---------- Text of forwarded message ----------
Date: Thu, 28 Oct 93 03:52:39 EDT
From: James Love <love@essential.org>
Subject: TAP/CR CLINTON DISMANTLES JURIS
from the TAP-INFO Internet Distribution List
Taxpayer Assets Project
Crown Jewels Campaign - JURIS
October 28, 1993
Note to readers: On Friday October 22, 1993, the Clinton
Administration announced an NSF funded project to place EDGAR on
the Internet, raising public expectations regarding future public
access to government information. On Monday October 25, the
Clinton Administration revealed that it planed to permanently
shut down the Department of Justice JURIS system. This rather
long note addresses this extremely important matter. jamie
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- CLINTON ADMINISTRATION PLAN TO TERMINATE NATION'S MOST
IMPORTANT DATABASE OF FEDERAL LEGAL INFORMATION
- CLINTON PLAN WOULD PRIVATIZE JURIS DATABASE AND REVERSE
JIMMY CARTER'S 1979 EXECUTIVE ORDER ON FEDERAL LEGAL
INFORMATION
- FEDERAL GOVERNMENT TO SPEND MILLIONS MORE EVERY YEAR TO
ACQUIRE THE SAME INFORMATION FROM WESTLAW AND LEXIS
- BUREAUCRATIC SNAFU SAID TO PREVENT DOJ FROM SAVING MONEY BY
REPLACING LEGAL CASELAW INFORMATION PREVIOUSLY SUPPLIED BY
WEST PUBLISHING
- DEPARTMENT OF JUSTICE (DOJ) MEETS WITH DATA USERS AND
PUBLISHERS ABOUT FUTURE OF JURIS
- CONGRESSIONAL INTEREST IN JURIS EXPANDS TO ADDRESS ISSUE OF
WEST MONOPOLY ON COURT MANDATED CITATIONS TO JUDAICAL
OPINIONS
- COALITION OF VALUE ADDED PUBLISHERS, ACADEMIC RESEARCHERS,
AND DATA USERS BEGIN MOBILIZATION TO SAVE THE JURIS DATABASE
AND END WEST MONOPOLY CONTROL OVER JUDAICAL CITATIONS
fmi James Love (215/658-0880;202/387-8030; love@essential.org)
On Monday October 25, 1993, Stephen Colgate, the Assistant
Attorney General for Administration of the Department of Justice
(DOJ), chaired a three hour meeting to discus the future of the
JURIS program. Attending the meeting were five DOJ officials,
staff from Senate and House Congressional Committees, and
representatives from GPO and the Congressional Research Services
(CRS). Also attending were representatives from the Taxpayer
Assets Project (TAP), Public Citizen, the Information Trust,
Computer Professionals for Social Responsibility (CPSR), the
American Association of Law Libraries (AALL), the Linguistic Data
Consortium, and two legal publishers (Tax Analysts and Hyperlaw,
a CD-ROM publisher), and individuals from Northeastern
University, Howard University and International College.
Colgate began the meeting by identifying himself as a "mops
and buckets guy" who did not realize the public interest in the
existence of the JURIS database. DOJ officials said that all 29
JURIS employees will be terminated by January 1, 1994, and that
DOJ intends to shift all online legal research to the commercial
services offered by West's WESTLAW and Mead Data Central's LEXIS
service. DOJ said it was taking this action because of the
September 30, 1993 announcement by West that it would not longer
supply DOJ with federal caselaw, and that West was requiring DOJ
to erase all federal caselaw provided to DOJ over the past ten
years. Colgate said the loss of the historical caselaw makes
JURIS economically non-viable.
TERMINATION OF JURIS TO RAISE GOVERNMENT'S COSTS OF ONLINE
LEGAL RESEARCH
DOJ officials said that the Government's costs of online
research may increase from $12 million per year to $18 million
per year, as a result of the termination of the JURIS program.
DOJ said that although it had authority to spend the additional
money on the WESTLAW and LEXIS services, it did not have legal
authority to purchase the historical caselaw materials that will
be erased from federal computers by January, at the conclusion of
its current contract with West.
WEST WITHDRAWAL WAS A REACTION TO CITIZEN EFFORTS TO OBTAIN
ACCESS TO JURIS DATABASE
DOJ officials and other participants at the meeting said the
WEST withdrawal from the JURIS contract was a direct result of
citizen efforts to obtain access to the JURIS database. One non-
government participant at the meeting recounted a discussion with
a West official at last week's Information Industry Association
(IIA) meeting where West expressed great alarm at the expanding
role of the Internet in the dissemination of government
information, and expressed hope that West could find ways to stop
such efforts.
