The other day a friend came to me because he heard about the openlaws.eu project. He said: ”Hey, openlaws sounds great – does that mean that I can write my own laws now?”. I had to tell him no, but that it was almost as good as that…
In March, Mike Lissner wrote for this blog about the troubling state of access to case law – noting with dismay that most of the US corpus is not publicly available. While a few states make official cases available, most still do not, and neither does the federal government. At Ravel Law we’re building a new legal research platform and, like Mike, we’ve spent substantial time troubleshooting access to law issues. Here, we will provide some more detail about how official case law is created and share our recommendations for making it more available and usable. We focus in particular on FDsys – the federal judiciary’s effort in this space – but the ideas apply broadly.
If you ask a typical federal court clerk, such as our friend Rose, about the provenance of case opinions you will only learn half the story. Rose can tell you that after she and her judge finish an opinion it gets sent to a permanent court staffer. After that the story that Rose knows basically ends. The opinion at this stage is in its “slip” opinion state, and only some time later will Rose see the “official” version – which will have a citation number, copy edits, and perhaps other alterations. Yet, it is only this new “official” version that may be cited in court. For Mike Lissner, for Ravel, and for many others, the crux of the access challenge lies in steps beyond Rose’s domain, beyond the individual court’s in fact – when a slip becomes an official opinion.
For years the federal government has outsourced the creation of official opinions, relying on Westlaw and Lexis to create and publish them. These publishers are handed slip opinions by court staff, provide some editing, assign citations and release official versions through their systems. As a result, access to case law has been de facto privatized, and restricted.
Of late, however, courts are making some strides to change the nature of this system. The federal judiciary’s primary effort in this regard is FDsys (and also see the 9th Circuit’s recent moves). But FDsys’s present course gives reason to worry that its goals have been too narrowly conceived to achieve serious benefit. This discourages the program’s natural supporters and endangers its chances of success.
We certainly count ourselves amongst FDsys’s strongest supporters, and we applaud the Judicial Conference for its quick work so far. And, as friends of the program, we want to offer feedback about how it might address the substantial skepticism it faces from those in the legal community who want the program to succeed but fear for its ultimate success and usability.
Our understanding is that FDsys’s primary goal is to provide free public access to court opinions. Its strategy for doing so (as inexpensively and as seamlessly as possible) seems to be to fully implement the platform at all federal courts before adding more functionality. This last point is especially critical. Because FDsys only offers slip opinions, which can’t be cited in court, its current usefulness for legal professionals is quite limited; even if every court used FDsys it would only be of marginal value. As a result, the legal community lacks incentive to lend its full, powerful, support to the effort. This support would be valuable in getting courts to adopt the system and in providing technology that could further reduce costs and help to overcome implementation hurdles.
Setting Achievable Goals
We believe that there are several key goals FDsys can accomplish, and that by doing so it will win meaningful support from the legal community and increase its end value and usage. With loftier goals (some modest, others ambitious), FDsys would truly become a world-class opinion publishing system. The following are the goals we suggest, along with metrics that could be used to assess them.
|1. Comprehensive Access to Opinions||- Does every federal court release every published and unpublished opinion?|
|- Are the electronic records comprehensive in their historic reach?|
|2. Opinions that can be Cited in Court||- Are the official versions of cases provided, not just the slip opinions?|
|- And/or, can the version released by FDsys be cited in court?|
|3. Vendor-Neutral Citations||- Are the opinions provided with a vendor-neutral citation (using, e.g., paragraph numbers)?|
|4. Opinions in File Formats that Enable Innovation||- Are opinions provided in both human and machine-readable formats?|
|5. Opinions Marked with Meta-Data||- Is a machine-readable language such as XML used to tag information like case date, title, citation, etc?|
|- Is additional markup of information such as sectional breaks, concurrences, etc. provided?|
|6. Bulk Access to Opinions||- Are cases accessible via bulk access methods such as FTP or an API?|
The first three goals are the basic building blocks necessary to achieve meaningful open-access to the law. As Professor Martin of Cornell Law and others have chronicled, the open-access community has converged around these goals in recent years, and several states (such as Oklahoma) have successfully implemented them with very positive results.
Goals 3-6 involve the electronic format and storage medium used, and are steps that would be low-cost enablers of massive innovation. If one intention of the FDsys project is to support the development of new legal technologies, the data should be made accessible in ways that allow efficient computer processing. Word documents and PDFs do not accomplish this. PDFs, for example, are a fine format for archival storage and human reading, but computers don’t easily read them and converting PDFs into more usable forms is expensive and imperfect.
In contrast, publishing cases at the outset in a machine-readable format is easy and comes at virtually no additional cost. It can be done in addition to publishing in PDF. Courts and the GPO already have electronic versions of cases and with a few mouse clicks could store them in a format that would inspire innovation rather than hamper it. The legal technology community stands ready to assist with advice and development work on all of these issues.
