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The purpose of this “25 for 25” series has been to celebrate 25 years of the Legal Information Institute, to recount its greatest achievements, and to place its accomplishments large and small in the greater context to which they belong.   That was overdue and fun to read and, I assure you, quite flattering for all us.  (Ed Walters, we’re still blushing.)

Elmer Masters ended the most recent of these posts by hoping to write about our leadership when another two-and-a-half decades have passed.   I decided to wait two-and-a-half days instead.

Back when I practiced law for a living, a question I learned to ask myself while writing was, “So what?”—or, to phrase it more politely, “Why am I telling you this?” or “Why does this matter?’  Maybe I learned it as an English major long before that.  Anyway, it’s a thing.

And it’s a thing I brought with me and have used repeatedly over the last four-plus years I’ve been Associate Director-ing here at the LII.  Whether it’s allocating scarce resources or writing a newsletter article, I have to ask myself “so what” all the time.  I say it out loud in meetings probably far too often.

Many of the guest bloggers who’ve sung our praises have answered the “so what” question about our impact and our value—our legacy, if you will.  But a legacy is what’s left at the end, and we are just getting started.   Here are just a few brief insights into the things on our mind as we look at we are right now and where we might be headed:

The LII as a big tent

We now do this, and this, and this, and even this.  Why?  Because we were asked to.  In each case, somebody—respectively, Jerry Goldman, Peter Martin, the (now-defunct) Avon Center, and (the also now-defunct) Sunlight Labs— built something really cool and then asked us to care for it and feed it and put a roof over its head.   And we did!   You’ve read a lot in this space over the last eleven months about how the LII has served as a beacon for others in the free law movement—many have steered by that beacon and, as it turns out, some have steered toward it.  

So what?  We don’t expect that phenomenon to end abruptly or soon.  There will be more projects to adopt from their creators and to adapt to our purpose.  Though the tent is big, it’s likely to get crowded.  Whether these additions show up as new features on our site or as entirely new sites, in each case anything we do will advance our mission of making law easier to find and understand.  But each new project we adopt will come with its own demands, be they technical, administrative, managerial, or economic.  Like a puppy under the Christmas tree, these are gifts that eat.  We’ll need to innovate in new ways that are just as likely to require business acumen as technical or legal skills. 

Students, students, students

First, it’s important to note that we work with computer science and information science students, as well as law students.  But when it comes to creating new secondary content, my focus is usually on the law students.

And we hire a lot of law students.  In fact, in our own unofficial estimation we are the largest single employer of Cornell Law students each year.  We have in excess of 40 law students on the books right now working on the Supreme Court Bulletin Previews, Wex, and even over at Oyez.  On the Oyez website, we also employ students at the institution from which we adopted it, the Chicago-Kent School of Law.  

So what?  That we were able to navigate the administrative and managerial challenges of hiring and supervising law students from another institution bodes well for our future.  Though it’s my alma mater as well as my employer, I’ve never believed that Cornell Law School holds a monopoly on bright, energetic, and enthusiastic law students.  Knowing that we can employ qualified and capable student labor from anywhere whenever our reach exceeds our grasp allows us to reach farther and grasp for more.

Audience

Increasingly, our busiest days are fueled not only by additional traffic coming from search engines but also from links contained in social media posts.  These days, the difference between a day of heavy traffic day and a day of very heavy traffic is usually the number of visitors arriving via links from Twitter and Facebook.

So what?  One of the reasons we’re such a common source for hyperlinks in social media is because folks find us on a search engine when they want primary reference material to help make their point.  While this phenomenon currently accounts for a small (but growing) source of traffic, aren’t these exactly the kind of users we should be particularly interested in?  Say what you will about social media, but that’s where debate is happening.  That people are pointing to the US Code, the CFR, the Constitution, or whatever else they find on our site to justify their stance on the issues of the day is a very good thing.

What happens when a social media user’s friends or followers click on that posted link?  We know that these visitors behave differently from users arriving via their own internet search or from a link in a news article or another website.  They don’t stay nearly as long, they view fewer pages, and they are for more likely to “bounce” from the site without interacting with it at all.   How do we give them the context they need to place that one little piece of the law they’re looking at into the bigger statutory or regulatory framework that is required to understand it?  On a more pragmatic level, how do we give them a page they can read and digest on their phone?  (We get more traffic from Facebook Mobile than Facebook.)  

None of these challenges are 25 years away.  With technology, the operative cliché is “the future is now.”  In terms of the challenges we face, there’s a lot of truth to that.   So, thanks for spending the time over the last 11 months helping us look back on our success and for sticking around as we look forward to how we can continue to be the flagship for open access to the law for decades to come.      

Craig Newton is the LII’s Associate Director for Content Development.  

by Elmer Masters

The Legal Information Institute is 25 years old. For a quarter of a
century the organization built by Peter Martin and Tom Bruce at
Cornell has been a beacon for those interested in free and open access
to the law. The LII website provides unparalleled access to decisions
of the Supreme Court of the United States, including oral arguments
via Oyez!, the United States Code, and the Code of Federal
Regulations. LII manages several student led publications at Cornell
that provide valuable analysis of judicial proceedings of the Supreme
Court and the NY Court of Appeals. Its work influences policy on open
access to federal legal information.

But if you’re reading this, you probably already know that. You
probably also know that the work of the LII has provided a blueprint
for legal information institutes around the world as they work to
provide their citizens free and open access to the legal information
that is so key to creating an informed citizenry and fostering
democracy. Yet here in the United States once we step away from the
work of the LII we quickly wander into a vast wasteland of legal
information dominated by commercial vendors, arcane court,
legislative, and administrative systems, and questionable copyright
claims. While the LII has provided a workable model for publishing
legal information it hasn’t been adopted by the courts, legislatures,
and administrative bodies of this country.

As citizens of the US we are told that ignorance of the law is no
excuse.  We are expected to make informed decisions regarding a wide
range of issues when we vote. We are required to comply with an ever
growing number of rules and regulations. But we do not have free and
open access to the law, to the statutes, the regulations, the judicial
opinions that we are expected to follow in our day to day lives.

I know this is a broad statement, but I also know, sitting here in
Woodstock GA, it’s a whole easier for me to find out what order I
should watch the Fast & Furious movies in (hint: not the order they
were released) than what rules apply if I want to raise some chickens
in my backyard. I simply cannot think of any reason why that is a good
thing. The simple truth is that the law just isn’t as readily
available as some other information. And that truth is a serious
shortcoming in this country. We have the models provided by the LII,
why don’t we build on it?

It isn’t just in the legal information space that the Legal
Information Institute has provided models that we don’t follow. Many
may not realize that in the early years the LII had a significant role
in legal education. Peter Martin was a pioneer in bringing distance
education to US law schools and in using technology in the law school
classroom. LII published or co-published course and other materials
for law schools and developed a digital archive system for faculty
scholarship. As with legal information, LII’s work in legal education
provided models for distance education, in-class technology, and
digital archives that were years ahead of their time.

Like its legal system, legal education in the US is fairly unique.
It’s steeped in tradition and slow to change. Law is taught now pretty
much as it was a century ago. There is little variation in curriculum
from school to school. With swift changes to law practice driven by
technological changes and economic shifts legal education is in
crisis. Law schools are suffering from dropping enrollments, falling
bar passage rates, and a soft job market. Many schools are finally
taking a look at distance education and classroom technology as ways
to improve and differentiate their curriculum. Legal education could
do worse than to look back at the work LII did 15 – 20 years ago in
distance education and classroom technology.

Over the past 25 years the LII has provided leadership in legal
information and legal education. I’m looking forward to writing about
50 years of leadership.

Elmer Masters is the Director of Technology for the Center for Computer-Assisted Legal Instruction (CALI), a consortium for the development of novel methods of legal instruction that has most US law schools as members.  He is a former roadie.

 

If you polled the team at Fastcase about our influencers – the people who we look up to the most – there would be many companies on our team’s lists, but the first on everyone’s list would be Cornell’s Legal Information Institute.  For its creative solutions, free law ethos, and its longevity, the LII is an inspiration not just for our team, but for so many others around the world.

The LII turned 25 years old in 2017, and anyone who has worked in the software world can tell you, creating software for a big audience is demanding.  But to stay at the forefront, to innovate and dare the way the LII team has over a quarter century, well, those are all city miles, my friends.  

Most software companies started in 1992 are long gone.  Of the few that remain, most have fallen by the wayside, as their founding teams exhausted or quit, unable to keep up with the relentless demands of thesoftware world.  Designing for multiple Web browsers, plugins that work until they don’t, updating to new tech stacks, recreating everything in new hardware stacks, supporting high-volume Web traffic without a venture-backed budget, training new generations of law students each year – you get the picture.   The challenges of running the LII are not insignificant.

But to the world, the site is effortless.  Beautiful, modern renderings of the law, continuously updated both as to form and substance.  The LII crew has stood the test of time, not by chasing every passing fad (of which there have been many in 25 years), but by simply being the best at what they do.

Cornell’s Legal Information Institute is an amazing show that has run daily for 25 years.  There’s no way that Director and co-founder Tom Bruce could have known that his background as a production manager for an opera company and as a jazz tour lighting designer would have prepared him to create a show like the LII.  He, and his successors, are managing a gifted group of artists, all performing in public for a quarter century.

Today, the LII’s influence extends globally.  The Legal Information Institute is a go-to source for American law, from Wall Street to global capitals, and from the headlines to mom-and-pop shops trying to understand the law.   Over 25 years, the LII has become a proving ground for some of the most creative minds in legal tech, and the diaspora of LII alumni have brought its energy to law firms, corporate legal departments, legal publishers, and legal technology companies.

Co-founder Peter Martin’s influential scholarship and work has changed the way we think about legal information.  A dozen states have changed the way they publish law, creating media-neutral citations to make judicial opinions citeable independent of the printed book.  

