Why

• The rationale for open access

  • http://blog.law.cornell.edu/voxpop/2013/05/31/6-goals-for-public-access-to-case-law/
  • http://firstmonday.org/ojs/index.php/fm/article/view/1193/1113 (Poulin)
  • http://law.bepress.com/unswwps-flrps12/art9/ (Greenleaf, Peruginelli)
  • http://blog.law.cornell.edu/voxpop/2009/03/01/what-is-a-legal-information-institute/ (Anderson)
  • http://sarahglassmeyer.com/?p=1104 (Glassmeyer)
• Economics
  • http://liicr.nl/10YVinW  (Bruce)
  • http://blog.law.cornell.edu/tbruce/2008/07/13/the-lii-and-cold-forming/ (Bruce)
• Policy
  • http://blog.law.cornell.edu/lvi2012/overview/track-3-free-law-and-government-policy/ (all policy presentations from LVI2012)

How

• Strategy

  • http://www.law.ed.ac.uk/ahrc/script-ed/vol4-4/greenleaf.asp (Greenleaf)

• Sustainability

  • http://blog.law.cornell.edu/voxpop/2011/08/15/reaching-sustainability-of-free-access-to-law-initiatives/ (Badeva, Moncion)

• Tech and hands-on

  • http://blog.law.cornell.edu/lvi2012/overview/track-4-application-development-for-open-access-and-engagement/  (all of the app development stuff from LVI2012)

More

• The relationship between open access and commercial legal information providers

  • http://blog.law.cornell.edu/lvi2012/presentation/track-2-headliner-david-curle/  (David Curle)

  • http://blog.law.cornell.edu/voxpop/2009/04/16/legal-information-public-and-private/ (Dan Dabney)

  • http://blog.law.cornell.edu/tbruce/2009/04/17/what-are-we-about/  ( me)

• The future

  • http://blog.law.cornell.edu/tbruce/2012/05/13/on-stovepipes-barstools-and-bagels-with-a-mangy-dog-thrown-in/ (me)

• The history

  • http://www.nyulawglobal.org/globalex/Legal_Information_Institutes.htm

I was struck by your tweet during the Legislative Data Transparency Conference from a couple of weeks ago:  “If the gods reached down and banished all PDFs from the face of the earth, I’d be fine with that. #ldtc”

 Maybe I don’t understand your tweet.  If you believe legislative docs shouldn’t be rendered in PDF, how should they be rendered?  For legislation, PDF serves a critical function – it is a publicly available rendition of the legal paper document.  The concerns I have with the idea of sole use of non-PDF formats (i.e., XML) are: (1) authenticity, (2) missing page and line numbering for navigation and amendment language, (3) access time to load XML+XSL over the web for large files, and (4) dropped or added text due to XSLT errors and updates.  I’d prefer that you ask the gods to include the source documents in all government-created PDF files – regardless of source file format.

 What’s your beef with PDF?

This came from a guy who has worked with legislative data much longer than I have, knows Congressional documents cold, and generally has an excellent idea of what he is doing.  I have a lot of respect for his judgment.  I have three practical responses, one impractical one, and a conclusion that actually agrees with his, though somewhat reluctantly:

1) The idea that authenticity is tied to a particular rendering format is simply wrong, though the use of PDF for this purpose is comforting for those who crave a format that is recognizably print-like.  That’s been talked about in many places, notably in recommendations to the House of Representatives Bulk Data Task Force a couple of years back.

2) Missing page and line numbering is indeed a problem during a limited,  strongly-bounded portion of the legislative process. I believe it has been solved elsewhere using  XML (at least if my notes from the UN ICT and Parliaments meeting on open document standards, held at the House of Representatives in 2012, are correct, though they may not be).   It is certainly possible to represent page and line numbers in XML, though it is awkward, difficult, and maybe impossible to round-trip XML to and from PDF if the PDF is altered.

 But wait, why? Get rid of page and line numbering, because the new media don’t use pages.  Judicial opinions are moving, however slowly, to paragraph numbering for purposes of citation, although those don’t supply the granularity needed for amendment — unless you make all of your amending processes use the paragraph as their minimum chunk.  Better still would be to use a point-in-time drafting and publication system for the full lifecycle of the legislative drafting, passage, codification, and publication process.  The Australian state of Tasmania has been doing this since 1997.  Of course, this is the impractical response I mentioned. Congress is unlikely to change anytime soon (and I have been one of the loudest in saying that application developers are being unreasonable when they expect it to).

3) Access-time issues are a red herring.  The data may bulk larger than PDF (I would want to see that tested over a wide range of samples before I’d buy it completely), but for viewing purposes you’d almost certainly pre-render it as HTML.

4) Problems with dropped or added text owed specifically to XSLT transformations are either a red herring or a truly frightening commentary.  Anything wrought by human hands, especially when the power of the human hands in question is augmented by a computer, can be done badly.  If we banned all technologies that have the power to alter or drop text from electronic publishing systems, we would have no publishing systems.  If the argument is that XSLT is more likely to produce bad results than other technologies, I sort of agree, while still finding the risks acceptable. XSLT feels closer to a declarative programming language like Prolog (remember Prolog?) than anything else, it’s hard for procedural programmers to master, and yes, it can make a big mess.  But there are lots of people who are quite comfortable using it in all sorts of bet-the-farm business operations, and there’s no reason to think it would do any worse in government.

But that’s not really what’s griping me, or him, come to think of it.  He asks what my beef is with PDF.  Here it is:

http://www.aphis.usda.gov/animal_welfare/downloads/violations/2007violations.pdf

This is most certainly not a Congressional document, but it is a perfect example of what is wrong with PDF when it is put in risk-averse hands.  It plainly got its start in life as a spreadsheet.  And someone thought that publishing it as a spreadsheet, in a way that allowed parsing and repurposing of the data, would be somehow dangerous, so hey presto, PDF.  More likely, they didn’t give it a moment’s thought; PDF is just how you do things.  In this particular case, it’s all the more painful because the responsible party actually put data in the spreadsheet that would allow you to very usefully link its contents to the relevant parts of the CFR.  So close, and yet so far.

So I guess I have two beefs with PDF, not just one:

a) It can’t be easily parsed or otherwise processed by computers.  It locks up text in a way that prevents anyone but a human reader from doing anything with it (yes, I am aware that authenticity-scolds see this as a feature).  That is not news.

b) It presents an almost irresistible temptation for the risk-averse, who see it as a safe, comforting format that is beautifully like their beloved print products and, best of all, prevents recompilation of data.  The ability to repurpose data implies the ability to reconsider it in ways that might lead someone to question the conclusions drawn from it, or otherwise do something you might not like, and that is a very scary possibility.

My correspondent is absolutely right that the solution to a) is to publish in parallel formats — PDF for human readers, original manipulable electronic format for those who need to process, mark up, or otherwise work with the text or data in fluid ways.  I wholeheartedly agree, and hereby amend my request to the gods.  Fortunately, the gods do not use PDF for their Official Request Forms, so I am able to do so in place with no need to reissue it.

 But I wonder how likely we are to see a solution to a) given that we have no solution to b), and apparently no hope of one.  I would like to believe that a few solid projects and demonstrations would bring people to the point where they would make proper use of PDF, because they had somehow seen enough functionality in non-PDF environments to change their minds about the risks.

I really have no idea whether that is possible without banning PDF altogether.  It is an attractive format for those who find print comforting, and for those who worry that somehow allowing any use of data will result in some form of misuse. It is, in fact, too attractive. We have nearly 20 years worth of demonstrations that publishing data in formats that allow repurposing is a really, really good idea that saves money and promotes innovation, and there has been no response.  That leaves me unsure whether we can get everyone on board with that idea without making it impossible for them to do anything else, because we have seen far too little of the change that would validate a just-build-it-and-they-will come strategy.

So, sure, I agree.  Dual-format release is the way to go, I guess, at least in the areas where PDF can justify its existence.  But I would rather that the burden be placed on PDF to prove its worth, rather than on open data formats.  Peter Drucker once famously recommended that a large company begin cleaning up its management practices by banning all reports and only allowing individual reports to return if the author could provide compelling written justification for them.  That might not be a bad way to go.

These days, people  are sticking legislation into GitHub at a furious pace.  It is all the rage among the legal-information smart set.  The whole thing seems to have started about fifteen months ago with a quote from a toiler in the vineyards of the New York State Senate, written up in Wired, the Boy’s Life of the technorati.  Said he: “I’m just in love with the idea of a constituent being able to send their state senator a pull request”.

I could speculate hilariously as to what some of our scandal-ridden New York State Senators might think a “pull request” is, but that’s neither here nor there.  A lot more people appear to be just in love with this idea, too, because in the last year there has been a rising tide of legislative gittification here and elsewhere around the globe.  I myself am just in love with the name of the German “BundesGit” project,  which the smart money is putting at 5 to 1 to win the Greatest  Cognitive Dissonance Packaged in a Compound Word category at this year’s Noamy Awards.

Trouble is, I’m not so just in love with gittification as everybody else seems to be.  Here’s why:

Git and GitHub are, collectively, a fine revision-control system, and a good system for distributing and managing open-source coding efforts like the ones at https://github.com/unitedstates. Unfortunately, straightforward revision and versioning are not really what happens with most legislation hereabouts. American Federal legislation is not a straightforward revision process at all.  That is especially so when post-hoc codification results in an issue-centric bill being splattered all over the topical map of the US Code.  Other jurisdictions — notably civil-law countries — at least pretend to have a more rational process for legislative revision, though I am told that in practice it is not so pretty as all that.    They are, by and large, having some success with FRBR-based models which closely resemble revisions control, but for a number of reasons those don’t work as well as they might for Federal legislation.  Simple processes in which a single version of  text is successively modified and the modifications absorbed into a series of versions and branches are not quite enough to map the eddies and backwaters of our process, in which multiple competing drafts of a bill can exist at the same time, bills can be reintroduced in later sessions, and so on.

