Practical principles

From time to time, there is an awful lot of highfalutin’ talk about the “principles of open access to law” or the “free access to law movement”.  I don’t think of myself as belonging to a movement (and if I did, I would probably pull a Groucho Marx and refuse to join any movement that would have me as a member), but from time to time I manage to lift my jaundiced eyes from the daily bureaucratic grind long enough to remember that there are some broad and important ideas that inform what we do. Many are more utilitarian than pompous.

A quick history

Graham Greenleaf’s excellent paper on the principles underpinning open access to law gives a detailed evolutionary history that I won’t attempt to reproduce here; I recommend the paper to those interested in the gory details.  Broadly, their history is divided into four periods:

• The initial formulation of the Montreal Declaration on Free Access to Law in 2002, which set out aspirational principles
• A period of subsequent amendment and refinement, lasting until 2007, which might be thought of as an ongoing effort to accomodate different national contexts and business models
• The creation of a further set of principles, somewhat overlapping those of the Montreal Declaration in a meeting sponsored by the Hague Conference on Private International Law in 2008.  Here, the focus was more on what could be done to facilitate authoritative answering of questions about national law beyond national boundaries.  The result was a series of recommendations for further work that incorporated a list of principles.
• Finally, the Hague Principles were further refined in a joint meeting sponsored by the Hague Conference and the European Commission in 2012, resulting in another recommendation.

I don’t know enough about the workings of international conventions to assess the importance of these documents and actions beyond their value as endorsements from quasi-official bodies.  It is hard for me to imagine that a national government would read of these goings-on and, quaking in awe, immediately put all of its statutes and regulations online for free.  I am told by my colleagues who actually negotiate with national governments that such things are persuasive, and I believe them. More to the point for my purposes here, I think it’s very important to understand them as more than non-controversial, ringing statements about justice and democracy. Most of the principles we endorse were motivated by very practical concerns and create very practical benefits.

Motivational factors

To understand the real importance of the principles, I think it’s important to remember why we actually publish legal information.  It’s not an activity carried out for its own sake.  Rather, it enables people to do things.

Functions of public legal information

Public legal information does more than simply saying what the law is. Knowing what the law is has incredible value if you are involved in a legal proceeding, of course. But it is also very helpful to think about scenarios in which the legal information consumer is not a lawyer or a party to a dispute, but someone who is trying to find out how the law might affect future plans. In such contexts, making legal information widely available:

• provides a showcase for the activities of official bodies. In the US, legislatures were much quicker to put their work online than the judiciary was, for precisely this reason. Even now, the House of Representatives is leading US Federal efforts at transparency.
• advertises economic opportunity to outsiders, and helps them to assess and manage risk. Those interested in direct foreign investment want to know what the rules are.
• helps businesspeople at all levels plan for the business climate. Tax laws and regulations that affect products and services are like a weather report for the business climate. Making that information widely available in a way that reduces the cost of discovering and using it has a beneficial effect on business at all levels. Unfortunately, there is not yet a comprehensive study of how information-discovery problems might affect assessments like the World Bank’s “Doing Business” survey, but it seems obvious that there is some direct relationship between the cost of finding the law and the cost of compliance.
• offsets corruption, which often has its roots in asymmetries between what citizens and officials enjoy in their access to and understanding of legal information.
• helps to form transnational communities of practice by offering a rich pool of examples. For instance, those who want to know how a particular policy has been implemented in legislation can see what those in other jurisdictions have done with the same policy. Judges can see how judges elsewhere have thought about similar legal controversies. This kind of activity is particularly useful (and in the US, visible) in areas of law where no strict precedent can exist across jurisdictions, but where individuals emerge as “thought leaders” about particular problems that pertain to many.

Practical concerns

It is helpful to pause for a moment and think about a few implications of this:

• Potential users of legal information include anyone who is impacted by statutes or regulation. We talk about the “public”, but there are a lot of “publics” with different needs.
• Motivations for providing legal information are many, and not all are within government. There is no more likely publisher of safety regulations than someone who sells safety equipment.
• Needs for legal information intersect providers of legal information in a way that creates numerous niche markets, a combinatorial explosion that is multiplied further by jurisdictional boundaries. This goes significantly beyond primary sources into analysis, commentary, legal news services, and other secondary materials developed for particular industries, different parts of government or the NGO sector, trade associations, and so on.

In these respects, it can be seen that barriers to legal information flow are barriers to economic activity and to the work of government generally. In economic terms, it may also be helpful to think in terms of three information-seeking scenarios that were extensively discussed by the invited experts at the Hague Conference meetings in 2008 and 2012. All three involve the discovery of authoritative legal information across national boundaries, but are very different when it comes to the bottom line:

• A scenario involving litigation between wealthy parties from a number of jurisdictions. Imagine, for example, a construction project in London with UK backers, a German general contractor with numerous EU subcontractors, and loan guarantors in the US. Something falls down, and suddenly everyone is suing everyone else.
• A scenario involving a German man who marries a French woman, moves to Denmark and has two children, and then wishes to be divorced.
• A lawyer with a client whose business interests are being extended into a new country in the region.

All of these people have essentially the same problem, but their ability to pay for solutions is very, very different. In that respect, the wealthy end of the market has always been well served. Much of the time, others have not done so well.

