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Somewhere in the snowdrift of paper on my desk is a program from an opera performance I attended a few months ago.  Among other things, it’s a document that tells you what the opera company is doing and who, specifically, is doing it.  It  also tells you — less directly — who’s paying, and how.  Among other things in it, I found:

  • a roster of individual donors arranged by the level of support they’ve provided
  • a roster of corporate sponsors
  • a featured list of corporate sponsors who are underwriting particular activities or programs
  • advertisements for various businesses, small and large, often with music-related slogans that are pretty dumb (“our pastries hit a high note”)
  • a notice of a business-networking event — a kind of meetup — jointly sponsored by the opera company and the local chamber of commerce

You’ll find similar things in the programs of every large and small opera company, symphony, and theater organization — any arts non-profit, really — in the country.  That’s not new; all of those things have been around for as long as I can remember.

What’s that got to do with the LII?  Well, in some form or other, all of these things are coming to the LII web site.  Some already have.  Other things that opera companies have — like admission fees — never will.  Here’s why.

The LII’s core staff consists of six people, augmented by a  pool of student editors, programming interns, and others who help us run a web site with over a quarter-million documents and 100,000 unique visitors every day. At any given moment, those same core staffers are responsible for one or two funded research projects, a series of consulting jobs, a guest blog, and occasional writing on policy and other matters of academic and public interest.  As continually as we are able, we improve our services and our technology.  We are spread very thin.  About a year ago, we realized that the LII had no prospect of either expansion or field-leading innovation so long as our core staff remains the same size.  We had more than fully committed ourselves to the maintenance and continued development of those collections we currently offer.  And to some of us it looked very much as though we might end up spending our careers watching others — people with more resources that we can command –  doing work that we knew how to do five years ago but could not fund.   At a time when there is more need than ever for our expertise and for innovation in the field, this seemed like a pretty bleak prospect.  By nature, most of us here are better pioneers than settlers.  And we have a lot of unrealized ideas that we would like to bring to you.

So for us the question was not really one of how to stay afloat; we could, we think, tread water indefinitely, although the Internet is usually unkind to those who lose momentum.  The problem was, and is, how to move forward, to continue our longstanding traditions of leadership in the field of legal informatics and service to the public.  As a practical matter, this amounts to asking, “How will we get more money?”  Real leadership demands not only that we support ourselves as we are now, but that we grow.  We need more people to carry on our existing programs even as we innovate in new areas.  The answer, it seems to us, lies in making use of our considerable traffic and other assets to support our activities, as well as relying on the continued generosity and commitment of our supporters.  So we began thinking about what our opportunities might be.

There are, of course, a lot of answers to those questions.  We got very interested in what might motivate people to help us.  We have always had a loyal core of supporters (thank you, and thank you again!) who believe in the idea of open access to law, and give us money out of pure belief and generosity.  We think that some among our donors are partly reimbursing us for a service we offer to their law practice (yes, all you law-firm librarians and small-firm practitioners — we know you’re out there and we very much appreciate your help).  And we think that many, many more might take advantage of an opportunity to do well by doing good.

Right now, such folks can help us — and themselves — by listing themselves in our lawyer directory and buying a badge showing their support for the LII; this (not coincidentally) causes them to be shown more prominently in the directory.  Very soon, we will begin recruiting sponsors for specific pages in WEX, everybody’s legal encyclopedia, for the LII’s Supreme Court Bulletin, and for our larger collections (if any of these interest you, contact us).  And right along we have been making use of a modest Google AdSense presence to bring in some revenue — right now, those little ads are paying for about half a staff person.  When we put the AdSense blocks in place, we half-expected to get some negative reaction from our audience.  That has not happened. Indeed, a few people have privately told me that they think that our pursuit of more commercial opportunities is just good stewardship of our donated income.  I think so too; that’s because I come from the “pray to God but row toward shore” school of assistance-asking.