I am far from the first person to make this point.  Others have done so very effectively right along,  but the story does not end there. The beauties of revision management do not  explain why we are hearing so much git-love.  There must be more to be just in love with than the idea that you might keep track of changes in the language of a bill.

I think there are three pieces to it, really.  One is the idea that somehow the gittification paradigm describes what  the system *ought* to be, and represents the aspirations of its proponents; one is the idea that putting law in github somehow magically puts ownership of the law where it belongs; and one is the idea that gittification is somehow democratizing.

As to the first, everybody would like a simpler system.  Belief that putting the text into a particular instrument could or would bring that about is a species of wistful, wishful thinking that is the unique province of technicians.  Technical people of all stripes believe that about a lot of things — the idea that somehow just having the right tool changes both the materials and the quality of the workmanship are an understandable and appealing part of the romance of geekdom.  And sometimes a change in tooling brings about an unmistakable and positive change in way things really are. I am thinking, for some reason, of the invention of interchangeable parts, which obviously brought about vast changes in manufacturing and ultimately in everyone’s standard of living — and also gave rise to a crop of industrial utopias founded in the belief that virtue would flow from industrial organization:  the Ephrata Cloisters and New Harmonies of more a century-and-half back.

I’m OK with certain amount of techno-utopianism; a lot of good ideas got their start in those cloisters.  But the romance of gittification is part of a  more expansive intellectual conceit — the idea of law as code.  Lessig brilliantly described idea of code (and technology generally) shaping behavior and potential in ways traditionally reserved for law.   But code-is-law is not reversible into law-is-code.  There are lots of reasons why not; some are facets of the process by which law is created, and some have to do with how the language works and what it is expected to do.  Law is nowhere near as deterministic or precise as code and the process that creates it is a lot messier. There is often carefully calculated imprecision in statutes and regulations.  Geeks don’t like that, because they want law to be more computationally tractable,  and they  often say so loudly in the same forums where legislative gittification gets a big round of high-+1s. Imprecision has a very valuable purpose in law, where flexibility of interpretation is often desirable, and not so much in code.  If you want to know what “law is code” looks like, consider the rigidly precise algorithms of the Federal sentencing guidelines, or the “three strikes” law, and tell me if it looks like Utopia to you.

But I’m just being cranky, sorta.  There’s nothing wrong with romance, even if it is unlikely to produce meaningful change,  so long as we avoid confusing it with having actually caught the unicorn.  There is also a lot that is admirable about a community wanting ownership of the law that it is expected to live by. The slogan of SwaziLII — an open-access legal publisher in Swaziland — is “kwetfu” .  It means “it is ours”.  In South Africa, visitors to Johannesburg are shown, with great pride,  the public monument to the 1994 Constitution.  It’s important that people feel ownership of the law.  Postcolonial societies feel it strongly, and they celebrate it and they build monuments to it.  Geeks stick things in github as a way of claiming it for their culture.  In that respect gittification is a symbolic act that says a lot about where we are in 2013 and why.   I respect the symbolism, and think it’s a shame that we have been collectively driven to such a need to reassert ownership.  I just don’t want to confuse the symbolism with something that improves the substance.

But what about democratization?  We may be just in love with the citizenry submitting pull requests, but that doesn’t mean the citizens have any idea how.  And it is a little disturbing to think that we might be subconsciously restricting our definition of citizenship to those who can submit pull requests.  I say that mostly for effect — I don’t think that anyone is being consciously elitist here.  But I do think that many of the same people who celebrate gittification also routinely (and loudly)  condemn government behavior that is unwittingly exclusionary in exactly the same way that GitHub is. It’s natural for technicians of all stripes — whether they are legislative,  political, and policy wonks, or people who frequent hackathons, or all of the above — to become so acclimatized to their own technical knowledge and environment that they forget that others just don’t have a clue about any of that stuff, and are effectively shut out.  The biggest problem with legal information has always been that the people who create it have no reason to realize that there is a problem with access, because they themselves have it.  And in that respect the Gitterati are no different.

Once upon a time, regulations.gov was useless if you didn’t know a lot about what agency regulates what. Today, you can’t be a citizen of  New GitHarmony if you don’t know how to turn the knobs of GitHub.  That’s not an argument against making systems that permit citizen participation in the legislative process. I’ve never liked the sort of don’t-bring-gum-to-school-unless-you-bring-enough-for-everyone, digital-divide arguments that some use to bludgeon Internet projects.  You have to start somewhere, and maybe it’s worth remembering that we haven’t shut down the libraries because the basic literacy rate in the US is under 100%.    But don’t imagine for one moment that an average constituent is going to submit a pull request.  And think about who you’re really speaking to.  As of January, 2013, the population of the United States was estimated at 315,968,000.  GitHub claims 3 million users, not all of whom are in the US.  Sounds an awful lot like the 1 percent to me.

There are two distinct peaks in traffic:  on the Monday following the Friday on which the shootings occurred, and on Jan. 16, 2013, the day that President Obama announced a series of executive actions to reduce gun violence.  The second peak showed well over 23,000 viewings of a page that, before Newtown, received an average of fewer than 500 views per day.

So far as states go, Maine had the largest increase in Second Amendment views (3090%), followed by Alaska (2890%), Idaho (1843%), the District of Columbia (1826%), and New York (1584%).  As of January 11, it was anticipated that Maine legislators would submit 40 to 60 bills supporting some form of gun control during the upcoming legislative session. Alaska’s Speaker of the House recently introduced legislation that would make it a misdemeanor to enforce Federal gun-control laws in the state.

A quick survey of tweets linking to our Second Amendment page shows opinion being divided almost evenly for and against.  So far as public opinion goes, there’s no conclusion to be drawn from these statistics.  But one thing is certain:  in 20 years, we have never before seen a single topic (Constitutional or not) drive so much interest over so sustained a period.

[NB: Taken together, some of the statistics seem incongruous.  The reason, I think, is differences in sample sizing between different parts of Google Analytics, which can generalize from as little as 3% of our total traffic for some purposes.]

A quick history

Graham Greenleaf’s excellent paper on the principles underpinning open access to law gives a detailed evolutionary history that I won’t attempt to reproduce here; I recommend the paper to those interested in the gory details.  Broadly, their history is divided into four periods:

• The initial formulation of the Montreal Declaration on Free Access to Law in 2002, which set out aspirational principles
• A period of subsequent amendment and refinement, lasting until 2007, which might be thought of as an ongoing effort to accomodate different national contexts and business models
• The creation of a further set of principles, somewhat overlapping those of the Montreal Declaration in a meeting sponsored by the Hague Conference on Private International Law in 2008.  Here, the focus was more on what could be done to facilitate authoritative answering of questions about national law beyond national boundaries.  The result was a series of recommendations for further work that incorporated a list of principles.
• Finally, the Hague Principles were further refined in a joint meeting sponsored by the Hague Conference and the European Commission in 2012, resulting in another recommendation.

I don’t know enough about the workings of international conventions to assess the importance of these documents and actions beyond their value as endorsements from quasi-official bodies.  It is hard for me to imagine that a national government would read of these goings-on and, quaking in awe, immediately put all of its statutes and regulations online for free.  I am told by my colleagues who actually negotiate with national governments that such things are persuasive, and I believe them. More to the point for my purposes here, I think it’s very important to understand them as more than non-controversial, ringing statements about justice and democracy. Most of the principles we endorse were motivated by very practical concerns and create very practical benefits.

Motivational factors

To understand the real importance of the principles, I think it’s important to remember why we actually publish legal information.  It’s not an activity carried out for its own sake.  Rather, it enables people to do things.

Functions of public legal information

Public legal information does more than simply saying what the law is. Knowing what the law is has incredible value if you are involved in a legal proceeding, of course. But it is also very helpful to think about scenarios in which the legal information consumer is not a lawyer or a party to a dispute, but someone who is trying to find out how the law might affect future plans. In such contexts, making legal information widely available:

• provides a showcase for the activities of official bodies. In the US, legislatures were much quicker to put their work online than the judiciary was, for precisely this reason. Even now, the House of Representatives is leading US Federal efforts at transparency.
• advertises economic opportunity to outsiders, and helps them to assess and manage risk. Those interested in direct foreign investment want to know what the rules are.
• helps businesspeople at all levels plan for the business climate. Tax laws and regulations that affect products and services are like a weather report for the business climate. Making that information widely available in a way that reduces the cost of discovering and using it has a beneficial effect on business at all levels. Unfortunately, there is not yet a comprehensive study of how information-discovery problems might affect assessments like the World Bank’s “Doing Business” survey, but it seems obvious that there is some direct relationship between the cost of finding the law and the cost of compliance.
• offsets corruption, which often has its roots in asymmetries between what citizens and officials enjoy in their access to and understanding of legal information.
• helps to form transnational communities of practice by offering a rich pool of examples. For instance, those who want to know how a particular policy has been implemented in legislation can see what those in other jurisdictions have done with the same policy. Judges can see how judges elsewhere have thought about similar legal controversies. This kind of activity is particularly useful (and in the US, visible) in areas of law where no strict precedent can exist across jurisdictions, but where individuals emerge as “thought leaders” about particular problems that pertain to many.

