Introduction
Hi there! My name is Tom Blakely, I’m a federal judicial law clerk and attorney. I previously worked in big law and the United States Department of Justice. You might remember me from last year, when I wrote about the US v. Google ad tech antitrust trial at Big Tech on Trial. I’m excited to be writing a guest piece for BIG, this time on a particular competition problem I (and nearly every lawyer) deals with on a daily basis: the Lexis/Westlaw duopoly.
The law in America does not belong to lawyers, it belongs to all of us. As citizens, we must be able to read the law, understand it, obey it, and bring complaints against those who wrong us. That is the basis for a coherent political order, and why the rule of law is such a foundational aspect of a democratic system. Moreover, it would be hard to find a technological era more suited to the democratization of law than the one we’re in today. The computer lets anyone query instantly, the internet lets anyone do it from anywhere, and generative artificial intelligence can decipher and explain complex legal questions if it has access to credible databases.
And yet, today, two powerful companies dominate and restrain access to key aspects of our legal order, from case opinions to legislative history. To give you a sense of what I mean, Lexis, one of two dominant legal research platforms, charges up to $469 for a single search. That’s the equivalent of a Google query, for almost $500. Moreover, beyond LexisNexis and its rival Westlaw, the Federal judiciary itself has used its privileged position to charge high fees for court records that should be available to all. Today, the law is hidden behind paywalls.
But it wasn’t always this way.
In this piece, I’m going to explain how and why America keeps the law from its citizens, and what we can do about it.
The Origins of Legal Research
The stereotype of a lawyer’s office was traditionally that of a well-manicured desk, with ornate and intimidating shelves of books somewhere in the background. And there’s a reason for the imagined massive quantity of books. The practice of law in the United States relies on them.
We use a system that came from England, called the common law tradition. In that system, there is the legal rule that is written down, known as statute. But then there is also a lot of interpretation of that statute, through cases. And those interpretations are often binding. To know what the law is beyond what statutes say, you must research the case law.
U.S. federal courts publish cases in “Federal Reporters” and each case is identified by a case cite. An example of what this looks like would be “United States v. Alcoa, 148 F.2d 416 (2d Cir. 1945).” Prior to today’s day and age, to read this case, you would have to physically go to a law library, find the 148th print volume of the 2nd Series of the Federal Reporter (what the “148 F.2d” stands for) on the shelf, and turn to the 416th page to read the 1945 opinion of the United States Court of Appeals for the Second Circuit in United States v. Aluminum Co. of America (Alcoa).
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