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JurisPedia, the shared law, is an academic project accessible on the Web and devoted to systems of law as well as legal and political sciences throughout the world. The project aims to offer information about all of the laws of every country in the world. Based on a Wiki, JurisPedia combines the facility of contributions on that platform with an academic control of those insertions a posteriori. This international project is the result of a free collaboration of different research teams and law schools[1].  The different websites are accessible in eight languages (Arabic[2], Chinese, Dutch, English, French, German, Spanish and Portuguese). In its seven years of existence, the project has grown to more than 15000 entries and outlines of articles dealing with legal systems of thirty countries.

In 2007, Hughes-Jehan approached my colleagues and I, then running the Southern African Legal Information Institute, to host the English language version of JurisPedia. We were excited at the opportunity to work with JurisPedia to introduce the concept of crowdsourcing legal knowledge to Anglophone universities, where we hoped the concept would fall on fertile ground amongst students and academics.

Any follower of the Wikipedia story will know that the reality is not as simple.

Wikipedia operates on 5 pillars:

  1. Wikipedia is an online encyclopedia;
  2. Wikipedia is written from a neutral point of view;
  3. Wikipedia is free content that anyone can edit, use, modify, and distribute;
  4. Editors should interact with each other in a respectful and civil manner;
  5. Wikipedia does not have firm rules.

In adopting the Wikimedia software, JurisPedia would appear to follow the same principles. There is a significant difference: JurisPedia is not written from a neutral point of view but from a located point of view. Each jurisdiction has a local perspective on their legal concepts. Jurispedia aims to represent the truth in several languages: the law is as it is in a country, not as it could or should be. As a result, we have the bases of a legal encyclopedia representing over 200 legal systems where each concept is clearly identifiable as a part of a national law.

 

Southern African Perspectives

As for Wikipedia, it is the third pillar which seems to strike terror into the hearts of the legal professionals and academics with whom I have spoken.

When describing the idea to one of the trustees of SAFLII, an acting judge on the bench of the Constitutional Court of South Africa, I was alerted to some difficulties that may lie ahead. She is an exceptional, open-minded and forward-thinking legal mind, but she was cautiously horrified at the prospect of crowdsourced legal knowledge. Her concerns, listed below, were to be echoed by the deans of law schools in South Africa who we approached:

  1. Because there is no formal control over submissions – and therefore their accuracy – JurisPedia cannot be used by students as an official reference tool. Citations linking to JurisPedia will not be accepted in student papers.
  2. Crowdsourced legal information, particularly in common law  jurisdictions, runs a high risk of providing an incorrect interpretation of the law.

The overarching concern appears to be that if legal content is made freely available for editing, use, modification and distribution, that the resulting content will be unreliable at best and just plain wrong at worst.

After 7 years online  though, there is a substantial amount of feedback about contributors to the project. The open nature of this law-wiki, to which every internet user can contribute, did not lead to a massive surge of uncontrolled and uncontrollable content. On the contrary, although the number of articles continues to grow, it remains reasonable. The subject of the project (only the law),  and its academic character has certainly led to a auto-selection of contributors of a higher caliber in legal studies. Many of the contributors are students doing a master or a Ph.D. degree, but they also include doctors, professors and professionals in law, such as lawyers, notaries and judges from more than thirty jurisdictions (and one member of parliament from the Kingdom of Morocco). All these specialists give the project a solid foundation and make it a reality by contributing from time to time as they can. More than 19000 users have subscribed to JurisPedia, and in the past year, more than 1000 people, from Arabic language countries for most part, joined its facebook group.

The JurisPedia content is licensed under a Creative Commons licence that is quite customisable so that the content can be reused for purposes other than commercial purposes. This last point is linked to the authorization of the particular contributor. This is a fair choice in the information society where the digital divide is an important element concerning every international project on the internet: for now, only the most developed jurisdictions have the possibility of using such collective creations in a commercial way. And we take pride in counting contributors from Haiti or Sudan (if you want to use commercially the informations they provide, please, contact them…)

In this context concerns regarding the integrity of the content of JurisPedia become less alarming.

However, I believe that these concerns also represent a misconception of what JurisPedia is and what it can be in the Anglophone, common law, legal context.

Occasionally, it is easier to understand what something is by describing what it is not. JurisPedia is not:

  1. A law report
  2. A law journal
  3. A prescribed legal text book
  4. A law professor
  5. A judge
  6. A lawyer

Let us imagine for a moment that JurisPedia is also not an online portal but a student tutorial group, led by a masters student, an associate or full professor. In the course of the tutorial, a few ideas are put forward, discussed, dissected and amended. Each student (in an ideal world!) leaves the group with a better understanding of a particular point of law which has been discussed. Perhaps the person leading the group has also had occasion to review his or her own position. The group dispurses to research the work further for a more formal submission or interaction.

Now let us imagine that a lay person struggling with a specific legal problem related to what the group has been discussing, is allowed a final, précised description of the law relating to this legal problem prepared by this tutorial group. He or she cannot head into a courtroom armed only with this information, but it may allow them to engage with a legal clinic or lawyer feeling a little less lost.

The thought experiment I describe above describes the read-write meme applied to the legal context. In this meme we encourage an involvement in sharing knowledge amongst legal professionals, academics and students in order to create a body of knowledge about the law accessible by the same as well as by the general public.

The risk of inaccuracies is present in all contexts, printed and online, crowdsourced or expert. A topic for a further blog may be the review of perceived versus actual risk but I would like to use this blog post to propose that the actual risk of inaccuracies can be mitigated by one of two approaches I have considered:

  1. a more active engagement by the legal community and academics in the form of editorial committees; or
  2. through the incorporation of JurisPedia into academic curricula.

My immediate concern with the idea of an editorial committee is that we then begin to morph JurisPedia into what it is not. However, if we can teach students of the law to understand how JurisPedia can be used, and how the concept of self-governance can be applied, then we have created a community of lawyers equipped to deal with a world in which there is some wisdom to the crowds.

The English version of JurisPedia is now hosted by AfricanLII, a project started by some of SAFLII’s founding members and now run as s project of the Southern Africa Litigation Centre. As AfricanLII, we want to help build communities around legal content. We believe that encouraging commentary on the law increases the participation of the people for whom the law is intended and therefore helps to shape what the law should be. JurisPedia represents an angle on this: informed submissions by members (or future members) of the legal community. I have described what JurisPedia is not and alluded to what it could be by way of a thought experiment. I propose that we see JurisPedia as an access point. It may be an access point for a student to assist them to understand a point of law that is opaque to them (including references for further reading); or it may be a way for a lay person to understand a point of law which is currently impacting their lives.

JurisPedia represents a mechanism for bringing relevance in today’s social context to the law. How it is used should be considered creatively by those who could potentially benefit from the legal information diaspora of which it is a part.

Global Perspectives
From the global perspective, JurisPedia gives information about Japanese and Canadian constitutional law in Arabic, information about Indonesian, Ukranian and Serbian law in French. It also gives information about experiments like the “legislative theatre”, born in Brazil and experimented with by actors in France and several other countries. JurisPedia is an international project that should follow some simple and unifying guidelines. This is why we tried from the beginning to eliminate any geographical centralization (in order to inform about law as it is and not as it should be in a certain state). The observation of law in the world is not necessarily connected to the idea of a universal legal system, and – since we like to highlight evidence  - law is linked to its culture and can be either more or less[3] similar to our own legal system.

Further, one of the latest enhancements to JurisPedia provides access to the law of 80 countries, by using Google Custom Search on a preselection of relevant websites (see family law in Scotland).

This is why shared law becomes not only a program preventing anybody from ignoring a legal system. On the contrary, JurisPedia will gradually make it possible to appreciate or react to what is done elsewhere, not only in the West but also in the North, East and South[4].


[1] Actually: the Institut de Recherche et d’Etudes en Droit de l’Information et de la Communication (Paul Cézanne University, France); the Faculty  of Law of Can Tho (Vietnam); the Faculty of Law at the University of Groningen (Netherlands); the Institute for the Law and Informatics at the Saarland University (Germany); Juris at the Faculty for political and legal sciences at the University of Quebec in Montreal. This list is not definite, the project being absolutely open, especially to research teams and Faculties of Law of southern states.

[2] This arabic version of JurisPedia (جوريسبيديا ) is most of the time managed by Me Mostafa Attiya, member of the Egyptian Bar Association. He made an amazing job and actively participated to build a large arabian legal community on the project.

[3] An animal is often considered to be a movable property. This can be absurd in some societies where the alliance between human and nature is different. History and literature told us often about this kind of astonishment when cultures observe each other (see, concerning criminal law and 900 years ago, Maalouf, Amin. The Crusades Through Arab Eyes, New York: Schocken Books, 1984. (concerning the trials by ordeal during the Frankish period.)

[4] This part was written in Europe…

Hughes-Jehan Vibert is a doctor of Law from the former IRETIJ (Institute of research for the treatment of the legal information, Montpellier University, France) and a research fellow in the Institute of Law and Informatics (IFRI, http://www.rechtsinformatik.de, Germany). He’s ICT project manager for the Network for Legislative Cooperation between the Ministries of Justice of the European Union and also working on a report about the diffusion and access to the law for the International Organization of the Francophonie.

Kerry Anderson is a co-founder of and coordinator for the African Legal Information Institute, a project of the Southern Africa Litigation Center. She has worked variously in web development, research and strategy for an advertising agency, IT startups and financial services corporates.She has a BSc in Computer Science from UCT and an MBA from GIBS. Her MBA dissertation was on the impact of Open Innovation on software research development clusters in South Africa.

[Editor’s Note: For topic-related VoxPopuLII posts please see: Meritxell Fernández-Barrera, Legal Prosumers: How Can Government Leverage User-Generated Content; Isabelle Moncion and Mariya Badeva-Bright, Reaching Sustainability of Free Access to Law Initiatives; and Isabelle Moncion, Building Sustainable LIIs: Or Free Access to Law as Seen Through the Eyes of a Newbie. 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.

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 Resourcesand 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.

Initial Findings

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

In December 2010, we launched the second phase of this project, the Federal Inventory. The Federal Inventory will include:

  • 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.

Tina S. Ching is the Electronic Services Librarian at Seattle University School of Law. She is the 2011-12 Chair of the AALL Digital Access to Legal Information Committee.

 

Emily Feltren is Director of Government Relations for the American Association of Law Libraries.

 
 

[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.

The Civic Need

Civic morale in the U.S. is punishingly low and bleeding out. When it comes to recent public approval of the U.S. Congress, we’re talking imminent negative territory, if such were possible. Gallows chuckles were shared over an October 2011 NYT/CBS poll that found approval of the U.S. Congress down to 9% — lower than, yes, communism, the British Petroleum company during the oil spill, and King George III at the time of the American Revolution. The trends are beyond grim: Gallup in November tracked Congress falling to 13% approval, tying an all-time low. For posterity, this is indeed the first branch of the federal government in America’s constitutional republic, the one with “the power of the purse“, our mostly-millionaire law-makers. Also: the branch whose leadership recently attempted to hole up in an anti-democratic, unaccountable “SuperCommittee” to make historic decisions affecting public policy in secret. Members of Congress are the most fallible, despised elected officials in our representative democracy.

OpenCongress: Responding with open technology

Such was the visceral distrust of government (and apathy about the wider political process, in all its messy necessity) that our non-profit organization, the Participatory Politics Foundation (PPF), sought to combat with our flagship Web application, OpenCongress.org. Launched in 2007, its original motto was: “Bringing you the real story about what’s happening in Congress.” Our premise, then as today, is that radical transparency in government will increase public accountability, reduce systemic corruption in government, and result in better legislative outcomes. We believe free and open-source technology can push forward and serve a growing role in a much more deliberative democratic process — with an eye towards comprehensive electoral reform and increased voter participation. The technology buffet includes, in part, the following: software (in the code that powers OpenCongress); Web applications (like the user-friendly OpenCongress pages and engagement tools); mobile (booming, of course, globally); libre data and open standards; copyleft licensing; and more. One articulation of our goal is to encourage government, as the primary source, to comply exhaustively with the community-generated Principles of Open Government Data (which, it should be noted, are continually being revised and amended by #opengov advocates, as one would expect in a healthy, dynamic, and responsive community of watchdogs with itchy social sharing fingers). Another articulation of our goal, put reductively: we’ll know we’re doing better when voter participation rates rise in the U.S. from our current ballpark of 48% to levels comparable to those of other advanced democracies. Indeed, there has been a very strong and positive public demand for user-friendly Web interfaces and open data access to official government information. Since its launch, OpenCongress has grown to become the most-visited not-for-profit government transparency site in the U.S. (and possibly the world), with over one million visits per month, hundreds of thousands of users, and millions of automated data requests filled every week.

