The Price Is Wrong: The chief justice declines an offer of free Lexis researchAuthor(s): TERRY CARTERSource: ABA Journal, Vol. 84, No. 2 (FEBRUARY 1998), p. 18Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27839820 .

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NEWS

The Price Is Wrong The chief justice declines an offer of free Lexis research

BY TERRY CARTER

It was quite a coup when the federal judiciary got a deal for research services that beats any other: On Oct. 1, Lexis-Nexis became free for the courts. But Chief Justice

William H. Rehnquist stared the gift horse in the mouth and turned it away from the Supreme Court.

Lexis-Nexis had lost out when the Administrative Of fice of the U.S. Courts gave West Group an exclusive con tract in a 1995 competitive bid. For 10 years before that, the judiciary had been using both services. Lexis recently came back with its unprecedented offer to en sure it remains a player in the lu crative legal research market.

No, thanks, says the highest court in the land, which has its own budget and intends to pay for its Lexis-Nexis use. "We have decided not to avail ourselves of the offer," says Toni House, public informa tion officer for the Court, in a typi cally spare statement. "We have a [paying] contract to use it."

The Court had struck its side deal with Lexis when its law clerks learned of the exclusive West con tract and clamored for access to the competitor's service as well. Be cause the Court piggybacks on con tracts for the judiciary, it could have dropped the fee-for-service agree ment and accepted the freebie.

Sensitivity at the Top Though the Administrative Of

fice's negotiations with Lexis-Nexis last summer were described by some involved as "fast moving," the agency and its general counsel in particular are said to have careful ly vetted the deal. But the AO failed to glance upward, as Rehn quist is said to have become more sensitive in recent years to ethical questions about judicial gifts.

Rehnquist, upon learning of the deal, asked AO Director L. Ralph Mecham for a memorandum on the legal authority for accepting

William Rehnquist: Freebie carries a hidden cost.

the gift, according to a source close to the matter. The response was simple. Under paragraph 17 of 28

USCA ? 604, the director of the AO,

L. Ralph Mecham: If s OK to accept offer.

and he alone, has the "discretion" to "accept and utilize voluntary and uncompensated [gratuitous] ser vices ... for the purpose of aiding or facilitating the work of the judicial branch of Government."

But Rehnquist, according to sources familiar with the matter, is concerned about appearances. The heightened sensitivity stems in part from press coverage in 1995 criticizing some Supreme Court jus tices and lower court judges for ac cepting gifts and travel to confer ences at exclusive resorts from

West Publishing, now West Group. Following those reports, the

U.S. Senate adopted a nonbind ing resolution urging the feder al judiciary to tighten its ethics rules and for the Code of Judi cial Conduct to be extended to the Supreme Court. The Judi cial Conference, which promul gates the code, has no authori ty over the Court, though as a

matter of policy the justices ac cept the guidelines.

Lexis-Nexis says it was re sponding to customer concerns and the judiciary's difficulties when it offered the free service. "Our commercial customers were going before the federal bench, and it was sometimes

difficult for the two to communi cate," says Michael R. Conway, Lexis-Nexis vice president for law school and court markets. "It was ... inconvenient and inefficient for the federal judges and law clerks."

The federal judiciary logs roughly 40,000 hours monthly of computer-assisted legal research. Both West and Lexis-Nexis have of fered sweetheart deals to the feder al judiciary over the years. But big law firms and other commercial customers who pay off-the-shelf prices feel they subsidize the courts. Other federal agencies also pay higher rates and have complained that they want similar deals.

Services provided for the judi ciary are "very intense, labor inten sive and expensive to offer," says a former negotiator for a vendor. The AO requires that the service be pro vided 365 days a year, 24 hours a day, with a very limited amount of downtime. Training must be pro vided virtually on demand.

The five-year West deal runs through 2000, but it is reviewed annually because the AO's funding is year by year. Lexis-Nexis' gift to the judiciary is for seven years. "We intentionally made it long-term to show there wer? no strings at tached, that there is no intention on our part to give it to them for a year or two and then start charging them," says Conway. "But we can't

make it indefinite. Our sharehold ers won't have that."

18 ABA JOURNAL / FEBRUARY 1998 contact press images/david burnett; abaj/rob crandall

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