Practical concerns

It is helpful to pause for a moment and think about a few implications of this:

• Potential users of legal information include anyone who is impacted by statutes or regulation. We talk about the “public”, but there are a lot of “publics” with different needs.
• Motivations for providing legal information are many, and not all are within government. There is no more likely publisher of safety regulations than someone who sells safety equipment.
• Needs for legal information intersect providers of legal information in a way that creates numerous niche markets, a combinatorial explosion that is multiplied further by jurisdictional boundaries. This goes significantly beyond primary sources into analysis, commentary, legal news services, and other secondary materials developed for particular industries, different parts of government or the NGO sector, trade associations, and so on.

In these respects, it can be seen that barriers to legal information flow are barriers to economic activity and to the work of government generally. In economic terms, it may also be helpful to think in terms of three information-seeking scenarios that were extensively discussed by the invited experts at the Hague Conference meetings in 2008 and 2012. All three involve the discovery of authoritative legal information across national boundaries, but are very different when it comes to the bottom line:

• A scenario involving litigation between wealthy parties from a number of jurisdictions. Imagine, for example, a construction project in London with UK backers, a German general contractor with numerous EU subcontractors, and loan guarantors in the US. Something falls down, and suddenly everyone is suing everyone else.
• A scenario involving a German man who marries a French woman, moves to Denmark and has two children, and then wishes to be divorced.
• A lawyer with a client whose business interests are being extended into a new country in the region.

All of these people have essentially the same problem, but their ability to pay for solutions is very, very different. In that respect, the wealthy end of the market has always been well served. Much of the time, others have not done so well.

The Principles

Between the Montreal Declaration and the 18 principles that resulted from meetings sponsored by the Hague Convention and the European Commission, we have a lot of principles. In the interest of time, I’ll mention only a few, concentrating on the reasons why following the principles is not only the right thing to do, but a good thing to do. The two most important ideas are:

• Open access. Creators of laws and legal documents should make them widely available without fees.
• Republication. Law creators should not impede the republication of their materials in whole or in part by third parties, whether by copyright claims or other constraints.

A third major idea follows the idea of republication quite naturally:

• Open standards. Wherever possible, legal information should be promulgated using open technical standards that make republication and re-use easier. That would seem like a very natural thing to do, and it is, but it is often set back by the use of (e.g.) proprietary and difficult-to-use publishing formats like PDF, or by the use of proprietary publishing systems and approaches that (eg.) donor nations sometimes promote in an effort to advance the interests of technology companies based at home.

A fourth “big idea” results from pursuing the first three ideas beyond a single jurisdiction:

• International cooperation. People involved in open-access publishing should help each other, across jurisdictional boundaries.

Open access

Open access is, as a matter of principle at least, fairly non-controversial in most democracies; the idea that ignorance of the law is no excuse quite naturally gives birth to the idea that the law should be widely known. The “free” part of “free and open access” presents greater problems, particularly in jurisdictions that are already receiving revenue through official publication and sale of information, or by entering into exclusive arrangements with commercial publishers. Those are very natural temptations, and it is often genuinely difficult to decide between short term recovery of the cost of publication and the long term benefits of having the material more widely available. That is especially true for cash-strapped governments nowadays.

Such problems could be solved directly if it were possible for law creators to think more about the long term than the short term, but that seems unlikely. What is important, I think, is to work on the problem a piece at a time. Reducing the cost of publication — something that is certainly helped by electronic distribution — reduces the need for cost recovery. In the United States, Arkansas has abandoned paper publication of its judicial opinions as a cost-saving measure (though sadly their state statutes remain in the hands of a private publisher, behind a set of copyright restrictions); others are considering similar moves toward publishing in electronic form exclusively. Targeted experiments — free release of law related to direct foreign investment, for example — can show very quick economic gains that argue for wider availability online. And careful assessment of profit-and-loss on official publications often shows that they are not really so lucrative as government publishers would like to believe. Finally, it is worth pointing out that, in the process of making laws, most lawmaking bodies consume a great deal of legal information themselves, spending a lot of money in the process,  and it is important that they understand that they will participate heavily in the benefits of a more open regime overall.

The larger group of 28 principles spends a substantial amount of time on questions such as authenticity — the idea that we should find the means to guarantee that published legal information is usable in all official proceedings no matter who the publisher might be. This presents a fair number of technical problems, but it is also an obvious need; legal information isn’t usable without authenticity. For many, “authenticity” translates to “PDF”, but that is a false belief. As my colleague Eric Mill points out, there are many less expensive ways of guaranteeing the accuracy and “officialness” of an electronic document while keeping it usable for republication.

Republication

Republication is often held up as a kind of transparency principle that seeks to guarantee the ability of third parties to spread knowledge of government operations. It’s more helpful for our present purposes to think of the principle of republication as “the principle of enabling new products and services that the original publisher didn’t think of or didn’t care about”. Our earlier discussion of diverse audiences makes it clear that no single publisher, official or not, could identify and service all the niche markets for legal information services. And when we think in a regional context the need for innovation beyond single-jurisdiction government bodies seems all the more obvious. Most of the time, law creators are concerned first and foremost with the needs and problems of their own jurisdiction. The impetus to create products that (for example) survey laws across multiple jurisdictions will come from third parties. Those third parties — yourselves, perhaps — need the freedom to repurpose single-jurisdiction information in novel ways that serve needs beyond those of a single jurisdiction. They need to be able to do that with only minimal encumbrances.

Open standards and FOSS

Sometimes, one of those encumbrances is the data itself. Data that is locked up in proprietary formats that are difficult to repurpose and reuse is not especially helpful to third parties, and can greatly limit what it is possible for others to do. In the US, this has persisted as an issue long past the point where most systems were opened for public viewing; those interested in the details of how such a problem plays out can look at a recent report regarding THOMAS, the system that makes pending Federal legislation available to the public. The overall point is that the easier the data is to work with, the more innovative products you will get. While the principles do not explicitly mention the use of FOSS (Free and Open Software Solutions), most governments are beginning to look to these as reliable, low cost solutions. A community of practice is emerging around open publication of law, and it emphasizes the use of FOSS because of its availability and low cost, because of the size of the talent pool that knows how to use it, and because a common use of particular FOSS solutions makes cooperation and assistance among open publishing operations much simpler.

Of late, attention in the technical community has turned from the use of nonproprietary formats in document publishing to problems of interoperability between different document collections. By way of illustration, you might think of “interoperability” as “being able to find out what the comparable regulation in another jurisdiction is”. This is highly technical stuff, but the use of interoperable standards such as CEN/Metalex, AkomaNtoso, OAI/PMH, and the use of Linked Open Data standards can do a great deal to make the whole greater than the sum of the parts in terms of the services that can be delivered from open pools of information. The principles do not insist on this, but it is a clear corollary that emphasizes the importance of maximizing the usefulness of what we create together.

Scott Greenfield has written a rather scathing critique of Clay Shirky’s talk at the 2012 Law via the Internet Conference.  From where I sit, it is a companion piece to an earlier e-mail he sent me,  questioning my good taste in inviting Mr. Shirky. [ The claim that he had e-mailed me, it turns out, is untrue.  At the time we invited Mr. Shirky, I received mail from another individual with similar views and I misremembered.  My sincere apologies to Mr. Greenfield on this point, but the next sentence still holds. He also claims not to have attacked the LII, which I address below in a comment.]  That’s not at issue here, and neither is the exuberant trollery that makes up the first half of Mr. Greenfield’s cri de coeur and the last half of his title.  For those I have no comment.  He misconceives what we do here at the LII, and that’s disappointing, certainly, but it’s also common.  It’s the common nature of the misconception, and not the uncommon rudeness of Mr. Greenfield, that moves me to respond.

Some years ago, I was asked to do a guest appearance in a legal-process seminar here at Cornell, not because I know a damn thing about legal process, but because there was some interest in the relationship between that and legal publishing.  There were 13 or 14 students in the room.  I told the students that, as a publisher, I was unusually interested in the idea that ignorance of the law is no excuse. But rather than ginning up a pretend-law-professor’s dialog about the implied obligations of the state, I asked them to imagine for themselves just who might be ignorant and what they might be ignorant about.  Most of the students stopped a hair short of the implied melodrama of a pro se defendant in a murder case, but almost all said that the setting was a criminal matter of great seriousness, and the ignorant person a non-lawyer. No misdemeanors for these kids.  The lone exception was a German LLM student who said, “Hell, no, it’s some guy who’s got a problem with a regulation”.