We believe that FDsys is a commendable step toward comprehensive public access to law, and toward enabling innovation in the legal space. Left to its current trajectory, however, it is certain to fall short of its potential. With some changes now, the program could be a home run for the entire legal community, ensuring that clerks like Rose can rest assured that the law as interpreted by her judge is accessible to everyone.
Daniel Lewis and Nik Reed are graduates of Stanford Law School and the co-founders of Ravel Law, a legal search, analytics, and collaboration platform. In 2012, Ravel spun out of a Stanford University Law School, Computer Science Department, and Design School collaborative research effort focused on legal citation networks and information design. The Ravel team includes software engineers and data scientists from Stanford, MIT, and Georgia Tech. You can follow them on Twitter @ravellaw
In the fall of 2009, the American Association of Law Libraries (AALL) put out a call for volunteers to participate in our new state working groups to support one of AALL’s top policy priorities: promoting the need for authentication and preservation of digital legal resources. It is AALL policy that the public have no-fee, permanent public access to authentic online legal information. In addition, AALL believes that government information, including the text of all primary legal materials, must be in the public domain and available without restriction.
The response to our call was overwhelming, with volunteers from all 50 states and the District of Columbia expressing interest in participating. To promote our public policy priorities, the initial goals of AALL’s working groups were to:
- Take action to oppose any plan in their state to eliminate an official print legal resource in favor of online-only, unless the electronic version is digitally authenticated and will be preserved for permanent public access;
- Oppose plans to charge fees to access legal information electronically; and
- Ensure that any legal resources in a state’s raw-data portal include a disclaimer so that users know that the information is not an official or authentic resource (similar to what is included on the Code of Federal Regulations XML on Data.gov).
In late 2009, AALL’s then-Director of Government Relations Mary Alice Baish met twice with Law Librarian of Congress Roberta Shaffer and Carl Malamud of Public.Resource.org to discuss Law.gov and Malamud’s idea for a national inventory of legal materials. The inventory would include legal materials from all three branches of government. Mary Alice volunteered our working groups to lead the ambitious effort to contribute to the groundbreaking national inventory. AALL would use this data to update AALL’s 2003 “State-by-State Report on Permanent Public Access to Electronic Government Information” and the 2007 “State-by-State Report on Authentication of Online Legal Resources” and 2009-2010 updates, which revealed that a significant number of state online legal resources are considered to be “official” but that few are authenticating. It would also help the Law Library of Congress, which owns the Law.gov domain name, with their own ambitious projects.
Erika Wayne and Paul Lomio at Stanford University’s Robert Crown Law Library developed a prototype for the national inventory that included nearly 30 questions related to scope, copyright, cost to access, and other use restrictions. They worked with the California State Working Group and the Northern California Association of Law Libraries to populate the inventory with impressive speed, adding most titles in about two months.
AALL’s Government Relations Office staff then expanded the California prototype to include questions related to digital authentication, preservation, and permanent public access. Our volunteers used the following definition of “authentication” provided by the Government Printing Office:
An authentic text is one whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator.
Typically, an authentic text will bear a certificate or mark that conveys information as to its certification, the process associated with ensuring that the text is complete and unaltered when compared with that of the content originator.
An authentic text is able to be authenticated, which means that the particular text in question can be validated, ensuring that it is what it claims to be.
The “Principles and Core Values Concerning Public Information on Government Websites,” drafted by AALL’s Access to Electronic Legal Information Committee (now the Digital Access to Legal Information Committee) and adopted by the Executive Board in 2007, define AALL’s commitment to equitable, no-fee, permanent public access to authentic online legal information. The principle related to preservation states that:
Information on government Web sites must be preserved by the entity, such as a state library, an archives division, or other agency, within the issuing government that is charged with preservation of government information.
- Government entities must ensure continued access to all their legal information.
- Archives of government information must be comprehensive, including all supplements.
- Snapshots of the complete underlying database content of dynamic Web sites should be taken regularly and archived in order to have a permanent record of all additions, changes, and deletions to the underlying data.
- Governments must plan effective methods and procedures to migrate information to newer technologies.
In addition, AALL’s 2003 “State-By-State Report on Permanent Public Access to Electronic Government Information” defines permanent public access as, “the process by which applicable government information is preserved for current, continuous and future public access.”
Our volunteers used Google Docs to add to the inventory print and electronic legal titles at the state, county, and municipal levels and answer a series of questions about each title. AALL’s Government Relations Office set up a Google Group for volunteers to discuss issues and questions. Several of our state coordinators developed materials to help other working groups, such as Six Easy Steps to Populating Your State’s Inventory by Maine State Working Group coordinator Christine Hepler, How to Put on a Successful Work Day for Your Working Group by Florida State Working Group co-coordinators Jenny Wondracek and Jamie Keller, and Tips for AALL State Working Groups with contributions from many coordinators.