No doubt this raises some questions.  For instance, what about grants?  We seem to fall somewhere in between the agendas of those organizations that support basic science (our work tends to involve applications rather than basic research) and those which have social or policy objectives (which tend to have more urgent priorities than legal information).  Almost none provide operating support.  So it is a small population indeed. We continue to look for good fits (as we have for many years), but we think that these are very infrequent opportunities that will not provide a reliable base.  A second, logical question is whether we are contemplating any kind of user fee.  The answer to that is a simple “no”.  We are building a business model by which we can find reliable ongoing support for open access to legal information, for practical work in legal informatics, and for the promotion of public understanding of law — at no cost to the consumer. Finally, no, this was not a decision prompted by the recession, or by any drying-up of support from other sources.  In hindsight, it looks prescient — but we were driven entirely by our collective need for professional fulfillment and our desire to offer more and better services.

So, finally –  my thanks to those of you who have been loyal supporters all along.  We can’t do this without you, and we don’t think it’s fair to ask you to do it all for us.  To those who would like to work with us in other ways, I look forward to hearing from you.  And if any of you have questions or suggestions, I’m always eager to hear from you at tom {{dot}} bruce [[at]] cornell {{dot}} edu.

scotus-scaffold1.jpgSomewhere between 13 and 22 seconds after the first offering of free content on the Web, the publisher asked herself, “How am I going to pay for this?”.  And web publishers have been asking that question ever since.  The current economic meltdown makes it a more urgent question, but it’s always been there.  We sum it up in a slogan:  this service is free, but it is not costless.  We spend a lot of time and effort trying to resolve that conflict between our aspirations and the need to buy groceries.

The open-access-to-law community (particularly in the US) has had trouble with this.  There are a variety of solutions, few if any complete in themselves.  Most open-access providers originally depended — as we have — on grant funding, and on extensive support from a parent institution or a consortium.  Most have added consulting income to the mix.  And many get income from commercial partnerships, often based on the sale of back-end bulk data services.  The most stable model is CanLII‘s, which is financed by a head tax on Canadian lawyers.  An excellent paper by Graham Greenleaf (abstract here, slides here), offered at the recent Law via the Internet conference in Florence, describes one prominent free-access provider’s experience in keeping the doors open.

In any case, open access to law presents some unusual sustainability problems.  And those problems vary a lot from place to place. Institutional and political settings are very different, particularly in transition countries ( no doubt some of our problems here at the LII would no doubt be seen as high-quality problems by others).   Here’s a brief catalog — full treatment would need a very long article indeed:

First, open-access providers don’t really do research, in the sense of either basic science, or quantitative social science, or any of the things funded by research-oriented outfits like the NSF.  We can sometimes make a plausible case for ourselves as testbeds or helpers on grants that go to others (as the LII has with its participation in the CeRI project).

Second, we are continually faced with rising costs of innovation. The new legal information products and services we imagine, and hope to build, are significantly more expensive to produce than the things we imagined when we began 16 years ago. This is partly the result of the Web’s technical evolution and partly the result of more sophisticated needs and wants — a slow but steady revolution of rising expectations that we share with our users.  In 1993, we could significantly raise the sights of everyone in the legal information world by spending a snowy afternoon putting Two Pesos v. Taco Cabana into HTML — a one-person task that created the first web-published judicial opinion.  These days, it takes many more people a lot longer to come up with something that interesting and useful.

Like other not-for-profit projects, we have more trouble finding operating money than we do finding startup funds.  A lot of people would like to see their law (or someone else’s) put online. Very few are willing to pay to maintain it.  This is a particular problem with legislation, which requires frequent updating.  It also distinguishes legislation and regulations from scholarly publishing, and from many open-access repositories, which (like judicial opinions) gather material that is relatively static once mounted.

Some deep-rooted reluctance surrounds the funding of legal information, perhaps based on the idea that free legal information is just lawyer subsidy, or only answers the information problems of the rich (as Dan Dabney once put it).  Who wants to feed the sharks?