CLINTON ACTION WILL REVERSE JIMMY CARTER'S 1979 EXECUTIVE
ORDER ON FEDERAL LEGAL INFORMATION
JURIS was developed by the Government in the 1970's, before
West was ever engaged to provide data. DOJ owns the software and
computers for JURIS, and it retains ownership of caselaw
collected before 1982 (by the U.S. Airforce), as well as large
amounts of non-caselaw federal legal information (see appendix).
DOJ was required to provide JURIS to all government offices in
1979, under Federal Executive Order No. 12146. The relevant
sections of that Executive Order state:
1-6. Automated Legal Research and Information Systems.
1-601. The Attorney General, in coordination with the
Secretary of Defense and other agency heads, shall provide
for a computerized legal research system that will be
available to all Federal law offices on a reimbursable
basis. The system may include in its database such Federal
regulations, case briefs, and legal opinions as the Attorney
General deems appropriate.
Jimmy Carter, July 18, 1979.
By terminating all JURIS employees and shutting down the
JURIS system, the Clinton Administration is effectively
overturning the 1979 federal Executive Order.
TAX ANALYSTS SAYS IT WILL TAKE SIX MONTHS AND $5.5 MILLION
TO REPLACE THE MISSING CASELAW LAW
Tom Field from Tax Analysts provided DOJ with an unsolicited
proposal to replace the missing caselaw. According to Field, it
will take six months and $5.5 million to replace the federal
caselaw that had been gathered by West over the past decade
(higher than the $1 to $2 million estimate TAP reported in an
earlier note), and about $450 thousand per year to maintain the
collections of federal caselaw (less when all courts provide for
electronic dissemination). The Tax Analysts proposal will give
DOJ the title to all data, including the rights to make the data
available to the public. (The Tax Analysts proposal would allow
the publisher to recover its key punching and data processing
costs, plus a fee of $1. Field said that he picked the $1 figure
in honor of the $1 men who volunteered their services to their
country during the Second World War).
PRIVATE VALUE ADDED LEGAL INFORMATION PUBLISHERS EXPLAINED
ANTICOMPETITVE IMPACT OF WEST MONOPOLY ON CITATIONS AND PAGE
NUMBERS OF FEDERAL JUDICIAL OPINIONS
Most federal courts and many state courts require lawyers to
provide West citations and page numbers for court decisions
quoted in legal briefs. West claims a copyright on both the
citations and the page numbers. Only Mead's LEXIS service has
been given a limited license to use these citations and page
numbers (due to a secret out-of-court settlement in a federal
antitrust action).
Hyperlaw is a New York company that publishes legal
information on CD-ROM. Alan Sugarman, the Hyperlaw CEO, told DOJ
that he initially wanted to use CD-ROM technology to publish
legal treatises, that would include judicial opinions, laws,
regulations, law review articles and other materials on the same
disk. Hyperlaw was unable to develop these products, however,
without permission from West to use its page numbers and
citations. Sugarman said that the West monopoly on the page
numbers and citations has stifled innovation among firms like
his, and made it difficult to compete against West even in the
dissemination of the opinions themselves, since he cannot provide
lawyers with citations that will be accepted by the courts.
Tom Field from Tax Analysts offered additional insight into
the citations and page number problem, and told DOJ that the
break with West offered an opportunity for DOJ to develop a non-
proprietary system of citations and page numbers, that would
vastly expand competition among private sector value added legal
publishers. Field argued that commercial data vendors should
compete on the basis of searching engines, headnotes and other
value added features, rather than monopolistic control over
citations and page numbers.
The issue of the citations and page numbers received a very
large amount of attention during the meeting, particularly since
there was great concern than even if DOJ could replace the
missing caselaw, the data would not be useful to DOJ lawyers
without an acceptable method of citiations that was accepted by
the Judiciary.
ACADEMIC SCIENTISTS WORKING ON LEGAL EXPERT SYSTEMS SAY OF
WEST/LEXIS MONOPOLY ON FEDERAL LEGAL INFORMATION HAS STIFLED
ACADEMIC EFFORTS TO DEVELOP NEW TECHNIQUES OF ANALYZING
FEDERAL LEGAL INFORMATION
Professor Carole Hafner from Northeastern University and
Rebecca Finch from the Linguistic Data Consortium (headquartered
at Penn) told DOJ that computer scientists working on expert
systems that can analyze judicial opinions (sort of like creating
headnotes on the fly from the full text of the body of caselaw,
using concepts rather than keywords) have found it impossible to
do research on this topic for decades. Hafner said that
researchers had tried for years without success to obtain bodies
of caselaw from West and Mead, and that DOJ had refused to make
available even a portion of the JURIS data, even after
researchers suggested that DOJ create a commercially useless
database that was missing every third or fourth case.