In October 2010, AALL held a very successful webinar on how to populate the inventories. More than 200 AALL and chapter members participated in the webinar, which included Kentucky State Working Group coordinator Emily Janoski-Haehlen, Maryland State Working Group coordinator Joan Bellistri, and Indiana State Working Group coordinator Sarah Glassmeyer as speakers. By early 2011, more than 350 volunteers were contributing to the state inventories.
Our dedicated volunteers added more than 7,000 titles to the inventory in time for AALL’s June 30, 2011 deadline. AALL recognized our hard-working volunteers at our annual Advocacy Training during AALL’s Annual Meeting in Philadelphia, and celebrated their significant accomplishments. Timothy L. Coggins, 2010-11 Chair of the Digital Access to Legal Information Committee, presented these preliminary findings:
- Authentication: No state reported new resources that have been authenticated since the 2009-2010 Digital Access to Legal Information Committee survey
- Official status: Several states have designated at least one legal resource as official, including Arizona, Florida, and Maine
- Copyright assertions in digital version: Twenty-five states assert copyright on at least one legal resource, including Oklahoma, Pennsylvania, and Rhode Island
- Costs to access official version: Ten states charge fees to access the official version, including Kansas, Vermont, and Wyoming
- Preservation and Permanent Public Access: Eighteen states require preservation and permanent public access of at least one legal resource, including Tennessee, Virginia, and Washington
Analyzing and Using the Data
In July 2011, AALL’s Digital Access to Legal Information Committee formed a subcommittee that is charged with reviewing the national inventory data collected by the state working groups. The subcommittee includes Elaine Apostola (Maine State Law and Legislative Reference Library), A. Hays Butler (Rutgers University Law School Library), Sarah Gotschall (University of Arizona Rogers College of Law Library), and Anita Postyn (Richmond Supreme Court Library). Subcommittee members have been reviewing the raw data as entered by the working group volunteers in their state inventories. They will soon focus their attention on developing a report that will also act as an updated version of AALL’s State-by-State Report on Authentication of Online Legal Resources.
The report, to be issued later this year, will once again support what law librarians have known for years: there are widespread issues with access to legal resources and there is an imminent need to prevent a trend of eliminating print resources in favor of electronic resources without the proper safeguards in place. It will also include information on: the official status of legal resources; whether states are providing for authentication, permanent public access, and/or preservation of online legal resources; any use restrictions or copyright claims by the state; and whether a universal (public domain) citation format has been adopted by any courts in the state.
In addition to providing valuable information to the Law Library of Congress and related Law.gov projects, this information has already been helpful to various groups as they proceed to advocate for no-fee, permanent public access to government information. The data has already been useful to advocates of the Uniform Electronic Legal Material Act and will continue to be valuable to those seeking introduction and enactment in their states. The inventory has been used as a starting point for organizations that are beginning digitization projects of their state legal materials. The universal citation data will be used to track the progress of courts recognizing the value of citing official online legal materials through adopting a public domain citation system. Many state working group coordinators have also shared data with their judiciaries and legislatures to help expose the need for taking steps to protect our state legal materials.
The Next Steps: Federal Inventory
- Legal research materials
- Information authored or created by agencies
- Resources that are publicly accessible
Our goals are the same as with the state inventories: to identify and answer questions about print and electronic legal materials from all three branches of government. Volunteers from Federal agencies and the courts are already adding information such as decisions, reports and digests (Executive); court opinions, court rules, and Supreme Court briefs (Judicial); and bills and resolutions, the Constitution, and Statutes at Large (Legislative). Emily Carr, Senior Legal Research Specialist at the Law Library of Congress, and Judy Gaskell, retired Librarian of the Supreme Court, are coordinating this project.
Thanks to the contributions of an army of AALL and chapter volunteers, the national inventory of legal materials is nearly complete. Keep an eye on AALL’s website for more information as our volunteers complete the Federal Inventory, analyze the data, and promote the findings to Federal, state and local officials.
[Editor's Note: For topic-related VoxPopuLII posts please see: Barbara Bintliff, The Uniform Electronic Legal Material Act Is Ready for Legislative Action; Jason Eiseman, Time to Turn the Page on Print Legal Information; John Joergensen, Authentication of Digital Repositories.]
VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.
As a first year law student, a handful of things are given to you (at least where I studied): a pre-fabricated schedule, a non-negotiable slate of professors, and a basic history lesson — illustrated through individual cases. During my first year, the professor I fought with the most was my property law teacher. Now, I realize that it wasn’t her that I couldn’t accept; it was the implications of the worldview she presented. She saw “property law” as a construct through which wealthy people protected their interests at the expense of those who didn’t have the means to defend themselves. Every case — from “fast fox, loose fox” on down — was an example of someone’s manipulating or changing the rules to exclude the poor from fighting for their interests. It was a pretty radical position to accept and I, maybe to my own discredit, ignored it.