Open-access providers could do more than they have to dispel this distrust.  For the most part, we’ve made the case for open access in highfalutin’ normative terms:  support the rule of law, level the playing field for human rights, force the state to meet the transparency/publishing obligations implied by the idea that ignorance of the law is no excuse.  That’s a regime where success is hard to measure, if only because assessment is often self-referential. We declare our results to be good because our intentions are noble. We are Doing the Right Thing, and who would question that?  We are now starting to see some work on evaluation of open access in much more hardheaded terms — how does it contribute to lawyer competence, support economic development, level the playing field between one-shot litigants and repeat players?  These are important questions that will, if we are able to answer them rigorously, provide us with a strong case for support.

And then there is the “Tweed Ring” challenge — illustrated handsomely by this Thomas Nast cartoon.  Everybody thinks that free legal information is the next guy’s problem. Private foundations think government should do it. Government thinks that it is doing it (via weak services like PACER), and that anything it isn’t doing must be some kind of value-added service that the legal profession should pay for, or a matter of interest only to academic researchers.  The legal profession would like to pass research costs on to the clients, and increasingly can’t (small and solo law offices probably never could).  And so on.

Nobody thinks that free legal information is a bad thing, or unworthy.  It’s just not at the top of anyone’s list.  The US is a particularly severe case because (unlike the countries of the European Union, where partnerships like ITTIG are fairly common) we have never thought that work in legal information was a matter for cooperation between government and academia. Partnerships have been almost exclusively with private industry, though private industry sometimes relied on basic research produced by information scientists.

This circle may break soon.  Government transparency-by-web will no doubt get a lot of attention from the new administration; expectations among the “hack-the-gov” crowd are already very high, and there is good reason for this optimism.  We are seeing what amount to open-access legal information projects of this kind demanded by assessments like the recent ABA committee report on e-rulemaking and realized in the efforts of people like the Sunlight Foundation (GovTrack.us is a good example).  And certainly the economic crisis is pushing us toward greater awareness of global interdependency and with it the need for global transparency of regulatory and other legal regimes.

At the LII, we are moving toward sustainable self-support; we’re not there yet. We get about 20% of our current budget from the generous contributions of private individuals who think we’re worthwhile (and if you’re one of them, let me thank you again on behalf of all six of us here).   We recently added Google ads to many of our pages; we’re seeking sponsors for others.  And this week marks the launch of a new service offered in partnership with our friends at Justia.com : a lawyer directory service that offers great value, and an opportunity for us to give reciprocal benefits to those who help us out either financially or with donations of their expertise in the form of wiki content and other things that benefit our audience.

We have great hopes for it.  Talk it up.

[ Guilt-inspired author note:  apologies for the long absence.  It’s been an unusually busy six or seven months, even by LII standards.  With luck, this will be the first in a series of posts reporting on what I’ve seen and learned in that time.]

beerbeggar.jpgThis is probably not the time for it, but honesty compels me: very few people can turn off a car radio as fast as I can when an NPR fundraiser is in progress. I’ve sent them money, and two cars. But my local NPR outlet manages to combine self-righteous patronizing with mind-numbing repetition in a way that causes me to tune out very, very quickly. I hasten to say that they’re far, far below average in this respect. I know of no other NPR station that would call the Triple Cities the “Treble Cities”, or thank its donors on-air in a tone usually used to give positive reinforcement to a slightly retarded Labrador retriever who has just managed “roll over” for the first time. These shenanigans are a strong deterrent for somebody who has to make the case — to a broad swath of the public — that our work at the LII deserves support.

It does.

That “broad swath” is one reason. We put law — well organized and well explained — in front of a lot of people. We had close to a million and a half unique visitors last month, from over 200 countries — that’s about 20 million page views, maybe slightly more. Some of those visitors are lawyers, many are private citizens, and the majority of them are making use of law in some professional way. Those that are not lawyers are doing risk management — figuring out whether the advice of a lawyer is good, checking the implications of particular courses of action, trying to figure out what they’re expected to do. Among those who are lawyers, a large number serve the public, either as government officials or as workers for non-profits and public service organizations of all kinds. Our LIIBULLETIN subscription list is fascinatingly democratic — it includes schoolteachers, professors, insurance guys, cops, the members of the Supreme Court practice group at Akin, Gump — and many, many others.

