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Lately, I’ve been tempted toward complicated prose that urges rethinking of legal-information fundamentals.  Why? Because the idea of public access to law in a global digital society makes some fundamental rethinking necessary.   It would be swell to explore those notions in some longwinded way, but I’m both lazy and out of time.  So instead I am going to offer two really simple propositions:

1) Simple fairness demands that the public have free access to legal-information systems that embed the same functionality and quality as the most advanced systems commonly available within the public body that creates or issues that legal information.

2) Authority in legal text ought to be judged simply (and exclusively) on the basis of accuracy, currency, and other objective quality measures.  The barter in “official status”  is unnecessary.

Please discuss in the comments.  The fun, of course, lies in cataloging all the ways in which our current situation does not match those ideals, and why.  Assuming, of course, that you think they are ideals.

15 Responses to “Two really simple ideas”

  1. Hm. Reasonable? yes. Doable? Not until the argument for general public utility is better (? or more universally shared?). Consumers and some would-be rabble-rousers are still experiencing long-term effects of drinking the Kool-aid, which is high in “this is too hard for the public”. I recently gave a class of LIS students an assignment to write pro/con on opening PACER data… 1/3 said no need, this is only useful for lawyers, who can pay for expensive and better systems, and by the way PACER searching sucks. Until we (lawyers, librarians) improve our argument about why that’s bunk, there’ll be no grassroots push to develop standards (standards, instead of the Standards, LexisNexis and Westlaw).

  2. Authority lies between authenticity on the high end and official status on the low end. We can, and do, designate unreliable sources official (or “big O official” as some in the FDLP would know it). Thus your point that barter in official status is unnecessary should in fact be stronger – barter in official status is a red herring or worse, puts a thumb on the scales of judging true authority.

    The best way to just authenticity is some imprimatur from the issuing authority. For now, digital signatures are one way of doing this and there’s no reason that multiple sources can’t provide such “authentic” material. I can imagine those who would place greater trust in an authenticity claim backed by the Secretary of the Senate and the LII than a similar claim by the Secretary and GPO or the Secretary and West.

    On 1), can we add something in addition to “simple fairness”? I agree, but that argument leaves open the sophomoric “life’s not fair” retort. I’d suggest “functioning democracy and fundamental fairness” as a friendly amendment.

  3. [...] on Public Access & Textual Authority By legalinformatics Tom Bruce has a very interesting post, suggesting we reconsider the concepts of “free access to law” a… He requests [...]

  4. It is sad for the nice artwork found by Tom to ignite the discussion, but I would suggest adding a third proposition: public bodies producing legal information must provide a vendor/medium neutral citation and when appropriate the paragraphs must numbered. The relevance is that publicly available documents must have a ditation.

    Document accuracy and currency is what is required by everybody and this is simple enough to achieve. That is what professional users of the legal information are looking for and this is what the general citizenry need as well. These days facta presented to the Supreme Court of Canada include excerpts from commercial databases and departments websites. I guess that if this sort of so-un-authentic material is good enough for the SCC it must be good enough for a lot of us.

  5. Tom, Thanks for these very compelling ideas. I agree with (2), for the reasons that Scott states. In passing, I note that many U.S. state court citation rules seem to reflect a desire for convenient access rather than the guarantee of authenticity that “official” status provides; see, e.g., Pa. App. R. 2119 (b), http://bit.ly/oivn6 , requiring citation to National Reporter System for cases from all U.S. jurisdictions, with parallel citation to official state reports only for Pa. App.

    Respecting (1), I’m not certain. To my knowledge, U.S. governmental legal departments usually have access to Wexis, so “same functionality and quality” means Wexis metadata, search algorithms, and display, which include abstracts, alert services, intelligent search functions, automated cross-database searching (even of databases you don’t want to search), displays that integrate sources from multiple databases, customizeable tabbed user interface, saved (and searchable) search histories, 24 hour free-of-charge expert telephone search advice, etc.

    I think one can distinguish between metadata and functions that are genuinely necessary to enable discovery, retrieval, and use of relevant law (call this “Basic Service”), and added metadata and advanced functions that save time and suggest additional sources, but are not genuinely necessary for enabling discovery, retrieval and use of relevant law (call this “Premium Service”). For example, I need Key Numbers or some equivalent, and a party name index in order to identify and retrieve relevant caselaw; and I need an annotated statutory code with a serviceable subject index and popular name index to access relevant statutes; I need an administrative code with citations to the authorizing statutes and a serviceable subject index; and I need a serviceable citator and at least keyword access to recently effective cases, statutes, and regulations to ensure that I’m finding the current law. But I don’t need abstracts, names of counsel and their firms, advanced intelligent search functions, alert services, cross-database searching, saved search histories, or a fancy display.

    The production and maintenance costs of Premium Service are arguably substantially greater than those of Basic Service. (That’s an empirical question that we can verify.) I think an argument can be made that government should provide free public access to a Basic Service primary law system, enhanced by access to government-authored secondary sources (legislative history materials and legislative bills), but not a Premium Service system (i.e., not full bells & whistles Wexis). Correct me if I’m wrong, but I think a Basic Service is what the EU seeks to provide via Eur-Lex, http://eur-lex.europa.eu/en/index.htm .

    Now, as Stephanie notes, because of U.S. tradition of relatively limited government, even Basic Service potentially presents political problems. The reason is that Basic Service requires high quality metadata, particularly subject indexing, that entails substantial production costs (at least for the foreseeable future, until good-quality, affordable automatic subject classification tools are available to government), and to pay for this, new government resources must be found. But I think a case can be made that government should bear those costs, and that the public should pay higher taxes to satisfy those costs. And the public today may well be receptive to those arguments, particularly in light of the new public taste for bigger government, higher taxes, and greater access to government information, coupled with what may be a substantial increase in the public’s willingness to engage in law-related matters without legal representation.

