Introduction

This report presents findings from a survey of state level primary legal information. Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions). This survey was done with the goal of reviewing the free and open status of this legal information.

Findings

Findings indicate that there exist at least 14 barriers to accessing legal information. These barriers exist for both the individual user of a resource for personal research as well as an institutional user that would seek to republish or transform the information. Details about the types of barriers and the quantity of their existence can be found under “Barriers to Access.” At the time of the census, no state provided barrier-free access to their legal information.

Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources. Current collections allow for citation retrieval and some basic keyword searching. No state allows for federated searching of legal information collections. The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon. There is also a worrisome lack of archival material maintained by states. Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.

States were scored and ranked based on the openess of their legal publication practices. On a scale of 0 – 24, the highest score achieved was 18. The lowest was 8 and the median was 14. These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices. See the map with UELMA states marked with an X below.

Recommendations

Taking everything into consideration, it could be argued that states are doing more harm than good in providing legal information to the general public. Given the distributed nature of legal information publication, any changes to current publication processes requires the buy-in of several people per state. Furthermore, the fact that there are so many technical, legal and social restrictions to access of law means that there is no “magic bullet” change that can be made that will solve all the problems. It will require several choices to be made by the publishers of legal information.

For future efforts in publication of legal information, it is recommended that states consider the following publication alternatives and best practice suggestions:

States should create law portals, analogous to state data portals, which would allow for federated searching across the types of legal information. This would also allow for a one-stop shop for those seeking legal information.

• States should publish their legal information openly, in ways that allow for third parties to transform the information into more usable formats and collections and create tools such as citators. This encompasses not just the physical creation of the legal information, but also barriers to reuse such as claims of copyright and other use restrictions.
• Official publications of law should move from print publication to electronic, web based ones to allow for greater access by the public. While these could be published either by the state or via private corporations, the access to the information should remain free and open.
• All claims of copyright – either explicit or implied – as well as all restrictive terms of use should be removed from webpages containing primary legal information.
• For the sake of usability and complete content, states should consider outsourcing the web based publication of legal information to corporate partners.
• Until publication practices are improved, basic disclaimers about the use and usefulness of the legal information collections should be prominently displayed on the states’ websites. An example would be “Please note that the validity of case law can be altered by later cases. Please use a citator to check validity.”
• While enacting the Uniform Electronic Legal Materials Act (UELMA) is not absolutely necessary, states should heed the UELMA’s requirements for preservation of legal information materials. If UELMA is enacted, states should ensure that all three types of primary legal information are included in the act.

Why Perform a Census of State Legal Information?

This is a time of crisis on many fronts.

First of all, the United States is facing an access to justice crisis in its legal system. A 2005 study by the Legal Services Corporation showed that 80% of the civil legal needs – legal needs in which there is no constitutionally guaranteed right to an attorney – in the United States are going unmet. The United States ranks 66th out of 98 countries in a ranking of access and affordability of civil legal services. Individuals are relying on self-help resources, either provided by a library or the web.

There exists in poverty studies a term called a “food desert“, often seen in rural or inner city areas, where the availability and affordability of fresh food is non-existent. In a similar vein, a goal of this study was to see if there were “information deserts” where individuals seeking to perform legal self-help via state provided legal information websites could do so.

Secondly, due to the relative ease of web-based publishing, states are increasingly making the Internet the primary place of publication for their legal information materials. In response to this, the Uniform Law Commission drafted the Uniform Electronic Legal Materials Act (UELMA). This act requires states to ensure that their official legal publications on the web are authentic and preserved. In the past two years, 12 states have adopted UELMA, albeit somewhat unevenly. Of the 12, only 5 states include court appellate decisions in the requirements for their version of UELMA. As more states are considering UELMA, it was thought that it would be useful to take a “state of states” snapshot to see where things stand in a pre-UELMA world.

Methodology

During the period of September – December 2015, a census of every state primary legal information website was visited. In total, 51 code websites, 50 regulation websites and 105 court websites were visited. Between 17 and 18 data points were collected for each website for a total of 3603 data points. Specifics about the types of data collected can be found on the spreadsheets shared on the Raw Data page.