OpenGovernment.org: Opening up state legislatures

The U.S. Congress, unfortunately, remains insistently closed-off from the taxpaying public — living, breathing people and interested constituent communities — in its data inputs and outputs, while public approval keeps falling (for a variety of reasons, more than can be gestured towards here). This discouraging sentiment might be familiar to you — even cliché — if you’re an avid consumer of political news media, political blogs, and social media. But what’s happening in your state legislature? What bills in your state House or Senate chambers are affecting issues you care about? What are special interests saying about them, and how are campaign contributions influencing them? Even political junkies might not have conversational knowledge of key votes in state legislatures, which — if I may be reductive — take all the legislative arcane-ness of the federal Congress and boil it down to an even more restrictive group of state capitol “insiders” who really know the landscape. A June 2011 study by the University of Buffalo PoliSci Department found that, as summarized on Ballotpedia :

First, the American mass public seems to know little about their state governments. In a survey of Ohio, Patterson, Ripley, and Quinlan (1992) found that 72 percent of respondents could not name their state legislator. More recently, an NCSL-sponsored survey found that only 33 percent of respondents over 26 years old could correctly identify even the party that controlled their state legislature.

Further, state legislative elections are rarely competitive, and frequently feature only one major party candidate on the ballot. In the 2010 elections, 32.7 percent of districts had only one major party candidate running. (Ballotpedia 2010) In 18 of the 46 states holding legislative elections in 2010, over 40 percent of seats faced no major-party challenge, and in only ten states was the proportion of uncontested seats lower than 20 percent. In such an environment, the ability to shirk with limited consequences seems clear.”[1]

To open up state government, PPF created OpenGovernment.org as a joint project with the non-profit Sunlight Foundation and the community-driven Open States Project (of Sunlight Labs). Based on the proven OpenCongress model of transparency, OpenGovernment combines official government information with news and blog coverage, social media mentions, campaign contribution data, public discussion forums, and a suite of free engagement tools. The result, in short, is the most user-friendly page anywhere on the Web for accessing bill information at the state level. The site, launched in a public beta on January 18th, 2011, currently contains information for six U.S. state legislatures: California, Louisiana, Maryland, Minnesota, Texas, and Wisconsin. In March 2011, OpenGovernment was named a semi-finalist in the Accelerator Contest at South by Southwest Interactive conference.

Skimming a state homepage — for example, California — gives a good overview of the site’s offerings: every bill, legislator, vote, and committee, with as much full bill text as is technically available; plus issues, campaign contributions, key vote analysis, special interest group positions, and a raft of social wisdom. A bill page — for example, Wisconsin’s major freedom of association bill, SB 11 — shows how it all comes together in a highly user-friendly interface and, we hope, the best-online user experience. Users can track, share, and comment on legislation, and then contact their elected officials over email directly from OpenGovernment pages. OpenGovernment remains in active open-source development. Our developer hub has more information. See also our wish-list and how anyone can help us grow, as we seek to roll out to all 50 U.S. state legislatures before the November 2012 elections.

Opening up state legislative data: The benefits

To make the value proposition for researchers explicit, I believe fundamentally there is clear benefit in having a go-to Web resource to access official, cited information about any and all legislative objects in a given state legislature (as there is with OpenCongress and the U.S. Congress). It’s desirable for researchers to know they have a permalink of easy-to-skim info for bills, votes, and more on OpenGovernment — as opposed to clunky, outmoded official state legislative websites (screenshots of which can be found in our launch blog post, if you’re brave enough to bear them). Full bill text is, of course vital for citing, as is someday having fully-transparent version-control by legislative assistants and lobbyists and members themselves. For now, the site’s simple abilities to search legislation, sort by “most-viewed,” sort by date, sort by “most-in-the-news,” etc., all offer a highly contemporary user-experience, like those found by citizens elsewhere on the Web (e.g., as online consumers or on social media services). Our open API and code and data repositories ensure that researchers and outside developers (e.g., data specialists) have bulk access to the data we aggregate, in order to remix and sift through for discoveries and insights. Bloggers and journalists can use OpenGovernment (OG) in their political coverage, just as OpenCongress (OC) continues to be frequently cited by major media sites and blog communities. Issue advocates and citizen watchdogs can use OG to find, track, and contact their state legislators, soon with free online organizing features like Contact-Congress on OC. OpenGovernment‘s launch was covered by Alex Howard of O’Reilly Radar, the National Council of State Legislatures (The Thicket blog), and Governing, with notes as well from many of PPF and Sunlight’s #opengov #nonprofit allies, and later on by Knight Foundation, Unmatched Style, and dozens of smaller state-based political blogs.

The technology that powers OpenGovernment.org

The technology behind OpenGovernment was assembled by PPF’s former Director of Technology (and still good friend-of-PPF, following his amicable transition to personal projects) Carl Tashian. In designing it, Carl and I were driven first by a desire to ensure the code was not only relatively-remixable but also as modular as possible. Remixable, because we hoped and expect that other open-source versions of OpenGovernment will spring up, creating (apologies for the cliché, but it’s one I am loathe to relinquish, as it’s really the richest, most apt description of a desirable state of affairs) a diverse ecosystem of government watchdog sites for state legislatures. Open data and user-focused Web design can bring meaningful public accountability not only to state legislatures, but also to the executive and judicial branches of state government as well. PPF seeks non-profit funding support to bring OpenGovernment down to the municipal level — county, city, and local town councils, as hyper-local and close to the neighborhood block as possible — and up to foreign countries and international institutions like the United Nations. In theory, any government entity with official documents and elected official roles is a candidate for a custom version of OpenGovernment facing the public on the open Web — even those without fully-open data sets, which of course, most countries don’t have. But by making OpenGovernment as modular as possible, we aimed to ensure that the site could work with a variety of data inputs and formats. The software is designed to handle a best-case data stream — an API of legislative info — or less-than-best, such as XML feeds, HTML scraping, or even a static set of uploaded documents and spreadsheets.

Speaking of software, OpenGovernment is powered by GovKit, an open-source Ruby gem for aggregating and displaying open government APIs from around the Web. Diagrammed here, they are summarized here with a few notes:

  • Open States – a RESTful API of official government data, e.g. bills, votes, legislators, committees, and more. This data stream forms the backbone of OpenGovernment. A significantly volunteer effort coordinated by the talented and dedicated team at Sunlight Labs, Open States fulfills a gigantic public need for standardized data about state legislation — largely by the time-intensive process of scraping HTML from unstandardized existing official government websites. Really remarkable and precedent-setting public-interest work, the updates are by James Turk on the Labs Blog. Data received daily in .json format, and wherever possible, bill text is displayed in the smooth open-source DocumentCloud text viewer (e.g., WI SB11).
  • OpenCongress – API for federal bills, votes, people, and news and blog coverage. OpenGovernment is primarily focused on finding and tracking state bills and legislators, but one of our premises in designing the public resource was that the vast majority of users would first need to look up their elected officials by street address. (Can you name your state legislators with confidence offhand? I couldn’t before developing OpenCongress in 2007.) So since users were likely to take that action, we used our sibling site OpenCongress to find and display federal legislators underneath state ones (e.g., CA zip 94110).
  • Google News, Google Blog Search, Bing API – we use these methods to aggregate news and blog coverage of bills and members, as on OpenCongress: searching for specific search terms and thereby assembling pages that allow a user to skim down recent mentions of a bill (along with headlines and sources) without straying far from OpenGovernment. One key insight of OpenCongress was that lists of bills “most in the news” and “most-on-blogs” can point users towards what’s likely most-pressing or most-discussed or most-interesting to them, as search engine or even intra-site keyword searches on, say, “climate change bill” don’t always return most-relevant results, even when lightly editorially curated for SEO. On pages of news results for individual bills (e.g., CA SB 9) or members (e.g., WI Sen. Tim Carpenter), it’s certainly useful to get a sense of the latest news by skimming down aggregated headlines, even given known issues with bringing in similarly titled bills (e.g., SB 9 in Texas, not California) or sports statistics or spam. Future enhancements to OpenGovernment will do more to highlight trusted news sources from open data standards — a variety of services like NewsTrust exist on this front, and there’s no shortage of commercial partnerships possible (or via Facebook Connect and other closed social media), but PPF’s focus is on mitigating the “filter bubble” and staying in play on the open Web.
  • Transparency Data API (by Sunlight Labs) to bring in campaign contribution data from FollowTheMoney. If Open States data is the backbone of OpenGovernment, this money-in-politics data is its heart. PPF’s work is first and foremost motivated by a desire to work in the public interest to mitigate the harmful effects of systemic corruption at every level of government, from the U.S. Congress on down. (See, e.g., Lessig, Rootstrikers, innumerable academic studies and news investigations into the biased outcomes of a system where, for example, federal members of Congress spend between 30 and 70 percent of their time fundraising instead of connecting with constituents.) Part of this is vocally endorsing comprehensive electoral reforms such as non-partisan redistricting, right-to-vote legal frameworks, score voting, parliamentary representation, and the Fair Elections Now Act for full public financing of elections. But the necessary first step is radical transparency of campaign contributions by special interests to elected officials, accompanied by real-time financial disclosure, stronger ethics laws, aggressive oversight, and regulation to stop the revolving door with lobbyists and corporations that results in oligarchical elites and a captured government. Hence “The Money Trail” on OpenGovernment, e.g., for Texas, is a vital resource for connecting bills, votes, and donations. The primary source for money figures is our much-appreciated and detail-oriented non-profit partners at the National Institute on Money in State Politics, who receive data in either electronic or paper files from the state disclosure agencies with which candidates must file their campaign finance reports. Future enhancements to OG will integrate with MAPLight‘s unique analysis of industries supporting and opposing individual bills with their donations. MAPLight has data for CA and WI we’re looking to bring in, with more to come.
  • Project VoteSmart’s API brings in special-interest group ratings for state government and allows OpenGovernment to highlight the most-impactful legislation in each state, marking their non-partisan “key vote” bills (e.g., for TX). VoteSmart does remarkable legislative analysis that neatly ties in bills to issue areas, but VoteSmart doesn’t have a built-in money-in-politics tie-in on their pages, or tools to track and share legislation. (This is just another way in which OpenGovernment, by aggregating the best available data in a more user-focused design, adds value, we hope, in an open-source Web app, about which more below.) Project VoteSmart’s work is hugely valuable, but the data is again ornery — special interest group ratings are frequently sparse and vary in scale, and are therefore difficult to accurately summarize or average — so for members, where applicable, we show a total of the number of ratings in each category (e.g., for TX Sen. Dan Patrick) and link to a fuller description.
  • Wikipedia – OG first attempts to match on a legislator’s full name to a bio page on Wikipedia, with largely good but occasionally false-positive results. Of course many politicians go by nicknames, so this is a straightforward enhancement we’ll make once we can prioritize it with our available resources. See, e.g., TX Sen. Joan Huffman on OG, and her bio on Wikipedia.
  • Twitter – OG has first-pass implementation of bringing in mentions of a state hashtag and bill number, e.g., #txbill #sb7, and for members, state name and legislator name, e.g., Texas Joan Huffman. This is another relatively straightforward engineering enhancement that we can make more responsive and more accurate with additional resources — for example, bringing in more accurate mentions and highlighting ones made by influential publishers on social media. Spending our time working within walled gardens to capture mentions of key votes isn’t inherently pleasant, but bringing out vital chatter onto the open Web and making it available via our open API will be worth the time and investment.
  • Miro Community, free and open-source software from PPF’s sibling non-profit the Participatory Culture Foundation (PCF), makes it possible to crowdsource streaming online video about state legislatures (e.g., CA).

The OpenGovernment.org Web app is free, libre, and written in open-source Ruby on Rails code (developer hub). Like OpenCongress, the site is not-for-profit, non-commercial, promotes #opengovdata, open standards, and offers an open API, with volunteer contributions and remixes welcome and encouraged. Two features: most pages on the site are available for query via JSON and JSONP; and we offer free lookup of federal and state elected officials by latitude / longitude by URL. PostgreSQL and PostGIS power the back-end — we’ve seen with OpenCongress that the database of aggregated info can become huge, so laying a solid foundation for this was relevant in our early steps. The app uses the terrific open-source GeoServer to display vote maps — many enhancements possible there — and Jammit for asset packaging. For more technical details, see this enjoyable Changelog podcast w/ Carl from February 2011.

