The Legal Information Institute at 20: Remarks by Peter Martin, Jane MG Foster Professor of Law Emeritus (Gala Dinner, 2012-12-08)

• Reflecting on this conference, listening to today’s presentations and discussion, I have been struck by how fantastical, how implausible, all this would have seemed had it been described in the year 1992.

  My charge is to lead you through the events and lessons of the twenty years separating the present from that distant past, in half as many minutes. That might have been an easy task if the Internet Archive’s Wayback Machine could take us back so far. Revealingly, its earliest snapshots of the Web date from December 1996 (by which time so much of the foundation for our collective enterprise had taken shape). To travel way, way back to the conditions surrounding the establishment of Cornell’s Legal Information Institute (and other LIIs shortly thereafter) requires more than a point and click. However, given the amount of shared history in this gathering, it still shouldn’t take long. Let me ask you to join me in scanning back through your memory of the past two decades, searching for the time and institutional setting when you first came to appreciate the potential transformation of the phenomenon we call law made possible by the Internet. If the exercise takes you with certainty all the way back to 1992 or beyond, you are a true visionary. By all rights this podium should be yours.

  Arguably, January 1992 does mark that moment for me, for I recall being impressed by a talk on the publication potential of the Net at that year’s meeting of the Association of American Law Schools. The presenter was Mitch Kapor, then chairman of the Commercial Internet Exchange. However, honesty also compels a confession of how little of what was about to unfold so rapidly Tom and I foresaw in July of that year when we declared ourselves the Legal Information Institute.

  Rereading the proposal we submitted for start-up funding, I note that it spoke confidently but quite vaguely of the importance of the Internet to the interdisciplinary activity we planned. Audaciously it declared the beginning of a five-year program, encompassing both publication of important US statutes on disk and experimentation with use of the Internet as a mode of electronic publication and exchange. It is clear from that document that we did not anticipate the pace, scope, or longevity of those experiments. They were a consequence, in part, of our being in the right place at the right time, but also of our response to subsequent developments and discoveries, choices we made concerning audience, direction, and scale.

  To focus first on the beginning – looking back, aided by knowledge of what ensued, one can see that by 1992 several critical vectors were aligned in the US.

  First, those I shall call legal insiders (lawyers, judges, legislators, and participants in legal education) were, at that point, familiar with electronic distribution of statutes and judicial opinions. The previous twenty years of innovation and aggressive marketing by first LEXIS and later Westlaw had accomplished that.

  Second, and more recently, the bodies from which legal texts emerge – courts, legislatures, administrative agencies – had begun using computers in their drafting. Most continued to view the resulting word processing files merely as a more efficient means of producing print, but some offered journalists, lawyers, and others dial-up access to those files. In 1990 the US Supreme Court took a further step, distributing its judgments electronically on the morning of release to a small number of redistributors. A dozen or so media companies and law publishers subscribed. So too, however, did one university, Case Western Reserve; and it placed the decision files on the Internet at an ftp site. Of course, this was a far cry from effective public access. To retrieve a specific case one had to have a dial-up connection to the Case Western site or be part of the scientific community then connected to the Internet. One also needed to know the docket number, download the multiple files, have compatible word-processing software, and print out the results.

  Nonetheless, the availability of primary legal texts in computer-readable format directly from the source and unencumbered by copyright (another favorable factor) meant that electronic publishers no longer had to incur the huge expense that burdened LEXIS and Westlaw during their first decades, as well as all earlier research on legal database design – namely the cost of digitizing printed texts. Combined with the emergence of CD-ROM as a high-capacity distribution medium, this opened the US commercial legal information market, long dominated by the two online giants, to a disruptive wave of fresh competition.

  CD-ROM distribution offered important functionality, including hypertext, that the major online systems could not at that point deliver. Software platforms exploiting this potential had appeared by the early 1990s. In 1992 work was underway to bring the best of them to a scrollable graphical user interface, capable of displaying and printing legal documents with all the information carried in print by font, style, graphics, and layout. This development was in turn made possible by Microsoft’s release, only a year and a half before, of Windows 3.0. Neither the major legal information vendors nor US public bodies responded nimbly to the opportunities opened by CD-ROM distribution or the Internet. And that created space for an uninhibited, experimental non-profit.