LAW LIBRARIANS, PUBLIC INTEREST GROUPS AND OTHERS ARGUED
THAT THE CURRENT PRIVATIZED MARKET FOR FEDERAL LEGAL
INFORMATION WAS PRICED TOO HIGH FOR MOST CITIZENS
Brian Baker from Howard University Law Library said that
many academic law libraries face a dilemma because while they
have low cost access to LEXIS and WESTLAW for law students and
facility, they are required to deny unauthorized users access to
the data. Professor Melodie Hainsworth from International
College urged DOJ to continue JURIS so that the information could
be distributed freely on Internet sites, vastly broadening public
access to the information. Susan Tullis from AALL explained how
many federal government law libraries rely upon JURIS for
affordable access to legal information. Paul Wolfson from Public
Citizen said that much of the non-caselaw on JURIS was difficult
or impossible to find in most law libraries, and that if DOJ
ended the JURIS program an enormously important source of
government information would be lost. Dave Banisar from CPSR
talked about the importance of low cost access to JURIS
information for citizen groups who do not have the economic
resources of business lobby groups. These points were echoed by
many others.
Several participants said that if the Government made JURIS
information widely available, the market for legal information
would become more competitive, and commercial rates would
dramatically fall, particularly for specialty products, such as
CD-ROM products, and that this is the principal concern of West.
CLINTON ADMINISTRATION SAYS BUREAUCRATIC SNAFU WILL PREVENT
GOVERNMENT FROM TAKING STEPS TO SAVE JURIS
One of the hotly debated issues in the meeting concerned the
seemingly stupidity of DOJ terminating its own system when it
will cost more to end JURIS than to reprocure the missing
caselaw. If, for example, DOJ's total online legal bill would
increase from $12 million to $18 million in one year, the
additional $6 million per year is more than enough to recover all
the historical cases that will be missing form JURIS. Thus, a
pretty simple cost benefit analysis seemes to favor a very rapid
payback.
Colgate said the problem concerned the method of financing
JURIS. The system is paid for by hourly billings to DOJ and
other government officials, who "choose" to use JURIS out of
funds appropriated for online legal research. Once DOJ
determined that JURIS would be without the West caselaw on
January 1, it anticipated an extreme drop off in these
"subscription" revenues, forcing DOJ to lay-off the entire 29
member JURIS staff (11 have already found other jobs). DOJ says
it cannot reprogram its appropriations to pay for the acquisition
of the missing caselaw without legislative authority, which is
nearly impossible now since the DOJ appropriation just passed
Congress.
For those who want to think about this a bit more, consider
the following. Controversy over public access to JURIS has been
heating up since 1991. DOJ has been in negotiations with West
for a renewal of its contract for about one year. The last five
year West contract expired in July, but the company continued to
negotiate with DOJ until September 30, 1993. DOJ's first
announcement that it would shut down JURIS came in an October 8,
1993 news story by the Electronic Public Information Newsletter
(EPIN). Meanwhile, the DOJ appropriation bill moved out of
committee on the House on June 24 and in the Senate on July 22.
The Conference bill was reported out on October 6, before DOJ
announced that it would shut down JURIS, and the bill passed
Congress on October 21.
By continuing its negotiations, West delayed public
knowledge that JURIS would be crippled until it was too late to
find a second bidder or to seek an appropriation to replace the
missing caselaw.
DIGRESSION ON WEST PRESIDENT VANCE OPPERMAN
Today TAP received a copy of an August 23, 1993 article from
the Minneapolis Star Tribune, titled "The new WEST; Publisher
exploring information frontiers," which profiles the new West
President, Vance Opperman. Portions of that article read:
Board members who chose the new president said he is the
kind of big-picture guy West needs. He is an expert on
copyright law, having successfully defended West's page
number system in its law book series from a competitor's
challenge, and an expert on antitrust . . .
The son of Dwight Opperman, West's president for the past 25
years and one of the most politically well connected people
in the state, Vance Opperman is simultaneously an insider
and an outsider. A major fund-raiser for the DFL Party in
Minnesota, Vice President Al Gore returns his calls.
No one knows what Gore and Opperman talk about, but Gore was
clearly on Opperman's mind when West made its September 30, 1993
announcement that it was pulling out of JURIS. The West press
release praised Vice President Gore's reinventing government
initiative, which it credited for motivating West to pull the
plug on JURIS.
