I believe that access to information is access to justice and the more information that is published, the better the access to justice is. One of the questions that plagued me since I finished the State Legal Information Census was the fact that I didn’t know what an adequate amount of legal information published by the government was. Obviously state governments aren’t publishing their complete corpus, but what if what they were publishing was good enough? Maybe there’s enough information out there to serve the majority of the needs of the people?
Over the past semester, I’ve been trying to figure this question out. One method I’ve been employing is doing an analysis of the citations from state supreme courts. This is a work in progress, but I’m honestly not sure if I should continue because I’m not sure if the results are providing an adequate model of “needed law.” I thought I’d write a quick blog post to share what I do have in case someone thinks it’s valuable and something worth pursuing.
Here’s what I did: I created a list of the ten most recently written opinions from each state as of January 13, 2016. I looked at the table of authorities for those cases, which is the list of the cases that they cite. I am creating a list of cited cases, with data about the year of the case, what type of case it is (meaning from what type of court: SCOTUS, federal circuit, federal district, in state court or out of state court) and if the case is available from Google scholar (probably the most comprehensive and easy to use free law source) and from the publishing state, if applicable.
Thus far I’ve made it through 14 states, Alabama through Indiana. I’ve collected a total of 3254 cited cases. This is what I’ve found:
RAW NUMBER BREAKDOWN OF CASES:
- SCOTUS: 365 cases or 11.2%
- Federal Circuit: 176 cases or 5.4%
- Federal District 66 cases or 2%
- In state cases: 2437 or 74.9%
- Out of state cases: 210 or 6.5%
(This adds up to 101%, I know. I rounded up the decimals and that’s what happened.)
AVAILABLE FROM GOVERNMENT SITES OR GOOGLE SCHOLAR:
- SCOTUS: 139 (official copies) or 38% available from court website; 100% available from G.S.
- Federal circuit: 174 or 98.9% available from google scholar
- Federal district: 65 or 98.5% available from google scholar
- In state cases: 1528 or 62.7% available from state websites; 2343 or 96.1% available from google scholar
- Out of state cases: 112 or 53% available from state websites; 187 or 89% available from google scholar
As long as google scholar is around, the information gap for those who need to access law via free sites is not too bad. But it does exist. How long google plans to remain in the free law business is anyone’s guess. The important bit is that this means that there are still around 5% of cited state cases that are not available from any resource. Is that too many? I’m not sure how to gauge that.
I will go out on a limb and say that I think it’s shameful that only 38% of the SCOTUS cases cited in state courts are available in an official copy from the supreme court website. And, by the way, their efforts could be a lot better in how they present the information. Currently you have to download an PDF of entire volumes instead of going case by case. Do better, SCOTUS.
- SCOTUS: 1793-2015 ; 1984 Median ; 1979 Average
- Federal Circuit: 1923 – 2015 ; 2004 Median ; 1999 Average
- Federal District: 1973 – 2015 ; 2008 Median ; 2003 Average
- In State: 1837 – 2015 ; 2004 Median ; 1997 Average
- Out of State 1870 – 2015 ; 1997 Median ; 1988 Average
Although my research is primarily on state legal information, I couldn’t help but be struck by the SCOTUS cases again. They’re much older than what I was expecting. Fortunately, there are many reliable resources for SCOTUS case law, so if someone wanted to read a cited opinion, they easily could. But again, I wonder that if the Supreme Court of the United States isn’t putting all of its case law online, how can we expect states to want to do so?
So that’s what I have thus far. Again, I’m not sure if I’m going to complete this survey ever, since it’s very time consuming and I’m not sure the results are worth anything. But I thought I’d share.