[Editor's Note: A slighly different version of this post was published on Slaw in May 2010. We thank Slaw's editor, Professor Simon Fodden, for granting permission to repost.]
The relationship of legal information to context is a key dimension of recent developments in legal informatics scholarship and innovation. These developments range from investigations in law and psychology to political and moral theory, from explorations in artificial intelligence and law to legal information theory, and from research on the legal Semantic Web to the creation of new applications that help nonlawyers contextualize legal information.
Professor Helen Nissenbaum has foregrounded the notion of context in the debate over privacy respecting court records. In her new book, Privacy in Context, and in her presentation at the 2010 Princeton Open Government Workshop, Nissenbaum defines the right to privacy as the right to what she calls “contextual integrity,” meaning the use or “flow” of information consistent with the norm for information transfer applicable in the particular context — such as home, school, workplace, court, etc. — where the information was first transferred. For Nissenbaum, key characteristics of an information context — the sender of the information, the intended recipient of the information, the subject of the information, the type of information that is shared, and the purposes and goals served by the information context — determine which norm governs information flow in that context. In Nissenbaum’s view, when information about individuals flows in a manner consistent with its contextual norm, “contextual integrity” — and those individuals’ privacy rights — are considered to have been preserved, but if that information flows in a manner inconsistent with that norm, contextual integrity — and thus the privacy rights of those individuals — are considered to have been breached. Nissenbaum argues that when a new technology — such as a publicly available online database of court records — arises that arguably violates contextual integrity, a presumption should arise in favor of preserving contextual integrity and rejecting the new technology. On Nissenbaum’s account, that presumption may be rebutted if the new technology can be shown more effectively to serve both general social values such as social welfare and national security, and also the particular purposes and goals of the original information context. Nissenbaum allows that the new technology might also prevail if it, or some aspect of the information available through it, could be modified to render it superior in vindicating both general and contextual values. Applying Nissenbaum’s model to court records would thus entail a careful consideration of a variety of contexts in which those records are generated, the rejection of certain new information technologies, and also negotiations with technologists to determine whether certain new technologies, or the data they process, could be modified so as to render those technologies superior to the original systems in vindicating general and contextual values.
Professor Guido Boella, Dr. Guido Governatori, and colleagues are exploring ways to model legal contexts to aid automated legal reasoning. In their recent paper these scholars show how defeasible logic can be employed to represent the policy context of legal rules. Their approach could improve computers’ capacity to assess legal compliance, and could contribute to the automation of the interpretation of legal language.
In legal information retrieval, K. Tamsin Maxwell — in a recent post, as well as in a recent conference paper co-authored by Burkhard Schafer — is exploring the use of Natural Language Processing techniques to contextualize queries, automate discovery of factually-similar cases, and achieve “near perfect search recall within the context of precision.”
Recent research in law and psychology — particularly the research highlighted by The Situationist blog published by the Project on Law and Mind Sciences at Harvard Law School — emphasizes how context affects people’s understanding and use of legal information. For example, Professor Adam Benforado‘s new paper explores how spatial situations affect the law-related behavior and thinking of various participants in criminal cases, while another of his recent articles argues that the context of the videotape evidence at issue in Scott v. Harris had a profound and unacknowledged influence on the way the U.S. Supreme Court interpreted that evidence.
In her recent post and her dissertation in progress, Christine Kirchberger explores the importance of context for making legal information usable by nonlawyers. Kirchberger highlights legal Semantic Web technology — such as that discussed in Dr. Núria Casellas’s recent post on legal ontologies — and government eportals — like Austria’s HELP service — as promising means of offering valuable context to nonlawyers using legal information. Kirchberger quotes Tom Bruce‘s 2001 paper on the need to build flexible systems that can present legal information in a range of different contexts, suited to the needs of different users of those systems.
Some free access to law services are providing this kind of contextual information by building secondary sources into their systems. For example, the Cornell Legal Information Institute‘s Wex legal encyclopedia — written collaboratively by volunteers — explains key legal concepts and terms that appear in the Institute’s primary collections. As Staffan Malmgren explains in this recent post, his lagen.nu free access to law service for Sweden includes commentaries, written by means of an innovative crowdsourcing method.