Then, I graduated. I began looking at legal systems around the world and tried to get a sense of how they actually function in practice. I found something a bit startling: they don’t function. Or, at least not for most of us.
At first glance, that may seem alarmist. Honestly, it feels a bit radical to say. But, then consider that in 2008, the United Nations issued a report entitled Making the Law Work for Everyone, which estimated that 4 billion people (of a global population of 6 billion at the time) lacked “meaningful” access to the rule of law.
Stop for a second. Read that again. Two-thirds of the world’s population don’t have access to rule-of-law institutions. This means that they lack, not just substantive representation or equal treatment, but even the most basic access to justice.
Now, before you write me, and the UN, off completely as crackpots, I must make some necessary caveats. “Rule-of-law institutions,” in the UN report, means formal, governmentally sponsored systems. The term leaves out pluralistic systems, which rely on adapted or traditional actors, many of which exist exclusively outside of the purview of government, to settle civil or small-scale criminal disputes. Similarly, the word “meaningful,” in this context, is somewhat ambiguous. Making the Law Work for Everyone isn’t clear about what standards it uses to determine what constitutes “access,” “fairness,” or relevant and substantive law (i.e., the number and content of laws). While the report’s major focus was on adapting an appropriate level of formalism in order to create inclusive systems, the strategy of definitionally avoiding pluralism and cultural relativism while assessing a global standard of an internationally (and often constitutionally) protected service significantly complicates the analysis offered in the report.
What’s causing the gap in access to justice?
So, let’s work from the basics. The global population has been rising steadily for, well, a while now, increasing the volume of need addressed by legal systems. Concurrently, the number of countries has grown, and with them young legal systems, often without precedents or established institutional infrastructures. As the number of legal systems has grown, so too have the public’s expectations of the ability of these systems to provide formalized justice procedures. Within each of these nations, trends like urbanization, the emergence of new technologies, and the expansion of regulatory frameworks add complexity to the number of laws each domestic justice system is charged with enforcing. On top of this, the internationalization and proliferation of treaties, trade agreements, and institutions imposes another layer of complexity on what are often already over-burdened enforcement mechanisms. It’s understandable, then, why just about every government in the world struggles, not only to create justice systems that address all of these very complicated issues, but also to administer these systems so that they offer universally equal access and treatment.
Predictably, private industry observed these trends a long time ago. As a result, it should be no surprise that the cost of legal services has been steadily rising for at least 20 years. Law is fairly unique in that it is in charge of creating its own complexity, which is also the basis of its business model. The harder the law is to understand, the more work there is for lawyers. This means fewer people will have the specialized skills and relationships necessary to successfully achieve an outcome through the legal system.
What’s even more confusing is that because clients’ needs and circumstances vary so significantly, it’s very difficult to reliably judge the quality of service a lawyer provides. The result is a market where people, lacking any other reliable indicator, judge by price, aesthetics, and reputation. To a limited extent, this enables lawyers to self-create high-end market demand by inflating prices and, well, wearing really nice suits. (Yes, this is an oversimplification. But they do, often, wear REALLY nice suits). The result is the exclusion (or short-shrifting) of middle- and low-income clients who need the same level of care, but are less concerned with the attire. Incidentally, the size and spending power of the market being excluded — even despite growing wealth inequality — are enormous.
Redesigning legal services
I don’t mean to be simplistic or to re-state widely understood criticisms of legal systems. Instead, I want to establish the foundations for my understanding of things. See, I approach this from a design viewpoint. The two perspectives above — namely, that of governments trying to implement systems, and that of law firms trying to capitalize on available service markets — often neglect the one design perspective that determines success: that of the user. When we’re judging the success of legal systems, we don’t spend nearly enough time thinking about what the average person encounters when trying to engage legal systems. For most people, the accessibility (both physical and intellectual) and procedure of law, are as determinative of participation in the justice system as whether the system meets international standards.
The individuals and organizations on the cutting edge of this thinking, in my understanding, are those tasked with delivering legal services to low-resource and rural populations. Commercial and governmental legal service providers simply haven’t figured out a model that enables them to effectively engage these populations, who are also the world’s largest (relatively) untapped markets. Legal aid providers, however, encounter the individuals who have to overcome barriers like cost, time, education, and distance to just preserve the status quo, as well as those who seek protection. From the perspective of legal aid clients, the biggest challenge to accessing the justice system may be the fact that courts are often located dozens of miles away from clients’ homes, over miserable roads. Or the biggest challenge may be the fact that clients have to appear in court repeatedly to accomplish what seem like small tasks, such as extensions or depositions. Or the biggest challenge may be simply not knowing whom to approach to accomplish their law-related goals. Each of these challenges represents a barrier to access to justice. Each barrier to access, when alleviated, represents an opportunity for engagement and, if done correctly, an opportunity for financial sustainability.