When a state provided more than one source for a type of information (e.g. in Massachusetts both the courts and the Secretary of State post state regulations), the responsible agency or department website was chosen. In Massachusetts example, the Secretary of State was used as this is the official responsible for publishing regulations. Alternatively, when the state did not publish a particular piece of information, the recommended site (as is often the case when publication has been outsourced to a private corporation) was used.

Barriers to Access

It’s easy to believe that if information is merely made available, the Access to Legal Information dilemma has been solved. However, to be true access, it must be meaningful access. Ideally there should be no impediments – physical or legal – that would prevent or slow access to information.

As a practical matter, Access to Legal Information does not exist on a binary of closed vs. open. Rather, there’s a gradient of openness, mainly determined by the needs of the user. Some barriers to access will absolutely bar the use of and access to information while some will present merely an additional annoying but surmountable hurdle for the user to encounter.

Often in the open source/open access worlds, there is debate about the meaning of the words “free” and “open” and whether or not one is better than the other for describing information. This is due in part to the fact that the English language word “free” does not adequately delineate between the notions of “libre” (no restrictions) and “gratis” (no cost). Often that which is free is not open, and for some people in the open law and open data movements, that is insufficient action on the part of the state. However for many users, a free resource is all that is needed.

Perhaps a more useful distinction is to look at the use of the information by potential users. In the case of legal information on the web, it is suggested that one looks at its retail vs. wholesale use. Retail legal publishing is aimed at either the public or legal practitioners who are using the publishing platform for research purposes. Wholesale legal publishing is meant for the creators of a legal information secondary market and usually takes the form of bulk data publishing. Some publishing practices are perfectly suitable for retail needs, yet have the effect of being “closed law” for wholesale needs, and vice versa.

The following chart lists the found barriers to access and whether they impact retail users, wholesale users or both.

Cataloging

Legal information is a tough environment to navigate – the information is dense, voluminous and uses terms of art that wouldn’t necessarily be considered by a non-practitioner or a practitioner new to the subject area. It is doubtful whether or not full text searching is sufficient or useful in accessing legal information. As it stands, no state provides an index to its case law.

Citation

Citation is a needed part of legal research as it allows those viewing your pleadings and filings to find the resources you used in drafting them. However, citation rules can be a barrier to access.

Eleven (11) states require the use of The Bluebook, a proprietary system of citation.¹ In addition to the fact that it’s a closed system and the monetary costs associated with using it, use of the Bluebook is also problematic in that it always requires cites to the West National Reporter System. So in these jurisdictions that require the use of The Bluebook, an individual (or a library that he/she patronizes) will have to pay to access both of these resources.

Even in non-Bluebook requiring states, court rules will require citation to an “official” source of law. In the far majority of states, the official version of the law is not the online version and thus the individual must seek a print copy and incur travel and time costs to access it at a library. A private copy would cost well into the thousands of dollars and it is not reasonable to think that an individual would purchase.

In the publication of case law, the online version of the law was unofficial in ninety-two (92) out of one hundred and five (105) sources surveyed. The online version of the states’ codes was unofficial in forty-six (46) of the fifty-one (51) state codes surveyed. Regulations fared slightly better and only thirty (30) of the fifty (50) online codes were unofficial. Of course, in ten (10) of the states, or 20% of the time, it was impossible to determine the status of the online version. See charts below.

There are strides being made to alleviate some of the barriers caused by commercial citation. Currently sixteen (16) states have developed vendor neutral citation formats for case law.² However, eleven (11) of these states require a parallel citation to a West National Reporter System version of the case.³ In all of the states, a citation to an “official” version is required in cites to cases decided before the transformation to vendor neutral.

Citator

The later interpretations of law are important for understanding its relevancy to a particular use. In the United States, it is an ethical lapse to not “Shepardize” or use a citator on a piece of law to check it accuracy. As it stands, no state provides a citator for its law, opening retail users up to a possible mistake in use.

Container

The format, or container, used in delivering the law to both the retail and wholesale user can greatly impact the ability to access the information contained within.

For an example of difficulties with containers and publishing law, let’s look at the PDF. While PDFs are an open standard, this poses some challenges for both the wholesale and retail user of law. For the wholesale user, it is very difficult to extract text from the PDF, and in a discipline like law where the very placement of a comma is critical, this is unacceptable. On the other hand, the PDF locks in the formatting of the document and gives the publisher confidence that the material appears just as it does in the canonical version.