Web design on this beta OG Web app is by PPF and PCF’s former designer (and still good friend after an amicable parting) Morgan Knutson, now a designer with Google. As product manager, my goal was creating a user interface that — like the code base — would be as modular as possible. Lots of placeholder notes remain throughout the beta version pointing to areas of future enhancement that we can pursue with more resources and open-source volunteer help. Many of the engagement features of the site — from tracking to commenting to social sharing — were summarized brilliantly by Rob Richards in this Slaw.ca interview with me from July 29th, 2011 — viz., walking users up the “chain of engagement.” It’s a terrific, much-appreciated introduction to the civic-engagement goals of our organization and our beliefs regarding how well-designed web pages can do more than one might think to improve a real-life community in the near-term.

More on open government data and online civic engagement

To briefly run through more academic or data-driven research on the public benefits of #opengovdata and open-source Web tools for civic engagement (not intended to be comprehensive, of course, and with more caveats than I could fit here) :

OpenGovernment.org: Some metrics

To wrap up this summary of OpenGovernment in 2011, then, I’ll summarize some of the metrics we’ve seen on Google Analytics — with limited outreach and no paid advertising or commercial partnerships, OpenGovernment beta with its six states will have received over half a million pageviews in its first year of existence. As with OpenCongress, by far the most-viewed content as of now is bills, found via search engines by their official number, which send approximately two-thirds of all traffic (and of that, Google alone sends over half). Hot bills in Texas and the WI organizing bill constitute three of OG’s top ten most-viewed pages sitewide. After hearing about a firearms bill in the news or from a neighbor, for example, users type “texas bill 321″ or “sb 321″ into Google and end up on OG, where they’re able to skim the bill’s news coverage, view the campaign contributions (for example) and interest group ratings (for example) of its authors and sponsors, and notify their legislators of their opinions by finding and writing their elected officials.

OpenGovernment.org: Next steps, and How you can help

In addition to rolling out to all 50 U.S. states and launching pilot projects in municipal areas, one of our main goals for OpenGovernment is integration with the free organizing features we launched this past summer on OpenCongress version 3. Enabling OG users to email-their-state-reps directly from bill pages will significantly increase the amount of publicly transparent, linkable, query-able constituent communication on the open Web. Allowing issue-advocacy organizations and political blog communities to create campaigns as part of future MyOG Groups will coordinate whipping of state legislators for a more continually-connected civic experience. And as always, tweaks to the beta site’s user interface will allow us to highlight the best-available information about how money affects politics and votes in state legislatures, to fight systemic corruption, and to bring about a cleaner and more trustworthy democratic process. Help us grow and contact us anytime with questions or feedback. As a public charity, PPF aspires to be grow to become more akin to the Wikimedia Foundation (behind Wikipedia), Mozilla (behind Firefox), and MySociety (behind TheyWorkForYou, for the UK Parliament, and other projects). We’re working towards a future where staying in touch with what’s happening in state capitols is just as easy and as immediately rewarding as, for example, seeing photos from friends on Facebook, sharing a joke on Twitter, or loading a movie on Netflix.com.

David MooreDavid Moore is the Executive Director of the Participatory Politics Foundation, a non-profit organization using technology for civic engagement. He lives in Brooklyn, NY.

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.

The Uniform Electronic Legal Material Act, referred to as UELMA, is ready for introduction into state legislatures.  It has undergone its final proofing and formatting process by the National Conference of Commissioners of Uniform State Laws (NCCUSL, or ULC) and has been posted on NCCUSL’s archival Website at the University of Pennsylvania, and is soon to come to NCCUSL’s official site.  The Act will be sent to the American Bar Association’s (ABA’s) House of Delegates for approval at the ABA Midyear Meeting in February, 2012 in New Orleans.

The UELMA addresses important issues in information management, providing sound guidance to states that are transitioning legal publications to digital formats.   The Act is citizen-oriented, and leaves all issues concerning commercial publishing to state policy and contract law.   Most importantly, the Act is outcomes-based, keeping it flexible in the face of changing technologies and evolving state practice.  A brief account of UELMA’s development and its main provisions is included in this posting.

The UELMA was drafted in response to a request from the American Association of Law Libraries (AALL), following the AALL’s 2007 National Summit on Authentication of Digital Legal Information. The purpose of the Summit was to bring national attention to the issues surrounding the rapid rise in the number of states publishing primary legal information resources electronically and, in some cases, cancelling print resources and publishing legal information only in electronic format.  Foremost among the issues were ensuring the trustworthiness of online legal resources  and preserving the electronic publications to provide for continuing accessibility.   The drafting of a uniform act on these topics was one of the top recommendations of the Summit’s attendees.

The ULC agreed to consider the development of a uniform law and appointed a Study Committee for that purpose.  The Study Committee recommended that a law be developed and a Drafting Committee was charged with the task.  After two years of consideration, including several face-to-face meetings, conference calls, and circulation of numerous drafts by email, the UELMA was read to and debated for the second time at the Annual Meeting of NCCUSL in July 2011.  After more than six hours of floor consideration, the NCCUSL Committee of the Whole passed the draft act, sending it to a Vote of the States.  UELMA passed its final hurdle with a positive Vote of the States, gaining approval by a vote of 45-0 (with 1 abstention and 7 jurisdictions not voting).

The UELMA, as it passed the Conference, requires a state that publishes official versions of its legal information in electronic format to do three things:

1.  Authenticate the information, by providing a method to determine that the legal material is unaltered from the version published by the state officer or employee that publishes the material;
2.  Preserve the information; and
3.  Ensure public accessibility on a permanent basis.

At a minimum, legal material that is covered by the Act includes the most basic of state-level legal information resources, including the state constitution, session laws, codified laws or statutes, and state agency rules with the effect of law.  In recognition of potential separation of powers issues, the UELMA does not automatically include judicial or executive materials, leaving it to the enacting state to decide whether and how to include those resources.  States may choose to include court rules and decisions, state administrative agency decisions, executive official documents, or almost any other information resources they designate as legal material.

For each type of legal material, the state must name a state agency or official as the “official publisher.”  The official publisher has the responsibility to authenticate, preserve, and provide access to the legal material. If legal material defined by the Act is published only electronically, that material must be designated “official” and meet the requirements of the Act.  If there is a print version of the legal material, an official publisher may designate the online version “official,” but the requirements of the Act to authenticate, preserve, and provide access must be met for the electronic version.

The requirements of the Act are not ended if the official electronic legal material is superseded, overruled, or otherwise ceases to be current law.   Legal material does not lose its value even if it is no longer in effect.  Accordingly, once a source is designated as official, it continues to be covered by the provisions of the UELMA.  Historical sources must be preserved and made available.

The Act does not affect any relationships between an official state publisher and a commercial publisher, leaving those relationships to contract law.  Copyright laws are unaffected by the Act. The Act does not affect the rules of evidence; judges continue to make decisions about the admissibility of electronic evidence in their courtrooms.

The comments to the UELMA provide a great deal of background on the decisions and intent of the Drafting Committee.  In many instances, the comments offer guidance to legislators who will be asked to consider the UELMA for passage.  The comments are included with the Act on the University of Pennsylvania’s Biddle Law Library Website.

Some issues specific to one of the three parts of the Act (authentication, preservation, and public access) are as follows.  More information on these points can be found in the comments to the Act.

Authentication (Sections 5 and 6) :

The Drafting Committee considered a wide range of approaches to authentication before settling on a policy of presenting a technology-neutral, outcomes-based document, leaving the choice of method used to authenticate legal material up to the states.  This approach also leaves it to each state’s discretion to change methods, as necessary or desirable.  What is required is that the official publisher provides a method for the user to determine that the electronic record is unaltered from the one published by the official publisher.

By the terms of the Act, the authenticated electronic legal material will receive a presumption of accuracy, the same presumption that is created by publication of legal material in print form.  The burden of proving inaccuracy shifts to the party that disputes the accuracy of the electronic legal material.   Electronic legal material from other states with substantially similar laws will receive the same presumption of accuracy.

Preservation (Section 7):

The Drafting Committee spent considerable time debating the preservation provisions.   The biggest issues were finding a way to describe what legal material would be covered by a preservation requirement, and how legal material should be preserved.

The Drafting Committee decided that, ultimately, all legal material covered by the Act’s authentication provisions should also be subject to its preservation requirements.  This was stated simply as requiring preservation of legal material “that is or was designated as official” under the Act.  This language requires that states preserve superseded or amended legal material, which retains importance despite its no longer being currently effective.  The comments to Section 7 make clear that the Drafting Committee intended the Act to cover not only the text of the law, but also the materials commonly published with the legal material.  This would mean that the lists of legislators and state officials typically published with session laws would be preserved, as would proposed or final state constitutional amendments, legislative resolutions, and any other type of information published with a legal material source.

The Drafting Committee decided to use an outcomes-based approach for the preservation requirements, similar to its approach to authentication.   The ultimate outcome of preservation is that legal material may be preserved in an electronic format, in print, or by whatever method the state may choose in the future; consistent with an outcomes-based approach, state policy and preference dictate the preservation method.

If legal material is preserved electronically, the UELMA requires that the integrity of the record be ensured, including through backup and disaster recovery preparations, and that the continuing usability of the legal material is ensured.  Recent natural disasters in the U.S. have highlighted the importance of disaster recovery preparations.  Further, information that is preserved in an unusable format is of no value.  The comments make clear that migration to new formats or storage media will be required from time to time.

The comments also note that the Drafting Committee intended that legally significant formatting be preserved.  The complexity of presentation of some legal materials — evident in indentations, italicization, and numbering of internal subdivisions, for example — may indicate or explain legislative or regulatory intent.  Preservation should not change the meaning of the legal material, but rather should ensure that the legal material is capable of being authenticated.

The Act recognizes that states have decades, and in some instances centuries, of expertise in preserving print materials, and does not specify preservation requirements or outcomes if the state chooses to preserve legal material in print.  Nor does the Act impose a duty on an enacting state to retrospectively convert its print material to an electronic format.  If, however, the state chooses to digitize previously non-electronic legal material, and if that newly electronic legal material is designated as official, then the requirements of the Act must be met.  Publication of legal material in an official electronic version subsequent to the adoption of the UELMA, even if the same legal material was published previously in print, triggers the requirements of the Act.

Permanent Access (Section 8):

Citizens must be informed as to government actions if they are to participate effectively in their government.  Legal material is an essential information source for citizens to access to become informed.   The UELMA recognizes this in requiring reasonable availability, on a permanent basis, of legal material, even that which is amended, repealed, or superseded.

The Drafting Committee debated conditions of access over several meetings, finally concluding that states already have long-term, relevant experience in making other materials available through archives, libraries, and state offices.  The enacting state has discretion to decide where, when, and how to provide access, including whether to charge fees for access.  Section 8’s requirement of permanent access does not require a state to provide unlimited access to its preserved legal information.  This drafting decision is consistent with the rest of the UELMA, which defers to state policy and practice in its other provisions.  Eventually, the Committee decided that the individual states could set their own requirements for access to legal material preserved under the Act, as long as the access is reasonable and in perpetuity.  For this reason, the Act does not address whether states can charge fees for access to preserved electronic legal material.

The Standards section of the Act (Section 9) directs official publishers of electronic legal material to consider developing standards and best practices as they choose and to implement methods for the authentication, preservation, and permanent access of electronic records.  The “Guiding Principles to Be Considered in Developing a Future Instrument,” the best practices document of the Hague Conference on Private International Law, were important guidelines that were repeatedly consulted in the drafting process.

Throughout its deliberations, the Drafting Committee was advised and informed by a large number of advisors and observers who came from federal and state governments, commercial legal publishers and software vendors, and a number of interested organizations.  Two American Bar Association advisors brought knowledge of and experience with technologies to the drafting process.  The observers were very helpful in assisting the Committee in its understanding of the possible impacts of proposed sections of the Act.  In some instances, the observers were able to explain existing and emerging technologies that might be used to accomplish the Act’s specified outcomes.  The Committee watched technology demonstrations and investigated various authentication processes already in effect.  The drafting process was strengthened by the level of support and expertise the advisors and observers brought, but, in the end, the Act was entirely the Committee’s work.

By designating the Committee’s product a uniform law, the ULC recognized the importance of the topic and urged wide adoption of the Act.  The final step in the UELMA’s development will be its introduction into state legislatures.   Bill sponsors are being identified, and the ULC anticipates the UELMA will be introduced in at least 8 states in January 2012, with the possibility of introduction in as many as 12.

The ULC has appointed an Enactment Committee for the UELMA to assist the larger ULC Legislative Committee with its charge to “endeavor to secure the enactment of [uniform] legislation.”   The Enactment Committee prepares “talking points” and summaries of the legislation, and works with individual legislatures, on occasion, to answer questions and further the introduction and approval of the Act.  Volunteers from several interested associations are also preparing to work towards the Act’s approval.  With strong support from the ULC and volunteers working on its behalf, by next summer the Uniform Act may itself become “legal material” in one or more states.

