AALL on DOJ Legal Procurement

[James Love <love@tap.org>]

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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - Juris, Legal Information
September 9, 1994

The following is a letter from Robert Oakley of the American
Association of Law Libraries (AALL) to Attorney General Janet
Reno regarding the Department of Justice (DOJ) proposed
procurement of computer assisted legal research (CARL).  AALL
asks DOJ to support a vendor neutral system of citation and to
require the bidders to provide public access to an "unenhanced"
database of the judicial opinions at the marginal cost of
dissemination.  The letter follows.


                                    September 1, 1994
 
 
 
Ms. Janet Reno
Attorney General of the United States
United States Department of Justice
Washington, D.C.  20530

Dear Attorney General Reno:

     I am writing to you on behalf of the American Association
of Law Libraries concerning the Department of Justice's imminent
Request for Proposals (RFP) for the procurement of computer
assisted legal research (CALR).  

     The American Association of Law Libraries is a nonprofit
organization with over 5,000 members.  AALL members respond to
the legal and government information needs of legislators,
judges, and other public officials at all levels of government,
corporations and other small business persons, law professors and
students, attorneys, and members of the general public.  One of
the most important underlying principles of AALL's information
policy is that the public's right to information about the
activities,actions, and policies of the Federal government is a
central and indispensable tenet of the American democratic
system.

     AALL is concerned about the issues that have been brought to
your attention concerning the acquisition of a CALR system for
the Department of Justice, but we are also concerned that our
views be accurately represented and not relayed to you by others. 
In that connection, I hope that this letter will clarify our
position.  

     In view of the controversy surrounding the issue, we do
believe that it is appropriate for the Department to issue a
Request for Comment before going forward with the actual RFP. 
Such an opportunity to comment will ensure that everyone has had
a chance to state their views and to bring all the issues to your
attention.

     In my letter to you of August 30, 1993, I outlined AALL's
interest in ensuring public access to the public domain portions
of the original JURIS database.  Our continuing interest in the
issue stems from our long-standing commitment to public access to
public information of all types.  This information includes not
only the caselaw which is discussed at some length in this
letter, but also includes such public information as is created
by the Department of Justice itself.  We have expressed these
concerns in our support for the development of Executive Branch
policies (see Office of Management and Budget, Circular A-130)
promoting public dissemination of public documents and through
our support of and participation in the Depository Library
Program.  In our view, if there is any information that is
absolutely essential to an open and democratic government, it is
information about the law and its creation.  

     Unlike some of the others who have written to you, we do not
believe that the government should own its case law.  The
copyright laws of the United States clearly preclude Federal
government ownership of its information.  We believe that that is
as it should be and applies with special force to legal
information.  

     Actually, it is a fundamental part of our belief that no one
should own the law, either outright or in practical effect. 
Regrettably, the assertion of ownership of some parts of the
published caselaw together with the requirements of courts and
others to cite to certain privately published versions of the
caselaw, have, in practical effect, given one publisher
substantial control over the legal information market.

     The Federal government does not itself publish most Federal
caselaw in any permanent usable form.  Only the decisions of the
Supreme Court of the United States and some specialized courts
are published in a permanent form by the government.  Slip
opinions are issued by the Federal District Courts and Courts of
Appeals, but the permanent record of those opinions is available
only from private sources.  Similarly, many states have turned
over the publication of their opinions to the West Publishing
Company.

     AALL does not wish to minimize in any way the important role
that the West Publishing Company has played in the publication of
legal information.  For over a century, West has worked to
collect and make accessible the caselaw of the United States. 
For this, they deserve much credit and appropriate reward.

     However, West's claim of copyright in the numbering and
pagination of its volumes together with the requirements of the
courts and traditional legal citation manuals that pinpoint cites
be provided to West products gives West near monopoly-like power
and severely limits the ability of others to enter the market and
compete effectively.  AALL testified about this issue in a
hearing held before the Subcommittee on Intellectual Property and
Judicial Administration of the House Committee on the Judiciary
on H.R. 4426, a bill to exclude copyright protection for certain
legal compilations, on May 14, 1992.