  Our brand new Legal Information Institute ventured into that space during the summer of 1992, with a handful of disk publications and a Gopher server. Gopher, then only one year old, was the first truly public-friendly Internet navigation tool. Soon eclipsed by the Web, it brought the first wave of non-technical users onto the Net. Tom and I used Gopher to deliver both our own publications and also to organize and link to legal materials held elsewhere, including the, until then, largely inaccessible ftp archive of Supreme Court decisions at Case Western Reserve.

  Gopher could not, however, deliver important features we had been able to realize in the LII disk publications. It was a desire to bring the quality we had achieved on disk to the Internet that led us to html and the Web in early 1993. Way back then, the Web, also in its infancy, was the tool of a technical community that worked on UNIX machines that had high bandwidth connections to the Internet. Our principal audience as we then conceived it consisted of legal insiders working with PCs and dialup connections. For them no Web browser existed nor was one in sight. Not deterred by such a gap Tom set to work and created the first Windows-based Web browser, Cello.

  By then the infrastructure that would allow the explosion of the World Wide Web was in place. The capacity and speed of the Internet’s backbone had just been dramatically improved. Congress had removed the ban on commercial traffic over that backbone imposed by NSF’s “acceptable use policy,” and privatization was underway.

  While the Internet and the Web put free to the public within reach, the benefits were limited those of the public who were aware of and had access to the Net. Looking back it may be difficult to remember how small that population was in 1992 and 1993, even in the developed world. During 1992 the word “Internet” appeared in only twenty-two New York Times articles and not once in the American Bar Association Journal. In December 1993 when the product “Internet in a box” was announced, estimates of Internet users had climbed into the 15-20 million range (a ten-fold increase over the course of only a year or two). By then the LII was an established Web destination, and Tom and I had begun to appreciate that the public that valued our growing collection of legal information was far broader than the set of legal insiders we initially had in mind.

  As early as 1995 all the ingredients that enabled the LII to germinate, grow, and reach a wide audience had come together in the US. No doubt those ingredients arrived at different moments elsewhere, but from 1995 on, it has been possible to envision widespread public access to law via the Internet. That was seventeen years ago. Although the LII enjoyed significant first mover advantage in the US, the period since 1995 has been filled with challenges and hard choices – as public bodies, commercial entities with business plans that incorporated public access to legal information, new search engines and other finding aids crowded into the zone the LII once occupied, with only a few others.

  Steady casualties furnished a reminder that in this rapidly changing environment, survival, let alone impact, could not be taken for granted. Some of you will remember that for a brief time in the mid-nineties Alta-Vista was the go-to Web search engine. That was before Google appeared. Closer to home, the fine collection of treaties hosted by the University of Tromsø, the federal agency material catalogued by Villanova, Indiana’s law meta list, the House Law Revision Counsel’s Internet Law Library, and more recently AltLaw, to name only a few of the law sites that have come and gone, illustrated the risks. In some cases disappearance was the result of being displaced by something better, in others of having attempted too much, and still others of shifts in allegiance or priorities of key personnel or the host institution. Threading a path through these and other obstacles, Cornell’s institute has faced, addressed, and often reconsidered a set of critical questions:

  1. whether to remain within its host academic institution or go it alone;
  2. whether to work in consort with any of the increasingly numerous commercial and public players in this field, and if so on what terms;
  3. how to staff, organize, and fund expansion in scale and longevity beyond the initial five-year experiment by two guys with a computer; and
  4. how to continue to innovate while maintaining the information services essential to holding and growing the LII’s audience.

  As the years have gone by, these questions have only grown more difficult.

  The good news is that the increased challenge has largely been a result of the diversity of other high quality free law sources that have grown up on the Web – sources of widely different scale and mission: ranging from other academically based sites like that at Rutgers, through state government sites such as those of the New Mexico Compilation Commission and the Oklahoma State Courts Network, to commercial sites, both small (LawMoose covering the states of Minnesota and Wisconsin) and huge, Google Scholar. Fortunately, throughout the past twenty years the LII at Cornell has been shielded from any temptation to attempt a comprehensive collection of US law by the size and complexity of this country’s legal system and the presence of a diversity of commercial services that have long done that for US legal insiders.

  Looking back across the past two decades, it is easy for me to lapse into nostalgia. I fear I may have been guilty of a bit of that here. But this is an anniversary celebration not a memorial service. As the second verse of a birthday song widely sung in America concludes: “May you have many more!” That being my fervent wish for the LII, I turn for a sense of that lies ahead to my mentor, the LII’s co-founder, and for the past eight years its sole director, Thomas R. Bruce.

  [ Bruce’s remarks appear here ]