For the retail user, the PDFs can be difficult to search as well as unwieldy to use. For example, the state of Indiana posts archival versions of its code in 1000+ page PDFs. It took several minutes for a hard wired desktop computer to download the publication. Considering that many people use mobile devices and data to access the internet, this makes accessing the law contained within these PDFs impossible.

One note: in the following analyses, we look at three types of publishing formats for codes, case law and regulations. HTML, PDF and “mixed.” When the graph indicates “mixed” publishing formats, that means that the practices of the state have changed over time. Generally speaking, the states trend towards the more common publishing choice for that type of law. So, for example, if they started publishing their code in PDF but they are now publishing in HTML and maintain the archives of that version of code in PDF, they are marked as “mixed”, since in this study archival material access is just as relevant as current law.

This study found that the trend in publishing codes is the HTML format. This format is accessible to both the retail and wholesale users of law. Of the fifty-one (51) sites reviewed, thirty-six publish the state code in HTML.

The publishing practices in case law were found to be almost the complete opposite. The great majority of courts publish their decisions in PDF format. This is likely due to the fact that the decisions are drafted in a word processing software and are then saved and uploaded as PDF. Of the 105 court websites visited, eighty-eight (88) publish in PDF only.

For regulations, the publication choices of the states is rather evenly distributed. Of the fifty (50) websites viewed, eighteen (18) were in HTML and fourteen (14) were in PDF. Click on image to enlarge.

Content/Archives

A quirk of legal research is that one never quite knows how much content is enough for their research needs. A case from the 1700s could still be good law, and a regulation from the 1970s may be the one binding in a particular case. It should be noted, however, that in The Citation and Depreciation of U.S. Supreme Court Precedent, 10 J. Empirical Legal Stud. 325, the authors showed that a US Supreme Court depreciates in citation value after about 20 years. So it could be argued that a complete collection of case law, at least, is not absolutely mandatory in order to do adequate legal research.

This study found that incomplete collections of codes, regulations and case law were the norm is the great majority of states. Generally speaking, most collections start in the mid-1990s. Only four states – Arkansas, California, North Carolina and Oklahoma – had case law collections available to the earliest days of their statehood. For statutory codes, only Iowa, Minnesota and Wyoming can make that claim. No state has regulations for the entire life time of their statehood, although one state – Wisconsin – has posted a collection going back to 1956, the period of time when regulatory agencies became much more active in creating rules and regulations.

For codes and regulations, the types of archival materials are also an issue. Instead of posting copies of their state codes or codes of regulations, many states provide archives in the form of state statutes or registers. While it is technically possible to determine the status of a state law or regulation using these materials, it generally requires the knowledge or assistance of an expert researcher to help one navigate the process.

The most worrying discovery to come from this study was to find that some states maintain absolutely no archives of their case law, codes or regulations. This is especially troublesome in states where the online version is official and leads to questions about preservation and ability of future researchers to access this information. For example, in Delaware, Florida and Georgia, the online version of their regulatory code is official yet they maintain no archives of this code.

Archival issues aren’t the only ones when it comes to content. In Alabama, the courts have decided to only post per curium decisions to the public website. All other cases are presumably posted behind log in, but one must have an Alabama bar license to access them.

For case law, the dates of availability ranged from 1778 to 2015. The median available date was 1997. Seven (7) courts provided no archives and two (2) did not provide access to neither archives or even the full current year offerings.

For codes, the availability ranged from 1839 to 2015 and the median was 1994. The majority of archives provided were of the less than useful session law variety and fifteen (15) states provided no archives of their state codes in any form.

With regulations being a relatively new type of legal information, it’s to be expected that the range of archival material is much more recent. The availability ranged from 1956 to 2015 and median was 2000. Again, as with the statutory codes, the majority of archives took the form as registers, the regulatory version of annual statutes. (Click to enlarge.)

Context

Law does not exist in a vacuum. It is very likely that a legal situation will be covered by a melange of case law, regulatory law and statutory law. However, no government legal information distribution site allows for cross searching of types of law. One must visit at least three different websites to access the law, sometimes more for updating purposes, and the interplay between these types of law is not made obvious to the researcher.