Mobile points the way
None of this is intended as criticism — almost every major service industry in the world grapples with the same challenges. Well, with the exception of at least one: the mobile phone industry. The emergence of mobile phones presents two amazing opportunities for the legal services industry: 1) the very real opportunity for effective engagement with low-income and rural communities; and 2) an example of how, when service offerings are appropriately priced, these communities can represent immensely profitable commercial opportunities.
Let’s begin with a couple of quick points of information. Global mobile penetration (the number of people with active cell phone subscriptions) is approximately 5.3 billion, which is 78 percent of the world’s population. There are two things that every single one of those mobile phone accounts can do: 1) make calls; and 2) send text messages. Text messaging, or SMS (Short Message Service), is particularly interesting in the context of legal services because it is a way to actively engage with a potential client, or a client, immediately, cheaply, and digitally. There are 4.3 billion active SMS users in the world and, in 2010, the world sent 6.1 trillion text messages, a figure that has tripled in the last 3 years and is projected to double again by 2013. That’s more than twice the global Internet population of 2 billion. It’s no exaggeration, at this point, to say that mobile technology is transformative to, basically, everything. What has not been fully explored is why and how mobile devices can transform service delivery in particular settings.
Why is SMS so promising?
Something well-understood in the technology space is the value of approaching people using the platforms that they’re familiar with. In fact, in technology, the thing that matters most is use. Everything has to make sense to a user, and make things easier than they would be if the user didn’t use the system. This thinking largely takes place in technology spaces, in the niche called “user-interface design.” (Forgive the nerdy term, lawyers. Forgive the simplicity, fellow tech nerds.) These are the people who design the way that people engage with a new piece of technology.
In this way, considering it has 4.3 billion users, SMS has been one of the best, and most simply, designed technologies ever. SMS is instant, (usually) cheap, private, digital, standardized, asynchronous (unlike a phone call, people can respond whenever they want), and very easy to use. These benefits have made it the most used digital text-based communication tool in human history.
User-Interface-Design Principles + SMS + Legal Services = ?
So. What happens when you take user-interface design thinking, and apply it to legal systems? Recognizing that the assumptions underlying most formal legal systems arose when those systems originated (most of the time hundreds of years ago), how would we update or change what we do to improve the functioning of legal systems?
There are a lot of good answers to those questions, and moves toward transactional representation, form standardization (à la LegalZoom), legal process outsourcing (à la Pangea3), legal information systems (there are a lot), and process automation (such as document assembly) are all tremendously interesting approaches to this work. Unfortunately, I’m not an expert on any of those.
I work for an organization called FrontlineSMS, where I also founded our FrontlineSMS:Legal project. What we do, at FrontlineSMS, is design simple pieces of technology that make it easier to use SMS to do complex and professional engagement. The FrontlineSMS:Legal project seeks to capitalize on the benefits of SMS to improve access to justice and the efficiency of legal services. That is, I spend a lot of my time thinking about all the ways in which SMS can be used to provide legal services to more people, more cheaply.
And the good news is, I think, that there are a lot of ways to do this. Pardon me while I geek out on a few.
Intake and referral
The process of remote legal client intake and referral takes a number of forms, depending on the organization, procedural context, and infrastructure. Within most legal processes, the initial interview between a service provider and a client is an exceptionally important and complex interaction. There are, however, often a number of simpler communications that precede and coordinate the initial interview, such as very basic information collection and appointment scheduling, which could be conducted remotely via SMS.
Given the complexity of legal institutions, providing remote intake and referral can significantly reduce the inefficiencies that so-called “last-mile” populations — i.e., populations who live in “areas …beyond the reach of basic government infrastructure or services — face in seeking access to services. The issue of complexity is often compounded by the centralization of legal service providers in urban areas, which requires potential clients to travel just to begin these processes. Furthermore, most rural or extension services operate with paper records, which are physically transported to central locations at fixed intervals. These records are not particularly practical from a workflow management perspective and often are left unexamined in unwieldy filing systems. FrontlineSMS:Legal can reduce these barriers by creating mobile interfaces for digital intake and referral systems, which enable clients to undertake simple interactions, such as identifying the appropriate service provider and scheduling an appointment.
Client and case management
After intake, most legal processes require service providers to interact with their clients on multiple occasions, in order to gather follow-up information, prepare the case, and manage successive court hearings. Recognizing that each such meetings require people from last-mile communities to travel significant distances, the iterative nature of these processes often imposes a disproportionate burden on clients, given the desired outcome. In addition, many countries struggle to provide sufficient postal or fixed-line telephone services, meaning that organizing follow-up appointments with clients can be a significant challenge. These challenges become considerably more complicated in cases that have multiple elements requiring coordination between both clients and institutions.
Similarly, in order to follow up with clients, service providers must place person-to-person phone calls, which can take significant chunks of time. Moreover, internal case management systems originate from paper records, causing large amounts of duplicative data entry and lags in data availability.