The Principles

Between the Montreal Declaration and the 18 principles that resulted from meetings sponsored by the Hague Convention and the European Commission, we have a lot of principles. In the interest of time, I’ll mention only a few, concentrating on the reasons why following the principles is not only the right thing to do, but a good thing to do. The two most important ideas are:

• Open access. Creators of laws and legal documents should make them widely available without fees.
• Republication. Law creators should not impede the republication of their materials in whole or in part by third parties, whether by copyright claims or other constraints.

A third major idea follows the idea of republication quite naturally:

• Open standards. Wherever possible, legal information should be promulgated using open technical standards that make republication and re-use easier. That would seem like a very natural thing to do, and it is, but it is often set back by the use of (e.g.) proprietary and difficult-to-use publishing formats like PDF, or by the use of proprietary publishing systems and approaches that (eg.) donor nations sometimes promote in an effort to advance the interests of technology companies based at home.

A fourth “big idea” results from pursuing the first three ideas beyond a single jurisdiction:

• International cooperation. People involved in open-access publishing should help each other, across jurisdictional boundaries.

Open access

Open access is, as a matter of principle at least, fairly non-controversial in most democracies; the idea that ignorance of the law is no excuse quite naturally gives birth to the idea that the law should be widely known. The “free” part of “free and open access” presents greater problems, particularly in jurisdictions that are already receiving revenue through official publication and sale of information, or by entering into exclusive arrangements with commercial publishers. Those are very natural temptations, and it is often genuinely difficult to decide between short term recovery of the cost of publication and the long term benefits of having the material more widely available. That is especially true for cash-strapped governments nowadays.

Such problems could be solved directly if it were possible for law creators to think more about the long term than the short term, but that seems unlikely. What is important, I think, is to work on the problem a piece at a time. Reducing the cost of publication — something that is certainly helped by electronic distribution — reduces the need for cost recovery. In the United States, Arkansas has abandoned paper publication of its judicial opinions as a cost-saving measure (though sadly their state statutes remain in the hands of a private publisher, behind a set of copyright restrictions); others are considering similar moves toward publishing in electronic form exclusively. Targeted experiments — free release of law related to direct foreign investment, for example — can show very quick economic gains that argue for wider availability online. And careful assessment of profit-and-loss on official publications often shows that they are not really so lucrative as government publishers would like to believe. Finally, it is worth pointing out that, in the process of making laws, most lawmaking bodies consume a great deal of legal information themselves, spending a lot of money in the process,  and it is important that they understand that they will participate heavily in the benefits of a more open regime overall.

The larger group of 28 principles spends a substantial amount of time on questions such as authenticity — the idea that we should find the means to guarantee that published legal information is usable in all official proceedings no matter who the publisher might be. This presents a fair number of technical problems, but it is also an obvious need; legal information isn’t usable without authenticity. For many, “authenticity” translates to “PDF”, but that is a false belief. As my colleague Eric Mill points out, there are many less expensive ways of guaranteeing the accuracy and “officialness” of an electronic document while keeping it usable for republication.

Republication

Republication is often held up as a kind of transparency principle that seeks to guarantee the ability of third parties to spread knowledge of government operations. It’s more helpful for our present purposes to think of the principle of republication as “the principle of enabling new products and services that the original publisher didn’t think of or didn’t care about”. Our earlier discussion of diverse audiences makes it clear that no single publisher, official or not, could identify and service all the niche markets for legal information services. And when we think in a regional context the need for innovation beyond single-jurisdiction government bodies seems all the more obvious. Most of the time, law creators are concerned first and foremost with the needs and problems of their own jurisdiction. The impetus to create products that (for example) survey laws across multiple jurisdictions will come from third parties. Those third parties — yourselves, perhaps — need the freedom to repurpose single-jurisdiction information in novel ways that serve needs beyond those of a single jurisdiction. They need to be able to do that with only minimal encumbrances.

Open standards and FOSS

Sometimes, one of those encumbrances is the data itself. Data that is locked up in proprietary formats that are difficult to repurpose and reuse is not especially helpful to third parties, and can greatly limit what it is possible for others to do. In the US, this has persisted as an issue long past the point where most systems were opened for public viewing; those interested in the details of how such a problem plays out can look at a recent report regarding THOMAS, the system that makes pending Federal legislation available to the public. The overall point is that the easier the data is to work with, the more innovative products you will get. While the principles do not explicitly mention the use of FOSS (Free and Open Software Solutions), most governments are beginning to look to these as reliable, low cost solutions. A community of practice is emerging around open publication of law, and it emphasizes the use of FOSS because of its availability and low cost, because of the size of the talent pool that knows how to use it, and because a common use of particular FOSS solutions makes cooperation and assistance among open publishing operations much simpler.

Of late, attention in the technical community has turned from the use of nonproprietary formats in document publishing to problems of interoperability between different document collections. By way of illustration, you might think of “interoperability” as “being able to find out what the comparable regulation in another jurisdiction is”. This is highly technical stuff, but the use of interoperable standards such as CEN/Metalex, AkomaNtoso, OAI/PMH, and the use of Linked Open Data standards can do a great deal to make the whole greater than the sum of the parts in terms of the services that can be delivered from open pools of information. The principles do not insist on this, but it is a clear corollary that emphasizes the importance of maximizing the usefulness of what we create together.