Control

There are two main legal avenues for states to create a barrier to access for legal information: copyright claims, and perhaps less well known, usage restrictions hidden in website terms of use. While these appear on both state created and corporate outsourced websites, it is much more common to see restrictive terms of use on the commercial websites.

These attempts at controlling the use of law are generally prohibitions towards commercial use of the legal information contained within – both in vague “for personal use only terms” and specific “not to be resold” ones. There are also prohibitions against web scraping or attempts to republish the information. These occur mostly in the regulations and code publications, but there are a few restrictions placed on the usage of case law.

Some examples of the restrictions placed on codes, regulations and case law are:

• Under KRS 61.874, it is unlawful to use any records available on this site for a commercial purpose without agreement with the Legislative Research Commission. (Kentucky Code)

• This website is intended for use by natural persons in obtaining information provided by the Secretary of State. Use of computerized “robots” or “data mining” of the information and images presented here is prohibited. Misuse of this website is prohibited and may result in the revocation of access to those persons or organizations using this site in a way not intended by the Secretary of State. (Colorado Regulations)
• The rules information on this website is intended for personal, not commercial, use. The Office of the Revisor of Statutes does not authorize further dissemination of this material for sale or any commercial purpose. (Minnesota Regulations)
• Unless permitted under the Terms of Use for this website, no part of this website may be reproduced, duplicated, copied, downloaded, stored, further transmitted, disseminated, transferred, or otherwise exploited without Thomson Reuters’ prior written consent. Please consult notices and terms for individual products and services referenced herein. (Emphasis Added) (California Regulations)
• These archives, however, are for personal, not commercial, use. (Massachusetts Case Law)
• The Supreme Court of Ohio grants you a limited license to access and make personal use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of the Supreme Court of Ohio. This license does not include any resale or commercial use of this site or its contents; any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another; or any use of data mining, robots, or similar data gathering and extraction tools. This site or any portion of this site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of the Supreme Court of Ohio. (Ohio Case Law)

Perhaps due the high use of regulations by business, they contain by far the most restrictions of the three types of primary law. Of fifty (50) websites surveyed, eleven (11) contained a restriction on use of the legal information contained within. (Click to enlarge)

Codes were the second most restricted, with eight (8) out of fifty (50) websites containing restrictions on use.

Finally, while rare, there were a few restrictions placed on the usage of case law. Out of the one hundred and five (105) sites, eight (8) had restrictive terms of use.

Conveyance

Conveyance is how the state makes the information available, print, web or via bulk access. This study found that at the very least every state makes current copies of their statutory code available via websites. For regulations, every state but one made their code of regulations available for free via a website. The one outlier is Massachusetts which charges $110 US for access to a database of regulations. In that state, however, the court system does supply a free copy. For case law, every state but one – Alabama – makes at least a collection of appellate case law from all courts available via the web. (Alabama only permits public access to per curium decisions.) For information about the range of these collections, please see “Content/Archives.”

Of course, the “official” status of this legal information varies. Most often an individual will have to find access to a print copy of a case, law or regulation in order to view a guaranteed official and correct version. For more information on the official nature of legal information published on the web by states, please see the charts under “Citation.”

Bulk access to legal information allows for wholesale users to more easily access the information so that it may be re-purposed. Not only do the great majority of states not allow for bulk access to their legal information publications, but some put in prohibitions in their terms of use that prevent less efficient bulk access tools like web-scraping.

This study found that only two (2) of the one hundred and five (105) case law websites allowed for bulk download via FTP. (Click to enlarge)

For regulations, bulk access was permitted in three (3) out of forty-nine (49) sites available for review. One of the bulk access options required payment.

For statutory codes, bulk access was available in four (4) out of fifty-one (51) sites viewed. As with regulations, one of the bulk access options required payment.