Perhaps most importantly, the LII has inspired more than 20 Legal Information Institutes around the world – it has become the new model for how nations should publish their laws.  Free, open, and public is the de facto standard.  It didn’t have to be this way, but inspired by the team at Cornell, the world is publishing law the LII way.  Indeed, the LII is our team’s most prominent influencer.

The LII’s 25-year production has created a beautiful, enduring way of accessing the law, inspired generations of law students and engineers, changed the way we cite the law, and created a lasting reputation for Cornell Law School as an innovator in legal technology and publishing.  Tom Bruce — and now Sara Frug and Craig Newton — may not be lighting shows for jazz troupes, but their work at Cornell has been a shining light for the world.

Ed Walters is the CEO of Fastcase.  He teaches The Law of Robots at Georgetown University and at Cornell Tech.

by John Sheridan

There is no other form of written texts quite like legislation, nor a form so suited to the web. In retrospect, readers of legislation had been waiting a long time for a hypertext system, such as the web, to be invented. It turns out, we needed one all along. The web has been transformative, primarily in terms of its impact to enable access to the law. Ready and easy public access to legislation (ideally, up to date, revised versions of the text) is of crucial importance to the rule of law, as Carl Malamud wrote in his Birthday Message as part of this series.

Widening access

The web has widened access to the law beyond all recognition in just a couple of decades. As services like legislation.gov.uk demonstrate, non-lawyers can and do routinely consult primary sources of law. We see millions of visits every month to legislation.gov.uk and we know most users of our service are not legally trained or qualified. This is to be celebrated, not least as an important contribution to the rule of law. In publishing the first legislation on the web in the early 1990s, Tom Bruce and his team at Cornell LII saw the potential of the new technology very early on and have blazed a trail ever since. We are still working through the implications of that transformation.

Legislation as data

Part of this transformation is to think about legislation as data. Anne Washington writes eloquently in her post Documents to Data – A Legal Memex, this is in itself an enormous leap forward. As the official publisher of legislation in the UK, we designed legislation.gov.uk to be both an end user service and to provide legislation data as infrastructure through an open API. We deliver legislation as open data, which others can readily access, use and re-use in their own products and services.

Non-linear content

There’s another story here too. Despite the drafter’s best efforts to create a narrative structure that tells a story through the flow of provisions, legislation is intrinsically non-linear content. It positively lends itself to a hypertext based approach. The need for legislation to escape the confines of the printed form predates the all major innovators and innovations in hypertext, from Vannevar Bush’s vision in ” As We May Think“, to Ted Nelson’s coining of the term “hypertext”, through to and Berners-Lee’s breakthrough world wide web. I like to think that Nelson’s concept of transclusion was foreshadowed several decades earlier by the textual amendment (where one Act explicitly alters – inserts, omits or amends – the text of another Act, an approach introduced to UK legislation at the beginning of the 20th century).

Function and form

There’s long been a relationship between the framing of law and the form of law – “we shape our tools and they in turn shape us” so to speak. England has a body of statute law dating back to the 13th century. Not least through the records we hold at The National Archives, it is possible to trace the evolution of the related concepts of Parliament, Law and Government over 800 years – and through that evolution see the impact of the technologies used to encode the law. From the Statute of Marlborough (the statute being the physical roll onto which the agreements of the Marlborough Parliament were written – only later, in part thanks to printing, did we come to view these portions of texts as separate Acts), the modern form of legislation has emerged gradually over time.

The Act of Supremacy, 1534 (26 Hen. VIII c. 1), a typical example of hand written legislation.

The printing press had an enormous impact on the form of law, codified for the those of us with the Westminster system, in the 19th century by Lord Thring in his book Practical Legislation. More recently, modern drafting tools, that enable the easy management of cross-references within and between texts, have enabled far more deeply entwined laws. The complexities of the modern world have given us deeply intertwingled laws.

Legislation is deeply intertwingled

Today’s statutes can be conceptually dense. Yet there’s no rhetoric or repetition to aid the reader, nor, in the UK at least, are there often purpose provisions, examples or diagrams to elucidate the meaning. Legislating in a common law environment, an Act of Parliament, even a principal Act, does not so much set out the law in an area, as set out the changes to an existing body of law – changes across both statute and common law. Statutes rely on the existing law as well as change it. They will use terminology around which a body of pre-existing law exists, either through Interpretation Acts, or established case law for terms such as “reasonable”, or “having regard to”. Moreover, they will be silent on topics where the existing law does not need to change. The intertwingled nature of modern statute law provides a significant barrier to understanding and comprehension, for lawyers and non-lawyers alike. As Alison Bertlin writes in her Loophole article, What works best for the reader? A study on drafting and presenting legislation, “Readers seem to have very little grasp of how legislation is structured and organised. Their ‘mental model’ of it is simply not very good.” It is here that we publishers can best make a contribution to accessible law through how we present legislation on the web – retrofitting the mental model the reader lacks, through the user interfaces we design.

Limits on machine processable laws

As a technologist by background, I recognise the desire to think of the body of legislation as being the Operating System for a country. In many ways, I like the analogy and we are making progress towards machine processable laws. There are valuable standardisation efforts like LegalRuleML, which seeks to define a rule interchange language for the legal domain. The aim is to enable the structuring, evaluation and comparison of legal arguments represented using the rule language. In the era of digital government this idea has real allure. There are potentially enormous benefits and efficiency gains to be had from running legislation as code. However, I often wonder whether these efforts perhaps miss the nature of the law, or at least the common law. The intertwingled nature of the law – a feature that aids the common law’s resilience and ultimately underpins our notion of justice – poses significant engineering challenges. There may be better prospects for machine processable legislation where there are formal legal codes, which sets out all the law in a given domain. It will be interesting whether legislation becomes more codified, modular and self-contained in future, in a drive towards machine processability.

There is much still to do

We have turned our legislation into hypertext and massively widened access, but we have yet to escape the printed form of legislation or to realise the full benefits. This is compounded by the limitations of the web as a hypertext system and the complexity of legislation – imagine what we could do if we had something closer to Ted Nelson’s original vision! It is a revolution still underway, and for all of us interested in legal informatics, there is much still to do.

John Sheridan is the Digital Director for the National Archives of the United Kingdom.  He was previously Head of Legislation Services at The National Archives, where he led the team responsible for developing legislation.gov.uk.

by Sarah Glassmeyer

I don’t think I even knew what the Internet was 25 years ago.

I definitely didn’t know about the different types of law and legal information.

And I couldn’t have even imagined that up on the other end of the Appalachian Mountains in Ithaca, New York, two men would be embarking on a project that would eventually change my entire professional life.

Twenty-five years ago, I was a 16 year old kid on a farm in rural southern Ohio. When I wanted to know about something even slightly esoteric, I had to make note of it and then wait until the weekend when one of my parents could drive me the hour to the Cincinnati Public Library.  In addition to books and magazines and microfilm, they had what to me seemed like magic – the LexisNexis CD-ROM set of news and periodicals.   I felt like I was living in Disney World’s Tomorrowland when I could put a holographic disc into a machine and read about whatever was my obsession at the time.

Time passed and, perhaps unsurprisingly, I grew up to be a law librarian.  By this time I figured out what the Internet was and I had the various types of legal information sorted, but I didn’t really see the connection between the two.  After all, that’s why we had Westlaw and Lexis.

Then I had what could be called my “free law awakening.”

The awakening

A confluence of events happened around 2008 that completely changed my professional trajectory and opened my eyes to the inequalities that happen around legal information.

  1. I was working in a law library in Kentucky and interacted more than I ever had with members of the public and small/solo legal practitioners.  For many of them, the pay resources of the Lexis/Westlaw world were out of reach and they depended on our collection of print materials and our public access Westlaw machines.  
  2. The great recession hit our library budget pretty hard and we were unable to continue to maintain our print collections of codes and caselaw.  In order to maintain public access to local materials at least, we felt that we had to use the almost prohibitively expensive public access Westlaw machines.  These were problematic in three ways: They limited the number of people that could simultaneously use a terminal, had a limited collection, and only provided leased ownership to the materials that would go *poof* should we ever stop paying.
  3. The Web 2.0 revolution was in full swing and it became easier than ever to put content on the web.  You didn’t need to be a computer genius or “techie” any more to put material online.  And there was an audience for it too!   According to Pew Research (http://www.pewinternet.org/2008/07/02/home-broadband-2008/) by 2008 almost 75% of all adults were online.

Because of all of the above, I began to wonder why more state governments didn’t put their legal materials online for people to use and reuse.  After all, there were no copyright restrictions, since it was primary law.  And if I could put content up on the web, surely a state government could too.  It seemed so easy.  Take a case or statute or regulation.  Put it into HTML (or, heck, even a PDF would do).  Post it on the web and give everyone free access.  Done.  

However, as I showed in 2016 (http://www.sarahglassmeyer.com/StateLegalInformation/) , states are failing in this goal.  As they did during the print era, states often have decided to outsource their electronic legal publishing to commercial vendors.  These vendors in turn place usage restrictions – and sometimes even copyright! – on these laws, which admittedly does still allow for the regular public to access them, assuming that they’re not put off by the click through agreements.  However, they prevent the content of the law being republished by someone that would wish to build upon the primary law and make more useful secondary legal materials.  One of the less talked about benefits of free legal information is that when you give people access to the raw material of law, they can make some really cool things out of it.

Back to 2008.  It was around this time that I “met” Tom Bruce via Twitter.  Initially I liked him because I thought he was funny and interesting, but soon he began to challenge my librarian perceptions of what really matters in publishing Free Law.  No, the LII isn’t “official” or “authentic.”  However, its openness allows for accuracy checks to occur.  They also have the infrastructure to support the heavy web traffic that can send the U.S. Supreme Court website crashing on important release days.

