Gatekeepers of Law: Inside the Westlaw and LexisNexis Duopoly

Summary

IntroductionHi there! My name is Tom Blakely, I’m a federal judicial law clerk and attorney. I previously worked in big law and the United States Department of Justice. You might remember me from last year, when I wrote about the US v. Google ad tech antitrust trial at Big Tech on Trial. I’m excited to be writing a guest piece for BIG, this time on a particular competition problem I (and nearly every lawyer) deals with on a daily basis: the Lexis/Westlaw duopoly.The law in America does not belong to lawyers, it belongs to all of us. As citizens, we must be able to read the law, understand it, obey it, and bring complaints against those who wrong us. That is the basis for a coherent political order, and why the rule of law is such a foundational aspect of a democratic system. Moreover, it would be hard to find a technological era more suited to the democratization of law than the one we’re in today. The computer lets anyone query instantly, the internet lets anyone do it from anywhere, and generative artificial intelligence can decipher and explain complex legal questions if it has access to credible databases.And yet, today, two powerful companies dominate and restrain access to key aspects of our legal order, from case opinions to legislative history. To give you a sense of what I mean, Lexis, one of two dominant legal research platforms, charges up to $469 for a single search. That’s the equivalent of a Google query, for almost $500. Moreover, beyond LexisNexis and its rival Westlaw, the Federal judiciary itself has used its privileged position to charge high fees for court records that should be available to all. Today, the law is hidden behind paywalls.But it wasn’t always this way. In this piece, I’m going to explain how and why America keeps the law from its citizens, and what we can do about it.The Origins of Legal ResearchThe stereotype of a lawyer’s office was traditionally that of a well-manicured desk, with ornate and intimidating shelves of books somewhe...