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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.

Much to the dismay of several family members, I majored in anthropology in college. For those of you not up on your social sciences or Greek roots, anthropology is the study of all aspects of human existence, from the human genome, to cultures, to evolutionary history, to our primate cousins, and many things in between. Much to every one's surprise, however, I couldn’t have picked a more useful major to help me navigate the ever-changing landscape of modern librarianship and legal information.

Besides analytical thinking and general research skills, my anthropology classes taught me how to make connections between seemingly divergent ideas, to dispassionately observe human interactions, and to respect differing cultures. Although they were not directly related to my career goals, I loved my primatology courses the most. Observing primate social networks allows one to distill the essence of a relationship without the confusing trappings of cultural artifacts. As an added bonus, monkeys are really cute.

LorisMy favorite non-human primate is not a monkey, actually. It’s the genus Nycticebus, more commonly known as the Slow Loris. They are absolutely adorable! Lorises are nocturnal, tree dwelling lower primates. They split off from the human evolutionary chain about 50 million years ago and haven’t evolved much since then. They don’t have many natural predators, but when they do need to defend themselves they rely on poisonous saliva or by curling up in a ball and hiding. Due to the lack of predators and their widely varied diet, they tend to move very slowly and cautiously through the trees.

You’re probably thinking to yourself right about now, “Well, this is nice and moderately interesting, but why is she writing about lorises in an legal information blog?” Well, if an overly cautious, slow moving, non-evolving primate that responds to threats by a poison tongue or hiding and pretending the threat isn’t there didn’t remind you of anything, well then I guess you haven’t spent much time around librarians.

What’s Wrong with Librarians?

Oh, everyone calm down. Put away your pitchforks. While no one loves to play “Poke the Bunhead with a Stick” more than I, that is not the point of this essay. Rather, I am here to answer the question, “What is wrong with librarians?” As a librarian who spends a significant amount of time discussing legal information issues with non-librarians, I am often asked this very question. Many times with some colorful adjectives thrown in for good measure.

Here’s the short answer: There’s nothing WRONG with librarians.

Libraries and librarians have different cultures and missions than other players in the information business, and thus place what may seem to be an unreasonable emphasis on certain attributes of an information delivery mechanism, or require characteristics of it that may seem unnecessary. Frankly, we think you’re pretty weird too. However, automatically labeling beliefs and actions different than yours as “wrong” creates unnecessary divisions between groups that must collaborate. Everyone - librarians, computer scientists, legal publishers, government bureaucrats, etc. - needs to work towards a greater cultural understanding of the other players so that mutually beneficial and important projects - for instance, law.gov - are not lost to petty infighting and simple misunderstandings that devolve into huge clashes.

Now for a slightly longer answer...

Libraries, as a cultural institution, have existed for millennia. Through that time their collections transitioned from clay tablets to papyrus scrolls to codices to printed books. It is only relatively recently - about one percent of the time of their existence - that libraries have been confronted with digital media. This means that library culture primarily evolved during a time span in which information containers were tangible objects. Furthermore, during this time libraries' mission has been mainly to preserve and protect the information for the long-term good of the civilization, even at the cost of preventing contemporary users from accessing it. Finally, libraries have existed for the most part without competition in either resource collection or distribution.

Law librarians, in addition to the library enculturation, have often received legal training. If you’ve not had the pleasure, suffice it to say that respect for the rule of law, adherence to social order, and an obsession with order, ritual, and formality are just a few of the many benefits that one receives from an American legal education. (Other benefits include nightmares about Contract Law finals, an inability to watch courtroom dramas without pointing out the inaccuracies of the script, and a competitive streak that would put most Olympic athletes to shame.) The informally educated are very similarly situated.

So, here we have a group of people used to being in control of tangible objects that they would rather preserve than use. Additionally, these people put the legal system and its laws up on a pedestal and rigidly cling to its structure and hierarchy. Is it any wonder, then, that the idea of accepting an electronic version of a law hosted by a private organization without a stamp of government approval sends them into a bit of a tizzy?

Let’s go back to our furry friend the loris.

As I said, the lorises move slowly. Glacially, even. I mean, I’m talking sloooooooow. Why is that? Well, they don’t have a physical impediment keeping them that way. Nor should it be assumed that they are lazy or have some other character defect (as if one could assign character defects to wild animals.) As a matter of fact, when they choose to catch live prey they can move quite quickly. They operate this way because when one is creeping along small jungle branches high in the air in the middle of the night and not running from any particular predator, it pays off to take one’s time and be cautious.

Similarly, librarians don’t cling to print materials out of some romantic notion of the superiority of books, nor do they make repeated demands for stable, authenticated archives of electronic materials just to make you crazy. When one is tasked with the preservation of information - on behalf not just of those looking for it ten years from now, but also of those looking hundreds if not thousands of years from now - and no one else is really in the information distribution or storage business, it pays to take one’s time and be cautious when determining what container to put that information in, especially when what you’ve been doing for the past 1,000 or so years has been working for you.

You Say You Want an Evolution...

A major factor in the loris's being able to move slowly is that it has few predators or competitors for resources. At least until recently, that is. A primate by the name of Homo sapiens has hunted the loris right onto the endangered species list.

Like the loris, libraries are no longer the sole occupiers of their niche spot in the environment . . . and what a rapidly changing environment it is. No longer are libraries the sole gatekeepers and preservers of information. Information is also coming from new providers and in different containers than what libraries have been used to.