Barbara Bintliff
Barbara Bintliff is the Joseph C. Hutcheson Professor in Law at The University of Texas School of Law, and Director of Research at the School’s Tarlton Law Library and Jamail Center for Legal Research. She is The Reporter for The Uniform Electronic Legal Material Act.

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.

Source: AALL Universal Citation Guide (First Edition).

In his recent post, Fastcase CEO Ed Walters called on American states to tear down the copyright paywall for statutes. States that assert copyright over public laws limit their citizens’ access to such laws and impede a free and educated society. Convincing states (and publishers) to surrender these claims, however, is going to take some time.

A parallel problem involves The Bluebook and the courts that endorse it as a citation authority. By requiring parties to cite to an official published version of a statutory code, the courts are effectively restricting participants in the legal research market. Nowhere is this more evident than in those states where the government has delegated the publishing of the official code to a private publisher, as is the situation in more than half of the states.  Thus, even if the state itself or another company, such as Justia, publishes the law online for free, a brief cannot cite to these versions of the code.

To remedy this problem, we (and others) propose applying a system of vendor neutral (universal) citation to all primary legal source material, starting with the state codes. Assigning a universal, uniform identifier for state codes will make them easier to find, use, and cite. While we do not expect an immediate endorsement from The Bluebook, we hope that once these citations find their way into the stream of information, people will use them and states will take notice. We think it’s time to bring disruptive technology to bear on the legal information industry.

About Universal Citation


“Universal citation” refers to a non-proprietary legal citation that is applied the instant a document is created. “Universal citation” is also called a “vendor-neutral,” “media-neutral,” or “public domain” citation. Universal citation has been adopted by sixteen U.S. states in order to cite caselaw, but universal citation has not yet been applied to statutes by any state. A review of universal citation processes for caselaw is helpful in understanding how we may apply universal citation to statutes.

Briefly, a case follows this process before appearing as an official reported decision:

When issuing a written decision, a court first releases a draft called a slip opinion, which is often posted on the court’s Website. Private publishers then republish the slip opinion in various legal databases. A party can cite the slip opinion using a variety of citation formats, depending on the database.

Afterwards, the court transmits the slip opinion to the jurisdiction’s Reporter of Decisions, who may be a member of the judicial system or a private company. The Reporter edits the opinions, and then collects and reprints them in a bound volume with a citation. To cite a particular page within a case, which is also referred to as pinpoint citation, a party cites the case name, the publication, the volume, and the specific page number that contains the cited content.

Before the advent of electronic publishing, these books were the primary source for legal research. And, while publishers still print cases in book format, the majority of users read the cases in digital form. However, opinions in online database lack physical pages. To address this, online publishers insert page numbers into the digital version of an opinion to correspond to page breaks in the print version. Thus, the pinpoint citation (or star pagination) for an opinion, whether in print or online, is the same.

Under most court rules, and Bluebook guidance, once the official opinion is published, the Reporter citation must be used (see Bluebook Rule 10.3.1).

The decisions are published by a private company, usually Thomson West, and anyone wanting to read them must license the material from the company. Thus, if you want to cite to judicial law, you must pay to access the Reporter’s opinions. (Public law libraries offer books and database access, but readers must visit the physical library to use their resources. Google Scholar also provides free access to official cases online, but they must pay to obtain and license the opinions. In other words, Google, not the end user, is paying for the access.)

Universal citation bypasses the private publisher, and allows courts to create official opinions immediately. Under this system, judges assign a citation to the case when they release it. They insert paragraph numbers into the body of the opinion to allow pinpoint citation. This way, the case is instantly citeable. There is no intermediary lag time between slip and official opinion where different publishers cite the case differently, and there is no need to license proprietary databases in order to read and cite the work. In the jurisdictions that have adopted this system, the court’s opinion is the final, official version. Private publishers may republish and add their own parallel citations, but in most jurisdictions the court does not require citation to private publishers’ versions. (However, Louisiana and Montana require parallel citation to the regional reporter.)

The American Association of Law Libraries (AALL) developed the initial standards for vendor neutral citation formats. AALL published the Universal Citation Guide in 1999, and released an updated edition in 2004. The Bluebook adopted a similar scheme in Rule 10.3.3 – Public Domain Format. Under this format, a universal citation should include the following:

  • Year of decision
  • State’s 2-letter postal code
  • Court name abbreviation
  • Sequential number of the decision
  • “U” for unpublished cases
  • Pinpoint citation should reference the paragraph number, instead of the page number

The majority of states employing universal citation follow the AALL/Bluebook standard, but a few have adopted their own styles. (Illinois, Louisiana, Mississippi, New Mexico, and Ohio employ universal citation but use a different format than the AALL/Bluebook recommendation.)

Most states that use universal citation adopted it in the 1990s. Cornell Law Professor Peter Martin details these events in his article Neutral Citation, Court Websites, and Access to Authoritative Caselaw. Professor Ian Gallacher of Albany Law School has also written about the history of this movement in Cite Unseen: How Neutral Citation and Americas Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law. To date, 16 states assign universal citations to their highest court opinions. (To date, Arkansas, Illinois, Louisiana, Maine, Mississippi, Montana, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Vermont, Wisconsin, and Wyoming have adopted universal citation for caselaw.)  Illinois is the most recent state to adopt the measure (in June 2011), and the concept has been gaining traction in the legal blogosphere. John Joergensen at Rutgers-Camden School of Law started a cooperative effort called UniversalCitation.org this summer.

Universal Citation and State Codes

Applying universal citation to state statutes can provide the same benefits as to caselaw, making statutes easier to find and cite, and improving access. While all states publish some form of their laws online for the public, as Ed has noted, these versions of state laws are often burdened by copyright and licensing restrictions. With these restrictions in place, users are not free to reuse, remix, or republish law, resulting in stifled innovation and external costs associated with using poorly designed Websites that take longer to search.

Though the AALL provides guidance on universal citation for statutes, no state has adopted it. The Bluebook does not specifically reference universal forms of citations for statutes and generally requires citation to official code compilations. There are exceptions for the digital version of the official code, parallel citations to other sources, and the use of unofficial sources where they are the only available source. (Bluebook Rule 12 provides for citation to statutes, generally. The Bluebook addresses Internet sources in Rule 18.)

The AALL’s Universal Citation Guide provides a schema for citing statutes in a neutral format. Rules 305-307 lay out standardized code designations, numbering, and dating rules, and each state has a full description in the Appendices. Basically, the format uses the state postal code, abbreviations for the name of the statutes (Consolidated, Revised, etc.), and a date.

As a result, the universal citations look similar to the official citations.

The AALL universal citation uses a name abbreviation for the state name and the name of the statute compilation. AALL’s format does not use periods in the abbreviations. It also uses a different convention for the year. The Guide’s recommendation is to date the code by a “legislative event,” to make the date more precise. Using “current through” dating provides a timestamp for the version of the code being used. This approach is less ambiguous than listing simply the year.

States like California and Texas have very large, segmented code systems with more complicated official citation schemes. The AALL mirrors these with the universal version, giving each subject matter code an abbreviation similar to the one used by The Bluebook.

Universal citation does not designate whether the code version is annotated, and of course it does not mention the publisher of the source.

Experimenting with Universal Citation

Justia is now applying the AALL’s universal citation to the code compilations on our site. We add this citation to the most granular instance of the code citation, along with a statement identifying and explaining it. So far, we’ve added citations to the state codes of Hawaii, Idaho, Maine, and South Dakota.

We started with Hawaii. The official citation and the universal citation are fairly similar:

Official: Haw. Rev. Stat. § 5-9 (2010)
Universal: HI Rev Stat § x-x (2010 Reg Sess)

This is how the code looks on the Hawaii Legislature’s site:

This is how the code section looks on Justia. We added the citation right above the text of the statute.

On our site, the full citation is visible, so readers can quickly identify and cite to it.  The “What’s This?” link next to the citation explains the universal citation.

We used the Legislature’s site to determine the date.

We also added the universal citation to the title tags. This allows search engine users to see the universal citation in their search results. It makes the search results more readable, because the text of the statute name appears next to the citation. For example, compare a search for “Haw Rev Stat 5-9″

with “HI Rev Stat 5-9″:

With the search results for the universal citation (properly tagged), more information about that citation is presented. This helps the user quickly identify and digest the best search results.

We hope to accomplish three objectives by attaching universal citations to our codes. First, we want to give people an easy way to cite the code without having to look at proprietary publications. Not all citation goes into legal briefs or other documents that require formal citation to “official” sources listed by The Bluebook. The AALL universal citation scheme is easy to read and understand, and uses familiar abbreviations (like postal codes). Providing a citation right on the page of the code section will help people talk about, use, and cite to code sections without having to access “official” sources behind a paywall.

Second, we hope to demonstrate that universal citation can be applied in an easy and straightforward manner. The AALL has already developed a rigorous standard for universal citation; we are happy to use it and not reinvent the wheel. Legal folks here at Justia researched the AALL citation and the proper year/date information, and programmers applied the citation to the corpus. Anyone can do this, including the states.

Third, we want to encourage the adoption and widespread use of vendor-neutral citation schemes. There’s been a lot of talk about vendor-neutral citation for caselaw, and we are excited by efforts like UniversalCitation.org. Applying these principles to state codes will help get universal citation into the stream of legal information online. Just seeing the citation and the “What’s This?” page next to it will introduce readers to the concept. The more people use universal citations for state statutes, the more states will be forced to examine their reliance on third party publishers as the “official” source.

Next Steps

We plan to apply the universal citation to all of the codes in our corpus, but we have encountered some obstacles to achieving this for all 50 states. First, some of the codes are quite large and difficult to parse. Ari Hershowitz has documented his efforts to convert the California code into usable HTML. States like California, Texas, and New York will be more labor intensive. Second, the currency, or timestamp, is not always readily apparent on the state code site. With Idaho, I had to make a call to the Legislative Office to find out exactly when they last updated the code.

Source: AALL Universal Citation Guide (First Edition).

The third, and perhaps most troubling, issue is the “unofficial” status of the online state code repositories. With the exception of a few states (see Colorado), the codes hosted on the states’ own Websites are papered over with disclaimers about their authenticity. While I understand the preference for “official” sources when citing a code, there seems to be no good reason why the official statutes of any state are not available online, for free, for everyone. These are the laws we must obey and to which we are held accountable. Does the public really deserve something less than official version? The states are passing the buck by disclaiming all responsibility for publishing their own laws, and relying on third-party publishers, which charge taxpayers to view the laws that the taxpayers paid for. I hope that as we apply a universal citation to our state statutes, the law will become more usable for the public. By taking disruptive action and applying these rules to our large corpus of data, we hope that more people will see the statutes and cite using universal principles, and that the states will take notice.

We have assigned a universal citation to the first few states as a proof of concept. We will also be sharing our efforts by supplying copies of the code with the universal citations included for bulk download at public.resource.org. As we move forward with the remaining 46 states, we would love your input.  Comment here or contact me directly with your thoughts.

Peace and Onward.

[Editor's Note: For other VoxPopuLII posts on universal citation and the status of content in legal repositories, see Ivan Mokanov's post on the Canadian neutral citation standard, and John Joergensen's post on authentication of digital legal repositories.]

Courtney Minick is an attorney and product manager at Justia, where she works on free law and open access initiatives. She can be found pushing her agenda at the Justia Law, Technology, and Legal Marketing Blog and on Twitter: @caminick.

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.

In May of this year, one of us wrote a post discussing two research projects being conducted at the University of Montreal’s Chair in Legal Information. One of those projects, known by its team as the “Free Access to Law – Is It Here to Stay?” Project, has just concluded. This co-authored post is about that project, the stories we heard throughout conducting the research, and what we can learn from those stories about sustaining legal information institutes (LIIs) — a concern that came up on many occasions at this year’s Law via the Internet Conference in Hong Kong, and again in the blogosphere in Eve Gray’s recent post, and Sean Hocking’s post on Slaw, among others.

The first section of this post — written by Isabelle Moncion of Lexum — is about the “Free Access to Law – Is It Here to Stay?” project as a whole, and the second portion, written by AfricanLII co-founder Mariya Badeva-Bright, focuses on lessons learned as applied to The African Legal Information Institute (AfricanLII).

First, a few words about the methodology of the “Free Access to Law – Is It Here to Stay?” project. In 11 countries and regions –- Burkina Faso, Hong Kong, India, Indonesia, Kenya, Malawi, Mali, Niger, the Philippines, South Africa, and Uganda –- researchers under the coordination of the Chair in Legal Information, AfricanLII, and the Centre for Internet and Society interviewed users of Free Access to Law (FAL) services, and practitioners who create and maintain those services, for purposes of building case studies on one FAL initiative per country. The research was guided by the Local Researcher’s Methodology Guide, which among other things asked the question, “What determines the sustainability of operations of Free Access to Law initiatives?” Along with the case studies (available here, published in the language in which they were written), a Good Practices Handbook (humbly renamed “Good” rather than “Best,” as stories from the FAL initiative showed that unfortunately, but not surprisingly, an always-successful series of practices does not exist) was written based on the results found in the case studies. The handbook will be online soon.

