b-screeds

These days, people  are sticking legislation into GitHub at a furious pace.  It is all the rage among the legal-information smart set.  The whole thing seems to have started about fifteen months ago with a quote from a toiler in the vineyards of the New York State Senate, written up in Wired, the Boy’s Life of the technorati.  Said he: “I’m just in love with the idea of a constituent being able to send their state senator a pull request”.

I could speculate hilariously as to what some of our scandal-ridden New York State Senators might think a “pull request” is, but that’s neither here nor there.  A lot more people appear to be just in love with this idea, too, because in the last year there has been a rising tide of legislative gittification here and elsewhere around the globe.  I myself am just in love with the name of the German “BundesGit” project,  which the smart money is putting at 5 to 1 to win the Greatest  Cognitive Dissonance Packaged in a Compound Word category at this year’s Noamy Awards.

Trouble is, I’m not so just in love with gittification as everybody else seems to be.  Here’s why:

Git and GitHub are, collectively, a fine revision-control system, and a good system for distributing and managing open-source coding efforts like the ones at https://github.com/unitedstates. Unfortunately, straightforward revision and versioning are not really what happens with most legislation hereabouts. American Federal legislation is not a straightforward revision process at all.  That is especially so when post-hoc codification results in an issue-centric bill being splattered all over the topical map of the US Code.  Other jurisdictions — notably civil-law countries — at least pretend to have a more rational process for legislative revision, though I am told that in practice it is not so pretty as all that.    They are, by and large, having some success with FRBR-based models which closely resemble revisions control, but for a number of reasons those don’t work as well as they might for Federal legislation.  Simple processes in which a single version of  text is successively modified and the modifications absorbed into a series of versions and branches are not quite enough to map the eddies and backwaters of our process, in which multiple competing drafts of a bill can exist at the same time, bills can be reintroduced in later sessions, and so on.

I am far from the first person to make this point.  Others have done so very effectively right along,  but the story does not end there. The beauties of revision management do not  explain why we are hearing so much git-love.  There must be more to be just in love with than the idea that you might keep track of changes in the language of a bill.

I think there are three pieces to it, really.  One is the idea that somehow the gittification paradigm describes what  the system *ought* to be, and represents the aspirations of its proponents; one is the idea that putting law in github somehow magically puts ownership of the law where it belongs; and one is the idea that gittification is somehow democratizing.

As to the first, everybody would like a simpler system.  Belief that putting the text into a particular instrument could or would bring that about is a species of wistful, wishful thinking that is the unique province of technicians.  Technical people of all stripes believe that about a lot of things — the idea that somehow just having the right tool changes both the materials and the quality of the workmanship are an understandable and appealing part of the romance of geekdom.  And sometimes a change in tooling brings about an unmistakable and positive change in way things really are. I am thinking, for some reason, of the invention of interchangeable parts, which obviously brought about vast changes in manufacturing and ultimately in everyone’s standard of living — and also gave rise to a crop of industrial utopias founded in the belief that virtue would flow from industrial organization:  the Ephrata Cloisters and New Harmonies of more a century-and-half back.

I’m OK with certain amount of techno-utopianism; a lot of good ideas got their start in those cloisters.  But the romance of gittification is part of a  more expansive intellectual conceit — the idea of law as code.  Lessig brilliantly described idea of code (and technology generally) shaping behavior and potential in ways traditionally reserved for law.   But code-is-law is not reversible into law-is-code.  There are lots of reasons why not; some are facets of the process by which law is created, and some have to do with how the language works and what it is expected to do.  Law is nowhere near as deterministic or precise as code and the process that creates it is a lot messier. There is often carefully calculated imprecision in statutes and regulations.  Geeks don’t like that, because they want law to be more computationally tractable,  and they  often say so loudly in the same forums where legislative gittification gets a big round of high-+1s. Imprecision has a very valuable purpose in law, where flexibility of interpretation is often desirable, and not so much in code.  If you want to know what “law is code” looks like, consider the rigidly precise algorithms of the Federal sentencing guidelines, or the “three strikes” law, and tell me if it looks like Utopia to you.

