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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.

Readers of this blog are probably already familiar with the U.S. Federal Courts' system for electronic access called PACER (Public Access to Court Electronic Records).  PACER is unlike any other country's electronic public access system that I am aware of, because it provides complete access to docket text, opinions, and all documents filed (except sealed records, of course).  It is a tremendously useful tool, and (at least at the time of its Web launch in the late 1990s) was tremendously ahead of its time.

However, PACER is unique in another important way: it imposes usage charges on citizens for downloading, viewing, and even searching for case materials. This limitation unfortunately forecloses a great deal of democracy-enhancing activity.

Aaron SwartzThe PACER Liberation Front

In 2008, I happened upon PACER in the course of trying to research a First Amendment issue.  I am not a lawyer, but I was trying to get a sense of the federal First Amendment case law across all federal jurisdictions, because that case law had a direct effect on some activists at the time.  I was at first excited that so much case law was apparently available online, but then disappointed when I discovered that the courts were charging for it.  After turning over my credit card number to PACER, I was shocked that the system was charging for every single search I performed.  With the type of research I was trying to do, it was inevitable that I would have to do countless searches to find what I was looking for.  What's more, the search functionality provided by PACER turned out to be nearly useless for the task at hand -- there was no way to search for keywords, or within documents at all.  The best I could do was pay for all the documents in particular cases that I suspected were relevant, and then try to sort through them on my own hard drive. Even this would be far from comprehensive.

This led to the inevitable conclusion that there is simply no way to know federal case law without going through a lawyer, doing laborious research using print legal resources, or paying for a high-priced database service.  My only hope for getting use out of PACER was to find some way to affordably get a ton of documents.  This is when I ran across a nascent project led by open government prophet Carl Malamud. He called it PACER Recycling.  Carl offered to host any PACER documents that anybody happened to have, so that other people could download them.  At that time, he had only a few thousand documents, but an ingenious plan: The federal courts were conducting a trial of free access at about sixteen libraries across the country. Anyone who walked in to one of those libraries and asked for PACER could browse and download documents for free. Carl was encouraging a "thumb drive corps" to bring USB sticks into those libraries and download caches of PACER documents.

The main bottleneck with this approach was volume. PACER contains hundreds of millions of documents, and manually downloading them all was just not going to happen. I had a weekend to kill, and an idea for building on his plan. I wrote up a Perl script that could run off of a USB drive and that would automatically start going through PACER cases and downloading all of the documents in an organized fashion. I didn't live near one of the "free PACER" libraries, so I had to test the script using my own non-free PACER account... which got expensive. I began to contemplate the legal ramifications -- if any -- of downloading public records in bulk via this method. The following weekend I ran into Aaron Swartz.

Aaron is one of my favorite civic hackers. He's a great coder and has a tendency to be bold. I told him about my little project, and he asked to see the code. He made some improvements and, given his higher tolerance for risk, proceeded to use the modified code to download about 2,700,000 files from PACER. The U.S. Courts freaked out, cancelled the free access trial, and said that "[t]he F.B.I. is conducting an investigation." We had a hard time believing that the F.B.I. would care about the liberation of public records in a seemingly legal fashion, and told The New York Times as much. (Media relations pro tip: If you don't want to be quoted, always, repeatedly emphasize that your comments are "on background" only. Even though I said this when I talked to The Times, they still put my name in the corresponding blog post. That was the first time I had to warn my fiancée that if the feds came to the door, she should demand a warrant.)

A few months later, Aaron got curious about whether the FBI was really taking this seriously. In a brilliantly ironic move, he filed a FOIA for his own FBI record, which was delivered in due course and included such gems as:

Between September 4, 2008 and September 22, 2008, PACER was accessed by computers from outside the library utilizing login information from two libraries participating in the pilot project. The Administrative Office of the U.S. Courts reported that the PACER system was being inundated with requests. One request was being made every three seconds.

[…] The two accounts were responsible for downloading more than eighteen million pages with an approximate value of $1.5 million.

The full thing is worth a read, and it includes details about the feds looking through Aaron's Facebook and LinkedIn profiles. However, the feds were apparently unable to determine Aaron's current residence and ended up staking out his parents' house in Illinois. The feds had to call off the surveillance because, in their words: "This is a heavily wooded, dead-end street, with no other cars parked on the road making continued surveillance difficult to conduct without severely increasing the risk of discovery." The feds eventually figured out Aaron wasn't in Illinois when he posted to Facebook: "Want to meet the man behind the headlines? Want to have the F.B.I. open up a file on you as well? Interested in some kind of bizarre celebrity product endorsement? I’m available in Boston and New York all this month." They closed the case.

RECAPTurning PACER Around

Carl published Aaron's trove of documents (after conducting a very informative privacy audit), but the question was: what to do next? I had long given up on my initial attempt to merely understand a narrow aspect of First Amendment jurisprudence, and had taken up the PACER liberation cause wholeheartedly. At the time, this consisted of writing about the issue and giving talks. I ran across a draft article by some folks at Princeton called "Government Data and the Invisible Hand." It argued:

Rather than struggling, as it currently does, to design sites that meet each end-user need, we argue that the executive branch should focus on creating a simple, reliable and publicly accessible infrastructure that exposes the underlying data. Private actors, either nonprofit or commercial, are better suited to deliver government information to citizens and can constantly create and reshape the tools individuals use to find and leverage public data.

