Open-Access Law

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The Lawyers Weekly (of Canada) writes about free vs. paid online legal research tools:

Cost-​​conscious lawyers may ask them­selves: Can we get by using only freely avail­able research tools?

Chances are, the answer today is no. But free legal research tools con­tinue to improve as new ones emerge and legal researchers every­where are bet­ter off for them.

The low cost, easy acces­si­bil­ity and speed of pop­u­lar search engines, par­tic­u­larly Google, makes them a nat­ural des­ti­na­tion for researchers of all stripes.

As the arti­cle points out, the paid ser­vices (in the U.S., that would pri­mar­ily be Westlaw and LexisNexis) add very use­ful, human-​​created con­tent, such as cita­tion eval­u­a­tion and head­notes that help researchers quickly and effec­tively eval­u­ate case law. A newer, more rea­son­ably priced com­peti­tor is Fastcase. It too is not ded­i­cated to open access, but nonethe­less increases access to case law due to its much lower prices and still-​​effective edi­to­r­ial con­tent and categorization.

“Free” access is not quire the same as “open” access: open access, accord­ing to Paul George, is “the elec­tronic pub­li­ca­tion of schol­arly work that is avail­able for free with­out copy­right con­straints other than attri­bu­tion.” Free resources tend not to meet this level of copy­right free­dom in most spheres. Case law, how­ever, essen­tially meets this require­ment wher­ever you get it (at least, fed­eral case law doesn’t — some states may attempt to limit dis­tri­b­u­tion, although I doubt that such a restric­tion would hold up under close scrutiny), since you can use all the con­tent (not includ­ing added edi­to­r­ial con­tent, of course) with only a case cite as attribution.

For more on open access to law, read the Durham Statement on Open Access to Legal Scholarship, visit the 2006 Symposium on Open Access Publishing and the Future of Legal Scholarship from Lewis & Clark Law School, and the Open Access Law Program.

So where does one go to get free or open access to case law?

For Canadian legal research, I per­son­ally find CanLII to be highly use­ful and effec­tive, and much pre­fer its search to Westlaw or LexisNexis (of course, there is less Canadian case law to search through than there is U.S. case law).

In the United States, AltLaw (draw­ing on freely avail­able data stored at bulk​.resource​.org) pro­vides access to a great deal of openly avail­able fed­eral  . Content lags by sev­eral years, how­ever, which makes it less use­ful for prepar­ing actual briefs (not using one of the big two is almost mal­prac­tice cur­rently). In fact, the con­tent behind AltLaw is often much more read­ily found by search­ing Google, which indexes all of AltLaw’s con­tent (as hosted by bulk​.resource​.org). Searches for case cites or case names often turns up results, if the case is old enough. In fact, Google is often suc­cess­ful even with more mod­ern cases, either through links to Wikipedia or, espe­cially with Supreme Court cases, directly to the case.

FindLaw pro­vides free access to a great deal of up-​​to-​​date caselaw, but is in a del­i­cate posi­tion since it is owned by the same com­pany that owns Westlaw. While free, it is not focused on pro­vid­ing “open access” to research in the same way as AltLaw or CanLII. It is nonethe­less quite effec­tive at open­ing up legal research more generally.

Many of these U.S. resources focus pri­mar­ily on fed­eral law. State case law is much more dif­fi­cult to find through open-​​access resources, and I still do not have a good source for gen­eral state legal research other than FindLaw.