There’s a great tendency among both lawyers and the public to confuse what we do here with providing the scaffolding for pro se people.  They’re a vanishingly small part of our audience.  Many of the people who use us appear to be non-lawyer professionals who have some continuous need for legal information but are not lawyers — think, for example, of police officers or of hospital managers doing public benefits law, or of anyone in a regulated business.  Most of the rest are lawyers themselves, often lawyers in other countries or lawyers in small firms, solo practice, government, and other practice settings that are economically disqualified from access to the expensive online services that WEXIS provides.  Some are in the neighborhood where Mr. Greenfield hangs his shingle: people who are having serious, traumatic encounters with the legal system.  We have no way to tell for sure how many are representing themselves, or about what if they are.  We do have some indicators: the e-mail that’s thrown over our transom is about 20 times as likely to be about someone who wants help in finding a lawyer, or wants to complain about the lawyer they found, than it is to be from someone who thinks they can get by without one.  We also know some helpful statistics:

• Unique pageviews on the site over the past month: 5,587,154
• Unique pageviews for Title 18 of the USC: 204,023
• Unique pageviews for the Federal Rules of Evidence: 233,208
• Unique pageviews for the Federal Rules of Criminal Procedure: 393,637

These are all the resources we offer that I can imagine being of interest to a criminal defendant, although I do omit a few significant and likely attractive Supreme Court cases like Miranda (998 pageviews).  That’s more than made up for by the fact that I’ve attributed all the Federal Rules and Federal criminal statute traffic to non-lawyers, which is surely far from the case.  So, taking even this generous view of our criminal traffic, the total is just shy of 15% of our overall usage.  People are here for other reasons.

For non-lawyers, most of the usage can be categorized as either self-education or risk management.  They simply want to know what the law says about something they think they might do, something that has happened to them, something a lawyer or another professional has told them.  They are assessing consequences. They’re doing the same kind of self-help that people do with WebMD, in other words.  I suppose we are unfortunate in that most misuse of the LII would not limit mischief by provoking the same Darwinian benefits as might accrue to self-prescription in WebMD, but we’ll get by.

The idea that ignorance of the law is no excuse arose first in Roman law, but was prominently stated in English by Sir Edward Coke in his commentary on Littleton’s Tenures in 1628.  A few pages later, Coke raises the bogeyman of self-harm, and it’s been alive and well ever since.  But, honestly, it’s really some guy with a regulatory problem.  Mr. Greenfield would, at this point, pivot and tell us that his problem is not with reading but with interpretation and commentary, which was pretty much Coke’s position too. (Actually, Coke’s main concern was seeing to it that people could read the law in a language that was open to the English-speaking nobility, a goal that Mr. Greenfield would surely embrace.)

What about interpretation and commentary?  It’s worth observing that public comment on regulations is often a requirement.  And, frankly, if every commercial activity that is potentially touched by a statute, regulation, or judicial opinion required interpretive intervention by a lawyer, economic life in the United States would come to a standstill. Clearly there is a lot of non-lawyer interpretation, and yet the bodies are not littering the streets.  Sure, the BoingBoing crowd likes to go on about freedom and democracy and other high-sounding things, as with any political commentary, but so what?  Second-guessing is not yet a crime. If it were, Mr. Greenfield would have a lot more business, and perhaps that’s the point.

A little over two years ago, I posted a piece titled “Big World”  here.  The occasion was the inauguration of our now-very-successful VoxPopuLII guest-blog, whose theme might be summed up as “good ideas about legal informatics from all over”.  You could say the same thing about the Law via the Internet 2012 conference that we’re hosting in October.  The theme is “good ideas about putting law on the Internet, from all over the world”.  This post says a little bit about why; the main points are six:

• The small group that led the trend toward open access to legal information is now a vanishingly small part of the community that is providing open access to law via the Internet.  That community has members who are situated in government, in non-profit organizations, in for-profit organizations that offer legal information freely as a kind of service to their audience, and in every other kind of institutional setting you can imagine.
• Once upon a time, “legal information” meant “judicial opinions”.  Now we are faced with the much more difficult task of making statutes, regulations, and other materials available in a timely way.
• Technology has not stood still. Linked Data and other Semantic Web techniques offer substantial opportunities and even greater challenges.  Developments in digital librarianship in other fields are substantial and useful, but largely unused within the legal-information world. 
• The community of people with an interest in legal information as a socio-technical phenomenon is larger than ever.  It takes in librarians, information scientists, businesspeople, government officials, policymakers and policy advocates, social and political scientists, and many, many others.
• The sustainability challenges that face open access are substantial. (“Sustainability” is a polite, non-profit phrase that means “business”, and, increasingly, “how to buy groceries when your customers don’t pay for your service”). It is, let’s face it, hard to develop revenue streams when you give away your product.  Open-access providers outside of government, and sometimes inside it, are developing innovative models to pay for open access on behalf of those who actually make use of their services.
• The national contexts in which all of these challenges are posed and met are hugely different — in history, in legal context, and in priorities.

There is much that we can learn from each other.  LVI2012 is meant to be an opportunity for that.  While we have Clay Shirky, Richard Susskind, and an impressive, global crew of experts giving talks and chairing and headlining tracks, the real expertise will be among the attendees.  We’ve paid attention to that in the way we’ve structured the schedule.  This won’t just be a parade of people reading papers.  There is lots of time for conversation, and we put a premium on exchange.

Open access to law via the Internet started here at Cornell in 1992 with an offering of Title 17 of the US Code. We used a now-forgotten protocol called Gopher.  Just yesterday, we put up .mobi and .epub versions of Title 17 in the Kindle and Nook stores, which tells you something about how far both the technology and the consumer have come in the meantime.  But the real story of change over two decades is a story about an explosively growing community that provides people with information about the law that governs them, without fees. It’s about what that community knows and how it knows it and how what it knows makes things better for people.  It’s about that community getting to know itself and what it can do and talking to itself about what it should do and how.

That’s what we’re doing in October.  We hope you’ll join us.

PS:  Registration fees go up at the end of the week.  Register now.

This week has seen some remarkably silly twists in the story of bulk access to legislative data from THOMAS (reported succinctly by Rob Richards, with links from that article to many others that tell the story in greater detail).  As usual when this particular fight starts up, I have an almost uncontrollable urge to say, “WHOA, WAIT, STOP! I don’t give a rat’s ass about accountability, but I care a lot about bulk data”.  Because let’s face it, folks — the bulk-legislative-data story is almost always told from the perspective of people whose primary interest is in using that data to promote greater government “transparency”, which almost always translates to “holding the bastards responsible for whatever they did that we consider bad”, or “scaring the hell out of the voters so they’ll rush toward whatever we consider good”.  There may be good reason to do those things, which are political acts.  There are, equally,  a thousand absolutely apolitical reasons to offer bulk access to legislative information, and they tend to get lost or overlooked in the general din around accountability.

Think for a minute:  accountability is just the backward-looking part of the story.  Even better, for some audiences, would be to have some idea of what Congress has done or is likely to do for some entirely non-political business purpose.  Think, for example, of non-profit organizations that are heavily dependent on contributions and bequests.  It’s important for them to know what’s going on with estate taxes, nonprofit tax exemption and so on.  And by “what’s going on”, I definitely mean not only what happened already, but what’s pending, who’s supporting it, what the language is likely to be, who’s amending what, and so on.  That predictive value also exists for, well, anyone else who’s taxed, or regulated in ways that are subject to direction or manipulation by Congress, and so on.  From that perspective, accountability is only half the story.  Monitoring and prediction are important too.

Aside from accountability and predictive value, there are no doubt ten million other “takes” on bulk legislative data as it’s seen by niche markets of all kinds.  But I tend to stress predictive value because it supports an analogy I think particularly apt.  Through the mechanism of the National Weather Service, government provides bulk data that can be sampled, sliced, diced and repurposed by a variety of commercial and non-commercial actors.  And just as you could say that the NWS provides data that allows people to make their own weather predictions, and to create weather-related services, bulk legislative data can enable the creation of services that predict the climate for business, for social innovation, and for all of the things that legislation touches.  It’s common to talk in some vague way about bulk data “creating a climate” that “fosters  innovation” or “enables new products and services”.  That’s unfortunately vague, the more so because the specifics are astonishing.  In addition to the usual services related to accountability or to (say) environmental issues, there are very narrowcast services out there — my particular favorite is legislation related to online poker, which is apparently very closely monitored by a lot of people who report it in many publications, online and off.  There are no doubt a kajillion newsletters and niches like it.

Whatever your favorite niche, it’s clear that accountability and the more extreme version of that sport, playing political “gotcha!”,  are only two among many products and perspectives that could usefully be created from bulk data.  The accountability argument is important.  But I’m far from sure that it’s the most compelling one for ordinary people.  If we imagine bulk data from THOMAS as a data service that supports different takes on the past, present, and future climate created by legislation, the public case becomes compelling in an entirely new way.  Clearly it’s time for all of us to tell our representatives that this is about more than finding new ways to bug them.

PS: A rather less colloquial and more reasonable-sounding version of this, along with a few other arguments, can be found in testimony I gave to the Committee on House Administration about a year ago.

PPS: I lack time and patience to write at length about the reasons why concerns about so-called “authenticity” are a baseless distraction from the main issue.  I’ll charitably assume that those expressing them are not simply trying to create obstructions that protect someone’s current business model, and say that from a technical perspective it is quite possible to create systems that will guarantee the textual accuracy of anything taken from the bulk system.

PPPS: No rats were harmed in the creation of this blog post.

The LII’s 20th anniversary — that’s right, it’s been that long – is an occasion to look over the world of open-access legal publishing, to think and talk about what’s changed and what hasn’t.  I could rattle on about a number of things — and will, in future posts — but right now I’m thinking about where the original LII is headed technically, and why.

For most of the past 20 years, people who promote open access to legal information have been preoccupied with case law. That’s understandable, for reasons that have little to do with the great inherent value of putting case law out where people can see it.  In the early days, most of us were found in legal academia, a culture obsessed with the study of appellate edge cases. And — no matter what institutional base an LII was operating from — those were days when publishing the decisions of the highest appellate court available offered the benefits of  respectability-by-association, in a professional culture where novelty is suspect.  That early bias toward case law has skewed our ideas about what we are and who we serve.  Even here at the LII, where we make a lot of noise about serving a population beyond lawyers, we have spent most of our time and intellectual effort building systems for which lawyers are the primary audience.