Copyright

It is a well-established principle that edicts of state government cannot be copyrighted. However, this study found that several states attempt to do just that. This is either implied by copyright notices on webpages that contained primary law or via explicit statements claiming copyright on legal information. Some examples of the latter include:

• Pursuant to Section 1-1-9 Miss. Code Ann., the laws of Mississippi are copyrighted by the State of Mississippi. Users are advised to contact the Joint Committee on Compilation, Revision and Publication of Legislation of the Mississippi State Legislature for information regarding publication and distribution of the official Mississippi Code. AND Copyright (c) 2015 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. (Mississippi Code)
• The Arkansas Code of 1987 is copyrighted by the State of Arkansas. By using this website, the user acknowledges the State’s copyright interests in the Arkansas Code of 1987. Neither the Arkansas Code of 1987 nor any portions thereof shall be reproduced without the written permission of the Arkansas Code Revision Commission, except for fair use under the copyright laws of the United States of America, and except that Arkansas Code of 1987 section text, numbering, lettering, and forms may be copied from this website by the user and reproduced in copyrightable works where the portions of such section text, numbering and lettering reproduced are germane to the intellectual content of such work. (Arkansas Code)
• Any user intending to obtain the Revised Code of Washington or the Washington Administrative Code for the purpose of selling the same is advised to contact the Washington State Statute Law Committee, which claims copyright for both codes, at 360.786.6777. (Washington Code and Administrative Regulations)

As for the former, the existence of website disclaimers poses an interesting challenge in trying to determine if a state is claiming copyright on their primary legal information. It is entirely possible that the copyright text is a remnant of the webpage framework. However, given how states have proven that they are willing to be litigious when it comes to protecting their copyright interests, it is possible that at the very least these copyright claims will have a chilling effect on use of the law, especially for wholesale users.

This study found widespread use of website copyright text. For case law websites, the existence was forty-five (45) out of one hundred and five (105) sites visited. Only one state – Massachusetts – explicitly said that they claimed no copyright interest in the text of the case law.

For regulation websites, fifteen (15) out of fifty (50) display a copyright notice.

For state code websites, claims of copyright were present in twenty-seven (27) of the fifty-one (51) states visited. Additionally, 3 states – Arkansas, Mississippi, and Washington – made explicit claim to the copyright of their law.

An additional wrinkle in this issue occurs with state codes. Thirty-four (34) of fifty-one (51) official state codes (Or 67%) are annotated. Depending on the publishing agreement in place, these annotations are either drafted by a private corporation, a private corporation acting on contract by the state, or by state employees. The copyright status of these materials often remains unclear due to the fact that states are permitted to copyright their non-edict of government documents. To ease some of the confusion, the Harvard Library Copyright Office has created a chart which shows the copyright status of government materials in each state. This adaptation of the chart shows which states have annotated codes – both published by outside publisher and those published by the state.

Although this study concentrates primarily on web based publishing activities of the states, given the unclear meaning of the copyright notices on the webpages, the official print versions of the state codes were investigated for their copyright notifications.

For “official” print codes, the following results were found:

• Four (4) codes – No Claim of Copyright by anyone
• Twenty-two (22) – State Claims Copyright
• Ten (10) – Thomson Reuters (or some subsidiary thereof) Claims Copyright
• Nine (9) – LexisNexis (or some subsidiary thereof, usually Mathew Bender) Claims Copyright
• Three (3) 3 Shared Claim of Copyright between State and Publisher

Readers may note that this only adds up to 48 codes. That’s because some states have designated their online code to be official and some states have two official versions of print codes.

Most of the codes are annotated, so it’s entirely possible that the claim of copyright is referring to the annotations. Seven (7) codes – Connecticut, Idaho, Minnesota, Nebraska, Nevada, South Carolina, South Dakota, and Washington – are UN-annotated and yet there still is a state claim of copyright. It seems that these states are claiming copyright on the primary law itself.

It should also be noted that when an outside publisher is claiming copyright on a state code, they may not be just referring to annotations. Some states, for example Indiana, do not create parts of their codes such as the section headings and these have been copyrighted, in the case of Indiana, by the private corporation. This in an obvious impediment to a wholesale user of the code that would wish to republish it.

Corporate Control

It’s very common for states to rely on private publishing companies to publish their state law. This practice creates a barrier to access in two ways. First, as these publishers are a for-profit business, it is presumed that the cost of accessing the law is higher than it would be to purchase the law from a state publisher. Secondly, corporations often wrap the public domain law with copyrightable material, making it hard to extract the “free law” from a publication. Finally, the commercial publishers are much more likely to enact restrictive terms of use preventing the redistribution of the law.

