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How State Courts Contract for Online Legal Information

State court systems produce law in the form of judicial opinions that, with varying degrees of precedential weight or persuasiveness, guide future decisions and private decision-making. Courts are, however, by a vast margin, net consumers of legal information. To begin, judges perform their law applying and interpreting functions within frameworks established by their jurisdictions' constitutions, statutes, and administrative regulations. As a consequence, they require up-to-date collections of those materials. This country's messy federalism forces them to consult federal court decisions, on occasion, for interpretation of their own state's law. More frequently they must do so for rulings on federal statutes, regulations, and judicial precedent in the many matters coming before them that are governed, at least in part, by federal law. Primary legal materials from other states become important in cases of first impression and on topics where similar statutory or rule language is at issue. Annotations, commentary in many other forms, from journal articles to comprehensive treatises, are also critical resources for judges.

During the print era of recent memory, the judicial need for such an array of legal information meant that courts required law libraries. The need was not limited to appellate courts; trial judges, including those sitting in remote rural areas, required libraries. Indeed, viewing a jurisdiction's judicial system as a whole, the cost of furnishing adequate legal information to the trial judges spread across a state typically dwarfed the cost of meeting the needs of its few appellate courts, even though the latter received richer support. Roughly ninety percent of New York's annual expenditure for legal information delivered to its courts is spent at the trial court level.[1]

In many states, including some of its largest, viewing the judicial system as a whole is difficult because of how the trial courts are funded and administered. A common pattern places responsibility for general jurisdiction trial court costs on the county or counties they serve. Over the last century, numbers of states have moved away from this structure, creating "unified court systems." In their most complete form, unified court systems centralize administration and fiscal responsibility for all courts, trial and appellate, at the state level. Municipal courts of limited jurisdiction continue to operate on their own, but the trial courts with general jurisdiction over civil and criminal matters are completely funded by the state. Unification or consolidation of the judiciary has often progressed in stages, however, with the state first taking on salaries while leaving facilities and support costs to be borne by local units of government.

These structural differences have had a profound effect on how state courts have responded to the transformation of the legal information industry that has taken place over the past two decades. Digital sources have displaced law books in the work of lawyers and judges. A succession of acquisitions and mergers produced two dominant online legal information services, Westlaw and Lexis, and soaring prices for the remaining print materials. While Lexis and Westlaw face competition, particularly in the the small firm segment of the legal profession,[2] none of their competitors offer collections of the depth and breadth of the big two. It is fair to say that today access to the basic law collection of one of these two services has replaced proximity to a print law library as a court requirement. And for many courts these digital libraries furnish depth and breadth they never were able to afford in print.[3]

By virtue of having a unified structure or in some cases as the result of a state initiative focused on this particular area of trial court support, numerous states now assure access to the comprehensive online legal information offered by Westlaw or Lexis for all state courts and judges.[4] In others, however, trial courts must make their own arrangements, if they can, using such county or district funds as are available.[5] Court autonomy is sufficiently extreme in a number of states that even the different appellate courts contract for online legal research services independently.[6]

There are other dimensions along which state judicial systems differ in their response to the new information environment. Several have contracted on behalf of some or all their courts with both major services, making it possible for judges and their staff to work from Lexis, Westlaw, or both.[7] In contrast, others have contracted with a single source.[8] In some instances this has followed a competitive bidding process.[9] In others negotiation has been limited to one preferred vendor.[10] An initial competitive award can readily lead to subsequent negotiated extensions or a shift to sole-source procurement, for the costs of switching can seem large to users and administrators.[11]

Both Westlaw and Lexis have shown particular eagerness to secure judicial contracts, providing courts more favorable terms than they offer other units of state government.[12] In some instances these favorable terms are explicitly tied to a court's prompt delivery of data in its custody – decisions or briefs – in digital format to the vendor.[13] Court libraries that commit to continuing to buy one vendor's print products may also be offered a price break on that same material in digital form.[14]

Some contracts for online information call on the vendor for additional services – a public access web site[15] or an internal database for use of the court.[16]

The following table presents basic information on how state courts are meeting the legal information needs of their judges, ranging from those sitting on the jurisdiction's court of last resort down through its trial courts of general jurisdiction.

Peter W. Martin

1. State of New York - Judiciary, Budget Summary for Fiscal Year 2018-2019, at 9, 87, 92, http://ww2.nycourts.gov/sites/default/files/document/files/2018-05/2018-19-UCS-Budget.PDF.

2. See Peter W. Martin, Reconfiguring Law Reports and the Concept of Precedent for a Digital Age, 53 Vill. L. Rev. 1, 22-24 (2008).

3. Consider the content and capability called for by Maryland's 2018 RFP or Minnesota's 2014 RFP. None of the competitors to Lexis and Westlaw could qualify. See MD, MN.

