PACER Access in 2022

As the Open Courts Act of 2021 progresses along its hopeful path to passage, promising the end of exorbitant PACER fees, many of us in academia are wondering what this will mean for the docket access we currently purchase (or wish we could purchase) through vendors such as Bloomberg, Lexis, Westlaw, and/or Fastcase.  It’s worth it at this point to take a look back at where we’ve been, and forward to where we may be headed, and we are optimistic at the prospects.

PACER fees have been a long-standing headache for academics. The money generated in accessing electronic public court records provides the judiciary with a substantial revenue stream, with predicted PACER revenue for both fiscal years 2021 and 2022 of about 142 million, yet PACER itself lacks the enhancements commercial providers offer, like alerts. For academic institutions, the financial burden incurred by clinics and researchers who need to follow cases can be substantial and often prohibitive. When Bloomberg Law entered the legal research market in 2010, law school libraries breathed a sigh of relief as this new service provided unlimited access to PACER for academic accounts. Unfortunately, years later and in the face of mounting costs, this was walked back with dollar limits, returning many institutions to the dreaded “before” days of limited PACER access and looking for alternatives. Other platforms offer some forms of docket access, but not to the extent Bloomberg once provided, and academia is often charged large additional fees, if our academic accounts have docket access at all.

PACER fees have been the target of both creative solutions and lawsuits, with limited or yet-to be-seen success. Recap offers free access to PACER documents uploaded by users in a crowdsourced database, but access is limited to those documents others have sourced and included. The 2016 lawsuit filed by the National Consumer Law Center and the National Veterans Legal Services accusing the US Government of overcharging and misusing PACER fees achieved preliminary success in the DC Circuit but still churns on, although the end may be in sight. While this action has very recently (and tentatively) settled, we don’t yet know the terms, or what relief may be included for academic institutions. A status report is scheduled for January 20. We’ll see.

In the meantime, Congress is working hard on a legislative fix. In the 116th Congress, the Open Courts Act of 2020 passed the House, and was sent to the Senate where it died in the Judiciary Committee, but not without garnering substantial support. That bill had only two sponsors, and it would have still allowed the charging of fees for “power users,” with the caveat that these fees “may not impair access to justice and the public right of access to court records,” nor “restrain innovation” or “inhibit not for profit research of the business of the Federal courts.” 

So, is relief finally coming? The current Open Courts Act of 2021 was introduced last August in the Senate by Republican Rob Portman with the bi-partisan support of 14 co-sponsors. This version would still allow fees against users who spend more than $25,000 a quarter, along with federal agencies, which will help fund a new case management system.  Although it has been reported favorably out of the Judiciary Committee, and an identical bill was re-introduced in the House last November, GovTrack only gives it a 13% chance of passage, and Lexis+ bill tracking also predicts the chance of passage as low. Perhaps these algorithms don’t read press releases or don’t factor in the bi-partisan support, the lack of any vocal opponents, or the ongoing legal disputes it would resolve, but plenty of us put the odds of passage much greater as this issue has gained wide traction.

Which leads us to ask our vendors, what will you do once PACER fees become free to the public? Will you allow academic institutions to subscribe to all of your docket alert and tracking services? Will the large added fees for docket access be waived, allowing our students to gain practice in researching dockets and thereby draw more customers to your product? Or, will this allow for the development of new and even more user-friendly docket search platforms?  As Bloomberg discovered, docket access can be a great magnet drawing users to your platforms. Once PACER fees are contained, or perhaps in anticipation thereof, we are anxiously awaiting the enhanced docket access the new year may bring.

Now You See It, Now You Don’t: Is it an A/B Test?

We recently got an inadvertent peek behind the curtain of the process for evolving legal research database interfaces. Early this fall, working on research exercises for our incoming 1L students, we found ourselves cross-editing each other’s’ instructions for how to run a simple Lexis+ search. Why tell students to click on “content” when the label says “categories”? And why not just tell students the icon for editing looks like a pencil? Thanks to the screen sharing function on Zoom, we discovered we were simultaneously looking at different versions of the same interface, and after polling our colleagues, about half of us were on “team content” and the other on “team categories.” It turns out, we were unknowingly part of an “A/B” interface test:

This kind of testing is a common way for developers to compare two versions of a design and see how these variations change user behavior. Some companies use A/B testing quietly to see if subtle changes in font size, color, position or wording increase visits, clicks, or purchases. We reached out to Lexis, and learned from the product development team that this is standard practice, intended to test variables and improve user experience:

LexisNexis uses online experimentation or A/B testing to improve our products by evaluating potential changes before rolling those changes out to the entire user population.  For Law Schools we take steps to avoid disruptive testing during times of peak usage during the school year to minimize any challenge to your preparation and teaching of legal research with our products.

Bloomberg law also uses beta testing of its interface:

Bloomberg Law occasionally might engage in beta testing where we enlist specific firm/school accounts. We won’t do it with just random individual users, however. Users who participate in beta testing are enlisted by a Client Service Partner or someone from our Bloomberg Law team. Random users are not selected to participate in our testing.

We reached out to Westlaw, but we received no statement about interface testing by the time of this posting.

As a practical matter, the variations we saw were subtle and unlikely to cause confusion, and as of this afternoon, we are all on “team content.” We were never actually asked which term we preferred, so we can assume website metrics showed “content” must have gotten more clicks than “categories.” Legal researchers are constantly watching for and adjusting to changes in research database interfaces, as each new academic year our vendors seem to roll out yet another new menu of changes. Some changes are significant re-developments, while others, like the ones we discovered, are much more nuanced. A word to the wise for all legal instructors for the spring: even if you are not alerted to a major interface change, be sure to double check your screenshots.

