ZiefBrief

Lieberman Launches PACER Inquiry

Senator Joe Lieberman wants to know why the heck PACER, the database that contains federal court documents, isn't free and still charges users 8 cents a page.  We'd like a coherent answer to this question as well!  Senator Lieberman's inquiry, which he sent to the Judicial Conference of the United States, includes some pointed, sharp arguments supported by federal legislative history.  When I teach legislative history research, students always want to know, "How would I ever use legislative history to make a legal argument?" Senator Lieberman uses a quotation from a committee report to great effect in this portion of the letter:

As you know, court documents are electronically released through the Public Access to Court Electronic Records (PACER) system, which currently charges $.08 a page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts “may, to the extent necessary” instead of “shall” charge fees “for access to information available through automatic data processing equipment.”

The goal of this provision, as was clearly stated in the Committee report that accompanied the Senate version of the E-Government Act, was to increase free public access to these records. As the report stated: “[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. ... Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.”

Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately $150 million in FY2006. Please explain whether the Judicial Conference is complying with Section 205(e) of the E-Government Act, how PACER fees are determined, and whether the Judicial Conference is only charging “to the extent necessary” for records using the PACER system.

Read Senator Lieberman's entire letter to Judge Lee Rosenthal of the Judicial Conference of the United States here. 

Kindle Mania

I read a lot more than the average American.  According to this Harris poll, only 37 percent of those surveyed read more than ten books a year.  Last year, I read 113 books in one year.  Given the volume of reading that I do, a lot of folks ask me if I'm going to get a Kindle 2 now that Amazon has revamped its wireless reader.  My husband would be ecstatic if I replaced the stacks of books in our living room with a Kindle.  And I have to admit, I'm sort of excited about the idea of being able to store and carry over 1,000 books on one lightweight device. 

John Biggs does a nice job of making the case for and against buying the new Kindle, and several of the "don't buy" reasons jumped out at me.  First, it's flimsy.  Since I am notoriously hard on the electronic devices in my life, I would worry incessantly about breaking the Kindle.  Even worse, it's battery-powered.  I can't remember to keep my cell phone charged, so I'm dubious about my ability to keep the Kindle charged and ready to read.  Third, Biggs notes that the new Kindle is bottom-heavy, which means if you fall asleep reading, it will bonk you on the nose.  I'm not so worried about the nose-bonking since I usually end up with a book falling on me when I read in bed, but I worry about what would happen if you fell asleep reading the Kindle, then threw it out of the bed at night or rolled over and smushed it.  Books can survive this sort of treatment -- they may get a little bent and bedraggled when you throw them or crush them, but they're still ready to read the next day. 

The funniest "anti-purchase" reason supplied by Biggs: "Flight attendants will tell you to turn it off on take-off and landing. You can’t explain that it’s epaper and uses no current. You just can’t. It’s like explaining heaven to bears."

And the final reason?  There's just something about a print book that I can't give up.  Since I read text on a computer screen all day, picking up a print book is a signal to me that I'm reading for pleasure rather than for work, that I'm off-duty.  And I like the sheer variety of books, their different sizes, shapes, and smells.  I'm not ready to sacrifice those sensual aspects of reading yet, even if it would mean a tidier living room. 

Facebook Bill of Rights

We've all heard an earful this past week about Facebook's unsuccessful attempt to change its Terms of Use.  After an avalanche of Facebook user protest, Facebook removed the anxiety-producing language.  Now, Facebook is proving its commitment to democracy by developing a "Facebook Bill of Rights and Responsibilities."  So far, Facebook users have contributed almost 8,900 comments on the page, which I find fascinating.  

Bringing PACER Into the 21st Century

A few times a month, I'll be happily working on a research project when suddenly I come to an unwelcome and dreaded realization.  The document that I need to continue my research is on PACER, and I'm going to have to log on to the federal government's clunky and awful court records database to get it.  It's never a good feeling, and I always wish that someone would do something to improve PACER.

Carl Malamud, leader of Public.Resource.org, agrees, and the New York Times has written an article about Malamud's efforts to make court records more accessible to the public.  I hope that Malamud's activism spurs the government to make PACER a better database.  For one thing, PACER needs full-text searching.  And how about throwing in some RSS feeds for good measure?  Let's hope that whoever is chosen to serve in the newly created position of Chief Technology Officer gives PACER some attention. 

Judicial Tongue-Lashing

Just after mentioning Mary Whisner's essay on judicial scolding in yesterday's post, I found an excellent contemporary example of a judge issuing a stern warning about inept legal research.  In United States v. Beltran-Moreno, Ninth Circuit Judge Reinhart had lots to say about defense counsels' decision to appeal sentences that were extraordinarily lenient under the Federal Sentencing Guidelines.  Judge Reinhart notes that the arguments made on appeal were "squarely foreclosed by decades-old circuit precedents" and that counsel appeared to be "ignorant of the controlling law."  Luckily for the defendants' attorneys, a SCOTUS decision issued after the defendants' appeal was filed concluded that appellate courts do not have the power to raise a sentence if the government has not appealed the sentence.  As the Ninth Circuit notes, it was only sheer luck that saved the defendants from having their sentences increased on appeal.

In the closing paragraph, Judge Reinhart concludes by sternly reminding counsel that "the professional norms that establish the constitutional baseline for their effective performance indisputably include the duty to research the relevant case law."  The attorneys escaped sanctions, but evidence of their slapdash legal research is memorialized forever in this Ninth Circuit opinion.

Cost-Cutting Changes Law Firm Legal Research

Above The Law is reporting that law firm Locke Lord Bissell & Liddell has decided to cut legal research costs by requiring its staff to use Loislaw for all non-billable legal research.  Staff may no longer use Lexis or Westlaw unless the research can be billed to a client.  For those of you who are asking, "What the heck is Loislaw?," it's a more affordable online legal research service with fewer bells and whistles than Lexis and Westlaw.  It offers access to primary materials, such as cases, statutes, and regulations, and some secondary materials as well, but the amount of secondary material available on Loislaw is much more limited than what you would see within the typical law firm Lexis or Westlaw subscription.   Interestingly, the firm states that Loislaw isn't supposed to be "a substitute for Lexis or Westlaw, but as a tool to be used to familiarize yourself with precedent related to new cases or issues or simply to find cases, statutes or regulations."  In other words, attorneys are supposed to use Loislaw to get an idea of relevant primary law, then switch over to Lexis and Westlaw only when they've exhausted Loislaw's resources.

It's not a bad cost-cutting strategy, although I bet it will require a good bit of training.  The strategy is actually similar to what I recommend to students in Advanced Legal Research -- when you're new to a legal topic, use free or low-cost legal research tools to help you gain some familiarity with the new subject and identify relevant law, then switch over to Lexis or Westlaw to ensure that you have the most up-to-date version of primary materials and to ascertain whether your primary authority is still good law.  (Scarily, the commenters to this Above the Law post seem oblivious to the fact that attorneys must shepardize the law to which they cite.  For some entertaining quotes from judges who expose such shoddy research practices by attorneys, check out Mary Whisner's great article, "When Judges Scold Lawyers.")

I am wondering how Loislaw's citator service, GlobalCite, compares to KeyCite and Shepard's these days.  I see that Loislaw has developed ways to refine GlobalCite results by jurisdiction, but I'm wondering if the editorial analysis of primary citing authority has reached the level of sophistication displayed by KeyCite and Shepard's.  If any Loislaw users have an opinion on GlobalCite, I'd love to hear it!