I also learned from Tom and the LII crew that publishing law isn’t as easy as I originally thought.  That doesn’t mean that they do it poorly or even less ably than commercial vendors. In fact, their site has some very beneficial add-ons and usability tricks that add tremendous value to the law and make it easier for the general public to understand.  Through their groundbreaking work and ingenuity, the LII has become the gold standard for what free legal publishing can be.

I have seen too many librarians let perfect be the enemy of good and not let themselves fully support free and open access to law, even though Pay Law is slowly killing their institutions.  Common complaints include no citators for case law, lack of authentication or officialness and little to no preservation. It doesn’t seem to matter that the current commercial sites are not authentic, official or preserved.  Or that government supported Terms of Service agreements are currently preventing open access to law practitioners from making tools like citators.  Unfortunately, there is a common misconception that things given away for free by “volunteers” do not have the same worth as something that costs ever more exorbitant rates.

Why does it matter?

Many people in the Free Law and Open Government space seem to come at the issue from the angle of transparency. The reasoning being that if people are to be governed by a democratic government, they need to have access to the workings of that government in order to be full participants in it.  I believe that, but I also have a slightly different tack to it.

Access to information is access to justice.  That’s always been the case, but now more than ever.  People often conflate access to legal services with access to justice, but access to justice is much larger than just access to legal services.  That being said, we have an access to justice crisis in the United States most often measured by access to legal services.  At present, eighty percent of the people who need legal representation must do without, often because they cannot afford the services of an attorney.

If a person must rely upon their own wits in order to get government benefits, stay in their housing, litigate a divorce, navigate their business through government regulations or any of the other common access to justice needs of individuals, it is essential that they have easy access to correct and up to date legal information.  Unlike me at age 16, many of these people cannot take the time to go to a physical library.  Indeed, even if they could, they would be offered a dwindling print collection or maybe a sparse public access database.  

The public needs to be able to access legal information on the open 24/7 Internet in an easy to navigate, mobile friendly way, since most people – especially lower income individuals – access the web via mobile devices. (https://techcrunch.com/2016/11/01/mobile-internet-use-passes-desktop-for-the-first-time-study-finds/) Primary law needs to be published without usage restrictions so that individuals and organizations can create useful adaptations and tools like encyclopedias and citators to assist self-represented individuals in their endeavors.

Twenty-five years ago Tom Bruce and Peter Martin started a revolution in legal publishing with the founding of the Legal Information Institute.  It is my hope that twenty-five years from now, with the seeds planted by Tom and Peter, a hundred (or more!) free legal information sites will bloom and new ways of looking at and using legal information will be developed and people will have great access and understanding of the law that governs them.

Sarah Glassmeyer is the Project Director for the American Bar Association Center for Innovation.  She is a former Research Fellow at the Harvard Library Innovation Lab, and affiliate of the Berkman-Klein Center for the Internet and Society; she also served as the Director of Community Development for the Center for Computer-Assisted Legal Instruction.  She is an unrepentant law librarian, and a very funny person to watch a movie with.

by Carl Malamud

When Peter Martin and Tom Bruce decided 25 years ago to serve the law on the Internet, they were joining a grand tradition of promulgation dating back 25 centuries. The pronouncements and edicts of our governments comprise the operating system of our societies, and it is only when that code is repeatedly copied that it may take effect.

Only by promulgating the law can we have rule of law. Only by copying and annotating the law can we understand what it says and inform our fellow citizens. Only by repeating and disputing the law can we refine the principles to make the wheels of our system of justice roll down the road of righteousness.

The law does not occur in a vacuum. The law must be transmitted to others to take effect. If an edict is uttered in the forest but nobody is there to listen, it cannot be considered a law. For a people governed by the rule of law, the laws must be written prospectively, be of general applicability, and be fully promulgated. Only then do we bring justice out from the arbitrary whims of capricious individuals in star chambers into a world of law made for the people and by the people.

This tradition of promulgation dates back to the beginnings of our societies. The plebes of Rome demanded that the laws by which they were to be governed be carved into stone and wood. Copies of those Twelve Tables were displayed in every marketplace. Every student and scholar was taught to recite them from memory to their peers, to their teachers, and when they pled their causes in a court of law.

In India, the great emperor Ashoka carved his edicts on pillars and placed them throughout the empire, expressing his desire that there be “uniformity in law and uniformity in sentencing,” codifying a system of appeals, declaring amnesties, and protecting natural resources and wildlife.

Later, as the West began to emerge from the dark ages, it was priests copying the canon law for each other that began creating a more regular and predictable system of justice. This legal renaissance, in turn, encouraged the recording and transmittal of civil law and led the Four Doctors to revive the codification and glosses of Justinian to create a law school for teaching civil law.

In England, Justice Edward Coke read and wrote the law in his Institutes, a restatement (and reinterpretation) of the law that continues to resonate today. A century later Blackstone repeated the process, in an affordable and understandable restatement of the law that was used throughout rural America by up-and-coming students in log cabins to teach themselves the law.

Peter Martin and Tom Bruce were not the first to decide to use computers and the Internet as a tool for promulgating the law, but they were the first to do so for the people. The earlier JURIS system, created by the Air Force with the Department of Justice, had a great trove of case law, statutes, and constitutions, but the government did not open it to the people. Indeed that database was soon destroyed by the Department of Justice in a misguided attempt to curry favor with corporate interests who were worried the JURIS law would co-mingle with the West law and pollute the purity of the West bloodline.

Those corporate interests, companies such as West and Lexis, had been creating mighty databases of primary legal materials for many years, but did so for the primary purpose of their own personal gain. The law to them was a property, indeed they assumed de facto ownership over huge swathes of American jurisprudence, asserting copyright, establishing monopolies, and charging extortionate rents.

Both West and Lexis provided adequate services for their times, but they were services for the rich, not for the people, and the primary pecuniary motivation of their enterprises can be readily seen today by one quick glance at their terms of service and antiquated sites. Do not doubt for a minute, this is all about the money for them.

Peter Martin and Tom Bruce set out to change that situation, a testament to their dedication to public service. They put Supreme Court decisions and the U.S. Code on the Internet, available for use without restriction, presented in a standards-compliant way that worked in modern browsers. High school classes were suddenly able to teach the seminal decisions that shaped our country. Citizens could read topical and historical cases and navigate the provisions of the U.S. Code. Lawyers and government employees flocked to the new service as well, since it surpassed what their employers provided in so many ways.

An informed citizenry is the key to our democracy. Many lawyers have felt that it is their sole and exclusive job to interpret the law, a private domain available only to them by virtue of their license to practice. This attitude has become much rarer among the other learned professions.

Doctors now understand (albeit perhaps grudgingly) that their patients are eager to learn about their medical conditions and that this practice leads to better medicine. The sciences have long been practiced by many, from highly trained professionals to eager amateurs. Many of those amateurs have made fundamental contributions to the state of human knowledge. MBAs at Goldman Sachs share the SEC EDGAR database with senior citizen day traders and college students.

Yet, despite 25 years of effort, the law in America is not widely available. In many cases, citizens are granted drastically limited access to the law, allowed to read regulations only by agreeing to onerous terms of use, and subjecting themselves to web sites with digital rights management and other technical shackles that deliberately make the law harder to read and impossible to copy.

You are allowed to see the law, but only within the confines of the walled garden, and you are continually reminded you are a guest in this private facility which you visit only at the forbearance of the purported landlords.

Even when the web sites presenting the law are adequate, all too often they are the vigorously defended monopoly of one well-heeled and well-connected concessionaire. Copies in bulk are prohibited contractually (and arbitrarily) through thickets of clickthrough boilerplate and enforced technically. These prohibitions apply to any and all, from for-profit competitors to—as Lexis puts it in its terms of use—all “non-profit or public purposes.”

When the law stagnates behind walls, the law becomes static. The law must flow freely, it must get continually re-expressed using the new technologies and sensibilities of our day. The innovation that springs from random corners cannot happen when the law is frozen in means of expression only suitable for a prior age.

This is why we must celebrate the vision and accomplishment of the Legal Information Institute. The founders have shown a unique sense of public purpose when they made their new system available for all to use without reservation or registration.

Peter Martin has a 50-year record of public service. He was one of the only law school deans who understood that the mechanics of the law—the infrastructure of our system of justice—is just as important as the substance. In addition to his work at LII, he has been a pioneer in the mechanics of legal citation and has been a voice of clarity to the states in teaching them about vendor-neutral citation.

Tom Bruce and his contributions must equally be applauded. When he co-founded LII in 1992, the web was a different place. In addition to placing legal materials online, Tom understood that people needed to read those materials, and in those days, that software didn’t exist. When you move to the wilderness, sometimes you have to build a house before you can start farming. So he wrote Cello, the first Windows-based browser.

Tom Bruce, like me, is not a lawyer but has spent an inordinate amount of time inside the mechanics of our legal system. Before Tom joined Cornell he worked as a stage manager on major productions for groups such as the American Repertory Theater and the Lyric Opera of Chicago. Big league jobs, and highly technical. Tom discovered the Internet early, and rather than take his formidable skills to Silicon Valley to make his fortune, he has devoted the last 25 years to public service.

Copying the law—transforming the law to make it more useful, promulgating the law to lawyers and also to muggles like us who have not been raised to the bar—is an activity that one would think would get universal acclaim. But, it is more than a few greedy vendors who have objected to these activities. The bar itself has been notably reluctant to embrace the Internet and its potential.

The idea that the law can be owned by a private vendor, or that one private party might require a license from another private party before speaking the law, is an idea that (oddly enough) still has great cachet among some lawyers. Go to any meeting of intellectual property sections of bar associations, and you will find a hardened cadre of alt-© absolutists that maintain that only lawyers need to read the law and that expensive access to legal materials is a fact of life.

To these misguided souls, the law is a revenue opportunity, not the underpinnings of our democracy. They view rhetoric about the rule of law as a marketing slogan—no different than being in favor of world peace—not as the very foundation of our temple of justice. They view public property as yet another opportunity to build private fences and charge admission, not as our common heritage to be shared equally and non-consumptively by all.