But I’m just being cranky, sorta.  There’s nothing wrong with romance, even if it is unlikely to produce meaningful change,  so long as we avoid confusing it with having actually caught the unicorn.  There is also a lot that is admirable about a community wanting ownership of the law that it is expected to live by. The slogan of SwaziLII — an open-access legal publisher in Swaziland — is “kwetfu” .  It means “it is ours”.  In South Africa, visitors to Johannesburg are shown, with great pride,  the public monument to the 1994 Constitution.  It’s important that people feel ownership of the law.  Postcolonial societies feel it strongly, and they celebrate it and they build monuments to it.  Geeks stick things in github as a way of claiming it for their culture.  In that respect gittification is a symbolic act that says a lot about where we are in 2013 and why.   I respect the symbolism, and think it’s a shame that we have been collectively driven to such a need to reassert ownership.  I just don’t want to confuse the symbolism with something that improves the substance.

But what about democratization?  We may be just in love with the citizenry submitting pull requests, but that doesn’t mean the citizens have any idea how.  And it is a little disturbing to think that we might be subconsciously restricting our definition of citizenship to those who can submit pull requests.  I say that mostly for effect — I don’t think that anyone is being consciously elitist here.  But I do think that many of the same people who celebrate gittification also routinely (and loudly)  condemn government behavior that is unwittingly exclusionary in exactly the same way that GitHub is. It’s natural for technicians of all stripes — whether they are legislative,  political, and policy wonks, or people who frequent hackathons, or all of the above — to become so acclimatized to their own technical knowledge and environment that they forget that others just don’t have a clue about any of that stuff, and are effectively shut out.  The biggest problem with legal information has always been that the people who create it have no reason to realize that there is a problem with access, because they themselves have it.  And in that respect the Gitterati are no different.

Once upon a time, regulations.gov was useless if you didn’t know a lot about what agency regulates what. Today, you can’t be a citizen of  New GitHarmony if you don’t know how to turn the knobs of GitHub.  That’s not an argument against making systems that permit citizen participation in the legislative process. I’ve never liked the sort of don’t-bring-gum-to-school-unless-you-bring-enough-for-everyone, digital-divide arguments that some use to bludgeon Internet projects.  You have to start somewhere, and maybe it’s worth remembering that we haven’t shut down the libraries because the basic literacy rate in the US is under 100%.    But don’t imagine for one moment that an average constituent is going to submit a pull request.  And think about who you’re really speaking to.  As of January, 2013, the population of the United States was estimated at 315,968,000.  GitHub claims 3 million users, not all of whom are in the US.  Sounds an awful lot like the 1 percent to me.

Since the Newtown school shootings on Dec. 14, 2012, the text of the Second Amendment has been viewed 436,795 times on our web site.  That is an increase of nearly 800% over the comparable period of time right before the shootings.   The Washington, DC gun control case, District of Columbia v. Heller, shows a 330% increase in pageviews.  Viewings of the annotations to the Second Amendment and other explanatory material on the LII site have increased equally dramatically.  Roughly 1,700,000 people have come to the LII site after using Google to search for the Second Amendment.  Social network referrals to Second Amendment materials on the site, and to DC v. Heller, increased by over 3200%.

There are two distinct peaks in traffic:  on the Monday following the Friday on which the shootings occurred, and on Jan. 16, 2013, the day that President Obama announced a series of executive actions to reduce gun violence.  The second peak showed well over 23,000 viewings of a page that, before Newtown, received an average of fewer than 500 views per day.

So far as states go, Maine had the largest increase in Second Amendment views (3090%), followed by Alaska (2890%), Idaho (1843%), the District of Columbia (1826%), and New York (1584%).  As of January 11, it was anticipated that Maine legislators would submit 40 to 60 bills supporting some form of gun control during the upcoming legislative session. Alaska’s Speaker of the House recently introduced legislation that would make it a misdemeanor to enforce Federal gun-control laws in the state.

A quick survey of tweets linking to our Second Amendment page shows opinion being divided almost evenly for and against.  So far as public opinion goes, there’s no conclusion to be drawn from these statistics.  But one thing is certain:  in 20 years, we have never before seen a single topic (Constitutional or not) drive so much interest over so sustained a period.

[NB: Taken together, some of the statistics seem incongruous.  The reason, I think, is differences in sample sizing between different parts of Google Analytics, which can generalize from as little as 3% of our total traffic for some purposes.]

