West Group’s edit of Bob Berring’s remarks on free access to law leads with the interesting assertion that government should get out of the legal information business because “every time government has tried to take over the provision of legal information it’s failed”. That is worth a little discussion, in part because it so patently reveals West Group’s worst nightmares, and in part because it’s not clear which variety of government activity West is talking about.
No doubt some government forays into the legal infosphere have not been all that they might be. A couple of years back, I served on an ABA committee that looked at regulations.gov, the forum for interaction between information systems and the notice-and-comment rulemaking process. The executive summary of that committee report offers a view of how and why things can go wrong in government legal information projects, even (or especially) when many talented people are operating with good intentions. In retrospect, the report reminds me of Michael Flynn’s excruciatingly meticulous tale of starship disaster, The Wreck of the River of Stars. Nobody’s at fault, everybody’s doing the best they can with what they have, all intentions are good, and the results, well, the results are not so good. Like Flynn’s science-fiction story, the real-life story of government information services is a nuanced one, with a lot more to it than budget cuts and caricatures of incompetence. A very thoughtful view of those problems comes from Ed Felten’s group at Princeton, which eloquently makes the case for government to get out of the business of web site building and into the business of bulk data provision a la data.gov. And by the way, regulations.gov has improved immensely since the report came out.
I don’t completely agree with Felten and company’s idea that government should restrict itself to wholesaling data. There are certainly some basic legal-information services that it ought to be providing directly to the public. But no single entity, public or private, can possibly service the needs of all of the niche consumers of legal information, a fact I first remarked in 1995; even earlier, well before the Web, Hank Perritt had pointed out the unique position of government at the head of a chain of potential value-adders in the legal information field. Then as now economic arguments — even those with a free-market slant — strongly favor the idea that government should act in ways that reduce rather than reinforce entry barriers in the legal information market. The balance between government services, the private sector, and non-profit third parties in law publishing is a difficult one, with many constraints (some of which I outlined here, in 2000). But it is difficult to imagine any legal information ecology in which government is not providing legal information, at least some of it retail.
And such a complete exclusion of government is not what Bob Berring is talking about, and it is not what West Group wants. Government also provides legal information services at the wholesale level. Like the LII, the New York Times, and various of its competitors, West Group gets its Supreme Court cases from Project Hermes, the Supreme Court’s electronic distribution system that releases opinions on the day of decision. Hermes has been in operation since 1991. It has always been speedy, highly reliable, and built on open standards. In the minds of many, the much larger and better-known PACER system is less of a success story — but it is also a major feeder for West Group and other private-sector legal publishers, who pay the millions of dollars in user fees that has allowed PACER to accumulate a $150 million surplus. I don’t think that West wants Hermes or PACER to go away. They’re a real bargain, compared to running around to all those courthouses. But, like any other business, West would like to keep the barriers as high as possible for its competitors.
I don’t think that West is being as silly as Rick Santorum was when he called for the government to get out of the meteorology business in favor of the better-funded private sector — only to find out that the private sector was getting all its raw data from the National Weather Service. And perhaps the NWS is not a bad model to think about here. But we all need to remember that West’s concern is not that the government is inept at providing retail legal information — it’s that government is in fact very good at wholesaling, and there are a lot of potential consumers and competitors in the retail legal information business.