lumping them into categoriesin much
the sameway as Blackstonedid.'I think
of it as pre-computer technology,"says
Fastcase's
Walters."Pull a book off the
shelf and seehow your point of law fits
into their outline."
Tiadition maybe an obstaclenow but
never underestimatewhat smart prograrunersand a lot of cheapprocessing
power can do.
F