I speak with some experience on this matter, having participated in the American Bar Association policy process two years in a row. Last year, I watched dumbfounded as the ABA endorsed the idea that the law should be subjected to Digital Rights Management in a misguided attempt to protect private revenue streams while providing the public with a dumbed-down version of federal regulations.

While even that modest step forward from the present situation was vigorously opposed by the standards organizations—and I will grant you that this resolution had the best of intentions by the original drafters of taking one small step forward—the resolution put the ABA firmly in favor of deliberately restricting access to the law through the use of misguided (and ultimately ineffective) technical limitations. How can you tell citizens how they may or may not read and use the law?

It was gobsmacking to me that the idea of subjecting federal regulations to Digital Rights Management was co-sponsored by the ABA Section on Civil Rights. I attempted numerous times to brief the section (of which I am a member) on the issues, but they refused to allow me to participate. After the resolution passed, I approached the Civil Rights representative to the ABA House of Delegates and asked why they wouldn’t discuss the issues with me. She responded “Because you’re not a lawyer. That’s how we do things here.” I was stunned.

This “you’re not a lawyer” attitude is all too common at the bar. I have found it in private practice, in the judiciary, and in law schools. What I have also found, however, is that the smarter the lawyer and the more senior the position, the less likely it is suffer from this kind of insularity. In the American Bar Association, for example, I found leaders such as General Jack L. Rives (the executive director) and Linda A. Klein (the past president) to be encouraging, respectful, and welcoming, to non-lawyers.

I still have hope for the bar, but I we have clearly failed to convince them of the importance of the raw materials of our democracy for them as practicing lawyers and for as citizens who own our government. We must try harder.

I came late to the game of making legal materials available. I started Public Resource in 2007, 15 years after Tom and Peter started their work at LII. But, my work in the 1990s was in a similar vein, making large government databases such as Patent and SEC available. I ran across a similar attitude of insularity and privilege in those days.

Financial professionals felt there was simply no need for the general public, even the investing public, to have access to primary SEC filings. In the patent bar, there was an even more strident view that patents were only of interest to patent lawyers. I set out to change that.

I learned two truths putting those databases online. First, when you make an important database like this available, the number of people who will take the time to read the materials will astound you. Millions of people started reading patents. Millions of people read SEC filings. Millions of people read the LII.These are not trivial databases. I get far more hits than most government web sites and I know LII’s traffic overshadows most of the organizations they mirror.

The other thing I learned is that there is always somebody smarter than me out there. When I made databases available in bulk with no restrictions on use, others came along and started working on them, making the data more useful in ways that I could not have conceived and certainly could not carry out. When we restrict access to public materials, we prevent innovation.

The same is true with the law, and my birthday message today is that we must not simply celebrate 25 years of pioneering leadership by LII, we must ask ourselves as a country what we can do to bring this forward, to take the next steps along that road.

There is some hope. For decades, the only reasonable way to read the U.S. Code has been LII, but now the Congress has made substantial progress. Their system is not nearly as good as LII, but the Congress is trying to get there and deserve credit for the level of effort and, most of all, for shipping code.

The U.S. Code is just one instantiation of our primary legal materials. Even at the federal level, the state of our laws is abysmal. The only reasonable version of the Code of Federal Regulations is the one that the LII runs. The government has shown no interest in moving this database forward, despite the fact that federal regulations are some of the laws that most directly impact our citizens.

I speak from personal experience on this point as well. I was gratified to play a very small part in the transformation of the Federal Register at the beginning of President Obama’s first term, but I spent the next 8 years trying to get somebody, anybody, to take on the CFR. I personally proselytized the vision of a better CFR to the Office of the Federal Register, the National Archives, numerous members of Congress, numerous White House officials, the General Services Administration, and the Department of Justice.

My efforts at evangelism yielded many converts and no action and the CFR remains mired in a swamp. It is the swath of federal law that most directly effects people. I depend on LII to be able to put permalinks to the CFR in my writings, but find it incredible that there is not an official, stable, secure source from the regulators themselves.

Looking across the rest of our federal government, we see a Supreme Court that built a new web site, but still does not provide access to historical materials, such as the briefs submitted in cases, let alone the records of the lower courts decisions leading up to pinnacle of the marble palace.

Let us not even speak of oral arguments, proceedings that would be invaluable to our law schools as a teaching tool. There is no better device to teach the mechanics of rhetoric and argumentation than posting video of the best lawyers in the land arguing the most important issues before us to highest court. A few lucky law students from elite schools occasionally get a brief glimpse of the proceedings, but videos of oral arguments should be available to every law student, every lawyer, and every citizen.

In our lower courts, we see a PACER system that is absurdly expensive and so technically flawed—despite a huge recent investment of time and money in code whose most visible attribute is the obvious insularity of the programmers who wrote it—that the mere mention of the word “PACER” to a technical audience has become a laugh line. Try it. “Take my PACER. Please!” See?

Congress, despite some progress in areas such as the U.S. Code, still has low-quality streaming video for the House and a meager presence on the Internet for the Senate, an insult to the rich history of that august body. Across government as a whole, key archives, such as the full run of the Statutes at Large and the Federal Register, are sadly incomplete. The problems are even more dire at the state and municipal levels.

Let me be very clear about the tremendous progress that has been made in some quarters, particularly in the last 8 years. Our government has become much more aware of how to use computer technology. The White House had a stellar group of technologists guiding the President, and the creation of digital services in departments such as Veterans Affairs and Defense have made a huge difference. Good people work for government, and the only thing stopping them from doing better work is the willful cluelessness of their leaders.

What is equally clear is that the specific issue at hand—the availability of the primary legal materials of the United States of America—has not received the attention it needs from those charged with creating, transmitting, and administering our edicts of government. That is of course our fault for not clearly stating the importance of this mechanical issue of legal plumbing and pipes. It is clear we have not made a lasting impression, we must speak louder and more often.

One could lay all blame at the feet of the government for the sorry state of our primary legal materials, but I believe the problem is deeper, and must be faced by the bar itself. Before we adjourn to the bar, however, I would like to spend a few words on the topic of money.

Since Tom and I both run legal nonprofits, I can tell you that when we talk one of our most consistent topics is the abysmal state of funding for organizations such as ours and the many other worthy non-profit ventures and research ventures that promulgate and work with the law.

I have spent decades in search of sustainability and the elusive magic business model. I know Tom has been on a similar quest for this holy grail. A Silicon Valley executive once told me that I needed a better business model than charity, but I put it to you that far too many enterprises that try to get into the legal “business” focus on the money and that focus has led us to where we are today. So many startups have been created only to beat a door towards the first exit.

Let me be clear, that even the most well-meaning .com startup today could not possible succeed as long as the insurmountably high wall surrounding our primary legal materials remains in place. I give you a simple example.

In our suit over promulgation of the Official Code of Georgia Annotated, we include a sworn declaration from Ed Walters, the CEO of Fastcase. Fastcase, the official provider of case law to the State Bar of Georgia, attempted to license a copy of the Official Code of Georgia Annotated and was told by the state and their vendor that they could not have a copy of the official law of Georgia “at any price.”

Fastcase has also received numerous takedowns for making the official regulations of Georgia available, and I am in court over publication of state-mandated public safety codes, such as the electrical and building codes. If you think you could a better job disseminating the law to the people you of Georgia, you will do so, as the Official Code says, “at your peril.”

As for legal nonprofits and our continual focus on money, or the lack thereof, and our failed quests for a business model. The only business model I need to see, and I believe I can speak for Tom on this matter as well, is for government to rise to the occasion, after which I can assure you I will happily close my doors and pursue other interests.

Why is money for such a service so hard to find? If you run one of these boots-on-the-ground, ops-oriented legal non profits, when you go talk to foundations, and present your millions of users and shiny public purpose, the foundations want to know why the legal profession is not more supportive, why the bar is not funding our operations.

The foundations want to know why governments are not doing the tasks that we are doing. The foundations are always happy to fund hackathons, prototypes, and symposia, but infrastructure is a very, very tough sell. They don’t see it as their job. They would rather fund what they see as innovation than what they see as infrastructure.

This is an issue that will never be fixed unless the bar faces the fundamental fact that the legal profession has not risen to the task. We can blame government for not providing our primary legal materials in an adequate form, but government will never do so until the bar demands change. The bar has not done so.

Let me be clear, there are some amazing and well-meaning lawyers out there, I do not wish to castigate the entire bar. Nine law firms defend my efforts to clear title on public goods on a pro bono basis, booking millions of dollars in free legal help. There are many lawyers in private practice that make a point of making contributions to LII every year.

There are lawyers in the legal information business, such as Ed Walters of Fastcase and Tim Stanley of Justia that have been stalwart supporters of both Tom and myself, donating generously of their time and their money. It has been a true joy to have spent a decade working with legal rebels such as them.

Those good and noble lawyers, unfortunately, are the exception, not the rule. The American legal profession as a whole has shown little interest in making our primary legal materials more readily available for themselves, let alone the public. Law as a commodity to be sold instead of a public good to be shared is an attitude one finds all too often not just in organizations such as the American Bar Association, but also in institutions such as the Judicial Conference and the Administrative Office of the U.S. Courts.

The lack of interest in public access is coupled with a lack of interest in technology, a lack of interest all too apparent when you look at technical rules adopted by the courts. I’ll give you a simple example. If you file a brief in court, you must double-space your brief. I’ve worked professionally as a public printer for many years, and when I think of double space, I think of a precise concept defined in terms of leading.

The courts don’t do that: they insist that “double space” is a setting in Microsoft Word and it turns out that Microsoft’s definition of what is double spacing changes over time, is not public, and is not accurate. What is amazing is that concepts such as “double space” and “number of words” are practically the only technical standards in place for our courts.