  6. A quick followup to Robert’s thoughtful comment….

    A lot of the problems with current public systems can be put down to a sort of echo-chamber or boy-in-a-bubble syndrome that stems from the use of Premium Service by policymakers and others in a position to influence the creation, development, and distribution of information to the public. In current biz-speak, you’d say that those in a position to control legal information policy aren’t eating their own dog food.

    Now, like you, I would neither deny people the professional tools they need, nor overburden casual users with complexities they don’t want, nor try to kill off the private market in value-added legal information. The question, though, is how we manage to keep information providers in tune with the needs of a general public that is — so far as I have been able to observe — far more sophisticated and diverse in its use of legal information than the information providers believe.

    And, of course, there is an imp within me that honestly believes that public transportation in the United States would improve by three quantum levels if the Washington Metro were shut down for a month, with signs posted at the entrances that say, “This is what everyone else has”. That same imp (busy little devil) makes me wonder what the reaction would have been within government had someone come along in 1987 and said, “the general public needs access to a worldwide system of interconnected textual databases on a wide range of political, social, and economic topics”. Probably something along the lines of, “we don’t have anything like that, we can’t afford to build it, and in any case it should be a Premium Service for the intelligence community”. But now here it is.

    So, obviously, this is a matter of arriving at some public policy around the Basic Service. What should it be?

  7. Tom:

    Thanks for your thoughtful response. One more comment: I’ve been re-reading recently all the AALL documents from the 1980s & 1990s respecting the unsuccessful attempt to create a free public CALR service centered on the Law Library of Congress. It might be well for all of us interested in free public access to law to revisit all that material and assess it, to determine whether any of that program can be salvaged in this new environment. Perhaps one feature of this new policy proposal that might differ from the old one is that it could involve multiple sources of material (e.g., the LIIs and university-based open legal digital libraries like Rutgers), not just a single new CALR system based at Law Library of Congress. I think the two key works are “Setting The Legal Information Agenda For The Year 2000 : Based On A Workshop . . .” / edited By Mary Kathleen Price, Margaret Maes Axtmann, http://www.worldcat.org/oclc/23940295&referer=brief_results ; and “The National Conference On Legal Information Issues : Selected Essays” / edited By Timothy L. Coggins National Conference on Legal Information Issues (1995 : Pittsburgh, Pa.), http://www.worldcat.org/oclc/34549094&referer=brief_results . A word of caution: the last attempt was very well organized, took up a huge amount of time and effort, and appears to have accomplished very little.

  8. Robert:

    I do indeed need to go back and look at those efforts. One quick thought: I am imagining that this was an effort at a centralized service, and centralized services don’t fit the contours of the Net very well, especially when in terrain that houses pesky things like federalism, separation of powers, and judicial independence. Which is why it is stunning that we have learned so little from digital repositories in the sciences…. where distributed, federated efforts are the norm. The problem is not so much building a CALR service as it is building a standards-based CALR ecology, perhaps.

  9. Tom, This discussion underlines the role of automated subject classification software, to lower the cost of the knowledge representation component of any future free public law system. There is research literature about automated subject classification of primary law; see, e.g., Francesconi & Peruginelli, Searching and retrieving legal literature through automated semantic indexing, 11 Proc. ICAIL 131 (2007), http://doi.acm.org/10.1145/1276318.1276343 , and the citations at http://portal.acm.org/citation.cfm?id=1276318.1276343&jmp=references&coll=portal&dl=GUIDE&CFID=35895210&CFTOKEN=99105588#references . But I don’t know how feasible an automated classification system for law is for, say, an LII. Wexis appear to be using automated classification, but I don’t think the details of their systems are public (please correct me if I’m wrong). Tom, is a serviceable-quality, scalable, affordable automatic subject classification application available to the LIIs, and, if not, how long do you think it will be before such an application is available?

  10. Robert:

    The details of the WEXIS systems aren’t public, but you can certainly read between the lines of stuff that Peter Jackson and others have published. One guess might be “SVM-based voting systems supporting human decisions”. Another might be “ask Dan Dabney” (grin).

    As for near-term feasibility, depends, because the complexity of the problem varies a lot with subject area. Areas of law that are children of statute can hit 95% accuracy using Bayesian classifiers (I think we got close to that in some experiments about 5 years ago). Constitutional law (eg.) is a lot harder because most of the good discriminators also yield a lot of false positives. Citation networks, a la PreCyDent, would help a lot.

    A second variable is, simply, how good it has to be. If we’re only talking about defining reasonable scopes for full-text search, it’s a lot easier. If we’re talking about simulating key numbers, probably never.

  11. Tom: Thanks very much. To clarify because I’m new to computing, “SVM” means “Support Vector Machines,” is that right? Also, on Wexis automated classification, see Mart, Susan Nevelow – REINING IN THE RESULTS: THE USE OF HUMAN INDEXING AND COMPUTER ALGORITHMS IN WEST’S HEADNOTES & KEY NUMBERS AND LEXIS’S HEADNOTES & TOPICS AS TOOLS FOR FINDING RELEVANT CASE LAW, http://www.colorado.edu/law/legalinfo/docs/mart.pdf .

  12. [...] a recent discussion of Tom Bruce’s very interesting post respecting the requirements of a public legal [...]

  13. [...] like John Joergensen are writing about certification standards and digital signatures. Others, like Tom Bruce of LII, are also asking the questions. They are the ones you should be [...]

  14. [...] yourself a “copyfighter“, and set off to save the world.  Instead, we strive to be accurate, timely, and boring.  The fairy tale of how Robin Hood Beats the Bad Sheriff and Saves the Little Guys is exciting. [...]

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