Wolters Kluwer Sells Legal Book Business to Private Equity Firm

Wolters Kluwer (WK) announced in a September 27 press release that it has signed a binding agreement with Transom Capital Group (Transom) to sell its legal education business for $88 million in cash. WK reports this move “will allow Wolters Kluwer Legal & Regulatory U.S. to further advance its focus on supporting legal professionals with the domain expertise and state-of-the-art solutions that they need.” The legal education business produces student textbooks and digital education materials for law students, and is reportedly profitable with revenues of $33 million in 2020.

So what is Transom? Records show it is a privately held equity company incorporated in Delaware and headquartered in Los Angeles. Transom makes mid-market buyout investments in various sectors, and it focuses on “middle management investment opportunities that exhibit great potential.” Transom was founded in 2008, and started out investing in companies that make audio equipment, concert tee-shirts and promotional items. Transom has a broad and eclectic investment profile and its current portfolio includes, among other companies, Cross Pens, Beauty Quest Group, Bravo Sports, Makie audio, and Scantron.

Although holdings such as Bridge Tower Media may show Transom putting a toe in the publishing pool, academic publishing appears to be a new venture. In a 2017 news story reporting the Cross Pens acquisition, Transom was described as having a “hands-on approach that provides operational involvement and support without overwhelming the management team.”[1] This may come as some comfort to the 50 full-time employees currently working for WK Legal & Regulatory. We will all eagerly await what this deal means for our students and our faculty who rely on WK legal textbooks.


[1] 2017, Nov 16. Transom Capital Acquires A.T. Cross Company: Nation’s oldest and largest manufacturer of writing instruments poised for expansion with growth capital. NASDAQ OMX’s News Release Distribution Channel.  

Document Analytics in Academia

Is there a place for document analytics products in the law school legal research curriculum?

Document analytics platforms have a big footprint on the legal tech landscape, and at least one is nudging its way into academia. Newcomer Kira https://kirasystems.com/  is offering a “Kira for Education” initiative to some in the academic community. Kira provides a machine-learning platform that identifies, extracts, and analyzes language in documents the user can drag and drop into a template. Kira also offers a customizable search tool that allows users to highlight sample document language and create their own custom platform. Kira can search documents written in other Latin-based languages, including English, French, and Spanish.   Contract analytics products have been on the market for years, although these products don’t typically target law schools.  LawGeex, LinkSquares, Contract Wrangler, Affinitext, IntelAgree, and Docusign are just a few of the many contract analytic products currently available.

Some academic research platforms currently provide access to programs that can assist with contract drafting. Lexis Practical Guidance offers “Smart Forms” that include sample customizable forms for various industries and in numerous jurisdictions. These forms contain drafting note advice that alert the user to specific legal issues when incorporating certain language. Bloomberg Law’s Draft Analyzer allows the user to upload a contract and will compare clauses in that contract to other similar contract language within its database.  Bloomberg is currently beta testing an analyzer for merger agreements.  Westlaw offers “Contract Express,” but this product is not included in academic accounts.

Even with an already crowded legal research curriculum, it may be time to consider the best way to expose our students to these increasingly popular products. It would also be great to hear from our colleagues in law firms about which of these products seem to be getting the most traction, so that we can better prepare our students for practice.

In legal tech, complexity is overrated.

A recent survey from the ABA shows that law firms remain slow to adopt AI products. https://tinyurl.com/ABATechSurveyArticle  In fact, just 7% of respondents reported they use AI tech tools, with questions about accuracy and the cost offered as the primary reasons for the slow uptake. Since the survey was conducted in the initial months of the pandemic, this might come as a surprise. As we all spend our days on Zoom, technology adoption has been at the forefront of efforts to increase productivity while decreasing the need for personal interaction. However, the fundamental problem with many of the newer AI legal research tools is that they do not yet replace any necessary steps in the legal research process. Why incur the cost of these programs and invest in learning them without any consistent benefit, particularly at a time when firms are looking to cut costs?

AI products leave us in a conundrum in the research teaching community. As a group of early adopters when it comes to legal tech, we have been disappointed at the lack of transparency when it comes to understanding the search algorithms or the opportunity to experiment with some of these products. There is also often aggressive marketing directly to our students, who don’t understand these products either and come to us for guidance. We want to keep our students abreast of the latest technology that can help them in their legal careers. However, it is hard to teach students about a product we don’t understand.

Legal analytics products (for example, those products that correlate rulings and motion success rates), on the other hand, seem to be getting better law firm traction. However, even analytics products can give uneven results. A recent ABA article highlighted a study by law librarians at two large firms comparing search results between analytics platforms, and discovered wide variations in response to simple research commands. https://tinyurl.com/yyffw7jv . The authors’ takeaway was a familiar one: vendors must provide transparency, training and guidance on the use of their products.

Simplicity may be the key to longevity for all of these products, an idea underscored by a recent story in Legaltech news from Law.com, which describes law firm reluctance to give up Excel for more complicated management products https://tinyurl.com/y562hsvv .  Products marketed with transparency in their database content and search algorithms may ultimately win the day. Such products are easier to teach and inspire confidence in their results.  In this time of Covid-19, when we are all starting to feel tech fatigue, there may be a message here for our vendors. Remember the well-worn acronym, KISS (keep it simple, silly).