Automatic linking is another method of furnishing context to users of legal information, as hotlinked citations enable quick retrieval of full text sources that make up legal context. Free access to law services such as CanLII provide such technology for linking to primary legal sources — as Ivan Mokanov explains in this recent post. In his recent thesis, conference paper, and post, Olivier Charbonneau proposes several ideas for delivering contextual information to users of free legal systems. These include personalized user interfaces; automatic display of citing sources when a cursor is placed over a passage of a primary legal document; automatic display of relevant commentaries below or alongside a primary legal text; and user ratings of user-contributed commentary, to help nonlawyers assess the quality of content.
Dr. Floris Bex in his recent dissertation and post explains how argument- and narrative-mapping technology can provide valuable context for prosecutors conducting criminal investigations. Dr. Bex describes his and his colleagues’ research — and particularly the work of Dr. Susan van den Braak — respecting a variety of applications that provide visual displays of investigators’ legal and factual arguments and narrative accounts of alleged crimes. These tools allow investigators to contextualize each relevant fact and point of law within a conceptual framework for their case.
Two current U.S. federal court technology efforts aim to help nonlawyers put legal information in context. JERS, the Jury Evidence Recording System, enables jurors in four U.S. federal district courts to view digital representations of trial evidence and exhibits in the jury deliberation room, and navigate through the information — including via zooming and scrolling — by means of video touchscreen. This access to evidentiary information not only helps each individual juror attain a contextual understanding of the applicable law and facts of the case; it also increases the likelihood that all members of a jury will share the same understanding of the context of the case. On April 27, 2010, the Administrative Office of the U.S. Courts announced that funding for JERS had been renewed.
Whereas JERS helps jurors place legal information in context, the E Pro Se document assembly application assists self-represented litigants in contextualizing such information. A customization of the A2J Author document assembly program created for use in law school clinics by CALI, the Center for Computer Assisted Legal Instruction, and the Chicago-Kent College of Law’s Center for Access to Justice and Technology, E Pro Se conducts automated interactive interviews with pro se litigants in U.S. federal district court — for purposes of gathering contextual information from the litigants — and then processes that information to assemble pleadings and other court papers for the litigants. E Pro Se is now available online from the U.S. District Court for the Eastern District of Missouri. According to The Third Branch, the federal district court in Minnesota has begun a pilot E Pro Se project, and such a project will shortly begin in the Massachusetts federal district court. (Thanks to CALI’s Executive Director John P. Mayer for information on this topic.)
Nonlawyers who participate in policy discussions about proposed laws also need context to understand those laws. Researchers participating in the EU’s IMPACT Project are creating tools to provide this context. These tools include argument mapping applications and Semantic Web technology — described in new papers by Professor Tom van Engers and Dr. Adam Wyner — for organizing policy discussions into subject-related threads, with visual displays of the reasoning underlying the arguments that make up the discussion, translation of policy arguments into the preferred language of each user, and Web 2.0 services facilitating users’ participation in the discussions.
Context thus appears to be a focal point for legal informatics research, at the levels of theory, policy, and systems development. Research activity in this area appears to be vigorous, and embraces many disciplines in addition to law, including computer science, philosophy, political science, psychology, linguistics, sociology, anthropology, and information science. As the disintermediation of legal information professionals, the unbundling of legal services, and the participation of citizens in policy- and lawmaking proceed, the need can only grow for greater knowledge of how context affects individuals’ understanding and use of legal information, and for systems that effectively provide nonlawyers with relevant legal contextual information.
Robert Richards, JD, MSLIS, MA, is an information and communications researcher, specializing in legal information and communication systems. He is based in Philadelphia. He is editor in chief of VoxPopuLII, writes the Legal Informatics Blog, and created and maintains the online bibliography Legal Information Systems & Legal Informatics Resources. He is the founder and administrator of the Legal Informatics Research Network, an online community for those studying or developing legal information systems. His most recent writings include What Is Legal Information?, a paper delivered at the 2009 University of Colorado at Boulder Conference on Legal Information, and Cost-Effective Research in U.S. Bankruptcy Law (2009). As of September 2010 he will be a Ph.D. student in the University of Washington Department of Communication.
VoxPopuLII is edited by Judith Pratt.