DOJ's CLOSING COMMENTS
At the end of the October 25 meeting, which lasted more than
3 hours, DOJ's Colgate seemed to leave the door open for
discussions about future action. Clearly DOJ had been focusing
on very short term issues (the January 1 loss of the West
caselaw) without much of a longer term plan. The fact that there
was a large public interest in the continuation of JURIS seemed
to come as somewhat of a surprise to Colgate, and he was clearly
moved by a number of the arguments that had been made.
One interesting point that came up concerned the criticisms
toward DOJ's somewhat casual attitude toward the prospect of
paying $6 million per year in higher online charges once JURIS
was gone and DOJ began to rely entirely upon the commercial
WESTLAW and LEXIS services. DOJ's Roger Cooper suggested that
DOJ hoped it could negotiate new lower priced contracts with
WESTLAW or LEXIS that would mitigate somewhat DOJ's costs of
terminating JURIS. The non-government participants said that if
this happened, it would simply be an effort by West or Mead to
take the steam out of efforts to revive JURIS, but that this too
was a short sighted strategy, since DOJ would become even more
dependent upon the two vendors. JURIS, after all, provided DOJ
with leverage in its negotiations, and as time passed it would
only become more expensive and more difficult to make it
operational again. DOJ was told that it wasn't learning from its
past mistakes, such as the 1983 decision to "lease" rather than
"buy" the data, to save a few dollars in the short run.
Moreover, unless the Government can find ways to make the data
more widely available, the public will never benefit from broader
competition in the market for legal information.
DOJ was pressed several times to simply refuse to return the
West caselaw until it could reprocure the data, paying West
whatever damages it had to. Alan Sugarman from Hyperlaw
suggested that DOJ should treat this much the same as when a
lease on a building isn't renewed at the last minute after a
landlord bargains in bad faith with a tenant. DOJ said it would
not do so, since it maintained that West had bargained in good
faith, an assertion that was met with considerable skepticism.
There was a fair amount of buck passing in the meeting, with
DOJ suggesting that it was really a Congressional or Court
problem. It also seemed as though the management persons who are
fielding the inquiries for JURIS do not feel comfortable with
making policy on the larger policy questions regarding
privatization or copyright issues.
WHAT COMES NEXT
All of the non-government participants at meeting were
committed to further efforts to save the JURIS program and to
solve the problem of West's monopoly over the caselaw citations
and page numbers. Several avenues of action are possible,
including Congressional hearings, appeals to the Clinton IITF
section on government information (OMB was a no-show at the
meeting), litigation to determine if the judicial opinions
provided by West are subject to FOIA, and creative methods of
financing the reprocurement of the caselaw.
After the October 25 meeting it appears as though there will
be further action by Congress, both on the issue of the
reprocuremt of the caselaw, and on the citation and page
numbering problem. It is doubtful, however, that anything will
stop DOJ from terminating the entire JURIS staff by the end of
the year.
TAP will be providing additional information about efforts
to save JURIS, including a number of grass roots lobbying
efforts. There are a number of strategic issues which must be
resolved. If anyone wants to do something right now, they should
write their own members of the Senate and House of
Representatives and urge them to find a way to preserve this
incredibly important database of federal legal information.
In closing, it is worth saying that the battle over JURIS is
only entering a new stage. While we were told dozens of times
that the SEC's EDGAR system would not be available online, we
simply pressed ahead, trying to find the right argument or the
right leverage. Eventually things fell into place. JURIS has
never been available to the public, and while it is deeply
troubling that the program is being dismantled, the technological
and economic barriers to getting it back on track are relatively
small. In many respects, the current crisis improves the chances
of public access to these public records, since West will no
longer be in control of the DOJ data collections. If and when
DOJ does reprocure the caselaw, it should finally be available to
the public.
James Love, Taxpayer Assets Project
love@essential.org; v. 215/658-0880
CONTACTS FOR MORE INFORMATION ABOUT JURIS:
Expert Systems: Professor Carole Hafner, Northeastern (617/373-
5116); Rebecca Finch, Penn (215/573-3959)
Value Added Legal Publishers: Alan Sugarman, Hyperlaw (800/825-
6521); Tom Field, Tax Analysts (703/533-4400)
Law Librarians: Susan Tullis, AALL (202/662-9200); Brian Baker,
Howard University (202/806-8045)
Citizen Groups: Scott Armstrong, Information Trust (202/296-
5098); Paul Wolfson, Public Citizen (202/833-3000); David
Banisar, CPSR (202/544-9240)
DOJ: Roger Cooper (202/514-0507); Ricard Krips (202/514-5682)
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Appendix
SELECTED PORTIONS OF JURIS DATABASE
CASELAW
U.S. Supreme Court; Federal Reporter, 2nd Series; Court of Appeals
Unpublished Decisions; Federal Supplement; Federal Rules Decisions;
Atlantic 2nd Reporter (DC only); Bankruptcy Reporter; Courts of Military
Review; Military Justice Reporter; Court of Claims.