While I said above that they are not “wrong,” that does not mean that libraries and librarians couldn’t do some things better. Librarians, as a species, are very risk-averse. If I had to guess, I’d say it had something to do with being the only information gatekeepers for so long. Now, generally, there’s nothing wrong with being a little cautious, especially when there’re no do-overs (as is the case with lost information.)

But with librarians this risk aversion has grown like a cancer and now manifests itself as a fear of failure. This fear has become so ingrained in the culture that innovation and progress are inhibited. Contrast that with the tech sector - home to many future library partners - where trial and error are encouraged and participants have a freedom to fail. It behooves librarians to embrace this culture of innovation and develop a respect for failure lest they become completely stagnant and, as a result, obsolete.

Unlike the loris, libraries are operated by sapient beings that can adapt to changes in their environments. Libraries need to choose to acknowledge these changes and model some - but not all - of their behaviors after newer and perhaps more successful members of the ecosystem. As it stands now, librarian participation in a multidisciplinary project is often regarded as more of a hindrance than a help.  If librarians don't change, they will eventually stop being invited to the conversation.   Ideally these other ecosystem members will be patient with the process of evolution and appreciate the qualities the libraries posses and the values that librarians bring to a discussion.

One way to develop this mutual respect is to interact professionally and demonstrate one’s knowledge, skills, and willingness to collaborate. Unfortunately, up until now most interaction between librarians and other information industry members has arisen out of conflict - librarians wagging their fingers, telling someone that they’re wrong or complaining that librarians are being persecuted by the mean old vendors. Another important factor in gaining professional respect is the ability to give and receive constructive criticism without resorting to petty snipes or retreating to salve wounded egos.

Get in the Goddamn Wagon

A few weeks ago, I was sent a link to Peter Brantley's blog post, “Get in the Goddamn Wagon,” an inspiring call to action for newer librarians to become involved in future planning for libraries. It’s a good read and worth a look, but I bring it up here for two perhaps non-obvious reasons. One, it’s notable for who sent it to me - none other than Thomas R. Bruce, Director of the Legal Information Institute.

Tom has been a valuable friend and mentor to me. He is not, however, a librarian. Still, because I know he respects me while perhaps not always understanding the reasons behind my actions - and vice versa - we have been able to forge a cooperative professional relationship. Because of this mutual respect, when he offers a suggestion on how libraries might change, I listen and consider his suggestion instead of automatically discounting it because he’s not a librarian.

The other reason that I mention that blog post is that it introduced me to the William Faulkner quote, “Them that’s going,” he said, “get in the goddamn wagon. Them that ain’t, get out of the goddamn way.” I wish I could say, “Librarians . . . computer scientists . . . legal publishers . . . let’s all hold hands now and sing kum-bay-yah!” However, while I am hopeful that cultural differences between these groups can be diminished and a feeling of amity develops between them, I am realistic.

So instead I say, “Get in the goddamn wagon or get out of the goddamn way.” I imagine at times the ride will be about as comfortable and collegial as a bunch of children crammed in a station wagon for a family vacation road trip. There is no ultimate “Mother” authority to keep us all in line with the threat of turning around, however. For these collaborative efforts to be successful, no constituency or person gets to be “in charge” all the time. It doesn’t matter how many millions of dollars in grant money one has, or how many thousands of members in one's organization; everyone’s expertise needs to be used and respected. It won’t be easy and it won’t feel natural, but we all must make a conscious effort to work together.

How will this happen? We could start with meetings on neutral ground (physical or virtual) designed for the express purpose of ironing out differences between the camps. (Perhaps a Festivus airing of grievances?) Ideally, though, I’d love for it to happen more organically. More multi-disciplinary organizations, conferences, and publishing platforms (like Vox PopuLII) need to be created so that we can learn from each other. Until such time that these exist, more trips into the other camp need to be made - attend their conferences, publish in their discipline’s journals: anything that will start to put human faces on the monolithic titles such as “librarian” or “publisher” so that we can get past the distrust and the disputes and move on to the more important work.

The projects that we can (and should) be collaborating on are new and different and will completely change the way people access their law. As such, they will be met with resistance and suspicion and push-back from commercial vendors and government agents. Presenting a united front and creating a system that benefits from all of our areas of expertise from the beginning will go a long way towards legitimizing our cause. We have one chance to make a first impression, one opportunity to make free law an accepted resource in this generation. Don’t mess it up.

[Editor's Note: For other ideas respecting collaboration between law librarians and members of the legal informatics community, please see our earlier post, A Law Librarian Looks at Legal Informatics Scholarship.]

Photo credits:
Loris: 1887 Engraving of Slow Loris
Librarian: Of unknown origin
Librarian in stacks: The Bookworm by Carl Spitzweg
Horror and Agony, from Darwin's Expressions of the Emotions in Man and Animals
Wagon: Harris & Ewing, Wagon and US Capitol (altered by author)

Sarah Glassmeyer is the Faculty Services and Outreach Librarian at the Valparaiso University School of Law in Valparaiso, Indiana. When she’s not putting the fear of God and court clerks into first year law students, she writes about the intersection of legal information, libraries and the Internet at SarahGlasmeyer(dot)com.

VoxPopuLII is edited by Judith Pratt. Editor-in-chief is Robert Richards.