by Erik Y. Adams
Recently at my library, we were asked to provide case citation hyperlinks to a “public” web site. The citations were in a brief being filed for an arbitration, in Microsoft Word, and we were told that the arbitration’s rules required that cases in briefs be linked to a “public” database. “Public” was always provided in quotes, but no specifics were offered. That led us to a fairly basic question: what is a “public” database? And does it really matter?
Being librarians, our first impulse was to take a fairly rigorous approach and only provide links to government sponsored web site. We took public to mean “carried out or made on behalf of the community the government or State,” as the Oxford English Dictionary puts it. For some cases (i.e. California reported cases), this was easy. But what is the public source for Federal Reporter or Federal Supplement cases? Or cases that were only published in one of West’s regional reporters?
The attorney took the meaning more generally: “open or available to all members of a community.” His recommendation was that we provide links to Google Scholar. We all shuddered at the thought of linking to Google Scholar, having sat through Lexis’s presentation on the problems with free sources of legal information. There are alternatives to Google Scholar for case information (Findlaw, Cornell Legal Information Institute, the Public Library of Law, etc.), but that just shifts the issue from one website to another. I’m sure that the folks at Google, Cornell, and PLOL all have good intentions, but there’s little guarantee that the case texts are up to date.
Some of the cases were Lexis and Westlaw specific, which brings us to another definition: “easily seen, conspicuous, prominent.” We were confident that everyone involved in our particular arbitration had access to Lexis and Westlaw, and looking up a case is a simple matter of entering a user name and password. But the attorney felt that any website that requires an account, and that might require the user to pay to retrieve the text of a case, didn’t meet the nebulous standard of “public”. (I have since learned that Westlaw has a software product that will insert links into a Microsoft Word document that don’t require authentication; it wouldn’t surprise me if the same was true of Lexis.)
Being technically minded, I wondered if the expectation was that we create a website solely for the purpose of hosting the cases. This would be “public” in the sense of “serving the public in a professional capacity.” We wouldn’t have objected if a judge asked for paper copies of cases. We live in an age when anyone with access to the Internet, 15 minutes, and a credit card can create a web site. Therefore, providing links to a website that we ourselves maintain isn’t so unreasonable. However, the analogy to paper copies of cases breaks down when you consider that a copy of a case doesn’t require a monthly subscription fee to continue to exist.
As librarians we care about the quality of information and the reliability of the sources we call upon to meet the needs of our user populations. But the users themselves often aren’t as choosy – Google Scholar may not be good, but it’s good enough, and questions about its accuracy and reliability seems fussy, especially when all that attorney wants is to get their document filed and move on to the next issue. I want to think that whoever came up with the hyperlink rule thought about where those links will go, but I suspect they probably didn’t.