If a court is willing to define length limits based on some proprietary, secret algorithm in a software package, it is no surprise that they are not able (or willing) to define technical standards that make any sense. Technical specs for the format of a PDF file (let alone filing an HTML file!), meaningful rules and systems for the protection of privacy, facilities for bulk access, unique IDs for documents, digital signatures, and meaningful notification of updates to court dockets and their contents are all sorely lacking or non-existent. A very nice article has been recently published on this topic by Colarusso and Rickard (DOI:10.17605/OSF.IO/AWBDX) and is worth a read.

Tom Bruce and Peter Martin stepped up 25 years ago and did what government should have been doing: the dissemination of primary legal materials on the Internet. I will grant you that 25 years ago, this was not something most governments viewed as their job, though I will note that DOJ had the JURIS system already working and could have easily made it available to the public. The job Tom and Peter took upon themselves was pioneering and visionary.

For that brave and early jump from the safety of their ivory towers into the infinite sea of the Internet, Tom and Peter and their amazing LII staff deserves our profound thanks. They deserve more than our thanks, though. They deserve our deeds.

It took 25 years for Congress to start doing a decent job on the public face of the U.S. Code. Nobody in Washington has even started looking at the Code of Federal Regulations in a serious way. We need to continue to support LII, to remind our government that they are not yet doing their job, and to make sure that LII can continue to operate.

We must also tell the bar—repeatedly and in great detail until their eyes cease to glaze over and they begin to see the light—that promulgation is the key to the law. We must convince them that their apathy is bad for the legal profession, bad for America, and bad for democracy. The fact that the bar does not “get it” is our fault as much as theirs. We must redouble our efforts at persuasion. We must try much harder.

As a people, we must all read the same regulations, the same court decisions, the same ordinances and statutes, so we lay down a common baseline from which to govern ourselves. From that common understanding, we can dispute the law, we can improve it, we can understand our rights and obligations under our system of jurisprudence.

The Legal Information Institute plays a crucial role in this fundamental aspect of our legal system. We should all strive to do what they do. If you want justice, it is up to you to help make justice possible. Only if the law rolls like the waters can justice flow like a mighty stream. We must all speak the law we wish to hear.

Carl Malamud is the president and founder of Public.Resource.Org. He has been enjoined by judges from speaking the National Electrical Code, the Official Code of Georgia Annotated, and the European safety standard for baby pacifiers.

by Anne Washington

When the United States first mandated the preservation of government proceedings, clerks wrote in bound blank books. In 1789, Congress passed a law providing for the “safe-keeping” of legislative and government documents (1 Stat. 68).

When the Cornell Legal Information Institute started, digital information was shared on CD-ROMs and 3-1/2 inch disks. In 1992, two people on a cold day in upstate New York turned on a server box to provide law on the Internet.

To celebrate the remarkable work of the Cornell Legal Information Institute in its 25th year and the 228th year of the first US Congress, this is a provocation about what we might celebrate in future.

Vannaver Bush in 1945 imagined a machine he called a Memex that would enable the instant retrieval of “trails” of memory. He briefly discussed how it could apply to the law: “The lawyer has at his touch the associated opinions and decisions … The patent attorney has on call the millions of issued patents, with familiar trails to every point of his client’s interest.” (Bush, 1945, p 8)

What features might be in a future legal Memex ?

Imagine that it is 2042 and the 50th anniversary of LII.

The Vice President is listening to a debate on the Senate floor about a bill related to a campaign issue. She tracks public opinion on the social media site Face-oogle, particularly noting what the Majority Leader’s constituents are saying. More importantly, she receives an automated predictive score from the Congressional Data & Budget Office (CDB) about which existing laws might be impacted by a proposed amendment.

She focuses on the predicted laws that meet her preferred portfolio factors. She realizes that this would change an important law. She requests 3-5 potential placements of the amendment in the United States Code and creates composite texts. After comparing the composite text with the official United States Code source, she is ready to spread the word.

The daughter of the first librarian in the White House notifies the Attorney General.

The Attorney General quickly turns to the Legal Information Institute which now tracks all USC citations and their use in case law. The law has been used in several appeals court cases. LII has a detailed description of a pending case before the US Supreme Court that is related to this law. The Attorney General specifically notes the cases that have appeared before the appeals courts associated with the Majority Leader’s state.

In a brief summary, the Attorney General gives legal advice about potential enforcement issues. The message contains the proposed amendment, as it would appear in the United States Code if passed.

In an unprecedented continuation of two American political dynasties, Vice President Barbara Pierce Bush, sends a confidential instant message to President Mahlia Obama. The two are known for their ability to bridge by partisan divides through quick access to open government documents.

The President wants to understand the impact of the amendment on administrative law. A quick LII search provides a list of federal regulations that may be related to changes in the United States Code. In combination with internal government sources, her assistant is able to identify pending Federal Regulations that might be impacted by the amendment. He reviews the historic point-in-time directories of the Code of Federal Regulation. He completes an analysis of how this amendment might streamline workflows or create conflicts between agencies.

The Vice-President reaches across the aisle to the Majority Leader and shares her analysis. They agree on slight changes to the language in order to meet constituent opinion, address the policy concerns, and to keep the government running effectively.

When the amendment passes, LII notifies all lawyers, who have argued or written about the law and who have opted-in to notification services. The Senate immediately publishes everything as open data and it appears on G! government entertainment live-casting.

My legal Memex builds a network of the people and laws available in the public records of politicians and organizations. The infrastructure for this vision relies on open data, free access to law, and instantaneously availability. The text analysis and machine learning assumes a neutral analysis that is both defendable and leaves room for interpretation.

How far are we from meeting this vision?

As a scholar of legislative organizations, I consider the necessary institutional foundations for a successful legal information institute (LII). The past gives us encouragement. The past also shows how some fundamental principles are necessary to create reliable, accurate, timely, and authoritative data.

A few examples in the history of the United States show the progression necessary for creating the basis for the transition from documents to data.

Two weeks before the end of the first Congress, the chambers pass a law which orders the printing of government records. By the 13th Congress, they realized that distribution is just as important as printing. The Federal Depository Library Program (FDLP), which ensures that documents and skilled librarians are available in every jurisdiction, has its origins in 3 Stat 140 (1813).

The idea that there was too much legal information for any one person to track was evident by the early 20th century. The United States Code, finished in 1926, provided subject access to general and permanent federal laws. Congress thought it was a good idea to create indexes and summaries of all pending legislation as well. The Digest of Public General Bills, which first appeared in 1936, continued to be published in annual volumes through 1990 when it was subsumed into an online database. Congress, as early as 1999, embraced structured data formats so today we have at least the United States Code, votes, legislation, administrative law (Code of Federal Regulations) published in XML.

Law must be documented, printed, distributed, indexed, and structured. While important to the free access to law movement, these developments are equally vital to the internal procedures of public sector organizations. The legislative, judicial, and executive branches could learn from each other and grow together.

The transition from documents to data is vital to modernizing the functioning of our centuries-old bureaucracies around the world, as my other 25 for 25 authors have attested. The projects initiated by Sarah Frug, Sylvia Kwakye and others working on LII in 2017 lead the way with innovative solution for tomorrow.

Law and legislation do not sit still. For instance, the promulgation of laws in the form of the US Records Act was updated in 1795, 1796, 1814, 1816, 1820 and 1842. We need patience as we move forward. Policy has always been iterative.

It is time for the next generation of legal, policy, and technology pioneers to move the free access to law movement forward.

What is your ideal legal Memex?

Anne L. Washington is a digital government scholar who specializes in informatics and technology management. Her expertise on government data currently addresses the emerging policy and governance needs of data science. The National Science Foundation has funded her research on open government data and data-intensive political science. Her work draws on both interpretive research methods and computational text analysis. She is an Assistant Professor at the Schar School of Policy and Government at George Mason University in Arlington, VA, where she teaches organizational ethnography, socio-technical analysis, and electronic government. Prof. Washington serves on the Advisory Board of the Electronic Privacy Information Center (EPIC) and the Open Government Foundation. She has also served on the United Nations World E-parliament Working Group on XML in Parliament, the Oasis LegalXML technical committee of citations, and Federal Web Content Managers Usability Task Force. She was an invited expert to the W3C E-Government Interest Group and the W3C Government Linked Data Working Group.She holds a Bachelors of Arts (BA) in computer science from Brown University, and a Masters in Library Information Science (MLIS) from Rutgers University. She earned a PhD in Information Systems and Technology Management from The George Washington University School of Business with a secondary field in Organization Behavior.  Prior to completing her doctorate, she had extensive work experience in information architecture and information technology after years with the Congressional Research Service at the Library of Congress, Barclays Global Investors, Wells Fargo Nikko Investment Advisors and Apple Computer.

by Adam Ziegler

If I could snap my fingers and make it so, the Web would offer free and open access to every statute, regulation and court ruling ever issued. Unfortunately, finger-snapping doesn’t seem to work.

What does work is … work. Committed, painstaking, imperfect, incremental work over a long period of time, by people like Tom Bruce, Peter Martin, Sara Frug and their colleagues at LII. This series fittingly celebrates their extraordinary 25-year mission to ensure that “everyone [is] able to read and understand the laws that govern them, without cost.” No organization has had a more positive impact on access to law in the internet era.

Unfortunately, despite LII’s remarkable effort and impact, we remain a long way from fully realizing LII’s vision. One area that still requires substantial work is caselaw – the official rulings, decisions and opinions issued by our state and federal courts. Our official caselaw, for the most part, is locked inside print volumes and proprietary databases that offer limited access to the privileged few.

An Early, Profound Commitment to Access

For centuries our courts fulfilled their obligation to ensure public access to law by publishing and disseminating their written decisions in books, called “reporters.” The work by courts, judges, reporters of decisions, publishers, libraries and others to produce and preserve these books over many years has been monumental.