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.

A little over two years ago, I posted a piece titled “Big World”  here.  The occasion was the inauguration of our now-very-successful VoxPopuLII guest-blog, whose theme might be summed up as “good ideas about legal informatics from all over”.  You could say the same thing about the Law via the Internet 2012 conference that we’re hosting in October.  The theme is “good ideas about putting law on the Internet, from all over the world”.  This post says a little bit about why; the main points are six:

• The small group that led the trend toward open access to legal information is now a vanishingly small part of the community that is providing open access to law via the Internet.  That community has members who are situated in government, in non-profit organizations, in for-profit organizations that offer legal information freely as a kind of service to their audience, and in every other kind of institutional setting you can imagine.
• Once upon a time, “legal information” meant “judicial opinions”.  Now we are faced with the much more difficult task of making statutes, regulations, and other materials available in a timely way.
• Technology has not stood still. Linked Data and other Semantic Web techniques offer substantial opportunities and even greater challenges.  Developments in digital librarianship in other fields are substantial and useful, but largely unused within the legal-information world. 
• The community of people with an interest in legal information as a socio-technical phenomenon is larger than ever.  It takes in librarians, information scientists, businesspeople, government officials, policymakers and policy advocates, social and political scientists, and many, many others.
• The sustainability challenges that face open access are substantial. (“Sustainability” is a polite, non-profit phrase that means “business”, and, increasingly, “how to buy groceries when your customers don’t pay for your service”). It is, let’s face it, hard to develop revenue streams when you give away your product.  Open-access providers outside of government, and sometimes inside it, are developing innovative models to pay for open access on behalf of those who actually make use of their services.
• The national contexts in which all of these challenges are posed and met are hugely different — in history, in legal context, and in priorities.

There is much that we can learn from each other.  LVI2012 is meant to be an opportunity for that.  While we have Clay Shirky, Richard Susskind, and an impressive, global crew of experts giving talks and chairing and headlining tracks, the real expertise will be among the attendees.  We’ve paid attention to that in the way we’ve structured the schedule.  This won’t just be a parade of people reading papers.  There is lots of time for conversation, and we put a premium on exchange.

Open access to law via the Internet started here at Cornell in 1992 with an offering of Title 17 of the US Code. We used a now-forgotten protocol called Gopher.  Just yesterday, we put up .mobi and .epub versions of Title 17 in the Kindle and Nook stores, which tells you something about how far both the technology and the consumer have come in the meantime.  But the real story of change over two decades is a story about an explosively growing community that provides people with information about the law that governs them, without fees. It’s about what that community knows and how it knows it and how what it knows makes things better for people.  It’s about that community getting to know itself and what it can do and talking to itself about what it should do and how.

That’s what we’re doing in October.  We hope you’ll join us.

PS:  Registration fees go up at the end of the week.  Register now.

I have had a miserable couple of days, here at the keyboard, working through the effects of the Great LII Outage of 2010.  I spent a lot of time on repairs, and on measures that sharply decrease the chances of another.  But this is the Internet, after all,  and a highly complex system, and we know that sooner or later this will happen again.  We had a good run. The last unintended outage we had was about six years ago.  We experience slowdowns two to four times a year, usually the result of some perfect storm of network traffic that confuses our clustering software, or of a fault in the database back end.  But nothing like this last one, ever, and I am hoping that a decade will pass before there is another.  It went on for a little over 48 hours.

Like this one, the chances are that the next outage will be self-inflicted.

We brought this on ourselves.  We assumed that there was such a thing as an innocent change in a heavily-used system as big and complicated as ours.  There isn’t, and we should have anticipated that.  We should have had an easier way to back the changes out once they were in place.  We should have been more methodical in our diagnosis.  What followed was the predictable result of hubris, confusion, and a really bizarre technical problem… but it’s not my point to talk about that here. We’ll fix the technical stuff and put all kinds of traps and wires in place to prevent a recurrence, and we’ll change our deployment procedures.  Next time, we’ll say more to our users about what happened, and we’ll say it sooner.