Do check out the case studies and good practices to find out more, as they will be able to provide you with much more in-depth analyses than we can provide in this post. But for now, allow me (Isabelle Moncion) to share a few stories and observations, and perhaps a preview of some good practices, before Mariya shows how these stories can be applied to building new, and supporting existing, LIIs.

PART 1

Sustainability… isn’t just about funding –

This statement is as much a conclusion from the case studies as it is the result of group discussions — held prior to the field research — devoted to defining “sustainability.” Did sustainability mean how we fund LIIs, or was it start-to-finish practices leading to that funding? We went with the latter, and field stories showed that that was the right choice.

Organisational capacity is pivotal to a FAL initiative’s capacity to stick around. In Mali, funding wasn’t so much the issue: the FAL site disappeared when the student intern who had decided to launch the site — after noticing the immense quantity and quality of legal information available at the NGO where he was working, and concluding that this information should be made available online — completed his internship. In Indonesia, funding is without a doubt a challenge, but the Indonesian FAL site currently depends on a single individual, who is unable to devote the time required to maintain the site. The situation is similar in Niger, where the editor must go from court registry to court registry with an external hard drive to collect judgments. The Hong Kong Legal Information Institute‘s (HKLII’s) team is also small, but thanks to a judiciary-supported workflow, the team has been able to offer its users a high quality, reliable service. The Southern African Legal Information Institute (SAFLII) case study further demonstrates that organisational capacity facilitates response to financial crises. To quote from the Good Practices Handbook,  “… it is important to build redundancy and transfer knowledge to ensure continuity even on tight budgets. Having a meaningful internship programme with intense mentoring covering the two core skill areas of IT [information technology] and content management, coupled with good documentation, could contribute enormously to the viability of the FAL initiative.”

Organisational capacity also means knowing where one is headed. How many FAL initiatives did we encounter, whose personnel told us their objective is to “reinforce the rule of law” and their target audience is “everyone”? These are no doubt admirable and overarching goals of FAL, but if not coupled with specific objectives, these goals do little to help determine an organisation’s priorities and response to the needs of a particular stakeholder group that is potentially capable of financing the FAL initiative in the future.

Innovation… isn’t just another buzzword –

After using “sustainability” as many times as I have in this post, and now throwing in “innovation,” I beg you to indulge me in this section, and assure you that I will attach meaning to my list of buzzwords. (I promise I’ll save “empowerment” or “participatory governance” for another day, but I may have to use “capacity building” soon.)

Innovation seems like an obvious “good practice” –- but what does it mean in the context of FAL? Many organisations now claim to have “innovation” as part of their values, but as Ginger Grant pointed out so well at a conference on Managing by Values, when asked, “Who are the organisation’s troublemakers?” bosses and managers seem proud to reply that they have none. Well if you have no troublemakers, asks Grant, who’s innovating?

Small FAL teams with limited resources have been able to succeed. Small teams seem to favour the birth of new ideas, which face less resistance than they may in larger teams. Larger teams have managed to reach their size precisely because they initially did something that no one else was doing at the time, but staying innovative can become an increasingly challenging feat.

Having a team knowledgeable in both (legal) information management and IT, knowing who the users are and what their needs are (e.g., making the effort to find out why and how users use the service, and how else they might use the service if resources were unlimited; using Web 2.0 technologies for all they have to offer respecting getting user feedback; etc.), and staying in touch with others doing similar work (the Free Access to Law Movement (FALM); the open source software movement; various open-access, access-to-knowledge, open-knowledge, etc. movements) are just some of the ways FAL initiatives have managed to stay ahead of the curve. This is in part how SAFLII and Kenya Law Reports became among the first LIIs to look in to mobile services. This is how the Canadian Legal Information Institute (CanLII) began offering point-in-time comparison of statutes. This is also how Indian Kanoon — described in this VoxPopuLII post — rests upon a single software engineer and hasn’t stopped growing since its launch.

Where there’s a will –

… there may not always be a way, but there is definitely no way without a will.

In any of the eleven countries studied, the success of FAL initiatives is often the result of key individuals passionate about the task at hand. In places where FAL initiatives have suffered, it is again often the result of lack of interest or competing priorities. Working to (here it comes) build capacity and foster innovation is the M.O. of FAL practitioners motivated often by nothing more than a conviction that “it’s the right thing to do.”

And I hear now what we’ve been told so often throughout the course of the study: “But what do you do when there just isn’t any money?” Of course, this is a monumental challenge for a number of FAL initiatives, but where legal information is being produced, legal information needs to be accessed. The beauty (and essence) of FAL is that content is available to users accessing content for professional reasons, and to any other user, whether he or she is interested in legal information for personal matters, education, social justice, etc. But each of those users may have different needs, and going back to what I was saying above, this is why, particularly with limited resources, it’s important to know whose needs will be prioritized.

Users requiring legal information for their profession are a great stakeholder to target, as they are likely to come with funds. Insure they are receiving a service that facilitates their work and they will see benefit in ensuring the service stays around. (This is part of CanLII’s story.) But, as in the case of West Africa, the legal profession itself isn’t always well funded. So, although I started by stating that sustainability wasn’t all about funding, allow me to conclude by admitting that funding is often FAL initiatives’ greatest concern. In the course of the study, we identified the following funding sources:

  • Advertising on the FAL initiative’s Website
  • Government, including the judiciary
  • International development agencies
  • Law societies
  • NGOs, or members of civil society with similar missions
  • Private donations from users
  • Selling parallel, value-added services to subsidize the FAL portion of the initiative
  • University grants

Funding from each of these sources comes with strengths and challenges, but such funding also comes with the risk of drying up. Sustainable FAL initiatives have been able to offer user-targeted services, and to identify funding sources accordingly.

Part 2

The lessons from the Free Access to Law Study

Access to the law of many African countries is difficult, as this law is either locked away in expensive commercial databases, only available in a few law libraries housing out-of-date law reports, or simply not available. The free access to law movement in Africa, through the pioneering efforts of the Southern African Legal Information Institute (SAFLII) and the National Council for Law Reporting (incorporating Kenya Law Reports and KenLII), proved that this deplorable situation can be changed by applying information and communication technologies (ICTs) to the legal information domain. However, my personal experiences, and those of my team, in setting up and running SAFLII (until April 2010) revealed that the solution is not as easily implementable as we would have imagined it. Thoughts on the challenges faced are available through early VoxPopuLII posts by SAFLII’s team here and here.

Passion is a necessary prerequisite for a free access to law project to succeed. What we, then as a SAFLII team, learnt through our experience, was that besides zeal, IT expertise, and legal information knowledge, a great deal of business sense, structured business planning, and development were also required. We did have access to business expertise, but applying business principles to a novel, and non-profit, enterprise, without systematic guidance from those who had done it before, was very difficult.  We learned to navigate the landscape “on the job.” The formulation of a business-development approach to these projects, without compromising the basic tenets of free access to law, has increasingly come into focus for many legal information institutes (LIIs) around the world and in Africa.

The first attempt at formalizing the business-development and project-management knowledge around free access to law projects was the sustainability study undertaken by LexUM and SAFLII in 2009, aptly entitled “Free Access to Law – Is It Here to Stay?”  The methodology guide produced during the study was especially useful as the guide systematized all functional, operational, and strategic areas that a free access to law project should account for in its development. All areas would presumably contribute to the strengthening, hence sustainability, of such projects. While I should immediately discount the notion that all new and existing LIIs should be implementing the elaborate structures and extensive practices detailed in the methodology guide assessment matrix (and this is clearly what emerges when we review the case studies produced), a combination of approaches within the broad areas coupled with contextualization for each country would, in my opinion, foster the development of more sustainable LIIs. In that sense, a discernable outcome of the FAL study has been the elaboration of a blueprint for the development of LIIs. The blueprint is based on the collective, two-decades-old knowledge of the free access to law community.

A major aim of the study has been proving the social value that free access to law delivers. To put it squarely, that means linking free access to primary legal materials to values such as democracy, rule of law, and transparency, as well as to more concrete outcomes such as facilitating education and investment, professional capacity, etc. The study does not establish precise causal links between what FAL projects do and these high democratic values. The case studies are largely committed to individual stories that may serve as a basis for a larger study. But the study has managed to isolate links between processes, projects, outputs, and some outcomes of LII projects.  The study, through the Good Practices Handbook, has identified causal links between a LII project’s design, implementation, and results. In doing so, the study has also provided the FAL and donor communities with a monitoring and evaluation framework for free access to law projects.

Free access to law projects are usually assessed on indicators such as numbers of documents published, the number of databases created, the number of unique visitors and hits to the Website, etc. But what meaning do growing document collections, growing usage, and a few words from grateful users have if the free access to law project does not use these indicators to channel support for its continued operation?  The FAL study has provided us with means to identify priorities and determine the relevance of projects in terms of fulfilling objectives efficiently and effectively, all the while focusing on sustainability. The study provokes a FAL project manager to collect, and donors to seek, credible and useful information that will enable a clear picture of the status of the FAL project to emerge. In addition, incorporation of the lessons learned into the review and development of the project’s operations and strategy will be vital.

To sum up, the main lessons that I have learned from the free access to law study are about streamlining operations and strategy around core thematic areas crucial for the sustainable future of a free access to law project. As a core set of principles that should guide a LII, my LII blueprint includes the following highlights:

  • Think sustainability from Day 1
  • Demonstrate value from Day 2
  • Build a solid organization (no matter how small)
  • Identify champions for the cause and make friends for the LII
  • Involve all stakeholders early in the life of the LII
  • Be transparent about overall objectives and how to achieve them in an efficient and effective way
  • Be transparent about income received and expenditures made
  • Review strategy and develop operations with an aim of achieving sustainable free access to law

AfricanLIIAfricanLII

The approach to free access to law that my new project — the African Legal Information Institute (AfricanLII) — takes is in many ways informed by the “Free Access to Law – Is It Here to Stay?” study. Having had the benefit of working on both elaborating the study’s methodology and conducting two of the case studies, I feel that we can continue to develop and apply the knowledge thus gathered to building a solid foundation for free access to law in Africa. The AfricanLII will be the hub that provides that platform.

Many people had spoken about the idea of establishing an AfricanLII before my colleagues Tererai Mafukidze and Kerry Anderson and I decided to form the Institute. Naturally, there were differences of opinion about what AfricanLII should do and how it should be structured. The commonality was that all saw AfricanLII as a continental-wide portal of African legal information, similar to what WorldLII, CommonLII, and AsianLII offered. The AfricanLII that we envisaged, however, is a lot different from other systems. It is not a centralized access point for African primary legal information. AfricanLII does not collect, digitize, and publish directly legal information from African jurisdictions. We do facilitate finding that information via a federated search facility and the African Legal Index. We do plan on building services around African legal information. But AfricanLII’s mission is to enable access to African legal information by entrenching free access to law principles on national level. We do this by working with institutions in individual African jurisdictions, and helping them establish national legal information institutes and develop and maintain them in a sustainable way.

A standardized approach to delivering free access to law through a regional collection point is not a viable option in Africa. I have learned this through my experience working for a regional portal of free law — SAFLII — operating in the context of a diverse, largely non-digitized, legal information environment. The regional approach does go a long way to prove value and incentivize commitment from national institutions and donors, but it does not provide room for meaningful outcomes, engagement, and a sustainable future for the concept of free access to law on our continent. (See the SAFLII case study in the FAL Project Website for more details.)

AfricanLII works with national LIIs (currently SwaziLII, MalawiLII, MozLII, SeyLII, SierraLII, and LesothoLII) to translate their particular environments into successful and sustainable free access to law operations. We implement sustainability measures on both national and regional levels. For example, targeting government and professional users to support content collection and publication in a jurisdiction is best achieved when the free access to law project is based in that jurisdiction and constantly interacts with the stakeholders to improve the value of its offering. Value additions are also best achieved by locals. AfricanLII assists national LIIs in formulating and executing strategies around local engagement. As a regional hub, we implement sustainability initiatives that make sense only on a regional level.  Website monetization activities — web advertisements, directory services, and services around aggregated content, such as news and legal content or free and premium commercial publisher content mashups — are all examples of projects that are best undertaken at a regional level, where more data and more traffic make the activities more profitable. Profits are then channelled into the free access to law work of national LIIs and AfricanLII. We have planned a rollout of financial sustainability initiatives that will take effect in the short, medium, and long terms.