If you study the prefaces and introductory notes of early case reporters, as I have, you gain a profound appreciation for what it took to publish the law during this “book-only” legal publishing period. This was hard work, driven by a commitment to the idea that maximizing access was good for the legal profession and the public:

It has long been a subject of complaint, in this state, that we had no reports of the decisions of our courts of judicature. The importance of having authentic reports of cases. argued and determined in the Supreme Judicial Court, the only court in the state whose decisions are considered as authorities, must be obvious to all who have any pretensions to information on the subject.” (Ephraim Williams, Reporter of Decisions, Supreme Judicial Court of Massachusetts, 1805, published in Vol. 1 of the Massachusetts Reports)

I need not here enlarge upon the great utility, to the profession, especially, of books of Reports, nor on the necessity that exists in all countries, where the law is the rule of action, that it should be certain and known. The legislature may enact laws, but it is the courts that expound them, and if their expositions remain unpublished, much mischief and litigation must be the consequence. (Sidney Breese, 1831, published in Vol. 1 of the Illinois Reports)

The Federal Reporter is devoted exclusively to the prompt and complete publication of the judicial opinions delivered in each of the United State circuit and district courts. It publishes both oral and written opinions, and such charges to juries as are deemed of general importance…It is believed that by this means many able and learned opinions will be rescued from a most undeserved oblivion, while greater uniformity in the interpretation of the federal statutes and the practice of the various federal courts will at the same time be secured. In would seem, therefore, that such an undertaking is not only possessed of great intrinsic merit, but, now that it has been fairly inaugurated, it actually appears to present itself in the light of a public necessity. (West Publishing Company, 1880, published in Vol. 1 of the Federal Reporter)

This commitment to access shines through in so many of the early reporter volumes we’ve digitized as part of the Caselaw Access Project I lead at Harvard Law School. My favorite example is the Reporter’s Note in Volume 32 of the Georgia Reports, which tells the amazing personal story of George Lester’s efforts to publish the law during and after the Civil War, despite being wounded as a Confederate soldier, the burning of his house and papers, and finding himself “poor and destitute” at the close of the war. It’s hard to imagine someone more dedicated to access to law.

Is the Commitment to Access Fading?

Today, books are not the only or the best way for courts to deliver on their longstanding commitment to access. The “book-only” publishing model is long gone, thankfully. Yet a “book-first” publishing model still prevails for most courts and in most jurisdictions. In this model, courts send commercial publishers their decisions, and the “official” versions of those decisions are collected into bound volumes sold by the publishers to libraries. The publishers also get unique access to the final, digital versions of the decisions, which they use to populate expensive, subscription-only databases they alone control. Meanwhile the inferior, unofficial versions of decisions are sometimes made available, often temporarily, through court websites.

The unfortunate result is that today everyone has to pay to access and read the law. Even if you pay, your access is severely limited. And this takes place in an age in which it’s all too easy for anyone to post anything online for everyone to read, for free. What would Ephraim Williams, Sidney Breese, George Lester and their contemporaries say if they knew that it was possible for courts to make every ruling immediately, freely accessible to the entire world, yet many were not doing so? They might think the commitment to access had faded.

I don’t believe the courts’ commitment to access has faded. It remains every bit as profound and intense as it was centuries ago. Every conversation I have with judges or court officials reinforces this. The access problem today does not reflect a lack of commitment. It reflects, instead, the fundamental difficulty of changing behavior inside institutions designed, for good reason, to make change hard.

This attitude toward change is evident in the slow pace with which courts adopt new technology, which Chief Justice Roberts celebrated in his 2014 Year-End Report on the Federal Judiciary. According to Roberts, “[c]ourts are simply different in important respects when it comes to adopting technology, including information technology,” and this tendency toward caution is an institutional virtue. Technology experts scoff at this claim, because many court technology systems – PACER, for one – are fundamentally defective and unjustifiably difficult to use, and have been for a long time. Far from protecting courts from bad technology, courts’ resistance to change often prolongs their exposure to bad technology.

Nevertheless, those of us who want change in the way courts publish their decisions must respect this dynamic. We must work hard to appreciate the concerns and reservations courts have, to increase awareness and understanding of technological solutions, and to demonstrate paths forward that allow courts to fulfill their commitment to access without compromising other important values.

Access in a Modern World: Digital-First Publishing

Going forward, ensuring public access means publishing and distributing court decisions online as free and open data. That is unquestionably what every court in every jurisdiction should be moving toward.

Courts should focus their digital-publishing efforts forward. They should not worry about providing access to their historical decisions. The Free Law Project, led by Mike Lissner, has already amassed and made accessible a huge, growing collection of historical decisions and other legal materials, including federal trial court opinions from PACER. Our Library Innovation Lab, in partnership with Ravel Law, will provide public access to the Harvard Law Library’s full collection of historical court decisions extracted from roughly 40,000 bound reporter volumes. While bulk access to this data will be restricted temporarily, those restrictions cease once a state or federal court transitions to digital-first publishing. Thus, by making the transition prospectively, courts can also ensure free public access to all of their historical caselaw.

Because each court system has different challenges, constraints and opportunities, we should expect to see different approaches to the transition from book-first to digital-first publishing. We should not expect a one-size-fits-all solution. But we can try to identify a common, achievable standard.

To that end, described below is a set of proposed guidelines for any state making this transition to digital-first publishing. These guidelines recognize the need for flexibility. They outline an achievable standard but do not dictate particular means or methods. For states able to administer their own digital-first publishing systems, these guidelines can inform that system’s priorities and design. For states that will continue relying on the software and/or services of a partner, these guidelines can help define an RFP and inform negotiations and contracting.

Essential characteristics: To fulfill the court’s basic commitment to access, a digital-first publishing system should possess at least these characteristics:

  1. Online – Court decisions should be issued and available online via the Web.
  1. Free and Open – Court decisions should be accessible without charge and without any technical or contractual restrictions on access or usage.
  1. Comprehensive – All decisions should be made available digitally in the same fashion, using the same system. If a state distinguishes between precedential and non-precedential decisions, that distinction should not affect access.
  1. Official – The digital version of a decision should be the official version.
  1. Citable – The digital version of a decision should be citable in and by the courts of the relevant state, using a vendor neutral citation format.
  1. Machine Readable – The decisions should be made available in machine readable formats, meaning at least digitally created PDFs.

Desirable characteristics: To maximize access and to provide a greater public benefit, a court’s digital-first publishing system should possess these additional characteristics:

  1. Digitally Signed – Decisions should be digitally signed by the issuing court to permit authentication.
  1. Versioned – Decisions should be issued using a version control system that makes corrections easy for the courts and transparent to those relying on the decisions.
  1. Structured Data – Decisions should be issued with accompanying metadata that describes, according to a publicly disclosed standard, key attributes of the decisions, such as case name, citation, court name, attorneys, participating judges and authoring judge.
  1. Medium-Neutral – Decisions should include paragraph-numbering and avoid page-dependency.
  1. Archived – Decisions should be preserved, and the archived decisions should be made available online.
  1. Searchable – Decisions should be searchable using keywords and metadata fields.
  1. Bulk Downloadable – Decisions should be downloadable in bulk.
  1. API – Decisions should be accessible to any programmer via a public, documented Application Programming Interface.

My hope is that each court system, in furtherance of its longstanding commitment to access, will work to understand these guidelines and to adopt these as priorities. As LII has shown over 25 years, however, the hard work of ensuring access to law is not the government’s obligation alone. We all – libraries, law schools, lawyers, entrepreneurs – should find ways to advocate for and actively participate in creating the world envisioned by LII, in which “everyone [is] able to read and understand the laws that govern them, without cost.” We have a long way to go to realize this vision, especially for caselaw, but we all are fortunate to have LII’s example to follow.

 

Adam Ziegler is the Managing Director of the Library Innovation Lab at Harvard Law School Library, where he leads several legal technology and information projects, including the Caselaw Access Project, an effort to digitize and make publicly available Harvard’s full collection of historical court decisions. Before joining Harvard in 2014, he founded a small legal startup and represented clients in court for over 10 years.

Ginevra Peruginelli (Institute of Theory and Techniques of Legal Information of the National Research Council of Italy)

[Ed. note:  This instalment of our 25-for-25 looks, at first, like a bit of a departure for us — it talks about different methods of evaluating legal scholarship.  But with a little reading-between-the-lines, it’s not hard to see how well it ties in with questions that are very present for American legal experts.   The problem of evaluating the quality of legal expertise expressed, consumed, and commented upon in different online environments — blogs such as this one, online commentary, and nontraditional channels of all kinds — is a stubborn one that is gaining increased attention.   How do you measure the quality of scholarship, or its impact? Other disciplines have struggled with this, as reliance on particular publication vehicles becomes obsolete in the face of new methods of dissemination, community discussion, and response.  It is high time that we looked at legal scholarship as well.  Of late, law librarians interested in so-called “alt-metrics” have begun to.]

The evaluation of the quality of legal publications is now at the center of the debate in the legal academia in Europe (among others Flückiger and Tanquerel 2015). Nowadays, in principle, peer review remains the preferred method for assessing the quality of legal scholarship: this is partly due to the failure of a purely metrics-based system in this area. In legal sciences, where research output is usually produced in long written texts, research performance is hard to assess using quantitative indicators: bibliometric methods are not sufficiently capable of measuring research performance in legal scholarship and are not considered trustable by the legal community.

In 1992 Edward L. Rubin, professor of law at the Vanderbilt University Law School (Rubin 1992) argued that there is no theory of evaluation for legal sciences. He stated that what actually leads legal academics to assess a work is based on an undefined concept of quality of judgments. This creates a number of conceptual and practical difficulties that produce confusion and unease in the area. It is a matter of fact that many of the most heated discussions on legal scholarship concern the evaluation process and a relevant number of these are repetitive and non-productive for the total absence of an evaluation theory. Rubin directly tackles the question of what the foundation for evaluation should be and recommends an epistemological approach for formulating an evaluation theory. Some interesting issues are raised in his writings: the need for using criteria such as clarity, persuasiveness, significance, the consideration by evaluators of their own uncertainty, especially in case of topics somehow far from their discipline.