[ Geek note: for those interested in root causes, it turns out that Perl doesn’t deal with tail recursion very well, especially inside mod_perl,  and that a 750 ms. change in the time it takes to generate a dynamic page can bring a site to its knees, even if it’s running on a good-sized cluster. Also, if you change a lot of content, the reaction from crawlers is just indescribable.  “Feeding frenzy” doesn’t even come close.]

Again, the point of this post is not to review the usual lessons learned, but to point out some others.  Mostly these are about people.

We have a remarkably loyal and patient group of users.  I talked to, or e-mailed with, a number of them over the last few days (yes, it’s often me who answers the phone; we keep telling you guys that there are only five of us here, and that number does not include a receptionist. I still owe some e-mail responses, and will for a few days yet).  All were courteous; all told us how much they depend on us; all wanted us back online five minutes ago. And this is probably a good time to thank all of you from firms and libraries who tweeted or wrote us to say that WEXIS is no better, at least in your institutions.

Many who called or wrote were worried that higher education budget cuts had put us off the air for good.  Nope, not so. I have to say that the relief these people expressed (often with an explosive “oh thank God”) was probably the brightest spot of the last few days; we felt really appreciated.  We get core support — about two-thirds of our budget last year, hopefully less this year —  from the Cornell Law School. While we are hardly central to their mission of providing legal education, they have been, and continue to be, generous in their support.  We are working to reduce our dependency on the School,  but it will be a few years before we are fully self-sustaining.

But I think the most interesting contact came from someone in the far reaches of a large organization (I won’t say where in order to protect the innocent, and some of the guilty, too — we’ll call him Fred).  Fred was very worried about the outage, because some months ago he had recommended that we be made the standard go-to source for US statutes within his extended workgroup.  Apparently Fred has taken a good bit of flak for that decision.  The critics are, he says, much more vocal at the times of year when we run fundraising notices.

Fred just wanted to know what to expect, and to get some kind of a track record on our outages so he could answer his critics.  I cannot imagine a more loyal advocate than this guy.  I would guess there are a lot more like him out there;  I sure hope there are. No doubt they will be hearing about this from their co-workers, too, and I’m sorry for that  (repeat after me: First time in six years. Two to four slowdowns a year. Fewer once we have stuff in the cloud, slated for this summer).  Fred, and all of you like him:  my thanks for your belief in us, and your advocacy on our behalf.

Fred’s co-workers, well… them I’m a little less happy with.  We have 90,000 visitors each and every day of the week.  I have no idea what the aggregate number has been over the last several years, but it’s certainly a lot more than 90,000.  We have 6,000 active donors.  That is a lot of free riders.  I think a fundraising solicitation that pops up no more than once during your visits during the months of December and June (assuming you click the thing that turns it off after the first time), is not a heavy price to pay.  I don’t think I’ve ever seen a sarcastic review of the LII that says it’s worth every penny you pay for it, and I hope I never do; nor do I mean to suggest that those who don’t pay for a service are barred from criticism.  Far from it.  I hope they’ll write to us directly and tell us what it is they would like us to improve.  Oh, and about the insufferable burdens of being asked to contribute, too.

We have deliberately chosen to avoid give-money-or-we-shoot-the-dog appeals of the kind used by many advocacy organizations, despite the fact that most fundraisers find them highly effective.  I think they are unbearably shrill, and as much about manufacturing crisis as solving problems. That’s why we won’t be turning the servers off once a year to make a point, I guess. Besides, that would be childish.

But I have to say that it looked awfully tempting along about hour 17 of the outage, when Fred’s e-mail came in and Dan Nagy and I were rewriting code and juggling servers on our noses.  Picture Tom, with a little devil perched on his shoulder, whispering: Pssst….you know…we could turn the lights out for 24 hours every year, predictably and with advance notice. Maybe on Bentham’s Birthday….  It’s rumored that Paul Ginsparg pulled a stunt like that with the physics arXiv when he was still at Los Alamos.  Tempting, so tempting, especially after the Tim Stanley diet-cola-consumption limit is only a distant memory and you’ve lapsed into twitchy irritability.