Financial sustainability is achievable only if national LIIs stay on track and develop sound practices in pursuit of a clear strategy. AfricanLII provides contextual operational and strategic assistance, advice, and training to new LIIs which helps these projects develop to potential. In doing so, we engage in rapid skills transfer to organizations with little to no experience in free access to law projects. AfricanLII remains available for continued support beyond the initialization phase.

The Open Society Initiative of Southern Africa (OSISA), The Open Society Institute (OSI), and Freedom House have all provided start-up funding to AfricanLII and some of the national LIIs we support. AfricanLII has developed a monitoring and evaluation framework based on this FAL study which ensures that donor money is well spent and real outcomes are achieved. AfricanLII collects and presents donors with relevant, timely, and accurate information against indicators derived in a credible process.

In conclusion, the Free Access to Law study has had a tremendous, and perhaps not entirely expected, impact on the work of free access to law publishers in Africa. I expect that we will continue to use and develop the study to suit our projects and create new ones based on it.

Isabelle MoncionIsabelle Moncion is a project manager with Lexum, and was a research assistant at the Chair in Legal Information of the University of Montreal until the end of the above described research project. She holds an MA in political science with a specialisation in international development from the University of Quebec in Montreal, and a B.Sc. in political science and communications from the University of Ottawa.

Mariya Badeva-BrightMariya Badeva-Bright, Magister Iuris (Bulgaria), LL.M. (Law and Information Technology, Stockholm), co-founded AfricanLII as a project of the Southern Africa Litigation Centre, and works primarily on content, legal information management, electronic legal research training, and policy development for new LIIs in Africa. She is the former Head of Legal Informatics and Policy at SAFLII. She is also a sessional lecturer at the School of Law, University of the Witwatersrand, South Africa.

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.

Farmland outside Matatiele

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.

Rural settlements

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.

Village traders

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.

South Africa Truth and Reconciliation Commission Report

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.

The LRC 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.

Sustainability models

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 GrayEve 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.

A Copyright Will Protect You From Pirates - A Copyright Will Protect You From Pirates - by Ioan Sameli - http://bit.ly/lJrePv. Licensed under a Creative Commons by-sa 2.0 license

A Copyright Will Protect You From Pirates - by Ioan Sameli - http://bit.ly/lJrePv. Licensed under a Creative Commons by-sa 2.0 license

In 2008, the State of Oregon sent a takedown notice to Tim Stanley, asking him to remove copyrighted material from Justia, Stanley’s pioneering free law website. Such takedown notices are relatively common in the world of Napster, YouTube, BitTorrent, and LimeWire.  However, Stanley, the founder of FindLaw, and later Justia, wasn’t publishing music or video.  He was publishing the Oregon Revised Statutes on his website, and the State of Oregon claimed that Justia’s free version of the statutes was infringing its copyright.

That’s right: the State of Oregon claimed a copyright in its statutes, and it wanted to enforce that copyright against a company publishing them for free online.

The conflict was resolved amicably, with the state inviting Tim and Public.Resource.org’s Carl Malamud to Salem for a public hearing, in which the state decided to revoke its takedown demand. But the compromise was an uneasy one.  Oregon did not disclaim copyright in the statutes — it merely agreed not to enforce its copyright claim against Justia and Public.Resource.org.  This limited waiver means that anyone else who publishes (or quotes) Oregon statutes would face a similar specter of copyright infringement.

This may seem like an isolated incident — perhaps the work of a renegade legislative staff member with an ambitious view of copyright law.  But this incident isn’t isolated.  LexisNexis believes that it owns the Georgia Code.  And the statutes of Colorado, Wyoming, and Mississippi.  The free Websites of many state legislatures contain copyright notices warning the world that copying public law is illegal and punishable under copyright law.

Copyright in public law means that a state or a publisher could restrict fundamental rights in law.  Things like copying — even citing the law in a brief — could be considered an infringing use.  This makes lawyers, journalists, the public, and even judges into pirates when they quote from statutes.  It subjects innovators, entrepreneurs, and other publishers, who could introduce competition in legal publishing, to potential copyright liability.  It chills innovation and blocks the widespread publication of the law.

And although statutes are clearly in the public domain, they are one of the last bastions of closed-source content on the Internet. A combination of state budget cuts, our antiquated process for codifying the law, and aggressive contract terms from publishers have conspired to create private copyright claims in public law.

How did we get to this state of affairs?  How can any commercial publisher believe that it “owns” our public law?  Can a publisher’s claims to intellectual property in a state’s laws possibly be enforceable?  And what can we do about it?

I’m tired of copyright being used to monopolize public law. This post should establish once and for all that copyright doesn’t protect public statutes, legislatures can’t grant private copyrights, and contract code publishers who mix their editorial work with state statutes can only claim very limited protection under copyright. It’s time for publishers, legislatures, and innovators to open state statutes.

How Can a Publisher Copyright Statutes It Didn’t Write?

At the outset, it seems crazy to say that publishers can copyright the law at all.  After all, legislators draft, debate, amend, and pass the law, and governors sign bills into law.  Most people consider statutes to be written by the people, since they are written on the people’s behalf by their elected representatives.

Publishers don’t write the law.  So how can they claim copyright in it?

Raw bills signed into law by governors aren’t the same thing as the codes that appear in bound volumes on the shelves. Statutes and codes are organized into outlines, with similar topics bunched together into titles, chapters, and sections. So, for example, a state’s election laws might all appear within the same title in the state code.  This “codification” process is sometimes dictated in the bill itself (especially when the bill amends an existing statute on the books), but often the codification process is left up to editors after the fact.

In addition, most codified statutes have headlines (called “catchlines” in the art) at the top of each section, and these don’t appear in the bill versions of statutes — they are later added by editors.

Codifiers and publishers add varying degrees of editorial enhancements to statutes, although many of these enhancements are pretty mechanical.  Hyperlinks between statute sections or to cases, or annotations showing where statutes have been cited, are good examples of additions that are more mechanical than editorial.

Finally, in the codification process, editors will occasionally need to resolve conflicts between a recently passed law and the rest of the code section where the law will be placed.  For example, some statutory titles have definitions that apply to all of the code sections beneath.  When a new law with conflicting definitions is codified in that section, an editor must resolve the conflicts (sometimes requiring commercial publishers to change an enacted statute, if you can believe that).

For most states, this codification process is simply a part of the legislature’s job.  They employ a team of editors in an office of codification counsel, and the legislature codifies passed bills into the state’s statutory code.

The codification process is difficult, time consuming, and expensive.  Many states (and Congress) employ teams of lawyers and legislative experts who organize and annotate their enacted statutes into codified volumes for publication.  However, some states outsource the editorial operations to legal publishers such as LexisNexis and West Publishing Co. (wholly-owned subsidiaries of the Anglo-Dutch publishing giant Reed Elsevier and Canadian mega-conglomerate Thomson Reuters, respectively).  And, apparently, publishers require in their contracts that the state grant to the publishers all of the intellectual property in the state codes that result.

Thus we have commercial publishers who claim a copyright in state statutes.

Is a Private Copyright in State Statutes Constitutional / Enforceable?

That briefly explains why a commercial publisher is even in a position to make a claim of intellectual property in statutes.  But the idea of state-owned (or private, foreign-owned) copyrights in public law is so counterintuitive, we should examine whether the claim is defensible.  Is copyright in state statutes enforceable?

Crown of King Cedric Rolfsson of An Tir by Jeff Martin / Godfrey von Rheinfels - http://bit.ly/lg40hb - Licensed under a Creative Commons CC BY-NC 2.0 License

Crown of King Cedric Rolfsson of An Tir by Jeff Martin / Godfrey von Rheinfels - http://bit.ly/lg40hb - Licensed under a Creative Commons CC BY-NC 2.0 License

The new crown copyright?

Historians would recognize this kind of claim to copyright in state law.  Before the American Revolution, the common law recognized the King’s (or Queen’s) right to copyright in a nation’s laws – the term was called “crown copyright.”  Any attempts to copy or quote the law must be authorized by the sovereign.  Although crown copyright still exists in the world, the United States for more than 200 years has stood for the rebellious idea that its law is owned by the people, and it may be used freely by them without the consent of the government.

The Founding Fathers considered copyright sufficiently important to address it in the Constitution’s Article I, Section 8 grant of powers to Congress: The Congress shall have the power “to Promote the Progress of Science… by securing for limited Times to Authors… the exclusive Right to their… Writings.”

It was clear enough that copyright was the purview of the people’s representatives in Congress, not of the executive. Congress removed all doubt in enacting 17 U.S.C. § 105, which establishes that works of the federal government (not just statutes, but all works) are not protectable by copyright — the federal government may not restrict the power of the people freely to use government works.

American copyright law is the opposite of crown copyright. Not only does the President not have a copyright in government works, but the entire federal government is barred from asserting copyright protection for government works.

Although the U.S. Code has little to say about copyright claims that states might assert in state codes, early American courts addressed the question several times, thereby establishing the legal framework for evaluating these claims.

Courts: State Codes Belong to the People

Courts have held time and time again that statutes may not be copyrighted, either by states or by private publishers. Some of our oldest copyright cases address issues of legal information; these cases generally held that the law is uncopyrightable.  See generally L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719 (1989), and cases cited therein.

First, the Constitution limits the protection of copyright to “authors,” and courts have held that, in copyright law, government actors (whether state or federal) cannot be considered the authors of public law.

In Wheaton v. Peters, one of the reporters of early American Supreme Court opinions, Richard Peters, Jr., republished without permission twelve volumes of the reports of his predecessor Henry Wheaton. 33 U.S. (8 Pet.) 591 (1834).  In its first opinion on copyright, the Court held that Wheaton could have no copyright in the opinions of the U.S. Supreme Court. 33 U.S. at 668 (“The Court are unanimously of the opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.”)

Copyright Criminal by Alec Couros: http://bit.ly/kpbOYu - Licensed Under a Creative Commons CC BY-NC-SA 2.0 License

Copyright Criminal by Alec Couros: http://bit.ly/kpbOYu - Licensed Under a Creative Commons CC BY-NC-SA 2.0 License

The Supreme Court in Banks v. Manchester held that a publisher of Ohio Supreme Court opinions could not be liable in copyright, because neither the previous publisher nor the court could be considered an author under the Copyright Act of 1873. 128 U.S. 244 (1888) (“Judges . . . can themselves have no . . . proprietorship, as against the public at large, in the fruits of their judicial labors. . . . [N]o copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties.  The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all. . . .”)

This rationale applies with even more force to legislatures, where statutes are written not by individual judges, but by the people’s elected representatives.  If copyright law doesn’t consider judges to be authors, it certainly won’t consider a representative legislature to be one.

Second, courts have consistently held that citizens have a Constitutional due process right to have access to the laws that govern them. Because copyrights in state law limit that access, courts have time and again resolved the conflict by holding that state statutes may not be copyrighted.  See Davidson v. Wheelock, 27 F. 61 (C.C.D. Minn. 1866) (publisher can’t copyright state statutes, even if state purports to give exclusive publishing rights); Howell v. Miller, 91 F. 129 (6th Cir. 1898) (“no one can obtain the exclusive right to publish the laws of a state”) (Harlan, J., sitting by designation); Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (Mass. 1886) (“Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices.”)

State legislatures cannot claim copyright to their statutes, because legislatures are not considered authors for the purposes of copyright law, and because the public’s due process rights to access the law serve as a limit on the copyrightability of state statutes.

Courts: Private Publishers Face Limited Copyright for Even Their Own Work

Even where they add material to public codes, publishers’ copyright claims in that work are limited by the Copyright Clause of the Constitution and by copyright provisions in the U.S. Code.

The Copyright Clause requires that works involve some modicum of creativity, so purely mechanical operations such as adding page numbers or numbers in an outline are not copyrightable. Feist Pubs. Inc. v. Rural Telephone Servs. Co., 499 U.S. 340 (1991). The publisher of a treatise about state statutes could claim copyright protection, but a publisher could not, for example, claim copyright in mechanical operations such as adding the next number in sequence to a codification, or collecting cases that cite to a section of the code. See also Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2nd Cir. 1998) (pagination in caselaw reporters is insufficiently creative to merit copyright protection).

Further, when legislatures subsequently sign the original works of publishers into law, the authored works pass into the public domain.  See Building Officials & Code Administrators Intl., Inc. v. Code Tech., Inc.., 628 F.2d 730 (1st Cir. 1980) (“BOCA”) (model code authored by private organization entered public domain when adopted by the State of Massachusetts); Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791 (5th Cir. 2002) (once the government takes action and passes the model code into law, “there is no reason to believe that state or local laws are copyrightable.”).