A strong debate is still going on over criteria and even about the possibility of objective reliable evaluation in the law domain; major critical issues are still in place and no innovative solutions have been brought forward yet.

According to one  part of the literature  (van Gestel and Vranken 2011; van Gestel 2015; Gutwirth 2009; Epstein and King 2002; Siems 2008), it is possible to identify some critical issues at the core of the debate on legal research assessment at European level. These are reported below in the form of questions and comments based on the current debate.

(a) Following the research assessment exercise of various European countries, content-based criteria such as originality, significance, societal impact are adopted. Is there general consensus on the value and interpretation of such criteria?

Depending on the type of research, on the literary genres and on the areas of law, the above content-based quality criteria can be critically different. Legal scholarship dedicated to interpret recent case law or a legal provision meets some difficulties in fulfilling the standard of originality as compared to theoretical research on general concepts, problems and principles of the law (Siems 2008). Similar difficulties arise in evaluating criteria such as internationalization and societal impact, particularly in some fields of law, which are not part of the international arena, in terms of relevance, competitiveness and approval by the scientific community, including the explicit collaboration of researchers and research teams from other countries.

(b) Is it possible to assess legal research on the basis of bibliometric evaluation techniques more or less widely accepted in other scientific disciplines?

Of course such alternatives should be thoroughly analyzed, taking into account a methodological justification in legal research. Although the best way to assess legal research and scientific publication is peer review, its time consuming process, the scarce availability of reviewers with expertise in this domain and the increasing request of research outputs evaluation limit the peer review method in legal science. Moreover, background figures that can be used to support the allocation of funds are being requested more and more by governments and policymakers (Gutwirth 2009). This situation has actually created the need for quantitative measurements of scientific output as support tools for peer review. Performance indicators used in the assessment of exact sciences are now a strong part of the debate concerning how to evaluate non-bibliometric areas such as law. However, adopting the criteria, evaluation processes and methods that are used in other sciences is not a good solution. It would be appropriate to create transnational standards for legal research quality assessment, taking into account the actual internationalization of research in this area and the increasing mobility of students and development of international law schools. The establishment of harmonized standards or of generally accepted quality indicators is a challenge to be met, despite the differences between national assessment methods, various publishing cultures and different academic traditions.

(c) How reliable is peer review?

Finding highly qualified peer reviewers is a difficult task when a pre-selection is to be performed, and usually it is not always clear how reviewers are recruited and selected (Lamont 2009). Besides that, subjectivity, unconscious biases and prejudices are impossible to eliminate. Honesty, accountability, openness and integrity are vital qualities for all reviewers who should be able to pursue their work in an atmosphere free from prejudice. In addition, if we focus on the problem from the point of view of legal journals and their publishing practices, it is important to reach clarity and consensus within editorial boards about the way criteria are used and the decisions are taken. Editorial boards should follow a well-documented procedure and make it clear to the audience (van Gestel and Vranken 2011). It is also up to the editorial boards to check that the submitted papers include a clear explanation of the research question and the research design. Quite important, submissions dealing with comparative law issues should contain an explanation of jurisdictions that are taken into account and employed methods of the analysis. In several European countries there is no common policy framework of articles submitted to national law journals: every journal/publisher follows its own practice to assess the quality of legal research outputs.

(d) Which are the advantages and disadvantages of law journals rankings?

Over the past few years, legal academics and their institutions have become obsessive about the starratings of the journals in which they publish. On one side ranking of journals gives university management a convenient method of assessing research performance, on the other hand, research evidence suggests that journal ranking is not a good proxy for the value and impact of an article. Moreover, when journal rankings are based on journal citation scores, the number of citations that a journal receives in other periodicals is a very indirect indicator of the quality of an article in that same periodical.

In particular, the law journal ranking system is encouraging the situation where academics become more interested in publishing in specific journals of high impact than in doing research that is of real value. Moreover, high qualified researchers are forced to publish in impacted journals abroad and there is no surprise that the national periodicals suffer for lack of the highest level submissions. In a longer period, this could have a negative effect on the existence of local scientific legal periodicals itself.

The idea of a European ranking of law journals represents a great challenge because it would require a cross-border classification of journals. A multilingual law journal database would be an important achievement, reflecting differences of legal cultures and jurisdictions (van Gestel 2015).

(e) Is the relation between legal science and legal practice important for research assessment?

Nowadays a close connection exists between legal science and legal practice, given that both rely on similar instruments for analysis, practical argumentation and reasoning. Legal science is both the science of law and one of the authoritative and influencing sources of that law. This is why there is a strict correlation between legal science and legal practice. As a result, legal science has to pass two “exams”: a quality test within legal academia, which first evaluates its robustness as scientific research, and secondly assesses the pertinence and relevance to legal practice. These overlapping dimensions produce legally relevant knowledge, which should both be considered in the process of evaluating legal science (Gutwirth 2009).

(f) Is the harmonization of legal research assessment exercises at European level desirable in years to come?

Legal research could take advantage of the delay it has experienced in comparison to evaluation procedures developed and carried out for the other social sciences, by initiating a scientific debate on the benefits and disadvantages of the various quality evaluation systems. The goal would be to eventually promote uniformity in the definition of indicators and standards (van Gestel and Vranken 2011).

These are some of the key questions that are most likely to form a framework for future debate, not only because they can promote lively discussions, but because they are also capable of involving countries that have only recently addressed the question of legal research assessment. Legal scholars within each country are the main actors of this discussion. In particular, quality indicators should not be imposed upon legal scholars from a top down perspective, and transparency as well as accountability are to be valued in the legal evaluation process so to build a strong evaluation culture.

References:

Epstein L. and King G. (2002). The Rules of Inference, 69 Chicago Law Review: 1–209.

Flückiger A. and Tanquerel T. (2015). L’évaluation de la recherche en droit / Assessing research in law Enjeux et méthodes / Stakes and methods. Bruxelles, Bruylant.

van Gestel R. (2015). Sense and non-sense of a European ranking of law schools and law journals. Legal Studies, 35: 165–185. doi: 10.1111/lest.12050.

van Gestel R. and Vranken J. (2011). Assessing Legal Research: Sense and Nonsense of Peer Review versus Bibliometrics and the Need for a European Approach, German Law Journal, Vol. 12, no. 3 p. 901-929.

Gutwirth S. (2009). The evaluation of legal science. The Vl.I.R.-model for integral quality assessment of research in law: what next ? Brussels, It takes two to do science. The puzzling interactions between science and society, Available at: http://works.bepress.com/serge_gutwirth/16/

Lamont M. (2009). How professors think. Inside the curious world of academic judgment, Harvard University Press, 336 pp.

Rubin E.L. (1992). On Beyond Truth: A Theory for Evaluating Legal Scholarship, 80 California Law Review vol. 80 n. 4 pp. 889-963 (Reprinted in Readings in Race and Law: A Guide to Critical Race Theory, Alex Johnson, ed., West, 2002).

Siems M.M. (2008). Legal Originality, 28 Oxford Journal of Legal Studies 174.

 

Ginevra Peruginelli is Researcher at ITTIG-CNR. She has a degree in Law and a Ph.D in Telematics and Information Society at the University of Florence. She has also received her Master’s degree in Computer Science at the University of Northumbria, Newcastle. Since 2003 she is entitled to practice as a lawyer.
She has been involved in several projects at European and national level such as the NiR (Norme in Rete – Legislation on the Net) portal, MINERVA (Ministerial Network for Valorising Activities in Digitisation), DALOS (Drafting Legislation with Ontology-based Support), CARE (Citizens Consular Assistance Regulation in Europe) and e-Codex (e-Justice Communication via Online Data Exchange). She has also worked in a research project promoted by the Publications Office of the EU concerning interoperability issues between the Eurovoc thesaurus and other European thesauri. In 2004 and in 2006 she won two CNR research fellowships as visiting scientist at the Institute of Advanced Legal Studies of the University of London and the Centre de recherche en droit public at the Faculty of Law of the University of Montréal.
Ginevra is the editor-in-chief of the Journal of Open Access to Law, a joint effort of ITTIG, the Autonomous University of Barcelona’s Center for Law and Technology, and the Legal Information Institute.

by David Curle

In order to agree to write about something that is 25 years old, you almost have to admit to being old enough to have something to say about it. So I might as well get my old codger bona fides out of the way.  I came of age at the very cusp of the digital revolution in legal information.  A month before my college graduation ceremony in June 1981, IBM launched its first PC.  I thus belong to the last generation of students who produced their term papers on a typewriter.  

The Former Next Great Thing

When I later entered law school the PCs were pretty well established (we used WordPerfect to write our briefs, of course), and the cutting edge of technology shifted to new legal research tools. Between trips to the library stacks to track down digests or to tediously Shepardize cases manually, we learned of Lexis and Westlaw, which in my first year were accessed via an acoustic-coupled modem and an IBM 3101 dumb terminal, squirreled away in a tiny lab-like room next to the reference desk in the library.  One terminal to serve an entire law school. Sign up to use it via a schedule on the door. Intrigued by this new world of digital information, I took a job in the law library, eventually teaching other students how to search on Lexis and Westlaw between shifts at the reference desk.  

By my second or third year, the 3101 was replaced by Lexis’ and Westlaw’s UBIQ and WALT dedicated terminals. My boss Tom Woxland, Reference Librarian and Head of Public Services at the University of Minnesota Law School, wrote an amusing article in Legal Reference Services Quarterly about a conflict between WALT and the library staff’s refrigerator that will give you a good sense of the level of technology sophistication we dealt with on a daily basis in those days.  