All of this to say that the psychological dimensions of something like this outweigh the technical ones, at least for us.  There is, of course, the usual set of platitudes about doing things better — all of them severely devalued in this year of our Lord 2010 by having them pushed into our faces in prime time by Domino’s (“our pizza sucks but we’re fixing it”)  and Toyota (“you’ve always trusted us and naturally we’re fixing your cars so you don’t hit the guardrail at 75 MPH”).  Well, our pizza doesn’t suck.  And we are fixing the brakes.  And we are very, very grateful to those of you who have borne with us through this.  It’ll happen again, but with luck and (mostly) skill, it won’t happen soon.

Tb.

Oh, and a final word:  there is a very special place in Hell reserved for people who have put up web crawlers and have no idea how to operate them.  The commercial indexers like Google, Yahoo and their ilk are actually quite respectful of robots.txt files, offer rate-limiting apparatus, and so on.  The horde of people who have put up search appliances on college campuses and elsewhere without any idea of the effect they’re having on the world are another matter.  I wish them an eternity staked out under a heavy, random shower of red-hot air-gun pellets; that seems about right.

Friends:

For some of you, we can keep this really, really short: go to our donation page, right this very minute, and make a tax-deductible donation.  For those who can be convinced to do so by conventional means, I reproduce the letter that we are sending to our supporters, below.  But I think that readers of this blog are, maybe, a little different in the way they look at legal information. So I’ll add a layer to our usual pitch.  It’s really meant for people with professional concerns about the future of public access to law in the US, and it’s one you may not have thought about.

The real questions before us now are not questions about whether it’s a good idea to put caselaw on the Web.  That is, so far as anything can be, a done deal.  We know how, and for the most part we know who.  The challenging questions are questions about standards — how things interoperate, how we tie secondary materials to primary law, how we find out about the law in a new place given knowledge of law in our own place.  Some of these are research questions. Some of these are metadata-wrangling. Some of them are matters for careful drafting of standards that are lightweight enough that they can easily be implemented and still deliver maximum results.  Some, maybe most, are contemplated in Carl Malamud’s law.gov effort — or will be brought into sharper relief by it, or become suddenly more interesting to a wider public because of it.  All of them are things that require time, effort, and most of all participation.  Most are areas where the LII has developed considerable, dare I say unique, craft knowledge over the 17 years it has been in business.

Standards are shaped by those who have time to draft, and participate, and airfare to get to the meetings. That means that participation — and the power to shape the standard — comes most easily from industry groups, large commercial players,  professional organizations,  governments, and others who can afford to give someone time away from “real work” to work on projects with no immediate operational impact.  At the moment, that doesn’t describe the LII, and it probably never has.  Nor are these concerns — or legal-information concerns in general, it seems — particularly compelling to foundations,  or even to donors who see an operation like ours as primarily one that provides a public service in the form of a public library.   Those donors value the part of what we do that has a direct and immediate impact on people — the part that makes for good story. We do have that impact, and we are deeply grateful for the support we get because of it.

It takes a more sophisticated audience to appreciate — and engage — a need that is no less real because it operates at one remove from the direct delivery of services. Hopefully, if you’re reading this, that’s you.  Detractors of open access to law are betting that cooperative, standards-based approaches can’t produce the level of integration and utility that has been achieved in the private sector.  At this point, I’d be less than the geek I pretend to be if I failed to point out that a lot of people said that about Linux, too.

Bottom line: we want you to buy us time, time to participate in standards development, and to shape the legal infosphere for the  next generation.  Please do so by making a donation, or by supporting us in other ways.

Our regular donor letter follows.

Dear friends:Each year at this time, we ask our audience to help support the Legal Information Institute. Every year we are impressed by your generosity, and by your involvement with our goal of making law available – for free.  We’d like to say thanks to all of you, not only for your willingness to give, but for the sense of appreciation that it offers us personally and professionally.  We are deeply grateful.I’m sure that many of you are carefully rethinking your giving priorities this year.  I am – there is a lot of need, and resources are more limited.  Here are three reasons why you should support the LII by making a donation at http://www.law.cornell.edu/donors :

The LII helps people help people. 

Last week, one of our donors told us:

I am a licensed attorney and I do pro bono work when I can. Recently I signed up to take an immigration case. I used a manual from the Immigrant Legal Resources Center and the LII to learn about federal immigration law. When I had to look up specific provisions in the INA for my case, I used the LII. I am thankful that I can rely on the LII for accurate and up to date legal information–otherwise, I might not be able to take these cases.