By contrast, much of the world sees case law only as an interpretive layer that exists on top of codes, statutes and regulations.  Many also believe that there is such a thing as the straightforward application of a statute or regulation, without the need for professional interpretation. People calculate risk and decide on courses of action all the time without help from lawyers.  They doubtless do that more often than they should. Interestingly, the calculation they are making is often one about how much help they need, and it often works out in favor of seeking professional assistance.  That is why other consultive online services like WebMD work, and it is one basis for Richard Susskind’s ideas about the “latent legal market”.  There are many situations in which interpretation is needed. But there is also much that is straightforward.  The size of a truck tire or the width of a wheelchair ramp is apparent to anyone. If everyone who is touched by a regulation waited for interpretation by lawyers — much less law professors – before doing anything, economic life would grind to a halt.

But I digress.  The point is, it did take most open-access publishers outside government rather longer to get to statutes, and longer still to get to regulations.  That was partly because of the bias toward case law, and partly because statutes and regulations are difficult for under-financed publishers to wrangle – hard to parse, hard to keep current, and hard environments in which to build anything that depends on editorial conformity.  But we did get there, and in time, an array of stovepipes — case law, statutes, regulations — was built within each of many jurisdictions by many groups and organizations acting more or less independently, though with a great deal of mutual awareness.

From the beginning, it was worthwhile to break down stovepipes between those corpora by linking cross-references, building common search mechanisms such as WorldLII, and so on.   Only in the last few years — largely propelled by developments in the EU — have we begun thinking about using standards and interoperability to break down barriers and facilitate tool development among national collections in a global world (oddly — at least until recently — there’s been much less thinking about breaking down state/Federal barriers inside the US).   In the debate surrounding the Thomson-West merger in the mid-1990′s, John Lederer remarked that those charged with evaluating the potentially anticompetitive effects of the merger were ignoring an important fact: lawyers don’t buy books — they buy systems of books.  For our part, we’ve been building systems of legal databases.  We connect legal information with other legal information of a different flavor, and to the same flavors of legal information in other jurisdictions. Legal information to legal information to more legal information.   We are like a guy who, for 20 years, has been sitting on a barstool talking to himself.

Linked Open Data is a way of relating data to data, of assembling statements about things in the world from different sources.  I believe that the next few years, at least, will be about building data architectures that link law not to itself but to the rest of the world.    That is much easier to understand if we think about regulations than it is if we think about case law. After all, case law squints at concrete objects in a way that blurs them into abstractions; one lengthy passage in Llewellyn‘s Bramble Bush talks about the way that case analysis rejects irrelevant facts and  turns the remainder into inhabitants of more abstract categories and concepts.  As Dan Dabney has pointed out, the problem in information retrieval for case law is often how to get from mangy dogs to the implied warrant of merchantability.

Regulations are very often about mangy dogs and not about legal concepts.  They are about things – things that carry legal burdens and requirements that are important to people who use, work with, live with, pay for, manufacture, grow, create or are otherwise affected by those things.  How many things?  Pretty much every thing.  The other day, we gave a presentation on our use of Semantic Web technologies with the CFR to a bunch of information-science faculty and grad students.  They were sitting on office chairs in a seminar room eating bagels. I discovered that all those things are mentioned in the Code of Federal Regulations.  As was most everything else in the room, including the air.  That’s ubiquity.  That something is an object of regulation is an important fact.  And the objects themselves are multifaceted in the way they relate to the world, and often defined differently in non-regulatory contexts than they are in the regulations themselves.

The Semantic Web — and Linked Data — are very much about things, and about the ability to relate things that are not on the Web with things that are.  In a post on VoxPopuLII last year, John Sheridan of legislation.gov.uk talked about “accountable systems” — systems that embed knowledge of the legal requirements surrounding the objects they contain.  That’s one class of applications we can create.  We can also make regulatory information more accessible by simply relating it to the world of information that exists around the objects being regulated.  There is room — lots of room — for us to consume as well as publish linked data.

We just began offering one example — a trivial one, really — at the LII:

• Go anywhere within Title 21 of our newly-offered Code of Federal Regulations.
• Enter the word “tylenol” in the “Search CFR” input field in the  toolbox at the upper right, and push the button.

Your results will be meager — one CFR section that mentions Tylenol in passing.  But you’ll also get a list of suggested search terms that we pulled from the DrugBank collection of linked pharmaceutical data, and if you hover your mouse over each one you can see its definition from DrugBank.  The list may seem a little strange and expansive — it includes all of the active ingredients in all the Tylenol-branded products, including Tylenol cold medicines and sinus and allergy formulations. In time we’ll figure out how to break it out by product.  But seeing “acetaminophen” in the list helps remind the user that drugs are regulated under generic names, and that it is usually the components of a mixture that are regulated rather than the mixture itself.  Try the same thing with “Nyquil”, and you’ll find all the terms that relate to its components.

That rather simple exercise in expanding search terms by using Linked Data from another domain bridges a major disconnect between the way average people think about what’s being regulated and the way that regulators express themselves.  There are no doubt many other ways to do similar things in other topical areas.   Right now, the CKAN database of Linked Data collections contains a few less than 3500 entries.  It may be a little hard to figure out what use we might make of the Greater Manchester Bus Timetable, but easier to see how the UN Classifications of the Functions of Government or the various agricultural vocabularies might prove useful in connecting primary legal information to things in the real world.

For 20 years we’ve been “opening” access to legal information without doing nearly as much as we could to situate that information in a world that is inhabited by non-lawyers.   At its most fundamental, information retrieval is a transaction in which a user uses something she knows to get something she doesn’t.  Moving from simple availability of legal information to real access involves making those trades easier for the user. We can do that by linking primary legal information to the things it regulates, the things that people encounter in their environment. That should be our business now. It may be unglamorous, but it will meet a lot of people where they live.

[ Hopefully, it won't be two years before my next post appears here; it's easy to drop blogging when other things get busy, and they have surely been busy lately. For what it's worth, I'm also writing about more technical stuff over at Making Metasausage. ]

[NB: VIDEO is now available here. The talk has gotten an astonishingly wide and positive reaction, which is very gratifying for my ego.  So much so, in fact, that I may simply abandon the LII and wander the Earth, like Kwai-Chang Caine, righting wrongs and spouting incomprehensible  but wise-sounding gibberish. I hope you enjoy it.  I did.]

I’ve had a number of requests for the text of my CALICON10 plenary talk, and so I am posting the raw text here.   Viewing it would be preferable — I’m posting this hastily, and will not have time to include the slides or video clips, which are important to understanding what is going on.  

Knowing my tendency to mumble, however, I thought the actual text might be useful to some even once the video is up.  It varies a little from what was actually said.

A final note: a lot of what I said about professions and social groups was taken from Andrew Abbott’s The System of Professions, which I first encountered in 1990 in a seminar taught by the techno-ethnographer Steve Barley at Cornell.  Dick Danner drew on it heavily in his article, but was perhaps a little shy in his embrace of what Abbott has to say about subordinated professions.  A second reference I’d recommend to anyone seeking to actually do anything about any of the stuff I yap about here is Influence Without Authority, a management classic in which the two quotes at the end of the talk appear — and which I first encountered on the bookshelf of a law librarian.

————–

So, who wants me to talk about student printing?

[SLIDE : R RATING]

The template for a goat-roping like this one requires that I tell you how honored I am to be speaking here today. And for once that is truer than you can possibly know. This is a privilege.  And I intend to abuse it.

A long time ago — twenty years, six months, and twenty days –  I stood in front of an AALS  meeting room in San Francisco and made the case for a gathering of technologists working in law schools. Unsuccessfully.

AALS proved not to be the vehicle for gatherings of technologists, as it is not the vehicle for so many things.  But a few months later, CALI — in the person of Ron Staudt — stepped forward and offered to host the first of these conferences.  John Mayer, who began as the computing director at Chicago-Kent,  has been the impresario and guiding spirit of this conference from the beginning, and later became the Executive Director of CALI.  For those who are wondering, he is not the Earl of Kent I will talk about today. Nor did he really spend time in a Turkish prison.

Disclaimers first.  I have no law degree.  I am no kind of librarian.  I have no formal education in computer science.  More to the point, I have not run a law-school technology operation for nearly 18 years and  I no longer have the slightest idea how that is done.

This will not be a comfy chat, either for me or for some of you, because law schools are often uncomfortable places for many who work to make them better. This is a talk for people who want to use technology in innovative, focussed ways, but who instead operate under vague mandates to keep everybody happy.

[[ SLIDE: ROD SERLING ]]

It is a talk for anyone who has ever sat in a meeting wondering at what precise moment Rod Serling is going to step out and confirm that you have entered some academic, bureaucratic Twilight Zone.   It is a talk for people who are not allowed to do what they are asked to do, who have been tied to a chair and commanded to dance.

And above all it’s a talk for all of you who are sitting in the back row, fiddling with a Linux laptop,vaguely aware that some pompous old fart is droning away at the lighted end of the room and hoping the whole thing will be over soon so you can go talk to somebody about some fucked-up thing that PHP is doing.