It was just a few years after this refrigerator incident that Tom Bruce and Peter Martin started up LII.  It’s hard to underestimate the imagination and vision that this must have taken, because the digital legal world was still in its infancy.  But they could see the way the world was headed in 1992, and not only that, they did something about it in starting LII.  

UBIQ and WALT, locked away in that room in the library, awakened an interest that turned into a career in legal information systems. I gradually lost interest in legal practice as a career as my interest in electronic information systems of all kinds grew.  By the time I first met Tom Bruce, it was in my capacity as a token representative of the commercial side of the legal information world; I was an analyst at the research firm Outsell, Inc., which tracks various information markets, and I covered Thomson Reuters, Reed Elsevier (RELX), Wolters Kluwer, and all of the smaller players nipping at their heels in the legal information hierarchies of the time. Tom called on me to help explain this commercial world to his community of people working in the more open and non-commercial part of the legal information landscape.  

I don’t intend this piece to be a tribute to LII, nor was I asked to provide one. Rather, Tom Bruce asked me to say a few words about the relationship between free and fee-based legal materials and how they relate to each other. In one big sense, that relationship has evolved in the face of new technologies, and that evolution is the focus of this essay. A fundamental shift in the way the legal market approaches legal information is underway: We no longer think of legal information simply as sets of documents; we are starting to see legal information as data.  

To go back to the chronicle of my digital awakening, there were several things about the new legal information systems that excited me even way back in the 1980s:

  • New entry points. Free-text searching in Westlaw and Lexis freed us from having to use finding tools such as digests, legal encyclopedia, and secondary analytical legal literature in order to find relevant cases. Suddenly any aspect of a case was open to search, not just those that legal indexers or secondary legal materials might have chosen to highlight. Dan Dabney, the former Senior Director, Classification Services at Thomson Reuters, wrote a thoughtful piece about the relationship between searching the natural language of the law, on the one hand, and the artificial languages like the Key Number System that we use to describe the law. He identified the advantages and disadvantages of both, but it was clear that free-text search was a leap forward. His article has held up well and is worth a read: The Universe of Thinkable Thoughts: Literary Warrant and West’s Key Number System
  • Universal availability.  Another aspect of the new legal databases that seemed obvious to me pretty early on was that comprehensive databases of electronic legal materials would be available anywhere, anytime. This had implications for the role of libraries, and for the workflow of lawyers.  It also had access to justice implications, because while most law libraries were open to the public and free (if inconvenient to use), online databases were, at the time, mostly commercial operations with paywalls. If theoretically available anytime and anywhere, legal materials were nonetheless limited to those who could invest the money to subscribe and the time to master their still-complex search syntax.
  • Hyperlinking. While the full hyperlinking possibilities of the World Wide Web were a decade off, I could see that online access to legal materials would shorten the steps between legal arguments and supporting sources.  Where before one might jot down a series of case citations in a text and then go to the stacks one by one to evaluate their relevancy, online you could do this all in one sitting. The editorial cross-referencing that already went in annotations, footnotes, and in-line cites in cases was about to become an orgy of cross-linking (across all kinds of content, not just legal content) that could be carried out at the click of a mouse.  

But as revolutionary as these new approaches were, electronic legal research systems still operated primarily as finding tools. The process of legal research was still oriented toward a single goal: leading the researcher to the documents that contained the answers to legal questions. The onus was still on lawyers to extract meaning from those documents and embed that meaning in their work product.  

A New Mindset: Data not Documents

In recent years, however, a shift in mindset has occurred. Some lawyers, with the help of data scientists, are now starting to think of legal information sources not as collections of individual documents that need to stand on their own in order to have meaning, but as data sets from which new kinds of meaning can be extracted.  

Some of those new applications for “law as data” are:

  • Lawyer and court analytics.  Lex Machina and Ravel Law, recently acquired by LexisNexis, are poster boys for this phenomenon, but others are joining the fray. Lex Machina takes court docket information and analyzes them not for their legal content but for performance data – how fast does this court handle a certain kind of motion, how well has that firm performed. The goal is to identify trends and make predictions based on objective performance data, which is quite a different inquiry than looking at a case based on the merits alone.  
  • Citation analysis and visualization  The value of it is open to discussion, but some commercial players are bringing new techniques to citation analysis, and quite often the result is some form of visualization.  Ravel Law and Fastcase have various kinds of visualizations that take sets of case law data and turn them into visual representations that are intended to illuminate and reveal relationships that traditional, more linear citation analysis might not find.
  • Usage analysis. The content of documents is valuable, but so are the trails of crumbs that users leave as they move from one document to another. Finding meaning in those patterns of usage is just as useful for lawyers as it is for consumers in the Amazon age of “people who bought this also bought that.” Knowing where other researchers have been is valuable data, and systems like Westlaw are able to track relationships between documents and leverage them as information that can be as valuable as any editorial classification scheme.  
  • Entity extraction. Legal documents are full of named entities: people, companies, product names, places, other organizations. Computers are getting better at finding and extracting those entity names from documents.  This has a number of utilities, beyond just helping to standardize the nomenclature used within a data source.  Open standards for entity names mean legal data can more easily be integrated with other types of data sources.  One such open standard identifier is Thomson Reuters’ PermID.
  • Statutes and regulations as inputs to smart contracts. It’s only a matter of time before large classes of contracts become automated and self-executing smart contracts supported by distributed ledgers and blockchains.  A classic example of such a smart contract is a shipping contract, where one party is obligated to pay another when goods arrive in a harbor, and GPS data on the location of a ship can be the signal that triggers such payment. But electronically stored statutes and regulations, especially to the extent that they govern quantitative measures such as time frames, currencies, or interest rates, can also become inputs to smart contracts, dynamically changing contract terms or triggering actions or obligations without human (i.e. lawyerly) intervention.

 

 

In all of these applications, we are moving quite a bit away from seeing legal documents for their “face value,” the intrinsic legal principles(s) that each document stands for. Rather, documents and interrelated sets of documents are sources of data points that can be leveraged in different ways in order to speed up and/or improve legal and business decisions. The data embedded in sets of legal documents becomes more than simply the sum of their content in substantive legal meaning; other meanings with strategic or commercial value can be surfaced.  

The Future: Better Data, Not Just Open Data

If there is one thing that the application of a lot of data science to the law has revealed, it’s that the law is a mess. Certain jurisdictions are better than others, of course, but in the US the raw data that we call the law is delivered to the public in an unholy variety of formats, with inconsistent frequency, various levels of comprehensiveness, and with self-imposed limitations on access.  On the state level alone, Sarah Glassmeyer, in her State Legal Information Census, identified 14 different barriers to access ranging from lack of search capability to lack of authoritativeness to restrictions on access for re-use.  Add to that the problematic publishing practices at the federal level (Pacer, anyone?) and the free-for-all at the county and municipal levels, and it’s nothing less than an untamed data jungle.

It is notoriously difficult to acquire and analyze what has been called the operating system of democracy, the law. When Lex Machina was acquired by LexisNexis, one of the primary motivations it gave was the high cost of acquiring, and then normalizing, the imperfect legal data that comes out of the federal courts. LexisNexis had already made the significant investment in building that data set; Lex Machina wanted to focus on what it was good at rather than on than spending its time acquiring and cleaning up the government’s data.  

When a large collection of US case law was made available to the public via Google Scholar in 2009, many saw this as the beginning of the end.  Finally, they thought, access to the law would no longer be a problem.  Since then, more and more legal sources – judicial, legislative, and administrative – have been brought to the public domain. But is that kind of access the beginning of the end, or the end of the beginning? Or the beginning of a new mission?

In a thoughtful 2014 essay about Google Scholar’s addition of case law, Tom Bruce reminded us not to get too self-congratulatory about simple access to legal documents.  Wider and freer availability of legal documents does solve one set of problems, especially for one set of users: lawyers. For the public at large, however, even free and open legal information is as impenetrable as if it had been locked up behind the most expensive paywalls. The reason for this is that most legal information is written and delivered as if only lawyers need it. In his essay, he sees the “what’s next” for the Open Access movement as opening legal information to the people who despite not being lawyers, are nonetheless affected by the law every minute of their lives.  

Yes, that “what next” does include pushing to make more primary legal documents freely available in the public domain. Yes, it does mean that organizations like LII can continue to help make law and regulations easier for non-lawyers to find, understand, and apply in their lives, jobs, and industries.  But Tom Bruce provided a few hints at what is now clearly an equally important imperative. Among his prescriptions for the future: “We need to increase the density of connections between documents by making connections easier for machines (rather than human authors) to create.”

Operating in a “law as data” mindset, lawyers, legal tech companies, and data-savvy players of all kind will be looking for cleaner, more well-structured, more machine-readable, and more consistently-formatted legal data. I think this might be a good role for the LIIs of the world in the future. Not instead of, but in addition to, the core mission now of making raw legal content more available to everyone. In a 2015 article, I lamented the fact that so much legal technology expertise is wasted on simply making sense of the unstructured mess found in legal documents. Someday, all the effort used to make sense of messy data might stimulate a movement to make the data less messy in the first place.  I cited Paul Lippe on this, in his discussion of the long-term effects of artificial intelligence in the legal system: “Watson will force a much more rigorous conversation about the actual structure of legal knowledge. Statutes, regulations, how-to-guides, policies, contracts and of course case law don’t work together especially well, making it challenging for systems like Watson to interpret them. This Tower of Babel says as much about the complex way we create law as it does about the limitations of Watson.”

LII and the Free Access to Law Movement have spent 25 years bringing the legal Tower of Babel into the sunlight. A worthy goal for the next 25 years would be to help guide that “rigourous conversation about the structure of legal knowledge.”  

David Curle is the director of Market Intelligence at Thomson Reuters Legal, providing research and thought leadership around the competitive environment and the changing legal services industry.