To alleviate these problems, we propose that legal service providers install a FrontlineSMS:Legal hub in a central location, such as a law firm or public defender’s office. During the intake interview, service agents would record the client’s mobile number and use SMS as an ongoing communications platform.
By creating a sustained communications channel between service providers and clients, lawyers and governments could communicate simple information, such as hearing reminders, probation compliance reminders, and simple case details. Additionally, these communications could be automated and sent to entire groups of clients, thereby reducing the amount of time required to manage clients and important case deadlines. This set of tools would reduce the barriers to communication with last-mile clients and create digital records of these interactions, enabling service providers to view all of these exchanges in one easy-to-use interface, reducing duplicative data entry and improving information usability.
Caseload- and service-extension agent management
Although this article focuses largely on innovations that improve direct access to legal services for last-mile populations, the same tools also have the effect of improving internal system efficiency by digitizing records and enabling a data-driven approach to measuring outcomes. Both urban and rural service extension programs have a difficult time monitoring their caseloads and agents in the field. The same communication barriers that limit a service provider’s ability to connect with last-mile clients also prevent communication with remote agents. Mobile interfaces have the effect of lowering these barriers, enabling both intake and remote reporting processes to feed digital interfaces. These digital record systems, when used effectively, inform a manager’s ability to allocate cases to the most available service provider.
Applied to legal processes, supervising attorneys can use the same SMS hubs that administer intake and case management processes to digitize their internal management structures. One central hub, fed by the intake process that information desks often perform, and remote input where service extension agents exist can allow managers to assign cases to individual service providers, and then track them through disposition. In doing so, legal service coordinators will be able to track each employee’s workload in real time. In addition, system administrators will be able to look at the types and frequency of cases they take on, which will inform their ability to allocate resources effectively. If, for example, one area has a dramatically higher number of cases than another, it may make sense to deploy multiple community legal advisors to adequately address the area of greatest need.
Ultimately, though, SMS use in legal services remains largely untested. FrontlineSMS is currently working with several partners to design specific mobile interfaces that meet their needs. These efforts will definitely turn up new and interesting things that can be done using SMS and, particularly, FrontlineSMS. These projects, however, are still largely in the design phase.
In addition to practical implementation challenges, there are a large number of challenges that lie ahead, as we begin to consider the implications of the professional use of SMS. Issues such as security, privacy, identity, and chain of custody will all need to be addressed as systems adapt to include new technologies. There are a number of brilliant minds well ahead on this, and we’ve even jury-rigged a few solutions ourselves, but there will be plenty to learn along the way.
The potential is great
What is clear, though, is that SMS has the potential to improve cost efficiencies, engage new populations, and, for the first time, build a justice system that works for the people who need it most.
I don’t think any of this will square me with my property-law professor. I’m not sure I’ll ever fix property law. But I do think that by reaching out to new populations using the technologies in their pockets, we can make a difference in the way people interact with the law. And even if that’s just a little bit, even if it just enables one percent more people to protect their homes, start a business, or pursue a better life, isn’t that worth it?
[Editor's Note: For other VoxPopuLII posts on using technology to improve access to justice, please see Judge Dory Reiling, IT and the Access-to-Justice Crisis; Nick Holmes, Accessible Law; and Christine Kirchberger, If the mountain will not come to the prophet, the prophet will go to the mountain.]
Sean Martin McDonald is the Director of Operations at FrontlineSMS and the founding Director of FrontlineSMS:Legal. He holds JD and MA degrees from American University. He is the author, most recently, of The Case for mLegal.
VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.
My father was, as was his father before him, a country lawyer in a remote but very beautiful part of South Africa, in the foothills of the Maluti mountains on the border between South Africa and Lesotho. Prominent in his legal office near the Magistrate’s Court were shelves of leather bound volumes of South African statutes, cases, and law reports, which I found impressive, with their gold blocking on red spines. Even back then, South African lawyers were well supplied with legal publications, the production of which dated back to the mid-19th century, when a Dutch immigrant, Jan Carel Juta (who was married to Karl Marx’s sister) published the first law reports. This means that the legal profession in South Africa has access to a century and a half of legal records, something of undoubted value, given that many African countries have no legal publications at all.
If it was a court day, one could hear from my father’s office the hubbub of conversations in Sotho, Xhosa, English, and Afrikaans floating down the road from outside the Magistrate’s Court, where blanket-clad Sotho men down from the mountains had tied up their horses at a hitching post alongside police vans and farmer’s trucks.
This was Wild West country in the 19th century — and cross-border cattle rustling cases continue to figure large — but when I grew up, in the wake of the Second World War, it presented itself as a quiet village, in a prosperous farming area surrounded by very large ‘trust lands’ (in colonial- and apartheid-speak) of traditional Black peasant communities, where the place names were those of the presiding chiefs. This naming was a symptom of the colonial manipulation of the legal system, described by Mahmood Mamdani, to impose an autocratic and patriarchal ‘customary’ system, a heritage that lingers on in a democratic South Africa. In a legal practice like my father’s, there was a startling dichotomy between the well-paid work done for the prosperous white community with its commercial- and property-law needs, and the customary-law and criminal cases that came from the overwhelmingly larger black communities, dependent on legal aid or paying their fees in small cash installments to a clerk in a back office.