The Earl of Kent
[SLIDE: SHAKESPEARE]

Now,  I went to drama school. When you tell people that I think they imagine something like a 3-year series of sexual adventures with actresses — or actors — punctuated with an occasional class where people paint their faces white and practice pulling on imaginary ropes.  But they don’t have the nerve to ask you about that.  Instead, they ask you who your favorite Shakespeare character is.

You need to be careful about your answer if you want to look like you know what you’re talking about. Hamlet? Ptui. Too easy.  Rosencrantz and Guildenstern, satisfyingly obscure but a little cute, what with Stoppard and all. Coriolanus?  Good for some riotous gags based on the name, but on the whole, nah.

That’s how I always end up with the Earl of Kent.  He’s in a well-known play — Lear — he’s visible enough that people might remember him, although they usually confuse him with Gloucester, who gets his eyes put out in a much juicier scene that was a sort of Elizabethan version of 24.   But he’s also obscure enough to make me look like an aficionado.  And, as it happens, Kent really is my favorite character in Shakespeare.

We’ll see him in action in a minute. But first, how many don’t know the plot of King Lear?

Here’s what SparkNotes says:

Lear, the ruler of Britain, enters his throne room and announces his plan to divide the kingdom among his three daughters. He intends to give up the responsibilities of government and spend his old age visiting his children. He commands his daughters to say which of them loves him the most, promising to give the greatest share to that daughter.

Lear’s scheming older daughters, Goneril and Regan, respond to his test with overblown  flattery.  But Cordelia, Lear’s youngest (and favorite) daughter, refuses to speak.  In response, Lear flies into a rage, disowns Cordelia, and divides her share of the kingdom between her two sisters.

And it is at that point that we pick up the action. Let’s watch.

[[SLIDE: KENT CLIP]]

So, to put all that in more familiar terms:  Kent disagrees with the Dean about the way in which he’s allocating the budget and dividing up administrative responsibilities.  The Dean thinks that Kent is talking about things that are way above his pay grade, fires him – with a severance package –  and tells him to clean out his desk and be gone by close of business.

Make no mistake: this was a shocking scene in its day.  Lear is doing things that kings should never do, and Kent is calling him on it.

For Shakespeare, the guiding spirit of a company called “the King’s Men”, this was theatrical nitroglycerin. It needed careful handling.  He had to establish Kent’s loyalty beyond question, so that Kent’s questioning of Lear would be acceptable.  That is why he gives us Kent’s resume as brave soldier and faithful servant, and why the director of this production shows him following the outward forms of obedience by kneeling even as he is disciplined — nearly killed — for disagreeing with the King’s decision.

Who is Kent supposed to be loyal to?  Lear, himself?  Lear as occupant of the throne?  The institution of kingship?  The kingdom?  I’d say that it’s all of those, and that Kent is in effect a meditation on which of them is most important.  As he steps outside his position in the social order, the focus is thrown on his judgement.   Like any good lawyer, he is trying to save the client from himself.  He raises questions about service.

[SLIDE: GAS JOCKEY]

As you have probably guessed by now, I intend to talk about service.  It would be hard to do that without a passing nod to the recent exchange of papers between Dick Danner and James Donovan.  They have been arguing about professionalism and law librarianship.

These papers have a lot to say, and it is hard to summarize them in a way that is not too obviously self-serving.  And although they are papers about librarians and libraries, I’d ask you to filter what I say a bit and imagine that I am talking about technologists and technology.  The two are very different in some ways, but in some ways they are not.

Donovan had the choice of weapons at the start of this duel, and he chooses loaded language to describe the positions — a so-called “weak’ model of librarianship, which holds service to the patron as its goal; and a so-called “strong” model, that honors a lofty professional ideal  and assumes a higher calling  in the construction of libraries as a kind of cultural museum.  The fight is about which of the models is a better response to technologies that threaten to make librarians irrelevant.  Search engines in general,  and Google in particular, are held up as Satanic poster children.

[SLIDE: DONOVAN]

The essence of Donovan’s argument is in this quote:

“The future of libraries therefore depends upon which of two responses are taken to patrons’ demands for Google-like experiences.  The weak model will capitulate in the belief that the librarian’s highest obligation is to satisfy the patron on his own terms; the strong model will not allow these pressures to detract from other obligations of the profession, which looks to the construction of socially useful institutions of cultural knowledge.”

Danner is harder to summarize, mostly because his arguments are more nuanced even as they range much more widely. In general, Danner is a realist. He knows technology is here and can’t be fended off by building monuments.  He is seeking other ways for librarians to respond to the changes it brings in the particular tasks that librarians perform.  The claim — and I think he’s right — is that although the objects librarians treat and the techniques they use to treat them will inevitably change, there are fundamental activities that will not.  Those activities are no less fundamental just because they seem slightly vague and abstract when we try to describe them in ways that will survive beyond  the technologies of the moment.  And while Donovan starts the fight by pushing Danner into a corner labelled “service”, I do not think that the service Dick wants to offer is unquestioning fulfillment of every user whim. Sometimes it’s hard to tell.

There are three points worth noting here.

This is a longstanding argument in sociology and organizational behavior, and it sets up a contrast between servant and priest that can be applied to practically any workplace group. Arguments about what professions are and how they come and go and who gets to be one and who doesn’t are never permanently resolved.

[[SLIDE:: MONOLITH]]

Neither Danner nor Donovan take much notion of the context in which libraries exist. They seem to be talking about a dysfunctional love triangle whose members are individual librarians, patrons, and librarian aspirations.   That discussion takes place in and around something called a library, which appears to be floating in space.  One would have us see the library as a monument to culture; the other as a service center.  Neither puts the library in a law school, a law firm , or any other context.

The facts of modern institutional life are otherwise.  Librarians and technologists are institutional employees and they are stewards of institutional resources.  It would be very hard for them to pursue their activities without law schools to buy the books and computers and assemble an audience for them.  There are exceptions, of course — the Jenkins Law Library, which stands not too far from where we are now, is a great example.  But for the most part libraries and technology departments are parts of larger enterprises, and the people who steer them spend much of their time as managers of — and as competitors for — budgets, space, and personnel.

[SLIDE: SOCIAL DISTORTION]

Both positions are easily distorted.  Donovan kicks it off by referring to the models as “strong” and “weak”.  But it just won’t stop there.  A service model can be easily caricatured as creating a class of co-dependent, passive-aggressive servants — and is often corrupted by the status structure of law schools toward exactly that unhappy result.  Donovan’s strong, values-centered model can be seen as the establishment of a self-serving priesthood whose devotions take no account of larger institutional priorities or the needs of those it imagines to be among its faithful — and is often corrupted by people with a poor grasp of user needs to do exactly that.

And there are some examples. Long ago, one Ivy League law school had a network administrator who made the faculty take exams before he would let them on “his” network. And most people find that a Latin High Mass is easier to understand than a geek’s explanation of what has gone wrong with some thing on the network.   On the other side of the fence, I once heard somebody tell a room full of  people at this very conference that she had to create document folders and subfolders on the hard drives of her faculty members because they could not be expected to do it themselves.   And the stunning thing was that nobody started yelling “MY GOD WOMAN DON’T YOU HAVE ANYTHING BETTER TO DO?”

Law schools don’t need priests and they do not need lackeys. Law-school reality is both more complex and much simpler.  Real activities in real workplaces in real law schools involve competition for institutional resources, the abilities of individuals, and continual bargaining between service providers and service consumers about what consumers can be expected to do for themselves.  Those bargains get made differently in different places at different times, and they are constantly renegotiated in the face of change.  We usually point to technology as the disruptor, but in fact the shopfloor realities are conditioned by personalities, by organizational structure, by the availability of services from third parties in the larger University, on the Internet, or in the private sector, and by a rising level of user comfort with technology among many other things.

[SLIDE: WHO CARES?]

Those are the complexities.  There is a simpler, far more important part that we can only get at by asking just why the hell anyone cares about any of this.

In my experience, most of us don’t think about professions most of the time. We just get up and drag ass to work, whether we’re law teachers or opera singers or technologists or librarians or plumbers.  We like to go to work if that is a place where our expertise is respected.  And if we are not respected and we see ourselves as having little control over the very things for which we are held  responsible, all of us get very, very unhappy.  At the simplest level talk about professional models is nothing more and nothing less  — on both sides — than displaced anxiety about where we stand in the workplace.  Librarians have, for a long time, been able to draw some comfort and stability from trappings built up around the technology of print.  That is going away.  Technologists never had such a stable place to stand.   And universities and  law schools are particularly anxious workplaces now.

So maybe we should spend less time debating professional models and concentrate on why it is that we need to talk about them so badly.  One way to investigate that is to concentrate on the question of independent judgement and on when, and why, and how it is exercised. I was surprised that neither Donovan nor Danner explored this question in any detail.  And I brought along the Earl of Kent this morning because he provides such a dramatic example of what I am talking about.  No Dean has ever skewered an IT director with a sword, even in the wake of an e-mail system collapse.  But the exercise of independent judgement, particularly by technologists, remains problematic.  It is the kernel in the middle of a complex set of institutional and cultural problems that prevent effective communication and interaction between the different groups that every law school must house.

Simply put, independent professional judgment is the ability to recommend or to do what the client needs rather than what the client says they want.  On the surface, it’s simple.

But in modern society, even in uncontestably professional fields like law and medicine, that is almost always a matter of negotiation rather than something that arises a priori from roles.  These days, patients shop for doctors, and clients shop for lawyers  and they do so from a position of strength — the more so as the Internet and services like WebMD reduce information asymmetries. Indeed law school classrooms may be one of the last places on the planet where it is presumed that all the expertise is at one end of the room.  Even there it seems fragile, as fears about WiFi and students with laptops reveal.