     There appears to be two parts to the solution to this
problem. First, some mechanism needs to be developed to ensure
that this important material remain publicly accessible in the
public domain. We do not contend that West does not and should
not have a right to its editorial enhancements and the other
creative elements of its work.  But we believe that such
enhancements should not have the practical effect of withdrawing
the underlying material from the public domain.  

     Second, if the use of such public domain legal information
is to be effective, then a citation system must be developed that
does not rely on the volume and page numbers of the West
Reporters. Such a system must gain a high degree of acceptance
within the legal community, and particularly with the judges who
write the citation standards for individual courts and with the
authors of traditional legal citation manuals.

     With regard to the second of these points, several
jurisdictions have experimented with alternative citation
systems. Both the Sixth Circuit Court of Appeals and the state of
Louisiana have adopted non-proprietary means of citation.  The
Administrative Office of the U.S. Courts developed a similar
proposal a few years ago.  Although that proposal was never
mandated for the Federal Courts, it did become the basis of the
system now in use in the Sixth Circuit.  The Board of Governors
of the Wisconsin State Bar Association has recently completed a
thorough review of the issue and has recommended a new system for
use in the state of Wisconsin. Several other jurisdictions are
reportedly considering the same issue.  In an effort to harmonize
these systems and perhaps develop one that could be more
universally adopted, the American Association of Law Libraries
has appointed a Task Force that will be reviewing all existing
systems and proposals and making a recommendation by the middle
of next year. 

     With regard to the need for a public domain version of
Federal caselaw, it is our understanding that both WESTLAW and
LEXIS receive the opinions directly from the Federal courts
without any charge (not even a charge for the cost of
dissemination as would be permitted under the principles of
Circular A-130).  This information is very valuable, and the
companies make a great deal of money by selling the same basic
information (with value added, of course) back to the government. 
Under such circumstances, it does not seem unreasonable to ask
that the companies make available a compiled, but otherwise
unenhanced version of the information for public use.  Such a
version could, for example, be made available to the general
public -- who are not in a position to buy LEXIS or WESTLAW
access -- by dissemination to depository libraries and others
over the Internet.

     The availability of a a public domain version of the caselaw
would not interfere with the market for a more sophisticated
version from the private sector.  For many years, the unenhanced
version of the U.S. Code has been available from the Government
Printing Office and no one has ever seriously contended that the
availability of that version has interfered with the market for
the versions published by the West Publishing Co. and Lawyers
Cooperative.  Private sector companies would, of course, still
add their own value to the data and make the enhanced version
available to attorneys and others able and willing to pay the
price for the added value.  

     With all of this as background, it is appropriate to ask
where the Department of Justice fits in since, for the most part,
it does not create the information under discussion.

     After the issuance of the RFP, the Department of Justice may
well sign a contract worth millions of dollars with one or both
of the major legal information vendors.  Together with similar
contracts in other parts of the government, the total amount of
Federal money being spent on these services will be significant. 
Yet the vendors receive the information from the government
without any charge.  AALL believes that under such circumstances,
it is not unreasonable to request as a condition of granting the
contract that:

     (1) On a regular basis a compiled (but otherwise
     unenhanced) version of the final opinions be made
     available for public distribution at the marginal 
     cost of dissemination, and 

     (2) The vendor agree to use such public domain citation
     systems as may be developed and implemented in courts
     around the country.

     We urge you to make these two requirements part of your
Request for a Proposal, and we also suggest that you seek other
comments through a more formal period of Request for Comments.

     Thank you for the opportunity to address these issues.  If I
may answer and further questions or be of help in any way, please
do not hesitate to call upon me.

                              Sincerely,



                              Robert L. Oakley
                              Washington Affairs Representative  


c:   Kent Walker

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