For an example of this, see this excerpt from a Thomson Reuters (West) case reporter.

However, it should be noted that this practice isn’t entirely without benefits to accessing law. Commercial publishers are much more likely to publish law in a timely manner. Additionally, especially with web based publication, publish the law in such a way that is more user friendly, especially to a non-expert researcher.

For corporate control issues, this study looked at both the web and print publications of legal information. For online publications, the state was by far the most common publisher. When it comes to print publications, it was more likely the state would outsource the publication of law to a corporation for case law and statutory codes. Regulations, however, were mostly done by the state.

For case law online publication, the state was the publisher of law in ninety-seven (97) out of one hundred and five (105) websites surveyed. For the ninety-seven official print versions of case law, the state was the publisher in twenty-three (23) instances. The Thomson Reuters (West) corporation was by far the major publisher when it comes to case law.

With regards to codes, once again the state was the primary publisher of online versions of code. In forty-two (42) out of (51) instances, the state was the publisher of the online version.

In regulations, the state is the predominant publisher for both online and official print versions. For online regulations, the state was the publisher in forty-five (45) out of fifty (50) websites visited. For the print versions, the state was the publisher in thirty-four (34) out of fifty (50) states.

Correctness

In order to be a valuable resource, there must be an indication of trustworthiness. One would think that being published by the state would be enough of an indication that the legal information is accurate. However, some states place disclaimers on their websites that lead one to not trust the information contained within. Some examples of these are:

• The Nebraska Unicameral Legislature makes every attempt to ensure accuracy and reliability of the data in the documents contained on this web site. However, the Nebraska Unicameral Legislature makes no warranty, guarantee, or promise, express or implied, concerning the content of the documents. For matters affecting legal or other rights, or to confirm content, please refer to the printed version of the appropriate official publication. (Nebraska Statutory Code)
• THE MATERIAL AVAILABLE ON THIS WEBSITE, WHILE BELIEVED TO BE ACCURATE, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. PLEASE REFER TO THE INFORMATION PROVIDED AT THE TOP TO DETERMINE WHEN THE SITE WAS LAST UPDATED. NEITHER THE OFFICE OF LEGISLATIVE SERVICES (OLS) NOR WEST PUBLISHING, THE OFFICIAL PUBLISHER OF THE STATE STATUTES, MONITORS THE CONTENT OF THIS SITE. NOR DOES OLS OR WEST MONITOR OR PREPARE THE LIST OF SECTIONS AFFECTED (LSA) OR THE INDEX FOR THIS SITE. FOR THE OFFICIAL VERSION OF ANY STATUTE, PLEASE CONSULT THE BOUND VOLUMES AND SUPPLEMENTS OF THE NEW HAMPSHIRE REVISED STATUTES ANNOTATED, PUBLISHED BY WEST, A THOMSON BUSINESS. (New Hampshire Statutory Code)
• While we try to keep the information on this website accurate and up-to-date, we cannot guarantee that it always will be. (Wyoming Statutory Code)
• WARNING: While we have taken care with the accuracy of the files accessible here, they are not “official” state rules in the sense that they can be used before a court. Anyone who needs a certified copy of a rule chapter should contact the APA Office. (Maine Regulations)
• The slip opinions provided on this site are neither final nor official but are provided in an effort to make the opinions freely available to the public on the date of release. The opinions below are subject to correction, modification, or withdrawal at the discretion of the Court before they are published in Southern Reporter and later reprinted in Alabama Reporter, the official report of the opinions of the Alabama appellate courts, and no effort has been made to update these opinions to reflect any such correction, modification, or withdrawal. (Alabama Supreme Court).

The last example shows a common problem with case law. The courts post slip opinions with no indication of later changes. As was recently shown with the supreme court, changes to slip opinions can be quite substantial in nature and are not infrequent. There is a significant question as to the quality of court opinions on court websites.

This study found that while a majority of legal information websites did not have disclaimers, a significant portion did. For case law websites, forty-five (45) out of one hundred and five (105) websites had a disclaimer about the accuracy of the opinions posted.

For statutory code websites, there were disclaimers on eighteen (18) out of fifty-one (51) websites visited.

Disclaimers were placed on eleven (11) out of fifty (50) regulation websites visited.