I like to avoid platitudes when I can. In a place where the justice system has no access to the precedents on which it is supposedly built, the argument for open access to law is all too obviously an argument for a fundamental human right. But, even (or perhaps especially) in developing countries, it is also a practical argument about how difficult it is for people to discover the legal framework for starting a business, buying and selling things, hiring and firing, and so on. No matter where or who you are, finding out what you’re expected to do can be expensive and troublesome. One compelling reason for open access to law is that it should be neither of those things. People in all sorts of places, for widely different reasons, have a right to legal information and practical, powerful reasons to use it to make their situation better.

These are things we’ve said before. They’re compelling and true. But they don’t really show the LII as the uniquely valuable activity that it is. That’s a much more difficult case to make. It lacks the overtly emotional grab-points that cause people to give reflexively, and that fundraisers love. Let’s try something a little more thoughtful instead. It goes like this:

Increasing numbers of people and institutions can publish law, many people and institutions already do, and soon many more will. Some of them are late to a party they should have joined long ago — particularly those courts that are only now offering open access to their decisions. But there they are nonetheless. Their efforts at self-publication are being substantially assisted by other open-access providers like AltLaw and public.resource.org. We applaud these guys, and we help them when we can. We’re also different from them in one important respect: we’re looking ahead to what will need to emerge once everyone is publishing what they should. Within cramped resource constraints, we’re working to figure out what a seamless, highly usable, multinational legal information commons would look like and how it might be built from the isolated, individual collections that now exist. We’re constantly thinking about how to integrate caselaw, statutes, regulations, and explanatory material in ways that make the whole greater than the sum of the parts.

We like synergy because we’re made of it. The LII is unique in its location: affiliated with a graduate law program, inside a research university where, among many other things, you can find many of the digital librarians who did the fundamental architectural work on the emerging global structure that supports electronic publishing, world-class researchers in language technologies, and — significantly — very smart students who don’t hesitate to jump the boundaries between these disciplines. In the fifteen years that we have reliably provided public access to legal information, we have made great use of the efforts and insights of a wide variety of people in creating pathbreaking, innovative services and techniques now used by many.

As time has gone on, we have found this harder and harder to do. Most of you know that we do this with very few people: just six of us for three quarters of a million web pages. That staff is adequate to maintain and improve what we’re doing now — but we have little time free to do what we do best, which is to conceive and develop next-generation services. That is so for two reasons. Our maintenance responsibilities grow with each new database and service. And, after 15 years of Web development, innovation has become an expensive effort demanding time and talent in increasing amounts. In 1992, my co-founder Peter Martin could spend a snowy afternoon marking up the text of Two Pesos v. Taco Cabana in a new thing called HTML and produce something the world had never seen before — the first Web-published judicial opinion. Projects with comparable impact now take teams of people working for months. We have many more such projects on our list than we can possibly do. We would like to narrow the gap between our reach and our grasp, and with your help, we will. While we’re not (yet) announcing anything as complicated or ponderous as a traditional fundraising “campaign”, we would like to be raising an amount equal to one dollar each year for every repeat visitor we had to the site last month.

If you’ve taken the trouble to read this much of this blog post — cheerfully self-serving as it is — then I’m going to assume that you’re fairly committed to us and our cause. I’d like to impose on you by asking you to do more — not an increased dollar contribution, but something much harder. Please help us persuade others to join you in supporting the LII. Many of our supporters are lone individuals among many in an organization who know and value what we do. We need volunteer “recruiters” to bring others into the fold, and you can help. Just ask somebody you know who uses the service whether they’ve thought about how it’s done, who does it, and whether they think those LII folks drive fancy cars. (I don’t, personally, and you already know what I do with the old ones).

Direct support by our users is, for us, the best kind of support. It is free of partisanship and of imposed research agendas. It is a vote for what we are, and what we might become, and not what somebody else wants us to be. We need more of those who use the service to support us — and we need those of you who already make donations to know how very much all of us here value them.

Thanks again, from all six of us. We look forward to hearing from more people like you.