4. The list is a long one. See, e.g., AK, DE, KY, MD, MA, MT, NJ, OK, OR, RI, SC, TN, VT, VA, WA, WV.

5. See, e.g., KS, NV.

6. See, e.g., GA, OH, MI.

7. See, e.g., OR, TN.

8. See, e.g., AK, MT, NJ, OK.

9. See, e.g., NJ, ND.

10. See, e.g., HI, KS.

11. See, e.g., MT.

12. Numerous sources report this price differential. It appears explicitly in the price list applicable to the Texas Master Agreement with Lexis. See TX.

13. See, e.g., HI, RI, WA.

14. See, e.g., AK, OK.

15. See, e.g., AK.

16. This is a component of the Maryland RFP. See MD.

Table of State Court Contracts

In return for agreement not to cancel subscriptions to the National Reporter Service (NRS) in print, contract includes access to NRS page images.

As part of the agreement, Thomson hosts a website containing the unenhanced text of Alaska state caselaw from 1960 (statehood) to the present --http://government.westlaw.com/akcases

There is a single contract covering the appellate courts (Supreme Court and Court of Appeals). Whether to have online research services at the trial court level and, if so, which one is determined by the 105 counties

Contract contains a non-disclosure provision

The Michigan Supreme Court and Court of Appeals have individual contracts with Westlaw and Lexis. They tend to sign three year agreements with each vendor, which locks the pricing. Each court contracts separately. Packages are slightly different. Users can choose one service or the other. Access to both services is available if the user reasonably needs both.

Contracts for LexisAdvance and Westlaw are managed by the Administrative Office of the Courts and the Law Library. One contract covers all trial and appellate courts. The executive and legislative branches in New Hampshire have their own contracts.

The current contracts contain nondisclosure provisions. Westlaw’s is more restrictive than the LexisAdvance provision which explicitly makes the terms subject to any state open records or freedom of information statutes.

Chris Keating, Director Administrative Office of the Courts New Hampshire Judicial Branch (10/24/2018)

There is one contract, currently with Westlaw, covering the state trial courts. There are separate contracts for Lexis and Westlaw for the Supreme Court. The judicial branch does have a process for competitive bidding which applies to the trial court contract.

The LexisNexis contract is subject to nondisclosure provisions. The Westlaw contracts can be requested via Rule 41 of the North Dakota Supreme Court Administrative Rules, the mechanism for requesting public court records. (The North Dakota Court System is exempt from the state's Open Records Law.)

Supreme Court, individual Courts of Appeals and trial courts all contract for online legal research services on their own. The state's contract with Thomson for publication of its official case reports provides the Supreme Court and individual Courts of Appeals discounted rates for Westlaw.

The Law Library has a public access subscription to Westlaw which is not part of the publishing contract. The Law Library also has an agreement with Lexis for research services within the Library as well as for public access.

Ken Kozlowski, Director, State Law Library (10/23/2018)

Oklahoma's Court of Criminal Appeals contracts for online legal research services separately.

The Oklahoma State Courts Network (www.oscn.net) maintains a comprehensive and up-to-date state law collection that is heavily relied upon by attorneys in the rural counties.

The contract contains a non-disclosure provision. The Westlaw price is tied to quantity of book purchases from Thomson

The contract with Westlaw covers all state-paid judges. Prior provision of both Westlaw and Lexis ended due to budget constraints.

In 2008, the Lexis and West contracts for the judiciary were handled by the State Law Library. At some point after 2008, the Council on Competitive Government negotiated these services for all state agencies and its master contracts replaced the State Law Library’s ones when they expired. The Council on Competitive Government was dissolved in September of 2017 and its contracts (which expire in 2023) were assumed by the Texas Comptroller’s Office.

Texas Department of Information Resources site furnishing access to the contracts with both Lexis and Westlaw

Mena Ramon, General Counsel, Office of Court Administration (11/8/2018)

Westlaw is the sole provider for the Utah Courts. The judiciary's contract includes all levels of court, including justice, (limited jurisdiction) , district (general jurisdiction), juvenile and appellate courts as well as the Administrative Office of the Courts. Its contract is the product of a master agreement executed in 2016 that covers state agencies more generally.

There is a similar Lexis master agreement which the courts do not use.

2016 Master agreement (Westlaw)

2015 Master agreement (Lexis)

2017 contract

Contracts with both Westlaw and Lexis cover the Supreme Court, Court of Appeals, some Supreme Court offices and the State Law Library.

Both contracts contain a clause that bars the sharing of the content, pricing, etc.

There are different contracts for the different court levels. The Supreme Court has contracts with both Lexis and Westlaw. The District Courts have a Westlaw contract. The Circuit Courts do as well.

Supreme Court has free access to Westlaw briefs database in return for its transmitting them.