Cost

For the most part, accessing state published law via the Internet is a cost-free experience for the user. The one glaring exception to this rule is in Massachusetts where the Secretary of the Commonwealth charges $110 to access a database of regulations. States do take the opportunity to try and upcharge visitors, such as in Georgia where you can pay $5 to get a copy of a Supreme Court opinion or $8 to get a copy of an opinion that’s guaranteed to be correct. A few states were also found to charge for bulk access to their law.

Currency

Law is a constantly changing body of data. What may be good law today could be overturned or repealed tomorrow. It is vital that a researcher use as current as law as possible. However, some states are lax in either updating their legal offerings or not making it entirely clear as to when the law was published.

Search

As previously stated, the mere existence of information on a webpage does not automatically mean that there is access to it. Access must be meaningful access. Surprisingly, not every website with legal information has a search mechanism available, and many that do are searching all of the information on the page, not just the primary law. Having search mechanisms that allow for advanced searching and are dedicated to just the legal information on the website (instead of the entire website) would greatly improve access to the law.

For case law websites, seventeen (17) out of the one hundred and five (105) websites did not provide any search mechanism.

Code websites were by far the most accessible via search. For those, twenty-seven (27) provided a basic search box and twenty-three (23) provided an advanced search feature. Only one website did not have any search capability.

Regulation websites had the highest percentage of non-searchable pages. Twenty-five (25) provided a basic search, twelve (12) provided an advanced search and thirteen had no search availability at all.

State Rankings

In order to get a more holistic view of the state of the publication legal information on the web, information collected about publication practices was collated and assigned a score. States were given one point for each of the following publication practices in their case law, statutory codes and regulations:

• The online version of the legal information was the official version.
• The legal information was published in HTML.
• There was an archive of the legal information available in some form.
• There were no use restrictions placed on the legal information.
• There were no claims of copyright – explicit or implied – on the legal information.
• The state was the publisher of the legal information.
• There were no disclaimers to the accuracy of the information.
• The ability to search the information was made available.

The other six Barriers to Access as described in this report – cataloging, citators, context, conveyance, cost and currency – were either universally exhibited, impossible to quantify or, as in the case of cost, so rare as to make inclusion in the rankings meaningless.

Given the above scoring mechanism, the highest score possible was 24. However, the highest score achieved was 18. The top performing states were Oklahoma, Indiana and Illinois. The lowest score was 8 by Georgia. The average score of states was 13.94 and the median was 14. The highest score in any category of law was 7. The most open publishers of case law were New York, Illinois and Oklahoma. The top scoring publishers of statutory law were Delaware and Louisiana. And the most open publishers of regulations were Idaho and Washington.

A color coded map with state scores as a list of all state total scores appear below.

State	Total Score
Illinois	18
Indiana	18
Oklahoma	18
Delaware	17
Louisana	17
Utah	17
Florida	16
Missouri	16
Montana	16
Oregon	16
Rhode Island	16
South Dakota	16
Texas	16
Washington	16
Idaho	15
Iowa	15
Minnesota	15
Nevada	15
New York	15
North Carolina	15
Pennsylvannia	15
Wisconsin	15
New Hampshire	14
New Mexico	14
Ohio	14
Vermont	14
Wyoming	14
Alaska	13
Colorado	13
Connecticut	13
Kansas	13
Kentucky	13
Maryland	13
Mississippi	13
Virginia	13
Arizona	12
California	12
Hawaii	12
Massachusetts	12
Michigan	12
Nebraska	12
New Jersey	12
North Dakota	12
Tennessee	12
West Virginia	12
Alabama	11
Akansas	11
Maine	10
South Carolina	10
Georgia	8

+++++

1 They are: Alabama, California, Delaware, Florida, Hawaii, Idaho, Indiana, New Mexico, North Carolina, South Carolina, and Washington.

2 They are: Arkansas, Colorado, Illinois, Louisiana, Mississippi, Montana, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Vermont, Wisconsin and Wyoming.

3 The states NOT requiring a parallel cite to a commercial publication are: Colorado, Illinois, Mississippi, New Mexico and Wyoming.

Edito’s note – republished with the permission of the author – with first publication on her site, Sarah Glassmeyer

.