Finally, the act of organizing new laws into the outline format of the existing code probably deserves very little copyright protection.  Where a legislature amends a particular code section, the publisher’s act of processing the amendment is not creative enough to justify copyright protection under Feist: The process of placing a new law where it belongs in an existing code is often either so straightforward or so arbitrary as not to qualify as a creative act.

How Copyright Law is Applied to State Codes

Based on this discussion of copyright law, we can evaluate the copyright claims that publishers would likely make about state statutes.  The following seems crystal clear:

Law Books by Mr. T in DC: http://bit.ly/uhkyk - Licensed under a Creative Commons CC BY-ND 2.0 License

Law Books by Mr. T in DC: http://bit.ly/uhkyk - Licensed under a Creative Commons CC BY-ND 2.0 License

1. Federal statutes (and all federal materials, really) are uncopyrightable, period. Congress has prescribed this by law, and in any event, the U.S. Code is codified by the federal Office of Law Revision Counsel, not by a private publisher.

2. For state statutes, the underlying statutes themselves are almost certainly uncopyrightable. Courts consider them to have been written (constructively) by the people, and due process requires that people have unimpeded access to the laws that govern them.

Although courts haven’t addressed the examples below, the caselaw suggests that private publishers can’t claim much copyright protection in state codes:

Where public employees of states codify, organize, annotate, or write catchlines, is the resulting compilation copyrightable by the state? Courts might hold that the organization of statutes and catchlines meet the minimum constitutional requirements of creativity outlined in Feist. (Annotations, on the other hand, which are effectively lists of citing articles and cases, are uncopyrightable “mere facts”).

However, the same due process claims that protect the public’s right to the underlying statutes also protect their right to the codified statutes, especially if the codified version is the state’s “official” version of the statutes. Moreover, states and state employees are agents of the people, and courts are likely to hold that the work product of states and state employees is owned collectively by the people in the public domain. The official code, when codified by the state, is uncopyrightable.

Where states hire a publishing company to codify their enacted statutes, is the resulting compilation copyrightable? When a state outsources its work to private publishers, the publishers are agents of the state. Under agency law, publishers could have no more claim to copyright than the contracting agent could.  So if the state cannot claim copyright in its code, it cannot circumvent the copyright law by contracting the work to a private publisher.

The definitive copyright treatise Nimmer on Copyright adds that contract law is an important part of the analysis: Nimmer points out that that if the state’s publishing contract classifies the publisher’s codification as a “work for hire,” then the state owns the resulting intellectual property on behalf of its citizens. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright §§ 5.12 n.29 and 5.13[B][2]. Where states specify in their contracts that contractors are performing the work of the state, are agents of the state, or are performing a work for hire, courts would be unlikely to enforce copyrights for the agent to which the principal is not entitled.

Could a publisher claim copyright in its organization of a state code? Although copyright law protects the “compilation” of otherwise uncopyrightable elements (the classic example being an anthology of poetry, in which the poems themselves have passed into the public domain, but in which the author can claim copyright for their selection and arrangement) — publishers of state codes have much less discretion in their work than do publishers of other kinds of compilations.  Publishers of state codes may not, for example, decide which enacted laws to include in the code.  There is no element of selection.  And the code has a pre-established organizational structure that the publisher must follow in the codification process.  The placement of a passed law in the code section to which it most closely relates may require skill, but it is not creative for purposes of the copyright law.

In short, courts should protect original, creative editorial work, such as articles about the law written by an author.  But they should not give private publishers copyright protection where the publishers are performing functions necessary for codifying the official version of the code (such as organizing by topic or writing catchlines). Adoption of this view would protect new creative works while vindicating citizens’ important due process rights in public domain law.

Policy: Should We Root for Publishers?

Printing Press at the GPO by Ed Walters - Licensed under a Creative Commons CC BY-NC 2.0 License

Printing Press at the GPO by Ed Walters - Creative Commons CC BY-NC 2.0 License

Commercial legal publishers would likely argue that copyright should protect their creative work. Writing catchlines and organizing codes require expertise, and are expensive.  If anyone could copy the completed work, they might argue, publishers would never be able to afford to employ editors, and so would never be able to afford to pursue this line of business.  Legal publishing is a for-profit enterprise, and companies should be allowed to recoup their costs, even for state work.

However, when the work is on public law, the analysis must be different.  First, there are important policy implications to limiting access to statutes.  Copyright is not the only way for publishers to be rewarded for their labors.  And if courts choose not to enforce private copyright in public law, publishers could simply charge each state a fair rate to compensate them for their efforts.

Second, if publishers are using state contracts to create proprietary codes, the publishers are effectively receiving corporate welfare, a taxpayer-funded subsidy to create private works. Especially in times of limited budgets, states should be wary of spending taxpayer dollars in this way.  Taxes are well spent to create public infrastructure, such as highways (or statutes).  But taxpayers would revolt if states financed toll roads owned by foreign transportation conglomerates.  Public financing of copyrighted statutes is no different.

How States Can Take Back their Codes

Just this week, the Uniform Law Commission passed the Uniform Electronic Legal Materials Act, designed as a blueprint for state laws that would require preservation and authentication of state statutes published online, while making those statutes permanently available to the public.  The Act would have states designate a state employee or agency, not a private publisher, to serve as an “official publisher” of statutes for purposes of authenticating and preserving state codes.  To preserve the public’s permanent access under the Act, states should take whatever steps are necessary to restore statutes to the public domain. The Act thus points to the central role that the government, not private publishers, must play in the stewardship of our state statutes.

There are some straightforward ways in which states could clear up any confusion about the copyrightability of their state statutes.

States could hire their own codification counsel, do the work of statutory codification in-house, and make clear that the end result is in the public domain.  To the extent that private publishers sell proprietary versions of the code, those publishers may use the public version of the code as a starting point, and copyright their improvements. This approach is recommended as a best practice, but it may not be feasible for all states in difficult economic times.

Separately, to preserve statutes in the public domain, a state could contract with a commercial publisher for private codification services, but specify clearly in its contract that the resulting code is a work made for hire, and, consequently, is in the public domain.  In this case, it would make sense for the state to require the publisher to deliver a code free of proprietary commercial enhancements so that the work may pass completely into the public domain.  If publishers wish to add proprietary content, they may use the public code as their starting point.  But such proprietary content would not be subsidized by tax dollars.

Finally, legislatures can simply enact the codified statutes.  Congress does this with the codified U.S. Code, effectively blessing the work of its Office of Law Revision Counsel in codifying statutes.  If a legislature merely enacted its code by voice vote, the Code would pass into the public domain.

Conclusion

Commercial publishers perform an important role in codifying state statutes.  Their expertise and skill are vital to protecting our rule of law, which is rooted in an informed citizenry. However, statutes are by definition in the public domain, and rightly so.  Efforts to own our public law, by American-owned or foreign-owned publishers, violate both our understanding of copyright and our due process rights to access the laws that govern us. When states work together with private publishers to codify their official statutes, neither law nor policy suggests that the publishers may own the resulting codes.

Ed WaltersEd Walters is the CEO of Fastcase. Although nobody at Fastcase believes statutes are copyrightable, the company has no plans to be the test case for this proposition, thank you very much. Views expressed here are his own.

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.

RIP, MIX, LEARN: FROM CASE LAW TO CASEBOOKS

Like many projects, the Free Law Reporter (FLR) started out as way to scratch an itch for ourselves. As a publisher of legal education materials and developer of legal education resources, CALI finds itself doing things with the text of the law all the time. Our open casebook project, eLangdell, is the most obvious example.

The theme of the 2006 Conference for Law School Computing was “Rip, Mix, Learn” and first introduced the idea of open access casebooks and what later became the eLangdell project. At the keynote talk I laid out a path to open access electronic casebooks using public domain case law as a starting point. On the ebook front, I was a couple of years early.

The basic idea was that casebooks were made up of cases (mostly) and that it was a fairly obvious idea to give the full text of cases to law faculty so that they could write their own casebooks and deliver them to their students electronically via the Web or as PDF files. This was before the Amazon Kindle and Apple iPad legitimized the ebook marketplace.

The devilish details involved getting our hands on the full text of cases. We did a quick-and-dirty study of the 100 top casebooks and found that there was a lot of overlap in the cases. This was not too surprising, but it meant that the universe of case law — as represented by all the cases in all the law school casebooks — was only about 5,000 cases, and that if you extended that to all the cases mentioned — not just included — in a casebook, the number was closer to 15,000. I approached the major vendors of online case databases to try to obtain unencumbered copies of these cases, but I had no luck. Although disappointing, this too is not surprising, considering that these same case law database vendors are part of larger corporations that also sell print casebooks to the law school market.

Of course, the cases themselves are public domain and anyone with a userID and password could access and download the cases I needed. But the end-user agreements that every user must click “I Agree” to, include contract language that precluded anyone from making copies of these public domain cases for anything but personal use. Contract law trumped access to the public domain materials.

Fast forward a couple of years, to the appearance of Carl Malamud’s public.resource.or g, providing tarballs of well-formatted case law every single week. Add to that the promise of re-keying a large back catalog of cases via the YesWeScan.org project (also from public.resource.org) and we could now begin to explore ideas that had been simmering on the back burner for several years.

CASE SEARCH AS EBOOK: LEAN FORWARD / LEAN BACK

One of the neat features at FreeLawReporter.org is that it allows you to convert the results of a search into a downloadable ebook in .epub format which you can read on your Apple iPad or Barnes & Noble Nook and other ereader devices. (.epub ebooks may be readable on Amazon Kindles soon.)  The idea for this feature sprang from some articles I had read about how people read on the Web versus how people read books. Jakob Nielsen explains it well in a post entitled “Writing Style for Print vs. Web”:

Print publications — from newspaper articles to marketing brochures — contain linear content that’s often consumed in a more relaxed setting and manner than the solution-hunting behavior that characterizes most high-value Web use.

What does this have to do with case law and ebooks?

It’s all about what kind of reading you are doing. When you are doing research — especially online research, which involves refining your search terms, clicking through lots of links, and opening lots of browser tabs — you are “leaning forward,” actively looking for something that you plan to read in greater depth later. In the case of legal research, the results of your efforts are a collection of cases — dozens or hundreds of pages long. Once you have found the most on-point cases, you know that you need to read them deeply and carefully in order to follow and understand the arguments. This type of reading I call “leaning back,” and is more suited to the environment you create as a book reader than the one you create as a Web reader.

Turning case law searches into books seems like a natural consequence of the movement between “lean forward” Web searching and “lean back” book reading. There is a lot of anecdotal writing about this, but I am h ard-pressed to find scientific literature that is definitive. Fortunately, with FreeLawReporter.org, open source tools, and a smart developer, we can experiment and let users decide what works best for them. This is an important point that deserves some expansion.

“FREE” AS IN “FREE TO EXPERIMENT AND INNOVATE”

The primary product of the online legal database vendors is targeted primarily at big law firms. They get the big cases, have the big clients, and spend the most on legal research. As you move down the scale of firm size, you also move down in ability and willingness to pay for legal research, or ability to charge the cost of legal research back to the client. By the time you arrive at small firms and solo practitioners, the amount of time spent doing legal research is much reduced, and, in the case of purely transactional practices, legal research is done only rarely.

The use of these databases in legal education, however, is different. Legal research instructors try to give students a flavor for what using the databases in the real world will be like, but without knowing what type of law the students will end up practicing. The instruction, therefore, must be generalized. The databases are optimized for users who have almost unlimited (in time and cost) access. The databases were not designed for optimizing legal education. With the online database vendors, you get a powerful and comprehensive product, but you cannot change it to suit particular educational goals. You must adjust to it.

A database of the law should be available to the legal education community as a free, open, and customizable system that has affordances for instructors and researchers, i.e., law librarians and law faculty. We are only beginning to explore these ideas, but one analogy is that Wexis is to the Free Law Reporter as Windows is to Linux. The free and open aspect of the Free Law Reporter (FLR) will let legal research instructors, law faculty, law students, and even the public do things that are not possible within the contractually locked-down and/or digitally rights-managed systems that are designed primarily as a product for the most expensive lawyers in the marketplace.

With FLR, we can experiment with tweaking the algorithms behind the search engine to optimize for specific legal research situations. With FLR, we could create closed-universe subsets that could be used for legal research exercises or even final exams. With FLR, we could try out all sorts of things that we cannot do anywhere else.

I don’t expect FLR to be a replacement for anything else. It is a new thing that we have not seen before — a playground, a workshop, a research project, and a tool shed for legal educators. It can only grow in value and increase in quality, but we need help.

WHY “REPORTER”?