STATUTORY LAW
Public Laws; United States Code; Executive Orders; Anti-Drug Abuse Act
of 1988; Section-by-section analysis of anti-drug abuse act of 1988;
Criminal Division Handbook on CCCA; The Organic Laws of the United
States
FEDERAL REGULATIONS
Code of Federal Regulations; Unified Agenda of Federal Regulations;
Defense Acquisition Regulations
DEPARTMENT OF JUSTICE BRIEFS
Office of the Solicitor General; Civil Division; Civil Division Trial;
Environmental and Natural Resources Division; Tax Division Criminal
Appellate; U.S. Attorney's Offices; U.S. Trustees' Offices.
ADMINISTRATIVE LAW
Published Comptroller General Decisions; Unpublished Comptroller General
Decisions; Opinions of the Attorney General; Office of Legal Counsel
(U.S. Dept. of Justice Board of Contract Appeals; ADP Protest Report
(Summary of ADP Procurement Protests before the GSBCA); Federal Labor
Relations Authority Case Decisions; FLRA Administrative Law Judge
Decisions; Federal Service Impasses Decisions; Decisions and Reports on
Rulings of the Assistant Sec. of Labor for Labor Management Relations;
Federal Labor Relations Council Rulings on Requests of the Asst. Sec. of
Labor for Labor Management Relations; HUD Administrative Law Decisions;
Merit System Protection Board Decisions; Decisions under Immigration and
Nationality Laws; Environmental Protection Agency General Counsel
Opinions; Equal Employment Opportunity Commission Decisions; Equal
Employment Opportunity Commission Policy Statements; U.S. Office of
Government Ethics Decisions; HHS Department Appeals Board Decisions.
MANUALS
United States Attorney's Manual; United States Trustees' Manual; Federal
Personnel Manual; Federal Acquisition Regulations; Federal Acquisition
Circulars; Federal Travel Regulation; Federal Information Resources
Management Regulation; Federal Property Management Regulations;
Principles of Federal Appropriations Law; Justice Department Acquisition
Regulation; Justice Property Management Regulations.
TREATIES AND OTHER INTERNATIONAL AGREEMENTS
United States Treaties and Other International Agreements; Department of
Defense Unpublished International Agreements.
FREEDOM OF INFORMATION ACT
FOIA Update Newsletter; DOJ Guide to the FOIA Case List Publications.
IMMIGRATION AND NATURALIZATION LAW
Decisions Under Immigration and Nationality Law; Title 8 - Code of
Federal Regulations; Immigration Reform and Control Act of 1988,
Legislative History; Equal Access to Justice Act, Legislative History;
TAX MATERIALS
US Tax Court Decisions; US Board of Tax Appeals Decisions; Tax
Division's Summons Enforcement Decisions; Tax Division's Tax Protester
Case List; Tax Division's Criminal Tax Manual; Tax Division's Criminal
Tax Indictment/Information Forms; Tax Division's Standardized Criminal
Tax Jury Instructions; Tax Division's Criminal Section Newsletter; Tax
Court Memorandum Decisions; IRS Cumulative Bulletin; Tax International
Acts; IRS News Releases; IRS General Counsel Memoranda; IRS Actions on
Decisions; IRS Technical Memoranda.
INDIAN LAW
Opinions of the Solicitor (Dept. of Interior); Ratified Treaties;
Unratified Treaties; Presidential Proclamations; Executive Orders and
Other Orders Pertaining to Indians.
DEPARTMENT OF JUSTICE WORKPRODUCTS
Civil Division Monographs; Civil Division Torts Branch Handbook on
damages under FTCA; Criminal Division Monographs; Criminal Division
Forms; Criminal Division Guidelines for Drafting Indictments; Criminal
Division Narcotics, Forfeiture, Prosecution Manual; Criminal Division
Directory of Services; Asset Forfeiture Manuals; Obscenity Enforcement
Reporter; Environmental and Natural Resources Division Monographs; US
Sentencing Commission's Guidelines Manual; Sentencing Guidelines
Updates.
LEGISLATIVE HISTORIES OF FEDERAL LAWS
Equal Access to Justice Act (EAJA); Immigration Reform and Control Act
of 1986; Sentencing Reform Sections of the Senate Report of the CCCA of
1984.
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