I couldn't have agreed more, and their prescription for the executive branch made sense for the brain-dead PACER interface too. I called up one of the authors, Ed Felten, and he told me to come down to Princeton to give a talk about PACER. Afterwards, two graduate students, Harlan Yu and Tim Lee, came up to me and made an interesting suggestion. They proposed a Firefox extension that anyone using PACER could install. As users paid for documents, those documents would automatically be uploaded to a public archive. As users browsed dockets, if any documents were available for free, the system would notify them of that, so that the users could avoid charges. It was a beautiful quid-pro-quo, and a way to crowdsource the PACER liberation effort in a way that would build on the existing document set.

So Harlan and Tim built the extension and called it RECAP (tagline: "Turning PACER around" Get it? eh?). It was well received, and you can read the great endorsements from The Washington Post, The L.A. Times, The Guardian, and many like-minded public interest organizations. The courts freaked out again, but ultimately realized they couldn't go after people for republishing the public record.

I helped with a few of the details, and eventually ended up coming down to work at their research center, the Center for Information Technology Policy. Last year, a group of undergrads built a fantastic web interface to the RECAP database that allows better browsing and searching than PACER. Their project is just one example of the principle laid out in the "Government Data and the Invisible Hand" paper: when presented with the raw data, civic hackers can build better interfaces to that data than the government.

PACER Revenue/Expenditure GraphFrom Fee to Free

Despite all of our efforts, the database of free PACER materials still contains only a fraction of the documents stored in the for-fee database. The real end-game is for the courts to change their mind about the PACER paywall approach in the first place. We have made this case in many venues. Influential senators have sent them letters. I have even pointed out that the courts are arguably violating The 2002 E-Government Act. As it happens, PACER brings in over $100 million annually through user fees. These fees are spent partially on supporting PACER's highly inefficient infrastructure, but are also partially spent on various other things that the courts deem somehow related to public access. This includes what one judge described as expenditures on his courtroom:

"Every juror has their own flatscreen monitors. We just went through a big upgrade in my courthouse, my courtroom, and one of the things we've done is large flatscreen monitors which will now -- and this is a very historic courtroom so it has to be done in accommodating the historic nature of the courthouse and the courtroom -- we have flatscreen monitors now which will enable the people sitting in the gallery to see these animations that are displayed so they're not leaning over trying to watch it on the counsel table monitor. As well as audio enhancements. In these big courtrooms with 30, 40 foot ceilings where audio gets lost we spent a lot of money on audio so the people could hear what's going on. We just put in new audio so that people -- I'd never heard of this before -- but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers."

I am not against helping courtroom visitors hear and see trial testimony, but we must ask whether it is good policy to restrict public access to electronic materials on the Internet in the name of arbitrary courtroom enhancements (even assuming that allocating PACER funds to such enhancements is legal, which is questionable). The real hurdle to liberating PACER is that it serves as a cross-subsidy to other parts of our underfunded courts. I parsed a bunch of appropriations data and committee reports in order to write up a report on actual PACER costs and expenditures. What is just as shocking as the PACER income's being used for non-PACER expenses, is the actual claimed cost of running PACER, which is orders of magnitude higher than any competent Web geek would tell you it should be (especially for a system whose administrators once worried that "one request was being made every three seconds."). The rest of the federal government has been moving toward cloud-based "Infrastructure as a Service", while the U.S. Courts continue to maintain about 100 different servers in each jurisdiction, each with their own privately leased internet connection. (Incidentally, if you enjoy conspiracy theories, try to ID the pseudonymous "Schlomo McGill" in the comments of this post and this post.)

The ultimate solution to the PACER fee problem unfortunately lies not in exciting spy-vs-spy antics (although those can be helpful and fun), but in bureaucratic details of authorization subcommittees and technical details of network architecture. This is the next front of PACER liberation. We now have friends in Washington, and we understand the process better every day. We also have very smart geeks, and I think that the ultimate finger on the scale may be our ability to explain how the U.S. Courts could run a tremendously more efficient system that would simultaneously generate a diversity of new democratic benefits. We also need smart librarians and archivists making good policy arguments. That is one reason why the Law.gov movement is so exciting to me. It has the potential not only to unify open-law advocates, but to go well beyond the U.S. Federal Case Law fiefdom of PACER.

Perhaps then I can finally get the answer to that narrow legal question I tried to ask in 2008. I'm sure that the answer will inevitably be: "It's complicated."

Stephen SchultzeSteve Schultze is Associate Director of The Center for Information Technology Policy at Princeton. His work includes Internet privacy, security, government transparency, and telecommunications policy. He holds degrees in Computer Science, Philosophy, and Media Studies from Calvin College and MIT. He has also been a Fellow at The Berkman Center for Internet & Society at Harvard, and helped start the Public Radio Exchange.