Why should anybody care?

First, without mutual respect, it is impossible to have any kind of effective collaboration.  That is especially true when the collaboration has to occur across status boundaries.   Second, any effective attempt at stewardship of school resources demands similar respect.  Where there is competition for finite resources, someone is going to have to be told “No”.  That “no” needs to be given for good reasons and it needs to be respected; the alternative is at best a kind of tragedy of the commons where attempts to satisfy everyone end up satisfying no one.

Finally, dismissing the expertise of others can be really, really expensive.  Here’s one that cost about $50 billion.  The man testifying to Congress is Harry Markopolos. He tried unsuccessfully for nine years to get the SEC to take action against Bernie Madoff (I apologize for the bad sound, which is on every clip I could find)

[[SLIDE: The Markopolos Case. ]]

In his written testimony, Markopolos put this much more clearly : “SEC securities lawyers did not want to hear from a non-lawyer SEC staffer like Mr. Manion with 25 years of trading and portfolio management experience.  As much as Boston’s financial community looks up to and respects Ed Manion, that’s how much the SEC lawyers looked down upon and ignored Mr. Manion’s repeated requests for SEC enforcement action against Mr. Madoff.”

I chose this highly loaded, unfair example both because it is so very dramatic and because Harry Markopolos is so thoroughly convinced that the problem was lawyer arrogance at the SEC.  A more detached observer might see less arrogance, and instead look at the corrosive effects of bureaucracy on people who are strongly process-oriented by virtue of their professional training.   Another might talk about the difficulty of communication between two professional cultures. One of those cultures is called to action when it finds funny things in those numbers that pile up around any kind of engineering, financial or otherwise.  The other culture is most persuaded by how well or poorly the problem fits with process and precedent.

[[SLIDE: COLLABORATION]]

Just to be clear, I do realize that I am talking about three things at once: the exercise of independent judgment, a more general problem of communication across workplace cultures, and the idea that collaboration is somehow essential to the law school enterprise.  These things are tightly bound together. The honest exchange that forms the basis of collaboration is impossible without mutual respect.  And I am no different from most people in that I see those things that have been essential to my own successes as equally important to everyone else.

A lot  of what I have been able to do over the last 18 years has been the product of a remarkably comfortable collaboration with a law teacher and former Dean.  And one of the things that has struck Peter Martin and I most forcibly over the years is just how reluctant everyone else was to see our work as a collaboration. We have laughed about this a lot.  To many law faculty, the LII was always something Peter Martin did with the help of a capable if wild-eyed servant. And at geek-gatherings the LII was always a technical project that Tom Bruce did despite having to carry a law professor on his back. Whatever the perception, the LII was, is, and always will be a product of strong collaborations among many people, and those collaborations have become the lens through which I see professional work in law schools.

Sadly, collaborations are not easy to pull off. The reasons are built into the institutional terrain, into micro-transactions between individuals, and everything in between.  Let me catalog a few.

[[SLIDE: WORKPLACE CULTURE]]

For all that academic institutions value freedom of speech, plain speaking is not really part of the culture. Recently, I heard a Cornell administrator describe a particular committee structure as a “triumph of consensus over accountability”. That is as true of the ways we talk to each other as it is of the larger processes in which that talk takes place.  Plain speaking that is seen as confrontational in law schools simply would not be seen that way in other workplaces. There is no doubt that tact is a necessary form of social lubrication, but there is also such a thing as an excessive emphasis on the possibility that someone, somewhere might find the bald statement of a fact unwelcome.  It is hard to be the bearer of any urgent information, let alone bad news.

Up until a few years ago, law schools had very limited experience with other professional cultures.  Multidisciplinary collaborations are now changing that among faculty.  But when technologists began to come on the scene in the mid- to late 1980s, there had been no experience with a new professional group inside law schools since the advent of law librarians at the turn of the last century.  The ground rules in place at the time were not particularly helpful to technologists.

Partly, that was because all prior experience had been with groups whose flagship technology was well understood. Familiar technologies like print are invisible, and unfamiliar, unstable technologies are as highly visible as they are hard to predict and to manage.   Technology and technologists have stuck out at least in part because what they do is unfamiliar, there is no settled method by which they do it, and there is a great need for experimentation.  That is because the technology itself moves at a dizzying pace and because the expectations of technology users are not only constantly rising, but are strongly conditioned by what they see in a marketplace that extends well beyond the law school.  Students arrive each year with a bewildering array of devices that they expect to be able to use as part of their legal education.  And if the technologies are strange, the technologists are even stranger. There are ways in which they just don’t fit.

[SLIDE: DRAWN AND QUARTERED] Peter Martin once pointed out to me a longstanding and important belief that membership in the club called “faculty” brings with it benefits that are equally shared among the members.  There is equal access to library books, to research assistants, to travel money, and so on.  That’s a rule honored in the breach, but there is a basic notion of equity in at least some things.  Technologists are not so easily shared.

That plays out in an interesting way when we look at frontline support. I shudder to think how much time the people in this room have spent trying to create both real and imaginary equity in the way that help-desk requests are processed.  The fact is that user support is an inherently inequitable process and a politically dangerous one.  It is inequitable because the least capable users are the most demanding, and the most capable users are the most fun to play with.  That risks excluding the middle, and in this political environment as in so many others that is simply unwise.  The uproar that greets the failure of an e-mail system is testimony to this.  Of course an e-mail failure is a disaster.  But the response to it becomes more vehement because most users, the ones in the middle,  are thinking, “You know, I don’t ask for much from these guys, but at least they could keep the DAMN EMAIL SYSTEM RUNNING”.

The fact is that we expect technologists to exercise independent judgement in determining what gets serviced and how and when, and we almost never like the way they do that if we are the ones having a problem.  And sometimes we don’t know, or don’t stop to think about, just how thinly spread the shared technologist resource actually is.

Many years ago I did a consulting gig for a small law school where things had gone badly wrong, on all sides.  One of the groups I interviewed was a faculty technology committee that was hell-bent on giving beepers to the technology staff so that their problems would be responded to immediately.  I had only one question about that:  whether or not they wanted to be the person whose problem was being worked on when the beeper went off. Seen from that point of view, the beepers were much less popular.

A corollary to the idea the technologists are shareable is the idea that technologists are interchangeable, or should be. Mostly this is an impatient reaction to having problems referred from one technician to another; there’s an idea that any technician I grab should be willing and able to solve any problem I might pose.  That is unlikely to happen at any price point that law schools can afford, and so compromise is necessary.  And like all compromises that result in a less than perfectly responsive system, this one needs to be understood by all those who are affected by it.

[SLIDE: A few dozen servants ]

While we are on the subject of  resources, it’s worth keeping in mind that lot of management is simply good playground behavior. Most technology managers learn quickly that you shouldn’t bring gum to school unless you bring enough for everybody, but that isn’t always possible.  And that leads to resource competition among faculty members who are in any event highly competitive, and who in many institutions see themselves increasingly as independent contractors. Over time, this competition hardens into the belief that the law school is a zero-sum status game in which anyone’s gain in status is made at the expense of someone else.  On this view, command over resources becomes important less because the resources themselves are important than because possession of them is a clear indicator of enhanced status.

That is a particularly pernicious belief and technologists are not the only ones who have to deal with it. Most Deans and Deanlets know that the on the morning after everyone finally has one of something there will be some son of a bitch — usually, in fact, the same son of a bitch – who will show up in her office wanting two.

[[SLIDE: LOST logo ]]

Law schools have a hard time evaluating the work of technologists, and so they have a hard time managing them and the programs they supervise.

Senior administrators often don’t know a lot about what IT people do,  how to figure out whether they are doing it well or not, or how to make IT work in the interests of the institution.  But they have to have something to steer by, and that can lead to problems.  Many institutions evaluate their IT departments exclusively by random sampling of the “happiness factor” among users, particularly faculty users.  End user satisfaction is important, to be sure.  But so is avoiding overreaction to particular end users who can never be satisfied, and to those who use strategic behavior around the presumed sins of the IT department to advance private political agendas.

[[SLIDE: lemming butt]]

When it comes to institutional strategy, far too much reliance is placed on what other law schools are doing, and far too little on the particular needs and opportunities of particular institutions.  I’m a great believer in information sharing — that’s why conferences like this one are worth doing.  But when things reach the point where the only acceptable evidence of merit is the fact that some other law school is doing it — at that point our view of technology is a wide-screen view of the butt of the lemming in front of us.

By the way, never, ever search Google images for “lemming butt” with safe search turned off.

I see furious keyboarding in the back row.  Did you guys find the Kim Kardashian picture yet?

[[SLIDE: CYLON ]]

As to the technologists themselves: How do you know a good one from a bad one?  What would a good one look like, anyway?

Senior administrators are hard put to answer those questions. So they get very, very nervous and inclined to look for some credentialing method that seems familiar. It is easier to think that you can manage technologists just like a group you already understand, and that the good ones should look a lot like you.  But loading up the job description with prerequisites drawn from everyone’s list of comfy credentials has never been an especially good way of hiring the talent that you really need.  And if you can’t be sure you’re hiring the right people,  you can at least put the entire department under the supervision of someone or something that is familiar.