The choice of the name “Free Law Reporter” was deliberate. The “free” refers to both the cost and the open source aspects of the project, in the Free Software Foundation tradition. Richard Stallman has often expounded on the importance of access to the code you run on your computer; so too should every citizen have access to the laws of the land. In the past, case law was outsourced by the government to vendors who created the original Reporter system, which was made widely available to the public via state, county, and academic law libraries. Many libraries have, of necessity, cut back on their print subscriptions, reduced their hours of access, reduced their staff, or closed altogether, but the real loss of access to the public started when the law transitioned to online legal databases.

Now that online access to the law is the new normal, the disintermediation of law libraries is nearly complete, but the courts and governments have not kept up with the equal access during the transition. In the legal publishing lifecycle, there is an opportunity to add value, between the generation of the raw data of law, and the fee-based publication of law by online database vendors. FLR, with the help of law librarians, can seize that opportunity. This is not just a value proposition respecting public access to the law. Academic law libraries should have free and open access to the law, access that allows them to define and construct the educational environment for law students.

I am not sure whether the Free Law Reporter (FLR) can grow into what I envision. We are only at the beginning, but I believe it’s about time we got started. I do know thatCALI: The Center for Computer-Assisted Legal Instruction we cannot succeed without the assistance and participation of the law librarian community. Right now, this assistance is mostly provided by law schools’ continued annual CALI membership.

We are working to make participation in the growth of FLR possible, by finding ways to tap the cognitive surplus of law librarians, students, faculty, and lawyers. The key challenge, I believe, is the construction of a participation framework where many small contributions can be aggregated into something of great, cumulative value. Wikipedia, Linux, and many other open source projects are exemplars from which we can take cues. There is so much to do and I am excited by the technical and organizational challenges that FLR presents. Expect to hear more from us about this project as we get our legs underneath us.

John MayerJohn Mayer is the Executive Director of the Center for Computer-Assisted Legal Instruction (CALI), a 501(c)(3) consortium of over 200 US law schools. He has a BS in Computer Science from Northwestern University and an MSCS from the Illinois Institute of Technology. He can reached at jmayer@cali.org or @johnpmayer.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed.

Free Access to LawHow are free access to law (FAL) services being used throughout the world? And how can these services be made sustainable? This post describes a research effort devoted to answering those two questions. The effort is funded by IDRC, and is being conducted by the Chair on Legal Information at the University of Montreal.

[Lexum -- the Canadian legal technology firm that created and administers CanLII, the Canadian Legal Information Institute -- began its existence as LexUM, a research unit of the University of Montreal. In 2009, LexUM was divided into two parts. One part, called Lexum, became an independent company, while the second part, called the Chair on Legal Information, remained with the University of Montreal. For purposes of simplicity, "LexUM" and "Lexum" will both be referred to in this post as "Lexum."]

This post also describes my personal experience of participating in this research and learning about free access to law.

Project Overview

At the Chair on Legal Information at the University of Montreal, with a team of researchers situated all over the world, we’ve been working on two on-going research projects since 2009: (1) A review of legal information in four West African countries, and (2) a global study on the sustainability of Free Access to Law initiatives.

In conducting these research projects over more than two years, we have interviewed lawyers, magistrates, judges, law students, public servants, law librarians, and anyone else we could find who could talk about legal information in their countries.

Here is how I came to be involved in this effort.

Being Introduced to Free Access to Law

Earthquake in IndonesiaOctober 2009: a 6.8-magnitude earthquake hits Indonesia; U.S. President Barack Obama receives the Nobel Peace Prize; we’re in the midst of the global financial crisis; and unbeknownst to me, I’m about to discover a world I have never heard of before: the world of Free Access to Law (FAL).

The idea of Free Access to Law, although it has been around for nearly 20 years in Canada, was entirely new to me in October 2009. Prior to that, I hadn’t worked in the field of law, although I had spent years in its neighbouring field, political science, and worked for a number of groups and organisations involved in issues concerning human rights and social justice.

A fairly simple concept it seemed to me, this FAL creature. How much could there be to know about putting the law on the Internet? Through our research, I was to find that FAL is a very complex phenomenon — a world of knowledge and expertise, questions and debates, values and principles; and a movement in which hundreds upon hundreds of individuals from all around the globe are active — and that many factors influence the effectiveness and sustainability of FAL services.

The First Study: The Use of Free Access to Law Services in West Africa

For the first study, our purpose was to find out how lawyers were accessing and using legal information in our subject countries: Burkina Faso, Niger, Senegal, and Togo.

Map of West AfricaThe context for this study was the development of free access to law services in these countries. In the first half of the 2000s, free access to law (FAL) initiatives for the countries of Burkina Faso and Niger — JuriBurkina and JuriNiger, respectively — were launched with the coordination of Lexum. Once JuriBurkina and JuriNiger had begun operations, efforts were soon in place to develop similar sites in Senegal and in Togo. In Senegal, after expressing initial enthusiasm for the idea, the Bar eventually lost interest in the project and declined to cooperate in moving the project forward. In Togo, the Bar expressed its interest in the project a little late, so Lexum included them in a review of legal information project, while seeking their support for FAL efforts at the same time

In our first study, we sought answers to the following questions: What kind of information did lawyers in these countries need, in what format, how often, and for what purpose? How had these FAL Websites changed the way lawyers in these countries do their job?

Here are the key findings of the first study. First, many legal professionals in these countries knew little about the FAL sites’ existence, let alone their purpose. Second, JuriBurkina and JuriNiger were found to have had a limited impact on the way the lawyers who are their target audience conduct their research, mostly because the lawyers either didn’t know about the sites or didn’t find what they were looking for on the sites.

The legal professionals we met during our research were not talking about how they are and have been using the sites, nor how free access to legal information online has changed their research habits. Rather, we were being told about the potential of the sites, and what is likely to change -– and this only in the instances in which the respondent had ever heard of or used either JuriBurkina or JuriNiger.

Third, the content of the FAL sites in these countries was very limited. These content limitations appeared to affect users’ perceptions of the relevance of the sites. When we examine the sites, we see little in the way of updates and few documents. JuriBurkina, hosted locally, was also down on a regular basis until Lexum brought it back on its servers, where it’s been available ever since.

Fourth, contextual factors contributed significantly to these content limitations. In Burkina Faso, Lexum and the local Bar were hoping to launch an all-inclusive legal information portal for the country, where users could access statutes, statutory material, case law, and eventually secondary material as well. Yet restrictions on access to legislative content led to the launch of a site containing mostly case law — in a civil law country. In Niger, access to judgments was greatly limited following the 2010 coup. With a military regime in place, data sources were less than keen on handing over decisions.

Fifth, differential access to technology may have affected the perceived usefulness of the FAL services. Both the lawyers and law students we met in West Africa have greater access to mobile phones (that lack Internet access) than they do to computers with Web access, and the West African FAL sites are available only via the Web.

The Second Study: The Sustainability of Free Access to Law Services

Our second, global study is known as the “Free Access to Law – Is it Here to Stay?” research project. [Editor's Note: The first report related to this study is available here.] With partners in Asia, Southern Africa, and West Africa, we have attempted to evaluate how we could ensure that sites providing legal information for free to the public can continue to do so in the long term. We were interested not just in funding models, but also in organizational models, taking into consideration variables related to political, social, and technological contexts. We asked: Can a strong team of dedicated individuals, with know-how and funding, build sustainable FAL initiatives?

For this second project, too, we went around interviewing the usual suspects — users and makers of freely accessible legal information — in Burkina Faso, Niger, Mali, India, Indonesia, Hong Kong, the Philippines, Uganda, Kenya, and South Africa. We asked the makers of FAL such questions as: How were they running their sites, coping with limited resources, deciding on which projects to undertake, and managing relationships with data sources?

Here are some key findings of this study. First, contextual factors, particularly political and technological, are critical to an FAL initiative’s capacity to ensure sustainability. Without the participation of those who make the law, be it legislative or case law, it is difficult for an FAL initiative to fulfill its mission.

Technological contextual factors are of particular importance respecting the sustainability of FAL initiatives. Legal Information Institutes have elected the Web as the best way to offer public and free access to legal information: The Web is relatively cheap, and reaches unparalleled numbers of users instantaneously. But easy and inexpensive Internet access — unfortunately, like many things in this world — is not a universal fact of life. Although perhaps one of the most democratic forums of our time, the Web is still far from being available in most households around the globe. [Editor's Note: The ITU's The World in 2010 pamphlet provides recent data on Internet use and access in developing countries.]

Second, respecting securing user buy-in to an FAL site, we found that the key is to ensure that the information published is highly relevant: that it is the information most needed by the site’s users. If FAL is to continue to play the pivotal role it has had in defining how users access legal information, sustainability is going to depend on our capacity to adapt, such that we provide a service needed by specific groups of users operating in specific contexts.

Common Findings of Both Studies

The findings of the studies actually coincide in more than one way. The first concerns the importance to users of the perceived relevance of information available from FAL services. This may seem like an obvious conclusion, but it was not expressly stated by our respondents, and had to be inferred from our data. The users we met had a tendency to speak of the “comprehensiveness” of collections as being one of the primary factors determining whether they would adopt an information source for their professional needs. A strong majority also said that before searching online, they would refer to their firm’s private collection, to their national archives, or to their Bar’s library. But their firm’s private collections were far from being “comprehensive.” What those collections were, though, was targeted, and focused on the lawyers’ specific informational needs.

The second common finding concerns the importance of contextual factors to the sustainability and perceived usefulness of FAL sites. Many free access to law initiatives are faced with limited access to technological, human, and financial resources. For initiatives working under such constraints, carefully choosing which information to prioritize for publication is essential. Yet, as noted above, our research suggests that the information that is published must be perceived as highly relevant by the users of the FAL service, if users are to “buy-in” to the service for the long term and integrate the service into their research practices.

In addition, the contextual factor of technology seems to affect both the sustainability of FAL sites and users’ perceptions of the usefulness of those sites. The evidence from West Africa suggests that the inability of lawyers and law students to access FAL sites via mobile phones may have contributed to users’ perceptions that the sites lacked relevant information. Respecting sustainability, the persistence of low levels of Internet access in developing countries poses a possible obstacle to widespread public buy-in to Web-based FAL services over the long term.

Issues Needing Further Research

In addition to the issues raised by the findings discussed above, our research on the use and sustainability of free access to law services has also highlighted additional issues that warrant further study. The first concerns justice and the rule of law. Free access to law, as a movement, gives itself the mandate to reinforce the rule of law. But in societies where a great social distance divides those who produce the law and those governed by it, we may need to go beyond the concept of law and start thinking about justice.

The second concerns the role of law in highly unequal societies. What is the role of a free access to law initiative in a context in which the law and legal information are not considered to belong to the public? In which legal information — written in a language not spoken by the majority of the population — is effectively the property of the elite? In which the law in force is a tool of oppression and segregation?

The third concerns access to technology and the digital divide. Limitations on Internet access must be taken into consideration not only respecting sustainability and users’ perceptions of the relevance of FAL services, but also to insure the coherency of FAL’s mission to democratize access to legal information. After over a decade of free access to law around the world, we must never stop thinking about what’s next and how we can best ensure open access.

Reflections and Conclusion

April 2011: I’ve now worked on IDRC-funded free access to law projects with Lexum and the Chair on Legal Information at the University of Montreal for just less than two years. When I began this work in the fall of 2009, free access to law seemed to me to be a relatively “simple” concept. Now, after eighteen months of research, I’ve come to understand the complexity and large scope of free access to law: that it involves hundreds of professionals working on six continents; that its success and sustainability are influenced by numerous technological, political, and social factors;One Size Fits All and that its value depends in large part on cultivating relationships with users in their particular social and cultural contexts.

Keep an eye out for our case studies coming out this summer—but to sum things up for now, it would be simply that, like most things in the social sciences, one size does not fit all.

[Editor's Note: For an earlier commentary on the sustainability of legal information institutes, please see Mariya Badeva-Bright's VoxPopuLII post, Is Free Access to Law here to stay?]

[Editor's Note: The original version of this post contained an error. The original version of the post stated that the studies described in the post are being conducted by Lexum and the Chair in Legal Information of the University of Montreal. That information is incorrect. The studies described in the post are being conducted solely by the Chair in Legal Information of the University of Montreal. Lexum has no role in the studies. We regret the error. The post has been corrected as of 5 May 2011.]

 

Isabelle MoncionIsabelle Moncion is a research assistant at the Chair in Legal Information of the University of Montreal, and a project manager with Lexum. She holds an MA in political science with a specialisation in international development from the University of Quebec in Montreal, and a B.Sc. in political science and communications from the University of Ottawa.

VoxPopuLII is edited by Judith Pratt. Robert Richards is Editor in Chief.