I was thus aware at a young age of conflicting values at the intersection between western concepts of the law, its formal and Latinate expression and punctilious enforcement, and the needs of rural black communities; the problematic role that language played in the adversarial ritual of criminal court procedure, alien to many participants; and the difficulties inherent in responding to the needs of very large and widely geographically dispersed poor and disenfranchised communities. The stories my father told about his days in court as a defending attorney were often tales of incomprehension compounded by mistranslation.
This rural setting provides a vivid and useful map of divergent needs for access to legal information in the complexity of an African context. In fact this setting throws a stark spotlight on issues of legal access that are easily obscured in the global North. In an urban setting in South Africa, the issues would be different respecting details, but generally the same: the question is how to bridge the gap between the formalities and rituals of colonially-based and imported legal discourse and the ways in which the legal system impacts on the lives of most of the population. In this context, how does one transform into action Nick Holmes’s concerns, as expressed in his VoxPopuLII blog, about making the law accessible, i.e., suited to meeting the needs of citizens and lawyers in less privileged practices, in an appropriate language and format? Or, to use Isabel Moncion’s distinction between the law and justice, how does one communicate the law in such a way as to reach the people who need the information? And lastly — of vital importance in an African setting where resources are scarce — how does one make such a publishing enterprise sustainable?
I do not come to this discussion with a legal training. I would have become a lawyer, no doubt, like the generations of my father’s family, but 1950s gender stereotypes got in the way. Instead, I became an academic publisher, and then a consultant and researcher on the potential of digital media in Africa. This trajectory gives a particular coloration to my concerns for access to legal information in Africa: my approach brings together an acknowledgement of the need for professional skills and sustainability with an awareness of the serious limitations of the current publishing regime in providing comprehensive access to legal information.
Law publishing in South Africa
The fact that South Africa has a well-established legal publishing sector sets that nation apart from the rest of Africa. The strength of the legal publishing industry is a reflection not only of South Africa’s prosperity, but also of the distinctiveness of the South African legal system, a fusion of Romano-Dutch and British legal traditions. The uniqueness of this system meant that South African law publishing could not rely on purely British sources, and gave local South African legal publishers a market not subject to competition from Britain. However, the nature of this legal system also gave it a tendency, at least in its early stages, towards a particularly impenetrable mode of expression, fueled by the Latinisms of its Roman roots.
Lawyers in practice, the legal departments of big companies, and the courts are relatively well served by the South African legal publishing industry, and the system is self-sustaining. However, there are problems. One is that the industry still clings to print-based business models. The focus is on the readership that can pay and on the topics that are of interest to this readership. The danger resides in seeing this situation as sufficient: in seeing the relatively wealthy market being served as the whole market, and the narrow range of publications produced as satisfying the totality of publication needs. With the South African legal profession still struggling to diversify out of white male dominance, this is an important issue.
As global media have consolidated in the last few decades, South African legal publishers have shown a decreasing willingness to try to find ways of addressing commercially marginal markets. This has meant that, although mainstream legal publishers in South Africa have long produced digital publications, there is reliance on a high-price market model. In other countries one might talk of a failure to address niche markets, but in South Africa it is the mass of the population who are marginalised by this business model. A smaller specialist publisher, Simon Sefton’s Siber Ink, seems more aware than the bigger players of the need for accessible language and affordable prices for legal resources, as well as active social media engagement to create debates about key community issues.
Some hope of solutions to the question of access by otherwise marginalised readers lies in the development, on the margins of the publishing industry, of innovative smaller players leveraging digital media to reach new readerships, often using open source models that combine the free and the paid for.
Access to legal information – The role of government
The main efforts being put into access to legal information in South Africa are quite rightly focusing on government-generated information, which, being taxpayer funded, should be in the public domain and is indeed available on the South African Government Information site. Progress is being made by the Southern African Legal Information Institute (SAFLII) in improving the accessibility of primary legal resources, and success would mean the availability of a substantial body of information that would then be available for interpretation and translation.
Beyond this, government practice in ensuring this level of access is patchy. Some departments are good at posting legislation on their Websites, others less so. Government Gazettes, although theoretically accessible to all, can be difficult to find and navigate; and the collation of legislative amendments with the original Acts is also patchy. There is — at least in theory — an acceptance of the need in government for an open government approach, but the fact that there is a publishing industry serving the profession and the courts ironically reduces the pressure to achieve this goal.