So technology gets placed under someone who kind of knows about all that stuff,  or gets put under committee review, or given to someone with more acceptable credentials.  This creates apparatus that is often more familiar than functional.  Like anybody else, technologists find it difficult to be supervised by people who don’t understand what they do. That can lead to an uneasy sense that the school thinks technology is too important to be run by anyone who knows anything about it.  There is probably not much that can or should be done about that, and I’ll have more to say about that later.

In many cases, the net result of all this is that the entire deep strategy becomes “just keep everybody happy”, and that is never realistic.  That also makes it alarmingly easy for administrators to make decisions for which others are ultimately held accountable, and to offer little protection to subordinates when clients and customers act out.

Every organization  needs to ensure that its people can exercise some control over the things for which they are responsible, and frankly law schools are not especially good at that.  And the management of technology is vulnerable to externally-created expectations that don’t play well against institutional realities.  HL Mencken once remarked that a wealthy man is one who earns more than his brother-in-law.  Most technologists have long since concluded that, so far as end users are concerned, anyone’s brother-in-law knows more about computers than they do.  Similarly, any institution where a troublesome faculty member has just been on a one-semester visit becomes enshrined as a place whose technology rivals that of the Starship Enterprise.

[[SLIDE: FIRST STONE ]]
I have thrown a lot of stones here, and it’s worth pointing out that neither I nor any other technologist is without sin.  Most of those sins are centered either in the belief in technology for its own sake, or in poor consulting skills.

I say “consulting skills” because people talk all the time about “communication skills” and that’s only part of the problem.  Awareness of what a law school does and how it does it are crucial.

[[SLIDE: JOBLESS MEN]]

How many people here are involved in projects that involve your alumni and placement offices, and were started in the last year?  None appear on the program.  And yet you’d think everyone here would be, given that the biggest external threat to any law school right now is the shrinking market for its product.

[[SLIDE: WE SPEAK GIBBERISH]]

Technical people — whether they work with computers,  or fix cars, or teach law — often don’t explain things well.  Some of this is lack of social skills; some of it is lack of communication skills; and some of it is a kind of joie de vivre that comes along with expertise.  Most often, it is a radical misunderstanding of what users want to hear by way of explanation, made worse by user impatience at actually having to learn anything.

For a while, I found it easier to explain all networking problems by blaming them on sunspots on Neptune; it sounded sort of scientific, and the users who realized it was not a serious explanation thought it was a sort of funny shorthand for “I can’t possibly explain this to you in the time you have”.  And so it was.  But too often technologists really do speak a separate language.

At the worst, this separate language and institutional blindness combine, and harden into a separate culture with its own language.  Sometimes this is simply baffling techno-gibberish;  these days, it is just as likely to be management-speak full of words like “enterprise”,  “partnering”, or “core competency”.  Both are the language of priests and gatekeepers, not of consultants and collaborators.  The LII is not immune to this; we once hired a fundraiser who was perpetually baffled by phrases like “winter has been taken out of the cluster so that its back end can resync”.  At least she was honest about it, which improved our internal communication enormously.  I am not honest about it, and Dan Nagy believes that I still understand the mail he sends me. Please, nobody tell him.

We are all familiar with technology-for-its-own-sake in the form of the wildly misguided experiment.  There was, for example, the law school that wanted to use online chat as a teaching tool in one of its classes.  Finding it too difficult to support chat clients on students’ home computers, they installed a chat client on all the computers in one 30 seat lab, where they held class via keyboard.

More often, though, technologists practice technology for its own sake because that is what interests them.  They wouldn’t be technologists if it didn’t.  But they need to understand that this makes them sometimes seem both out of touch and far too easy to bribe.  It’s amazing how much you can buy with a bigger monitor.

[[ SLIDE:  POUTING]]

I said I would return to the problem of technologists being managed by nontechnologists, and this is a good time because at root it really is a communication problem.  Sooner or later anyone working at any level of any organization is going to be saddled with a supervisor who needs to be educated.    Educating supervisors about operational realities is simply a requirement in most organizations, whether the organization knows it or not, and whether the staff knows it or not.   Technologists need to make every effort to communicate clearly up the hierarchy — and if the organization persistently fails to listen, leave.  It does no good to pout, though of course we all do.

[SLIDE: daggers visual]

Many bad acts that screw up organizations  are just too petty to catalog in a talk like this.  I think of them as tiny little daggers.   Slights, snubs, and acts of individual arrogance are inevitable, particularly in law schools.   I think law schools are stupid when they ignore such injuries, because the effect is cumulative.  You could think of them as repetitive stress disorders.  It does not take much of this sort of thing to make a workplace dysfunctional, and that is especially true when a few bad actors can act out without consequences.  That creates a cynical resentment that is all the more resilient because it gets slathered with platitudes about “developing consensus”, “respecting differences”, and my personal favorite, “being a team player”.  None of those are bad ideas, except when they result in the treatment of symptoms rather than disease, or covering up real problems with corporate cliches.  There may be no “I” in team, but there is a “U” in suck.

[SLIDE: carp]

Is this just carping? No.  No, it isn’t.  And if I’ve been scolding it’s with a larger purpose in mind.

I believe that law schools are facing a period of highly disruptive change over which they will have a great deal less control than they think. It will last far longer than they think it will, and it may be permanent.  A free-market alarmist might say, at this point, that 1 in 4 law schools needs to go away and that the survivors need to cut their tuitions in half.  That’s a radical statement of a radical view, but I think few would deny that big changes are coming for many of us, whether as a result of direct economic pressure on our institutions or because legal jobs are going away and large employers are rethinking their business models.  So that’s scary in itself, but what is really scary is the fact that no resolution of the situation will be stable.  Legal education may not be significantly downsized  — but it will almost certainly be globalized, commodified, reorganized, and repriced. That will happen again and again at what will seem like dizzying speeds, though in fact the pace of change will be far slower than it would be outside academia.

American business — and particularly American management science — began to deal with this kind of volatility in the mid 1980′s.  Two years before this conference began, Peter Drucker wrote in the Harvard Business Review that [SLIDE]

Every enterprise is composed of people with different skills and knowledge doing many different kinds of work.  For that reason, it must be built on communication and individual responsibility. Each member has to think through what he or she aims to accomplish — and make sure that associates know and understand that aim. Each has to think through what he or she owes to others — and make sure that others understand and approve. Each has to think through what is needed by others — and make sure others know what is expected of them.

and Rosabeth Moss Kanter remarked that [SLIDE]

This new kind of hero .. must learn to operate without the might of the hierarchy behind them.  The crutch of authority must be thrown away and replaced by their own ability to make relationships, to use influence, and to work with others to achieve results.

By contrast, I work in a place that once had a food fight over whether or not a pre-tenure visiting faculty member was allowed to use the word “colleagues” as the salutation in a memo.  He was trying to organize a faculty-student softball game.

In her 1995 commencement address to a small college in Cambridge, Massachusetts,  Judith Martin — a/k/a Miss Manners –  remarked that societal concern with etiquette becomes greatest during times of social upheaval and cultural change.  I hope that we will find a new etiquette that supports communication across hierarchy – one that rewards initiative — rather than allowing the etiquette we have now to harden into creative paralysis.

As to the “crutch of authority”, I would add only that lack of authority can also be a crutch. ” You know, what can you do? It’ll never change.  Why bother?”  Good questions.  But if we are willing to bother, if we are willing  to bother people by being unmannerly when Lear is mad, then here are some ways to do it.

[SLIDE: how to bother]

Stop the turf wars

We are fighting turf wars that have their roots in fears about the erosion of professional work, anxieties about status, and very real competition for resources.  They need to be replaced by clear functional analysis that asks who is most capable of what,  and what should be bought and what should be built.  That analysis needs to take place without regard to existing departmental lines, and it must assess needs without respect to rank.

Communicate directly and honestly, especially about capacity
Organizations talk to themselves constantly about what they are able to do. Sometimes they are less than honest.  We pad budgets knowing they’ll be cut.  We skew our organizations excessively toward “customer service”, using the help desk as a way to patch systems that would not need repair had they not been planned by people distracted by help desk calls. We do too much underpromising and overdelivering  when we should just be promising and delivering.

Analyze failure

We don’t talk about failures nearly enough, because it is not safe enough to fail, let alone talk about it in polite company.  Good organizations fail all the time and the best ones learn from it.  Constant, inexpensive experimentation, even with a fair share of failures, is far cheaper for the organization than ponderous commitee-laden approval processes, memoranda, strategic plans, and so on.  There is a zone between heedless and hidebound and the price of staying in it is that things go wrong some of the time. So what?

Reward, or at least respond to, innovation

We need to pay attention to innovation and we need to respond to it rationally.  The recent history of legal education is littered with innovations whose potential either went unrecognized or unfulfilled.  There is a world of useful technique out there and we are still putting up Powerpoints and talking about whether it would be seemly to evaluate students outside the exam period, or let them bring a basic professional tool into the classroom.

For twenty years now, this conference has existed as a space where there is the potential for honest conversation between law teachers, law librarians, and law school technologists. We all share a common curiosity and a common purpose. This conference has things to show and tell that are worth seeing and hearing.

Too often we sing to the choir, just as I have at times been doing here.  Honest conversations are hard. But the most meaningful conversations, the ones that over the long run bring the greatest rewards, are difficult to begin. They start with misunderstandings or with news that the parties find uncomfortable, with things that both just can’t help but say. They are risky.  I hope that some of those conversations — or at least the mutual reconnaissance that leads to them — will start here in the next few days.  And if Kent is unmannerly, well, big fucking deal.

Thank you.
[[SLIDE:  FINIS ]]