Open Source Laws? No! It’s the Law that is Open Source!


In 1999, two young lawyers from a prestigious US law firm were asked by the firm’s corporate client to research the availability of legal cases on the Internet. Why? The client did not want to pay the firm’s high legal research bills.

The result – an online legal research service called Fastcase (www.fastcase.com). It uses computer algorithms to perform the case indexing normally done by human editors at Westlaw and LexisNexis (affectionally called “Wexis” by industry players). The two lawyers, Philip Rosenthal and Edward Walters, through Fastcase are attacking Wexis’ stranglehold on legal research.

Free Law

Fastcase is not alone. A mix of for-profit and not-for-profit sites have similar missions: including PreCydent (www.precydent.com), Public.Resource.org (public.resource.org), Legal Information Institute (www.law.cornell.edu) and Casemaker (www.casemaker.us). Such sites collect digital version of case laws that traditionally fill the shelves of law libraries in the US. What do such sites do with these collections?

Fastcase is offering them at a very low subscription to users – it sells bulk subscriptions to the US state bar associations for as little as US$2 per subscriber per year, a ‘no brainer’ for US law firms to at least try it out.

Public.Resource.Org is offering them for free download and incorporation into other sites, irrespective of whether they are for free or on a commercial basis. For example, Columbia and Colorado Law Schools have announced they will incorporate the information in their free altlaw (www.altlaw.org) service. A number of commercial legal research providers have announced they will incorporate this data in their services. Public.Resource.Org is the brainchild of Carl Malamud. He is a data-access advocate who in the mid-1990s started putting Securities & Exchange Commission (“SEC”) filings online for free. The SEC later took up his idea and created the Edgar online service. Malamud also prodded the U.S. Patent & Trademark Office to do the same with patents in 1998.

Casemaker offers the cases to its State Bar Association Consortium members. Bar associations who choose to sign up as Consortium members can provide exclusive and unlimited access to Casemaker to its members. The Casemaker on-line search engine allows users to search and browse a variety of legal information such as statutes, codes, rules, and case law on the web.

The Legal Information Institute (“LII”) offers free access to US legal materials. LII is a research and electronic publishing activity of the Cornell Law School.

The open source law reflected in the ‘LII’ phenomena has spread its wings around the world – there are about 12 or 13 other similar institutes around the world, including WorldLII (www.worldlii.org), ComLII (www.comlii.org) and the renoun AustLII (www.austlii.org). Over 270 databases from 48 jurisdictions in 20 countries were included in the initial release of WorldLII. Databases of case-law, legislation, treaties, law reform reports, law journals, and other materials are included and are free.

Bigger law firms will continue to use Wexis for a long time. The established vendors have the most current and comprehensive databases. But Fastcase and similar websites can be used for quick searches and to cross-check citations and has a phenomenal niche serving smaller firms that can’t afford Wexis.

Legal Research 2.0

The arduous task ahead for such legal research sites begins with digitising all of the court records. Computers then have to be programmed to determine whether a holding in a case has been overruled or altered by a subsequent decision; a task presently carried out by an army of lawyers and editors at Westlaw, Lexis and other law reporters around the world.

Interestingly, what lawyers do when researching legal materials (ie. Looking through old court decisions to find arguments that will help their cause; Ranking those cases according to a well-established hierarchy: decisions that have been cited frequently by other judges are considered more reliable than ones that nobody cites; appeals courts rank higher than trial courts; recent decisions trump old, stale ones) is quite similar to what Google’s software algorithms do with Web sites. Google’s servers use similar logic, ranking Web sites according to how many other sites link to them and how lofty the referring sites are in the ranking.

This similarity struck Thomas Smith, a professor at the University of San Diego School of Law. His research showed that citations display a highly skewed distribution, similar to that of links among Web sites. Out of 4 million cases he studied, 400,000 weren’t cited at all, and 773,000 were cited only once. Only 0.3% had been cited more than 500 times.

Smith and Tomarchio (the mathematician who assisted him) used this knowledge to develop a free legal search engine called PreCydent. In tests Smith and others have shown that PreCydent turns up those cases legal experts consider the most authoritative more reliably than any of the existing legal-research services.

Fastcase is working on new ways to display data, including a chart that sorts cases by relevance and time. Type in a search term or phrase and Fastcase displays a field of circles. The largest circles will probably be around the key decisions relevant to the search term. Click on the circle and the case is displayed, with hypertext links to other cases cited within it and to cases that cite it. This is a fundamental change from the way legal research has been performed since the mid-1700s, when Sir William Blackstone revolutionised the practice of law by putting English common-law cases into categories. All modern law reporters index cases according to preset legal topics, lumping them into categories in much the same way as Blackstone did. Tradition may now be an obstacle. PreCydent and Fastcase are working on new ways of doing legal research, leveraging on smart programmers and cheap computing power.

It remains to be seen if such revolutionary ways of doing legal research will find acceptance among the conservation legal fraternity. However, after doing things the ‘usual way’ for over 200 years, what is wrong with using technology developed for the internet for making (hopefully) legal research faster, more reliable and easier?