The Truth and Reconciliation Commission
There is a danger, however, when government sees the print-publication profit model as the natural and only way of producing sustainable publications. This was brought home in 1998 with a very important publication: the Report on the Truth and Reconciliation Commission (TRC). This sad and salutary story is worth telling in some detail. But first, a disclaimer: I was working at the time for the company that distributed the Report, and I was actively involved in securing the bid from publishers, although I was not supportive of the business model that was imposed in the end.
Five volumes of testimony, analysis, and findings from the Commission were produced to high production standards. The compilers saw the archival material that lay behind these volumes as ‘the Commission’s greatest legacy’ and the published volumes as ‘a window on this incredible resource, offering a road map to those who wish to travel into our past’ (p.2). The Department of Justice, working on the stereotypical view of how publication works, insisted that production and printing costs had to be fully recovered. The Department set a high price to be charged by the appointed distributor, Juta Law and Academic Publishers.
The second set of problems arose with the digital version of the publication that Juta had offered to develop. The digital division of the legal publisher insisted on high prices. It was this inappropriate digital business model that created a row in the press. Then, a ‘pirate’ version of the publication was produced by the developer of the TRC Website, who claimed that he had the rights to a free online product. Public opinion was firmly behind the idea that the digital version should be free and that the publisher was profiteering out of South Africa’s pain.
In the end, hardly any copies of the Report were sold. The lesson was a hard one for a publishing company: digital content that is seen as part of the national heritage cannot be subjected to high-price commercial strategies.
The full text of the TRC Report is now online on the South African Government Information Website.
Leaping the divide – Law and land
What is more difficult and diffuse is the route to providing access to really useful information that could help communities engage with the impact of legislation on their lives, whether the issue be housing policy or land tenure legislation, gender rights or press freedom.
If we go back to my initial example of rural communities and their access to the law, there is a dauntingly wide range of issues at stake — questions of individual agency, gender rights, fair labour practice, property rights and access to land, food sustainability, and a number of human rights issues – including legislative process as the ANC government implements the Communal Land Rights Act of 2004. In Matatiele, the village in which my father practised, there has been a long-drawn-out dispute about provincial boundaries, with the community challenging the legislative process in the Constitutional Court.
Questions of access to this kind of information are addressed in an ecosystem broader than the conventional publishing industry. NGOs and research units based in universities and national research councils address the wider concerns of community justice; using a variety of business models, these organizations produce a range of publications and work closely with communities. In the case of the Communal Land Rights Act, the Legal Resources Centre (LRC) supported a Constitutional Court challenge and published a book on the Act and its problems. The LRC, like other organisations of its kind, makes booklets, brochures, and reports freely available online. These efforts tend to be donor-funded and, increasingly, donors like the Canadian International Development Research Centre (IDRC) insist that publications be distributed under Creative Commons licenses. In the case of books published by commercial publishers, this means an open access digital version, and a print version for sale.
A major problem in providing commentary on legislative issues for the general public is that of ensuring a lack of bias. In the case of the Communal Land Rights Act — as well as for the other critical justice issues that it covers – the LRC explicitly aimed to provide a comprehensive insight into the issues for experts and the general public; the Centre accordingly placed the full text of its submissions to the hearings as well as answering affidavits on a CD-ROM and online. It also produces a range of resources, online text, and audio, targeted at communities.
Similar publication efforts are undertaken by a number of other NGOs and research centres — such as the Institute for Poverty, Land, and Agrarian Studies (PLAAS) at the University of the Western Cape and the African Centre for Cities at the University of Cape Town — on a wide range of issues. These organizations’ publishing activities tend to be interdisciplinary and the general practice is to place reports and other publications online for free download. There is a growing wave, in scholarly publishing in particular, to seek a redefinition of what constitutes ‘proper’ publishing; this process has yielded the notion of a continuum between scholarly (and professional) work and the ‘translation’ of this work into more accessible versions.
A useful strategic exercise would be to tag and aggregate the legal publishing contributions of NGOs and research centres — as these resources are often difficult to track, or hidden deep in university Websites — preferably with social networking spaces for discussion and evaluation.
These civil society publishers are generally dependent on donor funding. What is needed is to recognise them as part of the publishing ecosystem. The question is how to create publishing models that can offer longer-term sustainability that might work beyond a well-resourced country like South Africa. The most promising and sustainable future looks to be in small and innovative digital companies using open source publishing models, offering free content as well as value-added services for sale. Examples are currently mostly to be found in textbook and training models, like the Electric Book Works Health Care series, which offers free content online, with payment for print books, training, and accreditation.
What is clear is that multi-pronged solutions must be found over time to the question of how to bridge the divide in African access to reliable and relevant legal information, and that a promising site for these solutions is the intersection between research and civil society organisations and community activists.
Eve Gray is an Honorary Research Associate in the Centre for Educational Technology at the University of Cape Town and an Associate in the IP Law and Policy Research Unit. She is a specialist in scholarly communications in the digital age, working on strategies for leveraging information technologies to grow African voices in an unequal global environment.
Photos: Eve Gray CC BY
VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.