The LII is used by literally hundreds of nonprofits and public service organizations – local, national, and international — whose leadership and legal staff can’t afford commercial legal information services.  As budgets for government and nonprofits become more and more strained, we help provide the information they use to help others.

The LII provides unbiased information about law and government

Last month, Maricopa County’s controversial Sheriff Joe Arpaio claimed the authority to make arrests of illegal aliens under a Federal statute that just doesn’t exist.  Using the LII site, reporters were able to quickly verify that no such law is found in the US Code – Arpaio’s “law” was made up by  a nativist organization in Connecticut.   Everyone needs to be able to find out what the law is. We meet that need with unbiased, unfiltered access to accurate legal information as it is delivered by the courts and legislatures that create it – without bias or external agendas.

The LII is a longstanding leader in open access to law

Since 1992, the LII has been a technical and editorial leader in open access to law.  We introduced law to the Web  by mounting the first web-based collections of Federal legislation and judicial opinions.  Since then we have grown into a service that is relied on by more than 90,000 people for both primary and secondary legal information – each day.  Our editorial and technical innovations have been widely adopted by others.  Over the last 17 years, open access to law has grown into a global movement, with  more than 20 namesake Legal Information Institutes worldwide.

A bonus reason: we use your money carefully

We are 5 people maintaining more than 500,000 web pages used by more than 2,000,000 visitors each month.  About 85% of our half-million-dollar budget goes toward salaries for the staff and for stipends paid to student editors.  The remaining funds take care of machinery and technical infrastructure – costs that we are now reducing by use of advanced cloud-computing techniques to replace expensive physical hardware. Increasingly,  we are able to leverage your contributions into broader support by offering a variety of sponsorship opportunities that appeal both to lawyers wanting to reach clients and others who wish to reach lawyers.  This hybrid approach is, we believe, the key to our sustainability for many years to come.

Here’s what you can do

90,000 individuals visit the LII each day. Although their legal circumstances and expertise vary hugely, most of them are trying to answer some variation on a common question: “What am I expected to do?”  A gift of $100 to the LII is little more than the cost of a single search using a commercial legal-information service.  That gift supports unlimited use of the LII by 3 people for about 13 months.   It’s the generosity of our donors that makes our service available to so many, and we are grateful for the vote of confidence that represents.
We can make effective use of any and every dollar that you choose to give us.  We suggest a $100 donation.  More will help us do more. It’s up to you. It’s the generosity of our donors that makes our service available to so many, and we are grateful for the vote of confidence that represents.

We’ve made a short video that explains the case for open access to law.  You can see it on YouTube at http://www.youtube.com/watch?v=lYGfrBVBkpE .   We hope you’ll take a few minutes (three, to be precise) to take a look at it and tell us what you think.

The mechanics for making a contribution (or supporting the LII in other ways) appear at the bottom of this note, below my signature.   I’d also be very grateful if you’d send in any suggestions, questions, complaints, or stories you might have.  We need to understand much more than we do about why our audience values us, what we’re doing that’s working, and what we can improve.  We love knowing more about the impact we’re having, and only you can tell us that.

Thank you again for your help and support, and our best wishes for the coming year,
Tb. (along with Dave, Brian, Sara,  and Dan)

Donation mechanics, and more ways to stay in touch

• All contributions are tax deductible.
• Online contributions at http://www.law.cornell.edu/donors
• Contributions by check, made out to the LII, should be mailed to:  Legal Information Institute at Cornell University, Box 223623, Pittsburgh, PA 15251-2623
• If you want to be listed in our free lawyer directory, see http://lawyers.law.cornell.edu/ .
• You can take advantage of sponsorship and other business opportunities that help support us. See http://topics.law.cornell.edu/lii/business_opportunities.
• Friend us on Facebook at http://www.facebook.com/Law.LII .  You can also keep up with the LII via our blog at http://blog.law.cornell.edu/ . Other popular LII-related blogs are Tom Bruce’s b-screeds ( at http://blog.law.cornell.edu/tbruce )  and VoxPopuLII (at http://blog.law.cornell.edu/voxpop )