Who owns the law in the United States of America? A Minnesota publishing house: West Publishing Company.

In the Anglo-American legal system, the “law” or rules of decision comes not only from statute, i.e. laws passed by the legislature, but also from precedent: past decisions in particular cases. In practice, since statutes tend to be general rules, and precedent can involve factual circumstances similar to or even identical to the case before the court, precedent tends to be more persuasive than positive law.

Appeals courts must give written reasons for their decision, and those opinions are intended to guide the trial courts. You can find copies of court opinions in a variety of places, but only one place really matters to lawyers and judges: the volume and page in the lawbook printed by West Publishing Company of St. Paul, Minnesota.

Law books have been privately published in the United States since the beginning, following the example of the courts of England. Lawsuits over publishers' rights started immediately as well.

In the 1870’s, John and Horatio West sold office supplies, dictionaries and law books in St. Paul, Minnesota. Seeing a need for the publication of new cases decided in the Minnesota courts, they print a weekly newspaper containing court opinions. By 1879, the West brothers are publishing the output of courts from Iowa, Michigan, Nebraska, Wisconsin and the Dakota Territory. By the turn of the century, the company formed by the West brothers is publishing regional reports nationwide as well as Supreme Court decisions.

Since the opinions are public record, West developed an organization and annotation for its books which made them unique, and ultimately indispensible to the legal profession. West didn’t just print the opinions verbatim. West organized the material, summarized the legal points, and collected the summarized notes in “digests”, organized according to an outline of the law called the West Key-Number system. Prior to the advent of computerized legal research, a Key-number was the fastest way for a researcher to get from a general legal concept to a specific controlling legal authority dealing with that concept.

Thus began the symbiotic relationship between West and the American judiciary: the courts provided the raw material, and West produced law books which in turn facilitated the work of the courts, and lawyers (i.e. their clients) paid for it.

Now that computerized legal research is possible, the Key-Number system is obsolete. West, however, continues its stranglehold over legal publishing. With a few exceptions, courts continue to insist on citations to West Publishing volumes and pages numbers. West has settled several lawsuits challenging the copyright status of the page numbers, with the result that its competitiors license the right to insert West’s pages numbers in their publications.

On-line access to databases containing the essential page numbers is absurdly expensive, generally around $200 per hour, whether you use West’s system Westlaw™, or Mead’s competing system, Lexis™. Westlaw is provided free to law schools and to the judiciary, so that many young lawyers, whether they refined their legal research skills in law school and/or in a clerkship for a judge, do not know how to find the law without using Westlaw.

None of this is likely to change. West has recently added considerable lobbying and campaign financing to its clout, and therefore has influence over all three branches of the federal government: executive, legislative and judicial. The symbiotic relationship between West and the judiciary has always been very cozy. West finds frequent opportunities to assist judges and court officials with legal seminars, court historical projects and receptions at conferences. According to the Minneapolis Star-Tribune, judges with cases involving West’s copyright claims, including Justices of the United States Supreme Court, have accepted of gifts from West, including VIP tickets to the U.S. Open golf tournament and trips to Hawaii.

Minneapolis Star-Tribune exposé: http://www.startribune.com/westpub

West’s campaign contributions: http://www.cptech.org/legalinfo/westcontrib.html

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